Procedures of the Transportation Security Oversight Board Review Panel Concerning Federal Aviation Administration Airman Certificates, 17693-17706 [2024-05131]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Office of the Secretary

[Federal Register Volume 89, Number 49 (Tuesday, March 12, 2024)]
[Rules and Regulations]
[Pages 17693-17706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05131]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Rules 
and Regulations

[[Page 17693]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 126

[Docket No. DHS-2022-0039]
RIN 1601-AB09


Procedures of the Transportation Security Oversight Board Review 
Panel Concerning Federal Aviation Administration Airman Certificates

AGENCY: Office of the Secretary, DHS

ACTION: Final rule.

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SUMMARY: In this final rule, DHS codifies in final form the procedures 
that apply to appeals before the Transportation Security Oversight 
Board concerning Federal Aviation Administration Airmen Certificates. 
The final rule addresses comments stakeholders submitted in response to 
an interim final rule DHS published on August 9, 2022, on the same 
topic. DHS amends the IFR rule text to permit parties to consent to 
electronic service of documents, include a definition of the standard 
of review that applies to the proceedings, and provide a process to 
seek remand for good cause shown.

DATES: This rule is effective May 13, 2024.

FOR FURTHER INFORMATION CONTACT: Randall Kaplan, Attorney, Office of 
the General Counsel, Department of Homeland Security, Washington, DC 
20528-0485. Phone: 202 282-9822.

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms Used in This Document

ALJ--Administrative Law Judge
ALPA--Air Line Pilots Association, International
AOPA--Aircraft Owners and Pilots Association
ATSA--The Aviation and Transportation Security Act of 2001
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
FAA--Federal Aviation Administration
FRAP--Federal Rules of Appellate Procedure
Pt.--Part
Sec. --Section
SES--Senior Executive Service
SL--Senior Level
SSI--Sensitive Security Information
Stat.--United States Statutes at Large
Subt.--Subtitle
TSA--Transportation Security Administration
TSOB--Transportation Security Oversight Board
U.S.C.--United States Code

Table of Contents

I. Background and Purpose
II. Summary of Comments on the IFR
III. Discussion of the Final Rule and Summary of Changes
IV. Regulatory Analyses
    A. Executive Order 12866 and Executive Order 13563
    B. Regulatory Flexibility Act Assessment
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 13132
    F. Executive Order 12988, Civil Justice Reform
    G. Paperwork Reduction Act Assessment

I. Background and Purpose

A. Statutory History

    Section 601(a) of the Vision 100--Century of Aviation 
Reauthorization Act (Vision 100 Act), Public Law 108-176, 117 Stat. 
2490, 2561 (Dec. 12, 2003) (codified at 49 U.S.C. 46111(a)) requires 
the FAA Administrator to issue an order amending, modifying, 
suspending, or revoking all or part of an FAA certificate issued under 
title 49 of the U.S. Code when notified by the Administrator of the TSA 
that the certificate holder poses, or is suspected of posing, a risk of 
air piracy or terrorism or a threat to airline or passenger safety. The 
FAA Administrator may also hold in abeyance or deny an application for 
a certificate based on a Determination of Security threat, in 
accordance with 14 CFR 3.205. Following the FAA's issuance of such an 
order, abeyance, or denial, an adversely affected U.S. citizen may 
challenge the TSA's determination that they pose or are suspected of 
posing such a risk (called a Determination of Security Threat) at a 
hearing on the record before an ALJ. 49 U.S.C. 46111(b)-(c). Any party 
to the proceedings before the ALJ may appeal the ALJ's decision to a 
Review Panel appointed by the TSOB. 49 U.S.C. 46111(d). Any person who 
is substantially affected by the TSOB Review Panel's action may seek 
review by an appropriate U.S. Court of Appeals. 49 U.S.C. 46110(a) and 
46111(e). The TSA Administrator may seek such review if it is 
determined that the Review Panel's action will have a significant 
adverse impact on carrying out 49 U.S.C. Subt. VII, Pt. A, which 
establishes Federal programs to ensure safety in aviation and air 
commerce.
    Section 102(a) of the Aviation and Transportation Security Act of 
2001 (ATSA), Public Law 107-71, 115 Stat. 597, 604 (Nov. 19, 2001) 
(codified at 49 U.S.C. 115) established the TSOB. The Secretary of 
Homeland Security, or the Secretary's designee, serves as the 
Chairperson of the TSOB. 49 U.S.C. 115(b)(2). The other statutory 
members of the TSOB are the Secretaries of Transportation, Defense, and 
the Treasury, the Attorney General, the Director of National 
Intelligence, or their designees, and one individual appointed by the 
President to represent the National Security Council. 49 U.S.C. 
115(b)(1).
    When the TSOB receives an appeal from an ALJ's decision regarding a 
TSA Determination of Security Threat, it must establish a Review Panel 
to review the decision. 49 U.S.C. 46111(d). The members of the Review 
Panel may not be TSA employees, and they must hold an appropriate 
security clearance. 49 U.S.C. 46111(d)(1) and (2). A TSOB Review Panel 
may affirm, modify, or reverse the ALJ's decision. 49 U.S.C. 
46111(d)(3).

B. TSA Vetting Process and Redress for Determinations of Security 
Threat

    Following the terrorist attacks of September 11, 2001, Congress 
recognized the need for an entirely new and comprehensive regulatory 
regime focused on securing the transportation system. Congress enacted 
many laws requiring TSA to conduct security threat assessments (STAs) 
of individuals who perform security functions in or have access to the 
transportation system. At present, TSA conducts STAs for more than 28 
million individuals every day. The vetted populations include airport 
workers, airline employees, air cargo handlers, FAA certificate 
holders, individuals seeking airspace waivers, drivers hauling 
hazardous materials in commerce, merchant mariners and

[[Page 17694]]

longshoremen working in ports and on vessels, trusted travelers, flight 
students, chemical facility employees, and others. In accordance with 
governing statutes and fundamental principles of due process, TSA 
developed these vetting programs to collect ample biographic 
information to verify the identity of the applicant, conduct informed 
evaluations of the vetting results, and provide robust redress to 
protect against incorrectly designating an individual as a threat to 
national or transportation security, or of terrorism.
    Of the approximately 30 million individuals TSA vets daily, over 5 
million hold FAA certificates. To conduct this vetting, TSA uses the 
biographic information the FAA collects from applicants and certificate 
holders and compares it against several intelligence and law 
enforcement databases. As part of this vetting, TSA is required to 
ensure that individuals ``are screened against all appropriate records 
in the consolidated and integrated terrorist watchlist maintained by 
the Federal Government before being certificated'' by the FAA.\1\ TSA's 
intelligence analysts review any derogatory information generated 
during the vetting to determine whether the individual poses or is 
suspected of posing a security threat. If TSA believes the individual 
poses, or is suspected of posing, a security threat, TSA issues a 
Determination of Security Threat, notifies the FAA of the Determination 
of Security Threat, and asks the FAA to amend, modify, suspend, or 
revoke the individual's certificates. Once the FAA takes action, the 
individual, if a U.S. citizen, may appeal the Determination of Security 
Threat underlying FAA's action to an ALJ.
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    \1\ 49 U.S.C. 44903(j)(2)(D)(i).
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    The ALJs who hear these appeals are experienced judges who are 
frequently called upon to review TSA's eligibility determinations for 
other transportation worker populations and who possess the appropriate 
security clearance to review classified or otherwise protected 
information and evidence. The ALJs receive and assess information and 
evidence; hold and regulate the course of hearings; dispose of 
procedural motions; and examine witnesses. The ALJ conducts a de novo 
hearing, reviews the evidence and testimony presented (including the 
information on which TSA based its Determination of Security Threat), 
and issues a decision based on that review. Either party may appeal the 
ALJ's decision to the TSOB Review Panel.

C. TSOB Review Panel Procedures for FAA Certificate Appeals

    Following the first FAA certificate appeal to the TSOB Review Panel 
in 2010, the TSOB Chairperson issued procedures in May 2011 for use in 
all such appeals. DHS provided these written procedures directly to 
litigants when they file an appeal of the ALJ's decision. All of the 
2011 procedures governing briefs and motions, the conduct of 
proceedings, the treatment of sensitive documents, and the standard of 
review were closely aligned with the Federal Rules of Appellate 
Procedure (FRAP) and administrative practice procedures. The 2011 
procedures ensured that parties have adequate time to seek review, 
prepare briefs, respond to opposing party assertions, request 
extensions of time, and request hearings. The 2011 procedures 
established the standard of review, substantial evidence on the record, 
for the Review Panel to apply when reviewing evidence and reaching a 
decision.

