[Federal Register Volume 78, Number 58 (Tuesday, March 26, 2013)]
[Proposed Rules]
[Pages 18287-18302]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07023]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1540

[Docket No. TSA-2013-0004]
RIN 1652-AA67


Passenger Screening Using Advanced Imaging Technology

AGENCY: Transportation Security Administration, DHS.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Transportation Security Administration (TSA) is proposing 
to revise its civil aviation security regulations to clarify that TSA 
may use advanced imaging technology (AIT) to screen individuals at 
security screening checkpoints. This proposed rule is issued to comply 
with a decision of the U.S. Court of Appeals for the District of 
Columbia Circuit, which ordered TSA to engage in notice-and-comment 
rulemaking on the use of AIT for screening. The Court decided that TSA 
should provide notice and invite comments on the use of AIT technology 
for primary screening.

DATES: Submit comments by June 24, 2013.

ADDRESSES: You may submit comments, identified by the TSA docket number 
to this rulemaking, to the Federal Docket Management System (FDMS), a

[[Page 18288]]

government-wide, electronic docket management system, using any one of 
the following methods:
    Electronically: You may submit comments through the Federal 
eRulemaking portal at http://www.regulations.gov. Follow the online 
instructions for submitting comments.
    Mail, In Person, or Fax: Address, hand-deliver, or fax your written 
comments to the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001; fax (202) 493-2251. The 
Department of Transportation (DOT), which maintains and processes TSA's 
official regulatory dockets, will scan the submission and post it to 
FDMS.
    See SUPPLEMENTARY INFORMATION for format and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: Chawanna Carrington, Project Manager, 
Passenger Screening Program, Office of Security Capabilities, 
Transportation Security Administration, 701 South 12th Street, 
Arlington, VA 20598-6016; telephone: (571) 227-2958; facsimile: (571) 
227-1931; email: Chawanna.Carrington@tsa.dhs.gov.

SUPPLEMENTARY INFORMATION:

Comments Invited

    TSA invites interested persons to participate in this rulemaking by 
submitting written comments, data, or views. We also invite comments 
relating to the economic, environmental, energy, or federalism impacts 
that might result from this rulemaking action. See ADDRESSES above for 
information on where to submit comments.
    With each comment, please identify the docket number at the 
beginning of your comments. TSA encourages commenters to provide their 
names and addresses. The most helpful comments reference a specific 
portion of the rulemaking, explain the reason for any recommended 
change, and include supporting data. You may submit comments and 
material electronically, in person, by mail, or fax as provided under 
ADDRESSES, but please submit your comments and material by only one 
means. If you submit comments by mail or delivery, submit them in an 
unbound format, no larger than 8.5 by 11 inches, suitable for copying 
and electronic filing.
    If you would like TSA to acknowledge receipt of comments submitted 
by mail, include with your comments a self-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.
    TSA will file all comments to our docket address, as well as items 
sent to the address or email under FOR FURTHER INFORMATION CONTACT, in 
the public docket, except for comments containing confidential 
information and sensitive security information (SSI).\1\ Should you 
wish your personally identifiable information redacted prior to filing 
in the docket, please so state. TSA will consider all comments that are 
in the docket on or before the closing date for comments and will 
consider comments filed late to the extent practicable. The docket is 
available for public inspection before and after the comment closing 
date.
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    \1\ ``Sensitive Security Information'' or ``SSI'' is information 
obtained or developed in the conduct of security activities, the 
disclosure of which would constitute an unwarranted invasion of 
privacy, reveal trade secrets or privileged or confidential 
information, or be detrimental to the security of transportation. 
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive 
Security Information (SSI) Submitted in Public Comments

    Do not submit comments that include trade secrets, confidential 
commercial or financial information, or SSI to the public regulatory 
docket. Please submit such comments separately from other comments on 
the rulemaking. Comments containing this type of information should be 
appropriately marked as containing such information and submitted by 
mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
    TSA will not place comments containing SSI in the public docket and 
will handle them in accordance with applicable safeguards and 
restrictions on access. TSA will hold documents containing SSI, 
confidential business information, or trade secrets in a separate file 
to which the public does not have access, and place a note in the 
public docket explaining that commenters have submitted such documents. 
TSA may include a redacted version of the comment in the public docket. 
If an individual requests to examine or copy information that is not in 
the public docket, TSA will treat it as any other request under the 
Freedom of Information Act (FOIA) (5 U.S.C. 552) and the FOIA 
regulations of the Department of Homeland Security (DHS) found in 6 CFR 
part 5.

Reviewing Comments in the Docket

    Please be aware that anyone is able to search the electronic form 
of all comments in any of our dockets by the name of the individual who 
submitted the comment (or signed the comment, if an association, 
business, labor union, etc., submitted the comment). You may review the 
applicable Privacy Act System of Records Notice published in the 
Federal Register on April 11, 2000 (65 FR 19477) and modified on 
January 17, 2008 (73 FR 3316).
    You may review TSA's electronic public docket on the Internet at 
http://www.regulations.gov. In addition, DOT's Docket Management 
Facility provides a physical facility, staff, equipment, and assistance 
to the public. To obtain assistance or to review comments in TSA's 
public docket, you may visit this facility between 9:00 a.m. to 5:00 
p.m., Monday through Friday, excluding legal holidays, or call (202) 
366-9826. This docket operations facility is located in the West 
Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue SE., 
Washington, DC 20590.

Availability of Rulemaking Document

    You can get an electronic copy using the Internet by--
    (1) Searching the electronic FDMS Web page at http://www.regulations.gov;
    (2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or
    (3) Visiting TSA's Web site at http://www.tsa.gov and accessing the 
link for ``Stakeholders'' at the top of the Web page, selecting the 
link for ``Research Center'' in the left column, and then the link for 
``Security Regulations'' in the left column.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to 
identify the docket number of this rulemaking.

Table of Contents

I. Executive Summary
    A. Purpose of the Regulation
    B. Summary of Major Provisions
    C. Costs and Benefits
II. Background
    A. The Evolving Threat to Aviation Security
    B. Layers of Security
    C. Congressional Direction To Pursue AIT
    D. U.S. Court of Appeals Decision in EPIC v. DHS
III. AIT Screening Protocols
    A. Types of AIT Equipment
    B. Privacy Safeguards for AIT
    C. Safety of AIT
    1. Millimeter Wave Units
    2. Backscatter Units
    D. AIT Procedures at the Checkpoint
IV. Deployment of AIT
V. Rulemaking Analyses and Notices
    A. Regulation Evaluation Summary and Economic Impact Analyses
    B. Executive Orders 12866 and 13563 Assessment

[[Page 18289]]

    C. Regulatory Flexibility Act Assessment
    D. International Trade Impact Assessment
    E. Unfunded Mandates Reform Act Assessment
    F. Paperwork Reduction Act
    G. Executive Order 13132, Federalism
    H. Environmental Analysis
    I. Energy Impact Analysis

I. Executive Summary

A. Purpose of the Regulation

    TSA is proposing to amend its regulations to specify that screening 
and inspection of an individual conducted to control access to the 
sterile area of an airport or to an aircraft may include the use of 
advanced imaging technology (AIT), also referred to as whole body 
imaging, as a screening method. Terrorists have repeatedly attempted to 
cause harm with the aid of weapons and devices smuggled aboard 
aircraft. It is the primary mission of DHS to prevent terrorist attacks 
within the United States and to reduce the vulnerability of the United 
States to terrorism.\2\ The use of AIT is an important tool in 
accomplishing that mission.
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    \2\ 49 U.S.C. 114.
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    This NPRM is being issued to comply with the decision rendered by 
the U.S. Court of Appeals for the District of Columbia Circuit in 
Electronic Privacy Information Center v. U.S. Department of Homeland 
Security.\3\ In that case, the U.S. Court of Appeals directed TSA to 
conduct notice-and-comment rulemaking on the use of AIT as a screening 
method for passengers. The Court did not require TSA to stop using AIT 
to screen passengers, explaining that ``vacating the present rule would 
severely disrupt an essential security operation,'' and that the rule 
is ``otherwise lawful.'' \4\
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    \3\ 653 F.3d 1 (DC Cir. 2011).
    \4\ Id. at 8.
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B. Summary of Major Provisions

    The proposed rule codifies the use of AIT to screen individuals at 
aviation security screening checkpoints. This NPRM discusses the 
following points regarding the use of AIT:
     The threat to aviation security has evolved to include the 
use of non-metallic explosives, non-metallic explosive devices, and 
non-metallic weapons.
     AIT currently provides the best available opportunity to 
detect non-metallic anomalies \5\ concealed under clothing without 
touching the passenger and is an essential component of TSA's security 
layers.
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    \5\ An anomaly is any object that would not ordinarily be found 
on someone's person.
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     Congress has authorized TSA to procure and deploy AIT for 
use at security checkpoints.
     TSA implemented stringent safeguards to protect the 
privacy of passengers undergoing AIT screening when AIT units were 
initially deployed and enhanced privacy even further by upgrading its 
millimeter wave AIT units with automatic target recognition (ATR) 
software. An AIT unit equipped with ATR creates a generic outline, not 
an image of a specific individual, and eliminates the need for operator 
interpretation of an image. TSA is removing all units that are not 
equipped with ATR from its checkpoints by May 31, 2013.\6\
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    \6\ The manufacturer of these units will bear the costs of 
removal and storage. TSA is following the Federal Management 
Regulation process to transfer and donate this equipment to other 
DHS components and then to other Federal, State, and local 
government agencies, if necessary. TSA will not hold any public 
auction or sale and will not donate or abandon any of the equipment 
to the public in the interests of security.
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     The safety of the two types of AIT equipment initially 
deployed was tested by TSA and independent entities and all results 
confirmed that both the backscatter and millimeter wave technologies 
are safe because the x-ray or radio waves emissions are well below 
applicable safety and health standards, and are so low as to present a 
negligible risk to passengers, airline crew members, airport employees, 
and TSA employees.\7\
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    \7\ See, http://www.tsa.gov/ait-safety.
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     TSA has provided a detailed explanation of AIT procedures 
on its webWeb site at www.tsa.gov/ait-how-it-works (which allows opt 
out procedures for passengers) and posted signs at airport checkpoints 
to notify passengers about AIT and alternative screening procedures. 
The level of acceptance by passengers has been high; the vast majority 
of passengers do not object to AIT screening.
     TSA's experience in using AIT confirms that it is 
effective in detecting small, non-metallic items hidden underneath 
passenger clothing that could otherwise escape detection. When an item 
is detected, additional screening must be performed to determine 
whether the item is prohibited.

