On October 23, 2015, the U.S. Court of Appeals for the D.C. Circuit ordered the Department of Homeland Security to produce a schedule for final rule publication on the Transportation Security Administration’s (TSA) use of body scanners in airports. This order was in response to a lawsuit filed in July 2015 by the Competitive Enterprise Institute (CEI)—along with the National Center for Transgender Equality, The Rutherford Institute, and two CEI employees (former President Lawson Bader and me, Marc Scribner)—asking the court to compel the TSA to produce its final rule on body scanners. For years, the TSA had been flouting the federal Administrative Procedure Act and a court order requiring it to complete a notice-and-comment rulemaking process. On the morning of November 23, the government submitted its court-ordered final rule schedule.
According to the government’s court filing, here is the body scanner final rule timeline:
- November 9, 2015—TSA submitted the draft final rule to the Secretary of Transportation.
- November 19, 2015—The Secretary of Transportation completed his review and transmitted the draft final rule to the White House’s Office of Management and Budget (OMB).
- February 18, 2016—The deadline under Executive Order 12866 for OMB to complete its review of the draft final rule and return to the TSA for publication planning.
- March 3, 2016—The date the government expects to publish the final rule in the Federal Register.
We are grateful the TSA is now providing the public insight into its body scanner rulemaking process, although it took years of work to get this far from the Electronic Privacy Information Center (EPIC), which filed the petition for review in July 2010 that laid the groundwork to CEI et al.’s successful July 2015 mandamus petition that brought about this final rule schedule. Unfortunately, the TSA, as the court found in July 2011 when it ruled in favor of EPIC, should have conducted its required notice-and-comment rulemaking prior to its 2009 deployment of the machines in U.S. airports.
That said, we are pleased the TSA is now being held accountable for its years of unlawful behavior. The public will now be able to evaluate the final rule—which should include information on how, why, and where the machines will be used and who will be subject to them under what circumstances—and potentially challenge it if it fails to meet the requirements of the 2011 court order and Administrative Procedure Act.
The final rule schedule submitted to the court can be found here.
Additional filings that led to the mandated schedule can be found here.
A recent MSNBC.com article co-authored by the In re CEI et al. petitioners can be found here.