# Passenger Screening Using Advanced Imaging Technology > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-04374 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 3, 2016 - **Citation:** 81 FR 11364 ## Text 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: Final rule. SUMMARY: The Transportation Security Administration (TSA) is amending its civil aviation security regulations to specify that TSA may use advanced imaging technology (AIT) to screen individuals at security screening checkpoints. This 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 passenger screening. DATES: Effective May 2, 2016. FOR FURTHER INFORMATION CONTACT: Chawanna Carrington, Acting Passenger Screening Program Portfolio Section Lead-Checkpoint Solutions and Integration Division, Office of Security Capabilities—Transportation Security Administration, OSCCSI-PSP@tsa.dhs.gov, 571-227-2958 (phone), 571-227-1931 (fax). SUPPLEMENTARY INFORMATION: Availability of Rulemaking Document You can get an electronic copy using the Internet by— (1) Searching the electronic Federal Docket Management System (FDMS) Web page at http://www.regulations.gov; or (2) Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR to view the daily published Federal Register edition; or accessing the “Search the Federal Register by Citation” in the “Related Resources” column on the left, if you need to do a Simple or Advanced search for information, such as a type of document that crosses multiple agencies or dates. 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. Small Entity Inquiries The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at https://www.sba.gov/category/advocacy-navigation-structure/regulatory-policy/regulatory-flexibility-act/sbrefa. Abbreviations and Terms Used in This Document AIT Advanced Imaging Technology ANSI American National Standards Institute APA Administrative Procedure Act ATR Automatic Target Recognition ATSA Aviation and Transportation Security Act CAPPS Computer-Assisted Passenger Prescreening System CDRH Center for Devices and Radiological Health CFR Code of Federal Regulations DHS Department of Homeland Security DOJ Department of Justice DNA Deoxyribonucleic acid EAJA Equal Access to Justice Act E.O. Executive Order ETD Explosives Trace Detection Devices FAA Federal Aviation Administration FDA Food and Drug Administration FR Federal Register GAO Government Accountability Office HPS Health Physics Society ICAO International Civil Aviation Organization IEEE International Electronic and Electrical Engineers IRFA Initial Regulatory Flexibility Analysis LCCE Life Cycle Cost Estimate NEPA National Environmental Policy Act of 1969 NPRM Notice of Proposed Rulemaking OCRL/OTE Office of Civil Rights and Liberties, Ombudsman and Traveler Engagement OMB Office of Management and Budget OSC Office of Security Capabilities PIA Privacy Impact Assessment PMIS Performance Management Information System PMO Program Management Office PRA Paperwork Reduction Act RFA Regulatory Flexibility Act of 1996 RIA Regulatory Impact Analysis SAM Screener Allocation Model SOP Standard Operating Procedure SSI Sensitive Security Information THz Terahertz TSA Transportation Security Administration TSL Transportation Security Laboratory TSO Transportation Security Officer UMRA Unfunded Mandates Reform Act U.S.C. United States Code WTMD Walk Through Metal Detector Table of Contents I. Background A. Summary of the Final Rule B. Purpose of the Final Rule C. Costs and Benefits D. Changes From the NPRM II. Public Comments on the NPRM and TSA Responses A. Summary B. Support for AIT C. Opposition to AIT D. TSA Authority To Use AIT E. Congressional Directive To Deploy AIT F. Compliance With the Administrative Procedure Act G. Adherence to the Court's Decision in EPIC v. DHS H. Fourth Amendment Issues I. Other Legal Issues J. Evolving Threats to Security K. TSA's Layers of Security L. Effectiveness of AIT Screening M. Screening Measures Used in Other Countries N. Laboratory and Operational Testing of AIT Equipment O. Radiation Exposure P. Other Health and Safety Issues Q. Backscatter Technology R. Millimeter Wave Technology S. Concerns Regarding Privacy T. Use of ATR Software U. Protection of Images V. Conducting a Pat-Down as an Alternative to AIT W. AIT Screening Procedures at the Checkpoint X. AIT Screening Procedures for Families and Individuals With Medical Issues Y. Comments on the Proposed Regulatory Text Z. Costs of the Proposed Rule AA. Passenger Opportunity Costs BB. Airport Utility Costs CC. TSA Costs DD. Other Costs EE. Benefits of the Proposed Rule FF. Other Impacts of the Proposed Rule GG. Regulatory Alternatives HH. Comparative Analysis Between AIT and Alternatives II. Other Comments on the Regulatory Impact Analysis JJ. Initial Regulatory Flexibility Analyses KK. Other Regulatory Analyses LL. Comments on the Risk Analysis MM. Other Comments on the NPRM III. Rulemaking Analyses and Notices A. International Compatibility B. Economic Impact Analyses 1. Regulatory Impact Analysis Summary 2. Executive Orders 12866 and 13563 Assessments 3. Regulatory Flexibility Act Assessment 4. International Trade Impact Assessment 5. Unfunded Mandates Reform Act Assessment C. Paperwork Reduction Act D. Executive Order 13132, Federalism E. Environmental Analysis F. Energy Impact Analysis I. Background A. Summary of the Final Rule Congress has charged the Transportation Security Administration (TSA), a component of the U.S. Department of Homeland Security (DHS), with responsibility for civil aviation security, 49 U.S.C. 114(d), including combatting the threat posed by al Qaeda and other terrorists. The Administrator of TSA must “assess current and potential threats to the domestic air transportation system” and take “necessary actions to improve domestic air transportation security,” including by providing for “the screening of all passengers and property” before boarding an aircraft to ensure that no passenger is “carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” See 49 U.S.C. 44904(a) and (e); 44901(a); 44902(a)(1). By Federal regulation, “[n]o individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft. . . .” 49 CFR 1540.107(a). The final rule amends this regulation to specify that the screening and inspection of a person may include the use of advanced imaging technology (AIT). Congress has directed the Secretary of Homeland Security to “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.” 49 U.S.C. 44925(a). 1 In June 2008, the Senate Appropriations Committee encouraged TSA to expand the use of AIT. 2 TSA began deploying AIT in 2008 after laboratory and operational testing. 1 See also Presidential Memorandum Regarding 12/25/2009 Attempted Terrorist Attack” (Jan. 7, 2010), available at http://www.whitehouse.gov/the-press-office/presidential-memorandum-regarding-12252009-attempted-terrorist-attack (charging DHS with aggressively pursuing enhanced screening technology in order to prevent further such attempts while at the same time protecting passenger privacy). 2 S. Rep. No. 110-396, at 60 (2008). The AIT currently deployed by TSA is a millimeter wave imaging technology that can detect metallic and non-metallic objects on an individual's body or concealed in his clothing without physical contact. The technology bounces electromagnetic waves off the body to detect anomalies. If an anomaly is detected, a pat-down of the area where the anomaly is located is usually performed to determine if a threat is present. AIT addresses a critical weakness in aviation security regarding the inability of walk-through metal detectors (WTMDs) to screen for non-metallic explosives and other non-metallic threat items. AIT provides detection capability for weapons, explosives, and other objects concealed under a person's clothing that may not trigger a metal detector. TSA has determined that use of AIT is the most effective technology currently available to detect both metallic and non-metallic threat items concealed on passengers, such as the non-metallic explosive used by the so-called “Christmas Day bomber” in 2009 in his attempt to blow up an American passenger aircraft. AIT is an essential component of TSA's risk-based security approach. This approach relies on a comprehensive security system including state-of-the-art technologies (such as AIT), a highly-trained frontline workforce, intelligence analysis and information sharing, behavior detection, explosives detection canine teams, Federal Air Marshals (FAMS), and regulatory enforcement. In 2012, Congress enacted the FAA Modernization and Reform Act of 2012, Public Law 112-95, which required TSA to ensure that all AIT used to screen passengers must be equipped with and employ automatic target recognition (ATR) software. 49 U.S.C. 44901(l). That software eliminates passenger-specific ( i.e., individual) images and instead indicates the location of potential threats on a generic outline. Since May 2013, all AIT units deployed by TSA have been equipped with ATR capability. The final rule adopts the statutory definitions of AIT and ATR, and requires that any AIT equipment used to screen passengers be equipped with and employs ATR software. There are approximately 793 AIT machines deployed at nearly 157 airports nationwide. AIT screening is safe for all passengers and the technology meets all national health and safety standards. Passengers generally may decline AIT screening and opt instead for a pat-down. B. Purpose of the Final Rule The final rule is adopted to comply with a ruling of the United States Court of Appeals for the District of Columbia Circuit. In Electronic Privacy Information Center (EPIC) v. U.S. Department of Homeland Security, 653 F.3d 1 (D.C. Cir. 2011), the court directed TSA to conduct notice-and-comment rulemaking on the use of AIT to screen passengers. TSA published a notice of proposed rulemaking (NPRM) on March 26, 2013, to obtain public comment on its proposal to revise civil aviation security regulations to codify that TSA may use AIT for passenger screening. 78 FR 18287. The final rule defines AIT, states that AIT may be used to screen passengers, and requires that AIT be equipped with and employ the use of ATR software. 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 unit life cycle is 10 years from deployment to disposal, the period of analysis for estimating the cost of the rule is 10 years. TSA has revised the NPRM Regulatory Impact Analysis (RIA) assumption of an 8-year life cycle for AIT units to 10 years based on a recent life cycle cost estimate (LCCE) report. 3 AIT deployment began in 2008 and TSA, therefore, includes costs that have already been borne by TSA, the traveling public, the screening systems industry, and airports. Consequently, this RIA takes into account costs that have already occurred—in years 2008-2014—in addition to the projected costs in years 2015 4 -2017. By reporting the costs that have already occurred and estimating future costs in this manner, TSA accounts for the full life cycle of AIT machines. 3 TSA's Office of Security Capabilities (OSC), “Life Cycle Cost Estimate for Passenger Screening Program,” March 10, 2014. This is a TSA acquisition sensitive report based on OSC technology assessments. 4 The 2015 cost estimates used historical data when available. Please see the RIA for the complete description of the 2015 cost estimates. TSA estimates the total cost of the rule from 2008-2017 to be $2,146.31 million (undiscounted). TSA incurs over 98 percent of all costs. 5 Metal detectors and AITs are both designed to detect metallic threats on passengers, but do so 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 detection capabilities exceed that of metal detectors because AIT can detect metallic and non-metallic weapons, non-metallic bulk explosives, and non-metallic liquid explosives. AIT generates benefits by reducing security risks because it is capable of detecting both metallic and non-metallic weapons and explosives. 5 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. 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. TSA also considered the added benefit of deterrence—the effect of would-be attackers becoming discouraged because of increased security measures—from the use of AIT. Morral and Jackson (2009) stated, “Deterrence is also a major factor in the cost-effectiveness of many security programs. For instance, even if a radiation-detection system at ports never actually encounters weapon material, if it deters would-be attackers from trying to smuggle such material into the country, it could easily be cost-effective even if associated program costs are very high.” 6 Given the demonstrated ability of AIT to detect concealed metallic and non-metallic objects, it is reasonable to assume that AIT acts as a deterrent to attacks involving the smuggling of a metallic or non-metallic weapon or explosive on board a commercial airplane. As an essential component in TSA's comprehensive security system because it can detect both non-metallic and metallic threats concealed under a person's clothing, AIT plays a vital role in decreasing the vulnerability of civil aviation to a terrorist attack. 6 Andrew R. Morral, Brian A. Jackson, “Understanding the Role of Deterrence in Counterterrorism Security,” 2009, Rand Homeland Security Program, http://www.rand.org/content/dam/rand/pubs/occasional_papers/2009/RAND_OP281.pdf. To describe further the security benefits from AIT, TSA performed a break-even analysis to compare the potential direct costs of an averted terrorist attack to the net cost of AIT. Agencies use a break-even analysis when quantification of benefits is not possible. According to OMB Circular No. A-4, “Regulatory Analysis,” such an analysis answers the question, “How small could the value of the non-quantified benefits be (or how large would the value of the nonquantified costs need to be) before the rule would yield zero net benefits?” 7 Based upon the results from the break-even analysis, TSA estimates that AIT will need to prevent an attack between once every 5.25 years to once every 23.5 years—depending on the size of the aircraft—for the direct cost of an averted attack to equal the annualized cost of AIT. The break-even analysis does not include the difficult to quantify indirect costs of an attack or the macroeconomic impacts that could occur due to a major attack. See Section III of this preamble for more detailed results of the economic analyses. 