[Federal Register Volume 78, Number 58 (Tuesday, March 26, 2013)]
[Proposed Rules]
[Pages 18287-18302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07023]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1540
[Docket No. TSA-2013-0004]
RIN 1652-AA67
Passenger Screening Using Advanced Imaging Technology
AGENCY: Transportation Security Administration, DHS.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Transportation Security Administration (TSA) is proposing
to revise its civil aviation security regulations to clarify that TSA
may use advanced imaging technology (AIT) to screen individuals at
security screening checkpoints. This proposed rule is issued to comply
with a decision of the U.S. Court of Appeals for the District of
Columbia Circuit, which ordered TSA to engage in notice-and-comment
rulemaking on the use of AIT for screening. The Court decided that TSA
should provide notice and invite comments on the use of AIT technology
for primary screening.
DATES: Submit comments by June 24, 2013.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, to the Federal Docket Management System (FDMS), a
[[Page 18288]]
government-wide, electronic docket management system, using any one of
the following methods:
Electronically: You may submit comments through the Federal
eRulemaking portal at http://www.regulations.gov. Follow the online
instructions for submitting comments.
Mail, In Person, or Fax: Address, hand-deliver, or fax your written
comments to the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001; fax (202) 493-2251. The
Department of Transportation (DOT), which maintains and processes TSA's
official regulatory dockets, will scan the submission and post it to
FDMS.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Chawanna Carrington, Project Manager,
Passenger Screening Program, Office of Security Capabilities,
Transportation Security Administration, 701 South 12th Street,
Arlington, VA 20598-6016; telephone: (571) 227-2958; facsimile: (571)
227-1931; email: [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites interested persons to participate in this rulemaking by
submitting written comments, data, or views. We also invite comments
relating to the economic, environmental, energy, or federalism impacts
that might result from this rulemaking action. See ADDRESSES above for
information on where to submit comments.
With each comment, please identify the docket number at the
beginning of your comments. TSA encourages commenters to provide their
names and addresses. The most helpful comments reference a specific
portion of the rulemaking, explain the reason for any recommended
change, and include supporting data. You may submit comments and
material electronically, in person, by mail, or fax as provided under
ADDRESSES, but please submit your comments and material by only one
means. If you submit comments by mail or delivery, submit them in an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you would like TSA to acknowledge receipt of comments submitted
by mail, include with your comments a self-addressed, stamped postcard
on which the docket number appears. We will stamp the date on the
postcard and mail it to you.
TSA will file all comments to our docket address, as well as items
sent to the address or email under FOR FURTHER INFORMATION CONTACT, in
the public docket, except for comments containing confidential
information and sensitive security information (SSI).\1\ Should you
wish your personally identifiable information redacted prior to filing
in the docket, please so state. TSA will consider all comments that are
in the docket on or before the closing date for comments and will
consider comments filed late to the extent practicable. The docket is
available for public inspection before and after the comment closing
date.
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\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
TSA will not place comments containing SSI in the public docket and
will handle them in accordance with applicable safeguards and
restrictions on access. TSA will hold documents containing SSI,
confidential business information, or trade secrets in a separate file
to which the public does not have access, and place a note in the
public docket explaining that commenters have submitted such documents.
TSA may include a redacted version of the comment in the public docket.
If an individual requests to examine or copy information that is not in
the public docket, TSA will treat it as any other request under the
Freedom of Information Act (FOIA) (5 U.S.C. 552) and the FOIA
regulations of the Department of Homeland Security (DHS) found in 6 CFR
part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments in any of our dockets by the name of the individual who
submitted the comment (or signed the comment, if an association,
business, labor union, etc., submitted the comment). You may review the
applicable Privacy Act System of Records Notice published in the
Federal Register on April 11, 2000 (65 FR 19477) and modified on
January 17, 2008 (73 FR 3316).
You may review TSA's electronic public docket on the Internet at
http://www.regulations.gov. In addition, DOT's Docket Management
Facility provides a physical facility, staff, equipment, and assistance
to the public. To obtain assistance or to review comments in TSA's
public docket, you may visit this facility between 9:00 a.m. to 5:00
p.m., Monday through Friday, excluding legal holidays, or call (202)
366-9826. This docket operations facility is located in the West
Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue SE.,
Washington, DC 20590.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the electronic FDMS Web page at http://www.regulations.gov;
(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or
(3) Visiting TSA's Web site at http://www.tsa.gov and accessing the
link for ``Stakeholders'' at the top of the Web page, selecting the
link for ``Research Center'' in the left column, and then the link for
``Security Regulations'' in the left column.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Table of Contents
I. Executive Summary
A. Purpose of the Regulation
B. Summary of Major Provisions
C. Costs and Benefits
II. Background
A. The Evolving Threat to Aviation Security
B. Layers of Security
C. Congressional Direction To Pursue AIT
D. U.S. Court of Appeals Decision in EPIC v. DHS
III. AIT Screening Protocols
A. Types of AIT Equipment
B. Privacy Safeguards for AIT
C. Safety of AIT
1. Millimeter Wave Units
2. Backscatter Units
D. AIT Procedures at the Checkpoint
IV. Deployment of AIT
V. Rulemaking Analyses and Notices
A. Regulation Evaluation Summary and Economic Impact Analyses
B. Executive Orders 12866 and 13563 Assessment
[[Page 18289]]
C. Regulatory Flexibility Act Assessment
D. International Trade Impact Assessment
E. Unfunded Mandates Reform Act Assessment
F. Paperwork Reduction Act
G. Executive Order 13132, Federalism
H. Environmental Analysis
I. Energy Impact Analysis
I. Executive Summary
A. Purpose of the Regulation
TSA is proposing to amend its regulations to specify that screening
and inspection of an individual conducted to control access to the
sterile area of an airport or to an aircraft may include the use of
advanced imaging technology (AIT), also referred to as whole body
imaging, as a screening method. Terrorists have repeatedly attempted to
cause harm with the aid of weapons and devices smuggled aboard
aircraft. It is the primary mission of DHS to prevent terrorist attacks
within the United States and to reduce the vulnerability of the United
States to terrorism.\2\ The use of AIT is an important tool in
accomplishing that mission.
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\2\ 49 U.S.C. 114.
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This NPRM is being issued to comply with the decision rendered by
the U.S. Court of Appeals for the District of Columbia Circuit in
Electronic Privacy Information Center v. U.S. Department of Homeland
Security.\3\ In that case, the U.S. Court of Appeals directed TSA to
conduct notice-and-comment rulemaking on the use of AIT as a screening
method for passengers. The Court did not require TSA to stop using AIT
to screen passengers, explaining that ``vacating the present rule would
severely disrupt an essential security operation,'' and that the rule
is ``otherwise lawful.'' \4\
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\3\ 653 F.3d 1 (DC Cir. 2011).
\4\ Id. at 8.
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B. Summary of Major Provisions
The proposed rule codifies the use of AIT to screen individuals at
aviation security screening checkpoints. This NPRM discusses the
following points regarding the use of AIT:
The threat to aviation security has evolved to include the
use of non-metallic explosives, non-metallic explosive devices, and
non-metallic weapons.
AIT currently provides the best available opportunity to
detect non-metallic anomalies \5\ concealed under clothing without
touching the passenger and is an essential component of TSA's security
layers.
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\5\ An anomaly is any object that would not ordinarily be found
on someone's person.
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Congress has authorized TSA to procure and deploy AIT for
use at security checkpoints.
TSA implemented stringent safeguards to protect the
privacy of passengers undergoing AIT screening when AIT units were
initially deployed and enhanced privacy even further by upgrading its
millimeter wave AIT units with automatic target recognition (ATR)
software. An AIT unit equipped with ATR creates a generic outline, not
an image of a specific individual, and eliminates the need for operator
interpretation of an image. TSA is removing all units that are not
equipped with ATR from its checkpoints by May 31, 2013.\6\
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\6\ The manufacturer of these units will bear the costs of
removal and storage. TSA is following the Federal Management
Regulation process to transfer and donate this equipment to other
DHS components and then to other Federal, State, and local
government agencies, if necessary. TSA will not hold any public
auction or sale and will not donate or abandon any of the equipment
to the public in the interests of security.
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The safety of the two types of AIT equipment initially
deployed was tested by TSA and independent entities and all results
confirmed that both the backscatter and millimeter wave technologies
are safe because the x-ray or radio waves emissions are well below
applicable safety and health standards, and are so low as to present a
negligible risk to passengers, airline crew members, airport employees,
and TSA employees.\7\
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\7\ See, http://www.tsa.gov/ait-safety.
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TSA has provided a detailed explanation of AIT procedures
on its webWeb site at www.tsa.gov/ait-how-it-works (which allows opt
out procedures for passengers) and posted signs at airport checkpoints
to notify passengers about AIT and alternative screening procedures.
The level of acceptance by passengers has been high; the vast majority
of passengers do not object to AIT screening.
TSA's experience in using AIT confirms that it is
effective in detecting small, non-metallic items hidden underneath
passenger clothing that could otherwise escape detection. When an item
is detected, additional screening must be performed to determine
whether the item is prohibited.
C. Costs and Benefits
When estimating the cost of a rulemaking, agencies typically
estimate future expected costs imposed by a regulation over a period of
analysis. As the AIT machine life cycle from deployment to disposal is
eight years, the period of analysis for estimating the cost of AIT is
eight years. However, as AIT deployment began in 2008, there are costs
that have already been borne by TSA, the traveling public, and airport
operators that were not due to this rule. Consequently, in the Initial
Regulatory Impact Analysis for this rule, TSA is reporting the AIT-
related costs that have already occurred (years 2008-2011), while
considering the additional cost of this rulemaking to be years 2012-
2015. By reporting the costs that have already happened and estimating
future costs in this manner, TSA considers and discloses the full
eight-year life cycle of AIT deployment.
TSA reports that the net cost of AIT deployment from 2008-2011 has
been $841.2 million (undiscounted) and that TSA has borne over 99
percent of all costs related to AIT deployment. TSA projects that from
2012-2015 net AIT-related costs will be approximately $1.5 billion
(undiscounted), $1.4 billion at a three percent discount rate, and $1.3
billion at a seven percent discount rate. During 2012-2015, TSA
estimates it will also incur over 98 percent of AIT-related costs with
equipment and personnel costs being the largest categories of
expenditures. Table 1 below reports the costs that have already
occurred (2008-2011) by cost category, while Table 2 shows the
additional costs TSA is attributing to this rulemaking (2012-2015).
