[Federal Register Volume 74, Number 138 (Tuesday, July 21, 2009)]
[Rules and Regulations]
[Pages 36030-36055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17133]
[[Page 36029]]
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Part IV
Department of Homeland Security
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Transportation Security Administration
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49 CFR Part 1503
Revision of Enforcement Procedures; Final Rule
Federal Register / Vol. 74 , No. 138 / Tuesday, July 21, 2009 / Rules
and Regulations
[[Page 36030]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1503
[Docket No. TSA-2009-0013]
RIN 1652-AA62
Revision of Enforcement Procedures
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule; request for comments.
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SUMMARY: The Transportation Security Administration (TSA) amends its
Investigative and Enforcement Procedures in this final rule to conform
to the Implementing Recommendations of the 9/11 Commission Act of 2007.
The rule establishes procedures by which TSA may issue civil monetary
penalties for violations of any statutory requirement administered by
TSA, including surface transportation requirements and Transportation
Worker Identification Credentials requirements. The rule also clarifies
and reorganizes TSA's investigative and enforcement procedures, and
makes inflation adjustments to the maximum civil monetary penalty
amounts.
DATES: Effective Date: This rule is effective August 20, 2009.
Comment Date: Comments must be received by September 21, 2009.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, to the Federal Docket Management System (FDMS), a
government-wide, electronic docket management system, using any one of
the following methods:
Electronically: You may submit comments through the Federal
eRulemaking portal at http://www.regulations.gov. Follow the online
instructions for submitting comments.
Mail, In Person, or Fax: Address, hand-deliver, or fax your written
comments to the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001; Fax 202-493-2251. The
Department of Transportation (DOT), which maintains and processes TSA's
official regulatory dockets, will scan the submission and post it to
FDMS.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Sarah Tauber, Office of Chief Counsel,
TSA-2, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 20598-6002; telephone (571) 227-3964; facsimile (571)
227-1380; e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites interested persons to participate in this rulemaking by
submitting written comments, data, or views. TSA also invites comments
relating to the economic, environmental, energy, or Federalism impacts
that might result from this rulemaking action. See ADDRESSES above for
information on where to submit comments.
With each comment, please identify the docket number at the
beginning of your comments. TSA encourages commenters to provide their
names and addresses. The most helpful comments reference a specific
portion of the rulemaking, explain the reason for any recommended
change, and include supporting data. The public may submit comments and
material electronically, in person, by mail, or fax as provided under
ADDRESSES, but please submit your comments and material by only one
means. If you submit comments by mail or delivery, submit them in an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you want TSA to acknowledge receipt of comments submitted by
mail, include with your comments a self-addressed, stamped postcard on
which the docket number appears. We will stamp the date on the postcard
and mail it to you.
TSA will file in the public docket all comments received by TSA,
except for comments containing confidential information and sensitive
security information (SSI).\1\ TSA will consider all comments received
on or before the closing date for comments and will consider comments
filed late to the extent practicable. The docket is available for
public inspection before and after the comment closing date.
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\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in the FOR FURTHER INFORMATION CONTACT
section.
TSA will not place comments containing SSI in the public docket and
will handle them in accordance with applicable safeguards and
restrictions on access. TSA will hold documents containing SSI,
confidential business information, or trade secrets in a separate file
to which the public does not have access, and place a note in the
public docket that TSA has received such materials from the commenter.
However, if TSA determines that portions of these comments may be made
publicly available, TSA may include a redacted version of the comment
in the public docket. If TSA receives a request to examine or copy
information that is not in the public docket, TSA will treat it as any
other request under the Freedom of Information Act (FOIA), 5 U.S.C.
552, and the Department of Homeland Security's (DHS') FOIA regulation
found in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review the applicable Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR 19477), or you may visit http://DocketInfo.dot.gov.
You may review TSA's electronic public docket on the Internet at
http://www.regulations.gov. In addition, DOT's Docket Management
Facility provides a physical facility, staff, equipment, and assistance
to the public. To obtain assistance or to review comments in TSA's
public docket, you may visit this facility between 9 a.m. to 5 p.m.,
Monday through Friday, excluding legal holidays, or call (202) 366-
9826. This docket operations facility is located in the West Building
Ground Floor, Room W12-140 at 1200 New Jersey Avenue, SE., Washington,
DC 20590.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at http://www.regulations.gov;
[[Page 36031]]
(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or
(3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov and accessing the link for ``Research Center'' at the top
of the page.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This Document
9/11 Act--Implementing Recommendations of the 9/11 Commission Act of
2007
ALJ--Administrative Law Judge
CPI--Consumer Price Index
FNPCP--Final Notice of Proposed Civil Penalty
FOIA--Freedom of Information Act
NPCP--Notice of Proposed Civil Penalty
OACP--Order Assessing Civil Penalty
SSI--Sensitive Security Information
TWIC--Transportation Worker Identity Credential
USCG--United States Coast Guard
Table of Contents
I. Summary of the Rulemaking
II. Background
A. New Civil Penalty Authority
B. Summary of the Civil Penalty Process
1. Notice of Proposed Civil Penalty
2. Informal Conference
3. Order Assessing a Civil Penalty
4. Final Notice of Proposed Civil Penalty
5. Formal Hearing
6. Appeal From the ALJ Initial Decision
7. Appeal From the TSA Decision Maker's Final Decision and Order
III. Reorganization Summary
IV. Section-by-Section Analysis
A. Subpart B--Scope of Investigative and Enforcement Procedures
1. TSA Requirements (Sec. 1503.101)
2. Terms Used in This Part (Sec. 1503.103)
B. Subpart D--Non-Civil Penalty Enforcement
C. Subpart E--Assessment of Civil Penalties by TSA
1. Maximum Penalty Amounts (Sec. 1503.401)
2. Delegation of Authority (Sec. 1503.403)
3. Injunctions (Sec. 1503.405)
4. Military Personnel (Sec. 1503.407)
5. Service of Documents (Sec. 1503.409)
6. Computation of Time (Sec. 1503.411)
7. Notice of Proposed Civil Penalty (Sec. 1503.413)
8. Request for Portions of the Enforcement Investigative Report
(EIR) (Sec. 1503.415)
9. Final Notice of Proposed Civil Penalty and Order (Sec.
1503.417)
10. Order Assessing Civil Penalty (Sec. 1503.419)
11. Streamlined Civil Penalty Procedures for Certain Security
Violations (Sec. 1503.421)
12. Consent Orders (Sec. 1503.423)
13. Compromise Orders (Sec. 1503.425)
14. Request for a Formal Hearing (Sec. 1503.427)
15. Filing of Documents With the Enforcement Docket Clerk (Sec.
1503.429)
16. Certification of Documents (Sec. 1503.431)
D. Subpart G--Rules of Practice in TSA Civil Penalty Actions
1. Applicability (Sec. 1503.601)
2. Administrative Law Judges (Sec. 1503.607)
3. Complaint (Sec. 1503.609)
4. Consolidation and Separation of Cases (Sec. 1503.613)
5. Extension of Time (Sec. 1503.617)
6. Withdrawal of Complaint or Request for Hearing (Sec.
1503.623)
7. Discovery (Sec. 1503.633)
8. Standard of Proof (Sec. 1503.637)
9. Argument Before the ALJ (Sec. 1503.653)
10. Initial Decision (Sec. 1503.655)
11. Appeal From Initial Decision (Sec. 1503.657)
V. Administrative Procedure Act
VI. Paperwork Reduction Act
VII. Economic Impact Analyses
A. Regulatory Evaluation Summary
B. Executive Order 12866 Assessment
C. Costs and Benefits
D. Regulatory Flexibility Act Assessment
E. International Trade Impact Assessment
F. Unfunded Mandates Assessment
VIII. Other Analyses
A. Executive Order Federalism
B. Environmental Analysis
C. Energy Impact Analysis
List of Subjects in 49 CFR Part 1503
The Amendments
I. Summary of the Rulemaking
In this rule, TSA makes several changes to TSA's enforcement
procedures, codified at 49 CFR part 1503. As described more fully
below, this rule--
Reorganizes and clarifies TSA's enforcement procedures and
make them easier to use;
Applies TSA's enforcement procedures to violations of
surface transportation requirements and of TSA's Transportation Worker
Identification Credential requirements, as provided in sections 1302
and 1304(e) of the Implementing Recommendations of the 9/11 Commission
Act of 2007, Public Law 110-53, 121 Stat. 266, 390, Aug. 3, 2007 (9/11
Act); and
Adjusts for inflation the maximum civil penalty amounts,
in accordance with the Federal Civil Penalty Inflation Adjustment Act
of 1990, Public Law 101-410 (Adjustment Act), 28 U.S.C. 2461 note.
II. Background
This rulemaking implements certain provisions of the 9/11 Act that
expand TSA's civil penalty authority.\2\ This section describes the
relevant 9/11 Act provisions and TSA's enforcement process.
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\2\ Pub. L. 110-53, section 1302(a), 121 Stat. 390 (Aug. 3,
2007).
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A. New Civil Penalty Authority
Section 1302(a) of the 9/11 Act applies civil penalties provisions
to: (1) Any provision of title 49 U.S.C. administered by TSA, including
violations of any surface transportation requirements; and (2) any
violations of ch. 701 of title 46 U.S.C., which governs transportation
worker identification credentials (TWIC).\3\ TSA may assess a maximum
penalty per case of $50,000 if the violation is committed by an
individual or small business. TSA may assess a maximum penalty amount
per case of $400,000 if the violation is committed by a person other
than an individual or small business.\4\ A Federal court may assess
penalties exceeding these amounts.\5\
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\3\ Pub. L. 110-53, section 1302(a), 121 Stat. 390 (Aug. 3,
2007). TSA exercises this function under delegated authority from
the Secretary.
\4\ 49 U.S.C. 114(v)(3)(D).
\5\ 49 U.S.C. 114(v)(3)(C).
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Prior to imposing a civil penalty, TSA must provide to the person
against whom the penalty is to be imposed: (1) Written notice of the
proposed penalty; and (2) the opportunity to request a hearing on the
proposed penalty, if TSA receives the request not later than 30 days
after the date on which the person receives notice.\6\ Investigations
and proceedings governing such cases must follow the requirements set
forth in ch. 461 of title 49 U.S.C., which govern aviation security
matters.\7\
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\6\ 49 U.S.C. 114(v)(3)(E).
\7\ 49 U.S.C. 114(v)(5).
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The 9/11 Act establishes additional procedural requirements in
cases involving public transportation agencies. Under section 1304(e)
of the 9/11 Act, prior to imposing a civil penalty against a public
transportation agency, TSA is required to give written notice of the
violation and a reasonable opportunity to correct the violation or
propose an alternative means of compliance acceptable to TSA. TSA may
not take legal enforcement action against a public transportation
agency unless TSA has provided such notice and the public
transportation agency fails to correct the violation or propose
[[Page 36032]]
an alternative means of compliance acceptable to TSA within the
timeframe provided in the notice.\8\
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\8\ See Pub. L. 110-53, section 1304(e)(2), 121 Stat. 393.
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Prior to enactment of section 1302 of the 9/11 Act, TSA assessed
administrative civil penalties only for violations of aviation security
related statutes under 49 U.S.C. ch. 449, and 49 U.S.C. 46302 and
46303. TSA's procedures for assessing civil penalties for such
violations are set forth at 49 CFR part 1503. This rule amends part
1503 to expand its application to violations of any statutory
requirement administered by TSA, including surface transportation
requirements and TWIC requirements, in accordance with the provisions
of the 9/11 Act.
B. Summary of the Civil Penalty Process
The following is a general summary of the process TSA currently
uses to assess a civil penalty for violations of the statutes,
regulations, and orders it administers. The rule applies this process,
with certain changes discussed below, to violations of surface
transportation and TWIC requirements, to include: (1) TWIC; \9\ (2)
commercial drivers' licenses with hazardous material endorsements (49
CFR parts 1570 and 1572); and (3) rail transportation security (49 CFR
part 1580).\10\
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\9\ TWIC is a joint program with the United States Coast Guard.
TSA enforces its regulatory program at 49 CFR parts 1570 and 1572,
and the Coast Guard enforces its regulations at 33 CFR parts 101-
106.
\10\ See Rail Transportation Security; final rule, 73 FR 72130
(Nov. 26, 2008).
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1. Notice of Proposed Civil Penalty
TSA initiates a civil penalty action by sending the alleged
violator (the respondent) a Notice of Proposed Civil Penalty (NPCP),
which states the statute, regulation, or order allegedly violated, the
facts TSA believes establish the violation, and the amount of the
penalty TSA proposes to impose for the violation. The NPCP also informs
the respondent that he or she has 30 days from receipt to either: (1)
Pay the penalty; or (2) provide information demonstrating that a
violation did not occur, that the penalty should be lower because of
mitigating circumstances, or that the respondent is unable to pay the
proposed penalty. If the respondent does not pay the penalty, they must
also request an informal conference with TSA counsel; or request a
formal hearing before an Administrative Law Judge (ALJ).
Pursuant to section 1304(e) of the 9/11 Act, TSA will not send an
NPCP to a public transportation agency unless TSA first gives the
public transportation agency written notice of the violation and a
reasonable opportunity to correct the violation, or to propose an
alternative means of compliance acceptable to TSA, and the public
transportation agency fails to do so within the timeframe provided in
the notice.\11\ Reasonableness will depend on the totality of the
circumstances, including the security consequences of the violation.
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\11\ See Pub. L. 110-53, section 1304(e)(2), 121 Stat. 393.
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2. Informal Conference
The informal conference provides the respondent with an opportunity
to discuss the alleged violation informally with TSA counsel and to
present exculpatory evidence. This conference can be held by telephone
or in person. Many TSA enforcement cases settle as a result of
information exchanged or representations made at (or after) the
informal conference.
3. Order Assessing a Civil Penalty
If the respondent elects to pay the penalty, or if the matter
settles (either at the informal conference or before or after the
informal conference), TSA counsel issues an Order Assessing a Civil
Penalty (OACP). The order states the law violated, the facts
establishing the violation, the amount of the penalty, and how and by
when the respondent is to pay the penalty.
4. Final Notice of Proposed Civil Penalty
In the event the respondent does not respond to the NPCP within 30
days, or in the event the respondent and TSA counsel cannot agree on a
penalty amount during settlement discussions, TSA counsel issues a
Final Notice of Proposed Civil Penalty (FNPCP). The FNPCP gives the
respondent 15 days from receipt to: (1) Pay the penalty; (2) reach an
agreed penalty amount with TSA counsel; or (3) request a formal hearing
before an ALJ. Under the current regulations, the FNPCP also states
that if the respondent does not respond to the FNPCP within 15 days, or
if the matter has not settled and the respondent has not requested a
formal hearing within 15 days, TSA counsel will issue an OACP in the
penalty amount proposed by the FNPCP. One of the changes this rule
makes is to have the FNCP automatically convert to an OACP, if within
15 days the respondent has not responded to the FNPCP, settled the
case, or requested a formal hearing.
5. Formal Hearing
A respondent must request a formal hearing in writing within 30
days of receipt of the NPCP, or within 15 days of receipt an FNPCP. The
respondent must send the request for a formal hearing to the
Enforcement Docket Clerk and a copy of the request for a formal hearing
to the TSA counsel.
An Administrative Law Judge (ALJ) conducts the formal hearing. The
procedural rules governing formal hearings are set forth at 49 CFR part
1503, subpart G. Within 20 days of receipt of a timely request for
hearing, TSA counsel will file a Complaint reciting the allegations in
the NPCP or FNPCP, as applicable. The respondent must file a written
Answer to the Complaint within 30 days of receipt.
The matter proceeds to a formal hearing unless the ALJ grants a
motion to dismiss or a motion for a decision (or unless the case
settles). At the formal hearing, both parties have the opportunity to
present witnesses and other evidence. The ALJ will issue an Initial
Decision at the close of a hearing or shortly thereafter.
6. Appeal From the ALJ Initial Decision
Either party may appeal the ALJ Initial Decision to the TSA
Decision Maker. The TSA Decision Maker is the Assistant Secretary of
Homeland Security (Transportation Security Administration) or his or
her designee. The party appealing the decision must file a written
Notice of Appeal with the Enforcement Docketing Center within 10 days
of receipt of the Initial Decision and must also file an appeal brief
with the Docketing Center within 50 days of receipt of the Initial
Decision. Reply briefs may be filed up to 35 days after receipt of the
appeal brief. The address of the Docketing Center is: Docketing Center,
U.S. Coast Guard, 40 S. Gay Street, Room 412, Baltimore, MD 21202-4022,
Attn: Enforcement Docket Clerk.
After receipt of the appeal brief (and any reply brief), the TSA
Decision Maker will render a Final Decision and Order. A party may
request the TSA Decision Maker to reconsider a Final Decision and Order
by filing a Petition for Reconsideration within 30 days of the Final
Decision.
7. Appeal From the TSA Decision Maker's Final Decision and Order
Either party may appeal a Final Decision of the TSA Decision Maker
to an appropriate U.S. Circuit Court of Appeals within 60 days after
the Final Order has been served on the party.
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III. Reorganization Summary
This rule reorganizes part 1503 and clarifies its provisions
without substantive change. TSA intends, in the recodification of these
regulations, to conform to the understood policy, intent, and purpose
of the original regulations, with such amendments and corrections as
will remove ambiguities, contradictions, and other imperfections. The
reorganization is illustrated in the accompanying redistribution table
in Table 1 that follows.
Table 1--Redistribution of 49 CFR Part 1503
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Former section New section New title
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1503.1...................... 1503.201....... Reports of violations.
1503.3...................... 1503.203....... Investigations.
1503.5...................... 1503.801....... Formal complaints.
1503.7...................... 1503.205....... Records, documents, and reports.