7 http://www.whitehouse.gov/omb/circulars_a004_a-4/. D. Changes From the NPRM In the NPRM, TSA proposed to amend 49 CFR 1540.107 by adding a new paragraph to specify that the screening and inspection of an individual prior to entering a sterile area of an airport or boarding an aircraft may include the use of AIT. TSA defined AIT as “screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.” TSA received many comments stating that the definition was too broad. Commenters also expressed confusion and uncertainty regarding the use of the word “anomalies.” Some commenters suggested privacy safeguards be included in the final rule. In response to those comments, TSA changed the definition in the final rule. TSA is adopting the definition of AIT created by Congress in the FAA Modernization and Reform Act of 2012. 8 That legislation, codified at 49 U.S.C. 44901(l), defines AIT as “a device used in the screening of passengers that creates a visual image of an individual showing the surface of the skin and revealing other objects on the body; and may include devices using backscatter x-rays or millimeter waves and devices referred to as `whole-body imaging technology' or `body scanning machines'.” Further, in response to privacy concerns, TSA is adopting the statutory language that requires any AIT used for passenger screening to be equipped with and employ ATR software and comply with such other requirements TSA determines are necessary to address privacy considerations. Finally, consistent with the statute, TSA is defining ATR as, “software installed on an advanced imaging technology device that produces a generic image of the individual being screened that is the same as the images produced for all other screened individuals.” 8 Public Law 112-95 (126 Stat. 11, Feb. 14, 2012). In response to public comments, TSA also revised the RIA published with the NPRM to include a break-even analysis and pertinent data that has become available since the publication of the NPRM, including an updated AIT deployment schedule. TSA's major changes to the RIA from the NPRM are: • Revising the airport listings to include 460 airports instead of 448. The updated airport list includes new, previous, and former airports that operated AIT units and are regulated under 49 CFR part 1542. • Updating the AIT life cycle and period of analysis from 8 to 10 years based on a recent LCCE report from the TSA Office of Security Capabilities (OSC). Using the information from this report, TSA also revised its previous assumption about the share of Passenger Screening Program expenditures spent on AIT technology. • Revising the number of AIT units to be deployed from 821 to 793 throughout the period of analysis (2008-2017) based on new data. • Revising the total wait time for a passenger that opts-out of AIT screening from 80 to 150 seconds to include passenger time spent waiting for a same gender Transportation Security Officer (TSO) to perform the pat-down. • Revising the calculation of utilities costs to incorporate new data on the hours of AIT operation from the TSA's Performance Management Information System (PMIS) database. • Refining the calculation of personnel costs by using information on specific labor hours dedicated to AIT operation in response to new data on hours of AIT operation. • Revising the calculation of training costs to incorporate newly available historical data on the hours of participation for each training course required for AIT operation and new training and development costs. • Including a break-even analysis to answer the question, “How small could the value of the non-quantified benefits be (or how large would the value of the non-quantified costs need to be) before the rule would yield zero net benefits?” • Revising language within the RIA and final rule to state that passengers “may generally opt-out of AIT screening” to reflect current DHS policy. 9 9 See Privacy Impact Assessment Update for TSA Advanced Imaging Technology (DHS/TSA/PIA-032(d)) December 18, 2015, https://www.dhs.gov/sites/default/files/publications/privacy-tsa-pia-32-d-ait.pdf. Table 1 presents a summary of the effects of these changes. In the table, NPRM and final rule costs have been annualized due to the different periods of analysis. Table 1—Changes in AIT Estimates From the NPRM to the Final Rule [Annualized at a 7% discount rate in 2014 dollars] Variables NPRM and FR comparison NPRM Final rule Difference Description of changes Annualized Industry Costs ($millions) Airport Utilities Cost $0.19 $0.15 −$0.04 This estimate decreased due to incorporation of newly available historical data on AIT hours of operation from the TSA's PMIS database. Backscatter AIT Removal 0.21 0.18 −0.03 Total cost in constant dollars remained the same, but annualized cost decreased because of the different periods of analysis between NPRM and final rule. Annualized Passenger Costs ($millions) Opportunity Costs (Delay Costs) 2.08 2.60 0.52 This estimate increased because the estimated duration of a pat-down increased from 80 to 150 seconds to include passenger wait time to be handed off to a same gender TSO. Annualized TSA Costs ($millions) Personnel 216.40 117.17 −99.22 TSA refined this estimate to account for labor hours dedicated to AIT operation. TSA used AIT operational hours recorded in PMIS as a basis for this estimate. Training 5.81 27.68 21.87 TSA revised the calculation of training costs to incorporate newly available historical data on the hours of participation for each training course required for AIT operation and new training and development costs. Equipment 70.62 56.53 −14.08 TSA revised its cost estimates in 2014-2017 to reflect the most recent LCCE document by OSC. TSA also revised some assumptions for cost estimates from 2008-2013 based on the recent LCCE. TSA Utilities Cost 0.25 0.26 0.01 This change reflects the revised estimate on AIT operation time and an increase of airport enrollment in TSAs utilities reimbursement program. Total Costs 10 295.56 204.57 −90.99 The total cost decreased from the NPRM, primarily from the reduction in personnel costs. Benefits Break-Even Analysis Prevent 1 attack per 5.25 to 23.52 years considering only the major direct costs of an averted attack. Per public comment, TSA has included a break-even analysis in the RIA. II. Public Comments on the NPRM and TSA Responses A. Summary TSA published the NPRM on March 26, 2013, and requested comments be submitted by June 24, 2013. Private citizens, industry associations, advocacy groups, and non-profit organizations submitted comments in docket TSA 2013-0004. The discussion below groups the submissions by the primary issues raised in the public comments. 10 There was a calculation error in the NPRM's presentation of annualized costs. TSA has resolved this error and presented the correct annualized amounts in Table 1. The error in annualized cost did not affect any other cost estimates in the NPRM, including the estimated total cost of the rule and the estimated itemized costs presented in the NPRM. B. Support for AIT Comments: A number of submissions included a statement of general support for the continued use of AIT without offering additional, substantive rationale. Commenters also expressed approval for AIT for a variety of reasons. Several individual commenters stated they have medical conditions ( e.g., metallic implants, metallic artificial joints, and prostheses) which cause them to alarm the WTMD, and they prefer the ease and quickness of AIT to the pat-down procedure, which would be required to resolve an alarm of the WTMD. Several other commenters noted that the need to ensure the safety of airline passengers and other American targets against terrorist threats outweighs possible privacy concerns associated with AIT. In supporting AIT use, many commenters referenced the terrorist attacks on September 11, 2001. Individual commenters also stated they did not have any concerns related to the use of AIT. In response to other public comments opposed to AIT, several individual commenters questioned the significance of the alleged impact of AIT on privacy or safety. Several individual commenters also expressed a preference for AIT over a pat-down. TSA Response: TSA agrees with these commenters that AIT provides the most effective and least intrusive means currently available to detect both metallic and non-metallic threats concealed under a person's clothing. C. Opposition to AIT Comments: Many submissions included statements of opposition to the continued use of AIT. Of these, individual commenters expressed concerns pertaining to efficacy, privacy, health, cost, and civil liberties. TSA addresses each of these topics in subsequent comment responses in this preamble. Some individual commenters also expressed criticism of TSA and its staff. Some comments included statements requesting the elimination of AIT. Other commenters made statements regarding the impact of AIT screening on their travel choices. Many of these commenters indicated they no longer travel by air because of the use of AIT. Some said they limit their airline travel as much as possible because of AIT screening. An individual commenter cited a news article that highlights increasing ridership of Amtrak over airline travel. Several other individual commenters noted that international travelers no longer want to visit the United States because of AIT screening. According to another individual commenter, the AIT scanners have created an “adversarial tension” between TSOs and travelers that is detrimental to security. A few commenters discussed TSA's statement in the NPRM that the public generally approves of the AIT scanners. For example, an individual commenter stated this claim was not supported by data regarding the public's approval. Other commenters suggested that TSA should not assume the lack of complaints about AIT to be support for the use of AIT. For example, a privacy advocacy organization stated that TSA has not taken into consideration the number of passengers who choose AIT over a pat-down because it is faster and potentially less invasive of personal privacy, not because they support the use of AIT. Another individual commenter, however, acknowledged that National ABC and CBS news polls indicated that the majority of poll participants favored full body scanners at airports. TSA Response: The information TSA receives from intelligence-gathering agencies confirms that civil aviation remains a favored target for extremists and terror organizations. AIT is an essential tool to address that threat by helping TSA to detect both metallic and nonmetallic explosives and other dangerous items concealed under clothing. AIT screening generally is optional and passengers are advised that they may choose to undergo a pat-down instead of AIT. TSA takes the issues raised in the comments regarding the screening experience seriously and has instituted changes in its policies to address these concerns. New risk-based policies have transformed the agency from one that screens every passenger in the same manner to one that employs a more effective, risk-based, intelligence-driven approach. Adopting a risk-based approach permits much-needed flexibility to adjust to changing travel patterns and shifting threats. For example, beginning in 2011, after analyzing intelligence reports, TSA instituted new screening procedures for passengers under the age of 12 and those ages 75 and older to expedite screening and reduce the need for a pat-down to resolve alarms. 11 TSA also instituted TSA Pre✓ TM (a known and trusted traveler program) based on the rationale that most passengers do not pose a risk to aviation security. 12 This program increases passenger throughput at the security checkpoint and improves the screening experience of frequent, trusted travelers. 13 In addition, TSA Pre✓ TM reduces the amount of time TSOs devote to screening low-risk travelers, thereby increasing the resources available to deter or detect the next attack. TSA is working to expand the population of passengers eligible for the program, the number of participating air carriers, and the airports where it is available. In December 2013, TSA launched its TSA Pre✓ TM application program that allows U.S. citizens and lawful permanent residents to apply for TSA Pre✓ TM . As of February 2015, TSA Pre✓ TM is available at 120 airports and eleven airlines participate in the program. Millions of passengers have undergone expedited screening through the program. Finally, TSA has instituted a new protocol at certain airports that allow passengers who are not registered in TSA Pre✓ TM to undergo a real-time threat assessment at the airport so that they may be randomly selected for expedited screening. TSA will always incorporate random and unpredictable security measures throughout the airport, and no individual is guaranteed expedited screening. TSA encourages all potential passengers to learn about the TSA Pre✓ TM program by going to its Web site at www.tsa.gov. 11 These individuals currently can receive some form of expedited screening, are permitted to leave their shoes, light jackets, and headwear on for screening, and are screened primarily by the Walk-Through Metal Detector (WTMD). See https://www.tsa.gov/travel/special-procedures, https://www.tsa.gov/travel/special-procedures/traveling-children. 12 https://www.tsa.gov/tsa-precheck. 13 https://www.tsa.gov/tsa-precheck. See also Ruskai v. Pistole, 775 F.3d 61, 64 (1st Cir. 2014) (“Additionally, TSA has opted to impose more limited screening burdens on passengers whom it confirms are part of TSA's PreCheck program. As described in the briefing, PreCheck offers passenger members `expedited screening in designated lanes if they have been cleared for such screening based on certain background checks conducted prior to their arrival at the airport,' and a more limited pat-down in the event that the passenger alarms a WTMD.”). As explained in the NPRM, in order to address privacy concerns and meet the statutory requirement to install and employ ATR software on all AIT units, TSA removed all backscatter AIT machines from screening checkpoints, and only millimeter wave AIT machines equipped with ATR are used to screen passengers. The ATR displays a generic outline on which boxes appear where an anomaly is detected. The outline is displayed on the AIT machine so that the passenger and the TSO are able to see the boxes. No specific image of an individual is created. TSA disagrees with statements that use of AIT has had a material impact on U.S. air travel and the comments did not contain data in support. TSA was unable to find empirical evidence that air travel is reduced due to AIT. TSA notes that based on PMIS data collected from 2009, the first full year of data collection, through 2013, the last full year of data available at the time TSA began drafting this final rule, approximately one percent of passengers have selected a pat-down over AIT screening. 