D. Summary of the IFR

    DHS determined it would be best to codify the appeal procedures to 
provide full transparency and consistency of process for all potential 
litigants and Review Panel members, and published the IFR in August 
2022.\2\ DHS based this decision on the likelihood of increasing 
numbers of appeals and to ensure all TSOB Review Panels apply 
consistent standards and procedures.\3\
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    \2\ See Procedures of the Transportation Security Oversight 
Board Review Panel Concerning Federal Aviation Administration Airman 
Certificates, 87 FR 48431 (August 9, 2022).
    \3\ In 2021, the TSOB Review Panel chose to apply a de novo 
standard of review rather than the substantial evidence standard 
required in the appeal procedures.
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    Requests for review of Determinations of Security Threat are on the 
rise. From 2011 to November 30, 2021, the TSOB received only one 
additional appeal, which was resolved by decision of the TSOB Review 
Panel on September 23, 2021. However, currently there are four 
Determinations of Security Threat regarding U.S. citizens pending 
review by an ALJ, and an additional six U.S. citizens have timely 
initiated the redress process in response to a Determination of 
Security Threat. Overall, TSA's caseload with respect to Determinations 
of Security Threat increased by over 100% between Fiscal Year 2019 and 
Fiscal Year 2022, in significant part due to rising investigations of 
domestic terrorism-related cases in which affected certificate holders 
may seek review of Determinations of Security Threat by an ALJ and then 
the TSOB. Given this trend, codifying the procedures helps ensure 
optimal transparency in the process for affected individuals, clear 
understanding of the procedures, and consistency in the application of 
the standards and procedures.
    Under the Administrative Procedure Act (APA), rules involving 
``agency organization, procedure, or practice'' like the TSOB Review 
Panel procedures, do not require advance notice and the opportunity to 
comment before becoming final.\4\ The IFR was procedural within the 
meaning of the APA because it merely codified current practice and did 
not alter the rights of or substantive standards applied to an 
individual appearing before the TSOB Review Panel, such as whether the 
individual poses or is suspected of posing a threat. Nevertheless, DHS 
agrees with the views of the Administrative Conference of the United 
States (ACUS) that public comment serves a critical role in the 
development of sound policy, and that agencies should solicit comment 
when it is possible to do so.\5\ Consequently, DHS requested comments 
on the IFR from the public.
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    \4\ See 5 U.S.C. 553 (b)(A). See also 87 FR 48431, 48436-37 for 
a full discussion of the use of procedural rules.
    \5\ See ACUS Recommendation 92-1, The Procedural and Practice 
Rule Exemption from the APA Notice-and-Comment Rulemaking 
Requirements, (December 18, 1992).
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    The IFR generally codified the written 2011 TSOB Review Panel 
procedures with certain updates and clarifications where necessary for 
full transparency. The rule addressed appeals to the TSOB Review Panel 
from an ALJ's decision concerning TSA's Determination of Security 
Threat and did not apply to other matters that the TSOB oversees. The 
IFR established requirements for TSOB Review Panel members and the 
docket clerk; the standard of review applicable to appeals; timelines 
for appeals and responses; filing and supplementing the record; entry 
of appearance; motions, briefs, and the administration of hearings; 
procedures for the use of classified materials, sensitive security 
information, and other protected information; and the effect of the 
TSOB Review Panel action.\6\
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    \6\ See 87 FR 48431, 48433-36 for an explanation of the IFR rule 
text.
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II. Response to Comments on the IFR

    DHS received comments on the IFR from two organizations: the Air 
Line Pilots Association, International (ALPA) and the Aircraft Owners 
and Pilots Association (AOPA). ALPA represents the safety and security 
interests of over 66,000 professional airline pilots flying

[[Page 17695]]

for 41 airlines in the United States and Canada. AOPA represents 
300,000 members who operate 85% of all general aviation aircraft 
operating in the United States. Over 72,000 members of AOPA participate 
in AOPA's Pilot Protection Services, which provides legal services to 
individuals who are subject to FAA and TSA enforcement actions. The 
comments relate to some general matters and several specific topics, 
including the use of electronically/electronic service for service of 
documents; standard of review the TSOB Review Panel applies; process 
for non-governmental counsel to have access to protected information; 
precedential nature of TSOB Review Panel decisions; publication of TSOB 
Review Panel decisions; and the treatment of constitutional issues.

A. General Matters

    ALPA suggested that DHS include in this response to comments a full 
discussion of the procedures that currently apply to the appeal of an 
FAA certificate holder to an ALJ following revocation, suspension, or 
modification of the certificate. TSA provides each affected certificate 
holder actual notice of those procedures by letter when the certificate 
action is taken by the FAA. Also, TSA is in the process of amending its 
regulations to codify those procedures in 49 CFR part 1540. Because 
this rule concerns procedures applicable to an appeal to a TSOB Review 
Panel, we believe a full discussion of the current appeal process to an 
ALJ in this document is unnecessary and may be confusing to the public.
    AOPA encourages DHS to periodically reexamine and update these 
regulations. For any future amendments to these rules, AOPA also 
encourages DHS to continue its practice of seeking public comment on 
procedural rules. DHS and its components periodically review all 
regulations in accordance with Executive Orders \7\ and sound 
regulatory policy. This review may result in changes to existing rules, 
the development of new standards, or terminating standards that are no 
longer necessary. DHS will follow that same process with this 
rulemaking and revise the language as necessary.
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    \7\ See Exec. Order No. 13610, 77 FR 28467 (May 10, 2012); Exec. 
Order No. 13563, 76 FR 3821 (Jan. 18, 2011); see also, Periodic 
Retrospective Review, 86 FR 36075 (Jul. 8, 2021); Learning from 
Regulatory Experience, 82 FR 61738 (Dec. 29, 2017); Retrospective 
Review of Agency Rules, 79 FR 75114 (Dec. 17, 2014); Review of 
Existing Agency Regulations, 60 FR 43108 (Aug. 18, 1995).
    .
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B. Use of Electronic Service of Documents

    AOPA supports filing and serving documents electronically, as 
permitted by Sec.  126.13 of this rule, and suggests that the rule also 
address how to consent to electronic service, how to establish evidence 
of electronic service, and how to compute time when documents are filed 
or served electronically. Also, AOPA recommends that the rule establish 
a presumption of consent to future electronic service when a document 
is transmitted electronically and there is evidence to confirm its 
successful transmission. AOPA encourages the TSOB Review Panel to 
consider providing automated receipts in response to electronic filings 
made to the TSOB Docket Clerk. AOPA suggests adding the following 
language to Sec.  126.13(b): `A party may consent to service via 
electronically/electronic service by filing a document expressly 
stating such a preference with the TSOB Docket Clerk and serving a copy 
on all other parties.' AOPA asks DHS to adopt language from the Federal 
Rule of Appellate Procedure (FRAP) 26, Computing and Extending Time, 
for use in the procedures before the TSOB Review Panel.
    DHS Response: DHS agrees with adding the suggested language to 
Sec.  126.13(b) to provide a method by which parties may consent to 
service of documents electronically. Therefore, we have revised the 
text in Sec.  126.13(b) to state that a party may consent to electronic 
service by filing a document that expressly states such a preference 
with the TSOB Docket Clerk, and serving a copy on all other parties.
    DHS is not inclined at this time to establish a presumption of 
consent to future electronic service when a document is transmitted 
electronically and there is evidence to confirm its successful 
transmission. To the extent we have individuals who initiate an appeal 
without counsel and use electronic means to do so, they may have no 
knowledge of the presumption this establishes for future service of 
documents. Generally, parties should knowingly and affirmatively 
consent to changes in service, not by presumption. Moreover, the new 
language in Sec.  126.13(b) creates a simple process by which 
individuals may elect to establish a presumption of consent to future 
electronic service at any time.
    DHS is not inclined to revise the rule text identifying the filing 
date and computation of time for documents filed through 
electronically/electronic service. The existing rule text in Sec.  
126.13(c) establishes that service of all documents, regardless of 
transmittal method, occurs on the date on which the TSOB Docket Clerk 
receives the document. We believe the Docket Clerk is in the best 
position to determine whether it is necessary to set up automated 
electronic receipts for documents filed through electronically/
electronic service or whether another kind of action is preferable.
    We believe adopting the FRAP Rule 26 for TSOB Review Panel 
proceedings is not advisable at this time. Rule 26 defines terms used 
in the text of the FRAP on time computation, including next day, last 
day, and legal holiday. These terms are not used in the TSOB Review 
Panel rulemaking, and thus, there is no need to define them. Also, the 
FRAP Rule 26 explains that Saturdays, Sundays, and legal holidays must 
be counted when computing timelines. We believe there is no need to add 
this language because the TSOB Review Panel rule does not suggest or 
provide exceptions for these days when computing time. The FRAP Rule 26 
provides procedures that apply when the Clerk's Office is inaccessible; 
given the extensive use of electronically/electronic service for 
service of documents today, we believe there is little need to provide 
for circumstances when the ``Clerk's Office'' is inaccessible for TSOB 
Review Panel proceedings. The TSOB Review Panel does not rely on a 
typical ``Clerk's Office'' that has a stationary presence in 
courthouses and handles a high volume of judicial proceedings. Rather, 
the rule establishes that an individual from within the DHS Office of 
the General Counsel serves as the TSOB Docket Clerk, available to 
receive documents electronically at virtually any time. For all of 
these reasons, we believe the TSOB Review Panel rule text is 
sufficiently clear on the computation of time and changes are 
unnecessary.

C. Standard of Review

    Section 126.9(a) establishes that the standard of review the TSOB 
Review Panel applies is substantial evidence, and in paragraph (b) 
states that the Review Panel will not consider the constitutionality of 
any statute, regulation, Executive Order, or order issued by TSA. Both 
ALPA and AOPA commented on this section. AOPA seeks confirmation that 
while the TSOB Review Panel gives deference to an ALJ's factual 
findings supported by substantial evidence in the record, the Review 
Panel reviews legal determinations made by the ALJ using the de novo 
standard of review. Also,

[[Page 17696]]

