Revision of Enforcement Procedures, 36030-36055 [E9-17133]
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Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Transportation Security Administration
49 CFR Part 1503
[Docket No. TSA–2009–0013]
RIN 1652–AA62
Revision of Enforcement Procedures
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AGENCY: Transportation Security
Administration, DHS.
ACTION: Final rule; request for
comments.
SUMMARY: The Transportation Security
Administration (TSA) amends its
Investigative and Enforcement
Procedures in this final rule to conform
to the Implementing Recommendations
of the 9/11 Commission Act of 2007.
The rule establishes procedures by
which TSA may issue civil monetary
penalties for violations of any statutory
requirement administered by TSA,
including surface transportation
requirements and Transportation
Worker Identification Credentials
requirements. The rule also clarifies and
reorganizes TSA’s investigative and
enforcement procedures, and makes
inflation adjustments to the maximum
civil monetary penalty amounts.
DATES: Effective Date: This rule is
effective August 20, 2009.
Comment Date: Comments must be
received by September 21, 2009.
ADDRESSES: You may submit comments,
identified by the TSA docket number to
this rulemaking, to the Federal Docket
Management System (FDMS), a
government-wide, electronic docket
management system, using any one of
the following methods:
Electronically: You may submit
comments through the Federal
eRulemaking portal at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Mail, In Person, or Fax: Address,
hand-deliver, or fax your written
comments to the Docket Management
Facility, U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., West Building Ground
Floor, Room W12–140, Washington, DC
20590–0001; Fax 202–493–2251. The
Department of Transportation (DOT),
which maintains and processes TSA’s
official regulatory dockets, will scan the
submission and post it to FDMS.
See SUPPLEMENTARY INFORMATION for
format and other information about
comment submissions.
FOR FURTHER INFORMATION CONTACT:
Sarah Tauber, Office of Chief Counsel,
TSA–2, Transportation Security
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Administration, 601 South 12th Street,
Arlington, VA 20598–6002; telephone
(571) 227–3964; facsimile (571) 227–
1380; e-mail sarah.tauber@dhs.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites interested persons to
participate in this rulemaking by
submitting written comments, data, or
views. TSA also invites comments
relating to the economic, environmental,
energy, or Federalism impacts that
might result from this rulemaking
action. See ADDRESSES above for
information on where to submit
comments.
With each comment, please identify
the docket number at the beginning of
your comments. TSA encourages
commenters to provide their names and
addresses. The most helpful comments
reference a specific portion of the
rulemaking, explain the reason for any
recommended change, and include
supporting data. The public may submit
comments and material electronically,
in person, by mail, or fax as provided
under ADDRESSES, but please submit
your comments and material by only
one means. If you submit comments by
mail or delivery, submit them in an
unbound format, no larger than 8.5 by
11 inches, suitable for copying and
electronic filing.
If you want TSA to acknowledge
receipt of comments submitted by mail,
include with your comments a selfaddressed, stamped postcard on which
the docket number appears. We will
stamp the date on the postcard and mail
it to you.
TSA will file in the public docket all
comments received by TSA, except for
comments containing confidential
information and sensitive security
information (SSI).1 TSA will consider
all comments received on or before the
closing date for comments and will
consider comments filed late to the
extent practicable. The docket is
available for public inspection before
and after the comment closing date.
Handling of Confidential or Proprietary
Information and Sensitive Security
Information (SSI) Submitted in Public
Comments
Do not submit comments that include
trade secrets, confidential commercial
or financial information, or SSI to the
1 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ is
information obtained or developed in the conduct
of security activities, the disclosure of which would
constitute an unwarranted invasion of privacy,
reveal trade secrets or privileged or confidential
information, or be detrimental to the security of
transportation. The protection of SSI is governed by
49 CFR part 1520.
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public regulatory docket. Please submit
such comments separately from other
comments on the rulemaking.
Comments containing this type of
information should be appropriately
marked as containing such information
and submitted by mail to the address
listed in the FOR FURTHER INFORMATION
CONTACT section.
TSA will not place comments
containing SSI in the public docket and
will handle them in accordance with
applicable safeguards and restrictions
on access. TSA will hold documents
containing SSI, confidential business
information, or trade secrets in a
separate file to which the public does
not have access, and place a note in the
public docket that TSA has received
such materials from the commenter.
However, if TSA determines that
portions of these comments may be
made publicly available, TSA may
include a redacted version of the
comment in the public docket. If TSA
receives a request to examine or copy
information that is not in the public
docket, TSA will treat it as any other
request under the Freedom of
Information Act (FOIA), 5 U.S.C. 552,
and the Department of Homeland
Security’s (DHS’) FOIA regulation found
in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to
search the electronic form of all
comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
You may review the applicable Privacy
Act Statement published in the Federal
Register on April 11, 2000 (65 FR
19477), or you may visit https://
DocketInfo.dot.gov.
You may review TSA’s electronic
public docket on the Internet at https://
www.regulations.gov. In addition, DOT’s
Docket Management Facility provides a
physical facility, staff, equipment, and
assistance to the public. To obtain
assistance or to review comments in
TSA’s public docket, you may visit this
facility between 9 a.m. to 5 p.m.,
Monday through Friday, excluding legal
holidays, or call (202) 366–9826. This
docket operations facility is located in
the West Building Ground Floor, Room
W12–140 at 1200 New Jersey Avenue,
SE., Washington, DC 20590.
Availability of Rulemaking Document
You can get an electronic copy using
the Internet by—
(1) Searching the electronic Federal
Docket Management System (FDMS)
Web page at https://www.regulations.gov;
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(2) Accessing the Government
Printing Office’s Web page at https://
www.gpoaccess.gov/fr/; or
(3) Visiting TSA’s Security
Regulations Web page at https://
www.tsa.gov and accessing the link for
‘‘Research Center’’ at the top of the page.
In addition, copies are available by
writing or calling the individual in the
FOR FURTHER INFORMATION CONTACT
section. Make sure to identify the docket
number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small
entity requests for information and
advice about compliance with statutes
and regulations within TSA’s
jurisdiction. Any small entity that has a
question regarding this document may
contact the person listed in FOR FURTHER
INFORMATION CONTACT. Persons can
obtain further information regarding
SBREFA on the Small Business
Administration’s Web page at https://
www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This
Document
9/11 Act—Implementing Recommendations
of the 9/11 Commission Act of 2007
ALJ—Administrative Law Judge
CPI—Consumer Price Index
FNPCP—Final Notice of Proposed Civil
Penalty
FOIA—Freedom of Information Act
NPCP—Notice of Proposed Civil Penalty
OACP—Order Assessing Civil Penalty
SSI—Sensitive Security Information
TWIC—Transportation Worker Identity
Credential
USCG—United States Coast Guard
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Table of Contents
I. Summary of the Rulemaking
II. Background
A. New Civil Penalty Authority
B. Summary of the Civil Penalty Process
1. Notice of Proposed Civil Penalty
2. Informal Conference
3. Order Assessing a Civil Penalty
4. Final Notice of Proposed Civil Penalty
5. Formal Hearing
6. Appeal From the ALJ Initial Decision
7. Appeal From the TSA Decision Maker’s
Final Decision and Order
III. Reorganization Summary
IV. Section-by-Section Analysis
A. Subpart B—Scope of Investigative and
Enforcement Procedures
1. TSA Requirements (§ 1503.101)
2. Terms Used in This Part (§ 1503.103)
B. Subpart D—Non-Civil Penalty
Enforcement
C. Subpart E—Assessment of Civil
Penalties by TSA
1. Maximum Penalty Amounts (§ 1503.401)
2. Delegation of Authority (§ 1503.403)
3. Injunctions (§ 1503.405)
4. Military Personnel (§ 1503.407)
5. Service of Documents (§ 1503.409)
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6. Computation of Time (§ 1503.411)
7. Notice of Proposed Civil Penalty
(§ 1503.413)
8. Request for Portions of the Enforcement
Investigative Report (EIR) (§ 1503.415)
9. Final Notice of Proposed Civil Penalty
and Order (§ 1503.417)
10. Order Assessing Civil Penalty
(§ 1503.419)
11. Streamlined Civil Penalty Procedures
for Certain Security Violations
(§ 1503.421)
12. Consent Orders (§ 1503.423)
13. Compromise Orders (§ 1503.425)
14. Request for a Formal Hearing
(§ 1503.427)
15. Filing of Documents With the
Enforcement Docket Clerk (§ 1503.429)
16. Certification of Documents (§ 1503.431)
D. Subpart G—Rules of Practice in TSA
Civil Penalty Actions
1. Applicability (§ 1503.601)
2. Administrative Law Judges (§ 1503.607)
3. Complaint (§ 1503.609)
4. Consolidation and Separation of Cases
(§ 1503.613)
5. Extension of Time (§ 1503.617)
6. Withdrawal of Complaint or Request for
Hearing (§ 1503.623)
7. Discovery (§ 1503.633)
8. Standard of Proof (§ 1503.637)
9. Argument Before the ALJ (§ 1503.653)
10. Initial Decision (§ 1503.655)
11. Appeal From Initial Decision
(§ 1503.657)
V. Administrative Procedure Act
VI. Paperwork Reduction Act
VII. Economic Impact Analyses
A. Regulatory Evaluation Summary
B. Executive Order 12866 Assessment
C. Costs and Benefits
D. Regulatory Flexibility Act Assessment
E. International Trade Impact Assessment
F. Unfunded Mandates Assessment
VIII. Other Analyses
A. Executive Order Federalism
B. Environmental Analysis
C. Energy Impact Analysis
List of Subjects in 49 CFR Part 1503
The Amendments
I. Summary of the Rulemaking
In this rule, TSA makes several
changes to TSA’s enforcement
procedures, codified at 49 CFR part
1503. As described more fully below,
this rule—
• Reorganizes and clarifies TSA’s
enforcement procedures and make them
easier to use;
• Applies TSA’s enforcement
procedures to violations of surface
transportation requirements and of
TSA’s Transportation Worker
Identification Credential requirements,
as provided in sections 1302 and
1304(e) of the Implementing
Recommendations of the 9/11
Commission Act of 2007, Public Law
110–53, 121 Stat. 266, 390, Aug. 3, 2007
(9/11 Act); and
• Adjusts for inflation the maximum
civil penalty amounts, in accordance
with the Federal Civil Penalty Inflation
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Adjustment Act of 1990, Public Law
101–410 (Adjustment Act), 28 U.S.C.
2461 note.
II. Background
This rulemaking implements certain
provisions of the 9/11 Act that expand
TSA’s civil penalty authority.2 This
section describes the relevant 9/11 Act
provisions and TSA’s enforcement
process.
A. New Civil Penalty Authority
Section 1302(a) of the 9/11 Act
applies civil penalties provisions to:
(1) Any provision of title 49 U.S.C.
administered by TSA, including
violations of any surface transportation
requirements; and (2) any violations of
ch. 701 of title 46 U.S.C., which governs
transportation worker identification
credentials (TWIC).3 TSA may assess a
maximum penalty per case of $50,000 if
the violation is committed by an
individual or small business. TSA may
assess a maximum penalty amount per
case of $400,000 if the violation is
committed by a person other than an
individual or small business.4 A Federal
court may assess penalties exceeding
these amounts.5
Prior to imposing a civil penalty, TSA
must provide to the person against
whom the penalty is to be imposed: (1)
Written notice of the proposed penalty;
and (2) the opportunity to request a
hearing on the proposed penalty, if TSA
receives the request not later than 30
days after the date on which the person
receives notice.6 Investigations and
proceedings governing such cases must
follow the requirements set forth in ch.
461 of title 49 U.S.C., which govern
aviation security matters.7
The 9/11 Act establishes additional
procedural requirements in cases
involving public transportation
agencies. Under section 1304(e) of the
9/11 Act, prior to imposing a civil
penalty against a public transportation
agency, TSA is required to give written
notice of the violation and a reasonable
opportunity to correct the violation or
propose an alternative means of
compliance acceptable to TSA. TSA
may not take legal enforcement action
against a public transportation agency
unless TSA has provided such notice
and the public transportation agency
fails to correct the violation or propose
2 Pub. L. 110–53, section 1302(a), 121 Stat. 390
(Aug. 3, 2007).
3 Pub. L. 110–53, section 1302(a), 121 Stat. 390
(Aug. 3, 2007). TSA exercises this function under
delegated authority from the Secretary.
4 49 U.S.C. 114(v)(3)(D).
5 49 U.S.C. 114(v)(3)(C).
6 49 U.S.C. 114(v)(3)(E).
7 49 U.S.C. 114(v)(5).
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an alternative means of compliance
acceptable to TSA within the timeframe
provided in the notice.8
Prior to enactment of section 1302 of
the 9/11 Act, TSA assessed
administrative civil penalties only for
violations of aviation security related
statutes under 49 U.S.C. ch. 449, and 49
U.S.C. 46302 and 46303. TSA’s
procedures for assessing civil penalties
for such violations are set forth at 49
CFR part 1503. This rule amends part
1503 to expand its application to
violations of any statutory requirement
administered by TSA, including surface
transportation requirements and TWIC
requirements, in accordance with the
provisions of the 9/11 Act.
B. Summary of the Civil Penalty Process
The following is a general summary of
the process TSA currently uses to assess
a civil penalty for violations of the
statutes, regulations, and orders it
administers. The rule applies this
process, with certain changes discussed
below, to violations of surface
transportation and TWIC requirements,
to include: (1) TWIC; 9 (2) commercial
drivers’ licenses with hazardous
material endorsements (49 CFR parts
1570 and 1572); and (3) rail
transportation security (49 CFR part
1580).10
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1. Notice of Proposed Civil Penalty
TSA initiates a civil penalty action by
sending the alleged violator (the
respondent) a Notice of Proposed Civil
Penalty (NPCP), which states the statute,
regulation, or order allegedly violated,
the facts TSA believes establish the
violation, and the amount of the penalty
TSA proposes to impose for the
violation. The NPCP also informs the
respondent that he or she has 30 days
from receipt to either: (1) Pay the
penalty; or (2) provide information
demonstrating that a violation did not
occur, that the penalty should be lower
because of mitigating circumstances, or
that the respondent is unable to pay the
proposed penalty. If the respondent
does not pay the penalty, they must also
request an informal conference with
TSA counsel; or request a formal
hearing before an Administrative Law
Judge (ALJ).
Pursuant to section 1304(e) of the 9/
11 Act, TSA will not send an NPCP to
a public transportation agency unless
8 See
Pub. L. 110–53, section 1304(e)(2), 121 Stat.
393.
9 TWIC is a joint program with the United States
Coast Guard. TSA enforces its regulatory program
at 49 CFR parts 1570 and 1572, and the Coast Guard
enforces its regulations at 33 CFR parts 101–106.
10 See Rail Transportation Security; final rule, 73
FR 72130 (Nov. 26, 2008).
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TSA first gives the public transportation
agency written notice of the violation
and a reasonable opportunity to correct
the violation, or to propose an
alternative means of compliance
acceptable to TSA, and the public
transportation agency fails to do so
within the timeframe provided in the
notice.11 Reasonableness will depend
on the totality of the circumstances,
including the security consequences of
the violation.
2. Informal Conference
The informal conference provides the
respondent with an opportunity to
discuss the alleged violation informally
with TSA counsel and to present
exculpatory evidence. This conference
can be held by telephone or in person.
Many TSA enforcement cases settle as a
result of information exchanged or
representations made at (or after) the
informal conference.
3. Order Assessing a Civil Penalty
If the respondent elects to pay the
penalty, or if the matter settles (either at
the informal conference or before or
after the informal conference), TSA
counsel issues an Order Assessing a
Civil Penalty (OACP). The order states
the law violated, the facts establishing
the violation, the amount of the penalty,
and how and by when the respondent
is to pay the penalty.
4. Final Notice of Proposed Civil
Penalty
In the event the respondent does not
respond to the NPCP within 30 days, or
in the event the respondent and TSA
counsel cannot agree on a penalty
amount during settlement discussions,
TSA counsel issues a Final Notice of
Proposed Civil Penalty (FNPCP). The
FNPCP gives the respondent 15 days
from receipt to: (1) Pay the penalty; (2)
reach an agreed penalty amount with
TSA counsel; or (3) request a formal
hearing before an ALJ. Under the
current regulations, the FNPCP also
states that if the respondent does not
respond to the FNPCP within 15 days,
or if the matter has not settled and the
respondent has not requested a formal
hearing within 15 days, TSA counsel
will issue an OACP in the penalty
amount proposed by the FNPCP. One of
the changes this rule makes is to have
the FNCP automatically convert to an
OACP, if within 15 days the respondent
has not responded to the FNPCP, settled
the case, or requested a formal hearing.
11 See
Pub. L. 110–53, section 1304(e)(2), 121 Stat.
393.
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5. Formal Hearing
A respondent must request a formal
hearing in writing within 30 days of
receipt of the NPCP, or within 15 days
of receipt an FNPCP. The respondent
must send the request for a formal
hearing to the Enforcement Docket Clerk
and a copy of the request for a formal
hearing to the TSA counsel.
An Administrative Law Judge (ALJ)
conducts the formal hearing. The
procedural rules governing formal
hearings are set forth at 49 CFR part
1503, subpart G. Within 20 days of
receipt of a timely request for hearing,
TSA counsel will file a Complaint
reciting the allegations in the NPCP or
FNPCP, as applicable. The respondent
must file a written Answer to the
Complaint within 30 days of receipt.
The matter proceeds to a formal
hearing unless the ALJ grants a motion
to dismiss or a motion for a decision (or
unless the case settles). At the formal
hearing, both parties have the
opportunity to present witnesses and
other evidence. The ALJ will issue an
Initial Decision at the close of a hearing
or shortly thereafter.
6. Appeal From the ALJ Initial Decision
Either party may appeal the ALJ
Initial Decision to the TSA Decision
Maker. The TSA Decision Maker is the
Assistant Secretary of Homeland
Security (Transportation Security
Administration) or his or her designee.
The party appealing the decision must
file a written Notice of Appeal with the
Enforcement Docketing Center within
10 days of receipt of the Initial Decision
and must also file an appeal brief with
the Docketing Center within 50 days of
receipt of the Initial Decision. Reply
briefs may be filed up to 35 days after
receipt of the appeal brief. The address
of the Docketing Center is: Docketing
Center, U.S. Coast Guard, 40 S. Gay
Street, Room 412, Baltimore, MD
21202–4022, Attn: Enforcement Docket
Clerk.
After receipt of the appeal brief (and
any reply brief), the TSA Decision
Maker will render a Final Decision and
Order. A party may request the TSA
Decision Maker to reconsider a Final
Decision and Order by filing a Petition
for Reconsideration within 30 days of
the Final Decision.
7. Appeal From the TSA Decision
Maker’s Final Decision and Order
Either party may appeal a Final
Decision of the TSA Decision Maker to
an appropriate U.S. Circuit Court of
Appeals within 60 days after the Final
Order has been served on the party.
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III. Reorganization Summary
This rule reorganizes part 1503 and
clarifies its provisions without
substantive change. TSA intends, in the
recodification of these regulations, to
conform to the understood policy,
intent, and purpose of the original
regulations, with such amendments and
corrections as will remove ambiguities,
36033
contradictions, and other imperfections.
The reorganization is illustrated in the
accompanying redistribution table in
Table 1 that follows.
TABLE 1—REDISTRIBUTION OF 49 CFR PART 1503
Former section
New section
New title
1503.1 .........................................................
1503.3 .........................................................
1503.5 .........................................................
1503.7 .........................................................
1503.11 .......................................................
1503.12 .......................................................
1503.201
1503.203
1503.801
1503.205
1503.301
1503.415
1503.13 .......................................................
1503.15 .......................................................
1503.423 ....................................................
1503.701 ....................................................
1503.703 ....................................................
1503.401 ....................................................
1503.403 ....................................................
1503.413 ....................................................
1503.417 ....................................................
1503.419 ....................................................
1503.425 ....................................................
1503.427 ....................................................
1503.657(a) ................................................
1503.407 ....................................................
1503.405 ....................................................
1503.421 ....................................................
1503.16 .......................................................
1503.21 .......................................................
1503.25 .......................................................
1503.29 .......................................................
1503.201
1503.202
1503.203
1503.204
.....................................................
.....................................................
.....................................................
.....................................................
1503.205
1503.206
1503.207
1503.208
1503.209
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
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1503.210 .....................................................
1503.211
1503.212
1503.213
1503.214
1503.215
1503.216
1503.217
1503.218
1503.219
1503.220
1503.221
1503.222
1503.223
1503.224
1503.225
1503.226
1503.227
1503.228
1503.229
1503.230
1503.231
1503.232
1503.233
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
1503.419
1503.601
1503.103
1503.603
1503.605
1503.651
1503.607
1503.619
1503.431
1503.609
1503.409
1503.429
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
....................................................
1503.611 ....................................................
1503.429 ....................................................
1503.234 .....................................................
1503.409 ....................................................
1503.411 ....................................................
1503.617 ....................................................
1503.621 ....................................................
1503.623 ....................................................
1503.625 ....................................................
1503.627 ....................................................
1503.629 ....................................................
1503.631 ....................................................
1503.633 ....................................................
1503.615 ....................................................
1503.635 ....................................................
1503.637 ....................................................
1503.639 ....................................................
1503.641 ....................................................
1503.643 ....................................................
1503.645 ....................................................
1503.647 ....................................................
1503.649 ....................................................
1503.651 ....................................................
1503.653 ....................................................
1503.655 ....................................................
1503.655(d) ................................................
1503.657 ....................................................
1503.659 ....................................................
1503.235 .....................................................
1503.301 .....................................................
1503.661 ....................................................
1503.901 ....................................................
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Reports of violations.
Investigations.
Formal complaints.
Records, documents, and reports.
Warning notices and letters of correction.
Request for portions of the enforcement investigative
report (EIR).
Consent orders.
Applicability of this subpart.
Civil penalty letter; referral.
Maximum penalty amounts; jurisdiction.
Delegation of authority.
Notice of Proposed Civil Penalty.
Final Notice of Proposed Civil Penalty and Order.
Order Assessing Civil Penalty.
Compromise orders.
Request for a formal hearing.
Appeal from initial decision.
Military personnel.
Injunctions.
Streamlined civil penalty procedures for certain security violations.
Order Assessing Civil Penalty.
Applicability.
Terms used in this part.
Separation of functions.
Appearances and rights of parties.
Record.
Administrative law judges.
Intervention.
Certification of documents.
Complaint.
Service of documents.
Filing of documents with the Enforcement Docket
Clerk.
Answer.
Filing of documents with the Enforcement Docket
Clerk.
Service of documents.
Computation of time.
Extension of time.
Amendment of pleadings.
Withdrawal of complaint or request for hearing.
Waivers.
Joint procedural and discovery schedule.
Motions.
Interlocutory appeals.
Discovery.
Notice of hearing.
Evidence.
Standard of proof.
Burden of proof.
Offer of proof.
Public disclosure of evidence.
Expert or opinion witnesses.
Subpoenas.
Witness fees.
Record.
Argument before the ALJ.
Initial decision.
Effect of initial decision.
Appeal from initial decision.
Petition to reconsider or modify a final decision and
order of the TSA decision maker on appeal.
Judicial review of a final order.
Scope and purpose.
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TABLE 1—REDISTRIBUTION OF 49 CFR PART 1503—Continued
Former section
New section
1503.303 .....................................................
1503.305 .....................................................
1503.903 ....................................................
1503.401 ....................................................
IV. Section-by-Section Analysis
TSA makes amendments and
corrections as will remove ambiguities,
contradictions, and other imperfections
in the provisions of part 1503 discussed
below. The changes begin with subpart
B. Subpart A is reserved. Sections of the
rule that were reorganized without
change are not discussed in this
preamble.
A. Subpart B—Scope of Investigative
and Enforcement Procedures
1. TSA Requirements (§ 1503.101)
For purposes of this part, TSA adopts
the term ‘‘TSA requirements’’ to refer to
the universe of statutory, regulatory, and
other legal requirements, the violation
of which could give rise to TSA
enforcement. Accordingly, the revised
part 1503 applies to enforcement actions
for violations of any TSA surface
transportation requirement under title
49 U.S.C. and the TWIC requirements
TSA has issued under 46 U.S.C. ch. 701.
hsrobinson on PROD1PC76 with RULES2
2. Terms Used in This Part (§ 1503.103)
Section 1503.103 removes the
definition of ‘‘complainant’’ because it
is no longer used in the revised part
1503. The definitions of ‘‘complaint’’
and ‘‘order assessing civil penalty’’ are
removed because they are defined in the
specific sections where they are used.
Section 1503.103 adds a definition of
‘‘enforcement investigative report
(EIR)’’, which appears in the current
part 1503, but is not defined.
This rule amends the definition of
‘‘mail’’ by clarifying that it includes
regular U.S. mail service. In addition,
the rule deletes reference to overnight
express courier service in the definition
of ‘‘mail.’’ Overnight express courier
service is more appropriately covered
under the current definition of
‘‘personal delivery,’’ which includes
‘‘use of a contract or express messenger
service.’’ Accordingly, the definition of
‘‘personal delivery’’ is amended to
include reference to an overnight
express courier service.