14 TSA agrees with a commenter that independent polling on AIT acceptance shows strong public support for and understanding of the need for AIT. 15 14 PMIS is a database used to track checkpoint operations. The database contains information on AIT use. 15 78 FR 18296 at footnote 62. D. TSA Authority To Use AIT Comments: Many individual commenters stated that TSA has overstepped its authority by deploying AIT and that the agency itself should be eliminated or that AIT should be eliminated as a screening technology. Additionally, many individual commenters stated that responsibility for airport security and the costs should be returned to either the owners of airports or the airlines. A non-profit organization referenced 49 U.S.C. 44903(b)(2)(A) and 49 U.S.C. 44903(b)(2)(B) to support its statement that the proposed rule is inconsistent with statutory requirements to protect passengers and the public interest in promoting air transportation. The organization stated that TSA is not authorized “to sexually assault passengers” under current statutes or regulations. An individual commenter stated that TSA, as a Federal agency, has no jurisdiction over public airports, which the commenter stated are mostly on state land. Another individual commenter alleged that the Administrator of TSA acted illegally implementing AIT and stated he should be removed from office and charged accordingly. TSA Response: TSA has the statutory authority to deploy AIT. The Administrator of TSA has overall responsibility for civil aviation security, and Congress has conferred on the Administrator authority to carry out that responsibility. 16 Federal law requires that the Administrator “assess threats to transportation,” and “develop policies, strategies, and plans for dealing with threats to transportation security.” 17 16 49 U.S.C. 114(d). 17 49 U.S.C. 114(f). Prior to the terrorist attacks of September 11, 2001, and the enactment of the Aviation and Transportation Security Act (ATSA), 18 air carriers were required to conduct the screening of passengers and property and did so in accordance with regulations issued by the Federal Aviation Administration (FAA) and security programs approved by the FAA. 19 The security programs were sensitive security information (SSI) and were not shared with the public. 20 The ATSA transferred that responsibility to TSA, as codified at 49 U.S.C. 44901(a), and required the TSA Administrator to provide for the screening of all passengers and property that will be carried aboard a passenger aircraft. Federal law also requires the TSA Administrator to prescribe regulations to require air carriers to refuse to transport a passenger or the property of a passenger who does not consent to a search, and to protect passengers and property on an aircraft against an act of criminal violence or aircraft piracy. 21 As commenters noted, when prescribing certain regulations, the Administrator is required to consider whether the regulation is consistent with protecting passengers and the public interest in promoting air transportation. 22 Air transportation security is essential to ensure the freedom of movement for people and commerce. As the U.S. Court of Appeals for the First Circuit wrote in Ruskai, “[p]lanes blown out of the sky in Russia and attempted bombings on U.S. airliners in recent years have warned TSA that its screening procedures must be capable of detecting both metallic and nonmetallic threats.” 23 TSA has determined that AIT is the best method currently available to screen passengers for both metallic and nonmetallic threats concealed under clothing. 18 Public Law 107-71 (115 Stat. 597, Nov. 19, 2001). 19 14 CFR part 108, 66 FR 37330 (July 17, 2001). The FAA Administrator prescribed regulations requiring air carriers to screen all passengers and property before boarding. 20 See 14 CFR 191.7(a) (2001). 21 49 U.S.C. 44902(a) and 44903(b). 22 49 U.S.C. 44903(b)(1),(2), and (3). 23 Ruskai v. Pistole, 775 F.3d, 61, 63 (1st Cir. 2014). As explained in the NPRM, Congress has directed that TSA prioritize the development and deployment of new technologies to detect all types of terrorist weapons at airport screening checkpoints, including the submission of a strategic plan to promote the optimal utilization and deployment of a range of detection technologies, including, “backscatter x-ray scanners.” 24 TSA has complied with this statute and with the subsequent statutory requirement that all AIT units used for passenger screening be equipped with ATR software, which eliminates passenger-specific images and only produces a generic outline. 25 Since May 16, 2013, all AIT units deployed by TSA have been equipped with ATR software; AIT units that could not accommodate ATR software have been removed from the airports. 24 49 U.S.C. 44925(a) and (b). “Detection Equipment at Airport Screening Checkpoints,” Report to Congress, Aug. 9, 2005. See also 78 FR 18292. 25 49 U.S.C. 44901(l). E. Congressional Directive To Deploy AIT Comments: Some commenters addressed the 2004 congressional directive discussed in the NPRM regarding the development and deployment of new screening equipment. An individual commenter noted that this congressional direction specifically included the investment in and deployment of AIT. Other commenters, however, stated that TSA's implementation of AIT is inconsistent with congressional direction. Specifically, a privacy advocacy group stated that TSA's deployment of AIT is inconsistent with a qualifier in the congressional directive—that the agency develop equipment to detect threats that terrorists would likely try to smuggle aboard an air carrier aircraft. 26 The commenter stated that TSA has demonstrated an overly broad interpretation of the congressional authorization and that, although the agency repeatedly cites AIT's abilities to identify weapons, the NPRM does not establish how such weapons are likely to be smuggled aboard planes by terrorists. The commenter further stated that TSA must analyze and evaluate AIT and alternatives regarding the ability to detect weapons and explosives likely to be used by terrorists, and demonstrate that AIT best achieves that goal with concrete evidence. The commenter stated that the analysis on which TSA currently relies fails to do either satisfactorily. 26 49 U.S.C. 44925(a). One individual commenter stated that a congressional directive is insufficient to supplant TSA's duty to make a reasoned decision regarding the use of AIT. An individual commenter expressed concern that TSA did not act in accordance with the congressional direction because the agency acted without either public input or independent testing, and pursued a technology the commenter stated was purchased as part of a “corrupt deal.” Another individual commenter stated that Congress authorized TSA to procure and deploy AIT only as a secondary screening tool at security checkpoints—not as a primary means of screening. Other individual commenters stated that even if Congress has authorized the proposed deployment of AIT, the proposed use of AIT is not necessarily legal or the appropriate course of action, and TSA was not performing the agency's own due diligence in trying to restrain the executive and legislative branches subsequent to congressional direction. TSA Response: TSA is in compliance with Federal law, as well as congressional directives to pursue the development of new, advanced detection technology. 27 AIT addresses a critical vulnerability in aviation security. While WTMD and hand-held metal detectors are unable to screen for nonmetallic items, AIT can detect non-metallic explosives and other non-metallic threats, such as plastic firearms and knives. Explosives Trace Detection Devices (ETD) screen for nonmetallic explosives, but the process is too slow to perform on the same number of passengers as are currently screened by AIT. Congress clearly recognized this issue when it directed TSA to “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.” 28 There is no requirement in the statute or in any of the congressional reports to limit the use of AIT to secondary screening. 27 See 49 U.S.C. 44925(a) and 44901(l). 28 49 U.S.C. 44925(a). AIT provides greater detection capability for weapons, explosives, and other threats concealed on a passenger's body that may not trigger a metal detector. Concealed threat items, including nonmetallic explosives, pose a substantial threat to aviation security. As the former TSA Administrator explained in an August 2013 speech to the Airports Council International/North America, “With respect to the evolving security challenges we all face today, one of the principal concerns we have is the continued migration to more nonmetallic threats such as liquid and plastic explosives.” 29 As explained in the NPRM, 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. 78 FR 18291. More recently, in the spring of 2012, AQAP developed another concealed, nonmetallic explosive that had a new level of redundancy in the event the primary system failed. Fortunately, this plot was thwarted. 30 Additionally, open source information shows that terrorists currently plan to conduct attacks against the United States. Terrorists test the limits of TSA's ability to detect nonmetallic explosives concealed under clothing; the destruction of passenger aircraft remains a terrorist priority. 29 John S. Pistole, TSA Administrator, address at the Airports Council International-North America (Aug. 14, 2013). Text available at https://www.tsa.gov/news/speeches/airports-council-international-%E2%80%93-north-america-tsa-administrator-john-s-pistole-0. 30 Id. Note that these examples occurred on flights originating outside of the United States. Therefore, TSA's AIT would not have been in place to detect the devices. F. Compliance With the Administrative Procedure Act Comments: Some commenters addressed concerns related to the Administrative Procedure Act (APA). Generally, commenters stated that TSA has not complied with the APA's procedural requirements. Non-profit organizations, a privacy advocacy group, and individual commenters stated that TSA did not comply with APA requirements prior to initial deployment of AIT. A privacy advocacy group stated that the agency received two petitions signed by numerous civil liberties organizations to institute a rulemaking proceeding, yet failed to initiate such a proceeding. A few individual commenters stated that if TSA had initially complied with rulemaking procedures, the public likely would have rejected the proposed action, and TSA would not have been able to deploy the technology. A privacy advocacy group and an individual commenter raised further concerns regarding the money spent on the deployment of AIT despite the lack of opportunity for public comment. Commenters stated that the proposed rule and justification provided in the NPRM would not meet the arbitrary and capricious standard applied to agency actions under the APA. A privacy advocacy group stated that factors regarding effectiveness, alternatives, and health risks were not considered and the term “anomaly” was not adequately explained. Commenters also stated that the proposed regulatory language effectively failed to provide the public with adequate notice and denied the public the opportunity to provide meaningful comment because the rule is too broad and vague, and descriptive information on the program was omitted. An individual commenter wrote that noncompliance with APA requirements indicated TSA acts as it chooses without accountability. Another individual commenter requested TSA to commit to complying with APA requirements in the future. A non-profit organization requested that TSA hold public hearings in the future before imposing new procedures and policies, but specified that the agency should retain the authority to declare emergency regulations and procedures without public hearings or a comment period. Further, an individual commenter suggested that TSA withdraw the proposed rule and issue an advance notice of proposed rulemaking to allow TSA to gather missing information in order to receive comments that are more meaningful. An advocacy group and an individual commenter stated that TSA only issued a NPRM because it was court-ordered. Other commenters wrote that TSA had the option to request public input prior to implementing and deploying AIT scanners. TSA Response: As discussed above, TSA deployed AIT consistent with its statutory authority and as directed by Congress. TSA issued the NPRM consistent with the opinion of the U.S. Court of Appeals for the DC Circuit in EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011). In that case, TSA contended it had properly processed letters it received from EPIC and other groups regarding the initiation of a rulemaking proceeding. TSA also described how the deployment of AIT was consistent with statutory exceptions to the notice-and-comment requirements of the APA. The court did not agree. “None of the exceptions urged by the TSA justifies its failure to give notice of and receive comments upon such a rule.” 31 The court explained that, 31 EPIC, 653 F.3d at 11. [d]espite the precautions taken by the TSA, it is clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not. Therefore, regardless whether this is a `new substantive burden,'. . . the change substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking. 32 32 Id. at 6. A subsequent decision by the same court, however, indicates that TSA's decision not to engage in rulemaking prior to deploying AIT was not unreasonable. Following the court's APA ruling, EPIC petitioned the court to recover attorney's fees under the Equal Access to Justice Act (EAJA). 28 U.S.C. 2412(d). The EAJA allows attorney's fees to be recovered unless the position of the government “was substantially justified or . . . special circumstances make an award unjust.” 