AOPA suggests that DHS either remove Sec.  126.9(b) or amend it to 
include a statement that parties must raise constitutional issues at 
the agency level to preserve them for judicial review.
    ALPA states that the substantial evidence standard of review is not 
indicated or required by 49 U.S.C. 46111(d). ALPA asserts that this 
standard of review is too restrictive to provide adequate procedural 
and substantive right protections. Also, ALPA suggests that because the 
rule does not include a definition of substantial evidence, it is open 
to interpretation by each TSOB Review Panel. ALPA asserts that DHS 
should amend Sec.  126.9 to follow or incorporate the standard of 
review the National Transportation Safety Board (NTSB) uses in its 
Rules of Practice in Air Safety Proceedings, codified at 49 CFR 821.49. 
Those procedures apply to the NTSB review of ALJ decisions that affirm, 
modify, amend, or reverse FAA Certificate actions related to safety 
issues. The NTSB procedures permit the Board to consider if the 
``findings of fact are supported by a preponderance of reliable, 
probative, and substantial evidence.''
    DHS Response: DHS is adding a definition of the term ``substantial 
evidence'' to the rule to make certain there is no room for confusion 
or interpretation as to what the standard means. It is a term that is 
widely used and generally not subject to varying interpretations, but a 
definition of it in the rule text provides optimum clarity for all 
parties associated with TSOB Review Panel proceedings. The definition 
is ``substantial evidence means such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion.'' This is the 
standard of review that is applied in administrative review proceedings 
like those of the TSOB Review Panel.
    In practical terms, the substantial evidence standard is more 
deferential to the decision below than the preponderance of the 
evidence standard of review. A preponderance of the evidence means 
there is a greater than 50% chance an assertion or decision is true, 
and typically applies to civil court cases. The substantial evidence 
standard does not require a reviewing body to find that the decision 
below is more likely than not to be true, but that the decision is 
reasonable given all of the information presented. The NTSB procedural 
rule that ALPA urges DHS to use for this rule requires the Board to 
find that the ALJ's findings of fact are supported by ``a preponderance 
of reliable, probative, and substantial evidence,'' which is a hybrid 
standard that combines preponderance of the evidence with substantial 
evidence and probative evidence.
    DHS does not wish to apply the NTSB standard to TSOB Review Panel 
cases. DHS agrees with ALPA's statement that 49 U.S.C. 46111(d) does 
not reference or require the substantial evidence standard of review 
for TSOB Review Panel proceedings. However, use of the substantial 
evidence standard for appellate review of administrative proceedings at 
the Federal level is commonplace.\8\ The use of this standard for 
reviewing an ALJ's decision recognizes the significant expertise ALJs 
bring to the Federal administrative process. ALJs handle a variety of 
subject matters, legal issues, motions, witness testimony, statutory 
and regulatory interpretation, and matters advanced by pro se 
appellants as well as those represented by counsel. Most ALJs have very 
active dockets that require sound and timely decision-making. To 
require a reviewing body like the TSOB Review Panel to use the less 
deferential de novo standard for reviewing ALJ proceedings would 
increase the time and resources needed to resolve appeals, with scant 
justification that is it necessary. Congress and agencies would not 
authorize the use of the substantial evidence standard of review so 
widely if evidence existed demonstrating that proceedings before ALJs 
were insufficient or wrought with problems.
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    \8\ See, e.g., 29 CFR 24.110(b), which mandates the use of the 
substantial evidence standard by the Department of Labor 
Administrative Review Board (ARB) when reviewing an ALJ decision. 
See also, Stone & Webster Constr., Inc. v. U.S. Dep't of Labor, 684 
F.3d 1127, 1132 (11th Cir. 2012), in which the court details the 
effect of the standard's codification on later appeals (``As a 
result, we now show less deference to an ARB that disturbs the 
factual findings of an ALJ.''); 33 U.S.C. 921(b)(3) and 20 CFR 
802.301(a), Department of Labor Benefits Review Board; 42 CFR 
3.548(h), Department of Health and Human Services Departmental 
Appeals Board; 32 CFR 200.2021(h), Defense Health Agency; 42 U.S.C. 
405(g), Social Security Administration; 12 U.S.C. 1848, Federal 
Reserve Board; 49 CFR 386.67(b), Federal Motor Carrier Safety 
Administration.
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    In addition to the factors discussed above, it is important to note 
that Sec.  126.7 of the current IFR authorizes the TSOB Review Panel to 
remand a matter to the ALJ to ``address particular issues or consider 
additional testimony or evidence.'' Thus, if the TSOB Review Panel has 
concerns about the outcome reached at the ALJ level or cannot reach a 
decision on appeal, it can send the matter back to the ALJ with 
instructions on examining issues and obtaining additional testimony or 
evidence. This section enables the TSOB Review Panel to seek correction 
or clarification of issues that are vague, questionable, or unsupported 
by the record, and essentially to correct the kind of procedural and 
substantive shortcomings ALPA expressed concern about in its comments. 
Also, ALPA suggests DHS amend Sec.  126.19 to permit the TSOB Review 
Panel to remand the case to the ALJ for additional proceedings upon 
motion of the parties and ``a showing of good cause.'' DHS sees value 
in this suggested revision to the IFR and is adding this language as 
new Sec.  126.19(b)(3). This addition to the rule text further 
minimizes the need to require a higher standard of review such as a 
preponderance of the evidence or the hybrid standard the NTSB uses in 
its appellate procedures.

D. Review of ALJ Legal Determinations and Objections to Prejudicial 
Errors

    Both ALPA and AOPA submitted comments asserting that an ALJ's legal 
determinations and prejudicial errors of law and procedure should 
receive special treatment by the TSOB Review Panel. AOPA seeks 
confirmation that while the TSOB Review Panel gives deference to an 
ALJ's factual findings based on substantial evidence in the record, the 
Review Panel applies de novo review to any legal determinations the ALJ 
makes. ALPA asserts that Sec.  126.23(a)(2) should be revised to state 
that a party's objections to an ALJ's prejudicial errors of the law or 
procedure are reviewable by the TSOB Review Panel.
    DHS Response: DHS confirms that appellate courts and administrative 
review panels such as the TSOB Review Panel apply the substantial 
evidence standard to factual issues, but apply essentially a de novo 
review of legal determinations an ALJ makes. Reviewing panels and 
courts retain the authority to review and determine purely legal 
questions to determine if they are erroneous as a matter of law when 
raised on appeal, without deference to the lower court. In FAA 
certificate holder cases appealed to the TSOB Review Panel, the 
sustainability of the underlying security threat determination is based 
on a factual determination, subject to the substantial evidence 
standard of review.
    DHS is not inclined to revise Sec.  126.23(a)(2) to state that a 
party's objections to an ALJ's prejudicial errors of law or procedure 
are reviewable by the TSOB Review Panel because it is unnecessary. The 
current language in Sec.  126.23(a)(2) states the appellant must 
``enumerate the appellant's objections to the ALJ's decision'' in the 
appellant's brief perfecting the appeal. This language is broad and 
permits the

[[Page 17697]]

appellant to raise perceived prejudicial errors of law or procedure in 
the appeal.

E. Access to Protected Information

    AOPA and ALPA commented on the need for the appellant and counsel 
to have access to protected information during the TSOB Review Panel 
proceeding. Both organizations recommend DHS create a process for non-
government counsel representing non-government parties in TSOB Review 
Panel actions to request designation as having a ``need to know,'' be 
appropriately vetted, and once designated, have access to classified 
and other protected information, and SSI.
    The IFR rule text in Sec.  126.17 addresses procedures for the use 
of classified, sensitive security, and other protected information. The 
rule defines ``other protected information'' as information the 
government is authorized to withhold under statute, regulation, or 
Executive Order. Paragraph (b) in Sec.  126.17 prohibits the TSOB 
Review Panel from disclosing classified or other protected information 
to a non-government party or counsel, and prohibits disclosing SSI to 
those individuals unless TSA determines the party had a preexisting 
need to know specific SSI as a covered person under 49 CFR 1520.7 and 
1520.11.
    DHS Response: DHS believes it is inadvisable to establish a process 
for non-government individuals to have access to classified or other 
protected information during TSOB Review Panel proceedings. There is 
longstanding precedent on the need for strict controls over classified 
and protected information, and we do not find sufficient justification 
here to alter those policies and procedures. We believe unintended and 
serious consequences may occur as the circle of individuals with access 
to this information grows, particularly where there is very little 
ability to track or prevent additional sharing of the information. 
However, in accordance with the SSI regulations codified at 49 CFR part 
1520, appellants and their counsel may have access to SSI that is 
associated with their TSOB Review Panel case. In other words, Sec.  
126.17(b) neither expands nor contracts a party's authorization to 
receive SSI in accordance with 49 CFR part 1520.

E. Publication and Precedential Nature of Decisions

    AOPA recommends that DHS revise Sec.  126.27 to include a method 
for publishing TSOB Review Panel decisions in such a way as to protect 
an affected individual's identity. Also, AOPA recommends DHS revise 
Sec.  126.29(b) to state that TSOB Review Panel actions are 
precedential for future ALJ decisions and TSOB Review Panel actions. 
AOPA asserts that providing precedential value to TSOB Review Panel 
decisions will bring greater consistency and efficiency to the process, 
and assist potential appellants in making litigation decisions.
    DHS Response: DHS does not believe it is advisable or necessary to 
publish decisions or amend the rule to state that the decisions serve 
as precedent for future ALJ and TSOB cases. The number of cases is very 
low and the fact patterns so unique that it is difficult to see how one 
case could be precedential for another. Also, as security threats 
evolve over time, the factors that contribute to determining whether an 
individual poses a security threat may also evolve. Attaching 
precedential authority to older decisions may result in improper or 
incongruous results. Since DHS is not inclined to publish decisions at 
this point in time, it is not necessary to address AOPA's 
recommendation for a process to protect the identity of an affected 
party when publishing a decision.

F. Challenging TSOB Panel Membership

    AOPA recommends that DHS provide a mechanism for a party to file a 
motion to disqualify a TSOB Review Panel member due to conflict of 
interest concerns.
    DHS Response: DHS does not believe there is sufficient 
justification for this recommendation. There are checks in the TSOB 
appointment process that minimize the risk that a Panel member would 
have a conflict of interest concerning a specific case. Panel members 
must be a member of the Senior Executive Service or a Senior Level 
employee, which typically means the individual has a longstanding 
career in the government and is subject to strict standards of ethics. 
Panel members also may not be employed by the FAA or TSA. These two 
requirements minimize the chance that a Panel member has a conflict 
related to a specific FAA certificate revocation or suspension.

G. Add Court of Appeals Filing Deadline

    ALPA recommends that DHS revise Sec.  126.29 to include the Court 
of Appeals filing deadline, which is 60 days from the date the TSOB 
Review Panel issues its decision, under 49 U.S.C. 46110.
    DHS Response: DHS is amending Sec.  126.29 to state that an appeal 
of the TSOB Review Panel must be done in accordance with the 
requirements of 49 U.S.C. 46110, which allows for 60 days. This 
provides litigants with the information necessary to ensure timely 
appeals, and if the statute changes in the future, there would be no 
need to also amend this regulation.

H. Constitutional Issues

    AOPA recommends that DHS remove paragraph 126.9(b) or revise it to 
state that constitutional issues must be raised before the agency in 
order to be preserved for judicial review.
    DHS Response: DHS is not inclined to remove or revise paragraph 
(b). The language states that a TSOB Review Panel will not review the 
constitutionality of any statute, regulation, Executive Order, or order 
issued by TSA. This sufficiently puts litigants on notice that 
constitutional matters do not fall within TSOB Review Panel authority, 
but we do not believe it necessary to provide litigants information on 
when or where those issues must be raised outside of the TSOB Review 
Panel proceedings.

