[Federal Register Volume 67, Number 153 (Thursday, August 8, 2002)]
[Rules and Regulations]
[Pages 51480-51499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19843]


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DEPARTMENT OF TRANSPORTATION

Transportation Security Administration

49 CFR 1503

[Docket No. TSA-2002-12777]
RIN 2110-AA09


Investigative and Enforcement Procedures

AGENCY: Transportation Security Administration (TSA), DOT.

ACTION: Interim final rule.

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SUMMARY: This rulemaking establishes the interim investigative and 
enforcement procedural rules that the TSA will use to address statutory 
and regulatory violations. It adopts, in large part, the Federal 
Aviation Administration's (FAA) investigative and enforcement 
procedures. In addition, this rulemaking adopts the FAA's adjustment of 
civil penalties for inflation.

DATES: This rule is effective August 8, 2002.

FOR FURTHER INFORMATION CONTACT: Quang Nguyen, Civil Enforcement 
Division, Office of the Chief Counsel (TSA-2), Transportation Security 
Administration, 400 Seventh Street, SW., Washington, DC 20590; 
telephone (202) 493-1233; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last digits of the docket number 
shown at the beginning of this notice. Click on ``search.''
    (3) On the next page that contains the docket summary information 
for the docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through the 
Government Printing Office's web page at http://www.access.gpo.gov/su_docs/aces/aces140html.
    In addition, copies are available by writing the Transportation 
Security Administration, Attention: Enforcement Docket, Office of the 
Chief Counsel (TSA-2); 400 Seventh Street, SW., Washington, DC 20590. 
Such requests should identify the docket number of this rulemaking.

Abbreviations and Terms Used in This Document

ATSA--Aviation and Transportation Security Act
FSD--Federal Security Director
SSI--Sensitive Security Information
TSA--Transportation Security Administration
Under Secretary--The Under Secretary of Transportation for Security

Background

    On November 19, 2001, the Aviation and Transportation Security Act 
(ATSA) (Public Law 107-71) became law. ATSA created the TSA, and 
transferred most aviation security functions from the FAA to the TSA. 
With some modifications, the civil aviation security rules have been 
transferred from the FAA (in title 14, Code of Federal Regulations) to 
the TSA (in title 49, Code of Federal Regulations) in a separate 
rulemaking (see docket number TSA-2002-11602). 67 FR 8340 (February 22, 
2002). Under ATSA, the Under Secretary of Transportation for Security 
may impose a civil penalty for certain statutory violations of 49 
U.S.C. chapter 449 or a regulation prescribed or order issued 
thereunder.
    ATSA section 141 provides that all rules issued by the FAA continue 
in effect until modified or terminated by the TSA. However, part 13 of 
the FAA regulations includes references to FAA agency attorneys and the 
FAA decision

[[Page 51481]]

maker that do not apply to the TSA's operations at this time. This 
action permits TSA personnel to serve as agency attorneys and the Under 
Secretary to serve as the TSA decision maker under these rules.
    Because the TSA currently does not have its own investigatory or 
enforcement procedures in place, the TSA is adopting, in large part, 
the current FAA investigative and enforcement rules in part 13 of title 
14 of the Code of Federal Regulations. These rules will be used in the 
interim as the TSA prepares revised investigative and enforcement 
procedures. Those procedures will be noticed in the Federal Register 
for public comment.
    Under ATSA, the TSA is not required to provide administrative 
hearings on the record. Accordingly, the TSA's enforcement proceedings 
are not required to comply with the Administrative Procedure Act (APA). 
Although these interim final rules conform to the APA requirements, the 
TSA intends to propose new procedures in accordance with its statutory 
authority. The TSA's decision not to adopt such new procedures in this 
rulemaking does not limit the TSA's ability to do so in the future.

Current Rulemaking

    This rulemaking establishes the interim investigative and 
enforcement procedural rules that the TSA will use to address 
violations of 49 U.S.C. chapter 449 and regulations and orders issued 
thereunder. This rule is being issued as an interim final rule. As a 
rule of agency practice and procedure, this rule is exempt from the 
prior notice and comment requirement under 4(b)(3)(A) of the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(A). The rule 
will be codified in 49 CFR part 1503. The rules are largely unchanged 
from the FAA investigative and enforcement rules found in part 13, 
Title 14 of the Code of Federal Regulations, except for the following:
    1. Omission of FAA procedures or processes where they are 
inapplicable to or inappropriate or unnecessary for the TSA at this 
time;
    2. Revision of references from FAA to the TSA and a revision of 
occurrences of ``shall'' to ``must'' or ``will'' where appropriate;
    3. Revision of the time period relating to motions to dismiss a 
request for hearing, decision on motion for disqualification, motion to 
dismiss for insufficiency, motion to dismiss a complaint, and motions 
requesting a more definite statement of the allegations;
    4. Revision of the effect of filing a petition to reconsider;
    5. Revision of the term ``Record;''
    6. Revision of the numbering system to reflect the TSA's adoption 
in part 1503;
    7. Revision of ``aviation safety'' to ``transportation safety;''
    8. Revision of public access to the enforcement docket;
    9. Addition of section addressing requests for portions of the 
enforcement investigative report (EIR);
    10. Revision with regard to filing certain documents with the 
administrative law judge.

Administrative Changes

    Applicable references to FAA were changed to the TSA. Also, because 
of its potential legal ambiguity, the occurrences of ``shall'' have 
been revised to ``must'' or ``will'' as appropriate. Additionally, 
other administrative changes have been made to clarify, without 
substantively changing, the language of the rule.

Time Periods

    In the interests of equity and practicality, the time periods 
provided in 49 CFR 1503.218(f)(2)(i) and 49 CFR 1503.218(f)(6)(iii) are 
both revised from their FAA counterparts. In 49 CFR 1503.218(f)(2)(i), 
the time for filing a complaint after service of an order denying a 
motion to dismiss is extended from ``10 days'' to ``20 days.'' 
Likewise, if required by the decision on appeal, the time period for 
filing a complaint and service on a party is also extended from ``10 
days'' to ``20 days.'' Further, in 49 CFR 1503.218(f)(6)(iii), the 
requirement for an administrative law judge to render a decision on the 
motion for disqualification is extended from ``15 days'' to ``20 
days.'' In addition, the time period provided for respondents to file 
an answer upon a denial of a motion to dismiss for insufficiency 
(1503.218(f)(1)), a denial of a motion to dismiss a complaint 
(1503.218(f)(2)(ii)), and denial of a motion requesting a more definite 
statement of the allegations is revised from ``10 days'' to ``20 days'' 
(1503.218(f)(3)(i)).

Effect of Filing Petition to Reconsider

    Under 14 CFR 13.234(f), filing a petition to reconsider does not 
stay the effective date of a final decision and order and does not toll 
the time for filing a petition for review in a United States court of 
appeals. Under TSA rules, the filing of a petition for reconsideration 
or modification will stay the effective date of the order and a person 
may seek judicial review of a final order of the Under Secretary, which 
is embodied in a final decision and order, and if applicable, an order 
on a petition for modification or reconsideration. Corresponding 
changes are made to section 1503.235 to reflect the changes.

Expansion of the Term ``Record''

    Due to an apparent oversight, the FAA rules did not include the 
request for hearing and the pleadings as part of the official record. 
Section 1503.230(a) includes the request for hearing, the complaint, 
and the answer in the list of documents making up the exclusive record.

Numbering System

    Although the FAA part numbers of this rule are replaced with a 
corresponding TSA part number, we have retained each section number of 
the previous FAA rule where applicable. For instance, if an FAA section 
was previously numbered ``13.201,'' it is now numbered ``1503.201.''

``Aviation Safety'' to ``Transportation Safety''

    Where applicable, in those instances that 49 CFR part 13 refers to 
aviation safety, the current rulemaking replaces ``aviation safety'' 
with ``transportation safety'' (for instance, Secs. 1503.226(b) and 
1503.233(j)(4)). This change reflects the TSA's broader mission 
relating to the various modes of transportation.

Public Access to the Enforcement Docket

    Sensitive Security Information (SSI) is a category of protected 
material that is defined under 49 CFR part 1520. SSI material is 
exempted from disclosure under FOIA. Because of the nature of SSI 
material and the high concentration of such material in the enforcement 
actions that the TSA will handle, this rulemaking procedurally limits 
public access to the TSA enforcement docket. Under revised 49 CFR 
1503.230(b), interested members of the public may examine and copy 
parts of the docket by filing a request under FOIA, 5 U.S.C. 552. This 
rulemaking is not intended to preclude members of the public from 
access to the enforcement docket, but is designed to prevent the 
improper disclosure of SSI.

