Suburban Air Freight, Inc . v. Transportation Security Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2013 Decided June 7, 2013
Reissued June 14, 2013
No. 12-1171
S UBURBAN AIR FREIGHT, INC .,
P ETITIONER
v.
TRANSPORTATION S ECURITY ADMINISTRATION ,
R ESPONDENT
On Petition for Review of an Order
of the Transportation Security Administration
Robert E. O'Connor Jr. argued the cause and filed the
briefs for petitioner.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Stuart F. Delery, Acting Assistant Attorney General, and
Mark B. Stern and Dana L. Kaersvang, Attorneys.
Before: HENDERSON, R OGERS , and TATEL, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.

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TATEL, Circuit Judge: Petitioner Suburban Air Freight, a
Federal Aviation Administration–certified air carrier, operates
pursuant to a Transportation Security Administration–
approved security plan. After observing the loading of a
Suburban aircraft, TSA inspectors determined that Suburban
had failed to adequately implement security measures
mandated by its plan. An administrative law judge agreed and
imposed an $18,000 fine, which the TSA Administrator
upheld. Finding no error, we deny Suburban’s petition for
review.
I.
Congress endowed TSA with authority to promulgate
regulations to promote transportation security. See 49 U.S.C.
§ 114(l)(1). With respect to aviation security, TSA has
established different sets of rules for different kinds of aircraft
operators. This case involves the rules that govern “twelve-
five” operations—that is, operations that (1) are not regulated
under another TSA program, (2) utilize an airplane weighing
more than 12,500 pounds, (3) run scheduled or charter
service, and (4) carry passengers and/or cargo. See 49 C.F.R.
§ 1544.101(d). TSA requires twelve-five operators to “ensure
that cargo is screened and inspected for any unauthorized
person, and any unauthorized explosive, incendiary, and other
destructive substance or item.” Id. § 1544.205(b). Although
operators are given some flexibility to determine precisely
how they will meet their security obligations, they must
submit a proposed security program—known as a “Twelve-
Five Standard Security Program” or a “TFSSP”—to TSA for
approval. Id. § 1544.105(a). TSA offers a standard-form
TFSSP that operators may modify with TSA’s consent. See
Aviation Security: Private Charter Security Rules, 67 Fed.
Reg. 79,881, 79,884 (Dec. 31, 2002) (explaining that “TSA
developed a standard security program and forwarded it to
affected entities” and that “TSA may approve [proposed]
changes” thereto). Operators must abide by their approved

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TFSSP until and unless TSA approves an amendment. See id.
§ 1544.105(b).
Petitioner Suburban Air Freight operates pursuant to an
approved TFSSP. Two provisions of that document are
relevant here: Section 6.2, which provides that “[b]efore any
crewmember is authorized to board his or her assigned
aircraft, a direct twelve-five aircraft operator employee or
authorized representative must request and verify a
government-issued photo ID of each crewmember and his or
her assignment on that flight,” and Section 8.1, which states
that operators of all-cargo flights “must maintain direct
custody and control of cargo.” Prior to the events at issue in
this case, TSA had been in contact with Suburban about its
compliance with these requirements.
On October 6, 2009, a TSA inspector visited Richmond
International Airport and observed the loading of a Suburban
flight transporting packages for DHL International Express,
an “Indirect Air Carrier” with its own TSA-approved security
plan. The flight was a “single pilot” operation, meaning that
the pilot was the only crew member. The cargo-loading area
at the Richmond Airport is inside the airport’s secured area,
which only individuals with airport-issued IDs and their
guests may enter. Because the DHL employees delivering
packages to Suburban had airport-issued badges but the
Suburban pilot did not, DHL employees escorted the pilot into
the secured area. In the pilot’s presence, the DHL employees
then proceeded to load the packages onto the plane.
The TSA inspector was not satisfied. He observed that no
Suburban employee or authorized representative ever checked
the pilot’s identification. Instead, the pilot indicated that he
had “verified his own ID.” The inspector also noted that the
pilot failed to keep a constant watch on the loading process—
at times even standing with his back to the aircraft—and then
failed to inspect the cargo after loading was complete.

