### UNITED STATES OFAMERICA DEPARTMENTOFTRANSPORTATION OFFICEOFTHESECRETARY WASHINGTON,D.C.

Issued by the Department ofTransportation
on the 28th dayofJanuary, 2010 Order2010-1-19



### ServedJanuary

### 28, 2010

PetitionforRulemakingof Donald

### L. Pevsner,Esq. 

### DOCKETOST2009-0044

ORDERDISMISSINGPETITIONFORRULEMAKING
Bythis order, we dismiss thepetitionfor rulemaking ofDonald L. Pevsner,Esq., referenced in the above docket. Basedonourreview ofthe matters raised in the pleadings and industry practices, we have decided that the rule proposedbyMr. Pevsneris not in the public interest.


### ThePetition By petition filed February 19, 2009, Mr. Pevsner asks the Department of Transportation to adopt a rule requiring that all aircarriers 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 otherinternational 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 ofan 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 ofthis requirement and he argues that the airlines are in the bestposition 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 connectingpassengers with what he terms as "essential advance information" has, according to Mr. Pevsner, resulted in the confiscation at TSA security checkpoints of "millions ofbottles ofduty-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 deceptivepractice in violation of49 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 ofwhat 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 ofthe country in which the flight originates to all international passengers bound for the United States before theyenterduty-free shop areas. 

### ResponseoftheAirTransportAssociation

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 ATA, 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 ofthe kind that Mr. Pevsner would have the Departmentrequire on their websites and as an integral part oftheiron-board service, and that no amount ofadditional regulation will succeed in informingcustomers who are intent on ignoringclearandexplicitpre- andpost-purchase warnings given them. ATAcautions further that Mr. Pevsner's theory would result in airlines being forced to warn passengers ofa neverending list ofpotential problems that passengers routinely experience when traveling, such as warning passengers about fees for exchanging money, the risk ofpickpockets 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, ATA 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 ofthe rule that is the basis ofhis petition. 

### Dispositionand 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 wouldbe in the public interest.

We reject Mr. Pevsner's contention that air carriers have a manifest duty to warn their passengers ofthe TSA liquids rule. Petitionerhas 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 ofsecurity. TSA provides notice ofits policies, including its restriction on liquids in carry-on luggage to those in containers of3.4 ounces orless, on its
own website. 

### In addition, while carriers are currently under no duty to provide notice ofsuch rules, in the interest offacilitating 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, areview ofouraviation consumer complaint data base reveals that we have received no complaints involving a lack ofcarrier noticeregarding the TSA liquid and gel requirements in question.

Even if notice of TSA's security policies were not already available, we disagree with Mr. Pevsnerthat the Department is the properagency 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 coveringliquids 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 ofrequirements 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 ofthis TSA securityrule unfairordeceptive

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!)lIpageLartick/0.6**I~lJ)}2.0illillDl;** American: W\\W,<la,com/aa/iI**XnF()rwarJ,d~=ltra\ill**nformation/bagg,wl'Icarry(**lnAII()\\.an~~J0Q**

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nordoes itjustify, as being in the public interest, imposing the notice requirements on airlines requested by Petitioner.

ACCORDINGLY, pursuant to the authority delegated under 49 CFR 1.56a, we dismiss the petition for rulemakingofDonaldL. Pevsner, Esq. in Docket OST2009-0044. By:



### (SEAL) 

### SusanKurland Assistant Secretaryfor Aviation

and International Affairs



### Anelectronic version of thisdocument isavailable on the World Wide Web at www.regulations.gov