Addition of section addressing requests for portions of the EIR

    Under the new section 49 CFR 1503.12, any alleged violator or 
designated representative may request portions of the enforcement 
investigative report (EIR). Any requests by an alleged violator or 
designated

[[Page 51482]]

representative for non-privileged portions of the EIR need not be made 
under FOIA, but may be made pursuant to this section. Any other 
individual interested in obtaining a copy of the EIR must still submit 
a FOIA request.

Filing with the Enforcement Docket Clerk

    The rules of practice under 14 CFR part 13 provided that certain 
documents be filed with the administrative law judge, and this may have 
caused some confusion in the past. Under this rulemaking, all documents 
required to be filed must be filed in one place, i.e., with the 
Enforcement Docket Clerk. The parties must serve a copy on the 
administrative law judge, or on the chief administrative law judge if 
no judge has been assigned to the case. This will enable the 
Enforcement Docket Clerk to maintain a complete set of records for each 
case and keep the administrative law judge apprised of various 
requests, amendments, motions and notices.

Good Cause for Immediate Adoption

    This action adopts agency rules of procedure, and therefore a 
notice of proposed rulemaking is not required under 5 U.S.C. 553. 
Further, this action in essence adopts an existing FAA rule used up to 
now for these same types of cases, and therefore imposes few new or 
different procedures on respondents. This rule is needed so that TSA 
can enforce its security rules and promote compliance with security 
requirements. Accordingly, the agency finds that prior notice and 
public comment is impracticable, unnecessary, and contrary to the 
public interest.
    This action adopts a procedural rule; therefore, it is not subject 
to the requirement that it be effective not less than 30 days from the 
date of publication in the Federal Register, as provided in 5 U.S.C. 
553. Further, respondents receiving notices initiating civil penalties 
under this rule will receive abundant notice of the procedures to be 
used.

Paperwork Reduction Act

    This rule does not contain any collection of information 
requirements, as defined by the Paperwork Reduction Act of 1995, as 
amended.

Regulatory Evaluation

    Changes to Federal regulations are required to undergo several 
economic analyses. First, Executive Order 12866 directs that each 
Federal agency shall 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 requires agencies 
to analyze the economic effect of regulatory changes on small entities. 
Third, the Office of Management and Budget directs agencies to assess 
the effect of regulatory changes on international trade. In conducting 
these analyses, the TSA has determined that this rule is not a 
``significant regulatory action'' as defined in the Executive Order and 
the Department of Transportation Regulatory Policies and Procedures. 
This rule will not have a significant impact on a substantial number of 
small entities and will not constitute a barrier to international 
trade. A full regulatory analysis, which includes the identification 
and evaluation of cost-reducing alternatives to this rule, has not been 
prepared. Instead, the agency has prepared a more concise analysis of 
this rule that is presented in the following paragraphs.
    This rulemaking 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.

Costs

    There are no costs associated with this rulemaking. The rules do 
not impose any new economic requirements on the affected parties. The 
rules provide a framework for investigative and enforcement procedures 
and options for the respondent to respond to a proposed civil penalty. 
They also provide procedures used if an administrative law judge hears 
a matter. These are essentially the same procedures and options as were 
provided under the FAA rules that formerly applied to security 
enforcement cases. Respondents are not required to take any additional 
action based on these rules. Rather, these rules set out in detail for 
their options, which respondents may choose to take advantage of or 
not.

Benefits

    This rulemaking will result in some unquantified cost savings to 
the agency and the respondents by making clear what procedures apply in 
civil penalty cases.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 establishes ``as a principle 
of regulatory issuance that agencies shall endeavor, consistent with 
the objective of the rule and of applicable statutes, to fit regulatory 
and informational requirements to the scale of the business, 
organizations, and governmental jurisdictions subject to regulation.'' 
To achieve that principle, the Act requires agencies to solicit and 
consider flexible regulatory proposals and to explain the rationale for 
their actions. The Act covers a wide-range of small entities, including 
small businesses, not-for-profit organizations, and small governmental 
jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 Act provides that 
the head of the agency may so certify and a regulatory flexibility 
analysis is not required. The certification must include a statement 
providing the factual basis for this determination, and the reasoning 
should be clear.
    As discussed above, there are no costs imposed by this rulemaking. 
There are unquantified benefits associated with this rulemaking. For 
this reason, the TSA certifies that there is not a significant economic 
impact on a substantial number of small entities.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or 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. In addition, consistent with the Administration's belief in 
the general superiority and desirability of free trade, it is the 
policy of the Administration to remove or diminish to the extent 
feasible, barriers to international trade, including those barriers 
affecting the import of foreign goods and services into the United 
States.
    In accordance with the above statute and policy, the TSA has 
assessed the potential effect of this final rule and has determined 
that it will not impose any costs on domestic and international 
entities and thus has a neutral trade impact.

[[Page 51483]]

Executive Order 13132, Federalism

    The TSA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. We 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. 
Therefore, we have determined that this final rule does not have 
federalism implications.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995, enacted as Public Law 
104-4 on March 22, 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.''
    The requirements of Title II of the Unfunded Mandates Reform Act of 
1995 do not apply when rulemaking actions are taken without the 
issuance of a notice of proposed rulemaking. Therefore, the TSA has not 
prepared a statement under the Act.

Environmental Analysis

    The 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

    The energy impact of this rule has been assessed in accordance with 
the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as 
amended (43 U.S.C. 6362). It has been determined that this rule is not 
a major regulatory action under the provisions of the EPCA.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the TSA to comply with small entity requests for 
information and advice about compliance with statutes and regulations 
within the TSA's jurisdiction. Any small entity that has a question 
regarding this document may contact the person listed in ``For Further 
Information Contact'' for information. 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.

List of Subjects in 49 CFR Part 1503

    Administrative practice and procedure, Investigations, Law 
enforcement, Penalties, Transportation.

The Amendments

    For the reasons set forth in the preamble, the Transportation 
Security Administration adds a new part 1503 in Title 49, chapter XII, 
subchapter A, of the Code of Federal Regulations to read as follows:

PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES

Subpart A--Investigative Procedures

Sec.
1503.1   Reports of violations.
1503.3   Investigations (general).
1503.5   Formal complaints.
1503.7   Records, documents and reports.

Subpart B--Administrative Actions

1503.11   Administrative disposition of certain violations.
Subpart C--Legal Enforcement Actions
1503.12   Request for portions of the enforcement investigative 
report (EIR).
1503.13   Consent orders.
1503.15   Civil penalties: Civil penalties involving an amount in 
controversy in excess of $50,000, an in rem action, or injunctive 
relief.
1503.16.   Civil penalties: Civil penalties involving an amount in 
controversy not exceeding $50,000.
1503.17   [Reserved]
1503.19   [Reserved]
1503.20   [Reserved]
1503.21   Military personnel.
1503.23   [Reserved]
1503.25   Injunctions.
1503.27   [Reserved]
1503.29   Civil penalties: Streamlined enforcement procedures for 
certain security violations.

Subpart D--[Reserved]

Subpart E--[Reserved]

Subpart F--[Reserved]

Subpart G--Rules of Practice in Transportation Security Administration 
(TSA) Civil Penalty Actions

1503.201   Applicability.
1503.202   Definitions.
1503.203   Separation of functions.
1503.204   Appearances and rights of parties.
1503.205   Administrative law judges.
1503.206   Intervention.
1503.207   Certification of documents.
1503.208   Complaint.
1503.209   Answer.
1503.210   Filing of documents.
1503.211   Service of documents.
1503.212   Computation of time.
1503.213   Extension of time.
1503.214   Amendment of pleadings.
1503.215   Withdrawal of complaint or request for hearing.
1503.216   Waivers.
1503.217   Joint procedural or discovery schedule.
1503.218   Motions.
1503.219   Interlocutory appeals.
1503.220   Discovery.
1503.221   Notice of hearing.
1503.222   Evidence.
1503.223   Standard of proof.
1503.224   Burden of proof.
1503.225   Offer of proof.
1503.226   Public disclosure of evidence.
1503.227   Expert or opinion witnesses.
1503.228   Subpoenas.
1503.229   Witness fees.
1503.230   Record.
1503.231   Argument before the administrative law judge.
1503.232   Initial decision.
1503.233   Appeal from initial decision.
1503.234   Petition to reconsider or modify a final decision and 
order of the TSA decision maker on appeal.
1503.235   Judicial review of a final order.

