36030 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations 

1 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ is 

information obtained or developed in the conduct 

of security activities, the disclosure of which would 

constitute an unwarranted invasion of privacy, 

reveal trade secrets or privileged or confidential 

information, or be detrimental to the security of 

transportation. The protection of SSI is governed by 

49 CFR part 1520. 

DEPARTMENT OF HOMELAND 

SECURITY 

Transportation Security Administration 

49 CFR Part 1503 

[Docket No. TSA–2009–0013] 

RIN 1652–AA62 

Revision of Enforcement Procedures 

AGENCY: Transportation Security 

Administration, DHS. 

ACTION: Final rule; request for 

comments. 

SUMMARY: The Transportation Security 

Administration (TSA) amends its 

Investigative and Enforcement 

Procedures in this final rule to conform 

to the Implementing Recommendations 

of the 9/11 Commission Act of 2007. 

The rule establishes procedures by 

which TSA may issue civil monetary 

penalties for violations of any statutory 

requirement administered by TSA, 

including surface transportation 

requirements and Transportation 

Worker Identification Credentials 

requirements. The rule also clarifies and 

reorganizes TSA’s investigative and 

enforcement procedures, and makes 

inflation adjustments to the maximum 

civil monetary penalty amounts. 

DATES: Effective Date: This rule is 

effective August 20, 2009. 

Comment Date: Comments must be 

received by September 21, 2009. 

ADDRESSES: You may submit comments, 

identified by the TSA docket number to 

this rulemaking, to the Federal Docket 

Management System (FDMS), a 

government-wide, electronic docket 

management system, using any one of 

the following methods: 

Electronically: You may submit 

comments through the Federal 

eRulemaking portal at http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Mail, In Person, or Fax: Address, 

hand-deliver, or fax your written 

comments to the Docket Management 

Facility, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., West Building Ground 

Floor, Room W12–140, Washington, DC 

20590–0001; Fax 202–493–2251. The 

Department of Transportation (DOT), 

which maintains and processes TSA’s 

official regulatory dockets, will scan the 

submission and post it to FDMS. 

See SUPPLEMENTARY INFORMATION for 

format and other information about 

comment submissions. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Tauber, Office of Chief Counsel, 

TSA–2, Transportation Security 

Administration, 601 South 12th Street, 

Arlington, VA 20598–6002; telephone 

(571) 227–3964; facsimile (571) 227– 

1380; e-mail sarah.tauber@dhs.gov. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

TSA invites interested persons to 

participate in this rulemaking by 

submitting written comments, data, or 

views. TSA also invites comments 

relating to the economic, environmental, 

energy, or Federalism impacts that 

might result from this rulemaking 

action. See ADDRESSES above for 

information on where to submit 

comments. 

With each comment, please identify 

the docket number at the beginning of 

your comments. TSA encourages 

commenters to provide their names and 

addresses. The most helpful comments 

reference a specific portion of the 

rulemaking, explain the reason for any 

recommended change, and include 

supporting data. The public may submit 

comments and material electronically, 

in person, by mail, or fax as provided 

under ADDRESSES, but please submit 

your comments and material by only 

one means. If you submit comments by 

mail or delivery, submit them in an 

unbound format, no larger than 8.5 by 

11 inches, suitable for copying and 

electronic filing. 

If you want TSA to acknowledge 

receipt of comments submitted by mail, 

include with your comments a selfaddressed, stamped postcard on which 

the docket number appears. We will 

stamp the date on the postcard and mail 

it to you. 

TSA will file in the public docket all 

comments received by TSA, except for 

comments containing confidential 

information and sensitive security 

information (SSI).1 TSA will consider 

all comments received on or before the 

closing date for comments and will 

consider comments filed late to the 

extent practicable. The docket is 

available for public inspection before 

and after the comment closing date. 

Handling of Confidential or Proprietary 

Information and Sensitive Security 

Information (SSI) Submitted in Public 

Comments 

Do not submit comments that include 

trade secrets, confidential commercial 

or financial information, or SSI to the 

public regulatory docket. Please submit 

such comments separately from other 

comments on the rulemaking. 

Comments containing this type of 

information should be appropriately 

marked as containing such information 

and submitted by mail to the address 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

TSA will not place comments 

containing SSI in the public docket and 

will handle them in accordance with 

applicable safeguards and restrictions 

on access. TSA will hold documents 

containing SSI, confidential business 

information, or trade secrets in a 

separate file to which the public does 

not have access, and place a note in the 

public docket that TSA has received 

such materials from the commenter. 

However, if TSA determines that 

portions of these comments may be 

made publicly available, TSA may 

include a redacted version of the 

comment in the public docket. If TSA 

receives a request to examine or copy 

information that is not in the public 

docket, TSA will treat it as any other 

request under the Freedom of 

Information Act (FOIA), 5 U.S.C. 552, 

and the Department of Homeland 

Security’s (DHS’) FOIA regulation found 

in 6 CFR part 5. 

Reviewing Comments in the Docket 

Please be aware that anyone is able to 

search the electronic form of all 

comments received into any of our 

dockets by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review the applicable Privacy 

Act Statement published in the Federal 

Register on April 11, 2000 (65 FR 

19477), or you may visit http:// 

DocketInfo.dot.gov. 

You may review TSA’s electronic 

public docket on the Internet at http:// 

www.regulations.gov. In addition, DOT’s 

Docket Management Facility provides a 

physical facility, staff, equipment, and 

assistance to the public. To obtain 

assistance or to review comments in 

TSA’s public docket, you may visit this 

facility between 9 a.m. to 5 p.m., 

Monday through Friday, excluding legal 

holidays, or call (202) 366–9826. This 

docket operations facility is located in 

the West Building Ground Floor, Room 

W12–140 at 1200 New Jersey Avenue, 

SE., Washington, DC 20590. 

Availability of Rulemaking Document 

You can get an electronic copy using 

the Internet by— 

(1) Searching the electronic Federal 

Docket Management System (FDMS) 

Web page at http://www.regulations.gov; 


hsrobinson on PROD1PC76 with RULES2
Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations 36031 

2Pub. L. 110–53, section 1302(a), 121 Stat. 390 

(Aug. 3, 2007). 

3Pub. L. 110–53, section 1302(a), 121 Stat. 390 

(Aug. 3, 2007). TSA exercises this function under 

delegated authority from the Secretary. 

4 49 U.S.C. 114(v)(3)(D). 

5 49 U.S.C. 114(v)(3)(C). 

6 49 U.S.C. 114(v)(3)(E). 

7 49 U.S.C. 114(v)(5). 

(2) Accessing the Government 

Printing Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.html; or 

(3) Visiting TSA’s Security 

Regulations Web page at http:// 

www.tsa.gov and accessing the link for 

‘‘Research Center’’ at the top of the page. 

In addition, copies are available by 

writing or calling the individual in the 

FOR FURTHER INFORMATION CONTACT

section. Make sure to identify the docket 

number of this rulemaking. 

Small Entity Inquiries 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires TSA to comply with small 

entity requests for information and 

advice about compliance with statutes 

and regulations within TSA’s 

jurisdiction. Any small entity that has a 

question regarding this document may 

contact the person listed in FOR FURTHER

INFORMATION CONTACT. Persons can 

obtain further information regarding 

SBREFA on the Small Business 

Administration’s Web page at http://

www.sba.gov/advo/laws/law_lib.html. 

Abbreviations and Terms Used in This 

Document 

9/11 Act—Implementing Recommendations 

of the 9/11 Commission Act of 2007 

ALJ—Administrative Law Judge 

CPI—Consumer Price Index 

FNPCP—Final Notice of Proposed Civil 

Penalty 

FOIA—Freedom of Information Act 

NPCP—Notice of Proposed Civil Penalty 

OACP—Order Assessing Civil Penalty 

SSI—Sensitive Security Information 

TWIC—Transportation Worker Identity 

Credential 

USCG—United States Coast Guard 

Table of Contents 

I. Summary of the Rulemaking 

II. Background 

A. New Civil Penalty Authority 

B. Summary of the Civil Penalty Process 

1. Notice of Proposed Civil Penalty 

2. Informal Conference 

3. Order Assessing a Civil Penalty 

4. Final Notice of Proposed Civil Penalty 

5. Formal Hearing 

6. Appeal From the ALJ Initial Decision 

7. Appeal From the TSA Decision Maker’s 

Final Decision and Order 

III. Reorganization Summary 

IV. Section-by-Section Analysis 

A. Subpart B—Scope of Investigative and 

Enforcement Procedures 

1. TSA Requirements (§ 1503.101) 

2. Terms Used in This Part (§ 1503.103) 

B. Subpart D—Non-Civil Penalty 

Enforcement 

C. Subpart E—Assessment of Civil 

Penalties by TSA 

1. Maximum Penalty Amounts (§ 1503.401) 

2. Delegation of Authority (§ 1503.403) 

3. Injunctions (§ 1503.405) 

4. Military Personnel (§ 1503.407) 

5. Service of Documents (§ 1503.409) 

6. Computation of Time (§ 1503.411) 

7. Notice of Proposed Civil Penalty 

(§ 1503.413) 

8. Request for Portions of the Enforcement 

Investigative Report (EIR) (§ 1503.415) 

9. Final Notice of Proposed Civil Penalty 

and Order (§ 1503.417) 

10. Order Assessing Civil Penalty 

(§ 1503.419) 

11. Streamlined Civil Penalty Procedures 

for Certain Security Violations 

(§ 1503.421) 

12. Consent Orders (§ 1503.423) 

13. Compromise Orders (§ 1503.425) 

14. Request for a Formal Hearing 

(§ 1503.427) 

15. Filing of Documents With the 

Enforcement Docket Clerk (§ 1503.429) 

16. Certification of Documents (§ 1503.431) 

D. Subpart G—Rules of Practice in TSA 

Civil Penalty Actions 

1. Applicability (§ 1503.601) 

2. Administrative Law Judges (§ 1503.607) 

3. Complaint (§ 1503.609) 

4. Consolidation and Separation of Cases 

(§ 1503.613) 

5. Extension of Time (§ 1503.617) 

6. Withdrawal of Complaint or Request for 

Hearing (§ 1503.623) 

7. Discovery (§ 1503.633) 

8. Standard of Proof (§ 1503.637) 

9. Argument Before the ALJ (§ 1503.653) 

10. Initial Decision (§ 1503.655) 

11. Appeal From Initial Decision 

(§ 1503.657) 

V. Administrative Procedure Act 

VI. Paperwork Reduction Act 

VII. Economic Impact Analyses 

A. Regulatory Evaluation Summary 

B. Executive Order 12866 Assessment 

C. Costs and Benefits 

D. Regulatory Flexibility Act Assessment 

E. International Trade Impact Assessment 

F. Unfunded Mandates Assessment 

VIII. Other Analyses 

A. Executive Order Federalism 

B. Environmental Analysis 

C. Energy Impact Analysis 

List of Subjects in 49 CFR Part 1503 

The Amendments 

I. Summary of the Rulemaking 

In this rule, TSA makes several 

changes to TSA’s enforcement 

procedures, codified at 49 CFR part 

1503. As described more fully below, 

this rule— 

• Reorganizes and clarifies TSA’s 

enforcement procedures and make them 

easier to use; 

• Applies TSA’s enforcement 

procedures to violations of surface 

transportation requirements and of 

TSA’s Transportation Worker 

Identification Credential requirements, 

as provided in sections 1302 and 

1304(e) of the Implementing 

Recommendations of the 9/11 

Commission Act of 2007, Public Law 

110–53, 121 Stat. 266, 390, Aug. 3, 2007 

(9/11 Act); and 

• Adjusts for inflation the maximum 

civil penalty amounts, in accordance 

with the Federal Civil Penalty Inflation 

Adjustment Act of 1990, Public Law 

101–410 (Adjustment Act), 28 U.S.C. 

2461 note. 

II. Background 

This rulemaking implements certain 

provisions of the 9/11 Act that expand 

TSA’s civil penalty authority.2 This 

section describes the relevant 9/11 Act 

provisions and TSA’s enforcement 

process. 

A. New Civil Penalty Authority 

Section 1302(a) of the 9/11 Act 

applies civil penalties provisions to: 

(1) Any provision of title 49 U.S.C. 

administered by TSA, including 

violations of any surface transportation 

requirements; and (2) any violations of 

ch. 701 of title 46 U.S.C., which governs 

transportation worker identification 

credentials (TWIC).3 TSA may assess a 

maximum penalty per case of $50,000 if 

the violation is committed by an 

individual or small business. TSA may 

assess a maximum penalty amount per 

case of $400,000 if the violation is 

committed by a person other than an 

individual or small business.4 A Federal 

court may assess penalties exceeding 

these amounts.5

Prior to imposing a civil penalty, TSA 

must provide to the person against 

whom the penalty is to be imposed: (1) 

Written notice of the proposed penalty; 

and (2) the opportunity to request a 

hearing on the proposed penalty, if TSA 

receives the request not later than 30 

days after the date on which the person 

receives notice.6 Investigations and 

proceedings governing such cases must 

follow the requirements set forth in ch. 

461 of title 49 U.S.C., which govern 

aviation security matters.7

The 9/11 Act establishes additional 

procedural requirements in cases 

involving public transportation 

agencies. Under section 1304(e) of the 

9/11 Act, prior to imposing a civil 

penalty against a public transportation 

agency, TSA is required to give written 

notice of the violation and a reasonable 

opportunity to correct the violation or 

propose an alternative means of 

compliance acceptable to TSA. TSA 

may not take legal enforcement action 

against a public transportation agency 

unless TSA has provided such notice 

and the public transportation agency 

fails to correct the violation or propose 


hsrobinson on PROD1PC76 with RULES2
36032 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations 

8See Pub. L. 110–53, section 1304(e)(2), 121 Stat. 

393. 

9TWIC is a joint program with the United States 

Coast Guard. TSA enforces its regulatory program 

at 49 CFR parts 1570 and 1572, and the Coast Guard 

enforces its regulations at 33 CFR parts 101–106. 

10See Rail Transportation Security; final rule, 73 

FR 72130 (Nov. 26, 2008). 

11See Pub. L. 110–53, section 1304(e)(2), 121 Stat. 

393. 

an alternative means of compliance 

acceptable to TSA within the timeframe 

provided in the notice.8

Prior to enactment of section 1302 of 

the 9/11 Act, TSA assessed 

administrative civil penalties only for 

violations of aviation security related 

statutes under 49 U.S.C. ch. 449, and 49 

U.S.C. 46302 and 46303. TSA’s 

procedures for assessing civil penalties 

for such violations are set forth at 49 

CFR part 1503. This rule amends part 

1503 to expand its application to 

violations of any statutory requirement 

administered by TSA, including surface 

transportation requirements and TWIC 

requirements, in accordance with the 

provisions of the 9/11 Act. 

B. Summary of the Civil Penalty Process 

The following is a general summary of 

the process TSA currently uses to assess 

a civil penalty for violations of the 

statutes, regulations, and orders it 

administers. The rule applies this 

process, with certain changes discussed 

below, to violations of surface 

transportation and TWIC requirements, 

to include: (1) TWIC; 9 (2) commercial 

drivers’ licenses with hazardous 

material endorsements (49 CFR parts 

1570 and 1572); and (3) rail 

transportation security (49 CFR part 

1580).10

1. Notice of Proposed Civil Penalty 

TSA initiates a civil penalty action by 

sending the alleged violator (the 

respondent) a Notice of Proposed Civil 

Penalty (NPCP), which states the statute, 

regulation, or order allegedly violated, 

the facts TSA believes establish the 

violation, and the amount of the penalty 

TSA proposes to impose for the 

violation. The NPCP also informs the 

respondent that he or she has 30 days 

from receipt to either: (1) Pay the 

penalty; or (2) provide information 

demonstrating that a violation did not 

occur, that the penalty should be lower 

because of mitigating circumstances, or 

that the respondent is unable to pay the 

proposed penalty. If the respondent 

does not pay the penalty, they must also 

request an informal conference with 

TSA counsel; or request a formal 

hearing before an Administrative Law 

Judge (ALJ). 

