Summary
The D.C. Circuit held that the Transportation Security Administration’s “National Amendment” rule, which mandates physical screening of aviation workers at secured airport areas, constitutes a legislative rule requiring notice-and-comment rulemaking under the Administrative Procedure Act. Because the agency bypassed these procedures, the court vacated the rule. However, recognizing significant aviation security risks, the court withheld issuance of its mandate until the TSA adopts a procedurally compliant rule or determines one is no longer necessary.
Topics
Practice areas
Questions Presented
- Whether the National Amendment is a legislative rule subject to the APA’s notice‑and‑comment requirements
- Whether the court should vacate the National Amendment for failure to comply with the APA
Holdings
- The National Amendment is a legislative rule and therefore must comply with the APA’s notice‑and‑comment procedures.
- The court vacates the National Amendment and withholds its mandate until TSA adopts a procedurally compliant rule or informs the court that no rule is needed.
Key quotations
“The National Amendment’s basic objective is to impose new obligations on airport operators by requiring them, among other things, to physically screen aviation workers entering secured airport areas.” (at 9)
“We grant the petitions for review, vacate the National Amendment, and withhold our mandate under the conditions set out in this opinion.” (at 14)
Factual background
TSA issued the "National Amendment," a rule requiring large airports to physically screen aviation workers and to purchase explosives‑detecting equipment. The agency gave notice only to airport operators, not the public, and finalized the rule in April 2023. Petitioners challenged the rule on the ground that the APA requires public notice‑and‑comment for legislative rules.
Procedural history
Petitioners sought reconsideration of TSA's National Amendment, arguing lack of APA notice‑and‑comment. TSA denied petitions. The D.C. Circuit panel denied a stay. The court now reviews the notice‑and‑comment issue.
Remand instructions
The agency must submit a status report every 60 days and either adopt a rule that complies with the APA’s notice‑and‑comment procedures or inform the court that a rule is no longer necessary before the court will issue its mandate.