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As a result, TSA charged Suburban with violating the ID-
check and custody-and-control provisions of its TFSSP.
Suburban disputed both alleged violations. Alternatively, it
argued that the October 6 flight did not qualify as a twelve-
five operation and was therefore not subject to the TFSSP’s
requirements because the flight carried no “cargo” within the
meaning of the regulations. After a hearing, an administrative
law judge found that the TFSSP applied and that Suburban
had in fact committed both alleged violations. Accordingly,
he imposed an $18,000 fine. Suburban filed an intra-agency
appeal, and a TSA Administrator affirmed the ALJ’s decision
in all respects.
In its petition for review, Suburban raises three
arguments. First, Suburban challenges the Administrator’s
determination that the October 6 flight was carrying “cargo”
and, as a result, that the TFSSP applied. Second, even if the
TFSSP were applicable, Suburban argues that the
Administrator erroneously interpreted and applied the two
sections of the TFSSP the company was charged with
violating. And third, even if the Administrator’s interpretation
of the TFSSP would otherwise have been reasonable,
Suburban maintains that it lacked fair notice that its TFSSP
would be so interpreted.
II.
Pursuant to the Administrative Procedure Act, we must
uphold TSA’s decisions unless they are “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law,” or unsupported by “substantial evidence.” 5 U.S.C.
§ 706(2); 49 U.S.C. § 46110(c); see Alaska Airlines, Inc. v.
TSA, 588 F.3d 1116, 1120 (D.C. Cir. 2009). In addition, “[w]e
must give substantial deference to [the] agency’s
interpretation of its own regulations.” Thomas Jefferson
University v. Shalala, 512 U.S. 504, 512 (1994). Both parties

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appear to assume that we should afford similar deference to
TSA’s interpretation of the TFSSP, and we agree. Although
this seems to be the first time the question of deference has
arisen in the TFSSP context, we believe TFSSPs are
analogous to other formal, standardized, agency-approved
documents with respect to which we afford agencies
deference. Just as we defer to the Federal Energy Regulatory
Commission’s and the Federal Communications
Commission’s interpretations of tariffs, see e.g., FPL Energy
Marcus Hook, L.P. v. FERC, 430 F.3d 441, 446 (D.C. Cir.
2005) (FERC); Global NAPs, Inc. v. FCC, 247 F.3d 252, 258
(D.C. Cir. 2001) (FCC), for example, so too must we defer to
TSA’s reasonable interpretation of a TFSSP.
A.
Suburban’s first argument—that the TFSSP did not apply
to the October 6 flight—hinges on the proposition that the
DHL packages Suburban was transporting were
unaccompanied by an air waybill. Suburban’s logic is
straightforward. The TFSSP governs only twelve-five
operations; to qualify as a twelve-five operation, an aircraft
must carry “passengers or cargo or both,” 49 C.F.R
§ 1544.101(d); and “cargo” is defined as “property tendered
for air transportation accounted for on an air waybill,” id.
§ 1540.5. Working backwards through the links in this chain,
Suburban maintains that if there was no air waybill for the
DHL packages, then those packages did not qualify as cargo,
the October 6 flight was not a twelve-five operation, and the
TFSSP did not apply. As Suburban repeatedly puts it, “no air
waybill, no cargo, no TFSSP violation.” Petitioner’s Br. 37.
TSA accepted Suburban’s reasoning but rejected its
premise, concluding that the DHL packages were in fact
“accounted for on an air waybill.” 49 C.F.R. § 1540.5. This
conclusion was supported by substantial evidence: TSA
inspectors testified that the packages DHL ships with

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Suburban are accounted for on air waybills, a DHL email
explained that “DHL uses air waybills for every shipment,”
and TSA introduced one of DHL’s “master” air waybills into
evidence. This evidence makes clear that DHL’s shipments,
including its shipments with Suburban, are always accounted
for on air waybills, and Suburban made no showing that it
deviated from this practice on the October 6 flight.
Accordingly, although Suburban is right that TSA never
produced the specific air waybill for that flight, the absence of
this document from the record fails to negate the substantial
evidence showing that such a document existed. This is
especially true given that Suburban failed to raise its “no air
waybill” defense until shortly before the hearing. Suburban
also attempts to undermine the Administrator’s conclusion by
pointing to her mischaracterization of a bit of testimony as
coming from a DHL representative rather than a TSA
inspector, but any such mistake was plainly harmless given
the clear import of the evidence. See 5 U.S.C. § 706
(providing that “rule of prejudicial error” applies to review of
agency decisions).
B.
Suburban next argues that even if the TFSSP governed
the October 6 flight, TSA arbitrarily and capriciously
interpreted and applied the two TFSSP provisions it claims
Suburban violated. Recall that the first of these, Section 6.2,
provides that, “[b]efore any crewmember is authorized to
board his or her assigned aircraft, a direct twelve-five aircraft
operator employee or authorized representative must request
and verify a government-issued photo ID of each
crewmember and his or her assignment on that flight.” Flying
into the headwinds of this broad language, Suburban argues
that the ID-check requirement simply does not extend to
single-pilot operations. Relying on the TFSSP’s repeated
references to “crewmember,” Suburban insists that “crew”
cannot refer to a single person. Moreover, it maintains that