33 In denying EPIC's request to recover attorney's fees, the court stated, “[t]he TSA's position regarding the only issue on which EPIC prevailed—whether the agency improperly bypassed notice and comment in adopting the new screening technology—was substantially justified.” 34 33 28 U.S.C. 2412(d)(1)(A). 34 EPIC v . DHS, No. 10-1157 (Order filed Feb. 15, 2012). Federal regulation stipulates that no individual may enter the sterile area of an airport or board an aircraft without submitting to the screening and inspection of his or her person and accessible property “in accordance with the procedures being applied to control access to that area or aircraft. . . .” 49 CFR 1540.107(a). This requirement was originally promulgated by the FAA through notice and comment rulemaking and then transferred to TSA by ATSA. 35 35 See 62 FR 41730, 63 FR 19691, and 66 FR 37330, 37360. The ATSA transferred that authority from FAA to TSA in 2001. On February 22, 2002, the TSA and FAA published a final rule titled “Civil Aviation Security Rules,” 67 FR 8340, transferring the regulations at 14 CFR parts 107, 108, 109 and 191 to 49 CFR parts 1540, 1542, 1544, 1548, and 1520, and §§ 129.25 and 129.26 to part 1546. Although TSA acknowledges that it did not engage in notice and comment rulemaking related to the deployment of AIT specifically prior to its use, TSA does not agree with statements by commenters that there was no public notice of TSA's use of AIT. Prior to the deployment of AIT, TSA conducted years of testing on the safety, effectiveness, and efficiency of the technology. 36 Contrary to the assertion of a commenter regarding the purchase of AIT equipment, the AIT equipment was obtained in accordance with all government procurement requirements, which includes the public solicitation of bids. 37 TSA also considered alternatives to AIT and these are discussed in the NPRM and the RIA. In 2007, TSA initiated the first pilot test of AIT in the secondary screening position. In January 2008, TSA published a Privacy Impact Assessment (PIA), which encompassed AIT screening of all passengers, both as a primary and secondary form of passenger screening. 38 The PIA provided notice to the public regarding TSA's use of the technology. It stated that TSA published extensive information on the technology on its Web site beginning in February 2007 and conducted outreach with national press and with privacy advocacy groups to explain the evaluation of the technology. The PIA explained that informational brochures were made available to the public at each pilot site showing the image that the technology created. The cover page of each PIA includes a point of contact for the public to reach out to with questions or concerns. In 2009, TSA began to test AIT as the primary screening equipment. In 2010, TSA submitted a Report to Congress on privacy protections and deployment of AIT. 39 TSA also published information on its Web site to inform passengers of AIT procedures at the checkpoint at www.tsa.gov. The public may provide comments or concerns regarding AIT by contacting the TSA Contact Center. 40 36 See, e.g., “Detection Equipment at Airport Screening Checkpoints,” Report to Congress, Aug. 9, 2005. The report describes TSA's ongoing research and development program to develop technologies to increase its ability to detect explosives on passengers, including body imaging systems, i.e., backscatter x-ray. 37 See The TSA is seeking sources for Imaging Technology systems, Solicitation No. HSTS04-08-R-CT2056, https://www.fbo.gov/index?s=opportunity&mode=form&id=be7cd5b087bd3d28ce6bee81f7644141&tab=core&_cview=1. 38 “Privacy Impact Assessment for TSA Whole Body Imaging,” Jan. 2, 2008. Updates to the initial AIT PIA were conducted on Oct. 17, 2008, Jul. 23, 2009, and Jan. 25, 2011. See http://www.dhs.gov/publication/dhstsapia-032-advanced-imaging-technology. All TSA PIA reports are available at http://www.dhs.gov/privacy-documents-transportation-security-administration-tsa. 39 “Advanced Imaging Technologies: Passenger Privacy Protections,” Fiscal Year 2010 Report to Congress, Feb. 25, 2010. 40 https://www.tsa.gov/contact. As directed by the court, TSA issued the NPRM and invited public comment on its proposed regulation regarding the use of AIT for primary screening of passengers. The NPRM invited public comment on a variety of issues related to the use of AIT, including the threat to aviation security, types of AIT equipment, privacy safeguards, safety, AIT procedures and items discovered using AIT. TSA received thousands of comments on these issues. In response to comments and to avoid confusion, TSA has altered the regulatory text in the final rule. TSA has determined not to define AIT using the term “anomaly”; instead, TSA has adopted the statutory definition of AIT, i.e., a device used in the screening of passengers that creates a visual image of an individual showing the surface of the skin and revealing other objects on the body. In addition, TSA has clarified the final rule by adopting the statutory provision to deploy AIT equipped with ATR software. Thus, AIT equipment must produce a generic image of the individual being screened that is the same as the images produced for all other screened individuals. These changes are in response to the concerns of commenters regarding the breadth of the regulatory text, and significantly mitigate any privacy concerns associated with the use of AIT as a primary screening method. Accordingly, and consistent with TSA's obligation to complete this rulemaking and TSA's discretion to prioritize its rulemaking resources, TSA does not intend to issue a supplemental NPRM or hold public hearings on this matter. TSA addresses issues regarding effectiveness and safety in subsequent responses. G. Adherence to the Court Decision in EPIC v. DHS Comments: Commenters also discussed the court's decision in EPIC v. DHS. Several individual commenters specifically supported EPIC's position that AIT scanners are invasive of individual privacy. Another individual commenter opposed the court's decision to allow TSA to continue use of AIT. A privacy advocacy group wrote that the NPRM incorrectly stated the holding of the case. A privacy advocacy group and many individual commenters pointed out the length of time that elapsed between the court decision and the issuance of the NPRM. A privacy advocacy group stated that it filed three mandamus petitions during the elapsed 2-year period. An advocacy group stated that the constitutional issue raised by EPIC was not ripe for decision because the court did not have a rulemaking record before it and speculated that the court might invalidate its holding regarding the Fourth Amendment in a future judicial review of this rulemaking. TSA Response: TSA is in compliance with the court's directive to engage in notice-and-comment rulemaking on the use of AIT to screen passengers. TSA notes that all of EPIC's other constitutional and statutory challenges to the use of AIT, including its Fourth Amendment claims, were rejected by the court. The court also rejected EPIC's petition for rehearing (including the Fourth Amendment ruling), as well as three subsequent petitions that EPIC filed demanding immediate issuance of the NPRM. TSA notes that the court issued its decision before TSA instituted ATR software on all of the millimeter wave AIT units and removed all of the backscatter units from service. The ATR software does not produce an individual image of a passenger that must be reviewed by a TSO, but instead reveals a generic outline that is visible to the passenger as well as the TSO. In a recent case decided after these changes in AIT equipment were implemented, the U.S. Court of Appeals for the First Circuit held that a constitutional challenge to AIT body scanners that depict revealing images of bodies and pat-downs procedures for passengers who opted out of screening using AIT became moot following the installation of ATR software on all millimeter wave units and the removal of backscatter machines. 41 41 Redfern v. Napolitano, 727 F.3d 77, 83-85 (1st Cir. 2013). H. Fourth Amendment Issues Comments: Commenters also addressed concerns related to the Fourth Amendment. The vast majority of these commenters stated that use of AIT constitutes a violation of Fourth Amendment rights. Individual commenters stated that AIT fails to meet the standard of a constitutionally permissible search. Specifically, some individual commenters stated that TSA could not conduct such searches without a warrant. Individual commenters also stated that neither the purchase of an airline ticket nor a desire to travel is sufficient to give TSA “probable cause” to conduct a search. Others stated that AIT is impermissible under Federal case law. Several individual commenters cited the holding in U.S. v. Davis, in which the U.S. Court of Appeals for the Ninth Circuit held that administrative searches must be “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.” 42 Several individual commenters stated that the AIT screening process fails to meet this standard because elements of the scan and the opt-out alternative are too intrusive, and the scope of the scan is not tailored narrowly enough to exclusively identify weapons, explosives, and incendiaries ( e.g., AIT is able to identify items such as adult diapers and women's sanitary products, which commenters stated are outside the scope of threats TSA is trying to identify). Individual commenters recommended alternative search methods that they thought were less invasive and better suited to meet TSA's need, such as x-raying suitcases, using WTMD, and only using AIT as a secondary means of screening. 42 482 F.2d 893, 913 (9th Cir. 1973). Other court cases cited in the comments to support claims that AIT violates the Fourth Amendment include: U.S. v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986), U.S. v. Skipwith 482 F.2d. 1272 (5th Cir. 1973), U.S. v. Hartwell, 436 F.3d 174 (3d Cir. 2006), Camara v. Municipal Court, 387 U.S. 523 (1967), Missouri v. McNeely, 133 S.Ct. 1552 (2013), Katz v. U.S., 389 U.S. 347 (1967). An individual commenter also cited a court decision pertaining to virtual strip searches, Reynolds v. City of Anchorage, 379 F.3d 358 (6th Cir. 2004) to support opposition to AIT. An individual commenter observed that, even though AIT use was not found to be in violation of the Fourth Amendment in EPIC v. DHS, the subsequent issuance of an NPRM, which does not specify the degree to which AIT will be used to promote the government's interest, may result in TSA's failure to meet the balancing test applied to Fourth Amendment rights cases. TSA Response: The court in EPIC held that the use of AIT as a primary screening method at an airport security checkpoint does not violate the Fourth Amendment. 43 This decision is consistent with decisions by the U.S. Supreme Court and the Federal circuits that have upheld airport security screening as a valid administrative search that does not require a warrant, probable cause, reasonable suspicion, or the consent of the passenger. 44 More than 30 years ago, the U.S. Court of Appeals for the Third Circuit recognized that the government “unquestionably has the most compelling reasons,” including “the safety of hundreds of lives and millions of dollars' worth of private property for subjecting airline passengers to a search for weapons and explosives.” Singleton v. Comm'r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979). “[T]he events of September 11, 2001, only emphasize the heightened need to conduct searches at this nation's international airports,” U.S. v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002). In a recent opinion issued by the U.S. Court of Appeals for the Eleventh Circuit, the Court concluded that AIT “is a reasonable administrative search under the Fourth Amendment.” 45 43 EPIC, 653 F.3d at 10. 44 Chandler v. Miller, 520 U.S. 305, 323 (1997) (“We reiterate, too, that where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as `reasonable'-for example, searches now routine at airports”), Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989) (“The point [of valid suspicionless searches] is well illustrated also by the Federal Government's practice of requiring the search of all passengers seeking to board commercial airlines . . . without any basis for suspecting any particular passenger of an untoward motive.”), U.S. v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc) (“The constitutionality of an airport screening search, however, does not depend on consent.”). 45 Corbett v. TSA, 767 F.3d 1171, 1180 (11th Cir. 2014) (“The scanners at airport checkpoints are a reasonable administrative search because the governmental interest in preventing terrorism outweighs the degree of intrusion on . . . privacy and the scanners advance that public interest.”). Like other exceptions created by courts for searches that do not require a warrant, the administrative search within the airport context reflects the careful balancing of the public's privacy interests against the compelling goal of protecting the traveling public. As explained by the D.C. Circuit in EPIC, because the primary goal of airport screening is “not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack,” airport screening is permissible under the Fourth Amendment without individualized suspicion so long as the government's interest in conducting screening outweighs the degree of intrusion on an individual's privacy. 46 The court made clear that this standard does not require the government to use the least intrusive search method possible. 47 In fact, the U.S. Supreme Court has held that the scope of the administrative search must be “reasonably related to [its] objectives” and “not excessively intrusive.” 48 In EPIC, the court found that the— 46 EPIC, 653 F.3d at 10. 47 Id. at 10-11. 48 City of Ontario v. Quon, 560 U.S. 746, 761 (2010) (internal quotation marks omitted). balance clearly favors the Government here. The need to search 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. On the other side of the balance, we must acknowledge the steps TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. 49 [Citations omitted] 49 EPIC, 653 F.3d at 10. With the addition of ATR software and the elimination of any individual image, the balance tips even more in favor of the government. Courts have also held that, “absent a search, there is no effective means of detecting which airline passengers are reasonably likely to hijack an airplane.” 