TSA Still Isn't Complying With the Law on Body Scanners

TSA Still Isn't Complying With the Law on Body Scanners

Regulatory Proceeding Begins, But Agency Publishes Muddled Proposed Rule
March 27, 2013

WASHINGTON, D.C., March 27, 2013 — Yesterday, the Transportation Security Administration (TSA) issued a notice of proposed rulemaking (NPRM) as required by a court order that found the TSA violated the Administrative Procedure Act by not conducting the required notice-and-comment rulemaking prior to deploying whole-body imaging scanners in airports. The Competitive Enterprise Institute (CEI), while appreciating the opportunity to finally comment on the use of the scanners, is unimpressed by the TSA’s NPRM.

“The U.S. Court of Appeals for the District of Columbia Circuit ordered in July 2011 that the TSA must ‘promptly’ begin a notice-and-comment rulemaking, as required under the Administrative Procedure Act,” said CEI Fellow in Land-use and Transportation Studies Marc Scribner. “However, the Court explicitly reasoned that the TSA must propose a legislative rule. Unfortunately, the proposed rule more closely resembles a general statement of policy.”

In administrative law, legislative rules have the force of law and impose duties on or grant rights to affected parties. Under the Administrative Procedure Act, legislative rules must go through a notice-and-comment rulemaking that lays out the agency’s justification for the rule before those duties or rights can be established. In contrast, non-legislative rules such as interpretive rules or general statements of policy generally serve as guidance only and do not need to face public and outside expert scrutiny.

“The TSA’s poorly framed proposed rule does not offer any insight into why, where, or how the TSA is justified in using whole-body imaging scanners in airports,” said Scribner. “And that lack of transparency violates the court’s order because TSA’s rationale cannot be evaluated properly.

“Outside aviation security experts have long challenged the TSA’s official claims that these machines are effective both in terms of reducing body-borne terrorism risk and on cost-benefit grounds. The administrative law oversight contained in the NPRM is yet another example of the TSA’s near-total lack of competence.”

Scribner added that the muddled proposed rule increases the likelihood that the D.C. Circuit will eventually find the whole-body imaging scanner final rule to be arbitrary and capricious.

>> Comments to the TSA on the proposed rule are due June 24. The rulemaking docket can be viewed here.

>> For more on CEI’s work on aviation security policy, see CEI’s amicus brief in EPIC v. DHS and an op-ed on the case by former American Airlines Chairman and CEO Robert L. Crandall and CEI’s Marc Scribner.