The rule amends the definition of
‘‘pleading’’ to include not only a
complaint, answer, and amendment to
the complaint or answer, but also any
other written submission to the ALJ or
a party during the course of the hearing
proceedings.
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New title
Definitions.
Maximum penalty amounts.
The rule codifies the statutory
definition of ‘‘public transportation
agency’’ as a publicly owned operator of
public transportation eligible to receive
Federal assistance under 49 U.S.C. ch.
53.12
Under the current part 1503, the term
‘‘respondent’’ is defined as ‘‘a person,
corporation, or company named in a
complaint.’’ This rule amends this
definition to be ‘‘the person named in a
Notice of Proposed Civil Penalty, a Final
Notice of Proposed Civil Penalty and
Order, or a complaint.’’ This promotes
clarity in the regulation by permitting
the use of ‘‘respondent’’ to refer to the
alleged violator at any stage in the
enforcement process.
case that TSA may assess. Vision 100—
Century of Aviation Reauthorization Act
(Vision 100) (Pub. L. 108–176, sec.
503(b), 117 Stat. 2490 (Dec. 12, 2003).
Section 1503.401 also adds reference
to the maximum civil penalty amounts
under the 9/11 Act for violations of any
statute administered by TSA. Statutes
administered by TSA include both
aviation security statutes and statutes
authorizing or directing TSA to impose
surface transportation requirements. See
49 U.S.C. ch. 449, and secs. 46302,
46303, and 46 U.S.C. ch. 701. TSA may
impose penalties under these statutes
for violations of any aviation or surface
transportation security requirements,
including violations of TSA’s TWIC
requirements, whether imposed by an
B. Subpart D—Non-Civil Penalty
implementing regulation or order.
Enforcement
Paragraph (d) adjusts the applicable
Subpart D (Warning Notices and
maximum penalties for inflation as
Letters of Correction (§ 1503.301))
described below.
broadens the scope of these provisions
The Federal Civil Penalties Inflation
making them applicable to cases
Adjustment Act of 1990, Public Law
involving any TSA requirement. It also
101–410 (Adjustment Act), 28 U.S.C.
codifies the provisions of section
2461 note, provides for the regular
1304(e) of the 9/11 Act requiring that:
evaluation of civil monetary penalties to
(1) TSA give written notice of a
ensure that they continue to maintain
violation and a reasonable opportunity
their deterrent effect and that penalty
to correct the violation or propose an
amounts due the Federal Government
alternative means of compliance before
are properly accounted for and
taking legal enforcement action against
collected.
a public transportation agency; and (2)
On April 26, 1996, the President
TSA not initiate civil enforcement
signed into law the Omnibus
action for violations of administrative
and procedural requirements pertaining Consolidated Rescissions and
Appropriations Act of 1996, Public Law
to transportation security grant
programs under Public Law 110–53.13 In 104–134. Section 31001 of that Act, also
known as the Debt Collection
determining reasonableness under this
provision, TSA will consider the totality Improvement Act of 1996 (Improvement
Act), amended the Adjustment Act to
of the circumstances.
provide more effective tools for
C. Subpart E—Assessment of Civil
government-wide collection of
Penalties by TSA
delinquent debt. Section 31001(s)(1) of
the Improvement Act added a new
1. Maximum Civil Penalty Amounts
section 7 to the Adjustment Act
(§ 1503.401)
providing that any increase in a civil
Section 1503.401 updates the
monetary penalty made pursuant to this
maximum civil penalty amounts for
Act shall apply only to violations that
civil penalties assessed by TSA.
occur after the date the increase takes
Congress raised the maximum civil
effect. The Improvement Act provides
penalty amounts per violation for
that the adjustments for inflation
certain aviation security statutes.
required by the Adjustment Act should
Homeland Security Act of 2002, Public
be made at least every four years.
Law 107–296, section 1602, 116 Stat.
The amounts of the adjustments are
2135 (Nov. 25, 2002). Congress also
raised the total civil penalty amount per determined according to a detailed
formula specified in the Adjustment
Act, incorporating a ‘‘cost-of-living
12 9/11 Act at section 1402(5).
adjustment’’ that is defined in section
13 See Pub. L. 110–53, section 1304(e), 121 Stat.
393.
5(b) of the Adjustment Act as being the
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percentage (if any) for each civil
monetary penalty by which—
(1) The Consumer Price Index for the
month of June of the calendar year
preceding the adjustment, exceeds
(2) The Consumer Price Index for the
month of June of the calendar year in
which the amount of such civil
monetary penalty was last set or
adjusted pursuant to law.
Section 31001(s)(2) of the
Improvement Act also provides that the
first adjustment of a civil monetary
penalty made pursuant to these
procedures may not exceed 10 percent
of the penalty. Congress reenacted the
penalties in 2003. This rule,
accordingly, represents the first
adjustment of the civil monetary
penalties after the last Congressional
action.
Subpart E of this rule incorporates the
provisions previously in subpart H and
establishes new civil penalty maximums
based on an adjustment for inflation for
violations of 49 U.S.C. ch. 449 (except
secs. 44902, 44903(d), 44907(a)–
(d)(1)(A), 44907(d)(1)(C)–(f), 44908, and
44909), or 49 U.S.C. 46302 or 46303.
TSA has adjusted maximum penalties
as follows:
The CPI increased by 21.63 percent
from June 2002 to June 2008.14
Based on this increase, the inflation
adjusted maximum for the $10,000 civil
penalty amount would be $12,163.
However, the $10,000 maximum
amount is adjusted to $11,000 because
this is the first adjustment after
Congress increased the penalties in
2003. As such, it is limited to an
increase of 10 percent. The inflation
adjusted maximum for the $25,000 civil
penalty amount would be $30,408.
However, as adjusted the amount is
$27,500, 10 percent above the amount as
increased by Congress in 2003. Upon
the effective date of today’s rule, these
new civil penalty maximums become
effective. The $10,000 maximum for
violations of other provisions of title 49
and title 46 U.S.C. ch. 701 is not being
adjusted at this time because it is a
newly enacted penalty amount.
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2. Delegation of Authority (§ 1503.403)
Section 1503.403 makes minor
revisions to former § 1503.16(c),
delegating to TSA’s Chief Counsel and
the Deputy Chief Counsel for
Enforcement the authority to prosecute
civil enforcement cases and refer them
to the Attorney General, as necessary.
Section 1503.403 changes the title of the
14 Table 24, Historical Consumer Price Index for
All Urban Consumers (CPI–U): U.S. City Average,
All Items.’’ See https://www.bls.gov/cpi/
cpid0904.pdf.
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Deputy Chief Counsel and makes
explicit the authority of the Chief
Counsel or Deputy Chief Counsel for
Enforcement to negotiate lower civil
penalties than those that TSA initially
proposed.
3. Injunctions (§ 1503.405)
Section 1503.405 incorporates the
provisions regarding the institution of
injunctions currently codified in
§ 1503.25, and expands their scope to
cover any violation of title 49 U.S.C.
administered by TSA or TSA’s TWIC
requirements under 46 U.S.C. ch. 701.
4. Military Personnel (§ 1503.407)
The current regulation provides that
the Chief Counsel or Deputy Chief
Counsel for Civil Enforcement will refer
such cases to the appropriate military
authority for such disciplinary action, as
that authority considers appropriate.
Section 1503.407 of this rule expands
the delegation to authorize any
designated agency official to make such
referrals and expands the scope of the
section to encompass violations of any
TSA requirement.
5. Service of Documents (§ 1503.409)
Section 1503.409 amends current
§ 1503.211, which governs service of
documents in the context of a formal
hearing. Section 1503.409 governs the
service of documents at all stages of the
civil enforcement process, beginning
with the service of a notice of proposed
civil penalty. In addition, this section,
as amended, permits service to be made
by electronic mail or facsimile
transmission, if consented to in writing
by the person served. Even in such
cases, however, service by electronic
mail or facsimile transmission will not
be effective if the party making service
obtained credible information indicating
that the attempted service did not reach
the person to be served. In addition, for
pleadings served during the formal
hearing process, the party making
service must file with the Enforcement
Docket Clerk a copy of the opposing
party’s consent to receive service by
electronic mail or facsimile
transmission. The date of service by
electronic mail or facsimile
transmission is the date of transmission.
See F.R. Civ. P. 5(b)(2)(E).
6. Computation of Time (§ 1503.411)
Section 1503.411 amends current
§ 1503.212, which governs the
computation of time for purposes of
deadlines applicable in the context of
the formal hearing process. Section
1503.411 expands the application of this
section to time requirements at any
stage of the civil enforcement process.
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7. Notice of Proposed Civil Penalty
(§ 1503.413)
When TSA determines that a person
has violated a TSA requirement and that
a civil penalty is warranted, the agency
issues a Notice of Proposed Civil
Penalty to the alleged violator. Section
1503.413 revises without significant
change the provisions governing the
issuance of Notices of Proposed Civil
Penalty currently codified at
§ 1503.16(d) and updates the address for
TSA’s Enforcement Docket Clerk, which
now is located at the United States
Coast Guard (USCG) ALJ Docketing
Center, 40 S. Gay Street, Room 412,
Baltimore, Maryland 21202–4022.
8. Request for Portions of the
Enforcement Investigative Report (EIR)
(§ 1503.415)
Section 1503.415 revises slightly the
provisions currently codified at
§ 1503.12 governing the release of
limited investigative materials to the
recipient of a Notice of Proposed Civil
Penalty. When TSA issues a Notice of
Proposed Civil Penalty, the respondent
may request portions of the relevant
investigative report that are not
privileged (e.g., under the deliberative
process, attorney work-product, or
attorney-client privileges). This
information may contain Sensitive
Security Information (SSI), which is
restricted from public disclosure under
49 CFR part 1520. TSA will provide this
information to the respondent for the
sole purpose of preparing a response to
the allegations contained in the Notice
of Proposed Civil Penalty. The
individual receiving SSI under this
provision must comply with 49 CFR
part 1520, which permits TSA to require
a background check and imposes other
conditions, as well as the requirements
to manage the information in
accordance with part 1520. Any
violation of 49 CFR part 1520 by the
respondent would be a violation of TSA
requirements and subject to additional
enforcement action.
9. Final Notice of Proposed Civil
Penalty and Order (§ 1503.417)
Section 1503.417 makes one
significant change in the provisions
governing the issuance of Final Notices
of Proposed Civil Penalty currently
codified at § 1503.16(e). The change is
intended to reduce the time necessary to
resolve civil penalty cases.
Under the current regulation, TSA
issues a Final Notice of Proposed Civil
Penalty when: (1) The alleged violator
fails to respond to the Notice of
Proposed Civil Penalty within 30 days
after receipt of that notice; or (2) the
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parties have engaged in settlement
discussions but have not reached a
settlement. After the Final Notice of
Proposed Civil Penalty is issued, the
respondent has 15 days from receipt to:
(1) Pay the proposed civil penalty; (2)
negotiate and pay a lesser amount; or (3)
request a formal hearing. If the
respondent pays the penalty or fails to
exercise the other two options, TSA
issues an Order Assessing Civil Penalty,
which ends the enforcement process
and makes the civil penalty final.
Amended § 1503.417, in conjunction
with amended § 1503.419(b), shortens
this process by making the Final Notice
of Proposed Civil Penalty automatically
convert to an Order Assessing Civil
Penalty if one of the events in
§ 503.419(b) has occurred, eliminating
the need for TSA to issue a separate
Order Assessing Civil Penalty. This
change will not affect the procedural
rights of the alleged violator; rather, it
will streamline the process and allow
quicker resolution of cases, once a
respondent has exercised, or failed to
exercise, those procedural rights that are
available. TSA currently uses this
streamlined process for routine
enforcement actions against individuals
who bring prohibited items through
airport screening checkpoints. Thus, the
revision to § 1503.417 primarily affects
enforcement actions against entities,
such as airports and air carriers. Under
§ 1503.417, the Final Notice of Proposed
Civil Penalty is now called a Final
Notice of Civil Penalty and Order
(‘‘Final Notice and Order’’).
hsrobinson on PROD1PC76 with RULES2
10. Order Assessing Civil Penalty
(§ 1503.419)
Section 1503.419 revises the
provisions governing the issuance of
Orders Assessing Civil Penalty currently
codified at § 1503.16(b), with the change
discussed above regarding the automatic
conversion of a Final Notice and Order
to an Order Assessing Civil Penalty.
TSA has moved the provisions of
current § 1503.16(b) regarding the status
of ALJ decisions as orders assessing
civil penalty to § 1503.655(c).
11. Streamlined Civil Penalty
Procedures for Certain Security
Violations (§ 1503.421)
Section 1503.421 reorganizes and
makes minor revisions to the provisions
of § 1503.29 of the current regulation,
which provide for the issuance of
Notices of Violation for certain types of
common security violations at a
passenger screening or baggage
screening checkpoint. TSA issues
Notices of Violation when an individual
presents a weapon, explosive, or
incendiary for screening at a passenger
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screening checkpoint or in checked
baggage, and where the amount of the
proposed civil penalty is less than
$5,000. A Notice of Violation contains a
statement of the charges, the amount of
the proposed civil penalty, and an offer
to settle the matter for a lesser specified
penalty amount. Under the current
regulation, the recipient of a Notice of
Violation has the option to request an
Informal Conference with an agency
attorney. Under this rule, an Informal
Conference with an agency attorney or
another agency official, as determined
by TSA, is available. This change allows
TSA to increase its capacity to provide
Informal Conferences and therefore
resolve cases more quickly.
12. Consent Orders (§ 1503.423)
Under § 1503.13 of the current
regulation, a consent order must
contain: (1) An admission of all
jurisdictional facts; (2) an express
waiver of the right to further procedural
steps and of all rights to judicial review;
and (3) an incorporation of the notice of
proposed civil penalty by reference and
an acknowledgment that the notice may
be used to construe the terms of the
order.
Section 1503.423 revises slightly the
provisions of this section by eliminating
the reference to the notice of proposed
civil penalty, thereby making the
consent order a self-contained
document. The consent order includes:
(1) An admission of all jurisdictional
facts; (2) an admission of agreed-upon
allegations; (3) a statement of the law
violated; (4) a finding of violation; and
(5) an express waiver of the right to
further procedural steps and of all rights
to administrative and judicial review.
13. Compromise Orders (§ 1503.425)
Section 1503.425 incorporates and
makes slight revisions to the provisions
of § 1503.16(l) of the current regulation.
Section 1503.425 provides explicitly
that a compromise order will include all
jurisdictional facts and allegations.
14. Request for a Formal Hearing
(§ 1503.427)
Section 1503.427 revises slightly the
provisions of § 1503.16(f) of the current
regulations to make clear that the filing
of a request for a formal hearing does
not guarantee a person an opportunity
to appear before an ALJ in person. The
ALJ may issue an initial decision or
dispositive order resolving the case
prior to the commencement of the
formal hearing.
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15. Filing of Documents With the
Enforcement Docket Clerk (§ 1503.429)
Section 1503.429 of this rule revises
slightly the provisions of § 1503.210 to
add provisions permitting the filing of
documents with the Enforcement
Docket Clerk by electronic mail or
facsimile transmission. The amended
rule also updates the address of the
Enforcement Docket Clerk, which now
is located at the United States Coast
Guard (USCG) ALJ Docketing Center, 40
S. Gay Street, Room 412, Baltimore,
Maryland 21202–4022. If this address
changes in the future, TSA will
announce the change through a notice
in the Federal Register.
16. Certification of Documents
(§ 1503.431)
Section 1503.431 of this rule revises
slightly the provisions of § 1503.207 of
the current regulation governing the
certification of documents filed with the
Enforcement Docket clerk by adding
several items to the certification. One of
the items to which one must certify
under the current regulation at
§ 1503.207(b)(1) is that the document is
‘‘[w]arranted by existing law or that a
good faith argument exists for extension,
modification, or reversal of existing
law.’’ This rule requires that a good faith
and non-frivolous argument exist for
extension, modification, or reversal of
existing law. This rule also adds that a
certification includes that the document
is supported by evidence, and any
denials of factual contentions are
warranted on the evidence. These issues
are implicit in the requirements
governing certification of documents
under the current regulation; this rule
makes them explicit.
D. Subpart G—Rules of Practice in TSA
Civil Penalty Actions
1. Applicability (§ 1503.601)
Section 1503.601 of this rule revises
the provisions of § 1503.201 of the
current regulation, regarding the
applicability of TSA’s formal hearing
procedures. First, in accordance with
the 9/11 Act, paragraph (a) expands the
applicability of the formal hearing
procedures to cases involving violations
of any statutory requirement
administered by TSA, including surface
transportation requirements and TWIC
requirements.
Second, paragraph (b) of this rule
makes clear that the formal hearing
procedures cannot be used to conduct
an adjudication of the validity of any
TSA rule or other requirement under the
U.S. Constitution, the Administrative
Procedure Act, or any other law. Put
differently, a person may not use a
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formal hearing under subpart G to
challenge the legal basis of a TSA rule
or other requirement, the violation of
which gave rise to the issuance of a civil
penalty. The purpose of the formal
hearing is to adjudicate whether a
violation occurred and whether the civil
penalty is appropriate. See Appeal of
Rendon, 2004 DOT Av. LEXIS 1287, at
*3, (ALJ lacks authority to determine
whether a TSA regulation was
unconstitutional) aff’d sub nom. Rendon
v. Transportation Security Admin., 424
F.3d 475 (6th Cir. 2005).
Third, paragraph (d) of this rule adds
a provision clarifying that the
consolidation of two or more cases that
individually are below the Federal
district court jurisdictional threshold
does not cause the consolidated action
to exceed that threshold and thereby fall
within the exclusive jurisdiction of the
Federal district court. The issue of
consolidation of cases is addressed
further in § 1503.613.
2. Administrative Law Judges
(§ 1503.607)
Section 1503.607 of this rule revises
the provisions of § 1503.205 of the
current rule, with the following
changes. First, paragraph (a) makes
explicit the following implicit powers
that an ALJ holds under the current
regulation: (1) To issue scheduling
orders and other appropriate orders
regarding discovery or other matters that
come before him or her; (2) to hold
conferences to settle or to simplify the
issues on his or her own motion; (3) to
strike unsigned documents unless
omission of the signature is corrected
promptly after being called to the
attention of the attorney or party; and
(4) to order payment of witness fees.
Second, paragraph (b) of this rule
adds an express limitation on an ALJ’s
powers, consistent with current law.
Specifically, the amended rule provides
that an ALJ is not authorized to decide
issues involving the validity of a TSA
regulation, order, or other requirement
under the U.S. Constitution, the
Administrative Procedure Act, or other
law. See Appeal of Rendon, 2004 DOT
Av. LEXIS 1287, at *3, (ALJ lacks
authority to determine whether a TSA
regulation was unconstitutional) aff’d
sub nom. Rendon v. Transportation
Security Admin., 424 F.3d 475 (6th Cir.
2005). Nor may the ALJ adopt or follow
a standard of proof or procedure
contrary to that set forth in TSA’s formal
hearing procedures.
3. Complaint (§ 1503.609)
Section 1503.609 of this rule revises
slightly the provisions of § 1503.208 of
the current regulation. First, § 1503.609
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changes from 20 to 30 the number of
days within which TSA has to file a
complaint after a respondent requests a
formal hearing. A 30-day period is
consistent with the length of most of the
other response periods allowed under
TSA’s enforcement procedures.
Second, § 1503.609 omits provisions
on the manner of service of the
complaint, because service of all
documents is addressed in § 1503.409.
should not be automatically precluded
from refiling. In addition, the amended
rule permits a party to withdraw a
request for hearing without prejudice at
any time before a complaint has been
filed. This is intended to address
situations where respondents
mistakenly request a hearing when they
intended to ask for an informal
conference or another procedural
option.
4. Consolidation and Separation of
Cases (§ 1503.613)
This rule adds a new provision
governing the consolidation and
separation of cases. In addition to
clarifying the process for consolidation
and separation of cases, § 1503.613
makes clear that consolidation of two or
more actions that individually involve
amounts in controversy below the
jurisdictional maximum of the
administrative court will not cause the
resulting action to exceed that
jurisdictional maximum and thereby
come under the exclusive jurisdiction of
the Federal district courts, as specified
in 49 U.S.C. 46301(d)(4)(A).
7. Discovery (§ 1503.633)
Section 1503.633 of this rule
incorporates the provisions in
§ 1503.220 of the current regulation and
adds a new provision at § 1503.633(g)
clarifying a party’s access to Sensitive
Security Information through discovery.
Specifically, at the request of a party,
TSA may provide SSI to the party when,
in the sole discretion of TSA, access to
the SSI is necessary for the party to
prepare a response to allegations
contained in the complaint. TSA may
provide such information, subject to
such restrictions on further disclosure
and such safeguarding requirements as
TSA determines appropriate. This new
provision largely reiterates a similar
provision in 49 CFR 1520.15(d) of TSA’s
regulation governing Sensitive Security
Information. TSA repeats it here for
clarity.
5. Extension of Time (§ 1503.617)
Section 1503.617 of this rule revises
slightly the provisions of § 1503.213 of
the current rule by adding a new
provision specifically governing
requests for continuances of a hearing.
Paragraph (c) provides that either party
may request a continuance of the date
of a hearing, for good cause shown, no
later than seven days before the date of
the hearing. Good cause does not
include a scheduling conflict involving
the parties or their attorneys which by
due diligence could have been foreseen.
This new provision is intended to
establish certainty and predictability for
the parties as they prepare for a formal
hearing and discourage undue delay in
the proceedings.
6. Withdrawal of Complaint or Request
for Hearing (§ 1503.623)
Section 1503.623 of this rule revises
slightly the provision of § 1503.215 of
the current regulation, which permits an
agency attorney to withdraw a
complaint or a respondent to withdraw
a request for a hearing without the
consent of the ALJ, at any time before
or during a hearing. The rule now
permits the ALJ to dismiss the
proceedings without prejudice if the
withdrawing party shows good cause for
dismissal without prejudice. The
current regulation requires dismissal
with prejudice in all cases. This change
is intended to leave open the possibility
that the withdrawing party may have a
bona fide reason for withdrawing and
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8. Standard of Proof (§ 1503.637)
Section 1503.637 of this rule amends
the provisions of § 1503.223 of the
current regulation regarding the
standard of proof in a formal hearing.
The current regulation states that a party
must prove its case or defense by ‘‘a
preponderance of reliable, probative,
and substantial evidence.’’ This
statement of the standard may be
confusing because it refers to
‘‘substantial evidence.’’ The ‘‘substantial
evidence’’ standard is a standard of
judicial review applicable to an agency’s
finding of fact. See American Textile
Mfrs. Inst. v. Donovan, 452 U.S. 490,
522 (1981). Courts have defined
‘‘substantial evidence’’ as ‘‘such
relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.’’ Id. Moreover, courts have
consistently held that substantial
evidence ‘‘requires more than a scintilla
but less than a preponderance.’’ Id.
Thus, the substantial evidence standard
and the preponderance standard differ.
By using the term ‘‘substantial
evidence’’ in the description of the
preponderance standard, § 1503.223 of
the current regulation appears to
introduce confusion about the
appropriate standard of proof. To
eliminate any confusion, TSA has
restated the standard of proof simply as
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proof of a party’s case or defense by a
preponderance of the evidence.
Preponderance of the evidence means
proof by information that, compared
with information opposing it, leads to
the conclusion that the fact at issue is
more probably true than not.
hsrobinson on PROD1PC76 with RULES2
9. Argument Before the ALJ (§ 1503.653)
Section 1503.653 of this rule revises
slightly the provisions in § 1503.231 of
the current regulation. Current
§ 1503.231(a) states that the ALJ may
request written arguments during the
hearing if he or she finds that
submission of written arguments would
be ‘‘reasonable.’’ This rule changes this
standard by providing that the ALJ may
request written arguments during the
hearing if written argument is
‘‘necessary to issue the ruling or order
to which the argument pertains.’’ The
purpose of this change is simply to
clarify to the parties and the ALJ what
constitutes a reasonable ground to
request written arguments.
10. Initial Decision (§ 1503.655)
Section 1503.655 of this rule
regarding the initial decision of the ALJ
revises slightly the provision of
§ 1503.232 of the current regulation.
Paragraph (a) makes a conforming
change by clarifying that the ALJ’s
issuance of an initial decision may
follow the party’s submission of written
posthearing briefs.
Paragraph (b) changes the requirement
as to when an initial decision must be
issued and whether it must be written.
Under the current regulation, the ALJ
must issue the initial decision and order
orally on the record at the conclusion of
the hearing, unless the ALJ finds that
issuing a written initial decision is
reasonable. In such cases the ALJ must
issue a written initial decision not later
than 30 days after the conclusion of the
hearing or submission of the last
posthearing brief. This rule changes this
practice by making the issuance of a
written initial decision mandatory in all
cases. Specifically, paragraph (b)
provides that, after the conclusion of the
hearing, the ALJ may issue the initial
decision and order orally on the record.
The ALJ must issue a written initial
decision and order not later than 30
days after the conclusion of the hearing
or submission of the last post-hearing
brief. The ALJ must serve a copy of any
written initial decision on each party.
TSA has made this change to better
document ALJ decisions and preserve
guidance for future enforcement
proceedings.
