Monday, March 7, 2016

Why not? "Compliance with the Administrative Procedure Act"

This is the fourth part of our series re-publishing the public's comments about naked scanners (aka AIT, Advanced Imaging Technology), specifically, whether the TSA has complied with the Administrative Procedure Act (short answer: No.).

Some commenters addressed concerns related to the Administrative Procedure Act (APA). Generally, commenters stated that TSA has not complied with the APA’s procedural requirements. Non-profit organizations, a privacy advocacy group, and individual commenters stated that TSA did not comply with APA requirements prior to initial deployment of AIT. A privacy advocacy group stated that the agency received two petitions signed by numerous civil liberties organizations to institute a rulemaking proceeding, yet failed to initiate such a proceeding. A few individual commenters stated that if TSA had initially complied with rulemaking procedures, the public likely would have rejected the proposed action, and TSA would not have been able to deploy the technology. A privacy advocacy group and an individual commenter raised further concerns regarding the money spent on the deployment of AIT despite the lack of opportunity for public comment.
Commenters stated that the proposed rule and justification provided in the NPRM would not meet the arbitrary and capricious standard applied to agency actions under the APA. A privacy advocacy group stated that factors regarding effectiveness, alternatives, and health risks were not considered and the term “anomaly” was not adequately explained.
Commenters also stated that the proposed regulatory language effectively failed to provide the public with adequate notice and denied the public the opportunity to provide meaningful comment because the rule is too broad and vague, and descriptive information on the program was omitted. 
An individual commenter wrote that noncompliance with APA requirements indicated TSA acts as it chooses without accountability. Another individual commenter requested TSA to commit to complying with APA requirements in the future. A non-profit organization requested that TSA hold public hearings in the future before imposing new procedures and policies, but specified that the agency should retain the authority to declare emergency regulations and procedures without public hearings or a comment period. Further, an individual commenter suggested that TSA withdraw the proposedrule and issue an advance notice of proposed rulemaking to allow TSA to gather missing
information in order to receive comments that are more meaningful. An advocacy group and an individual commenter stated that TSA only issued a NPRM because it was court-ordered. Other commenters wrote that TSA had the option to request public input prior to implementing and deploying AIT scanners.