UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Issued by the Department of Transportation 

on the 28th day of January, 2010 

Order 2010-1-19 

Served January 28, 2010 

Petition for Rulemaking of 

Donald L. Pevsner, Esq. DOCKET OST 2009-0044 

ORDER DISMISSING PETITION FOR RULEMAKING 

By this order, we dismiss the petition for rulemaking of Donald L. Pevsner, Esq., referenced 

in the above docket. Based on our review of the matters raised in the pleadings and industry 

practices, we have decided that the rule proposed by Mr. Pevsner is not in the public interest. 

The Petition 

By petition filed February 19, 2009, Mr. Pevsner asks the Department of Transportation to 

adopt a rule requiring that all air carriers providing passenger service from foreign airports to 

U.S. international gateways notify arriving international travelers with connections about 

security-related rules applicable to liquids and gels. Specifically, Mr. Pevsner asks that 

airlines be required to provide notice to passengers who will be connecting to domestic U.S. 

flights or other international flights at their U.S. gateways that, under Transportation Security 

Administration's (TSA) requirements, their duty-free liquor or other oversized liquids and 

gels must be packed in their luggage to be rechecked for their connecting flight or the items 

will be confiscated. TSA, under its "3-1-1 ,. requirement, prohibits passengers from carrying 

liquids or gels into the passenger compartment of an airplane that exceed 3.4 ounces in any 

single container or aggregate more liquid or gel containers than can fit in a one-quart plastic 

bag. See www.tsa.govI31lJindex.shtm. 

In support of his petition for such a requirement. Mr. Pevsner asserts that neither TSA nor 

duty-free shops at foreign airports have any incentive to notify passengers of this requirement 

and he argues that the airlines are in the best position to make this notification. In addition, he 

claims that the airlines have a "manifest duty to warn" their passengers about the TSA liquid 
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requirements and that their failure to date to provide international connecting passengers with 

what he terms as "essential advance information" has, according to Mr. Pevsner, resulted in 

the confiscation at TSA security checkpoints of "millions of bottles of duty-free liquor (and 

oversize other liquids or gels)." Mr. Pevsner concludes that this failure by airlines to notify 

passengers about TSA's requirements amounts to an unfair and deceptive practice in violation 

of 49 U.S.c. § 41712. 

To ensure that international passengers are properly apprised of the TSA liquids rule, Mr. 

Pevsner believes that the Department should mandate that all airlines: 1) prominently feature 

an explanation of what he terms the TSA "confiscation practice" on their company websites 

"to be presented to the passenger when booking any ticket involving a connecting flight 

between the U.S. arrival gateway and the passenger's final destination on the day of 

connecting travel," 2) place warning signs in multiple languages at all airport check-in 

counters used for flights to the United States, and 3) distribute flyers written in English and in 

the language of the country in which the flight originates to all international passengers bound 

for the United States before they enter duty-free shop areas. 

Response of the Air Transport Association 

On April 6, 2009, the Air Transport Association of America, Inc., (ATA) submitted a 

response to Mr. Pevsner's petition for rulemaking, which argues that it should be denied. 

According to AT A, Mr. Pevsner does not present any law or policy precedent to support the 

contention that airlines have a duty to warn international passengers arriving from abroad who 

connect to domestic flights that TSA will confiscate liquids at security checkpoints if they 

exceed 3.4 ounces. ATA further states that, contrary to Mr. Pevsner's unsupported claims, 

several ATA-member airlines already provide notice of the kind that Mr. Pevsner would have 

the Department require on their web sites and as an integral part of their on-board service, and 

that no amount of additional regulation will succeed in informing customers who are intent on 

ignoring clear and explicit pre- and post-purchase warnings given them. ATA cautions further 

that Mr. Pevsner's theory would result in airlines being forced to warn passengers of a neverending list of potential problems that passengers routinely experience when traveling, such as 

warning passengers about fees for exchanging money, the risk of pickpockets and con artists, 

and the penalties for bringing illegal drugs into the United States, or risk being held 

responsible for events wholly unconnected to the air transportation that they provide. Lastly, 

AT A argues that Mr. Pevsner's real complaint is with TSA, and the appropriate solution, if 

any, lies with that agency, since TSA is the source of the rule that is the basis of his petition. 

