[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58331-58334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23985]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1503
[Docket No. TSA-2009-0013]
RIN 1652-AA62
Revision of Enforcement Procedures
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule.
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SUMMARY: The Transportation Security Administration (TSA) issues this
final rule regarding TSA's investigative and enforcement procedures.
TSA makes several minor changes to the final rule TSA issued on July
21, 2009. TSA extends the time for parties to reply to a petition for
reconsideration or modification of a final decision and order of the
TSA decision maker on appeal from 10 days after service to 30 days
after service. Similarly, TSA extends the time for parties to reply to
a motion from 10 to 30 days after service. Finally, TSA corrects an
incorrect section reference.
DATES: Effective September 24, 2010.
FOR FURTHER INFORMATION CONTACT: Emily Su, Office of Chief Counsel,
TSA-2, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 20598-6002; telephone (571) 227-2305; facsimile (571)
227-1380; e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at http://www.regulations.gov;
(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.
Good Cause for Immediate Effective Date
This rule will be effective upon publication in the Federal
Register. The Administrative Procedure Act, 5 U.S.C. 553, allows an
agency, upon finding good cause, to make a rule effective immediately.
There is good cause for making this final rule effective immediately. A
final rule, published on July 21, 2009, is already in effect. 74 FR
36030. There is no need to provide advance notice that this final rule
will become effective because this final rule is substantively the same
as the July 21, 2009, final rule; the only changes in this final rule
expand the period of time in which a party may respond to motions and
final decision from 10 to 30 days.
Summary of the Rulemaking
On July 21, 2009, TSA published a final rule in the Federal
Register (74 FR 36030) reorganizing and amending its Investigative and
Enforcement Procedures. When TSA published the rule, TSA invited public
comments on the rule until September 21, 2009. TSA received one letter
to the public docket that raised a number of comments. This final rule
responds to the comments and makes one minor procedural change and
corrects a section reference, discussed below.
Response to Comments
Informal Conferences: The commenter stated that permitting an
Informal Conference with an agency attorney or another agency official,
as Sec. 1503.421 provides, is beneficial for expedited resolution of
cases. However, the commenter cautioned that agency personnel
authorized to conduct such informal conferences must understand the TSA
regulations and their intent and expressed the view that sometimes they
do not.
TSA trains its attorneys and other agency officials so that they
are well versed in any regulations at issue in an informal conference.
TSA equips its attorneys and agency officials with proper knowledge and
skills to address any relevant concerns at informal conference.
Enforcement of ``TSA Requirements'': Another comment recommended
that TSA amend the regulation to make it clear that individuals may
only be charged with violations of regulations or agency orders as to
which ``proper notice has been given pursuant to the Administrative
Procedure Act.'' The commenter stated that, if TSA seeks to hold
individuals responsible through the enforcement process for violating
non-regulatory ``TSA requirements'' such as agency orders, Subpart G
should be amended to make clear that Sec. 1503.607 does not preclude
the Administrative Law Judge (ALJ) from making a full factual record as
to whether the ``TSA requirement'' at issue was properly applicable to
the individual charged, including whether the individual charged
received legally sufficient actual or constructive notice of the
binding nature of the TSA requirement.
TSA agrees that persons must have notice of a requirement before
TSA can enforce it. In the case of violation of a statutory provision,
the provision's inclusion in the public laws of the United States
establishes notice. In the case of a regulation published in the
Federal Register, filing the document with the Office of the Federal
Register establishes notice. In the case of another enforceable
requirement, such as an agency order, the person charged must have had
adequate notice of the requirement; an ALJ proceeding could include
resolution of this issue.