C. Costs and Benefits

    When estimating the cost of a rulemaking, agencies typically 
estimate future expected costs imposed by a regulation over a period of 
analysis. As the AIT machine life cycle from deployment to disposal is 
eight years, the period of analysis for estimating the cost of AIT is 
eight years. However, as AIT deployment began in 2008, there are costs 
that have already been borne by TSA, the traveling public, and airport 
operators that were not due to this rule. Consequently, in the Initial 
Regulatory Impact Analysis for this rule, TSA is reporting the AIT-
related costs that have already occurred (years 2008-2011), while 
considering the additional cost of this rulemaking to be years 2012-
2015. By reporting the costs that have already happened and estimating 
future costs in this manner, TSA considers and discloses the full 
eight-year life cycle of AIT deployment.
    TSA reports that the net cost of AIT deployment from 2008-2011 has 
been $841.2 million (undiscounted) and that TSA has borne over 99 
percent of all costs related to AIT deployment. TSA projects that from 
2012-2015 net AIT-related costs will be approximately $1.5 billion 
(undiscounted), $1.4 billion at a three percent discount rate, and $1.3 
billion at a seven percent discount rate. During 2012-2015, TSA 
estimates it will also incur over 98 percent of AIT-related costs with 
equipment and personnel costs being the largest categories of 
expenditures. Table 1 below reports the costs that have already 
occurred (2008-2011) by cost category, while Table 2 shows the 
additional costs TSA is attributing to this rulemaking (2012-2015). 
Table 3 shows the total cost of AIT deployment from 2008 to 2015.

                                    Table 1--Net Cost \8\ Summary of AIT Deployment From 2008-2011 by Cost Component
                                                  [Costs already incurred in $ thousands--undiscounted]
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                                                                                                              TSA costs
                             Year                               Passenger     Industry  ----------------------------------------------------    Total
                                                                 opt outs    utilities    Personnel     Training    Equipment    Utilities
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2008.........................................................         $7.0         $5.7    $14,689.1       $389.5    $37,425.2        $18.8    $52,535.3
2009.........................................................         32.2          5.7     15,618.6         88.0     42,563.6         20.4      58328.5
2010.........................................................        262.2        158.2    247,566.7      5,332.8    119,105.4        241.4    372,666.6

[[Page 18290]]

 
2011.........................................................      1,384.2        186.7    284,938.7     15,354.4     55,567.2        269.1    357,700.2
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    Total....................................................      1,685.6        356.3    562,813.0     21,164.7    254,661.3        549.6    841,230.6
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\8\ TSA removed costs related to Walk Through Metal Detectors (WTMDs) that would have occurred regardless of AIT deployment to obtain an estimated net
  cost for AIT.


                                     Table 2--Cost Summary (Net Cost of AIT Deployment 2012-2015) by Cost Component
                                                               [AIT Costs in $ thousands]
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                                                                                                 TSA Costs
                      Year                         Passenger     Industry  ----------------------------------------------------   Rapiscan      Total
                                                    Opt Outs    Utilities    Personnel     Training    Equipment    Utilities     Removal
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2012............................................     $2,716.5       $325.7   $375,886.9    $12,043.0   $116,499.3         $473         $0.0   $507,924.4
2013............................................      3,991.7        329.3    280,844.3      4,277.5     51,588.8        324.4      1,809.6    343,165.7
2014............................................      4,238.7        312.0    263,677.6      4,190.5     51,397.8        317.7          0.0    324,134.2
2015............................................      5,611.8        300.3    278,580.2      4,144.2     68,052.6        365.7          0.0    357,054.9
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    Total.......................................     16,558.7      1,267.3  1,198,969.0     24,655.2    287,538.5      1,480.9      1,809.6  1,532,279.2
Discounted 3%...................................     15,265.0      1,178.9  1,118,459.3     23,810.2    269,233.7      1,380.7      1,705.7  1,431,033.5
Discounted 7%...................................     13,766.6      1,075.8  1,024,344.7     22,048.8    247,810.4      1,263.8      1,580.6  1,311,890.7
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                                     Table 3--Cost Summary (Net Cost of AIT Deployment 2008-2015) by Cost Component
                                                        [AIT Costs in $ thousands--undiscounted]
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                                                                                                 TSA costs
                      Year                         Passenger     Industry  ----------------------------------------------------   Rapiscan      Total
                                                    opt outs    utilities    Personnel     Training    Equipment    Utilities     removal
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2008............................................         $7.0         $5.7    $14,689.1       $389.5    $37,425.2        $18.8         $0.0    $52,535.3
2009............................................         32.2          5.7     15,618.6         88.0     42,563.6         20.4          0.0     58,328.5
2010............................................        262.2        158.2    247,566.7      5,332.8    119,105.4        241.4          0.0    372,666.6
2011............................................      1,384.2        186.7    284,938.7     15,354.4     55,567.2        269.1          0.0    357,700.2
2012............................................      2,716.5        325.7    375,866.9     12,043.0    116,499.3        473.0          0.0    507,924.4
2013............................................      3,991.7        329.3    280,844.3      4,277.5     51,588.8        324.4      1,809.6    343,165.7
2014............................................      4,238.7        312.0    263,677.6      4,190.5     51,397.8        317.7          0.0    324,134.2
2015............................................      5,611.8        300.3    278,580.2      4,144.2     68,052.6        365.7          0.0    357,054.9
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    Total.......................................     18,944.4      1,623.6  1,761,782.0     45,819.9    542,199.9      2,030.4      1,809.6  2,373,509.9
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    The operations described in this proposed rule produce benefits by 
reducing security risks through the deployment of AIT that is capable 
of detecting both metallic and non-metallic weapons and explosives.\9\ 
Terrorists continue to test our security measures in an attempt to find 
and exploit vulnerabilities. The threat to aviation security has 
evolved to include the use of non-metallic explosives. AIT is a proven 
technology based on laboratory testing and field experience and is an 
essential component of TSA's security screening because it provides the 
best opportunity to detect metallic and non-metallic anomalies 
concealed under clothing without the need to touch the passenger. Since 
it began using AIT, TSA has been able to detect many kinds of non-
metallic items, small items, and items concealed on parts of the body 
that would not have been detected using the WTMD.
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    \9\ Metal detectors and AITs are both designed to detect 
metallic threats on passengers, but go about it in different ways. 
Metal detectors rely on the inductance that is generated by the 
metal, while AIT relies on the metal's reflectivity properties to 
indicate an anomaly. AIT capabilities exceed metal detectors because 
AIT can detect metallic/non-metallic weapons, non-metallic bulk 
explosives, and non-metallic liquid explosives.
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II. Background

A. The Evolving Threat to Aviation Security

    The need for security screening at airports dates back to the 1960s 
when the most significant threat to aviation security was hijacking. To 
combat this threat, metal detectors were installed at airports and used 
by air carriers to detect firearms and other metallic weapons. In 1974, 
Congress passed the Air Transportation Security Act,\10\ which directed 
the Federal Aviation Administration (FAA) to require all passengers to 
be screened by weapon-detecting devices, and conduct research to 
develop and evaluate systems, procedures, facilities, and devices to 
protect persons and property aboard aircraft. Since that time, 
technological and procedural improvements have been implemented to keep 
pace with evolving threats.
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    \10\ Public Law 93-366.
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    Following the events of September 11, 2001, it was clear that the 
security screening at airports was insufficient to protect the 
traveling public against the threat posed by Al Qaeda and other 
terrorists who sought to harm the United States by targeting civil 
aviation. In response to those events, TSA was created to ensure 
freedom of movement

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for people and commerce by preventing terrorist attacks, reducing the 
vulnerability of the United States to terrorism, and effectively 
securing all modes of transportation, including aviation.
    Pursuant to law, TSA is required to ``provide for the screening of 
all passengers and property, including United States mail, cargo, 
carry-on and checked baggage, and other articles, that will be carried 
aboard a passenger aircraft * * *.'' \11\ Regulations restricting the 
carriage of weapons, explosives, and incendiaries on an individual's 
person or accessible property and requiring individuals to submit to 
the screening and inspection of their person and accessible property 
prior to entering a sterile area or boarding an aircraft were 
transferred from FAA to TSA in February 2002.\12\ TSA took over 
operation of the screening checkpoints from the air carriers and began 
instituting additional protocols and new equipment to detect 
individuals and items that could pose a threat to aviation security.
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    \11\ 49 U.S.C. 44901.
    \12\ See 49 CFR 1540.107 and 1540.111.
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    The FAA had begun exploring AIT in the mid-1990s and started 
testing and evaluating AIT in 2000. Once TSA was established, the 
evaluation of AIT and other technology that could detect metallic and 
non-metallic threats continued. TSA began testing early AIT equipment 
and protocols to evaluate the size of the units, image quality, 
detection capabilities, safety, and other operational issues.
    Since September 11, 2001, the nature of the threat to 
transportation security has evolved as terrorists continue to test our 
security measures in an attempt to find and exploit vulnerabilities. As 
the recent instances described below demonstrate, non-metallic 
explosives have become one of the greatest threats to aviation 
security. TSA has responded to the developing threats by deploying new 
screening protocols and increasing its use of technology to improve its 
ability to detect weapons, explosives, and incendiaries.
    On December 22, 2001, on board an airplane bound for the United 
States, Richard Reid attempted to detonate a non-metallic bomb 
concealed in his shoe. Following this terrorist attempt, screening 
procedures were revised by enhancing the screening of footwear.
    In 2004, terrorists mounted a successful attack on two domestic 
Russian passenger aircraft using explosives that were concealed on the 
torsos of female passengers. TSA responded to this demonstrated 
security vulnerability by implementing a variety of enhancements to its 
standard operating procedures. Revised pat-down protocols that 
increased the thoroughness of pat-downs on the female torso were among 
the enhancements implemented to improve the ability to detect 
explosives concealed on the body.
    In 2006, terrorists in the United Kingdom plotted to bring on board 
aircraft liquid explosives that would be used to construct and detonate 
a bomb while in flight. Following this threat, TSA again adjusted its 
security procedures by limiting the amount of liquids that could be 
brought on board aircraft and enhancing the screening of liquids, 
aerosols, and gels. TSA also deployed technology to improve detection 
of liquid explosives.
    On December 25, 2009, a bombing plot by Al Qaeda in the Arabian 
Peninsula (AQAP) culminated in Umar Farouk Abdulmutallab's attempt to 
blow up an American aircraft over the United States using a non-
metallic explosive device hidden in his underwear. TSA's pat-down 
procedures then in effect may not have detected the device. TSA 
modified its screening procedures to improve its ability to detect 
explosives hidden in an area of the body that previously was not 
thoroughly searched and hastened to expand deployment of AIT to improve 
its ability to detect non-metallic explosives concealed on the body 
through the use of technology, rather than the pat-down.\13\
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    \13\ On January 7, 2010, the President issued a ``Presidential 
Memorandum Regarding 12/25/2009 Attempted Terrorist Attack,'' which 
charged TSA with aggressively pursuing enhanced screening technology 
in order to prevent further such attempts, while at the same time 
protecting passenger privacy. A copy of that memorandum is available 
in the docket for this rulemaking and can be found at http://www.whitehouse.gov/the-press-office/presidential-memorandum-regarding-12252009-attempted-terrorist-attack.
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    In October 2010, AQAP attempted to destroy two airplanes in flight 
using non-metallic explosives hidden in two printer cartridges. TSA 
immediately instituted new screening requirements for cargo bound for 
the United States.
    In May 2012, AQAP developed another non-metallic explosive device 
that could be hidden in an individual's underwear and detonated while 
on board an aircraft. Fortunately, this device was obtained by an 
undercover operative and was not given to a potential suicide bomber. 
The device was provided to the Federal Bureau of Investigation for 
technical and forensic analysis and the results indicate that 
terrorists have modified certain characteristics of the bomb in 
comparison with the December 25, 2009 bomb in an attempt to avoid the 
2009 bombing attempt's design failure.
    As evidenced by the incidents described above, TSA operates in a 
high-threat environment. Terrorists look for security gaps or 
exceptions to exploit. The device used in the December 25, 2009 attempt 
is illustrative. It was cleverly constructed and intentionally hidden 
on a sensitive part of the body to avert detection. If this attack were 
successful as planned, the lives of the almost 300 passengers and crew 
and potentially people on the ground would have been in jeopardy.
    As these examples of the real and ever-evolving threats to aviation 
security demonstrate, non-metallic explosives are now one of the 
foremost known threats to passenger aircraft. The best defense against 
these and other terrorist threats remains a risk-based, layered 
security approach that uses a range of screening measures, both seen 
and unseen. This includes the use of AIT, which is proven technology 
for identifying non-metallic explosives during passenger screening, 
such as the device Umar Farouk Abdulmutallab attempted to detonate on 
Christmas Day 2009. TSA requests comment on the threat to aviation 
security described above and the risk-based, layered security approach 
it has adopted.

B. Layers of Security

    TSA deploys approximately 50,000 Transportation Security Officers 
(TSOs) at more than 446 domestic airports with over 700 security 
checkpoints to screen nearly 2 million passengers each day using 
various screening methods and technologies. Although the airport 
checkpoints are the most visible layer of security used by TSA, TSA 
also relies extensively on intelligence regarding potential and actual 
terrorist threats to inform and identify what security measures are 
necessary to meet the nature of those threats. Other security layers 
include checking passenger manifests against records from the 
Government known or suspected terrorist watch lists through TSA's 
Secure Flight program, examining identity and travel documents, using 
explosives detection systems, and conducting random security operations 
at the checkpoint and throughout the airport.
    Because even the best intelligence does not identify in advance 
every individual who would seek to do harm to passengers, aviation 
security, and the United States, TSA must rely on the security 
expertise of its frontline personnel--TSOs, Federal Air Marshals, 
Transportation Security Specialists-Explosives, Behavior Detection 
Officers,

[[Page 18292]]

and explosives detection canine teams, among others--to help prevent 
acts of terrorism.
    Effective technology is an essential component of TSA's arsenal of 
tools to detect and deter threats against our nation's transportation 
systems. Since its creation, TSA has deployed an increasingly 
sophisticated range of next generation detection equipment--including 
bottled liquid scanners, advanced technology x-ray systems, explosives 
trace detection (ETD) units, and AIT--as the threats to aviation 
security change and become more sophisticated. As recent history 
illustrates, TSA changes its screening equipment and procedures as 
needed to respond to evolving threats based on experience and the 
latest intelligence. TSA's layered approach and its ability to deploy 
new security methods to respond to the latest threats are necessary to 
provide adequate security for the traveling public. Advanced Imaging 
Technology currently provides the best opportunity to detect metallic 
and non-metallic threats concealed on the body under clothing without 
physical contact.\14\
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    \14\ In September 2012, TSA initiated a limited procurement for 
next generation AIT units for the purpose of testing such units in a 
laboratory environment. The outcome of the testing will determine if 
the units will proceed to testing in an airport environment. TSA 
anticipates that next generation AIT units will have enhanced 
detection capabilities, faster passenger throughput, and a smaller 
footprint.
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C. Congressional Direction To Pursue AIT

    In 2004, Congress directed TSA to continue to explore the use of 
new technologies to improve its threat detection capabilities.\15\ 
Specifically, the law provides:
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    \15\ 49 U.S.C. 44925.

    Deployment and use of detection equipment at airport screening 
checkpoints
     Weapons and explosives.--The Secretary of Homeland 
Security shall give a high priority to developing, testing, 
improving, and deploying, at airport screening checkpoints, 
equipment that detects nonmetallic, chemical, biological, and 
radiological weapons, and explosives, in all forms, on individuals 
and in their personal property * * * the types of weapons and 
explosives that terrorists would likely try to smuggle aboard an air 
carrier aircraft.
     [The TSA Administrator shall submit] * * * a strategic 
plan to promote the optimal utilization and deployment of explosive 
detection equipment at airports to screen individuals and their 
personal property. Such equipment includes walk-through explosive 
detection portals, document scanners, shoe scanners, and backscatter 
x-ray scanners.

    Additional references in congressional reports accompanying 
appropriations and authorizing legislation demonstrate Congress' 
continued direction to DHS and TSA to pursue enhanced screening 
technologies and imaging technology, including:
    (1) Explanatory Statement, House Appropriations Committee Print for 
Consolidated Security, Disaster Assistance, and Continuing 
Appropriations Act, 2009 (FY09 DHS Appropriations) Pub. L. 110-329 at 
p. 640:

    The bill provides $250,000,000 for Checkpoint Support to deploy 
a number of emerging technologies to screen airline passengers and 
carry-on baggage for explosives, weapons, and other threat objects 
by the most advanced equipment currently under development. TSA is 
directed to spend funds on multiple whole body imaging technologies 
including backscatter and millimeter wave as directed in the Senate 
report.

    (2) H. Rep. 110-862 at p. 64, FY09 DHS Appropriations:

    Over the past year, TSA has made some advances in testing, 
piloting, and deploying next-generation checkpoint technologies that 
will be used to screen airline passengers and carry-on baggage for 
explosives, weapons, and other threats. Even with this progress, 
however, additional funding is necessary to expedite pilot testing 
and deployment of advanced checkpoint explosive detection equipment 
and screening techniques to determine optimal deployment as well as 
preferred operational and equipment protocols for these new systems. 
Eligible systems may include, but are not limited to, advanced 
technology screening systems; whole body imagers; * * * The 
Committee expects TSA to give the highest priority to deploying 
next-generation technologies to designated Tier One threat airports.

    (3) S. Rep. 110-396 at p. 60, FY09 DHS Appropriations:

    WHOLE BODY IMAGERS. The Committee is fully supportive of 
emerging technologies at passenger screening checkpoints, including 
the whole body imaging program currently underway at Category X 
airports. These technologies provide an increased level of screening 
for passengers by detecting explosives and other non-metal objects 
that current checkpoint technologies are not capable of detecting. 
The Committee directs that funds for whole body imaging continue to 
be spent by TSA on multiple imaging technologies, including 
backscatter and millimeter wave.

    (4) H. Rep.110-259, at Web page 363, Conference Report to 
Implementing Recommendations of 9/11 Commission Act of 2007, Pub. L. 
110-53, sec. 1601--Airport checkpoint screening fund:

    The National Commission on Terrorist Attacks Upon the United 
States (the 9/11 Commission) asserted that while more advanced 
screening technology is being developed, Congress should provide 
funding for, and TSA should move as expeditiously as possible to 
support, the installation of explosives detection trace portals or 
other applicable technologies at more of the nation's commercial 
airports. Advanced technologies, such as the use of non-intrusive 
imaging, have been evaluated by TSA over the last few years and have 
demonstrated that they can provide significant improvements in 
threat detection at airport passenger screening checkpoints for both 
carry-on baggage and the screening of passengers. The Conference 
urges TSA to deploy such technologies quickly and broadly to address 
security shortcomings at passenger screening checkpoints.\16\

    \16\ See also, sec. 109 of the Aviation and Transportation 
Security Act (ATSA), Public Law 107-71 (2001), as amended by sec. 
1403(b) of the Homeland Security Act of 2002, Public Law 107-296, 
``(7) Provide for the use of voice stress analysis, biometric, or 
other technologies to prevent a person who might pose a danger to 
air safety or security from boarding the aircraft of an air carrier 
or foreign air carrier in air transportation or intrastate air 
transportation'' and Title IV of the American Recovery and 
Reinvestment Act of 2009, Public Law 111-5 ``* * * for procurement 
and installation of checked baggage explosives detection systems and 
checkpoint explosives detection equipment.''
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D. U.S. Court of Appeals Decision in EPIC v. DHS

    In July 2010, the EPIC petitioned the U.S. Court of Appeals for the 
District of Columbia Circuit for review of TSA's use of AIT as a 
primary screening device to screen airline passengers. EPIC argued that 
the use of AIT violated various federal statutes and the Fourth 
Amendment to the Constitution and should have been the subject of 
notice-and-comment rulemaking.
    The Court of Appeals issued a decision on July 15, 2011, which 
rejected nearly all of EPIC's claims.\17\ In ruling on EPIC's Fourth 
Amendment claim, the Court held that screening passengers at an airport 
is an administrative search that does not rely on individualized 
suspicion. ``Instead, whether an administrative search is 
`unreasonable' within the condemnation of the Fourth Amendment `is 
determined by assessing, on the one hand, the degree to which it 
intrudes upon an individual's privacy and, on the other, the degree to 
which it is needed for the promotion of legitimate governmental 
interests'.'' \18\
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    \17\ Electronic Privacy Information Center v. U.S. Department of 
Homeland Security, 653 F.3d 1 (D.C. Cir. 2011).
    \18\ Id. at 10 (quoting United States v. Knights, 534 U.S. 112, 
118-119 (2001)).
---------------------------------------------------------------------------

    The Court found that the ``balance clearly favors the Government 
here.'' \19\ The Court recognized the clear need for AIT screening, and 
the advantages the AIT provides over the WTMD. The Court stated that 
``[t]he need to search

[[Page 18293]]

airline passengers `to ensure public safety can be particularly acute' 
and, crucially, an AIT scanner, unlike a magnetometer, is capable of 
detecting, and therefore of deterring, attempts to carry aboard 
airplanes explosives in liquid or powder form.'' \20\
---------------------------------------------------------------------------

    \19\ Id.
    \20\ Id. (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 
47-48) (internal citation omitted).
---------------------------------------------------------------------------

    As explained in the decision, the AIT scanners then in use produce 
a ``crude image of an unclothed person * * *.''\21\ In rejecting EPIC's 
privacy argument, the Court recognized that TSA has taken steps:

    \21\ Id. at 3.
---------------------------------------------------------------------------

    [T]o mitigate the effect a scan using AIT might have upon 
passenger privacy: Each image produced by a scanner passes through a 
filter to obscure facial features and is viewable on a computer 
screen only by an officer sitting in a remote and secure room. As 
soon as the passenger has been cleared, moreover, the image is 
deleted; the officer cannot retain the image on his computer, nor is 
he permitted to bring a cell phone or camera into the secure 
room.\22\

    \22\ Id. at 4.
---------------------------------------------------------------------------

    The Court also noted that three Privacy Impact Assessments (PIAs) 
of the AIT program had been completed and were sufficient. ``[T]he 
petitioners make no more specific objection that would enable us to 
disturb the [Chief Privacy Officer's] conclusion that the privacy 
protections built into the AIT program are sufficiently `strong'.'' 
\23\
---------------------------------------------------------------------------

    \23\ Id. at 9.
---------------------------------------------------------------------------

    In its decision, the Court acknowledged that Congress authorized 
TSA to prescribe the details of the screening process. The Court noted 
that ``Congress did * * * in 2004, direct the TSA to `give a high 
priority to developing, testing, improving, and deploying' at airport 
screening checkpoints a new technology `that detects nonmetallic, 
chemical, biological, and radiological weapons, and explosives, in all 
forms'.'' \24\ The Court observed that TSA responded to this directive 
through the development and procurement of AIT scanners, which enable 
the operator of the machine to detect non-metallic objects, such as a 
liquid or powder, which a metal detector cannot detect, without 
touching the passengers coming through the checkpoint.\25\
---------------------------------------------------------------------------

    \24\ Id. at 3 (quoting sec. 4013 of the Intelligence Reform and 
Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3719).
    \25\ Id.
---------------------------------------------------------------------------

    TSA tested the use of AIT machines in 2009 for primary screening at 
a limited number of airports. The Court acknowledged that ``based on 
the apparent success of the test, the TSA decided early in 2010 to use 
the scanners everywhere for primary screening.'' \26\ The Court also 
pointed out that passengers are not required to go through the AIT 
screening process. The Court stated ``no passenger is ever required to 
submit to an AIT scan * * * [and] signs at the security checkpoint 
notify passengers they may opt instead for a patdown.'' \27\ The Court 
also rejected EPIC's claims that the AIT is unlawful under the Video 
Voyeurism Prevention Act and the Religious Freedom Restoration Act.
---------------------------------------------------------------------------

    \26\ Id.
    \27\ Id.
---------------------------------------------------------------------------

    In ruling on EPIC's Administrative Procedure Act claim, the Court 
determined that TSA did not justify ``its failure to initiate notice-
and-comment rulemaking before announcing it would use AIT scanners for 
primary screening.'' \28\ Even though privacy precautions had been 
implemented, the Court stated ``it is clear that by producing an image 
of the unclothed passenger, an AIT scanner intrudes upon * * * personal 
privacy in a way a magnetometer does not.'' \29\ Thus, the Court found 
the use of the AIT in primary screening ``substantively affects the 
public to a degree sufficient to implicate the policy interests 
animating notice-and-comment rulemaking.'' \30\ The Court did not 
require TSA to stop using AIT. ``[D]ue to the obvious need for the TSA 
to continue its airport security operations without interruption, we 
remand the rule to the TSA but do not vacate it * * * .'' \31\
---------------------------------------------------------------------------

    \28\ Id.
    \29\ Id. at 6.
    \30\ Id.
    \31\ Id. at 8.
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III. AIT Screening Protocols

A. Types of AIT Equipment

    TSA engaged in extensive laboratory and operational testing before 
approving the two types of AIT equipment initially deployed. In 
February 2007, TSA initiated a pilot operation at an airport to test 
AIT detection capability in the secondary screening position for 
aviation passengers who set off the alarm of the WTMD. In January 2008, 
TSA published a PIA to cover AIT screening of all passengers at the 
security screening checkpoint. Throughout 2007 and 2008, additional AIT 
units were tested in the secondary screening position and TSA continued 
to evaluate different types of AIT equipment, including both general-
use x-ray backscatter and millimeter wave. In 2009, TSA began to 
evaluate using AIT in the primary screening position as an alternative 
to WTMD.\32\ Deploying AIT in the primary position to screen all 
passengers for both metallic and non-metallic threats allows TSA to use 
the technology to its full capability. In February 2010, TSA submitted 
a report to Congress on privacy protections and deployment of AIT.\33\
---------------------------------------------------------------------------

    \32\ In addition to the AIT equipment described below, TSA 
evaluated infrared (IR) technology, which scans for temperature 
differences on the body's surface or for temperature imbalances 
between the body, clothes, and any hidden objects.
    \33\ ``Advanced Imaging Technologies: Passenger Privacy 
Protections,'' Fiscal Year 2010 Report to Congress, February 25, 
2010.
---------------------------------------------------------------------------

    TSA has compared AIT to other transportation security equipment and 
manual processes, including ETD, WTMD, and pat-downs. Based on the 
testing results, TSA determined that AIT currently offers the best 
opportunity to detect both metallic and non-metallic threat items 
concealed underneath clothing, such as the explosives carried by Mr. 
Abdulmutallab, without physical contact.
    One type of AIT equipment initially deployed by TSA, the Rapiscan 
Secure 1000, uses backscatter technology. Unlike a traditional x-ray 
machine, which relies on the transmission of x-rays through an object, 
general-use backscatter technology projects low level x-ray beams over 
the body surface at high speed. The reflection or ``backscatter'' of 
the beam is detected and digitized to create an image.\34\
---------------------------------------------------------------------------

    \34\ An example of the image produced by the backscatter 
technology is posted on TSA's Web site at http://www.tsa.gov/travelers-guide/ait-how-it-works.
---------------------------------------------------------------------------

    The L-3 ProVision, another type of AIT equipment currently deployed 
by TSA, uses millimeter-length radio waves. Millimeter wave technology 
bounces electromagnetic waves off of the human body to detectors in the 
machine, which a computer then interprets in order to create a black 
and white image.\35\
---------------------------------------------------------------------------

    \35\ See ``Safety of AIT'' for a discussion of the safety of the 
millimeter wave equipment. The Food and Drug Administration has 
found that millimeter wave is safe and states on its Web site that 
``[m]illimeter wave security systems which comply with the limits 
set in the applicable national non-ionizing radiation safety 
standard * * * cause no known adverse health effects.'' http://www.fda.gov/Radiation-EmittingProducts/RadiationEmittingProductsandProcedures/SecuritySystems/ucm227201.htm#2.
---------------------------------------------------------------------------

    Working with the DHS Science & Technology Directorate and private 
industry, TSA began testing ATR software in 2010. Automatic Target 
Recognition software generates a generic outline and not an individual 
image.\36\

[[Page 18294]]

In July 2011, TSA began installing ATR software on millimeter wave AIT 
units and completed installation on all millimeter wave units currently 
in use. This advancement significantly enhances privacy by eliminating 
the passenger-specific images referred to in the EPIC v. DHS decision.
---------------------------------------------------------------------------

    \36\ Examples of the generic outline that the ATR software 
produces are available on TSA's Web site at http://www.tsa.gov/travelers-guide/ait-how-it-works.
---------------------------------------------------------------------------

    As part of the Federal Aviation Administration Modernization and 
Reform Act of 2012, Congress mandated that all AIT units must be 
equipped with ATR by June 1, 2012.\37\ As permitted by law, the 
deadline was extended to June 1, 2013. While all of the millimeter wave 
units have been equipped with the ATR software, Rapiscan was unable to 
develop ATR software that would work on the general-use backscatter 
units. As a result, TSA terminated its Rapiscan ATR delivery order and 
all Rapiscan general-use backscatter AIT units currently deployed at 
TSA checkpoints are being removed from operation by Rapiscan.\38\ By 
June 1, 2013, only AIT equipped with ATR will be used at TSA 
checkpoints.
---------------------------------------------------------------------------

    \37\ Public Law 112-95.
    \38\ http://blog.tsa.gov/2013/01/rapiscan-backscatter-contract.html.
---------------------------------------------------------------------------

    TSA will continue to evaluate current AIT systems and associated 
screening procedures, as well as any new technologies and procedures 
that may be considered for deployment, to ensure that they are safe and 
meet all relevant government and consensus industry standards, are 
effective against established and anticipated threats, and require the 
least disruption and intrusion on passenger privacy possible.

B. Privacy Safeguards for AIT

    The use of ATR software enhances passenger privacy by eliminating 
images of individual passengers, as well as the need for a TSO to view 
the individual images to identify anomalies.\39\ Automatic Target 
Recognition software auto-detects anomalies concealed on the body and 
displays these on a generic outline, which is viewable on a screen 
located on the AIT equipment. These anomalies are then resolved through 
additional screening. Automatic Target Recognition-enabled units 
deployed at airports are not capable of storing or printing the generic 
outline that will be visible to passengers. TSA has installed the 
software on all currently-deployed millimeter wave units. As noted 
above, AIT units without ATR software are being removed from operation 
and only ATR-equipped AIT units will be used at the checkpoint as of 
June 1, 2013.
---------------------------------------------------------------------------

    \39\ Before the installation of ATR software, TSA required that 
all millimeter wave machines blur the face of the passenger.
---------------------------------------------------------------------------

    Section 222 of the Homeland Security Act requires that the Privacy 
Office assure that the use of technologies sustain and do not erode 
privacy protections relating to the use, collection, and disclosure of 
personal information, and to conduct a privacy impact assessment (PIA) 
for proposed rules impacting the privacy of personal information (6 
U.S.C. 142). Even before the development of the ATR software, TSA 
instituted rigorous safeguards to protect the privacy of individuals 
who are screened using AIT. In addition, as noted by the Court in EPIC 
v. DHS, the DHS Chief Privacy Officer has conducted several PIAs on the 
use of AIT equipment to ensure that the public's privacy concerns 
related to AIT screening are adequately addressed. These PIAs meet the 
requirements of section 222 for this NPRM and describe the strict 
measures TSA uses to protect privacy.\40\ To the extent that TSA 
receives substantive comments on privacy issues related to the use of 
AIT, they will be addressed in the final rule and any resulting changes 
will be addressed appropriately in a revised PIA.
---------------------------------------------------------------------------

    \40\ The most recent update to the PIA is posted on the DHS Web 
site at http://www.dhs.gov/xlibrary/assets/privacy/privacy-pia-tsa-ait.pdf and is available in the docket for this rulemaking.
---------------------------------------------------------------------------

    While graphic images purportedly from TSA's AIT machines have been 
circulated in the media, those images were not the type produced by 
TSA's AIT equipment. Neither of the AIT technologies that have been 
used by TSA produced photographs or images that would enable personal 
identification. As deployed by TSA, neither technology is able to 
store, print, or export any image.
    When using the backscatter technology, TSA requirements dictated 
that a filter be applied to prevent a detailed image of an individual. 
In addition, the images were viewed by a trained TSO in a locked, 
remote location. The anonymity of the individual being screened was 
preserved, since the TSO assisting the individual at the AIT unit never 
saw the image, and the TSO viewing the image never saw the individual 
being screened. No TSA personnel were permitted to view both the image 
and the individual. The backscatter units did not store, print, or 
export any images. Storage capability was disabled prior to deployment, 
and TSA airport personnel were not able to activate the storage 
capability. In addition, the backscatter images were transmitted 
securely between the unit and the viewing room so they could not be 
lost, modified, or disclosed. The images produced by the backscatter 
units were encrypted during transmission. The images were deleted from 
the screen in the viewing room when the individual was cleared. TSOs in 
the viewing room were prohibited from bringing electronic devices such 
as cameras, cell phones, or other recording devices into the room. 
Violations of these procedures subjected the TSO to disciplinary 
action, which included termination.
    To give further effect to the Fair Information Practice Principles 
that are the foundation for privacy policy and implementation at DHS, 
individuals may opt-out of the AIT in favor of physical screening. TSA 
provides notice of the use of AIT and the opt-out option at the 
checkpoint so that individuals may exercise an informed judgment on 
AIT. Signs are posted that explain the technology and state ``use of 
this technology is optional. If you choose not to be screened by this 
technology you will receive a thorough pat down.''\41\ TSA requests 
comment on the privacy safeguards discussed above and on the ability of 
passengers to opt-out of AIT screening.
---------------------------------------------------------------------------

    \41\ See AIT Signs at http://www.tsa.gov/ait-how-it-works.
---------------------------------------------------------------------------

C. Safety of AIT

    AIT equipment has been subject to extensive testing that has 
confirmed that it is safe for individuals being screened, equipment 
operators, and bystanders.\42\ The exposure to ionizing x-ray beams 
emitted by the backscatter machines that are being removed pursuant to 
statute, as well as the non-ionizing electromagnetic waves from the 
millimeter wave machines is well within the limits allowed under 
relevant national health and safety standards. Prior to procuring and 
deploying both backscatter and millimeter wave AIT equipment, TSA 
tested the units to determine whether they would be safe for use in 
passenger screening. As explained further below, TSA determined that 
the general-use backscatter and millimeter wave technologies were safe 
for use in screening the public because the x-ray and radio waves 
emissions were so low as to present a negligible risk to passengers, 
airline crew members, airport employees, and TSA employees.
---------------------------------------------------------------------------

    \42\ See AIT: Safety at http://www.tsa.gov/ait-safety.
---------------------------------------------------------------------------

1. Millimeter Wave Units
    The millimeter wave AIT systems that will be the only technology 
deployed at

[[Page 18295]]

the checkpoint as of June 1, 2013 use non-ionizing radio frequency 
energy in the millimeter wave spectrum to generate a three-dimensional 
image based on the energy reflected from the body. Millimeter wave 
imaging technology meets all known national and international health 
and safety standards. In fact, the energy emitted by millimeter wave 
technology is 1,000 times less than the international limits and 
guidelines. The millimeter wave AIT systems that TSA uses must comply 
with the 2005 Institute of Electrical and Electronics Engineers, Inc. 
Standard for Safety Levels with Respect to Human Exposure to Radio 
Frequency Electromagnetic Fields (IEEE Std. C95.1TM-2005) as 
well as the International Commission on Non-Ionizing Radiation 
Protection Guidelines for Limiting Exposure to Time-Varying Electric, 
Magnetic, and Electromagnetic Fields, Health Physics 74(4); 494-522, 
published April 1998. TSA's millimeter wave units are also consistent 
with Federal Communications Commission OET Bulletin 65, Health Canada 
Safety Code 6, and RSS-102 Issue 3 for Canada. The FDA has also 
confirmed that millimeter wave security systems that comply with the 
IEEE Std. C95.1TM-2005 cause no known adverse health 
effects.\43\
---------------------------------------------------------------------------

    \43\ http://www.fda.gov/Radiation-EmittingProducts/RadiationEmittingProductsandProcedures/SecuritySystems/ucm227201.htm.
---------------------------------------------------------------------------

2. Backscatter Units
    As required by statute, TSA will remove all currently deployed 
Rapiscan backscatter units by May 31, 2013. When in use, TSA addressed 
potential health concerns regarding the ionizing radiation emitted by 
general-use backscatter technology. TSA's procurement specifications 
required that the backscatter units must conform to the consensus 
radiation safety standard of the American National Standards Institute 
(ANSI) \44\ and Health Physics Society (HPS) \45\ for the design and 
operation of security screening systems that use ionizing radiation. 
That standard is ANSI/HPS N43.17, which was first published in 2002 and 
revised in 2009.\46\
---------------------------------------------------------------------------

    \44\ ANSI is a private, non-profit organization that administers 
and coordinates the U.S. voluntary standards and conformity 
assessment system. The Institute oversees the development and use of 
voluntary consensus standards by providing neutral, third-party 
accreditation of the procedures used by standards developing 
organizations, and approving their documents as American National 
Standards.
    \45\ HPS is a scientific organization of professionals who 
specialize in radiation safety. Its mission is to support its 
members and to promote excellence in the science and practice of 
radiation safety. As an independent nonprofit scientific 
organization, HPS is not affiliated with any government or 
industrial organization or private entity.
    \46\ American National Standard, ``Radiation Safety for 
Personnel Security Screening Systems Using X-Ray or Gamma 
Radiation,'' ANSI/HPS N43.17 (2009); Health Physics Society, McLean, 
VA. Copies can be ordered at: http://webstore.ansi.org/faq.aspx#resellers.
---------------------------------------------------------------------------

    The annual dose limits in ANSI/HPS N43.17 are based on dose limit 
recommendations for the general public published by the National 
Council on Radiation Protection and Measurements \47\ in Report 116, 
``Limitations of Exposure to Ionizing Radiation.'' \48\ The dose limits 
were set with consideration given to individuals, such as pregnant 
women, children, and persons who receive radiation treatments, who may 
be more susceptible to radiation health effects. Further, the standard 
also takes into consideration the fact that individuals are 
continuously exposed to ionizing radiation from the environment. ANSI/
HPS N43.17 sets the maximum permissible dose of ionizing radiation from 
a general-use system per security screening at 0.25 microsieverts.\49\ 
The standard also requires that individuals should not receive 250 
microsieverts or more from a general-use x-ray security screening 
system in a year.
---------------------------------------------------------------------------

    \47\ The National Council on Radiation Protection and 
Measurements was founded in 1964 by Congress to cooperate with the 
International Commission on Radiological Protection, the Federal 
Radiation Council, the International Commission on Radiation Units 
and Measurements, and other national and international 
organizations, both governmental and private, concerned with 
radiation quantities, units, and measurements as well as radiation 
protection.
    \48\ Copies of the report can be ordered at: http://www.ncrppublications.org/Reports/116.
    \49\ The biological effect of radiation is measured in sieverts. 
One sievert equals 1,000 millisieverts and one millisievert equals 
1,000 microsieverts.
---------------------------------------------------------------------------

    The radiation dose (effective dose) a passenger receives from a 
general-use backscatter AIT screening has been independently evaluated 
by the Food and Drug Administration's (FDA's) Center for Devices and 
Radiological Health, the National Institute for Standards and 
Technology, and the Johns Hopkins University Applied Physics 
Laboratory. All results affirmed that the effective dose for 
individuals being screened, operators, and bystanders was well below 
the dose limits specified by ANSI/HPS N43.17.\50\ These results were 
confirmed in a report issued by the DHS Office of Inspector General 
(OIG) in February 2012.\51\ The OIG report found that the independent 
surveys show that backscatter radiation levels are below the 
established limits and that TSA complied with ANSI/HPS N43.17.
---------------------------------------------------------------------------

    \50\ TSA's Web site at http://www.tsa.gov/travelers-guide/ait-safety contains many articles and studies that discuss AIT safety, 
including a description of the built-in safety features of the 
Rapiscan Secure 1000, an Archives of Internal Medicine report on the 
risks of imaging technology, the FDA evaluation of backscatter 
technology, and other independent safety assessments of AIT.
    \51\ Department of Homeland Security, Office of Inspector 
General, ``Transportation Security Administration's Use of 
Backscatter Units,'' OIG-12-38, February 2012.
---------------------------------------------------------------------------

    Typical doses from backscatter machines are no more than 0.05 
microsieverts per screening, well below the ANSI/HPS N43.17 maximum 
dosage of 0.25 microsievert per screening. An individual would have to 
have been screened by the Rapiscan Secure 1000 more than 13 times daily 
for 365 consecutive days before exceeding the ANSI/HPS standard.
    By comparison, a traveler would have to be screened via Rapiscan/
backscatter AIT 2,000 times to equal the dosage received in a single 
chest x-ray, which delivers 100 microsieverts of ionizing radiation. A 
typical bite-wing dental x-ray of 5 microsieverts would be equivalent 
to 100 backscatter screenings, and a two-view mammogram that delivers 
360 microsieverts would be equivalent to 7,200 backscatter 
screenings.\52\ A passenger flying one-way from Washington, DC to Los 
Angeles is exposed to approximately 19.1 microsieverts of ionizing 
radiation over the course of the 4.7 hour flight.\53\
---------------------------------------------------------------------------

    \52\ HPS Fact Sheet: Radiation Exposure from Medical Exams and 
Procedures, January 2010, http://hps.org/documents/Medical_Exposures_Fact_Sheet.pdf.
    \53\ Federal Aviation Administration, ``What Aircrews Should 
Know About Their Occupational Exposure to Ionizing Radiation,'' DOT-
FAA-AM-03-1 (October 2003) at p. 9. Available at: http://www.faa.gov/data_research/research/med_humanfacs/oamtechreports/2000s/media/0316.pdf.
---------------------------------------------------------------------------

    ANSI/HPS also reflects the standard for a negligible individual 
dose of radiation established by the National Council on Radiation 
Protection and Measurements at 10 microsieverts per year. Efforts to 
reduce radiation exposure below the negligible individual dose are not 
warranted because the risks associated with that level of exposure are 
so small as to be indistinguishable from the risks attendant to 
environmental radiation that individuals are exposed to every day.\54\ 
The level of radiation issued by the Rapiscan Secure 1000 is so low 
that most passengers would not have exceeded even the negligible 
individual

[[Page 18296]]

dose. In fact, an individual would have to be screened more than 200 
times a year by a Rapiscan Secure 1000 before he or she would exceed 
the negligible individual dose and, even then, the exposure would be 
below the ANSI/HPS N43.17 standard.
---------------------------------------------------------------------------

    \54\ The World Health Organization estimates that each person is 
exposed, on average, to 2.4 millisieverts (i.e., 2400 microsieverts) 
of ionizing radiation each year from natural sources. www.who.int/ionizing_radiation/about/what_is_ir/en/index2.html.
---------------------------------------------------------------------------

    The European Commission released a report conducted by the 
Scientific Committee on Emerging and Newly Identified Health Risks 
(SCENIHR) on the risks related to the use of security scanners for 
passenger screening that use ionizing radiation such as the general-use 
backscatter AIT machines.\55\ The committee found no short term health 
effects that can result from the doses of radiation delivered by 
security scanners. In the long term, it found that the potential cancer 
risk cannot be estimated, but is likely to remain so low that it cannot 
be distinguished from the effects of other exposures including both 
ionizing radiation from other natural sources, and background risk due 
to other factors.
---------------------------------------------------------------------------

    \55\ The SCENIHR is an independent committee that provides the 
European Commission with the scientific advice it needs when 
preparing policy and proposals relating to consumer safety, public 
health and the environment. The committee is made up of external 
experts. The report can be found at http://ec.europa.eu/health/scientific_committees/emerging/docs/scenihr_o_036.pdf.
---------------------------------------------------------------------------

    The ANSI/HPS N43.17 standard also requires that any general-use 
backscatter machine have safety interlocks to terminate emission of x-
rays in the event of any system problem that could result in abnormal 
or unintended radiation emission. The Rapiscan Secure 1000 had three 
such features. First, the unit was designed to cease x-ray emission 
once the programmed scan motion ends. That feature could not be 
adjusted. Second, the unit was programmed to terminate emission once 
the requiWeb site number of lines of data necessary to create an image 
was received. Both of these automatic features reduced the possibility 
that emissions could continue if the unit malfunctions. Finally, the 
unit had an emergency stop button that would terminate x-ray emission.
    Upon installation, a radiation emission survey was conducted on 
each Rapiscan Secure 1000 to ensure the unit operated properly. 
Preventive maintenance checks, including radiation safety surveys, were 
performed at least once every six months; after any maintenance that 
affected the radiation shielding, shutter mechanism, or x-ray 
production components; after any incident where damage was suspected; 
or after a unit was moved. The U.S. Army Public Health Command also 
conducted an independent radiation survey on deployed systems. The 
report confirmed that the general-use backscatter units tested were 
well within applicable national safety standards.\56\
---------------------------------------------------------------------------

    \56\ The report is available on TSA's Web site at http://www.tsa.gov/travelers-guide/ait-safety.
---------------------------------------------------------------------------

    The DHS Office of the Chief Procurement Officer is also requesting 
the National Academy of Sciences to review previous studies as well as 
the current processes used by DHS and equipment manufacturers to 
estimate radiation exposure resulting from general-use backscatter 
equipment and to provide a report on whether radiation exposures comply 
with applicable health and safety standards and whether system design 
operating procedures and maintenance procedures are appropriate.

D. AIT Procedures at the Checkpoint

    TSA's regulations require that ``[i]ndividuals may not enter or be 
present within a secured area, air operations area, security 
identification display area, or sterile area without complying with the 
systems, measures, or procedures used to control access to such 
areas.'' \57\ In addition, ``[i]ndividuals may not enter a sterile area 
or board an aircraft without submitting to the screening and inspection 
of their person and accessible property in accordance with the 
procedures being applied to control access to that area or the 
aircraft.'' \58\ Federal law also requires that air carriers refuse to 
transport a passenger who does not consent to a search of his person or 
baggage,\59\ and authorizes air carriers to refuse to transport a 
passenger or property the carrier decides is, or might be, inimical to 
safety.\60\
---------------------------------------------------------------------------

    \57\ 49 CFR 1540.105(a)(2).
    \58\ 49 CFR 1540.107(a).
    \59\ 49 U.S.C. 44902(a), 49 CFR 1544.201(c).
    \60\ 49 U.S.C. 44902(b).
---------------------------------------------------------------------------

    The specific security procedures, systems, or measures that TSA 
deploys are included in its Standard Operating Procedures (SOPs). The 
SOPs instruct the TSOs how to conduct the screening measures currently 
in use. Terrorists continue to seek ways to thwart aviation security 
measures and could use information on TSA procedures, such as the 
instructions on how to operate AIT equipment and the AIT equipment 
specifications, to plan and execute attacks. Therefore, the SOPs are 
SSI and are not made public as such disclosure would prove detrimental 
to transportation security.\61\
---------------------------------------------------------------------------

    \61\ SSI is defined in footnote 1.
---------------------------------------------------------------------------

    In response to the decision in EPIC v. DHS, TSA is proposing to add 
the following language to its current regulations at 49 CFR 1540.107, 
quoted above, to specifically address AIT screening:

    (d) The screening and inspection described in (a) may include 
the use of advanced imaging technology. For purposes of this 
section, advanced imaging technology is defined as screening 
technology used to detect concealed anomalies without requiring 
physical contact with the individual being screened.

In addition, TSA has posted information on its Web site on what 
individuals can expect when submitting to AIT screening. AIT screening 
is currently optional, but when opting out of AIT screening, a 
passenger will receive a pat-down. When TSA deploys AIT equipment at a 
screening lane, a sign is posted to inform the public that AIT may be 
used as part of the screening process prior to passengers entering the 
machine so that each passenger may exercise an informed decision on the 
use of AIT. The sign also indicates that a passenger who chooses not to 
be screened by AIT will receive a pat-down. However, TSA has found that 
since 2009, fewer than two percent of passengers opt for a pat-down in 
lieu of AIT screening.\62\
---------------------------------------------------------------------------

    \62\ TSA's Web site describes the results of independent polling 
on AIT acceptance showing strong public support for and 
understanding of the need for AIT. See http://www.tsa.gov/ait-more-information. In addition, passengers with joint replacements or 
other medical devices that would regularly set off the alarm on a 
metal detector often prefer AIT because it is quicker and less 
invasive than a pat-down. See http://www.tsa.gov/traveler-information/advanced-imaging-technology-ait. An internet campaign in 
2010 failed in an attempt to disrupt checkpoint operations by urging 
passengers to request a pat-down in lieu of AIT screening during the 
Thanksgiving holiday travel period. See ``Opt Out Turns Into Opt 
In,'' The TSA Blog, November 24, 2010, http://blog.tsa.gov/2010_11_24_archive.html.
---------------------------------------------------------------------------

    TSA's Web site \63\ explains that AIT looks for any items, both 
metallic and non-metallic, that might be anywhere on the body. It 
recommends that individuals remove all items from pockets and their 
person and place them in carry-on baggage prior to entering the 
checkpoint. It notes that removal will lessen the chance that 
additional screening will be required. The Web site also explains that 
for AIT units not equipped with ATR, the TSO who views the image cannot 
see the individual; while for AIT equipped with ATR software, the 
screen with the generic outline is located on the scanner and is 
visible to the passenger and the TSO. The Web site states that AIT is 
optional.
---------------------------------------------------------------------------

    \63\ http://www.tsa.gov/travelers-guide/ait-how-it-works.
---------------------------------------------------------------------------

    After any items are removed, individuals are directed to enter the

[[Page 18297]]

AIT. Once inside, individuals are directed to stand with arms raised, 
and to remain still for several seconds while the image is created. 
When using AIT with ATR, the image is not an image of the individual 
passenger, rather a generic outline that indicates where the anomaly is 
detected. Individuals are directed to exit the opposite side of the 
portal. Once the image is reviewed and any anomalies are resolved, the 
image is deleted. This process usually takes less than a minute.
    TSA has also refined its procedures to make sure that the screening 
process addresses the needs of families. TSA never separates a child 
from an accompanying adult and makes sure that the accompanying adult 
observes the entire screening process. Advanced Imaging Technology is 
safe for children, and children may undergo screening using AIT as long 
as they are able to stand with their hands above their head for the 
five to seven seconds needed to conduct the scan. However, TSA no 
longer requires children who are 12 years old or younger to be screened 
by AIT and will direct those passengers to the WTMD unless instructed 
otherwise by an accompanying adult.\64\ TSA has also implemented 
procedures to accommodate those passengers with disabilities and 
medical conditions that make them ineligible for AIT screening because 
they cannot stand in the necessary pose.
---------------------------------------------------------------------------

    \64\ See Advanced Imaging Technology (AIT) at http://www.tsa.gov/traveler-information/traveling-children.
---------------------------------------------------------------------------

IV. Deployment of AIT

    As of February 22, 2013, TSA has deployed over 800 AIT machines at 
approximately 200 airports in the United States.\65\ TSA is removing 
the 174 Rapiscan general-use backscatter units from its checkpoints and 
by June 1, 2013, only units equipped with ATR software will be used to 
conduct screening.
---------------------------------------------------------------------------

    \65\ TSA maintains a list of airports that have AIT machines on 
its Web site at http://www.tsa.gov/travelers-guide/ait-frequently-asked-questions.
---------------------------------------------------------------------------

    Since it began using AIT, TSA has been able to detect many kinds of 
non-metallic items, small items, and items concealed on parts of the 
body that would not have been detected using metal detectors. Once an 
anomaly is detected, additional screening is required to determine if 
the item is prohibited.
    Since January 2010, this technology has helped TSA officers detect 
hundreds of prohibited, dangerous, or illegal items concealed on 
passengers.\66\ TSA's procurement specifications require that any AIT 
system must meet certain thresholds with respect to the detection of 
anomalies concealed under an individual's clothing. While the detection 
requirements of AIT are classified, the procurement specifications 
require that any approved system be sensitive enough to detect smaller 
items, such as a Web pager, wallet, or small bottle of contact lens 
solution.
---------------------------------------------------------------------------

    \66\ Remarks of TSA Administrator John S. Pistole, Homeland 
Security Policy Institute, George Washington University, November 
10, 2011.
---------------------------------------------------------------------------

    Experience has confirmed that AIT will detect metallic and non-
metallic items, including material that could be in various forms 
concealed under an individual's clothing. For example, a non-metallic 
martial arts weapon called a ``Tactical Spike'' was discovered in the 
sock of a passenger in Pensacola, Florida after being screened by 
AIT.\67\ Advanced Imaging Technology is also effective in detecting 
metallic items. In December, 2011, a loaded .38 caliber firearm in an 
ankle holster was discovered during AIT screening of a passenger at 
Detroit Metropolitan Airport.\68\ The versatility of AIT in detecting 
both metallic and non-metallic concealed items without physical contact 
makes it more effective than metal detectors as a tool to protect 
transportation security.
---------------------------------------------------------------------------

    \67\ ``TSA Week In Review: Non Metallic Martial Arts Weapon 
Found with Body Scanner,'' http://blog.tsa.gov/2011/12/tsa-week-in-review-non-metallic-martial.html.
    \68\ http://blog.tsa.gov/2011/12/loaded-380-found-strapped-to-passengers.html.
---------------------------------------------------------------------------

    Some of the items discovered concealed on passengers during AIT 
screening are small items, such as weapons made of composite, non-
metallic materials, including a three inch pocket knife hidden on a 
passenger's back; little packets of powder, including a packet the size 
of a thumbprint; and a syringe full of liquid hidden in a passenger's 
underwear.\69\ A plastic dagger hidden in the hemline of a passenger's 
shirt was detected using AIT \70\ and a plastic dagger concealed inside 
a comb was detected in a passenger's pocket.\71\ Advanced Imaging 
Technology's capability to identify these small items is important 
because in addition to weapons and explosive materials, TSA also 
searches for improvised explosive device components, such as timers, 
initiators, switches, and power sources. Such items may be very small. 
Advanced Imaging Technology enhances TSA's ability to find these small 
items and further assists TSA in detecting threats.
---------------------------------------------------------------------------

    \69\ ``Advanced Imaging Off To a Great Start,'' April 20, 2010, 
at http://blog.tsa.gov/2010/04/advanced-imaging-technology-off-to.html and ``Advanced Imaging Technology--Yes, It's Worth It,'' 
March 31, 2010, at http://blog.tsa.gov/2010/03/advanced-imaging-technology-yes-its.html.
    \70\ ``TSA Week in Review: Plastic Dagger Found With Body 
Scanner,'' May 4, 2012, at http://blog.tsa.gov/2012/05/tsa-week-in-review-plastic-dagger-found.html.
    \71\ ``TSA Week in Review: Comb Dagger Discovered With Body 
Scanner, 28 Loaded Guns, and More,'' August 17, 2012 at http://blog.tsa.gov/2012/08/tsa-week-in-review-comb-dagger.html.
---------------------------------------------------------------------------

V. Rulemaking Analyses and Notices

A. Regulatory Evaluation Summary and Economic Impact Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order (E.O.) 12866, Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), as supplemented by E.O. 13563, 
Improving Regulation and Regulatory Review (76 FR 3821, January 21, 
2011), directs each Federal agency to propose or adopt a regulation 
only upon a reasoned determination that the benefits of the intended 
regulation justify its costs. Second, the Regulatory Flexibility Act of 
1980 (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory 
Enforcement Fairness Act (SBREFA) of 1996) requires agencies to 
consider the economic impact of regulatory changes on small entities. 
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. Fourth, the Unfunded 
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) requires 
agencies to prepare a written assessment of the costs, benefits, and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation).