50 50 See Singleton v. Comm'r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979). See also U.S. v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005) (“Little can be done to balk the malefactor after weapons or explosives are successfully smuggled aboard, and as yet there is no foolproof method of confining the search to the few who are potential hijackers.” (quoting Davis, 482 F.2 at 910)). Commenters' claims and citations to support the position that the least intrusive search method must be adopted are contrary to U.S. Supreme Court precedent in Quon, as well as the EPIC decision. In fact, the court in EPIC specifically rejected the argument that U.S. v. Hartwell, cited in many of the comments, stands for the proposition that AIT scanners must be minimally intrusive to be consistent with the Fourth Amendment. 51 Moreover, especially following the universal deployment of ATR software, TSA believes that the use of AIT as a primary screening method is not intrusive. The scan and the results require just a few seconds. Passengers are not subjected to any physical intrusion. The only potential for invasiveness occurs when AIT alarms, thereby requiring additional screening to verify whether a threat item is present. 52 Passengers are instructed through TSA's Web site and cautioned before they enter the AIT unit to remove all items from their pockets to prevent an alarm. 51 EPIC, 653 F.3d at 10-11. 52 In other limited circumstances, based on the particular item of clothing, TSA may require additional screening even if the AIT does not alarm. TSA is not required to use any of the alternatives to AIT mentioned in the comments to achieve the legal requirements of a valid search. For example, all baggage, whether checked or carry-on, is already screened as required under 49 U.S.C. 44901. Limiting an airport search to baggage, however, would not address the threat that a person could conceal an explosive on his or her person. The government has latitude under the Fourth Amendment to choose among reasonable alternatives for conducting an administrative search. 53 AIT is the only technology that will find both metallic and non-metallic items, and will find both explosives and non-explosives items. The WTMD only finds metallic items, thus does not find such threats as explosive devices made without metal, or other non-metallic items. The ETD will find only explosives, not metallic items (such as firearms) or non-metallic items that are not explosives (such as ceramic knives); the same is true for explosives detection canines. Pat-down screening is useful for finding both metallic and non-metallic items, and will find both explosives and non-explosives items, however, that method is slower than AIT and many persons consider pat downs to be more intrusive than AIT. 53 Quon, 560 U.S. at 764 (“Even assuming there were ways that [the government] could have performed the search that would have been less intrusive, it does not follow that the search conducted was unreasonable.”). The other cases cited in the comments, particularly those relating to whether consent is required for airport screening, are inapplicable. Both U.S. v. Davis, 482 F.2d 893 (9th Cir. 1973) and U.S. v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986) regarding whether a passenger must consent to a search, have been superseded by the decision of the U.S. Court of Appeals for the Ninth Circuit in U.S. v. Aukai . 54 In Aukai, the court confirmed that airport screening searches are constitutionally reasonable administrative searches and clarified that the reasonableness of such searches does not depend, in whole or in part, upon the consent of the passenger being searched. 55 U.S. v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), deals with a law enforcement search based on suspicion, which is not required for the administrative search performed by TSA. Neither Camara v. Municipal Court, 387 U.S. 523 (1967), Missouri v. McNeely, 133 S. Ct. 1552 (2012), nor Katz v. U.S., 389 U.S. 347 (1967) involves the administrative search conducted by TSA at airport security checkpoints, which courts have consistently found is justified by the compelling government interest in protecting the traveling public. 56 Finally, the reference to strip search cases by a commenter is not applicable to AIT given the privacy restrictions TSA used when it first deployed AIT and even more so now that all AIT units are equipped with ATR software and do not display an individual image. In addition, the AIT units do not have the ability to store, print, or transmit any images. As noted previously, a TSO does not usually touch a passenger's body unless the AIT alarms. With ATR, there is no individual image of a traveler; the generic outlines produced are so innocuous that they are displayed publicly at the airport. 54 U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc). 55 Aukai, 497 F.3d at 957. 56 See generally Marquez, 410 F.3d 612,618 (“It is hard to overestimate the need to search air travelers for weapons and explosives”) and Singleton, 606 F.2d 50, 52 (“the government unquestionably has the most compelling reasons . . . for subjecting airline passengers to a search for weapons or explosives that could be used to hijack an airplane.”). The facts in Camara involved the attempted search of a home without a warrant. The Supreme Court found that the government was not able to articulate a special need or legitimate public interest to justify dispensing with the requirement to obtain a warrant. In McNeely, a blood test of a person suspected of driving while intoxicated was obtained without a warrant. In Katz, the Supreme Court held that electronically listening to and recording an individual's conversation at a public telephone booth without a warrant violated the Fourth Amendment. I. Other Legal Issues Comments: Commenters raised other legal issues in opposing AIT. Several individual commenters, a non-profit organization, and several advocacy groups stated that AIT scanning and/or opt-out process violates rights guaranteed by the First, Second, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments, respectively. Commenters did not generally provide further substantive legal arguments in support of these constitutional claims. An advocacy group, however, cited a Supreme Court case, Aptheker v. Sec'y of State, 378 U.S. 500, 505 (1964), which held that if a law “too broadly and indiscriminately restricts the right to travel” it “thereby abridges the liberty guaranteed by the Fifth Amendment.” The commenter further stated that the court considered relevant “that Congress has within its power `less drastic' means of achieving the congressional objective of safeguarding our national security.” An individual commenter cited U.S. v. Guest, 383 U.S. 745 (1966) and Shapiro v. Thompson, 394 U.S. 618 (1969) in opposing the use of AIT. Another advocacy group cited 49 U.S.C. 40101, 40103, and the International Covenant on Civil and Political Rights, a treaty that the U.S. has ratified, as further reinforcing the right to travel. The commenter remarked that the NPRM does not recognize that travel by air and, specifically, by common carrier, is a right and that TSA must evaluate its proposed actions within that context. Similarly, an individual commenter stated that TSA's use of AIT involves limitations on constitutional rights and, therefore, strict scrutiny should be the judicial review standard applied. Another individual commenter stated that implementation of AIT scanners assumes travelers' guilt, which is in violation of the principle of the presumption of innocence. One individual commenter stated that it is outside of TSA's mission to identify and confiscate items that are not a threat ( e.g., illegal drugs) and that such “mission creep” is an inappropriate use of Federal funds and distracts TSA staff from their actual mission. Other individual commenters stated that AIT and pat-downs violate laws prohibiting sexual molestation. A non-profit organization suggested that TSA review and modify its policies to ensure that they do not conflict with existing state law procedures protecting children from physical and sexual assault or with existing child protective services legislation. TSA Response: As to the claims of violations of the Constitution, as explained in the response to the previous grouping of comments, in recognition of the importance of the safety concerns at issue, courts have regularly upheld airport screening procedures against constitutional challenges. Thus, it is well settled as a matter of law that an airport screening search conducted to protect the safety of air travelers is a legitimate exercise of government authority and does not impinge on any of the constitutional amendments listed in the comments. Passengers are on notice that their persons and their property are subject to search prior to entering the sterile area of the airport or boarding an aircraft. Federal law requires “the screening of all passengers and property” before boarding an aircraft to ensure no passenger is “carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” 49 U.S.C. 44901(a) and 44902(a). Federal law also requires commercial air carriers to prevent anyone from boarding who does not submit to security screening. 49 U.S.C. 44902(a). The use of AIT to conduct passenger screening does not implicate any constitutional rights in the manner described in the comments. Passengers are not restricted regarding their speech or right to assemble so long as they do not interfere with screening. 57 Passengers may transport unloaded firearms in checked baggage in a locked, hard-sided container, thus, there is no infringement of Second Amendment rights. 49 CFR 1540.111. In general, the Fifth, Sixth, and Eighth Amendments have to do with the rights of persons accused of a crime and have no relevance to airport security screening conducted by TSA. Federal law requires that screening be conducted on all passengers and property prior to boarding an aircraft, and rights reserved for citizens or the states, discussed in the Ninth and Tenth Amendments respectively, are not impacted by airport screening. Comments invoking the Fourteenth Amendment generally did so without specifying which clause of the Amendment is at issue the or how it was implicated by AIT, or invoked it in connection with non-AIT aspects of TSA screening. 57 Interference with screening is prohibited by 49 CFR 1540.109. TSA defines interference in part as that which “might distract or inhibit a screener from effectively performing his or her duties,” to include verbal abuse of screeners by passengers or air crew, but not good-faith questions from individuals seeking to understand the screening of their persons or property. See 67 FR 8340, 8344 (Feb. 22, 2002). Interference with screening might also include passenger activity that requires a screener to “turn away from his or her normal duties to deal with the disruptive individual,” or might “discourage the screener from being as thorough as required.” See id.; 49 CFR 1540.109; Rendon v. TSA, 424 F.3d 475 (6th Cir. 2005) (constitutional rights not infringed when penalty was imposed on traveler who became loud and belligerent after he set off metal detector alarm which required screener to shut down his line and call over his supervisor). Federal courts have long held that airport screening searches do not violate a traveler's right to travel. 58 “Air passengers choose to fly, and screening procedures . . . have existed in every airport in the country since at least 1974.” 59 The holding in Aptheker, cited by a commenter, pertained to whether Section 6 of the Subversive Activities Control Act of 1950, which restricted members of Communist organizations in obtaining or using a passport, was constitutional. It has no application to the use of AIT to conduct airport screening, which does not restrict a person's right to travel, the ability to obtain a passport, or the ability to obtain documentation necessary to enter a country legally. Further, the Ninth Circuit Court of Appeals has held that TSA's regulation requiring passengers to present identification prior to entering a sterile area or boarding an aircraft, 49 CFR 1540.107(b), does not violate any Constitutional rights. 60 58 U.S. v. Davis, 482 F.2d 893 (9th Cir. 1973). 59 Hartwell, 436 F.3d at 174. 60 Gilmore v. Gonzales, 435 F.3d 1125, 1136-1137 (9th Cir. 2006) (“We reject Gilmore's right to travel argument because the Constitution does not guarantee the right to travel by any particular form of transportation . . . . Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him.”). As to the comment regarding the confiscation of items that are not a security threat such as illegal drugs, the purpose of TSA screening is to prevent weapons, explosives, and other items that could pose a security threat (prohibited items) from being carried into the sterile area of the airport or onboard an aircraft in order to ensure the freedom of movement for people and commerce. 49 CFR 1540.111. TSA's mission has not changed. TSOs do not search for other illegal items. When searching for prohibited items, however, it is not unusual for TSOs to uncover items that may be evidence of criminal activity. When that happens, the TSO turns such matters over to law enforcement officers to resolve, consistent with applicable criminal statutes. TSOs do not take possession of such items. In addition, once an anomaly is detected by AIT, or a metal object is detected by a WTMD, or either screening system misalarms, additional screening must take place to determine whether there is an item, and if so, if the item detected is a threat to aviation security. As the court in Hartwell noted, “Even assuming that the sole purpose of the checkpoint was to search only for weapons or explosives, the fruits of the search need not be suppressed so long as the search itself was permissible. . . . Since the object in Hartwell's pocket could have been a small knife or bit of plastic explosives, the TSA agents were justified in examining it.” 61 61 Hartwell, 436 F.3d at 181 n.13. See also Marquez, 410 F.3d at 617 (“The screening at issue here is not unreasonable simply because it revealed that Marquez was carrying cocaine rather than C-4 explosives.”). TSA's pat-down procedures are designed to ensure that any touching of the body by a TSO is minimally intrusive while effectively screening for prohibited items. A TSO does not touch a passenger's body unless necessary to resolve an AIT alarm, or unless the passenger has opted for a pat-down, and the procedures are largely similar to those employed to resolve WTMD alarms. Touching of the body to perform this essential security function is fully within the scope of TSA's authority, and TSA's procedures are consistent with civil and criminal state laws. Sexual molestation or inappropriate touching of a passenger by an employee is strictly prohibited and TSA has procedures in place to investigate any allegations of such conduct thoroughly. TSA takes all allegations of misconduct seriously. Passengers who believe they have experienced unprofessional conduct at a security checkpoint may request to speak to a supervisor at the checkpoint or write to the TSA Contact Center at TSA-ContactCenter@dhs.gov. Passengers who believe they have been subject to discriminatory treatment at the checkpoint may file a complaint with TSA's Office of Civil Rights & Liberties, Ombudsman and Traveler Engagement (OCRL/OTE) at TSA-CRL@tsa.dhs.gov, or submit an online complaint at https://www.tsa.gov/contact-center/form/complaints . 