Revision of Enforcement Procedures, 58331-58334 [2010-23985]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Transportation Security Administration

[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58331-58334]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23985]


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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.

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SUMMARY: The Transportation Security Administration (TSA) issues this 
final rule regarding TSA's investigative and enforcement procedures. 
TSA makes several minor changes to the final rule TSA issued on July 
21, 2009. TSA extends the time for parties to reply to a petition for 
reconsideration or modification of a final decision and order of the 
TSA decision maker on appeal from 10 days after service to 30 days 
after service. Similarly, TSA extends the time for parties to reply to 
a motion from 10 to 30 days after service. Finally, TSA corrects an 
incorrect section reference.

DATES: Effective September 24, 2010.

FOR FURTHER INFORMATION CONTACT: Emily Su, Office of Chief Counsel, 
TSA-2, Transportation Security Administration, 601 South 12th Street, 
Arlington, VA 20598-6002; telephone (571) 227-2305; facsimile (571) 
227-1380; e-mail emily.su@dhs.gov.

SUPPLEMENTARY INFORMATION:

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;
    (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.

Good Cause for Immediate Effective Date

    This rule will be effective upon publication in the Federal 
Register. The Administrative Procedure Act, 5 U.S.C. 553, allows an 
agency, upon finding good cause, to make a rule effective immediately. 
There is good cause for making this final rule effective immediately. A 
final rule, published on July 21, 2009, is already in effect. 74 FR 
36030. There is no need to provide advance notice that this final rule 
will become effective because this final rule is substantively the same 
as the July 21, 2009, final rule; the only changes in this final rule 
expand the period of time in which a party may respond to motions and 
final decision from 10 to 30 days.

Summary of the Rulemaking

    On July 21, 2009, TSA published a final rule in the Federal 
Register (74 FR 36030) reorganizing and amending its Investigative and 
Enforcement Procedures. When TSA published the rule, TSA invited public 
comments on the rule until September 21, 2009. TSA received one letter 
to the public docket that raised a number of comments. This final rule 
responds to the comments and makes one minor procedural change and 
corrects a section reference, discussed below.

Response to Comments

    Informal Conferences: The commenter stated that permitting an 
Informal Conference with an agency attorney or another agency official, 
as Sec.  1503.421 provides, is beneficial for expedited resolution of 
cases. However, the commenter cautioned that agency personnel 
authorized to conduct such informal conferences must understand the TSA 
regulations and their intent and expressed the view that sometimes they 
do not.
    TSA trains its attorneys and other agency officials so that they 
are well versed in any regulations at issue in an informal conference. 
TSA equips its attorneys and agency officials with proper knowledge and 
skills to address any relevant concerns at informal conference.
    Enforcement of ``TSA Requirements'': Another comment recommended 
that TSA amend the regulation to make it clear that individuals may 
only be charged with violations of regulations or agency orders as to 
which ``proper notice has been given pursuant to the Administrative 
Procedure Act.'' The commenter stated that, if TSA seeks to hold 
individuals responsible through the enforcement process for violating 
non-regulatory ``TSA requirements'' such as agency orders, Subpart G 
should be amended to make clear that Sec.  1503.607 does not preclude 
the Administrative Law Judge (ALJ) from making a full factual record as 
to whether the ``TSA requirement'' at issue was properly applicable to 
the individual charged, including whether the individual charged 
received legally sufficient actual or constructive notice of the 
binding nature of the TSA requirement.
    TSA agrees that persons must have notice of a requirement before 
TSA can enforce it. In the case of violation of a statutory provision, 
the provision's inclusion in the public laws of the United States 
establishes notice. In the case of a regulation published in the 
Federal Register, filing the document with the Office of the Federal 
Register establishes notice. In the case of another enforceable 
requirement, such as an agency order, the person charged must have had 
adequate notice of the requirement; an ALJ proceeding could include 
resolution of this issue.
    Warning Notices, Letters of Correction: Another comment focused on 
language in Sec.  1503.301 providing that, if TSA determines that an 
alleged violation does not require assessment of a civil penalty, an 
appropriate official may take administrative action, such as warning 
notices and letters of correction, in disposition of the case. The rule 
provides: ``The issuance of a Warning Notice or Letter of Correction is 
not subject to appeal under this part.'' The commenter expressed the 
following objections to the absence of an appeal process for Warning 
Notices:
    1. TSA has made mistakes in interpreting its rules, resulting in 
the incorrect adjudication of matters under investigation, leading to 
TSA issuing Warning Notices to innocent parties.
    2. Improperly issued Warning Notices can result in future negative 
consequences, such as increased civil penalties, if the recipient of 
the Warning Notice is the subject of future enforcement actions. The 
commenter referenced the language of Subpart E--

[[Page 58332]]

