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IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT
IN RE: ELECTRONIC PRIVACY )INFORMATION CENTER, )
)Petitioner. ) No. 12-1307
)____________________________________)
RESPONSE IN OPPOSITION TO PETITION FOR WRIT OF MANDAMUS
For the reasons set forth below, the government hereby opposes the petition for
a writ of mandamus to enforce this Court’s mandate of September 21, 2011, in
Electronic Privacy Information Center v. Department of Homeland Security, No. 10-
1157.
The Electronic Privacy Information Center, together with other petitioners,
filed a petition for review in this Court to challenge the use by the Transportation
Safety Administration of Advanced Imaging Technology (“AIT”) as a primary
screening mechanism at airport checkpoints. In Electronic Privacy Information
Center v. Department of Homeland Security, 653 F.3d 1(D.C. Cir. 2011) (EPIC), the
Court rejected petitioners’ substantive challenges, but held that the Transportation
Security Administration (“TSA”) should address the use of AIT in notice-and-
comment rulemaking and remanded for the agency to promptly undertake that
process.
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The Court’s mandate issued in September 2011. Petitioner has now filed its
third request for mandamus relief, asserting unreasonable delay in complying with the
Court’s mandate. But charges of delay, even when made early and often, do not
establish an entitlement to a writ. As set out in the attached Declaration of John P.
Sammon (“Sammon Decl.”), the Assistant Administrator for the Office of Security
Policy and Industry Engagement, TSA has already passed the first major milestone
to initiation of the notice-and-comment period with the submission of the documents
necessary for publication of a notice of proposed rulemaking (“NPRM”) to the
Department of Homeland Security (“DHS”) for its review. See Sammon Decl. ¶ 13.
Once DHS completes its review, which it has likewise committed to expediting, only
review and approval by the Office of Management and Budget (“OMB”) will be
necessary before the notice-and-comment period may begin. Id. at ¶ 24. It is
expected that the process of finalizing the AIT Rulemaking documents for publication
of the NPRM will be complete by or before the end of February 2013. Id.
Petitioner offers no basis whatsoever for its assertion that TSA has delayed in
implementing this Court’s mandate. On the contrary, as the Sammon Declaration
demonstrates, TSA has been keenly aware of the importance of implementing the
Court’s directive, and has given high priority to the AIT rulemaking. Despite
“significant personnel losses” in the group of economists within TSA charged with
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completing the regulatory analysis, id. at ¶ 15, the agency began on the heels of the
Court’s ruling the process of preparing the documents necessary for notice-and-
comment rulemaking, and has devoted almost all of the staff available to conduct the
required economic analysis to its expedited completion, even going so far as to hire
contract consultants to accelerate its completion despite unforeseen personnel losses,
id. at ¶¶ 14-15. In preparing the proposed rule, TSA has addressed significant
developments in AIT technology that have a major impact on the privacy concerns
stressed in the EPIC petitioners’ lawsuit. In particular, TSA has addressed the
development of Automated Target Recognition (“ATR”) technology, which enhances
privacy protection in the screening process. See id. at ¶ 10.
Thus, there has been no unreasonable delay in complying with this Court’s
mandate, much less the type of egregious delay that would warrant exercise of the
Court’s mandamus powers. Further, while simultaneously expediting the initiation
of a notice-and-comment period regarding its AIT program, TSA has taken
substantial steps to address the privacy concerns discussed in the Court’s opinion.
STATEMENT
1. Petitioners filed a petition for review in July 2010 together with a motion
to enjoin the use of AIT as a primary screening method at airport checkpoints pending
this Court’s review. The Court denied the motion, and, after briefing and oral
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argument, issued its decision on July 15, 2011. The Court rejected all of of the
petitioners’ substantive challenges under the Fourth Amendment, the Video
Voyeurism Prevention Act, 18 U.S.C. § 1801, the Privacy Act 5 U.S.C. § 552a, the
privacy protections in the Homeland Security Act, 6 U.S.C. § 142(a)(1), (4), and the
Religious Freedom Restoration Act, 42 U.S.C. § 2000b et seq.). EPIC, 653 F.3d 1.