III. Discussion of the Final Rule and Summary of Changes

    The language below describes the rule text as it appears in the IFR 
and where DHS is changing the rule text in response to comments 
received.

Sec.  126.1 Purpose and Scope

    Section 126.1 describes the general purpose and scope of part 126, 
which is to establish procedures by which a TSOB Review Panel is 
appointed and reviews an appeal from an ALJ's decision regarding a TSA 
Determination of Security Threat. The procedures apply to appeals 
involving applications for certificates that are denied or held in 
abeyance as well as orders to amend, modify, suspend or revoke FAA 
certificates. Congress left to DHS's discretion the development of 
detailed procedures for TSOB review of an appeal from an ALJ's 
decision.

Sec.  126.3 Definitions

    Section 126.3 provides definitions of important terms that are used 
in the rule. The 2011 procedures did not include a definition section, 
but based on the experience DHS has gained in prior TSOB Review Panel 
cases and other administrative review programs DHS and its components 
administer, establishing definitions of key terms aids all parties 
engaged in the review process. These definitions are taken from 
existing statutory, regulatory, or Executive Order language, or reflect 
common usage meanings. DHS is adding a definition of the term 
``substantial evidence'' as discussed in II.C. above.
    `Classified information' has the same meaning the term has in 
Executive

[[Page 17698]]

Order 13526, Classified National Security Information, or its successor 
Executive Order. The term `communication technology' means telephone or 
videoconferencing platform. The term `Sensitive Security Information' 
(SSI) is information described in 49 CFR 1520.5. The rule defines 
`other protected information' as any other information that the 
government is authorized by statute, regulation, or Executive Order to 
withhold. The rule defines `Transportation Security Oversight Board 
(TSOB)' as the board established pursuant to 49 U.S.C. 115. Finally, 
`Transportation Security Oversight Board (TSOB) Review Panel' is 
defined as the panel established pursuant to 49 U.S.C. 46111(d) to 
consider an appeal from a decision of an ALJ as the result of a hearing 
under 49 U.S.C. 46111(b).

Sec.  126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk

    Section 126.5(a) provides that TSOB members must designate 
individuals who meet specific criteria to serve in a pool of potential 
Panel members for a period of two years. The criteria for nominees are 
listed in paragraphs (a)(1) through (5). The nominee must be a member 
of the Senior Executive Service (SES) or a Senior Level (SL) employee 
to ensure that he or she possesses the appropriate level of experience 
to evaluate the issues and record before the Panel. The nominee must 
hold the appropriate security clearance to ensure that he or she can 
effectively review an administrative record that contains classified 
material. Nominees may not be employees of TSA or FAA, which ensures an 
unbiased review of TSA's security threat determination. Although 49 
U.S.C. 46111(d) excludes only TSA employees from membership on a TSOB 
Review Panel, the TSOB Chairperson has determined that FAA employees 
should also be excluded. Exclusion of both TSA and FAA employees from 
participation in the TSOB Review Panel pool avoids the possible 
appearance of impartiality or lack of independent review. To the extent 
practicable, the nominee will have a legal background and be engaged in 
the practice of law on behalf of the U.S. government. Although these 
qualifications were not included in the 2011 procedures, through 
experience in this and other administrative appeal programs, DHS has 
found that individuals with this background enhance a Review Panel's 
ability to efficiently and accurately assess the legal arguments the 
parties assert during the appeal, and to prepare cogent decisions. 
Finally, to the extent practicable, a nominee will be familiar with 
transportation security issues. This factor was not included in the 
2011 procedures, but DHS has found that such a background enhances the 
efficiency and accuracy of the review process.
    Paragraph (b) provides that TSOB members must designate officials 
for the TSOB Review Panel when each two-year period expires. Paragraph 
(c) states that the General Counsel of the Department of Homeland 
Security, or the General Counsel's designee, will appoint an individual 
from within the Office of the General Counsel to serve as the TSOB 
Docket Clerk. The TSOB Docket Clerk serves as the Review Panel's point 
of contact for the public and the parties to ALJ proceedings. Paragraph 
(d) states that when the TSOB Docket Clerk receives a properly and 
timely filed appeal from an ALJ's decision, the TSOB Chairperson will 
select at least three individuals from the Review Panel pool to serve 
on a Review Panel to review the ALJ's decision. The TSOB Chairperson 
has discretion to choose which individuals from the pool will serve on 
a TSOB Review Panel. In making selections for a TSOB Review Panel, the 
TSOB Chairperson will, to the extent practicable, select at least one 
person with a legal background to serve as a Panel Member. A three-
member Review Panel allows for appropriate deliberation and the 
exercise of independent judgment, and is similar to the size of other 
Federal Government administrative review panels and the panels that 
hear cases in the U.S. Courts of Appeals.\9\
---------------------------------------------------------------------------

    \9\ See 28 U.S.C. 46(b) (providing for three-judge panels to 
hear and determine cases in the U.S. Courts of Appeals); 49 CFR 
1108.6 (providing for a three-member panel of arbitrators for the 
Surface Transportation Board).
---------------------------------------------------------------------------

Sec.  126.7 Function of TSOB Review Panel

    Section 126.7 requires a TSOB Review Panel to review an ALJ's 
decision and affirm, modify, or reverse that decision, or remand the 
matter to the ALJ for reconsideration.

Sec.  126.9 Scope and Standard of Review

    Section 126.9(a) states that the standard of review a TSOB Review 
Panel uses in considering an ALJ's decision is whether the decision is 
supported by substantial evidence in the record. The term ``standard of 
review'' refers to the degree of deference a reviewing court gives to 
the court below. The 2011 procedures stated that the standard of review 
is whether the ALJ's decision reasonably supports the conclusion that 
the FAA certificate holder does or does not pose a security threat, 
which is equivalent to ``substantial evidence in the record.'' 
Substantial evidence means ``such relevant evidence that a reasonable 
mind might accept as adequate to support a conclusion.'' \10\ In 
contrast, the ALJ applies a de novo standard of review to TSA's 
Determinations of Security Threat for FAA certificate holders. A ``de 
novo'' standard of review applies the least amount of deference to the 
court below; the reviewing court examines the evidence as though it is 
being considered for the first time, allowing the reviewing court to 
substitute its own judgment about the application of the law to the 
facts.
---------------------------------------------------------------------------

    \10\ See Richardson vs. Perales, 402 U.S. 389 (1971).
---------------------------------------------------------------------------

    Generally, the substantial evidence standard of review is used in 
civil cases relating to administrative decisions at the Federal level. 
TSA administers several vetting programs with robust redress processes 
that, like the TSOB Review Panel procedures, include multiple levels of 
review. One transportation-related example is the review process for 
the Transportation Worker Identification Credential (TWIC) and 
Hazardous Materials Endorsement (HME) programs found at 49 CFR 1515.5 
through 1515.11. TWIC and HME applicants undergo an STA that includes 
criminal, immigration, terrorist, and other database checks. See 49 CFR 
part 1572. If TSA determines a TWIC or HME applicant poses a security 
threat, TSA issues a written preliminary determination of threat 
assessment that includes information on how to appeal the assessment to 
TSA. TSA reviews all documents the applicant provides in the appeal, 
essentially providing de novo review of the case, and issues a final 
determination based upon its review of all relevant information 
available to TSA. The applicant may then appeal the final determination 
to an ALJ, and the ALJ applies the substantial evidence standard of 
review. An unsuccessful applicant may then appeal the ALJ's decision to 
the TSA Final Decision Maker, who also applies the substantial evidence 
standard of review. These regulations, issued through notice-and-
comment rulemaking along with the corresponding STA requirements, have 
been in use for over a decade.
    Cases that reach the TSOB Review Panel have undergone multiple 
levels of review within TSA and have been reviewed by an ALJ. TSA has 
access to all of the factual and intelligence information generated 
during the vetting of the FAA certificate holder, and the expertise to 
evaluate whether the information supports a security threat

[[Page 17699]]

determination. Then, the ALJ applies a de novo standard of review to 
determine whether TSA correctly applied its standard on whether an 
individual poses or is suspected of posing a security threat. This de 
novo review includes the review of information and evidence; examining 
witnesses and weighing the veracity and probity of their testimony; and 
determining whether a preponderance of the evidence supports the 
security threat determination. Consequently, the TSOB Review Panel 
ought to apply the more deferential substantial evidence standard of 
review, not a de novo standard. This standard of review requires the 
Panel to determine whether a reasonable person might accept the 
evidence presented as adequate to support the ALJ's conclusion.
    The 2011 and 2021 Review Panels relied on the 2011 procedures but 
applied different standards of review. Codifying procedures in this 
rule avoids future panels using different standards of review.
    Paragraph (b) states that a TSOB Review Panel will not consider the 
constitutionality of any statute, regulation, Executive Order, or order 
issued by TSA. A TSOB Review Panel is an administrative body that lacks 
the authority or expertise to decide constitutional questions.\11\ 
Constitutional claims or questions must be addressed by an appropriate 
U.S. Court of Appeals reviewing the TSOB Review Panel's action. When 
making its decisions, the Review Panel considers the entire record of 
the proceedings before the ALJ. The Review Panel may also consider 
additional materials that are properly added to the record through a 
duly filed motion, as permitted in Sec.  126.19(b).
---------------------------------------------------------------------------

    \11\ See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 
(1994) (``[W]e agree that adjudication of the constitutionality of 
congressional enactments has generally been thought beyond the 
jurisdiction of administrative agencies.''); Mont. Chapter of Ass'n 
of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1167 (9th 
Cir. 1975) (``[F]ederal administrative agencies have neither the 
power nor the competence to pass on the constitutionality of 
statutes.'').
---------------------------------------------------------------------------

Sec.  126.11 Counsel

    Section 126.11(a) gives all parties to proceedings before a TSOB 
Review Panel the right to be represented by counsel. Because Review 
Panel proceedings are civil proceedings that cannot result in a party's 
incarceration, the Federal Government is not required to provide legal 
counsel to represent a party who is unable to pay for an attorney. 
Thus, parties appearing before a TSOB Review Panel must obtain counsel 
at their own expense. TSA will designate legal counsel from among the 
attorneys in the DHS Office of the General Counsel who cover TSA's 
programs and issues on a daily basis, to represent TSA in Review Panel 
proceedings. This section also states that counsel for TSA must hold a 
security clearance commensurate with the information in the record on 
appeal. This requirement was not explicitly listed in the 2011 
procedures, but has always been required for TSOB and similar 
administrative appeal procedures.
    Section 126.11(b) provides that the General Counsel of DHS, or the 
General Counsel's designee, will appoint legal counsel who, in the 
General Counsel's discretion, has the requisite knowledge and 
experience to effectively assist a TSOB Review Panel reach a sound 
decision. The Review Panel's counsel facilitates communication between 
the Docket Clerk and the Review Panel, and assists with legal research, 
drafting documents, and similar tasks consistent with typical legal 
support. Appointed counsel must hold a security clearance that enables 
access to all materials in the record under review.