Table 3 shows the total cost of AIT deployment from 2008 to 2015.
Table 1--Net Cost \8\ Summary of AIT Deployment From 2008-2011 by Cost Component
[Costs already incurred in $ thousands--undiscounted]
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TSA costs
Year Passenger Industry ---------------------------------------------------- Total
opt outs utilities Personnel Training Equipment Utilities
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2008......................................................... $7.0 $5.7 $14,689.1 $389.5 $37,425.2 $18.8 $52,535.3
2009......................................................... 32.2 5.7 15,618.6 88.0 42,563.6 20.4 58328.5
2010......................................................... 262.2 158.2 247,566.7 5,332.8 119,105.4 241.4 372,666.6
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2011......................................................... 1,384.2 186.7 284,938.7 15,354.4 55,567.2 269.1 357,700.2
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Total.................................................... 1,685.6 356.3 562,813.0 21,164.7 254,661.3 549.6 841,230.6
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\8\ TSA removed costs related to Walk Through Metal Detectors (WTMDs) that would have occurred regardless of AIT deployment to obtain an estimated net
cost for AIT.
Table 2--Cost Summary (Net Cost of AIT Deployment 2012-2015) by Cost Component
[AIT Costs in $ thousands]
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TSA Costs
Year Passenger Industry ---------------------------------------------------- Rapiscan Total
Opt Outs Utilities Personnel Training Equipment Utilities Removal
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2012............................................ $2,716.5 $325.7 $375,886.9 $12,043.0 $116,499.3 $473 $0.0 $507,924.4
2013............................................ 3,991.7 329.3 280,844.3 4,277.5 51,588.8 324.4 1,809.6 343,165.7
2014............................................ 4,238.7 312.0 263,677.6 4,190.5 51,397.8 317.7 0.0 324,134.2
2015............................................ 5,611.8 300.3 278,580.2 4,144.2 68,052.6 365.7 0.0 357,054.9
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Total....................................... 16,558.7 1,267.3 1,198,969.0 24,655.2 287,538.5 1,480.9 1,809.6 1,532,279.2
Discounted 3%................................... 15,265.0 1,178.9 1,118,459.3 23,810.2 269,233.7 1,380.7 1,705.7 1,431,033.5
Discounted 7%................................... 13,766.6 1,075.8 1,024,344.7 22,048.8 247,810.4 1,263.8 1,580.6 1,311,890.7
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Table 3--Cost Summary (Net Cost of AIT Deployment 2008-2015) by Cost Component
[AIT Costs in $ thousands--undiscounted]
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TSA costs
Year Passenger Industry ---------------------------------------------------- Rapiscan Total
opt outs utilities Personnel Training Equipment Utilities removal
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2008............................................ $7.0 $5.7 $14,689.1 $389.5 $37,425.2 $18.8 $0.0 $52,535.3
2009............................................ 32.2 5.7 15,618.6 88.0 42,563.6 20.4 0.0 58,328.5
2010............................................ 262.2 158.2 247,566.7 5,332.8 119,105.4 241.4 0.0 372,666.6
2011............................................ 1,384.2 186.7 284,938.7 15,354.4 55,567.2 269.1 0.0 357,700.2
2012............................................ 2,716.5 325.7 375,866.9 12,043.0 116,499.3 473.0 0.0 507,924.4
2013............................................ 3,991.7 329.3 280,844.3 4,277.5 51,588.8 324.4 1,809.6 343,165.7
2014............................................ 4,238.7 312.0 263,677.6 4,190.5 51,397.8 317.7 0.0 324,134.2
2015............................................ 5,611.8 300.3 278,580.2 4,144.2 68,052.6 365.7 0.0 357,054.9
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Total....................................... 18,944.4 1,623.6 1,761,782.0 45,819.9 542,199.9 2,030.4 1,809.6 2,373,509.9
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The operations described in this proposed rule produce benefits by
reducing security risks through the deployment of AIT that is capable
of detecting both metallic and non-metallic weapons and explosives.\9\
Terrorists continue to test our security measures in an attempt to find
and exploit vulnerabilities. The threat to aviation security has
evolved to include the use of non-metallic explosives. AIT is a proven
technology based on laboratory testing and field experience and is an
essential component of TSA's security screening because it provides the
best opportunity to detect metallic and non-metallic anomalies
concealed under clothing without the need to touch the passenger. Since
it began using AIT, TSA has been able to detect many kinds of non-
metallic items, small items, and items concealed on parts of the body
that would not have been detected using the WTMD.
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\9\ Metal detectors and AITs are both designed to detect
metallic threats on passengers, but go about it in different ways.
Metal detectors rely on the inductance that is generated by the
metal, while AIT relies on the metal's reflectivity properties to
indicate an anomaly. AIT capabilities exceed metal detectors because
AIT can detect metallic/non-metallic weapons, non-metallic bulk
explosives, and non-metallic liquid explosives.
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II. Background
A. The Evolving Threat to Aviation Security
The need for security screening at airports dates back to the 1960s
when the most significant threat to aviation security was hijacking. To
combat this threat, metal detectors were installed at airports and used
by air carriers to detect firearms and other metallic weapons. In 1974,
Congress passed the Air Transportation Security Act,\10\ which directed
the Federal Aviation Administration (FAA) to require all passengers to
be screened by weapon-detecting devices, and conduct research to
develop and evaluate systems, procedures, facilities, and devices to
protect persons and property aboard aircraft. Since that time,
technological and procedural improvements have been implemented to keep
pace with evolving threats.
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\10\ Public Law 93-366.
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Following the events of September 11, 2001, it was clear that the
security screening at airports was insufficient to protect the
traveling public against the threat posed by Al Qaeda and other
terrorists who sought to harm the United States by targeting civil
aviation. In response to those events, TSA was created to ensure
freedom of movement
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for people and commerce by preventing terrorist attacks, reducing the
vulnerability of the United States to terrorism, and effectively
securing all modes of transportation, including aviation.
Pursuant to law, TSA is required to ``provide for the screening of
all passengers and property, including United States mail, cargo,
carry-on and checked baggage, and other articles, that will be carried
aboard a passenger aircraft * * *.'' \11\ Regulations restricting the
carriage of weapons, explosives, and incendiaries on an individual's
person or accessible property and requiring individuals to submit to
the screening and inspection of their person and accessible property
prior to entering a sterile area or boarding an aircraft were
transferred from FAA to TSA in February 2002.\12\ TSA took over
operation of the screening checkpoints from the air carriers and began
instituting additional protocols and new equipment to detect
individuals and items that could pose a threat to aviation security.
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\11\ 49 U.S.C. 44901.
\12\ See 49 CFR 1540.107 and 1540.111.
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The FAA had begun exploring AIT in the mid-1990s and started
testing and evaluating AIT in 2000. Once TSA was established, the
evaluation of AIT and other technology that could detect metallic and
non-metallic threats continued. TSA began testing early AIT equipment
and protocols to evaluate the size of the units, image quality,
detection capabilities, safety, and other operational issues.
Since September 11, 2001, the nature of the threat to
transportation security has evolved as terrorists continue to test our
security measures in an attempt to find and exploit vulnerabilities. As
the recent instances described below demonstrate, non-metallic
explosives have become one of the greatest threats to aviation
security. TSA has responded to the developing threats by deploying new
screening protocols and increasing its use of technology to improve its
ability to detect weapons, explosives, and incendiaries.
On December 22, 2001, on board an airplane bound for the United
States, Richard Reid attempted to detonate a non-metallic bomb
concealed in his shoe. Following this terrorist attempt, screening
procedures were revised by enhancing the screening of footwear.
In 2004, terrorists mounted a successful attack on two domestic
Russian passenger aircraft using explosives that were concealed on the
torsos of female passengers. TSA responded to this demonstrated
security vulnerability by implementing a variety of enhancements to its
standard operating procedures. Revised pat-down protocols that
increased the thoroughness of pat-downs on the female torso were among
the enhancements implemented to improve the ability to detect
explosives concealed on the body.
In 2006, terrorists in the United Kingdom plotted to bring on board
aircraft liquid explosives that would be used to construct and detonate
a bomb while in flight. Following this threat, TSA again adjusted its
security procedures by limiting the amount of liquids that could be
brought on board aircraft and enhancing the screening of liquids,
aerosols, and gels. TSA also deployed technology to improve detection
of liquid explosives.
On December 25, 2009, a bombing plot by Al Qaeda in the Arabian
Peninsula (AQAP) culminated in Umar Farouk Abdulmutallab's attempt to
blow up an American aircraft over the United States using a non-
metallic explosive device hidden in his underwear. TSA's pat-down
procedures then in effect may not have detected the device. TSA
modified its screening procedures to improve its ability to detect
explosives hidden in an area of the body that previously was not
thoroughly searched and hastened to expand deployment of AIT to improve
its ability to detect non-metallic explosives concealed on the body
through the use of technology, rather than the pat-down.\13\
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\13\ On January 7, 2010, the President issued a ``Presidential
Memorandum Regarding 12/25/2009 Attempted Terrorist Attack,'' which
charged TSA with aggressively pursuing enhanced screening technology
in order to prevent further such attempts, while at the same time
protecting passenger privacy. A copy of that memorandum is available
in the docket for this rulemaking and can be found at http://www.whitehouse.gov/the-press-office/presidential-memorandum-regarding-12252009-attempted-terrorist-attack.
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In October 2010, AQAP attempted to destroy two airplanes in flight
using non-metallic explosives hidden in two printer cartridges. TSA
immediately instituted new screening requirements for cargo bound for
the United States.
In May 2012, AQAP developed another non-metallic explosive device
that could be hidden in an individual's underwear and detonated while
on board an aircraft. Fortunately, this device was obtained by an
undercover operative and was not given to a potential suicide bomber.
The device was provided to the Federal Bureau of Investigation for
technical and forensic analysis and the results indicate that
terrorists have modified certain characteristics of the bomb in
comparison with the December 25, 2009 bomb in an attempt to avoid the
2009 bombing attempt's design failure.