Pursuant to section 1304(e) of the 9/ 

11 Act, TSA will not send an NPCP to 

a public transportation agency unless 

TSA first gives the public transportation 

agency written notice of the violation 

and a reasonable opportunity to correct 

the violation, or to propose an 

alternative means of compliance 

acceptable to TSA, and the public 

transportation agency fails to do so 

within the timeframe provided in the 

notice.11 Reasonableness will depend 

on the totality of the circumstances, 

including the security consequences of 

the violation. 

2. Informal Conference 

The informal conference provides the 

respondent with an opportunity to 

discuss the alleged violation informally 

with TSA counsel and to present 

exculpatory evidence. This conference 

can be held by telephone or in person. 

Many TSA enforcement cases settle as a 

result of information exchanged or 

representations made at (or after) the 

informal conference. 

3. Order Assessing a Civil Penalty 

If the respondent elects to pay the 

penalty, or if the matter settles (either at 

the informal conference or before or 

after the informal conference), TSA 

counsel issues an Order Assessing a 

Civil Penalty (OACP). The order states 

the law violated, the facts establishing 

the violation, the amount of the penalty, 

and how and by when the respondent 

is to pay the penalty. 

4. Final Notice of Proposed Civil 

Penalty 

In the event the respondent does not 

respond to the NPCP within 30 days, or 

in the event the respondent and TSA 

counsel cannot agree on a penalty 

amount during settlement discussions, 

TSA counsel issues a Final Notice of 

Proposed Civil Penalty (FNPCP). The 

FNPCP gives the respondent 15 days 

from receipt to: (1) Pay the penalty; (2) 

reach an agreed penalty amount with 

TSA counsel; or (3) request a formal 

hearing before an ALJ. Under the 

current regulations, the FNPCP also 

states that if the respondent does not 

respond to the FNPCP within 15 days, 

or if the matter has not settled and the 

respondent has not requested a formal 

hearing within 15 days, TSA counsel 

will issue an OACP in the penalty 

amount proposed by the FNPCP. One of 

the changes this rule makes is to have 

the FNCP automatically convert to an 

OACP, if within 15 days the respondent 

has not responded to the FNPCP, settled 

the case, or requested a formal hearing. 

5. Formal Hearing 

A respondent must request a formal 

hearing in writing within 30 days of 

receipt of the NPCP, or within 15 days 

of receipt an FNPCP. The respondent 

must send the request for a formal 

hearing to the Enforcement Docket Clerk 

and a copy of the request for a formal 

hearing to the TSA counsel. 

An Administrative Law Judge (ALJ) 

conducts the formal hearing. The 

procedural rules governing formal 

hearings are set forth at 49 CFR part 

1503, subpart G. Within 20 days of 

receipt of a timely request for hearing, 

TSA counsel will file a Complaint 

reciting the allegations in the NPCP or 

FNPCP, as applicable. The respondent 

must file a written Answer to the 

Complaint within 30 days of receipt. 

The matter proceeds to a formal 

hearing unless the ALJ grants a motion 

to dismiss or a motion for a decision (or 

unless the case settles). At the formal 

hearing, both parties have the 

opportunity to present witnesses and 

other evidence. The ALJ will issue an 

Initial Decision at the close of a hearing 

or shortly thereafter. 

6. Appeal From the ALJ Initial Decision 

Either party may appeal the ALJ 

Initial Decision to the TSA Decision 

Maker. The TSA Decision Maker is the 

Assistant Secretary of Homeland 

Security (Transportation Security 

Administration) or his or her designee. 

The party appealing the decision must 

file a written Notice of Appeal with the 

Enforcement Docketing Center within 

10 days of receipt of the Initial Decision 

and must also file an appeal brief with 

the Docketing Center within 50 days of 

receipt of the Initial Decision. Reply 

briefs may be filed up to 35 days after 

receipt of the appeal brief. The address 

of the Docketing Center is: Docketing 

Center, U.S. Coast Guard, 40 S. Gay 

Street, Room 412, Baltimore, MD 

21202–4022, Attn: Enforcement Docket 

Clerk. 

After receipt of the appeal brief (and 

any reply brief), the TSA Decision 

Maker will render a Final Decision and 

Order. A party may request the TSA 

Decision Maker to reconsider a Final 

Decision and Order by filing a Petition 

for Reconsideration within 30 days of 

the Final Decision. 

7. Appeal From the TSA Decision 

Maker’s Final Decision and Order 

Either party may appeal a Final 

Decision of the TSA Decision Maker to 

an appropriate U.S. Circuit Court of 

Appeals within 60 days after the Final 

Order has been served on the party. 


hsrobinson on PROD1PC76 with RULES2
Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations 36033 

III. Reorganization Summary 

This rule reorganizes part 1503 and 

clarifies its provisions without 

substantive change. TSA intends, in the 

recodification of these regulations, to 

conform to the understood policy, 

intent, and purpose of the original 

regulations, with such amendments and 

corrections as will remove ambiguities, 

contradictions, and other imperfections. 

The reorganization is illustrated in the 

accompanying redistribution table in 

Table 1 that follows. 

TABLE 1—REDISTRIBUTION OF 49 CFR PART 1503 

Former section New section New title 

1503.1 ......................................................... 1503.201 .................................................... Reports of violations. 

1503.3 ......................................................... 1503.203 .................................................... Investigations. 

1503.5 ......................................................... 1503.801 .................................................... Formal complaints. 

1503.7 ......................................................... 1503.205 .................................................... Records, documents, and reports. 

1503.11 ....................................................... 1503.301 .................................................... Warning notices and letters of correction. 

1503.12 ....................................................... 1503.415 .................................................... Request for portions of the enforcement investigative 

report (EIR). 

1503.13 ....................................................... 1503.423 .................................................... Consent orders. 

1503.15 ....................................................... 1503.701 .................................................... Applicability of this subpart. 

1503.703 .................................................... Civil penalty letter; referral. 

1503.16 ....................................................... 1503.401 .................................................... Maximum penalty amounts; jurisdiction. 

1503.403 .................................................... Delegation of authority. 

1503.413 .................................................... Notice of Proposed Civil Penalty. 

1503.417 .................................................... Final Notice of Proposed Civil Penalty and Order. 

1503.419 .................................................... Order Assessing Civil Penalty. 

1503.425 .................................................... Compromise orders. 

1503.427 .................................................... Request for a formal hearing. 

1503.657(a) ................................................ Appeal from initial decision. 

1503.21 ....................................................... 1503.407 .................................................... Military personnel. 

1503.25 ....................................................... 1503.405 .................................................... Injunctions. 

1503.29 ....................................................... 1503.421 .................................................... Streamlined civil penalty procedures for certain security violations. 

1503.419 .................................................... Order Assessing Civil Penalty. 

1503.201 ..................................................... 1503.601 .................................................... Applicability. 

1503.202 ..................................................... 1503.103 .................................................... Terms used in this part. 

1503.203 ..................................................... 1503.603 .................................................... Separation of functions. 

1503.204 ..................................................... 1503.605 .................................................... Appearances and rights of parties. 

1503.651 .................................................... Record. 

1503.205 ..................................................... 1503.607 .................................................... Administrative law judges. 

1503.206 ..................................................... 1503.619 .................................................... Intervention. 

1503.207 ..................................................... 1503.431 .................................................... Certification of documents. 

1503.208 ..................................................... 1503.609 .................................................... Complaint. 

1503.209 ..................................................... 1503.409 .................................................... Service of documents. 

1503.429 .................................................... Filing of documents with the Enforcement Docket 

Clerk. 

1503.611 .................................................... Answer. 

1503.210 ..................................................... 1503.429 .................................................... Filing of documents with the Enforcement Docket 

Clerk. 

1503.211 ..................................................... 1503.409 .................................................... Service of documents. 

1503.212 ..................................................... 1503.411 .................................................... Computation of time. 

1503.213 ..................................................... 1503.617 .................................................... Extension of time. 

1503.214 ..................................................... 1503.621 .................................................... Amendment of pleadings. 

1503.215 ..................................................... 1503.623 .................................................... Withdrawal of complaint or request for hearing. 

1503.216 ..................................................... 1503.625 .................................................... Waivers. 

1503.217 ..................................................... 1503.627 .................................................... Joint procedural and discovery schedule. 

1503.218 ..................................................... 1503.629 .................................................... Motions. 

1503.219 ..................................................... 1503.631 .................................................... Interlocutory appeals. 

1503.220 ..................................................... 1503.633 .................................................... Discovery. 

1503.221 ..................................................... 1503.615 .................................................... Notice of hearing. 

1503.222 ..................................................... 1503.635 .................................................... Evidence. 

1503.223 ..................................................... 1503.637 .................................................... Standard of proof. 

1503.224 ..................................................... 1503.639 .................................................... Burden of proof. 

1503.225 ..................................................... 1503.641 .................................................... Offer of proof. 

1503.226 ..................................................... 1503.643 .................................................... Public disclosure of evidence. 

1503.227 ..................................................... 1503.645 .................................................... Expert or opinion witnesses. 

1503.228 ..................................................... 1503.647 .................................................... Subpoenas. 

1503.229 ..................................................... 1503.649 .................................................... Witness fees. 

1503.230 ..................................................... 1503.651 .................................................... Record. 

1503.231 ..................................................... 1503.653 .................................................... Argument before the ALJ. 

1503.232 ..................................................... 1503.655 .................................................... Initial decision. 

1503.233 ..................................................... 1503.655(d) ................................................ Effect of initial decision. 

1503.657 .................................................... Appeal from initial decision. 

1503.234 ..................................................... 1503.659 .................................................... Petition to reconsider or modify a final decision and 

order of the TSA decision maker on appeal. 

1503.235 ..................................................... 1503.661 .................................................... Judicial review of a final order. 

1503.301 ..................................................... 1503.901 .................................................... Scope and purpose. 


hsrobinson on PROD1PC76 with RULES2
36034 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations 

12 9/11 Act at section 1402(5). 

13See Pub. L. 110–53, section 1304(e), 121 Stat. 

393. 

TABLE 1—REDISTRIBUTION OF 49 CFR PART 1503—Continued 

Former section New section New title 

1503.303 ..................................................... 1503.903 .................................................... Definitions. 

1503.305 ..................................................... 1503.401 .................................................... Maximum penalty amounts. 

IV. Section-by-Section Analysis 

TSA makes amendments and 

corrections as will remove ambiguities, 

contradictions, and other imperfections 

in the provisions of part 1503 discussed 

below. The changes begin with subpart 

B. Subpart A is reserved. Sections of the 

rule that were reorganized without 

change are not discussed in this 

preamble. 

A. Subpart B—Scope of Investigative 

and Enforcement Procedures 

1. TSA Requirements (§ 1503.101) 

For purposes of this part, TSA adopts 

the term ‘‘TSA requirements’’ to refer to 

the universe of statutory, regulatory, and 

other legal requirements, the violation 

of which could give rise to TSA 

enforcement. Accordingly, the revised 

part 1503 applies to enforcement actions 

for violations of any TSA surface 

transportation requirement under title 

49 U.S.C. and the TWIC requirements 

TSA has issued under 46 U.S.C. ch. 701. 

2. Terms Used in This Part (§ 1503.103) 

Section 1503.103 removes the 

definition of ‘‘complainant’’ because it 

is no longer used in the revised part 

1503. The definitions of ‘‘complaint’’ 

and ‘‘order assessing civil penalty’’ are 

removed because they are defined in the 

specific sections where they are used. 

Section 1503.103 adds a definition of 

‘‘enforcement investigative report 

(EIR)’’, which appears in the current 

part 1503, but is not defined. 

This rule amends the definition of 

‘‘mail’’ by clarifying that it includes 

regular U.S. mail service. In addition, 

the rule deletes reference to overnight 

express courier service in the definition 

of ‘‘mail.’’ Overnight express courier 

service is more appropriately covered 

under the current definition of 

‘‘personal delivery,’’ which includes 

‘‘use of a contract or express messenger 

service.’’ Accordingly, the definition of 

‘‘personal delivery’’ is amended to 

include reference to an overnight 

express courier service. 

The rule amends the definition of 

‘‘pleading’’ to include not only a 

complaint, answer, and amendment to 

the complaint or answer, but also any 

other written submission to the ALJ or 

a party during the course of the hearing 

proceedings. 

The rule codifies the statutory 

definition of ‘‘public transportation 

agency’’ as a publicly owned operator of 

public transportation eligible to receive 

Federal assistance under 49 U.S.C. ch. 

53.12

Under the current part 1503, the term 

‘‘respondent’’ is defined as ‘‘a person, 

corporation, or company named in a 

complaint.’’ This rule amends this 

definition to be ‘‘the person named in a 

Notice of Proposed Civil Penalty, a Final 

Notice of Proposed Civil Penalty and 

Order, or a complaint.’’ This promotes 

clarity in the regulation by permitting 

the use of ‘‘respondent’’ to refer to the 

alleged violator at any stage in the 

enforcement process. 

B. Subpart D—Non-Civil Penalty 

Enforcement 

Subpart D (Warning Notices and 

Letters of Correction (§ 1503.301)) 

broadens the scope of these provisions 

making them applicable to cases 

involving any TSA requirement. It also 

codifies the provisions of section 

1304(e) of the 9/11 Act requiring that: 

(1) TSA give written notice of a 

violation and a reasonable opportunity 

to correct the violation or propose an 

alternative means of compliance before 

taking legal enforcement action against 

a public transportation agency; and (2) 

TSA not initiate civil enforcement 

action for violations of administrative 

and procedural requirements pertaining 

to transportation security grant 

programs under Public Law 110–53.13 In 

determining reasonableness under this 

provision, TSA will consider the totality 

of the circumstances. 

C. Subpart E—Assessment of Civil 

Penalties by TSA 

1. Maximum Civil Penalty Amounts 

(§ 1503.401) 

Section 1503.401 updates the 

maximum civil penalty amounts for 

civil penalties assessed by TSA. 

Congress raised the maximum civil 

penalty amounts per violation for 

certain aviation security statutes. 

Homeland Security Act of 2002, Public 

Law 107–296, section 1602, 116 Stat. 

2135 (Nov. 25, 2002). Congress also 

raised the total civil penalty amount per 

case that TSA may assess. Vision 100— 

Century of Aviation Reauthorization Act 

(Vision 100) (Pub. L. 108–176, sec. 

503(b), 117 Stat. 2490 (Dec. 12, 2003). 

Section 1503.401 also adds reference 

to the maximum civil penalty amounts 

under the 9/11 Act for violations of any 

statute administered by TSA. Statutes 

administered by TSA include both 

aviation security statutes and statutes 

authorizing or directing TSA to impose 

surface transportation requirements. See 

49 U.S.C. ch. 449, and secs. 46302, 

46303, and 46 U.S.C. ch. 701. TSA may 

impose penalties under these statutes 

for violations of any aviation or surface 

transportation security requirements, 

including violations of TSA’s TWIC 

requirements, whether imposed by an 

implementing regulation or order. 

Paragraph (d) adjusts the applicable 

maximum penalties for inflation as 

described below. 

The Federal Civil Penalties Inflation 

Adjustment Act of 1990, Public Law 

101–410 (Adjustment Act), 28 U.S.C. 

2461 note, provides for the regular 

evaluation of civil monetary penalties to 

ensure that they continue to maintain 

their deterrent effect and that penalty 

amounts due the Federal Government 

are properly accounted for and 

collected. 

On April 26, 1996, the President 

signed into law the Omnibus 

Consolidated Rescissions and 

Appropriations Act of 1996, Public Law 

104–134. Section 31001 of that Act, also 

known as the Debt Collection 

Improvement Act of 1996 (Improvement 

Act), amended the Adjustment Act to 

provide more effective tools for 

government-wide collection of 

delinquent debt. Section 31001(s)(1) of 

the Improvement Act added a new 

section 7 to the Adjustment Act 

providing that any increase in a civil 

monetary penalty made pursuant to this 

Act shall apply only to violations that 

occur after the date the increase takes 

effect. The Improvement Act provides 

that the adjustments for inflation 

required by the Adjustment Act should 

be made at least every four years. 

