Air Brake Systems, Inc. v. Norman Y. Mineta, in his capacity as Secretary of Transportation

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0044P (6th Cir.)
File Name: 04a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AIR BRAKE SYSTEMS, INC.,
Plaintiff-Appellant,
v.
NORMAN Y. MINETA, in his
capacity as Secretary of
Transportation; NATIONAL
HIGHWAY TRAFFIC SAFETY
ADMINISTRATION,
Defendants-Appellees.
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No. 02-1682
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 01-10308—David M. Lawson, District Judge.
Argued: October 23, 2003
Decided and Filed: February 11, 2004
Before: KEITH, MARTIN, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Daniel L. Pulter, LOOMIS, EWERT,
PARSLEY, DAVIS & GOTTING, Lansing, Michigan, for
2 Air Brake Systems v. Mineta, et al. No. 02-1682
Appellant. Peter R. Maier, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Daniel L. Pulter, David M. Lick,
LOOMIS, EWERT, PARSLEY, DAVIS & GOTTING,
Lansing, Michigan, for Appellant. Peter R. Maier, Michael
Jay Singer, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., Lloyd Guerci, NATIONAL
HIGHWAY TRAFFIC SAFETY ADMINISTRATION, for
Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. This case arises from a
longstanding dispute between the National Highway Traffic
Safety Administration (NHTSA) and Air Brake Systems, Inc.
(Air Brake). Air Brake manufactures a “non-electronic”
antilock brake system for trucks and trailers, which purports
to comply with Federal Motor Vehicle Safety Standard 121,
a NHTSA regulation concerning antilock brakes. When an
Air Brake customer asked NHTSA whether a vehicle with Air
Brake’s brake system—the only non-electronic antilock brake
system on the market—would comply with Standard 121,
NHTSA’s Acting Chief Counsel issued two opinion letters
stating that the brake system would not satisfy the standard.
NHTSA posted the letters on its website (with negative
consequences for Air Brake’s business), but it did not begin
the statutory process for determining whether vehicles
carrying such brakes were noncompliant or the statutory
process for ordering a recall of vehicles with these brakes.
Soon after NHTSA posted the first of these letters on its
website, Air Brake filed this action challenging the Chief
Counsel’s conclusion as well as the Chief Counsel’s authority
to issue the letter. The district court granted summary
judgment in favor of NHTSA, reasoning that interpretive
letters issued by NHTSA’s Acting Chief Counsel do not

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No. 02-1682 Air Brake Systems v. Mineta, et al. 3
constitute “final agency action” subject to judicial review
under the Administrative Procedure Act. We agree that the
tentative conclusions reached in the letters, which are based
in part on Air Brake’s representations about its antilock brake
system and which NHTSA acknowledges are neither binding
on the industry nor entitled to any administrative deference,
do not constitute final agency action regarding the meaning of
Standard 121 or Air Brake’s compliance with that standard.
At the same time, however, the letters do reflect final agency
action with respect to the distinct question whether the Chief
Counsel has authority to issue them, because the practice does
not lend itself to further review at the agency level and has
legal consequences. Yet because the practice of permitting
NHTSA’s Chief Counsel to issue advisory opinions in
response to inquiries from the public does not exceed the
Chief Counsel’s authority (and indeed has much to
recommend it), we affirm the district court’s judgment in
favor of the Government.
I.
When Congress enacted the National Traffic and Motor
Vehicle Safety Act of 1966, 80 Stat. 718, 49 U.S.C. § 30101
et seq., it directed the Secretary of Transportation to prescribe
motor vehicle safety standards. 49 U.S.C. § 30111. The
Secretary in turn delegated this task to NHTSA. The first
Federal Motor Vehicle Safety Standard was promulgated in
1967 and NHTSA has promulgated numerous other standards
since then, including Standard 121 (codified at 49 C.F.R.
§ 571.121), which covers the requirements for air brake
systems used in heavy vehicles.
In 1995, NHTSA amended Standard 121 to require that
trucks, buses and trailers equipped with air brakes have an
“antilock brake system.” See Standard No. 121, Air Brake
Systems, 60 Fed. Reg. 13,216 (Mar. 10, 1995). The standard
defines “antilock brake system” as
4 Air Brake Systems v. Mineta, et al. No. 02-1682
a portion of a service brake system that automatically
controls the degree of rotational wheel slip during
braking by:
(1) Sensing the rate of angular rotation of the wheels;
(2) Transmitting signals regarding the rate of wheel
angular rotation to one or more controlling devices which
interpret those signals and generate responsive
controlling output signals; and
(3) Transmitting those controlling signals to one or
more modulators which adjust brake actuating forces in
response to those signals.
49 C.F.R. § 571.121, S4. In accordance with this standard,
antilock brakes also must have an electrical circuit capable of
signaling a malfunction in the brakes through an external
warning light. See id. §§ 571.121, S5.1.6.2, 5.1.6.3, 5.2.3.2,
5.2.3.3. NHTSA enacted the 1995 amendment amid concerns
that only electronic braking systems would satisfy this
provision. See Standard No. 121, 60 Fed. Reg. at 13,227.
One company concerned about the impact of the amended
standard was Air Brake Systems, which manufactures braking
systems installed on trucks and trailers. After devoting ten
years to developing a pneumatic antilock brake system for
trucks and trailers, Air Brake patented its new brake
system—the “MSQR-5000”—in 1992. The MSQR-5000 is
a non-electronic brake or, in the words of Air Brake, is a
“non-computerized antilock braking system which is a
combination differential pressure regulator/quick release
valve that is installed at each braking axle into the service air
lines centered between the brake chambers.” J.A. at 94. Air
Brake initially sold its non-electronic antilock brakes on the
retrofit after-market for used trucks and trailers (which is not
subject to Standard 121), but not on the original-equipment
market for new trucks and trailers (which is subject to
Standard 121).

