[Federal Register Volume 89, Number 49 (Tuesday, March 12, 2024)]
[Rules and Regulations]
[Pages 17693-17706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05131]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Rules
and Regulations
[[Page 17693]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 126
[Docket No. DHS-2022-0039]
RIN 1601-AB09
Procedures of the Transportation Security Oversight Board Review
Panel Concerning Federal Aviation Administration Airman Certificates
AGENCY: Office of the Secretary, DHS
ACTION: Final rule.
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SUMMARY: In this final rule, DHS codifies in final form the procedures
that apply to appeals before the Transportation Security Oversight
Board concerning Federal Aviation Administration Airmen Certificates.
The final rule addresses comments stakeholders submitted in response to
an interim final rule DHS published on August 9, 2022, on the same
topic. DHS amends the IFR rule text to permit parties to consent to
electronic service of documents, include a definition of the standard
of review that applies to the proceedings, and provide a process to
seek remand for good cause shown.
DATES: This rule is effective May 13, 2024.
FOR FURTHER INFORMATION CONTACT: Randall Kaplan, Attorney, Office of
the General Counsel, Department of Homeland Security, Washington, DC
20528-0485. Phone: 202 282-9822.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
ALJ--Administrative Law Judge
ALPA--Air Line Pilots Association, International
AOPA--Aircraft Owners and Pilots Association
ATSA--The Aviation and Transportation Security Act of 2001
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
FAA--Federal Aviation Administration
FRAP--Federal Rules of Appellate Procedure
Pt.--Part
Sec. --Section
SES--Senior Executive Service
SL--Senior Level
SSI--Sensitive Security Information
Stat.--United States Statutes at Large
Subt.--Subtitle
TSA--Transportation Security Administration
TSOB--Transportation Security Oversight Board
U.S.C.--United States Code
Table of Contents
I. Background and Purpose
II. Summary of Comments on the IFR
III. Discussion of the Final Rule and Summary of Changes
IV. Regulatory Analyses
A. Executive Order 12866 and Executive Order 13563
B. Regulatory Flexibility Act Assessment
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 13132
F. Executive Order 12988, Civil Justice Reform
G. Paperwork Reduction Act Assessment
I. Background and Purpose
A. Statutory History
Section 601(a) of the Vision 100--Century of Aviation
Reauthorization Act (Vision 100 Act), Public Law 108-176, 117 Stat.
2490, 2561 (Dec. 12, 2003) (codified at 49 U.S.C. 46111(a)) requires
the FAA Administrator to issue an order amending, modifying,
suspending, or revoking all or part of an FAA certificate issued under
title 49 of the U.S. Code when notified by the Administrator of the TSA
that the certificate holder poses, or is suspected of posing, a risk of
air piracy or terrorism or a threat to airline or passenger safety. The
FAA Administrator may also hold in abeyance or deny an application for
a certificate based on a Determination of Security threat, in
accordance with 14 CFR 3.205. Following the FAA's issuance of such an
order, abeyance, or denial, an adversely affected U.S. citizen may
challenge the TSA's determination that they pose or are suspected of
posing such a risk (called a Determination of Security Threat) at a
hearing on the record before an ALJ. 49 U.S.C. 46111(b)-(c). Any party
to the proceedings before the ALJ may appeal the ALJ's decision to a
Review Panel appointed by the TSOB. 49 U.S.C. 46111(d). Any person who
is substantially affected by the TSOB Review Panel's action may seek
review by an appropriate U.S. Court of Appeals. 49 U.S.C. 46110(a) and
46111(e). The TSA Administrator may seek such review if it is
determined that the Review Panel's action will have a significant
adverse impact on carrying out 49 U.S.C. Subt. VII, Pt. A, which
establishes Federal programs to ensure safety in aviation and air
commerce.
Section 102(a) of the Aviation and Transportation Security Act of
2001 (ATSA), Public Law 107-71, 115 Stat. 597, 604 (Nov. 19, 2001)
(codified at 49 U.S.C. 115) established the TSOB. The Secretary of
Homeland Security, or the Secretary's designee, serves as the
Chairperson of the TSOB. 49 U.S.C. 115(b)(2). The other statutory
members of the TSOB are the Secretaries of Transportation, Defense, and
the Treasury, the Attorney General, the Director of National
Intelligence, or their designees, and one individual appointed by the
President to represent the National Security Council. 49 U.S.C.
115(b)(1).
When the TSOB receives an appeal from an ALJ's decision regarding a
TSA Determination of Security Threat, it must establish a Review Panel
to review the decision. 49 U.S.C. 46111(d). The members of the Review
Panel may not be TSA employees, and they must hold an appropriate
security clearance. 49 U.S.C. 46111(d)(1) and (2). A TSOB Review Panel
may affirm, modify, or reverse the ALJ's decision. 49 U.S.C.
46111(d)(3).
B. TSA Vetting Process and Redress for Determinations of Security
Threat
Following the terrorist attacks of September 11, 2001, Congress
recognized the need for an entirely new and comprehensive regulatory
regime focused on securing the transportation system. Congress enacted
many laws requiring TSA to conduct security threat assessments (STAs)
of individuals who perform security functions in or have access to the
transportation system. At present, TSA conducts STAs for more than 28
million individuals every day. The vetted populations include airport
workers, airline employees, air cargo handlers, FAA certificate
holders, individuals seeking airspace waivers, drivers hauling
hazardous materials in commerce, merchant mariners and
[[Page 17694]]
longshoremen working in ports and on vessels, trusted travelers, flight
students, chemical facility employees, and others. In accordance with
governing statutes and fundamental principles of due process, TSA
developed these vetting programs to collect ample biographic
information to verify the identity of the applicant, conduct informed
evaluations of the vetting results, and provide robust redress to
protect against incorrectly designating an individual as a threat to
national or transportation security, or of terrorism.
Of the approximately 30 million individuals TSA vets daily, over 5
million hold FAA certificates. To conduct this vetting, TSA uses the
biographic information the FAA collects from applicants and certificate
holders and compares it against several intelligence and law
enforcement databases. As part of this vetting, TSA is required to
ensure that individuals ``are screened against all appropriate records
in the consolidated and integrated terrorist watchlist maintained by
the Federal Government before being certificated'' by the FAA.\1\ TSA's
intelligence analysts review any derogatory information generated
during the vetting to determine whether the individual poses or is
suspected of posing a security threat. If TSA believes the individual
poses, or is suspected of posing, a security threat, TSA issues a
Determination of Security Threat, notifies the FAA of the Determination
of Security Threat, and asks the FAA to amend, modify, suspend, or
revoke the individual's certificates. Once the FAA takes action, the
individual, if a U.S. citizen, may appeal the Determination of Security
Threat underlying FAA's action to an ALJ.
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\1\ 49 U.S.C. 44903(j)(2)(D)(i).
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The ALJs who hear these appeals are experienced judges who are
frequently called upon to review TSA's eligibility determinations for
other transportation worker populations and who possess the appropriate
security clearance to review classified or otherwise protected
information and evidence. The ALJs receive and assess information and
evidence; hold and regulate the course of hearings; dispose of
procedural motions; and examine witnesses. The ALJ conducts a de novo
hearing, reviews the evidence and testimony presented (including the
information on which TSA based its Determination of Security Threat),
and issues a decision based on that review. Either party may appeal the
ALJ's decision to the TSOB Review Panel.
C. TSOB Review Panel Procedures for FAA Certificate Appeals
Following the first FAA certificate appeal to the TSOB Review Panel
in 2010, the TSOB Chairperson issued procedures in May 2011 for use in
all such appeals. DHS provided these written procedures directly to
litigants when they file an appeal of the ALJ's decision. All of the
2011 procedures governing briefs and motions, the conduct of
proceedings, the treatment of sensitive documents, and the standard of
review were closely aligned with the Federal Rules of Appellate
Procedure (FRAP) and administrative practice procedures. The 2011
procedures ensured that parties have adequate time to seek review,
prepare briefs, respond to opposing party assertions, request
extensions of time, and request hearings. The 2011 procedures
established the standard of review, substantial evidence on the record,
for the Review Panel to apply when reviewing evidence and reaching a
decision.
D. Summary of the IFR
DHS determined it would be best to codify the appeal procedures to
provide full transparency and consistency of process for all potential
litigants and Review Panel members, and published the IFR in August
2022.\2\ DHS based this decision on the likelihood of increasing
numbers of appeals and to ensure all TSOB Review Panels apply
consistent standards and procedures.\3\
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\2\ See Procedures of the Transportation Security Oversight
Board Review Panel Concerning Federal Aviation Administration Airman
Certificates, 87 FR 48431 (August 9, 2022).
\3\ In 2021, the TSOB Review Panel chose to apply a de novo
standard of review rather than the substantial evidence standard
required in the appeal procedures.
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Requests for review of Determinations of Security Threat are on the
rise. From 2011 to November 30, 2021, the TSOB received only one
additional appeal, which was resolved by decision of the TSOB Review
Panel on September 23, 2021. However, currently there are four
Determinations of Security Threat regarding U.S. citizens pending
review by an ALJ, and an additional six U.S. citizens have timely
initiated the redress process in response to a Determination of
Security Threat. Overall, TSA's caseload with respect to Determinations
of Security Threat increased by over 100% between Fiscal Year 2019 and
Fiscal Year 2022, in significant part due to rising investigations of
domestic terrorism-related cases in which affected certificate holders
may seek review of Determinations of Security Threat by an ALJ and then
the TSOB. Given this trend, codifying the procedures helps ensure
optimal transparency in the process for affected individuals, clear
understanding of the procedures, and consistency in the application of
the standards and procedures.