Assessment of Civil Penalties by TSA, Sec.  1503.425, Compromise 
Orders, (b)(5) to support the position that an improperly-issued 
Warning Notice may have negative consequences. Specifically, the 
commenter referenced the following statement: ``A compromise order 
contains the following: (5) A statement that the compromise order will 
not be used as evidence of a prior violation in any subsequent civil 
penalty proceeding.'' The commenter suggested that, if TSA does not 
allow formal or informal appeals of Warning Notices, at a minimum TSA 
should incorporate similar language declaring that such Warning Notices 
will not be used as evidence of a prior violation in any subsequent 
civil proceeding.
    3. The inability to seek redress of an improperly issued Warning 
Notice presents future risk to other innocent individuals; TSA errors 
may lead to similar actions against other individuals who may be 
accused, erroneously, of the same type of alleged violation.
    TSA believes that the Warning Notice process is adequate to address 
these concerns. A Warning Notice does not constitute a legal finding of 
a violation; therefore, no formal appeal process is required. TSA 
generally affords persons the opportunity to respond to an 
investigation before TSA takes enforcement action, including the 
issuance of a Warning Notice. The most efficient and effective means 
for resolving allegations of noncompliance is for the person to respond 
to TSA inquiries promptly and thoroughly.
    Penalties Against Individuals: The commenter acknowledged that TSA 
has the statutory authority to raise the maximum civil penalties 
assessed against individuals, but objected to TSA's doing so now in 
view of the recession, high unemployment rates, and stagnant economic 
growth. The commenter added that airline workers, including pilots, 
have suffered significant wage reductions. The commenter, a trade 
association that represents airline workers, expressed its view that 
airline workers are more likely to be the subject of penalties than 
other individuals because of the amount of time they spend at airports 
and transiting checkpoints; these activities might lead to potential 
charges of a violation of TSA regulations. The commenter recommended 
that TSA take these factors into account when TSA considers mitigating 
factors for purposes of proposing penalties. The comment noted that 
this should be the case particularly in regard to proposed penalties 
for first-time offenders.
    As explained in the preamble to the rule published on July 21, 
2009, TSA has adjusted the penalty amounts as required by statute. See 
74 FR 36034. The Federal Civil Penalties Inflation Adjustment Act of 
1990 (Adjustment Act), as amended,\1\ includes a detailed formula for 
inflation adjustments. TSA recognizes that many parties may experience 
financial hardship due to the current economic environment. Hence, TSA 
always considers multiple factors, including financial distress, when 
assessing civil penalties. TSA uses a publicly available sanctions 
policy in assessing penalties. See https://www.tsa.gov/research/laws/editorial_1504.shtm. Finally, TSA disagrees with the view that airline 
workers' occupation should be considered a mitigating factor for 
assessing penalties. Individuals who spend considerable time in the 
aviation environment should be aware of TSA's requirements and take 
particular care to comply with them.
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    \1\ Federal Civil Penalties Inflation Adjustment Act of 1990, 
Public Law 101-410, Oct. 5, 1990, 104 Stat. 890, as amended by the 
Debt Collection Improvement Act of 1996, Public Law 104-134, title 
III, Sec. 31001(s)(1), Apr. 26, 1996, 110 Stat. 1321-373; the 
Federal Reports Elimination Act of 1998, Public Law 105-362, title 
XIII, Sec. 1301(a), Nov. 10, 1998, 112 Stat. 3293.
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    Formal Complaints: The commenter raised objections to the 
procedures for formal complaints in subpart I, Sec.  1503.801. This 
provision of the rule allows any person to file a complaint with the 
TSA Administrator with respect to ``any act or omission by any person 
in contravention of'' any rules, regulations or provisions administered 
by the TSA. Paragraph (d) of that section provides that TSA will place 
complaints that meet the tests of Subpart I on its Complaint Docket, 
mail a copy to each person named in the complaint and, per paragraph 
(f), the person named in the complaint ``must file an answer within 20 
days after service of a copy of the complaint.'' Pursuant to paragraph 
(k), TSA maintains in the public docket ``the complaint and other 
pleadings and official TSA records relating to the disposition of the 
complaint.''
    The commenter questioned TSA's legal authority for these 
procedures. The commenter also recommended that TSA consider adding a 
provision allowing TSA to assess penalties for those who file ill-
founded, baseless or false charges against individuals, as well as a 
provision that would allow the individuals who are the subject of these 
charges to seek compensation for attorneys' fees and other economic 
losses incurred as a result of responding to false complaints.
    TSA has legal authority for the provision stated in Sec.  1503.801. 
The provision is based on 49 U.S.C. 46101, as amended by section 140(b) 
of the Aviation and Transportation Security Act, Public Law. 107-71 
(ATSA). Moreover, Sec.  1503.801(a) through (k) is substantively the 
same as Sec.  1503.5(a) through (k) of the preceding regulation. If TSA 
were to conclude that a formal complaint consisted of false or baseless 
charges, TSA would dismiss the complaint and send written notification 
of the dismissal to the complainant and the person(s) named in the 
complaint.