Paragraph (d) revises the provision in
§ 1503.233(j)(3) of the current regulation
regarding the precedential value of ALJ
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rulings and initial decisions. That
section now states that any issue,
finding or conclusion, order, ruling, or
initial decision of an ALJ that has not
been appealed to the TSA decision
maker is not precedent in any other civil
penalty action. While this is correct in
that such decisions are not binding in
other civil penalty actions, the language
of this provision appeared to preclude
reliance on such prior decisions as
instructive or persuasive. In the interest
of promoting predictability and
consistency in enforcement, it is
appropriate that ALJ initial decisions be
recognized as persuasive authority in
subsequent civil penalty actions.
Consequently, paragraph (d) revises the
current regulation by providing that an
initial decision of an ALJ may be
considered as persuasive authority in
any other civil penalty action, unless
appealed and reversed by the TSA
decision maker or a court of competent
jurisdiction.
11. Appeal From Initial Decision
(§ 1503.657)
Section 1503.657 of this rule revises
the reference in paragraph (b) to the
preponderance-of-the-evidence standard
of proof, as discussed previously.
V. Administrative Procedure Act
The Administrative Procedure Act
(APA) requires TSA to provide public
notice and seek public comment on
substantive regulations. 5 U.S.C. 553.
The APA, however, excludes certain
types of regulations and permits
exceptions for other types of regulations
from this public notice and comment
requirement. TSA issues this rule
without providing the opportunity for
prior notice and comment for the
reasons described below. TSA is
requesting, however, and will consider,
public comments submitted during the
public comment period as described in
the ‘‘Comments Invited’’ section.
Reorganization and clarification of 49
CFR part 1503. The Administrative
Procedure Act (APA) exempts from the
prior notice and opportunity for
comment requirements ‘‘rules of agency
organization, procedure or practice.’’ 5
U.S.C. 553(b)(A). The reorganization
and clarification of part 1503 makes
changes such as making it explicit that
an ALJ can issue scheduling orders or
hold conferences changing from 20 to 30
the number of days within which TSA
must file a complaint after a respondent
requests a formal hearing. Accordingly,
to the extent that this rule adopts rules
of agency organization, procedure or
practice, those portions of the rule are
excepted from the notice-and-comment
requirements under 5 U.S.C. 553(b)(A).
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Surface Mode Administrative
Penalties. This portion of the rule would
codify provisions of the
9/11 Act that bring surface mode
violations within the scope of TSA’s
civil penalty authority. Sections 1302
and 1304(e) of the 9/11 Act consist of
specific directions to TSA for assessing
civil penalties for surface transportation
and Transportation Worker
Identification Credential violations.
Prior to enactment of the 9/11 Act, TSA
could assess civil penalties primarily for
violations of ch. 449 of title 49 U.S.C.,
which relates to aviation. Accordingly,
this rule would make TSA’s current
civil penalty enforcement procedures at
49 CFR part 1503, which now only
apply to violations of ch. 449 of title 49
U.S.C. (aviation), applicable to the
additional types of violations added by
the 9/11 Act, such as violations of
surface transportation requirements. As
an application of the existing
procedures to a new substantive area of
regulation, the rule remains a
procedural rule that may be excepted
from notice and comment under 5
U.S.C. 553(a)(2). Advance notice-andcomment, moreover, is unnecessary and
would not serve the public interest
under 5 U.S.C. 553(b)(3)(B) because
these rules already apply to all other
civil penalties before TSA.
Civil Monetary Penalty Adjustment.
This rule makes inflation adjustments to
the maximum civil penalty amounts in
accordance with the Federal Civil
Penalty Inflation Adjustment Act of
1990, 28 U.S.C. 2461 note. TSA has no
discretion over the amounts of these
increases. The Adjustment Act specifies
an arithmetic calculation of the inflation
adjustment. This rule is a
nondiscretionary ministerial action to
conform to the Adjustment Act.
Therefore, advance public notice and an
opportunity for public comment is
unnecessary and not in the public
interest. 5 U.S.C. 553(b)(3)(B).
VI. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq., requires
that TSA consider the impact of
paperwork and other information
collection burdens imposed on the
public and, under the provisions of PRA
section 3507(d), obtain approval from
the Office of Management and Budget
(OMB) for each collection of
information it conducts, sponsors, or
requires through regulations. As
protection provided by the Paperwork
Reduction Act, as amended, an agency
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless it
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displays a currently valid OMB control
number.
TSA has determined that there are no
current or new information collection
requirements associated with this rule.
VII. Economic Impact Analyses
A. Regulatory Evaluation Summary
Changes to Federal regulations must
undergo several economic analyses.
First, Executive Order 12866, Regulatory
Planning and Review 15 directs each
Federal agency to propose or adopt a
regulation only upon a reasoned
determination that the benefits of the
intended regulation justify its costs.
Second, the Regulatory Flexibility Act
of 1980, 5 U.S.C. 601 et seq., as
amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996, requires agencies to
analyze the economic impact of
regulatory changes on small entities.
Third, the Trade Agreements Act, 19
U.S.C. 2531–2533, prohibits agencies
from setting standards that create
unnecessary obstacles to the foreign
commerce of the United States. Fourth,
the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531–1538, requires
agencies to prepare a written assessment
of the costs, benefits, and other effects
of proposed or final rules that include
a Federal mandate likely to result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
annually (adjusted for inflation).
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B. Executive Order 12866 Assessment
In conducting these analyses, TSA has
determined:
1. This rulemaking is not a
‘‘significant regulatory action’’ as
defined in the Executive Order. The
Office of Management and Budget
agrees with this conclusion.
2. This rulemaking does not have a
significant economic impact on a
substantial number of small entities.
3. This rulemaking does not constitute
a barrier to international trade.
4. This rulemaking does not impose
an unfunded mandate on State, local, or
tribal governments, or on the private
sector.
The bases for these conclusions are
summarized below.
C. Costs and Benefits
This is a procedural rule whose costs
and benefits will not significantly
exceed, or be lower than, those imposed
by TSA’s current rule. While maximum
penalty amounts have been adjusted for
inflation, this change is not likely to
have a significant impact because TSA
15 58
FR 51735 (October 4, 1993).
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does not expect to impose maximum
penalties in most enforcement actions.
More importantly, however, the costs of
these penalties only affect those that
engage in conduct prohibited by statute
or related regulations. Those who
comply with the law will not be
affected.
D. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA)
of 1980 requires that agencies perform a
review to determine whether a rule will
have a significant economic impact on
a substantial number of small entities. If
the agency determines that a rule will
have a significant economic impact on
a substantial number of small entities,
the agency must prepare a regulatory
flexibility analysis as described in the
RFA. For purposes of the RFA, small
entities include small businesses, notfor-profit organizations, and small
governmental jurisdictions. 5 U.S.C.
601(6). Individuals and States are not
included in the definition of a small
entity. Pursuant to 5 U.S.C. 603(a),
however, the requirement to perform a
regulatory flexibility analysis does not
apply where, as is the case in today’s
rule, the agency is not required to issue
a proposed rule prior to issuing a final
rule.
This rule provides guidance for the
parties as to how civil penalties are
imposed. The rules state the procedures
for investigations, enforcement actions,
for TSA civil penalty actions, and other
details of imposing and adjudicating
civil penalties. The civil penalties
implemented by this rule will only
affect those that engage in conduct
prohibited by statute or related
regulations. Those who comply with the
law will not be affected by these civil
penalties. Pursuant to § 1503.401,
maximum civil penalties for individuals
and small businesses are lower than
those for larger entities.
E. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
establishing any standards or engaging
in related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Legitimate domestic objectives, such as
safety, are not considered unnecessary
obstacles. The statute also requires
consideration of international standards
and, where appropriate, that they be the
basis for U.S. standards. TSA has
assessed the potential effect of this
rulemaking and has determined that it
will impose the same costs on domestic
and international entities and thus have
a neutral trade impact.
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36039
F. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act
of 1995 is intended, among other things,
to curb the practice of imposing
unfunded Federal mandates on State,
local, and tribal governments. Title II of
the Act requires each Federal agency to
prepare a written statement assessing
the effects of any Federal mandate in a
proposed or final agency rule that may
result in a $100 million or more
expenditure (adjusted annually for
inflation) in any one year by State, local,
and tribal governments, in the aggregate,
or by the private sector; such a mandate
is deemed to be a ‘‘significant regulatory
action.’’
This rulemaking does not contain
such a mandate. The requirements of
Title II of the Act, therefore, do not
apply and TSA has not prepared a
statement under the Act.
VIII. Other Analyses
A. Executive Order 13132, Federalism
TSA has analyzed this rule under the
principles and criteria of Executive
Order 13132, Federalism. TSA has
determined that this action will not
have a substantial direct effect on the
States, on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, and therefore does
not have Federalism implications.
B. Environmental Analysis
TSA has reviewed this action for
purposes of the National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C.
4321–4347, and has determined that
this action will not have a significant
effect on the human environment.
C. Energy Impact Analysis
The energy impact of the notice has
been assessed in accordance with the
Energy Policy and Conservation Act
(EPCA), Public Law 94–163, as amended
(42 U.S.C. 6362). TSA has determined
that this rulemaking is not a major
regulatory action under the provisions
of the EPCA.
List of Subjects in 49 CFR Part 1503
Administrative practice and
procedure, Investigations, Law
enforcement, Penalties, Transportation.
The Amendments
For the reasons set forth in the
preamble, the Transportation Security
Administration revises part 1503 in
chapter XII of title 49, Code of Federal
Regulations to read as follows:
■
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1503.653 Argument before the ALJ.
1503.655 Initial decision.
1503.657 Appeal from initial decision.
1503.659 Petition to reconsider or modify a
final decision and order of the TSA
decision maker on appeal.
1503.661 Judicial review of a final order.
PART 1503—INVESTIGATIVE AND
ENFORCEMENT PROCEDURES
Subpart A—[Reserved]
Subpart B—Scope of Investigative and
Enforcement Procedures
Sec.
1503.101 TSA requirements.
1503.103 Terms used in this part.
Subpart C—Investigative Procedures
1503.201 Reports of violations.
1503.203 Investigations.
1503.205 Records, documents, and reports.
Subpart D—Non-Civil Penalty Enforcement
1503.301 Warning notices and letters of
correction.
Subpart E—Assessment of Civil Penalties
by TSA
1503.401 Maximum penalty amounts.
1503.403 Delegation of authority.
1503.405 Injunctions.
1503.407 Military personnel.
1503.409 Service of documents.
1503.411 Computation of time.
1503.413 Notice of Proposed Civil Penalty.
1503.415 Request for portions of the
enforcement investigative report (EIR).
1503.417 Final Notice of Proposed Civil
Penalty and Order.
1503.419 Order Assessing Civil Penalty.
1503.421 Streamlined civil penalty
procedures for certain security
violations.
1503.423 Consent orders.
1503.425 Compromise orders.
1503.427 Request for a formal hearing.
1503.429 Filing of documents with the
Enforcement Docket Clerk.
1503.431 Certification of documents.
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Subpart F—[Reserved]
Subpart G—Rules of Practice in TSA Civil
Penalty Actions
1503.601 Applicability.
1503.603 Separation of functions.
1503.605 Appearances and rights of parties.
1503.607 Administrative law judges.
1503.609 Complaint.
1503.611 Answer.
1503.613 Consolidation and separation of
cases.
1503.615 Notice of hearing.
1503.617 Extension of time.
1503.619 Intervention.
1503.621 Amendment of pleadings.
1503.623 Withdrawal of complaint or
request for hearing.
1503.625 Waivers.
1503.627 Joint procedural and discovery
schedule.
1503.629 Motions.
1503.631 Interlocutory appeals.
1503.633 Discovery.
1503.635 Evidence.
1503.637 Standard of proof.
1503.639 Burden of proof.
1503.641 Offer of proof.
1503.643 Public disclosure of evidence.
1503.645 Expert or opinion witnesses.
1503.647 Subpoenas.
1503.649 Witness fees.
1503.651 Record.
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Subpart H—Judicial Assessment of Civil
Penalties
1503.701 Applicability of this subpart.
1503.703 Civil penalty letter; referral.
Subpart I—Formal Complaints
1503.801 Formal complaints.
Authority: 18 U.S.C. 6002; 28 U.S.C. 2461
(note); 49 U.S.C. 114, 20109, 31105, 40113–
40114, 40119, 44901–44907, 46101–46107,
46109–46110, 46301, 46305, 46311, 46313–
46314; Sec. 1413(i), Public Law 110–53, 121
Stat. 414 (6 U.S.C. 1142).
PART 1503—INVESTIGATIVE AND
ENFORCEMENT PROCEDURES
Subpart A—[Reserved]
Subpart B—Scope of Investigative and
Enforcement Procedures
§ 1503.101
TSA requirements.
(a) The investigative and enforcement
procedures in this part apply to TSA’s
investigation and enforcement of
violations of TSA requirements.
(b) For purposes of this part, the term
TSA requirements means the following
statutory provisions and a regulation
prescribed or order issued under any of
those provisions:
(1) Those provisions of title 49 U.S.C.
administered by the Administrator; and
(2) 46 U.S.C. chapter 701.
§ 1503.103
Terms used in this part.
In addition to the terms in § 1500.3 of
this chapter, the following definitions
apply in this part:
Administrative law judge or ALJ
means an ALJ appointed pursuant to the
provisions of 5 U.S.C. 3105.
Agency attorney means the Deputy
Chief Counsel for Enforcement or an
attorney that he or she designates. An
agency attorney will not include—
(1) Any attorney in the Office of the
Chief Counsel who advises the TSA
decision maker regarding an initial
decision or any appeal to the TSA
decision maker; or
(2) Any attorney who is supervised in
a civil penalty action by a person who
provides such advice to the TSA
decision maker in that action or a
factually related action.
Attorney means any person who is
eligible to practice law in, and is a
member in good standing of the bar of,
the highest court of any State,
possession, territory, or Commonwealth
of the United States, or of the District of
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Columbia, and is not under any order
suspending, enjoining, restraining,
disbarring, or otherwise restricting him
or her in the practice of law.
Enforcement Investigative Report or
EIR means a written report prepared by
a TSA Inspector or other authorized
agency official detailing the results of an
inspection or investigation of a violation
of a TSA requirement, including copies
of any relevant evidence.
Mail includes regular First Class U.S.
mail service, U.S. certified mail, or U.S.
registered mail.
Party means the respondent or TSA.
Personal delivery includes handdelivery or use of a contract or express
messenger service, including an
overnight express courier service.
Personal delivery does not include the
use of Government interoffice mail
service.
Pleading means a complaint, an
answer, motion and any amendment of
these documents permitted under this
subpart as well as any other written
submission to the ALJ or a party during
the course of the hearing proceedings.
Properly addressed means a
document that shows an address
contained in agency records, a
residential, business, or other address
submitted by a person on any document
provided under this part, or any other
address obtained by other reasonable
and available means.
Public transportation agency means a
publicly owned operator of public
transportation eligible to receive Federal
assistance under 49 U.S.C. chapter 53.
Respondent means the person named
in a Notice of Proposed Civil Penalty, a
Final Notice of Proposed Civil Penalty
and Order, or a complaint.
TSA decision maker means the
Administrator, acting in the capacity of
the decision maker on appeal, or any
person to whom the Administrator has
delegated the Administrator’s decisionmaking authority in a civil penalty
action. As used in this part, the TSA
decision maker is the official authorized
to issue a final decision and order of the
Administrator in a civil penalty action.
Subpart C—Investigative Procedures
§ 1503.201
Reports of violations.
(a) Any person who knows of a
violation of a TSA requirement should
report it to appropriate personnel of any
TSA office.
(b) TSA will review each report made
under this section, together with any
other information TSA may have that is
relevant to the matter reported, to
determine the appropriate response,
including additional investigation or
administrative or legal enforcement
action.
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§ 1503.203
Investigations.
(a) General. The Administrator, or a
designated official, may conduct
investigations, hold hearings, issue
subpoenas, require the production of
relevant documents, records, and
property, and take evidence and
depositions.
(b) Delegation of authority. For the
purpose of investigating alleged
violations of a TSA requirement, the
Administrator’s authority may be
exercised by the agency’s various offices
for matters within their respective areas
for all routine investigations. When the
compulsory processes of 49 U.S.C.
46104 are invoked, the Administrator’s
authority has been delegated to the
Chief Counsel, each Deputy Chief
Counsel, and in consultation with the
Office of Chief Counsel, the Assistant
Administrator for Security Operations,
the Assistant Administrator for
Transportation Sector Network
Management, the Assistant
Administrator for Inspections, the
Assistant Administrator for Law
Enforcement/Director of the Federal Air
Marshal Service, each Special Agent in
Charge, and each Federal Security
Director.
§ 1503.205
reports.
Records, documents, and
Each record, document, and report
that regulations issued by the
Transportation Security Administration
require to be maintained, exhibited, or
submitted to the Administrator may be
used in any investigation conducted by
the Administrator; and, except to the
extent the use may be specifically
limited or prohibited by the section that
imposes the requirement, the records,
documents, and reports may be used in
any civil penalty action or other legal
proceeding.
Subpart D—Non-Civil Penalty
Enforcement
§ 1503.301 Warning notices and letters of
correction.
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(a) If TSA determines that a violation
or an alleged violation of a TSA
requirement does not require the
assessment of a civil penalty, an
appropriate official of the TSA may take
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administrative action in disposition of
the case.
(b) An administrative action under
this section does not constitute a formal
adjudication of the matter, and may be
taken by issuing the alleged violator—
(1) A ‘‘Warning Notice’’ that recites
available facts and information about
the incident or condition and indicates
that it may have been a violation; or
(2) A ‘‘Letter of Correction’’ that
confirms the TSA decision in the matter
and states the necessary corrective
action the alleged violator has taken or
agrees to take. If the agreed corrective
action is not fully completed, legal
enforcement action may be taken.
(c) The issuance of a Warning Notice
or Letter of Correction is not subject to
appeal under this part.
(d) In the case of a public
transportation agency that is determined
to be in violation of a TSA requirement,
an appropriate TSA official will seek
correction of the violation through a
written ‘‘Notice of Noncompliance’’ to
the public transportation agency giving
the public transportation agency
reasonable opportunity to correct the
violation or propose an alternative
means of compliance acceptable to TSA.
(e) TSA will not take legal
enforcement action against a public
transportation agency under subpart E
unless it has provided the Notice of
Noncompliance described in paragraph
(d) of this section and the public
transportation agency fails to correct the
violation or propose an alternative
means of compliance acceptable to TSA
within the timeframe provided in the
notice.
(f) TSA will not initiate civil
enforcement action for violations of
administrative and procedural
requirements pertaining to the
application for, and the expenditure of,
funds awarded pursuant to
transportation security grant programs
under Public Law 110–53.
Subpart E—Assessment of Civil
Penalties by TSA
§ 1503.401
Maximum penalty amounts.
(a) General. TSA may assess civil
penalties not exceeding the following
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36041
amounts against a person for the
violation of a TSA requirement.
(b) In General. Except as provided in
paragraph (c) of this section, in the case
of violation of title 49 U.S.C. or 46
U.S.C. chapter 701, or a regulation
prescribed or order issued under any of
those provisions, TSA may impose a
civil penalty in the following amounts:
(1) $10,000 per violation, up to a total
of $50,000 per civil penalty action, in
the case of an individual or small
business concern, as defined in section
3 of the Small Business Act (15 U.S.C.
632); and
(2) $10,000 per violation, up to a total
of $400,000 per civil penalty action, in
the case of any other person.
(c) Certain aviation related violations.
In the case of a violation of 49 U.S.C.
chapter 449 (except sections 44902,
44903(d), 44907(a)–(d)(1)(A),
44907(d)(1)(C)–(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, or a
regulation prescribed or order issued
under any of those provisions, TSA may
impose a civil penalty in the following
amounts:
(1) $10,000 per violation, up to a total
of $50,000 per civil penalty action, in
the case of an individual (except an
airman serving as an airman), any
person not operating an aircraft for the
transportation of passengers or property
for compensation, or a small business
concern, as defined in section 3 of the
Small Business Act (15 U.S.C. 632).
(2) $25,000 per violation, up to a total
of $400,000 per civil penalty action, in
the case of a person operating an aircraft
for the transportation of passengers or
property for compensation (except an
individual serving as an airman).
(d) Inflation adjustment. TSA may
adjust the maximum civil penalty
amounts in conformity with the Federal
Civil Penalties Inflation Adjustment Act
of 1990, 28 U.S.C. 2461 (note).
Minimum and maximum civil penalties
within the jurisdiction of TSA are
adjusted for inflation as follows:
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TABLE 1—MINIMUM AND MAXIMUM CIVIL PENALTIES—ADJUSTED FOR INFLATION, EFFECTIVE DECEMBER 12, 2003 TO
AUGUST 20, 2009
United States Code
citation
49 U.S.C.
46301(a)(1), (4).
49 U.S.C.
46301(a)(1), (4).
Minimum
penalty
Civil penalty description
Adjusted
minimum
penalty
Maximum penalty
amount when last set
or adjusted pursuant
to law
Maximum penalty
amount
N/A
N/A
$25,000 per violation,
reset 12/12/2003.
$25,000 per violation.
N/A
N/A
$10,000 per violation,
reset 12/12/2003.
$10,000 per violation.
Violation of 49 U.S.C. ch. 449 (except secs.
44902, 44903(d), 44907(a)–(d)(1)(A),
44907(d)(1)(C)–(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a regulation
prescribed, or order issued thereunder by
a person operating an aircraft for the
transportation of passengers or property
for compensation.
Violation of 49 U.S.C. ch. 449 (except secs.
44902, 44903(d), 44907(a)–(d)(1)(A),
44907(d)(1)(C)–(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a regulation
prescribed, or order issued thereunder by
an individual (except an airman serving
as an airman), any person not operating
an aircraft for the transportation of passengers or property for compensation, or
a small business concern.
TABLE 2—MINIMUM AND MAXIMUM CIVIL PENALTIES—ADJUSTED FOR INFLATION, EFFECTIVE AUGUST 20, 2009
United States Code
Citation
49 U.S.C.
46301(a)(1), (4).
49 U.S.C.
46301(a)(1), (4).
49 U.S.C. 114(v) ........
hsrobinson on PROD1PC76 with RULES2
§ 1503.403
Adjusted
minimum
penalty
Maximum penalty
amount when last set
or adjusted pursuant
to law
Maximum penalty
amount
N/A
N/A
$25,000 per violation,
reset 12/12/2003.
$27,500 per violation.
N/A
N/A
$10,000 per violation,
reset 12/12/2003.
$11,000 per violation.
N/A
N/A
NA .............................
$10,000 per violation.
Violation of 49 U.S.C. ch. 449 (except secs.
44902, 44903(d), 44907(a)–(d)(1)(A),
44907(d)(1)(C)–(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a regulation
prescribed, or order issued thereunder by
a person operating an aircraft for the
transportation of passengers or property
for compensation.
Violation of 49 U.S.C. ch. 449 (except secs.
44902, 44903(d), 44907(a)–(d)(1)(A),
44907(d)(1)(C)–(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a regulation
prescribed, or order issued thereunder by
an individual (except an airman serving
as an airman), any person not operating
an aircraft for the transportation of passengers or property for compensation, or
a small business concern.
Violation of any other provision of title 49
U.S.C. or of 46 U.S.C. ch. 701, a regulation prescribed, or order issued under
thereunder.
Delegation of authority.
The Administrator delegates the
following authority to the Chief Counsel
and the Deputy Chief Counsel for
Enforcement, which authority may be
redelegated as necessary:
(a) To initiate and assess civil
penalties under 49 U.S.C. 114 and
46301 and this subpart for a violation a
TSA requirement;
(b) To compromise civil penalties
initiated under this subpart; and
(c) To refer cases to the Attorney
General of the United States, or the
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delegate of the Attorney General, for the
collection of civil penalties.
§ 1503.405
Injunctions.
Whenever it is determined that a
person has engaged, or is about to
engage, in any act or practice
constituting a violation of a TSA
requirement, the Chief Counsel or the
Deputy Chief Counsel for Enforcement
may request the Attorney General of the
United States, or the delegate of the
Attorney General, to bring an action in
the appropriate United States district
court for such relief as is necessary or
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appropriate, including mandatory or
prohibitive injunctive relief, interim
equitable relief, and punitive damages,
as provided by 49 U.S.C. 114 and 46107.
§ 1503.407
Military personnel.
If a report made under this part
indicates that, while performing official
duties, a member of the Armed Forces,
or a civilian employee of the
Department of Defense who is subject to
the Uniform Code of Military Justice (10
U.S.C. chapter 47), has violated a TSA
requirement, an agency official will
send a copy of the report to the
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appropriate military authority for such
disciplinary action as that authority
considers appropriate and a report to
the Administrator thereon.
hsrobinson on PROD1PC76 with RULES2
§ 1503.409
Service of documents.
(a) General. This section governs
service of documents required to be
made under this part.
(b) Type of service. A person may
serve documents by:
(1) Personal delivery;
(2) Mail, or
(3) Electronic mail or facsimile
transmission, if consented to in writing
by the person served, except that such
service is not effective if the party
making service receives credible
information indicating that the
attempted service did not reach the
person to be served.