Warning Notices, Letters of Correction: Another comment focused on
language in Sec. 1503.301 providing that, if TSA determines that an
alleged violation does not require assessment of a civil penalty, an
appropriate official may take administrative action, such as warning
notices and letters of correction, in disposition of the case. The rule
provides: ``The issuance of a Warning Notice or Letter of Correction is
not subject to appeal under this part.'' The commenter expressed the
following objections to the absence of an appeal process for Warning
Notices:
1. TSA has made mistakes in interpreting its rules, resulting in
the incorrect adjudication of matters under investigation, leading to
TSA issuing Warning Notices to innocent parties.
2. Improperly issued Warning Notices can result in future negative
consequences, such as increased civil penalties, if the recipient of
the Warning Notice is the subject of future enforcement actions. The
commenter referenced the language of Subpart E--
[[Page 58332]]
Assessment of Civil Penalties by TSA, Sec. 1503.425, Compromise
Orders, (b)(5) to support the position that an improperly-issued
Warning Notice may have negative consequences. Specifically, the
commenter referenced the following statement: ``A compromise order
contains the following: (5) A statement that the compromise order will
not be used as evidence of a prior violation in any subsequent civil
penalty proceeding.'' The commenter suggested that, if TSA does not
allow formal or informal appeals of Warning Notices, at a minimum TSA
should incorporate similar language declaring that such Warning Notices
will not be used as evidence of a prior violation in any subsequent
civil proceeding.
3. The inability to seek redress of an improperly issued Warning
Notice presents future risk to other innocent individuals; TSA errors
may lead to similar actions against other individuals who may be
accused, erroneously, of the same type of alleged violation.
TSA believes that the Warning Notice process is adequate to address
these concerns. A Warning Notice does not constitute a legal finding of
a violation; therefore, no formal appeal process is required. TSA
generally affords persons the opportunity to respond to an
investigation before TSA takes enforcement action, including the
issuance of a Warning Notice. The most efficient and effective means
for resolving allegations of noncompliance is for the person to respond
to TSA inquiries promptly and thoroughly.
Penalties Against Individuals: The commenter acknowledged that TSA
has the statutory authority to raise the maximum civil penalties
assessed against individuals, but objected to TSA's doing so now in
view of the recession, high unemployment rates, and stagnant economic
growth. The commenter added that airline workers, including pilots,
have suffered significant wage reductions. The commenter, a trade
association that represents airline workers, expressed its view that
airline workers are more likely to be the subject of penalties than
other individuals because of the amount of time they spend at airports
and transiting checkpoints; these activities might lead to potential
charges of a violation of TSA regulations. The commenter recommended
that TSA take these factors into account when TSA considers mitigating
factors for purposes of proposing penalties. The comment noted that
this should be the case particularly in regard to proposed penalties
for first-time offenders.
As explained in the preamble to the rule published on July 21,
2009, TSA has adjusted the penalty amounts as required by statute. See
74 FR 36034. The Federal Civil Penalties Inflation Adjustment Act of
1990 (Adjustment Act), as amended,\1\ includes a detailed formula for
inflation adjustments. TSA recognizes that many parties may experience
financial hardship due to the current economic environment. Hence, TSA
always considers multiple factors, including financial distress, when
assessing civil penalties. TSA uses a publicly available sanctions
policy in assessing penalties. See http://www.tsa.gov/research/laws/editorial_1504.shtm. Finally, TSA disagrees with the view that airline
workers' occupation should be considered a mitigating factor for
assessing penalties. Individuals who spend considerable time in the
aviation environment should be aware of TSA's requirements and take
particular care to comply with them.
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\1\ Federal Civil Penalties Inflation Adjustment Act of 1990,
Public Law 101-410, Oct. 5, 1990, 104 Stat. 890, as amended by the
Debt Collection Improvement Act of 1996, Public Law 104-134, title
III, Sec. 31001(s)(1), Apr. 26, 1996, 110 Stat. 1321-373; the
Federal Reports Elimination Act of 1998, Public Law 105-362, title
XIII, Sec. 1301(a), Nov. 10, 1998, 112 Stat. 3293.