The amounts of the adjustments are 

determined according to a detailed 

formula specified in the Adjustment 

Act, incorporating a ‘‘cost-of-living 

adjustment’’ that is defined in section 

5(b) of the Adjustment Act as being the 


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14Table 24, Historical Consumer Price Index for 

All Urban Consumers (CPI–U): U.S. City Average, 

All Items.’’ See http://www.bls.gov/cpi/ 

cpid0904.pdf. 

percentage (if any) for each civil 

monetary penalty by which— 

(1) The Consumer Price Index for the 

month of June of the calendar year 

preceding the adjustment, exceeds 

(2) The Consumer Price Index for the 

month of June of the calendar year in 

which the amount of such civil 

monetary penalty was last set or 

adjusted pursuant to law. 

Section 31001(s)(2) of the 

Improvement Act also provides that the 

first adjustment of a civil monetary 

penalty made pursuant to these 

procedures may not exceed 10 percent 

of the penalty. Congress reenacted the 

penalties in 2003. This rule, 

accordingly, represents the first 

adjustment of the civil monetary 

penalties after the last Congressional 

action. 

Subpart E of this rule incorporates the 

provisions previously in subpart H and 

establishes new civil penalty maximums 

based on an adjustment for inflation for 

violations of 49 U.S.C. ch. 449 (except 

secs. 44902, 44903(d), 44907(a)– 

(d)(1)(A), 44907(d)(1)(C)–(f), 44908, and 

44909), or 49 U.S.C. 46302 or 46303. 

TSA has adjusted maximum penalties 

as follows: 

The CPI increased by 21.63 percent 

from June 2002 to June 2008.14

Based on this increase, the inflation 

adjusted maximum for the $10,000 civil 

penalty amount would be $12,163. 

However, the $10,000 maximum 

amount is adjusted to $11,000 because 

this is the first adjustment after 

Congress increased the penalties in 

2003. As such, it is limited to an 

increase of 10 percent. The inflation 

adjusted maximum for the $25,000 civil 

penalty amount would be $30,408. 

However, as adjusted the amount is 

$27,500, 10 percent above the amount as 

increased by Congress in 2003. Upon 

the effective date of today’s rule, these 

new civil penalty maximums become 

effective. The $10,000 maximum for 

violations of other provisions of title 49 

and title 46 U.S.C. ch. 701 is not being 

adjusted at this time because it is a 

newly enacted penalty amount. 

2. Delegation of Authority (§ 1503.403) 

Section 1503.403 makes minor 

revisions to former § 1503.16(c), 

delegating to TSA’s Chief Counsel and 

the Deputy Chief Counsel for 

Enforcement the authority to prosecute 

civil enforcement cases and refer them 

to the Attorney General, as necessary. 

Section 1503.403 changes the title of the 

Deputy Chief Counsel and makes 

explicit the authority of the Chief 

Counsel or Deputy Chief Counsel for 

Enforcement to negotiate lower civil 

penalties than those that TSA initially 

proposed. 

3. Injunctions (§ 1503.405) 

Section 1503.405 incorporates the 

provisions regarding the institution of 

injunctions currently codified in 

§ 1503.25, and expands their scope to 

cover any violation of title 49 U.S.C. 

administered by TSA or TSA’s TWIC 

requirements under 46 U.S.C. ch. 701. 

4. Military Personnel (§ 1503.407) 

The current regulation provides that 

the Chief Counsel or Deputy Chief 

Counsel for Civil Enforcement will refer 

such cases to the appropriate military 

authority for such disciplinary action, as 

that authority considers appropriate. 

Section 1503.407 of this rule expands 

the delegation to authorize any 

designated agency official to make such 

referrals and expands the scope of the 

section to encompass violations of any 

TSA requirement. 

5. Service of Documents (§ 1503.409) 

Section 1503.409 amends current 

§ 1503.211, which governs service of 

documents in the context of a formal 

hearing. Section 1503.409 governs the 

service of documents at all stages of the 

civil enforcement process, beginning 

with the service of a notice of proposed 

civil penalty. In addition, this section, 

as amended, permits service to be made 

by electronic mail or facsimile 

transmission, if consented to in writing 

by the person served. Even in such 

cases, however, service by electronic 

mail or facsimile transmission will not 

be effective if the party making service 

obtained credible information indicating 

that the attempted service did not reach 

the person to be served. In addition, for 

pleadings served during the formal 

hearing process, the party making 

service must file with the Enforcement 

Docket Clerk a copy of the opposing 

party’s consent to receive service by 

electronic mail or facsimile 

transmission. The date of service by 

electronic mail or facsimile 

transmission is the date of transmission. 

See F.R. Civ. P. 5(b)(2)(E). 

6. Computation of Time (§ 1503.411) 

Section 1503.411 amends current 

§ 1503.212, which governs the 

computation of time for purposes of 

deadlines applicable in the context of 

the formal hearing process. Section 

1503.411 expands the application of this 

section to time requirements at any 

stage of the civil enforcement process. 

7. Notice of Proposed Civil Penalty 

(§ 1503.413) 

When TSA determines that a person 

has violated a TSA requirement and that 

a civil penalty is warranted, the agency 

issues a Notice of Proposed Civil 

Penalty to the alleged violator. Section 

1503.413 revises without significant 

change the provisions governing the 

issuance of Notices of Proposed Civil 

Penalty currently codified at 

§ 1503.16(d) and updates the address for 

TSA’s Enforcement Docket Clerk, which 

now is located at the United States 

Coast Guard (USCG) ALJ Docketing 

Center, 40 S. Gay Street, Room 412, 

Baltimore, Maryland 21202–4022. 

8. Request for Portions of the 

Enforcement Investigative Report (EIR) 

(§ 1503.415) 

Section 1503.415 revises slightly the 

provisions currently codified at 

§ 1503.12 governing the release of 

limited investigative materials to the 

recipient of a Notice of Proposed Civil 

Penalty. When TSA issues a Notice of 

Proposed Civil Penalty, the respondent 

may request portions of the relevant 

investigative report that are not 

privileged (e.g., under the deliberative 

process, attorney work-product, or 

attorney-client privileges). This 

information may contain Sensitive 

Security Information (SSI), which is 

restricted from public disclosure under 

49 CFR part 1520. TSA will provide this 

information to the respondent for the 

sole purpose of preparing a response to 

the allegations contained in the Notice 

of Proposed Civil Penalty. The 

individual receiving SSI under this 

provision must comply with 49 CFR 

part 1520, which permits TSA to require 

a background check and imposes other 

conditions, as well as the requirements 

to manage the information in 

accordance with part 1520. Any 

violation of 49 CFR part 1520 by the 

respondent would be a violation of TSA 

requirements and subject to additional 

enforcement action. 

9. Final Notice of Proposed Civil 

Penalty and Order (§ 1503.417) 

Section 1503.417 makes one 

significant change in the provisions 

governing the issuance of Final Notices 

of Proposed Civil Penalty currently 

codified at § 1503.16(e). The change is 

intended to reduce the time necessary to 

resolve civil penalty cases. 

Under the current regulation, TSA 

issues a Final Notice of Proposed Civil 

Penalty when: (1) The alleged violator 

fails to respond to the Notice of 

Proposed Civil Penalty within 30 days 

after receipt of that notice; or (2) the 


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parties have engaged in settlement 

discussions but have not reached a 

settlement. After the Final Notice of 

Proposed Civil Penalty is issued, the 

respondent has 15 days from receipt to: 

(1) Pay the proposed civil penalty; (2) 

negotiate and pay a lesser amount; or (3) 

request a formal hearing. If the 

respondent pays the penalty or fails to 

exercise the other two options, TSA 

issues an Order Assessing Civil Penalty, 

which ends the enforcement process 

and makes the civil penalty final. 

Amended § 1503.417, in conjunction 

with amended § 1503.419(b), shortens 

this process by making the Final Notice 

of Proposed Civil Penalty automatically 

convert to an Order Assessing Civil 

Penalty if one of the events in 

§ 503.419(b) has occurred, eliminating 

the need for TSA to issue a separate 

Order Assessing Civil Penalty. This 

change will not affect the procedural 

rights of the alleged violator; rather, it 

will streamline the process and allow 

quicker resolution of cases, once a 

respondent has exercised, or failed to 

exercise, those procedural rights that are 

available. TSA currently uses this 

streamlined process for routine 

enforcement actions against individuals 

who bring prohibited items through 

airport screening checkpoints. Thus, the 

revision to § 1503.417 primarily affects 

enforcement actions against entities, 

such as airports and air carriers. Under 

§ 1503.417, the Final Notice of Proposed 

Civil Penalty is now called a Final 

Notice of Civil Penalty and Order 

(‘‘Final Notice and Order’’). 

10. Order Assessing Civil Penalty 

(§ 1503.419) 

Section 1503.419 revises the 

provisions governing the issuance of 

Orders Assessing Civil Penalty currently 

codified at § 1503.16(b), with the change 

discussed above regarding the automatic 

conversion of a Final Notice and Order 

to an Order Assessing Civil Penalty. 

TSA has moved the provisions of 

current § 1503.16(b) regarding the status 

of ALJ decisions as orders assessing 

civil penalty to § 1503.655(c). 

11. Streamlined Civil Penalty 

Procedures for Certain Security 

Violations (§ 1503.421) 

Section 1503.421 reorganizes and 

makes minor revisions to the provisions 

of § 1503.29 of the current regulation, 

which provide for the issuance of 

Notices of Violation for certain types of 

common security violations at a 

passenger screening or baggage 

screening checkpoint. TSA issues 

Notices of Violation when an individual 

presents a weapon, explosive, or 

incendiary for screening at a passenger 

screening checkpoint or in checked 

baggage, and where the amount of the 

proposed civil penalty is less than 

$5,000. A Notice of Violation contains a 

statement of the charges, the amount of 

the proposed civil penalty, and an offer 

to settle the matter for a lesser specified 

penalty amount. Under the current 

regulation, the recipient of a Notice of 

Violation has the option to request an 

Informal Conference with an agency 

attorney. Under this rule, an Informal 

Conference with an agency attorney or 

another agency official, as determined 

by TSA, is available. This change allows 

TSA to increase its capacity to provide 

Informal Conferences and therefore 

resolve cases more quickly. 

12. Consent Orders (§ 1503.423) 

Under § 1503.13 of the current 

regulation, a consent order must 

contain: (1) An admission of all 

jurisdictional facts; (2) an express 

waiver of the right to further procedural 

steps and of all rights to judicial review; 

and (3) an incorporation of the notice of 

proposed civil penalty by reference and 

an acknowledgment that the notice may 

be used to construe the terms of the 

order. 

Section 1503.423 revises slightly the 

provisions of this section by eliminating 

the reference to the notice of proposed 

civil penalty, thereby making the 

consent order a self-contained 

document. The consent order includes: 

(1) An admission of all jurisdictional 

facts; (2) an admission of agreed-upon 

allegations; (3) a statement of the law 

violated; (4) a finding of violation; and 

(5) an express waiver of the right to 

further procedural steps and of all rights 

to administrative and judicial review. 

13. Compromise Orders (§ 1503.425) 

Section 1503.425 incorporates and 

makes slight revisions to the provisions 

of § 1503.16(l) of the current regulation. 

Section 1503.425 provides explicitly 

that a compromise order will include all 

jurisdictional facts and allegations. 

14. Request for a Formal Hearing 

(§ 1503.427) 

Section 1503.427 revises slightly the 

provisions of § 1503.16(f) of the current 

regulations to make clear that the filing 

of a request for a formal hearing does 

not guarantee a person an opportunity 

to appear before an ALJ in person. The 

ALJ may issue an initial decision or 

dispositive order resolving the case 

prior to the commencement of the 

formal hearing. 

15. Filing of Documents With the 

Enforcement Docket Clerk (§ 1503.429) 

Section 1503.429 of this rule revises 

slightly the provisions of § 1503.210 to 

add provisions permitting the filing of 

documents with the Enforcement 

Docket Clerk by electronic mail or 

facsimile transmission. The amended 

rule also updates the address of the 

Enforcement Docket Clerk, which now 

is located at the United States Coast 

Guard (USCG) ALJ Docketing Center, 40 

S. Gay Street, Room 412, Baltimore, 

Maryland 21202–4022. If this address 

changes in the future, TSA will 

announce the change through a notice 

in the Federal Register. 

16. Certification of Documents 

(§ 1503.431) 

Section 1503.431 of this rule revises 

slightly the provisions of § 1503.207 of 

the current regulation governing the 

certification of documents filed with the 

Enforcement Docket clerk by adding 

several items to the certification. One of 

the items to which one must certify 

under the current regulation at 

§ 1503.207(b)(1) is that the document is 

‘‘[w]arranted by existing law or that a 

good faith argument exists for extension, 

modification, or reversal of existing 

law.’’ This rule requires that a good faith 

and non-frivolous argument exist for 

extension, modification, or reversal of 

existing law. This rule also adds that a 

certification includes that the document 

is supported by evidence, and any 

denials of factual contentions are 

warranted on the evidence. These issues 

are implicit in the requirements 

governing certification of documents 

under the current regulation; this rule 

makes them explicit. 

D. Subpart G—Rules of Practice in TSA 

Civil Penalty Actions 

1. Applicability (§ 1503.601) 

Section 1503.601 of this rule revises 

the provisions of § 1503.201 of the 

current regulation, regarding the 

applicability of TSA’s formal hearing 

procedures. First, in accordance with 

the 9/11 Act, paragraph (a) expands the 

applicability of the formal hearing 

procedures to cases involving violations 

of any statutory requirement 

administered by TSA, including surface 

transportation requirements and TWIC 

requirements. 

Second, paragraph (b) of this rule 

makes clear that the formal hearing 

procedures cannot be used to conduct 

an adjudication of the validity of any 

TSA rule or other requirement under the 

U.S. Constitution, the Administrative 

Procedure Act, or any other law. Put 

differently, a person may not use a 


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formal hearing under subpart G to 

challenge the legal basis of a TSA rule 

or other requirement, the violation of 

which gave rise to the issuance of a civil 

penalty. The purpose of the formal 

hearing is to adjudicate whether a 

violation occurred and whether the civil 

penalty is appropriate. See Appeal of 

Rendon, 2004 DOT Av. LEXIS 1287, at 

*3, (ALJ lacks authority to determine 

whether a TSA regulation was 

unconstitutional) aff’d sub nom. Rendon 

v. Transportation Security Admin., 424 

F.3d 475 (6th Cir. 2005). 

Third, paragraph (d) of this rule adds 

a provision clarifying that the 

consolidation of two or more cases that 

individually are below the Federal 

district court jurisdictional threshold 

does not cause the consolidated action 

to exceed that threshold and thereby fall 

within the exclusive jurisdiction of the 

Federal district court. The issue of 

consolidation of cases is addressed 

further in § 1503.613. 

2. Administrative Law Judges 

(§ 1503.607) 

Section 1503.607 of this rule revises 

the provisions of § 1503.205 of the 

current rule, with the following 

changes. First, paragraph (a) makes 

explicit the following implicit powers 

that an ALJ holds under the current 

regulation: (1) To issue scheduling 

orders and other appropriate orders 

regarding discovery or other matters that 

come before him or her; (2) to hold 

conferences to settle or to simplify the 

issues on his or her own motion; (3) to 

strike unsigned documents unless 

omission of the signature is corrected 

promptly after being called to the 

attention of the attorney or party; and 

(4) to order payment of witness fees. 

Second, paragraph (b) of this rule 

adds an express limitation on an ALJ’s 

powers, consistent with current law. 

Specifically, the amended rule provides 

that an ALJ is not authorized to decide 

issues involving the validity of a TSA 

regulation, order, or other requirement 

under the U.S. Constitution, the 

Administrative Procedure Act, or other 

law. See Appeal of Rendon, 2004 DOT 

Av. LEXIS 1287, at *3, (ALJ lacks 

authority to determine whether a TSA 

regulation was unconstitutional) aff’d 

sub nom. Rendon v. Transportation 

Security Admin., 424 F.3d 475 (6th Cir. 

2005). Nor may the ALJ adopt or follow 

a standard of proof or procedure 

contrary to that set forth in TSA’s formal 

hearing procedures. 

3. Complaint (§ 1503.609) 

Section 1503.609 of this rule revises 

slightly the provisions of § 1503.208 of 

the current regulation. First, § 1503.609 

changes from 20 to 30 the number of 

days within which TSA has to file a 

complaint after a respondent requests a 

formal hearing. A 30-day period is 

consistent with the length of most of the 

other response periods allowed under 

TSA’s enforcement procedures. 