Subpart H--Civil Monetary Penalty Inflation Adjustment

1503.301   Scope and purpose.
1503.303   Definitions.
1503.305   Cost of living adjustments of civil monetary penalties.

    Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 114, 
40113-40114, 40119, 44901-44907, 46101-46107, 46109-46110, 46301, 
46305, 46311, 46313-46314.

Subpart A--Investigative Procedures


Sec. 1503.1  Reports of violations.

    (a) Any person who knows 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, should report it to appropriate 
personnel of any TSA office.
    (b) Each report made under this section, together with any other 
information the TSA may have that is relevant to the matter reported, 
will be reviewed by TSA personnel to determine the nature and type of 
any additional investigation or enforcement action the TSA will take.


Sec. 1503.3  Investigations (general).

    (a) The Under Secretary may conduct investigations, hold hearings, 
issue subpoenas, require the production of relevant documents, records, 
and property, and take evidence and depositions.
    (b) For the purpose of investigating alleged violations of 49 
U.S.C. chapter 449 (except sections 44902, 44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-(f),

[[Page 51484]]

44908, and 44909), or a regulation prescribed or order issued under any 
of those provisions, the Under Secretary's authority may be exercised 
by the various offices for matters within their respective areas for 
all routine investigations. When the compulsory processes of section 49 
U.S.C. 46104 are invoked, the Under Secretary's authority has been 
delegated to the Chief Counsel, each Deputy Chief Counsel, and in 
consultation with the Office of the Chief Counsel, the Associate Under 
Secretary for Aviation Operations, the Associate Under Secretary for 
Maritime and Land Security, the Associate Under Secretary for 
Inspections, and each Federal Security Director.


Sec. 1503.5  Formal complaints.

    (a) Any person may file a complaint with the Under Secretary with 
respect to any act or omission by any person in contravention of any 
provision 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. 
This section does not apply to complaints against the Under Secretary 
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 Transportation, 
Transportation Security Administration, Office of the Chief Counsel, 
TSA-2, Attention: Enforcement Docket, 400 Seventh Street, SW., 
Washington, DC 20590;
    (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 or regulation or order that the 
complainant believes were violated;
    (4) Contain a concise but complete statement of the facts relied 
upon to substantiate each allegation;
    (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) Complaints that do not meet the requirements of paragraph (b) 
of this section will be considered reports under Sec. 1503.1.
    (d) Complaints that meet the requirements of paragraph (b) of this 
section will be docketed and a copy mailed to each person named in the 
complaint.
    (e) Any complaint filed against a member of the Armed Forces of the 
United States acting in the performance of official duties will be 
referred to the Secretary of the Department concerned for action in 
accordance with the procedures set forth in Sec. 1503.21.
    (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 Under Secretary will 
determine if there are reasonable grounds for investigating the 
complaint.
    (h) If the Under Secretary determines that a complaint does not 
state facts that warrant an investigation or action, the complaint may 
be dismissed without a hearing and the reason for the dismissal will be 
given, in writing, to the person who filed the complaint and the person 
named in the complaint.
    (i) If the Under Secretary 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. 1503.3(b) 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 in the TSA Enforcement Docket, GSA Building, Room 5008, 301 
Seventh Street SW., Washington, DC 20407.
    (1) Generally. Any person interested in reviewing or obtaining a 
copy of a record may do so only by submitting a FOIA request under 5 
U.S.C. 552 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) Their designated representatives; and
    (C) Persons who have a need to know as determined by the Under 
Secretary.
    (ii) Those persons with permission to review these documents or 
docket files may view the materials at the TSA Enforcement Docket, GSA 
Building, Room 5008, 301 Seventh Street SW., Washington, DC 20407. 
Persons with access to these records may have a copy of the records 
after payment of reasonable costs.


Sec. 1503.7  Records, documents and reports.

    Each record, document, and report that the Transportation Security 
Regulations require to be maintained, exhibited, or submitted to the 
Under Secretary may be used in any investigation conducted by the Under 
Secretary; 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 B--Administrative Actions


Sec. 1503.11  Administrative disposition of certain violations.

    (a) If it is determined that a violation or an alleged 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, does not 
require legal enforcement action, 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.

Subpart C--Legal Enforcement Actions


Sec. 1503.12  Request for portions of the enforcement investigative 
report (EIR).

    (a) Discovery and pre-litigation disclosure. Pursuant to this 
section, any alleged violator or designated representative may request, 
from the Chief Counsel or designee, portions of the 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 legal 
enforcement

[[Page 51485]]

action document. SSI contained in the EIR is released pursuant to 49 
CFR part 1520. Information released under this section is not produced 
under the Freedom of Information Act (FOIA).
    (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 49 U.S.C. 552 and 49 CFR part 7. Portions of the EIR may be 
exempt from disclosure pursuant to FOIA.


Sec. 1503.13  Consent orders.

    (a) At any time before the issuance of an order under this subpart, 
the official who issued the notice and the person subject to the notice 
may agree to dispose of the case by the issuance of a consent order by 
the official.
    (b) A proposal for a consent order, submitted to the official who 
issued the notice, under this section must include--
    (1) A proposed order;
    (2) An admission of all jurisdictional facts;
    (3) An express waiver of the right to further procedural steps and 
of all rights to judicial review; and
    (4) An incorporation of the notice by reference and an 
acknowledgment that the notice may be used to construe the terms of the 
order.


Sec. 1503.15  Civil penalties: Civil penalties involving an amount in 
controversy in excess of $ 50,000, an in rem action, or injunctive 
relief.

    (a) Any person who violates any provision 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, is subject to a civil penalty of not 
more than the amount specified for each violation in accordance with 49 
U.S.C. 46301, in conformity with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, 28 U.S.C. 2461 (note), as amended.
    (b) The authority of the Under Secretary, under 49 U.S.C. 46301 to 
propose a civil penalty for a violation of that chapter, or a rule, 
regulation, or order issued thereunder, and the ability to refer cases 
to the United States Attorney General, or the delegate of the Attorney 
General, for prosecution of civil penalty actions proposed by the Under 
Secretary, involving an amount in controversy in excess of $ 50,000, an 
in rem action, or suit for injunctive relief, or for collection of an 
assessed civil penalty, is delegated to the Chief Counsel and the 
Deputy Chief Counsel for Enforcement.
    (c) The Under Secretary may compromise any civil penalty, proposed 
in accordance with 49 U.S.C. 46301, involving an amount in controversy 
in excess of $ 50,000, an in rem action, or suit for injunctive relief, 
prior to referral of the civil penalty action to the United States 
Attorney General, or the delegate of the Attorney General, for 
prosecution.
    (1) The Under Secretary, through the Chief Counsel or the Deputy 
Chief Counsel for Enforcement, will send a civil penalty letter to the 
person charged with 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 civil penalty letter contains a statement of 
the charges; the applicable law, rule, regulation, or order; the amount 
of civil penalty that the Under Secretary will accept in full 
settlement of the action or an offer to compromise the civil penalty.
    (2) Not later than 30 days after receipt of the civil penalty 
letter, the person charged with a violation may present any material or 
information in answer to the charges to the agency attorney, either 
orally or in writing, that may explain, mitigate, or deny the violation 
or that may show extenuating circumstances. The Under Secretary 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 Under Secretary will 
compromise the action.
    (3) If the person charged with the violation offers to compromise 
for a specific amount, that person must send a certified check or money 
order for that amount to the agency, made payable to the Transportation 
Security Administration. The Chief Counsel or the Deputy Chief Counsel 
for Enforcement may accept the certified check or money order or may 
refuse and return the certified check or money order.
    (4) If the offer to compromise is accepted by the Under Secretary, 
the agency will send a letter to the person charged with the violation 
stating that the certified check or money order is accepted in full 
settlement of the civil penalty action.
    (5) If the parties cannot agree to compromise the civil penalty 
action or the offer to compromise is rejected and the certified check 
or money order submitted in compromise is returned, the Under Secretary 
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. 46305 to prosecute and collect the civil penalty.


Sec. 1503.16  Civil penalties: Civil penalties involving an amount in 
controversy not exceeding $50,000.