(c) If a party serves a pleading on
another party during the course of
hearing proceedings by electronic mail
or facsimile transmission, the party
making service must file with the
Enforcement Docket Clerk a copy of the
consent of the receiving party to accept
such method of service.
(d) Date of service. The date of service
will be:
(1) The date of personal delivery.
(2) If mailed, the mailing date stated
on the certificate of service, the date
shown on the postmark if there is no
certificate of service, or other mailing
date shown by other evidence if there is
no certificate of service or postmark.
(3) If sent by electronic mail or
facsimile transmission, the date of
transmission.
(e) Valid service. A document served
by mail or personal delivery that was
properly addressed, was sent in
accordance with this part, and that was
returned, that was not claimed, or that
was refused, is deemed to have been
served in accordance with this part. The
service will be considered valid as of
the date and the time that the document
was deposited with a contract or express
messenger, the document was mailed, or
personal delivery of the document was
attempted and refused.
(f) Presumption of service. There will
be a presumption of service where a
party or a person, who customarily
receives mail, or receives it in the
ordinary course of business, at either the
person’s residence or the person’s
principal place of business,
acknowledges receipt of the document.
(g) Additional time after service by
mail. Whenever a party has a right or a
duty to act or to make any response
within a prescribed period after service
by mail, or on a date certain after service
by mail, 5 days will be added to the
prescribed period.
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(h) Service of documents filed with
the Enforcement Docket. A person must
serve a copy of any document filed with
the Enforcement Docket on each party
and the ALJ or the chief ALJ if no judge
has been assigned to the proceeding at
the time of filing. Service on a party’s
attorney of record or a party’s
designated representative is service on
the party.
(i) Certificate of service. Each party
must attach a certificate of service to
any document tendered for filing with
the Enforcement Docket Clerk. A
certificate of service must consist of a
statement, dated and signed by the
person who effected service, of the
name(s) of the person(s) served, and the
method by which each person was
served and the date that the service was
made.
(j) Service by the ALJ. The ALJ must
serve a copy of each document he or she
issues including, but not limited to,
notices of pre-hearing conferences and
hearings, rulings on motions, decisions,
and orders, upon each party to the
proceedings.
§ 1503.411
Computation of time.
(a) This section applies to any period
of time prescribed or allowed by this
part, or by notice or order of an ALJ.
(b) The date of an act, event, or
default, after which a designated time
period begins to run, is not included in
a computation of time under this
subpart.
(c) The last day of a time period is
included in a computation of time
unless it is a Saturday, Sunday, a legal
holiday, or a day on which the
enforcement docket is officially closed.
If the last day of the time period is a
Saturday, Sunday, legal holiday, or a
day on which the enforcement docket is
officially closed, the time period runs
until the end of the next day that is not
a Saturday, Sunday, legal holiday, or a
day on which the enforcement docket is
officially closed.
§ 1503.413
Penalty.
Notice of Proposed Civil
(a) Issuance. TSA may initiate a civil
penalty action under this section by
serving a Notice of Proposed Civil
Penalty on the person charged with a
violation of a TSA requirement. TSA
will serve the Notice of Proposed Civil
Penalty on the individual charged with
a violation or on the president of the
corporation or company charged with a
violation, or other representative or
employee previously identified in
writing to TSA as designated to receive
such service. A corporation or company
may designate in writing to TSA another
person to receive service of any
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subsequent documents in that civil
penalty action.
(b) Contents. The Notice of Proposed
Civil Penalty contains a statement of the
facts alleged, the statute, regulation, or
order allegedly violated, the amount of
the proposed civil penalty, and a
certificate of service.
(c) Response. Not later than 30 days
after receipt of the Notice of Proposed
Civil Penalty, the person charged with
a violation may take one, and only one,
of the following options.
(1) Submit a certified check or money
order in the amount of the proposed
civil penalty made payable to
Transportation Security Administration,
at the address specified in the Notice of
Proposed Civil Penalty, or make
payment electronically through https://
www.pay.gov.
(2) Submit to the agency attorney who
issued the Notice of Proposed Civil
Penalty one of the following:
(i) A written request that TSA issue an
Order Assessing Civil Penalty in the
amount stated in the Notice of Proposed
Civil Penalty without further notice, in
which case the person waives the right
to request a Formal Hearing, and
payment is due within 30 days of
receipt of the Order.
(ii) Written information and other
evidence, including documents and
witness statements, demonstrating that a
violation of the regulations did not
occur as alleged, or that the proposed
penalty is not warranted by the
circumstances.
(iii) A written request to reduce the
proposed civil penalty, the amount of
requested reduction, together with any
documents supporting a reduction of
the proposed civil penalty, which reflect
a current financial inability to pay or
records showing that payment of the
proposed civil penalty would prevent
the person from continuing in business.
(iv) A written request for an Informal
Conference, at a date to be determined
by the agency attorney, to discuss the
matter with the agency attorney and to
submit supporting evidence and
information to the agency attorney
before the date of the Informal
Conference.
(3) Submit to the agency attorney and
to TSA’s Enforcement Docket Clerk a
written request for a Formal Hearing
before an ALJ in accordance with
subpart G of this part. TSA’s
Enforcement Docket Clerk is currently
located at the United States Coast Guard
(USCG) ALJ Docketing Center, 40 S. Gay
Street, Room 412, Baltimore, Maryland
21202–4022. If this location changes,
TSA will provide notice of the change
by notice in the Federal Register.
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§ 1503.415 Request for portions of the
enforcement investigative report (EIR).
proceedings held under
§ 1503.413(c)(2).
(a) Upon receipt of a Notice of
Proposed Civil Penalty, a person
charged with a violation of a TSA
requirement, or a representative
designated in writing by that person,
may request from the agency attorney
who issued the Notice of Proposed Civil
Penalty portions of the relevant EIR that
are not privileged (e.g., under the
deliberative process, attorney workproduct, or attorney-client privileges).
This information will be provided for
the sole purpose of providing the
information necessary to prepare a
response to the allegations contained in
the Notice of Proposed Civil Penalty.
Sensitive Security Information (SSI)
contained in the EIR may be released
pursuant to 49 CFR part 1520.
Information released under this section
is not produced under the Freedom of
Information Act.
(b) Any person not listed in paragraph
(a) of this section that is interested in
obtaining a copy of the EIR must submit
a FOIA request pursuant to 5 U.S.C. 552,
et seq., 49 CFR part 7, and any
applicable DHS regulations. Portions of
the EIR may be exempt from disclosure
pursuant to FOIA.
hsrobinson on PROD1PC76 with RULES2
§ 1503.417 Final Notice of Proposed Civil
Penalty and Order.
(a) Issuance. TSA may issue a Final
Notice of Proposed Civil Penalty and
Order (‘‘Final Notice and Order’’) to a
person charged with a violation in the
following circumstances:
(1) The person has failed to respond
to a Notice of Proposed Civil Penalty
within 30 days after receipt of that
notice.
(2) The person requested an Informal
Conference under § 1503.413(c)(2), but
failed to attend the conference or
continuation of the conference or
provide the agency attorney with a
written request showing good cause for
rescheduling of the informal conference
to a specified alternate date.
(3) The parties have participated in an
Informal Conference or other informal
proceedings as provided in
§ 1503.413(c)(2) and the parties have not
agreed to compromise the action or the
agency attorney has not agreed to
withdraw the notice of proposed civil
penalty.
(b) Contents. The Final Notice and
Order will contain a statement of the
facts alleged, the law allegedly violated
by the respondent, and the amount of
the proposed civil penalty. The Final
Notice and Order may reflect a modified
allegation or proposed civil penalty as a
result of information submitted to the
agency attorney during the informal
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§ 1503.419
Order Assessing Civil Penalty.
(a) Issuance pursuant to a settlement.
TSA will issue an Order Assessing Civil
Penalty if the parties have participated
in an Informal Conference or other
informal proceedings as provided in
§ 1503.413(c)(2) and agreed to a civil
penalty amount in compromise of the
matter, in which case the person waives
the right to request a formal hearing,
and payment is due within 30 days of
receipt of the Order.
(b) Automatic issuance. A Final
Notice and Order automatically converts
to an Order Assessing Civil Penalty if—
(1) The person charged with a
violation submits a certified check or
money order in the amount reflected in
the Final Notice and Order to
Transportation Security Administration,
to the address specified in the Final
Notice and Order, or makes such
payment electronically through https://
www.pay.gov; or
(2) The person fails to respond to the
Final Notice and Order or request a
formal hearing within 15 days after
receipt of that notice.
§ 1503.421 Streamlined civil penalty
procedures for certain security violations.
(a) Notice of violation. TSA, at the
agency’s discretion, may initiate a civil
penalty action through issuance of a
Notice of Violation for violations
described in the section and as
otherwise provided by the
Administrator. TSA may serve a Notice
of Violation on an individual who
violates a TSA requirement by
presenting a weapon, explosive, or
incendiary for screening at an airport or
in checked baggage, where the amount
of the proposed civil penalty is less than
$5,000.
(b) Contents. A Notice of Violation
contains a statement of the charges, the
amount of the proposed civil penalty,
and an offer to settle the matter for a
lesser specified penalty amount.
(c) Response. Not later than 30 days
after receipt of the Notice of Violation,
the individual charged with a violation
must respond to TSA by taking one, and
only one, of the following options.
(1) Submit a certified check or money
order for the lesser specified penalty
amount in the Notice of Violation, made
payable to Transportation Security
Administration and sent to the address
specified in the Notice of Violation, or
make such payment electronically
through https://www.pay.gov.
(2) Submit to the office identified in
the Notice of Violation one of the
following:
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(i) Written information and other
evidence, including documents and
witness statements, demonstrating that a
violation of the regulations did not
occur as alleged, or that the proposed
penalty is not warranted by the
circumstances.
(ii) A written request to reduce the
proposed civil penalty, the amount of
requested reduction, together with any
documents supporting a reduction of
the proposed civil penalty, which reflect
a current financial inability to pay or
records showing that payment of the
proposed civil penalty would prevent
the person from continuing in business.
(iii) A written request for an Informal
Conference, at a date to be determined
by an agency official, to discuss the
matter with the agency official and to
submit supporting evidence and
information to the agency official before
the date of the Informal Conference.
(3) Submit to the office identified in
the Notice of Violation and to TSA’s
Enforcement Docket Clerk a written
request for a formal hearing before an
ALJ in accordance with subpart G. A
request for a formal hearing before an
ALJ must be submitted to the address
provided in § 1503.413(c)(3).
(d) Final Notice of Violation and Civil
Penalty Assessment Order. TSA may
issue a Final Notice of Violation and
Civil Penalty Assessment Order (‘‘Final
Notice and Order’’) to the recipient of a
Notice of Violation in the following
circumstances:
(1) The individual has failed to
respond to a Notice of Violation within
30 days after receipt of that notice.
(2) The individual requested an
Informal Conference under
§ 1503.421(c)(2)(iii) but failed to attend
the conference or continuation of the
conference or provide the agency
official with a written request showing
good cause for rescheduling the
informal conference to a specified
alternate date.
(3) The parties have participated in an
Informal Conference or other informal
proceedings as provided in
§ 1503.421(c)(2) and the parties have not
agreed to compromise the action or the
agency official has not agreed to
withdraw the Notice of Violation.
(e) Order Assessing Civil Penalty. A
Final Notice and Order automatically
converts to an Order Assessing Civil
Penalty if—
(1) The individual charged with a
violation submits a certified check or
money order in the amount reflected in
the Final Notice and Order to
Transportation Security Administration
at the address specified in the Final
Notice and Order, or makes such
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payment electronically through https://
www.pay.gov; or
(2) The individual fails to respond to
the Final Notice and Order or request a
formal hearing within 15 days after
receipt of that notice.
(f) Delegation of authority. The
authority of the Administrator, under 49
U.S.C. 46301, to initiate, negotiate, and
settle civil penalty actions under this
section is delegated to the Assistant
Administrator for Security Operations.
This authority may be further delegated.
§ 1503.423
Consent orders.
(a) Issuance. At any time before the
issuance of an Order Assessing Civil
Penalty under this subpart, an agency
attorney and a person subject to a Notice
of Proposed Civil Penalty, or an agency
official and a person subject to a Notice
of Violation, may agree to dispose of the
case by the issuance of a consent order
by TSA.
(b) Contents. A consent order contains
the following:
(1) An admission of all jurisdictional
facts.
(2) An admission of agreed-upon
allegations.
(3) A statement of the law violated.
(4) A finding of violation.
(5) An express waiver of the right to
further procedural steps and of all rights
to administrative and judicial review.
§ 1503.425
Compromise orders.
(a) Issuance. At any time before the
issuance of an Order Assessing Civil
Penalty under this subpart, an agency
attorney and a person subject to a Notice
of Proposed Civil Penalty, or an agency
official and a person subject to a Notice
of Violation, may agree to dispose of the
case by the issuance of a compromise
order by TSA.
(b) Contents. A compromise order
contains the following:
(1) All jurisdictional facts.
(2) All allegations.
(3) A statement that the person agrees
to pay the civil penalty specified.
(4) A statement that TSA makes no
finding of a violation.
(5) A statement that the compromise
order will not be used as evidence of a
prior violation in any subsequent civil
penalty proceeding.
hsrobinson on PROD1PC76 with RULES2
§ 1503.427
Request for a formal hearing.
(a) General. Any respondent may
request a formal hearing, pursuant to
§ 1503.413(c)(3) or § 1503.421(c)(3), to
be conducted in accordance with the
procedures in subpart G of this part. The
filing of a request for a formal hearing
does not guarantee a person an
opportunity to appear before an ALJ in
person, because the ALJ may issue an
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initial decision or dispositive order
resolving the case prior to the
commencement of the formal hearing.
(b) Form. The person submitting a
request for hearing must date and sign
the request, and must include his or her
current address. The request for hearing
must be typewritten or legibly
handwritten.
(c) Submission of request. A person
requesting a hearing must file a written
request for a hearing with the
Enforcement Docket Clerk in accordance
with § 1503.429 and must serve a copy
of the request on the agency attorney or
other agency official who issued the
Notice of Proposed Civil Penalty, or
Notice of Violation, as applicable, and
any other party, in accordance with
§ 1503.429.
§ 1503.429 Filing of documents with the
Enforcement Docket Clerk.
(a) General. This section governs
filing of documents with the
Enforcement Docket Clerk when
required under this part.
(b) Type of service. A person must file
a document with the Enforcement
Docket Clerk by delivering two copies of
the document as follows:
(1) By personal delivery or mail, to
United States Coast Guard (USCG) ALJ
Docketing Center, ATTN: Enforcement
Docket Clerk, at the address specified in
§ 1503.413(c)(3).
(2) By electronic mail, to
ALJdocket@ALJBalt.USCG.MIL. If this email address changes, TSA will provide
notice of the change by notice in the
Federal Register.
(3) By facsimile transmission, to 410–
962–1746. If this number changes, TSA
will provide notice of the change by
notice in the Federal Register.
(c) Contents. Unless otherwise
specified in this part, each document
must contain a short, plain statement of
the facts supporting the person’s
position and a brief statement of the
action requested in the document. Each
document must be typewritten or
legibly handwritten.
(d) Date of filing. The date of filing
will be as follows:
(1) The date of personal delivery.
(2) If mailed, the mailing date stated
on the certificate of service, the date
shown on the postmark if there is no
certificate of service, or other mailing
date shown by other evidence if there is
no certificate of service or postmark.
(3) If sent by electronic mail or
facsimile transmission, the date of
transmission.
(e) Service of documents filed with the
Enforcement Docket. A person must
serve a copy of any document filed with
the Enforcement Docket on each party
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and the ALJ or the chief ALJ if no judge
has been assigned to the proceeding at
the time of filing. Service on a party’s
attorney of record or a party’s
designated representative is service on
the party.
§ 1503.431
Certification of documents.
(a) General. This section governs each
document tendered for filing with the
Enforcement Docket Clerk under this
part.
(b) Signature required. The attorney of
record, the party, or the party’s
representative must sign each document
tendered for filing with the Enforcement
Docket Clerk, or served on the ALJ, the
TSA decision maker on appeal, or each
party.
(c) Effect of signing a document. By
signing a document, the attorney of
record, the party, or the party’s
representative certifies that he or she
has read the document and, based on
reasonable inquiry and to the best of
that person’s knowledge, information,
and belief, the document is—
(1) Consistent with the rules in this
part;
(2) Warranted by existing law or that
a good faith and nonfrivolous argument
exists for extension, modification, or
reversal of existing law;
(3) Not unreasonable or unduly
burdensome or expensive, not made to
harass any person, not made to cause
unnecessary delay, not made to cause
needless increase in the cost of the
proceedings, or for any other improper
purpose; and
(4) Supported by evidence, and any
denials of factual contentions are
warranted on the evidence.
(d) Sanctions. On motion of a party,
if the ALJ or TSA decision maker finds
that any attorney of record, the party, or
the party’s representative has signed a
document in violation of this section,
the ALJ or the TSA decision maker, as
appropriate, will do the following:
(1) Strike the pleading signed in
violation of this section.
(2) Strike the request for discovery or
the discovery response signed in
violation of this section and preclude
further discovery by the party.
(3) Deny the motion or request signed
in violation of this section.
(4) Exclude the document signed in
violation of this section from the record.
(5) Dismiss the interlocutory appeal
and preclude further appeal on that
issue by the party who filed the appeal
until an initial decision has been
entered on the record.
(6) Dismiss the appeal of the ALJ’s
initial decision to the TSA decision
maker.
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Subpart F—[Reserved]
Subpart G—Rules of Practice in TSA
Civil Penalty Actions
§ 1503.601
Applicability.
(a) This subpart applies to a civil
penalty action in which the
requirements of paragraphs (a)(1)
through (a)(3) of this section are
satisfied.
(1) There is an alleged violation of a
TSA requirement.
(2) The amount in controversy does
not exceed—
(i) $50,000 if the violation was
committed by an individual or a small
business concern;
(ii) $400,000 if the violation was
committed by any other person.
(3) The person charged with the
violation has requested a hearing in
accordance with § 1503.427 of this part.
(b) This subpart does not apply to the
adjudication of the validity of any TSA
rule or other requirement under the U.S.
Constitution, the Administrative
Procedure Act, or any other law.
§ 1503.603
Separation of functions.
(a) Civil penalty proceedings,
including hearings, will be prosecuted
only by an agency attorney, except to
the extent another agency official is
permitted to issue and prosecute civil
penalties under § 1503.421 of this part.
(b) An agency employee engaged in
the performance of investigative or
prosecutorial functions in a civil
penalty action must not, in that case or
a factually related case, participate or
give advice in a decision by the ALJ or
by the TSA decision maker on appeal,
except as counsel or a witness in the
public proceedings.
(c) The Chief Counsel or an agency
attorney not covered by paragraph (b) of
this section will advise the TSA
decision maker regarding an initial
decision or any appeal of a civil penalty
action to the TSA decision maker.
hsrobinson on PROD1PC76 with RULES2
§ 1503.605
parties.
Appearances and rights of
(a) Any party may appear and be
heard in person.
(b) Any party may be accompanied,
represented, or advised by an attorney
or representative designated by the
party and may be examined by that
attorney or representative in any
proceeding governed by this subpart. An
attorney or representative who
represents a respondent and has not
previously filed a pleading in the matter
must file a notice of appearance in the
action, in the manner provided in
§ 1503.429, and must serve a copy of the
notice of appearance on each party, in
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the manner provided in § 1503.409,
before participating in any proceeding
governed by this subpart. The attorney
or representative must include the
name, address, and telephone number of
the attorney or representative in the
notice of appearance.
§ 1503.607
Administrative law judges.
(a) Powers of an ALJ. In accordance
with the rules of this subpart, an ALJ
may:
(1) Give notice of, and hold,
prehearing conferences and hearings.
(2) Issue scheduling orders and other
appropriate orders regarding discovery
or other matters that come before him or
her consistent with the rules of this
subpart.
(3) Administer oaths and affirmations.
(4) Issue subpoenas authorized by
law.
(5) Rule on offers of proof.
(6) Receive relevant and material
evidence.
(7) Regulate the course of the hearing
in accordance with the rules of this
subpart.
(8) Hold conferences to settle or to
simplify the issues on his or her own
motion or by consent of the parties.
(9) Rule on procedural motions and
requests.
(10) Make findings of fact and
conclusions of law, and issue an initial
decision.
(11) Strike unsigned documents
unless omission of the signature is
corrected promptly after being called to
the attention of the attorney or party.
(12) Order payment of witness fees in
accordance with § 1503.649.
(b) Limitations on the power of the
ALJ. (1) The ALJ may not:
(i) Issue an order of contempt.
(ii) Award costs to any party.
(iii) Impose any sanction not specified
in this subpart.
(iv) Adopt or follow a standard of
proof or procedure contrary to that set
forth in this subpart.
(v) Decide issues involving the
validity of a TSA regulation, order, or
other requirement under the U.S.
Constitution, the Administrative
Procedure Act, or other law.
(2) If the ALJ imposes any sanction
not specified in this subpart, a party
may file an interlocutory appeal of right
pursuant to § 1503.631(c)(3).
(3) This section does not preclude an
ALJ from issuing an order that bars a
person from a specific proceeding based
on a finding of obstreperous or
disruptive behavior in that specific
proceeding.
(c) Disqualification. The ALJ may
disqualify himself or herself at any time.
A party may file a motion, pursuant to
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§ 1503.629(f)(6), requesting that an ALJ
be disqualified from the proceedings.
§ 1503.609
Complaint.
(a) Filing. The agency attorney must
file the complaint with the Enforcement
Docket Clerk in accordance with
§ 1503.429, or may file a written motion
pursuant to § 1503.629(f)(2)(i) instead of
filing a complaint, not later than 30 days
after receipt by the agency attorney of a
request for hearing. The agency attorney
should suggest a location for the hearing
when filing the complaint.
(b) Contents. A complaint must set
forth the facts alleged, any statute,
regulation, or order allegedly violated
by the respondent, and the proposed
civil penalty in sufficient detail to
provide notice of any factual or legal
allegation and proposed civil penalty.
§ 1503.611
Answer.
(a) Filing. A respondent must file a
written answer to the complaint in
accordance with § 1503.429, or may file
a written motion pursuant to
§ 1503.629(f)(1)–(4) instead of filing an
answer, not later than 30 days after
service of the complaint. Subject to
paragraph (c) of this section, the answer
may be in the form of a letter, but must
be dated and signed by the person
responding to the complaint. An answer
may be typewritten or may be legibly
handwritten. The person filing an
answer should suggest a location for the
hearing when filing the answer.
(b) Contents. An answer must
specifically state any affirmative defense
that the respondent intends to assert at
the hearing. A person filing an answer
may include a brief statement of any
relief requested in the answer.
(c) Specific denial of allegations
required. A person filing an answer
must admit, deny, or state that the
person is without sufficient knowledge
or information to admit or deny, each
numbered paragraph of the complaint.
Any statement or allegation contained
in the complaint that is not specifically
denied in the answer may be deemed an
admission of the truth of that allegation.
A general denial of the complaint is
deemed a failure to file an answer.
(d) Failure to file answer. A person’s
failure to file an answer without good
cause, as determined by the ALJ, will be
deemed an admission of the truth of
each allegation contained in the
complaint.
§ 1503.613
of cases.
Consolidation and separation
(a) Consolidation. If two or more
actions involve common questions of
law or fact, the Chief Administrative
Law Judge may do the following:
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(1) Order a joint hearing or trial on
any or all such questions.
(2) Order the consolidation of such
actions.
(3) Otherwise make such orders
concerning the proceedings as may tend
to avoid unnecessary costs or delay.
(b) Consolidation shall not affect the
applicability of this part. Consolidation
of two or more actions that individually
meet the jurisdictional amounts set forth
in § 1503.601(a)(2) shall not cause the
resulting consolidated action to come
under the exclusive jurisdiction of the
district courts of the United States as
specified in 49 U.S.C. 46301(d)(4)(A).
(c) Separate trials. The Chief
Administrative Law Judge, in
furtherance of convenience or to avoid
prejudice, or when separate trials will
be conducive to expedition and
economy, may order a separate trial of
any claim, or of any separate issue, or
any number of claims or issues.
§ 1503.615
Notice of hearing.
(a) Notice. The ALJ must give each
party at least 60 days notice of the date,
time, and location of the hearing. With
the consent of the ALJ, the parties may
agree to hold the hearing on an earlier
date than the date specified in the
notice of hearing.
(b) Date, time, and location of the
hearing. The ALJ to whom the
proceedings have been assigned must
set a reasonable date, time, and location
for the hearing. The ALJ must consider
the need for discovery and any joint
procedural or discovery schedule
submitted by the parties when
determining the hearing date. The ALJ
must give due regard to the convenience
of the parties, the location where the
majority of the witnesses reside or work,
and whether the location is served by a
scheduled air carrier.
hsrobinson on PROD1PC76 with RULES2
§ 1503.617
Extension of time.
(a) Oral requests. The parties may
agree to extend for a reasonable period
the time for filing a document under
this subpart. If the parties agree, the ALJ
must grant one extension of time to each
party. The party seeking the extension
of time must submit a draft order to the
ALJ to be signed by the ALJ and filed
with the Enforcement Docket Clerk. The
ALJ may grant additional oral requests
for an extension of time where the
parties agree to the extension.