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Formal Complaints: The commenter raised objections to the
procedures for formal complaints in subpart I, Sec. 1503.801. This
provision of the rule allows any person to file a complaint with the
TSA Administrator with respect to ``any act or omission by any person
in contravention of'' any rules, regulations or provisions administered
by the TSA. Paragraph (d) of that section provides that TSA will place
complaints that meet the tests of Subpart I on its Complaint Docket,
mail a copy to each person named in the complaint and, per paragraph
(f), the person named in the complaint ``must file an answer within 20
days after service of a copy of the complaint.'' Pursuant to paragraph
(k), TSA maintains in the public docket ``the complaint and other
pleadings and official TSA records relating to the disposition of the
complaint.''
The commenter questioned TSA's legal authority for these
procedures. The commenter also recommended that TSA consider adding a
provision allowing TSA to assess penalties for those who file ill-
founded, baseless or false charges against individuals, as well as a
provision that would allow the individuals who are the subject of these
charges to seek compensation for attorneys' fees and other economic
losses incurred as a result of responding to false complaints.
TSA has legal authority for the provision stated in Sec. 1503.801.
The provision is based on 49 U.S.C. 46101, as amended by section 140(b)
of the Aviation and Transportation Security Act, Public Law. 107-71
(ATSA). Moreover, Sec. 1503.801(a) through (k) is substantively the
same as Sec. 1503.5(a) through (k) of the preceding regulation. If TSA
were to conclude that a formal complaint consisted of false or baseless
charges, TSA would dismiss the complaint and send written notification
of the dismissal to the complainant and the person(s) named in the
complaint.
Amendment of 49 CFR 1503.629, Motions and 49 CFR 1503.659, Petition To
Reconsider or Modify a Final Decision and Order of the TSA Decision
Maker on Appeal
Previously, Sec. 1503.629(d) provided that parties must reply to
motions not later than 10 days after service of the motion on the
party. Similarly, Sec. 1503.659(e) required a party to reply to a
Petition to Reconsider or Modify a Final Decision and Order of the TSA
Decision Maker on appeal within 10 days after service of the petition
on that party. These time periods did not afford parties a sufficient
time to reply, partly because parties often receive mail well after the
date on which the regulations presume service. Moreover, the 10-day
periods were inconsistent with other time periods in the regulation,
such as Sec. 1503.609 (30 days to file a Complaint), Sec. 1503.611
(30 days to answer a Complaint), and Sec. 1503.657(e) (35 days to file
a reply brief in an appeal from an initial decision by TSA). For these
reasons, TSA amends Sec. Sec. 1503.629(d) and 1503.659(e) to provide
that parties will have 30 days from service to reply.
Correction of Section Reference in Sec. 1503.631(c)(2), Interlocutory
Appeals
In the July 2009 rule, TSA reorganized part 1503 and moved Sec.
1503.215 to Sec. 1503.623, Withdrawal of complaint or request for
hearing. TSA inadvertently did not change the section reference in
Sec. 1503.631(c)(2) to the appropriate section. In this rule, TSA
replaces the incorrect reference to Sec. 1503.215 with the correct
reference to Sec. 1503.623.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501. et seq.)
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations.
[[Page 58333]]
TSA has determined that there are no current or new information
collection requirements associated with this rule.
Economic Impact Analyses
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order (E.O.) 12866, Regulatory Planning and
Review (58 FR 51735, October 4, 1993), directs each Federal agency to
propose or adopt a regulation only upon a reasoned determination that
the benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996) requires agencies to analyze the economic impact of regulatory
changes on small entities. Third, the Trade Agreements Act (19 U.S.C.
2531-2533) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States.
Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation).
Because this rule does not add any requirements to those in the
July 21, 2009, final rule, TSA has not performed a cost/benefit
analysis.