    (a) General. The following penalties apply to persons who violate 
chapter 449, as specified in subsection (1), of Title 49 of the United 
States Code:
    (1) Any person who violates any provision 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 is subject to a civil penalty of not more 
than the amount specified in the chapter or section for each violation 
in accordance with 49 U.S.C. 46301, in conformity with the Federal 
Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 
(note), as amended.
    (2) [Reserved]
    (3) [Reserved]
    (b) Orders assessing civil penalty. An order assessing civil 
penalty may be issued for a violation described in paragraph (a) of 
this section, or as otherwise provided by statute, after notice and 
opportunity for a hearing. A person charged with a violation may be 
subject to an order assessing civil penalty in the following 
circumstances:
    (1) An order assessing civil penalty may be issued if a person 
charged with a violation submits or agrees to submit a civil penalty 
for a violation.
    (2) An order assessing civil penalty may be issued if a person 
charged with a violation does not request a hearing under paragraph 
(e)(2)(ii) of this section within 15 days after receipt of a final 
notice of proposed civil penalty.
    (3) Unless an appeal is filed in a timely manner, an initial 
decision or order of an administrative law judge will be considered an 
order assessing civil penalty if an administrative law judge finds that 
an alleged violation occurred and determines that a civil penalty, in 
an amount found appropriate by the administrative law judge, is 
warranted.
    (4) For penalties issued under Sec. 1503.16(a)(1), unless a 
petition for review is filed with a U.S. court of appeals in a timely 
manner, a final decision and order of the Under Secretary 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.
    (c) Delegation of authority. The authority of the Under Secretary, 
under

[[Page 51486]]

49 U.S.C. 46301 to initiate and assess civil penalties for a violation 
under chapter 449, or a rule, regulation, or order issued thereunder, 
is delegated to the Deputy Chief Counsel for Enforcement. The authority 
of the Under Secretary to refer cases to the Attorney General of the 
United States, or the delegate of the Attorney General, for the 
collection of civil penalties, is delegated to the Chief Counsel and 
the Deputy Chief Counsel for Enforcement.
    (d) Notice of proposed civil penalty. A civil penalty action is 
initiated by sending a notice of proposed civil penalty to the person 
charged with 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. A notice of proposed civil penalty will be sent to the 
individual charged with a violation or to the president of the 
corporation or company charged with a violation. In response to a 
notice of proposed civil penalty, a corporation or company may 
designate in writing another person to receive documents in that civil 
penalty action. The notice of proposed civil penalty contains a 
statement of the charges and the amount of the proposed civil penalty. 
Not later than 30 days after receipt of the notice of proposed civil 
penalty, the person charged with a violation must--
    (1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or 
compromise order must be issued in that amount;
    (2) Submit to the agency attorney one of the following:
    (i) Written information, including documents and witness 
statements, demonstrating that a violation of the regulations did not 
occur or that a penalty or the amount of the penalty is not warranted 
by the circumstances;
    (ii) A written request to reduce the proposed civil penalty, the 
amount of reduction, and the reasons and any documents supporting a 
reduction of the proposed civil penalty, including records indicating a 
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 to discuss the 
matter with the agency attorney and to submit relevant information or 
documents; or
    (3) Request a hearing in which case a complaint will be filed with 
the Enforcement Docket Clerk.
    (e) Final notice of proposed civil penalty. A final notice of 
proposed civil penalty may be issued after participation in informal 
procedures provided in paragraph (d)(2) of this section or failure to 
respond in a timely manner to a notice of proposed civil penalty. A 
final notice of proposed civil penalty will be sent to the individual 
charged with a violation, to the president of the corporation or 
company charged with a violation, or a person previously designated in 
writing by the individual, corporation, or company to receive documents 
in that civil penalty action. If not previously done in response to a 
notice of proposed civil penalty, a corporation or company may 
designate in writing another person to receive documents in that civil 
penalty action. The final notice of proposed civil penalty contains a 
statement of the charges and the amount of the proposed civil penalty 
and, as a result of information submitted to the agency attorney during 
informal procedures, may modify an allegation or a proposed civil 
penalty contained in a notice of proposed civil penalty.
    (1) A final notice of proposed civil penalty may be issued--
    (i) If the person charged with a violation fails to respond to the 
notice of proposed civil penalty within 30 days after receipt of that 
notice; or
    (ii) If the parties participated in any informal procedures under 
paragraph (d)(2) of this section 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.
    (2) Not later than 15 days after receipt of the final notice of 
proposed civil penalty, the person charged with a violation must do one 
of the following--
    (i) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or a 
compromise order will be issued in that amount; or
    (ii) Request a hearing in which case a complaint will be filed with 
the Enforcement Docket Clerk.
    (f) Request for a hearing. Any person charged with a violation may 
request a hearing, pursuant to paragraph (d)(3) or paragraph (e)(2)(ii) 
of this section, to be conducted in accordance with the procedures in 
subpart G of this part. A person requesting a hearing must file a 
written request for a hearing with the Enforcement Docket Clerk (U.S. 
Department of Transportation, Transportation Security Administration, 
Office of the Chief Counsel, TSA-2, Attention: Enforcement Docket 
Clerk, 400 Seventh Street, SW., Washington, DC 20590) and must mail a 
copy of the request to the agency attorney. The person requesting the 
hearing must date and sign the request, and must include his or her 
current address. The request for hearing must be typewritten or legibly 
written.
    (g) Hearing. If the person charged with a violation requests a 
hearing pursuant to paragraph (d)(3) or paragraph (e)(2)(ii) of this 
section, the original complaint will be filed with the Enforcement 
Docket Clerk and a copy will be sent to the person requesting the 
hearing. The procedural rules in subpart G of this part apply to the 
hearing and any appeal. At the close of the hearing, the administrative 
law judge will issue, either orally on the record or in writing, an 
initial decision, including the reasons for the decision, that contains 
findings or conclusions on the allegations contained, and the civil 
penalty sought, in the complaint.
    (h) Appeal. Either party may appeal the administrative law judge's 
initial decision to the TSA decision maker pursuant to the procedures 
in subpart G of this part. If a party files a notice of appeal pursuant 
to Sec. 1503.233, the effectiveness of the initial decision is stayed 
until a final decision and order of the Under Secretary have been 
entered on the record. The TSA decision maker will review the record 
and issue a final decision and order of the Under Secretary that 
affirms, modifies, or reverses the initial decision. The TSA decision 
maker may assess a civil penalty but will not assess a civil penalty in 
an amount greater than that sought in the complaint.
    (i) Payment. A person must pay a civil penalty by sending, to the 
agency, a certified check or money order made payable to the 
Transportation Security Administration.
    (j) Collection of civil penalties. If a person does not pay a civil 
penalty imposed by an order assessing civil penalty or a compromise 
order within 60 days after service of the order, the Under Secretary 
may refer the order to the United States Attorney General, or the 
delegate of the Attorney General, to begin proceedings to collect the 
civil penalty. The action will be brought in a United States district 
court, pursuant to the authority in 49 U.S.C. 46305.
    (k) Exhaustion of administrative remedies. For violations 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, a party may 
only petition for review of a final decision and order of the Under 
Secretary to the courts of appeals of the United States or the United 
States Court

[[Page 51487]]

of Appeals for the District of Columbia pursuant to section 49 U.S.C. 
46110. Neither an initial decision or order issued by an administrative 
law judge that has not been appealed to the TSA decision maker, nor an 
order compromising a civil penalty action constitutes a final order of 
the Under Secretary for the purposes of judicial appellate review under 
49 U.S.C. 46110.
    (l) Compromise. The TSA may compromise any civil penalty action 
initiated in accordance with 49 U.S.C. 46301, involving an amount in 
controversy not exceeding $ 50,000, or any civil penalty action 
initiated in accordance with 49 U.S.C. 46301 at any time before 
referring the action to the United States Attorney for collection.
    (1) An agency attorney may compromise any civil penalty action 
where a person charged with a violation agrees to pay a civil penalty 
and the TSA agrees to make no finding of violation. Pursuant to such 
agreement, a compromise order will be issued, stating:
    (i) The person agrees to pay a civil penalty;
    (ii) The TSA makes no finding of a violation; and
    (iii) The compromise order will not be used as evidence of a prior 
violation in any subsequent civil penalty proceeding.
    (2) An agency attorney may compromise the amount of any civil 
penalty proposed in a notice, assessed in an order, or imposed in a 
compromise order.


Sec. 1503.17  [Reserved]


Sec. 1503.19  [Reserved]


Sec. 1503.20  [Reserved]


Sec. 1503.21  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. Ch. 47), has violated 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 Chief Counsel or the Deputy Chief 
Counsel for Enforcement will send a copy of the report to the 
appropriate military authority for such disciplinary action as that 
authority considers appropriate and a report to the Under Secretary 
thereon.


Sec. 1503.23  [Reserved]


Sec. 1503.25  Injunctions.

    Whenever it is determined that a person has engaged, or is about to 
engage, in any act or practice constituting 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 for which the TSA exercises 
enforcement responsibility, the Chief Counsel or the Deputy Chief 
Counsel for Enforcement may request the United States Attorney General, 
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. 46107.