62 The Office of Inspection, in addition to OCRL/OTE and management, may investigate misconduct allegations. Travelers may also file discrimination complaints concerns with the DHS Office for Civil Rights and Civil Liberties (CRCL) via CRCL's Web site at http://www.dhs.gov/complaints . In addition, as discussed further below, TSA has amended its screening procedures to modify the pat-down used when necessary to screen children age 12 and under and adults age 75 and older and has reduced the instances where such passengers would be subject to a pat-down. 62 More information on TSA Civil Rights is available at https://www.tsa.gov/travel/passenger-support/civil-rights . J. Evolving Threats to Security Comments: Commenters also addressed the evolving threats to aviation security discussed by TSA in the NPRM. Some commenters stated that TSA's screening efforts are not linked to the decrease in aircraft-related terror attempts since September 11, 2001. For example, individual commenters and a non-profit organization stated that the threat attempts listed in the NPRM were thwarted by intelligence efforts, not TSA screening. Other individual commenters, however, supported TSA's efforts to deploy tools like AIT scanners to detect and deter future attacks. Individual commenters credited secured cockpits and stricter policies for cockpit access with preventing terrorist attacks on commercial airlines since September 11, 2001. Furthermore, a few individual commenters suggested that in addition to enhanced cockpit security, passengers' awareness and willingness to fight back deters terrorists from targeting planes. Several commenters discussed the evolving threat from nonmetallic explosives. A few individual commenters suggested that TSA's response to the increased threat of nonmetallic explosives is not sustainable because terrorists will find other ways to hide devices. A few individual commenters disagreed with TSA's focus on nonmetallic threats, because these types of weapons have been used for several decades. A few individual commenters suggested that the long lines at checkpoints, which the commenters stated are caused by TSA screening, are more attractive targets to terrorists than airplanes. Lastly, several individual commenters stated there is no evidence indicating that terrorist threats similar in magnitude to September 11, 2001, are increasing. TSA Response: TSA agrees that the threat to aviation security by terrorists continues to evolve as terrorists test current security measures to uncover vulnerabilities to exploit. Terrorist groups remain focused on attacking commercial aviation. The primary threat from these groups is from explosive devices, as we have seen in incidents originating abroad, such as the non-metallic bomb used by the Christmas Day bomber in 2009, the toner cartridge printer bombs from Yemen placed on two cargo aircraft destined for Chicago in 2011, and the improved “next generation” underwear bomb also from Yemen, recovered by a foreign intelligence service in April 2012. The incidents abroad inform us of terrorists' intentions and capabilities, and are lessons that TSA must learn from to prevent terrorists from attempting such an act here. These examples show that terrorists continue to attack aviation, are capable of constructing non-metallic explosive devices, and continue to develop new ways to do so. Open source information indicates that terrorists continue to intend violence against aviation within the United States. TSA does not agree that intelligence reporting alone is responsible for thwarting terrorist threats. TSA agrees that improvements in intelligence gathering and sharing such information, along with other layers of security, including as mentioned in the comments, hardened cockpit doors and assistance from passengers, contribute greatly to aviation security. The combination of security layers, both seen and unseen, provides the best opportunity to detect and deter a terrorist attack. TSA also agrees that security procedures and equipment must continue to evolve as the threat evolves. As discussed above, AIT is the most effective technology currently available to detect both metallic and nonmetallic threats, both explosive and non-explosive, concealed under passenger clothing, TSA continues to research and test new equipment and procedures to stay ahead of evolving threats. TSA agrees that long lines at the checkpoints could pose a security risk and has taken steps to address long lines by monitoring throughput. However, TSA remains focused on the fundamentals of security, and strives to strike a balance between security effectiveness and line efficiency. Passengers can obtain information before they leave for the airport on what items are prohibited; acceptable ID; rules for liquids, gels and aerosols; and traveling with children. Guidance for travelers with disabilities, medical conditions or medical devices, tips for dressing and packing, and information on traveling with food and gifts is provided. In addition, as noted in the NPRM, the Web site contains instructions on AIT screening procedures. 78 FR 18296. Preparing in advance for security screening and following the instructions of the TSOs are the most effective ways to reduce lines at the checkpoint. K. TSA's Layers of Security Comments: Commenters addressed the TSA layers of security discussed in the NPRM. A privacy advocacy group suggested that the layered approach discussed by TSA is not supported by data and, therefore, does not justify the need for AIT. The commenter also recommended that TSA revise the layered approach so weaknesses in security can be identified. Furthermore, a few commenters suggested that TSA focus on other security methods, such as profiling, interviewing, and “Pre-check” screening programs to identify dangerous individuals. An individual stated that the efficacy of AIT screening has not been scientifically proven. The commenter further suggested that since there are other approaches used by TSA to identify potential threats, AIT would be most useful as a secondary screening method instead of as the primary screening method. A professional association, however, stated that because of the advanced methodologies of adversaries, technologies like AIT scanners are needed to secure air travel. The commenter suggested that techniques involving human intervention, such as Screening Passengers by Observation Techniques, the Behavioral Detection Officer program, and passenger screening canines would also be useful. Many commenters mentioned their support for the use of racial profiling tactics instead of AIT, and argued that such measures would be more efficient and effective. An advocacy group alleged that TSA's “trusted traveler program” approach would weaken security because it can eliminate entire classes of passengers from AIT screening. The commenter recommended that TSA consider other, less invasive and cost-effective screening procedures that would allow TSA to implement AIT as a secondary, rather than a primary, screening tool. Furthermore, the commenter suggested that TSA enhance layers of security by testing canine bomb detection, face recognition, and explosives residue machines, in an effort to reduce the need for AIT scanning. TSA Response: TSA believes that a comprehensive security system is the most effective means to address potential terrorist threats, since no single security measure may be sufficient by itself. TSA also agrees that ETD, behavior detection and passenger screening canine are valuable tools to address terrorist threats, and TSA uses these at airports. TSA does not agree with commenters that using AIT, as a secondary screening method, would be as effective as currently deployed. Limiting its use to resolve alarms of the WTMD, which can only detect metallic threats, would severely restrict our ability to prevent adversaries from smuggling non-metallic weapons and explosives on board an aircraft. As discussed above, AIT is the best technology currently available to detect both metallic and nonmetallic threats, and explosives as well as non-explosives. TSA has tested the effectiveness of the technology, and the equipment must meet TSA detection standards to be deployed in an airport. In addition, testing is conducted by the DHS Transportation Security Laboratory (TSL). The TSL Independent Test and Evaluation group provides certification and qualification tests and laboratory assessments on explosive detection capability. TSA procurement specifications require that any AIT system must meet certain thresholds with respect to the detection of items concealed under a person's clothing. While the detection requirements of AIT are classified, the procurement specifications state that any approved system must be sensitive enough to detect smaller items. Regarding the comments recommending racial profiling, transportation security screening is regulated by the Constitution, federal law, and applicable DHS and component policies setting forth the appropriate limits on use of race, ethnicity, and other characteristics. In addition, racial profiling is not an effective security measure and can easily be defeated. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity. In addition to being ineffective, profiling violates DHS policies and ultimately undermines the public trust. TSA disagrees with the commenter who wrote that TSA's trusted traveler program would weaken security. The TSA Pre✓ TM program is based on the premise that most passengers do not pose a risk to aviation security. This program will permit those passengers who voluntarily provide information for a security risk assessment to undergo expedited screening and allow TSOs to devote more time to screening unknown passengers. L. Effectiveness of AIT Screening Comments: Many commenters made general statements that AIT scanners are not effective in addressing security threats. An individual commenter stated that because TSA has not released data regarding the effectiveness of AIT scanners and the number of prohibited items detected by AIT, the NPRM would not be taken seriously. Some commenters, including a privacy advocacy organization and a community organization, stated that TSA has not provided enough information about what AIT can detect. The commenter stated that the agency has not made a distinction between an “anomaly” and a “threat.” Commenters also stated that the use of AIT scanners makes air travel more vulnerable to terrorism. Many submissions discussed the efficacy of AIT to detect anomalies concealed under the clothing of a passenger. Some commenters stated that AIT scanners are not effective because they cannot detect items that are concealed under fake skin, under skin folds, or under shoes, implanted bombs, and objects hidden inside of a person. A few individuals stated that objects are not detected if concealed on the side of the body. A commenter stated that a passenger was able to bring an empty metal box concealed under clothing through AIT units without detection. The commenter believed that the metal box was not detected because the rate at which the AIT beams reflect off the metal is the same rate at which beams reflect the background. The commenter stated that if an object like the metal box were placed at the side of a body, the object beam reflection would look no different from the blackened background. According to another individual commenter, a peer-reviewed publication in the Journal of Homeland Security stated that explosives with low “Z” like plastics look like flesh to the scanner because flesh is also low “Z.” A few individual commenters referred to a video posted by a blogger that the commenters stated portrayed a man who was able to conceal objects (both metal and nonmetal) from an AIT scanner by sewing the objects into the lining of his shirt. Some commenters discussed the ability of AIT to detect plastic, powder, and liquid explosives. One individual commenter stated that a 2007 government audit found that agents were able to pass through security checkpoints with explosives and bomb parts. Commenters stated that the explosives used by the “underwear bomber” and “shoe bomber” would not be detected by AIT. A commenter stated that a 2010 Government Accountability Office (GAO) report indicated that it remains unclear whether the AIT would have detected the weapon used in the December 2009 Christmas Day bomber incident based on the preliminary information GAO had received. An advocacy group also expressed concern that AIT scanners cannot detect pentaerythritol tetranitrate (the powder explosive the group states was used by the Christmas Day bomber), and claimed that this chemical continues to be used in other domestic and international terror attempts. An individual commenter alleged AIT could not detect explosives molded into specific shapes. Another individual commenter stated that since there are claims that AIT cannot detect powder explosives, AIT scanners are not fulfilling the statutory provision at 49 U.S.C. 44925 which TSA has used as justification for deploying AIT. An individual commenter suggested that, although the AIT scanners can adequately detect metal in firearms and concealed knives, security screening