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No. 02-1682 Air Brake Systems v. Mineta, et al. 5
After NHTSA amended Standard 121, William
Washington, the current president of Air Brake, challenged
the validity of the rule in federal court. Among other
contentions, he claimed that the standard improperly sought
to exclude non-electronic antilock brakes from the market and
improperly imposed design specifications rather than
performance criteria, all in violation of NHTSA’s regulatory
authority. The Tenth Circuit rejected Washington’s
challenge. See Washington v. Dep’t of Transp., 84 F.3d 1222
(10th Cir. 1996). In doing so, the court noted that a
manufacturer “that has devised a new means of obtaining the
same or better safety performance” may seek an exemption
from a safety standard’s requirements, and that “no special
exemption would be necessary for a new device meeting [an]
existing . . . standard[]” if the standard is “purely
performative,” as opposed to one that requires “a particular
type of equipment.” Id. at 1225 & n.3. Air Brake seized
upon this language and at some point began marketing its
product as compliant with Standard 121, despite the
acknowledged absence of a warning light. J.A. at 225
(“Warning light excluded pursuant to: Tenth Circuit Court of
Appeals Case. No. 95-9513 (3/24/96)”). Air Brake
represented in its Manufacturer’s Certification that “[t]he
exclusion of a warning light” in its pneumatic antilock brake
system “is permissible pursuant to Washington v. DOT.” J.A.
at 224.
In January 2001, Air Brake tried to sell the MSQR-5000 to
MAC Trailer Manufacturing, a manufacturer of vehicles
subject to Standard 121. Because Air Brake’s product was
the only non-electronic antilock brake system on the market,
MAC Trailer asked NHTSA (orally) whether the device met
the requirements of Standard 121. NHTSA responded (also
orally) that it did not.
A month later, William Washington and consultants hired
by Air Brake met with NHTSA to explain the operation and
features of the MSQR-5000, in an apparent attempt to
persuade NHTSA that the braking system complied with the
6 Air Brake Systems v. Mineta, et al. No. 02-1682
agency’s safety standards. During the meeting, NHTSA
requested that certain tests be performed on the product and
that Air Brake submit the test data to the agency. Air Brake
scheduled another meeting with NHTSA for this purpose on
June 12, 2001.
On June 4, 2001, eight days before the scheduled meeting,
NHTSA’s Acting Chief Counsel, John Womack, sent a letter
to MAC Trailer in response to its earlier oral inquiry and a
subsequent written inquiry as to whether the MSQR-5000
satisfied Standard 121. In the letter, the Chief Counsel noted
that NHTSA does not pre-approve equipment, and that the
applicable statutes make the vehicle manufacturer, not the
parts manufacturer, responsible for ensuring compliance with
NHTSA’s safety standards. Nonetheless, based on NHTSA’s
review of Air Brake’s promotional materials and the
“principles involved in [the braking system’s] operation,” he
noted that “the installation of the MSQR-5000 alone would
not allow a vehicle to meet [Standard] 121’s [antilock brake
system] requirement.” J.A. at 172. The Chief Counsel
expressed specific concern that (1) “the MSQR-5000 does not
seem to have any means of automatically controlling wheel
slip during braking by sensing, analyzing, and modulating the
rate of angular rotation of the wheel,” and (2) “the MSQR-
5000 also appears to lack any provision for illuminating a
warning light providing notification of an [antilock brake
system] malfunction.” J.A. at 173. NHTSA posted the letter
on its website.
Air Brake met with NHTSA as planned on June 12th. At
the meeting NHTSA recommended that Air Brake perform
certain tests on the brakes. Air Brake conducted the tests and
forwarded the results to NHTSA. At the same time, it asked
NHTSA to post a letter from Air Brake’s counsel on its
website so that Air Brake’s views about MSQR-5000 and
specifically about the brake system’s compliance with
Standard 121 could be seen by visitors to NHTSA’s website
alongside the contrary opinion of NHTSA’s Chief Counsel.
NHTSA never posted the letter.

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No. 02-1682 Air Brake Systems v. Mineta, et al. 7
On August 29, 2001, Air Brake sued Secretary of
Transportation Norman Mineta and NHTSA (collectively,
NHTSA), challenging the agency’s determination that the
MSQR-5000 did not comply with Standard 121 and seeking
to enjoin NHTSA from continuing to publish the offending
letter on its website. The United States District Court for the
Eastern District of Michigan denied Air Brake a temporary
restraining order, but took Air Brake’s motion for a
preliminary injunction under consideration and ordered the
parties to take the steps necessary for NHTSA to complete its
review of Air Brake’s product. As a culmination of these
steps and as requested by the district court, NHTSA’s Acting
Chief Counsel issued a letter on December 10, 2001 to Air
Brake containing his interpretation and application of
Standard 121 to Air Brake’s pneumatic brake system. The
letter superceded the June 4th letter and essentially reaffirmed
the Chief Counsel’s conclusion that the MSQR-5000 braking
system would not by itself bring a vehicle into compliance
with Standard 121.
NHTSA then moved for summary judgment, which the
district court granted on the ground that neither the June 4th
letter nor the December 10th letter issued by the Chief
Counsel constituted “final agency action.” Because “the
letters contain the opinion of NHTSA’s acting chief
counsel—a subordinate official—that the plaintiff’s product
‘alone’ will not permit a vehicle to comply with [Standard]
121,” the court reasoned that they “represent[] the position the
Secretary is likely to take if and when proceedings are
initiated,” not the final action by the Secretary. 202 F. Supp.
2d at 712 (quotation and citation omitted). “More
importantly,” the court continued, “the Letters do not
determine ‘rights or obligations’ or cause ‘legal
consequences’ to ‘flow’ [because] [t]he Letters are advisory
in nature and have no legal effect.” Id. The district court also
held that “there is ample authority permitting NHTSA’s
response to MAC Trailer’s inquiry and issuance of the letters
was not beyond the authority of the agency.” Id. at 714. Air
8 Air Brake Systems v. Mineta, et al. No. 02-1682
Brake appealed the judgment, which we now review de novo.
See Mich. Peat v. EPA, 175 F.3d 422, 427 (6th Cir. 1999).
II.
Air Brake raises two essential challenges. It first
challenges the merits of “[t]he findings and conclusions
contained in the [Chief Counsel’s] Letter,” including the
Chief Counsel’s opinion that the MSQR-5000 does not
comply with Standard 121. Compl. ¶¶ 83, 84, 96. It then
challenges the Chief Counsel’s authority to issue opinions on
whether a product complies with NHTSA safety standards
without following the recall process (see 49 U.S.C. § 30118)
set forth in the Safety Act. Compl. ¶¶ 83, 88–90, 95, 101.
Before reaching the merits of either challenge, we must
consider whether the federal courts have jurisdiction over
them under the right to review created by § 10 of the
Administrative Procedure Act (APA), 80 Stat. 392, as
amended, 5 U.S.C. § 701 et seq. In accordance with that
provision, federal courts may review two types of agency
actions: “[1] Agency action made reviewable by statute and
[2] final agency action for which there is no other adequate
remedy in a court.” 5 U.S.C. § 704. In contrast, “[a]
preliminary, procedural, or intermediate agency action or
ruling [is] not directly reviewable” and may be examined by
a federal court only through “review of the final agency
action” itself. Id. Because no specific statute creates a right
to review the agency actions in this case, as the parties agree,
the jurisdictional question here is one of statutory
interpretation: Do the letters constitute “final” agency action
for which no other adequate judicial remedy exists? See Abbs
v. Sullivan, 963 F.2d 918, 925 (7th Cir. 1992) (Posner, J.)
(“Questions of jurisdiction to review the actions of
administrative agencies usually are discussed under such
murky rubrics as ripeness, prematurity, exhaustion, finality,
and standing. However, we can frame the issue in this case
(and perhaps not only this case, but generally, though that