The Court concluded, however, that TSA should address the use of AIT through
notice-and-comment rulemaking pursuant to the Administrative Procedure Act
(“APA”), 5 U.S.C. § 553, and “remand[ed] this matter to the agency for further
proceedings.” EPIC, 653 F.3d at 8; see also id. at 3, 11. The Court further held that
“[b]ecause vacating the present rule would severely disrupt an essential security
operation, however, and the rule is, * * * otherwise lawful, we shall not vacate the
rule, but we do nonetheless expect the agency to act promptly on remand to cure the
defect in its promulgation.” Id. at 8 (citation omitted); see also Judgment, July 15,
2011 (ordering in pertinent part that “the rule be remanded to TSA for prompt
proceedings, in accordance with the opinion of the court filed herein this date”). The
Court also rejected petitioner’s request to “enjoin the Agency Rule until DHS
undertakes a formal 90-Day rulemaking procedure[.]” Pet. Opening Br. (final
version) in No. 10-1157, 39.
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On August 29, 2011, the last day of the period for seeking rehearing,
petitioners sought en banc review. The Court denied the petition on September 12,
2011, and the mandate issued on September 21, 2011.
2. Five weeks after the issuance of the mandate, on October 28, 2011, the
EPIC petitioners filed their first motion to enforce this Court’s mandate. The Court
denied EPIC’s motion on November 16, 2011. Five weeks after the Court’s order
issued, on December 23, 2011, petitioners again asked the Court to enforce its
mandate and to require issuance of a proposed rule by a date certain. The Court
denied that motion on February 2, 2012.
EPIC has now essentially filed its third request for mandamus relief in the
eleven months since the issuance of this Court’s mandate.
REASONS FOR DENYING THE PETITION
1. Petitioner seeks a writ of mandamus to “compel agency action unlawfully
withheld or unreasonably delayed,” 5 U.S.C. § 706(1). The Court’s consideration
“‘starts from the premise that issuance of the writ is an extraordinary remedy,
reserved only for the most transparent violations of a clear duty to act.’” In re Core
Commc’ns, Inc., 531 F.3d 849, 857 (D.C. Cir. 2008) (quoting In re Bluewater
Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000)). Because mandamus is an
extraordinary remedy, however, the Court requires “similarly extraordinary
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circumstances to be present before [it] will interfere with an ongoing agency process.”
In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999).
“‘The central question in evaluating a claim of unreasonable delay’ is ‘whether
the agency's delay is so egregious as to warrant mandamus.’” Core Commc’ns, 531
F.3d at 855 (quoting Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d
70, 79 (D.C. Cir. 1984)). “‘There is no per se rule as to how long is too long to wait
for agency action,’” id. (quoting In re Am. Rivers & Idaho Rivers United, 372 F.3d
413, 419 (D.C. Cir. 2004)), and the “[t]he first and most important factor is that the
time agencies take to make decisions must be governed by a ‘rule of reason.’” Id. at
855 (quoting TRAC, 750 F.2d at 80)).1
In TRAC, the Court identified six to provide “useful guidance in assessing1
claims of agency delay.” 750 F.2d at 80. The TRAC factors are:
(1) the time agencies take to make decisions must begoverned by a “rule of reason[]” ; (2) where Congress hasprovided a timetable or other indication of the speed withwhich it expects the agency to proceed in the enablingstatute, that statutory scheme may supply content for therule of reason; (3) delays that might be reasonable in thesphere of economic regulation are less tolerable whenhuman health and welfare are at stake; (4) the court shouldconsider the effect of expediting delayed action on agencyactivities of a higher or competing priority; (5) the courtshould also take into account the nature and extent of theinterests prejudiced by delay; and (6) the court need not“find any impropriety lurking behind agency lassitude in
(continued...)
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In applying that rule of reason in Core Communications, the Court found a writ
warranted when the Federal Communications Commission had been enforcing for
seven years interim rules that were to last only three years, and the agency had not
acted six years after the Court had held for the second time that the preferred legal
justification was invalid. Similarly, in In re People’s Mojahedin of Iran, 680 F.3d
832 (D.C. Cir. 2012) (PMOI), the Court issued a writ after concluding that “[w]e have
been given no sufficient reason why the Secretary, in the last 600 days, has not been
able to make a decision which the Congress gave her only 180 days to make.” Id. at
838. On the other hand, the Court has also made clear that even a finding that the
agency had violated a statutory deadline by some eight years “does not end the
analysis. * * * Equitable relief, particularly mandamus, does not necessarily follow
a finding of a [statutory] violation * * * .’” United Mine Workers of Am. Int’l Union,
190 F.3d at 551 (alteration in original) (quoting In re Barr Labs., Inc., 930 F.3d 72,
74 (D.C. Cir. 1991)).
