consolidated with

No. 24-60373

Page 2Petitions for Review of an order of the Department of Transportation, Agency No. 89 Fed. Reg. 34,620

Before Elrod, Chief Judge , and Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, Circuit Judges .

Among the issues before us is whether the Department of Transportation’s (DOT) rule entitled “Enhancing Transparency of Airline Ancillary Service Fees” was issued pursuant to the Administrative Procedure Act’s (APA) notice-and-comment requirement. See 89 Fed. Reg. 34,620 (Apr. 30, 2024). We conclude that DOT failed to comply with this provision. Therefore, we must apply the APA's 'default' remedyvacatur. See 5 U.S.C. § 706(2); Cargill v. Garland , 57 F.4th 447, 472 (5th Cir. 2023) (en banc).

The Department, both in its brief and at oral argument, conceded that it violated the APA when it failed to provide additional notice and the opportunity to comment on a study that was 'critical to the Rule's issuance.'¹ DOT acknowledges that this 'procedural violation may have affected the agency’s determinations about the Rule’s content and scope” and therefore violates the APA. See 5 U.S.C. § 706(2)(D) (stating that rules promulgated “without observance of procedure required by law” must be held 'unlawful and set aside'). Generally, the entire regulation must be vacated unless “we can say without any substantial doubt that the agency

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would have adopted the severed portion on its own.” Interstate Nat. Gas Ass’n of Am. v. Pipeline & Hazardous Materials Safety Admin ., 114 F.4th 744, 753 (D.C. Cir. 2024) (quoting Am. Petroleum Inst. v. EPA , 862 F.3d 50, 71 (D.C. Cir. 2017)). Given that DOT relied upon the study to justify its cost– benefit analysis, the procedural defect compromised the entire regulation. Thus, we must vacate the entire Rule.

Apart from the notice-and-comment issue, questions have also been raised about other defects in the Rule. See, e.g. , Airlines for Am. v. Dep't of Transp. , 110 F.4th 672, 677 (5th Cir. 2024). But in light of DOT’s agreement to the remedy of vacatur-and the agency's stated intent to redesign or rescind the Rule—we pretermit those issues as premature.

The Rule is hereby VACATED .

Page 4Haynes, Circuit Judge , joined by Southwick and Douglas , Circuit Judges , concurring:

This case has evolved into a different arena since a year ago when we issued the panel opinion that I wrote. Most importantly, the Department of Transportation is an agency under a different president and with a different approach and thoughts than it was at the time of the rule that the panel opinion addressed. The Department assured the court it is creating a new proposed rule, and it agreed that we could vacate the rule that was what the panel addressed.

Accordingly, we concur.