Sec. 1503.27  [Reserved]


Sec. 1503.29  Civil penalties: Streamlined enforcement procedures for 
certain security violations.

    This section may be used, at the agency's discretion, in 
enforcement actions involving individuals presenting dangerous or 
deadly weapons for screening at airports or in checked baggage where 
the amount of the proposed civil penalty is less than $5,000. In these 
cases, Secs. 1503.16(a), 1503.16(c), and 1503.16 (f) through (l) are 
used, as well as paragraphs (a) through (d) of this section:
    (a) Delegation of authority. The authority of the Under Secretary, 
under 49 U.S.C. 46301, to initiate civil penalty actions in accordance 
with TSA policies and procedures promulgated pursuant to 49 U.S.C. 
46301 et seq. and 49 CFR part 1540, is delegated to each Federal 
Security Director for the purpose of issuing notices of violation in 
cases involving violations of 49 U.S.C. chapter 449, or a regulation 
prescribed or order issued under any of those provisions.
    (b) Notice of violation. A civil penalty action is initiated by 
sending a notice of violation to the person charged with the violation. 
The notice of violation contains a statement of the charges and the 
amount of the proposed civil penalty. Not later than 30 days after 
receipt of the notice of violation, the person charged with a violation 
must:
    (1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing a civil penalty or 
a compromise order will be issued in that amount; or
    (2) Submit to the agency attorney identified in the material 
accompanying the notice any of the following:
    (i) Written information, including documents and witness 
statements, demonstrating that a violation of the regulations did not 
occur or that a penalty or the penalty amount is not warranted by the 
circumstances; or
    (ii) A written request to reduce the proposed civil penalty, the 
amount of reduction, and the reasons and any documents supporting a 
reduction of the proposed civil penalty, including records indicating a 
financial inability to pay or records showing that payment of the 
proposed civil penalty would prevent the person from continuing in 
business; or
    (iii) A written request for an informal conference to discuss the 
matter with an agency attorney and submit relevant information or 
documents; or
    (3) Request a hearing in which case a complaint will be filed with 
the Enforcement Docket Clerk.
    (c) Final notice of violation and civil penalty assessment order. A 
final notice of violation and civil penalty assessment order (``final 
notice and order'') may be issued after participation in any informal 
proceedings as provided in paragraph (b)(2) of this section, or after 
failure of the respondent to respond in a timely manner to a notice of 
violation. A final notice and order will be sent to the individual 
charged with a violation. The final notice and order will contain a 
statement of the charges and the amount of the proposed civil penalty 
and, as a result of information submitted to the agency attorney during 
any informal procedures, may reflect a modified allegation or proposed 
civil penalty. A final notice and order may be issued--
    (1) If the person charged with a violation fails to respond to the 
notice of violation within 30 days after receipt of that notice; or
    (2) If the parties participated in any informal procedures under 
paragraph (b)(2) of this section and the parties have not agreed to 
compromise the action or the agency attorney has not agreed to withdraw 
the notice of violation.
    (d) Order assessing civil penalty. An order assessing civil penalty 
may be issued after notice and opportunity for a hearing. A person 
charged with a violation may be subject to an order assessing civil 
penalty in the following circumstances:
    (1) An order assessing civil penalty may be issued if a person 
charged with a violation submits, or agrees to submit, the amount of 
civil penalty proposed in the notice of violation.

[[Page 51488]]

    (2) An order assessing civil penalty may be issued if a person 
charged with a violation submits, or agrees to submit, an agreed-upon 
amount of civil penalty that is not reflected in either the notice of 
violation or the final notice and order.
    (3) The final notice and order becomes (and contains a statement so 
indicating) an order assessing a civil penalty when the person charged 
with a violation submits the amount of the proposed civil penalty that 
is reflected in the final notice and order.
    (4) The final notice and order becomes (and contains a statement so 
indicating) an order assessing a civil penalty 16 days after receipt of 
the final notice and order, unless not later than 15 days after receipt 
of the final notice and order, the person charged with a violation does 
one of the following--
    (i) Submits an agreed-upon amount of civil penalty that is not 
reflected in the final notice and order, in which case an order 
assessing civil penalty or a compromise order will be issued in that 
amount; or
    (ii) Requests a hearing in which case a complaint will be filed 
with the Enforcement Docket Clerk.
    (5) Unless there is an appeal to the TSA decision maker, filed in a 
timely manner, an initial decision or order of an administrative law 
judge will be considered an order assessing civil penalty if an 
administrative law judge finds that an alleged violation occurred and 
determines that a civil penalty, in an amount found to be appropriate 
by the administrative law judge, is warranted.
    (6) Unless a petition for review is filed with a U.S. court of 
appeals in a timely manner, a final decision and order of the Under 
Secretary 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.

Subpart D--[Reserved]

Subpart E--[Reserved]

Subpart F--[Reserved]

Subpart G--Rules of Practice in Transportation Security 
Administration (TSA) Civil Penalty Actions


Sec. 1503.201  Applicability.

    (a) This subpart applies to the following actions:
    (1) A civil penalty action in which a request for hearing has been 
filed and the amount sought does not exceed $50,000 for a violation 
arising under 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.
    (b) [Reserved]
    (c) Notwithstanding the provisions of paragraph (a) of this 
section, the United States district courts will have exclusive 
jurisdiction of any civil penalty action initiated by the Under 
Secretary:
    (1) Which involves an amount in controversy in excess of $50,000;
    (2) Which is an in rem action or in which an in rem action based on 
the same violation has been brought;
    (3) Regarding which an aircraft subject to lien has been seized by 
the United States; and
    (4) In which a suit for injunctive relief based on the violation 
giving rise to the civil penalty has also been brought.


Sec. 1503.202  Definitions.

    The following definitions apply to this subpart:
    Administrative law judge means an administrative law judge 
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 a person licensed by a state, the District of 
Columbia, or a territory of the United States to practice law or appear 
before the courts of that state or territory.
    Complainant means those persons within the TSA responsible for 
investigating and bringing possible violations of statute and 
regulation.
    Complaint means a document issued by an agency attorney alleging 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 
that has been filed with the enforcement docket after a hearing has 
been requested pursuant to Sec. 1503.16(d)(3) or 
Sec. 1503.16(e)(2)(ii).
    Mail includes U.S. certified mail, U.S. registered mail, or use of 
an overnight express courier service.
    Order assessing civil penalty means a document that contains a 
finding of 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 
and may direct payment of a civil penalty. Unless there is an appeal to 
the TSA decision maker, filed in a timely manner, an initial decision 
or order of an administrative law judge will be considered an order 
assessing civil penalty if an administrative law judge finds that an 
alleged violation occurred and determines that a civil penalty, in an 
amount found appropriate by the administrative law judge, is warranted. 
Unless a petition for review is filed with a U.S. court of appeals in a 
timely manner, a final decision and order of the Under Secretary 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.
    Party means the respondent or the complainant.
    Personal delivery includes hand-delivery or use of a contract or 
express messenger service. Personal delivery does not include the use 
of Government interoffice mail service.
    Pleading means a complaint, an answer, and any amendment of these 
documents permitted under this subpart.
    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 subpart, or any other 
address shown by other reasonable and available means.
    Respondent means a person, corporation, or company named in a 
complaint.
    TSA decision maker means the Under Secretary of Transportation for 
Security, acting in the capacity of the decision maker on appeal, or 
any person to whom the Under Secretary has delegated the Under 
Secretary's decision-making authority in a civil penalty action. As 
used in this subpart, the TSA decision maker is the official authorized 
to issue a final decision and order of the Under Secretary in a civil 
penalty action.


Sec. 1503.203  Separation of functions.

    (a) Civil penalty proceedings, including hearings, will be 
prosecuted by an agency attorney.
    (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

[[Page 51489]]

administrative law judge or by the TSA decision maker on appeal, except 
as counsel or a witness in the public proceedings.
    (c) The Chief Counsel or an 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. 1503.204  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 party may file 
a notice of appearance in the action, in the manner provided in 
Sec. 1503.210, and must serve a copy of the notice of appearance on 
each party, in the manner provided in Sec. 1503.211, 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.
    (c) Any person may request a copy of a document upon payment of 
reasonable costs. A person may keep an original document, data, or 
evidence, with the consent of the administrative law judge, by 
substituting a legible copy of the document for the record.


Sec. 1503.205  Administrative law judges.