Under the Administrative Procedure Act (APA), rules involving
``agency organization, procedure, or practice'' like the TSOB Review
Panel procedures, do not require advance notice and the opportunity to
comment before becoming final.\4\ The IFR was procedural within the
meaning of the APA because it merely codified current practice and did
not alter the rights of or substantive standards applied to an
individual appearing before the TSOB Review Panel, such as whether the
individual poses or is suspected of posing a threat. Nevertheless, DHS
agrees with the views of the Administrative Conference of the United
States (ACUS) that public comment serves a critical role in the
development of sound policy, and that agencies should solicit comment
when it is possible to do so.\5\ Consequently, DHS requested comments
on the IFR from the public.
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\4\ See 5 U.S.C. 553 (b)(A). See also 87 FR 48431, 48436-37 for
a full discussion of the use of procedural rules.
\5\ See ACUS Recommendation 92-1, The Procedural and Practice
Rule Exemption from the APA Notice-and-Comment Rulemaking
Requirements, (December 18, 1992).
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The IFR generally codified the written 2011 TSOB Review Panel
procedures with certain updates and clarifications where necessary for
full transparency. The rule addressed appeals to the TSOB Review Panel
from an ALJ's decision concerning TSA's Determination of Security
Threat and did not apply to other matters that the TSOB oversees. The
IFR established requirements for TSOB Review Panel members and the
docket clerk; the standard of review applicable to appeals; timelines
for appeals and responses; filing and supplementing the record; entry
of appearance; motions, briefs, and the administration of hearings;
procedures for the use of classified materials, sensitive security
information, and other protected information; and the effect of the
TSOB Review Panel action.\6\
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\6\ See 87 FR 48431, 48433-36 for an explanation of the IFR rule
text.
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II. Response to Comments on the IFR
DHS received comments on the IFR from two organizations: the Air
Line Pilots Association, International (ALPA) and the Aircraft Owners
and Pilots Association (AOPA). ALPA represents the safety and security
interests of over 66,000 professional airline pilots flying
[[Page 17695]]
for 41 airlines in the United States and Canada. AOPA represents
300,000 members who operate 85% of all general aviation aircraft
operating in the United States. Over 72,000 members of AOPA participate
in AOPA's Pilot Protection Services, which provides legal services to
individuals who are subject to FAA and TSA enforcement actions. The
comments relate to some general matters and several specific topics,
including the use of electronically/electronic service for service of
documents; standard of review the TSOB Review Panel applies; process
for non-governmental counsel to have access to protected information;
precedential nature of TSOB Review Panel decisions; publication of TSOB
Review Panel decisions; and the treatment of constitutional issues.
A. General Matters
ALPA suggested that DHS include in this response to comments a full
discussion of the procedures that currently apply to the appeal of an
FAA certificate holder to an ALJ following revocation, suspension, or
modification of the certificate. TSA provides each affected certificate
holder actual notice of those procedures by letter when the certificate
action is taken by the FAA. Also, TSA is in the process of amending its
regulations to codify those procedures in 49 CFR part 1540. Because
this rule concerns procedures applicable to an appeal to a TSOB Review
Panel, we believe a full discussion of the current appeal process to an
ALJ in this document is unnecessary and may be confusing to the public.
AOPA encourages DHS to periodically reexamine and update these
regulations. For any future amendments to these rules, AOPA also
encourages DHS to continue its practice of seeking public comment on
procedural rules. DHS and its components periodically review all
regulations in accordance with Executive Orders \7\ and sound
regulatory policy. This review may result in changes to existing rules,
the development of new standards, or terminating standards that are no
longer necessary. DHS will follow that same process with this
rulemaking and revise the language as necessary.
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\7\ See Exec. Order No. 13610, 77 FR 28467 (May 10, 2012); Exec.
Order No. 13563, 76 FR 3821 (Jan. 18, 2011); see also, Periodic
Retrospective Review, 86 FR 36075 (Jul. 8, 2021); Learning from
Regulatory Experience, 82 FR 61738 (Dec. 29, 2017); Retrospective
Review of Agency Rules, 79 FR 75114 (Dec. 17, 2014); Review of
Existing Agency Regulations, 60 FR 43108 (Aug. 18, 1995).
.
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B. Use of Electronic Service of Documents
AOPA supports filing and serving documents electronically, as
permitted by Sec. 126.13 of this rule, and suggests that the rule also
address how to consent to electronic service, how to establish evidence
of electronic service, and how to compute time when documents are filed
or served electronically. Also, AOPA recommends that the rule establish
a presumption of consent to future electronic service when a document
is transmitted electronically and there is evidence to confirm its
successful transmission. AOPA encourages the TSOB Review Panel to
consider providing automated receipts in response to electronic filings
made to the TSOB Docket Clerk. AOPA suggests adding the following
language to Sec. 126.13(b): `A party may consent to service via
electronically/electronic service by filing a document expressly
stating such a preference with the TSOB Docket Clerk and serving a copy
on all other parties.' AOPA asks DHS to adopt language from the Federal
Rule of Appellate Procedure (FRAP) 26, Computing and Extending Time,
for use in the procedures before the TSOB Review Panel.
DHS Response: DHS agrees with adding the suggested language to
Sec. 126.13(b) to provide a method by which parties may consent to
service of documents electronically. Therefore, we have revised the
text in Sec. 126.13(b) to state that a party may consent to electronic
service by filing a document that expressly states such a preference
with the TSOB Docket Clerk, and serving a copy on all other parties.
DHS is not inclined at this time to establish a presumption of
consent to future electronic service when a document is transmitted
electronically and there is evidence to confirm its successful
transmission. To the extent we have individuals who initiate an appeal
without counsel and use electronic means to do so, they may have no
knowledge of the presumption this establishes for future service of
documents. Generally, parties should knowingly and affirmatively
consent to changes in service, not by presumption. Moreover, the new
language in Sec. 126.13(b) creates a simple process by which
individuals may elect to establish a presumption of consent to future
electronic service at any time.
DHS is not inclined to revise the rule text identifying the filing
date and computation of time for documents filed through
electronically/electronic service. The existing rule text in Sec.
126.13(c) establishes that service of all documents, regardless of
transmittal method, occurs on the date on which the TSOB Docket Clerk
receives the document. We believe the Docket Clerk is in the best
position to determine whether it is necessary to set up automated
electronic receipts for documents filed through electronically/
electronic service or whether another kind of action is preferable.
We believe adopting the FRAP Rule 26 for TSOB Review Panel
proceedings is not advisable at this time. Rule 26 defines terms used
in the text of the FRAP on time computation, including next day, last
day, and legal holiday. These terms are not used in the TSOB Review
Panel rulemaking, and thus, there is no need to define them. Also, the
FRAP Rule 26 explains that Saturdays, Sundays, and legal holidays must
be counted when computing timelines. We believe there is no need to add
this language because the TSOB Review Panel rule does not suggest or
provide exceptions for these days when computing time. The FRAP Rule 26
provides procedures that apply when the Clerk's Office is inaccessible;
given the extensive use of electronically/electronic service for
service of documents today, we believe there is little need to provide
for circumstances when the ``Clerk's Office'' is inaccessible for TSOB
Review Panel proceedings. The TSOB Review Panel does not rely on a
typical ``Clerk's Office'' that has a stationary presence in
courthouses and handles a high volume of judicial proceedings. Rather,
the rule establishes that an individual from within the DHS Office of
the General Counsel serves as the TSOB Docket Clerk, available to
receive documents electronically at virtually any time. For all of
these reasons, we believe the TSOB Review Panel rule text is
sufficiently clear on the computation of time and changes are
unnecessary.
C. Standard of Review
Section 126.9(a) establishes that the standard of review the TSOB
Review Panel applies is substantial evidence, and in paragraph (b)
states that the Review Panel will not consider the constitutionality of
any statute, regulation, Executive Order, or order issued by TSA. Both
ALPA and AOPA commented on this section. AOPA seeks confirmation that
while the TSOB Review Panel gives deference to an ALJ's factual
findings supported by substantial evidence in the record, the Review
Panel reviews legal determinations made by the ALJ using the de novo
standard of review. Also,
[[Page 17696]]
AOPA suggests that DHS either remove Sec. 126.9(b) or amend it to
include a statement that parties must raise constitutional issues at
the agency level to preserve them for judicial review.
ALPA states that the substantial evidence standard of review is not
indicated or required by 49 U.S.C. 46111(d). ALPA asserts that this
standard of review is too restrictive to provide adequate procedural
and substantive right protections. Also, ALPA suggests that because the
rule does not include a definition of substantial evidence, it is open
to interpretation by each TSOB Review Panel. ALPA asserts that DHS
should amend Sec. 126.9 to follow or incorporate the standard of
review the National Transportation Safety Board (NTSB) uses in its
Rules of Practice in Air Safety Proceedings, codified at 49 CFR 821.49.
Those procedures apply to the NTSB review of ALJ decisions that affirm,
modify, amend, or reverse FAA Certificate actions related to safety
issues. The NTSB procedures permit the Board to consider if the
``findings of fact are supported by a preponderance of reliable,
probative, and substantial evidence.''
DHS Response: DHS is adding a definition of the term ``substantial
evidence'' to the rule to make certain there is no room for confusion
or interpretation as to what the standard means. It is a term that is
widely used and generally not subject to varying interpretations, but a
definition of it in the rule text provides optimum clarity for all
parties associated with TSOB Review Panel proceedings. The definition
is ``substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'' This is the
standard of review that is applied in administrative review proceedings
like those of the TSOB Review Panel.