The Court has imposed fixed deadlines for agency rulemaking only in rare
circumstances involving significantly egregious delays. See, e.g., In re Am. Rivers
(...continued)1
order to hold that agency action is ‘unreasonably delayed.’”
Id. (internal citations omitted).
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& Idaho Rivers United, 372 F.3d at 419 (a six-year delay in acting on a coalition of
regulated organizations’ petition to consult justified a 45-day deadline to comply).
In contrast, the four-month deadline imposed in PMOI (which is the focus of
petitioner’s brief) involved a remand requiring three discrete actions for which sole
responsibility was assigned to the Secretary of State, see 680 F.3d at 833-34
(discussing 8 U.S.C. § 1189(a)), rather than a rulemaking, which entails a2
deliberative, complex, and sophisticated process that requires a series of reviews by
different entities before completion, Sammon Decl. ¶¶ 7, 13, 14.
2. Petitioner has identified no delay “so egregious as to warrant mandamus,”
Core Commc’ns, 531 F.3d at 857. Indeed, it has identified no delay at all and no
reason for the Court to exercise its supervisory powers. As the the Declaration of
James S. Clarkson (“Clarkson Decl.”) previously established, TSA initiated the
process necessary for a notice-and-comment period within days of this Court’s
opinion, and well before the mandate issued. Clarkson Decl. ¶ 14, App. 82. More
recently, on August 3, 2012, TSA formally referred the proposed rule, as well as the
This Court’s opinion directed the Secretary of State to provide PMOI access2
to unclassified material relied on in support of the decision to maintain PMOI’slisting as a Foreign Terrorist Organization, to “indicate in her administrative summarywhich sources she regards as sufficiently credible,” and to “explain to which part ofsection 1189(a)(1)(B) the information she relies on relates.” PMOI, 680 F.3d at 835(internal quotations omitted).
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supporting preamble and regulatory analysis, to DHS for its review. Sammon Decl.
¶ 13. DHS and TSA have, in the interest of continuing to expedite publication of the
NPRM, actively consulted prior to and after this initial referral in an effort to advance
the rulemaking to its next and final step before publication: referral to OMB for
review and approval. Id. at ¶¶ 13, 23; see also Clarkson Decl. ¶ 12, App. 81.
Crucially, “the process of finalizing the AIT Rulemaking documents so that the
NPRM may be published is expected to be complete by or before the end of February
2013.” Sammon Decl. ¶ 24. In short, given the efforts TSA has applied to date, in
no way can the mere fact that the NPRM has not yet been published be described as
“unreasonable delay,” Pet. 8.
The Sammon Declaration recounts some of the inherent obstacles to issuance
of an NPRM for public comment, as well as TSA’s competing regulatory obligations,
and the unforeseen lack of resources to accomplish these tasks. Sammon Decl. ¶¶ 7-
20. Despite the unique challenges to completion of the NPRM, the “completion of
the AIT Rulemaking’s regulatory analysis in less than a year’s time is the fastest that
such an analysis for an NRPM of this magnitude has been completed,” and “reflects
the high prioritization that the agency accorded to this rulemaking effort.” Id. at
¶¶ 21-22; compare Clarkson Decl. ¶ 20, App. 84 (stating that under normal
circumstances, “the process within TSA that is necessary to issue a NPRM entails a
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timeframe of approximately three years, with longer timelines for more complex
rules”). This effort came at the expense of a competing congressionally mandated
rulemaking priority, which TSA has not been able to advance while investing
substantial resources to the expedited preparation of the NPRM as directed by this
Court. Sammon Decl. ¶ 17.
In developing the proposed rule, moreover, TSA was required to address “fast-
paced changes and developments regarding the AIT program,” id. at ¶ 10. Indeed,
the development of ATR technology in the period since this Court’s remand order
significantly enhances privacy protection in the screening process and is directly
relevant to a discussion of the privacy concerns stressed in petitioners’ lawsuit.
Petitioner does not advance its argument by declaring that the agency has
“waited nearly two-and-a half years since the filing of a formal § 553 petition with
the DHS.” Pet. 11. TSA did not initiate notice-and-comment rulemaking prior to this
Court’s decision because on its good-faith belief that it was not subject to that
requirement under the APA (a position that this Court held to be “substantially
justified” in its order of February 15, 2012, denying the EPIC petitioners’ application
for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)).