As evidenced by the incidents described above, TSA operates in a
high-threat environment. Terrorists look for security gaps or
exceptions to exploit. The device used in the December 25, 2009 attempt
is illustrative. It was cleverly constructed and intentionally hidden
on a sensitive part of the body to avert detection. If this attack were
successful as planned, the lives of the almost 300 passengers and crew
and potentially people on the ground would have been in jeopardy.
As these examples of the real and ever-evolving threats to aviation
security demonstrate, non-metallic explosives are now one of the
foremost known threats to passenger aircraft. The best defense against
these and other terrorist threats remains a risk-based, layered
security approach that uses a range of screening measures, both seen
and unseen. This includes the use of AIT, which is proven technology
for identifying non-metallic explosives during passenger screening,
such as the device Umar Farouk Abdulmutallab attempted to detonate on
Christmas Day 2009. TSA requests comment on the threat to aviation
security described above and the risk-based, layered security approach
it has adopted.
B. Layers of Security
TSA deploys approximately 50,000 Transportation Security Officers
(TSOs) at more than 446 domestic airports with over 700 security
checkpoints to screen nearly 2 million passengers each day using
various screening methods and technologies. Although the airport
checkpoints are the most visible layer of security used by TSA, TSA
also relies extensively on intelligence regarding potential and actual
terrorist threats to inform and identify what security measures are
necessary to meet the nature of those threats. Other security layers
include checking passenger manifests against records from the
Government known or suspected terrorist watch lists through TSA's
Secure Flight program, examining identity and travel documents, using
explosives detection systems, and conducting random security operations
at the checkpoint and throughout the airport.
Because even the best intelligence does not identify in advance
every individual who would seek to do harm to passengers, aviation
security, and the United States, TSA must rely on the security
expertise of its frontline personnel--TSOs, Federal Air Marshals,
Transportation Security Specialists-Explosives, Behavior Detection
Officers,
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and explosives detection canine teams, among others--to help prevent
acts of terrorism.
Effective technology is an essential component of TSA's arsenal of
tools to detect and deter threats against our nation's transportation
systems. Since its creation, TSA has deployed an increasingly
sophisticated range of next generation detection equipment--including
bottled liquid scanners, advanced technology x-ray systems, explosives
trace detection (ETD) units, and AIT--as the threats to aviation
security change and become more sophisticated. As recent history
illustrates, TSA changes its screening equipment and procedures as
needed to respond to evolving threats based on experience and the
latest intelligence. TSA's layered approach and its ability to deploy
new security methods to respond to the latest threats are necessary to
provide adequate security for the traveling public. Advanced Imaging
Technology currently provides the best opportunity to detect metallic
and non-metallic threats concealed on the body under clothing without
physical contact.\14\
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\14\ In September 2012, TSA initiated a limited procurement for
next generation AIT units for the purpose of testing such units in a
laboratory environment. The outcome of the testing will determine if
the units will proceed to testing in an airport environment. TSA
anticipates that next generation AIT units will have enhanced
detection capabilities, faster passenger throughput, and a smaller
footprint.
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C. Congressional Direction To Pursue AIT
In 2004, Congress directed TSA to continue to explore the use of
new technologies to improve its threat detection capabilities.\15\
Specifically, the law provides:
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\15\ 49 U.S.C. 44925.
Deployment and use of detection equipment at airport screening
checkpoints
Weapons and explosives.--The Secretary of Homeland
Security shall give a high priority to developing, testing,
improving, and deploying, at airport screening checkpoints,
equipment that detects nonmetallic, chemical, biological, and
radiological weapons, and explosives, in all forms, on individuals
and in their personal property * * * the types of weapons and
explosives that terrorists would likely try to smuggle aboard an air
carrier aircraft.
[The TSA Administrator shall submit] * * * a strategic
plan to promote the optimal utilization and deployment of explosive
detection equipment at airports to screen individuals and their
personal property. Such equipment includes walk-through explosive
detection portals, document scanners, shoe scanners, and backscatter
x-ray scanners.
Additional references in congressional reports accompanying
appropriations and authorizing legislation demonstrate Congress'
continued direction to DHS and TSA to pursue enhanced screening
technologies and imaging technology, including:
(1) Explanatory Statement, House Appropriations Committee Print for
Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009 (FY09 DHS Appropriations) Pub. L. 110-329 at
p. 640:
The bill provides $250,000,000 for Checkpoint Support to deploy
a number of emerging technologies to screen airline passengers and
carry-on baggage for explosives, weapons, and other threat objects
by the most advanced equipment currently under development. TSA is
directed to spend funds on multiple whole body imaging technologies
including backscatter and millimeter wave as directed in the Senate
report.
(2) H. Rep. 110-862 at p. 64, FY09 DHS Appropriations:
Over the past year, TSA has made some advances in testing,
piloting, and deploying next-generation checkpoint technologies that
will be used to screen airline passengers and carry-on baggage for
explosives, weapons, and other threats. Even with this progress,
however, additional funding is necessary to expedite pilot testing
and deployment of advanced checkpoint explosive detection equipment
and screening techniques to determine optimal deployment as well as
preferred operational and equipment protocols for these new systems.
Eligible systems may include, but are not limited to, advanced
technology screening systems; whole body imagers; * * * The
Committee expects TSA to give the highest priority to deploying
next-generation technologies to designated Tier One threat airports.
(3) S. Rep. 110-396 at p. 60, FY09 DHS Appropriations:
WHOLE BODY IMAGERS. The Committee is fully supportive of
emerging technologies at passenger screening checkpoints, including
the whole body imaging program currently underway at Category X
airports. These technologies provide an increased level of screening
for passengers by detecting explosives and other non-metal objects
that current checkpoint technologies are not capable of detecting.
The Committee directs that funds for whole body imaging continue to
be spent by TSA on multiple imaging technologies, including
backscatter and millimeter wave.
(4) H. Rep.110-259, at Web page 363, Conference Report to
Implementing Recommendations of 9/11 Commission Act of 2007, Pub. L.
110-53, sec. 1601--Airport checkpoint screening fund:
The National Commission on Terrorist Attacks Upon the United
States (the 9/11 Commission) asserted that while more advanced
screening technology is being developed, Congress should provide
funding for, and TSA should move as expeditiously as possible to
support, the installation of explosives detection trace portals or
other applicable technologies at more of the nation's commercial
airports. Advanced technologies, such as the use of non-intrusive
imaging, have been evaluated by TSA over the last few years and have
demonstrated that they can provide significant improvements in
threat detection at airport passenger screening checkpoints for both
carry-on baggage and the screening of passengers. The Conference
urges TSA to deploy such technologies quickly and broadly to address
security shortcomings at passenger screening checkpoints.\16\
\16\ See also, sec. 109 of the Aviation and Transportation
Security Act (ATSA), Public Law 107-71 (2001), as amended by sec.
1403(b) of the Homeland Security Act of 2002, Public Law 107-296,
``(7) Provide for the use of voice stress analysis, biometric, or
other technologies to prevent a person who might pose a danger to
air safety or security from boarding the aircraft of an air carrier
or foreign air carrier in air transportation or intrastate air
transportation'' and Title IV of the American Recovery and
Reinvestment Act of 2009, Public Law 111-5 ``* * * for procurement
and installation of checked baggage explosives detection systems and
checkpoint explosives detection equipment.''
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D. U.S. Court of Appeals Decision in EPIC v. DHS
In July 2010, the EPIC petitioned the U.S. Court of Appeals for the
District of Columbia Circuit for review of TSA's use of AIT as a
primary screening device to screen airline passengers. EPIC argued that
the use of AIT violated various federal statutes and the Fourth
Amendment to the Constitution and should have been the subject of
notice-and-comment rulemaking.
The Court of Appeals issued a decision on July 15, 2011, which
rejected nearly all of EPIC's claims.\17\ In ruling on EPIC's Fourth
Amendment claim, the Court held that screening passengers at an airport
is an administrative search that does not rely on individualized
suspicion. ``Instead, whether an administrative search is
`unreasonable' within the condemnation of the Fourth Amendment `is
determined by assessing, on the one hand, the degree to which it
intrudes upon an individual's privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental
interests'.'' \18\
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\17\ Electronic Privacy Information Center v. U.S. Department of
Homeland Security, 653 F.3d 1 (D.C. Cir. 2011).
\18\ Id. at 10 (quoting United States v. Knights, 534 U.S. 112,
118-119 (2001)).
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The Court found that the ``balance clearly favors the Government
here.'' \19\ The Court recognized the clear need for AIT screening, and
the advantages the AIT provides over the WTMD. The Court stated that
``[t]he need to search
[[Page 18293]]
airline passengers `to ensure public safety can be particularly acute'
and, crucially, an AIT scanner, unlike a magnetometer, is capable of
detecting, and therefore of deterring, attempts to carry aboard
airplanes explosives in liquid or powder form.'' \20\
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\19\ Id.
\20\ Id. (quoting City of Indianapolis v. Edmond, 531 U.S. 32,
47-48) (internal citation omitted).
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As explained in the decision, the AIT scanners then in use produce
a ``crude image of an unclothed person * * *.''\21\ In rejecting EPIC's
privacy argument, the Court recognized that TSA has taken steps:
\21\ Id. at 3.
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[T]o mitigate the effect a scan using AIT might have upon
passenger privacy: Each image produced by a scanner passes through a
filter to obscure facial features and is viewable on a computer
screen only by an officer sitting in a remote and secure room. As
soon as the passenger has been cleared, moreover, the image is
deleted; the officer cannot retain the image on his computer, nor is
he permitted to bring a cell phone or camera into the secure
room.\22\
\22\ Id. at 4.
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The Court also noted that three Privacy Impact Assessments (PIAs)
of the AIT program had been completed and were sufficient. ``[T]he
petitioners make no more specific objection that would enable us to
disturb the [Chief Privacy Officer's] conclusion that the privacy
protections built into the AIT program are sufficiently `strong'.''
\23\
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\23\ Id. at 9.