1503.11..................... 1503.301....... Warning notices and letters of correction.
1503.12..................... 1503.415....... Request for portions of the enforcement investigative report
(EIR).
1503.13..................... 1503.423....... Consent orders.
1503.15..................... 1503.701....... Applicability of this subpart.
1503.703....... Civil penalty letter; referral.
1503.16..................... 1503.401....... Maximum penalty amounts; jurisdiction.
1503.403....... Delegation of authority.
1503.413....... Notice of Proposed Civil Penalty.
1503.417....... Final Notice of Proposed Civil Penalty and Order.
1503.419....... Order Assessing Civil Penalty.
1503.425....... Compromise orders.
1503.427....... Request for a formal hearing.
1503.657(a).... Appeal from initial decision.
1503.21..................... 1503.407....... Military personnel.
1503.25..................... 1503.405....... Injunctions.
1503.29..................... 1503.421....... Streamlined civil penalty procedures for certain security
violations.
1503.419....... Order Assessing Civil Penalty.
1503.201.................... 1503.601....... Applicability.
1503.202.................... 1503.103....... Terms used in this part.
1503.203.................... 1503.603....... Separation of functions.
1503.204.................... 1503.605....... Appearances and rights of parties.
1503.651....... Record.
1503.205.................... 1503.607....... Administrative law judges.
1503.206.................... 1503.619....... Intervention.
1503.207.................... 1503.431....... Certification of documents.
1503.208.................... 1503.609....... Complaint.
1503.209.................... 1503.409....... Service of documents.
1503.429....... Filing of documents with the Enforcement Docket Clerk.
1503.611....... Answer.
1503.210.................... 1503.429....... Filing of documents with the Enforcement Docket Clerk.
1503.211.................... 1503.409....... Service of documents.
1503.212.................... 1503.411....... Computation of time.
1503.213.................... 1503.617....... Extension of time.
1503.214.................... 1503.621....... Amendment of pleadings.
1503.215.................... 1503.623....... Withdrawal of complaint or request for hearing.
1503.216.................... 1503.625....... Waivers.
1503.217.................... 1503.627....... Joint procedural and discovery schedule.
1503.218.................... 1503.629....... Motions.
1503.219.................... 1503.631....... Interlocutory appeals.
1503.220.................... 1503.633....... Discovery.
1503.221.................... 1503.615....... Notice of hearing.
1503.222.................... 1503.635....... Evidence.
1503.223.................... 1503.637....... Standard of proof.
1503.224.................... 1503.639....... Burden of proof.
1503.225.................... 1503.641....... Offer of proof.
1503.226.................... 1503.643....... Public disclosure of evidence.
1503.227.................... 1503.645....... Expert or opinion witnesses.
1503.228.................... 1503.647....... Subpoenas.
1503.229.................... 1503.649....... Witness fees.
1503.230.................... 1503.651....... Record.
1503.231.................... 1503.653....... Argument before the ALJ.
1503.232.................... 1503.655....... Initial decision.
1503.233.................... 1503.655(d).... Effect of initial decision.
1503.657....... Appeal from initial decision.
1503.234.................... 1503.659....... Petition to reconsider or modify a final decision and order of
the TSA decision maker on appeal.
1503.235.................... 1503.661....... Judicial review of a final order.
1503.301.................... 1503.901....... Scope and purpose.
[[Page 36034]]
1503.303.................... 1503.903....... Definitions.
1503.305.................... 1503.401....... Maximum penalty amounts.
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IV. Section-by-Section Analysis
TSA makes amendments and corrections as will remove ambiguities,
contradictions, and other imperfections in the provisions of part 1503
discussed below. The changes begin with subpart B. Subpart A is
reserved. Sections of the rule that were reorganized without change are
not discussed in this preamble.
A. Subpart B--Scope of Investigative and Enforcement Procedures
1. TSA Requirements (Sec. 1503.101)
For purposes of this part, TSA adopts the term ``TSA requirements''
to refer to the universe of statutory, regulatory, and other legal
requirements, the violation of which could give rise to TSA
enforcement. Accordingly, the revised part 1503 applies to enforcement
actions for violations of any TSA surface transportation requirement
under title 49 U.S.C. and the TWIC requirements TSA has issued under 46
U.S.C. ch. 701.
2. Terms Used in This Part (Sec. 1503.103)
Section 1503.103 removes the definition of ``complainant'' because
it is no longer used in the revised part 1503. The definitions of
``complaint'' and ``order assessing civil penalty'' are removed because
they are defined in the specific sections where they are used. Section
1503.103 adds a definition of ``enforcement investigative report
(EIR)'', which appears in the current part 1503, but is not defined.
This rule amends the definition of ``mail'' by clarifying that it
includes regular U.S. mail service. In addition, the rule deletes
reference to overnight express courier service in the definition of
``mail.'' Overnight express courier service is more appropriately
covered under the current definition of ``personal delivery,'' which
includes ``use of a contract or express messenger service.''
Accordingly, the definition of ``personal delivery'' is amended to
include reference to an overnight express courier service.
The rule amends the definition of ``pleading'' to include not only
a complaint, answer, and amendment to the complaint or answer, but also
any other written submission to the ALJ or a party during the course of
the hearing proceedings.
The rule codifies the statutory definition of ``public
transportation agency'' as a publicly owned operator of public
transportation eligible to receive Federal assistance under 49 U.S.C.
ch. 53.\12\
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\12\ 9/11 Act at section 1402(5).
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Under the current part 1503, the term ``respondent'' is defined as
``a person, corporation, or company named in a complaint.'' This rule
amends this definition to be ``the person named in a Notice of Proposed
Civil Penalty, a Final Notice of Proposed Civil Penalty and Order, or a
complaint.'' This promotes clarity in the regulation by permitting the
use of ``respondent'' to refer to the alleged violator at any stage in
the enforcement process.
B. Subpart D--Non-Civil Penalty Enforcement
Subpart D (Warning Notices and Letters of Correction (Sec.
1503.301)) broadens the scope of these provisions making them
applicable to cases involving any TSA requirement. It also codifies the
provisions of section 1304(e) of the 9/11 Act requiring that: (1) TSA
give written notice of a violation and a reasonable opportunity to
correct the violation or propose an alternative means of compliance
before taking legal enforcement action against a public transportation
agency; and (2) TSA not initiate civil enforcement action for
violations of administrative and procedural requirements pertaining to
transportation security grant programs under Public Law 110-53.\13\ In
determining reasonableness under this provision, TSA will consider the
totality of the circumstances.
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\13\ See Pub. L. 110-53, section 1304(e), 121 Stat. 393.
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C. Subpart E--Assessment of Civil Penalties by TSA
1. Maximum Civil Penalty Amounts (Sec. 1503.401)
Section 1503.401 updates the maximum civil penalty amounts for
civil penalties assessed by TSA. Congress raised the maximum civil
penalty amounts per violation for certain aviation security statutes.
Homeland Security Act of 2002, Public Law 107-296, section 1602, 116
Stat. 2135 (Nov. 25, 2002). Congress also raised the total civil
penalty amount per case that TSA may assess. Vision 100--Century of
Aviation Reauthorization Act (Vision 100) (Pub. L. 108-176, sec.
503(b), 117 Stat. 2490 (Dec. 12, 2003).
Section 1503.401 also adds reference to the maximum civil penalty
amounts under the 9/11 Act for violations of any statute administered
by TSA. Statutes administered by TSA include both aviation security
statutes and statutes authorizing or directing TSA to impose surface
transportation requirements. See 49 U.S.C. ch. 449, and secs. 46302,
46303, and 46 U.S.C. ch. 701. TSA may impose penalties under these
statutes for violations of any aviation or surface transportation
security requirements, including violations of TSA's TWIC requirements,
whether imposed by an implementing regulation or order.
Paragraph (d) adjusts the applicable maximum penalties for
inflation as described below.
The Federal Civil Penalties Inflation Adjustment Act of 1990,
Public Law 101-410 (Adjustment Act), 28 U.S.C. 2461 note, provides for
the regular evaluation of civil monetary penalties to ensure that they
continue to maintain their deterrent effect and that penalty amounts
due the Federal Government are properly accounted for and collected.
On April 26, 1996, the President signed into law the Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Public Law
104-134. Section 31001 of that Act, also known as the Debt Collection
Improvement Act of 1996 (Improvement Act), amended the Adjustment Act
to provide more effective tools for government-wide collection of
delinquent debt. Section 31001(s)(1) of the Improvement Act added a new
section 7 to the Adjustment Act providing that any increase in a civil
monetary penalty made pursuant to this Act shall apply only to
violations that occur after the date the increase takes effect. The
Improvement Act provides that the adjustments for inflation required by
the Adjustment Act should be made at least every four years.
The amounts of the adjustments are determined according to a
detailed formula specified in the Adjustment Act, incorporating a
``cost-of-living adjustment'' that is defined in section 5(b) of the
Adjustment Act as being the
[[Page 36035]]
percentage (if any) for each civil monetary penalty by which--
(1) The Consumer Price Index for the month of June of the calendar
year preceding the adjustment, exceeds
(2) The Consumer Price Index for the month of June of the calendar
year in which the amount of such civil monetary penalty was last set or
adjusted pursuant to law.
Section 31001(s)(2) of the Improvement Act also provides that the
first adjustment of a civil monetary penalty made pursuant to these
procedures may not exceed 10 percent of the penalty. Congress reenacted
the penalties in 2003. This rule, accordingly, represents the first
adjustment of the civil monetary penalties after the last Congressional
action.
Subpart E of this rule incorporates the provisions previously in
subpart H and establishes new civil penalty maximums based on an
adjustment for inflation for violations of 49 U.S.C. ch. 449 (except
secs. 44902, 44903(d), 44907(a)-(d)(1)(A), 44907(d)(1)(C)-(f), 44908,
and 44909), or 49 U.S.C. 46302 or 46303.
TSA has adjusted maximum penalties as follows:
The CPI increased by 21.63 percent from June 2002 to June 2008.\14\
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\14\ Table 24, Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. City Average, All Items.'' See http://www.bls.gov/cpi/cpid0904.pdf.
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Based on this increase, the inflation adjusted maximum for the
$10,000 civil penalty amount would be $12,163. However, the $10,000
maximum amount is adjusted to $11,000 because this is the first
adjustment after Congress increased the penalties in 2003. As such, it
is limited to an increase of 10 percent. The inflation adjusted maximum
for the $25,000 civil penalty amount would be $30,408. However, as
adjusted the amount is $27,500, 10 percent above the amount as
increased by Congress in 2003. Upon the effective date of today's rule,
these new civil penalty maximums become effective. The $10,000 maximum
for violations of other provisions of title 49 and title 46 U.S.C. ch.
701 is not being adjusted at this time because it is a newly enacted
penalty amount.
2. Delegation of Authority (Sec. 1503.403)
Section 1503.403 makes minor revisions to former Sec. 1503.16(c),
delegating to TSA's Chief Counsel and the Deputy Chief Counsel for
Enforcement the authority to prosecute civil enforcement cases and
refer them to the Attorney General, as necessary. Section 1503.403
changes the title of the Deputy Chief Counsel and makes explicit the
authority of the Chief Counsel or Deputy Chief Counsel for Enforcement
to negotiate lower civil penalties than those that TSA initially
proposed.
3. Injunctions (Sec. 1503.405)
Section 1503.405 incorporates the provisions regarding the
institution of injunctions currently codified in Sec. 1503.25, and
expands their scope to cover any violation of title 49 U.S.C.
administered by TSA or TSA's TWIC requirements under 46 U.S.C. ch. 701.
4. Military Personnel (Sec. 1503.407)
The current regulation provides that the Chief Counsel or Deputy
Chief Counsel for Civil Enforcement will refer such cases to the
appropriate military authority for such disciplinary action, as that
authority considers appropriate. Section 1503.407 of this rule expands
the delegation to authorize any designated agency official to make such
referrals and expands the scope of the section to encompass violations
of any TSA requirement.
5. Service of Documents (Sec. 1503.409)
Section 1503.409 amends current Sec. 1503.211, which governs
service of documents in the context of a formal hearing. Section
1503.409 governs the service of documents at all stages of the civil
enforcement process, beginning with the service of a notice of proposed
civil penalty. In addition, this section, as amended, permits service
to be made by electronic mail or facsimile transmission, if consented
to in writing by the person served. Even in such cases, however,
service by electronic mail or facsimile transmission will not be
effective if the party making service obtained credible information
indicating that the attempted service did not reach the person to be
served. In addition, for pleadings served during the formal hearing
process, the party making service must file with the Enforcement Docket
Clerk a copy of the opposing party's consent to receive service by
electronic mail or facsimile transmission. The date of service by
electronic mail or facsimile transmission is the date of transmission.
See F.R. Civ. P. 5(b)(2)(E).
6. Computation of Time (Sec. 1503.411)
Section 1503.411 amends current Sec. 1503.212, which governs the
computation of time for purposes of deadlines applicable in the context
of the formal hearing process. Section 1503.411 expands the application
of this section to time requirements at any stage of the civil
enforcement process.
7. Notice of Proposed Civil Penalty (Sec. 1503.413)
When TSA determines that a person has violated a TSA requirement
and that a civil penalty is warranted, the agency issues a Notice of
Proposed Civil Penalty to the alleged violator. Section 1503.413
revises without significant change the provisions governing the
issuance of Notices of Proposed Civil Penalty currently codified at
Sec. 1503.16(d) and updates the address for TSA's Enforcement Docket
Clerk, which now is located at the United States Coast Guard (USCG) ALJ
Docketing Center, 40 S. Gay Street, Room 412, Baltimore, Maryland
21202-4022.
8. Request for Portions of the Enforcement Investigative Report (EIR)
(Sec. 1503.415)
Section 1503.415 revises slightly the provisions currently codified
at Sec. 1503.12 governing the release of limited investigative
materials to the recipient of a Notice of Proposed Civil Penalty. When
TSA issues a Notice of Proposed Civil Penalty, the respondent may
request portions of the relevant investigative report that are not
privileged (e.g., under the deliberative process, attorney work-
product, or attorney-client privileges). This information may contain
Sensitive Security Information (SSI), which is restricted from public
disclosure under 49 CFR part 1520. TSA will provide this information to
the respondent for the sole purpose of preparing a response to the
allegations contained in the Notice of Proposed Civil Penalty. The
individual receiving SSI under this provision must comply with 49 CFR
part 1520, which permits TSA to require a background check and imposes
other conditions, as well as the requirements to manage the information
in accordance with part 1520. Any violation of 49 CFR part 1520 by the
respondent would be a violation of TSA requirements and subject to
additional enforcement action.
9. Final Notice of Proposed Civil Penalty and Order (Sec. 1503.417)
Section 1503.417 makes one significant change in the provisions
governing the issuance of Final Notices of Proposed Civil Penalty
currently codified at Sec. 1503.16(e). The change is intended to
reduce the time necessary to resolve civil penalty cases.
Under the current regulation, TSA issues a Final Notice of Proposed
Civil Penalty when: (1) The alleged violator fails to respond to the
Notice of Proposed Civil Penalty within 30 days after receipt of that
notice; or (2) the
[[Page 36036]]
parties have engaged in settlement discussions but have not reached a
settlement. After the Final Notice of Proposed Civil Penalty is issued,
the respondent has 15 days from receipt to: (1) Pay the proposed civil
penalty; (2) negotiate and pay a lesser amount; or (3) request a formal
hearing. If the respondent pays the penalty or fails to exercise the
other two options, TSA issues an Order Assessing Civil Penalty, which
ends the enforcement process and makes the civil penalty final.
Amended Sec. 1503.417, in conjunction with amended Sec.
1503.419(b), shortens this process by making the Final Notice of
Proposed Civil Penalty automatically convert to an Order Assessing
Civil Penalty if one of the events in Sec. 503.419(b) has occurred,
eliminating the need for TSA to issue a separate Order Assessing Civil
Penalty. This change will not affect the procedural rights of the
alleged violator; rather, it will streamline the process and allow
quicker resolution of cases, once a respondent has exercised, or failed
to exercise, those procedural rights that are available. TSA currently
uses this streamlined process for routine enforcement actions against
individuals who bring prohibited items through airport screening
checkpoints. Thus, the revision to Sec. 1503.417 primarily affects
enforcement actions against entities, such as airports and air
carriers. Under Sec. 1503.417, the Final Notice of Proposed Civil
Penalty is now called a Final Notice of Civil Penalty and Order
(``Final Notice and Order'').
10. Order Assessing Civil Penalty (Sec. 1503.419)
Section 1503.419 revises the provisions governing the issuance of
Orders Assessing Civil Penalty currently codified at Sec. 1503.16(b),
with the change discussed above regarding the automatic conversion of a
Final Notice and Order to an Order Assessing Civil Penalty. TSA has
moved the provisions of current Sec. 1503.16(b) regarding the status
of ALJ decisions as orders assessing civil penalty to Sec.
1503.655(c).
11. Streamlined Civil Penalty Procedures for Certain Security
Violations (Sec. 1503.421)
Section 1503.421 reorganizes and makes minor revisions to the
provisions of Sec. 1503.29 of the current regulation, which provide
for the issuance of Notices of Violation for certain types of common
security violations at a passenger screening or baggage screening
checkpoint. TSA issues Notices of Violation when an individual presents
a weapon, explosive, or incendiary for screening at a passenger
screening checkpoint or in checked baggage, and where the amount of the
proposed civil penalty is less than $5,000. A Notice of Violation
contains a statement of the charges, the amount of the proposed civil
penalty, and an offer to settle the matter for a lesser specified
penalty amount. Under the current regulation, the recipient of a Notice
of Violation has the option to request an Informal Conference with an
agency attorney. Under this rule, an Informal Conference with an agency
attorney or another agency official, as determined by TSA, is
available. This change allows TSA to increase its capacity to provide
Informal Conferences and therefore resolve cases more quickly.