    (a) Powers of an administrative law judge. In accordance with the 
rules of this subpart, an administrative law judge may:
    (1) Give notice of, and hold, pre-hearing conferences and hearings;
    (2) Administer oaths and affirmations;
    (3) Issue subpoenas authorized by law and issue notices of 
deposition requested by the parties;
    (4) Rule on offers of proof;
    (5) Receive relevant and material evidence;
    (6) Regulate the course of the hearing in accordance with the rules 
of this subpart;
    (7) Hold conferences to settle or to simplify the issues by consent 
of the parties;
    (8) Dispose of procedural motions and requests; and
    (9) Make findings of fact and conclusions of law, and issue an 
initial decision.
    (b) Limitations on the power of the administrative law judge. The 
administrative law judge must not issue an order of contempt, award 
costs to any party, or impose any sanction not specified in this 
subpart. If the administrative law judge imposes any sanction not 
specified in this subpart, a party may file an interlocutory appeal of 
right pursuant to Sec. 1503.219(c)(4). This section does not preclude 
an administrative law judge 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 administrative law judge may disqualify 
himself or herself at any time. A party may file a motion, pursuant to 
Sec. 1503.218(f)(6), requesting that an administrative law judge be 
disqualified from the proceedings.


Sec. 1503.206  Intervention.

    (a) A person may submit a motion for leave to intervene as a party 
in a civil penalty action. Except for good cause shown, a motion for 
leave to intervene must be submitted not later than 10 days before the 
hearing.
    (b) If the administrative law judge finds that intervention will 
not unduly broaden the issues or delay the proceedings, the 
administrative law judge 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 administrative 
law judge may determine the extent to which an intervenor may 
participate in the proceedings.


Sec. 1503.207  Certification of documents.

    (a) 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 administrative law 
judge, the TSA decision maker on appeal, or each party.
    (b) Effect of signing a document. By signing a document, the 
attorney of record, the party, or the party's representative certifies 
that the attorney, the party, or the party's representative 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 argument exists 
for extension, modification, or reversal of existing law; and
    (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.
    (c) Sanctions. If the attorney of record, the party, or the party's 
representative signs a document in violation of this section, the 
administrative law judge or the TSA decision maker, as appropriate, 
will:
    (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; or
    (6) Dismiss the appeal of the administrative law judge's initial 
decision to the TSA decision maker.


Sec. 1503.208  Complaint.

    (a) Filing. The agency attorney must file the original and one copy 
of the complaint with the Enforcement Docket Clerk, or may file a 
written motion pursuant to Sec. 1503.218(f)(2)(i) instead of filing a 
complaint, not later than 20 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) Service. An agency attorney must personally deliver or mail a 
copy of the complaint to the respondent, the president of the 
corporation or company named as a respondent, or a person designated by 
the respondent to accept service of documents in the civil penalty 
action.
    (c) Contents. A complaint must set forth the facts alleged, any 
regulation 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.
    (d) [Reserved]


Sec. 1503.209  Answer.

    (a) Writing required. A respondent must file a written answer to 
the complaint, or may file a written motion pursuant to 
Sec. 1503.218(f)(1)-(4) instead of filing an answer, not later than 30 
days after service of the complaint. 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.

[[Page 51490]]

    (b) Filing and address. A person filing an answer must personally 
deliver or mail the original and one copy of the answer for filing with 
the Enforcement Docket Clerk, not later than 30 days after service of 
the complaint. Filing must be made by mail to the ?U.S. Department of 
Transportation, Transportation Security Administration, Office of the 
Chief Counsel, TSA-2, Attention: Enforcement Docket Clerk, 400 Seventh 
Street, SW., Washington, DC 20590 or by personal delivery to TSA 
Enforcement Docket, GSA Building Room 5008, 301 D Street SW., 
Washington, DC 20407. The person filing an answer should suggest a 
location for the hearing when filing the answer.
    (c) Service. A person filing an answer must serve a copy of the 
answer on the agency attorney who filed the complaint.
    (d) 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.
    (e) 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.
    (f) Failure to file answer. A person's failure to file an answer 
without good cause will be deemed an admission of the truth of each 
allegation contained in the complaint.


Sec. 1503.210  Filing of documents.

    (a) Address and method of filing. A person tendering a document for 
filing must personally deliver or mail the signed original and one copy 
of each document. Filing must be made either by mail to the U.S. 
Department of Transportation, Transportation Security Administration, 
Office of the Chief Counsel, TSA-2, Attention: Enforcement Docket 
Clerk, 400 Seventh Street, SW., Washington, DC 20590 or by personal 
delivery to TSA Enforcement Docket, GSA Building, Room 5008, 301 D 
Street SW., Washington, DC 20407. A person must serve a copy of each 
document on each party in accordance with Sec. 1503.211.
    (b) Date of filing. A document will be considered to be filed on 
the date of personal delivery; or if mailed, the mailing date shown 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.
    (c) Form. Each document must be typewritten or legibly handwritten.
    (d) Contents. Unless otherwise specified in this subpart, 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.


Sec. 1503.211  Service of documents.

    (a) General. A person must serve a copy of any document filed with 
the Enforcement Docket on each party and the administrative law judge 
or the chief administrative law judge 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.
    (b) Type of service. A person may serve documents by personal 
delivery or by mail.
    (c) Certificate of service. A person may attach a certificate of 
service to a document tendered for filing with the Enforcement Docket 
Clerk. A certificate of service must consist of a statement, dated and 
signed by the person filing the document, that the document was 
personally delivered or mailed to each party on a specific date.
    (d) Date of service. The date of service will be the date of 
personal delivery; or if mailed, the mailing date shown 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.
    (e) 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.
    (f) Service by the administrative law judge. The administrative law 
judge 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 by personal delivery or by mail.
    (g) Valid service. A document that was properly addressed, was sent 
in accordance with this subpart, and that was returned, that was not 
claimed, or that was refused, is deemed to have been served in 
accordance with this subpart. 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 refused.
    (h) 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.


Sec. 1503.212  Computation of time.

    (a) This section applies to any period of time prescribed or 
allowed by this subpart, or by notice or order of the administrative 
law judge.
    (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. 1503.213  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 administrative law judge must grant one extension of 
time to each party. The party seeking the extension of time must submit 
a draft order to the administrative law judge to be signed by the 
administrative law judge and filed with the Enforcement Docket Clerk. 
The administrative law judge 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 good cause for the late filing is shown. The administrative law 
judge may grant the extension of time if good cause for the extension 
is shown.
    (c) Failure to rule. If the administrative law judge 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.

[[Page 51491]]

Sec. 1503.214  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 
administrative law judge 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 
administrative law judge.
    (2) Less than 15 days before the scheduled date of a hearing, the 
administrative law judge may allow amendment of a complaint or an 
answer only for good cause shown in a motion to amend.
    (c) Responses. The administrative law judge 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 administrative law judge.


Sec. 1503.215  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 administrative law judge. If an 
agency attorney withdraws the complaint or a party withdraws the 
request for a hearing and the answer, the administrative law judge must 
dismiss the proceedings under this subpart with prejudice.


Sec. 1503.216  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. 1503.217  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 pre-hearing 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 administrative law judge, 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 
pre-hearing motions, responses to pre-hearing 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 pre-hearing 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 administrative law judge 
must approve the joint schedule filed by the parties. One party must 
submit a draft order establishing a joint schedule to the 
administrative law judge to be signed by the administrative law judge 
and filed with the Enforcement Docket Clerk.
    (e) Disputes. The administrative law judge 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 administrative law judge's order establishing 
a joint schedule, the administrative law judge 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 
administrative law judge may:
    (1) Strike that portion of a party's pleadings;
    (2) Preclude pre-hearing or discovery motions by that party;
    (3) Preclude admission of that portion of a party's evidence at the 
hearing; or
    (4) Preclude that portion of the testimony of that party's 
witnesses at the hearing.