In practical terms, the substantial evidence standard is more
deferential to the decision below than the preponderance of the
evidence standard of review. A preponderance of the evidence means
there is a greater than 50% chance an assertion or decision is true,
and typically applies to civil court cases. The substantial evidence
standard does not require a reviewing body to find that the decision
below is more likely than not to be true, but that the decision is
reasonable given all of the information presented. The NTSB procedural
rule that ALPA urges DHS to use for this rule requires the Board to
find that the ALJ's findings of fact are supported by ``a preponderance
of reliable, probative, and substantial evidence,'' which is a hybrid
standard that combines preponderance of the evidence with substantial
evidence and probative evidence.
DHS does not wish to apply the NTSB standard to TSOB Review Panel
cases. DHS agrees with ALPA's statement that 49 U.S.C. 46111(d) does
not reference or require the substantial evidence standard of review
for TSOB Review Panel proceedings. However, use of the substantial
evidence standard for appellate review of administrative proceedings at
the Federal level is commonplace.\8\ The use of this standard for
reviewing an ALJ's decision recognizes the significant expertise ALJs
bring to the Federal administrative process. ALJs handle a variety of
subject matters, legal issues, motions, witness testimony, statutory
and regulatory interpretation, and matters advanced by pro se
appellants as well as those represented by counsel. Most ALJs have very
active dockets that require sound and timely decision-making. To
require a reviewing body like the TSOB Review Panel to use the less
deferential de novo standard for reviewing ALJ proceedings would
increase the time and resources needed to resolve appeals, with scant
justification that is it necessary. Congress and agencies would not
authorize the use of the substantial evidence standard of review so
widely if evidence existed demonstrating that proceedings before ALJs
were insufficient or wrought with problems.
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\8\ See, e.g., 29 CFR 24.110(b), which mandates the use of the
substantial evidence standard by the Department of Labor
Administrative Review Board (ARB) when reviewing an ALJ decision.
See also, Stone & Webster Constr., Inc. v. U.S. Dep't of Labor, 684
F.3d 1127, 1132 (11th Cir. 2012), in which the court details the
effect of the standard's codification on later appeals (``As a
result, we now show less deference to an ARB that disturbs the
factual findings of an ALJ.''); 33 U.S.C. 921(b)(3) and 20 CFR
802.301(a), Department of Labor Benefits Review Board; 42 CFR
3.548(h), Department of Health and Human Services Departmental
Appeals Board; 32 CFR 200.2021(h), Defense Health Agency; 42 U.S.C.
405(g), Social Security Administration; 12 U.S.C. 1848, Federal
Reserve Board; 49 CFR 386.67(b), Federal Motor Carrier Safety
Administration.
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In addition to the factors discussed above, it is important to note
that Sec. 126.7 of the current IFR authorizes the TSOB Review Panel to
remand a matter to the ALJ to ``address particular issues or consider
additional testimony or evidence.'' Thus, if the TSOB Review Panel has
concerns about the outcome reached at the ALJ level or cannot reach a
decision on appeal, it can send the matter back to the ALJ with
instructions on examining issues and obtaining additional testimony or
evidence. This section enables the TSOB Review Panel to seek correction
or clarification of issues that are vague, questionable, or unsupported
by the record, and essentially to correct the kind of procedural and
substantive shortcomings ALPA expressed concern about in its comments.
Also, ALPA suggests DHS amend Sec. 126.19 to permit the TSOB Review
Panel to remand the case to the ALJ for additional proceedings upon
motion of the parties and ``a showing of good cause.'' DHS sees value
in this suggested revision to the IFR and is adding this language as
new Sec. 126.19(b)(3). This addition to the rule text further
minimizes the need to require a higher standard of review such as a
preponderance of the evidence or the hybrid standard the NTSB uses in
its appellate procedures.
D. Review of ALJ Legal Determinations and Objections to Prejudicial
Errors
Both ALPA and AOPA submitted comments asserting that an ALJ's legal
determinations and prejudicial errors of law and procedure should
receive special treatment by the TSOB Review Panel. AOPA seeks
confirmation that while the TSOB Review Panel gives deference to an
ALJ's factual findings based on substantial evidence in the record, the
Review Panel applies de novo review to any legal determinations the ALJ
makes. ALPA asserts that Sec. 126.23(a)(2) should be revised to state
that a party's objections to an ALJ's prejudicial errors of the law or
procedure are reviewable by the TSOB Review Panel.
DHS Response: DHS confirms that appellate courts and administrative
review panels such as the TSOB Review Panel apply the substantial
evidence standard to factual issues, but apply essentially a de novo
review of legal determinations an ALJ makes. Reviewing panels and
courts retain the authority to review and determine purely legal
questions to determine if they are erroneous as a matter of law when
raised on appeal, without deference to the lower court. In FAA
certificate holder cases appealed to the TSOB Review Panel, the
sustainability of the underlying security threat determination is based
on a factual determination, subject to the substantial evidence
standard of review.
DHS is not inclined to revise Sec. 126.23(a)(2) to state that a
party's objections to an ALJ's prejudicial errors of law or procedure
are reviewable by the TSOB Review Panel because it is unnecessary. The
current language in Sec. 126.23(a)(2) states the appellant must
``enumerate the appellant's objections to the ALJ's decision'' in the
appellant's brief perfecting the appeal. This language is broad and
permits the
[[Page 17697]]
appellant to raise perceived prejudicial errors of law or procedure in
the appeal.
E. Access to Protected Information
AOPA and ALPA commented on the need for the appellant and counsel
to have access to protected information during the TSOB Review Panel
proceeding. Both organizations recommend DHS create a process for non-
government counsel representing non-government parties in TSOB Review
Panel actions to request designation as having a ``need to know,'' be
appropriately vetted, and once designated, have access to classified
and other protected information, and SSI.
The IFR rule text in Sec. 126.17 addresses procedures for the use
of classified, sensitive security, and other protected information. The
rule defines ``other protected information'' as information the
government is authorized to withhold under statute, regulation, or
Executive Order. Paragraph (b) in Sec. 126.17 prohibits the TSOB
Review Panel from disclosing classified or other protected information
to a non-government party or counsel, and prohibits disclosing SSI to
those individuals unless TSA determines the party had a preexisting
need to know specific SSI as a covered person under 49 CFR 1520.7 and
1520.11.
DHS Response: DHS believes it is inadvisable to establish a process
for non-government individuals to have access to classified or other
protected information during TSOB Review Panel proceedings. There is
longstanding precedent on the need for strict controls over classified
and protected information, and we do not find sufficient justification
here to alter those policies and procedures. We believe unintended and
serious consequences may occur as the circle of individuals with access
to this information grows, particularly where there is very little
ability to track or prevent additional sharing of the information.
However, in accordance with the SSI regulations codified at 49 CFR part
1520, appellants and their counsel may have access to SSI that is
associated with their TSOB Review Panel case. In other words, Sec.
126.17(b) neither expands nor contracts a party's authorization to
receive SSI in accordance with 49 CFR part 1520.
E. Publication and Precedential Nature of Decisions
AOPA recommends that DHS revise Sec. 126.27 to include a method
for publishing TSOB Review Panel decisions in such a way as to protect
an affected individual's identity. Also, AOPA recommends DHS revise
Sec. 126.29(b) to state that TSOB Review Panel actions are
precedential for future ALJ decisions and TSOB Review Panel actions.
AOPA asserts that providing precedential value to TSOB Review Panel
decisions will bring greater consistency and efficiency to the process,
and assist potential appellants in making litigation decisions.
DHS Response: DHS does not believe it is advisable or necessary to
publish decisions or amend the rule to state that the decisions serve
as precedent for future ALJ and TSOB cases. The number of cases is very
low and the fact patterns so unique that it is difficult to see how one
case could be precedential for another. Also, as security threats
evolve over time, the factors that contribute to determining whether an
individual poses a security threat may also evolve. Attaching
precedential authority to older decisions may result in improper or
incongruous results. Since DHS is not inclined to publish decisions at
this point in time, it is not necessary to address AOPA's
recommendation for a process to protect the identity of an affected
party when publishing a decision.
F. Challenging TSOB Panel Membership
AOPA recommends that DHS provide a mechanism for a party to file a
motion to disqualify a TSOB Review Panel member due to conflict of
interest concerns.
DHS Response: DHS does not believe there is sufficient
justification for this recommendation. There are checks in the TSOB
appointment process that minimize the risk that a Panel member would
have a conflict of interest concerning a specific case. Panel members
must be a member of the Senior Executive Service or a Senior Level
employee, which typically means the individual has a longstanding
career in the government and is subject to strict standards of ethics.
Panel members also may not be employed by the FAA or TSA. These two
requirements minimize the chance that a Panel member has a conflict
related to a specific FAA certificate revocation or suspension.
G. Add Court of Appeals Filing Deadline
ALPA recommends that DHS revise Sec. 126.29 to include the Court
of Appeals filing deadline, which is 60 days from the date the TSOB
Review Panel issues its decision, under 49 U.S.C. 46110.
DHS Response: DHS is amending Sec. 126.29 to state that an appeal
of the TSOB Review Panel must be done in accordance with the
requirements of 49 U.S.C. 46110, which allows for 60 days. This
provides litigants with the information necessary to ensure timely
appeals, and if the statute changes in the future, there would be no
need to also amend this regulation.
H. Constitutional Issues
AOPA recommends that DHS remove paragraph 126.9(b) or revise it to
state that constitutional issues must be raised before the agency in
order to be preserved for judicial review.
DHS Response: DHS is not inclined to remove or revise paragraph
(b). The language states that a TSOB Review Panel will not review the
constitutionality of any statute, regulation, Executive Order, or order
issued by TSA. This sufficiently puts litigants on notice that
constitutional matters do not fall within TSOB Review Panel authority,
but we do not believe it necessary to provide litigants information on
when or where those issues must be raised outside of the TSOB Review
Panel proceedings.