12. Consent Orders (Sec. 1503.423)
Under Sec. 1503.13 of the current regulation, a consent order must
contain: (1) An admission of all jurisdictional facts; (2) an express
waiver of the right to further procedural steps and of all rights to
judicial review; and (3) an incorporation of the notice of proposed
civil penalty by reference and an acknowledgment that the notice may be
used to construe the terms of the order.
Section 1503.423 revises slightly the provisions of this section by
eliminating the reference to the notice of proposed civil penalty,
thereby making the consent order a self-contained document. The consent
order includes: (1) An admission of all jurisdictional facts; (2) an
admission of agreed-upon allegations; (3) a statement of the law
violated; (4) a finding of violation; and (5) an express waiver of the
right to further procedural steps and of all rights to administrative
and judicial review.
13. Compromise Orders (Sec. 1503.425)
Section 1503.425 incorporates and makes slight revisions to the
provisions of Sec. 1503.16(l) of the current regulation. Section
1503.425 provides explicitly that a compromise order will include all
jurisdictional facts and allegations.
14. Request for a Formal Hearing (Sec. 1503.427)
Section 1503.427 revises slightly the provisions of Sec.
1503.16(f) of the current regulations to make clear that the filing of
a request for a formal hearing does not guarantee a person an
opportunity to appear before an ALJ in person. The ALJ may issue an
initial decision or dispositive order resolving the case prior to the
commencement of the formal hearing.
15. Filing of Documents With the Enforcement Docket Clerk (Sec.
1503.429)
Section 1503.429 of this rule revises slightly the provisions of
Sec. 1503.210 to add provisions permitting the filing of documents
with the Enforcement Docket Clerk by electronic mail or facsimile
transmission. The amended rule also updates the address of the
Enforcement Docket Clerk, which now is located at the United States
Coast Guard (USCG) ALJ Docketing Center, 40 S. Gay Street, Room 412,
Baltimore, Maryland 21202-4022. If this address changes in the future,
TSA will announce the change through a notice in the Federal Register.
16. Certification of Documents (Sec. 1503.431)
Section 1503.431 of this rule revises slightly the provisions of
Sec. 1503.207 of the current regulation governing the certification of
documents filed with the Enforcement Docket clerk by adding several
items to the certification. One of the items to which one must certify
under the current regulation at Sec. 1503.207(b)(1) is that the
document is ``[w]arranted by existing law or that a good faith argument
exists for extension, modification, or reversal of existing law.'' This
rule requires that a good faith and non-frivolous argument exist for
extension, modification, or reversal of existing law. This rule also
adds that a certification includes that the document is supported by
evidence, and any denials of factual contentions are warranted on the
evidence. These issues are implicit in the requirements governing
certification of documents under the current regulation; this rule
makes them explicit.
D. Subpart G--Rules of Practice in TSA Civil Penalty Actions
1. Applicability (Sec. 1503.601)
Section 1503.601 of this rule revises the provisions of Sec.
1503.201 of the current regulation, regarding the applicability of
TSA's formal hearing procedures. First, in accordance with the 9/11
Act, paragraph (a) expands the applicability of the formal hearing
procedures to cases involving violations of any statutory requirement
administered by TSA, including surface transportation requirements and
TWIC requirements.
Second, paragraph (b) of this rule makes clear that the formal
hearing procedures cannot be used to conduct an adjudication of the
validity of any TSA rule or other requirement under the U.S.
Constitution, the Administrative Procedure Act, or any other law. Put
differently, a person may not use a
[[Page 36037]]
formal hearing under subpart G to challenge the legal basis of a TSA
rule or other requirement, the violation of which gave rise to the
issuance of a civil penalty. The purpose of the formal hearing is to
adjudicate whether a violation occurred and whether the civil penalty
is appropriate. See Appeal of Rendon, 2004 DOT Av. LEXIS 1287, at *3,
(ALJ lacks authority to determine whether a TSA regulation was
unconstitutional) aff'd sub nom. Rendon v. Transportation Security
Admin., 424 F.3d 475 (6th Cir. 2005).
Third, paragraph (d) of this rule adds a provision clarifying that
the consolidation of two or more cases that individually are below the
Federal district court jurisdictional threshold does not cause the
consolidated action to exceed that threshold and thereby fall within
the exclusive jurisdiction of the Federal district court. The issue of
consolidation of cases is addressed further in Sec. 1503.613.
2. Administrative Law Judges (Sec. 1503.607)
Section 1503.607 of this rule revises the provisions of Sec.
1503.205 of the current rule, with the following changes. First,
paragraph (a) makes explicit the following implicit powers that an ALJ
holds under the current regulation: (1) To issue scheduling orders and
other appropriate orders regarding discovery or other matters that come
before him or her; (2) to hold conferences to settle or to simplify the
issues on his or her own motion; (3) to strike unsigned documents
unless omission of the signature is corrected promptly after being
called to the attention of the attorney or party; and (4) to order
payment of witness fees.
Second, paragraph (b) of this rule adds an express limitation on an
ALJ's powers, consistent with current law. Specifically, the amended
rule provides that an ALJ is not authorized to decide issues involving
the validity of a TSA regulation, order, or other requirement under the
U.S. Constitution, the Administrative Procedure Act, or other law. See
Appeal of Rendon, 2004 DOT Av. LEXIS 1287, at *3, (ALJ lacks authority
to determine whether a TSA regulation was unconstitutional) aff'd sub
nom. Rendon v. Transportation Security Admin., 424 F.3d 475 (6th Cir.
2005). Nor may the ALJ adopt or follow a standard of proof or procedure
contrary to that set forth in TSA's formal hearing procedures.
3. Complaint (Sec. 1503.609)
Section 1503.609 of this rule revises slightly the provisions of
Sec. 1503.208 of the current regulation. First, Sec. 1503.609 changes
from 20 to 30 the number of days within which TSA has to file a
complaint after a respondent requests a formal hearing. A 30-day period
is consistent with the length of most of the other response periods
allowed under TSA's enforcement procedures.
Second, Sec. 1503.609 omits provisions on the manner of service of
the complaint, because service of all documents is addressed in Sec.
1503.409.
4. Consolidation and Separation of Cases (Sec. 1503.613)
This rule adds a new provision governing the consolidation and
separation of cases. In addition to clarifying the process for
consolidation and separation of cases, Sec. 1503.613 makes clear that
consolidation of two or more actions that individually involve amounts
in controversy below the jurisdictional maximum of the administrative
court will not cause the resulting action to exceed that jurisdictional
maximum and thereby come under the exclusive jurisdiction of the
Federal district courts, as specified in 49 U.S.C. 46301(d)(4)(A).
5. Extension of Time (Sec. 1503.617)
Section 1503.617 of this rule revises slightly the provisions of
Sec. 1503.213 of the current rule by adding a new provision
specifically governing requests for continuances of a hearing.
Paragraph (c) provides that either party may request a continuance of
the date of a hearing, for good cause shown, no later than seven days
before the date of the hearing. Good cause does not include a
scheduling conflict involving the parties or their attorneys which by
due diligence could have been foreseen. This new provision is intended
to establish certainty and predictability for the parties as they
prepare for a formal hearing and discourage undue delay in the
proceedings.
6. Withdrawal of Complaint or Request for Hearing (Sec. 1503.623)
Section 1503.623 of this rule revises slightly the provision of
Sec. 1503.215 of the current regulation, which permits an agency
attorney to withdraw a complaint or a respondent to withdraw a request
for a hearing without the consent of the ALJ, at any time before or
during a hearing. The rule now permits the ALJ to dismiss the
proceedings without prejudice if the withdrawing party shows good cause
for dismissal without prejudice. The current regulation requires
dismissal with prejudice in all cases. This change is intended to leave
open the possibility that the withdrawing party may have a bona fide
reason for withdrawing and should not be automatically precluded from
refiling. In addition, the amended rule permits a party to withdraw a
request for hearing without prejudice at any time before a complaint
has been filed. This is intended to address situations where
respondents mistakenly request a hearing when they intended to ask for
an informal conference or another procedural option.
7. Discovery (Sec. 1503.633)
Section 1503.633 of this rule incorporates the provisions in Sec.
1503.220 of the current regulation and adds a new provision at Sec.
1503.633(g) clarifying a party's access to Sensitive Security
Information through discovery. Specifically, at the request of a party,
TSA may provide SSI to the party when, in the sole discretion of TSA,
access to the SSI is necessary for the party to prepare a response to
allegations contained in the complaint. TSA may provide such
information, subject to such restrictions on further disclosure and
such safeguarding requirements as TSA determines appropriate. This new
provision largely reiterates a similar provision in 49 CFR 1520.15(d)
of TSA's regulation governing Sensitive Security Information. TSA
repeats it here for clarity.
8. Standard of Proof (Sec. 1503.637)
Section 1503.637 of this rule amends the provisions of Sec.
1503.223 of the current regulation regarding the standard of proof in a
formal hearing. The current regulation states that a party must prove
its case or defense by ``a preponderance of reliable, probative, and
substantial evidence.'' This statement of the standard may be confusing
because it refers to ``substantial evidence.'' The ``substantial
evidence'' standard is a standard of judicial review applicable to an
agency's finding of fact. See American Textile Mfrs. Inst. v. Donovan,
452 U.S. 490, 522 (1981). Courts have defined ``substantial evidence''
as ``such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'' Id. Moreover, courts have
consistently held that substantial evidence ``requires more than a
scintilla but less than a preponderance.'' Id. Thus, the substantial
evidence standard and the preponderance standard differ. By using the
term ``substantial evidence'' in the description of the preponderance
standard, Sec. 1503.223 of the current regulation appears to introduce
confusion about the appropriate standard of proof. To eliminate any
confusion, TSA has restated the standard of proof simply as
[[Page 36038]]
proof of a party's case or defense by a preponderance of the evidence.
Preponderance of the evidence means proof by information that, compared
with information opposing it, leads to the conclusion that the fact at
issue is more probably true than not.
9. Argument Before the ALJ (Sec. 1503.653)
Section 1503.653 of this rule revises slightly the provisions in
Sec. 1503.231 of the current regulation. Current Sec. 1503.231(a)
states that the ALJ may request written arguments during the hearing if
he or she finds that submission of written arguments would be
``reasonable.'' This rule changes this standard by providing that the
ALJ may request written arguments during the hearing if written
argument is ``necessary to issue the ruling or order to which the
argument pertains.'' The purpose of this change is simply to clarify to
the parties and the ALJ what constitutes a reasonable ground to request
written arguments.
10. Initial Decision (Sec. 1503.655)
Section 1503.655 of this rule regarding the initial decision of the
ALJ revises slightly the provision of Sec. 1503.232 of the current
regulation. Paragraph (a) makes a conforming change by clarifying that
the ALJ's issuance of an initial decision may follow the party's
submission of written posthearing briefs.
Paragraph (b) changes the requirement as to when an initial
decision must be issued and whether it must be written. Under the
current regulation, the ALJ must issue the initial decision and order
orally on the record at the conclusion of the hearing, unless the ALJ
finds that issuing a written initial decision is reasonable. In such
cases the ALJ must issue a written initial decision not later than 30
days after the conclusion of the hearing or submission of the last
posthearing brief. This rule changes this practice by making the
issuance of a written initial decision mandatory in all cases.
Specifically, paragraph (b) provides that, after the conclusion of the
hearing, the ALJ may issue the initial decision and order orally on the
record. The ALJ must issue a written initial decision and order not
later than 30 days after the conclusion of the hearing or submission of
the last post-hearing brief. The ALJ must serve a copy of any written
initial decision on each party.
TSA has made this change to better document ALJ decisions and
preserve guidance for future enforcement proceedings.
Paragraph (d) revises the provision in Sec. 1503.233(j)(3) of the
current regulation regarding the precedential value of ALJ rulings and
initial decisions. That section now states that any issue, finding or
conclusion, order, ruling, or initial decision of an ALJ that has not
been appealed to the TSA decision maker is not precedent in any other
civil penalty action. While this is correct in that such decisions are
not binding in other civil penalty actions, the language of this
provision appeared to preclude reliance on such prior decisions as
instructive or persuasive. In the interest of promoting predictability
and consistency in enforcement, it is appropriate that ALJ initial
decisions be recognized as persuasive authority in subsequent civil
penalty actions. Consequently, paragraph (d) revises the current
regulation by providing that an initial decision of an ALJ may be
considered as persuasive authority in any other civil penalty action,
unless appealed and reversed by the TSA decision maker or a court of
competent jurisdiction.
11. Appeal From Initial Decision (Sec. 1503.657)
Section 1503.657 of this rule revises the reference in paragraph
(b) to the preponderance-of-the-evidence standard of proof, as
discussed previously.
V. Administrative Procedure Act
The Administrative Procedure Act (APA) requires TSA to provide
public notice and seek public comment on substantive regulations. 5
U.S.C. 553. The APA, however, excludes certain types of regulations and
permits exceptions for other types of regulations from this public
notice and comment requirement. TSA issues this rule without providing
the opportunity for prior notice and comment for the reasons described
below. TSA is requesting, however, and will consider, public comments
submitted during the public comment period as described in the
``Comments Invited'' section.
Reorganization and clarification of 49 CFR part 1503. The
Administrative Procedure Act (APA) exempts from the prior notice and
opportunity for comment requirements ``rules of agency organization,
procedure or practice.'' 5 U.S.C. 553(b)(A). The reorganization and
clarification of part 1503 makes changes such as making it explicit
that an ALJ can issue scheduling orders or hold conferences changing
from 20 to 30 the number of days within which TSA must file a complaint
after a respondent requests a formal hearing. Accordingly, to the
extent that this rule adopts rules of agency organization, procedure or
practice, those portions of the rule are excepted from the notice-and-
comment requirements under 5 U.S.C. 553(b)(A).
Surface Mode Administrative Penalties. This portion of the rule
would codify provisions of the 9/11 Act that bring surface mode
violations within the scope of TSA's civil penalty authority. Sections
1302 and 1304(e) of the 9/11 Act consist of specific directions to TSA
for assessing civil penalties for surface transportation and
Transportation Worker Identification Credential violations. Prior to
enactment of the 9/11 Act, TSA could assess civil penalties primarily
for violations of ch. 449 of title 49 U.S.C., which relates to
aviation. Accordingly, this rule would make TSA's current civil penalty
enforcement procedures at 49 CFR part 1503, which now only apply to
violations of ch. 449 of title 49 U.S.C. (aviation), applicable to the
additional types of violations added by the 9/11 Act, such as
violations of surface transportation requirements. As an application of
the existing procedures to a new substantive area of regulation, the
rule remains a procedural rule that may be excepted from notice and
comment under 5 U.S.C. 553(a)(2). Advance notice-and-comment, moreover,
is unnecessary and would not serve the public interest under 5 U.S.C.
553(b)(3)(B) because these rules already apply to all other civil
penalties before TSA.
Civil Monetary Penalty Adjustment. This rule makes inflation
adjustments to the maximum civil penalty amounts in accordance with the
Federal Civil Penalty Inflation Adjustment Act of 1990, 28 U.S.C. 2461
note. TSA has no discretion over the amounts of these increases. The
Adjustment Act specifies an arithmetic calculation of the inflation
adjustment. This rule is a nondiscretionary ministerial action to
conform to the Adjustment Act. Therefore, advance public notice and an
opportunity for public comment is unnecessary and not in the public
interest. 5 U.S.C. 553(b)(3)(B).
VI. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. As protection
provided by the Paperwork Reduction Act, as amended, an agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it
[[Page 36039]]
displays a currently valid OMB control number.
TSA has determined that there are no current or new information
collection requirements associated with this rule.
VII. Economic Impact Analyses
A. Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866, Regulatory Planning and Review
\15\ directs each Federal agency to propose or adopt a regulation only
upon a reasoned determination that the benefits of the intended
regulation justify its costs. Second, the Regulatory Flexibility Act of
1980, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of 1996, requires agencies to analyze
the economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act, 19 U.S.C. 2531-2533, prohibits agencies from
setting standards that create unnecessary obstacles to the foreign
commerce of the United States. Fourth, the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1531-1538, requires agencies to prepare a written
assessment of the costs, benefits, and other effects of proposed or
final rules that include a Federal mandate likely to result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more annually (adjusted
for inflation).
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\15\ 58 FR 51735 (October 4, 1993).
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B. Executive Order 12866 Assessment
In conducting these analyses, TSA has determined:
1. This rulemaking is not a ``significant regulatory action'' as
defined in the Executive Order. The Office of Management and Budget
agrees with this conclusion.
2. This rulemaking does not have a significant economic impact on a
substantial number of small entities.
3. This rulemaking does not constitute a barrier to international
trade.
4. This rulemaking does not impose an unfunded mandate on State,
local, or tribal governments, or on the private sector.
The bases for these conclusions are summarized below.
C. Costs and Benefits
This is a procedural rule whose costs and benefits will not
significantly exceed, or be lower than, those imposed by TSA's current
rule. While maximum penalty amounts have been adjusted for inflation,
this change is not likely to have a significant impact because TSA does
not expect to impose maximum penalties in most enforcement actions.
More importantly, however, the costs of these penalties only affect
those that engage in conduct prohibited by statute or related
regulations. Those who comply with the law will not be affected.
D. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA) of 1980 requires that agencies
perform a review to determine whether a rule will have a significant
economic impact on a substantial number of small entities. If the
agency determines that a rule will have a significant economic impact
on a substantial number of small entities, the agency must prepare a
regulatory flexibility analysis as described in the RFA. For purposes
of the RFA, small entities include small businesses, not-for-profit
organizations, and small governmental jurisdictions. 5 U.S.C. 601(6).
