ERVIN, Circuit Judge:
In this consolidated case, the Federal Aviation Administration (FAA) appeals from a preliminary injunction entered by the United States District Court for the Eastern District of Virginia preventing the FAA from conducting flight pattern tests for flights departing Washington's National Airport. Additionally, the City of Alexandria and County Board of Arlington County petition for review of the FAA order to implement the flight pattern tests. In an order entered November 8, 1983, we reversed the judgment of the district court and remanded with directions to dismiss for want of jurisdiction. We also denied the petition for review and affirmed the FAA order. We now set forth the reasons for these rulings.
In response to a May 19, 1981 request by the Metropolitan Washington Council of Governments, the FAA initiated plans to determine whether the flight paths of certain turbo jets departing Washington National Airport should be permanently altered. The flight plan under consideration by the FAA (also referred to as the scatter plan) calls for some departing turbo jets to turn off their flight route along the Potomac River earlier after take-off than they
In accordance with its regulations, the FAA prepared an environmental assessment of the test which it published on May 31, 1983, and distributed to 200 people, including the Alexandria City Manager. Public comment on the assessment was received through July 20 and a response to that comment was published in August. Because it concluded the test was not a major federal action significantly affecting the environment, the FAA did not prepare an Environmental Impact Statement.
On August 30, 1983, the Administrator of the FAA authorized testing of the scatter plan for 90 days between September 15, 1983 and January 15, 1984. The City of Alexandria and the County Board of Arlington County filed complaints challenging the FAA's conclusion that implementation of its test did not require preparation of an Environmental Impact Statement (EIS). The local governments additionally alleged that the FAA had acted arbitrarily and had violated the Administrative Procedure Act. They moved the district court for a preliminary injunction and at the same time petitioned for review of the FAA's order in this court.
On September 30, 1983, the district court temporarily enjoined the FAA from conducting the scatter plan test that was scheduled to begin on October 14. Pursuant to Federal Rule of Appellate Procedure 8(a), the FAA filed a motion before a single circuit judge to stay the district court injunction pending appeal. The motion to stay was granted, 719 F.2d 699. Alexandria and Arlington moved to vacate the stay, and we considered that motion together with the FAA's appeal from the district court's preliminary injunction. We also ruled on the local governments' petition for review of the FAA order.
The threshold question is whether the district court properly exercised jurisdiction when it issued the preliminary injunction. 49 U.S.C. § 1486(a) provides that
This provision vests review of FAA orders exclusively in the Courts of Appeals. E.g. City of Rochester v. Bond, 603 F.2d 927, 934-35 (D.C.Cir.1979); Oling v. Air Line Pilots Association, 346 F.2d 270 (7th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). However, "[a]ctions which are not (or not yet) orders but which are nonetheless reviewable may be raised in the district court...." City of Rochester v. Bond, 603 F.2d at 935. The Administrator's decision to authorize the scatter plan test is reviewable because of the extensive administrative record on which it was based. Alexandria and Arlington contend that the decision was not a final order.
Alexandria and Arlington argue that the FAA action in this case was not final because "only a temporary test is involved." The duration of the FAA action, however, is not relevant to determining whether the action was final. The dispositive question is whether the agency action was the definitive statement on the subject matter it addressed. See generally, Abbott Laboratories v. Gardner, 387 U.S. 136, 149-51, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). Here, the matter under consideration was whether the scatter plan test should be implemented without further investigation. The Administrator's August 30, 1983, decision conclusively settled that matter. We conclude, therefore, that the Administrator's decision was final. Noting that it was also based on a reviewable administrative record, we hold that it constituted an order within the meaning of § 1486(a).
Alexandria and Arlington additionally contend that the National Environmental Policy Act (NEPA) provides an independent basis for district court jurisdiction in this case. Cf. City of Irving v. Federal Aviation Administration, 539 F.Supp. 17, 34 (N.D.Tex.1981) (FAA's decision not to issue an EIS was subject to review in the district court when there was no order to review and only claim was under NEPA). However, when review of an agency order is at issue
Because the Administrator's action implementing the scatter plan test was a final order and because NEPA does not provide an independent basis for jurisdiction in this case, we hold that the district court lacked jurisdiction to issue an injunction.
On petition for review of the FAA order, Alexandria and Arlington argue that the FAA violated the National Environmental Policy Act by failing to issue an EIS before ordering implementation of the scatter plan test. Generally, the decision not to prepare an EIS is left to the informed discretion of the agency. Providence Road Community Ass'n v. EPA, 683 F.2d 80, 82 (4th Cir.1982). "Absent a showing of arbitrary action, we must assume that the agencies have exercised this discretion appropriately." Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976).
The FAA's environmental assessment and summary of public comments indicate that careful consideration was given to the possible environmental consequences of the scatter plan test. The FAA noted that the test was of very limited duration, a maximum of
Alexandria and Arlington also contend in their petition for review that the FAA violated the Administrative Procedure Act (APA) by failing to comply with the notice and comment procedures required by 5 U.S.C. §§ 553(b) and (c).
5 U.S.C. § 551(4).
The FAA argues that its order to implement the scatter plan test is not a rule because it merely provides an alternative to air traffic controllers in formulating daily departure procedures from National Airport. Although we believe that the Administrator's order is an agency statement of particular applicability designed to implement agency policy and thus falls within the definition of a rule, we find that under § 553(b)(A) the Administrator's order is exempt from the APA notice and comment requirements.
The rulemaking procedures of § 553 do not apply "to interpretative rules, general statements of policy, or rules of agency organization, procedure or practice." 5 U.S.C. § 553(b)(A). This court has previously discussed the application of § 553(b)(A) and noted that:
Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663, 669 (4th Cir.1977), cert. denied, 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 84 (1978). In this case, the rule under consideration only authorized a temporary change in the FAA's regulation of airline flight patterns. As noted earlier, we found it reasonable for the FAA to determine that this short test was not a major action significantly affecting the environment. Because the 90 day test was of short duration and had no lasting effects, we now find that it did not make a substantive impact on the rights and duties of persons subject to regulation. We conclude, therefore, that the order implementing the scatter plan test was exempt under § 553(b)(A) from the APA's notice and comment requirement.
For the foregoing reasons, we have denied the petition for review, affirmed the Administrator's order, and remanded No. 83-1944 with instructions to dismiss for want of jurisdiction.
Section 553(c) provides that: