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Body Scanners and the Administrative Procedures Act Redux

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Friday, August 31, 2012 at 2:56 PM

Back in July, I noted that the Electronic Privacy and Information Center had petitioned the D.C. Circuit for a writ of mandamus to force the TSA to conduct a rulemaking under the Administrative Procedures Act regarding its adoption of Advanced Imaging Technology (the so-called “naked machines”).  Though the Court had ordered TSA to begin its rulemaking “promptly” when the case was decided in 2011, by July 2012 nothing had happened — or so EPIC alleged.

Now we have TSA’s response to the petition.  According to TSA quite a bit has happened — preparation of a draft rule, economic analysis, required internal Executive approvals etc.  For those interested in the deep minutiae of regulatory process the response is well worth reading.  For those who want the highlights the bottom line is that even though the court opinion was issued May 2011, TSA expects to have the draft rule out for comment in February 2013.  And quite honestly, reading the brief, it actually seems as though TSA has been pushing pretty hard and quick to move the process along.  They report that the average time frame for developing a notice of proposed rule making is three years.

All of which reminds me, in a backhanded way, of the cyber regulation debate.  If it takes nearly two years just to write a proposed rule about a single class of screening equipment I become more convinced than ever that cyber regulations (if we ever try to write them) will take quite a looooooong time to draft.

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