III. Discussion of the Final Rule and Summary of Changes
The language below describes the rule text as it appears in the IFR
and where DHS is changing the rule text in response to comments
received.
Sec. 126.1 Purpose and Scope
Section 126.1 describes the general purpose and scope of part 126,
which is to establish procedures by which a TSOB Review Panel is
appointed and reviews an appeal from an ALJ's decision regarding a TSA
Determination of Security Threat. The procedures apply to appeals
involving applications for certificates that are denied or held in
abeyance as well as orders to amend, modify, suspend or revoke FAA
certificates. Congress left to DHS's discretion the development of
detailed procedures for TSOB review of an appeal from an ALJ's
decision.
Sec. 126.3 Definitions
Section 126.3 provides definitions of important terms that are used
in the rule. The 2011 procedures did not include a definition section,
but based on the experience DHS has gained in prior TSOB Review Panel
cases and other administrative review programs DHS and its components
administer, establishing definitions of key terms aids all parties
engaged in the review process. These definitions are taken from
existing statutory, regulatory, or Executive Order language, or reflect
common usage meanings. DHS is adding a definition of the term
``substantial evidence'' as discussed in II.C. above.
`Classified information' has the same meaning the term has in
Executive
[[Page 17698]]
Order 13526, Classified National Security Information, or its successor
Executive Order. The term `communication technology' means telephone or
videoconferencing platform. The term `Sensitive Security Information'
(SSI) is information described in 49 CFR 1520.5. The rule defines
`other protected information' as any other information that the
government is authorized by statute, regulation, or Executive Order to
withhold. The rule defines `Transportation Security Oversight Board
(TSOB)' as the board established pursuant to 49 U.S.C. 115. Finally,
`Transportation Security Oversight Board (TSOB) Review Panel' is
defined as the panel established pursuant to 49 U.S.C. 46111(d) to
consider an appeal from a decision of an ALJ as the result of a hearing
under 49 U.S.C. 46111(b).
Sec. 126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk
Section 126.5(a) provides that TSOB members must designate
individuals who meet specific criteria to serve in a pool of potential
Panel members for a period of two years. The criteria for nominees are
listed in paragraphs (a)(1) through (5). The nominee must be a member
of the Senior Executive Service (SES) or a Senior Level (SL) employee
to ensure that he or she possesses the appropriate level of experience
to evaluate the issues and record before the Panel. The nominee must
hold the appropriate security clearance to ensure that he or she can
effectively review an administrative record that contains classified
material. Nominees may not be employees of TSA or FAA, which ensures an
unbiased review of TSA's security threat determination. Although 49
U.S.C. 46111(d) excludes only TSA employees from membership on a TSOB
Review Panel, the TSOB Chairperson has determined that FAA employees
should also be excluded. Exclusion of both TSA and FAA employees from
participation in the TSOB Review Panel pool avoids the possible
appearance of impartiality or lack of independent review. To the extent
practicable, the nominee will have a legal background and be engaged in
the practice of law on behalf of the U.S. government. Although these
qualifications were not included in the 2011 procedures, through
experience in this and other administrative appeal programs, DHS has
found that individuals with this background enhance a Review Panel's
ability to efficiently and accurately assess the legal arguments the
parties assert during the appeal, and to prepare cogent decisions.
Finally, to the extent practicable, a nominee will be familiar with
transportation security issues. This factor was not included in the
2011 procedures, but DHS has found that such a background enhances the
efficiency and accuracy of the review process.
Paragraph (b) provides that TSOB members must designate officials
for the TSOB Review Panel when each two-year period expires. Paragraph
(c) states that the General Counsel of the Department of Homeland
Security, or the General Counsel's designee, will appoint an individual
from within the Office of the General Counsel to serve as the TSOB
Docket Clerk. The TSOB Docket Clerk serves as the Review Panel's point
of contact for the public and the parties to ALJ proceedings. Paragraph
(d) states that when the TSOB Docket Clerk receives a properly and
timely filed appeal from an ALJ's decision, the TSOB Chairperson will
select at least three individuals from the Review Panel pool to serve
on a Review Panel to review the ALJ's decision. The TSOB Chairperson
has discretion to choose which individuals from the pool will serve on
a TSOB Review Panel. In making selections for a TSOB Review Panel, the
TSOB Chairperson will, to the extent practicable, select at least one
person with a legal background to serve as a Panel Member. A three-
member Review Panel allows for appropriate deliberation and the
exercise of independent judgment, and is similar to the size of other
Federal Government administrative review panels and the panels that
hear cases in the U.S. Courts of Appeals.\9\
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\9\ See 28 U.S.C. 46(b) (providing for three-judge panels to
hear and determine cases in the U.S. Courts of Appeals); 49 CFR
1108.6 (providing for a three-member panel of arbitrators for the
Surface Transportation Board).
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Sec. 126.7 Function of TSOB Review Panel
Section 126.7 requires a TSOB Review Panel to review an ALJ's
decision and affirm, modify, or reverse that decision, or remand the
matter to the ALJ for reconsideration.
Sec. 126.9 Scope and Standard of Review
Section 126.9(a) states that the standard of review a TSOB Review
Panel uses in considering an ALJ's decision is whether the decision is
supported by substantial evidence in the record. The term ``standard of
review'' refers to the degree of deference a reviewing court gives to
the court below. The 2011 procedures stated that the standard of review
is whether the ALJ's decision reasonably supports the conclusion that
the FAA certificate holder does or does not pose a security threat,
which is equivalent to ``substantial evidence in the record.''
Substantial evidence means ``such relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.'' \10\ In
contrast, the ALJ applies a de novo standard of review to TSA's
Determinations of Security Threat for FAA certificate holders. A ``de
novo'' standard of review applies the least amount of deference to the
court below; the reviewing court examines the evidence as though it is
being considered for the first time, allowing the reviewing court to
substitute its own judgment about the application of the law to the
facts.
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\10\ See Richardson vs. Perales, 402 U.S. 389 (1971).
---------------------------------------------------------------------------
Generally, the substantial evidence standard of review is used in
civil cases relating to administrative decisions at the Federal level.
TSA administers several vetting programs with robust redress processes
that, like the TSOB Review Panel procedures, include multiple levels of
review. One transportation-related example is the review process for
the Transportation Worker Identification Credential (TWIC) and
Hazardous Materials Endorsement (HME) programs found at 49 CFR 1515.5
through 1515.11. TWIC and HME applicants undergo an STA that includes
criminal, immigration, terrorist, and other database checks. See 49 CFR
part 1572. If TSA determines a TWIC or HME applicant poses a security
threat, TSA issues a written preliminary determination of threat
assessment that includes information on how to appeal the assessment to
TSA. TSA reviews all documents the applicant provides in the appeal,
essentially providing de novo review of the case, and issues a final
determination based upon its review of all relevant information
available to TSA. The applicant may then appeal the final determination
to an ALJ, and the ALJ applies the substantial evidence standard of
review. An unsuccessful applicant may then appeal the ALJ's decision to
the TSA Final Decision Maker, who also applies the substantial evidence
standard of review. These regulations, issued through notice-and-
comment rulemaking along with the corresponding STA requirements, have
been in use for over a decade.
Cases that reach the TSOB Review Panel have undergone multiple
levels of review within TSA and have been reviewed by an ALJ. TSA has
access to all of the factual and intelligence information generated
during the vetting of the FAA certificate holder, and the expertise to
evaluate whether the information supports a security threat
[[Page 17699]]
determination. Then, the ALJ applies a de novo standard of review to
determine whether TSA correctly applied its standard on whether an
individual poses or is suspected of posing a security threat. This de
novo review includes the review of information and evidence; examining
witnesses and weighing the veracity and probity of their testimony; and
determining whether a preponderance of the evidence supports the
security threat determination. Consequently, the TSOB Review Panel
ought to apply the more deferential substantial evidence standard of
review, not a de novo standard. This standard of review requires the
Panel to determine whether a reasonable person might accept the
evidence presented as adequate to support the ALJ's conclusion.
The 2011 and 2021 Review Panels relied on the 2011 procedures but
applied different standards of review. Codifying procedures in this
rule avoids future panels using different standards of review.
Paragraph (b) states that a TSOB Review Panel will not consider the
constitutionality of any statute, regulation, Executive Order, or order
issued by TSA. A TSOB Review Panel is an administrative body that lacks
the authority or expertise to decide constitutional questions.\11\
Constitutional claims or questions must be addressed by an appropriate
U.S. Court of Appeals reviewing the TSOB Review Panel's action. When
making its decisions, the Review Panel considers the entire record of
the proceedings before the ALJ. The Review Panel may also consider
additional materials that are properly added to the record through a
duly filed motion, as permitted in Sec. 126.19(b).
---------------------------------------------------------------------------
\11\ See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215
(1994) (``[W]e agree that adjudication of the constitutionality of
congressional enactments has generally been thought beyond the
jurisdiction of administrative agencies.''); Mont. Chapter of Ass'n
of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1167 (9th
Cir. 1975) (``[F]ederal administrative agencies have neither the
power nor the competence to pass on the constitutionality of
statutes.'').
---------------------------------------------------------------------------
Sec. 126.11 Counsel
Section 126.11(a) gives all parties to proceedings before a TSOB
Review Panel the right to be represented by counsel. Because Review
Panel proceedings are civil proceedings that cannot result in a party's
incarceration, the Federal Government is not required to provide legal
counsel to represent a party who is unable to pay for an attorney.