Sec.  126.13 Notice of Appeal and Service

    Section 126.13 instructs parties on how to request TSOB review of 
an ALJ's decision and how to serve notice on all other parties. Any 
party to proceedings before the ALJ may file a notice of appeal with 
the TSOB via certified mail or electronically/electronic service. DHS 
strongly encourages parties to file all documents and consent to 
service via electronically/electronic service to the TSOB Docket Clerk. 
Allowing parties to file a notice via electronically/electronic service 
will expedite the receipt of documents and the review process.
    Section 126.13(a) provides that a notice of appeal must be filed 
within 60 calendar days of the date of issuance of the ALJ's decision. 
This time limit is drawn from Rule 4 of the FRAP, which generally 
allows parties to a civil action in U.S. District Court 60 days to file 
a notice of appeal with an appropriate U.S. Court of Appeals in a case 
in which the United States or a Federal agency is a party.
    Section 126.13(b) provides the addresses for the TSOB Docket Clerk 
and instructions for filing any document with a TSOB Review Panel. As 
discussed in II.B above, DHS is adding language to this paragraph to 
permit litigants to expressly state a preference for service by 
electronically/electronic service.
    Section 126.13(c) specifies the date on which a document is deemed 
filed. The date of filing is the date that the document is received by 
the TSOB Docket Clerk.
    Section 126.13(d) provides that a TSOB Review Panel generally must 
reject and summarily dismiss a notice of appeal that is filed after the 
expiration of the 60-day deadline for appealing an ALJ's decision. The 
Review Panel, in its discretion, may accept the untimely notice upon a 
written showing of good cause for failing to meet the deadline.
    Section 126.13(e) provides that if a party files a notice of appeal 
but fails to perfect the appeal by timely filing a supporting brief, a 
TSOB Review Panel may dismiss the appeal.
    Section 126.13(f) explains that if an appeal is dismissed in 
accordance with paragraph (d) or (e), the ALJ's written decision 
becomes final. This provision did not appear in the 2011 procedures, 
but DHS is adding this to ensure all parties understand the practical 
effect of a dismissal.

Sec.  126.15 Entry of Appearance

    Section 126.15 requires parties and counsel to enter appearances in 
writing before a TSOB Review Panel within 15 calendar days of being 
served with a notice of appeal. This requirement was not part of the 
2011 procedures, but DHS is adding it to ensure efficiency and 
timeliness in the review process based on prior experience in TSOB. 
Also, the requirement to file an entry of appearance is consistent with 
Rule 12 of the FRAP.

Sec.  126.17 Procedures for Classified Information, Sensitive Security 
Information (SSI), and Other Protected Information

    Section 126.17 provides the procedures for handling classified 
information, SSI, and other protected information during proceedings 
before a TSOB Review Panel. This section did not appear in the 2011 
procedures, but the processes outlined here reflect the current 
practice of the review panels. The procedures are consistent with the 
statutory provisions regarding the use of classified evidence in 
hearings pursuant to 49 U.S.C. 46111(g), and the protection of SSI set 
forth in 49 CFR 1520.9. This section sets deadlines for TSA with 
respect to protected information to aid efficiency and transparency in 
the process. Section 126.17(a) provides that TSA must file a notice of 
protected information within 30 calendar days of filing or being served 
with a notice of appeal. The notice of protected information must 
indicate whether the record of proceedings before the ALJ contains 
classified information or SSI. This notice will alert a TSOB Review 
Panel to take appropriate steps to

[[Page 17700]]

protect the record from disclosure to non-government parties or the 
public. The TSOB Review Panel will review materials in the record 
containing classified information or SSI in camera or during an ex 
parte proceeding with TSA.
    Section 126.17(b) provides that a TSOB Review Panel may not 
disclose classified information or SSI, except to government parties 
and government counsel who have the appropriate security clearance and 
a need to know the information to be disclosed.

Sec.  126.19 Filing and Supplementing the Record

    Section 126.19(a) requires TSA to file a complete record of 
administrative proceedings, including a certified and un-redacted 
transcript of all proceedings before the ALJ and all material filed 
with the ALJ, with the TSOB Review Panel within 30 calendar days after 
filing or being served with a notice of appeal. The TSOB Review Panel 
needs the full record in order to conduct a comprehensive review of the 
ALJ's decision. To ensure that non-government parties have access to a 
redacted copy of the transcript of proceedings before the ALJ, this 
subsection permits non-government parties to file a motion requesting a 
redacted copy of any part of the full administrative record that they 
do not possess.
    Section 126.19(b) permits a party to supplement the record 
presented to the TSOB Review Panel when (i) anything relevant to an 
issue on appeal occurs or is created after the ALJ issues a decision, 
or (ii) the party can show good cause for failing to submit material 
for the record at an earlier stage of the administrative proceedings. 
As discussed in II.C. above, DHS is adding paragraph (b)(3) to permit 
the TSOB to remand the case to the ALJ for additional proceedings upon 
motion of the parties and ``a showing of good cause.''

Sec.  126.21 Motions

    Section 126.21(a) provides the procedures for filing a motion with 
a TSOB Review Panel. The requirements are the same as those for filing 
a brief, which are modeled on Rule 28 of the FRAP.
    Section 126.21(b) explains the duty to confer with all other 
parties before filing any motion. If a party seeks relief from a TSOB 
Review Panel (for example, extension of a deadline), that party must 
file a motion requesting the relief. Before filing the motion, the 
party seeking relief must first confer, or make reasonable, good-faith 
efforts to confer, with all other parties in an effort to obtain their 
consent to the relief requested. The 2011 procedures do not include 
this section, but DHS added it to improve efficiency and 
communications. It is consistent with Rules 26(c)(1) and 37(a)(1) of 
the Federal Rules of Civil Procedure. After conferring or attempting to 
confer, the party seeking relief may file the motion with the TSOB 
Review Panel. The moving party shall state in the motion, or in a 
certificate attached to the motion, the specific efforts made to 
confer. The moving party shall also state in the motion the other 
parties' positions with regard to the relief requested. If no party 
opposes the relief requested in a motion, the moving party shall 
include ``Unopposed'' in the motion's title. These provisions are 
modeled on Local Rules of Practice adopted by many U.S. District 
Courts, including, for example, the Rules of the United States District 
Court for the District of Columbia, Local Rule 7(m) (September 2015), 
Local Rules for the United States District Court, Eastern District of 
Virginia, Local Civil Rule 7 and Local Criminal Rule 47 (December 1, 
2020). They are designed to promote cooperation between the parties and 
help resolve issues quickly and efficiently.
    Section 126.21(c) provides for motion hearings using communication 
technology. As defined in this rule, ``communication technology'' means 
telephone or a videoconferencing platform. Using videoconferencing to 
conduct motion hearings allows a TSOB Review Panel to efficiently 
resolve motions without burdening the parties. The Review Panel will 
consider the availability of adequate security protocols in making 
determinations concerning motions hearings.
    Section 126.21(d) gives a TSOB Review Panel discretion to grant or 
deny a motion at any time after it is filed. This provision allows a 
Review Panel to quickly and efficiently resolve routine motions (for 
example, motions for an extension of a deadline) without waiting for 
all parties to file a response.
    Section 126.21(e) permits a TSOB Review Panel to establish 
additional procedural requirements regarding motion practice in 
response to the exigencies of a particular appeal. Additional 
procedural requirements apply on a case-by-case basis. For example, if 
a motion raises an unusually complex issue, a Review Panel may find it 
appropriate to allow the non-moving parties to file a response that is 
longer than the default 35-page limit. Section 126.21(e) gives the 
Review Panel the discretion to modify the page limit. This discretion 
is crucial to establishing an efficient review process. Section 
126.21(e) provides two other examples of additional procedural 
requirements that a Review Panel may wish to adopt in a particular 
case: time periods for filing responses and replies to motions and a 
deadline for concluding all motion practice. These examples are 
illustrative and not intended as an exhaustive list of permissible 
additional procedural requirements for motion practice. Section 
126.21(e) only concerns basic procedural requirements regarding motion 
practice, and it does not afford a TSOB Review Panel discretion to 
adopt procedural requirements unrelated to motion practice or to 
fundamentally change the review process prescribed in this part. A TSOB 
Review Panel will communicate specific additional procedural 
requirements regarding motion practice to the parties during 
proceedings or by serving them with orders.

Sec.  126.23 Briefs

    Section 126.23(a) and (b) enumerate the procedures and deadlines 
for filing briefs with a TSOB Review Panel. These subsections are 
modeled after Rule 28 of the FRAP. A party appealing the ALJ's decision 
(an appellant) must perfect the appeal by filing a brief within 60 
calendar days after the date on which the TSA files the administrative 
record. An appellant's brief must contain a specific list of objections 
to the ALJ's decision. This requirement is modeled after Rule 28(a)(9) 
of the FRAP, which requires appellants to clearly list and describe 
their contentions. A party not appealing the ALJ's decision (an 
appellee) may file a brief in response to an appellant brief within 30 
calendar days after being served with the appellant brief.
    Section 126.23(c) provides the specific form for submitting briefs 
to a TSOB Review Panel. The specifications are modeled on Rule 28 of 
the FRAP, and they are intended to facilitate an efficient process with 
the least amount of burden to the parties and the Review Panel.