Furthermore, the Clarkson Declaration, filed in response to petitioner’s first petition
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for mandamus in November 2011, explained that TSA had already initiated the
development of a proposed rule at that time.
In sum, there has been no “waiting” and no “delay.” Petitioner’s repeated
mandamus petitions reflect a fundamental misunderstanding of the nature of notice-
and-comment rulemaking and the time and resources required to develop a proposed
rule. Petitioner has demonstrated no basis whatsoever for its demand for “a writ of
mandamus directing the Secretary to undertake a public rulemaking within 60 days,”
or, alternatively, an order vacating “the [AIT] program,” Pet. 21.
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CONCLUSION
For the foregoing reasons, the petition for a writ of mandamus should be
denied.
Respectfully submitted,
/s/ Mark B. Stern MARK B. STERN (202) 514-5089 Mark.Stern@usdoj.gov
/s/ John S. Koppel JOHN S. KOPPEL (202) 514-2495 John.Koppel@usdoj.gov Attorneys, Appellate Staff Civil Division, Rm. 7264 United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
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CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of August, 2012, I caused the foregoing
Response in Opposition to Petition for Writ of Mandamus to be filed electronically
with the Court via the Court's CM/ECF system, and to be served electronically upon
the CM/ECF participants listed below. I further certify that four copies will be
delivered to the Clerk of the Court by hand delivery within two business days.
Marc Rotenberg, Esquire (CM/ECF participant)ELECTRONIC PRIVACY INFORMATION CENTER1718 Connecticut Avenue, NWSuite 200Washington , DC 20009
Hans F. Bader, Esquire (CM/ECF participant)COMPETITIVE ENTERPRISE INSTITUTE1899 L Street, NWFloor 12Washington, DC 20036
/s/ John S. Koppel JOHN S. KOPPEL Attorney
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IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN RE ELECTRONIC PRIVACY )
INFORMATION CENTER, ET AL., ) No. 12-1307
)
Petitioner. )
_________________________________ )
DECLARATION OF JOHN P. SAMMON IN SUPPORT OF
RESPONDENTS’ OPPOSITION TO PETITION FOR MANDAMUS
I, John P. Sammon, an employee of the U.S. Department of
Homeland Security (DHS), Transportation Security Administration (TSA), 601
South 12th Street, Arlington, VA 20598-6002, declare as follows:
1. I am over the age of eighteen (18) and provide this declaration based
on my personal knowledge and information gained in my official capacity.
2. I am the Assistant Administrator for the Office of Security Policy and
Industry Engagement (OSPIE) within TSA. I have worked for TSA as the
Assistant Administrator of OSPIE and its predecessor entity within TSA – the
Office of Transportation Sector Network Management (TSNM) – since July 9,
2006. Prior to joining TSA, I was the principal partner in a software venture, e-
Carload. I bring twenty-five years of transportation experience to my current
position, including management of customer networks for railroads, motor
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SAMMON DECLARATION PAGE 2 OF 10
carriers, ocean carriers, petrochemical manufacturers, and ports and other public
agencies.
3. One of my responsibilities as Assistant Administrator for OSPIE (and
before that TSNM) is to assist in the oversight and coordination of TSA’s
rulemaking efforts. In particular, OPSIE has responsibility within TSA for the
analysis of proposed regulatory actions, including items such as a notice of
proposed rulemaking (NPRM), among other policy and operational
responsibilities. TSA’s Regulatory and Economic Analysis Division (REA) is
part of OSPIE, and falls under my authority as Assistant Administrator.
4. As a result of this responsibility, I am well-acquainted with the
requirements for notice-and-comment rulemaking, including the issuance of an
NPRM, and the various regulatory efforts that TSA currently has in progress.
5. As Assistant Administrator for OSPIE, I am also responsible for
leading a unified effort to protect and secure, through public-private networks, the
Nation’s intermodal transportation systems, including aviation, rail, transit,
maritime, cargo, highway and energy pipelines. OSPIE accomplishes this by
developing risk-reducing security policies, plans, and procedures.