(b) Written motion. A party must file
a written motion for an extension of
time not later than 7 days before the
document is due unless the party shows
good cause for the late filing. The ALJ
may grant the extension of time if the
party shows good cause.
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(c) Request for continuance of
hearing. Either party may request in
writing a continuance of the date of a
hearing, for good cause shown, no later
than seven days before the scheduled
date of the hearing. Good cause does not
include a scheduling conflict involving
the parties or their attorneys which by
due diligence could have been foreseen.
(d) Failure to rule. If the ALJ fails to
rule on a written motion for an
extension of time by the date the
document was due, the motion for an
extension of time is deemed granted for
no more than 20 days after the original
date the document was to be filed. If the
ALJ fails to rule on a request for
continuance by the scheduled hearing
date, the request is deemed granted for
no more than 10 days after the
scheduled hearing date.
§ 1503.619
Intervention.
(a) A person may file a motion for
leave to intervene as a party in a civil
penalty action. The person must file a
motion for leave to intervene not later
than 10 days before the hearing unless
the person shows good cause for the late
filing.
(b) If the ALJ finds that intervention
will not unduly broaden the issues or
delay the proceedings, the ALJ may
grant a motion for leave to intervene if
the person will be bound by any order
or decision entered in the action or the
person has a property, financial, or
other legitimate interest that may not be
addressed adequately by the parties.
The ALJ may determine the extent to
which an intervenor may participate in
the proceedings.
§ 1503.621
Amendment of pleadings.
(a) Filing and service. A party must
file the amendment with the
Enforcement Docket Clerk and must
serve a copy of the amendment on the
ALJ and all parties to the proceeding.
(b) Time. A party must file an
amendment to a complaint or an answer
within the following:
(1) Not later than 15 days before the
scheduled date of a hearing, a party may
amend a complaint or an answer
without the consent of the ALJ.
(2) Less than 15 days before the
scheduled date of a hearing, the ALJ
may allow amendment of a complaint or
an answer only for good cause shown in
a motion to amend.
(c) Responses. The ALJ must allow a
reasonable time, but not more than 20
days from the date of filing, for other
parties to respond if an amendment to
a complaint, answer, or other pleading
has been filed with the ALJ.
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§ 1503.623 Withdrawal of complaint or
request for hearing.
At any time before or during a
hearing, an agency attorney may
withdraw a complaint or a respondent
may withdraw a request for a hearing
without the consent of the ALJ. If an
agency attorney withdraws the
complaint or a party withdraws the
request for a hearing and the answer, the
ALJ must dismiss the proceedings under
this subpart with prejudice, unless the
withdrawing party shows good cause for
dismissal without prejudice, except that
a party may withdraw a request for
hearing without prejudice at any time
before a complaint has been filed.
§ 1503.625
Waivers.
Waivers of any rights provided by
statute or regulation must be in writing
or by stipulation made at a hearing and
entered into the record. The parties
must set forth the precise terms of the
waiver and any conditions.
§ 1503.627
schedule.
Joint procedural or discovery
(a) General. The parties may agree to
submit a schedule for filing all
prehearing motions, a schedule for
conducting discovery in the
proceedings, or a schedule that will
govern all prehearing motions and
discovery in the proceedings.
(b) Form and content of schedule. If
the parties agree to a joint procedural or
discovery schedule, one of the parties
must file the joint schedule with the
ALJ, setting forth the dates to which the
parties have agreed, and must serve a
copy of the joint schedule on each party.
(1) The joint schedule may include,
but need not be limited to, requests for
discovery, any objections to discovery
requests, responses to discovery
requests to which there are no
objections, submission of prehearing
motions, responses to prehearing
motions, exchange of exhibits to be
introduced at the hearing, and a list of
witnesses that may be called at the
hearing.
(2) Each party must sign the original
joint schedule to be filed with the
Enforcement Docket Clerk.
(c) Time. The parties may agree to
submit all prehearing motions and
responses and may agree to close
discovery in the proceedings under the
joint schedule within a reasonable time
before the date of the hearing, but not
later than 15 days before the hearing.
(d) Order establishing joint schedule.
The ALJ must approve the joint
schedule filed by the parties. One party
must submit a draft order establishing a
joint schedule to the ALJ to be signed by
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the ALJ and filed with the Enforcement
Docket Clerk.
(e) Disputes. The ALJ must resolve
disputes regarding discovery or disputes
regarding compliance with the joint
schedule as soon as possible so that the
parties may continue to comply with the
joint schedule.
(f) Sanctions for failure to comply
with joint schedule. If a party fails to
comply with the ALJ’s order
establishing a joint schedule, the ALJ
may direct that party to comply with a
motion or discovery request or, limited
to the extent of the party’s failure to
comply with a motion or discovery
request, the ALJ may do the following:
(1) Strike that portion of a party’s
pleadings.
(2) Preclude prehearing or discovery
motions by that party.
(3) Preclude admission of that portion
of a party’s evidence at the hearing.
(4) Preclude that portion of the
testimony of that party’s witnesses at
the hearing.
hsrobinson on PROD1PC76 with RULES2
§ 1503.629
Motions.
(a) General. A party applying for an
order or ruling not specifically provided
in this subpart must do so by motion.
A party must comply with the
requirements of this section when filing
a motion. A party must serve a copy of
each motion on each party.
(b) Form and contents. A party must
state the relief sought by the motion and
the particular grounds supporting that
relief. If a party has evidence in support
of a motion, the party must attach any
supporting evidence, including
affidavits, to the motion.
(c) Filing of motions. A motion made
prior to the hearing must be in writing
or orally on the record. Unless
otherwise agreed by the parties or for
good cause shown, a party must file any
prehearing motion, and must serve a
copy on each party, not later than 30
days before the hearing. Motions
introduced during a hearing may be
made orally on the record unless the
ALJ directs otherwise.
(d) Reply to motions. Any party may
file a reply, with affidavits or other
evidence in support of the reply, not
later than 10 days after service of a
written motion on that party. When a
motion is made during a hearing, the
reply may be made at the hearing on the
record, orally or in writing, within a
reasonable time determined by the ALJ.
At the discretion of the ALJ, the moving
party may file a response to the reply.
(e) Rulings on motions. The ALJ must
rule on all motions as follows:
(1) Discovery motions. The ALJ must
resolve all pending discovery motions
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not later than 10 days before the
hearing.
(2) Prehearing motions. The ALJ must
resolve all pending prehearing motions
not later than 7 days before the hearing.
If the ALJ issues a ruling or order orally,
the ALJ must serve a written copy of the
ruling or order, within 3 days, on each
party. In all other cases, the ALJ must
issue rulings and orders in writing and
must serve a copy of the ruling or order
on each party.
(3) Motions made during the hearing.
The ALJ may issue rulings and orders
on motions made during the hearing
orally. Oral rulings or orders on motions
must be made on the record.
(f) Specific motions. A party may file,
but is not limited to, the following
motions with the Enforcement Docket
Clerk:
(1) Motion to dismiss for insufficiency.
A respondent may file a motion to
dismiss the complaint for insufficiency
instead of filing an answer. If the ALJ
denies the motion to dismiss the
complaint for insufficiency, the
respondent must file an answer not later
than 20 days after service of the ALJ’s
denial of the motion. A motion to
dismiss the complaint for insufficiency
must show that the complaint fails to
state a violation of a TSA requirement.
If the ALJ grants the motion to dismiss
the complaint for insufficiency, the
agency attorney may amend the
complaint in accordance with
§ 1503.621.
(2) Motion to dismiss. A party may file
a motion to dismiss, specifying the
grounds for dismissal. If an ALJ grants
a motion to dismiss in part, a party may
appeal the ALJ’s ruling on the motion to
dismiss under § 1503.631(b).
(i) Motion to dismiss a request for a
hearing. An agency attorney may file a
motion to dismiss a request for a hearing
as untimely instead of filing a
complaint. If the motion to dismiss is
not granted, the agency attorney must
file the complaint and must serve a copy
of the complaint on each party not later
than 20 days after service of the ALJ’s
ruling or order on the motion to dismiss.
If the motion to dismiss is granted and
the proceedings are terminated without
a hearing, the respondent may file an
appeal pursuant to § 1503.657. If
required by the decision on appeal, the
agency attorney must file a complaint
and must serve a copy of the complaint
on each party not later than 30 days
after service of the decision on appeal.
(ii) Motion to dismiss a complaint. A
respondent may file a motion to dismiss
a complaint instead of filing an answer,
on the ground that the complaint was
not timely filed or on other grounds. If
the ALJ does not grant the motion to
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dismiss, the respondent must file an
answer and must serve a copy of the
answer on each party not later than 30
days after service of the ALJ’s ruling or
order on the motion to dismiss. If the
ALJ grants the motion to dismiss and
the proceedings are terminated without
a hearing, the agency attorney may file
an appeal pursuant to § 1503.657. If
required by the decision on appeal, the
respondent must file an answer and
must serve a copy of the answer on each
party not later than 20 days after service
of the decision on appeal.
(iii) Motion to dismiss based on
settlement. A party may file a motion to
dismiss based on a mutual settlement of
the parties.
(3) Motion for more definite
statement. A party may file a motion for
more definite statement of any pleading
that requires a response under this
subpart. A party must set forth, in
detail, the indefinite or uncertain
allegations contained in a complaint or
response to any pleading and must
submit the details that the party believes
would make the allegation or response
definite and certain.
(i) Complaint. A respondent may file
a motion requesting a more definite
statement of the allegations contained in
the complaint instead of filing an
answer. If the ALJ grants the motion, the
agency attorney must supply a more
definite statement not later than 15 days
after service of the ruling granting the
motion. If the agency attorney fails to
supply a more definite statement, the
ALJ must strike the allegations in the
complaint to which the motion is
directed. If the ALJ denies the motion,
the respondent must file an answer and
must serve a copy of the answer on each
party not later than 20 days after service
of the order of denial.
(ii) Answer. An agency attorney may
file a motion requesting a more definite
statement if an answer fails to respond
clearly to the allegations in the
complaint. If the ALJ grants the motion,
the respondent must supply a more
definite statement not later than 15 days
after service of the ruling on the motion.
If the respondent fails to supply a more
definite statement, the ALJ must strike
those statements in the answer to which
the motion is directed. The respondent’s
failure to supply a more definite
statement may be deemed an admission
of unanswered allegations in the
complaint.
(4) Motion to strike. Any party may
move to strike any insufficient
allegation or defense, or any redundant,
immaterial, or irrelevant matter in a
pleading. A party must file a motion to
strike before a response is required
under this subpart or, if a response is
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not required, not later than 10 days after
service of the pleading.
(5) Motion for decision. A party may
move for decision, regarding all or any
part of the proceedings, at any time
before the ALJ has issued an initial
decision in the proceedings. A party
may include with a motion for decision
affidavits as well as any other evidence
in support of the motion. The ALJ must
grant a party’s motion for decision if the
pleadings, depositions, answers to
interrogatories, admissions, affidavits,
matters that the ALJ has officially
noticed, or evidence introduced during
the hearing show that there is no
genuine issue of material fact and that
the party making the motion is entitled
to a decision as a matter of law. The
party moving for decision has the
burden of showing that there is no
genuine issue of material fact.
(6) Motion for disqualification. A
party may file the motion at any time
after the ALJ has been assigned to the
proceedings but must make the motion
before the ALJ files an initial decision
in the proceedings.
(i) Motion and supporting affidavit. A
party must state the grounds for
disqualification, including, but not
limited to, personal bias, pecuniary
interest, or other factors supporting
disqualification, in the motion for
disqualification. A party must submit an
affidavit with the motion for
disqualification that sets forth, in detail,
the matters alleged to constitute grounds
for disqualification.
(ii) Answer. A party must respond to
the motion for disqualification not later
than 5 days after service of the motion
for disqualification.
(iii) Decision on motion for
disqualification. The ALJ must render a
decision on the motion for
disqualification not later than 20 days
after the motion has been filed. If the
ALJ finds that the motion for
disqualification and supporting affidavit
show a basis for disqualification, the
ALJ must withdraw from the
proceedings immediately. If the ALJ
finds that disqualification is not
warranted, the ALJ must deny the
motion and state the grounds for the
denial on the record. If the ALJ fails to
rule on a party’s motion for
disqualification within 20 days after the
motion has been filed, the motion is
deemed granted.
(iv) Appeal. A party may appeal the
ALJ’s denial of the motion for
disqualification in accordance with
§ 1503.631(b).
§ 1503.631
Interlocutory appeals.
(a) General. Unless otherwise
provided in this subpart, a party may
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not appeal a ruling or decision of the
ALJ to the TSA decision maker until the
initial decision has been entered on the
record. A decision or order of the TSA
decision maker on the interlocutory
appeal does not constitute a final order
of the Administrator for the purposes of
judicial appellate review under 49
U.S.C. 46110.
(b) Interlocutory appeal for cause. If a
party files a written request for an
interlocutory appeal for cause with the
ALJ, or orally requests an interlocutory
appeal for cause, the proceedings are
stayed until the ALJ issues a decision on
the request. If the ALJ grants the request,
the proceedings are stayed until the
TSA decision maker issues a decision
on the interlocutory appeal. The ALJ
must grant an interlocutory appeal for
cause if a party shows that delay of the
appeal would be detrimental to the
public interest or would result in undue
prejudice to any party.
(c) Interlocutory appeals of right. If a
party notifies the ALJ of an interlocutory
appeal of right, the proceedings are
stayed until the TSA decision maker
issues a decision on the interlocutory
appeal. A party may file an
interlocutory appeal, without the
consent of the ALJ, before an initial
decision has been entered in the
following cases:
(1) A ruling or order by the ALJ
barring a person from the proceedings.
(2) Failure of the ALJ to dismiss the
proceedings in accordance with
§ 1503.215.
(3) A ruling or order by the ALJ in
violation of § 1503.607(b).
(4) A ruling or order by the ALJ
regarding public access to a particular
docket or documents.
(d) Procedure. Not later than 10 days
after the ALJ’s decision forming the
basis of an interlocutory appeal of right
or not later than 10 days after the ALJ’s
decision granting an interlocutory
appeal for cause, a party must file a
notice of interlocutory appeal, with
supporting documents, and the party
must serve a copy of the notice and
supporting documents on each party.
Not later than 10 days after service of
the appeal brief, a party must file a reply
brief, if any, and the party must serve
a copy of the reply brief on each party.
The TSA decision maker must render a
decision on the interlocutory appeal, on
the record and as a part of the decision
in the proceedings, within a reasonable
time after receipt of the interlocutory
appeal.
(e) Frivolous appeals. The TSA
decision maker may reject frivolous,
repetitive, or dilatory appeals, and may
issue an order precluding one or more
parties from making further
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36049
interlocutory appeals in a proceeding in
which there have been frivolous,
repetitive, or dilatory interlocutory
appeals.
§ 1503.633
Discovery.
(a) Initiation of discovery. Any party
may initiate discovery described in this
section, without the consent or approval
of the ALJ, at any time after a complaint
has been filed in the proceedings.
(b) Methods of discovery. The
following methods of discovery are
permitted under this section:
depositions on oral examination or
written questions of any person; written
interrogatories directed to a party;
requests for production of documents or
tangible items to any person; and
requests for admission by a party. A
party is not required to file written
discovery requests and responses with
the ALJ or the Enforcement Docket
Clerk. In the event of a discovery
dispute, a party must attach a copy of
these documents in support of a motion
made under this section.
(c) Service on the agency. A party
must serve each discovery request
directed to the agency or any agency
employee on the agency attorney of
record.
(d) Time for response to discovery
requests. Unless otherwise directed by
this subpart, agreed by the parties, or by
order of the ALJ, a party must respond
to a request for discovery, including
filing objections to a request for
discovery, not later than 30 days after
service of the request.
(e) Scope of discovery. Subject to the
limits on discovery set forth in
paragraph (f) of this section, a party may
discover any matter that is not
privileged and that is relevant to the
subject matter of the proceeding. A
party may discover information that
relates to the claim or defense of any
party including the existence,
description, nature, custody, condition,
and location of any document or other
tangible item and the identity and
location of any person having
knowledge of discoverable matter. A
party may discover facts known, or
opinions held, by an expert who any
other party expects to call to testify at
the hearing. A party may not object to
a discovery request on the basis that the
information sought would not be
admissible at the hearing if the
information sought during discovery is
reasonably calculated to lead to the
discovery of admissible evidence.
(f) Limiting discovery. The ALJ must
limit the frequency and extent of
discovery permitted by this section if a
party shows that—
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(1) The information requested is
cumulative or repetitious;
(2) The information requested can be
obtained from another less burdensome
and more convenient source;
(3) The party requesting the
information has had ample opportunity
to obtain the information through other
discovery methods permitted under this
section; or
(4) The method or scope of discovery
requested by the party is unduly
burdensome or expensive.
(g) Disclosure of Sensitive Security
Information (SSI). At the request of a
party, TSA may provide SSI to the party
when, in the sole discretion of TSA,
access to the SSI is necessary for the
party to prepare a response to
allegations contained the complaint.
TSA may provide such information
subject to such restrictions on further
disclosure and such safeguarding
requirements as TSA determines
appropriate.
(h) Confidential orders. A party or
person who has received a discovery
request for information, other than SSI,
that is related to a trade secret,
confidential or sensitive material,
competitive or commercial information,
proprietary data, or information on
research and development, may file a
motion for a confidential order with the
ALJ and must serve a copy of the motion
for a confidential order on each party.
(1) The party or person making the
motion must show that the confidential
order is necessary to protect the
information from disclosure to the
public.
(2) If the ALJ determines that the
requested material is not necessary to
decide the case, the ALJ must preclude
any inquiry into the matter by any party.
(3) If the ALJ determines that the
requested material may be disclosed
during discovery, the ALJ may order
that the material may be discovered and
disclosed under limited conditions or
may be used only under certain terms
and conditions.
(4) If the ALJ determines that the
requested material is necessary to
decide the case and that a confidential
order is warranted, the ALJ must
provide the following:
(i) An opportunity for review of the
document by the parties off the record.
(ii) Procedures for excluding the
information from the record.
(iii) An order that the parties must not
disclose the information in any manner
and the parties must not use the
information in any other proceeding.
(i) Protective orders. A party or a
person who has received a request for
discovery may file a motion for
protective order and must serve a copy
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of the motion for protective order on
each party. The party or person making
the motion must show that the
protective order is necessary to protect
the party or the person from annoyance,
embarrassment, oppression, or undue
burden or expense. As part of the
protective order, the ALJ may do the
following:
(1) Deny the discovery request.
(2) Order that discovery be conducted
only on specified terms and conditions,
including a designation of the time or
place for discovery or a determination of
the method of discovery.
(3) Limit the scope of discovery or
preclude any inquiry into certain
matters during discovery.
(j) Duty to supplement or amend
responses. A party who has responded
to a discovery request has a duty to
supplement or amend the response, as
soon as the information is known, as
follows:
(1) A party must supplement or
amend any response to a question
requesting the identity and location of
any person having knowledge of
discoverable matters.
(2) A party must supplement or
amend any response to a question
requesting the identity of each person
who will be called to testify at the
hearing as an expert witness and the
subject matter and substance of that
witness’ testimony.
(3) A party must supplement or
amend any response that was incorrect
when made or any response that was
correct when made but is no longer
correct, accurate, or complete.
(k) Depositions. The following rules
apply to depositions taken pursuant to
this section:
(1) Form. A deposition must be taken
on the record and reduced to writing.
The person being deposed must sign the
deposition unless the parties agree to
waive the requirement of a signature.
(2) Administration of oaths. Within
the United States, or a territory or
possession subject to the jurisdiction of
the United States, a party must take a
deposition before a person authorized to
administer oaths by the laws of the
United States or authorized by the law
of the place where the examination is
held. Outside the United States, a party
will take a deposition in any manner
allowed by the Federal Rules of Civil
Procedure (28 U.S.C. App.).
(3) Notice of deposition. A party must
serve a notice of deposition, stating the
time and place of the deposition and the
name and address of each person to be
examined, on the person to be deposed,
on the ALJ, on the Enforcement Docket
Clerk, and on each party not later than
7 days before the deposition. A party
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may serve a notice of deposition less
than 7 days before the deposition only
with consent of the ALJ and for good
cause shown. If a subpoena ‘‘duces
tecum’’ is to be served on the person to
be examined, the party must attach a
copy of the subpoena duces tecum that
describes the materials to be produced
at the deposition to the notice of
deposition.
(4) Use of depositions. A party may
use any part or all of a deposition at a
hearing authorized under this subpart
only upon a showing of good cause. The
deposition may be used against any
party who was present or represented at
the deposition or who had reasonable
notice of the deposition.
(l) Interrogatories. A party, the party’s
attorney, or the party’s representative
may sign the party’s responses to
interrogatories. A party must answer
each interrogatory separately and
completely in writing. If a party objects
to an interrogatory, the party must state
the objection and the reasons for the
objection. An opposing party may use
any part or all of a party’s responses to
interrogatories at a hearing authorized
under this subpart to the extent that the
response is relevant, material, and not
repetitious.
(1) A party must not serve more than
30 interrogatories to each other party.
Each subpart of an interrogatory will be
counted as a separate interrogatory.
(2) Before serving additional
interrogatories on a party, a party must
file a motion for leave to serve
additional interrogatories on a party
with the ALJ and must serve a copy on
each party before serving additional
interrogatories on a party. The ALJ may
grant the motion only if the party shows
good cause for the party’s failure to
inquire about the information
previously and that the information
cannot reasonably be obtained using
less burdensome discovery methods or
be obtained from other sources.
(m) Requests for admission. A party
may serve a written request for
admission of the truth of any matter
within the scope of discovery under this
section or the authenticity of any
document described in the request. A
party must set forth each request for
admission separately. A party must
serve copies of documents referenced in
the request for admission unless the
documents have been provided or are
reasonably available for inspection and
copying.
(1) Time. A party’s failure to respond
to a request for admission, in writing
and signed by the attorney or the party,
not later than 30 days after service of the
request, is deemed an admission of the
truth of the statement or statements
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contained in the request for admission.
The ALJ may determine that a failure to
respond to a request for admission is not
deemed an admission of the truth if a
party shows that the failure was due to
circumstances beyond the control of the
party or the party’s attorney.
(2) Response. A party may object to a
request for admission and must state the
reasons for objection. A party may
specifically deny the truth of the matter
or describe the reasons why the party is
unable to truthfully deny or admit the
matter. If a party is unable to deny or
admit the truth of the matter, the party
must show that the party has made
reasonable inquiry into the matter or
that the information known to, or
readily obtainable by, the party is
insufficient to enable the party to admit
or deny the matter. A party may admit
or deny any part of the request for
admission. If the ALJ determines that a
response does not comply with the
requirements of this rule or that the
response is insufficient, the matter is
deemed admitted.
(3) Effect of admission. Any matter
admitted or deemed admitted under this
section is conclusively established for
the purpose of the hearing and appeal.
(n) Motion to compel discovery. A
party may move to compel discovery if
a person refuses to answer a question
during a deposition, a party fails or
refuses to answer an interrogatory, if a
person gives an evasive or incomplete
answer during a deposition or when
responding to an interrogatory, or a
party fails or refuses to produce
documents or tangible items. During a
deposition, the proponent of a question
may complete the deposition or may
adjourn the examination before moving
to compel if a person refuses to answer.
(o) Failure to comply with a discovery
order or order to compel. If a party fails
to comply with a discovery order or an
order to compel, the ALJ, limited to the
extent of the party’s failure to comply
with the discovery order or motion to
compel, may do the following:
(1) Strike that portion of a party’s
pleadings.
(2) Preclude prehearing or discovery
motions by that party.
(3) Preclude admission of that portion
of a party’s evidence at the hearing.
(4) Preclude that portion of the
testimony of that party’s witnesses at
the hearing.
§ 1503.635
Evidence.
(a) General. A party is entitled to
present the party’s case or defense by
oral, documentary, or demonstrative
evidence, to submit rebuttal evidence,
and to conduct any cross-examination
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that may be required for a full and true
disclosure of the facts.
(b) Admissibility. A party may
introduce any oral, documentary, or
demonstrative evidence in support of
the party’s case or defense. The ALJ
must admit any oral, documentary, or
demonstrative evidence introduced by a
party, but must exclude irrelevant,
immaterial, or unduly repetitious
evidence.
(c) Hearsay evidence. Hearsay
evidence is admissible in proceedings
governed by this subpart. The fact that
evidence submitted by a party is hearsay
goes only to the weight of the evidence
and does not affect its admissibility.
§ 1503.637
Standard of proof.
The ALJ may issue an initial decision
or may rule in a party’s favor only if the
decision or ruling is supported by a
preponderance of the evidence
contained in the record. In order to
prevail, the party with the burden of
proof must prove the party’s case or
defense by a preponderance of the
evidence.
§ 1503.639
Burden of proof.
(a) Except in the case of an affirmative
defense, the burden of proof is on the
agency.
(b) Except as otherwise provided by
statute or rule, the proponent of a
motion, request, or order has the burden
of proof.
(c) A party who has asserted an
affirmative defense has the burden of
proving the affirmative defense.