Sec. 1503.218  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 administrative law judge directs 
otherwise.
    (d) Answers to motions. Any party may file an answer, with 
affidavits or other evidence in support of the answer, not later than 
10 days after service of a written motion on that party. When a motion 
is made during a hearing, the answer may be made at the hearing on the 
record, orally or in writing, within a reasonable time determined by 
the administrative law judge.
    (e) Rulings on motions. The administrative law judge must rule on 
all motions as follows:
    (1) Discovery motions. The administrative law judge must resolve 
all pending discovery motions not later than 10 days before the 
hearing.
    (2) Pre-hearing motions. The administrative law judge must resolve 
all pending pre-hearing motions not later than 7 days before the 
hearing. If the administrative law judge issues a ruling or order 
orally, the administrative law judge must serve a written copy of the 
ruling or order, within 3 days, on each party. In all other cases, the 
administrative law judge 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 administrative law judge 
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 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 administrative law judge denies the motion to dismiss 
the complaint for insufficiency, the respondent must file an answer not 
later than 20 days after service of the administrative law judge's 
denial of the motion. A motion to dismiss the complaint for 
insufficiency must show that the complaint fails to state a violation 
of 49 U.S.C. chapter 449 (except sections 44902, 44903(d), 44907(a)-
(d)(1)(A), 44907(d)(1)(C)-(f),

[[Page 51492]]

44908, and 44909), or a regulation prescribed or order issued under any 
of those provisions.
    (2) Motion to dismiss. A party may file a motion to dismiss, 
specifying the grounds for dismissal. If an administrative law judge 
grants a motion to dismiss in part, a party may appeal the 
administrative law judge's ruling on the motion to dismiss under 
Sec. 1503.219(b).
    (i) Motion to dismiss a request for a hearing. An agency attorney 
may file a motion to dismiss a request for a hearing 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 
administrative law judge'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. 1503.233. 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 20 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. If the motion to 
dismiss is not granted, 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 administrative law judge'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 agency attorney may file an appeal 
pursuant to Sec. 1503.233. 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 10 days after service of the decision on 
appeal.
    (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 administrative law judge 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 
administrative law judge must strike the allegations in the complaint 
to which the motion is directed. If the administrative law judge 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 administrative law judge 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 
administrative law judge 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 make a motion 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 
not required, not later than 10 days after service of the pleading.
    (5) Motion for decision. A party may make a motion for decision, 
regarding all or any part of the proceedings, at any time before the 
administrative law judge has issued an initial decision in the 
proceedings. The administrative law judge must grant a party's motion 
for decision if the pleadings, depositions, answers to interrogatories, 
admissions, matters that the administrative law judge 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 making the 
motion 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 administrative law judge has been assigned to the 
proceedings but must make the motion before the administrative law 
judge 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 showing 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 administrative 
law judge must render a decision on the motion for disqualification not 
later than 20 days after the motion has been filed. If the 
administrative law judge finds that the motion for disqualification and 
supporting affidavit show a basis for disqualification, the 
administrative law judge must withdraw from the proceedings 
immediately. If the administrative law judge finds that 
disqualification is not warranted, the administrative law judge must 
deny the motion and state the grounds for the denial on the record. If 
the administrative law judge 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 administrative law judge's 
denial of the motion for disqualification in accordance with 
Sec. 1503.219(b).


Sec. 1503.219  Interlocutory appeals.

    (a) General. Unless otherwise provided in this subpart, a party may 
not appeal a ruling or decision of the administrative law judge 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 Under 
Secretary 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 administrative 
law judge, or orally requests an interlocutory appeal for cause, the 
proceedings are stayed until the administrative law judge issues a 
decision on the request. If the administrative law judge grants the 
request, the proceedings are stayed until the TSA decision maker issues 
a decision on the interlocutory appeal. The administrative law judge 
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 
administrative law judge of an interlocutory appeal of right, the 
proceedings are stayed until the TSA decision maker issues a decision

[[Page 51493]]

on the interlocutory appeal. A party may file an interlocutory appeal, 
without the consent of the administrative law judge, before an initial 
decision has been entered in the case of:
    (1) A ruling or order by the administrative law judge barring a 
person from the proceedings.
    (2) Failure of the administrative law judge to dismiss the 
proceedings in accordance with Sec. 1503.215.
    (3) A ruling or order by the administrative law judge in violation 
of Sec. 1503.205(b).
    (4) A ruling or order by the administrative law judge regarding 
public access to a particular docket or documents.
    (d) Procedure. Not later than 10 days after the administrative law 
judge's decision forming the basis of an interlocutory appeal of right 
or not later than 10 days after the administrative law judge'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. 1503.220  Discovery.

    (a) Initiation of discovery. Any party may initiate discovery 
described in this section, without the consent or approval of the 
administrative law judge, 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 
administrative law judge 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 or agreed by the parties, 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 administrative law judge must limit the 
frequency and extent of discovery permitted by this section if a party 
shows that--
    (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) Confidential orders. A party or person who has received a 
discovery request for information 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 
administrative law judge 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 administrative law judge determines that the requested 
material is not necessary to decide the case, the administrative law 
judge must preclude any inquiry into the matter by any party.
    (3) If the administrative law judge determines that the requested 
material may be disclosed during discovery, the administrative law 
judge 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 administrative law judge determines that the requested 
material is necessary to decide the case and that a confidential order 
is warranted, the administrative law judge must provide:
    (i) An opportunity for review of the document by the parties off 
the record;
    (ii) Procedures for excluding the information from the record; and
    (iii) Order that the parties must not disclose the information in 
any manner and the parties must not use the information in any other 
proceeding.
    (h) 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 administrative law judge may:
    (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; or
    (3) Limit the scope of discovery or preclude any inquiry into 
certain matters during discovery.
    (i) 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

[[Page 51494]]

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.
    (j) 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. In foreign countries, 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 administrative law judge, 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 administrative law judge. 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.
    (k) 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 administrative law judge and must serve a copy on each 
party before serving additional interrogatories on a party. The 
administrative law judge 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.
    (l) 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 contained in the request for admission. 
The administrative law judge 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 administrative law judge 
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.
    (m) Motion to compel discovery. A party may make a motion 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 making a 
motion to compel if a person refuses to answer.
    (n) 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 administrative law judge, limited to the extent of the party's 
failure to comply with the discovery order or motion to compel, may:
    (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; or
    (4) Preclude that portion of the testimony of that party's 
witnesses at the hearing.


Sec. 1503.221  Notice of hearing.

    (a) Notice. The administrative law judge must give each party at 
least 60 days notice of the date, time, and location of the hearing. 
With the consent of the administrative law judge, 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 administrative law 
judge to whom the proceedings have been assigned must set a reasonable 
date, time, and location for the hearing. The administrative law judge 
must consider the need for discovery and any joint procedural or 
discovery schedule submitted by the parties when determining the 
hearing date. The administrative law judge 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. 1503.222  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.

[[Page 51495]]

    (b) Admissibility. A party may introduce any oral, documentary, or 
demonstrative evidence in support of the party's case or defense. The 
administrative law judge 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. 1503.223  Standard of proof.

    The administrative law judge may issue an initial decision or may 
rule in a party's favor only if the decision or ruling is supported by, 
and in accordance with, the reliable, probative, and substantial 
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 reliable, probative, and substantial evidence.


Sec. 1503.224  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. 1503.225  Offer of proof.

    A party whose evidence has been excluded by a ruling of the 
administrative law judge may offer the evidence for the record on 
appeal.


Sec. 1503.226  Public disclosure of evidence.

    This section applies to information other than Sensitive Security 
Information (SSI). All release of SSI is governed by Sec. 1503.230.
    (a) The administrative law judge 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 
administrative law judge and serving a copy of the motion on each 
party. The party must state the specific grounds for nondisclosure in 
the motion.
    (b) The administrative law judge must grant the motion to withhold 
information in the record if, based on the motion and any response to 
the motion, the administrative law judge 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. 1503.227  Expert or opinion witnesses.

    An employee of the agency may not be called as an expert or opinion 
witness, for any party other than the 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 the TSA in any 
proceeding governed by this subpart to which the respondent is a party.


Sec. 1503.228  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 administrative 
law judge who is assigned to the case, or, if no administrative law 
judge is assigned or the assigned law judge is unavailable, from the 
chief administrative law judge. 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.
    (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 
administrative law judge 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 
local Federal district court to seek judicial enforcement of the 
subpoena in accordance with 49 U.S.C. 46104.


Sec. 1503.229  Witness fees.

    (a) General. Unless otherwise authorized by the administrative law 
judge, 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 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. 1503.230  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, 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 FOIA request under 5 U.S.C. 552 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) their designated representatives; and
    (C) persons who have a need to know as determined by the Under 
Secretary.
    (ii) Those persons with permission to review these documents or 
docket files may view the materials at the TSA Enforcement Docket, GSA 
Building, Room 5008, 301 Seventh Street SW., Washington, DC 20407. 
Persons with access to these records may have a copy of the records 
after payment of reasonable costs.


Sec. 1503.231  Argument before the administrative law judge.

    (a) Arguments during the hearing. During the hearing, the 
administrative law judge 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 administrative law judge may request written arguments 
during the hearing if the administrative law judge finds that 
submission of written arguments would be reasonable.
    (b) Final oral argument. At the conclusion of the hearing and 
before the

[[Page 51496]]

administrative law judge 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 administrative law 
judge, 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 administrative law judge may request 
written posthearing briefs before the administrative law judge 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 administrative law 
judge, and supporting arguments for the findings, conclusions, or 
exceptions. The administrative law judge must give the parties a 
reasonable opportunity, not more than 30 days after receipt of the 
transcript, to prepare and submit the briefs.