Second, § 1503.609 omits provisions 

on the manner of service of the 

complaint, because service of all 

documents is addressed in § 1503.409. 

4. Consolidation and Separation of 

Cases (§ 1503.613) 

This rule adds a new provision 

governing the consolidation and 

separation of cases. In addition to 

clarifying the process for consolidation 

and separation of cases, § 1503.613 

makes clear that consolidation of two or 

more actions that individually involve 

amounts in controversy below the 

jurisdictional maximum of the 

administrative court will not cause the 

resulting action to exceed that 

jurisdictional maximum and thereby 

come under the exclusive jurisdiction of 

the Federal district courts, as specified 

in 49 U.S.C. 46301(d)(4)(A). 

5. Extension of Time (§ 1503.617) 

Section 1503.617 of this rule revises 

slightly the provisions of § 1503.213 of 

the current rule by adding a new 

provision specifically governing 

requests for continuances of a hearing. 

Paragraph (c) provides that either party 

may request a continuance of the date 

of a hearing, for good cause shown, no 

later than seven days before the date of 

the hearing. Good cause does not 

include a scheduling conflict involving 

the parties or their attorneys which by 

due diligence could have been foreseen. 

This new provision is intended to 

establish certainty and predictability for 

the parties as they prepare for a formal 

hearing and discourage undue delay in 

the proceedings. 

6. Withdrawal of Complaint or Request 

for Hearing (§ 1503.623) 

Section 1503.623 of this rule revises 

slightly the provision of § 1503.215 of 

the current regulation, which permits an 

agency attorney to withdraw a 

complaint or a respondent to withdraw 

a request for a hearing without the 

consent of the ALJ, at any time before 

or during a hearing. The rule now 

permits the ALJ to dismiss the 

proceedings without prejudice if the 

withdrawing party shows good cause for 

dismissal without prejudice. The 

current regulation requires dismissal 

with prejudice in all cases. This change 

is intended to leave open the possibility 

that the withdrawing party may have a 

bona fide reason for withdrawing and 

should not be automatically precluded 

from refiling. In addition, the amended 

rule permits a party to withdraw a 

request for hearing without prejudice at 

any time before a complaint has been 

filed. This is intended to address 

situations where respondents 

mistakenly request a hearing when they 

intended to ask for an informal 

conference or another procedural 

option. 

7. Discovery (§ 1503.633) 

Section 1503.633 of this rule 

incorporates the provisions in 

§ 1503.220 of the current regulation and 

adds a new provision at § 1503.633(g) 

clarifying a party’s access to Sensitive 

Security Information through discovery. 

Specifically, at the request of a party, 

TSA may provide SSI to the party when, 

in the sole discretion of TSA, access to 

the SSI is necessary for the party to 

prepare a response to allegations 

contained in the complaint. TSA may 

provide such information, subject to 

such restrictions on further disclosure 

and such safeguarding requirements as 

TSA determines appropriate. This new 

provision largely reiterates a similar 

provision in 49 CFR 1520.15(d) of TSA’s 

regulation governing Sensitive Security 

Information. TSA repeats it here for 

clarity. 

8. Standard of Proof (§ 1503.637) 

Section 1503.637 of this rule amends 

the provisions of § 1503.223 of the 

current regulation regarding the 

standard of proof in a formal hearing. 

The current regulation states that a party 

must prove its case or defense by ‘‘a 

preponderance of reliable, probative, 

and substantial evidence.’’ This 

statement of the standard may be 

confusing because it refers to 

‘‘substantial evidence.’’ The ‘‘substantial 

evidence’’ standard is a standard of 

judicial review applicable to an agency’s 

finding of fact. See American Textile 

Mfrs. Inst. v. Donovan, 452 U.S. 490, 

522 (1981). Courts have defined 

‘‘substantial evidence’’ as ‘‘such 

relevant evidence as a reasonable mind 

might accept as adequate to support a 

conclusion.’’ Id. Moreover, courts have 

consistently held that substantial 

evidence ‘‘requires more than a scintilla 

but less than a preponderance.’’ Id. 

Thus, the substantial evidence standard 

and the preponderance standard differ. 

By using the term ‘‘substantial 

evidence’’ in the description of the 

preponderance standard, § 1503.223 of 

the current regulation appears to 

introduce confusion about the 

appropriate standard of proof. To 

eliminate any confusion, TSA has 

restated the standard of proof simply as 


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proof of a party’s case or defense by a 

preponderance of the evidence. 

Preponderance of the evidence means 

proof by information that, compared 

with information opposing it, leads to 

the conclusion that the fact at issue is 

more probably true than not. 

9. Argument Before the ALJ (§ 1503.653) 

Section 1503.653 of this rule revises 

slightly the provisions in § 1503.231 of 

the current regulation. Current 

§ 1503.231(a) states that the ALJ may 

request written arguments during the 

hearing if he or she finds that 

submission of written arguments would 

be ‘‘reasonable.’’ This rule changes this 

standard by providing that the ALJ may 

request written arguments during the 

hearing if written argument is 

‘‘necessary to issue the ruling or order 

to which the argument pertains.’’ The 

purpose of this change is simply to 

clarify to the parties and the ALJ what 

constitutes a reasonable ground to 

request written arguments. 

10. Initial Decision (§ 1503.655) 

Section 1503.655 of this rule 

regarding the initial decision of the ALJ 

revises slightly the provision of 

§ 1503.232 of the current regulation. 

Paragraph (a) makes a conforming 

change by clarifying that the ALJ’s 

issuance of an initial decision may 

follow the party’s submission of written 

posthearing briefs. 

Paragraph (b) changes the requirement 

as to when an initial decision must be 

issued and whether it must be written. 

Under the current regulation, the ALJ 

must issue the initial decision and order 

orally on the record at the conclusion of 

the hearing, unless the ALJ finds that 

issuing a written initial decision is 

reasonable. In such cases the ALJ must 

issue a written initial decision not later 

than 30 days after the conclusion of the 

hearing or submission of the last 

posthearing brief. This rule changes this 

practice by making the issuance of a 

written initial decision mandatory in all 

cases. Specifically, paragraph (b) 

provides that, after the conclusion of the 

hearing, the ALJ may issue the initial 

decision and order orally on the record. 

The ALJ must issue a written initial 

decision and order not later than 30 

days after the conclusion of the hearing 

or submission of the last post-hearing 

brief. The ALJ must serve a copy of any 

written initial decision on each party. 

TSA has made this change to better 

document ALJ decisions and preserve 

guidance for future enforcement 

proceedings. 

Paragraph (d) revises the provision in 

§ 1503.233(j)(3) of the current regulation 

regarding the precedential value of ALJ 

rulings and initial decisions. That 

section now states that any issue, 

finding or conclusion, order, ruling, or 

initial decision of an ALJ that has not 

been appealed to the TSA decision 

maker is not precedent in any other civil 

penalty action. While this is correct in 

that such decisions are not binding in 

other civil penalty actions, the language 

of this provision appeared to preclude 

reliance on such prior decisions as 

instructive or persuasive. In the interest 

of promoting predictability and 

consistency in enforcement, it is 

appropriate that ALJ initial decisions be 

recognized as persuasive authority in 

subsequent civil penalty actions. 

Consequently, paragraph (d) revises the 

current regulation by providing that an 

initial decision of an ALJ may be 

considered as persuasive authority in 

any other civil penalty action, unless 

appealed and reversed by the TSA 

decision maker or a court of competent 

jurisdiction. 

11. Appeal From Initial Decision 

(§ 1503.657) 

Section 1503.657 of this rule revises 

the reference in paragraph (b) to the 

preponderance-of-the-evidence standard 

of proof, as discussed previously. 

V. Administrative Procedure Act 

The Administrative Procedure Act 

(APA) requires TSA to provide public 

notice and seek public comment on 

substantive regulations. 5 U.S.C. 553. 

The APA, however, excludes certain 

types of regulations and permits 

exceptions for other types of regulations 

from this public notice and comment 

requirement. TSA issues this rule 

without providing the opportunity for 

prior notice and comment for the 

reasons described below. TSA is 

requesting, however, and will consider, 

public comments submitted during the 

public comment period as described in 

the ‘‘Comments Invited’’ section. 

Reorganization and clarification of 49 

CFR part 1503. The Administrative 

Procedure Act (APA) exempts from the 

prior notice and opportunity for 

comment requirements ‘‘rules of agency 

organization, procedure or practice.’’ 5 

U.S.C. 553(b)(A). The reorganization 

and clarification of part 1503 makes 

changes such as making it explicit that 

an ALJ can issue scheduling orders or 

hold conferences changing from 20 to 30 

the number of days within which TSA 

must file a complaint after a respondent 

requests a formal hearing. Accordingly, 

to the extent that this rule adopts rules 

of agency organization, procedure or 

practice, those portions of the rule are 

excepted from the notice-and-comment 

requirements under 5 U.S.C. 553(b)(A). 

Surface Mode Administrative 

Penalties. This portion of the rule would 

codify provisions of the 

9/11 Act that bring surface mode 

violations within the scope of TSA’s 

civil penalty authority. Sections 1302 

and 1304(e) of the 9/11 Act consist of 

specific directions to TSA for assessing 

civil penalties for surface transportation 

and Transportation Worker 

Identification Credential violations. 

Prior to enactment of the 9/11 Act, TSA 

could assess civil penalties primarily for 

violations of ch. 449 of title 49 U.S.C., 

which relates to aviation. Accordingly, 

this rule would make TSA’s current 

civil penalty enforcement procedures at 

49 CFR part 1503, which now only 

apply to violations of ch. 449 of title 49 

U.S.C. (aviation), applicable to the 

additional types of violations added by 

the 9/11 Act, such as violations of 

surface transportation requirements. As 

an application of the existing 

procedures to a new substantive area of 

regulation, the rule remains a 

procedural rule that may be excepted 

from notice and comment under 5 

U.S.C. 553(a)(2). Advance notice-andcomment, moreover, is unnecessary and 

would not serve the public interest 

under 5 U.S.C. 553(b)(3)(B) because 

these rules already apply to all other 

civil penalties before TSA. 

Civil Monetary Penalty Adjustment. 

This rule makes inflation adjustments to 

the maximum civil penalty amounts in 

accordance with the Federal Civil 

Penalty Inflation Adjustment Act of 

1990, 28 U.S.C. 2461 note. TSA has no 

discretion over the amounts of these 

increases. The Adjustment Act specifies 

an arithmetic calculation of the inflation 

adjustment. This rule is a 

nondiscretionary ministerial action to 

conform to the Adjustment Act. 

Therefore, advance public notice and an 

opportunity for public comment is 

unnecessary and not in the public 

interest. 5 U.S.C. 553(b)(3)(B). 

VI. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501 et seq., requires 

that TSA consider the impact of 

paperwork and other information 

collection burdens imposed on the 

public and, under the provisions of PRA 

section 3507(d), obtain approval from 

the Office of Management and Budget 

(OMB) for each collection of 

information it conducts, sponsors, or 

requires through regulations. As 

protection provided by the Paperwork 

Reduction Act, as amended, an agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 


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15 58 FR 51735 (October 4, 1993). 

displays a currently valid OMB control 

number. 

TSA has determined that there are no 

current or new information collection 

requirements associated with this rule. 

VII. Economic Impact Analyses 

A. Regulatory Evaluation Summary 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866, Regulatory 

Planning and Review 15 directs each 

Federal agency to propose or adopt a 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980, 5 U.S.C. 601 et seq., as 

amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996, requires agencies to 

analyze the economic impact of 

regulatory changes on small entities. 

Third, the Trade Agreements Act, 19 

U.S.C. 2531–2533, prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. Fourth, 

the Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1531–1538, requires 

agencies to prepare a written assessment 

of the costs, benefits, and other effects 

of proposed or final rules that include 

a Federal mandate likely to result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

annually (adjusted for inflation). 

B. Executive Order 12866 Assessment 

In conducting these analyses, TSA has 

determined: 

1. This rulemaking is not a 

‘‘significant regulatory action’’ as 

defined in the Executive Order. The 

Office of Management and Budget 

agrees with this conclusion. 

2. This rulemaking does not have a 

significant economic impact on a 

substantial number of small entities. 

3. This rulemaking does not constitute 

a barrier to international trade. 

4. This rulemaking does not impose 

an unfunded mandate on State, local, or 

tribal governments, or on the private 

sector. 

The bases for these conclusions are 

summarized below. 

C. Costs and Benefits 

This is a procedural rule whose costs 

and benefits will not significantly 

exceed, or be lower than, those imposed 

by TSA’s current rule. While maximum 

penalty amounts have been adjusted for 

inflation, this change is not likely to 

have a significant impact because TSA 

does not expect to impose maximum 

penalties in most enforcement actions. 

More importantly, however, the costs of 

these penalties only affect those that 

engage in conduct prohibited by statute 

or related regulations. Those who 

comply with the law will not be 

affected. 

D. Regulatory Flexibility Act Assessment 

The Regulatory Flexibility Act (RFA) 

of 1980 requires that agencies perform a 

review to determine whether a rule will 

have a significant economic impact on 

a substantial number of small entities. If 

the agency determines that a rule will 

have a significant economic impact on 

a substantial number of small entities, 

the agency must prepare a regulatory 

flexibility analysis as described in the 

RFA. For purposes of the RFA, small 

entities include small businesses, notfor-profit organizations, and small 

governmental jurisdictions. 5 U.S.C. 

601(6). Individuals and States are not 

included in the definition of a small 

entity. Pursuant to 5 U.S.C. 603(a), 

however, the requirement to perform a 

regulatory flexibility analysis does not 

apply where, as is the case in today’s 

rule, the agency is not required to issue 

a proposed rule prior to issuing a final 

rule. 

This rule provides guidance for the 

parties as to how civil penalties are 

imposed. The rules state the procedures 

for investigations, enforcement actions, 

for TSA civil penalty actions, and other 

details of imposing and adjudicating 

civil penalties. The civil penalties 

implemented by this rule will only 

affect those that engage in conduct 

prohibited by statute or related 

regulations. Those who comply with the 

law will not be affected by these civil 

penalties. Pursuant to § 1503.401, 

maximum civil penalties for individuals 

and small businesses are lower than 

those for larger entities. 

E. International Trade Impact 

Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

establishing any standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Legitimate domestic objectives, such as 

safety, are not considered unnecessary 

obstacles. The statute also requires 

consideration of international standards 

and, where appropriate, that they be the 

basis for U.S. standards. TSA has 

assessed the potential effect of this 

rulemaking and has determined that it 

will impose the same costs on domestic 

and international entities and thus have 

a neutral trade impact. 

F. Unfunded Mandates Assessment 

The Unfunded Mandates Reform Act 

of 1995 is intended, among other things, 

to curb the practice of imposing 

unfunded Federal mandates on State, 

local, and tribal governments. Title II of 

the Act requires each Federal agency to 

prepare a written statement assessing 

the effects of any Federal mandate in a 

proposed or final agency rule that may 

result in a $100 million or more 

expenditure (adjusted annually for 

inflation) in any one year by State, local, 

and tribal governments, in the aggregate, 

or by the private sector; such a mandate 

is deemed to be a ‘‘significant regulatory 

action.’’ 

This rulemaking does not contain 

such a mandate. The requirements of 

Title II of the Act, therefore, do not 

apply and TSA has not prepared a 

statement under the Act. 

VIII. Other Analyses 

A. Executive Order 13132, Federalism 

TSA has analyzed this rule under the 

principles and criteria of Executive 

Order 13132, Federalism. TSA has 

determined that this action will not 

have a substantial direct effect on the 

States, on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, and therefore does 

not have Federalism implications. 

B. Environmental Analysis 

TSA has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA), 42 U.S.C. 

4321–4347, and has determined that 

this action will not have a significant 

effect on the human environment. 

C. Energy Impact Analysis 

The energy impact of the notice has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA), Public Law 94–163, as amended 

(42 U.S.C. 6362). TSA has determined 

that this rulemaking is not a major 

regulatory action under the provisions 

of the EPCA. 