should also be able to detect explosives with negligible false negative rates and low false positive rates. The commenter recommended that a reasonable detection limit would be no lower than 20 percent of the amount of the explosive needed to bring an airplane down. The commenter suggested that systems that detect significant quantities of explosives or detonators should be used for screening baggage and items concealed under clothing. A few individuals expressed concern that because AIT on its own cannot differentiate between threatening objects and non-threatening objects, passengers carrying non-threatening objects are subject to more intrusive, secondary searches including pat-downs. A community organization stated that travelers of the Sikh religion are often subject to secondary searches even when the AIT scanner did not identify any anomalies. Similarly, an individual commenter stated that, although AIT scanners can detect anomalies, often times a pat-down could not resolve whether the anomaly is a threat. An individual commenter, however, remarked that continued use of AIT would reduce the number of pat-downs as well as enhance detection of nonmetallic weapons, because AIT is effective in detecting threats. The commenter suggested that AIT checkpoints be re-designed to minimize the level of intrusion and embarrassment associated with scanned images. Many commenters wrote that AIT scanners are no more effective at addressing security threats than other, less invasive screening methods. A few individual commenters and advocacy groups suggested that the NPRM has not adequately justified the ability of AIT to reduce significantly the threat of terror attacks on aircraft compared to alternative screening practices. Some individual commenters stated that the WTMD is more effective at detecting metallic items than AIT. A few of these individual commenters remarked that WTMD is as effective as AIT overall, but they preferred WTMD because it is less invasive than AIT. An advocacy group suggested that a cost-benefit analysis of AIT would certainly justify the scanners if they were effective in deterring terrorism compared to screening alternatives. An individual commenter also stated there is not enough evidence of increased threats using nonmetallic objects to justify the need for body scanners. The commenter explained that prior to AIT, nonmetallic objects were addressed by less-invasive means including WTMDs, bomb-sniffing dogs, Federal Air Marshals, and explosives detection machines. The commenter also stated that nonmetallic weapons that are small enough to conceal on the body do not pose a threat. One individual commenter, however, discussed examples where the use of the AIT scanner was instrumental in identifying weapons concealed under clothing. The commenter stated that there is no alternative technology that can assist in detecting explosives and other harmful objects that can be used to harm travelers. Many commenters, including a non-profit organization, an advocacy group, and individual commenters, made general statements that AIT scanners are ineffective because of reported high false positive rates. An individual commenter stated that travelers might be more accepting of the invasiveness of AIT scanners if TSA revealed data regarding the effectiveness of the technology ( i.e., false positives and false positive rates). Several commenters, including a non-profit organization and a community organization, stated that the false detection of non-threatening objects leads to pat-downs where passengers are subjected to unnecessary, invasive screening. An individual referenced incidents which, the commenter stated, caused passengers embarrassment when their medical device raised a false positive. An individual commenter argued that the high rate of false positives causes security checkpoint lines to move slowly, which subsequently requires TSA to use WTMDs to relieve the backup. A few individuals expressed concern regarding a false sense of security created for TSA officers and passengers by the large volume of false alarms caused by AIT scanners. The commenters concluded that this false sense of security weakens security. Similarly, an individual commenter remarked that the process of responding to false positives (searching for non-threatening objects) takes TSA's focus off identifying actual threats. An individual commenter stated that AIT scanners are not effective in identifying a passenger with a threatening weapon because passengers can travel from airports or terminals that do not use AIT scanners. The commenter stated that passengers could also avoid detection by placing a weapon on a companion passenger under 12 years of age or on a pet. The commenter also stated that AIT scanners are ineffective at making air travel safer because the long lines make passengers more vulnerable to terror attacks. An individual commenter, however, wrote that the AIT scanners are more effective as a deterrent to terrorists than random pat-downs or profiling because of the expectation that the AIT will scan all passengers entering the sterile area. TSA Response: TSA cannot fully address the specific detection capabilities of AIT in the final rule, because much of the information is classified. As explained in the NPRM, AIT is able to detect both metallic and nonmetallic items concealed under an individual's clothing. The NPRM describes some of the items concealed under clothing that have been detected by AIT. 78 FR 18297. AIT equipment must meet detection specifications and overall performance standards established by TSA. The AIT machines are tested regularly to ensure that the detection capabilities and performance standards are maintained. After years of testing and operational experience at the airport, TSA maintains that AIT provides the best opportunity currently available to detect both metallic and nonmetallic threats concealed under a person's clothing. TSA procurement specifications require that any AIT system must meet certain thresholds with respect to the detection of items concealed under a person'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. Prior to deployment, the machines are tested in the laboratory and in the field to certify that the detection standards are met. In addition, the DHS Transportation Security Laboratory (TSL) also tests the equipment to verify detection capability. After deployment, testing continues as TSA regularly conducts both overt and covert detection tests. In addition, AIT detection capability has been tested by DHS and the GAO. The millimeter wave AIT equipment currently deployed at airports to screen passengers uses ATR software that enables the AIT automatically to identify irregularities on passengers using imaging analysis techniques based on contour, pattern, and shape. The AIT is designed to detect irregularities concealed under clothing; therefore, commenters are correct that it may detect items that do not pose a threat. Commenters also are correct that in order to determine whether AIT has alarmed on a threat item, a TSO will conduct further screening at the location where the AIT has indicated that there is an anomaly, thereby eliminating the need to pat-down the entire body. Generally, a passenger is only touched if an anomaly is indicated by AIT, and only the part of the body where the machine has indicated an anomaly is located is touched during the pat-down. At times, ETD or other forms of additional screening may be employed to resolve an alarm and to clear a passenger for entry into the sterile area after AIT screening. Passengers are advised to avoid wearing clothing with large metal embellishments and large metal jewelry and to remove all items in their pockets to reduce the possibility that the AIT will alarm on innocuous items. TSA is aware of the audits conducted by the GAO on the effectiveness of screening measures. However, AIT was not in use at the checkpoint when the GAO tested security procedures described in the 2007 report cited by a commenter. 63 The 2010 report cited by a commenter did not contain any recommendations regarding the use of AIT, but did state that a cost/benefit analysis would be beneficial. 64 The RIA includes an extensive analysis of the costs of AIT and a qualitative discussion of its benefits. In addition, the RIA discusses the alternatives to AIT considered by TSA. 63 U.S. Government Accountability Office, “Aviation Security Vulnerabilities Exposed Through covert Testing of TSA's Passenger Screening Process,” GAO-08-48T (Nov. 15, 2007). 64 U.S. Government Accountability Office, “Aviation Security TSA is Increasing Procurement and Deployment of the Advanced Imaging Technology, but Challenges to This Effort and Other Areas of Aviation Security Remain,” GAO-10-484T (Mar. 17, 2010). TSA disagrees with the comments alleging that because there is no direct evidence that AIT has prevented a terrorist attack on its own, the technology is not effective. As the Supreme Court pointed out in rejecting a similar argument in Von Raab, the validity of a screening program does not turn on “whether significant numbers of putative air pirates are actually discovered by the searches conducted under the program.” Given the government's interest “in deterring highly hazardous conduct,” the Supreme Court emphasized, “a low incidence of such conduct, far from impugning the validity of the scheme . . . is more logically viewed as a hallmark of success.” 489 U.S. at 675 n.3. 65 In Corbett, the Court of Appeals upheld the use of AIT and found that “the scanners effectively reduce the risk of air terrorism . . . the Fourth Amendment does not require that a suspicionless search be fool-proof or yield exacting results.” 66 65 See also MacWade v. Kelly, 460 F.3d 260, 274 (2d Cir. 2006) (holding that the deterrent effect of an anti-terrorism screening program in the New York subway system “need not be reduced to a quotient” to satisfy 4th Amendment balancing.”) and Cassidy v. Chertoff, 471 F.3d 67, 83 (2d Cir. 2006) (government is not required to “adduce a specific threat” to ferry system before engaging in suspicionless searches). 66 Corbett, 767 F.3d at 1181. Further, the fact that AIT, or any single security measure, may not be completely foolproof does not mean that it is ineffective and should not be used at all. A discussion of the alternatives to AIT considered by TSA is included in the RIA. TSA has always maintained that AIT is the best technology currently available to detect the threat of nonmetallic and other dangerous items and that a comprehensive security system is the best means to detect and deter terrorist attacks as no single layer by itself, including AIT, may be sufficient. Accordingly, TSA agrees with commenters that other security measures, including those mentioned in the comments such as canine, Federal Air Marshalls, and explosive detection systems, should also be deployed to increase the chance that a threat will be detected. TSA does in fact employ all of those measures. However, TSA does not agree that any of those measures should replace AIT because AIT provides stand-alone value as well. In response to a comment regarding the redesign of the checkpoint to minimize embarrassment of passengers during the screening process, TSA points out that since May 2013, TSA has only deployed AIT with ATR software at the airport. ATR eliminates the individual image and produces a generic outline that is visible to the passenger and the TSO. In addition, TSA offers passengers who must undergo a pat-down the opportunity to have the pat-down conducted in a private screening location that is not visible to the traveling public. Currently there are approximately 793AIT machines located at almost 157 airports nationwide. Given limited resources, TSA uses a risk-based approach to deploy AIT and continues to assess and test “next generation” AIT systems, which TSA anticipates will improve anomaly detection capability, decrease processing time, and better suit the physical constraints of airport checkpoints. M. Screening Measures Used in Other Countries Comments: Commenters discussed screening measures used in foreign countries. The majority of these comments recommended that TSA consider implementing a screening system similar to the one used by Israel. In addition to individual commenters, a privacy advocacy group stated that in 2011 the European Union (EU) issued a ruling banning the use of backscatter body scanners in all airports; that Italy discontinued its use of millimeter wave scanners because they were found to be slow and ineffective; and that Germany and Ireland discontinued use of AIT because of concerns regarding efficacy. A few individual commenters stated that the AIT scanners were removed from other countries because of health and safety concerns. TSA Response: AIT is used in airports and mass transit systems in many countries, including in Canada, the Netherlands, Australia, Nigeria, and the United Kingdom. 67 TSA works directly with foreign governments and through the International Civil Aviation Organization (ICAO) to share information on AIT as well as other security measures. 68 TSA continues to believe that AIT provides the most effective technology currently available to detect metallic and nonmetallic threats. As was explained in the NPRM and discussed below, AIT has been tested for safety by both TSA and independent entities. The results confirm that AIT is safe for individuals being screened, equipment operators, and bystanders. See 78 FR 18294-18296. 67 http://science.howstuffworks.com/millimeter-wave-scanner4.htm ; http://cnsnews.com/news/article/us-paid-full-body-scanners-nigeria-s-four-international-airports-2007. 68 ICAO recognizes that AIT may be used as a primary screening measure for passengers. ICAO “Aviation Security Manual,” Doc 8973/8 Restricted (2011). TSA is aware that the European Commission adopted a legal framework on security scanners. 69 That framework states that the use of security scanners is optional, and that only security scanners which do not use ionizing radiation can be deployed and used for passenger screening. It also specifies that the scanners shall not store, retain, copy, print, or retrieve images. However, the Commission also found that “[s]ecurity scanners are an effective method of screening passengers as they are capable of detecting both metallic and non-metallic items carried on a person. The scanner technology is developing rapidly and has the potential to significantly reduce the need for manual searches (“pat downs”) applied to passengers, crews and airport staff.” 