Sec.  126.25 Oral Argument

    Section 126.25 provides for oral argument. A TSOB Review Panel will 
decide whether to grant oral argument upon receipt of a request for an 
oral argument contained in a brief pursuant to Sec.  126.23(c)(5). The 
TSOB Review Panel has discretion to grant or deny a request for oral 
argument. The Review Panel may also order oral argument on its own 
initiative if it determines that oral argument is necessary to clarify 
the parties' arguments or that oral argument will improve the Panel's 
understanding

[[Page 17701]]

of legal or factual issues material to the appeal.
    If oral argument is held, the TSOB Review Panel has discretion to 
choose the method and location. Oral argument will typically be heard 
in Washington, DC, or via teleconference or videoconference. The TSOB 
Review Panel will consider expense and inconvenience to the parties, 
the need for information security, the quality and reliability of 
available communication technology, and concern for the efficient 
administration of proceedings when choosing the method and location of 
oral argument.
    Section 126.25(c) provides that the TSOB Review Panel may also 
establish any necessary procedural rules to ensure the efficient 
administration of oral argument. This allows the Review Panel to adjust 
to the exigencies of a particular appeal. For example, the Review Panel 
may want to grant the parties a longer amount of time for argument if 
an appeal is complex and involves a large amount of evidence.
    Section 126.25(d) provides that classified information and SSI may 
not be disclosed during oral argument, and that a Review Panel may hold 
ex parte proceedings to allow TSA to present such information.

Sec.  126.27 Deliberations and Action

    Section 126.27 provides the procedures by which a TSOB Review Panel 
resolves an appeal. A Review Panel will consider the transcript of the 
ALJ's hearing, all material that the ALJ considered as part of the 
record for decision, any properly filed supplemental material, the 
parties' briefing, and, if applicable, oral argument. The Review 
Panel's deliberations are closed to the public, and any materials 
created by Panel members, the TSOB Docket Clerk, and the Panel's 
appointed counsel for use in deliberations are not part of the final 
administrative record and may not be disclosed to the public.
    A TSOB Review Panel may affirm, reverse, or modify the ALJ's 
decision. It may also remand the matter to the ALJ with instructions to 
address particular issues or consider additional testimony or evidence. 
A TSOB Review Panel requires a simple majority to decide an action. A 
Review Panel is required to prepare a written explanation of its action 
and serve it on the parties. The Review Panel will endeavor to act to 
resolve an appeal and serve a written explanation within 60 calendar 
days after the last of the following events: (1) receipt of a timely 
filed appellant brief; (2) receipt of a timely filed appellee brief; or 
(3) oral argument. If a Panel member disagrees with the Panel's action 
or reasoning, that member may write a dissenting report to be served 
with the written explanation. A Review Panel must redact all classified 
information and SSI from the written explanation before serving it on 
non-government parties. The written explanation will not be made 
available to the public through publication.

Sec.  126.29 Effect of TSOB Review Panel Action

    Section 126.29 explains the effect of a TSOB Review Panel action. 
After the TSOB Review Panel acts to resolve an appeal and serves a 
written explanation of its action, any person substantially affected by 
the action, or the TSA Administrator if he decides that the Panel's 
action will have a significant adverse impact on Federal programs to 
ensure safety in aviation and air commerce, may obtain judicial review 
of the action in an appropriate U.S. Court of Appeals. If judicial 
review is not obtained, the action of the TSOB Review Panel is final 
and binding on the parties for the purpose of resolving the particular 
matter under review. As discussed in II. G. above, DHS is adding the 
statutory citation of 49 U.S.C. 46110 here, which establishes when an 
appeal must be filed so that litigants have that information.

Sec.  126.31 Administration of Proceedings

    Section 126.31(a) describes the authority of a TSOB Review Panel to 
adopt additional procedures consistent with those established in this 
part. This ensures that a Review Panel has the flexibility to adjust to 
the exigencies of a particular appeal. Additional procedures apply on a 
case-by-case basis, and a Review Panel will communicate specific 
additional procedures to the parties during proceedings or by serving 
them with orders. For example, if a party or a party's counsel suffers 
from poor health that renders participation in proceedings difficult, a 
Review Panel may find it appropriate to adopt additional procedures to 
accommodate such needs. Section 126.31(a) gives the Review Panel the 
discretion to make the necessary accommodations. This discretion is 
crucial to establishing an efficient review process. Other examples of 
exigencies that may necessitate the adoption of additional procedures 
include unexpected changes to the TSOB office facilities and technical 
issues that make communication between the parties and a Review Panel 
difficult. These examples are illustrative and not intended as an 
exhaustive list of permissible additional procedures. The discretion 
afforded by Sec.  126.31(a) is similar to that afforded by Sec.  
126.21(e) above in that it also does not empower a TSOB Review Panel to 
fundamentally change the review process prescribed in this part.
    Section 126.31(b) provides that proceedings before a TSOB Review 
Panel are rendered moot and closed if TSA withdraws its Determination 
of Security Threat. If TSA withdraws its Determination, TSA will notify 
the TSOB Review Panel of the withdrawal within five calendar days.
    Section 126.31(c) provides that TSOB Review Panel proceedings are 
generally closed to the public. DHS is adding this provision to protect 
sensitive panel deliberations and discussions, and other kinds of 
sensitive or protected information from disclosure, including 
information regarding the conduct of individuals impacted by a 
Determination of Security Threat and witnesses to that conduct that may 
adversely impact these respective individuals' privacy interests. The 
Review Panel may, at its discretion, decide to open its proceedings to 
the public. No classified information, SSI or other protected 
information will be released during an open hearing.

IV. Regulatory Analyses

A. Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review), and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. The Office of Management and Budget (OMB) has not 
designated this rule a ``significant regulatory action'' under section 
3(f) of Executive Order 12866. Accordingly, the rule has not been 
reviewed by OMB.
    To evaluate properly the benefits and costs of regulations, it is 
important to define the baseline. DHS evaluates the impacts of this 
rule against both a no action and pre-statutory baseline. According to 
OMB Circular A-4, the no action baseline is what the world would

[[Page 17702]]

be like if the rule is not adopted.\12\ The pre-statutory baseline is 
what the world would be like if the relevant statute(s) had not been 
adopted.
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    \12\ https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/.
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    Relative to the pre-statutory baseline, the IFR and this final rule 
increase costs. The statute mandates that an appeal from a decision of 
an ALJ is made to the TSOB Review Panel. The law provides the benefits 
of appeal, but it also requires government time to manage and execute 
the panel's responsibilities, time of the parties to the appeal, and 
time and potential associated legal fees for the appellant. The 
government also incurred costs in 2011 developing the procedures for 
use by the TSOB Review Panel. As of the date of this publication, the 
panel has reviewed two requests for appeal. The 2011 and 2021 Review 
Panels relied on the 2011 procedures, but applied different standards 
of review.
    Without the IFR or this final rule, the TSOB still has the 
authority and duty to review appeals. As discussed above, a TSOB Review 
Panel has issued two decisions based upon the 2011 procedures. 
Significant attorney time and resources were spent developing the 
procedures used in those cases. In the absence of a codified set of 
procedural rules, this developmental process might need to be repeated 
each time an appeal is filed with the TSOB. While DHS believes the IFR 
did not impose any new costs (given that TSOB Review Panels would 
continue to issue decisions even if this rule was not promulgated), 
publication of the IFR did provide several benefits which are discussed 
qualitatively below.
    Codifying TSOB Review Panel procedures before the conclusion of 
presently pending and future ALJ proceedings eliminate the need to rely 
on the 2011 procedures. In addition, codifying TSOB Review Panel 
procedures serves the public's interest in government transparency, 
consistency in administrative review processes, and certainty of 
expectations regarding government operation. In the absence of codified 
procedures, the public would not have notice of the details regarding 
how a TSOB Review Panel is selected and operates, and U.S. citizens who 
may be adversely affected by FAA certificate action would not have a 
complete picture of the administrative process by which they may 
challenge TSA's Determination of Security Threat. Codified procedures 
allow the public to be informed about the operation of the Federal 
Government. Codification also provides certainty to U.S. citizens who 
may be adversely affected by FAA certificate action. This allows them 
to make informed decisions about whether to challenge TSA's 
Determination, instill confidence that they will have a full and fair 
opportunity to be heard, and plan for the entire administrative review 
process. Codified procedures provide the public with confidence that 
all appeals will be reviewed in the same manner.
    In addition, in this final rule, DHS makes four changes to the IFR 
in response to public comment. DHS is adding a citation to establish 
when an appeal must be filed, which will provide litigants with the 
information necessary to ensure timely appeals. DHS is adding a 
definition of the term ``substantial evidence,'' which will provide 
clarity for all parties on the standard of review. DHS is adding 
language to establish how allow litigants may consent to service via 
electronically/electronic service, which will make it easier for 
litigants to do so. Finally, DHS is adding language to provide a 
process to seek remand for a ``showing of good cause.'' Ensuring there 
is good cause to grant a motion to supplement the record through remand 
to the ALJ will ensure that additional proceedings are undertaken only 
when there is substantive reasoning for them.

B. Regulatory Flexibility Act Assessment

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121, title II, 110 Stat. 847, 857-74, requires 
Federal agencies to consider the potential impact of regulations on 
small businesses, small governmental jurisdictions, and small 
organizations during the development of their rules. However, when a 
rule is exempt from APA notice and comment requirements the RFA does 
not require an agency to prepare a regulatory flexibility analysis. 
Because this rule does not trigger APA notice and comment requirements, 
DHS is exempt from preparing a regulatory flexibility analysis for this 
rule. DHS does note, however, that this rule regulates individuals, and 
individuals are not small entities as contemplated by the RFA.

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804(2). This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign based companies in domestic and export markets.

E. Executive Order 13132

    This rule will not have substantial direct effects 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. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act Assessment

    This interim final rule does not call for a collection of 
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, 
et seq. This rule falls under the category of an administrative action 
or investigation involving an agency against specific individuals or 
entities and is therefore excluded from Paperwork Reduction Act 
requirements. 44 U.S.C. 3518(c)(1)(B) and 5 CFR 1320.4(a).

