The Transportation Security Administration (TSA) has used advanced imaging technology (AIT)
to screen airline passengers for weapons since 2007. While the traveling public and defenders of
civil liberties have been vocally critical of the practice, those objections have largely fallen on
deaf ears. That is because the TSA implemented the procedures without ever publishing a notice of proposed rulemaking or a final rule—effectively ensuring that TSA never sought comments from the public on its plan. However, this is about to change. Last week, under order from the court and six years after the controversial policy’s implementation, TSA published an
economically significant proposed rule seeking comments from the public on TSA’s use of AIT. Unfortunately, TSA’s sidestepping the public in this matter is an indicator of a broader trend;
more and more, agencies are issuing major final rules without any input from the public. A recent Government Accountability Office report found that for major rules promulgated between 2003 and 2010, over one-third did not go through notice-and-comment rulemaking, and are given the force of law without public input.