tsaresponse

Document Sample
tsaresponse Powered By Docstoc
					USCA Case #12-1307        Document #1392233           Filed: 08/30/2012   Page 1 of 13


                 IN THE UNITED STATES COURT OF APPEALS
                  FOR 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.



                                                                                (Page 1 of Total)
USCA Case #12-1307      Document #1392233           Filed: 08/30/2012   Page 2 of 13


      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

                                        -2-



                                                                              (Page 2 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012   Page 3 of 13


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

                                         -3-



                                                                               (Page 3 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012   Page 4 of 13


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.




                                         -4-



                                                                               (Page 4 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012   Page 5 of 13


      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

                                         -5-



                                                                               (Page 5 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012     Page 6 of 13


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


      1
        In TRAC, the Court identified six to provide “useful guidance in assessing
claims of agency delay.” 750 F.2d at 80. The TRAC factors are:

             (1) the time agencies take to make decisions must be
             governed by a “rule of reason[]” ; (2) where Congress has
             provided a timetable or other indication of the speed with
             which it expects the agency to proceed in the enabling
             statute, that statutory scheme may supply content for the
             rule of reason; (3) delays that might be reasonable in the
             sphere of economic regulation are less tolerable when
             human health and welfare are at stake; (4) the court should
             consider the effect of expediting delayed action on agency
             activities of a higher or competing priority; (5) the court
             should also take into account the nature and extent of the
             interests prejudiced by delay; and (6) the court need not
             “find any impropriety lurking behind agency lassitude in
                                                                           (continued...)

                                         -6-



                                                                                (Page 6 of Total)
USCA Case #12-1307           Document #1392233           Filed: 08/30/2012      Page 7 of 13


      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



      1
          (...continued)
                 order to hold that agency action is ‘unreasonably delayed.’”

Id. (internal citations omitted).
                                             -7-



                                                                                     (Page 7 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012    Page 8 of 13


& 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)),2 rather than a rulemaking, which entails a

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



      2
         This Court’s opinion directed the Secretary of State to provide PMOI access
to unclassified material relied on in support of the decision to maintain PMOI’s
listing as a Foreign Terrorist Organization, to “indicate in her administrative summary
which sources she regards as sufficiently credible,” and to “explain to which part of
section 1189(a)(1)(B) the information she relies on relates.” PMOI, 680 F.3d at 835
(internal quotations omitted).
                                         -8-



                                                                                (Page 8 of Total)
USCA Case #12-1307        Document #1392233           Filed: 08/30/2012     Page 9 of 13


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

                                          -9-



                                                                                  (Page 9 of Total)
USCA Case #12-1307      Document #1392233            Filed: 08/30/2012    Page 10 of 13


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




                                         - 10 -



                                                                              (Page 10 of Total)
USCA Case #12-1307      Document #1392233          Filed: 08/30/2012   Page 11 of 13


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.




                                        - 11 -



                                                                           (Page 11 of Total)
USCA Case #12-1307    Document #1392233         Filed: 08/30/2012     Page 12 of 13


                               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




                                     - 12 -



                                                                          (Page 12 of Total)
USCA Case #12-1307     Document #1392233          Filed: 08/30/2012   Page 13 of 13


                        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 CENTER
                   1718 Connecticut Avenue, NW
                   Suite 200
                   Washington , DC 20009

                   Hans F. Bader, Esquire (CM/ECF participant)
                   COMPETITIVE ENTERPRISE INSTITUTE
                   1899 L Street, NW
                   Floor 12
                   Washington, DC 20036



                                      /s/ John S. Koppel
                                      JOHN S. KOPPEL
                                        Attorney




                                                                           (Page 13 of Total)
USCA Case #12-1307      Document #1392233           Filed: 08/30/2012   Page 1 of 10



              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




                                                                            (Page 14 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012    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




SAMMON DECLARATION                                                       PAGE 2 OF 10
                                                                                 (Page 15 of Total)
USCA Case #12-1307        Document #1392233          Filed: 08/30/2012    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




SAMMON DECLARATION                                                       PAGE 3 OF 10
                                                                              (Page 16 of Total)
USCA Case #12-1307       Document #1392233          Filed: 08/30/2012    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


SAMMON DECLARATION                                                      PAGE 4 OF 10
                                                                              (Page 17 of Total)
USCA Case #12-1307       Document #1392233          Filed: 08/30/2012    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


SAMMON DECLARATION                                                      PAGE 5 OF 10
                                                                               (Page 18 of Total)
USCA Case #12-1307       Document #1392233            Filed: 08/30/2012    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


SAMMON DECLARATION                                                        PAGE 6 OF 10
                                                                               (Page 19 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012    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.


SAMMON DECLARATION                                                       PAGE 7 OF 10
                                                                                (Page 20 of Total)
USCA Case #12-1307       Document #1392233            Filed: 08/30/2012    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.




SAMMON DECLARATION                                                        PAGE 8 OF 10
                                                                                (Page 21 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012       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.

///

///

///

///

///


SAMMON DECLARATION                                                       PAGE 9 OF 10
                                                                                 (Page 22 of Total)
USCA Case #12-1307       Document #1392233           Filed: 08/30/2012     Page 10 of 10



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.
                                             ~~~'-

                                           JohnP.sam~
Arlington, Virginia

                                           Assistant Administrator, Office of
                                              Security Programs & Industry
                                           Engagement
                                           Transportation Security Administration
                                           U.S. Department of Homeland Security




SAMMON DECLARAnON                                                        PAGE   100F 10
                                                                                 (Page 23 of Total)

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:1559
posted:8/31/2012
language:Unknown
pages:23