Individuals and States are not included in the definition of a small
entity. Pursuant to 5 U.S.C. 603(a), however, the requirement to
perform a regulatory flexibility analysis does not apply where, as is
the case in today's rule, the agency is not required to issue a
proposed rule prior to issuing a final rule.
This rule provides guidance for the parties as to how civil
penalties are imposed. The rules state the procedures for
investigations, enforcement actions, for TSA civil penalty actions, and
other details of imposing and adjudicating civil penalties. The civil
penalties implemented by this rule will only affect those that engage
in conduct prohibited by statute or related regulations. Those who
comply with the law will not be affected by these civil penalties.
Pursuant to Sec. 1503.401, maximum civil penalties for individuals and
small businesses are lower than those for larger entities.
E. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. TSA has assessed the potential
effect of this rulemaking and has determined that it will impose the
same costs on domestic and international entities and thus have a
neutral trade impact.
F. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 is intended, among other
things, to curb the practice of imposing unfunded Federal mandates on
State, local, and tribal governments. Title II of the Act requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate in a proposed or final agency rule that may result
in a $100 million or more expenditure (adjusted annually for inflation)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector; such a mandate is deemed to be a
``significant regulatory action.''
This rulemaking does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply and TSA has not
prepared a statement under the Act.
VIII. Other Analyses
A. Executive Order 13132, Federalism
TSA has analyzed this rule under the principles and criteria of
Executive Order 13132, Federalism. TSA has determined that this action
will not have a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore does not have Federalism implications.
B. Environmental Analysis
TSA has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has
determined that this action will not have a significant effect on the
human environment.
C. Energy Impact Analysis
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended (42 U.S.C. 6362). TSA has determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
List of Subjects in 49 CFR Part 1503
Administrative practice and procedure, Investigations, Law
enforcement, Penalties, Transportation.
The Amendments
0
For the reasons set forth in the preamble, the Transportation Security
Administration revises part 1503 in chapter XII of title 49, Code of
Federal Regulations to read as follows:
[[Page 36040]]
PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
Subpart A--[Reserved]
Subpart B--Scope of Investigative and Enforcement Procedures
Sec.
1503.101 TSA requirements.
1503.103 Terms used in this part.
Subpart C--Investigative Procedures
1503.201 Reports of violations.
1503.203 Investigations.
1503.205 Records, documents, and reports.
Subpart D--Non-Civil Penalty Enforcement
1503.301 Warning notices and letters of correction.
Subpart E--Assessment of Civil Penalties by TSA
1503.401 Maximum penalty amounts.
1503.403 Delegation of authority.
1503.405 Injunctions.
1503.407 Military personnel.
1503.409 Service of documents.
1503.411 Computation of time.
1503.413 Notice of Proposed Civil Penalty.
1503.415 Request for portions of the enforcement investigative
report (EIR).
1503.417 Final Notice of Proposed Civil Penalty and Order.
1503.419 Order Assessing Civil Penalty.
1503.421 Streamlined civil penalty procedures for certain security
violations.
1503.423 Consent orders.
1503.425 Compromise orders.
1503.427 Request for a formal hearing.
1503.429 Filing of documents with the Enforcement Docket Clerk.
1503.431 Certification of documents.
Subpart F--[Reserved]
Subpart G--Rules of Practice in TSA Civil Penalty Actions
1503.601 Applicability.
1503.603 Separation of functions.
1503.605 Appearances and rights of parties.
1503.607 Administrative law judges.
1503.609 Complaint.
1503.611 Answer.
1503.613 Consolidation and separation of cases.
1503.615 Notice of hearing.
1503.617 Extension of time.
1503.619 Intervention.
1503.621 Amendment of pleadings.
1503.623 Withdrawal of complaint or request for hearing.
1503.625 Waivers.
1503.627 Joint procedural and discovery schedule.
1503.629 Motions.
1503.631 Interlocutory appeals.
1503.633 Discovery.
1503.635 Evidence.
1503.637 Standard of proof.
1503.639 Burden of proof.
1503.641 Offer of proof.
1503.643 Public disclosure of evidence.
1503.645 Expert or opinion witnesses.
1503.647 Subpoenas.
1503.649 Witness fees.
1503.651 Record.
1503.653 Argument before the ALJ.
1503.655 Initial decision.
1503.657 Appeal from initial decision.
1503.659 Petition to reconsider or modify a final decision and order
of the TSA decision maker on appeal.
1503.661 Judicial review of a final order.
Subpart H--Judicial Assessment of Civil Penalties
1503.701 Applicability of this subpart.
1503.703 Civil penalty letter; referral.
Subpart I--Formal Complaints
1503.801 Formal complaints.
Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 114,
20109, 31105, 40113-40114, 40119, 44901-44907, 46101-46107, 46109-
46110, 46301, 46305, 46311, 46313-46314; Sec. 1413(i), Public Law
110-53, 121 Stat. 414 (6 U.S.C. 1142).
PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
Subpart A--[Reserved]
Subpart B--Scope of Investigative and Enforcement Procedures
Sec. 1503.101 TSA requirements.
(a) The investigative and enforcement procedures in this part apply
to TSA's investigation and enforcement of violations of TSA
requirements.
(b) For purposes of this part, the term TSA requirements means the
following statutory provisions and a regulation prescribed or order
issued under any of those provisions:
(1) Those provisions of title 49 U.S.C. administered by the
Administrator; and
(2) 46 U.S.C. chapter 701.
Sec. 1503.103 Terms used in this part.
In addition to the terms in Sec. 1500.3 of this chapter, the
following definitions apply in this part:
Administrative law judge or ALJ means an ALJ appointed pursuant to
the provisions of 5 U.S.C. 3105.
Agency attorney means the Deputy Chief Counsel for Enforcement or
an attorney that he or she designates. An agency attorney will not
include--
(1) Any attorney in the Office of the Chief Counsel who advises the
TSA decision maker regarding an initial decision or any appeal to the
TSA decision maker; or
(2) Any attorney who is supervised in a civil penalty action by a
person who provides such advice to the TSA decision maker in that
action or a factually related action.
Attorney means any person who is eligible to practice law in, and
is a member in good standing of the bar of, the highest court of any
State, possession, territory, or Commonwealth of the United States, or
of the District of Columbia, and is not under any order suspending,
enjoining, restraining, disbarring, or otherwise restricting him or her
in the practice of law.
Enforcement Investigative Report or EIR means a written report
prepared by a TSA Inspector or other authorized agency official
detailing the results of an inspection or investigation of a violation
of a TSA requirement, including copies of any relevant evidence.
Mail includes regular First Class U.S. mail service, U.S. certified
mail, or U.S. registered mail.
Party means the respondent or TSA.
Personal delivery includes hand-delivery or use of a contract or
express messenger service, including an overnight express courier
service. Personal delivery does not include the use of Government
interoffice mail service.
Pleading means a complaint, an answer, motion and any amendment of
these documents permitted under this subpart as well as any other
written submission to the ALJ or a party during the course of the
hearing proceedings.
Properly addressed means a document that shows an address contained
in agency records, a residential, business, or other address submitted
by a person on any document provided under this part, or any other
address obtained by other reasonable and available means.
Public transportation agency means a publicly owned operator of
public transportation eligible to receive Federal assistance under 49
U.S.C. chapter 53.
Respondent means the person named in a Notice of Proposed Civil
Penalty, a Final Notice of Proposed Civil Penalty and Order, or a
complaint.
TSA decision maker means the Administrator, acting in the capacity
of the decision maker on appeal, or any person to whom the
Administrator has delegated the Administrator's decision-making
authority in a civil penalty action. As used in this part, the TSA
decision maker is the official authorized to issue a final decision and
order of the Administrator in a civil penalty action.
Subpart C--Investigative Procedures
Sec. 1503.201 Reports of violations.
(a) Any person who knows of a violation of a TSA requirement should
report it to appropriate personnel of any TSA office.
(b) TSA will review each report made under this section, together
with any other information TSA may have that is relevant to the matter
reported, to determine the appropriate response, including additional
investigation or administrative or legal enforcement action.
[[Page 36041]]
Sec. 1503.203 Investigations.
(a) General. The Administrator, or a designated official, may
conduct investigations, hold hearings, issue subpoenas, require the
production of relevant documents, records, and property, and take
evidence and depositions.
(b) Delegation of authority. For the purpose of investigating
alleged violations of a TSA requirement, the Administrator's authority
may be exercised by the agency's various offices for matters within
their respective areas for all routine investigations. When the
compulsory processes of 49 U.S.C. 46104 are invoked, the
Administrator's authority has been delegated to the Chief Counsel, each
Deputy Chief Counsel, and in consultation with the Office of Chief
Counsel, the Assistant Administrator for Security Operations, the
Assistant Administrator for Transportation Sector Network Management,
the Assistant Administrator for Inspections, the Assistant
Administrator for Law Enforcement/Director of the Federal Air Marshal
Service, each Special Agent in Charge, and each Federal Security
Director.
Sec. 1503.205 Records, documents, and reports.
Each record, document, and report that regulations issued by the
Transportation Security Administration require to be maintained,
exhibited, or submitted to the Administrator may be used in any
investigation conducted by the Administrator; and, except to the extent
the use may be specifically limited or prohibited by the section that
imposes the requirement, the records, documents, and reports may be
used in any civil penalty action or other legal proceeding.
Subpart D--Non-Civil Penalty Enforcement
Sec. 1503.301 Warning notices and letters of correction.
(a) If TSA determines that a violation or an alleged violation of a
TSA requirement does not require the assessment of a civil penalty, an
appropriate official of the TSA may take administrative action in
disposition of the case.
(b) An administrative action under this section does not constitute
a formal adjudication of the matter, and may be taken by issuing the
alleged violator--
(1) A ``Warning Notice'' that recites available facts and
information about the incident or condition and indicates that it may
have been a violation; or
(2) A ``Letter of Correction'' that confirms the TSA decision in
the matter and states the necessary corrective action the alleged
violator has taken or agrees to take. If the agreed corrective action
is not fully completed, legal enforcement action may be taken.
(c) The issuance of a Warning Notice or Letter of Correction is not
subject to appeal under this part.
(d) In the case of a public transportation agency that is
determined to be in violation of a TSA requirement, an appropriate TSA
official will seek correction of the violation through a written
``Notice of Noncompliance'' to the public transportation agency giving
the public transportation agency reasonable opportunity to correct the
violation or propose an alternative means of compliance acceptable to
TSA.
(e) TSA will not take legal enforcement action against a public
transportation agency under subpart E unless it has provided the Notice
of Noncompliance described in paragraph (d) of this section and the
public transportation agency fails to correct the violation or propose
an alternative means of compliance acceptable to TSA within the
timeframe provided in the notice.
(f) TSA will not initiate civil enforcement action for violations
of administrative and procedural requirements pertaining to the
application for, and the expenditure of, funds awarded pursuant to
transportation security grant programs under Public Law 110-53.
Subpart E--Assessment of Civil Penalties by TSA
Sec. 1503.401 Maximum penalty amounts.
(a) General. TSA may assess civil penalties not exceeding the
following amounts against a person for the violation of a TSA
requirement.
(b) In General. Except as provided in paragraph (c) of this
section, in the case of violation of title 49 U.S.C. or 46 U.S.C.
chapter 701, or a regulation prescribed or order issued under any of
those provisions, TSA may impose a civil penalty in the following
amounts:
(1) $10,000 per violation, up to a total of $50,000 per civil
penalty action, in the case of an individual or small business concern,
as defined in section 3 of the Small Business Act (15 U.S.C. 632); and
(2) $10,000 per violation, up to a total of $400,000 per civil
penalty action, in the case of any other person.
(c) Certain aviation related violations. In the case of a violation
of 49 U.S.C. chapter 449 (except sections 44902, 44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-(f), 44908, and 44909), or 49 U.S.C. 46302 or
46303, or a regulation prescribed or order issued under any of those
provisions, TSA may impose a civil penalty in the following amounts:
(1) $10,000 per violation, up to a total of $50,000 per civil
penalty action, in the case of an individual (except an airman serving
as an airman), any person not operating an aircraft for the
transportation of passengers or property for compensation, or a small
business concern, as defined in section 3 of the Small Business Act (15
U.S.C. 632).
(2) $25,000 per violation, up to a total of $400,000 per civil
penalty action, in the case of a person operating an aircraft for the
transportation of passengers or property for compensation (except an
individual serving as an airman).
(d) Inflation adjustment. TSA may adjust the maximum civil penalty
amounts in conformity with the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. 2461 (note). Minimum and maximum
civil penalties within the jurisdiction of TSA are adjusted for
inflation as follows:
[[Page 36042]]
Table 1--Minimum and Maximum Civil Penalties--Adjusted for Inflation, Effective December 12, 2003 to August 20, 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum penalty amount
Minimum Adjusted when last set or
United States Code citation Civil penalty description penalty minimum adjusted pursuant to Maximum penalty amount
penalty law
--------------------------------------------------------------------------------------------------------------------------------------------------------
49 U.S.C. 46301(a)(1), (4).......... Violation of 49 U.S.C. ch. N/A N/A $25,000 per violation, $25,000 per violation.
449 (except secs. 44902, reset 12/12/2003.
44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-
(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a
regulation prescribed, or
order issued thereunder by
a person operating an
aircraft for the
transportation of
passengers or property for
compensation.
49 U.S.C. 46301(a)(1), (4).......... Violation of 49 U.S.C. ch. N/A N/A $10,000 per violation, $10,000 per violation.
449 (except secs. 44902, reset 12/12/2003.
44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-
(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a
regulation prescribed, or
order issued thereunder by
an individual (except an
airman serving as an
airman), any person not
operating an aircraft for
the transportation of
passengers or property for
compensation, or a small
business concern.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2--Minimum and Maximum Civil Penalties--Adjusted for Inflation, Effective August 20, 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum penalty amount
Minimum Adjusted when last set or
United States Code Citation Civil penalty description penalty minimum adjusted pursuant to Maximum penalty amount
penalty law
--------------------------------------------------------------------------------------------------------------------------------------------------------
49 U.S.C. 46301(a)(1), (4).......... Violation of 49 U.S.C. ch. N/A N/A $25,000 per violation, $27,500 per violation.
449 (except secs. 44902, reset 12/12/2003.
44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-
(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a
regulation prescribed, or
order issued thereunder by
a person operating an
aircraft for the
transportation of
passengers or property for
compensation.
49 U.S.C. 46301(a)(1), (4).......... Violation of 49 U.S.C. ch. N/A N/A $10,000 per violation, $11,000 per violation.
449 (except secs. 44902, reset 12/12/2003.
44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-
(f), 44908, and 44909), or
49 U.S.C. 46302 or 46303, a
regulation prescribed, or
order issued thereunder by
an individual (except an
airman serving as an
airman), any person not
operating an aircraft for
the transportation of
passengers or property for
compensation, or a small
business concern.
49 U.S.C. 114(v).................... Violation of any other N/A N/A NA..................... $10,000 per violation.
provision of title 49
U.S.C. or of 46 U.S.C. ch.
701, a regulation
prescribed, or order issued
under thereunder.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 1503.403 Delegation of authority.
The Administrator delegates the following authority to the Chief
Counsel and the Deputy Chief Counsel for Enforcement, which authority
may be redelegated as necessary:
(a) To initiate and assess civil penalties under 49 U.S.C. 114 and
46301 and this subpart for a violation a TSA requirement;
(b) To compromise civil penalties initiated under this subpart; and
(c) To refer cases to the Attorney General of the United States, or
the delegate of the Attorney General, for the collection of civil
penalties.
Sec. 1503.405 Injunctions.
Whenever it is determined that a person has engaged, or is about to
engage, in any act or practice constituting a violation of a TSA
requirement, the Chief Counsel or the Deputy Chief Counsel for
Enforcement may request the Attorney General of the United States, or
the delegate of the Attorney General, to bring an action in the
appropriate United States district court for such relief as is
necessary or appropriate, including mandatory or prohibitive injunctive
relief, interim equitable relief, and punitive damages, as provided by
49 U.S.C. 114 and 46107.
Sec. 1503.407 Military personnel.
If a report made under this part indicates that, while performing
official duties, a member of the Armed Forces, or a civilian employee
of the Department of Defense who is subject to the Uniform Code of
Military Justice (10 U.S.C. chapter 47), has violated a TSA
requirement, an agency official will send a copy of the report to the
[[Page 36043]]
appropriate military authority for such disciplinary action as that
authority considers appropriate and a report to the Administrator
thereon.
Sec. 1503.409 Service of documents.
(a) General. This section governs service of documents required to
be made under this part.
(b) Type of service. A person may serve documents by:
(1) Personal delivery;
(2) Mail, or
(3) Electronic mail or facsimile transmission, if consented to in
writing by the person served, except that such service is not effective
if the party making service receives credible information indicating
that the attempted service did not reach the person to be served.
(c) If a party serves a pleading on another party during the course
of hearing proceedings by electronic mail or facsimile transmission,
the party making service must file with the Enforcement Docket Clerk a
copy of the consent of the receiving party to accept such method of
service.
(d) Date of service. The date of service will be:
(1) The date of personal delivery.
(2) If mailed, the mailing date stated on the certificate of
service, the date shown on the postmark if there is no certificate of
service, or other mailing date shown by other evidence if there is no
certificate of service or postmark.
(3) If sent by electronic mail or facsimile transmission, the date
of transmission.
(e) Valid service. A document served by mail or personal delivery
that was properly addressed, was sent in accordance with this part, and
that was returned, that was not claimed, or that was refused, is deemed
to have been served in accordance with this part. The service will be
considered valid as of the date and the time that the document was
deposited with a contract or express messenger, the document was
mailed, or personal delivery of the document was attempted and refused.
(f) Presumption of service. There will be a presumption of service
where a party or a person, who customarily receives mail, or receives
it in the ordinary course of business, at either the person's residence
or the person's principal place of business, acknowledges receipt of
the document.