List of Subjects in 6 CFR Part 126

    Administrative practice and procedures, Appeals, Penalties, 
Reporting and recordkeeping requirements, Security measures.

The Amendments

    For the reasons set forth in the preamble, the Department of 
Homeland Security adds part 126 to Title 6, Code of Federal 
Regulations, to read as follows:

[[Page 17703]]

PART 126--TRANSPORTATION SECURITY OVERSIGHT BOARD REVIEW PANEL 
PROCESS AND PROCEDURES

Sec.
126.1 Purpose and scope.
126.3 Definitions.
126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk.
126.7 Function of TSOB Review Panel.
126.9 Scope of review.
126.11 Counsel.
126.13 Notice of appeal and service.
126.15 Entry of appearance.
126.17 Procedures for classified information, Sensitive Security 
Information (SSI), and other protected information.
126.19 Filing and supplementing the record.
126.21 Motions.
126.23 Briefs.
126.25 Oral argument.
126.27 Deliberations and action.
126.29 Effect of TSOB Review Panel action.
126.31 Administration of proceedings.

    Authority:  49 U.S.C. 115, 46111; Department of Homeland 
Security Delegation No. 7071.1.


Sec.  126.1  Purpose and scope.

    This part establishes the procedures by which a Transportation 
Security Oversight Board (TSOB) Review Panel reviews and acts to 
resolve an appeal from an Administrative Law Judge (ALJ) decision 
regarding a Determination of Security Threat made by the Administrator 
of the Transportation Security Administration (TSA).


Sec.  126.3  Definitions.

    Classified information has the meaning given to that term in 
Executive Order 13526 or any successor Executive Order.
     Communication technology means telephone or a videoconferencing 
platform.
    Other protected information means other information that the 
government is authorized by statute, regulation, or Executive order to 
withhold.
    Sensitive Security Information (SSI) means information described in 
49 CFR 1520.5.
    Substantial evidence means such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion.
    Transportation Security Oversight Board (TSOB) means the board 
established pursuant to 49 U.S.C. 115.
    Transportation Security Oversight Board (TSOB) Review Panel means 
the panel established pursuant to 49 U.S.C. 46111(d) to consider an 
appeal from a decision of an administrative law judge as the result of 
a hearing under 49 U.S.C. 46111(b).


Sec.  126.5  Appointment of TSOB Review Panel and TSOB Docket Clerk.

    (a) Upon request by the Chairman of the TSOB, TSOB members will 
designate at least one official who meets the criteria in paragraphs 
(a)(1) through (5) of this section to participate in a TSOB Review 
Panel pool for a period of two years. The Review Panel nominees must--
    (1) Be a member of the Senior Executive Service (SES) or a Senior 
Level (SL) employee;
    (2) Hold a security clearance commensurate with the record under 
review;
    (3) Not be employed by TSA or the Federal Aviation Administration 
(FAA);
    (4) To the extent practicable, have a legal background and be 
engaged in the practice of law on behalf of the United States 
Government; and
    (5) To the extent practicable, be familiar with transportation 
security issues.
    (b) Upon the expiration of each two-year period, TSOB members will 
again designate officials to participate in the TSOB Review Panel pool.
    (c) The General Counsel of the Department of Homeland Security, or 
the General Counsel's designee, will appoint an individual from within 
the Office of the General Counsel to serve as the TSOB Docket Clerk. 
The TSOB Docket Clerk will serve as the TSOB Review Panel's point of 
contact for both the public and the parties to ALJ proceedings.
    (d) When the TSOB Docket Clerk receives a properly and timely filed 
appeal from an ALJ's decision, the TSOB Chairperson selects at least 
three individuals from the TSOB Review Panel pool to serve on a Review 
Panel to review the ALJ's decision. The TSOB Chairperson has discretion 
to choose which individuals from the pool will serve on a TSOB Review 
Panel. In making selections for a TSOB Review Panel, the TSOB 
Chairperson will consider selecting at least one person with the 
qualifications set out in paragraph (a)(4) of this section to serve as 
a Panel Member, and will consider, based upon the composition of the 
pool as well as the issues raised in the appeal, appointing more than 
one person with the qualifications set out in paragraph (a)(4) to the 
TSOB Review Panel.


Sec.  126.7  Function of TSOB Review Panel.

    A TSOB Review Panel reviews an ALJ's decision regarding a 
Determination of Security Threat issued by the TSA Administrator and 
may affirm, modify, or reverse the ALJ's decision. The TSOB Review 
Panel also may remand the matter to the ALJ with instructions to 
address particular issues or consider additional testimony or evidence.


Sec.  126.9  Scope of review.

    (a) A TSOB Review Panel reviews an ALJ's decision to address 
whether the decision is supported by substantial evidence in the record 
before the TSOB Review Panel.
    (b) A TSOB Review Panel will not consider the constitutionality of 
any statute, regulation, Executive order, or order issued by the TSA.


Sec.  126.11  Counsel.

    (a)(1) Parties to proceedings before a TSOB Review Panel may be 
represented by an attorney who is in good standing with the bar of any 
State, district, territory, or possession of the United States. Parties 
desiring representation must obtain such representation at their own 
expense.
    (2) TSA will designate counsel to represent TSA before a TSOB 
Review Panel. The attorney must hold a security clearance that enables 
access to all materials related to the appeal.
    (b) The General Counsel of the Department of Homeland Security, or 
the General Counsel's designee, will appoint legal counsel to assist a 
TSOB Review Panel. Counsel appointed to assist the TSOB Review Panel 
will facilitate communication between the TSOB Docket Clerk and the 
TSOB Review Panel, and assist with legal research and drafting for the 
Panel, as needed. Appointed counsel must hold a security clearance that 
enables access to all materials related to the appeal.


Sec.  126.13  Notice of appeal and service.

    (a) Notice of appeal. A party seeking review of the ALJ's decision 
must file a notice of appeal with the TSOB Docket Clerk electronically 
at [email protected] or via certified U.S. mail at ATTN: TSOB 
Docket Clerk, Office of the General Counsel, Department of Homeland 
Security, Washington, DC, 20528-0485. A notice of appeal must be filed 
within 60 calendar days of the date of issuance of the ALJ's written 
decision.
    (b) Service. To file any document with a TSOB Review Panel, a party 
must send the document to the TSOB Docket Clerk electronically at 
[email protected], or via certified U.S. mail at ATTN: TSOB Docket 
Clerk, Office of the General Counsel, Department of Homeland Security, 
Washington, DC, 20528-0485. Parties are strongly encouraged to file all 
documents and consent to electronic service. A party may consent to 
electronic service by

[[Page 17704]]

filing a document expressly stating such a preference with the TSOB 
Docket Clerk and serving a copy on all other parties. Any document 
filed with the TSOB Docket Clerk (except a notice of protected 
information, the administrative record, ex parte motions, and documents 
containing classified information, Sensitive Security Information 
(SSI), or other protected information that accompanies a motion to 
supplement the record) must also be served on all other parties by 
certified U.S. mail or electronically/electronic service.
    (c) Filing date. For purposes of all deadlines in this part, the 
date of filing of a notice of appeal or any document filed with a TSOB 
Review Panel is the date on which the document is received by the TSOB 
Docket Clerk.
    (d) Untimely appeals. A TSOB Review Panel must reject and summarily 
dismiss a notice of appeal that is filed more than 60 calendar days 
after the date of issuance of the ALJ's written decision. A TSOB Review 
Panel may, in its discretion, accept an untimely notice of appeal upon 
a written showing of good cause for failure to meet the filing 
deadline.
    (e) Failure to perfect the appeal. A TSOB Review Panel may dismiss 
an appeal, on its own initiative or upon motion of any party, when a 
party has filed a notice of appeal but failed to perfect the appeal by 
timely filing a brief in accordance with Sec.  126.23.
    (f) Effect of dismissal of appeal. Where an appeal is dismissed in 
accordance with paragraphs (d) or (e) of this section the ALJ's written 
decision becomes final.


Sec.  126.15  Entry of appearance.

    (a) All parties to a proceeding before a TSOB Review Panel must 
enter their appearances in writing with the TSOB Docket Clerk within 15 
calendar days after filing or being served with a notice of appeal. A 
party's written notice of entry of appearance must identify counsel, if 
applicable.
    (b) Counsel beginning representation of a party after that party 
has already entered an appearance must file a separate notice of entry 
of appearance within 15 calendar days of beginning representation.


Sec.  126.17  Procedures for classified information, Sensitive Security 
Information (SSI), and other protected information.

    (a) Notice of protected information. Within 30 calendar days of 
filing or being served with a notice of appeal, TSA must file a notice 
of protected information indicating whether the record of proceedings 
before the ALJ contains classified information, SSI, or other protected 
information. The notice of protected information must be filed with the 
TSOB Docket Clerk in accordance with Sec.  126.13(b). If the TSA 
presented classified information, SSI, or other protected information 
to the ALJ at an ex parte proceeding or provided such information for 
in camera review during the ALJ proceedings, then the TSOB Review Panel 
will also consider that information at an ex parte proceeding or in 
camera.
    (b) Access to protected information. A TSOB Review Panel may not 
disclose Classified Information or other protected information to any 
non-government party or counsel. A TSOB Review Panel may not disclose 
SSI to any non-government party or counsel unless the TSA has 
determined that the party had a preexisting need to know specific SSI 
as a covered person pursuant to 49 CFR 1520.7 and 1520.11.


Sec.  126.19  Filing and supplementing the record.