Thus, parties appearing before a TSOB Review Panel must obtain counsel
at their own expense. TSA will designate legal counsel from among the
attorneys in the DHS Office of the General Counsel who cover TSA's
programs and issues on a daily basis, to represent TSA in Review Panel
proceedings. This section also states that counsel for TSA must hold a
security clearance commensurate with the information in the record on
appeal. This requirement was not explicitly listed in the 2011
procedures, but has always been required for TSOB and similar
administrative appeal procedures.
Section 126.11(b) provides that the General Counsel of DHS, or the
General Counsel's designee, will appoint legal counsel who, in the
General Counsel's discretion, has the requisite knowledge and
experience to effectively assist a TSOB Review Panel reach a sound
decision. The Review Panel's counsel facilitates communication between
the Docket Clerk and the Review Panel, and assists with legal research,
drafting documents, and similar tasks consistent with typical legal
support. Appointed counsel must hold a security clearance that enables
access to all materials in the record under review.
Sec. 126.13 Notice of Appeal and Service
Section 126.13 instructs parties on how to request TSOB review of
an ALJ's decision and how to serve notice on all other parties. Any
party to proceedings before the ALJ may file a notice of appeal with
the TSOB via certified mail or electronically/electronic service. DHS
strongly encourages parties to file all documents and consent to
service via electronically/electronic service to the TSOB Docket Clerk.
Allowing parties to file a notice via electronically/electronic service
will expedite the receipt of documents and the review process.
Section 126.13(a) provides that a notice of appeal must be filed
within 60 calendar days of the date of issuance of the ALJ's decision.
This time limit is drawn from Rule 4 of the FRAP, which generally
allows parties to a civil action in U.S. District Court 60 days to file
a notice of appeal with an appropriate U.S. Court of Appeals in a case
in which the United States or a Federal agency is a party.
Section 126.13(b) provides the addresses for the TSOB Docket Clerk
and instructions for filing any document with a TSOB Review Panel. As
discussed in II.B above, DHS is adding language to this paragraph to
permit litigants to expressly state a preference for service by
electronically/electronic service.
Section 126.13(c) specifies the date on which a document is deemed
filed. The date of filing is the date that the document is received by
the TSOB Docket Clerk.
Section 126.13(d) provides that a TSOB Review Panel generally must
reject and summarily dismiss a notice of appeal that is filed after the
expiration of the 60-day deadline for appealing an ALJ's decision. The
Review Panel, in its discretion, may accept the untimely notice upon a
written showing of good cause for failing to meet the deadline.
Section 126.13(e) provides that if a party files a notice of appeal
but fails to perfect the appeal by timely filing a supporting brief, a
TSOB Review Panel may dismiss the appeal.
Section 126.13(f) explains that if an appeal is dismissed in
accordance with paragraph (d) or (e), the ALJ's written decision
becomes final. This provision did not appear in the 2011 procedures,
but DHS is adding this to ensure all parties understand the practical
effect of a dismissal.
Sec. 126.15 Entry of Appearance
Section 126.15 requires parties and counsel to enter appearances in
writing before a TSOB Review Panel within 15 calendar days of being
served with a notice of appeal. This requirement was not part of the
2011 procedures, but DHS is adding it to ensure efficiency and
timeliness in the review process based on prior experience in TSOB.
Also, the requirement to file an entry of appearance is consistent with
Rule 12 of the FRAP.
Sec. 126.17 Procedures for Classified Information, Sensitive Security
Information (SSI), and Other Protected Information
Section 126.17 provides the procedures for handling classified
information, SSI, and other protected information during proceedings
before a TSOB Review Panel. This section did not appear in the 2011
procedures, but the processes outlined here reflect the current
practice of the review panels. The procedures are consistent with the
statutory provisions regarding the use of classified evidence in
hearings pursuant to 49 U.S.C. 46111(g), and the protection of SSI set
forth in 49 CFR 1520.9. This section sets deadlines for TSA with
respect to protected information to aid efficiency and transparency in
the process. Section 126.17(a) provides that TSA must file a notice of
protected information within 30 calendar days of filing or being served
with a notice of appeal. The notice of protected information must
indicate whether the record of proceedings before the ALJ contains
classified information or SSI. This notice will alert a TSOB Review
Panel to take appropriate steps to
[[Page 17700]]
protect the record from disclosure to non-government parties or the
public. The TSOB Review Panel will review materials in the record
containing classified information or SSI in camera or during an ex
parte proceeding with TSA.
Section 126.17(b) provides that a TSOB Review Panel may not
disclose classified information or SSI, except to government parties
and government counsel who have the appropriate security clearance and
a need to know the information to be disclosed.
Sec. 126.19 Filing and Supplementing the Record
Section 126.19(a) requires TSA to file a complete record of
administrative proceedings, including a certified and un-redacted
transcript of all proceedings before the ALJ and all material filed
with the ALJ, with the TSOB Review Panel within 30 calendar days after
filing or being served with a notice of appeal. The TSOB Review Panel
needs the full record in order to conduct a comprehensive review of the
ALJ's decision. To ensure that non-government parties have access to a
redacted copy of the transcript of proceedings before the ALJ, this
subsection permits non-government parties to file a motion requesting a
redacted copy of any part of the full administrative record that they
do not possess.
Section 126.19(b) permits a party to supplement the record
presented to the TSOB Review Panel when (i) anything relevant to an
issue on appeal occurs or is created after the ALJ issues a decision,
or (ii) the party can show good cause for failing to submit material
for the record at an earlier stage of the administrative proceedings.
As discussed in II.C. above, DHS is adding paragraph (b)(3) to permit
the TSOB to remand the case to the ALJ for additional proceedings upon
motion of the parties and ``a showing of good cause.''
Sec. 126.21 Motions
Section 126.21(a) provides the procedures for filing a motion with
a TSOB Review Panel. The requirements are the same as those for filing
a brief, which are modeled on Rule 28 of the FRAP.
Section 126.21(b) explains the duty to confer with all other
parties before filing any motion. If a party seeks relief from a TSOB
Review Panel (for example, extension of a deadline), that party must
file a motion requesting the relief. Before filing the motion, the
party seeking relief must first confer, or make reasonable, good-faith
efforts to confer, with all other parties in an effort to obtain their
consent to the relief requested. The 2011 procedures do not include
this section, but DHS added it to improve efficiency and
communications. It is consistent with Rules 26(c)(1) and 37(a)(1) of
the Federal Rules of Civil Procedure. After conferring or attempting to
confer, the party seeking relief may file the motion with the TSOB
Review Panel. The moving party shall state in the motion, or in a
certificate attached to the motion, the specific efforts made to
confer. The moving party shall also state in the motion the other
parties' positions with regard to the relief requested. If no party
opposes the relief requested in a motion, the moving party shall
include ``Unopposed'' in the motion's title. These provisions are
modeled on Local Rules of Practice adopted by many U.S. District
Courts, including, for example, the Rules of the United States District
Court for the District of Columbia, Local Rule 7(m) (September 2015),
Local Rules for the United States District Court, Eastern District of
Virginia, Local Civil Rule 7 and Local Criminal Rule 47 (December 1,
2020). They are designed to promote cooperation between the parties and
help resolve issues quickly and efficiently.
Section 126.21(c) provides for motion hearings using communication
technology. As defined in this rule, ``communication technology'' means
telephone or a videoconferencing platform. Using videoconferencing to
conduct motion hearings allows a TSOB Review Panel to efficiently
resolve motions without burdening the parties. The Review Panel will
consider the availability of adequate security protocols in making
determinations concerning motions hearings.
Section 126.21(d) gives a TSOB Review Panel discretion to grant or
deny a motion at any time after it is filed. This provision allows a
Review Panel to quickly and efficiently resolve routine motions (for
example, motions for an extension of a deadline) without waiting for
all parties to file a response.
Section 126.21(e) permits a TSOB Review Panel to establish
additional procedural requirements regarding motion practice in
response to the exigencies of a particular appeal. Additional
procedural requirements apply on a case-by-case basis. For example, if
a motion raises an unusually complex issue, a Review Panel may find it
appropriate to allow the non-moving parties to file a response that is
longer than the default 35-page limit. Section 126.21(e) gives the
Review Panel the discretion to modify the page limit. This discretion
is crucial to establishing an efficient review process. Section
126.21(e) provides two other examples of additional procedural
requirements that a Review Panel may wish to adopt in a particular
case: time periods for filing responses and replies to motions and a
deadline for concluding all motion practice. These examples are
illustrative and not intended as an exhaustive list of permissible
additional procedural requirements for motion practice. Section
126.21(e) only concerns basic procedural requirements regarding motion
practice, and it does not afford a TSOB Review Panel discretion to
adopt procedural requirements unrelated to motion practice or to
fundamentally change the review process prescribed in this part. A TSOB
Review Panel will communicate specific additional procedural
requirements regarding motion practice to the parties during
proceedings or by serving them with orders.
Sec. 126.23 Briefs
Section 126.23(a) and (b) enumerate the procedures and deadlines
for filing briefs with a TSOB Review Panel. These subsections are
modeled after Rule 28 of the FRAP. A party appealing the ALJ's decision
(an appellant) must perfect the appeal by filing a brief within 60
calendar days after the date on which the TSA files the administrative
record. An appellant's brief must contain a specific list of objections
to the ALJ's decision. This requirement is modeled after Rule 28(a)(9)
of the FRAP, which requires appellants to clearly list and describe
their contentions. A party not appealing the ALJ's decision (an
appellee) may file a brief in response to an appellant brief within 30
calendar days after being served with the appellant brief.