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No. 02-1682 Air Brake Systems v. Mineta, et al. 9
remains to be seen) as a straightforward question of statutory
interpretation.”).
“As a general matter,” the Supreme Court has instructed,
“two conditions must be satisfied for agency action to be
‘final’: First, the action must mark the consummation of the
agency’s decisionmaking process . . . [and] must not be of a
tentative or interlocutory nature. And second, the action must
be one by which rights or obligations have been determined,
or from which legal consequences will flow.” Bennett v.
Spear, 520 U.S. 154, 177–78 (1997) (quotations and citations
omitted); see Alaska Dep’t of Envtl. Conservation v. EPA,
No. 02-658, slip op. at 17 (U.S. Jan. 21, 2004) (stating that
“to be final” under Bennett, “agency action [1] must mark the
consummation of the agency’s decisionmaking process, and
[2] must either determine rights or obligations or occasion
legal consequences”) (quotations omitted). The finality
inquiry, we are told, is a “flexible” and “pragmatic” one.
Abbott Labs. v. Gardner, 387 U.S. 136, 149–50 (1967).
III.
Air Brake claims that we have jurisdiction to review three
distinct actions by the agency: (1) the Chief Counsel’s
statements (in each letter) that Air Brake’s product fails to
satisfy the general requirements of Standard 121; (2) the
Chief Counsel’s legal interpretation (in each letter) of
Standard 121’s warning-light requirement; and (3) the
authority of the Chief Counsel to issue the letters in the first
place. As each of these issues presents a distinct finality
question, we examine them separately.
A.
The essential content of each letter, explaining why Air
Brake’s product generally does not comply with Standard
121, is not final agency action under § 10 of the APA. First
and foremost, “[a]n agency action is not final if it is . . .
‘tentative’” in nature. Franklin v. Massachusetts, 505 U.S.
10 Air Brake Systems v. Mineta, et al. No. 02-1682
788, 797 (1992) (quoting Abbott Labs., 387 U.S. at 151); see
Bennett, 520 U.S. at 178 (a “tentative” action is not final).
And agency letters based on hypothetical facts or facts
submitted to the agency, as opposed to fact-findings made by
the agency, are classically non-final for this reason. See Nat’l
Res. Def. Council v. FAA, 292 F.3d 875, 882 (D.C. Cir. 2002)
(holding that an opinion letter issued by the FAA “based on
a hypothetical factual situation” presented to the agency by
the parties was “not appropriate for review”); Ass’n of Am.
Med. Colls. v. United States, 217 F.3d 770, 780–81 (9th Cir.
2000) (holding that a letter from the general counsel of the
Department of Health and Human Services was not final
where facts remained to be developed).
Both letters suffer from this defect. By their terms, they
state tentative conclusions based on limited information
presented to the agency. For example, the June 4th letter
states that it “represents our opinion based on the facts
presented in [MAC Trailer’s] letter, the attachments provided
with [MAC Trailer’s] letter and agency review of other data
obtained from [Air Brake].” J.A. at 172. Later, the letter
stresses that “NHTSA’s view” about the MSQR-5000 is
“based on a review of the promotional materials describing
the device and the principles involved in its operation.” J.A.
at 172; see J.A. at 173 (“The MSQR-5000 appears to lack
one or more features that an ABS must have to meet
[Standard] 121. Based on the literature provided to us, the
MSQR-5000 does not seem to have any means of
automatically controlling wheel slip during braking by
sensing, analyzing, and modulating the rate of angular
rotation of a wheel or wheels.”) (emphasis added); id. (“In
addition, the MSQR-5000 also appears to lack any provision
for illuminating a warning light providing notification of an
ABS malfunction.”) (emphasis added). The December 10th
letter, too, relies on “materials received or obtained since June
4, as well as those that we had previously obtained,” J.A. at
192, and disclaims any intent to adjudicate factual issues. See
J.A. at 194 (“[I]t is not the function of an interpretive letter to
adjudicate factual issues . . . .”). In this respect, the second