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TSA’s could not have intended the ID-check requirement to
cover single-pilot operations because compliance is
effectively impossible where, as in this case, there is no other
crewmember present to perform the check.
This argument won’t fly. TSA’s interpretation of “crew”
to include crews of one is reasonable. Indeed, Suburban’s
own TFSSP defines “crewmember” as “[a] person assigned to
perform duty in an aircraft during flight time,” and pilots,
whose duty it is to fly the plane, certainly meet that definition
regardless of whether they are flying solo. And far from
impossible, compliance with the ID-check requirement on
single-pilot operations, as TSA points out, could be achieved
at Richmond Airport through designation of an authorized
representative. Here, as TSA again points out, Suburban could
have designated DHL as its representative, and DHL
employees could then have checked the pilot’s ID and flight
assignment before he boarded the plane. To the extent
Suburban maintains this requirement would be impractical at
other, more remote airports, it may submit a request to TSA to
amend its TFSSP. See 49 C.F.R. § 1544.105(b). Although
permitting a pilot to “verif[y] his own ID,” as this one
purported to do, would doubtless be more convenient, to
repeat that suggestion is in essence to refute it. It is TSA’s
job—not Suburban’s or ours—to strike a balance between
convenience and security, and a meaningful ID check, as
opposed to a self-administered one, serves as an important
element of the security regime TSA has devised.
The second TFSSP provision TSA found Suburban to
have violated, Section 8.1, requires an “all-cargo twelve-five
aircraft operator [to] maintain direct custody and control of
cargo . . . from the time of acceptance until transferred to,”
among other entities, an Indirect Air Carrier like DHL.
Section 8.1 further specifies that “twelve-five aircraft operator
employees and authorized representatives are the only
individuals authorized to maintain custody and control of

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cargo.” Despite this language, Suburban maintains that it
should have sufficed that DHL employees maintained custody
of the cargo while loading it on the plane, regardless of
whether the pilot adequately supervised them.
Acknowledging that the DHL employees were neither
Suburban employees nor its authorized representatives,
Suburban emphasizes that they were bound by DHL’s own
security agreement with TSA and had extensively screened
the packages prior to delivering them.
Again, the standard of review disposes of this argument.
The TFSSP could hardly have been more clear—Suburban
“employees and authorized representatives are the only
individuals authorized to maintain custody and control of
cargo” (emphasis added)—and the pilot was the only such
individual on hand while the DHL packages were loaded onto
the plane. Because the evidence shows that the pilot failed to
watch the DHL employees at all times or inspect the cargo
after it was loaded, the Administrator reasonably concluded
that Suburban violated Section 8.1. True, requiring the pilot to
supervise the DHL employees may be somewhat redundant
given that DHL had already screened the cargo. But TSA
emphasizes that redundancy plays an important role in
aviation security. Suburban has no authority to deviate from
the obligations set out in its TFSSP merely because it believes
them superfluous.
C.
Finally, Suburban contends that even if the TFSSP
applied and even if the Administrator’s interpretations of
Sections 6.2 and 8.1 were reasonable, Suburban’s due process
rights were violated because it lacked fair notice of those
interpretations. The “fair notice doctrine,” which began as a
principle of due process in the criminal context and “has now
been thoroughly ‘incorporated into administrative law,’ ”
General Electric Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir.

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1995) (quoting Satellite Broadcasting Co. v. FCC, 824 F.2d 1,
3 (D.C. Cir. 1987)), “prevents . . . deference from validating
the application of a regulation that fails to give fair warning of
the conduct it prohibits or requires,” Gates & Fox Co. v.
OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986).
This case, however, has nothing in common with the very
limited set of cases in which we have upheld an agency
interpretation but nevertheless vacated an enforcement action
on notice grounds. For one thing, the TFSSP made clear that
Suburban was required to have someone other than the pilot
check the pilot’s ID and to have an employee or authorized
representative maintain custody and control of the cargo. Cf.
General Electric, 53 F.3d at 1330 (lack of fair notice where
agency’s “interpretation [was] so far from a reasonable
person’s understanding of the regulations that they could not
have fairly informed [regulated parties] of the agency’s
perspective”). Moreover, Suburban makes no argument that
TSA previously interpreted those provisions differently, let
alone that the company relied on any such interpretation. Cf.
FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317–
18 (2012) (lack of fair notice where agency “changed course”
with respect to its interpretation of a governing statute);
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,
2167–68 (2012) (“potential for unfair surprise is acute” where
agency failed to “suggest[ ] that it thought the industry was
acting unlawfully”). Indeed, Suburban signed on to the
TFSSP, discussed the issues that arose in this case with TSA
inspectors prior to the October 6 inspection, and had an
opportunity to press its position in an adversarial hearing.
Neither the Constitution nor administrative law fair-notice
principles require anything more.

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III.
For the foregoing reasons, we deny the petition for
review.
So ordered.

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