Section 126.23(c) provides the specific form for submitting briefs
to a TSOB Review Panel. The specifications are modeled on Rule 28 of
the FRAP, and they are intended to facilitate an efficient process with
the least amount of burden to the parties and the Review Panel.
Sec. 126.25 Oral Argument
Section 126.25 provides for oral argument. A TSOB Review Panel will
decide whether to grant oral argument upon receipt of a request for an
oral argument contained in a brief pursuant to Sec. 126.23(c)(5). The
TSOB Review Panel has discretion to grant or deny a request for oral
argument. The Review Panel may also order oral argument on its own
initiative if it determines that oral argument is necessary to clarify
the parties' arguments or that oral argument will improve the Panel's
understanding
[[Page 17701]]
of legal or factual issues material to the appeal.
If oral argument is held, the TSOB Review Panel has discretion to
choose the method and location. Oral argument will typically be heard
in Washington, DC, or via teleconference or videoconference. The TSOB
Review Panel will consider expense and inconvenience to the parties,
the need for information security, the quality and reliability of
available communication technology, and concern for the efficient
administration of proceedings when choosing the method and location of
oral argument.
Section 126.25(c) provides that the TSOB Review Panel may also
establish any necessary procedural rules to ensure the efficient
administration of oral argument. This allows the Review Panel to adjust
to the exigencies of a particular appeal. For example, the Review Panel
may want to grant the parties a longer amount of time for argument if
an appeal is complex and involves a large amount of evidence.
Section 126.25(d) provides that classified information and SSI may
not be disclosed during oral argument, and that a Review Panel may hold
ex parte proceedings to allow TSA to present such information.
Sec. 126.27 Deliberations and Action
Section 126.27 provides the procedures by which a TSOB Review Panel
resolves an appeal. A Review Panel will consider the transcript of the
ALJ's hearing, all material that the ALJ considered as part of the
record for decision, any properly filed supplemental material, the
parties' briefing, and, if applicable, oral argument. The Review
Panel's deliberations are closed to the public, and any materials
created by Panel members, the TSOB Docket Clerk, and the Panel's
appointed counsel for use in deliberations are not part of the final
administrative record and may not be disclosed to the public.
A TSOB Review Panel may affirm, reverse, or modify the ALJ's
decision. It may also remand the matter to the ALJ with instructions to
address particular issues or consider additional testimony or evidence.
A TSOB Review Panel requires a simple majority to decide an action. A
Review Panel is required to prepare a written explanation of its action
and serve it on the parties. The Review Panel will endeavor to act to
resolve an appeal and serve a written explanation within 60 calendar
days after the last of the following events: (1) receipt of a timely
filed appellant brief; (2) receipt of a timely filed appellee brief; or
(3) oral argument. If a Panel member disagrees with the Panel's action
or reasoning, that member may write a dissenting report to be served
with the written explanation. A Review Panel must redact all classified
information and SSI from the written explanation before serving it on
non-government parties. The written explanation will not be made
available to the public through publication.
Sec. 126.29 Effect of TSOB Review Panel Action
Section 126.29 explains the effect of a TSOB Review Panel action.
After the TSOB Review Panel acts to resolve an appeal and serves a
written explanation of its action, any person substantially affected by
the action, or the TSA Administrator if he decides that the Panel's
action will have a significant adverse impact on Federal programs to
ensure safety in aviation and air commerce, may obtain judicial review
of the action in an appropriate U.S. Court of Appeals. If judicial
review is not obtained, the action of the TSOB Review Panel is final
and binding on the parties for the purpose of resolving the particular
matter under review. As discussed in II. G. above, DHS is adding the
statutory citation of 49 U.S.C. 46110 here, which establishes when an
appeal must be filed so that litigants have that information.
Sec. 126.31 Administration of Proceedings
Section 126.31(a) describes the authority of a TSOB Review Panel to
adopt additional procedures consistent with those established in this
part. This ensures that a Review Panel has the flexibility to adjust to
the exigencies of a particular appeal. Additional procedures apply on a
case-by-case basis, and a Review Panel will communicate specific
additional procedures to the parties during proceedings or by serving
them with orders. For example, if a party or a party's counsel suffers
from poor health that renders participation in proceedings difficult, a
Review Panel may find it appropriate to adopt additional procedures to
accommodate such needs. Section 126.31(a) gives the Review Panel the
discretion to make the necessary accommodations. This discretion is
crucial to establishing an efficient review process. Other examples of
exigencies that may necessitate the adoption of additional procedures
include unexpected changes to the TSOB office facilities and technical
issues that make communication between the parties and a Review Panel
difficult. These examples are illustrative and not intended as an
exhaustive list of permissible additional procedures. The discretion
afforded by Sec. 126.31(a) is similar to that afforded by Sec.
126.21(e) above in that it also does not empower a TSOB Review Panel to
fundamentally change the review process prescribed in this part.
Section 126.31(b) provides that proceedings before a TSOB Review
Panel are rendered moot and closed if TSA withdraws its Determination
of Security Threat. If TSA withdraws its Determination, TSA will notify
the TSOB Review Panel of the withdrawal within five calendar days.
Section 126.31(c) provides that TSOB Review Panel proceedings are
generally closed to the public. DHS is adding this provision to protect
sensitive panel deliberations and discussions, and other kinds of
sensitive or protected information from disclosure, including
information regarding the conduct of individuals impacted by a
Determination of Security Threat and witnesses to that conduct that may
adversely impact these respective individuals' privacy interests. The
Review Panel may, at its discretion, decide to open its proceedings to
the public. No classified information, SSI or other protected
information will be released during an open hearing.
IV. Regulatory Analyses
A. Executive Order 12866 and Executive Order 13563
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. The Office of Management and Budget (OMB) has not
designated this rule a ``significant regulatory action'' under section
3(f) of Executive Order 12866. Accordingly, the rule has not been
reviewed by OMB.
To evaluate properly the benefits and costs of regulations, it is
important to define the baseline. DHS evaluates the impacts of this
rule against both a no action and pre-statutory baseline. According to
OMB Circular A-4, the no action baseline is what the world would
[[Page 17702]]
be like if the rule is not adopted.\12\ The pre-statutory baseline is
what the world would be like if the relevant statute(s) had not been
adopted.
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\12\ https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/.
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Relative to the pre-statutory baseline, the IFR and this final rule
increase costs. The statute mandates that an appeal from a decision of
an ALJ is made to the TSOB Review Panel. The law provides the benefits
of appeal, but it also requires government time to manage and execute
the panel's responsibilities, time of the parties to the appeal, and
time and potential associated legal fees for the appellant. The
government also incurred costs in 2011 developing the procedures for
use by the TSOB Review Panel. As of the date of this publication, the
panel has reviewed two requests for appeal. The 2011 and 2021 Review
Panels relied on the 2011 procedures, but applied different standards
of review.
Without the IFR or this final rule, the TSOB still has the
authority and duty to review appeals. As discussed above, a TSOB Review
Panel has issued two decisions based upon the 2011 procedures.
Significant attorney time and resources were spent developing the
procedures used in those cases. In the absence of a codified set of
procedural rules, this developmental process might need to be repeated
each time an appeal is filed with the TSOB. While DHS believes the IFR
did not impose any new costs (given that TSOB Review Panels would
continue to issue decisions even if this rule was not promulgated),
publication of the IFR did provide several benefits which are discussed
qualitatively below.
Codifying TSOB Review Panel procedures before the conclusion of
presently pending and future ALJ proceedings eliminate the need to rely
on the 2011 procedures. In addition, codifying TSOB Review Panel
procedures serves the public's interest in government transparency,
consistency in administrative review processes, and certainty of
expectations regarding government operation. In the absence of codified
procedures, the public would not have notice of the details regarding
how a TSOB Review Panel is selected and operates, and U.S. citizens who
may be adversely affected by FAA certificate action would not have a
complete picture of the administrative process by which they may
challenge TSA's Determination of Security Threat. Codified procedures
allow the public to be informed about the operation of the Federal
Government. Codification also provides certainty to U.S. citizens who
may be adversely affected by FAA certificate action. This allows them
to make informed decisions about whether to challenge TSA's
Determination, instill confidence that they will have a full and fair
opportunity to be heard, and plan for the entire administrative review
process. Codified procedures provide the public with confidence that
all appeals will be reviewed in the same manner.
In addition, in this final rule, DHS makes four changes to the IFR
in response to public comment. DHS is adding a citation to establish
when an appeal must be filed, which will provide litigants with the
information necessary to ensure timely appeals. DHS is adding a
definition of the term ``substantial evidence,'' which will provide
clarity for all parties on the standard of review. DHS is adding
language to establish how allow litigants may consent to service via
electronically/electronic service, which will make it easier for
litigants to do so. Finally, DHS is adding language to provide a
process to seek remand for a ``showing of good cause.'' Ensuring there
is good cause to grant a motion to supplement the record through remand
to the ALJ will ensure that additional proceedings are undertaken only
when there is substantive reasoning for them.
B. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121, title II, 110 Stat. 847, 857-74, requires
Federal agencies to consider the potential impact of regulations on
small businesses, small governmental jurisdictions, and small
organizations during the development of their rules. However, when a
rule is exempt from APA notice and comment requirements the RFA does
not require an agency to prepare a regulatory flexibility analysis.
Because this rule does not trigger APA notice and comment requirements,
DHS is exempt from preparing a regulatory flexibility analysis for this
rule. DHS does note, however, that this rule regulates individuals, and
individuals are not small entities as contemplated by the RFA.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by the Small Business
Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804(2). This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign based companies in domestic and export markets.
E. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act Assessment
This interim final rule does not call for a collection of
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
et seq. This rule falls under the category of an administrative action
or investigation involving an agency against specific individuals or
entities and is therefore excluded from Paperwork Reduction Act
requirements. 44 U.S.C. 3518(c)(1)(B) and 5 CFR 1320.4(a).
List of Subjects in 6 CFR Part 126
Administrative practice and procedures, Appeals, Penalties,
Reporting and recordkeeping requirements, Security measures.
The Amendments
For the reasons set forth in the preamble, the Department of
Homeland Security adds part 126 to Title 6, Code of Federal
Regulations, to read as follows:
[[Page 17703]]
PART 126--TRANSPORTATION SECURITY OVERSIGHT BOARD REVIEW PANEL
PROCESS AND PROCEDURES
Sec.
126.1 Purpose and scope.
126.3 Definitions.
126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk.
126.7 Function of TSOB Review Panel.
126.9 Scope of review.
126.11 Counsel.
126.13 Notice of appeal and service.
126.15 Entry of appearance.
126.17 Procedures for classified information, Sensitive Security
Information (SSI), and other protected information.
126.19 Filing and supplementing the record.
126.21 Motions.
126.23 Briefs.
126.25 Oral argument.
126.27 Deliberations and action.
126.29 Effect of TSOB Review Panel action.
126.31 Administration of proceedings.
Authority: 49 U.S.C. 115, 46111; Department of Homeland
Security Delegation No. 7071.1.
Sec. 126.1 Purpose and scope.
This part establishes the procedures by which a Transportation
Security Oversight Board (TSOB) Review Panel reviews and acts to
resolve an appeal from an Administrative Law Judge (ALJ) decision
regarding a Determination of Security Threat made by the Administrator
of the Transportation Security Administration (TSA).
Sec. 126.3 Definitions.
Classified information has the meaning given to that term in
Executive Order 13526 or any successor Executive Order.
Communication technology means telephone or a videoconferencing
platform.
Other protected information means other information that the
government is authorized by statute, regulation, or Executive order to
withhold.
Sensitive Security Information (SSI) means information described in
49 CFR 1520.5.
Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
Transportation Security Oversight Board (TSOB) means the board
established pursuant to 49 U.S.C. 115.
Transportation Security Oversight Board (TSOB) Review Panel means
the panel established pursuant to 49 U.S.C. 46111(d) to consider an
appeal from a decision of an administrative law judge as the result of
a hearing under 49 U.S.C. 46111(b).
Sec. 126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk.
(a) Upon request by the Chairman of the TSOB, TSOB members will
designate at least one official who meets the criteria in paragraphs
(a)(1) through (5) of this section to participate in a TSOB Review
Panel pool for a period of two years. The Review Panel nominees must--
(1) Be a member of the Senior Executive Service (SES) or a Senior
Level (SL) employee;
(2) Hold a security clearance commensurate with the record under
review;
(3) Not be employed by TSA or the Federal Aviation Administration
(FAA);
(4) To the extent practicable, have a legal background and be
engaged in the practice of law on behalf of the United States
Government; and
(5) To the extent practicable, be familiar with transportation
security issues.
(b) Upon the expiration of each two-year period, TSOB members will
again designate officials to participate in the TSOB Review Panel pool.
(c) The General Counsel of the Department of Homeland Security, or
the General Counsel's designee, will appoint an individual from within
the Office of the General Counsel to serve as the TSOB Docket Clerk.
The TSOB Docket Clerk will serve as the TSOB Review Panel's point of
contact for both the public and the parties to ALJ proceedings.
(d) When the TSOB Docket Clerk receives a properly and timely filed
appeal from an ALJ's decision, the TSOB Chairperson selects at least
three individuals from the TSOB Review Panel pool to serve on a Review
Panel to review the ALJ's decision. The TSOB Chairperson has discretion
to choose which individuals from the pool will serve on a TSOB Review
Panel. In making selections for a TSOB Review Panel, the TSOB
Chairperson will consider selecting at least one person with the
qualifications set out in paragraph (a)(4) of this section to serve as
a Panel Member, and will consider, based upon the composition of the
pool as well as the issues raised in the appeal, appointing more than
one person with the qualifications set out in paragraph (a)(4) to the
TSOB Review Panel.
Sec. 126.7 Function of TSOB Review Panel.
A TSOB Review Panel reviews an ALJ's decision regarding a
Determination of Security Threat issued by the TSA Administrator and
may affirm, modify, or reverse the ALJ's decision. The TSOB Review
Panel also may remand the matter to the ALJ with instructions to
address particular issues or consider additional testimony or evidence.
Sec. 126.9 Scope of review.
(a) A TSOB Review Panel reviews an ALJ's decision to address
whether the decision is supported by substantial evidence in the record
before the TSOB Review Panel.
(b) A TSOB Review Panel will not consider the constitutionality of
any statute, regulation, Executive order, or order issued by the TSA.
Sec. 126.11 Counsel.
(a)(1) Parties to proceedings before a TSOB Review Panel may be
represented by an attorney who is in good standing with the bar of any
State, district, territory, or possession of the United States. Parties
desiring representation must obtain such representation at their own
expense.
(2) TSA will designate counsel to represent TSA before a TSOB
Review Panel. The attorney must hold a security clearance that enables
access to all materials related to the appeal.
(b) The General Counsel of the Department of Homeland Security, or
the General Counsel's designee, will appoint legal counsel to assist a
TSOB Review Panel. Counsel appointed to assist the TSOB Review Panel
will facilitate communication between the TSOB Docket Clerk and the
TSOB Review Panel, and assist with legal research and drafting for the
Panel, as needed. Appointed counsel must hold a security clearance that
enables access to all materials related to the appeal.
Sec. 126.13 Notice of appeal and service.
(a) Notice of appeal. A party seeking review of the ALJ's decision
must file a notice of appeal with the TSOB Docket Clerk electronically
at [email protected] or via certified U.S. mail at ATTN: TSOB
Docket Clerk, Office of the General Counsel, Department of Homeland
Security, Washington, DC, 20528-0485. A notice of appeal must be filed
within 60 calendar days of the date of issuance of the ALJ's written
decision.
(b) Service. To file any document with a TSOB Review Panel, a party
must send the document to the TSOB Docket Clerk electronically at
[email protected], or via certified U.S. mail at ATTN: TSOB Docket
Clerk, Office of the General Counsel, Department of Homeland Security,
Washington, DC, 20528-0485. Parties are strongly encouraged to file all
documents and consent to electronic service. A party may consent to
electronic service by
[[Page 17704]]
filing a document expressly stating such a preference with the TSOB
Docket Clerk and serving a copy on all other parties. Any document
filed with the TSOB Docket Clerk (except a notice of protected
information, the administrative record, ex parte motions, and documents
containing classified information, Sensitive Security Information
(SSI), or other protected information that accompanies a motion to
supplement the record) must also be served on all other parties by
certified U.S. mail or electronically/electronic service.
(c) Filing date. For purposes of all deadlines in this part, the
date of filing of a notice of appeal or any document filed with a TSOB
Review Panel is the date on which the document is received by the TSOB
Docket Clerk.
(d) Untimely appeals. A TSOB Review Panel must reject and summarily
dismiss a notice of appeal that is filed more than 60 calendar days
after the date of issuance of the ALJ's written decision. A TSOB Review
Panel may, in its discretion, accept an untimely notice of appeal upon
a written showing of good cause for failure to meet the filing
deadline.
(e) Failure to perfect the appeal. A TSOB Review Panel may dismiss
an appeal, on its own initiative or upon motion of any party, when a
party has filed a notice of appeal but failed to perfect the appeal by
timely filing a brief in accordance with Sec. 126.23.
(f) Effect of dismissal of appeal. Where an appeal is dismissed in
accordance with paragraphs (d) or (e) of this section the ALJ's written
decision becomes final.
Sec. 126.15 Entry of appearance.
(a) All parties to a proceeding before a TSOB Review Panel must
enter their appearances in writing with the TSOB Docket Clerk within 15
calendar days after filing or being served with a notice of appeal. A
party's written notice of entry of appearance must identify counsel, if
applicable.
(b) Counsel beginning representation of a party after that party
has already entered an appearance must file a separate notice of entry
of appearance within 15 calendar days of beginning representation.
Sec. 126.17 Procedures for classified information, Sensitive Security
Information (SSI), and other protected information.
(a) Notice of protected information. Within 30 calendar days of
filing or being served with a notice of appeal, TSA must file a notice
of protected information indicating whether the record of proceedings
before the ALJ contains classified information, SSI, or other protected
information. The notice of protected information must be filed with the
TSOB Docket Clerk in accordance with Sec. 126.13(b). If the TSA
presented classified information, SSI, or other protected information
to the ALJ at an ex parte proceeding or provided such information for
in camera review during the ALJ proceedings, then the TSOB Review Panel
will also consider that information at an ex parte proceeding or in
camera.
(b) Access to protected information. A TSOB Review Panel may not
disclose Classified Information or other protected information to any
non-government party or counsel. A TSOB Review Panel may not disclose
SSI to any non-government party or counsel unless the TSA has
determined that the party had a preexisting need to know specific SSI
as a covered person pursuant to 49 CFR 1520.7 and 1520.11.
Sec. 126.19 Filing and supplementing the record.
(a) Filing the record. The TSA must file a complete record of
administrative proceedings, including a certified and unredacted
transcript of all proceedings before the ALJ (including ex parte
proceedings) and all material filed with the ALJ (including material
containing classified information, SSI, or other protected information
that was reviewed by the ALJ in camera), with the TSOB Docket Clerk
within 30 calendar days after filing or being served with a notice of
appeal. Upon motion filed by the TSA, or on its own initiative, the
TSOB Review Panel may extend the time to file the record. The TSOB
Docket Clerk notifies all parties of the date when the record is filed.