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No. 02-1682 Air Brake Systems v. Mineta, et al. 11
letter also expresses an opinion based on “[t]he test data and
information provided by [Air Brake],” not based upon any
factfinding by the agency. J.A. at 198.
By itself, the conditional nature of the Chief Counsel’s
advice—conditioned on the untested factual submissions of
the parties—suggests that it is non-final and non-reviewable.
But the regulatory context in which the issue arises makes
that conclusion all the more appropriate. In the world of
vehicle safety requirements, fact-specific conclusions about
whether a product complies with NHTSA’s regulations
generally come at the end of a recall proceeding, not before
the process for initiating a recall has begun. As the applicable
statutes explain, the Secretary generally must follow a
carefully-delineated process for reaching a conclusion of non-
compliance that has the force of law. The Secretary must
make an “initial decision” that a product does not comply.
See 49 U.S.C. § 30118(a) (requiring the Secretary to notify a
manufacturer “immediately after making an initial decision .
. . that [a] vehicle or equipment . . . does not comply with an
applicable motor vehicle safety standard”). After that, the
Secretary follows a specific process for making “a final
decision” about compliance. See id. § 30118(b)(1)
(describing the process for making “a final decision that a
motor vehicle or replacement equipment . . . does not comply
with an applicable motor vehicle safety standard”). Then, if
appropriate, the Secretary may order non-complying
manufacturers to remedy the problem through notice to the
vehicle owners and a recall (or other remedy). See id. §
30118(b)(2) (requiring the Secretary, upon making a final
decision, to “order the manufacturer” to notify owners and
remedy the noncompliance). This systematic method for
making a fact-based determination whether a given product
satisfies the agency’s safety regulations is a far cry from the
informal answers provided by NHTSA’s Chief Counsel to
questions from Air Brake’s potential customer.
Besides being conditional and tentative and besides arising
outside of the customary setting for determining safety
12 Air Brake Systems v. Mineta, et al. No. 02-1682
compliance, the main body of each letter contains a related
flaw: “An agency action is not final if it is only ‘the ruling of
a subordinate official.’” Franklin, 505 U.S. at 797 (quoting
Abbott Labs., 387 U.S. at 151). While NHTSA’s Chief
Counsel has considerable authority over purely legal
interpretations of pertinent statutes and regulations, the
Secretary has not delegated authority to the Chief Counsel to
make final fact-bound determinations of compliance with
NHTSA’s safety standards. Compare 49 C.F.R. § 501.8(d)(5)
(the authority to “[i]ssue authoritative interpretations of the
statutes administered by NHTSA and the regulations issued
by the agency” is “delegated” to the Chief Counsel), with id.
§ 501.7(a)(2) (the authority to “[m]ake final decisions
concerning alleged safety-related defects and noncompliance
with Federal motor vehicle safety standards” is “reserved to
the Administrator”). See Gov. Br. at 17 (“[T]he Chief
Counsel [is] a subordinate agency official who may interpret
the laws and regulations but may not initiate recalls or
determine that a motor vehicle fails to comply with an
applicable safety standard . . . .”). For this reason as well, the
letters do not constitute final agency action with respect to
their advice about whether Air Brake’s product complies with
Standard 121.
B.
A different analysis, but a similar conclusion, applies to the
legal interpretation in each letter of Standard 121’s warning-
light requirement. While the letters in the main address fact-
specific issues based upon the materials presented to the
agency by the parties requesting the opinion, they also appear
to contain a statement of general applicability designed to
interpret the law—namely, that Standard 121 requires all
antilock brake systems, even non-electronic ones, to include
a warning light.
One cannot lightly dismiss this legal interpretation of
Standard 121 as either tentative or as the view of a
subordinate agency official. There is nothing provisional

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No. 02-1682 Air Brake Systems v. Mineta, et al. 13
about this interpretation of the standard: Either it requires a
warning light or it does not. And there is nothing
hypothetical or intricately fact dependent about the inquiry:
Either Air Brake’s product has these features or it does not.
Neither are these the views of a subordinate official, at least
when it comes to this purely-legal interpretation. The
Secretary of Transportation has delegated to NHTSA’s Chief
Counsel responsibility to “[i]ssue authoritative interpretations
of the statutes administered by NHTSA and the regulations
[i.e., Safety Standards] issued by the agency.” 49 C.F.R.
§ 501.8(d)(5). So unlike his general take on compliance, the
Chief Counsel’s views about purely legal questions—does,
for example, Standard 121 require a warning light?—may
constitute the final word within the agency. Bolstering the
point, NHTSA’s website states that the Chief Counsel’s legal
interpretation letters “represent the definitive view of the
agency on the question addressed and may be relied upon.”
In view of the Secretary’s delegation of authority to the Chief
Counsel over legal issues and in view of NHTSA’s public use
of that authority through its website, an interpretive letter like
this one (or at least partially like this one) may indeed
represent the “consummation” of the agency’s process as to
purely legal questions.
To say that a legal interpretation is final because it is not
subject to further review within the agency, however, is not
to say that it is “final” in the sense that § 10 of the APA
requires it to be. If the interpretation nonetheless (1) does not
“determine rights or obligations” or (2) does not have “legal
consequences,” it remains non-final for purposes of review
under the APA. See Bennett, 520 U.S. at 178. Neither
measure of finality is availing to Air Brake here. An agency’s
determination of “rights or obligations” generally stems from
an agency action that is directly binding on the party seeking
review, such as an administrative adjudication (like a recall
proceeding) or legislative rulemaking, both of which did not
happen here.
14 Air Brake Systems v. Mineta, et al. No. 02-1682
The harder question is whether the letters, while not
directly binding on Air Brake, occasion sufficient “legal
consequences” to make them reviewable. One reliable
indicator that an agency interpretation still has the requisite
legal consequence, we have held, is whether the agency may
claim Chevron deference for it. See Franklin Fed. Sav. Bank
v. Dir., Office of Thrift Supervision, 927 F.2d 1332, 1337 (6th
Cir. 1991) (“When an agency has acted so definitively that its
actions are defended based on Chevron, we believe that its
action should be treated as final.”); id. (“As a general rule,
final agency action includes ‘interpretive decisions that
crystalize or modify private legal rights.’”) (quoting FTC v.
Standard Oil of Cal., 449 U.S. 232, 247 (1980) (Stevens, J.,
concurring)); see also Isle Royale Boaters Ass’n v. Norton,
330 F.3d 777, 786 & n.2 (6th Cir. 2003) (noting that letters
from the Park Service to park visitors containing an
interpretation of the statute the Park Service was charged with
administering did not constitute “final rulings of the agency”
because they would be entitled only to respect by the courts,
not Chevron deference); cf. Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (holding
that a court must uphold an agency’s reasonable interpretation
of a statute that it administers unless “the intent of Congress
is clear” as to the “precise question at issue” or the agency’s
interpretation is “unreasonable”).
Decisions from other courts also have looked to the
eligibility for administrative deference as a sufficient legal
consequence for finality purposes. See Ciba-Geigy Corp. v.
EPA, 801 F.2d 430, 437 (D.C. Cir. 1986) (“EPA’s
interpretation of FIFRA has a significant legal effect on Ciba-
Geigy. It is well settled that the authoritative interpretation of
an executive official has the legal consequence, if it is
reasonable and not inconsistent with ascertainable legislative
intent, of commanding deference from a court . . . .”)
(quotation omitted); Nat’l Automatic Laundry & Cleaning
Council v. Shultz, 443 F.2d 689, 702 (D.C. Cir. 1971) (“When
a general, interpretative ruling [in the form of a letter] signed
by the head of an agency has been crystallized following