6. I am familiar with this Court’s opinion in EPIC v DHS, No. 10-1157,
issued on July 15, 2011, which directs TSA “to conduct notice-and-comment
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SAMMON DECLARATION PAGE 3 OF 10
rulemaking” regarding TSA’s use of Advanced Imaging Technology (AIT)
(Opinion).
7. There are a number of significant and substantial requirements that
an agency must observe and satisfy before issuing an NPRM, including one in
satisfaction of this Court’s mandate (hereinafter “the AIT Rulemaking”). The
obstacles to swift completion of the AIT Rulemaking are set forth in a declaration
by James Clarkson, who currently supervises the REA Division within OSPIE,
that was signed on November 9, 2011, and submitted to this Court on November
10, 2011, in support of the Respondents’ Opposition to EPIC’s Motion to Enforce
the Mandate in EPIC v. DHS, No. 10-1157 (Clarkson Declaration). Notice-and-
comment rulemaking is a deliberative, complex, and sophisticated process, made
more so by the most recent Executive Order discussed in the Clarkson
Declaration.
8. Preparation of the NPRM for the AIT Rulemaking is further
complicated by the breadth of the issues that must be addressed in the preamble.
As this Court’s Opinion noted, the primary concern regarding TSA’s use of AIT
was privacy, but the efficacy and safety of AIT were also identified as matters that
would be appropriate for requiring notice-and-comment rulemaking in this
instance. Furthermore, as explained in greater detail below, the need to consider
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SAMMON DECLARATION PAGE 4 OF 10
both costs already incurred and estimated future costs is atypical of the economic
analyses that must accompany an NPRM.
9. Although TSA conducted analyses and made determinations
regarding the adequacy of privacy protections attendant to AIT, as well as its
efficacy and safety as a screening technology, in order to inform its decision to
acquire and deploy AIT, the statutory and regulatory requirements described in the
Clarkson Declaration mandate a particularized analysis and presentation of these
issues for purposes of issuing an NPRM.
10. In addition to the statutory and regulatory requirements for typical
rulemakings, the fact that AIT is a maturing technology is a complicating factor
for the rulemaking overall. For example, since this Court issued its Opinion, TSA
has approved the use of Automated Target Recognition (ATR) upgrades to one of
the two types of AIT approved for purchase and deployment; that alternative form
of privacy protection is now present on approximately two-thirds of the AITs
currently in use. TSA is also constantly testing its screening procedures –
including the use of AIT and ATR – in both the laboratory and in operational
settings. Additional data have also been generated since the rulemaking process
began regarding the safety of backscatter AIT devices. Accordingly, in order to
meet the statutory and regulatory obligations attendant to preparing and issuing an
NPRM for the AIT Rulemaking, these fast-paced changes and developments
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SAMMON DECLARATION PAGE 5 OF 10
regarding the AIT program had to be assessed for their impact on the rulemaking
effort and, where necessary, accounted for in the rule text, preamble, or regulatory
analysis.
11. Given these challenges, in my role as Assistant Administrator, I
directed TSA’s Regulatory and Economic Analysis Division (REA) to accord a
very high priority to completing the analyses required for the notice-and-comment
rulemaking process required by this Court’s Opinion, including their prioritization
over similar efforts for existing congressional rulemaking mandates.
12. TSA has made substantial progress on the AIT Rulemaking in
accordance with this Court’s Opinion since the status reflected in the Clarkson
Declaration. For example, TSA completed initial drafts of the rule text and
preamble for the AIT Rulemaking by October 2011, and an initial draft of the
regulatory analysis was completed by June 2012.
13. Significantly, TSA formally referred the rule and preamble to DHS
on August 3, 2012, as well as a copy of the regulatory analysis that remained
under discussion between TSA and DHS. In an effort to streamline the next stage
of the NPRM preparation process, TSA first sought and incorporated some initial
comments from DHS and the Department of Justice (DOJ) before their formal
referral to DHS as part of a larger effort to expedite subsequent review and
approval of the AIT Rulemaking by both DHS and the Office of Management and
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SAMMON DECLARATION PAGE 6 OF 10
Budget (OMB) (which solicits comments on proposed NPRMs from other
departments and agencies within the Executive Branch as part of its review
process).
14. In order to ensure that the AIT Rulemaking documents were
completed and referred to DHS and OMB as quickly as possible – in keeping with
this Court’s mandate – REA made the AIT Rulemaking a principal responsibility
for all of its economists, and assigned one to that effort exclusively.
