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CEI Petitions DHS to Follow the Law: U.S. Aircraft Laptop Ban Must Go Through Public Notice and Comment

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The Department of Homeland Security (DHS) recently banned passengers from carrying electronic devices larger than a cell phone in the cabin on any nonstop flights to the United States from 10 airports in the Middle East. Now, DHS may extend this ban to all nonstop flights to the United States from Europe as well.

According to Competitive Enterprise Institute (CEI) experts, regardless of whether this ban is sound as a matter of policy, it is clearly a regulation subject to the Administrative Procedure Act (APA). This means, under federal law, an agency cannot issue a regulation without going through notice and comment rulemaking. Because this hasn’t happened yet, today CEI filed a rulemaking petition with DHS’ Transportation Security Administration (TSA) requesting the department to go through the proper rulemaking process, which includes soliciting public comment and ultimately setting forth the detailed rationale for its decision.

According to CEI regulatory counsel and expert in technology policy Ryan Radia, in limited cases, an agency may issue a regulation on an emergency basis and then go through the full rulemaking process afterwards. However, there has been no indication the DHS plans to solicit and consider public comment regarding its broad and indefinite ban on “large electronic devices” in aircraft passenger cabins. These devices include, among other things, laptops, tablets, cameras, e-readers, and portable DVD players.

CEI’s Ryan Radia said the following about the TSA petition:

Regulations almost always create trade-offs. But without assessing them in a way that incorporates evidence and public input, agencies are especially likely to reach the wrong conclusion. Banning electronic devices in aircraft cabins might actually make planes more likely to crash, as lithium batteries can cause fires that are harder to extinguish when they are in the cargo hold of an airplane. There's also an immense loss of productivity when millions of travelers cannot use laptops or tablets on long-haul flights to the United States.

But we don't know if DHS has even considered these factors to date. That's why we have petitioned the department to go through the APA rulemaking process. Even if the electronics ban is based on sound security concerns, the Department cannot simply ignore the law.

>> Read CEI’s full petition here.