Executive Order 12866 Assessment
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993) provides for making determinations as to
whether a regulatory action is ``significant'' and therefore subject to
OMB review and the requirements of the Order. Executive Order 12866
classifies a rule as significant if it meets any one of a number of
specified conditions, including economic significance, which is defined
as having an annual impact on the economy of $100 million. A regulation
is also considered a significant regulatory action if it raises novel
legal or policy issues.
This regulation is not significant under E.O. 12866. This final
regulation will have no economic impact because the regulation makes no
substantive changes to 49 CFR part 1503.
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), requires agencies to perform a review to determine
whether a proposed or final rule will have a significant economic
impact on a substantial number of small entities when the
Administrative Procedure Act (APA) requires notice and comment
rulemaking. TSA has not assessed whether this rule will have a
significant economic impact on a substantial number of small entities,
as defined in the RFA. When an agency publishes a rulemaking without
prior notice and an opportunity for comment, the RFA analysis
requirements do not apply.
This rulemaking is a final rule that follows a final rule that TSA
issued on July 21, 2009. Therefore, no RFA analysis is provided.
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. TSA has assessed the potential
effect of this rulemaking and has determined that it will not create
any unnecessary obstacles to foreign commerce.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 is intended, among other
things, to curb the practice of imposing unfunded Federal mandates on
State, local, and tribal governments. Title II of the Act requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate in a proposed or final agency rule that may result
in a $100 million or more expenditure (adjusted annually for inflation)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector; such a mandate is deemed to be a
``significant regulatory action.''
This rulemaking does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply and TSA has not
prepared a statement under the Act.
Executive Order 13132, Federalism
TSA has analyzed this final rule under the principles and criteria
of E.O. 13132, Federalism. We have determined that this action will not
have a substantial direct effect on the States, or the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government,
and, therefore, have determined that this action does not have
federalism implications.
Environmental Analysis
TSA has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
Energy Impact Analysis
The energy impact of the action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended (42 U.S.C. 6362). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
List of Subjects in 49 CFR Part 1503
Administrative Practice and Procedure, Investigations, Law
enforcement, Penalties, Transportation.
The Amendments
0
For the reasons set forth in the preamble, the Transportation Security
Administration amends Chapter XII of Title 49, Code of Federal
Regulations, as follows:
PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
0
1. The authority citation for part 1503 continues to read as follows:
Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 114,
20109, 31105, 40113-40114, 40119, 44901-44907, 46101-46107, 46109-
46110, 46301, 46305, 46311, 46313-46314; Sec. 1413(i), Public Law
110-53, 121 Stat. 414 (6 U.S.C. 1142).
Subpart G--Rules of Practice in TSA Civil Penalty Actions
0
2. In Sec. 1503.629 revise paragraph (d) to read as follows:
Sec. 1503.629 Motions.
* * * * *
(d) Reply to motions. Any party may file a reply, with affidavits
or other evidence in support of the reply, not later than 30 days after
service of a written motion on that party. When a motion is made during
a hearing, the reply may be made at the hearing on the record, orally
or in writing, within a reasonable time determined by the ALJ. At the
discretion of the ALJ, the moving party may file a response to the
reply.
* * * * *
[[Page 58334]]
Sec. 1503.631 [Amended]
0
3. In Sec. 1503.631(c)(2) remove the reference ``Sec. 1503.215'' and
add in its place the reference ``Sec. 1503.623''.
0
4. In Sec. 1503.659 revise paragraph (e) to read as follows:
Sec. 1503.659 Petition to reconsider or modify a final decision and
order of the TSA decision maker on appeal.
* * * * *
(e) Reply petitions. Any other party may reply to a petition to
reconsider or modify, not later than 30 days after service of the
petition on that party, by filing a reply with the Enforcement Docket
Clerk. A party must serve a copy of the reply on each party.
* * * * *
Issued in Arlington, Virginia, on September 17, 2010.
John S. Pistole,
Administrator.
[FR Doc. 2010-23985 Filed 9-23-10; 8:45 am]
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