List of Subjects in 49 CFR Part 1503 

Administrative practice and 

procedure, Investigations, Law 

enforcement, Penalties, Transportation. 

The Amendments 

■ For the reasons set forth in the 

preamble, the Transportation Security 

Administration revises part 1503 in 

chapter XII of title 49, Code of Federal 

Regulations to read as follows: 


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36040 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations 

PART 1503—INVESTIGATIVE AND 

ENFORCEMENT PROCEDURES 

Subpart A—[Reserved] 

Subpart B—Scope of Investigative and 

Enforcement Procedures 

Sec. 

1503.101 TSA requirements. 

1503.103 Terms used in this part. 

Subpart C—Investigative Procedures 

1503.201 Reports of violations. 

1503.203 Investigations. 

1503.205 Records, documents, and reports. 

Subpart D—Non-Civil Penalty Enforcement 

1503.301 Warning notices and letters of 

correction. 

Subpart E—Assessment of Civil Penalties 

by TSA 

1503.401 Maximum penalty amounts. 

1503.403 Delegation of authority. 

1503.405 Injunctions. 

1503.407 Military personnel. 

1503.409 Service of documents. 

1503.411 Computation of time. 

1503.413 Notice of Proposed Civil Penalty. 

1503.415 Request for portions of the 

enforcement investigative report (EIR). 

1503.417 Final Notice of Proposed Civil 

Penalty and Order. 

1503.419 Order Assessing Civil Penalty. 

1503.421 Streamlined civil penalty 

procedures for certain security 

violations. 

1503.423 Consent orders. 

1503.425 Compromise orders. 

1503.427 Request for a formal hearing. 

1503.429 Filing of documents with the 

Enforcement Docket Clerk. 

1503.431 Certification of documents. 

Subpart F—[Reserved] 

Subpart G—Rules of Practice in TSA Civil 

Penalty Actions 

1503.601 Applicability. 

1503.603 Separation of functions. 

1503.605 Appearances and rights of parties. 

1503.607 Administrative law judges. 

1503.609 Complaint. 

1503.611 Answer. 

1503.613 Consolidation and separation of 

cases. 

1503.615 Notice of hearing. 

1503.617 Extension of time. 

1503.619 Intervention. 

1503.621 Amendment of pleadings. 

1503.623 Withdrawal of complaint or 

request for hearing. 

1503.625 Waivers. 

1503.627 Joint procedural and discovery 

schedule. 

1503.629 Motions. 

1503.631 Interlocutory appeals. 

1503.633 Discovery. 

1503.635 Evidence. 

1503.637 Standard of proof. 

1503.639 Burden of proof. 

1503.641 Offer of proof. 

1503.643 Public disclosure of evidence. 

1503.645 Expert or opinion witnesses. 

1503.647 Subpoenas. 

1503.649 Witness fees. 

1503.651 Record. 

1503.653 Argument before the ALJ. 

1503.655 Initial decision. 

1503.657 Appeal from initial decision. 

1503.659 Petition to reconsider or modify a 

final decision and order of the TSA 

decision maker on appeal. 

1503.661 Judicial review of a final order. 

Subpart H—Judicial Assessment of Civil 

Penalties 

1503.701 Applicability of this subpart. 

1503.703 Civil penalty letter; referral. 

Subpart I—Formal Complaints 

1503.801 Formal complaints. 

Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 

(note); 49 U.S.C. 114, 20109, 31105, 40113– 

40114, 40119, 44901–44907, 46101–46107, 

46109–46110, 46301, 46305, 46311, 46313– 

46314; Sec. 1413(i), Public Law 110–53, 121 

Stat. 414 (6 U.S.C. 1142). 

PART 1503—INVESTIGATIVE AND 

ENFORCEMENT PROCEDURES 

Subpart A—[Reserved] 

Subpart B—Scope of Investigative and 

Enforcement Procedures 

§ 1503.101 TSA requirements. 

(a) The investigative and enforcement 

procedures in this part apply to TSA’s 

investigation and enforcement of 

violations of TSA requirements. 

(b) For purposes of this part, the term 

TSA requirements means the following 

statutory provisions and a regulation 

prescribed or order issued under any of 

those provisions: 

(1) Those provisions of title 49 U.S.C. 

administered by the Administrator; and 

(2) 46 U.S.C. chapter 701. 

§ 1503.103 Terms used in this part. 

In addition to the terms in § 1500.3 of 

this chapter, the following definitions 

apply in this part: 

Administrative law judge or ALJ 

means an ALJ appointed pursuant to the 

provisions of 5 U.S.C. 3105. 

Agency attorney means the Deputy 

Chief Counsel for Enforcement or an 

attorney that he or she designates. An 

agency attorney will not include— 

(1) Any attorney in the Office of the 

Chief Counsel who advises the TSA 

decision maker regarding an initial 

decision or any appeal to the TSA 

decision maker; or 

(2) Any attorney who is supervised in 

a civil penalty action by a person who 

provides such advice to the TSA 

decision maker in that action or a 

factually related action. 

Attorney means any person who is 

eligible to practice law in, and is a 

member in good standing of the bar of, 

the highest court of any State, 

possession, territory, or Commonwealth 

of the United States, or of the District of 

Columbia, and is not under any order 

suspending, enjoining, restraining, 

disbarring, or otherwise restricting him 

or her in the practice of law. 

Enforcement Investigative Report or 

EIR means a written report prepared by 

a TSA Inspector or other authorized 

agency official detailing the results of an 

inspection or investigation of a violation 

of a TSA requirement, including copies 

of any relevant evidence. 

Mail includes regular First Class U.S. 

mail service, U.S. certified mail, or U.S. 

registered mail. 

Party means the respondent or TSA. 

Personal delivery includes handdelivery or use of a contract or express 

messenger service, including an 

overnight express courier service. 

Personal delivery does not include the 

use of Government interoffice mail 

service. 

Pleading means a complaint, an 

answer, motion and any amendment of 

these documents permitted under this 

subpart as well as any other written 

submission to the ALJ or a party during 

the course of the hearing proceedings. 

Properly addressed means a 

document that shows an address 

contained in agency records, a 

residential, business, or other address 

submitted by a person on any document 

provided under this part, or any other 

address obtained by other reasonable 

and available means. 

Public transportation agency means a 

publicly owned operator of public 

transportation eligible to receive Federal 

assistance under 49 U.S.C. chapter 53. 

Respondent means the person named 

in a Notice of Proposed Civil Penalty, a 

Final Notice of Proposed Civil Penalty 

and Order, or a complaint. 

TSA decision maker means the 

Administrator, acting in the capacity of 

the decision maker on appeal, or any 

person to whom the Administrator has 

delegated the Administrator’s decisionmaking authority in a civil penalty 

action. As used in this part, the TSA 

decision maker is the official authorized 

to issue a final decision and order of the 

Administrator in a civil penalty action. 

Subpart C—Investigative Procedures 

§ 1503.201 Reports of violations. 

(a) Any person who knows of a 

violation of a TSA requirement should 

report it to appropriate personnel of any 

TSA office. 

(b) TSA will review each report made 

under this section, together with any 

other information TSA may have that is 

relevant to the matter reported, to 

determine the appropriate response, 

including additional investigation or 

administrative or legal enforcement 

action. 


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§ 1503.203 Investigations. 

(a) General. The Administrator, or a 

designated official, may conduct 

investigations, hold hearings, issue 

subpoenas, require the production of 

relevant documents, records, and 

property, and take evidence and 

depositions. 

(b) Delegation of authority. For the 

purpose of investigating alleged 

violations of a TSA requirement, the 

Administrator’s authority may be 

exercised by the agency’s various offices 

for matters within their respective areas 

for all routine investigations. When the 

compulsory processes of 49 U.S.C. 

46104 are invoked, the Administrator’s 

authority has been delegated to the 

Chief Counsel, each Deputy Chief 

Counsel, and in consultation with the 

Office of Chief Counsel, the Assistant 

Administrator for Security Operations, 

the Assistant Administrator for 

Transportation Sector Network 

Management, the Assistant 

Administrator for Inspections, the 

Assistant Administrator for Law 

Enforcement/Director of the Federal Air 

Marshal Service, each Special Agent in 

Charge, and each Federal Security 

Director. 

§ 1503.205 Records, documents, and 

reports. 

Each record, document, and report 

that regulations issued by the 

Transportation Security Administration 

require to be maintained, exhibited, or 

submitted to the Administrator may be 

used in any investigation conducted by 

the Administrator; and, except to the 

extent the use may be specifically 

limited or prohibited by the section that 

imposes the requirement, the records, 

documents, and reports may be used in 

any civil penalty action or other legal 

proceeding. 

Subpart D—Non-Civil Penalty 

Enforcement 

§ 1503.301 Warning notices and letters of 

correction. 

(a) If TSA determines that a violation 

or an alleged violation of a TSA 

requirement does not require the 

assessment of a civil penalty, an 

appropriate official of the TSA may take 

administrative action in disposition of 

the case. 

(b) An administrative action under 

this section does not constitute a formal 

adjudication of the matter, and may be 

taken by issuing the alleged violator— 

(1) A ‘‘Warning Notice’’ that recites 

available facts and information about 

the incident or condition and indicates 

that it may have been a violation; or 

(2) A ‘‘Letter of Correction’’ that 

confirms the TSA decision in the matter 

and states the necessary corrective 

action the alleged violator has taken or 

agrees to take. If the agreed corrective 

action is not fully completed, legal 

enforcement action may be taken. 

(c) The issuance of a Warning Notice 

or Letter of Correction is not subject to 

appeal under this part. 

(d) In the case of a public 

transportation agency that is determined 

to be in violation of a TSA requirement, 

an appropriate TSA official will seek 

correction of the violation through a 

written ‘‘Notice of Noncompliance’’ to 

the public transportation agency giving 

the public transportation agency 

reasonable opportunity to correct the 

violation or propose an alternative 

means of compliance acceptable to TSA. 

(e) TSA will not take legal 

enforcement action against a public 

transportation agency under subpart E 

unless it has provided the Notice of 

Noncompliance described in paragraph 

(d) of this section and the public 

transportation agency fails to correct the 

violation or propose an alternative 

means of compliance acceptable to TSA 

within the timeframe provided in the 

notice. 

(f) TSA will not initiate civil 

enforcement action for violations of 

administrative and procedural 

requirements pertaining to the 

application for, and the expenditure of, 

funds awarded pursuant to 

transportation security grant programs 

under Public Law 110–53. 

Subpart E—Assessment of Civil 

Penalties by TSA 

§ 1503.401 Maximum penalty amounts. 

(a) General. TSA may assess civil 

penalties not exceeding the following 

amounts against a person for the 

violation of a TSA requirement. 

(b) In General. Except as provided in 

paragraph (c) of this section, in the case 

of violation of title 49 U.S.C. or 46 

U.S.C. chapter 701, or a regulation 

prescribed or order issued under any of 

those provisions, TSA may impose a 

civil penalty in the following amounts: 

(1) $10,000 per violation, up to a total 

of $50,000 per civil penalty action, in 

the case of an individual or small 

business concern, as defined in section 

3 of the Small Business Act (15 U.S.C. 

632); and 

(2) $10,000 per violation, up to a total 

of $400,000 per civil penalty action, in 

the case of any other person. 

(c) Certain aviation related violations. 

In the case of a violation of 49 U.S.C. 

chapter 449 (except sections 44902, 

44903(d), 44907(a)–(d)(1)(A), 

44907(d)(1)(C)–(f), 44908, and 44909), or 

49 U.S.C. 46302 or 46303, or a 

regulation prescribed or order issued 

under any of those provisions, TSA may 

impose a civil penalty in the following 

amounts: 

(1) $10,000 per violation, up to a total 

of $50,000 per civil penalty action, in 

the case of an individual (except an 

airman serving as an airman), any 

person not operating an aircraft for the 

transportation of passengers or property 

for compensation, or a small business 

concern, as defined in section 3 of the 

Small Business Act (15 U.S.C. 632). 

(2) $25,000 per violation, up to a total 

of $400,000 per civil penalty action, in 

the case of a person operating an aircraft 

for the transportation of passengers or 

property for compensation (except an 

individual serving as an airman). 

(d) Inflation adjustment. TSA may 

adjust the maximum civil penalty 

amounts in conformity with the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, 28 U.S.C. 2461 (note). 

Minimum and maximum civil penalties 

within the jurisdiction of TSA are 

adjusted for inflation as follows: 


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TABLE 1—MINIMUM AND MAXIMUM CIVIL PENALTIES—ADJUSTED FOR INFLATION, EFFECTIVE DECEMBER 12, 2003 TO

AUGUST 20, 2009 

United States Code 

citation Civil penalty description Minimum penalty 

Adjusted 

minimum 

penalty 

Maximum penalty 

amount when last set 

or adjusted pursuant 

to law 

Maximum penalty 

amount 

49 U.S.C. 

46301(a)(1), (4).

Violation of 49 U.S.C. ch. 449 (except secs. 

44902, 44903(d), 44907(a)–(d)(1)(A), 

44907(d)(1)(C)–(f), 44908, and 44909), or 

49 U.S.C. 46302 or 46303, a regulation 

prescribed, or order issued thereunder by 

a person operating an aircraft for the 

transportation of passengers or property 

for compensation.

N/A N/A $25,000 per violation, 

reset 12/12/2003.

$25,000 per violation. 

49 U.S.C. 

46301(a)(1), (4).

Violation of 49 U.S.C. ch. 449 (except secs. 

44902, 44903(d), 44907(a)–(d)(1)(A), 

44907(d)(1)(C)–(f), 44908, and 44909), or 

49 U.S.C. 46302 or 46303, a regulation 

prescribed, or order issued thereunder by 

an individual (except an airman serving 

as an airman), any person not operating 

an aircraft for the transportation of passengers or property for compensation, or 

a small business concern.

N/A N/A $10,000 per violation, 

reset 12/12/2003.

$10,000 per violation. 

TABLE 2—MINIMUM AND MAXIMUM CIVIL PENALTIES—ADJUSTED FOR INFLATION, EFFECTIVE AUGUST 20, 2009 

United States Code 

Citation Civil penalty description Minimum penalty 

Adjusted 

minimum 

penalty 

Maximum penalty 

amount when last set 

or adjusted pursuant 

to law 

Maximum penalty 

amount 

49 U.S.C. 

46301(a)(1), (4).

Violation of 49 U.S.C. ch. 449 (except secs. 

44902, 44903(d), 44907(a)–(d)(1)(A), 

44907(d)(1)(C)–(f), 44908, and 44909), or 

49 U.S.C. 46302 or 46303, a regulation 

prescribed, or order issued thereunder by 

a person operating an aircraft for the 

transportation of passengers or property 

for compensation.

N/A N/A $25,000 per violation, 

reset 12/12/2003.

$27,500 per violation. 

49 U.S.C. 

46301(a)(1), (4).

Violation of 49 U.S.C. ch. 449 (except secs. 

44902, 44903(d), 44907(a)–(d)(1)(A), 

44907(d)(1)(C)–(f), 44908, and 44909), or 

49 U.S.C. 46302 or 46303, a regulation 

prescribed, or order issued thereunder by 

an individual (except an airman serving 

as an airman), any person not operating 

an aircraft for the transportation of passengers or property for compensation, or 

a small business concern.

N/A N/A $10,000 per violation, 

reset 12/12/2003.

$11,000 per violation. 

49 U.S.C. 114(v) ........ Violation of any other provision of title 49 

U.S.C. or of 46 U.S.C. ch. 701, a regulation prescribed, or order issued under 

thereunder.

N/A N/A NA ............................. $10,000 per violation. 

§ 1503.403 Delegation of authority. 

The Administrator delegates the 

following authority to the Chief Counsel 

and the Deputy Chief Counsel for 

Enforcement, which authority may be 

redelegated as necessary: 

(a) To initiate and assess civil 

penalties under 49 U.S.C. 114 and 

46301 and this subpart for a violation a 

TSA requirement; 

(b) To compromise civil penalties 

initiated under this subpart; and 

(c) To refer cases to the Attorney 

General of the United States, or the 

delegate of the Attorney General, for the 

collection of civil penalties. 

§ 1503.405 Injunctions. 