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No. 02-1682 Air Brake Systems v. Mineta, et al. 15
reflective examination in the course of the agency’s
interpretative process, and is accordingly entitled to deference
not only as a matter of fact from staff and citizenry expected
to conform but also a matter of law from a court reviewing
the question, there coexist both multiple signposts of
authoritative determination, finality and ripeness . . . .”).
This treatment of Chevron deference as a relevant “legal
consequence” remains sound even though the test for
obtaining Chevron deference has changed in recent years. In
United States v. Mead Corporation, 533 U.S. 218 (2001), the
Court held that only those administrative interpretations that
Congress and the agency intend to have the “force of law,” as
opposed to those merely characterized as “authoritative,”
qualify for Chevron deference. See id. at 229; Christensen v.
Harris County, 529 U.S. 576, 587 (2000) (“Interpretations
such as those in opinion letters—like interpretations
contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of
law—do not warrant Chevron-style deference.”). Under
either test, the critical point is that federal courts must accept
reasonable agency interpretations of an ambiguous statute
even if they would have construed the statute differently had
they been given the chance in the first instance. Because it
is the binding effect of agency interpretations eligible for
Chevron deference that establishes “legal consequences will
flow” from them, Bennett, 520 U.S. at 178–79 (quotation
omitted), Mead’s changes to the test for determining when
Chevron applies (whether large or small) do not alter the
relevance of this inquiry.
If the Supreme Court’s recent decisions concerning
administrative deference signal any change, it is that less
agency action will qualify for Chevron deference and less
agency action accordingly may qualify for federal-court
review. Cases will arise involving informal agency actions
that once received, but no longer receive, Chevron deference
in the aftermath of Mead and Christensen. See Mead, 533
U.S. at 232 (“[I]nterpretive rules . . . enjoy no Chevron status
16 Air Brake Systems v. Mineta, et al. No. 02-1682
as a class.”); compare Johnson City Med. Ctr. v. United
States, 999 F.2d 973, 977 (6th Cir. 1993) (“[T]his Court
accords deference to Revenue Ruling 85-74 under the
standard set forth in Chevron.”), with Aeroquip-Vickers, Inc.
v. Comm’r, 347 F.3d 173, 181 (6th Cir. 2003) (“In light of the
Supreme Court’s decisions in Christensen and Mead, we
conclude that Revenue Ruling 82-20 should not be accorded
Chevron deference.”); compare Nat’l Automatic Laundry, 443
F.2d at 702 (holding that an opinion letter by the
administrator of the Wage and Hour Division of the
Department of Labor interpreting the Fair Labor Standards
Act was final agency action in part because it would be
“entitled to deference . . . as a matter of law from a court
reviewing the question”), with Christensen, 529 U.S. at
586–87 (holding that an opinion letter by the administrator of
the Wage and Hour Division of the Department of Labor
interpreting the Fair Labor Standards Act was not entitled to
deference as a matter of law, but only “respect” to the extent
that it has the “power to persuade”). Correspondingly, cases
will now arise involving agency action that we once might
have considered “final” for APA-review purposes as a result
of Chevron’s legal effect but that we will no longer consider
final because Chevron does not apply. But this is a small
price to pay for adhering to the principle that justifies
factoring eligibility for deference into eligibility for federal-
court review in the first place—that the application of
Chevron indicates agency interpretations will have “legal
consequences”—an approach we have taken before in this
Circuit, see Franklin Fed. Sav. Bank, 927 F.2d at 1337, and
an approach we stand by today.
Air Brake, however, cannot rely upon this principle because
the Chief Counsel’s legal interpretations have no claim to
deference of any sort. For one reason, they are too informal.
Congress does not generally expect agencies to make law
through general counsel opinion letters. See Christensen, 529
U.S. at 587 (“opinion letters . . . lack the force of law”);
Heimmermann v. First Union Mortgage Corp., 305 F.3d
1257, 1262 (11th Cir. 2002) (“[L]etters from HUD’s general

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No. 02-1682 Air Brake Systems v. Mineta, et al. 17
counsel to members of Congress . . . are the kinds of informal
policy positions that lack the force of law and are unentitled
to Chevron deference.”), cert. denied, 123 S. Ct. 2641 (2003);
Am. Express Co. v. United States, 262 F.3d 1376, 1382 (Fed.
Cir. 2001) (“[An] interpretation . . . contained in [a] General
Counsel Memorandum . . . [that] is not reflected in a
regulation adopted after notice and comment [] probably
would not be entitled to Chevron deference.”); cf. Hosp.
Corp. of Am., v. Comm’r, 348 F.3d 136, 144 (6th Cir. 2003)
(“In Mead Corporation, the Court found that Congress had
not implicitly delegated law-interpreting authority through the
10,000 to 15,000 tariff rulings made each year by forty-six
different Customs offices without notice and comment
procedures.”).
For another reason, the letters interpret a regulation
(Standard 121), not the statute that the agency is charged with
enforcing (the Safety Act). Chevron does not apply in this
setting. See Christensen, 529 U.S. at 587–88 (distinguishing
Chevron deference—the deference accorded an agency’s
interpretation of a statute—from the deference accorded an
agency’s interpretation of its own regulation); Am. Express
Co., 262 F.3d at 1382–83 (“[W]e are not dealing with an
agency’s interpretation of a statute and issues of Chevron
deference, but with the IRS’s interpretation of an ambiguous
term in its own Revenue Procedure.”).
Other administrative-law doctrines do not advance Air
Brake’s cause either. Under Skidmore v. Swift & Co., 323
U.S. 134 (1944), federal courts give respectful consideration
to authoritative interpretations that lack the force of law, but
that nonetheless have the “power to persuade.” Id. at 140; see
Mead, 533 U.S. at 234 (“Chevron did nothing to eliminate
Skidmore[]” and an informal interpretation “may therefore at
least seek a respect proportional to its power to persuade.”)
(quotation omitted). Unlike Chevron deference, however,
Skidmore respect is not the kind of “legal consequence[]” that
may make an interpretation final for purposes of direct
review: Skidmore permits courts to give consideration to an
18 Air Brake Systems v. Mineta, et al. No. 02-1682
agency’s expertise and ability to persuade, not its ability to
speak with legal effect. Put another way, Chevron allows the
agency to make law, which is what gives the agency’s views
“legal consequences,” while courts still determine the
meaning of a law under Skidmore. Skidmore thus permits an
agency to earn the weight given to it by the courts, while
Chevron gives reasonable agency interpretations controlling
weight as a matter of right. See Thomas W. Merrill & Kristin
E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 855–56
(2001). The result is that “legal consequences” do not flow
from the Skidmore doctrine, and accordingly its application
does not assist a court in determining that an agency’s action
is final under the APA.
The better candidate for finding the requisite “legal
consequences” is still another administrative-law
doctrine—Seminole Rock deference—the “controlling
weight” that federal courts generally give an agency’s
interpretation of its own ambiguous regulation. See Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (an
agency’s interpretation of its own regulation is entitled to
“controlling weight unless it is plainly erroneous or
inconsistent with the regulation”); see also United States v.
Cleveland Indians Baseball Co., 532 U.S. 200, 220 (2001)
(granting Seminole Rock deference to the IRS’s “longstanding
interpretation of its own regulations”); Jean v. Nelson, 472
U.S. 846, 865 (1985) (noting the “similar[ity]” between the
Chevron and the Seminole Rock “presumptions”).
Seminole Rock deference appears to have survived Mead. See
Mead, 533 U.S. at 246 (Scalia, J., dissenting) (“[T]he court
leaves untouched today [] [the principle] that judges must
defer to reasonable agency interpretations of their own
regulations.”); United States v. Cinemark USA, Inc., 348 F.3d
569, 578 (6th Cir. 2003) (post-Mead decision invoking the
doctrine); A.D. Transport Express, Inc. v. United States, 290
F.3d 761, 766 (6th Cir. 2002) (same); Am. Express, 262 F.3d
at 1382–83 (holding that Mead did nothing to alter Seminole
Rock). The controlling nature of Seminole Rock deference,
moreover, would seem to have the requisite legal

