The “Presidential Memorandum Regarding 12/25/2009 Attempted Terrorist Attack,” charges the Transportation Security Administration (“TSA”) with “aggressively pursuing enhanced screening technology in order to prevent further such attempts, while at the same time protecting passenger privacy.” In 2011, the U.S Court of Appeals for the District of Columbia ordered the TSA to “provide notice and . . . comments on the use of [advanced imaging technology] (“AIT”) . . . for primary screening,” but did not require the TSA to “stop using AIT to screen passengers.” The TSA now proposes a regulatory revision to “clarify that [the] TSA may use . . . AIT to screen individuals at security screening checkpoints.” Comments are due by June 24, 2013.
The regulatory revision proposes the following regarding the use of AIT:
- Threats have evolved to include non-metallic explosives, devices, and weapons.
- AIT is the best option to detect non-metallic anomalies without touching the individual.
- Congress authorized TSA to procure and deploy AIT for use at security checkpoints.
- TSA implemented safeguards to protect privacy and upgraded its millimeter wave AIT units with automatic target recognition (ATR) software which creates a generic outline of a specific individual and eliminates the need for operator interpretation of an image.
- AIT equipment is safe because the x-ray or radio waves emissions are so low as to present a negligible risk to passengers, airline crew members, airport employees, and TSA employees.
- TSA provides details on AIT procedures at www.tsa.gov/ait-how-it-work (which allows opt out procedures for passengers) and posts signs at airport checkpoints to notify passengers about AIT and alternative screening procedures. The level of acceptance by passengers has been high; the vast majority of passengers do not object to AIT screening.
- Using AIT is effective in detecting small, non-metallic items hidden underneath passenger clothing that could otherwise escape detection.
TSA invites any written comments, data, or views related to this proposal, specifically the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. Interested parties may submit comments, using any one of the following methods:
- Submit comments through the Federal eRulemaking portal at http://www.regulations.gov.
- Address, hand-deliver, or fax written comments to the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; fax (202) 493-2251.
This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.