70 69 European Commission, Press Release, “Aviation Security: Commission Adopts New Rules on the Use of Security Scanners at European Airports,” Brussels, Belgium (Nov. 14, 2011). The countries referenced by several commenters (Germany, Ireland, and Italy) are members of the European Union. 70 Id. N. Laboratory and Operational Testing of AIT Equipment Comments: Some submissions discussed testing of AIT scanners for operational effectiveness. Several commenters stated that no testing has been conducted by independent parties, or they expressed concern that TSA did not publicly release the results of AIT equipment testing. A few individual commenters objected to having TSA test the scanners on the traveling public. An individual commenter suggested that validation tests should include evidence of attempts to defeat a screening technique and recommended that if the results indicate that AIT is less effective for screening than other devices, TSA should discontinue use of AIT in favor of technology that the results favor. An individual commenter stated the need for long-term studies, including potential effects of the AIT equipment if it were to malfunction, become “out of spec,” or suffer from poor maintenance. TSA Response: The FAA began testing AIT when it was responsible for passenger screening at airports prior to the creation of TSA. TSA continued laboratory testing of AIT as the threat from nonmetallic substances increased. To better assess the application of AIT to the airport environment, TSA conducted limited field trials of different types of AIT equipment at several airports. Throughout 2007 and 2008, AIT was piloted in the secondary position for these trials. In 2009, in response to the Christmas Day bomber, TSA began to evaluate using AIT in the primary screening position since there are no other currently deployed technologies in the primary screening position that can detect nonmetallic threats concealed under a passenger's clothing. When conducting tests both in the laboratory and in the field, TSA evaluated the equipment for safety, detection capability, operational efficiency, and passenger impact. Because of the successful results observed during testing and the need to address the threat from nonmetallic explosives concealed under clothing, TSA decided to procure AIT units for use in the primary position at airport checkpoints. All of the AIT units are regularly inspected by the manufacturer to ensure that they operate effectively and meet TSA specifications. In addition, the units are tested each day prior to use at the checkpoint. If the equipment does not meet operational specifications, it cannot be used. The GAO released a report, “Advanced Imaging Technology: TSA Needs Additional Information before Procuring Next-Generation Systems,” in March 2014 describing the types of tests TSA conducts on AIT. 71 As explained in the report, TSA conducts the following five tests to evaluate the performance of AIT equipment: (1) Qualification testing in a laboratory setting at the TSA Systems Integration Facility to evaluate the technology's capabilities against TSA's procurement specification and detection standard to include testing of false alarm rates; (2) Operational testing at airports to evaluate system effectiveness and suitability for the airport environment; (3) Covert testing to identify vulnerabilities in the technology, operator use, and TSO compliance with procedures; (4) Performance Assessments to test TSO compliance with Standard Operating Procedures (SOPs); and (5) Checkpoint drills to assess TSO compliance with SOPs and ability to resolve anomalies identified by AIT. 72 Qualification testing is conducted when a technology is first considered for deployment and for subsequent upgrades to the technology. The TSL also conducts certification testing on detection capability. In addition to these tests, the actual units are subjected to a factory acceptance test at the manufacturer's facility and a site acceptance test at the airport. TSA also tests the units for radiation exposure as described in the NPRM and in response to additional comments described below. Covert testing is also conducted by the Inspector General of DHS and GAO. 73 TSA studies the results of laboratory and covert tests closely, and modifies procedures as appropriate. TSA believes that the testing described above adequately supports the use of AIT as a primary screening mechanism. 71 U.S. Government Accountability Office Report to Congressional Requesters, “Advanced Imaging Technology: TSA Needs Additional Information before Procuring Next-Generation Systems,” GAO-14-357, March 2014. 72 The report also contained recommendations to improve TSO performance on AIT and resource effectiveness, and to ensure that next generation AIT units meet mission needs. TSA generally concurred in the recommendations and noted that it will review its screening assessment programs, monitor, update and report efforts to capture operational data on screening, improve its assessment of overall effectiveness of next-generation AIT and complete a more comprehensive technology roadmap. 73 The Inspector General of DHS recently conducted covert testing of TSA aviation security screening and the Secretary has directed TSA to undertake a number of steps to enhance security capabilities and techniques. See, e.g., Statement by Secretary Jeh C. Johnson On Inspector General Findings on TSA Security Screening, Press Release, Jun. 1, 2015. TSA's response to the Inspector General's findings and the changes TSA has implemented to address those findings were discussed in the testimony of TSA Administrator, Peter V. Neffenger, before the Senate Committee on Appropriations, Subcommittee on Homeland Security on Sep. 29, 2015. See https://www.tsa.gov/news/testimony/2015/09/29/testimony-tsa-efforts-address-oig-findings. O. Radiation Exposure Comments: The effects of radiation associated with AIT use was also addressed by commenters. A professional association stated its belief that AIT emissions present a negligible health risk to passengers, airline crewmembers, airport employees, and TSA staff. Numerous commenters, however, expressed concern regarding exposure to radiation. Some of these commenters suggested that no dose of radiation is safe. Many individual commenters and an advocacy group expressed concern about the radiation from backscatter scanners, which they stated could lead to the development of cancer. Many individuals also warned that exposure to millimeter wave radiation could hold the potential for long-term health effects and that additional studies are needed. Some commenters concluded that, even if the current x-ray scanners were removed, the proposed rule would not prevent their reintroduction should software become available to address privacy issues. Several commenters, including a privacy advocacy organization, a non-profit organization, and individual commenters, cautioned that TSA screeners could be at risk and should be provided with dosimeters to ensure that their exposure is within acceptable limits. An individual commenter stated that, although TSA claimed that the radiation scan only affects the surface of the skin, skin cancer is the largest incidence of cancer in the world, and it is caused by radiation exposure on the skin. Another commenter stated that eyes are particularly susceptible to radiation. A few individuals suggested that imaging technology using radiation should not be used at all since alternatives exist. Other commenters stated that the question that needs to be asked with respect to the safety of AIT scanning is not whether the increase in deaths is below some arbitrary value, but whether the lives saved through avoiding a terrorist attack are greater than the lives lost through an increased incidence of cancer or other diseases arising from the use of AIT scanners. Lastly, a few individuals mentioned that because of their exposure to radiation for medical treatment, they are not comfortable getting further, unnecessary exposure from AIT scanners. TSA Response: In compliance with the statutory requirement that all AIT machines used for screening be equipped with and employ ATR software, TSA removed the general-use backscatter AIT units from the checkpoint. 74 TSA notes that it is adopting the statutory requirement mandating the use of ATR software on AIT used to conduct screening in the regulatory text. 74 49 U.S.C. 44901(l). Contrary to assertions by some commenters and as discussed in the NPRM, general-use backscatter units were independently evaluated and found to be within national standards for acceptable radiation exposure by the Food and Drug Administration (FDA)'s Center for Devices and Radiological Health (CDRH), the National Institute of Standards and Technology, the Johns Hopkins University Applied Physics Laboratory and the U.S. Army Public Health Command. 75 A report issued by the DHS Office of Inspector General in 2012 confirms that prior to the deployment of general-use backscatter units, TSA conducted four radiation safety assessments and the results of each study concluded that the level of radiation emitted was below ANSI's acceptable limits. 76 75 78 FR 18295. See also https://www.tsa.gov/FOIA. 76 Department of Homeland Security, Office of Inspector General, “Transportation Security Administration's Use of Backscatter Units,” OIG-12-38, Feb. 2012 at p. 5. In addition, in June 2013, the American Association of Physicists in Medicine released the results of an independent study of the general-use backscatter units previously used by TSA for screening passengers. 77 The study measured exposures across multiple scanners in both the factory and in real-time use at airports, including organ doses. This study also found that radiation doses were below the ionizing radiation limits set by the American National Standards Institute and Health Physics Society (ANSI/HPS) and were safe for employees and passengers, including children, pregnant women, frequent flyers and individuals with medical implants. 77 “Radiation Dose from Airport Scanners,” American Association of Physicists in Medicine, AAPM Report No. 217 (2013). Available at http://www.aapm.org/pubs/reports. In the NPRM, TSA noted that DHS had requested the National Academies of Sciences, Engineering, and Medicine to review previous studies as well as current processes to estimate radiation exposure resulting from the general-use backscatter equipment. That study was released in October 2015 and confirms that radiation doses did not exceed the ANSI/HPS standard. 78 78 National Academies of Sciences, Engineering, and Medicine. Airport Passenger Screening Using Backscatter X-Ray Machines: Compliance with Standards (2015), available at http://www.nap.edu/21710. As explained in the NPRM, the ANSI/HPS standard takes into consideration individuals who may be more susceptible to radiation health effects, such as pregnant women, children, and persons who receive radiation treatments, as well as the general exposure to ionizing radiation present in the environment. 78 FR 18295. In fact, the radiation emissions from the general-use backscatter equipment were so low that they were below the environmental radiation emissions that individuals are exposed to every day, and individuals would have to be screened more than 200 times a year to exceed the negligible individual dose, which is still below the ANSI/HPS standard. 79 78 FR 18296. 79 TSA disagrees with the comments that attempted to link AIT to skin cancer, for the reasons explained in this preamble. TSA notes that according to the Stanford Medicine Cancer Institute, ultraviolet radiation from the sun is the main cause of skin cancer. http://stanfordhealthcare.org/medical-conditions/cancer/skin-cancer/causes-skin-cancer/ultraviolet-radiation.html. There is no evidence that AIT is related to the incidence of skin cancer. As explained in the NPRM, the millimeter wave equipment uses non-ionizing radio frequency energy. 78 FR 18294-18295. The millimeter wave equipment used by TSA 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. C95.1 TM —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. The equipment also is consistent with Federal Communications Commission and Health Canada Safety Code regulations. 78 FR 18295. The FDA confirmed that millimeter wave security systems that comply with the IEEE Std.C95.1 TM —2005 cause no known health effects. 80 TSA has posted a compilation of emission safety reports of the millimeter wave technology system. 81 80 FDA, “Products for Security Screening of People,” available at http://www.fda.gov/Radiation-EmittingProducts/RadiationEmittingProductsandProcedures/SecuritySystems/ucm227201.htm. 81 https://www.tsa.gov/FOIA. TSA implemented safety protocols to ensure that AIT is safe for passengers and the TSA workforce. When backscatter machines were still in use, each individual AIT machine was tested once a year to verify that radiation emitted fell within the national safety standards. Regular testing is also conducted on checkpoint machines that use x-ray technology, such as baggage scanners. This testing is performed by the manufacturers or maintenance providers in accordance with their TSA contracts. Because of the regular testing of TSA equipment, there is no need for operators to wear dosimeters to measure radiation emissions. In the event that a radiation test was to reveal that the emission was above the standard, the machine would be immediately taken out of service and TSA would conduct a system-wide review. P. Other Health and Safety Issues Comments: Commenters also mentioned other safety and health concerns related to AIT. Numerous individual commenters generally stated that they consider the safety of the AIT scanners to be uncertain and that they are concerned that AIT is harmful to their health. Some individuals suggested that the machines amount to a medical examination performed by someone who is not a trained medical professional. A few individual commenters expressed concern about the maintenance and calibration of the scanners. According to another individual commenter, the AIT scanners and pat-downs are a physical and psycholog [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-04374. Public record. Not legal advice.