    (a) Filing the record. The TSA must file a complete record of 
administrative proceedings, including a certified and unredacted 
transcript of all proceedings before the ALJ (including ex parte 
proceedings) and all material filed with the ALJ (including material 
containing classified information, SSI, or other protected information 
that was reviewed by the ALJ in camera), with the TSOB Docket Clerk 
within 30 calendar days after filing or being served with a notice of 
appeal. Upon motion filed by the TSA, or on its own initiative, the 
TSOB Review Panel may extend the time to file the record. The TSOB 
Docket Clerk notifies all parties of the date when the record is filed. 
Within 30 calendar days of the date the record is filed, non-government 
parties may file a motion requesting that the TSA provide them with a 
redacted copy of any part of the record (excluding ex parte proceedings 
and materials reviewed in camera) that they do not possess. The TSA 
redacts classified information or other protected information from any 
part of the record it provides to non-government parties, except to the 
extent that the TSA has determined that the party had a preexisting 
need to know specific SSI as a covered person pursuant to 49 CFR 1520.7 
and 1520.11.
    (b) Supplementing the record. (1) A party may file a motion to 
supplement the record when anything relevant to an issue on appeal 
occurs after the ALJ issued a decision, or the party can show good 
cause, as determined by the TSOB Review Panel, for failing to submit 
material for the record at an earlier stage of the administrative 
proceedings. When the TSA seeks to supplement the record with material 
that contains classified information, SSI or other protected 
information, it may file a motion to supplement the record ex parte.
    (2) A TSOB Review Panel may grant a motion to supplement the record 
when it finds that the supplemental material is relevant to an issue on 
appeal and that a condition described in paragraph (b)(1) of this 
section applies.
    (3) A TSOB Review Panel may grant a motion to supplement the record 
by remanding the case to the ALJ for additional proceedings, where good 
cause is shown.


Sec.  126.21  Motions.

    (a) Form of motions. (1) A motion filed with a TSOB Review Panel 
must comply with the requirements set forth in Sec.  126.23(c)(1) 
through (4).
    (2) Motions must be filed with the TSOB Docket Clerk and served on 
all parties in accordance with Sec.  126.13(b). The TSOB Docket Clerk 
provides all motions to the TSOB Review Panel.
    (b) Duty to confer. Before filing any motion, a party must confer 
or make reasonable, good-faith efforts to confer with all other parties 
to resolve the issues that are the subject of the motion. The moving 
party must state in the motion, or in a certificate attached to the 
motion, the specific efforts made to comply with this duty to confer. 
The moving party must also state in the motion the other parties' 
positions with regard to the relief requested. If no party opposes the 
relief requested in a motion, the moving party includes ``Unopposed'' 
in the motion's title. TSA does not have a duty to confer before filing 
an ex parte motion, but must provide notice to all parties that it has 
made an ex parte filing.
    (c) Motion hearings. Upon request of any party, or on its own 
initiative, a TSOB Review Panel may order the parties to appear for a 
hearing on any motion that was not filed ex parte. Motion hearings may 
be conducted via communication technology unless all parties agree to 
appear in person or the TSOB Review Panel in its discretion determines 
that an in person appearance is necessary for efficient administration 
of the hearing. The Review Panel considers expense and inconvenience to 
the parties, the importance of information security, and the quality 
and reliability of available communication technology when making these 
determinations.
    (d) Disposition. A TSOB Review Panel may, consistent with the 
requirements of due process and after providing the opposing party with 
an opportunity to

[[Page 17705]]

review and respond, grant or deny a motion at any time after it is 
filed.
    (e) Additional procedural requirements for motion practice. A TSOB 
Review Panel has discretion to establish via order served on the 
parties, additional procedural requirements regarding motion practice 
in response to the exigencies of a particular appeal. Such requirements 
may include, for example, time periods for filing responses and 
replies, a deadline for concluding all motion practice, and page 
limitations different from the default 35-page limit established in 
Sec.  126.23(c)(3). A TSOB Review Panel may not require disclosure of 
classified information, SSI, or other protected information.


Sec.  126.23  Briefs.

    (a) Appellant brief. (1) A party appealing the ALJ's decision must 
perfect the appeal by filing an appellant brief with the TSOB Docket 
Clerk and serving that brief on all other parties in accordance with 
Sec.  126.13(b) within 60 calendar days after the date on which TSA 
files the record in accordance with Sec.  126.19(a), unless all parties 
consent to an extension of the filing deadline and provide notice of 
such agreement to the TSOB Docket Clerk or the TSOB Review Panel 
extends the filing deadline upon a motion by the appellant.
    (2) The appellant brief must enumerate the appellant's objections 
to the ALJ's decision.
    (b) Appellee brief. Within 30 calendar days after being served with 
an appellant brief, a party may file an appellee brief in response with 
the TSOB Docket Clerk. Any such brief must be served on all other 
parties in accordance with Sec.  126.13(b) at the same time it is filed 
with the TSOB Docket Clerk. The parties may consent to an extension of 
the filing deadline and provide notice of such agreement to the TSOB 
Docket Clerk or the TSOB Review Panel may extend the deadline for 
filing an appellee brief upon a motion by the appellee.
    (c) Brief requirements. A brief submitted to a TSOB Review Panel 
must adhere to the following specifications:
    (1) The brief must be typewritten in Times New Roman, 12-point 
font, double-spaced, and, if submitted as a hard copy via certified 
U.S. mail, must be printed single-sided on 8 1/2-by-11 inch paper;
    (2) The brief must set forth the name, address, email address, and 
telephone number of the party or attorney filing it;
    (3) The brief must contain no more than 35 pages of text (excepting 
any tables, appendices, or cover sheets) unless prior permission to 
file excess pages has been granted by the TSOB Review Panel after 
consideration of a duly filed motion showing good cause as determined 
by the TSOB Review Panel;
    (4) If submitted as a hard copy via certified U.S. mail, the brief 
must be bound in any manner that is secure, does not obscure the text, 
and permits easy reproduction; and
    (5) If oral argument is desired, the brief should contain a request 
for oral argument that explains why oral argument will contribute 
substantially to the development of an issue on appeal.


 Sec.  126.25  Oral argument.

    (a) Upon receipt of a request from any party contained in a brief 
or in a motion, or on its own initiative, a TSOB Review Panel may order 
the parties to present oral argument. The Review Panel orders oral 
argument if it determines that oral argument will contribute 
substantially to the development of an issue on appeal.
    (b) A TSOB Review Panel has discretion, within the requirements of 
all relevant statutory and regulatory provisions for information 
security, to choose the method and location of oral argument. The 
Review Panel will consider expense and inconvenience to the parties, 
the importance of information security, the quality and reliability of 
available communication technology, and concern for the efficient 
administration of proceedings when establishing the method and location 
of oral argument.
    (c) A TSOB Review Panel has discretion to structure and establish 
procedural rules for oral argument via order served on the parties. 
Such rules may include time limits for argument and the order in which 
parties present argument.
    (d) Classified information, SSI, or other protected information may 
not be disclosed during oral argument. A TSOB Review Panel may hold ex 
parte proceedings to allow for the presentation of classified 
information, SSI, or other protected information.


Sec.  126.27  Deliberations and action.

    (a) Deliberations. TSOB Review Panel deliberations are closed 
proceedings. Any materials created by Review Panel members, the TSOB 
Docket Clerk, and the Review Panel's appointed counsel for use in 
deliberations are not part of the final administrative record.
    (b) Action. A TSOB Review Panel may affirm, modify, or reverse the 
ALJ's decision. It may also remand the matter to the ALJ with 
instructions to address particular issues or consider additional 
testimony or evidence.
    (1) A TSOB Review Panel requires a simple majority to decide an 
action.
    (2) In case of a disagreement among TSOB Review Panel members, a 
dissenting report may be served with the written explanation of the 
Review Panel's action. A dissenting report must be prepared in 
accordance with the requirements for the Review Panel's written 
explanation.
    (c) Written explanation. A TSOB Review Panel will explain its 
action in writing to the maximum extent permitted by prudent concern 
for the national security interests of the United States and applicable 
laws and regulations governing information disclosure. If necessary, 
the Review Panel may prepare its written explanation in both a 
protected format (which may contain classified information, SSI, and 
other protected information) and a non-protected format (which must not 
contain classified information, SSI, and other protected information). 
The Review Panel serves non-government parties with the non-protected 
written explanation and government parties with the protected written 
explanation. The Review Panel is prohibited from providing the 
protected written explanation to non-government parties; however, the 
protected written explanation, if any, is part of the final 
administrative record that TSA must submit to a U.S. Court of Appeals 
in the event that a party seeks judicial review of the Review Panel's 
action.
    (d) Timing. A TSOB Review Panel endeavors to resolve an appeal and 
issue a written explanation of its action to the parties no later than 
60 calendar days after the last of the following events:
    (1) Receipt of a timely filed appellant brief;
    (2) receipt of a timely filed appellee brief; or
    (3) Oral argument.


Sec.  126.29  Effect of TSOB Review Panel action.

    (a) Any person substantially affected by a TSOB Review Panel's 
action, or the TSA Administrator when he or she decides that the 
Panel's action will have a significant adverse impact on carrying out 
49 U.S.C. subtitle VII, part A, may obtain judicial review in an 
appropriate U.S. Court of Appeals in accordance with 49 U.S.C. 46110. 
The Administrators of the FAA and TSA must be made parties to any civil 
action filed in a U.S. Court of Appeals seeking review of a TSOB Review 
Panel action.

[[Page 17706]]

    (b) If judicial review is not obtained, the action of the TSOB 
Review Panel is final and binding on the parties for the purpose of 
resolving the particular decision under review.


Sec.  126.31   Administration of proceedings.

    (a) A TSOB Review Panel has authority to govern the conduct of its 
proceedings and internal operations by establishing any additional 
rules or procedures that are not inconsistent with this part.
    (b) If TSA withdraws its Determination of Security Threat at any 
time after a notice of appeal has been filed pursuant to Sec.  
126.13(a), the proceedings before the TSOB Review Panel are rendered 
moot and closed. TSA must file a notice of withdrawal of the 
Determination of Security Threat with the TSOB Docket Clerk within five 
calendar days of such withdrawal.
    (c) TSOB Review Panel proceedings will generally be closed to the 
public. A TSOB Review Panel may, in its discretion, open its 
proceedings to the public. Classified information, SSI, or other 
protected information shall not be disclosed during administrative 
proceedings, in accordance with Sec.  126.25(d).

Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-05131 Filed 3-8-24; 11:15 am]
BILLING CODE 9110-9B-P