B. Executive Orders 12866 and 13563 Assessment

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
This rule is a

[[Page 18298]]

``significant regulatory action'' that is economically significant 
under sec. 3(f)(1) of E.O. 12866. Accordingly, the Office of Management 
and Budget (OMB) has reviewed this regulation.
    In conducting these analyses, TSA has determined:
    (1) This rulemaking is a ``significant regulatory action'' as 
defined in the E.O.
    (2) An Initial Regulatory Flexibility Analysis suggests this 
rulemaking would not have a significant economic impact on a 
substantial number of small entities.
    (3) This rulemaking would not constitute a barrier to international 
trade.
    (4) This rulemaking does not impose an unfunded mandate on State, 
local, or tribal governments, or on the private sector under UMRA.
    These analyses, available in the docket, are summarized below. This 
NPRM proposes to codify the use of AIT to screen passengers boarding 
commercial aircraft for weapons, explosives, and other prohibited items 
concealed on the body. These costs are incurred by airport operators, 
the traveling public, Rapiscan, and TSA. Some airport operators incur 
utility costs for the additional electricity consumed by AIT machines. 
The small percentage of passengers (approximately one percent) who 
choose to opt out of AIT screening will incur opportunity costs due to 
the additional screening time needed to receive a pat-down. Rapiscan, a 
company that manufactures AIT machines, will incur a cost to remove 
backscatter AIT units in 2013 that have been deployed in previous 
years.\72\ TSA incurs equipment costs associated with the life cycle of 
AIT machines (testing, acquisition, maintenance, etc.); personnel costs 
to hire TSOs to operate the AIT machines; utility costs at reimbursed 
airports; and training costs to train TSOs to operate AIT, and to 
detect and resolve any anomalies that may be discovered during AIT 
screening.
---------------------------------------------------------------------------

    \72\ On December 21, 2012, TSA terminated part of its contract 
with Rapiscan for the Convenience of the Government because it could 
not meet development related issues in regards to ATR by the 
Congressionally-mandated June 2013 deadline. As a result of the 
contract termination, Rapiscan will pay for the removal of all units 
still in the field.
---------------------------------------------------------------------------

    When estimating the cost of a rulemaking, agencies typically 
estimate future expected costs imposed by a regulation over a period of 
analysis. Because the AIT machine life cycle from deployment to 
disposal is eight years, the period of analysis for estimating the cost 
of AIT is also eight years. However, as AIT deployment began in 2008, 
there are costs that have already been borne by airport operators, the 
traveling public, and TSA that were not due to this rule. Consequently, 
in the Initial Regulatory Impact Analysis for this rule, TSA is 
reporting the AIT-related costs that have already occurred (years 2008-
2011), but TSA considers the additional cost of this rulemaking to be 
years 2012-2015. By reporting the costs that have already happened and 
estimating future costs in this manner, TSA will have considered and 
disclosed the full eight-year life cycle of AIT deployment.
    TSA reports that the net cost of AIT deployment from 2008-2011 has 
been $841.2 million (undiscounted) and that TSA has borne over 99 
percent of all costs related to AIT deployment. TSA projects that from 
2012-2015 total AIT-related costs will be approximately $1.5 billion 
(undiscounted), $1.4 billion at a three percent discount rate, and $1.3 
billion at a seven percent discount rate. During 2012-2015, TSA 
estimates it will also incur over 98 percent of AIT-related costs with 
equipment and personnel costs being the largest categories of costs. 
Table 4 below reports the costs that have already happened (2008-2011) 
by cost category, while Table 5 shows the additional costs TSA is 
attributing to this rulemaking (2012-2015). Table 6 shows the total 
cost of AIT deployment from 2008 to 2015.
---------------------------------------------------------------------------

    \73\ TSA removed costs related to WTMD that would have occurred 
regardless of AIT deployment to obtain an estimated net cost for 
AIT.

                                    Table 4--Net Cost \73\ Summary of AIT Deployment From 2008-2011 by Cost Component
                                                  [Costs already incurred in $ thousands--undiscounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              TSA costs
                             Year                               Passenger     Industry  ----------------------------------------------------    Total
                                                                 opt outs    utilities    Personnel     Training    Equipment    Utilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008.........................................................         $7.0         $5.7    $14,689.1       $389.5    $37,425.2        $18.8    $52,535.3
2009.........................................................         32.2          5.7     15,618.6         88.0     42,563.6         20.4     58,328.5
2010.........................................................        262.2        158.2    247,566.7      5,332.8    119,105.4        241.4    372,666.6
2011.........................................................      1,384.2        186.7    284,938.7     15,354.4     55,567.2        269.1    357,700.2
                                                              ------------------------------------------------------------------------------------------
    Total....................................................      1,685.6        356.3    562,813.0     21,164.7    254,661.3        549.6    841,230.6
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                     Table 5--Cost Summary (Net Cost of AIT Deployment 2012-2015) by Cost Component
                                                               [AIT costs in $ thousands]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               TSA costs
                     Year                        Passenger     Industry  -----------------------------------------------------   Rapiscan       Total
                                                  opt outs    utilities     Personnel     Training    Equipment    Utilities     removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012..........................................     $2,716.5       $325.7    $375,866.9    $12,043.0   $116,499.3       $473.0         $0.0    $507,924.4
2013..........................................      3,991.7        329.3     280,844.3      4,277.5     51,588.8        324.4      1,809.6     343,165.7
2014..........................................      4,238.7        312.0     263,677.6      4,190.5     51,397.8        317.7          0.0     324,134.2
2015..........................................      5,611.8        300.3     278,580.2      4,144.2     68,052.6        365.7          0.0     357,054.9
                                               ---------------------------------------------------------------------------------------------------------
    Total.....................................     16,558.7      1,267.3   1,198,969.0     24,655.2    287,538.5      1,480.9      1,809.6   1,532,279.2
                                               ---------------------------------------------------------------------------------------------------------
    Discounted 3%.............................     15,265.0      1,178.9   1,118,459.3     23,810.2    269,233.7      1,380.7      1,705.7   1,431,033.5
                                               ---------------------------------------------------------------------------------------------------------
    Discounted 7%.............................     13,766.6      1,075.8   1,024,344.7     22,048.8    247,810.4      1,263.8      1,580.6   1,311,890.7
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 18299]]


                                     Table 6--Cost Summary (Net Cost of AIT Deployment 2008-2015) by Cost Component
                                                        [AIT costs in $ thousands--undiscounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               TSA costs
                     Year                        Passenger     Industry  -----------------------------------------------------   Rapiscan       Total
                                                  opt outs    utilities     Personnel     Training    Equipment    Utilities     removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008..........................................         $7.0         $5.7     $14,689.1       $389.5    $37,425.2        $18.8         $0.0     $52,535.3
2009..........................................         32.2          5.7      15,618.6         88.0     42,563.6         20.4          0.0      58,328.5
2010..........................................        262.2        158.2     247,566.7      5,332.8    119,105.4        241.4          0.0     372,666.6
2011..........................................      1,384.2        186.7     284,938.7     15,354.4     55,567.2        269.1          0.0     357,700.2
2012..........................................      2,716.5        325.7     375,866.9     12,043.0    116,499.3        473.0          0.0     507,924.4
2013..........................................      3,991.7        329.3     280,844.3      4,277.5     51,588.8        324.4      1,809.6     343,165.7
2014..........................................      4,238.7        312.0     263,677.6      4,190.5     51,397.8        317.7          0.0     324,134.2
2015..........................................      5,611.8        300.3     278,580.2      4,144.2     68,052.6        365.7          0.0     357,054.9
                                               ---------------------------------------------------------------------------------------------------------
    Total.....................................     18,244.4      1,623.6   1,761,782.0     45,819.9    542,199.9      2,030.4      1,809.6   2,373,509.9
--------------------------------------------------------------------------------------------------------------------------------------------------------

    This preamble (in the Background section above) has previously 
explained in detail the need for AIT and the Congressional direction to 
pursue AIT. In summary, terrorists continue to test our security 
measures in an attempt to find and exploit vulnerabilities. The threat 
to aviation security has evolved to include the use of non-metallic 
explosives, non-metallic explosive devices, and non-metallic weapons. 
Below are examples of this threat:
     On December 22, 2001, on board an airplane bound for the 
United States, Richard Reid attempted to detonate a non-metallic bomb 
concealed in his shoe.
     On December 25, 2009, a bombing plot by Al Qaeda in the 
Arabian Peninsula (AQAP) culminated in Umar Farouk Abdulmutallab's 
attempt to blow up an American aircraft over the United States using a 
non-metallic explosive device hidden in his underwear.
     In October 2010, AQAP attempted to destroy two airplanes 
in flight using non-metallic explosives hidden in two printer 
cartridges.
     In May 2012, during the most recent terrorist plot 
thwarted, AQAP developed another non-metallic explosive device that 
could be hidden in an individual's underwear and detonated while on 
board an aircraft.

As evidenced by the incidents described in the above sections, TSA 
operates in a high-threat environment. Terrorists look for security 
gaps or exceptions to exploit. The device used in the December 25, 
2009, attempt is illustrative. It was cleverly constructed and 
intentionally hidden on a sensitive part of the body to avert 
detection. If detonated, the lives of the almost 300 passengers and 
crew and untold numbers of people on the ground would have been in 
jeopardy.
    Advanced Imaging Technology is proven technology which provides the 
best opportunity to detect metallic and non-metallic anomalies 
concealed under clothing without touching the passenger and is an 
essential component of TSA's security. Since it began using AIT, TSA 
has been able to detect many kinds of non-metallic items, small items, 
and items concealed on parts of the body that would not have been 
detected using metal detectors. In addition, risk reduction analysis 
shows that the chance of a successful terrorist attack on aviation 
targets generally decreases as TSA deploys AIT. However, the results of 
TSA's risk-reduction analysis are classified.
    Passengers do not experience additional wait time due to use of AIT 
equipment because the x-ray screening of carry-on baggage constrains 
the overall screening process; they wait for their personal belongings 
regardless of which passenger screening technology is used.
    In Tables 7 and 8 below, we present annualized cost estimates and 
qualitative benefits of AIT deployment. In Table 7, we show the 
annualized net cost of AIT deployment from 2012 to 2015. As previously 
explained, costs incurred from 2008-2011 occurred in the past and are 
not considered costs attributable to this proposed rule. However, given 
the life cycle of the AIT technology considered in this analysis is 
eight years; we have also added Table 8 showing the annualized net cost 
of AIT deployment from 2008-2015 (a full eight-year life cycle and 
includes the ``sunk costs'' from 2008 to 2011). Please note that while 
the total costs of AIT deployment for a full eight-year life cycle 
(2008-2015) are higher than the total costs of AIT deployment during 
the four-year period of 2012-2015, the annualized costs ($368,262.8 at 
seven percent discount) of the full eight-year cycle shown in Table 8 
are actually lower than the annualized costs ($387,307.7 at seven 
percent discount) of the 2012-2015 deployment shown in Table 7. As 
previously shown in Tables 4 and 5, AIT deployment costs in 2008 and 
2009 are relatively low compared with the later year AIT expenditures, 
resulting in lower annualized costs for the eight-year life cycle of 
2008-2015. The costs are annualized and discounted at both three and 
seven percent and presented in 2011 dollars.