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consequences for APA finality purposes. Cf. John F.
Manning, Constitutional Structure and Judicial Deference to
Agency Interpretations of Agency Rules, 96 Colum. L. Rev.
612, 615 (1996) (“Because agency rules that comply with
specified procedural formalities bind with the force of
statutes, Seminole Rock has a significant impact on the
public’s legal rights and obligations.”) (footnote omitted).
Nonetheless, the doctrine does not apply here. In this case,
the Department of Justice emphatically denies that the
opinion letters issued by NHTSA’s Chief Counsel are
authoritative views entitled to any deference. While that
position is supported by dicta from at least one case from this
court, see Fisher v. Ford Motor Co., 224 F.3d 570, 575 (6th
Cir. 2000) (“[T]he General Counsel [of NHTSA’s] opinion
[interpreting Standard 208] is not legally binding on the
courts.”), cases from other circuits (dealing with general
counsel letters from different agencies) appear to reach a
different conclusion, see, e.g., Am. Express Co., 262 F.3d at
1382 (granting Seminole Rock deference to an interpretation
contained in an opinion letter by the general counsel of the
IRS); Gavey Prop./762 v. First Fin. Sav. & Loan Ass’n, 845
F.2d 519, 521 (5th Cir. 1988) (holding that a published
advisory letter from the general counsel of the Federal Home
Loan Bank Board is entitled to deference as a matter of law);
cf. Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 94 (1973)
(noting that an opinion letter from the general counsel of the
EEOC expressed the interpretation of the commission).
Either way, as this case suggests, it is one thing for an
agency’s general counsel to have authority to issue definitive
interpretations on behalf of the agency; it is another for the
general counsel to invoke that authority. See Mead, 533 U.S.
at 232 (recognizing that while Customs has “general
rulemaking power” to promulgate rules with “the force of
law,” it does not exercise that power when it issues
classification rulings). We accept the Government’s
acknowledgment that the opinion letters here are not entitled
to any deference in the federal courts—whether under
Chevron or Seminole Rock—and thus do not have legal
20 Air Brake Systems v. Mineta, et al. No. 02-1682
consequences. Having no direct, binding effect on Air Brake
and having no legal consequences for Air Brake by virtue of
the deference courts might give to them, the Chief Counsel’s
letters are not “final” agency action under the APA.
C.
Air Brake offers several arguments in favor of reviewing
the compliance and legal interpretations in the letters, all
unpersuasive. It first contends that a decision not to review
the letters fails to heed Abbott Laboratories’ admonition to
apply the finality requirement in a “flexible” and “pragmatic”
way. 387 U.S. at 149–50. Most pragmatically, Air Brake
urges, the views expressed in the letters have devastated its
business, effectively foreclosing it from selling the MSQR-
5000 to vehicle manufacturers regulated by NHTSA, none of
which appears willing to run the risk of a government-ordered
recall. While this may be so, adverse economic effects
accompany many forms of indisputably non-final government
action. Initiating an enforcement proceeding against a
company, for example, may have a devastating effect on the
company’s business, but that does not make the agency’s
action final. See FTC v. Standard Oil Co., 449 U.S. 232, 243
(1980) (holding that an administrative complaint is not a final
agency action because a complaint “ha[s] no legal force or
practical effect upon [] daily business other than the
disruptions that accompany any major litigation”); Greater
Detroit Res. Recovery Auth. v. EPA, 916 F.2d 317, 322 (6th
Cir. 1990) (holding that a letter “convey[ing] the intent of the
EPA to commence proceedings to investigate the revocation
of the permit” was not final agency action); Aerosource, Inc.
v. Slater, 142 F.3d 572, 581 (3d Cir. 1998) (holding that
advisory warnings issued by the FAA to Aerosource and
letters issued by the FAA refusing to rescind the warnings
were not reviewable because, despite their “severe adverse
impact” on Aerosource’s business, the actions had no legal
consequences); Ind. Safety Equip. Ass’n v. EPA, 837 F.2d
1115, 1121 (D.C. Cir. 1988) (holding that an EPA report
recommending against using the plaintiff’s respirators was