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In its decision, the Court acknowledged that Congress authorized
TSA to prescribe the details of the screening process. The Court noted
that ``Congress did * * * in 2004, direct the TSA to `give a high
priority to developing, testing, improving, and deploying' at airport
screening checkpoints a new technology `that detects nonmetallic,
chemical, biological, and radiological weapons, and explosives, in all
forms'.'' \24\ The Court observed that TSA responded to this directive
through the development and procurement of AIT scanners, which enable
the operator of the machine to detect non-metallic objects, such as a
liquid or powder, which a metal detector cannot detect, without
touching the passengers coming through the checkpoint.\25\
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\24\ Id. at 3 (quoting sec. 4013 of the Intelligence Reform and
Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3719).
\25\ Id.
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TSA tested the use of AIT machines in 2009 for primary screening at
a limited number of airports. The Court acknowledged that ``based on
the apparent success of the test, the TSA decided early in 2010 to use
the scanners everywhere for primary screening.'' \26\ The Court also
pointed out that passengers are not required to go through the AIT
screening process. The Court stated ``no passenger is ever required to
submit to an AIT scan * * * [and] signs at the security checkpoint
notify passengers they may opt instead for a patdown.'' \27\ The Court
also rejected EPIC's claims that the AIT is unlawful under the Video
Voyeurism Prevention Act and the Religious Freedom Restoration Act.
---------------------------------------------------------------------------
\26\ Id.
\27\ Id.
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In ruling on EPIC's Administrative Procedure Act claim, the Court
determined that TSA did not justify ``its failure to initiate notice-
and-comment rulemaking before announcing it would use AIT scanners for
primary screening.'' \28\ Even though privacy precautions had been
implemented, the Court stated ``it is clear that by producing an image
of the unclothed passenger, an AIT scanner intrudes upon * * * personal
privacy in a way a magnetometer does not.'' \29\ Thus, the Court found
the use of the AIT in primary screening ``substantively affects the
public to a degree sufficient to implicate the policy interests
animating notice-and-comment rulemaking.'' \30\ The Court did not
require TSA to stop using AIT. ``[D]ue to the obvious need for the TSA
to continue its airport security operations without interruption, we
remand the rule to the TSA but do not vacate it * * * .'' \31\
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\28\ Id.
\29\ Id. at 6.
\30\ Id.
\31\ Id. at 8.
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III. AIT Screening Protocols
A. Types of AIT Equipment
TSA engaged in extensive laboratory and operational testing before
approving the two types of AIT equipment initially deployed. In
February 2007, TSA initiated a pilot operation at an airport to test
AIT detection capability in the secondary screening position for
aviation passengers who set off the alarm of the WTMD. In January 2008,
TSA published a PIA to cover AIT screening of all passengers at the
security screening checkpoint. Throughout 2007 and 2008, additional AIT
units were tested in the secondary screening position and TSA continued
to evaluate different types of AIT equipment, including both general-
use x-ray backscatter and millimeter wave. In 2009, TSA began to
evaluate using AIT in the primary screening position as an alternative
to WTMD.\32\ Deploying AIT in the primary position to screen all
passengers for both metallic and non-metallic threats allows TSA to use
the technology to its full capability. In February 2010, TSA submitted
a report to Congress on privacy protections and deployment of AIT.\33\
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\32\ In addition to the AIT equipment described below, TSA
evaluated infrared (IR) technology, which scans for temperature
differences on the body's surface or for temperature imbalances
between the body, clothes, and any hidden objects.
\33\ ``Advanced Imaging Technologies: Passenger Privacy
Protections,'' Fiscal Year 2010 Report to Congress, February 25,
2010.
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TSA has compared AIT to other transportation security equipment and
manual processes, including ETD, WTMD, and pat-downs. Based on the
testing results, TSA determined that AIT currently offers the best
opportunity to detect both metallic and non-metallic threat items
concealed underneath clothing, such as the explosives carried by Mr.
Abdulmutallab, without physical contact.
One type of AIT equipment initially deployed by TSA, the Rapiscan
Secure 1000, uses backscatter technology. Unlike a traditional x-ray
machine, which relies on the transmission of x-rays through an object,
general-use backscatter technology projects low level x-ray beams over
the body surface at high speed. The reflection or ``backscatter'' of
the beam is detected and digitized to create an image.\34\
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\34\ An example of the image produced by the backscatter
technology is posted on TSA's Web site at http://www.tsa.gov/travelers-guide/ait-how-it-works.
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The L-3 ProVision, another type of AIT equipment currently deployed
by TSA, uses millimeter-length radio waves. Millimeter wave technology
bounces electromagnetic waves off of the human body to detectors in the
machine, which a computer then interprets in order to create a black
and white image.\35\
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\35\ See ``Safety of AIT'' for a discussion of the safety of the
millimeter wave equipment. The Food and Drug Administration has
found that millimeter wave is safe and states on its Web site that
``[m]illimeter wave security systems which comply with the limits
set in the applicable national non-ionizing radiation safety
standard * * * cause no known adverse health effects.'' http://www.fda.gov/Radiation-EmittingProducts/RadiationEmittingProductsandProcedures/SecuritySystems/ucm227201.htm#2.
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Working with the DHS Science & Technology Directorate and private
industry, TSA began testing ATR software in 2010. Automatic Target
Recognition software generates a generic outline and not an individual
image.\36\
[[Page 18294]]
In July 2011, TSA began installing ATR software on millimeter wave AIT
units and completed installation on all millimeter wave units currently
in use. This advancement significantly enhances privacy by eliminating
the passenger-specific images referred to in the EPIC v. DHS decision.
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\36\ Examples of the generic outline that the ATR software
produces are available on TSA's Web site at http://www.tsa.gov/travelers-guide/ait-how-it-works.
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As part of the Federal Aviation Administration Modernization and
Reform Act of 2012, Congress mandated that all AIT units must be
equipped with ATR by June 1, 2012.\37\ As permitted by law, the
deadline was extended to June 1, 2013. While all of the millimeter wave
units have been equipped with the ATR software, Rapiscan was unable to
develop ATR software that would work on the general-use backscatter
units. As a result, TSA terminated its Rapiscan ATR delivery order and
all Rapiscan general-use backscatter AIT units currently deployed at
TSA checkpoints are being removed from operation by Rapiscan.\38\ By
June 1, 2013, only AIT equipped with ATR will be used at TSA
checkpoints.
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\37\ Public Law 112-95.
\38\ http://blog.tsa.gov/2013/01/rapiscan-backscatter-contract.html.
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TSA will continue to evaluate current AIT systems and associated
screening procedures, as well as any new technologies and procedures
that may be considered for deployment, to ensure that they are safe and
meet all relevant government and consensus industry standards, are
effective against established and anticipated threats, and require the
least disruption and intrusion on passenger privacy possible.
B. Privacy Safeguards for AIT
The use of ATR software enhances passenger privacy by eliminating
images of individual passengers, as well as the need for a TSO to view
the individual images to identify anomalies.\39\ Automatic Target
Recognition software auto-detects anomalies concealed on the body and
displays these on a generic outline, which is viewable on a screen
located on the AIT equipment. These anomalies are then resolved through
additional screening. Automatic Target Recognition-enabled units
deployed at airports are not capable of storing or printing the generic
outline that will be visible to passengers. TSA has installed the
software on all currently-deployed millimeter wave units. As noted
above, AIT units without ATR software are being removed from operation
and only ATR-equipped AIT units will be used at the checkpoint as of
June 1, 2013.
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\39\ Before the installation of ATR software, TSA required that
all millimeter wave machines blur the face of the passenger.
---------------------------------------------------------------------------
Section 222 of the Homeland Security Act requires that the Privacy
Office assure that the use of technologies sustain and do not erode
privacy protections relating to the use, collection, and disclosure of
personal information, and to conduct a privacy impact assessment (PIA)
for proposed rules impacting the privacy of personal information (6
U.S.C. 142). Even before the development of the ATR software, TSA
instituted rigorous safeguards to protect the privacy of individuals
who are screened using AIT. In addition, as noted by the Court in EPIC
v. DHS, the DHS Chief Privacy Officer has conducted several PIAs on the
use of AIT equipment to ensure that the public's privacy concerns
related to AIT screening are adequately addressed. These PIAs meet the
requirements of section 222 for this NPRM and describe the strict
measures TSA uses to protect privacy.\40\ To the extent that TSA
receives substantive comments on privacy issues related to the use of
AIT, they will be addressed in the final rule and any resulting changes
will be addressed appropriately in a revised PIA.
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\40\ The most recent update to the PIA is posted on the DHS Web
site at http://www.dhs.gov/xlibrary/assets/privacy/privacy-pia-tsa-ait.pdf and is available in the docket for this rulemaking.
---------------------------------------------------------------------------
While graphic images purportedly from TSA's AIT machines have been
circulated in the media, those images were not the type produced by
TSA's AIT equipment. Neither of the AIT technologies that have been
used by TSA produced photographs or images that would enable personal
identification. As deployed by TSA, neither technology is able to
store, print, or export any image.
When using the backscatter technology, TSA requirements dictated
that a filter be applied to prevent a detailed image of an individual.
In addition, the images were viewed by a trained TSO in a locked,
remote location. The anonymity of the individual being screened was
preserved, since the TSO assisting the individual at the AIT unit never
saw the image, and the TSO viewing the image never saw the individual
being screened. No TSA personnel were permitted to view both the image
and the individual. The backscatter units did not store, print, or
export any images. Storage capability was disabled prior to deployment,
and TSA airport personnel were not able to activate the storage
capability. In addition, the backscatter images were transmitted
securely between the unit and the viewing room so they could not be
lost, modified, or disclosed. The images produced by the backscatter
units were encrypted during transmission. The images were deleted from
the screen in the viewing room when the individual was cleared. TSOs in
the viewing room were prohibited from bringing electronic devices such
as cameras, cell phones, or other recording devices into the room.
Violations of these procedures subjected the TSO to disciplinary
action, which included termination.
To give further effect to the Fair Information Practice Principles
that are the foundation for privacy policy and implementation at DHS,
individuals may opt-out of the AIT in favor of physical screening. TSA
provides notice of the use of AIT and the opt-out option at the
checkpoint so that individuals may exercise an informed judgment on
AIT. Signs are posted that explain the technology and state ``use of
this technology is optional. If you choose not to be screened by this
technology you will receive a thorough pat down.''\41\ TSA requests
comment on the privacy safeguards discussed above and on the ability of
passengers to opt-out of AIT screening.