15. After work on the AIT Rulemaking began, however, REA suffered
significant personnel losses, including the departure of the two lead economists
assigned to this effort. In order to ensure that the AIT Rulemaking continued as
swiftly as possible, I directed that REA bring in economists on a contract basis to
work exclusively on the AIT Rulemaking in order to ensure that work continued
following the departure of the lead economists.
16. More recently, in order to further expedite the finalization of the
regulatory evaluation, I established a war room that brought together the
operational subject matter experts and economists in order to allow for a
continuous exchange of information regarding the AIT Rulemaking NPRM.
17. While simultaneously ensuring timely and appropriate progress on
the AIT Rulemaking, TSA has continued to pursue the congressionally mandated
rulemaking objectives set forth in the Clarkson Declaration. Although some of
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SAMMON DECLARATION PAGE 7 OF 10
those rulemakings have since been referred to OMB for its review (in large part
because of the substantial efforts devoted to those rulemakings before this Court
issued its Opinion), the regulatory analysis for the regulation directed at
vulnerability assessments and security plans for over-the-road bus operators has
been delayed because the AIT Rulemaking has commanded the vast majority of
REA’s available resources since July 2011.
18. In this instance, the regulatory analysis required for the AIT
Rulemaking was further complicated by the fact that the AIT program was
developed as a component of TSA’s Passenger Screening Program (PSP), which
coordinates the development and deployment of checkpoint screening
technologies. Because AIT has already been deployed as part of PSP, historical
information exists as to various costs associated with its use as a screening
technology. Some of the critical cost information necessary for the AIT
Rulemaking’s regulatory analysis (such as maintenance costs for the AIT program
as deployed), however, could not be isolated from the overall PSP data for these
elements, as the PSP cost reporting did not itemize costs associated with particular
technologies. As a result, the economists working on the AIT Rulemaking had to
invest substantial time developing estimates for which portion of the
undifferentiated data regarding the PSP as a whole was specifically attributable to
AIT program.
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SAMMON DECLARATION PAGE 8 OF 10
19. In contrast, in a typical regulatory analysis process, the agency is able
to provide the economists involved with readily available rule-specific cost
estimates for the team’s use in performing its analysis for the proposed regulation
or activity. In this instance, however, the economists involved had to devote
substantial efforts simply to estimate the AIT program’s portion of certain
aggregated PSP expenses before turning to the usual first steps in the regulatory
analysis effort.
20. The difficulty presented by the available historical data for the AIT
program is exacerbated by the fact that the guidelines for conducting a regulatory
analysis rely on principles that are inapplicable to historical data, such as the
discounting of future costs and annualizing costs at a constant rate of return. In
particular, OMB’s Circular A-4, which is the guidebook for performing the
complicated regulatory analysis required for any rulemaking, presumes that
agencies will be relying on projected estimates for their regulatory analyses only,
and therefore offers no guidance for the inclusion of historical costs in an
analytical approach that assumes only projected costs.
21. The completion of the AIT Rulemaking’s regulatory analysis in less
than a year’s time is the fastest that such an analysis for an NPRM of this
magnitude has been completed in my estimation.
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SAMMON DECLARATION PAGE 9 OF 10
22. The completion of an NPRM by TSA in approximately one year
likewise reflects the high prioritization that the agency accorded to this
rulemaking effort.
23. As indicated above, TSA has committed significant resources to
advancing the AIT Rulemaking as quickly as possible and has placed it among its
highest regulatory priorities. Both TSA and DHS are committed to expediting this
rulemaking, and have been working aggressively over the past year to develop the
NPRM for the AIT Rulemaking, as evidenced by the important and significant
progress described above. In the rulemaking life cycle, one of the next important
milestones will be the submission of the AIT Rulemaking documents to OMB for
its review under Executive Order 12866. Given the current status of the rule and
its supporting documents (including the regulatory analysis) as well as the
information available at this time, I have been informed that the process of
finalizing the AIT Rulemaking documents so that the NPRM may be published is
expected to be complete by or before the end of February 2013.
///
///
///
///
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I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge and belief.
Executed on August 29, 2012. Arlington, Virginia ~~~'-
JohnP.sam~ Assistant Administrator, Office of
Security Programs & Industry Engagement Transportation Security Administration U.S. Department ofHomeland Security
SAMMON DECLARA nON PAGE 100F 10
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