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No. 02-1682 Air Brake Systems v. Mineta, et al. 21
not final despite economic harm to plaintiff’s business,
because the effects were “indirect and arise from the reactions
and choices of industry customers”); Air Cal. v. Dep’t of
Transp., 654 F.2d 616, 621–22 (9th Cir. 1981) (holding that
a legal interpretation contained in a letter from the general
counsel of the FAA to a local airport was non-final despite the
serious indirect effects on Air California’s business).
Contrary to Air Brake’s assertion, moreover, this approach
does not place the company in a “Catch-22” position. Reply
Br. at 1. In Air Brake’s view, no manufacturer will ever put
the MSQR-5000 on its new vehicles given the risks of a
recall. No recall, as a result, will ever occur, making
NHTSA’s views about Air Brake’s product (and, worse, the
Chief Counsel’s views on the subject) effectively
unreviewable—because only the results of a recall proceeding
would be final and reviewable. Even if this were true, which
it turns out it is not, this development would stem from the
market’s weighing of the costs (one of which is the possibility
of government action) and benefits of purchasing Air Brake’s
product, not the government’s tentative response to an inquiry
posed by a potential Air Brake customer.
In all events, Air Brake errs in suggesting it has no other
options. The company remains free to show the market its
confidence in the product by agreeing to indemnify a
prospective manufacturer against the costs of defending any
potential NHTSA action. And more importantly (and perhaps
more realistically for smaller companies), the company
remains free to petition NHTSA to alter Standard 121 under
the agency’s rulemaking powers. 49 C.F.R. § 552.3(a) (“Any
interested party may file with the Administrator a petition
requesting him . . . [t]o commence a proceeding respecting the
issuance, amendment or revocation of a motor vehicle safety
standard.”). The denial of such a petition, notably, would be
a final reviewable order. See Fox Television Stations, Inc. v.
FCC, 280 F.3d 1027, 1037 (D.C. Cir. 2002) (“[A]n agency’s
denial of a petition to initiate a rulemaking for the repeal or
22 Air Brake Systems v. Mineta, et al. No. 02-1682
modification of a rule is a final agency action subject to
judicial review.”).
Nor is it true that the agency is trying to have it both
ways—by simultaneously claiming (1) that the letters
represent “the definitive view of the agency” on their website
and (2) that the letters may not be reviewed because they are
non-final for APA purposes. For one, the website contains
“A Word of Caution” to readers indicating the conditional
nature of the letters. “[P]lease be aware,” it says, “that [these
interpretations] represent the views of the Chief Counsel
based on the facts of individual cases at the time the letter was
written.” For another, the website makes it clear that the
Chief Counsel has authority to “interpret[] the statutes that the
agency administers and the regulations that it promulgates,”
not to find facts or apply the agency’s regulations to disputed
facts. For still another reason, the agency has now disclaimed
that the letters are the definitive view of the agency, no matter
what the website says. Having acknowledged that the Chief
Counsel’s letters in this instance are not binding on Air Brake
and are not entitled to any deference in any respect, whether
under Chevron or Seminole Rock, the agency has made clear
that the letters are simply advisory opinions about a set of
facts presented to the Chief Counsel. In the final analysis,
these letters do not constitute “final” agency action subject to
review under the APA.
D.
Although the letters do not constitute final agency action
with respect to the opinions expressed in them, they do
represent final agency action in another respect—namely, as
to whether the Chief Counsel has authority to issue advisory
opinions in the first instance. In contrast to the contents of
the letters, all of the finality factors point to the conclusion
that the agency’s view regarding the Chief Counsel’s
authority to issue them is “final” agency action under the
APA.

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No. 02-1682 Air Brake Systems v. Mineta, et al. 23
First, there is nothing tentative or fact dependent about the
authority to issue the letters. The Secretary has delegated this
power to the Chief Counsel in concrete and unconditional
terms, and the issue is purely a legal one. See 49 C.F.R.
§ 501.8(d)(5) (“The Chief Counsel is delegated authority to
. . . [i]ssue authoritative interpretations of the statutes
administered by NHTSA and the regulations issued by the
agency.”). Second, as the head of the Department of
Transportation, the Secretary is anything but a subordinate
official for these purposes. Third, this decision would receive
deference from the federal courts as an interpretation of the
agency’s regulations under Seminole Rock, and (in contrast to
the letters) the agency has not disclaimed deference regarding
this position. See Martin v. Occupations Safety & Health
Review Comm’n, 499 U.S. 144, 150 (1991) (“It is well
established ‘that an agency’s construction of its own
regulations is entitled to substantial deference.’”) (quoting
Lyng v. Payne, 476 U.S. 926, 939 (1986)). And that
deference is particularly appropriate here since the Chief
Counsel began issuing interpretive letters in 1967, within
months of the passage of the Safety Act in 1966, and has
continuously done so since. See Cleveland Indians Baseball
Co., 523 U.S. at 220 (“We do not resist according such
deference in reviewing an agency’s steady interpretation of its
own 61-year-old regulation implementing a 62-year-old
statute.”).
Case law points to the same conclusion. In Ciba-Geigy, the
EPA issued a series of pronouncements (letters and
mailgrams) suggesting two things: (1) if Ciba-Geigy did not
change the label of its pesticide from “general use” to
“restricted use,” its product would be in violation of the
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA);
and (2) FIFRA’s requirement that the agency conduct a
formal hearing before cancelling a pesticide’s registration or
changing its classification was not the only means by which
the EPA may require changes to the product’s labeling. 801
F.2d at 432–33. Ciba-Geigy filed suit challenging the second
determination and seeking to enjoin the EPA from “imposing
24 Air Brake Systems v. Mineta, et al. No. 02-1682
labeling changes and use restrictions on a registered product
without affording the procedures mandated by . . . FIFRA,”
namely notice and a formal hearing. Id. at 433. The district
court dismissed the complaint for lack of finality, holding that
the EPA “‘ha[d] neither issued a final order directed to the
plaintiff Ciba-Geigy nor taken any other final action which is
reviewable by the Court.’” Id. at 434 (quoting Ciba-Geigy
Corp. v. EPA, 607 F. Supp. 1467, 1468 (D.D.C. 1985)).
On appeal, the D.C. Circuit reversed, holding that the EPA
pronouncements about what procedures it may use to require
labeling changes constituted final agency action within the
meaning of the APA and were ripe for review. Id. at 434–39.
It first concluded that the case presented a “purely legal
issue.” Id. at 435. The only question was “whether EPA
properly construed FIFRA to allow it to impose labeling
changes on registered pesticides without following the
cancellation process prescribed [under FIFRA],” a question of
“statutory interpretation” that would not be “facilitated by
further factual development.” Id. It then noted that “EPA’s
Director of Pesticide Programs unequivocally stated EPA’s
position on the question whether registrants were entitled to
a cancellation hearing before labeling changes could be
required.” Id. at 436. “[T]he statement,” the court added,
“gave no indication that it was subject to further agency
consideration or possible modification,” id. at 437, and the
court had “no reason to believe that the EPA Director of
Pesticide Programs lacks authority to speak for EPA on this
issue or that his statement of the agency’s position was only
the ruling of a subordinate official that could be appealed to
a higher level of EPA’s hierarchy.” Id. Next, the court
reasoned, “EPA’s interpretation of FIFRA ha[d] significant
‘legal . . . effect[s]’ on Ciba-Geigy,” id. at 437, because of the
deference it would have received under Chevron (as the
courts then applied the Chevron doctrine). “We can divine no
reason why the letter from the head of EPA’s Pesticide
Division, speaking for the agency charged with administering
FIFRA, would not be entitled to deference from the least
dangerous branch.” Id. Finally, it noted that Ciba-Geigy