---------------------------------------------------------------------------
\41\ See AIT Signs at http://www.tsa.gov/ait-how-it-works.
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C. Safety of AIT
AIT equipment has been subject to extensive testing that has
confirmed that it is safe for individuals being screened, equipment
operators, and bystanders.\42\ The exposure to ionizing x-ray beams
emitted by the backscatter machines that are being removed pursuant to
statute, as well as the non-ionizing electromagnetic waves from the
millimeter wave machines is well within the limits allowed under
relevant national health and safety standards. Prior to procuring and
deploying both backscatter and millimeter wave AIT equipment, TSA
tested the units to determine whether they would be safe for use in
passenger screening. As explained further below, TSA determined that
the general-use backscatter and millimeter wave technologies were safe
for use in screening the public because the x-ray and radio waves
emissions were so low as to present a negligible risk to passengers,
airline crew members, airport employees, and TSA employees.
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\42\ See AIT: Safety at http://www.tsa.gov/ait-safety.
---------------------------------------------------------------------------
1. Millimeter Wave Units
The millimeter wave AIT systems that will be the only technology
deployed at
[[Page 18295]]
the checkpoint as of June 1, 2013 use non-ionizing radio frequency
energy in the millimeter wave spectrum to generate a three-dimensional
image based on the energy reflected from the body. Millimeter wave
imaging technology meets all known national and international health
and safety standards. In fact, the energy emitted by millimeter wave
technology is 1,000 times less than the international limits and
guidelines. The millimeter wave AIT systems that TSA uses must comply
with the 2005 Institute of Electrical and Electronics Engineers, Inc.
Standard for Safety Levels with Respect to Human Exposure to Radio
Frequency Electromagnetic Fields (IEEE Std. C95.1TM-2005) as
well as the International Commission on Non-Ionizing Radiation
Protection Guidelines for Limiting Exposure to Time-Varying Electric,
Magnetic, and Electromagnetic Fields, Health Physics 74(4); 494-522,
published April 1998. TSA's millimeter wave units are also consistent
with Federal Communications Commission OET Bulletin 65, Health Canada
Safety Code 6, and RSS-102 Issue 3 for Canada. The FDA has also
confirmed that millimeter wave security systems that comply with the
IEEE Std. C95.1TM-2005 cause no known adverse health
effects.\43\
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\43\ http://www.fda.gov/Radiation-EmittingProducts/RadiationEmittingProductsandProcedures/SecuritySystems/ucm227201.htm.
---------------------------------------------------------------------------
2. Backscatter Units
As required by statute, TSA will remove all currently deployed
Rapiscan backscatter units by May 31, 2013. When in use, TSA addressed
potential health concerns regarding the ionizing radiation emitted by
general-use backscatter technology. TSA's procurement specifications
required that the backscatter units must conform to the consensus
radiation safety standard of the American National Standards Institute
(ANSI) \44\ and Health Physics Society (HPS) \45\ for the design and
operation of security screening systems that use ionizing radiation.
That standard is ANSI/HPS N43.17, which was first published in 2002 and
revised in 2009.\46\
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\44\ ANSI is a private, non-profit organization that administers
and coordinates the U.S. voluntary standards and conformity
assessment system. The Institute oversees the development and use of
voluntary consensus standards by providing neutral, third-party
accreditation of the procedures used by standards developing
organizations, and approving their documents as American National
Standards.
\45\ HPS is a scientific organization of professionals who
specialize in radiation safety. Its mission is to support its
members and to promote excellence in the science and practice of
radiation safety. As an independent nonprofit scientific
organization, HPS is not affiliated with any government or
industrial organization or private entity.
\46\ American National Standard, ``Radiation Safety for
Personnel Security Screening Systems Using X-Ray or Gamma
Radiation,'' ANSI/HPS N43.17 (2009); Health Physics Society, McLean,
VA. Copies can be ordered at: http://webstore.ansi.org/faq.aspx#resellers.
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The annual dose limits in ANSI/HPS N43.17 are based on dose limit
recommendations for the general public published by the National
Council on Radiation Protection and Measurements \47\ in Report 116,
``Limitations of Exposure to Ionizing Radiation.'' \48\ The dose limits
were set with consideration given to individuals, such as pregnant
women, children, and persons who receive radiation treatments, who may
be more susceptible to radiation health effects. Further, the standard
also takes into consideration the fact that individuals are
continuously exposed to ionizing radiation from the environment. ANSI/
HPS N43.17 sets the maximum permissible dose of ionizing radiation from
a general-use system per security screening at 0.25 microsieverts.\49\
The standard also requires that individuals should not receive 250
microsieverts or more from a general-use x-ray security screening
system in a year.
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\47\ The National Council on Radiation Protection and
Measurements was founded in 1964 by Congress to cooperate with the
International Commission on Radiological Protection, the Federal
Radiation Council, the International Commission on Radiation Units
and Measurements, and other national and international
organizations, both governmental and private, concerned with
radiation quantities, units, and measurements as well as radiation
protection.
\48\ Copies of the report can be ordered at: http://www.ncrppublications.org/Reports/116.
\49\ The biological effect of radiation is measured in sieverts.
One sievert equals 1,000 millisieverts and one millisievert equals
1,000 microsieverts.
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The radiation dose (effective dose) a passenger receives from a
general-use backscatter AIT screening has been independently evaluated
by the Food and Drug Administration's (FDA's) Center for Devices and
Radiological Health, the National Institute for Standards and
Technology, and the Johns Hopkins University Applied Physics
Laboratory. All results affirmed that the effective dose for
individuals being screened, operators, and bystanders was well below
the dose limits specified by ANSI/HPS N43.17.\50\ These results were
confirmed in a report issued by the DHS Office of Inspector General
(OIG) in February 2012.\51\ The OIG report found that the independent
surveys show that backscatter radiation levels are below the
established limits and that TSA complied with ANSI/HPS N43.17.
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\50\ TSA's Web site at http://www.tsa.gov/travelers-guide/ait-safety contains many articles and studies that discuss AIT safety,
including a description of the built-in safety features of the
Rapiscan Secure 1000, an Archives of Internal Medicine report on the
risks of imaging technology, the FDA evaluation of backscatter
technology, and other independent safety assessments of AIT.
\51\ Department of Homeland Security, Office of Inspector
General, ``Transportation Security Administration's Use of
Backscatter Units,'' OIG-12-38, February 2012.
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Typical doses from backscatter machines are no more than 0.05
microsieverts per screening, well below the ANSI/HPS N43.17 maximum
dosage of 0.25 microsievert per screening. An individual would have to
have been screened by the Rapiscan Secure 1000 more than 13 times daily
for 365 consecutive days before exceeding the ANSI/HPS standard.
By comparison, a traveler would have to be screened via Rapiscan/
backscatter AIT 2,000 times to equal the dosage received in a single
chest x-ray, which delivers 100 microsieverts of ionizing radiation. A
typical bite-wing dental x-ray of 5 microsieverts would be equivalent
to 100 backscatter screenings, and a two-view mammogram that delivers
360 microsieverts would be equivalent to 7,200 backscatter
screenings.\52\ A passenger flying one-way from Washington, DC to Los
Angeles is exposed to approximately 19.1 microsieverts of ionizing
radiation over the course of the 4.7 hour flight.\53\
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\52\ HPS Fact Sheet: Radiation Exposure from Medical Exams and
Procedures, January 2010, http://hps.org/documents/Medical_Exposures_Fact_Sheet.pdf.
\53\ Federal Aviation Administration, ``What Aircrews Should
Know About Their Occupational Exposure to Ionizing Radiation,'' DOT-
FAA-AM-03-1 (October 2003) at p. 9. Available at: http://www.faa.gov/data_research/research/med_humanfacs/oamtechreports/2000s/media/0316.pdf.
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ANSI/HPS also reflects the standard for a negligible individual
dose of radiation established by the National Council on Radiation
Protection and Measurements at 10 microsieverts per year. Efforts to
reduce radiation exposure below the negligible individual dose are not
warranted because the risks associated with that level of exposure are
so small as to be indistinguishable from the risks attendant to
environmental radiation that individuals are exposed to every day.\54\
The level of radiation issued by the Rapiscan Secure 1000 is so low
that most passengers would not have exceeded even the negligible
individual
[[Page 18296]]
dose. In fact, an individual would have to be screened more than 200
times a year by a Rapiscan Secure 1000 before he or she would exceed
the negligible individual dose and, even then, the exposure would be
below the ANSI/HPS N43.17 standard.
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\54\ The World Health Organization estimates that each person is
exposed, on average, to 2.4 millisieverts (i.e., 2400 microsieverts)
of ionizing radiation each year from natural sources. www.who.int/ionizing_radiation/about/what_is_ir/en/index2.html.
---------------------------------------------------------------------------
The European Commission released a report conducted by the
Scientific Committee on Emerging and Newly Identified Health Risks
(SCENIHR) on the risks related to the use of security scanners for
passenger screening that use ionizing radiation such as the general-use
backscatter AIT machines.\55\ The committee found no short term health
effects that can result from the doses of radiation delivered by
security scanners. In the long term, it found that the potential cancer
risk cannot be estimated, but is likely to remain so low that it cannot
be distinguished from the effects of other exposures including both
ionizing radiation from other natural sources, and background risk due
to other factors.
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\55\ The SCENIHR is an independent committee that provides the
European Commission with the scientific advice it needs when
preparing policy and proposals relating to consumer safety, public
health and the environment. The committee is made up of external
experts. The report can be found at http://ec.europa.eu/health/scientific_committees/emerging/docs/scenihr_o_036.pdf.
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The ANSI/HPS N43.17 standard also requires that any general-use
backscatter machine have safety interlocks to terminate emission of x-
rays in the event of any system problem that could result in abnormal
or unintended radiation emission. The Rapiscan Secure 1000 had three
such features. First, the unit was designed to cease x-ray emission
once the programmed scan motion ends. That feature could not be
adjusted. Second, the unit was programmed to terminate emission once
the requiWeb site number of lines of data necessary to create an image
was received. Both of these automatic features reduced the possibility
that emissions could continue if the unit malfunctions. Finally, the
unit had an emergency stop button that would terminate x-ray emission.