§ 1503.641
Offer of proof.
A party whose evidence has been
excluded by a ruling of the ALJ may
offer the evidence for the record on
appeal.
§ 1503.643
Public disclosure of evidence.
This section applies to information
other than Sensitive Security
Information (SSI). All release of SSI is
governed by § 1503.415 and 49 CFR part
1520.
(a) The ALJ may order that any other
information contained in the record be
withheld from public disclosure. Any
person may object to disclosure of
information in the record by filing a
written motion to withhold specific
information with the ALJ and serving a
copy of the motion on each party. The
party must state the specific grounds for
nondisclosure in the motion.
(b) The ALJ must grant the motion to
withhold information in the record if,
based on the motion and any response
to the motion, the ALJ determines that
disclosure would be detrimental to
transportation safety, disclosure would
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36051
not be in the public interest, or that the
information is not otherwise required to
be made available to the public.
§ 1503.645
Expert or opinion witnesses.
An employee of the agency may not
be called as an expert or opinion
witness, for any party other than TSA,
in any proceeding governed by this
subpart. An employee of a respondent
may not be called by an agency attorney
as an expert or opinion witness for TSA
in any proceeding governed by this
subpart to which the respondent is a
party.
§ 1503.647
Subpoenas.
(a) Request for subpoena. A party may
obtain a subpoena to compel the
attendance of a witness at a deposition
or hearing, or to require the production
of documents or tangible items, from the
ALJ who is assigned to the case, or, if
no ALJ is assigned or the assigned law
judge is unavailable, from the chief ALJ.
The party must complete the subpoena,
stating the title of the action and the
date and time for the witness’
attendance or production of documents
or items. The party who obtained the
subpoena must serve the subpoena on
the witness or the custodian of the
documents or tangible items sought to
be produced.
(b) Motion to quash or modify the
subpoena. A party, or any person upon
whom a subpoena has been served, may
file a motion to quash or modify the
subpoena at or before the time specified
in the subpoena for compliance. The
applicant must describe, in detail, the
basis for the application to quash or
modify the subpoena including, but not
limited to, a statement that the
testimony, document, or tangible
evidence is not relevant to the
proceeding, that the subpoena is not
reasonably tailored to the scope of the
proceeding, or that the subpoena is
unreasonable and oppressive. A motion
to quash or modify the subpoena will
stay the effect of the subpoena pending
a decision by the ALJ on the motion.
(c) Enforcement of subpoena. Upon a
showing that a person has failed or
refused to comply with a subpoena, a
party may apply to the U.S. district
court having jurisdiction to seek judicial
enforcement of the subpoena in
accordance with 49 U.S.C. 46104.
§ 1503.649
Witness fees.
(a) General. Unless otherwise
authorized by the ALJ, the party who
applies for a subpoena to compel the
attendance of a witness at a deposition
or hearing, or the party at whose request
a witness appears at a deposition or
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hearing, must pay the witness fees
described in this section.
(b) Amount. Except for an employee
of the agency who appears at the
direction of the agency, a witness who
appears at a deposition or hearing is
entitled to the same fees and mileage
expenses as are paid to a witness in a
court of the United States in comparable
circumstances.
§ 1503.651
Record.
(a) Exclusive record. The request for
hearing, complaint, answer, transcript of
all testimony in the hearing, all exhibits
received into evidence, and all motions,
responses to motions, applications,
requests, and rulings will constitute the
exclusive record for decision of the
proceedings and the basis for the
issuance of any orders in the
proceeding.
(b) Examination and copying of
record. (1) Generally. Any person
interested in reviewing or obtaining a
copy of a record may do so only by
submitting a Freedom of Information
Act (FOIA) request under 5 U.S.C. 552,
et seq., 49 CFR part 7, and any
applicable DHS regulations. Portions of
the record may be exempt from
disclosure pursuant to FOIA.
(2) Docket Files or Documents Not for
Public Disclosure. (i) Only the following
persons may review docket files or
particular documents that are not for
public disclosure:
(A) Parties to the proceedings.
(B) Their designated representatives.
(C) Persons who have a need to know
as determined by the Administrator.
(ii) Those persons with permission to
review these documents or docket files
may view the materials at the TSA
Headquarters, 601 South 12th Street,
Arlington, Virginia 20598–6002. Persons
with access to these records may have
a copy of the records after payment of
reasonable costs.
hsrobinson on PROD1PC76 with RULES2
§ 1503.653
Argument before the ALJ.
(a) Arguments during the hearing.
During the hearing, the ALJ must give
the parties a reasonable opportunity to
present arguments on the record
supporting or opposing motions,
objections, and rulings if the parties
request an opportunity for argument.
The ALJ may request written arguments
during the hearing if the ALJ finds that
submission of written arguments is
necessary before the ALJ issues the
ruling or order.
(b) Final oral argument. At the
conclusion of the hearing and before the
ALJ issues an initial decision in the
proceedings, the parties are entitled to
submit oral proposed findings of fact
and conclusions of law, exceptions to
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rulings of the ALJ, and supporting
arguments for the findings, conclusions,
or exceptions. At the conclusion of the
hearing, a party may waive final oral
argument.
(c) Posthearing briefs. The ALJ may
request written posthearing briefs before
the ALJ issues an initial decision in the
proceedings. If a party files a written
posthearing brief, the party must
include proposed findings of fact and
conclusions of law, exceptions to
rulings of the ALJ, and supporting
arguments for the findings, conclusions,
or exceptions. The ALJ must give the
parties a reasonable opportunity, not
more than 30 days after receipt of the
transcript, to prepare and submit the
briefs.
§ 1503.655
Initial decision.
(a) Contents. The ALJ may issue an
initial decision after the conclusion of
the hearing or after the submission of
written posthearing briefs, if so ordered.
In each oral or written decision, the ALJ
must include findings of fact and
conclusions of law, and the grounds
supporting those findings and
conclusions, upon all material issues of
fact, the credibility of witnesses, the
applicable law, any exercise of the ALJ’s
discretion, the amount of any civil
penalty found appropriate by the ALJ,
and a discussion of the basis for any
order issued in the proceedings. The
ALJ is not required to provide a written
explanation for rulings on objections,
procedural motions, and other matters
not directly relevant to the substance of
the initial decision. If the ALJ refers to
any previous unreported or unpublished
initial decision, the ALJ must make
copies of that initial decision available
to all parties and the TSA decision
maker.
(b) Written decision. At the
conclusion of the hearing, the ALJ may
issue the initial decision and order
orally on the record. The ALJ must issue
a written initial decision and order not
later than 30 days after the conclusion
of the hearing or submission of the last
posthearing brief. The ALJ must serve a
copy of any written initial decision on
each party.
(c) Order assessing civil penalty.
Unless appealed pursuant to § 1503.657,
the initial decision issued by the ALJ
will be considered an order assessing
civil penalty if the ALJ finds that an
alleged violation occurred and
determines that a civil penalty, in an
amount found appropriate by the ALJ, is
warranted.
(d) Effect of initial decision. An initial
decision of an ALJ is persuasive
authority in any other civil penalty
action, unless appealed and reversed by
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the TSA decision maker or a court of
competent jurisdiction.
§ 1503.657
Appeal from initial decision.
(a) Notice of appeal. Either party may
appeal the initial decision, and any
decision not previously appealed
pursuant to § 1503.631, by filing a
notice of appeal with the Enforcement
Docket Clerk. A party must file the
notice of appeal with USCG ALJ
Docketing Center, ATTN: Enforcement
Docket Clerk, 40 S. Gay Street, Room
412, Baltimore, Maryland 21202–4022.
A party must file the notice of appeal
not later than 10 days after entry of the
oral initial decision on the record or
service of the written initial decision on
the parties and must serve a copy of the
notice of appeal on each party. Upon
filing of a notice of appeal, the
effectiveness of the initial decision is
stayed until a final decision and order
of the TSA decision maker have been
entered on the record.
(b) Issues on appeal. A party may
appeal only the following issues:
(1) Whether each finding of fact is
supported by a preponderance of the
evidence.
(2) Whether each conclusion of law is
made in accordance with applicable
law, precedent, and public policy.
(3) Whether the ALJ committed any
prejudicial errors during the hearing
that support the appeal.
(c) Perfecting an appeal. Unless
otherwise agreed by the parties, a party
must perfect an appeal, not later than 50
days after entry of the oral initial
decision on the record or service of the
written initial decision on the party, by
filing an appeal brief with the
Enforcement Docket Clerk.
(1) Extension of time by agreement of
the parties. The parties may agree to
extend the time for perfecting the appeal
with the consent of the TSA decision
maker. If the TSA decision maker grants
an extension of time to perfect the
appeal, the Enforcement Docket Clerk
will serve a letter confirming the
extension of time on each party.
(2) Written motion for extension. If the
parties do not agree to an extension of
time for perfecting an appeal, a party
desiring an extension of time may file a
written motion for an extension with the
Enforcement Docket Clerk and must
serve a copy of the motion on each
party. The TSA decision maker may
grant an extension if good cause for the
extension is shown in the motion.
(d) Appeal briefs. A party must file
the appeal brief with the Enforcement
Docket Clerk and must serve a copy of
the appeal brief on each party.
(1) In the appeal brief, a party must
set forth, in detail, the party’s specific
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objections to the initial decision or
rulings, the basis for the appeal, the
reasons supporting the appeal, and the
relief requested in the appeal. If, for the
appeal, the party relies on evidence
contained in the record for the appeal,
the party must specifically refer in the
appeal brief to the pertinent evidence
contained in the transcript.
(2) The TSA decision maker may
dismiss an appeal, on the TSA decision
maker’s own initiative or upon motion
of any other party, where a party has
filed a notice of appeal but fails to
perfect the appeal by timely filing an
appeal brief.
(e) Reply brief. Unless otherwise
agreed by the parties, any party may file
a reply brief not later than 35 days after
the appeal brief has been served on that
party. The party filing the reply brief
must serve a copy of the reply brief on
each party. If the party relies on
evidence contained in the record for the
reply, the party must specifically refer
to the pertinent evidence contained in
the transcript in the reply brief.
(1) Extension of time by agreement of
the parties. The parties may agree to
extend the time for filing a reply brief
with the consent of the TSA decision
maker. If the TSA decision maker grants
an extension of time to file the reply
brief, the Enforcement Docket Clerk will
serve a letter confirming the extension
of time on each party.
(2) Written motion for extension. If the
parties do not agree to an extension of
time for filing a reply brief, a party
desiring an extension of time may file a
written motion for an extension and will
serve a copy of the motion on each
party. The TSA decision maker may
grant an extension if good cause for the
extension is shown in the motion.
(f) Other briefs. The TSA decision
maker may allow any person to submit
an amicus curiae brief in an appeal of
an initial decision. A party may not file
more than one appeal brief or reply
brief. A party may petition the TSA
decision maker, in writing, for leave to
file an additional brief and must serve
a copy of the petition on each party. The
party may not file the additional brief
with the petition. The TSA decision
maker may grant leave to file an
additional brief if the party
demonstrates good cause for allowing
additional argument on the appeal. The
TSA decision maker will allow a
reasonable time for the party to file the
additional brief.
(g) Number of copies. A party must
file the original appeal brief or the
original reply brief, and two copies of
the brief, with the Enforcement Docket
Clerk.
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(h) Oral argument. The TSA decision
maker has sole discretion to permit oral
argument on the appeal. On the TSA
decision maker’s own initiative or upon
written motion by any party, the TSA
decision maker may find that oral
argument will contribute substantially
to the development of the issues on
appeal and may grant the parties an
opportunity for oral argument.
(i) Waiver of objections on appeal. If
a party fails to object to any alleged
error regarding the proceedings in an
appeal or a reply brief, the party waives
any objection to the alleged error. The
TSA decision maker is not required to
consider any objection in an appeal
brief or any argument in the reply brief
if a party’s objection is based on
evidence contained in the record and
the party does not specifically refer to
the pertinent evidence from the record
in the brief.
(j) The TSA decision maker’s decision
on appeal. The TSA decision maker will
review the briefs on appeal and the oral
argument, if any, to determine if the ALJ
committed prejudicial error in the
proceedings or that the initial decision
should be affirmed, modified, or
reversed. The TSA decision maker may
affirm, modify, or reverse the initial
decision, make any necessary findings,
or may remand the case for any
proceedings that the TSA decision
maker determines may be necessary.
(1) The TSA decision maker may raise
any issue, on the TSA decision maker’s
own initiative, that is required for
proper disposition of the proceedings.
The TSA decision maker will give the
parties a reasonable opportunity to
submit arguments on the new issues
before making a decision on appeal. If
an issue raised by the TSA decision
maker requires the consideration of
additional testimony or evidence, the
TSA decision maker will remand the
case to the ALJ for further proceedings
and an initial decision related to that
issue. If the TSA decision maker raises
an issue that is solely an issue of law,
or the issue was addressed at the
hearing but was not raised by a party in
the briefs on appeal, the TSA decision
maker need not remand the case to the
ALJ for further proceedings but has the
discretion to do so.
(2) The TSA decision maker will issue
the final decision and order of the
Administrator on appeal in writing and
will serve a copy of the decision and
order on each party. Unless a petition
for review is filed pursuant to
§ 1503.659, a final decision and order of
the Administrator will be considered an
order assessing civil penalty if the TSA
decision maker finds that an alleged
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36053
violation occurred and a civil penalty is
warranted.
(3) A final decision and order of the
Administrator after appeal is binding
precedent in any other civil penalty
action unless appealed and reversed by
a court of competent jurisdiction.
(4) The TSA decision maker will
determine whether the decision and
order of the TSA decision maker, with
the ALJ’s initial decision or order
attached, may be released to the public,
either in whole or in redacted form. In
making this determination, the TSA
decision maker will consider whether
disclosure of any of the information in
the decision and order would be
detrimental to transportation security,
would not be in the public interest, or
should not otherwise be required to be
made available to the public.
§ 1503.659 Petition to reconsider or modify
a final decision and order of the TSA
decision maker on appeal.
(a) General. Any party may petition
the TSA decision maker to reconsider or
modify a final decision and order issued
by the TSA decision maker on appeal
from an initial decision. A party must
file a petition to reconsider or modify
not later than 30 days after service of the
TSA decision maker’s final decision and
order on appeal and must serve a copy
of the petition on each party. The TSA
decision maker will not reconsider or
modify an initial decision and order
issued by an ALJ that has not been
appealed by any party to the TSA
decision maker and filed with the
Enforcement Docket Clerk.
(b) Form and number of copies. A
party must file in writing a petition to
reconsider or modify. The party must
file the original petition with the
Enforcement Docket Clerk and must
serve a copy of the petition on each
party.
(c) Contents. A party must state
briefly and specifically the alleged
errors in the final decision and order on
appeal, the relief sought by the party,
and the grounds that support the
petition to reconsider or modify.
(1) If the petition is based, in whole
or in part, on allegations regarding the
consequences of the TSA decision
maker’s decision, the party must
describe and support those allegations.
(2) If the petition is based, in whole
or in part, on new material not
previously raised in the proceedings,
the party must set forth the new
material and include affidavits of
prospective witnesses and authenticated
documents that would be introduced in
support of the new material. The party
must explain, in detail, why the new
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material was not discovered through
due diligence prior to the hearing.
(d) Repetitious and frivolous petitions.
The TSA decision maker will not
consider repetitious or frivolous
petitions. The TSA decision maker may
summarily dismiss repetitious or
frivolous petitions to reconsider or
modify.
(e) Reply petitions. Any other party
may reply to a petition to reconsider or
modify, not later than 10 days after
service of the petition on that party, by
filing a reply with the Enforcement
Docket Clerk. A party must serve a copy
of the reply on each party.
(f) Effect of filing petition. Unless
otherwise ordered by the TSA decision
maker, filing a petition pursuant to this
section will stay the effective date of the
TSA decision maker’s final decision and
order on appeal.
(g) The TSA decision maker’s decision
on petition. The TSA decision maker
has sole discretion to grant or deny a
petition to reconsider or modify. The
TSA decision maker will grant or deny
a petition to reconsider or modify
within a reasonable time after receipt of
the petition or receipt of the reply
petition, if any. The TSA decision
maker may affirm, modify, or reverse
the final decision and order on appeal,
or may remand the case for any
proceedings that the TSA decision
maker determines may be necessary.
§ 1503.661
Judicial review of a final order.
For violations of a TSA requirement,
a party may petition for review of a final
order of the Administrator only to the
courts of appeals of the United States or
the United States Court of Appeals for
the District of Columbia pursuant to 49
U.S.C. 46110. A party seeking judicial
review of a final order must file a
petition for review not later than 60
days after the final order has been
served on the party.
Subpart H—Judicial Assessment of
Civil Penalties
hsrobinson on PROD1PC76 with RULES2
§ 1503.701
Applicability of this subpart.
(a) Jurisdictional minimums. This
subpart applies to a civil penalty action
under this part in which the total
amount in controversy exceeds the
following amounts.
(b) In general. Except as provided in
paragraph (c) of this section, in the case
of violation of title 49 U.S.C. or 46 U.S.C
chapter 701, a regulation prescribed, or
order issued under any of those
provisions, the amount in controversy
exceeds the following:
(1) $50,000, in the case of violation by
an individual or small business concern,
as defined in section 3 of the Small
Business Act (15 U.S.C. 632).
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18:28 Jul 20, 2009
Jkt 217001
(2) $400,000, in the case of violation
by any other person.
(c) Certain aviation related violations.
In the case of a violation of 49 U.S. C.
chapter 449 (except sections 44902,
44903(d), 44907(a)–(d)(1)(A),
44907(d)(1)(C)–(f), 44908, and 44909), or
a regulation prescribed or order issued
under any of those provisions, the
amount in controversy exceeds the
following:
(1) $50,000, in the case of violation by
an individual (except an airman serving
as an airman), any person not operating
an aircraft for the transportation of
passengers or property for
compensation, or a small business
concern, as defined in section 3 of the
Small Business Act (15 U.S.C. 632).
(2) $400,000, in the case of violation
by a person operating an aircraft for the
transportation of passengers or property
for compensation (except an individual
serving as an airman).
§ 1503.703
Civil penalty letter; referral.
(a) Issuance. In a civil penalty action
in which the amount in controversy
exceeds the amounts set forth in
§ 1503.701, the Administrator will send
a civil penalty letter to the person
charged with a violation of a TSA
requirement.
(b) Contents. The civil penalty letter
will contain a statement of the charges;
the applicable law, rule, regulation, or
order; the amount of civil penalty that
the Administrator will accept in full
settlement of the action or an offer to
compromise the civil penalty.
(c) Response. Not later than 30 days
after receipt of the civil penalty letter,
the person charged with a violation may
present to the agency attorney any
material or information in answer to the
charges, either orally or in writing, that
may explain, mitigate, or deny the
violation or that may show extenuating
circumstances. The Administrator will
consider any material or information
submitted in accordance with this
paragraph (c) to determine whether the
person is subject to a civil penalty or to
determine the amount for which the
Administrator will compromise the
action.
(d) Compromise. If the person charged
with a violation offers to compromise
the civil penalty action for a specific
amount, that person must send payment
in a form and manner acceptable to TSA
for that amount to the agency, made
payable to the Transportation Security
Administration, or make payment
electronically through https://
www.pay.gov. The Chief Counsel or the
Deputy Chief Counsel for Civil
Enforcement may accept the payment or
may refuse and return the payment. If
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Fmt 4701
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the Administrator accepts the offer to
compromise, the agency will send a
letter to the person charged with the
violation stating that the payment is
accepted in full settlement of the civil
penalty action and that the matter is
closed.
(e) Referral for prosecution and
collection. If the parties cannot agree to
compromise the civil penalty action or
the offer to compromise is rejected and
the payment submitted in compromise
is returned, the Administrator may refer
the civil penalty action to the United
States Attorney General, or the delegate
of the Attorney General, to begin
proceedings in a United States district
court, pursuant to the authority in 49
U.S.C. 114 or 46305 to prosecute and
collect the civil penalty.
(f) The Administrator delegates to the
Chief Counsel and the Deputy Chief
Counsel for Enforcement the authority
to carry out any function of the
Administrator described in this
§ 1503.703.
Subpart I—Formal Complaints
§ 1503.801
Formal complaints.
(a) Any person may file a complaint
with the Administrator with respect to
any act or omission by any person in
contravention of 49 U.S.C., subtitle VII,
part A, (except sections 44902,
44903(d), 44907(a)–(d)(1)(A),
44907(d)(1)(C)–(f), 44908, and 44909)
administered by the Administrator, or a
regulation prescribed or order issued
under any of those provisions. This
section does not apply to complaints
against the Administrator or employees
of the TSA acting within the scope of
their employment.
(b) Complaints filed under this
section must—
(1) Be submitted in writing and
identified as a complaint filed for the
purpose of seeking an appropriate order
or other enforcement action;
(2) Be submitted to the U.S.
Department of Homeland Security,
Transportation Security Administration,
by following the instructions to
complete a ‘‘complaint’’ contact form by
following the instructions on the TSA
Web site, currently accessible at https://
www.tsa.gov/contact/index.shtm.
(3) Set forth the name and address, if
known, of each person who is the
subject of the complaint and, with
respect to each person, the specific
provisions of the statute, regulation, or
order that the person filing the
complaint believes were violated;
(4) Contain a concise, but complete,
statement of the facts relied upon to
substantiate each allegation;
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(5) State the name, address, and
telephone number of the person filing
the complaint; and
(6) Be signed by the person filing the
complaint or a duly authorized
representative.
(c) TSA will consider complaints that
do not meet the requirements of
paragraph (b) of this section as reports
under § 1503.1.
(d) TSA will place complaints that
meet the requirements of paragraph (b)
of this section in the docket and will
mail a copy to each person named in the
complaint.
(e) TSA will refer any complaint
against a member of the Armed Forces
of the United States acting in the
performance of official duties to the
Secretary of the Department concerned
in accordance with the procedures set
forth in § 1503.407.
(f) The person named in the
complaint must file an answer within 20
days after service of a copy of the
complaint.
(g) After the complaint has been
answered or after the allotted time in
which to file an answer has expired, the
Administrator, or a designated official,
will determine if there are reasonable
grounds for investigating the complaint.
(h) If the Administrator, or a
designated official, determines that a
complaint does not state facts that
warrant an investigation or action, the
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18:28 Jul 20, 2009
Jkt 217001
Administrator or designated official may
dismiss the complaint without a hearing
and, if so, will provide the reason for
the dismissal, in writing, to the person
who filed the complaint and the
person(s) named in the complaint.
(i) If the Administrator, or a
designated official, determines that
reasonable grounds exist, an informal
investigation may be initiated. Each
person named in the complaint will be
advised which official has been
delegated the responsibility under
§ 1503.203 for conducting the
investigation.
(j) If the investigation substantiates
the allegations set forth in the
complaint, a notice of proposed order
may be issued or other enforcement
action taken in accordance with this
part.
(k) The complaint and other pleadings
and official TSA records relating to the
disposition of the complaint are
maintained in current docket form at:
U.S. Department of Homeland Security,
Transportation Security Administration,
Office of the Chief Counsel, TSA–2,
Complaint Docket, 601 South 12th
Street, Arlington, VA 20598–6002. If
this location changes, TSA will give
notice of the change by publishing a
notice in the Federal Register.
(1) Generally. Any person interested
in reviewing or obtaining a copy of a
PO 00000
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Fmt 4701
Sfmt 4700
36055
record may do so only by submitting a
Freedom of Information Act (FOIA)
request under 5 U.S.C. 552, et seq. and
49 CFR part 7. Portions of the record
may be exempt from disclosure
pursuant to FOIA.
(2) Docket files or documents not for
public disclosure. (i) Only the following
persons may review docket files or
particular documents that are not for
public disclosure:
(A) Parties to the proceedings.
(B) Representatives designated in
writing by a party.
(C) Persons who have a need to know
as determined by the Administrator.
(ii) Those persons with permission to
review these documents or docket files
may view the materials at the Complaint
Docket, TSA Headquarters, Visitor
Center, 601 South 12th Street,
Arlington, Virginia 20598–6002, Attn:
Office of Chief Counsel. If this address
changes, TSA will give notice by
publishing a notice in the Federal
Register. Persons with access to these
records may have a copy of the records
after payment of reasonable costs.
Issued in Arlington, Virginia, on July 10,
2009.
Gale D. Rossides,
Acting Administrator.
[FR Doc. E9–17133 Filed 7–20–09; 8:45 am]
BILLING CODE 9110–05–P
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21JYR2
]]>Agencies
[Federal Register Volume 74, Number 138 (Tuesday, July 21, 2009)]
[Rules and Regulations]
[Pages 36030-36055]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17133]
[[Page 36029]]
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Part IV
Department of Homeland Security
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Transportation Security Administration
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49 CFR Part 1503
Revision of Enforcement Procedures; Final Rule
Federal Register / Vol. 74 , No. 138 / Tuesday, July 21, 2009 / Rules
and Regulations
[[Page 36030]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1503
[Docket No. TSA-2009-0013]
RIN 1652-AA62
Revision of Enforcement Procedures
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule; request for comments.
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SUMMARY: The Transportation Security Administration (TSA) amends its
Investigative and Enforcement Procedures in this final rule to conform
to the Implementing Recommendations of the 9/11 Commission Act of 2007.