Disposition and Analysis 

We have decided to dismiss Mr. Pevsner's petition for rulemaking. We don't believe that the 

adoption of a rule requiring airlines to post the notices that Mr. Pevsner proposes in his 

petition would be in the public interest. 

We reject Mr. Pevsner's contention that air carriers have a manifest duty to warn their 

passengers of the TSA liquids rule. Petitioner has provided no valid statutory, regulatory, or 

decisional authority for such a supposed duty, and we do not believe that it is in the public 

interest to impose such a duty under the circumstances here. The requirements covering the 
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carriage and stowage of liquids and gels that he complains about are among numerous valid 

rules issued by TSA in the interest of security. TSA provides notice of its policies, including 

its restriction on liquids in carry-on luggage to those in containers of 3.4 ounces or less, on its 

own website. In addition, while carriers are currently under no duty to provide notice of such 

rules, in the interest of facilitating travel by their customers, many already voluntarily notify 

passengers on their websites that liquid items purchased at duty-free shops are subject to 

TSA's liquids requirements for carry-on items.' Moreover, a review of our aviation consumer 

complaint data base reveals that we have received no complaints involving a lack of carrier 

notice regarding the TSA liquid and gel requirements in question. 

Even if notice of TSA's security policies were not already available, we disagree with Mr. 

Pevsner that the Department is the proper agency for addressing his concerns. The simple fact 

is that in today's world where international air travel is an everyday occurrence, there are 

many rules and regulations imposed upon passengers by countries or their regulatory bodies 

for which air carriers are not, and never have been, responsible for ensuring compliance by 

passengers. In addition to the TSA rules covering liquids and gels, as noted above, passengers 

must comply with numerous other TSA security-related rules prohibiting the carriage of 

articles on airplanes and governing security procedures at airports. Furthermore, almost 

without exception, passengers are required to comply with specific entry and exit 

requirements that differ among countries, such as passport and visa requirements, and with 

prohibitions on the importation of various items such as pornography and exotic pets. In 

many cases, countries impose other entry restrictions upon passengers such as required 

vaccinations and immunizations or agriculture and animal inspections. Moreover, these 

requirements, particularly those involving security, may change frequently. The Department 

has not required airlines to provide notice of these types of requirements and Petitioner has 

failed to show why notice regarding duty-free liquor or other oversized liquids and gels 

deserves any different treatment. 

We acknowledge that there may be instances in which some inexperienced travelers may be 

unaware of the TSA liquids rule. This possibility, however, does not by itself render an 

airline's failure to provide notice to passengers of this TSA security rule unfair or deceptive 

See. e.g .. Delta: \vww.LjI:/(a,coln/(rav_cl;ng checkin/a;rport inlonl]ation/\eCllrity checkp()jnt~/#dunlr~; 

United: tWn.:/1www.un;ted.co!)lIpageLartic k/0.6 I~lJ)}2.0illillDl; 

American: W\\ W ,<la,co m/aa/i I XnF()rwarJ,d~=ltra\ill nformation/bagg,wl'Icarry( lnAII()\\.an~~J0Q 
4 

nor does it justify, as being in the public interest, imposing the notice requirements on airlines 

requested by Petitioner. 

ACCORDINGL Y, pursuant to the authority delegated under 49 CFR 1.56a, we dismiss the 

petition for rulemaking of Donald L. Pevsner, Esq. in Docket OST 2009-0044. 

By: 

(SEAL) 

Susan Kurland 

Assistant Secretary for Aviation 

and International Affairs 

An electronic version of this document is available on the World Wide Web at 

www.regulations.gov