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Passenger Screening Using Advanced Imaging Technology
This comment argues that the TSA has failed to conduct a thorough analysis prior to arriving at their regulatory conclusions. Rather than impartially attempting to identify and implement the solution that best solves the identified vulnerability of the existing passenger screening process to nonmetallic items, the Regulatory Impact Analysis (RIA) is presented as an attempt to justify the previously adopted use of AIT.
The proposed rule modifies the Transportation Security Administration (TSA) screening process for airline passengers entering the sterile area of airports such that the use of Advanced Imaging Technology (AIT) becomes the primary screening technology by the TSA. This action is an attempt to “mitigate a vulnerability of existing aviation security” to the threat of concealed nonmetallic weapons and explosives.[1]
AIT has been used by the TSA for passenger screening since 2008. The 2013 NPRM proposing the use of AIT in response to 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, 653 F. 3d 1 (D.C. Cir. 2011),” in which “the Court directed TSA to conduct notice and comment rulemaking on the use of AIT.”[2]
This comment argues that the TSA has failed to conduct a thorough analysis prior to arriving at their regulatory conclusions. Rather than impartially attempting to identify and implement the solution that best solves the identified vulnerability of the existing passenger screening process to nonmetallic items, the Regulatory Impact Analysis (RIA) is presented as an attempt to justify the previously adopted use of AIT. Indeed, the “main objective of the proposed rule is to codify the use of AIT as a means of screening passengers prior to entering the sterile area of an airport.”[3] This stated goal severely limits the quality of the analysis with respect to objectively analyzing suitable regulatory alternatives and selecting the one that maximizes social net benefits. While the chosen alternative may, in fact, provide for the highest net benefits to society, the analysis presented in the RIA does not permit such a determination.
First, the RIA likely understates the true costs associated with the proposed rule. In computing the cost estimate by component, the TSA fails to account for trends in compensation growth and energy cost growth in the historical data used in the RIA and applies multiple unjustified assumptions, which directly impact the calculations. For example, the TSA assumes the electricity prices from 2012 to 2015 will remain constant at the 2007–2011 commercial sector average. However, the average growth from 2007–2011 is 1.6 percent.[4] Accounting for this growth results in an increase in utility costs of nearly 6.7 percent in year 2015 alone. The analysis also lacks explanations of assumed-cost shares of service and maintenance contracts applied to AIT, and it offers no range of values for robustness.
Second, the RIA makes no attempt to quantify the benefits of AIT, ignoring the GAO’s recommendation for a benefit-cost analysis.[5] Instead, the RIA makes broad claims and gives anecdotal evidence without providing any context for the improvement in safety expected from AIT adoption. Protection from terrorist acts is a basic function the public demands of the government, and the benefits of such protection are surely sizable; however, in order to determine which program alternative is best for society given the resources available, some attempt at measuring the benefits is needed.