Upon installation, a radiation emission survey was conducted on
each Rapiscan Secure 1000 to ensure the unit operated properly.
Preventive maintenance checks, including radiation safety surveys, were
performed at least once every six months; after any maintenance that
affected the radiation shielding, shutter mechanism, or x-ray
production components; after any incident where damage was suspected;
or after a unit was moved. The U.S. Army Public Health Command also
conducted an independent radiation survey on deployed systems. The
report confirmed that the general-use backscatter units tested were
well within applicable national safety standards.\56\
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\56\ The report is available on TSA's Web site at http://www.tsa.gov/travelers-guide/ait-safety.
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The DHS Office of the Chief Procurement Officer is also requesting
the National Academy of Sciences to review previous studies as well as
the current processes used by DHS and equipment manufacturers to
estimate radiation exposure resulting from general-use backscatter
equipment and to provide a report on whether radiation exposures comply
with applicable health and safety standards and whether system design
operating procedures and maintenance procedures are appropriate.
D. AIT Procedures at the Checkpoint
TSA's regulations require that ``[i]ndividuals may not enter or be
present within a secured area, air operations area, security
identification display area, or sterile area without complying with the
systems, measures, or procedures used to control access to such
areas.'' \57\ In addition, ``[i]ndividuals may not enter a sterile area
or board an aircraft without submitting to the screening and inspection
of their person and accessible property in accordance with the
procedures being applied to control access to that area or the
aircraft.'' \58\ Federal law also requires that air carriers refuse to
transport a passenger who does not consent to a search of his person or
baggage,\59\ and authorizes air carriers to refuse to transport a
passenger or property the carrier decides is, or might be, inimical to
safety.\60\
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\57\ 49 CFR 1540.105(a)(2).
\58\ 49 CFR 1540.107(a).
\59\ 49 U.S.C. 44902(a), 49 CFR 1544.201(c).
\60\ 49 U.S.C. 44902(b).
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The specific security procedures, systems, or measures that TSA
deploys are included in its Standard Operating Procedures (SOPs). The
SOPs instruct the TSOs how to conduct the screening measures currently
in use. Terrorists continue to seek ways to thwart aviation security
measures and could use information on TSA procedures, such as the
instructions on how to operate AIT equipment and the AIT equipment
specifications, to plan and execute attacks. Therefore, the SOPs are
SSI and are not made public as such disclosure would prove detrimental
to transportation security.\61\
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\61\ SSI is defined in footnote 1.
---------------------------------------------------------------------------
In response to the decision in EPIC v. DHS, TSA is proposing to add
the following language to its current regulations at 49 CFR 1540.107,
quoted above, to specifically address AIT screening:
(d) The screening and inspection described in (a) may include
the use of advanced imaging technology. For purposes of this
section, advanced imaging technology is defined as screening
technology used to detect concealed anomalies without requiring
physical contact with the individual being screened.
In addition, TSA has posted information on its Web site on what
individuals can expect when submitting to AIT screening. AIT screening
is currently optional, but when opting out of AIT screening, a
passenger will receive a pat-down. When TSA deploys AIT equipment at a
screening lane, a sign is posted to inform the public that AIT may be
used as part of the screening process prior to passengers entering the
machine so that each passenger may exercise an informed decision on the
use of AIT. The sign also indicates that a passenger who chooses not to
be screened by AIT will receive a pat-down. However, TSA has found that
since 2009, fewer than two percent of passengers opt for a pat-down in
lieu of AIT screening.\62\
---------------------------------------------------------------------------
\62\ TSA's Web site describes the results of independent polling
on AIT acceptance showing strong public support for and
understanding of the need for AIT. See http://www.tsa.gov/ait-more-information. In addition, passengers with joint replacements or
other medical devices that would regularly set off the alarm on a
metal detector often prefer AIT because it is quicker and less
invasive than a pat-down. See http://www.tsa.gov/traveler-information/advanced-imaging-technology-ait. An internet campaign in
2010 failed in an attempt to disrupt checkpoint operations by urging
passengers to request a pat-down in lieu of AIT screening during the
Thanksgiving holiday travel period. See ``Opt Out Turns Into Opt
In,'' The TSA Blog, November 24, 2010, http://blog.tsa.gov/2010_11_24_archive.html.
---------------------------------------------------------------------------
TSA's Web site \63\ explains that AIT looks for any items, both
metallic and non-metallic, that might be anywhere on the body. It
recommends that individuals remove all items from pockets and their
person and place them in carry-on baggage prior to entering the
checkpoint. It notes that removal will lessen the chance that
additional screening will be required. The Web site also explains that
for AIT units not equipped with ATR, the TSO who views the image cannot
see the individual; while for AIT equipped with ATR software, the
screen with the generic outline is located on the scanner and is
visible to the passenger and the TSO. The Web site states that AIT is
optional.
---------------------------------------------------------------------------
\63\ http://www.tsa.gov/travelers-guide/ait-how-it-works.
---------------------------------------------------------------------------
After any items are removed, individuals are directed to enter the
[[Page 18297]]
AIT. Once inside, individuals are directed to stand with arms raised,
and to remain still for several seconds while the image is created.
When using AIT with ATR, the image is not an image of the individual
passenger, rather a generic outline that indicates where the anomaly is
detected. Individuals are directed to exit the opposite side of the
portal. Once the image is reviewed and any anomalies are resolved, the
image is deleted. This process usually takes less than a minute.
TSA has also refined its procedures to make sure that the screening
process addresses the needs of families. TSA never separates a child
from an accompanying adult and makes sure that the accompanying adult
observes the entire screening process. Advanced Imaging Technology is
safe for children, and children may undergo screening using AIT as long
as they are able to stand with their hands above their head for the
five to seven seconds needed to conduct the scan. However, TSA no
longer requires children who are 12 years old or younger to be screened
by AIT and will direct those passengers to the WTMD unless instructed
otherwise by an accompanying adult.\64\ TSA has also implemented
procedures to accommodate those passengers with disabilities and
medical conditions that make them ineligible for AIT screening because
they cannot stand in the necessary pose.
---------------------------------------------------------------------------
\64\ See Advanced Imaging Technology (AIT) at http://www.tsa.gov/traveler-information/traveling-children.
---------------------------------------------------------------------------
IV. Deployment of AIT
As of February 22, 2013, TSA has deployed over 800 AIT machines at
approximately 200 airports in the United States.\65\ TSA is removing
the 174 Rapiscan general-use backscatter units from its checkpoints and
by June 1, 2013, only units equipped with ATR software will be used to
conduct screening.
---------------------------------------------------------------------------
\65\ TSA maintains a list of airports that have AIT machines on
its Web site at http://www.tsa.gov/travelers-guide/ait-frequently-asked-questions.
---------------------------------------------------------------------------
Since it began using AIT, TSA has been able to detect many kinds of
non-metallic items, small items, and items concealed on parts of the
body that would not have been detected using metal detectors. Once an
anomaly is detected, additional screening is required to determine if
the item is prohibited.
Since January 2010, this technology has helped TSA officers detect
hundreds of prohibited, dangerous, or illegal items concealed on
passengers.\66\ TSA's procurement specifications require that any AIT
system must meet certain thresholds with respect to the detection of
anomalies concealed under an individual's clothing. While the detection
requirements of AIT are classified, the procurement specifications
require that any approved system be sensitive enough to detect smaller
items, such as a Web pager, wallet, or small bottle of contact lens
solution.
---------------------------------------------------------------------------
\66\ Remarks of TSA Administrator John S. Pistole, Homeland
Security Policy Institute, George Washington University, November
10, 2011.
---------------------------------------------------------------------------
Experience has confirmed that AIT will detect metallic and non-
metallic items, including material that could be in various forms
concealed under an individual's clothing. For example, a non-metallic
martial arts weapon called a ``Tactical Spike'' was discovered in the
sock of a passenger in Pensacola, Florida after being screened by
AIT.\67\ Advanced Imaging Technology is also effective in detecting
metallic items. In December, 2011, a loaded .38 caliber firearm in an
ankle holster was discovered during AIT screening of a passenger at
Detroit Metropolitan Airport.\68\ The versatility of AIT in detecting
both metallic and non-metallic concealed items without physical contact
makes it more effective than metal detectors as a tool to protect
transportation security.
---------------------------------------------------------------------------
\67\ ``TSA Week In Review: Non Metallic Martial Arts Weapon
Found with Body Scanner,'' http://blog.tsa.gov/2011/12/tsa-week-in-review-non-metallic-martial.html.
\68\ http://blog.tsa.gov/2011/12/loaded-380-found-strapped-to-passengers.html.
---------------------------------------------------------------------------
Some of the items discovered concealed on passengers during AIT
screening are small items, such as weapons made of composite, non-
metallic materials, including a three inch pocket knife hidden on a
passenger's back; little packets of powder, including a packet the size
of a thumbprint; and a syringe full of liquid hidden in a passenger's
underwear.\69\ A plastic dagger hidden in the hemline of a passenger's
shirt was detected using AIT \70\ and a plastic dagger concealed inside
a comb was detected in a passenger's pocket.\71\ Advanced Imaging
Technology's capability to identify these small items is important
because in addition to weapons and explosive materials, TSA also
searches for improvised explosive device components, such as timers,
initiators, switches, and power sources. Such items may be very small.
Advanced Imaging Technology enhances TSA's ability to find these small
items and further assists TSA in detecting threats.
---------------------------------------------------------------------------
\69\ ``Advanced Imaging Off To a Great Start,'' April 20, 2010,
at http://blog.tsa.gov/2010/04/advanced-imaging-technology-off-to.html and ``Advanced Imaging Technology--Yes, It's Worth It,''
March 31, 2010, at http://blog.tsa.gov/2010/03/advanced-imaging-technology-yes-its.html.
\70\ ``TSA Week in Review: Plastic Dagger Found With Body
Scanner,'' May 4, 2012, at http://blog.tsa.gov/2012/05/tsa-week-in-review-plastic-dagger-found.html.