Whenever it is determined that a 

person has engaged, or is about to 

engage, in any act or practice 

constituting a violation of a TSA 

requirement, the Chief Counsel or the 

Deputy Chief Counsel for Enforcement 

may request the Attorney General of the 

United States, or the delegate of the 

Attorney General, to bring an action in 

the appropriate United States district 

court for such relief as is necessary or 

appropriate, including mandatory or 

prohibitive injunctive relief, interim 

equitable relief, and punitive damages, 

as provided by 49 U.S.C. 114 and 46107. 

§ 1503.407 Military personnel. 

If a report made under this part 

indicates that, while performing official 

duties, a member of the Armed Forces, 

or a civilian employee of the 

Department of Defense who is subject to 

the Uniform Code of Military Justice (10 

U.S.C. chapter 47), has violated a TSA 

requirement, an agency official will 

send a copy of the report to the 


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appropriate military authority for such 

disciplinary action as that authority 

considers appropriate and a report to 

the Administrator thereon. 

§ 1503.409 Service of documents. 

(a) General. This section governs 

service of documents required to be 

made under this part. 

(b) Type of service. A person may 

serve documents by: 

(1) Personal delivery; 

(2) Mail, or 

(3) Electronic mail or facsimile 

transmission, if consented to in writing 

by the person served, except that such 

service is not effective if the party 

making service receives credible 

information indicating that the 

attempted service did not reach the 

person to be served. 

(c) If a party serves a pleading on 

another party during the course of 

hearing proceedings by electronic mail 

or facsimile transmission, the party 

making service must file with the 

Enforcement Docket Clerk a copy of the 

consent of the receiving party to accept 

such method of service. 

(d) Date of service. The date of service 

will be: 

(1) The date of personal delivery. 

(2) If mailed, the mailing date stated 

on the certificate of service, the date 

shown on the postmark if there is no 

certificate of service, or other mailing 

date shown by other evidence if there is 

no certificate of service or postmark. 

(3) If sent by electronic mail or 

facsimile transmission, the date of 

transmission. 

(e) Valid service. A document served 

by mail or personal delivery that was 

properly addressed, was sent in 

accordance with this part, and that was 

returned, that was not claimed, or that 

was refused, is deemed to have been 

served in accordance with this part. The 

service will be considered valid as of 

the date and the time that the document 

was deposited with a contract or express 

messenger, the document was mailed, or 

personal delivery of the document was 

attempted and refused. 

(f) Presumption of service. There will 

be a presumption of service where a 

party or a person, who customarily 

receives mail, or receives it in the 

ordinary course of business, at either the 

person’s residence or the person’s 

principal place of business, 

acknowledges receipt of the document. 

(g) Additional time after service by 

mail. Whenever a party has a right or a 

duty to act or to make any response 

within a prescribed period after service 

by mail, or on a date certain after service 

by mail, 5 days will be added to the 

prescribed period. 

(h) Service of documents filed with 

the Enforcement Docket. A person must 

serve a copy of any document filed with 

the Enforcement Docket on each party 

and the ALJ or the chief ALJ if no judge 

has been assigned to the proceeding at 

the time of filing. Service on a party’s 

attorney of record or a party’s 

designated representative is service on 

the party. 

(i) Certificate of service. Each party 

must attach a certificate of service to 

any document tendered for filing with 

the Enforcement Docket Clerk. A 

certificate of service must consist of a 

statement, dated and signed by the 

person who effected service, of the 

name(s) of the person(s) served, and the 

method by which each person was 

served and the date that the service was 

made. 

(j) Service by the ALJ. The ALJ must 

serve a copy of each document he or she 

issues including, but not limited to, 

notices of pre-hearing conferences and 

hearings, rulings on motions, decisions, 

and orders, upon each party to the 

proceedings. 

§ 1503.411 Computation of time. 

(a) This section applies to any period 

of time prescribed or allowed by this 

part, or by notice or order of an ALJ. 

(b) The date of an act, event, or 

default, after which a designated time 

period begins to run, is not included in 

a computation of time under this 

subpart. 

(c) The last day of a time period is 

included in a computation of time 

unless it is a Saturday, Sunday, a legal 

holiday, or a day on which the 

enforcement docket is officially closed. 

If the last day of the time period is a 

Saturday, Sunday, legal holiday, or a 

day on which the enforcement docket is 

officially closed, the time period runs 

until the end of the next day that is not 

a Saturday, Sunday, legal holiday, or a 

day on which the enforcement docket is 

officially closed. 

§ 1503.413 Notice of Proposed Civil 

Penalty. 

(a) Issuance. TSA may initiate a civil 

penalty action under this section by 

serving a Notice of Proposed Civil 

Penalty on the person charged with a 

violation of a TSA requirement. TSA 

will serve the Notice of Proposed Civil 

Penalty on the individual charged with 

a violation or on the president of the 

corporation or company charged with a 

violation, or other representative or 

employee previously identified in 

writing to TSA as designated to receive 

such service. A corporation or company 

may designate in writing to TSA another 

person to receive service of any 

subsequent documents in that civil 

penalty action. 

(b) Contents. The Notice of Proposed 

Civil Penalty contains a statement of the 

facts alleged, the statute, regulation, or 

order allegedly violated, the amount of 

the proposed civil penalty, and a 

certificate of service. 

(c) Response. Not later than 30 days 

after receipt of the Notice of Proposed 

Civil Penalty, the person charged with 

a violation may take one, and only one, 

of the following options. 

(1) Submit a certified check or money 

order in the amount of the proposed 

civil penalty made payable to 

Transportation Security Administration, 

at the address specified in the Notice of 

Proposed Civil Penalty, or make 

payment electronically through http:// 

www.pay.gov. 

(2) Submit to the agency attorney who 

issued the Notice of Proposed Civil 

Penalty one of the following: 

(i) A written request that TSA issue an 

Order Assessing Civil Penalty in the 

amount stated in the Notice of Proposed 

Civil Penalty without further notice, in 

which case the person waives the right 

to request a Formal Hearing, and 

payment is due within 30 days of 

receipt of the Order. 

(ii) Written information and other 

evidence, including documents and 

witness statements, demonstrating that a 

violation of the regulations did not 

occur as alleged, or that the proposed 

penalty is not warranted by the 

circumstances. 

(iii) A written request to reduce the 

proposed civil penalty, the amount of 

requested reduction, together with any 

documents supporting a reduction of 

the proposed civil penalty, which reflect 

a current financial inability to pay or 

records showing that payment of the 

proposed civil penalty would prevent 

the person from continuing in business. 

(iv) A written request for an Informal 

Conference, at a date to be determined 

by the agency attorney, to discuss the 

matter with the agency attorney and to 

submit supporting evidence and 

information to the agency attorney 

before the date of the Informal 

Conference. 

(3) Submit to the agency attorney and 

to TSA’s Enforcement Docket Clerk a 

written request for a Formal Hearing 

before an ALJ in accordance with 

subpart G of this part. TSA’s 

Enforcement Docket Clerk is currently 

located at the United States Coast Guard 

(USCG) ALJ Docketing Center, 40 S. Gay 

Street, Room 412, Baltimore, Maryland 

21202–4022. If this location changes, 

TSA will provide notice of the change 

by notice in the Federal Register. 


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§ 1503.415 Request for portions of the 

enforcement investigative report (EIR). 

(a) Upon receipt of a Notice of 

Proposed Civil Penalty, a person 

charged with a violation of a TSA 

requirement, or a representative 

designated in writing by that person, 

may request from the agency attorney 

who issued the Notice of Proposed Civil 

Penalty portions of the relevant EIR that 

are not privileged (e.g., under the 

deliberative process, attorney workproduct, or attorney-client privileges). 

This information will be provided for 

the sole purpose of providing the 

information necessary to prepare a 

response to the allegations contained in 

the Notice of Proposed Civil Penalty. 

Sensitive Security Information (SSI) 

contained in the EIR may be released 

pursuant to 49 CFR part 1520. 

Information released under this section 

is not produced under the Freedom of 

Information Act. 

(b) Any person not listed in paragraph 

(a) of this section that is interested in 

obtaining a copy of the EIR must submit 

a FOIA request pursuant to 5 U.S.C. 552, 

et seq., 49 CFR part 7, and any 

applicable DHS regulations. Portions of 

the EIR may be exempt from disclosure 

pursuant to FOIA. 

§ 1503.417 Final Notice of Proposed Civil 

Penalty and Order. 

(a) Issuance. TSA may issue a Final 

Notice of Proposed Civil Penalty and 

Order (‘‘Final Notice and Order’’) to a 

person charged with a violation in the 

following circumstances: 

(1) The person has failed to respond 

to a Notice of Proposed Civil Penalty 

within 30 days after receipt of that 

notice. 

(2) The person requested an Informal 

Conference under § 1503.413(c)(2), but 

failed to attend the conference or 

continuation of the conference or 

provide the agency attorney with a 

written request showing good cause for 

rescheduling of the informal conference 

to a specified alternate date. 

(3) The parties have participated in an 

Informal Conference or other informal 

proceedings as provided in 

§ 1503.413(c)(2) and the parties have not 

agreed to compromise the action or the 

agency attorney has not agreed to 

withdraw the notice of proposed civil 

penalty. 

(b) Contents. The Final Notice and 

Order will contain a statement of the 

facts alleged, the law allegedly violated 

by the respondent, and the amount of 

the proposed civil penalty. The Final 

Notice and Order may reflect a modified 

allegation or proposed civil penalty as a 

result of information submitted to the 

agency attorney during the informal 

proceedings held under 

§ 1503.413(c)(2). 

§ 1503.419 Order Assessing Civil Penalty. 

(a) Issuance pursuant to a settlement. 

TSA will issue an Order Assessing Civil 

Penalty if the parties have participated 

in an Informal Conference or other 

informal proceedings as provided in 

§ 1503.413(c)(2) and agreed to a civil 

penalty amount in compromise of the 

matter, in which case the person waives 

the right to request a formal hearing, 

and payment is due within 30 days of 

receipt of the Order. 

(b) Automatic issuance. A Final 

Notice and Order automatically converts 

to an Order Assessing Civil Penalty if— 

(1) The person charged with a 

violation submits a certified check or 

money order in the amount reflected in 

the Final Notice and Order to 

Transportation Security Administration, 

to the address specified in the Final 

Notice and Order, or makes such 

payment electronically through http:// 

www.pay.gov; or 

(2) The person fails to respond to the 

Final Notice and Order or request a 

formal hearing within 15 days after 

receipt of that notice. 

§ 1503.421 Streamlined civil penalty 

procedures for certain security violations. 

(a) Notice of violation. TSA, at the 

agency’s discretion, may initiate a civil 

penalty action through issuance of a 

Notice of Violation for violations 

described in the section and as 

otherwise provided by the 

Administrator. TSA may serve a Notice 

of Violation on an individual who 

violates a TSA requirement by 

presenting a weapon, explosive, or 

incendiary for screening at an airport or 

in checked baggage, where the amount 

of the proposed civil penalty is less than 

$5,000. 

(b) Contents. A Notice of Violation 

contains a statement of the charges, the 

amount of the proposed civil penalty, 

and an offer to settle the matter for a 

lesser specified penalty amount. 

(c) Response. Not later than 30 days 

after receipt of the Notice of Violation, 

the individual charged with a violation 

must respond to TSA by taking one, and 

only one, of the following options. 

(1) Submit a certified check or money 

order for the lesser specified penalty 

amount in the Notice of Violation, made 

payable to Transportation Security 

Administration and sent to the address 

specified in the Notice of Violation, or 

make such payment electronically 

through http://www.pay.gov. 

(2) Submit to the office identified in 

the Notice of Violation one of the 

following: 

(i) Written information and other 

evidence, including documents and 

witness statements, demonstrating that a 

violation of the regulations did not 

occur as alleged, or that the proposed 

penalty is not warranted by the 

circumstances. 

(ii) A written request to reduce the 

proposed civil penalty, the amount of 

requested reduction, together with any 

documents supporting a reduction of 

the proposed civil penalty, which reflect 

a current financial inability to pay or 

records showing that payment of the 

proposed civil penalty would prevent 

the person from continuing in business. 

(iii) A written request for an Informal 

Conference, at a date to be determined 

by an agency official, to discuss the 

matter with the agency official and to 

submit supporting evidence and 

information to the agency official before 

the date of the Informal Conference. 

(3) Submit to the office identified in 

the Notice of Violation and to TSA’s 

Enforcement Docket Clerk a written 

request for a formal hearing before an 

ALJ in accordance with subpart G. A 

request for a formal hearing before an 

ALJ must be submitted to the address 

provided in § 1503.413(c)(3). 

(d) Final Notice of Violation and Civil 

Penalty Assessment Order. TSA may 

issue a Final Notice of Violation and 

Civil Penalty Assessment Order (‘‘Final 

Notice and Order’’) to the recipient of a 

Notice of Violation in the following 

circumstances: 

(1) The individual has failed to 

respond to a Notice of Violation within 

30 days after receipt of that notice. 

(2) The individual requested an 

Informal Conference under 

§ 1503.421(c)(2)(iii) but failed to attend 

the conference or continuation of the 

conference or provide the agency 

official with a written request showing 

good cause for rescheduling the 

informal conference to a specified 

alternate date. 

(3) The parties have participated in an 

Informal Conference or other informal 

proceedings as provided in 

§ 1503.421(c)(2) and the parties have not 

agreed to compromise the action or the 

agency official has not agreed to 

withdraw the Notice of Violation. 

(e) Order Assessing Civil Penalty. A 

Final Notice and Order automatically 

converts to an Order Assessing Civil 

Penalty if— 

(1) The individual charged with a 

violation submits a certified check or 

money order in the amount reflected in 

the Final Notice and Order to 

Transportation Security Administration 

at the address specified in the Final 

Notice and Order, or makes such 


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payment electronically through http:// 

www.pay.gov; or 

(2) The individual fails to respond to 

the Final Notice and Order or request a 

formal hearing within 15 days after 

receipt of that notice. 

(f) Delegation of authority. The 

authority of the Administrator, under 49 

U.S.C. 46301, to initiate, negotiate, and 

settle civil penalty actions under this 

section is delegated to the Assistant 

Administrator for Security Operations. 

This authority may be further delegated. 

§ 1503.423 Consent orders. 

(a) Issuance. At any time before the 

issuance of an Order Assessing Civil 

Penalty under this subpart, an agency 

attorney and a person subject to a Notice 

of Proposed Civil Penalty, or an agency 

official and a person subject to a Notice 

of Violation, may agree to dispose of the 

case by the issuance of a consent order 

by TSA. 

(b) Contents. A consent order contains 

the following: 

(1) An admission of all jurisdictional 

facts. 

(2) An admission of agreed-upon 

allegations. 

(3) A statement of the law violated. 

(4) A finding of violation. 

(5) An express waiver of the right to 

further procedural steps and of all rights 

to administrative and judicial review. 

§ 1503.425 Compromise orders. 

(a) Issuance. At any time before the 

issuance of an Order Assessing Civil 

Penalty under this subpart, an agency 

attorney and a person subject to a Notice 

of Proposed Civil Penalty, or an agency 

official and a person subject to a Notice 

of Violation, may agree to dispose of the 

case by the issuance of a compromise 

order by TSA. 

(b) Contents. A compromise order 

contains the following: 

(1) All jurisdictional facts. 

(2) All allegations. 

(3) A statement that the person agrees 

to pay the civil penalty specified. 

(4) A statement that TSA makes no 

finding of a violation. 

(5) A statement that the compromise 

order will not be used as evidence of a 

prior violation in any subsequent civil 

penalty proceeding. 

§ 1503.427 Request for a formal hearing. 

(a) General. Any respondent may 

request a formal hearing, pursuant to 

§ 1503.413(c)(3) or § 1503.421(c)(3), to 

be conducted in accordance with the 

procedures in subpart G of this part. The 

filing of a request for a formal hearing 

does not guarantee a person an 

opportunity to appear before an ALJ in 

person, because the ALJ may issue an 

initial decision or dispositive order 

resolving the case prior to the 

commencement of the formal hearing. 

(b) Form. The person submitting a 

request for hearing must date and sign 

the request, and must include his or her 

current address. The request for hearing 

must be typewritten or legibly 

handwritten. 