Sec. 1503.232  Initial decision.

    (a) Contents. The administrative law judge must issue an initial 
decision at the conclusion of the hearing. In each oral or written 
decision, the administrative law judge 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 administrative law 
judge's discretion, the amount of any civil penalty found appropriate 
by the administrative law judge, and a discussion of the basis for any 
order issued in the proceedings. The administrative law judge 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 administrative law judge 
refers to any previous unreported or unpublished initial decision, the 
administrative law judge must make copies of that initial decision 
available to all parties and the TSA decision maker.
    (b) Oral decision. Except as provided in paragraph (c) of this 
section, at the conclusion of the hearing, the administrative law judge 
must issue the initial decision and order orally on the record.
    (c) Written decision. The administrative law judge may issue a 
written initial decision not later than 30 days after the conclusion of 
the hearing or submission of the last post-hearing brief if the 
administrative law judge finds that issuing a written initial decision 
is reasonable. The administrative law judge must serve a copy of any 
written initial decision on each party.
    (d) Order assessing civil penalty. Unless appealed pursuant to 
Sec. 1503.233, the initial decision issued by the administrative law 
judge will be considered an order assessing civil penalty if the 
administrative law judge finds that an alleged violation occurred and 
determines that a civil penalty, in an amount found appropriate by the 
administrative law judge, is warranted.


Sec. 1503.233  Appeal from initial decision.

    (a) Notice of appeal. A party may appeal the initial decision, and 
any decision not previously appealed pursuant to Sec. 1503.219, by 
filing a notice of appeal with the Enforcement Docket Clerk. A party 
must file the notice of appeal with the U.S. ?Department of 
Transportation, Transportation Security Administration, Office of the 
Chief Counsel, TSA-2, Attention: Enforcement Docket Clerk, 400 Seventh 
Street, SW., Washington, DC 20590. 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.
    (b) Issues on appeal. A party may appeal only the following issues:
    (1) Whether each finding of fact is supported by a preponderance of 
reliable, probative, and substantial evidence;
    (2) Whether each conclusion of law is made in accordance with 
applicable law, precedent, and public policy; and
    (3) Whether the administrative law judge 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 TSA 
Enforcement Docket Clerk and must serve a copy of the appeal brief on 
each party.
    (1) A party must set forth, in detail, the party's specific 
objections to the initial decision or rulings in the appeal brief. A 
party also must set forth, in detail, the basis for the appeal, the 
reasons supporting the appeal, and the relief requested in the appeal. 
If the party relies on evidence contained in the record for the appeal, 
the party must specifically refer to the pertinent evidence contained 
in the transcript in the appeal brief.
    (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

[[Page 51497]]

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 on 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 administrative law judge 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 administrative law judge for 
further proceedings and an initial decision related to that issue. If 
an issue raised by the TSA decision maker 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, a remand of the case to the administrative law 
judge for further proceedings is not required but may be provided in 
the discretion of the TSA decision maker.
    (2) The TSA decision maker will issue the final decision and order 
of the Under Secretary 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. 1503.235, a final decision and order of the 
Under Secretary 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 Under Secretary after appeal 
is precedent in any other civil penalty action. Any issue, finding or 
conclusion, order, ruling, or initial decision of an administrative law 
judge that has not been appealed to the TSA decision maker is not 
precedent in any other civil penalty action.
    (4) The TSA decision maker will determine whether the decision and 
order of the TSA decision maker, with the administrative law judge'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 safety, would not be in the public interest, or should 
not otherwise be required to be made available to the public.


Sec. 1503.234  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 
administrative law judge 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 a petition to 
reconsider or modify, in writing. 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 these allegations and must describe, and support, 
the basis for the 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 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 of 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. 1503.235  Judicial review of a final order.

    A person may seek judicial review of a final order of the Under 
Secretary as provided in 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.

[[Page 51498]]

Subpart H--Civil Monetary Penalty Inflation Adjustment


Sec. 1503.301  Scope and purpose.

    (a) This subpart provides a mechanism for the regular adjustment 
for inflation of civil monetary penalties in conformity with the 
Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 
2461 (note), as amended, in order to maintain the deterrent effect of 
civil monetary penalties and to promote compliance with the law. This 
subpart also sets out the current adjusted maximum civil monetary 
penalties or range of minimum and maximum civil monetary penalties for 
each statutory civil penalty subject to the TSA's jurisdiction.
    (b) Each adjustment to the maximum civil monetary penalty or the 
range of minimum and maximum civil monetary penalties, as applicable, 
made in accordance with this subpart applies prospectively from the 
date it becomes effective to actions initiated under this part, 
notwithstanding references to a specific maximum civil monetary penalty 
or range of minimum and maximum civil monetary penalties contained 
elsewhere in this part.


Sec. 1503.303  Definitions.

    The following definitions apply to this subpart:
    Civil monetary penalty means any penalty, fine, or other sanction 
that:
    (1) Is for a specific monetary amount as provided by Federal law or 
has a maximum amount provided by Federal law;
    (2) Is assessed or enforced by the TSA pursuant to Federal law; and
    (3) Is assessed or enforced pursuant to an administrative 
proceeding or a civil action in the Federal courts.
    Consumer Price Index means the Consumer Price Index for all urban 
consumers published by the Department of Labor.


Sec. 1503.305  Cost of living adjustments of civil monetary penalties.

    (a) Adjustment determination. Except for the limitation to the 
initial adjustment to statutory maximum civil monetary penalties or 
range of minimum and maximum civil monetary penalties set forth in 
paragraph (c) of this section, the inflation adjustment under this 
subpart is determined by increasing the maximum civil monetary penalty 
or range of minimum and maximum civil monetary penalty for each civil 
monetary penalty by the cost-of-living adjustment. Any increase 
determined under this paragraph (a) is rounded to the nearest:
    (1) Multiple of $10 in the case of penalties less than or equal to 
$100;
    (2) Multiple of $100 in the case of penalties greater than $100 but 
less than or equal to $1,000;
    (3) Multiple of $1,000 in the case of penalties greater than $1,000 
but less than or equal to $10,000;
    (4) Multiple of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000;
    (5) Multiple of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) Multiple of $25,000 in the case of penalties greater than 
$200,000.
    (b) Definition. For purposes of paragraph (a) of this section, the 
term cost-of-living adjustment means the percentage (if any) for each 
civil monetary penalty by which the Consumer Price Index for the month 
of June of the calendar year preceding the adjustment exceeds 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.
    (c) Limitation on initial adjustment. The initial adjustment of 
maximum civil penalty or range of minimum and maximum civil monetary 
penalties made pursuant to this subpart does not exceed 10 percent of 
the statutory maximum civil penalty before an adjustment under this 
subpart is made. This limitation applies only to the initial 
adjustment, effective on January 21, 1997.
    (d) Inflation adjustment. Minimum and maximum civil monetary 
penalties within the jurisdiction of the TSA are adjusted for inflation 
as follows:

                                  Minimum and Maximum Civil Penalties--Adjusted for Inflation, Effective March 13, 2002
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Maximum penalty
                                     Civil monetary penalty                           New adjusted minimum   amount when last set     New or adjusted
    United States Code citation            description           Minimum penalty         penalty amount      or adjusted pursuant     maximum penalty
                                                                                                                    to law                 amount
--------------------------------------------------------------------------------------------------------------------------------------------------------
49 U.S.C. 46301(a)(1)..............  Violations of           N/A...................  N/A..................  $1,100 per violation,  $1,100 per violation,
                                      statutory provisions                                                   adjusted 1/21/97.      adjusted 1/21/97.
                                      listed in 49 U.S.C.
                                      46301(a)(1),
                                      regulations
                                      prescribed, or orders
                                      issued under those
                                      provisions.
49 U.S.C. 46301(a)(2)..............  Violations of           N/A...................  N/A..................  $11,000 per            $11,000 per
                                      statutory provisions                                                   violation, adjusted    violation, adjusted
                                      listed in 49 U.S.C.                                                    1/21/97.               1/21/97.
                                      46301(a)(2),
                                      regulations
                                      prescribed, or orders
                                      issued under those
                                      provisions by a
                                      person operating an
                                      aircraft for the
                                      transportation of
                                      passengers or
                                      property for
                                      compensation.
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 51499]]

    Issued in Washington, DC, on July 26, 2002.
J.M. Loy,
Acting Under Secretary of Transportation for Security.
[FR Doc. 02-19843 Filed 8-7-02; 8:45 am]
BILLING CODE 4910-62-P