(g) Additional time after service by mail. Whenever a party has a
right or a duty to act or to make any response within a prescribed
period after service by mail, or on a date certain after service by
mail, 5 days will be added to the prescribed period.
(h) Service of documents filed with the Enforcement Docket. A
person must serve a copy of any document filed with the Enforcement
Docket on each party and the ALJ or the chief ALJ if no judge has been
assigned to the proceeding at the time of filing. Service on a party's
attorney of record or a party's designated representative is service on
the party.
(i) Certificate of service. Each party must attach a certificate of
service to any document tendered for filing with the Enforcement Docket
Clerk. A certificate of service must consist of a statement, dated and
signed by the person who effected service, of the name(s) of the
person(s) served, and the method by which each person was served and
the date that the service was made.
(j) Service by the ALJ. The ALJ must serve a copy of each document
he or she issues including, but not limited to, notices of pre-hearing
conferences and hearings, rulings on motions, decisions, and orders,
upon each party to the proceedings.
Sec. 1503.411 Computation of time.
(a) This section applies to any period of time prescribed or
allowed by this part, or by notice or order of an ALJ.
(b) The date of an act, event, or default, after which a designated
time period begins to run, is not included in a computation of time
under this subpart.
(c) The last day of a time period is included in a computation of
time unless it is a Saturday, Sunday, a legal holiday, or a day on
which the enforcement docket is officially closed. If the last day of
the time period is a Saturday, Sunday, legal holiday, or a day on which
the enforcement docket is officially closed, the time period runs until
the end of the next day that is not a Saturday, Sunday, legal holiday,
or a day on which the enforcement docket is officially closed.
Sec. 1503.413 Notice of Proposed Civil Penalty.
(a) Issuance. TSA may initiate a civil penalty action under this
section by serving a Notice of Proposed Civil Penalty on the person
charged with a violation of a TSA requirement. TSA will serve the
Notice of Proposed Civil Penalty on the individual charged with a
violation or on the president of the corporation or company charged
with a violation, or other representative or employee previously
identified in writing to TSA as designated to receive such service. A
corporation or company may designate in writing to TSA another person
to receive service of any subsequent documents in that civil penalty
action.
(b) Contents. The Notice of Proposed Civil Penalty contains a
statement of the facts alleged, the statute, regulation, or order
allegedly violated, the amount of the proposed civil penalty, and a
certificate of service.
(c) Response. Not later than 30 days after receipt of the Notice of
Proposed Civil Penalty, the person charged with a violation may take
one, and only one, of the following options.
(1) Submit a certified check or money order in the amount of the
proposed civil penalty made payable to Transportation Security
Administration, at the address specified in the Notice of Proposed
Civil Penalty, or make payment electronically through http://www.pay.gov.
(2) Submit to the agency attorney who issued the Notice of Proposed
Civil Penalty one of the following:
(i) A written request that TSA issue an Order Assessing Civil
Penalty in the amount stated in the Notice of Proposed Civil Penalty
without further notice, in which case the person waives the right to
request a Formal Hearing, and payment is due within 30 days of receipt
of the Order.
(ii) Written information and other evidence, including documents
and witness statements, demonstrating that a violation of the
regulations did not occur as alleged, or that the proposed penalty is
not warranted by the circumstances.
(iii) A written request to reduce the proposed civil penalty, the
amount of requested reduction, together with any documents supporting a
reduction of the proposed civil penalty, which reflect a current
financial inability to pay or records showing that payment of the
proposed civil penalty would prevent the person from continuing in
business.
(iv) A written request for an Informal Conference, at a date to be
determined by the agency attorney, to discuss the matter with the
agency attorney and to submit supporting evidence and information to
the agency attorney before the date of the Informal Conference.
(3) Submit to the agency attorney and to TSA's Enforcement Docket
Clerk a written request for a Formal Hearing before an ALJ in
accordance with subpart G of this part. TSA's Enforcement Docket Clerk
is currently located at the United States Coast Guard (USCG) ALJ
Docketing Center, 40 S. Gay Street, Room 412, Baltimore, Maryland
21202-4022. If this location changes, TSA will provide notice of the
change by notice in the Federal Register.
[[Page 36044]]
Sec. 1503.415 Request for portions of the enforcement investigative
report (EIR).
(a) Upon receipt of a Notice of Proposed Civil Penalty, a person
charged with a violation of a TSA requirement, or a representative
designated in writing by that person, may request from the agency
attorney who issued the Notice of Proposed Civil Penalty portions of
the relevant EIR that are not privileged (e.g., under the deliberative
process, attorney work-product, or attorney-client privileges). This
information will be provided for the sole purpose of providing the
information necessary to prepare a response to the allegations
contained in the Notice of Proposed Civil Penalty. Sensitive Security
Information (SSI) contained in the EIR may be released pursuant to 49
CFR part 1520. Information released under this section is not produced
under the Freedom of Information Act.
(b) Any person not listed in paragraph (a) of this section that is
interested in obtaining a copy of the EIR must submit a FOIA request
pursuant to 5 U.S.C. 552, et seq., 49 CFR part 7, and any applicable
DHS regulations. Portions of the EIR may be exempt from disclosure
pursuant to FOIA.
Sec. 1503.417 Final Notice of Proposed Civil Penalty and Order.
(a) Issuance. TSA may issue a Final Notice of Proposed Civil
Penalty and Order (``Final Notice and Order'') to a person charged with
a violation in the following circumstances:
(1) The person has failed to respond to a Notice of Proposed Civil
Penalty within 30 days after receipt of that notice.
(2) The person requested an Informal Conference under Sec.
1503.413(c)(2), but failed to attend the conference or continuation of
the conference or provide the agency attorney with a written request
showing good cause for rescheduling of the informal conference to a
specified alternate date.
(3) The parties have participated in an Informal Conference or
other informal proceedings as provided in Sec. 1503.413(c)(2) and the
parties have not agreed to compromise the action or the agency attorney
has not agreed to withdraw the notice of proposed civil penalty.
(b) Contents. The Final Notice and Order will contain a statement
of the facts alleged, the law allegedly violated by the respondent, and
the amount of the proposed civil penalty. The Final Notice and Order
may reflect a modified allegation or proposed civil penalty as a result
of information submitted to the agency attorney during the informal
proceedings held under Sec. 1503.413(c)(2).
Sec. 1503.419 Order Assessing Civil Penalty.
(a) Issuance pursuant to a settlement. TSA will issue an Order
Assessing Civil Penalty if the parties have participated in an Informal
Conference or other informal proceedings as provided in Sec.
1503.413(c)(2) and agreed to a civil penalty amount in compromise of
the matter, in which case the person waives the right to request a
formal hearing, and payment is due within 30 days of receipt of the
Order.
(b) Automatic issuance. A Final Notice and Order automatically
converts to an Order Assessing Civil Penalty if--
(1) The person charged with a violation submits a certified check
or money order in the amount reflected in the Final Notice and Order to
Transportation Security Administration, to the address specified in the
Final Notice and Order, or makes such payment electronically through
http://www.pay.gov; or
(2) The person fails to respond to the Final Notice and Order or
request a formal hearing within 15 days after receipt of that notice.
Sec. 1503.421 Streamlined civil penalty procedures for certain
security violations.
(a) Notice of violation. TSA, at the agency's discretion, may
initiate a civil penalty action through issuance of a Notice of
Violation for violations described in the section and as otherwise
provided by the Administrator. TSA may serve a Notice of Violation on
an individual who violates a TSA requirement by presenting a weapon,
explosive, or incendiary for screening at an airport or in checked
baggage, where the amount of the proposed civil penalty is less than
$5,000.
(b) Contents. A Notice of Violation contains a statement of the
charges, the amount of the proposed civil penalty, and an offer to
settle the matter for a lesser specified penalty amount.
(c) Response. Not later than 30 days after receipt of the Notice of
Violation, the individual charged with a violation must respond to TSA
by taking one, and only one, of the following options.
(1) Submit a certified check or money order for the lesser
specified penalty amount in the Notice of Violation, made payable to
Transportation Security Administration and sent to the address
specified in the Notice of Violation, or make such payment
electronically through http://www.pay.gov.
(2) Submit to the office identified in the Notice of Violation one
of the following:
(i) Written information and other evidence, including documents and
witness statements, demonstrating that a violation of the regulations
did not occur as alleged, or that the proposed penalty is not warranted
by the circumstances.
(ii) A written request to reduce the proposed civil penalty, the
amount of requested reduction, together with any documents supporting a
reduction of the proposed civil penalty, which reflect a current
financial inability to pay or records showing that payment of the
proposed civil penalty would prevent the person from continuing in
business.
(iii) A written request for an Informal Conference, at a date to be
determined by an agency official, to discuss the matter with the agency
official and to submit supporting evidence and information to the
agency official before the date of the Informal Conference.
(3) Submit to the office identified in the Notice of Violation and
to TSA's Enforcement Docket Clerk a written request for a formal
hearing before an ALJ in accordance with subpart G. A request for a
formal hearing before an ALJ must be submitted to the address provided
in Sec. 1503.413(c)(3).
(d) Final Notice of Violation and Civil Penalty Assessment Order.
TSA may issue a Final Notice of Violation and Civil Penalty Assessment
Order (``Final Notice and Order'') to the recipient of a Notice of
Violation in the following circumstances:
(1) The individual has failed to respond to a Notice of Violation
within 30 days after receipt of that notice.
(2) The individual requested an Informal Conference under Sec.
1503.421(c)(2)(iii) but failed to attend the conference or continuation
of the conference or provide the agency official with a written request
showing good cause for rescheduling the informal conference to a
specified alternate date.
(3) The parties have participated in an Informal Conference or
other informal proceedings as provided in Sec. 1503.421(c)(2) and the
parties have not agreed to compromise the action or the agency official
has not agreed to withdraw the Notice of Violation.
(e) Order Assessing Civil Penalty. A Final Notice and Order
automatically converts to an Order Assessing Civil Penalty if--
(1) The individual charged with a violation submits a certified
check or money order in the amount reflected in the Final Notice and
Order to Transportation Security Administration at the address
specified in the Final Notice and Order, or makes such
[[Page 36045]]
payment electronically through http://www.pay.gov; or
(2) The individual fails to respond to the Final Notice and Order
or request a formal hearing within 15 days after receipt of that
notice.
(f) Delegation of authority. The authority of the Administrator,
under 49 U.S.C. 46301, to initiate, negotiate, and settle civil penalty
actions under this section is delegated to the Assistant Administrator
for Security Operations. This authority may be further delegated.
Sec. 1503.423 Consent orders.
(a) Issuance. At any time before the issuance of an Order Assessing
Civil Penalty under this subpart, an agency attorney and a person
subject to a Notice of Proposed Civil Penalty, or an agency official
and a person subject to a Notice of Violation, may agree to dispose of
the case by the issuance of a consent order by TSA.
(b) Contents. A consent order contains the following:
(1) An admission of all jurisdictional facts.
(2) An admission of agreed-upon allegations.
(3) A statement of the law violated.
(4) A finding of violation.
(5) An express waiver of the right to further procedural steps and
of all rights to administrative and judicial review.
Sec. 1503.425 Compromise orders.
(a) Issuance. At any time before the issuance of an Order Assessing
Civil Penalty under this subpart, an agency attorney and a person
subject to a Notice of Proposed Civil Penalty, or an agency official
and a person subject to a Notice of Violation, may agree to dispose of
the case by the issuance of a compromise order by TSA.
(b) Contents. A compromise order contains the following:
(1) All jurisdictional facts.
(2) All allegations.
(3) A statement that the person agrees to pay the civil penalty
specified.
(4) A statement that TSA makes no finding of a violation.
(5) A statement that the compromise order will not be used as
evidence of a prior violation in any subsequent civil penalty
proceeding.
Sec. 1503.427 Request for a formal hearing.
(a) General. Any respondent may request a formal hearing, pursuant
to Sec. 1503.413(c)(3) or Sec. 1503.421(c)(3), to be conducted in
accordance with the procedures in subpart G of this part. The filing of
a request for a formal hearing does not guarantee a person an
opportunity to appear before an ALJ in person, because the ALJ may
issue an initial decision or dispositive order resolving the case prior
to the commencement of the formal hearing.
(b) Form. The person submitting a request for hearing must date and
sign the request, and must include his or her current address. The
request for hearing must be typewritten or legibly handwritten.
(c) Submission of request. A person requesting a hearing must file
a written request for a hearing with the Enforcement Docket Clerk in
accordance with Sec. 1503.429 and must serve a copy of the request on
the agency attorney or other agency official who issued the Notice of
Proposed Civil Penalty, or Notice of Violation, as applicable, and any
other party, in accordance with Sec. 1503.429.
Sec. 1503.429 Filing of documents with the Enforcement Docket Clerk.
(a) General. This section governs filing of documents with the
Enforcement Docket Clerk when required under this part.
(b) Type of service. A person must file a document with the
Enforcement Docket Clerk by delivering two copies of the document as
follows:
(1) By personal delivery or mail, to United States Coast Guard
(USCG) ALJ Docketing Center, ATTN: Enforcement Docket Clerk, at the
address specified in Sec. 1503.413(c)(3).
(2) By electronic mail, to [email protected]. If this e-
mail address changes, TSA will provide notice of the change by notice
in the Federal Register.
(3) By facsimile transmission, to 410-962-1746. If this number
changes, TSA will provide notice of the change by notice in the Federal
Register.
(c) Contents. Unless otherwise specified in this part, each
document must contain a short, plain statement of the facts supporting
the person's position and a brief statement of the action requested in
the document. Each document must be typewritten or legibly handwritten.
(d) Date of filing. The date of filing will be as follows:
(1) The date of personal delivery.
(2) If mailed, the mailing date stated on the certificate of
service, the date shown on the postmark if there is no certificate of
service, or other mailing date shown by other evidence if there is no
certificate of service or postmark.
(3) If sent by electronic mail or facsimile transmission, the date
of transmission.
(e) Service of documents filed with the Enforcement Docket. A
person must serve a copy of any document filed with the Enforcement
Docket on each party and the ALJ or the chief ALJ if no judge has been
assigned to the proceeding at the time of filing. Service on a party's
attorney of record or a party's designated representative is service on
the party.
Sec. 1503.431 Certification of documents.
(a) General. This section governs each document tendered for filing
with the Enforcement Docket Clerk under this part.
(b) Signature required. The attorney of record, the party, or the
party's representative must sign each document tendered for filing with
the Enforcement Docket Clerk, or served on the ALJ, the TSA decision
maker on appeal, or each party.
(c) Effect of signing a document. By signing a document, the
attorney of record, the party, or the party's representative certifies
that he or she has read the document and, based on reasonable inquiry
and to the best of that person's knowledge, information, and belief,
the document is--
(1) Consistent with the rules in this part;
(2) Warranted by existing law or that a good faith and nonfrivolous
argument exists for extension, modification, or reversal of existing
law;
(3) Not unreasonable or unduly burdensome or expensive, not made to
harass any person, not made to cause unnecessary delay, not made to
cause needless increase in the cost of the proceedings, or for any
other improper purpose; and
(4) Supported by evidence, and any denials of factual contentions
are warranted on the evidence.
(d) Sanctions. On motion of a party, if the ALJ or TSA decision
maker finds that any attorney of record, the party, or the party's
representative has signed a document in violation of this section, the
ALJ or the TSA decision maker, as appropriate, will do the following:
(1) Strike the pleading signed in violation of this section.
(2) Strike the request for discovery or the discovery response
signed in violation of this section and preclude further discovery by
the party.
(3) Deny the motion or request signed in violation of this section.
(4) Exclude the document signed in violation of this section from
the record.
(5) Dismiss the interlocutory appeal and preclude further appeal on
that issue by the party who filed the appeal until an initial decision
has been entered on the record.
(6) Dismiss the appeal of the ALJ's initial decision to the TSA
decision maker.
[[Page 36046]]
Subpart F--[Reserved]
Subpart G--Rules of Practice in TSA Civil Penalty Actions
Sec. 1503.601 Applicability.
(a) This subpart applies to a civil penalty action in which the
requirements of paragraphs (a)(1) through (a)(3) of this section are
satisfied.
(1) There is an alleged violation of a TSA requirement.
(2) The amount in controversy does not exceed--
(i) $50,000 if the violation was committed by an individual or a
small business concern;
(ii) $400,000 if the violation was committed by any other person.
(3) The person charged with the violation has requested a hearing
in accordance with Sec. 1503.427 of this part.
(b) This subpart does not apply to the adjudication of the validity
of any TSA rule or other requirement under the U.S. Constitution, the
Administrative Procedure Act, or any other law.
Sec. 1503.603 Separation of functions.
(a) Civil penalty proceedings, including hearings, will be
prosecuted only by an agency attorney, except to the extent another
agency official is permitted to issue and prosecute civil penalties
under Sec. 1503.421 of this part.
(b) An agency employee engaged in the performance of investigative
or prosecutorial functions in a civil penalty action must not, in that
case or a factually related case, participate or give advice in a
decision by the ALJ or by the TSA decision maker on appeal, except as
counsel or a witness in the public proceedings.
(c) The Chief Counsel or an agency attorney not covered by
paragraph (b) of this section will advise the TSA decision maker
regarding an initial decision or any appeal of a civil penalty action
to the TSA decision maker.
Sec. 1503.605 Appearances and rights of parties.
(a) Any party may appear and be heard in person.
(b) Any party may be accompanied, represented, or advised by an
attorney or representative designated by the party and may be examined
by that attorney or representative in any proceeding governed by this
subpart. An attorney or representative who represents a respondent and
has not previously filed a pleading in the matter must file a notice of
appearance in the action, in the manner provided in Sec. 1503.429, and
must serve a copy of the notice of appearance on each party, in the
manner provided in Sec. 1503.409, before participating in any
proceeding governed by this subpart. The attorney or representative
must include the name, address, and telephone number of the attorney or
representative in the notice of appearance.
