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In Rejecting EPIC's Petition On TSA's Strip-Search Machines, Court Effectively Orders Rulemaking Timetable

This afternoon, the D.C. Circuit Court of Appeals rejected the Electronic Privacy Information Center's (EPIC) petition for writ of mandamus, which called on the court to enforce its own order that the Department of Homeland Security (the Transportation Security Administration's parent department) begin a legally required notice-and-comment rulemaking regarding the TSA's use of advanced imaging technology (AIT) scanners in airports. CEI earlier submitted an amicus brief supporting EPIC's petition on behalf of Robert L. Crandall, former chairman and CEO of AMR and American Airlines, and a coalition of organizations. Background on this case can be found here in op-ed form and here in video form.

In rejecting EPIC's petition, the court ordered:

ORDERED that the petition for writ of mandamus be denied in light of the Government’s representation that “the process of finalizing the AIT Rulemaking documents so that the [notice of proposed rulemaking] may be published is expected to be complete by or before the end of February 2013.” Accordingly, we expect that the [notice of proposed rulemaking] will be published before the end of March 2013.

So while the D.C. Circuit denied EPIC's petition that requested that the court order the TSA to begin the legally required rulemaking process in 60 days, the last sentence effectively requires the agency to begin the process no later than the end of March 2013. If the TSA delays, it will have one unhappy federal court on its hands.

While we hoped the notice-and-comment period would be opened sooner, we view the court's decision as a partial victory. The TSA's dilatory tactics that have successfully prevented public and independent expert involvement in the AIT scanner regulatory process, as required by the Administrative Procedure Act, will no longer protect it from outside scrutiny.