                                      Table 7--OMB A-4 Accounting Statement
                                           [$ Thousands for 2012-2015]
----------------------------------------------------------------------------------------------------------------
                                                                                              Source citation
           Category             Primary  estimate   Minimum  estimate   Maximum  estimate      (initial RIA,
                                                                                              preamble, etc.)
----------------------------------------------------------------------------------------------------------------
                                                    BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized benefits...........  Not estimated       Not estimated       Not estimated       Initial RIA.
Annualized quantified, but     0                   0                   0                   Initial RIA.
 unmonetized, benefits.

[[Page 18300]]

 
Unquantified benefits........  The operations described in this proposed rule produce      Initial RIA.
                                benefits by reducing security risks through the
                                deployment of AIT technology that is capable of detecting
                                both metallic and non-metallic weapons and explosives.
----------------------------------------------------------------------------------------------------------------
                                                      COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs     (7%) $387,307.0     ..................  Initial RIA.
 (discount rate in             (3%) $384,986.7
 parenthesis).
Annualized quantified, but     0                   0                   0                   Initial RIA.
 unmonetized, costs.
                              ----------------------------------------------------------------------------------
Qualitative costs              Not estimated                                               Initial RIA.
 (unquantified).
----------------------------------------------------------------------------------------------------------------
                                                    TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized           0                   0                   0                   Initial RIA.
 transfers: ``on budget''.
From whom to whom?...........  N/A                 N/A                 N/A                 None.
Annualized monetized           0                   0                   0                   Initial RIA.
 transfers: ``off-budget''.
From whom to whom?...........  N/A                 N/A                 N/A                 None.
----------------------------------------------------------------------------------------------------------------
   Miscellaneous analyses/                               Effects                              Source citation
           category                                                                             (initial RIA,
                                                                                              preamble, etc.).
----------------------------------------------------------------------------------------------------------------
Effects on state, local, and/  None                                                        Initial RIA.
 or tribal governments.
Effects on small businesses..  No significant economic impact anticipated. Prepared        Initial Regulatory
                                Initial Regulatory Flexibility Analysis                     Flexibility
                                                                                            Analysis.
Effects on wages.............  None                                                        None.
Effects on growth............  None                                                        None.
----------------------------------------------------------------------------------------------------------------


                                      Table 8--OMB A-4 Accounting Statement
                                 [$ Thousands, 2008-2015, eight-year lifecycle]
----------------------------------------------------------------------------------------------------------------
                                                                                              Source citation
           Category             Primary  estimate   Minimum  estimate   Maximum  estimate      (initial RIA,
                                                                                              preamble, etc.)
----------------------------------------------------------------------------------------------------------------
                                                    BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized benefits...........  Not estimated       Not estimated       Not estimated       Initial RIA.
Annualized quantified, but     0                   0                   0                   Initial RIA.
 unmonetized, benefits.
Unquantified benefits........  The operations described in this proposed rule produce      Initial RIA.
                                benefits by reducing security risks through the
                                deployment of AIT technology that is capable of detecting
                                both metallic and non-metallic weapons and explosives.
----------------------------------------------------------------------------------------------------------------
                                                      COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs     (7%) $368,262.8                                             Initial RIA.
 (discount rate in             (3%) $326,410.1
 parentheses).
Annualized quantified, but     0                   0                   0                   Initial RIA.
 unmonetized, costs.
                              ----------------------------------------------------------------------------------
Qualitative costs              Not estimated                                               Initial RIA.
 (unquantified).
----------------------------------------------------------------------------------------------------------------
                                                    TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized           0                   0                   0                   Initial RIA.
 transfers: ``on budget''.
From whom to whom?...........  N/A                 N/A                 N/A                 None.
Annualized monetized           0                   0                   0                   Initial RIA.
 transfers: ``off-budget''.
From whom to whom?...........  N/A                 N/A                 N/A                 None.

[[Page 18301]]

 
----------------------------------------------------------------------------------------------------------------
   Miscellaneous analyses/                               Effects                              Source citation
           category                                                                             (initial RIA,
                                                                                              preamble, etc.).
----------------------------------------------------------------------------------------------------------------
Effects on state, local, and/  None                                                        Initial RIA.
 or tribal governments.
Effects on small businesses..  No significant economic impact anticipated. Prepared IRFA   IRFA.
Effects on wages.............  None                                                        None.
Effects on growth............  None                                                        None.
----------------------------------------------------------------------------------------------------------------

    As alternatives to the preferred regulatory proposal presented in 
the NPRM, TSA examined three other options. The following table briefly 
describes these options, which include a continuation of the current 
screening environment (no action), increased use of physical pat-down 
searches that supplements primary screening with WTMDs, and increased 
use of ETD screening that supplements primary screening with WTMDs. 
These alternatives, and the reasons why TSA rejected them in favor of 
the proposed rule, are discussed in detail in Chapter 3 of the 
regulatory evaluation located in this docket, and summarized in Table 
9.

                                 Table 9--Comparison of Regulatory Alternatives
----------------------------------------------------------------------------------------------------------------
   Regulatory  alternative                 Name                                  Description
----------------------------------------------------------------------------------------------------------------
1............................  No Action..................  Under this alternative, the passenger screening
                                                             environment remains the same as it was prior to
                                                             2008. TSA continues to use WTMDs as the primary
                                                             passenger screening technology and to resolve
                                                             alarms with a pat-down.
2............................  Pat-Down...................  Under this alternative, TSA continues to use WTMDs
                                                             as the primary passenger screening technology. In
                                                             addition, TSA supplements the WTMD screening by
                                                             conducting a pat-down on a randomly selected
                                                             portion of passengers after screening by a WTMD.
3............................  ETD Screening..............  Under this alternative, TSA continues to use WTMDs
                                                             as the primary passenger screening technology. In
                                                             addition, TSA supplements the WTMD screening by
                                                             conducting ETD screening on a randomly selected
                                                             portion of passengers after screening by a WTMD.
4............................  AIT Screening..............  Under this alternative, the proposed alternative,
                               (NPRM).....................   TSA uses AIT as a passenger screening technology.
                                                             Alarms would be resolved through a pat-down.
----------------------------------------------------------------------------------------------------------------

C. Regulatory Flexibility Act Assessment

    The Regulatory Flexibility Act (RFA) of 1980 requires that agencies 
consider the impacts of their rules on small entities. For purposes of 
the RFA, small entities include small businesses, not-for-profit 
organizations, and small governmental jurisdictions. Individuals and 
States are not included in the definition of a small entity. TSA has 
included an Initial Regulatory Flexibility Analysis within the Initial 
Regulatory Impact Analysis.
    This NPRM proposes to codify the use of AIT to screen passengers 
boarding commercial aircraft for weapons, explosives, and other 
prohibited items concealed on the body. The only additional direct cost 
small entities incur due to this rule is for utilities, as a result of 
increased power consumption from AIT operation. TSA identified 102 
small entities that could have potentially incurred additional utility 
costs due to AIT; however, TSA reimburses the additional utility costs 
for five of these small entities. Consequently, this rule would cause 
97 small entities to incur additional direct costs. Of the 97 small 
entities affected by this proposed rule, 96 are small governmental 
jurisdictions with populations less than 50,000. A privately-owned 
airport is considered small under SBA standards if revenue amounts to 
less than $30 million. TSA identified one small privately-owned 
airport.
    The small entities incur an additional utility cost as a result of 
increased power consumption from AIT operation. To estimate the costs 
of the deployment of AIT on small entities TSA uses the average 
kilowatt hour (kWh) consumed per unit on an annual basis at federalized 
airports. Depending on the size of the airport, TSA estimates the 
average additional utility cost to range from $815 to $1,270 per year 
while the average annual revenue for these small entities ranges from 
$69.5 million to$133.1 million per year. Consequently, TSA estimates 
that the cost of this NPRM on small entities represents approximately 
0.001 percent of their annual revenue. Therefore, TSA's Initial 
Regulatory Flexibility Analysis suggests that this rulemaking would not 
have a significant economic impact on a substantial number of small 
entities.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in related activities that 
create unnecessary obstacles to the foreign commerce of the United 
States. Legitimate domestic objectives, such as safety, are not 
considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. TSA has assessed the potential 
effect of this rulemaking and has determined that it

[[Page 18302]]

will have only a domestic impact and therefore no effect on any trade-
sensitive activity.

E. Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.''
    This rulemaking does not contain such a mandate. The requirements 
of Title II of the Act, therefore, do not apply and TSA has not 
prepared a statement under the Act.

F. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that TSA consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA sec. 3507(d), obtain approval from OMB for each 
collection of information it conducts, sponsors, or requires through 
regulations. The PRA defines ``collection of information'' to be ``the 
obtaining, causing to be obtained, soliciting, or requiring the 
disclosure to third parties or the public, of facts or opinion by or 
for an agency, regardless of form or format[hellip]imposed on ten or 
more persons.'' 44 U.S.C. 3502(3)(A). TSA has determined that there are 
no current or new information collection requirements associated with 
this proposed rule. TSA's use of AIT to screen passengers does not 
constitute activity that would result in the collection of information 
as defined in the PRA.

G. Executive Order 13132, Federalism

    TSA has analyzed this proposed rule under the principles and 
criteria of E.O. 13132, Federalism. We determined that this action 
would not have a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, and therefore would not have federalism implications.

H. Environmental Analysis

    TSA has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

I. Energy Impact Analysis

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, 
as amended (42 U.S.C. 6362). TSA has determined that this rulemaking is 
not a major regulatory action under the provisions of the EPCA.

List of Subjects in 49 CFR Part 1540

    Air carriers, Aircraft, Airports, Civil aviation security, Law 
enforcement officers, Reporting and recordkeeping requirements, 
Screening, Security measures.

The Proposed Amendment

    For the reasons set forth in the preamble, the Transportation 
Security Administration proposes to amend Chapter XII, of Title 49, 
Code of Federal Regulations, as follows:

PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES

0
1. The authority citation for part 1540 is revised to read as follows:

    Authority: 49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-44914, 
44916-44918, 44925, 44935-44936, 44942, 46105.

0
2. In Sec.  1540.107, add paragraph (d) to read as follows:


Sec.  1540.107  Submission to screening and inspection.

* * * * *
    (d) The screening and inspection described in (a) may include the 
use of advanced imaging technology. For purposes of this section, 
advanced imaging technology is defined as screening technology used to 
detect concealed anomalies without requiring physical contact with the 
individual being screened.

    Issued in Arlington, Virginia, on March 20, 2013.
John S. Pistole,
Administrator.
[FR Doc. 2013-07023 Filed 3-22-13; 4:15 pm]
BILLING CODE 9110-05-P