The rule establishes procedures by which TSA may issue civil monetary
penalties for violations of any statutory requirement administered by
TSA, including surface transportation requirements and Transportation
Worker Identification Credentials requirements. The rule also clarifies
and reorganizes TSA's investigative and enforcement procedures, and
makes inflation adjustments to the maximum civil monetary penalty
amounts.
DATES: Effective Date: This rule is effective August 20, 2009.
Comment Date: Comments must be received by September 21, 2009.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, to the Federal Docket Management System (FDMS), a
government-wide, electronic docket management system, using any one of
the following methods:
Electronically: You may submit comments through the Federal
eRulemaking portal at https://www.regulations.gov. Follow the online
instructions for submitting comments.
Mail, In Person, or Fax: Address, hand-deliver, or fax your written
comments to the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001; Fax 202-493-2251. The
Department of Transportation (DOT), which maintains and processes TSA's
official regulatory dockets, will scan the submission and post it to
FDMS.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Sarah Tauber, Office of Chief Counsel,
TSA-2, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 20598-6002; telephone (571) 227-3964; facsimile (571)
227-1380; e-mail sarah.tauber@dhs.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites interested persons to participate in this rulemaking by
submitting written comments, data, or views. TSA also invites comments
relating to the economic, environmental, energy, or Federalism impacts
that might result from this rulemaking action. See ADDRESSES above for
information on where to submit comments.
With each comment, please identify the docket number at the
beginning of your comments. TSA encourages commenters to provide their
names and addresses. The most helpful comments reference a specific
portion of the rulemaking, explain the reason for any recommended
change, and include supporting data. The public may submit comments and
material electronically, in person, by mail, or fax as provided under
ADDRESSES, but please submit your comments and material by only one
means. If you submit comments by mail or delivery, submit them in an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you want TSA to acknowledge receipt of comments submitted by
mail, include with your comments a self-addressed, stamped postcard on
which the docket number appears. We will stamp the date on the postcard
and mail it to you.
TSA will file in the public docket all comments received by TSA,
except for comments containing confidential information and sensitive
security information (SSI).\1\ TSA will consider all comments received
on or before the closing date for comments and will consider comments
filed late to the extent practicable. The docket is available for
public inspection before and after the comment closing date.
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\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in the FOR FURTHER INFORMATION CONTACT
section.
TSA will not place comments containing SSI in the public docket and
will handle them in accordance with applicable safeguards and
restrictions on access. TSA will hold documents containing SSI,
confidential business information, or trade secrets in a separate file
to which the public does not have access, and place a note in the
public docket that TSA has received such materials from the commenter.
However, if TSA determines that portions of these comments may be made
publicly available, TSA may include a redacted version of the comment
in the public docket. If TSA receives a request to examine or copy
information that is not in the public docket, TSA will treat it as any
other request under the Freedom of Information Act (FOIA), 5 U.S.C.
552, and the Department of Homeland Security's (DHS') FOIA regulation
found in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review the applicable Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR 19477), or you may visit https://DocketInfo.dot.gov.
You may review TSA's electronic public docket on the Internet at
https://www.regulations.gov. In addition, DOT's Docket Management
Facility provides a physical facility, staff, equipment, and assistance
to the public. To obtain assistance or to review comments in TSA's
public docket, you may visit this facility between 9 a.m. to 5 p.m.,
Monday through Friday, excluding legal holidays, or call (202) 366-
9826. This docket operations facility is located in the West Building
Ground Floor, Room W12-140 at 1200 New Jersey Avenue, SE., Washington,
DC 20590.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at https://www.regulations.gov;
[[Page 36031]]
(2) Accessing the Government Printing Office's Web page at https://www.gpoaccess.gov/fr/; or
(3) Visiting TSA's Security Regulations Web page at https://www.tsa.gov and accessing the link for ``Research Center'' at the top
of the page.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's Web page at https://www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This Document
9/11 Act--Implementing Recommendations of the 9/11 Commission Act of
2007
ALJ--Administrative Law Judge
CPI--Consumer Price Index
FNPCP--Final Notice of Proposed Civil Penalty
FOIA--Freedom of Information Act
NPCP--Notice of Proposed Civil Penalty
OACP--Order Assessing Civil Penalty
SSI--Sensitive Security Information
TWIC--Transportation Worker Identity Credential
USCG--United States Coast Guard
Table of Contents
I. Summary of the Rulemaking
II. Background
A. New Civil Penalty Authority
B. Summary of the Civil Penalty Process
1. Notice of Proposed Civil Penalty
2. Informal Conference
3. Order Assessing a Civil Penalty
4. Final Notice of Proposed Civil Penalty
5. Formal Hearing
6. Appeal From the ALJ Initial Decision
7. Appeal From the TSA Decision Maker's Final Decision and Order
III. Reorganization Summary
IV. Section-by-Section Analysis
A. Subpart B--Scope of Investigative and Enforcement Procedures
1. TSA Requirements (Sec. 1503.101)
2. Terms Used in This Part (Sec. 1503.103)
B. Subpart D--Non-Civil Penalty Enforcement
C. Subpart E--Assessment of Civil Penalties by TSA
1. Maximum Penalty Amounts (Sec. 1503.401)
2. Delegation of Authority (Sec. 1503.403)
3. Injunctions (Sec. 1503.405)
4. Military Personnel (Sec. 1503.407)
5. Service of Documents (Sec. 1503.409)
6. Computation of Time (Sec. 1503.411)
7. Notice of Proposed Civil Penalty (Sec. 1503.413)
8. Request for Portions of the Enforcement Investigative Report
(EIR) (Sec. 1503.415)
9. Final Notice of Proposed Civil Penalty and Order (Sec.
1503.417)
10. Order Assessing Civil Penalty (Sec. 1503.419)
11. Streamlined Civil Penalty Procedures for Certain Security
Violations (Sec. 1503.421)
12. Consent Orders (Sec. 1503.423)
13. Compromise Orders (Sec. 1503.425)
14. Request for a Formal Hearing (Sec. 1503.427)
15. Filing of Documents With the Enforcement Docket Clerk (Sec.
1503.429)
16. Certification of Documents (Sec. 1503.431)
D. Subpart G--Rules of Practice in TSA Civil Penalty Actions
1. Applicability (Sec. 1503.601)
2. Administrative Law Judges (Sec. 1503.607)
3. Complaint (Sec. 1503.609)
4. Consolidation and Separation of Cases (Sec. 1503.613)
5. Extension of Time (Sec. 1503.617)
6. Withdrawal of Complaint or Request for Hearing (Sec.
1503.623)
7. Discovery (Sec. 1503.633)
8. Standard of Proof (Sec. 1503.637)
9. Argument Before the ALJ (Sec. 1503.653)
10. Initial Decision (Sec. 1503.655)
11. Appeal From Initial Decision (Sec. 1503.657)
V. Administrative Procedure Act
VI. Paperwork Reduction Act
VII. Economic Impact Analyses
A. Regulatory Evaluation Summary
B. Executive Order 12866 Assessment
C. Costs and Benefits
D. Regulatory Flexibility Act Assessment
E. International Trade Impact Assessment
F. Unfunded Mandates Assessment
VIII. Other Analyses
A. Executive Order Federalism
B. Environmental Analysis
C. Energy Impact Analysis
List of Subjects in 49 CFR Part 1503
The Amendments
I. Summary of the Rulemaking
In this rule, TSA makes several changes to TSA's enforcement
procedures, codified at 49 CFR part 1503. As described more fully
below, this rule--
Reorganizes and clarifies TSA's enforcement procedures and
make them easier to use;
Applies TSA's enforcement procedures to violations of
surface transportation requirements and of TSA's Transportation Worker
Identification Credential requirements, as provided in sections 1302
and 1304(e) of the Implementing Recommendations of the 9/11 Commission
Act of 2007, Public Law 110-53, 121 Stat. 266, 390, Aug. 3, 2007 (9/11
Act); and
Adjusts for inflation the maximum civil penalty amounts,
in accordance with the Federal Civil Penalty Inflation Adjustment Act
of 1990, Public Law 101-410 (Adjustment Act), 28 U.S.C. 2461 note.
II. Background
This rulemaking implements certain provisions of the 9/11 Act that
expand TSA's civil penalty authority.\2\ This section describes the
relevant 9/11 Act provisions and TSA's enforcement process.
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\2\ Pub. L. 110-53, section 1302(a), 121 Stat. 390 (Aug. 3,
2007).
---------------------------------------------------------------------------
A. New Civil Penalty Authority
Section 1302(a) of the 9/11 Act applies civil penalties provisions
to: (1) Any provision of title 49 U.S.C. administered by TSA, including
violations of any surface transportation requirements; and (2) any
violations of ch. 701 of title 46 U.S.C., which governs transportation
worker identification credentials (TWIC).\3\ TSA may assess a maximum
penalty per case of $50,000 if the violation is committed by an
individual or small business. TSA may assess a maximum penalty amount
per case of $400,000 if the violation is committed by a person other
than an individual or small business.\4\ A Federal court may assess
penalties exceeding these amounts.\5\
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\3\ Pub. L. 110-53, section 1302(a), 121 Stat. 390 (Aug. 3,
2007). TSA exercises this function under delegated authority from
the Secretary.
\4\ 49 U.S.C. 114(v)(3)(D).
\5\ 49 U.S.C. 114(v)(3)(C).
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Prior to imposing a civil penalty, TSA must provide to the person
against whom the penalty is to be imposed: (1) Written notice of the
proposed penalty; and (2) the opportunity to request a hearing on the
proposed penalty, if TSA receives the request not later than 30 days
after the date on which the person receives notice.\6\ Investigations
and proceedings governing such cases must follow the requirements set
forth in ch. 461 of title 49 U.S.C., which govern aviation security
matters.\7\
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\6\ 49 U.S.C. 114(v)(3)(E).
\7\ 49 U.S.C. 114(v)(5).
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The 9/11 Act establishes additional procedural requirements in
cases involving public transportation agencies. Under section 1304(e)
of the 9/11 Act, prior to imposing a civil penalty against a public
transportation agency, TSA is required to give written notice of the
violation and a reasonable opportunity to correct the violation or
propose an alternative means of compliance acceptable to TSA. TSA may
not take legal enforcement action against a public transportation
agency unless TSA has provided such notice and the public
transportation agency fails to correct the violation or propose
[[Page 36032]]
an alternative means of compliance acceptable to TSA within the
timeframe provided in the notice.\8\
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\8\ See Pub. L. 110-53, section 1304(e)(2), 121 Stat. 393.
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Prior to enactment of section 1302 of the 9/11 Act, TSA assessed
administrative civil penalties only for violations of aviation security
related statutes under 49 U.S.C. ch. 449, and 49 U.S.C. 46302 and
46303. TSA's procedures for assessing civil penalties for such
violations are set forth at 49 CFR part 1503. This rule amends part
1503 to expand its application to violations of any statutory
requirement administered by TSA, including surface transportation
requirements and TWIC requirements, in accordance with the provisions
of the 9/11 Act.
B. Summary of the Civil Penalty Process
The following is a general summary of the process TSA currently
uses to assess a civil penalty for violations of the statutes,
regulations, and orders it administers. The rule applies this process,
with certain changes discussed below, to violations of surface
transportation and TWIC requirements, to include: (1) TWIC; \9\ (2)
commercial drivers' licenses with hazardous material endorsements (49
CFR parts 1570 and 1572); and (3) rail transportation security (49 CFR
part 1580).\10\
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\9\ TWIC is a joint program with the United States Coast Guard.
TSA enforces its regulatory program at 49 CFR parts 1570 and 1572,
and the Coast Guard enforces its regulations at 33 CFR parts 101-
106.
\10\ See Rail Transportation Security; final rule, 73 FR 72130
(Nov. 26, 2008).
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1. Notice of Proposed Civil Penalty
TSA initiates a civil penalty action by sending the alleged
violator (the respondent) a Notice of Proposed Civil Penalty (NPCP),
which states the statute, regulation, or order allegedly violated, the
facts TSA believes establish the violation, and the amount of the
penalty TSA proposes to impose for the violation. The NPCP also informs
the respondent that he or she has 30 days from receipt to either: (1)
Pay the penalty; or (2) provide information demonstrating that a
violation did not occur, that the penalty should be lower because of
mitigating circumstances, or that the respondent is unable to pay the
proposed penalty. If the respondent does not pay the penalty, they must
also request an informal conference with TSA counsel; or request a
formal hearing before an Administrative Law Judge (ALJ).
Pursuant to section 1304(e) of the 9/11 Act, TSA will not send an
NPCP to a public transportation agency unless TSA first gives the
public transportation agency written notice of the violation and a
reasonable opportunity to correct the violation, or to propose an
alternative means of compliance acceptable to TSA, and the public
transportation agency fails to do so within the timeframe provided in
the notice.\11\ Reasonableness will depend on the totality of the
circumstances, including the security consequences of the violation.
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\11\ See Pub. L. 110-53, section 1304(e)(2), 121 Stat. 393.
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2. Informal Conference
The informal conference provides the respondent with an opportunity
to discuss the alleged violation informally with TSA counsel and to
present exculpatory evidence. This conference can be held by telephone
or in person. Many TSA enforcement cases settle as a result of
information exchanged or representations made at (or after) the
informal conference.
3. Order Assessing a Civil Penalty
If the respondent elects to pay the penalty, or if the matter
settles (either at the informal conference or before or after the
informal conference), TSA counsel issues an Order Assessing a Civil
Penalty (OACP). The order states the law violated, the facts
establishing the violation, the amount of the penalty, and how and by
when the respondent is to pay the penalty.
4. Final Notice of Proposed Civil Penalty
In the event the respondent does not respond to the NPCP within 30
days, or in the event the respondent and TSA counsel cannot agree on a
penalty amount during settlement discussions, TSA counsel issues a
Final Notice of Proposed Civil Penalty (FNPCP). The FNPCP gives the
respondent 15 days from receipt to: (1) Pay the penalty; (2) reach an
agreed penalty amount with TSA counsel; or (3) request a formal hearing
before an ALJ. Under the current regulations, the FNPCP also states
that if the respondent does not respond to the FNPCP within 15 days, or
if the matter has not settled and the respondent has not requested a
formal hearing within 15 days, TSA counsel will issue an OACP in the
penalty amount proposed by the FNPCP. One of the changes this rule
makes is to have the FNCP automatically convert to an OACP, if within
15 days the respondent has not responded to the FNPCP, settled the
case, or requested a formal hearing.
5. Formal Hearing
A respondent must request a formal hearing in writing within 30
days of receipt of the NPCP, or within 15 days of receipt an FNPCP. The
respondent must send the request for a formal hearing to the
Enforcement Docket Clerk and a copy of the request for a formal hearing
to the TSA counsel.
An Administrative Law Judge (ALJ) conducts the formal hearing. The
procedural rules governing formal hearings are set forth at 49 CFR part
1503, subpart G. Within 20 days of receipt of a timely request for
hearing, TSA counsel will file a Complaint reciting the allegations in
the NPCP or FNPCP, as applicable. The respondent must file a written
Answer to the Complaint within 30 days of receipt.
The matter proceeds to a formal hearing unless the ALJ grants a
motion to dismiss or a motion for a decision (or unless the case
settles). At the formal hearing, both parties have the opportunity to
present witnesses and other evidence. The ALJ will issue an Initial
Decision at the close of a hearing or shortly thereafter.
6. Appeal From the ALJ Initial Decision
Either party may appeal the ALJ Initial Decision to the TSA
Decision Maker. The TSA Decision Maker is the Assistant Secretary of
Homeland Security (Transportation Security Administration) or his or
her designee. The party appealing the decision must file a written
Notice of Appeal with the Enforcement Docketing Center within 10 days
of receipt of the Initial Decision and must also file an appeal brief
with the Docketing Center within 50 days of receipt of the Initial
Decision. Reply briefs may be filed up to 35 days after receipt of the
appeal brief. The address of the Docketing Center is: Docketing Center,
U.S. Coast Guard, 40 S. Gay Street, Room 412, Baltimore, MD 21202-4022,
Attn: Enforcement Docket Clerk.
After receipt of the appeal brief (and any reply brief), the TSA
Decision Maker will render a Final Decision and Order. A party may
request the TSA Decision Maker to reconsider a Final Decision and Order
by filing a Petition for Reconsideration within 30 days of the Final
Decision.
7. Appeal From the TSA Decision Maker's Final Decision and Order
Either party may appeal a Final Decision of the TSA Decision Maker
to an appropriate U.S. Circuit Court of Appeals within 60 days after
the Final Order has been served on the party.
[[Page 36033]]
III. Reorganization Summary
This rule reorganizes part 1503 and clarifies its provisions
without substantive change. TSA intends, in the recodification of these
regulations, to conform to the understood policy, intent, and purpose
of the original regulations, with such amendments and corrections as
will remove ambiguities, contradictions, and other imperfections. The
reorganization is illustrated in the accompanying redistribution table
in Table 1 that follows.
Table 1--Redistribution of 49 CFR Part 1503
----------------------------------------------------------------------------------------------------------------
Former section New section New title
----------------------------------------------------------------------------------------------------------------
1503.1...................... 1503.201....... Reports of violations.
1503.3...................... 1503.203....... Investigations.
1503.5...................... 1503.801....... Formal complaints.
1503.7...................... 1503.205....... Records, documents, and reports.
1503.11..................... 1503.301....... Warning notices and letters of correction.
1503.12..................... 1503.415....... Request for portions of the enforcement investigative report
(EIR).
1503.13..................... 1503.423....... Consent orders.
1503.15..................... 1503.701....... Applicability of this subpart.
1503.703....... Civil penalty letter; referral.
1503.16..................... 1503.401....... Maximum penalty amounts; jurisdiction.
1503.403....... Delegation of authority.
1503.413....... Notice of Proposed Civil Penalty.
1503.417....... Final Notice of Proposed Civil Penalty and Order.
1503.419....... Order Assessing Civil Penalty.
1503.425....... Compromise orders.
1503.427....... Request for a formal hearing.
1503.657(a).... Appeal from initial decision.
1503.21..................... 1503.407....... Military personnel.
1503.25..................... 1503.405....... Injunctions.
1503.29..................... 1503.421....... Streamlined civil penalty procedures for certain security
violations.
1503.419....... Order Assessing Civil Penalty.
1503.201.................... 1503.601....... Applicability.
1503.202.................... 1503.103....... Terms used in this part.
1503.203.................... 1503.603....... Separation of functions.
1503.204.................... 1503.605....... Appearances and rights of parties.
1503.651....... Record.
1503.205.................... 1503.607....... Administrative law judges.
1503.206.................... 1503.619....... Intervention.
1503.207.................... 1503.431....... Certification of documents.
1503.208.................... 1503.609....... Complaint.
1503.209.................... 1503.409....... Service of documents.
1503.429....... Filing of documents with the Enforcement Docket Clerk.
1503.611....... Answer.
1503.210.................... 1503.429....... Filing of documents with the Enforcement Docket Clerk.
1503.211.................... 1503.409....... Service of documents.
1503.212.................... 1503.411....... Computation of time.
1503.213.................... 1503.617....... Extension of time.
1503.214.................... 1503.621....... Amendment of pleadings.
1503.215.................... 1503.623....... Withdrawal of complaint or request for hearing.
1503.216.................... 1503.625....... Waivers.
1503.217.................... 1503.627....... Joint procedural and discovery schedule.
1503.218.................... 1503.629....... Motions.
1503.219.................... 1503.631....... Interlocutory appeals.
1503.220.................... 1503.633....... Discovery.
1503.221.................... 1503.615....... Notice of hearing.
1503.222.................... 1503.635....... Evidence.
1503.223.................... 1503.637....... Standard of proof.
1503.224.................... 1503.639....... Burden of proof.
1503.225.................... 1503.641....... Offer of proof.
1503.226.................... 1503.643....... Public disclosure of evidence.
1503.227.................... 1503.645....... Expert or opinion witnesses.
1503.228.................... 1503.647....... Subpoenas.
1503.229.................... 1503.649....... Witness fees.
1503.230.................... 1503.651....... Record.
1503.231.................... 1503.653....... Argument before the ALJ.
1503.232.................... 1503.655....... Initial decision.
1503.233.................... 1503.655(d).... Effect of initial decision.
1503.657....... Appeal from initial decision.
1503.234.................... 1503.659....... Petition to reconsider or modify a final decision and order of
the TSA decision maker on appeal.
1503.235.................... 1503.661....... Judicial review of a final order.
1503.301.................... 1503.901....... Scope and purpose.
[[Page 36034]]
1503.303.................... 1503.903....... Definitions.
1503.305.................... 1503.401....... Maximum penalty amounts.
----------------------------------------------------------------------------------------------------------------
IV. Section-by-Section Analysis
TSA makes amendments and corrections as will remove ambiguities,
contradictions, and other imperfections in the provisions of part 1503
discussed below. The changes begin with subpart B. Subpart A is
reserved. Sections of the rule that were reorganized without change are
not discussed in this preamble.
A. Subpart B--Scope of Investigative and Enforcement Procedures
1. TSA Requirements (Sec. 1503.101)
For purposes of this part, TSA adopts the term ``TSA requirements''
to refer to the universe of statutory, regulatory, and other legal
requirements, the violation of which could give rise to TSA
enforcement. Accordingly, the revised part 1503 applies to enforcement
actions for violations of any TSA surface transportation requirement
under title 49 U.S.C. and the TWIC requirements TSA has issued under 46
U.S.C. ch. 701.
2. Terms Used in This Part (Sec. 1503.103)
Section 1503.103 removes the definition of ``complainant'' because
it is no longer used in the revised part 1503. The definitions of
``complaint'' and ``order assessing civil penalty'' are removed because
they are defined in the specific sections where they are used. Section
1503.103 adds a definition of ``enforcement investigative report
(EIR)'', which appears in the current part 1503, but is not defined.
This rule amends the definition of ``mail'' by clarifying that it
includes regular U.S. mail service. In addition, the rule deletes
reference to overnight express courier service in the definition of
``mail.'' Overnight express courier service is more appropriately
covered under the current definition of ``personal delivery,'' which
includes ``use of a contract or express messenger service.''
Accordingly, the definition of ``personal delivery'' is amended to
include reference to an overnight express courier service.
The rule amends the definition of ``pleading'' to include not only
a complaint, answer, and amendment to the complaint or answer, but also
any other written submission to the ALJ or a party during the course of
the hearing proceedings.
The rule codifies the statutory definition of ``public
transportation agency'' as a publicly owned operator of public
transportation eligible to receive Federal assistance under 49 U.S.C.
ch. 53.\12\
---------------------------------------------------------------------------
\12\ 9/11 Act at section 1402(5).
---------------------------------------------------------------------------
Under the current part 1503, the term ``respondent'' is defined as
``a person, corporation, or company named in a complaint.'' This rule
amends this definition to be ``the person named in a Notice of Proposed
Civil Penalty, a Final Notice of Proposed Civil Penalty and Order, or a
complaint.'' This promotes clarity in the regulation by permitting the
use of ``respondent'' to refer to the alleged violator at any stage in
the enforcement process.
B. Subpart D--Non-Civil Penalty Enforcement
Subpart D (Warning Notices and Letters of Correction (Sec.
1503.301)) broadens the scope of these provisions making them
applicable to cases involving any TSA requirement. It also codifies the
provisions of section 1304(e) of the 9/11 Act requiring that: (1) TSA
give written notice of a violation and a reasonable opportunity to
correct the violation or propose an alternative means of compliance
before taking legal enforcement action against a public transportation
agency; and (2) TSA not initiate civil enforcement action for
violations of administrative and procedural requirements pertaining to
transportation security grant programs under Public Law 110-53.\13\ In
determining reasonableness under this provision, TSA will consider the
totality of the circumstances.
---------------------------------------------------------------------------
\13\ See Pub. L. 110-53, section 1304(e), 121 Stat. 393.
---------------------------------------------------------------------------
C. Subpart E--Assessment of Civil Penalties by TSA
1. Maximum Civil Penalty Amounts (Sec. 1503.401)
Section 1503.401 updates the maximum civil penalty amounts for
civil penalties assessed by TSA. Congress raised the maximum civil
penalty amounts per violation for certain aviation security statutes.
Homeland Security Act of 2002, Public Law 107-296, section 1602, 116
Stat. 2135 (Nov. 25, 2002). Congress also raised the total civil
penalty amount per case that TSA may assess. Vision 100--Century of
Aviation Reauthorization Act (Vision 100) (Pub. L. 108-176, sec.
503(b), 117 Stat. 2490 (Dec. 12, 2003).
Section 1503.401 also adds reference to the maximum civil penalty
amounts under the 9/11 Act for violations of any statute administered
by TSA. Statutes administered by TSA include both aviation security
statutes and statutes authorizing or directing TSA to impose surface
transportation requirements. See 49 U.S.C. ch. 449, and secs. 46302,
46303, and 46 U.S.C. ch. 701. TSA may impose penalties under these
statutes for violations of any aviation or surface transportation
security requirements, including violations of TSA's TWIC requirements,
whether imposed by an implementing regulation or order.
Paragraph (d) adjusts the applicable maximum penalties for
inflation as described below.
