The U.S. Court of Appeals for the District of Columbia Circuit recently issued a significant administrative law ruling1 requiring the Transportation Security Administration (TSA) to provide due process and greater transparency when it promulgates new or amended rules. The court vacated TSA’s National Amendment2 mandating physical screening of aviation workers at major airports, holding that TSA violated the Administrative Procedure Act (APA) by failing to follow public notice-and-comment procedures, a decision that will require TSA to adopt a fundamentally different approach in the future, including a different balance between TSA’s asserted need to protect Sensitive Security Information (SSI) and its obligation under the APA to afford the public advance notice of its rulemaking actions and a meaningful opportunity to comment.
Background
Under TSA’s regulations (49 C.F.R. Part 1542), airports must adhere to TSA-approved security programs. Section 1542.105(c) permits TSA to amend these programs “if safety and the public interest require,” provided that it gives airport operators 30 days’ advance notice and an opportunity to submit written comments on proposed changes.
In 2020, TSA proposed a National Amendment to address insider threats by requiring airport operators to conduct physical screening of aviation workers and deploy explosives-detection equipment. TSA limited comment opportunities to airport operators, citing section 1542.105(c) as authority to exclude other stakeholders and the public from the consultation process. TSA finalized the rule in 2023 with minimal changes despite strong airport operator objections to the proposal. Petitioners – including airport authorities and Airports Council International-North America – sought judicial review at the D.C. Circuit, in part on the basis that TSA had bypassed the APA’s notice-and-comment requirements.
Court’s Holding
The D.C. Circuit found that TSA failed to comply with the APA’s notice-and-comment requirements when it provided notice and an opportunity to comment on the National Amendment only to airport operators, excluding the broader public. The court rejected TSA’s reliance on section 1542.105(c) as authority to forgo notice and comment to the public, noting that “an agency’s adherence to its own regulations does not somehow enable it to bypass the APA.”3
A central issue in the court’s analysis was whether TSA’s National Amendment constituted a legislative or interpretive rule under the APA. Legislative rules carry the force of law and impose new obligations on regulated parties; as such, they require adherence to formal notice-and-comment procedures unless an exception applies (e.g., if there is good cause for finding that adhering to the APA would be “impracticable, unnecessary, or contrary to the public interest.”4 Interpretive rules, by contrast, merely clarify or explain existing law and are generally exempt from those procedural requirements.
The D.C. Circuit concluded that TSA’s rule was legislative because it imposed new, binding requirements on airport operators backed by enforcement mechanisms. TSA’s attempt to characterize the rule as interpretive was unpersuasive because TSA had assigned the National Amendment an effective date. As the court noted, “there would be little reason to set an effective date if the rule merely interpreted a preexisting obligation as opposed to instituting a new one.”5 The court also rejected TSA’s argument that public comment would be of limited value because TSA, citing SSI considerations, could refuse to disclose specific information about its proposal: “the APA… does not contemplate an agency’s forgoing the statute’s notice-and comment requirements based on the agency’s own assumption that there is a limited need to hear from the public in a given instance.”
Significance
This decision has broad implications for entities regulated by TSA. By ruling that TSA cannot bypass broader public participation in its rulemaking – even for security-related regulations – unless a valid APA exemption applies, the court has made TSA’s actions subject to greater public scrutiny. That scrutiny, and the potential for legal challenges, may prompt TSA to more rigorously vet its proposals. In the past, TSA has issued amendments for notice and comment largely behind closed doors in reliance on section 1542.105(c). The D.C. Circuit’s decision in City of Billings v. TSA is a critical check on that practice, underscoring that even security-focused agencies must honor APA safeguards.
1 City of Billings v. Transportation Security Administration (No. 23-1290, 2025 WL 2422907 (D.C. Cir. 2025)).
2 While the court vacated the National Amendment, it withheld its mandate until TSA either adopts a rule in accordance with the APA or informs the court it no longer considers it necessary to promulgate a rule. TSA must submit a status report to the court every 60 days indicating its progress.
3 City of Billings, et al., No. 23-1290, 2025 WL 2422907, at *5.
4 5 U.S.C. 553(b)).
5 City of Billings, et al., No. 23-1290, 2025 WL 2422907, at *4 (internal citation omitted).