Amendment of 49 CFR 1503.629, Motions and 49 CFR 1503.659, Petition To 
Reconsider or Modify a Final Decision and Order of the TSA Decision 
Maker on Appeal

    Previously, Sec.  1503.629(d) provided that parties must reply to 
motions not later than 10 days after service of the motion on the 
party. Similarly, Sec.  1503.659(e) required a party to reply to a 
Petition to Reconsider or Modify a Final Decision and Order of the TSA 
Decision Maker on appeal within 10 days after service of the petition 
on that party. These time periods did not afford parties a sufficient 
time to reply, partly because parties often receive mail well after the 
date on which the regulations presume service. Moreover, the 10-day 
periods were inconsistent with other time periods in the regulation, 
such as Sec.  1503.609 (30 days to file a Complaint), Sec.  1503.611 
(30 days to answer a Complaint), and Sec.  1503.657(e) (35 days to file 
a reply brief in an appeal from an initial decision by TSA). For these 
reasons, TSA amends Sec. Sec.  1503.629(d) and 1503.659(e) to provide 
that parties will have 30 days from service to reply.

Correction of Section Reference in Sec.  1503.631(c)(2), Interlocutory 
Appeals

    In the July 2009 rule, TSA reorganized part 1503 and moved Sec.  
1503.215 to Sec.  1503.623, Withdrawal of complaint or request for 
hearing. TSA inadvertently did not change the section reference in 
Sec.  1503.631(c)(2) to the appropriate section. In this rule, TSA 
replaces the incorrect reference to Sec.  1503.215 with the correct 
reference to Sec.  1503.623.

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.

[[Page 58333]]

    TSA has determined that there are no current or new information 
collection requirements associated with this rule.

Economic Impact Analyses

Regulatory Evaluation Summary

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order (E.O.) 12866, Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), 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).
    Because this rule does not add any requirements to those in the 
July 21, 2009, final rule, TSA has not performed a cost/benefit 
analysis.

Executive Order 12866 Assessment

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993) provides for making determinations as to 
whether a regulatory action is ``significant'' and therefore subject to 
OMB review and the requirements of the Order. Executive Order 12866 
classifies a rule as significant if it meets any one of a number of 
specified conditions, including economic significance, which is defined 
as having an annual impact on the economy of $100 million. A regulation 
is also considered a significant regulatory action if it raises novel 
legal or policy issues.
    This regulation is not significant under E.O. 12866. This final 
regulation will have no economic impact because the regulation makes no 
substantive changes to 49 CFR part 1503.

Regulatory Flexibility Act Assessment

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), requires agencies to perform a review to determine 
whether a proposed or final rule will have a significant economic 
impact on a substantial number of small entities when the 
Administrative Procedure Act (APA) requires notice and comment 
rulemaking. TSA has not assessed whether this rule will have a 
significant economic impact on a substantial number of small entities, 
as defined in the RFA. When an agency publishes a rulemaking without 
prior notice and an opportunity for comment, the RFA analysis 
requirements do not apply.
    This rulemaking is a final rule that follows a final rule that TSA 
issued on July 21, 2009. Therefore, no RFA analysis is provided.

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 not create 
any unnecessary obstacles to foreign commerce.

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.

Executive Order 13132, Federalism

    TSA has analyzed this final rule under the principles and criteria 
of E.O. 13132, Federalism. We have determined that this action will not 
have a substantial direct effect on the States, or 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, have determined that this action does not have 
federalism implications.

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.

Energy Impact Analysis

    The energy impact of the action has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, 
as amended (42 U.S.C. 6362). We have 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

0
For the reasons set forth in the preamble, the Transportation Security 
Administration amends Chapter XII of Title 49, Code of Federal 
Regulations, as follows:

PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES

0
1. The authority citation for part 1503 continues to read as follows:

    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).

Subpart G--Rules of Practice in TSA Civil Penalty Actions

0
2. In Sec.  1503.629 revise paragraph (d) to read as follows:


Sec.  1503.629  Motions.

* * * * *
    (d) Reply to motions. Any party may file a reply, with affidavits 
or other evidence in support of the reply, not later than 30 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.
* * * * *

[[Page 58334]]

Sec.  1503.631  [Amended]

0
3. In Sec.  1503.631(c)(2) remove the reference ``Sec.  1503.215'' and 
add in its place the reference ``Sec.  1503.623''.

0
4. In Sec.  1503.659 revise paragraph (e) to read as follows:


Sec.  1503.659  Petition to reconsider or modify a final decision and 
order of the TSA decision maker on appeal.

* * * * *
    (e) Reply petitions. Any other party may reply to a petition to 
reconsider or modify, not later than 30 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.
* * * * *

    Issued in Arlington, Virginia, on September 17, 2010.
John S. Pistole,
Administrator.
[FR Doc. 2010-23985 Filed 9-23-10; 8:45 am]
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