\71\ ``TSA Week in Review: Comb Dagger Discovered With Body
Scanner, 28 Loaded Guns, and More,'' August 17, 2012 at http://blog.tsa.gov/2012/08/tsa-week-in-review-comb-dagger.html.
---------------------------------------------------------------------------
V. Rulemaking Analyses and Notices
A. Regulatory Evaluation Summary and Economic Impact Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order (E.O.) 12866, Regulatory Planning and
Review (58 FR 51735, October 4, 1993), as supplemented by E.O. 13563,
Improving Regulation and Regulatory Review (76 FR 3821, January 21,
2011), directs each Federal agency to propose or adopt a regulation
only upon a reasoned determination that the benefits of the intended
regulation justify its costs. Second, the Regulatory Flexibility Act of
1980 (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of 1996) requires agencies to
consider the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. Fourth, the Unfunded
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation).
B. Executive Orders 12866 and 13563 Assessment
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This rule is a
[[Page 18298]]
``significant regulatory action'' that is economically significant
under sec. 3(f)(1) of E.O. 12866. Accordingly, the Office of Management
and Budget (OMB) has reviewed this regulation.
In conducting these analyses, TSA has determined:
(1) This rulemaking is a ``significant regulatory action'' as
defined in the E.O.
(2) An Initial Regulatory Flexibility Analysis suggests this
rulemaking would not have a significant economic impact on a
substantial number of small entities.
(3) This rulemaking would not constitute a barrier to international
trade.
(4) This rulemaking does not impose an unfunded mandate on State,
local, or tribal governments, or on the private sector under UMRA.
These analyses, available in the docket, are summarized below. This
NPRM proposes to codify the use of AIT to screen passengers boarding
commercial aircraft for weapons, explosives, and other prohibited items
concealed on the body. These costs are incurred by airport operators,
the traveling public, Rapiscan, and TSA. Some airport operators incur
utility costs for the additional electricity consumed by AIT machines.
The small percentage of passengers (approximately one percent) who
choose to opt out of AIT screening will incur opportunity costs due to
the additional screening time needed to receive a pat-down. Rapiscan, a
company that manufactures AIT machines, will incur a cost to remove
backscatter AIT units in 2013 that have been deployed in previous
years.\72\ TSA incurs equipment costs associated with the life cycle of
AIT machines (testing, acquisition, maintenance, etc.); personnel costs
to hire TSOs to operate the AIT machines; utility costs at reimbursed
airports; and training costs to train TSOs to operate AIT, and to
detect and resolve any anomalies that may be discovered during AIT
screening.
---------------------------------------------------------------------------
\72\ On December 21, 2012, TSA terminated part of its contract
with Rapiscan for the Convenience of the Government because it could
not meet development related issues in regards to ATR by the
Congressionally-mandated June 2013 deadline. As a result of the
contract termination, Rapiscan will pay for the removal of all units
still in the field.
---------------------------------------------------------------------------
When estimating the cost of a rulemaking, agencies typically
estimate future expected costs imposed by a regulation over a period of
analysis. Because the AIT machine life cycle from deployment to
disposal is eight years, the period of analysis for estimating the cost
of AIT is also eight years. However, as AIT deployment began in 2008,
there are costs that have already been borne by airport operators, the
traveling public, and TSA that were not due to this rule. Consequently,
in the Initial Regulatory Impact Analysis for this rule, TSA is
reporting the AIT-related costs that have already occurred (years 2008-
2011), but TSA considers the additional cost of this rulemaking to be
years 2012-2015. By reporting the costs that have already happened and
estimating future costs in this manner, TSA will have considered and
disclosed the full eight-year life cycle of AIT deployment.
TSA reports that the net cost of AIT deployment from 2008-2011 has
been $841.2 million (undiscounted) and that TSA has borne over 99
percent of all costs related to AIT deployment. TSA projects that from
2012-2015 total AIT-related costs will be approximately $1.5 billion
(undiscounted), $1.4 billion at a three percent discount rate, and $1.3
billion at a seven percent discount rate. During 2012-2015, TSA
estimates it will also incur over 98 percent of AIT-related costs with
equipment and personnel costs being the largest categories of costs.
Table 4 below reports the costs that have already happened (2008-2011)
by cost category, while Table 5 shows the additional costs TSA is
attributing to this rulemaking (2012-2015). Table 6 shows the total
cost of AIT deployment from 2008 to 2015.
---------------------------------------------------------------------------
\73\ TSA removed costs related to WTMD that would have occurred
regardless of AIT deployment to obtain an estimated net cost for
AIT.
Table 4--Net Cost \73\ Summary of AIT Deployment From 2008-2011 by Cost Component
[Costs already incurred in $ thousands--undiscounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
TSA costs
Year Passenger Industry ---------------------------------------------------- Total
opt outs utilities Personnel Training Equipment Utilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008......................................................... $7.0 $5.7 $14,689.1 $389.5 $37,425.2 $18.8 $52,535.3
2009......................................................... 32.2 5.7 15,618.6 88.0 42,563.6 20.4 58,328.5
2010......................................................... 262.2 158.2 247,566.7 5,332.8 119,105.4 241.4 372,666.6
2011......................................................... 1,384.2 186.7 284,938.7 15,354.4 55,567.2 269.1 357,700.2
------------------------------------------------------------------------------------------
Total.................................................... 1,685.6 356.3 562,813.0 21,164.7 254,661.3 549.6 841,230.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5--Cost Summary (Net Cost of AIT Deployment 2012-2015) by Cost Component
[AIT costs in $ thousands]
--------------------------------------------------------------------------------------------------------------------------------------------------------
TSA costs
Year Passenger Industry ----------------------------------------------------- Rapiscan Total
opt outs utilities Personnel Training Equipment Utilities removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012.......................................... $2,716.5 $325.7 $375,866.9 $12,043.0 $116,499.3 $473.0 $0.0 $507,924.4
2013.......................................... 3,991.7 329.3 280,844.3 4,277.5 51,588.8 324.4 1,809.6 343,165.7
2014.......................................... 4,238.7 312.0 263,677.6 4,190.5 51,397.8 317.7 0.0 324,134.2
2015.......................................... 5,611.8 300.3 278,580.2 4,144.2 68,052.6 365.7 0.0 357,054.9
---------------------------------------------------------------------------------------------------------
Total..................................... 16,558.7 1,267.3 1,198,969.0 24,655.2 287,538.5 1,480.9 1,809.6 1,532,279.2
---------------------------------------------------------------------------------------------------------
Discounted 3%............................. 15,265.0 1,178.9 1,118,459.3 23,810.2 269,233.7 1,380.7 1,705.7 1,431,033.5
---------------------------------------------------------------------------------------------------------
Discounted 7%............................. 13,766.6 1,075.8 1,024,344.7 22,048.8 247,810.4 1,263.8 1,580.6 1,311,890.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 18299]]
Table 6--Cost Summary (Net Cost of AIT Deployment 2008-2015) by Cost Component
[AIT costs in $ thousands--undiscounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
TSA costs
Year Passenger Industry ----------------------------------------------------- Rapiscan Total
opt outs utilities Personnel Training Equipment Utilities removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008.......................................... $7.0 $5.7 $14,689.1 $389.5 $37,425.2 $18.8 $0.0 $52,535.3
2009.......................................... 32.2 5.7 15,618.6 88.0 42,563.6 20.4 0.0 58,328.5
2010.......................................... 262.2 158.2 247,566.7 5,332.8 119,105.4 241.4 0.0 372,666.6
2011.......................................... 1,384.2 186.7 284,938.7 15,354.4 55,567.2 269.1 0.0 357,700.2
2012.......................................... 2,716.5 325.7 375,866.9 12,043.0 116,499.3 473.0 0.0 507,924.4
2013.......................................... 3,991.7 329.3 280,844.3 4,277.5 51,588.8 324.4 1,809.6 343,165.7
2014.......................................... 4,238.7 312.0 263,677.6 4,190.5 51,397.8 317.7 0.0 324,134.2
2015.......................................... 5,611.8 300.3 278,580.2 4,144.2 68,052.6 365.7 0.0 357,054.9
---------------------------------------------------------------------------------------------------------
Total..................................... 18,244.4 1,623.6 1,761,782.0 45,819.9 542,199.9 2,030.4 1,809.6 2,373,509.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
This preamble (in the Background section above) has previously
explained in detail the need for AIT and the Congressional direction to
pursue AIT. In summary, terrorists continue to test our security
measures in an attempt to find and exploit vulnerabilities. The threat
to aviation security has evolved to include the use of non-metallic
explosives, non-metallic explosive devices, and non-metallic weapons.
Below are examples of this threat:
On December 22, 2001, on board an airplane bound for the
United States, Richard Reid attempted to detonate a non-metallic bomb
concealed in his shoe.
On December 25, 2009, a bombing plot by Al Qaeda in the
Arabian Peninsula (AQAP) culminated in Umar Farouk Abdulmutallab's
attempt to blow up an American aircraft over the United States using a
non-metallic explosive device hidden in his underwear.
In October 2010, AQAP attempted to destroy two airplanes
in flight using non-metallic explosives hidden in two printer
cartridges.
In May 2012, during the most recent terrorist plot
thwarted, AQAP developed another non-metallic explosive device that
could be hidden in an individual's underwear and detonated while on
board an aircraft.
As evidenced by the incidents described in the above sections, TSA
operates in a high-threat environment. Terrorists look for security
gaps or exceptions to exploit. The device used in the December 25,
2009, attempt is illustrative. It was cleverly constructed and
intentionally hidden on a sensitive part of the body to avert
detection. If detonated, the lives of the almost 300 passengers and
crew and untold numbers of people on the ground would have been in
jeopardy.
Advanced Imaging Technology is proven technology which provides the
best opportunity to detect metallic and non-metallic anomalies
concealed under clothing without touching the passenger and is an
essential component of TSA's security. Since it began using AIT, TSA
has been able to detect many kinds of non-metallic items, small items,
and items concealed on parts of the body that would not have been
detected using metal detectors. In addition, risk reduction analysis
shows that the chance of a successful terrorist attack on aviation
targets generally decreases as TSA deploys AIT. However, the results of
TSA's risk-reduction analysis are classified.