The Federal Civil Penalties Inflation Adjustment Act of 1990,
Public Law 101-410 (Adjustment Act), 28 U.S.C. 2461 note, provides for
the regular evaluation of civil monetary penalties to ensure that they
continue to maintain their deterrent effect and that penalty amounts
due the Federal Government are properly accounted for and collected.
On April 26, 1996, the President signed into law the Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Public Law
104-134. Section 31001 of that Act, also known as the Debt Collection
Improvement Act of 1996 (Improvement Act), amended the Adjustment Act
to provide more effective tools for government-wide collection of
delinquent debt. Section 31001(s)(1) of the Improvement Act added a new
section 7 to the Adjustment Act providing that any increase in a civil
monetary penalty made pursuant to this Act shall apply only to
violations that occur after the date the increase takes effect. The
Improvement Act provides that the adjustments for inflation required by
the Adjustment Act should be made at least every four years.
The amounts of the adjustments are determined according to a
detailed formula specified in the Adjustment Act, incorporating a
``cost-of-living adjustment'' that is defined in section 5(b) of the
Adjustment Act as being the
[[Page 36035]]
percentage (if any) for each civil monetary penalty by which--
(1) The Consumer Price Index for the month of June of the calendar
year preceding the adjustment, exceeds
(2) The Consumer Price Index for the month of June of the calendar
year in which the amount of such civil monetary penalty was last set or
adjusted pursuant to law.
Section 31001(s)(2) of the Improvement Act also provides that the
first adjustment of a civil monetary penalty made pursuant to these
procedures may not exceed 10 percent of the penalty. Congress reenacted
the penalties in 2003. This rule, accordingly, represents the first
adjustment of the civil monetary penalties after the last Congressional
action.
Subpart E of this rule incorporates the provisions previously in
subpart H and establishes new civil penalty maximums based on an
adjustment for inflation for violations of 49 U.S.C. ch. 449 (except
secs. 44902, 44903(d), 44907(a)-(d)(1)(A), 44907(d)(1)(C)-(f), 44908,
and 44909), or 49 U.S.C. 46302 or 46303.
TSA has adjusted maximum penalties as follows:
The CPI increased by 21.63 percent from June 2002 to June 2008.\14\
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\14\ Table 24, Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. City Average, All Items.'' See https://www.bls.gov/cpi/cpid0904.pdf.
---------------------------------------------------------------------------
Based on this increase, the inflation adjusted maximum for the
$10,000 civil penalty amount would be $12,163. However, the $10,000
maximum amount is adjusted to $11,000 because this is the first
adjustment after Congress increased the penalties in 2003. As such, it
is limited to an increase of 10 percent. The inflation adjusted maximum
for the $25,000 civil penalty amount would be $30,408. However, as
adjusted the amount is $27,500, 10 percent above the amount as
increased by Congress in 2003. Upon the effective date of today's rule,
these new civil penalty maximums become effective. The $10,000 maximum
for violations of other provisions of title 49 and title 46 U.S.C. ch.
701 is not being adjusted at this time because it is a newly enacted
penalty amount.
2. Delegation of Authority (Sec. 1503.403)
Section 1503.403 makes minor revisions to former Sec. 1503.16(c),
delegating to TSA's Chief Counsel and the Deputy Chief Counsel for
Enforcement the authority to prosecute civil enforcement cases and
refer them to the Attorney General, as necessary. Section 1503.403
changes the title of the Deputy Chief Counsel and makes explicit the
authority of the Chief Counsel or Deputy Chief Counsel for Enforcement
to negotiate lower civil penalties than those that TSA initially
proposed.
3. Injunctions (Sec. 1503.405)
Section 1503.405 incorporates the provisions regarding the
institution of injunctions currently codified in Sec. 1503.25, and
expands their scope to cover any violation of title 49 U.S.C.
administered by TSA or TSA's TWIC requirements under 46 U.S.C. ch. 701.
4. Military Personnel (Sec. 1503.407)
The current regulation provides that the Chief Counsel or Deputy
Chief Counsel for Civil Enforcement will refer such cases to the
appropriate military authority for such disciplinary action, as that
authority considers appropriate. Section 1503.407 of this rule expands
the delegation to authorize any designated agency official to make such
referrals and expands the scope of the section to encompass violations
of any TSA requirement.
5. Service of Documents (Sec. 1503.409)
Section 1503.409 amends current Sec. 1503.211, which governs
service of documents in the context of a formal hearing. Section
1503.409 governs the service of documents at all stages of the civil
enforcement process, beginning with the service of a notice of proposed
civil penalty. In addition, this section, as amended, permits service
to be made by electronic mail or facsimile transmission, if consented
to in writing by the person served. Even in such cases, however,
service by electronic mail or facsimile transmission will not be
effective if the party making service obtained credible information
indicating that the attempted service did not reach the person to be
served. In addition, for pleadings served during the formal hearing
process, the party making service must file with the Enforcement Docket
Clerk a copy of the opposing party's consent to receive service by
electronic mail or facsimile transmission. The date of service by
electronic mail or facsimile transmission is the date of transmission.
See F.R. Civ. P. 5(b)(2)(E).
6. Computation of Time (Sec. 1503.411)
Section 1503.411 amends current Sec. 1503.212, which governs the
computation of time for purposes of deadlines applicable in the context
of the formal hearing process. Section 1503.411 expands the application
of this section to time requirements at any stage of the civil
enforcement process.
7. Notice of Proposed Civil Penalty (Sec. 1503.413)
When TSA determines that a person has violated a TSA requirement
and that a civil penalty is warranted, the agency issues a Notice of
Proposed Civil Penalty to the alleged violator. Section 1503.413
revises without significant change the provisions governing the
issuance of Notices of Proposed Civil Penalty currently codified at
Sec. 1503.16(d) and updates the address for TSA's Enforcement Docket
Clerk, which now is located at the United States Coast Guard (USCG) ALJ
Docketing Center, 40 S. Gay Street, Room 412, Baltimore, Maryland
21202-4022.
8. Request for Portions of the Enforcement Investigative Report (EIR)
(Sec. 1503.415)
Section 1503.415 revises slightly the provisions currently codified
at Sec. 1503.12 governing the release of limited investigative
materials to the recipient of a Notice of Proposed Civil Penalty. When
TSA issues a Notice of Proposed Civil Penalty, the respondent may
request portions of the relevant investigative report that are not
privileged (e.g., under the deliberative process, attorney work-
product, or attorney-client privileges). This information may contain
Sensitive Security Information (SSI), which is restricted from public
disclosure under 49 CFR part 1520. TSA will provide this information to
the respondent for the sole purpose of preparing a response to the
allegations contained in the Notice of Proposed Civil Penalty. The
individual receiving SSI under this provision must comply with 49 CFR
part 1520, which permits TSA to require a background check and imposes
other conditions, as well as the requirements to manage the information
in accordance with part 1520. Any violation of 49 CFR part 1520 by the
respondent would be a violation of TSA requirements and subject to
additional enforcement action.
9. Final Notice of Proposed Civil Penalty and Order (Sec. 1503.417)
Section 1503.417 makes one significant change in the provisions
governing the issuance of Final Notices of Proposed Civil Penalty
currently codified at Sec. 1503.16(e). The change is intended to
reduce the time necessary to resolve civil penalty cases.
Under the current regulation, TSA issues a Final Notice of Proposed
Civil Penalty when: (1) The alleged violator fails to respond to the
Notice of Proposed Civil Penalty within 30 days after receipt of that
notice; or (2) the
[[Page 36036]]
parties have engaged in settlement discussions but have not reached a
settlement. After the Final Notice of Proposed Civil Penalty is issued,
the respondent has 15 days from receipt to: (1) Pay the proposed civil
penalty; (2) negotiate and pay a lesser amount; or (3) request a formal
hearing. If the respondent pays the penalty or fails to exercise the
other two options, TSA issues an Order Assessing Civil Penalty, which
ends the enforcement process and makes the civil penalty final.
Amended Sec. 1503.417, in conjunction with amended Sec.
1503.419(b), shortens this process by making the Final Notice of
Proposed Civil Penalty automatically convert to an Order Assessing
Civil Penalty if one of the events in Sec. 503.419(b) has occurred,
eliminating the need for TSA to issue a separate Order Assessing Civil
Penalty. This change will not affect the procedural rights of the
alleged violator; rather, it will streamline the process and allow
quicker resolution of cases, once a respondent has exercised, or failed
to exercise, those procedural rights that are available. TSA currently
uses this streamlined process for routine enforcement actions against
individuals who bring prohibited items through airport screening
checkpoints. Thus, the revision to Sec. 1503.417 primarily affects
enforcement actions against entities, such as airports and air
carriers. Under Sec. 1503.417, the Final Notice of Proposed Civil
Penalty is now called a Final Notice of Civil Penalty and Order
(``Final Notice and Order'').
10. Order Assessing Civil Penalty (Sec. 1503.419)
Section 1503.419 revises the provisions governing the issuance of
Orders Assessing Civil Penalty currently codified at Sec. 1503.16(b),
with the change discussed above regarding the automatic conversion of a
Final Notice and Order to an Order Assessing Civil Penalty. TSA has
moved the provisions of current Sec. 1503.16(b) regarding the status
of ALJ decisions as orders assessing civil penalty to Sec.
1503.655(c).
11. Streamlined Civil Penalty Procedures for Certain Security
Violations (Sec. 1503.421)
Section 1503.421 reorganizes and makes minor revisions to the
provisions of Sec. 1503.29 of the current regulation, which provide
for the issuance of Notices of Violation for certain types of common
security violations at a passenger screening or baggage screening
checkpoint. TSA issues Notices of Violation when an individual presents
a weapon, explosive, or incendiary for screening at a passenger
screening checkpoint or in checked baggage, and where the amount of the
proposed civil penalty is less than $5,000. A Notice of Violation
contains a statement of the charges, the amount of the proposed civil
penalty, and an offer to settle the matter for a lesser specified
penalty amount. Under the current regulation, the recipient of a Notice
of Violation has the option to request an Informal Conference with an
agency attorney. Under this rule, an Informal Conference with an agency
attorney or another agency official, as determined by TSA, is
available. This change allows TSA to increase its capacity to provide
Informal Conferences and therefore resolve cases more quickly.
12. Consent Orders (Sec. 1503.423)
Under Sec. 1503.13 of the current regulation, a consent order must
contain: (1) An admission of all jurisdictional facts; (2) an express
waiver of the right to further procedural steps and of all rights to
judicial review; and (3) an incorporation of the notice of proposed
civil penalty by reference and an acknowledgment that the notice may be
used to construe the terms of the order.
Section 1503.423 revises slightly the provisions of this section by
eliminating the reference to the notice of proposed civil penalty,
thereby making the consent order a self-contained document. The consent
order includes: (1) An admission of all jurisdictional facts; (2) an
admission of agreed-upon allegations; (3) a statement of the law
violated; (4) a finding of violation; and (5) an express waiver of the
right to further procedural steps and of all rights to administrative
and judicial review.
13. Compromise Orders (Sec. 1503.425)
Section 1503.425 incorporates and makes slight revisions to the
provisions of Sec. 1503.16(l) of the current regulation. Section
1503.425 provides explicitly that a compromise order will include all
jurisdictional facts and allegations.
14. Request for a Formal Hearing (Sec. 1503.427)
Section 1503.427 revises slightly the provisions of Sec.
1503.16(f) of the current regulations to make clear that the filing of
a request for a formal hearing does not guarantee a person an
opportunity to appear before an ALJ in person. The ALJ may issue an
initial decision or dispositive order resolving the case prior to the
commencement of the formal hearing.
15. Filing of Documents With the Enforcement Docket Clerk (Sec.
1503.429)
Section 1503.429 of this rule revises slightly the provisions of
Sec. 1503.210 to add provisions permitting the filing of documents
with the Enforcement Docket Clerk by electronic mail or facsimile
transmission. The amended rule also updates the address of the
Enforcement Docket Clerk, which now is located at the United States
Coast Guard (USCG) ALJ Docketing Center, 40 S. Gay Street, Room 412,
Baltimore, Maryland 21202-4022. If this address changes in the future,
TSA will announce the change through a notice in the Federal Register.
16. Certification of Documents (Sec. 1503.431)
Section 1503.431 of this rule revises slightly the provisions of
Sec. 1503.207 of the current regulation governing the certification of
documents filed with the Enforcement Docket clerk by adding several
items to the certification. One of the items to which one must certify
under the current regulation at Sec. 1503.207(b)(1) is that the
document is ``[w]arranted by existing law or that a good faith argument
exists for extension, modification, or reversal of existing law.'' This
rule requires that a good faith and non-frivolous argument exist for
extension, modification, or reversal of existing law. This rule also
adds that a certification includes that the document is supported by
evidence, and any denials of factual contentions are warranted on the
evidence. These issues are implicit in the requirements governing
certification of documents under the current regulation; this rule
makes them explicit.
D. Subpart G--Rules of Practice in TSA Civil Penalty Actions
1. Applicability (Sec. 1503.601)
Section 1503.601 of this rule revises the provisions of Sec.
1503.201 of the current regulation, regarding the applicability of
TSA's formal hearing procedures. First, in accordance with the 9/11
Act, paragraph (a) expands the applicability of the formal hearing
procedures to cases involving violations of any statutory requirement
administered by TSA, including surface transportation requirements and
TWIC requirements.
Second, paragraph (b) of this rule makes clear that the formal
hearing procedures cannot be used to conduct an adjudication of the
validity of any TSA rule or other requirement under the U.S.
Constitution, the Administrative Procedure Act, or any other law. Put
differently, a person may not use a
[[Page 36037]]
formal hearing under subpart G to challenge the legal basis of a TSA
rule or other requirement, the violation of which gave rise to the
issuance of a civil penalty. The purpose of the formal hearing is to
adjudicate whether a violation occurred and whether the civil penalty
is appropriate. See Appeal of Rendon, 2004 DOT Av. LEXIS 1287, at *3,
(ALJ lacks authority to determine whether a TSA regulation was
unconstitutional) aff'd sub nom. Rendon v. Transportation Security
Admin., 424 F.3d 475 (6th Cir. 2005).
Third, paragraph (d) of this rule adds a provision clarifying that
the consolidation of two or more cases that individually are below the
Federal district court jurisdictional threshold does not cause the
consolidated action to exceed that threshold and thereby fall within
the exclusive jurisdiction of the Federal district court. The issue of
consolidation of cases is addressed further in Sec. 1503.613.
2. Administrative Law Judges (Sec. 1503.607)
Section 1503.607 of this rule revises the provisions of Sec.
1503.205 of the current rule, with the following changes. First,
paragraph (a) makes explicit the following implicit powers that an ALJ
holds under the current regulation: (1) To issue scheduling orders and
other appropriate orders regarding discovery or other matters that come
before him or her; (2) to hold conferences to settle or to simplify the
issues on his or her own motion; (3) to strike unsigned documents
unless omission of the signature is corrected promptly after being
called to the attention of the attorney or party; and (4) to order
payment of witness fees.
Second, paragraph (b) of this rule adds an express limitation on an
ALJ's powers, consistent with current law. Specifically, the amended
rule provides that an ALJ is not authorized to decide issues involving
the validity of a TSA regulation, order, or other requirement under the
U.S. Constitution, the Administrative Procedure Act, or other law. See
Appeal of Rendon, 2004 DOT Av. LEXIS 1287, at *3, (ALJ lacks authority
to determine whether a TSA regulation was unconstitutional) aff'd sub
nom. Rendon v. Transportation Security Admin., 424 F.3d 475 (6th Cir.
2005). Nor may the ALJ adopt or follow a standard of proof or procedure
contrary to that set forth in TSA's formal hearing procedures.
3. Complaint (Sec. 1503.609)
Section 1503.609 of this rule revises slightly the provisions of
Sec. 1503.208 of the current regulation. First, Sec. 1503.609 changes
from 20 to 30 the number of days within which TSA has to file a
complaint after a respondent requests a formal hearing. A 30-day period
is consistent with the length of most of the other response periods
allowed under TSA's enforcement procedures.
Second, Sec. 1503.609 omits provisions on the manner of service of
the complaint, because service of all documents is addressed in Sec.
1503.409.
4. Consolidation and Separation of Cases (Sec. 1503.613)
This rule adds a new provision governing the consolidation and
separation of cases. In addition to clarifying the process for
consolidation and separation of cases, Sec. 1503.613 makes clear that
consolidation of two or more actions that individually involve amounts
in controversy below the jurisdictional maximum of the administrative
court will not cause the resulting action to exceed that jurisdictional
maximum and thereby come under the exclusive jurisdiction of the
Federal district courts, as specified in 49 U.S.C. 46301(d)(4)(A).
5. Extension of Time (Sec. 1503.617)
Section 1503.617 of this rule revises slightly the provisions of
Sec. 1503.213 of the current rule by adding a new provision
specifically governing requests for continuances of a hearing.
Paragraph (c) provides that either party may request a continuance of
the date of a hearing, for good cause shown, no later than seven days
before the date of the hearing. Good cause does not include a
scheduling conflict involving the parties or their attorneys which by
due diligence could have been foreseen. This new provision is intended
to establish certainty and predictability for the parties as they
prepare for a formal hearing and discourage undue delay in the
proceedings.
6. Withdrawal of Complaint or Request for Hearing (Sec. 1503.623)
Section 1503.623 of this rule revises slightly the provision of
Sec. 1503.215 of the current regulation, which permits an agency
attorney to withdraw a complaint or a respondent to withdraw a request
for a hearing without the consent of the ALJ, at any time before or
during a hearing. The rule now permits the ALJ to dismiss the
proceedings without prejudice if the withdrawing party shows good cause
for dismissal without prejudice. The current regulation requires
dismissal with prejudice in all cases. This change is intended to leave
open the possibility that the withdrawing party may have a bona fide
reason for withdrawing and should not be automatically precluded from
refiling. In addition, the amended rule permits a party to withdraw a
request for hearing without prejudice at any time before a complaint
has been filed. This is intended to address situations where
respondents mistakenly request a hearing when they intended to ask for
an informal conference or another procedural option.
7. Discovery (Sec. 1503.633)
Section 1503.633 of this rule incorporates the provisions in Sec.
1503.220 of the current regulation and adds a new provision at Sec.
1503.633(g) clarifying a party's access to Sensitive Security
Information through discovery. Specifically, at the request of a party,
TSA may provide SSI to the party when, in the sole discretion of TSA,
access to the SSI is necessary for the party to prepare a response to
allegations contained in the complaint. TSA may provide such
information, subject to such restrictions on further disclosure and
such safeguarding requirements as TSA determines appropriate. This new
provision largely reiterates a similar provision in 49 CFR 1520.15(d)
of TSA's regulation governing Sensitive Security Information. TSA
repeats it here for clarity.
8. Standard of Proof (Sec. 1503.637)
Section 1503.637 of this rule amends the provisions of Sec.
1503.223 of the current regulation regarding the standard of proof in a
formal hearing. The current regulation states that a party must prove
its case or defense by ``a preponderance of reliable, probative, and
substantial evidence.'' This statement of the standard may be confusing
because it refers to ``substantial evidence.'' The ``substantial
evidence'' standard is a standard of judicial review applicable to an
agency's finding of fact. See American Textile Mfrs. Inst. v. Donovan,
452 U.S. 490, 522 (1981). Courts have defined ``substantial evidence''
as ``such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'' Id. Moreover, courts have
consistently held that substantial evidence ``requires more than a
scintilla but less than a preponderance.'' Id. Thus, the substantial
evidence standard and the preponderance standard differ. By using the
term ``substantial evidence'' in the description of the preponderance
standard, Sec. 1503.223 of the current regulation appears to introduce
confusion about the appropriate standard of proof. To eliminate any
confusion, TSA has restated the standard of proof simply as
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proof of a party's case or defense by a preponderance of the evidence.
Preponderance of the evidence means proof by information that, compared
with information opposing it, leads to the conclusion that the fact at
issue is more probably true than not.
9. Argument Before the ALJ (Sec. 1503.653)
Section 1503.653 of this rule revises slightly the provisions in
Sec. 1503.231 of the current regulation. Current Sec. 1503.231(a)
states that the ALJ may request written arguments during the hearing if
he or she finds that submission of written arguments would be
``reasonable.'' This rule changes this standard by providing that the
ALJ may request written arguments during the hearing if written
argument is ``necessary to issue the ruling or order to which the
argument pertains.'' The purpose of this change is simply to clarify to
the parties and the ALJ what constitutes a reasonable ground to request
written arguments.
10. Initial Decision (Sec. 1503.655)
Section 1503.655 of this rule regarding the initial decision of the
ALJ revises slightly the provision of Sec. 1503.232 of the current
regulation. Paragraph (a) makes a conforming change by clarifying that
the ALJ's issuance of an initial decision may follow the party's
submission of written posthearing briefs.
Paragraph (b) changes the requirement as to when an initial
decision must be issued and whether it must be written. Under the
current regulation, the ALJ must issue the initial decision and order
orally on the record at the conclusion of the hearing, unless the ALJ
finds that issuing a written initial decision is reasonable. In such
cases the ALJ must issue a written initial decision not later than 30
days after the conclusion of the hearing or submission of the last
posthearing brief. This rule changes this practice by making the
issuance of a written initial decision mandatory in all cases.
Specifically, paragraph (b) provides that, after the conclusion of the
hearing, the ALJ may issue the initial decision and order orally on the
record. The ALJ must issue a written initial decision and order not
later than 30 days after the conclusion of the hearing or submission of
the last post-hearing brief. The ALJ must serve a copy of any written
initial decision on each party.
TSA has made this change to better document ALJ decisions and
preserve guidance for future enforcement proceedings.
Paragraph (d) revises the provision in Sec. 1503.233(j)(3) of the
current regulation regarding the precedential value of ALJ rulings and
initial decisions. That section now states that any issue, finding or
conclusion, order, ruling, or initial decision of an ALJ that has not
been appealed to the TSA decision maker is not precedent in any other
civil penalty action. While this is correct in that such decisions are
not binding in other civil penalty actions, the language of this
provision appeared to preclude reliance on such prior decisions as
instructive or persuasive. In the interest of promoting predictability
and consistency in enforcement, it is appropriate that ALJ initial
decisions be recognized as persuasive authority in subsequent civil
penalty actions. Consequently, paragraph (d) revises the current
regulation by providing that an initial decision of an ALJ may be
considered as persuasive authority in any other civil penalty action,
unless appealed and reversed by the TSA decision maker or a court of
competent jurisdiction.
11. Appeal From Initial Decision (Sec. 1503.657)
Section 1503.657 of this rule revises the reference in paragraph
(b) to the preponderance-of-the-evidence standard of proof, as
discussed previously.
V. Administrative Procedure Act
The Administrative Procedure Act (APA) requires TSA to provide
public notice and seek public comment on substantive regulations. 5
U.S.C. 553. The APA, however, excludes certain types of regulations and
permits exceptions for other types of regulations from this public
notice and comment requirement. TSA issues this rule without providing
the opportunity for prior notice and comment for the reasons described
below. TSA is requesting, however, and will consider, public comments
submitted during the public comment period as described in the
``Comments Invited'' section.
Reorganization and clarification of 49 CFR part 1503. The
Administrative Procedure Act (APA) exempts from the prior notice and
opportunity for comment requirements ``rules of agency organization,
procedure or practice.'' 5 U.S.C. 553(b)(A). The reorganization and
clarification of part 1503 makes changes such as making it explicit
that an ALJ can issue scheduling orders or hold conferences changing
from 20 to 30 the number of days within which TSA must file a complaint
after a respondent requests a formal hearing. Accordingly, to the
extent that this rule adopts rules of agency organization, procedure or
practice, those portions of the rule are excepted from the notice-and-
comment requirements under 5 U.S.C. 553(b)(A).
Surface Mode Administrative Penalties. This portion of the rule
would codify provisions of the 9/11 Act that bring surface mode
violations within the scope of TSA's civil penalty authority. Sections
1302 and 1304(e) of the 9/11 Act consist of specific directions to TSA
for assessing civil penalties for surface transportation and
Transportation Worker Identification Credential violations. Prior to
enactment of the 9/11 Act, TSA could assess civil penalties primarily
for violations of ch. 449 of title 49 U.S.C., which relates to
aviation. Accordingly, this rule would make TSA's current civil penalty
enforcement procedures at 49 CFR part 1503, which now only apply to
violations of ch. 449 of title 49 U.S.C. (aviation), applicable to the
additional types of violations added by the 9/11 Act, such as
violations of surface transportation requirements. As an application of
the existing procedures to a new substantive area of regulation, the
rule remains a procedural rule that may be excepted from notice and
comment under 5 U.S.C. 553(a)(2). Advance notice-and-comment, moreover,
is unnecessary and would not serve the public interest under 5 U.S.C.
553(b)(3)(B) because these rules already apply to all other civil
penalties before TSA.
Civil Monetary Penalty Adjustment. This rule makes inflation
adjustments to the maximum civil penalty amounts in accordance with the
Federal Civil Penalty Inflation Adjustment Act of 1990, 28 U.S.C. 2461
note. TSA has no discretion over the amounts of these increases. The
Adjustment Act specifies an arithmetic calculation of the inflation
adjustment. This rule is a nond