Sec. 1503.607 Administrative law judges.
(a) Powers of an ALJ. In accordance with the rules of this subpart,
an ALJ may:
(1) Give notice of, and hold, prehearing conferences and hearings.
(2) Issue scheduling orders and other appropriate orders regarding
discovery or other matters that come before him or her consistent with
the rules of this subpart.
(3) Administer oaths and affirmations.
(4) Issue subpoenas authorized by law.
(5) Rule on offers of proof.
(6) Receive relevant and material evidence.
(7) Regulate the course of the hearing in accordance with the rules
of this subpart.
(8) Hold conferences to settle or to simplify the issues on his or
her own motion or by consent of the parties.
(9) Rule on procedural motions and requests.
(10) Make findings of fact and conclusions of law, and issue an
initial decision.
(11) Strike unsigned documents unless omission of the signature is
corrected promptly after being called to the attention of the attorney
or party.
(12) Order payment of witness fees in accordance with Sec.
1503.649.
(b) Limitations on the power of the ALJ. (1) The ALJ may not:
(i) Issue an order of contempt.
(ii) Award costs to any party.
(iii) Impose any sanction not specified in this subpart.
(iv) Adopt or follow a standard of proof or procedure contrary to
that set forth in this subpart.
(v) Decide issues involving the validity of a TSA regulation,
order, or other requirement under the U.S. Constitution, the
Administrative Procedure Act, or other law.
(2) If the ALJ imposes any sanction not specified in this subpart,
a party may file an interlocutory appeal of right pursuant to Sec.
1503.631(c)(3).
(3) This section does not preclude an ALJ from issuing an order
that bars a person from a specific proceeding based on a finding of
obstreperous or disruptive behavior in that specific proceeding.
(c) Disqualification. The ALJ may disqualify himself or herself at
any time. A party may file a motion, pursuant to Sec. 1503.629(f)(6),
requesting that an ALJ be disqualified from the proceedings.
Sec. 1503.609 Complaint.
(a) Filing. The agency attorney must file the complaint with the
Enforcement Docket Clerk in accordance with Sec. 1503.429, or may file
a written motion pursuant to Sec. 1503.629(f)(2)(i) instead of filing
a complaint, not later than 30 days after receipt by the agency
attorney of a request for hearing. The agency attorney should suggest a
location for the hearing when filing the complaint.
(b) Contents. A complaint must set forth the facts alleged, any
statute, regulation, or order allegedly violated by the respondent, and
the proposed civil penalty in sufficient detail to provide notice of
any factual or legal allegation and proposed civil penalty.
Sec. 1503.611 Answer.
(a) Filing. A respondent must file a written answer to the
complaint in accordance with Sec. 1503.429, or may file a written
motion pursuant to Sec. 1503.629(f)(1)-(4) instead of filing an
answer, not later than 30 days after service of the complaint. Subject
to paragraph (c) of this section, the answer may be in the form of a
letter, but must be dated and signed by the person responding to the
complaint. An answer may be typewritten or may be legibly handwritten.
The person filing an answer should suggest a location for the hearing
when filing the answer.
(b) Contents. An answer must specifically state any affirmative
defense that the respondent intends to assert at the hearing. A person
filing an answer may include a brief statement of any relief requested
in the answer.
(c) Specific denial of allegations required. A person filing an
answer must admit, deny, or state that the person is without sufficient
knowledge or information to admit or deny, each numbered paragraph of
the complaint. Any statement or allegation contained in the complaint
that is not specifically denied in the answer may be deemed an
admission of the truth of that allegation. A general denial of the
complaint is deemed a failure to file an answer.
(d) Failure to file answer. A person's failure to file an answer
without good cause, as determined by the ALJ, will be deemed an
admission of the truth of each allegation contained in the complaint.
Sec. 1503.613 Consolidation and separation of cases.
(a) Consolidation. If two or more actions involve common questions
of law or fact, the Chief Administrative Law Judge may do the
following:
[[Page 36047]]
(1) Order a joint hearing or trial on any or all such questions.
(2) Order the consolidation of such actions.
(3) Otherwise make such orders concerning the proceedings as may
tend to avoid unnecessary costs or delay.
(b) Consolidation shall not affect the applicability of this part.
Consolidation of two or more actions that individually meet the
jurisdictional amounts set forth in Sec. 1503.601(a)(2) shall not
cause the resulting consolidated action to come under the exclusive
jurisdiction of the district courts of the United States as specified
in 49 U.S.C. 46301(d)(4)(A).
(c) Separate trials. The Chief Administrative Law Judge, in
furtherance of convenience or to avoid prejudice, or when separate
trials will be conducive to expedition and economy, may order a
separate trial of any claim, or of any separate issue, or any number of
claims or issues.
Sec. 1503.615 Notice of hearing.
(a) Notice. The ALJ must give each party at least 60 days notice of
the date, time, and location of the hearing. With the consent of the
ALJ, the parties may agree to hold the hearing on an earlier date than
the date specified in the notice of hearing.
(b) Date, time, and location of the hearing. The ALJ to whom the
proceedings have been assigned must set a reasonable date, time, and
location for the hearing. The ALJ must consider the need for discovery
and any joint procedural or discovery schedule submitted by the parties
when determining the hearing date. The ALJ must give due regard to the
convenience of the parties, the location where the majority of the
witnesses reside or work, and whether the location is served by a
scheduled air carrier.
Sec. 1503.617 Extension of time.
(a) Oral requests. The parties may agree to extend for a reasonable
period the time for filing a document under this subpart. If the
parties agree, the ALJ must grant one extension of time to each party.
The party seeking the extension of time must submit a draft order to
the ALJ to be signed by the ALJ and filed with the Enforcement Docket
Clerk. The ALJ may grant additional oral requests for an extension of
time where the parties agree to the extension.
(b) Written motion. A party must file a written motion for an
extension of time not later than 7 days before the document is due
unless the party shows good cause for the late filing. The ALJ may
grant the extension of time if the party shows good cause.
(c) Request for continuance of hearing. Either party may request in
writing a continuance of the date of a hearing, for good cause shown,
no later than seven days before the scheduled date of the hearing. Good
cause does not include a scheduling conflict involving the parties or
their attorneys which by due diligence could have been foreseen.
(d) Failure to rule. If the ALJ fails to rule on a written motion
for an extension of time by the date the document was due, the motion
for an extension of time is deemed granted for no more than 20 days
after the original date the document was to be filed. If the ALJ fails
to rule on a request for continuance by the scheduled hearing date, the
request is deemed granted for no more than 10 days after the scheduled
hearing date.
Sec. 1503.619 Intervention.
(a) A person may file a motion for leave to intervene as a party in
a civil penalty action. The person must file a motion for leave to
intervene not later than 10 days before the hearing unless the person
shows good cause for the late filing.
(b) If the ALJ finds that intervention will not unduly broaden the
issues or delay the proceedings, the ALJ may grant a motion for leave
to intervene if the person will be bound by any order or decision
entered in the action or the person has a property, financial, or other
legitimate interest that may not be addressed adequately by the
parties. The ALJ may determine the extent to which an intervenor may
participate in the proceedings.
Sec. 1503.621 Amendment of pleadings.
(a) Filing and service. A party must file the amendment with the
Enforcement Docket Clerk and must serve a copy of the amendment on the
ALJ and all parties to the proceeding.
(b) Time. A party must file an amendment to a complaint or an
answer within the following:
(1) Not later than 15 days before the scheduled date of a hearing,
a party may amend a complaint or an answer without the consent of the
ALJ.
(2) Less than 15 days before the scheduled date of a hearing, the
ALJ may allow amendment of a complaint or an answer only for good cause
shown in a motion to amend.
(c) Responses. The ALJ must allow a reasonable time, but not more
than 20 days from the date of filing, for other parties to respond if
an amendment to a complaint, answer, or other pleading has been filed
with the ALJ.
Sec. 1503.623 Withdrawal of complaint or request for hearing.
At any time before or during a hearing, an agency attorney may
withdraw a complaint or a respondent may withdraw a request for a
hearing without the consent of the ALJ. If an agency attorney withdraws
the complaint or a party withdraws the request for a hearing and the
answer, the ALJ must dismiss the proceedings under this subpart with
prejudice, unless the withdrawing party shows good cause for dismissal
without prejudice, except that a party may withdraw a request for
hearing without prejudice at any time before a complaint has been
filed.
Sec. 1503.625 Waivers.
Waivers of any rights provided by statute or regulation must be in
writing or by stipulation made at a hearing and entered into the
record. The parties must set forth the precise terms of the waiver and
any conditions.
Sec. 1503.627 Joint procedural or discovery schedule.
(a) General. The parties may agree to submit a schedule for filing
all prehearing motions, a schedule for conducting discovery in the
proceedings, or a schedule that will govern all prehearing motions and
discovery in the proceedings.
(b) Form and content of schedule. If the parties agree to a joint
procedural or discovery schedule, one of the parties must file the
joint schedule with the ALJ, setting forth the dates to which the
parties have agreed, and must serve a copy of the joint schedule on
each party.
(1) The joint schedule may include, but need not be limited to,
requests for discovery, any objections to discovery requests, responses
to discovery requests to which there are no objections, submission of
prehearing motions, responses to prehearing motions, exchange of
exhibits to be introduced at the hearing, and a list of witnesses that
may be called at the hearing.
(2) Each party must sign the original joint schedule to be filed
with the Enforcement Docket Clerk.
(c) Time. The parties may agree to submit all prehearing motions
and responses and may agree to close discovery in the proceedings under
the joint schedule within a reasonable time before the date of the
hearing, but not later than 15 days before the hearing.
(d) Order establishing joint schedule. The ALJ must approve the
joint schedule filed by the parties. One party must submit a draft
order establishing a joint schedule to the ALJ to be signed by
[[Page 36048]]
the ALJ and filed with the Enforcement Docket Clerk.
(e) Disputes. The ALJ must resolve disputes regarding discovery or
disputes regarding compliance with the joint schedule as soon as
possible so that the parties may continue to comply with the joint
schedule.
(f) Sanctions for failure to comply with joint schedule. If a party
fails to comply with the ALJ's order establishing a joint schedule, the
ALJ may direct that party to comply with a motion or discovery request
or, limited to the extent of the party's failure to comply with a
motion or discovery request, the ALJ may do the following:
(1) Strike that portion of a party's pleadings.
(2) Preclude prehearing or discovery motions by that party.
(3) Preclude admission of that portion of a party's evidence at the
hearing.
(4) Preclude that portion of the testimony of that party's
witnesses at the hearing.
Sec. 1503.629 Motions.
(a) General. A party applying for an order or ruling not
specifically provided in this subpart must do so by motion. A party
must comply with the requirements of this section when filing a motion.
A party must serve a copy of each motion on each party.
(b) Form and contents. A party must state the relief sought by the
motion and the particular grounds supporting that relief. If a party
has evidence in support of a motion, the party must attach any
supporting evidence, including affidavits, to the motion.
(c) Filing of motions. A motion made prior to the hearing must be
in writing or orally on the record. Unless otherwise agreed by the
parties or for good cause shown, a party must file any prehearing
motion, and must serve a copy on each party, not later than 30 days
before the hearing. Motions introduced during a hearing may be made
orally on the record unless the ALJ directs otherwise.
(d) Reply to motions. Any party may file a reply, with affidavits
or other evidence in support of the reply, not later than 10 days after
service of a written motion on that party. When a motion is made during
a hearing, the reply may be made at the hearing on the record, orally
or in writing, within a reasonable time determined by the ALJ. At the
discretion of the ALJ, the moving party may file a response to the
reply.
(e) Rulings on motions. The ALJ must rule on all motions as
follows:
(1) Discovery motions. The ALJ must resolve all pending discovery
motions not later than 10 days before the hearing.
(2) Prehearing motions. The ALJ must resolve all pending prehearing
motions not later than 7 days before the hearing. If the ALJ issues a
ruling or order orally, the ALJ must serve a written copy of the ruling
or order, within 3 days, on each party. In all other cases, the ALJ
must issue rulings and orders in writing and must serve a copy of the
ruling or order on each party.
(3) Motions made during the hearing. The ALJ may issue rulings and
orders on motions made during the hearing orally. Oral rulings or
orders on motions must be made on the record.
(f) Specific motions. A party may file, but is not limited to, the
following motions with the Enforcement Docket Clerk:
(1) Motion to dismiss for insufficiency. A respondent may file a
motion to dismiss the complaint for insufficiency instead of filing an
answer. If the ALJ denies the motion to dismiss the complaint for
insufficiency, the respondent must file an answer not later than 20
days after service of the ALJ's denial of the motion. A motion to
dismiss the complaint for insufficiency must show that the complaint
fails to state a violation of a TSA requirement. If the ALJ grants the
motion to dismiss the complaint for insufficiency, the agency attorney
may amend the complaint in accordance with Sec. 1503.621.
(2) Motion to dismiss. A party may file a motion to dismiss,
specifying the grounds for dismissal. If an ALJ grants a motion to
dismiss in part, a party may appeal the ALJ's ruling on the motion to
dismiss under Sec. 1503.631(b).
(i) Motion to dismiss a request for a hearing. An agency attorney
may file a motion to dismiss a request for a hearing as untimely
instead of filing a complaint. If the motion to dismiss is not granted,
the agency attorney must file the complaint and must serve a copy of
the complaint on each party not later than 20 days after service of the
ALJ's ruling or order on the motion to dismiss. If the motion to
dismiss is granted and the proceedings are terminated without a
hearing, the respondent may file an appeal pursuant to Sec. 1503.657.
If required by the decision on appeal, the agency attorney must file a
complaint and must serve a copy of the complaint on each party not
later than 30 days after service of the decision on appeal.
(ii) Motion to dismiss a complaint. A respondent may file a motion
to dismiss a complaint instead of filing an answer, on the ground that
the complaint was not timely filed or on other grounds. If the ALJ does
not grant the motion to dismiss, the respondent must file an answer and
must serve a copy of the answer on each party not later than 30 days
after service of the ALJ's ruling or order on the motion to dismiss. If
the ALJ grants the motion to dismiss and the proceedings are terminated
without a hearing, the agency attorney may file an appeal pursuant to
Sec. 1503.657. If required by the decision on appeal, the respondent
must file an answer and must serve a copy of the answer on each party
not later than 20 days after service of the decision on appeal.
(iii) Motion to dismiss based on settlement. A party may file a
motion to dismiss based on a mutual settlement of the parties.
(3) Motion for more definite statement. A party may file a motion
for more definite statement of any pleading that requires a response
under this subpart. A party must set forth, in detail, the indefinite
or uncertain allegations contained in a complaint or response to any
pleading and must submit the details that the party believes would make
the allegation or response definite and certain.
(i) Complaint. A respondent may file a motion requesting a more
definite statement of the allegations contained in the complaint
instead of filing an answer. If the ALJ grants the motion, the agency
attorney must supply a more definite statement not later than 15 days
after service of the ruling granting the motion. If the agency attorney
fails to supply a more definite statement, the ALJ must strike the
allegations in the complaint to which the motion is directed. If the
ALJ denies the motion, the respondent must file an answer and must
serve a copy of the answer on each party not later than 20 days after
service of the order of denial.
(ii) Answer. An agency attorney may file a motion requesting a more
definite statement if an answer fails to respond clearly to the
allegations in the complaint. If the ALJ grants the motion, the
respondent must supply a more definite statement not later than 15 days
after service of the ruling on the motion. If the respondent fails to
supply a more definite statement, the ALJ must strike those statements
in the answer to which the motion is directed. The respondent's failure
to supply a more definite statement may be deemed an admission of
unanswered allegations in the complaint.
(4) Motion to strike. Any party may move to strike any insufficient
allegation or defense, or any redundant, immaterial, or irrelevant
matter in a pleading. A party must file a motion to strike before a
response is required under this subpart or, if a response is
[[Page 36049]]
not required, not later than 10 days after service of the pleading.
(5) Motion for decision. A party may move for decision, regarding
all or any part of the proceedings, at any time before the ALJ has
issued an initial decision in the proceedings. A party may include with
a motion for decision affidavits as well as any other evidence in
support of the motion. The ALJ must grant a party's motion for decision
if the pleadings, depositions, answers to interrogatories, admissions,
affidavits, matters that the ALJ has officially noticed, or evidence
introduced during the hearing show that there is no genuine issue of
material fact and that the party making the motion is entitled to a
decision as a matter of law. The party moving for decision has the
burden of showing that there is no genuine issue of material fact.
(6) Motion for disqualification. A party may file the motion at any
time after the ALJ has been assigned to the proceedings but must make
the motion before the ALJ files an initial decision in the proceedings.
(i) Motion and supporting affidavit. A party must state the grounds
for disqualification, including, but not limited to, personal bias,
pecuniary interest, or other factors supporting disqualification, in
the motion for disqualification. A party must submit an affidavit with
the motion for disqualification that sets forth, in detail, the matters
alleged to constitute grounds for disqualification.
(ii) Answer. A party must respond to the motion for
disqualification not later than 5 days after service of the motion for
disqualification.
(iii) Decision on motion for disqualification. The ALJ must render
a decision on the motion for disqualification not later than 20 days
after the motion has been filed. If the ALJ finds that the motion for
disqualification and supporting affidavit show a basis for
disqualification, the ALJ must withdraw from the proceedings
immediately. If the ALJ finds that disqualification is not warranted,
the ALJ must deny the motion and state the grounds for the denial on
the record. If the ALJ fails to rule on a party's motion for
disqualification within 20 days after the motion has been filed, the
motion is deemed granted.