(c) Submission of request. A person 

requesting a hearing must file a written 

request for a hearing with the 

Enforcement Docket Clerk in accordance 

with § 1503.429 and must serve a copy 

of the request on the agency attorney or 

other agency official who issued the 

Notice of Proposed Civil Penalty, or 

Notice of Violation, as applicable, and 

any other party, in accordance with 

§ 1503.429. 

§ 1503.429 Filing of documents with the 

Enforcement Docket Clerk. 

(a) General. This section governs 

filing of documents with the 

Enforcement Docket Clerk when 

required under this part. 

(b) Type of service. A person must file 

a document with the Enforcement 

Docket Clerk by delivering two copies of 

the document as follows: 

(1) By personal delivery or mail, to 

United States Coast Guard (USCG) ALJ 

Docketing Center, ATTN: Enforcement 

Docket Clerk, at the address specified in 

§ 1503.413(c)(3). 

(2) By electronic mail, to 

ALJdocket@ALJBalt.USCG.MIL. If this email address changes, TSA will provide 

notice of the change by notice in the 

Federal Register. 

(3) By facsimile transmission, to 410– 

962–1746. If this number changes, TSA 

will provide notice of the change by 

notice in the Federal Register. 

(c) Contents. Unless otherwise 

specified in this part, each document 

must contain a short, plain statement of 

the facts supporting the person’s 

position and a brief statement of the 

action requested in the document. Each 

document must be typewritten or 

legibly handwritten. 

(d) Date of filing. The date of filing 

will be as follows: 

(1) The date of personal delivery. 

(2) If mailed, the mailing date stated 

on the certificate of service, the date 

shown on the postmark if there is no 

certificate of service, or other mailing 

date shown by other evidence if there is 

no certificate of service or postmark. 

(3) If sent by electronic mail or 

facsimile transmission, the date of 

transmission. 

(e) Service of documents filed with the 

Enforcement Docket. A person must 

serve a copy of any document filed with 

the Enforcement Docket on each party 

and the ALJ or the chief ALJ if no judge 

has been assigned to the proceeding at 

the time of filing. Service on a party’s 

attorney of record or a party’s 

designated representative is service on 

the party. 

§ 1503.431 Certification of documents. 

(a) General. This section governs each 

document tendered for filing with the 

Enforcement Docket Clerk under this 

part. 

(b) Signature required. The attorney of 

record, the party, or the party’s 

representative must sign each document 

tendered for filing with the Enforcement 

Docket Clerk, or served on the ALJ, the 

TSA decision maker on appeal, or each 

party. 

(c) Effect of signing a document. By 

signing a document, the attorney of 

record, the party, or the party’s 

representative certifies that he or she 

has read the document and, based on 

reasonable inquiry and to the best of 

that person’s knowledge, information, 

and belief, the document is— 

(1) Consistent with the rules in this 

part; 

(2) Warranted by existing law or that 

a good faith and nonfrivolous argument 

exists for extension, modification, or 

reversal of existing law; 

(3) Not unreasonable or unduly 

burdensome or expensive, not made to 

harass any person, not made to cause 

unnecessary delay, not made to cause 

needless increase in the cost of the 

proceedings, or for any other improper 

purpose; and 

(4) Supported by evidence, and any 

denials of factual contentions are 

warranted on the evidence. 

(d) Sanctions. On motion of a party, 

if the ALJ or TSA decision maker finds 

that any attorney of record, the party, or 

the party’s representative has signed a 

document in violation of this section, 

the ALJ or the TSA decision maker, as 

appropriate, will do the following: 

(1) Strike the pleading signed in 

violation of this section. 

(2) Strike the request for discovery or 

the discovery response signed in 

violation of this section and preclude 

further discovery by the party. 

(3) Deny the motion or request signed 

in violation of this section. 

(4) Exclude the document signed in 

violation of this section from the record. 

(5) Dismiss the interlocutory appeal 

and preclude further appeal on that 

issue by the party who filed the appeal 

until an initial decision has been 

entered on the record. 

(6) Dismiss the appeal of the ALJ’s 

initial decision to the TSA decision 

maker. 


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36046 Federal Register / Vol. 74, No. 138 / Tuesday, July 21, 2009 / Rules and Regulations 

Subpart F—[Reserved] 

Subpart G—Rules of Practice in TSA 

Civil Penalty Actions 

§ 1503.601 Applicability. 

(a) This subpart applies to a civil 

penalty action in which the 

requirements of paragraphs (a)(1) 

through (a)(3) of this section are 

satisfied. 

(1) There is an alleged violation of a 

TSA requirement. 

(2) The amount in controversy does 

not exceed— 

(i) $50,000 if the violation was 

committed by an individual or a small 

business concern; 

(ii) $400,000 if the violation was 

committed by any other person. 

(3) The person charged with the 

violation has requested a hearing in 

accordance with § 1503.427 of this part. 

(b) This subpart does not apply to the 

adjudication of the validity of any TSA 

rule or other requirement under the U.S. 

Constitution, the Administrative 

Procedure Act, or any other law. 

§ 1503.603 Separation of functions. 

(a) Civil penalty proceedings, 

including hearings, will be prosecuted 

only by an agency attorney, except to 

the extent another agency official is 

permitted to issue and prosecute civil 

penalties under § 1503.421 of this part. 

(b) An agency employee engaged in 

the performance of investigative or 

prosecutorial functions in a civil 

penalty action must not, in that case or 

a factually related case, participate or 

give advice in a decision by the ALJ or 

by the TSA decision maker on appeal, 

except as counsel or a witness in the 

public proceedings. 

(c) The Chief Counsel or an agency 

attorney not covered by paragraph (b) of 

this section will advise the TSA 

decision maker regarding an initial 

decision or any appeal of a civil penalty 

action to the TSA decision maker. 

§ 1503.605 Appearances and rights of 

parties. 

(a) Any party may appear and be 

heard in person. 

(b) Any party may be accompanied, 

represented, or advised by an attorney 

or representative designated by the 

party and may be examined by that 

attorney or representative in any 

proceeding governed by this subpart. An 

attorney or representative who 

represents a respondent and has not 

previously filed a pleading in the matter 

must file a notice of appearance in the 

action, in the manner provided in 

§ 1503.429, and must serve a copy of the 

notice of appearance on each party, in 

the manner provided in § 1503.409, 

before participating in any proceeding 

governed by this subpart. The attorney 

or representative must include the 

name, address, and telephone number of 

the attorney or representative in the 

notice of appearance. 

§ 1503.607 Administrative law judges. 

(a) Powers of an ALJ. In accordance 

with the rules of this subpart, an ALJ 

may: 

(1) Give notice of, and hold, 

prehearing conferences and hearings. 

(2) Issue scheduling orders and other 

appropriate orders regarding discovery 

or other matters that come before him or 

her consistent with the rules of this 

subpart. 

(3) Administer oaths and affirmations. 

(4) Issue subpoenas authorized by 

law. 

(5) Rule on offers of proof. 

(6) Receive relevant and material 

evidence. 

(7) Regulate the course of the hearing 

in accordance with the rules of this 

subpart. 

(8) Hold conferences to settle or to 

simplify the issues on his or her own 

motion or by consent of the parties. 

(9) Rule on procedural motions and 

requests. 

(10) Make findings of fact and 

conclusions of law, and issue an initial 

decision. 

(11) Strike unsigned documents 

unless omission of the signature is 

corrected promptly after being called to 

the attention of the attorney or party. 

(12) Order payment of witness fees in 

accordance with § 1503.649. 

(b) Limitations on the power of the 

ALJ. (1) The ALJ may not: 

(i) Issue an order of contempt. 

(ii) Award costs to any party. 

(iii) Impose any sanction not specified 

in this subpart. 

(iv) Adopt or follow a standard of 

proof or procedure contrary to that set 

forth in this subpart. 

(v) Decide issues involving the 

validity of a TSA regulation, order, or 

other requirement under the U.S. 

Constitution, the Administrative 

Procedure Act, or other law. 

(2) If the ALJ imposes any sanction 

not specified in this subpart, a party 

may file an interlocutory appeal of right 

pursuant to § 1503.631(c)(3). 

(3) This section does not preclude an 

ALJ from issuing an order that bars a 

person from a specific proceeding based 

on a finding of obstreperous or 

disruptive behavior in that specific 

proceeding. 

(c) Disqualification. The ALJ may 

disqualify himself or herself at any time. 

A party may file a motion, pursuant to 

§ 1503.629(f)(6), requesting that an ALJ 

be disqualified from the proceedings. 

§ 1503.609 Complaint. 

(a) Filing. The agency attorney must 

file the complaint with the Enforcement 

Docket Clerk in accordance with 

§ 1503.429, or may file a written motion 

pursuant to § 1503.629(f)(2)(i) instead of 

filing a complaint, not later than 30 days 

after receipt by the agency attorney of a 

request for hearing. The agency attorney 

should suggest a location for the hearing 

when filing the complaint. 

(b) Contents. A complaint must set 

forth the facts alleged, any statute, 

regulation, or order allegedly violated 

by the respondent, and the proposed 

civil penalty in sufficient detail to 

provide notice of any factual or legal 

allegation and proposed civil penalty. 

§ 1503.611 Answer. 

(a) Filing. A respondent must file a 

written answer to the complaint in 

accordance with § 1503.429, or may file 

a written motion pursuant to 

§ 1503.629(f)(1)–(4) instead of filing an 

answer, not later than 30 days after 

service of the complaint. Subject to 

paragraph (c) of this section, the answer 

may be in the form of a letter, but must 

be dated and signed by the person 

responding to the complaint. An answer 

may be typewritten or may be legibly 

handwritten. The person filing an 

answer should suggest a location for the 

hearing when filing the answer. 

(b) Contents. An answer must 

specifically state any affirmative defense 

that the respondent intends to assert at 

the hearing. A person filing an answer 

may include a brief statement of any 

relief requested in the answer. 

(c) Specific denial of allegations 

required. A person filing an answer 

must admit, deny, or state that the 

person is without sufficient knowledge 

or information to admit or deny, each 

numbered paragraph of the complaint. 

Any statement or allegation contained 

in the complaint that is not specifically 

denied in the answer may be deemed an 

admission of the truth of that allegation. 

A general denial of the complaint is 

deemed a failure to file an answer. 

(d) Failure to file answer. A person’s 

failure to file an answer without good 

cause, as determined by the ALJ, will be 

deemed an admission of the truth of 

each allegation contained in the 

complaint. 

§ 1503.613 Consolidation and separation 

of cases. 

(a) Consolidation. If two or more 

actions involve common questions of 

law or fact, the Chief Administrative 

Law Judge may do the following: 


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(1) Order a joint hearing or trial on 

any or all such questions. 

(2) Order the consolidation of such 

actions. 

(3) Otherwise make such orders 

concerning the proceedings as may tend 

to avoid unnecessary costs or delay. 

(b) Consolidation shall not affect the 

applicability of this part. Consolidation 

of two or more actions that individually 

meet the jurisdictional amounts set forth 

in § 1503.601(a)(2) shall not cause the 

resulting consolidated action to come 

under the exclusive jurisdiction of the 

district courts of the United States as 

specified in 49 U.S.C. 46301(d)(4)(A). 

(c) Separate trials. The Chief 

Administrative Law Judge, in 

furtherance of convenience or to avoid 

prejudice, or when separate trials will 

be conducive to expedition and 

economy, may order a separate trial of 

any claim, or of any separate issue, or 

any number of claims or issues. 

§ 1503.615 Notice of hearing. 

(a) Notice. The ALJ must give each 

party at least 60 days notice of the date, 

time, and location of the hearing. With 

the consent of the ALJ, the parties may 

agree to hold the hearing on an earlier 

date than the date specified in the 

notice of hearing. 

(b) Date, time, and location of the 

hearing. The ALJ to whom the 

proceedings have been assigned must 

set a reasonable date, time, and location 

for the hearing. The ALJ must consider 

the need for discovery and any joint 

procedural or discovery schedule 

submitted by the parties when 

determining the hearing date. The ALJ 

must give due regard to the convenience 

of the parties, the location where the 

majority of the witnesses reside or work, 

and whether the location is served by a 

scheduled air carrier. 

§ 1503.617 Extension of time. 

(a) Oral requests. The parties may 

agree to extend for a reasonable period 

the time for filing a document under 

this subpart. If the parties agree, the ALJ 

must grant one extension of time to each 

party. The party seeking the extension 

of time must submit a draft order to the 

ALJ to be signed by the ALJ and filed 

with the Enforcement Docket Clerk. The 

ALJ may grant additional oral requests 

for an extension of time where the 

parties agree to the extension. 

(b) Written motion. A party must file 

a written motion for an extension of 

time not later than 7 days before the 

document is due unless the party shows 

good cause for the late filing. The ALJ 

may grant the extension of time if the 

party shows good cause. 

(c) Request for continuance of 

hearing. Either party may request in 

writing a continuance of the date of a 

hearing, for good cause shown, no later 

than seven days before the scheduled 

date of the hearing. Good cause does not 

include a scheduling conflict involving 

the parties or their attorneys which by 

due diligence could have been foreseen. 

(d) Failure to rule. If the ALJ fails to 

rule on a written motion for an 

extension of time by the date the 

document was due, the motion for an 

extension of time is deemed granted for 

no more than 20 days after the original 

date the document was to be filed. If the 

ALJ fails to rule on a request for 

continuance by the scheduled hearing 

date, the request is deemed granted for 

no more than 10 days after the 

scheduled hearing date. 

§ 1503.619 Intervention. 

(a) A person may file a motion for 

leave to intervene as a party in a civil 

penalty action. The person must file a 

motion for leave to intervene not later 

than 10 days before the hearing unless 

the person shows good cause for the late 

filing. 

(b) If the ALJ finds that intervention 

will not unduly broaden the issues or 

delay the proceedings, the ALJ may 

grant a motion for leave to intervene if 

the person will be bound by any order 

or decision entered in the action or the 

person has a property, financial, or 

other legitimate interest that may not be 

addressed adequately by the parties. 

The ALJ may determine the extent to 

which an intervenor may participate in 

the proceedings. 

§ 1503.621 Amendment of pleadings. 

(a) Filing and service. A party must 

file the amendment with the 

Enforcement Docket Clerk and must 

serve a copy of the amendment on the 

ALJ and all parties to the proceeding. 

(b) Time. A party must file an 

amendment to a complaint or an answer 

within the following: 

(1) Not later than 15 days before the 

scheduled date of a hearing, a party may 

amend a complaint or an answer 

without the consent of the ALJ. 

(2) Less than 15 days before the 

scheduled date of a hearing, the ALJ 

may allow amendment of a complaint or 

an answer only for good cause shown in 

a motion to amend. 

(c) Responses. The ALJ must allow a 

reasonable time, but not more than 20 

days from the date of filing, for other 

parties to respond if an amendment to 

a complaint, answer, or other pleading 

has been filed with the ALJ. 

§ 1503.623 Withdrawal of complaint or 

request for hearing. 

At any time before or during a 

hearing, an agency attorney may 

withdraw a complaint or a respondent 

may withdraw a request for a hearing 

without the consent of the ALJ. If an 

agency attorney withdraws the 

complaint or a party withdraws the 

request for a hearing and the answer, the 

ALJ must dismiss the proceedings under 

this subpart with prejudice, unless the 

withdrawing party shows good cause for 

dismissal without prejudice, except that 

a party may withdraw a request for 

hearing without prejudice at any time 

before a complaint has been filed. 

§ 1503.625 Waivers. 

Waivers of any rights provided by 

statute or regulation must be in writing 

or by stipulation made at a hearing and 

entered into the record. The parties 

must set forth the precise terms of the 

waiver and any conditions. 

§ 1503.627 Joint procedural or discovery 

schedule. 

(a) General. The parties may agree to 

submit a schedule for filing all 

prehearing motions, a schedule for 

conducting discovery in the 

proceedings, or a schedule that will 

govern all prehearing motions and 

discovery in the proceedings. 

(b) Form and content of schedule. If 

the parties agree to a joint procedural or 

discovery schedule, one of the parties 

must file the joint schedule with the 

ALJ, setting forth the dates to which the 

parties have agreed, and must serve a 

copy of the joint schedule on each party. 

