As discussed in a previous Case Note, in Grand Trunk Corp. & Illinois Central Railroad Co. v. TSA, the U.S. Circuit Court for the Seventh Circuit issued a strong endorsement of the emergency rulemaking powers held by the Transportation Security Administration (TSA) under 49 U.S.C. § 114(l)(2). The court upheld TSA’s cybersecurity directives issued to freight railroads, rejecting arguments that the agency had sidestepped the Administrative Procedure Act (APA). The decision affirmed TSA’s discretion to act swiftly in response to perceived threats, even when those threats are persistent rather than sudden.

But just one day later, the U.S. Court of Appeals for the D.C. Circuit took a different view of TSA’s authority in City of Billings v. TSA, vacating a rule known as the “National Amendment” that imposed new screening requirements on airport workers. The court held that TSA issued a “legislative rule” without following the public notice-and-comment procedures required by the Administrative Procedure Act (APA). The court also declined to accept TSA’s characterization of the rule as a mere amendment to existing security programs that could be accomplished without compliance with the APA. Whereas the APA would have required TSA to provide the general public with notice and an opportunity to comment on the National Amendment, TSA provided notice only to airports. The court found that TSA ran afoul of the APA in limiting the notice-and-comment process in this manner.

At the heart of the divergence in outcomes between these cases was the legal classification of TSA’s actions.

In Grand Trunk, TSA issued “Security Directives” to a narrow group of high-risk freight railroads. These directives were grounded in TSA’s statutory emergency authority, which explicitly exempts such actions from the APA. The Seventh Circuit emphasized that TSA need not wait for a “sudden” emergency to act; persistent cybersecurity threats from foreign adversaries qualified as an emergency under the statute. The court also rejected the argument that TSA was required to conduct a cost-benefit analysis, noting that such requirements apply only to regulations, not emergency directives.

By contrast, in City of Billings, the National Amendment imposed new screening obligations on airport operators. TSA did not invoke its emergency authority in promulgating the National Amendment. Instead, it treated the rule as an amendment to its standard security programs, notifying only the affected airports. The D.C. Circuit disagreed with this approach, finding that the National Amendment imposed new, substantive obligations with the force of law and therefore constituted a “legislative rule” subject to the APA’s public notice-and-comment requirements. While the court withheld its mandate to allow TSA time to revise or replace the National Amendment, the opinion makes clear that procedural shortcuts are not permitted. In other words, when TSA wants to amend its security programs to include new “legislative rules,” it must provide notice to the general public of the proposed change. It is unclear how TSA would manage such a process, given that the content of the security programs is classified as Sensitive Security Information (SSI) and may only be shared with those who have a “need to know.”

A few scenarios seem likely to emerge as a result of these opinions:

1. TSA will attempt to invoke its emergency rulemaking authority in more cases, given the broad interpretation the Seventh Circuit gave that authority in Grand Trunk.
2. TSA will  create a record that it has “good cause” to amend security programs without engaging in public notice-and-comment, an exception recognized in the APA that the D.C. Circuit alluded to in its opinion.
3. Stakeholders—including Indirect Air Carriers and Certified Cargo Screening Facilities—will be closely watching TSA’s amendments to security programs (including the IACSSP, CCSSSP, and the SSPAC) to see if the proposed changes constitute “legislative rules” that require public notice-and-comment under the APA.

This situation remains fluid, as the losing parties in both cases discussed above still have time to seek en banc (i.e., full-court) review. The Scopelitis Air Cargo Team will continue to monitor these developments and keep clients advised.

UPDATE as of 1/4/26

On December 23, 2025, the Court of Appeals for the D.C. Circuit issued its mandate in the City of Billings case. The court initially withheld its mandate so that TSA would have time to either adopt a rule in compliance with the APA or determine that a rule was not necessary. TSA filed periodic status reports with the court indicating that it intends to commence the rulemaking process. However, shortly after issuing its mandate, the court reversed course and declared that the mandate was issued in error. Thus, the court the retains jurisdiction over the case, prompting the parties challenging that National Amendment to file another motion on December 31, 2025, requesting that the court reissue its mandate and formally vacate the National Amendment. For now, at least, it appears the court is content to give TSA additional time to develop a new APA-compliant rule.