(iv) Appeal. A party may appeal the ALJ's denial of the motion for
disqualification in accordance with Sec. 1503.631(b).
Sec. 1503.631 Interlocutory appeals.
(a) General. Unless otherwise provided in this subpart, a party may
not appeal a ruling or decision of the ALJ to the TSA decision maker
until the initial decision has been entered on the record. A decision
or order of the TSA decision maker on the interlocutory appeal does not
constitute a final order of the Administrator for the purposes of
judicial appellate review under 49 U.S.C. 46110.
(b) Interlocutory appeal for cause. If a party files a written
request for an interlocutory appeal for cause with the ALJ, or orally
requests an interlocutory appeal for cause, the proceedings are stayed
until the ALJ issues a decision on the request. If the ALJ grants the
request, the proceedings are stayed until the TSA decision maker issues
a decision on the interlocutory appeal. The ALJ must grant an
interlocutory appeal for cause if a party shows that delay of the
appeal would be detrimental to the public interest or would result in
undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the ALJ of
an interlocutory appeal of right, the proceedings are stayed until the
TSA decision maker issues a decision on the interlocutory appeal. A
party may file an interlocutory appeal, without the consent of the ALJ,
before an initial decision has been entered in the following cases:
(1) A ruling or order by the ALJ barring a person from the
proceedings.
(2) Failure of the ALJ to dismiss the proceedings in accordance
with Sec. 1503.215.
(3) A ruling or order by the ALJ in violation of Sec. 1503.607(b).
(4) A ruling or order by the ALJ regarding public access to a
particular docket or documents.
(d) Procedure. Not later than 10 days after the ALJ's decision
forming the basis of an interlocutory appeal of right or not later than
10 days after the ALJ's decision granting an interlocutory appeal for
cause, a party must file a notice of interlocutory appeal, with
supporting documents, and the party must serve a copy of the notice and
supporting documents on each party. Not later than 10 days after
service of the appeal brief, a party must file a reply brief, if any,
and the party must serve a copy of the reply brief on each party. The
TSA decision maker must render a decision on the interlocutory appeal,
on the record and as a part of the decision in the proceedings, within
a reasonable time after receipt of the interlocutory appeal.
(e) Frivolous appeals. The TSA decision maker may reject frivolous,
repetitive, or dilatory appeals, and may issue an order precluding one
or more parties from making further interlocutory appeals in a
proceeding in which there have been frivolous, repetitive, or dilatory
interlocutory appeals.
Sec. 1503.633 Discovery.
(a) Initiation of discovery. Any party may initiate discovery
described in this section, without the consent or approval of the ALJ,
at any time after a complaint has been filed in the proceedings.
(b) Methods of discovery. The following methods of discovery are
permitted under this section: depositions on oral examination or
written questions of any person; written interrogatories directed to a
party; requests for production of documents or tangible items to any
person; and requests for admission by a party. A party is not required
to file written discovery requests and responses with the ALJ or the
Enforcement Docket Clerk. In the event of a discovery dispute, a party
must attach a copy of these documents in support of a motion made under
this section.
(c) Service on the agency. A party must serve each discovery
request directed to the agency or any agency employee on the agency
attorney of record.
(d) Time for response to discovery requests. Unless otherwise
directed by this subpart, agreed by the parties, or by order of the
ALJ, a party must respond to a request for discovery, including filing
objections to a request for discovery, not later than 30 days after
service of the request.
(e) Scope of discovery. Subject to the limits on discovery set
forth in paragraph (f) of this section, a party may discover any matter
that is not privileged and that is relevant to the subject matter of
the proceeding. A party may discover information that relates to the
claim or defense of any party including the existence, description,
nature, custody, condition, and location of any document or other
tangible item and the identity and location of any person having
knowledge of discoverable matter. A party may discover facts known, or
opinions held, by an expert who any other party expects to call to
testify at the hearing. A party may not object to a discovery request
on the basis that the information sought would not be admissible at the
hearing if the information sought during discovery is reasonably
calculated to lead to the discovery of admissible evidence.
(f) Limiting discovery. The ALJ must limit the frequency and extent
of discovery permitted by this section if a party shows that--
[[Page 36050]]
(1) The information requested is cumulative or repetitious;
(2) The information requested can be obtained from another less
burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity
to obtain the information through other discovery methods permitted
under this section; or
(4) The method or scope of discovery requested by the party is
unduly burdensome or expensive.
(g) Disclosure of Sensitive Security Information (SSI). At the
request of a party, TSA may provide SSI to the party when, in the sole
discretion of TSA, access to the SSI is necessary for the party to
prepare a response to allegations contained the complaint. TSA may
provide such information subject to such restrictions on further
disclosure and such safeguarding requirements as TSA determines
appropriate.
(h) Confidential orders. A party or person who has received a
discovery request for information, other than SSI, that is related to a
trade secret, confidential or sensitive material, competitive or
commercial information, proprietary data, or information on research
and development, may file a motion for a confidential order with the
ALJ and must serve a copy of the motion for a confidential order on
each party.
(1) The party or person making the motion must show that the
confidential order is necessary to protect the information from
disclosure to the public.
(2) If the ALJ determines that the requested material is not
necessary to decide the case, the ALJ must preclude any inquiry into
the matter by any party.
(3) If the ALJ determines that the requested material may be
disclosed during discovery, the ALJ may order that the material may be
discovered and disclosed under limited conditions or may be used only
under certain terms and conditions.
(4) If the ALJ determines that the requested material is necessary
to decide the case and that a confidential order is warranted, the ALJ
must provide the following:
(i) An opportunity for review of the document by the parties off
the record.
(ii) Procedures for excluding the information from the record.
(iii) An order that the parties must not disclose the information
in any manner and the parties must not use the information in any other
proceeding.
(i) Protective orders. A party or a person who has received a
request for discovery may file a motion for protective order and must
serve a copy of the motion for protective order on each party. The
party or person making the motion must show that the protective order
is necessary to protect the party or the person from annoyance,
embarrassment, oppression, or undue burden or expense. As part of the
protective order, the ALJ may do the following:
(1) Deny the discovery request.
(2) Order that discovery be conducted only on specified terms and
conditions, including a designation of the time or place for discovery
or a determination of the method of discovery.
(3) Limit the scope of discovery or preclude any inquiry into
certain matters during discovery.
(j) Duty to supplement or amend responses. A party who has
responded to a discovery request has a duty to supplement or amend the
response, as soon as the information is known, as follows:
(1) A party must supplement or amend any response to a question
requesting the identity and location of any person having knowledge of
discoverable matters.
(2) A party must supplement or amend any response to a question
requesting the identity of each person who will be called to testify at
the hearing as an expert witness and the subject matter and substance
of that witness' testimony.
(3) A party must supplement or amend any response that was
incorrect when made or any response that was correct when made but is
no longer correct, accurate, or complete.
(k) Depositions. The following rules apply to depositions taken
pursuant to this section:
(1) Form. A deposition must be taken on the record and reduced to
writing. The person being deposed must sign the deposition unless the
parties agree to waive the requirement of a signature.
(2) Administration of oaths. Within the United States, or a
territory or possession subject to the jurisdiction of the United
States, a party must take a deposition before a person authorized to
administer oaths by the laws of the United States or authorized by the
law of the place where the examination is held. Outside the United
States, a party will take a deposition in any manner allowed by the
Federal Rules of Civil Procedure (28 U.S.C. App.).
(3) Notice of deposition. A party must serve a notice of
deposition, stating the time and place of the deposition and the name
and address of each person to be examined, on the person to be deposed,
on the ALJ, on the Enforcement Docket Clerk, and on each party not
later than 7 days before the deposition. A party may serve a notice of
deposition less than 7 days before the deposition only with consent of
the ALJ and for good cause shown. If a subpoena ``duces tecum'' is to
be served on the person to be examined, the party must attach a copy of
the subpoena duces tecum that describes the materials to be produced at
the deposition to the notice of deposition.
(4) Use of depositions. A party may use any part or all of a
deposition at a hearing authorized under this subpart only upon a
showing of good cause. The deposition may be used against any party who
was present or represented at the deposition or who had reasonable
notice of the deposition.
(l) Interrogatories. A party, the party's attorney, or the party's
representative may sign the party's responses to interrogatories. A
party must answer each interrogatory separately and completely in
writing. If a party objects to an interrogatory, the party must state
the objection and the reasons for the objection. An opposing party may
use any part or all of a party's responses to interrogatories at a
hearing authorized under this subpart to the extent that the response
is relevant, material, and not repetitious.
(1) A party must not serve more than 30 interrogatories to each
other party. Each subpart of an interrogatory will be counted as a
separate interrogatory.
(2) Before serving additional interrogatories on a party, a party
must file a motion for leave to serve additional interrogatories on a
party with the ALJ and must serve a copy on each party before serving
additional interrogatories on a party. The ALJ may grant the motion
only if the party shows good cause for the party's failure to inquire
about the information previously and that the information cannot
reasonably be obtained using less burdensome discovery methods or be
obtained from other sources.
(m) Requests for admission. A party may serve a written request for
admission of the truth of any matter within the scope of discovery
under this section or the authenticity of any document described in the
request. A party must set forth each request for admission separately.
A party must serve copies of documents referenced in the request for
admission unless the documents have been provided or are reasonably
available for inspection and copying.
(1) Time. A party's failure to respond to a request for admission,
in writing and signed by the attorney or the party, not later than 30
days after service of the request, is deemed an admission of the truth
of the statement or statements
[[Page 36051]]
contained in the request for admission. The ALJ may determine that a
failure to respond to a request for admission is not deemed an
admission of the truth if a party shows that the failure was due to
circumstances beyond the control of the party or the party's attorney.
(2) Response. A party may object to a request for admission and
must state the reasons for objection. A party may specifically deny the
truth of the matter or describe the reasons why the party is unable to
truthfully deny or admit the matter. If a party is unable to deny or
admit the truth of the matter, the party must show that the party has
made reasonable inquiry into the matter or that the information known
to, or readily obtainable by, the party is insufficient to enable the
party to admit or deny the matter. A party may admit or deny any part
of the request for admission. If the ALJ determines that a response
does not comply with the requirements of this rule or that the response
is insufficient, the matter is deemed admitted.
(3) Effect of admission. Any matter admitted or deemed admitted
under this section is conclusively established for the purpose of the
hearing and appeal.
(n) Motion to compel discovery. A party may move to compel
discovery if a person refuses to answer a question during a deposition,
a party fails or refuses to answer an interrogatory, if a person gives
an evasive or incomplete answer during a deposition or when responding
to an interrogatory, or a party fails or refuses to produce documents
or tangible items. During a deposition, the proponent of a question may
complete the deposition or may adjourn the examination before moving to
compel if a person refuses to answer.
(o) Failure to comply with a discovery order or order to compel. If
a party fails to comply with a discovery order or an order to compel,
the ALJ, limited to the extent of the party's failure to comply with
the discovery order or motion to compel, may do the following:
(1) Strike that portion of a party's pleadings.
(2) Preclude prehearing or discovery motions by that party.
(3) Preclude admission of that portion of a party's evidence at the
hearing.
(4) Preclude that portion of the testimony of that party's
witnesses at the hearing.
Sec. 1503.635 Evidence.
(a) General. A party is entitled to present the party's case or
defense by oral, documentary, or demonstrative evidence, to submit
rebuttal evidence, and to conduct any cross-examination that may be
required for a full and true disclosure of the facts.
(b) Admissibility. A party may introduce any oral, documentary, or
demonstrative evidence in support of the party's case or defense. The
ALJ must admit any oral, documentary, or demonstrative evidence
introduced by a party, but must exclude irrelevant, immaterial, or
unduly repetitious evidence.
(c) Hearsay evidence. Hearsay evidence is admissible in proceedings
governed by this subpart. The fact that evidence submitted by a party
is hearsay goes only to the weight of the evidence and does not affect
its admissibility.
Sec. 1503.637 Standard of proof.
The ALJ may issue an initial decision or may rule in a party's
favor only if the decision or ruling is supported by a preponderance of
the evidence contained in the record. In order to prevail, the party
with the burden of proof must prove the party's case or defense by a
preponderance of the evidence.
Sec. 1503.639 Burden of proof.
(a) Except in the case of an affirmative defense, the burden of
proof is on the agency.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
(c) A party who has asserted an affirmative defense has the burden
of proving the affirmative defense.
Sec. 1503.641 Offer of proof.
A party whose evidence has been excluded by a ruling of the ALJ may
offer the evidence for the record on appeal.
Sec. 1503.643 Public disclosure of evidence.
This section applies to information other than Sensitive Security
Information (SSI). All release of SSI is governed by Sec. 1503.415 and
49 CFR part 1520.
(a) The ALJ may order that any other information contained in the
record be withheld from public disclosure. Any person may object to
disclosure of information in the record by filing a written motion to
withhold specific information with the ALJ and serving a copy of the
motion on each party. The party must state the specific grounds for
nondisclosure in the motion.
(b) The ALJ must grant the motion to withhold information in the
record if, based on the motion and any response to the motion, the ALJ
determines that disclosure would be detrimental to transportation
safety, disclosure would not be in the public interest, or that the
information is not otherwise required to be made available to the
public.
Sec. 1503.645 Expert or opinion witnesses.
An employee of the agency may not be called as an expert or opinion
witness, for any party other than TSA, in any proceeding governed by
this subpart. An employee of a respondent may not be called by an
agency attorney as an expert or opinion witness for TSA in any
proceeding governed by this subpart to which the respondent is a party.
Sec. 1503.647 Subpoenas.
(a) Request for subpoena. A party may obtain a subpoena to compel
the attendance of a witness at a deposition or hearing, or to require
the production of documents or tangible items, from the ALJ who is
assigned to the case, or, if no ALJ is assigned or the assigned law
judge is unavailable, from the chief ALJ. The party must complete the
subpoena, stating the title of the action and the date and time for the
witness' attendance or production of documents or items. The party who
obtained the subpoena must serve the subpoena on the witness or the
custodian of the documents or tangible items sought to be produced.
(b) Motion to quash or modify the subpoena. A party, or any person
upon whom a subpoena has been served, may file a motion to quash or
modify the subpoena at or before the time specified in the subpoena for
compliance. The applicant must describe, in detail, the basis for the
application to quash or modify the subpoena including, but not limited
to, a statement that the testimony, document, or tangible evidence is
not relevant to the proceeding, that the subpoena is not reasonably
tailored to the scope of the proceeding, or that the subpoena is
unreasonable and oppressive. A motion to quash or modify the subpoena
will stay the effect of the subpoena pending a decision by the ALJ on
the motion.
(c) Enforcement of subpoena. Upon a showing that a person has
failed or refused to comply with a subpoena, a party may apply to the
U.S. district court having jurisdiction to seek judicial enforcement of
the subpoena in accordance with 49 U.S.C. 46104.
Sec. 1503.649 Witness fees.
(a) General. Unless otherwise authorized by the ALJ, the party who
applies for a subpoena to compel the attendance of a witness at a
deposition or hearing, or the party at whose request a witness appears
at a deposition or
[[Page 36052]]
hearing, must pay the witness fees described in this section.
(b) Amount. Except for an employee of the agency who appears at the
direction of the agency, a witness who appears at a deposition or
hearing is entitled to the same fees and mileage expenses as are paid
to a witness in a court of the United States in comparable
circumstances.
Sec. 1503.651 Record.
(a) Exclusive record. The request for hearing, complaint, answer,
transcript of all testimony in the hearing, all exhibits received into
evidence, and all motions, responses to motions, applications,
requests, and rulings will constitute the exclusive record for decision
of the proceedings and the basis for the issuance of any orders in the
proceeding.
(b) Examination and copying of record. (1) Generally. Any person
interested in reviewing or obtaining a copy of a record may do so only
by submitting a Freedom of Information Act (FOIA) request under 5
U.S.C. 552, et seq., 49 CFR part 7, and any applicable DHS regulations.
Portions of the record may be exempt from disclosure pursuant to FOIA.
(2) Docket Files or Documents Not for Public Disclosure. (i) Only
the following persons may review docket files or particular documents
that are not for public disclosure:
(A) Parties to the proceedings.
(B) Their designated representatives.
(C) Persons who have a need to know as determined by the
Administrator.
(ii) Those persons with permission to review these documents or
docket files may view the materials at the TSA Headquarters, 601 South
12th Street, Arlington, Virginia 20598-6002. Persons with access to
these records may have a copy of the records after payment of
reasonable costs.
Sec. 1503.653 Argument before the ALJ.
(a) Arguments during the hearing. During the hearing, the ALJ must
give the parties a reasonable opportunity to present arguments on the
record supporting or opposing motions, objections, and rulings if the
parties request an opportunity for argument. The ALJ may request
written arguments during the hearing if the ALJ finds that submission
of written arguments is necessary before the ALJ issues the ruling or
order.
(b) Final oral argument. At the conclusion of the hearing and
before the ALJ issues an initial decision in the proceedings, the
parties are entitled to submit oral proposed findings of fact and
conclusions of law, exceptions to rulings of the ALJ, and supporting
arguments for the findings, conclusions, or exceptions. At the
conclusion of the hearing, a party may waive final oral argument.
(c) Posthearing briefs. The ALJ may request written posthearing
briefs before the ALJ issues an initial decision in the proceedings. If
a party files a written posthearing brief, the party must include
proposed findings of fact and conclusions of law, exceptions to rulings
of the ALJ, and supporting arguments for the findings, conclusions, or
exceptions. The ALJ must give the parties a reasonable opportunity, not
more than 30 days after receipt of the transcript, to prepare and
submit the briefs.
Sec. 1503.655 Initial decision.