Within 30 calendar days of the date the record is filed, non-government
parties may file a motion requesting that the TSA provide them with a
redacted copy of any part of the record (excluding ex parte proceedings
and materials reviewed in camera) that they do not possess. The TSA
redacts classified information or other protected information from any
part of the record it provides to non-government parties, except to the
extent that the TSA has determined that the party had a preexisting
need to know specific SSI as a covered person pursuant to 49 CFR 1520.7
and 1520.11.
(b) Supplementing the record. (1) A party may file a motion to
supplement the record when anything relevant to an issue on appeal
occurs after the ALJ issued a decision, or the party can show good
cause, as determined by the TSOB Review Panel, for failing to submit
material for the record at an earlier stage of the administrative
proceedings. When the TSA seeks to supplement the record with material
that contains classified information, SSI or other protected
information, it may file a motion to supplement the record ex parte.
(2) A TSOB Review Panel may grant a motion to supplement the record
when it finds that the supplemental material is relevant to an issue on
appeal and that a condition described in paragraph (b)(1) of this
section applies.
(3) A TSOB Review Panel may grant a motion to supplement the record
by remanding the case to the ALJ for additional proceedings, where good
cause is shown.
Sec. 126.21 Motions.
(a) Form of motions. (1) A motion filed with a TSOB Review Panel
must comply with the requirements set forth in Sec. 126.23(c)(1)
through (4).
(2) Motions must be filed with the TSOB Docket Clerk and served on
all parties in accordance with Sec. 126.13(b). The TSOB Docket Clerk
provides all motions to the TSOB Review Panel.
(b) Duty to confer. Before filing any motion, a party must confer
or make reasonable, good-faith efforts to confer with all other parties
to resolve the issues that are the subject of the motion. The moving
party must state in the motion, or in a certificate attached to the
motion, the specific efforts made to comply with this duty to confer.
The moving party must also state in the motion the other parties'
positions with regard to the relief requested. If no party opposes the
relief requested in a motion, the moving party includes ``Unopposed''
in the motion's title. TSA does not have a duty to confer before filing
an ex parte motion, but must provide notice to all parties that it has
made an ex parte filing.
(c) Motion hearings. Upon request of any party, or on its own
initiative, a TSOB Review Panel may order the parties to appear for a
hearing on any motion that was not filed ex parte. Motion hearings may
be conducted via communication technology unless all parties agree to
appear in person or the TSOB Review Panel in its discretion determines
that an in person appearance is necessary for efficient administration
of the hearing. The Review Panel considers expense and inconvenience to
the parties, the importance of information security, and the quality
and reliability of available communication technology when making these
determinations.
(d) Disposition. A TSOB Review Panel may, consistent with the
requirements of due process and after providing the opposing party with
an opportunity to
[[Page 17705]]
review and respond, grant or deny a motion at any time after it is
filed.
(e) Additional procedural requirements for motion practice. A TSOB
Review Panel has discretion to establish via order served on the
parties, additional procedural requirements regarding motion practice
in response to the exigencies of a particular appeal. Such requirements
may include, for example, time periods for filing responses and
replies, a deadline for concluding all motion practice, and page
limitations different from the default 35-page limit established in
Sec. 126.23(c)(3). A TSOB Review Panel may not require disclosure of
classified information, SSI, or other protected information.
Sec. 126.23 Briefs.
(a) Appellant brief. (1) A party appealing the ALJ's decision must
perfect the appeal by filing an appellant brief with the TSOB Docket
Clerk and serving that brief on all other parties in accordance with
Sec. 126.13(b) within 60 calendar days after the date on which TSA
files the record in accordance with Sec. 126.19(a), unless all parties
consent to an extension of the filing deadline and provide notice of
such agreement to the TSOB Docket Clerk or the TSOB Review Panel
extends the filing deadline upon a motion by the appellant.
(2) The appellant brief must enumerate the appellant's objections
to the ALJ's decision.
(b) Appellee brief. Within 30 calendar days after being served with
an appellant brief, a party may file an appellee brief in response with
the TSOB Docket Clerk. Any such brief must be served on all other
parties in accordance with Sec. 126.13(b) at the same time it is filed
with the TSOB Docket Clerk. The parties may consent to an extension of
the filing deadline and provide notice of such agreement to the TSOB
Docket Clerk or the TSOB Review Panel may extend the deadline for
filing an appellee brief upon a motion by the appellee.
(c) Brief requirements. A brief submitted to a TSOB Review Panel
must adhere to the following specifications:
(1) The brief must be typewritten in Times New Roman, 12-point
font, double-spaced, and, if submitted as a hard copy via certified
U.S. mail, must be printed single-sided on 8 1/2-by-11 inch paper;
(2) The brief must set forth the name, address, email address, and
telephone number of the party or attorney filing it;
(3) The brief must contain no more than 35 pages of text (excepting
any tables, appendices, or cover sheets) unless prior permission to
file excess pages has been granted by the TSOB Review Panel after
consideration of a duly filed motion showing good cause as determined
by the TSOB Review Panel;
(4) If submitted as a hard copy via certified U.S. mail, the brief
must be bound in any manner that is secure, does not obscure the text,
and permits easy reproduction; and
(5) If oral argument is desired, the brief should contain a request
for oral argument that explains why oral argument will contribute
substantially to the development of an issue on appeal.
Sec. 126.25 Oral argument.
(a) Upon receipt of a request from any party contained in a brief
or in a motion, or on its own initiative, a TSOB Review Panel may order
the parties to present oral argument. The Review Panel orders oral
argument if it determines that oral argument will contribute
substantially to the development of an issue on appeal.
(b) A TSOB Review Panel has discretion, within the requirements of
all relevant statutory and regulatory provisions for information
security, to choose the method and location of oral argument. The
Review Panel will consider expense and inconvenience to the parties,
the importance of information security, the quality and reliability of
available communication technology, and concern for the efficient
administration of proceedings when establishing the method and location
of oral argument.
(c) A TSOB Review Panel has discretion to structure and establish
procedural rules for oral argument via order served on the parties.
Such rules may include time limits for argument and the order in which
parties present argument.
(d) Classified information, SSI, or other protected information may
not be disclosed during oral argument. A TSOB Review Panel may hold ex
parte proceedings to allow for the presentation of classified
information, SSI, or other protected information.
Sec. 126.27 Deliberations and action.
(a) Deliberations. TSOB Review Panel deliberations are closed
proceedings. Any materials created by Review Panel members, the TSOB
Docket Clerk, and the Review Panel's appointed counsel for use in
deliberations are not part of the final administrative record.
(b) Action. A TSOB Review Panel may affirm, modify, or reverse the
ALJ's decision. It may also remand the matter to the ALJ with
instructions to address particular issues or consider additional
testimony or evidence.
(1) A TSOB Review Panel requires a simple majority to decide an
action.
(2) In case of a disagreement among TSOB Review Panel members, a
dissenting report may be served with the written explanation of the
Review Panel's action. A dissenting report must be prepared in
accordance with the requirements for the Review Panel's written
explanation.
(c) Written explanation. A TSOB Review Panel will explain its
action in writing to the maximum extent permitted by prudent concern
for the national security interests of the United States and applicable
laws and regulations governing information disclosure. If necessary,
the Review Panel may prepare its written explanation in both a
protected format (which may contain classified information, SSI, and
other protected information) and a non-protected format (which must not
contain classified information, SSI, and other protected information).
The Review Panel serves non-government parties with the non-protected
written explanation and government parties with the protected written
explanation. The Review Panel is prohibited from providing the
protected written explanation to non-government parties; however, the
protected written explanation, if any, is part of the final
administrative record that TSA must submit to a U.S. Court of Appeals
in the event that a party seeks judicial review of the Review Panel's
action.
(d) Timing. A TSOB Review Panel endeavors to resolve an appeal and
issue a written explanation of its action to the parties no later than
60 calendar days after the last of the following events:
(1) Receipt of a timely filed appellant brief;
(2) receipt of a timely filed appellee brief; or
(3) Oral argument.
Sec. 126.29 Effect of TSOB Review Panel action.
(a) Any person substantially affected by a TSOB Review Panel's
action, or the TSA Administrator when he or she decides that the
Panel's action will have a significant adverse impact on carrying out
49 U.S.C. subtitle VII, part A, may obtain judicial review in an
appropriate U.S. Court of Appeals in accordance with 49 U.S.C. 46110.
The Administrators of the FAA and TSA must be made parties to any civil
action filed in a U.S. Court of Appeals seeking review of a TSOB Review
Panel action.
[[Page 17706]]
(b) If judicial review is not obtained, the action of the TSOB
Review Panel is final and binding on the parties for the purpose of
resolving the particular decision under review.
Sec. 126.31 Administration of proceedings.
(a) A TSOB Review Panel has authority to govern the conduct of its
proceedings and internal operations by establishing any additional
rules or procedures that are not inconsistent with this part.
(b) If TSA withdraws its Determination of Security Threat at any
time after a notice of appeal has been filed pursuant to Sec.
126.13(a), the proceedings before the TSOB Review Panel are rendered
moot and closed. TSA must file a notice of withdrawal of the
Determination of Security Threat with the TSOB Docket Clerk within five
calendar days of such withdrawal.
(c) TSOB Review Panel proceedings will generally be closed to the
public. A TSOB Review Panel may, in its discretion, open its
proceedings to the public. Classified information, SSI, or other
protected information shall not be disclosed during administrative
proceedings, in accordance with Sec. 126.25(d).
Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-05131 Filed 3-8-24; 11:15 am]
BILLING CODE 9110-9B-P