[i]n order to accommodate further input from the Aviation Security Advisory Committee (ASAC), which includes representatives from the aviation community, passenger advocates, law enforcement experts, and other stakeholders.
This delay is being reported by USA Today, NBC News, The Week, Bloomberg, and others as evidence that TSA is caving under pressure from flight attendants and some Members of Congress including Reps. Jackson Lee and Grimm (who describe the items that would be removed from the Prohibited Items List as “potentially dangerous”) and Rep. Hahn (who calls the TSA action “shockingly irresponsible and reckless”).
While these reports might be accurate, the ASAC meeting was held just yesterday in a session that was announced on April 5. The Federal Advisory Committee Act requires agencies to give “timely notice” of meetings, which by regulation generally means at least 15 days in advance. There is nothing out of the ordinary about the schedule except insofar as TSA apparently called it to inform ASAC about its intentions rather than to seek its advice.
The ASAC meeting was closed to the public to allow TSA to provide a classified briefing
on threat intelligence related to TSA’s prohibited items list. Specifically, there will be material presented regarding the latest viable threats against U.S. aviation security and how TSA plans to address those threats using a risk-based security framework.
Under the rules for membership, ASAC members cannot publicly discuss the contents of a classified meeting.
ASAC consists of up to 27 members, each representing a trade association, union, or other special interest. Presumably, some ASAC members pushed back against the proposed changes and TSA feels a political need to respond to them before proceeding. It seems certain that some ASAC members do not share TSA Administrator John Pistole’s stated goal — that TSA “evolv[e] into a high-performance, world-class counterterrorism organization that focuses on risk-based, intelligence-driven, layered security.”At least one ASAC member actively opposes the planned removals from the Prohibited Items List.
Federal advisory committees are just that — advisory; they do not make decisions. Pistole wants to revise the Prohibited Items List to “align TSA with International Civil Aviation Organization standards and our European counterparts.” TSA is out of sync because it insists on enforcing rules that are not credibly risk-based. While some ASAC members might well prefer that other nations conform to TSA’s traditional security regime, this seems highly unlikely to happen.
There is a larger lesson here about an internal inconsistency in the implementation of the Precautionary Principle, which states that in the face of uncertainty government should err on the side of over-regulation. A crucial element of the Precautionary Principle is that over-regulation is supposed to be temporary. When the uncertainties that justified precaution are reduced or eliminated, the Precautionary Principle requires over-regulation to be relaxed to account for this new knowledge. In practice, however, this rarely happens.