Passengers do not experience additional wait time due to use of AIT
equipment because the x-ray screening of carry-on baggage constrains
the overall screening process; they wait for their personal belongings
regardless of which passenger screening technology is used.
In Tables 7 and 8 below, we present annualized cost estimates and
qualitative benefits of AIT deployment. In Table 7, we show the
annualized net cost of AIT deployment from 2012 to 2015. As previously
explained, costs incurred from 2008-2011 occurred in the past and are
not considered costs attributable to this proposed rule. However, given
the life cycle of the AIT technology considered in this analysis is
eight years; we have also added Table 8 showing the annualized net cost
of AIT deployment from 2008-2015 (a full eight-year life cycle and
includes the ``sunk costs'' from 2008 to 2011). Please note that while
the total costs of AIT deployment for a full eight-year life cycle
(2008-2015) are higher than the total costs of AIT deployment during
the four-year period of 2012-2015, the annualized costs ($368,262.8 at
seven percent discount) of the full eight-year cycle shown in Table 8
are actually lower than the annualized costs ($387,307.7 at seven
percent discount) of the 2012-2015 deployment shown in Table 7. As
previously shown in Tables 4 and 5, AIT deployment costs in 2008 and
2009 are relatively low compared with the later year AIT expenditures,
resulting in lower annualized costs for the eight-year life cycle of
2008-2015. The costs are annualized and discounted at both three and
seven percent and presented in 2011 dollars.
Table 7--OMB A-4 Accounting Statement
[$ Thousands for 2012-2015]
----------------------------------------------------------------------------------------------------------------
Source citation
Category Primary estimate Minimum estimate Maximum estimate (initial RIA,
preamble, etc.)
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized benefits........... Not estimated Not estimated Not estimated Initial RIA.
Annualized quantified, but 0 0 0 Initial RIA.
unmonetized, benefits.
[[Page 18300]]
Unquantified benefits........ The operations described in this proposed rule produce Initial RIA.
benefits by reducing security risks through the
deployment of AIT technology that is capable of detecting
both metallic and non-metallic weapons and explosives.
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs (7%) $387,307.0 .................. Initial RIA.
(discount rate in (3%) $384,986.7
parenthesis).
Annualized quantified, but 0 0 0 Initial RIA.
unmonetized, costs.
----------------------------------------------------------------------------------
Qualitative costs Not estimated Initial RIA.
(unquantified).
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized 0 0 0 Initial RIA.
transfers: ``on budget''.
From whom to whom?........... N/A N/A N/A None.
Annualized monetized 0 0 0 Initial RIA.
transfers: ``off-budget''.
From whom to whom?........... N/A N/A N/A None.
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/ Effects Source citation
category (initial RIA,
preamble, etc.).
----------------------------------------------------------------------------------------------------------------
Effects on state, local, and/ None Initial RIA.
or tribal governments.
Effects on small businesses.. No significant economic impact anticipated. Prepared Initial Regulatory
Initial Regulatory Flexibility Analysis Flexibility
Analysis.
Effects on wages............. None None.
Effects on growth............ None None.
----------------------------------------------------------------------------------------------------------------
Table 8--OMB A-4 Accounting Statement
[$ Thousands, 2008-2015, eight-year lifecycle]
----------------------------------------------------------------------------------------------------------------
Source citation
Category Primary estimate Minimum estimate Maximum estimate (initial RIA,
preamble, etc.)
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized benefits........... Not estimated Not estimated Not estimated Initial RIA.
Annualized quantified, but 0 0 0 Initial RIA.
unmonetized, benefits.
Unquantified benefits........ The operations described in this proposed rule produce Initial RIA.
benefits by reducing security risks through the
deployment of AIT technology that is capable of detecting
both metallic and non-metallic weapons and explosives.
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs (7%) $368,262.8 Initial RIA.
(discount rate in (3%) $326,410.1
parentheses).
Annualized quantified, but 0 0 0 Initial RIA.
unmonetized, costs.
----------------------------------------------------------------------------------
Qualitative costs Not estimated Initial RIA.
(unquantified).
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized 0 0 0 Initial RIA.
transfers: ``on budget''.
From whom to whom?........... N/A N/A N/A None.
Annualized monetized 0 0 0 Initial RIA.
transfers: ``off-budget''.
From whom to whom?........... N/A N/A N/A None.
[[Page 18301]]
----------------------------------------------------------------------------------------------------------------
Miscellaneous analyses/ Effects Source citation
category (initial RIA,
preamble, etc.).
----------------------------------------------------------------------------------------------------------------
Effects on state, local, and/ None Initial RIA.
or tribal governments.
Effects on small businesses.. No significant economic impact anticipated. Prepared IRFA IRFA.
Effects on wages............. None None.
Effects on growth............ None None.
----------------------------------------------------------------------------------------------------------------
As alternatives to the preferred regulatory proposal presented in
the NPRM, TSA examined three other options. The following table briefly
describes these options, which include a continuation of the current
screening environment (no action), increased use of physical pat-down
searches that supplements primary screening with WTMDs, and increased
use of ETD screening that supplements primary screening with WTMDs.
These alternatives, and the reasons why TSA rejected them in favor of
the proposed rule, are discussed in detail in Chapter 3 of the
regulatory evaluation located in this docket, and summarized in Table
9.
Table 9--Comparison of Regulatory Alternatives
----------------------------------------------------------------------------------------------------------------
Regulatory alternative Name Description
----------------------------------------------------------------------------------------------------------------
1............................ No Action.................. Under this alternative, the passenger screening
environment remains the same as it was prior to
2008. TSA continues to use WTMDs as the primary
passenger screening technology and to resolve
alarms with a pat-down.
2............................ Pat-Down................... Under this alternative, TSA continues to use WTMDs
as the primary passenger screening technology. In
addition, TSA supplements the WTMD screening by
conducting a pat-down on a randomly selected
portion of passengers after screening by a WTMD.
3............................ ETD Screening.............. Under this alternative, TSA continues to use WTMDs
as the primary passenger screening technology. In
addition, TSA supplements the WTMD screening by
conducting ETD screening on a randomly selected
portion of passengers after screening by a WTMD.
4............................ AIT Screening.............. Under this alternative, the proposed alternative,
(NPRM)..................... TSA uses AIT as a passenger screening technology.
Alarms would be resolved through a pat-down.
----------------------------------------------------------------------------------------------------------------
C. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA) of 1980 requires that agencies
consider the impacts of their rules on small entities. For purposes of
the RFA, small entities include small businesses, not-for-profit
organizations, and small governmental jurisdictions. Individuals and
States are not included in the definition of a small entity. TSA has
included an Initial Regulatory Flexibility Analysis within the Initial
Regulatory Impact Analysis.
This NPRM proposes to codify the use of AIT to screen passengers
boarding commercial aircraft for weapons, explosives, and other
prohibited items concealed on the body. The only additional direct cost
small entities incur due to this rule is for utilities, as a result of
increased power consumption from AIT operation. TSA identified 102
small entities that could have potentially incurred additional utility
costs due to AIT; however, TSA reimburses the additional utility costs
for five of these small entities. Consequently, this rule would cause
97 small entities to incur additional direct costs. Of the 97 small
entities affected by this proposed rule, 96 are small governmental
jurisdictions with populations less than 50,000. A privately-owned
airport is considered small under SBA standards if revenue amounts to
less than $30 million. TSA identified one small privately-owned
airport.
The small entities incur an additional utility cost as a result of
increased power consumption from AIT operation. To estimate the costs
of the deployment of AIT on small entities TSA uses the average
kilowatt hour (kWh) consumed per unit on an annual basis at federalized
airports. Depending on the size of the airport, TSA estimates the
average additional utility cost to range from $815 to $1,270 per year
while the average annual revenue for these small entities ranges from
$69.5 million to$133.1 million per year. Consequently, TSA estimates
that the cost of this NPRM on small entities represents approximately
0.001 percent of their annual revenue. Therefore, TSA's Initial
Regulatory Flexibility Analysis suggests that this rulemaking would not
have a significant economic impact on a substantial number of small
entities.
D. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. TSA has assessed the potential
effect of this rulemaking and has determined that it
[[Page 18302]]
will have only a domestic impact and therefore no effect on any trade-
sensitive activity.
E. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.''
This rulemaking does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply and TSA has not
prepared a statement under the Act.
F. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA sec. 3507(d), obtain approval from OMB for each
collection of information it conducts, sponsors, or requires through
regulations. The PRA defines ``collection of information'' to be ``the
obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public, of facts or opinion by or
for an agency, regardless of form or format[hellip]imposed on ten or
more persons.'' 44 U.S.C. 3502(3)(A). TSA has determined that there are
no current or new information collection requirements associated with
this proposed rule. TSA's use of AIT to screen passengers does not
constitute activity that would result in the collection of information
as defined in the PRA.
G. Executive Order 13132, Federalism
TSA has analyzed this proposed rule under the principles and
criteria of E.O. 13132, Federalism. We determined that this action
would not have a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore would not have federalism implications.
H. Environmental Analysis
TSA has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
I. Energy Impact Analysis
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended (42 U.S.C. 6362). TSA has determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
List of Subjects in 49 CFR Part 1540
Air carriers, Aircraft, Airports, Civil aviation security, Law
enforcement officers, Reporting and recordkeeping requirements,
Screening, Security measures.
The Proposed Amendment
For the reasons set forth in the preamble, the Transportation
Security Administration proposes to amend Chapter XII, of Title 49,
Code of Federal Regulations, as follows:
PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES
0
1. The authority citation for part 1540 is revised to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-44914,
44916-44918, 44925, 44935-44936, 44942, 46105.
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2. In Sec. 1540.107, add paragraph (d) to read as follows:
Sec. 1540.107 Submission to screening and inspection.
* * * * *
(d) The screening and inspection described in (a) may include the
use of advanced imaging technology. For purposes of this section,
advanced imaging technology is defined as screening technology used to
detect concealed anomalies without requiring physical contact with the
individual being screened.
Issued in Arlington, Virginia, on March 20, 2013.
John S. Pistole,
Administrator.
[FR Doc. 2013-07023 Filed 3-22-13; 4:15 pm]
BILLING CODE 9110-05-P