(a) Contents. The ALJ may issue an initial decision after the
conclusion of the hearing or after the submission of written
posthearing briefs, if so ordered. In each oral or written decision,
the ALJ must include findings of fact and conclusions of law, and the
grounds supporting those findings and conclusions, upon all material
issues of fact, the credibility of witnesses, the applicable law, any
exercise of the ALJ's discretion, the amount of any civil penalty found
appropriate by the ALJ, and a discussion of the basis for any order
issued in the proceedings. The ALJ is not required to provide a written
explanation for rulings on objections, procedural motions, and other
matters not directly relevant to the substance of the initial decision.
If the ALJ refers to any previous unreported or unpublished initial
decision, the ALJ must make copies of that initial decision available
to all parties and the TSA decision maker.
(b) Written decision. At the conclusion of the hearing, the ALJ may
issue the initial decision and order orally on the record. The ALJ must
issue a written initial decision and order not later than 30 days after
the conclusion of the hearing or submission of the last posthearing
brief. The ALJ must serve a copy of any written initial decision on
each party.
(c) Order assessing civil penalty. Unless appealed pursuant to
Sec. 1503.657, the initial decision issued by the ALJ will be
considered an order assessing civil penalty if the ALJ finds that an
alleged violation occurred and determines that a civil penalty, in an
amount found appropriate by the ALJ, is warranted.
(d) Effect of initial decision. An initial decision of an ALJ is
persuasive authority in any other civil penalty action, unless appealed
and reversed by the TSA decision maker or a court of competent
jurisdiction.
Sec. 1503.657 Appeal from initial decision.
(a) Notice of appeal. Either party may appeal the initial decision,
and any decision not previously appealed pursuant to Sec. 1503.631, by
filing a notice of appeal with the Enforcement Docket Clerk. A party
must file the notice of appeal with USCG ALJ Docketing Center, ATTN:
Enforcement Docket Clerk, 40 S. Gay Street, Room 412, Baltimore,
Maryland 21202-4022. A party must file the notice of appeal not later
than 10 days after entry of the oral initial decision on the record or
service of the written initial decision on the parties and must serve a
copy of the notice of appeal on each party. Upon filing of a notice of
appeal, the effectiveness of the initial decision is stayed until a
final decision and order of the TSA decision maker have been entered on
the record.
(b) Issues on appeal. A party may appeal only the following issues:
(1) Whether each finding of fact is supported by a preponderance of
the evidence.
(2) Whether each conclusion of law is made in accordance with
applicable law, precedent, and public policy.
(3) Whether the ALJ committed any prejudicial errors during the
hearing that support the appeal.
(c) Perfecting an appeal. Unless otherwise agreed by the parties, a
party must perfect an appeal, not later than 50 days after entry of the
oral initial decision on the record or service of the written initial
decision on the party, by filing an appeal brief with the Enforcement
Docket Clerk.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for perfecting the appeal with the consent of
the TSA decision maker. If the TSA decision maker grants an extension
of time to perfect the appeal, the Enforcement Docket Clerk will serve
a letter confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for perfecting an appeal, a party desiring an
extension of time may file a written motion for an extension with the
Enforcement Docket Clerk and must serve a copy of the motion on each
party. The TSA decision maker may grant an extension if good cause for
the extension is shown in the motion.
(d) Appeal briefs. A party must file the appeal brief with the
Enforcement Docket Clerk and must serve a copy of the appeal brief on
each party.
(1) In the appeal brief, a party must set forth, in detail, the
party's specific
[[Page 36053]]
objections to the initial decision or rulings, the basis for the
appeal, the reasons supporting the appeal, and the relief requested in
the appeal. If, for the appeal, the party relies on evidence contained
in the record for the appeal, the party must specifically refer in the
appeal brief to the pertinent evidence contained in the transcript.
(2) The TSA decision maker may dismiss an appeal, on the TSA
decision maker's own initiative or upon motion of any other party,
where a party has filed a notice of appeal but fails to perfect the
appeal by timely filing an appeal brief.
(e) Reply brief. Unless otherwise agreed by the parties, any party
may file a reply brief not later than 35 days after the appeal brief
has been served on that party. The party filing the reply brief must
serve a copy of the reply brief on each party. If the party relies on
evidence contained in the record for the reply, the party must
specifically refer to the pertinent evidence contained in the
transcript in the reply brief.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for filing a reply brief with the consent of
the TSA decision maker. If the TSA decision maker grants an extension
of time to file the reply brief, the Enforcement Docket Clerk will
serve a letter confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for filing a reply brief, a party desiring an
extension of time may file a written motion for an extension and will
serve a copy of the motion on each party. The TSA decision maker may
grant an extension if good cause for the extension is shown in the
motion.
(f) Other briefs. The TSA decision maker may allow any person to
submit an amicus curiae brief in an appeal of an initial decision. A
party may not file more than one appeal brief or reply brief. A party
may petition the TSA decision maker, in writing, for leave to file an
additional brief and must serve a copy of the petition on each party.
The party may not file the additional brief with the petition. The TSA
decision maker may grant leave to file an additional brief if the party
demonstrates good cause for allowing additional argument on the appeal.
The TSA decision maker will allow a reasonable time for the party to
file the additional brief.
(g) Number of copies. A party must file the original appeal brief
or the original reply brief, and two copies of the brief, with the
Enforcement Docket Clerk.
(h) Oral argument. The TSA decision maker has sole discretion to
permit oral argument on the appeal. On the TSA decision maker's own
initiative or upon written motion by any party, the TSA decision maker
may find that oral argument will contribute substantially to the
development of the issues on appeal and may grant the parties an
opportunity for oral argument.
(i) Waiver of objections on appeal. If a party fails to object to
any alleged error regarding the proceedings in an appeal or a reply
brief, the party waives any objection to the alleged error. The TSA
decision maker is not required to consider any objection in an appeal
brief or any argument in the reply brief if a party's objection is
based on evidence contained in the record and the party does not
specifically refer to the pertinent evidence from the record in the
brief.
(j) The TSA decision maker's decision on appeal. The TSA decision
maker will review the briefs on appeal and the oral argument, if any,
to determine if the ALJ committed prejudicial error in the proceedings
or that the initial decision should be affirmed, modified, or reversed.
The TSA decision maker may affirm, modify, or reverse the initial
decision, make any necessary findings, or may remand the case for any
proceedings that the TSA decision maker determines may be necessary.
(1) The TSA decision maker may raise any issue, on the TSA decision
maker's own initiative, that is required for proper disposition of the
proceedings. The TSA decision maker will give the parties a reasonable
opportunity to submit arguments on the new issues before making a
decision on appeal. If an issue raised by the TSA decision maker
requires the consideration of additional testimony or evidence, the TSA
decision maker will remand the case to the ALJ for further proceedings
and an initial decision related to that issue. If the TSA decision
maker raises an issue that is solely an issue of law, or the issue was
addressed at the hearing but was not raised by a party in the briefs on
appeal, the TSA decision maker need not remand the case to the ALJ for
further proceedings but has the discretion to do so.
(2) The TSA decision maker will issue the final decision and order
of the Administrator on appeal in writing and will serve a copy of the
decision and order on each party. Unless a petition for review is filed
pursuant to Sec. 1503.659, a final decision and order of the
Administrator will be considered an order assessing civil penalty if
the TSA decision maker finds that an alleged violation occurred and a
civil penalty is warranted.
(3) A final decision and order of the Administrator after appeal is
binding precedent in any other civil penalty action unless appealed and
reversed by a court of competent jurisdiction.
(4) The TSA decision maker will determine whether the decision and
order of the TSA decision maker, with the ALJ's initial decision or
order attached, may be released to the public, either in whole or in
redacted form. In making this determination, the TSA decision maker
will consider whether disclosure of any of the information in the
decision and order would be detrimental to transportation security,
would not be in the public interest, or should not otherwise be
required to be made available to the public.
Sec. 1503.659 Petition to reconsider or modify a final decision and
order of the TSA decision maker on appeal.
(a) General. Any party may petition the TSA decision maker to
reconsider or modify a final decision and order issued by the TSA
decision maker on appeal from an initial decision. A party must file a
petition to reconsider or modify not later than 30 days after service
of the TSA decision maker's final decision and order on appeal and must
serve a copy of the petition on each party. The TSA decision maker will
not reconsider or modify an initial decision and order issued by an ALJ
that has not been appealed by any party to the TSA decision maker and
filed with the Enforcement Docket Clerk.
(b) Form and number of copies. A party must file in writing a
petition to reconsider or modify. The party must file the original
petition with the Enforcement Docket Clerk and must serve a copy of the
petition on each party.
(c) Contents. A party must state briefly and specifically the
alleged errors in the final decision and order on appeal, the relief
sought by the party, and the grounds that support the petition to
reconsider or modify.
(1) If the petition is based, in whole or in part, on allegations
regarding the consequences of the TSA decision maker's decision, the
party must describe and support those allegations.
(2) If the petition is based, in whole or in part, on new material
not previously raised in the proceedings, the party must set forth the
new material and include affidavits of prospective witnesses and
authenticated documents that would be introduced in support of the new
material. The party must explain, in detail, why the new
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material was not discovered through due diligence prior to the hearing.
(d) Repetitious and frivolous petitions. The TSA decision maker
will not consider repetitious or frivolous petitions. The TSA decision
maker may summarily dismiss repetitious or frivolous petitions to
reconsider or modify.
(e) Reply petitions. Any other party may reply to a petition to
reconsider or modify, not later than 10 days after service of the
petition on that party, by filing a reply with the Enforcement Docket
Clerk. A party must serve a copy of the reply on each party.
(f) Effect of filing petition. Unless otherwise ordered by the TSA
decision maker, filing a petition pursuant to this section will stay
the effective date of the TSA decision maker's final decision and order
on appeal.
(g) The TSA decision maker's decision on petition. The TSA decision
maker has sole discretion to grant or deny a petition to reconsider or
modify. The TSA decision maker will grant or deny a petition to
reconsider or modify within a reasonable time after receipt of the
petition or receipt of the reply petition, if any. The TSA decision
maker may affirm, modify, or reverse the final decision and order on
appeal, or may remand the case for any proceedings that the TSA
decision maker determines may be necessary.
Sec. 1503.661 Judicial review of a final order.
For violations of a TSA requirement, a party may petition for
review of a final order of the Administrator only to the courts of
appeals of the United States or the United States Court of Appeals for
the District of Columbia pursuant to 49 U.S.C. 46110. A party seeking
judicial review of a final order must file a petition for review not
later than 60 days after the final order has been served on the party.
Subpart H--Judicial Assessment of Civil Penalties
Sec. 1503.701 Applicability of this subpart.
(a) Jurisdictional minimums. This subpart applies to a civil
penalty action under this part in which the total amount in controversy
exceeds the following amounts.
(b) In general. Except as provided in paragraph (c) of this
section, in the case of violation of title 49 U.S.C. or 46 U.S.C
chapter 701, a regulation prescribed, or order issued under any of
those provisions, the amount in controversy exceeds the following:
(1) $50,000, in the case of violation by an individual or small
business concern, as defined in section 3 of the Small Business Act (15
U.S.C. 632).
(2) $400,000, in the case of violation by any other person.
(c) Certain aviation related violations. In the case of a violation
of 49 U.S. C. chapter 449 (except sections 44902, 44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-(f), 44908, and 44909), or a regulation
prescribed or order issued under any of those provisions, the amount in
controversy exceeds the following:
(1) $50,000, in the case of violation by an individual (except an
airman serving as an airman), any person not operating an aircraft for
the transportation of passengers or property for compensation, or a
small business concern, as defined in section 3 of the Small Business
Act (15 U.S.C. 632).
(2) $400,000, in the case of violation by a person operating an
aircraft for the transportation of passengers or property for
compensation (except an individual serving as an airman).
Sec. 1503.703 Civil penalty letter; referral.
(a) Issuance. In a civil penalty action in which the amount in
controversy exceeds the amounts set forth in Sec. 1503.701, the
Administrator will send a civil penalty letter to the person charged
with a violation of a TSA requirement.
(b) Contents. The civil penalty letter will contain a statement of
the charges; the applicable law, rule, regulation, or order; the amount
of civil penalty that the Administrator will accept in full settlement
of the action or an offer to compromise the civil penalty.
(c) Response. Not later than 30 days after receipt of the civil
penalty letter, the person charged with a violation may present to the
agency attorney any material or information in answer to the charges,
either orally or in writing, that may explain, mitigate, or deny the
violation or that may show extenuating circumstances. The Administrator
will consider any material or information submitted in accordance with
this paragraph (c) to determine whether the person is subject to a
civil penalty or to determine the amount for which the Administrator
will compromise the action.
(d) Compromise. If the person charged with a violation offers to
compromise the civil penalty action for a specific amount, that person
must send payment in a form and manner acceptable to TSA for that
amount to the agency, made payable to the Transportation Security
Administration, or make payment electronically through http://www.pay.gov. The Chief Counsel or the Deputy Chief Counsel for Civil
Enforcement may accept the payment or may refuse and return the
payment. If the Administrator accepts the offer to compromise, the
agency will send a letter to the person charged with the violation
stating that the payment is accepted in full settlement of the civil
penalty action and that the matter is closed.
(e) Referral for prosecution and collection. If the parties cannot
agree to compromise the civil penalty action or the offer to compromise
is rejected and the payment submitted in compromise is returned, the
Administrator may refer the civil penalty action to the United States
Attorney General, or the delegate of the Attorney General, to begin
proceedings in a United States district court, pursuant to the
authority in 49 U.S.C. 114 or 46305 to prosecute and collect the civil
penalty.
(f) The Administrator delegates to the Chief Counsel and the Deputy
Chief Counsel for Enforcement the authority to carry out any function
of the Administrator described in this Sec. 1503.703.
Subpart I--Formal Complaints
Sec. 1503.801 Formal complaints.
(a) Any person may file a complaint with the Administrator with
respect to any act or omission by any person in contravention of 49
U.S.C., subtitle VII, part A, (except sections 44902, 44903(d),
44907(a)-(d)(1)(A), 44907(d)(1)(C)-(f), 44908, and 44909) administered
by the Administrator, or a regulation prescribed or order issued under
any of those provisions. This section does not apply to complaints
against the Administrator or employees of the TSA acting within the
scope of their employment.
(b) Complaints filed under this section must--
(1) Be submitted in writing and identified as a complaint filed for
the purpose of seeking an appropriate order or other enforcement
action;
(2) Be submitted to the U.S. Department of Homeland Security,
Transportation Security Administration, by following the instructions
to complete a ``complaint'' contact form by following the instructions
on the TSA Web site, currently accessible at http://www.tsa.gov/contact/index.shtm.
(3) Set forth the name and address, if known, of each person who is
the subject of the complaint and, with respect to each person, the
specific provisions of the statute, regulation, or order that the
person filing the complaint believes were violated;
(4) Contain a concise, but complete, statement of the facts relied
upon to substantiate each allegation;
[[Page 36055]]
(5) State the name, address, and telephone number of the person
filing the complaint; and
(6) Be signed by the person filing the complaint or a duly
authorized representative.
(c) TSA will consider complaints that do not meet the requirements
of paragraph (b) of this section as reports under Sec. 1503.1.
(d) TSA will place complaints that meet the requirements of
paragraph (b) of this section in the docket and will mail a copy to
each person named in the complaint.
(e) TSA will refer any complaint against a member of the Armed
Forces of the United States acting in the performance of official
duties to the Secretary of the Department concerned in accordance with
the procedures set forth in Sec. 1503.407.
(f) The person named in the complaint must file an answer within 20
days after service of a copy of the complaint.
(g) After the complaint has been answered or after the allotted
time in which to file an answer has expired, the Administrator, or a
designated official, will determine if there are reasonable grounds for
investigating the complaint.
(h) If the Administrator, or a designated official, determines that
a complaint does not state facts that warrant an investigation or
action, the Administrator or designated official may dismiss the
complaint without a hearing and, if so, will provide the reason for the
dismissal, in writing, to the person who filed the complaint and the
person(s) named in the complaint.
(i) If the Administrator, or a designated official, determines that
reasonable grounds exist, an informal investigation may be initiated.
Each person named in the complaint will be advised which official has
been delegated the responsibility under Sec. 1503.203 for conducting
the investigation.
(j) If the investigation substantiates the allegations set forth in
the complaint, a notice of proposed order may be issued or other
enforcement action taken in accordance with this part.
(k) The complaint and other pleadings and official TSA records
relating to the disposition of the complaint are maintained in current
docket form at: U.S. Department of Homeland Security, Transportation
Security Administration, Office of the Chief Counsel, TSA-2, Complaint
Docket, 601 South 12th Street, Arlington, VA 20598-6002. If this
location changes, TSA will give notice of the change by publishing a
notice in the Federal Register.
(1) Generally. Any person interested in reviewing or obtaining a
copy of a record may do so only by submitting a Freedom of Information
Act (FOIA) request under 5 U.S.C. 552, et seq. and 49 CFR part 7.
Portions of the record may be exempt from disclosure pursuant to FOIA.
(2) Docket files or documents not for public disclosure. (i) Only
the following persons may review docket files or particular documents
that are not for public disclosure:
(A) Parties to the proceedings.
(B) Representatives designated in writing by a party.
(C) Persons who have a need to know as determined by the
Administrator.
(ii) Those persons with permission to review these documents or
docket files may view the materials at the Complaint Docket, TSA
Headquarters, Visitor Center, 601 South 12th Street, Arlington,
Virginia 20598-6002, Attn: Office of Chief Counsel. If this address
changes, TSA will give notice by publishing a notice in the Federal
Register. Persons with access to these records may have a copy of the
records after payment of reasonable costs.
Issued in Arlington, Virginia, on July 10, 2009.
Gale D. Rossides,
Acting Administrator.
[FR Doc. E9-17133 Filed 7-20-09; 8:45 am]
BILLING CODE 9110-05-P