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No. 02-1682 Air Brake Systems v. Mineta, et al. 25
would suffer financial hardship if review were postponed. Id.
at 438. See also Bennett, 520 U.S. at 178 (holding that, for
purposes of a lawsuit by several third parties against the Fish
and Wildlife Service, a “biological opinion” issued by the
Fish and Wildlife Service to the Bureau of Reclamation
constituted final agency action, because it represented the
consummation of the Service’s decisionmaking process and
it “alter[ed] the legal regime to which the [the Bureau] [wa]s
subject, authorizing [the Bureau] to take the endangered
species if (but only if) it complies with the prescribed
conditions”).
IV.
Because we have jurisdiction to review the Chief Counsel’s
authority to issue these letters, we must decide whether this
was a permissible exercise of power. Like the district court
before us, we conclude that it was. Congress, to begin with,
has delegated lawmaking power to the Secretary, 49 U.S.C.
§ 30111(a) (“The Secretary of Transportation shall prescribe
motor vehicle safety standards.”), and a “component of the
agency’s delegated lawmaking powers” is “the power
authoritatively to interpret its own regulations,” Martin, 499
U.S. at 151. See also 5 U.S.C. § 301 (“The head of an
executive department . . . may prescribe regulations for the
government of his department, the conduct of its employees,
[and] the distribution and performance of its business . . . .”).
Congress also has instructed the Secretary to promote
regulatory compliance and further highway safety, 49 U.S.C.
§ 30101, and to “consult . . . with . . . interested persons” in
doing so, id. § 301(8), two directives that fairly encompass
the authority of the Secretary and subordinate officials to
communicate with manufacturers like MAC Trailer in a
variety of formal and informal ways, not just through recall
orders or formal petitions for review.
No less importantly, Congress separately requires all
federal agencies, including NHTSA, “to answer inquiries by
small entities concerning information on, and advice about,
26 Air Brake Systems v. Mineta, et al. No. 02-1682
compliance with statutes and regulations.” Small Business
Regulatory Enforcement Fairness Act of 1996, § 213(a), 110
Stat. 858–59, 5 U.S.C. § 601 note. That is exactly—and quite
sensibly—what happened here. MAC Trailer indeed is
precisely the kind of business that this law was designed to
benefit. Finally, the Secretary has delegated this authority to
the Chief Counsel by issuing a regulation allowing the Chief
Counsel to “[i]ssue authoritative interpretations” of NHTSA’s
safety regulations, 49 C.F.R. § 501.8(d)(5), a reasonable
interpretation of which contemplates not just purely legal
pronouncements, but advisory opinions tied to real facts
presented by real parties.
Attempting to rebut these sources of authority, Air Brake
contends that opinion letters conflict with § 30118’s notice-
and-hearing requirements, which describe the process by
which the agency may determine that a vehicle is defective
and may order its recall. By issuing a “compliance
determination . . . in the guise of [] opinion letters,”
Appellant’s Br. at 13, 17, Airbrake claims, the Chief Counsel
has seized “unfettered power to solely decide which
automotive equipment enters the stream of commerce.” We
disagree. The practice of issuing advisory opinions on
matters of compliance does not conflict with this statutory
process because the two endeavors serve different functions:
Advisory opinions advise, while final orders bind and compel.
Only the most inefficient, strange and unworkable of
administrative schemes would require the Secretary and his
delegates to remain tight-lipped about all matters of
compliance unless and until the Secretary ordered a
manufacturer to recall its product. That Congress not only
delegated rulemaking authority to the Secretary (including the
implicit power to interpret the agency’s own safety
regulations), but also required him to “consult” with the
industry and “answer inquiries by small entities concerning
. . . advice about and compliance with” NHTSA’s regulations,
proves that Congress did not contemplate the kind of passive-
aggressive, to say nothing of suspense-filled, administrative
behavior that Air Brake’s position would require.

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No. 02-1682 Air Brake Systems v. Mineta, et al. 27
In our view, moreover, manufacturers like MAC Trailer
and suppliers like Air Brake ultimately have much to gain
from the availability of advisory opinions. Section 30118’s
process for determining that a vehicle “does not comply with
an applicable motor vehicle safety standard” requires a
vehicle that has already been built, and says nothing about
how the agency might inform curious manufacturers and
suppliers about what hypothetically would not comply with
NHTSA’s safety regulations. The ability to receive NHTSA
input early in the process (however tentative and however
non-binding it may be) before investing resources in
manufacturing and selling a product surely offers as much
benefit to suppliers like Air Brake as it provides to the
companies that build the vehicles and the consumers who buy
them. See Nat’l Automatic Laundry, 443 F.2d at 699 (“[T]he
concerns of businessmen engaged in forward planning may
rightly call for hypothetical or advisory consultation with
cognizant government officials, in order to obtain informal
predictions needed to permit optimum allocation of resources
in the light of careful assessments of the alternatives.”).
V.
For the foregoing reasons, we affirm the judgment of the
district court.

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