(1) The joint schedule may include, 

but need not be limited to, requests for 

discovery, any objections to discovery 

requests, responses to discovery 

requests to which there are no 

objections, submission of prehearing 

motions, responses to prehearing 

motions, exchange of exhibits to be 

introduced at the hearing, and a list of 

witnesses that may be called at the 

hearing. 

(2) Each party must sign the original 

joint schedule to be filed with the 

Enforcement Docket Clerk. 

(c) Time. The parties may agree to 

submit all prehearing motions and 

responses and may agree to close 

discovery in the proceedings under the 

joint schedule within a reasonable time 

before the date of the hearing, but not 

later than 15 days before the hearing. 

(d) Order establishing joint schedule. 

The ALJ must approve the joint 

schedule filed by the parties. One party 

must submit a draft order establishing a 

joint schedule to the ALJ to be signed by 


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the ALJ and filed with the Enforcement 

Docket Clerk. 

(e) Disputes. The ALJ must resolve 

disputes regarding discovery or disputes 

regarding compliance with the joint 

schedule as soon as possible so that the 

parties may continue to comply with the 

joint schedule. 

(f) Sanctions for failure to comply 

with joint schedule. If a party fails to 

comply with the ALJ’s order 

establishing a joint schedule, the ALJ 

may direct that party to comply with a 

motion or discovery request or, limited 

to the extent of the party’s failure to 

comply with a motion or discovery 

request, the ALJ may do the following: 

(1) Strike that portion of a party’s 

pleadings. 

(2) Preclude prehearing or discovery 

motions by that party. 

(3) Preclude admission of that portion 

of a party’s evidence at the hearing. 

(4) Preclude that portion of the 

testimony of that party’s witnesses at 

the hearing. 

§ 1503.629 Motions. 

(a) General. A party applying for an 

order or ruling not specifically provided 

in this subpart must do so by motion. 

A party must comply with the 

requirements of this section when filing 

a motion. A party must serve a copy of 

each motion on each party. 

(b) Form and contents. A party must 

state the relief sought by the motion and 

the particular grounds supporting that 

relief. If a party has evidence in support 

of a motion, the party must attach any 

supporting evidence, including 

affidavits, to the motion. 

(c) Filing of motions. A motion made 

prior to the hearing must be in writing 

or orally on the record. Unless 

otherwise agreed by the parties or for 

good cause shown, a party must file any 

prehearing motion, and must serve a 

copy on each party, not later than 30 

days before the hearing. Motions 

introduced during a hearing may be 

made orally on the record unless the 

ALJ directs otherwise. 

(d) Reply to motions. Any party may 

file a reply, with affidavits or other 

evidence in support of the reply, not 

later than 10 days after service of a 

written motion on that party. When a 

motion is made during a hearing, the 

reply may be made at the hearing on the 

record, orally or in writing, within a 

reasonable time determined by the ALJ. 

At the discretion of the ALJ, the moving 

party may file a response to the reply. 

(e) Rulings on motions. The ALJ must 

rule on all motions as follows: 

(1) Discovery motions. The ALJ must 

resolve all pending discovery motions 

not later than 10 days before the 

hearing. 

(2) Prehearing motions. The ALJ must 

resolve all pending prehearing motions 

not later than 7 days before the hearing. 

If the ALJ issues a ruling or order orally, 

the ALJ must serve a written copy of the 

ruling or order, within 3 days, on each 

party. In all other cases, the ALJ must 

issue rulings and orders in writing and 

must serve a copy of the ruling or order 

on each party. 

(3) Motions made during the hearing. 

The ALJ may issue rulings and orders 

on motions made during the hearing 

orally. Oral rulings or orders on motions 

must be made on the record. 

(f) Specific motions. A party may file, 

but is not limited to, the following 

motions with the Enforcement Docket 

Clerk: 

(1) Motion to dismiss for insufficiency. 

A respondent may file a motion to 

dismiss the complaint for insufficiency 

instead of filing an answer. If the ALJ 

denies the motion to dismiss the 

complaint for insufficiency, the 

respondent must file an answer not later 

than 20 days after service of the ALJ’s 

denial of the motion. A motion to 

dismiss the complaint for insufficiency 

must show that the complaint fails to 

state a violation of a TSA requirement. 

If the ALJ grants the motion to dismiss 

the complaint for insufficiency, the 

agency attorney may amend the 

complaint in accordance with 

§ 1503.621. 

(2) Motion to dismiss. A party may file 

a motion to dismiss, specifying the 

grounds for dismissal. If an ALJ grants 

a motion to dismiss in part, a party may 

appeal the ALJ’s ruling on the motion to 

dismiss under § 1503.631(b). 

(i) Motion to dismiss a request for a 

hearing. An agency attorney may file a 

motion to dismiss a request for a hearing 

as untimely instead of filing a 

complaint. If the motion to dismiss is 

not granted, the agency attorney must 

file the complaint and must serve a copy 

of the complaint on each party not later 

than 20 days after service of the ALJ’s 

ruling or order on the motion to dismiss. 

If the motion to dismiss is granted and 

the proceedings are terminated without 

a hearing, the respondent may file an 

appeal pursuant to § 1503.657. If 

required by the decision on appeal, the 

agency attorney must file a complaint 

and must serve a copy of the complaint 

on each party not later than 30 days 

after service of the decision on appeal. 

(ii) Motion to dismiss a complaint. A 

respondent may file a motion to dismiss 

a complaint instead of filing an answer, 

on the ground that the complaint was 

not timely filed or on other grounds. If 

the ALJ does not grant the motion to 

dismiss, the respondent must file an 

answer and must serve a copy of the 

answer on each party not later than 30 

days after service of the ALJ’s ruling or 

order on the motion to dismiss. If the 

ALJ grants the motion to dismiss and 

the proceedings are terminated without 

a hearing, the agency attorney may file 

an appeal pursuant to § 1503.657. If 

required by the decision on appeal, the 

respondent must file an answer and 

must serve a copy of the answer on each 

party not later than 20 days after service 

of the decision on appeal. 

(iii) Motion to dismiss based on 

settlement. A party may file a motion to 

dismiss based on a mutual settlement of 

the parties. 

(3) Motion for more definite 

statement. A party may file a motion for 

more definite statement of any pleading 

that requires a response under this 

subpart. A party must set forth, in 

detail, the indefinite or uncertain 

allegations contained in a complaint or 

response to any pleading and must 

submit the details that the party believes 

would make the allegation or response 

definite and certain. 

(i) Complaint. A respondent may file 

a motion requesting a more definite 

statement of the allegations contained in 

the complaint instead of filing an 

answer. If the ALJ grants the motion, the 

agency attorney must supply a more 

definite statement not later than 15 days 

after service of the ruling granting the 

motion. If the agency attorney fails to 

supply a more definite statement, the 

ALJ must strike the allegations in the 

complaint to which the motion is 

directed. If the ALJ denies the motion, 

the respondent must file an answer and 

must serve a copy of the answer on each 

party not later than 20 days after service 

of the order of denial. 

(ii) Answer. An agency attorney may 

file a motion requesting a more definite 

statement if an answer fails to respond 

clearly to the allegations in the 

complaint. If the ALJ grants the motion, 

the respondent must supply a more 

definite statement not later than 15 days 

after service of the ruling on the motion. 

If the respondent fails to supply a more 

definite statement, the ALJ must strike 

those statements in the answer to which 

the motion is directed. The respondent’s 

failure to supply a more definite 

statement may be deemed an admission 

of unanswered allegations in the 

complaint. 

(4) Motion to strike. Any party may 

move to strike any insufficient 

allegation or defense, or any redundant, 

immaterial, or irrelevant matter in a 

pleading. A party must file a motion to 

strike before a response is required 

under this subpart or, if a response is 


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not required, not later than 10 days after 

service of the pleading. 

(5) Motion for decision. A party may 

move for decision, regarding all or any 

part of the proceedings, at any time 

before the ALJ has issued an initial 

decision in the proceedings. A party 

may include with a motion for decision 

affidavits as well as any other evidence 

in support of the motion. The ALJ must 

grant a party’s motion for decision if the 

pleadings, depositions, answers to 

interrogatories, admissions, affidavits, 

matters that the ALJ has officially 

noticed, or evidence introduced during 

the hearing show that there is no 

genuine issue of material fact and that 

the party making the motion is entitled 

to a decision as a matter of law. The 

party moving for decision has the 

burden of showing that there is no 

genuine issue of material fact. 

(6) Motion for disqualification. A 

party may file the motion at any time 

after the ALJ has been assigned to the 

proceedings but must make the motion 

before the ALJ files an initial decision 

in the proceedings. 

(i) Motion and supporting affidavit. A 

party must state the grounds for 

disqualification, including, but not 

limited to, personal bias, pecuniary 

interest, or other factors supporting 

disqualification, in the motion for 

disqualification. A party must submit an 

affidavit with the motion for 

disqualification that sets forth, in detail, 

the matters alleged to constitute grounds 

for disqualification. 

(ii) Answer. A party must respond to 

the motion for disqualification not later 

than 5 days after service of the motion 

for disqualification. 

(iii) Decision on motion for 

disqualification. The ALJ must render a 

decision on the motion for 

disqualification not later than 20 days 

after the motion has been filed. If the 

ALJ finds that the motion for 

disqualification and supporting affidavit 

show a basis for disqualification, the 

ALJ must withdraw from the 

proceedings immediately. If the ALJ 

finds that disqualification is not 

warranted, the ALJ must deny the 

motion and state the grounds for the 

denial on the record. If the ALJ fails to 

rule on a party’s motion for 

disqualification within 20 days after the 

motion has been filed, the motion is 

deemed granted. 

(iv) Appeal. A party may appeal the 

ALJ’s denial of the motion for 

disqualification in accordance with 

§ 1503.631(b). 

§ 1503.631 Interlocutory appeals. 

(a) General. Unless otherwise 

provided in this subpart, a party may 

not appeal a ruling or decision of the 

ALJ to the TSA decision maker until the 

initial decision has been entered on the 

record. A decision or order of the TSA 

decision maker on the interlocutory 

appeal does not constitute a final order 

of the Administrator for the purposes of 

judicial appellate review under 49 

U.S.C. 46110. 

(b) Interlocutory appeal for cause. If a 

party files a written request for an 

interlocutory appeal for cause with the 

ALJ, or orally requests an interlocutory 

appeal for cause, the proceedings are 

stayed until the ALJ issues a decision on 

the request. If the ALJ grants the request, 

the proceedings are stayed until the 

TSA decision maker issues a decision 

on the interlocutory appeal. The ALJ 

must grant an interlocutory appeal for 

cause if a party shows that delay of the 

appeal would be detrimental to the 

public interest or would result in undue 

prejudice to any party. 

(c) Interlocutory appeals of right. If a 

party notifies the ALJ of an interlocutory 

appeal of right, the proceedings are 

stayed until the TSA decision maker 

issues a decision on the interlocutory 

appeal. A party may file an 

interlocutory appeal, without the 

consent of the ALJ, before an initial 

decision has been entered in the 

following cases: 

(1) A ruling or order by the ALJ 

barring a person from the proceedings. 

(2) Failure of the ALJ to dismiss the 

proceedings in accordance with 

§ 1503.215. 

(3) A ruling or order by the ALJ in 

violation of § 1503.607(b). 

(4) A ruling or order by the ALJ 

regarding public access to a particular 

docket or documents. 

(d) Procedure. Not later than 10 days 

after the ALJ’s decision forming the 

basis of an interlocutory appeal of right 

or not later than 10 days after the ALJ’s 

decision granting an interlocutory 

appeal for cause, a party must file a 

notice of interlocutory appeal, with 

supporting documents, and the party 

must serve a copy of the notice and 

supporting documents on each party. 

Not later than 10 days after service of 

the appeal brief, a party must file a reply 

brief, if any, and the party must serve 

a copy of the reply brief on each party. 

The TSA decision maker must render a 

decision on the interlocutory appeal, on 

the record and as a part of the decision 

in the proceedings, within a reasonable 

time after receipt of the interlocutory 

appeal. 

(e) Frivolous appeals. The TSA 

decision maker may reject frivolous, 

repetitive, or dilatory appeals, and may 

issue an order precluding one or more 

parties from making further 

interlocutory appeals in a proceeding in 

which there have been frivolous, 

repetitive, or dilatory interlocutory 

appeals. 

§ 1503.633 Discovery. 

(a) Initiation of discovery. Any party 

may initiate discovery described in this 

section, without the consent or approval 

of the ALJ, at any time after a complaint 

has been filed in the proceedings. 

(b) Methods of discovery. The 

following methods of discovery are 

permitted under this section: 

depositions on oral examination or 

written questions of any person; written 

interrogatories directed to a party; 

requests for production of documents or 

tangible items to any person; and 

requests for admission by a party. A 

party is not required to file written 

discovery requests and responses with 

the ALJ or the Enforcement Docket 

Clerk. In the event of a discovery 

dispute, a party must attach a copy of 

these documents in support of a motion 

made under this section. 

(c) Service on the agency. A party 

must serve each discovery request 

directed to the agency or any agency 

employee on the agency attorney of 

record. 

(d) Time for response to discovery 

requests. Unless otherwise directed by 

this subpart, agreed by the parties, or by 

order of the ALJ, a party must respond 

to a request for discovery, including 

filing objections to a request for 

discovery, not later than 30 days after 

service of the request. 

(e) Scope of discovery. Subject to the 

limits on discovery set forth in 

paragraph (f) of this section, a party may 

discover any matter that is not 

privileged and that is relevant to the 

subject matter of the proceeding. A 

party may discover information that 

relates to the claim or defense of any 

party including the existence, 

description, nature, custody, condition, 

and location of any document or other 

tangible item and the identity and 

location of any person having 

knowledge of discoverable matter. A 

party may discover facts known, or 

opinions held, by an expert who any 

other party expects to call to testify at 

the hearing. A party may not object to 

a discovery request on the basis that the 

information sought would not be 

admissible at the hearing if the 

information sought during discovery is 

reasonably calculated to lead to the 

discovery of admissible evidence. 

(f) Limiting discovery. The ALJ must 

limit the frequency and extent of 

discovery permitted by this section if a 

party shows that— 


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(1) The information requested is 

cumulative or repetitious; 

(2) The information requested can be 

obtained from another less burdensome 

and more convenient source; 

(3) The party requesting the 

information has had ample opportunity 

to obtain the information through other 

discovery methods permitted under this 

section; or 

(4) The method or scope of discovery 

requested by the party is unduly 

burdensome or expensive. 

(g) Disclosure of Sensitive Security 

Information (SSI). At the request of a 

party, TSA may provide SSI to the party 

when, in the sole discretion of TSA, 

access to the SSI is necessary for the 

party to prepare a response to 

allegations contained the complaint. 

TSA may provide such information 

subject to such restrictions on further 

disclosure and such safeguarding 

requirements as TSA determines 

appropriate. 

(h) Confidential orders. A party or 

person who has received a discovery 

request for information, other than SSI, 

that is related to a trade secret, 

confidential or sensitive material, 

competitive or commercial information, 

proprietary data, or information on 

research and development, may file a 

motion for a confidential order with the 

ALJ and must serve a copy of the motion 

for a confidential order on each party. 

(1) The party or person making the 

motion must show that the confidential 

order is necessary to protect the 

information from disclosure to the 

public. 

(2) If the ALJ determines that the 

requested material is not necessary to 

decide the case, the ALJ must preclude 

any inquiry into the matter by any party. 

(3) If the ALJ determines that the 

requested material may be disclosed 

during discovery, the ALJ may order 

that the material may be discovered and 

disclosed under limited conditions or 

may be used only under certain terms 

and conditions. 

(4) If the ALJ determines that the 

requested material is necessary to 

decide the case and that a confidential 

order is warranted, the ALJ must 

provide the following: 

(i) An opportunity for review of the 

document by the parties off the record. 

(ii) Procedures for excluding the 

information from the record. 

(iii) An order that the parties must not 

disclose the information in any manner 

and the parties must not use the 

information in any other proceeding. 

(i) Protective orders. A party or a 

person who has received a request for 

discovery may file a motion for 

protective order and must serve a copy 

of the motion for protective order on 

each party. The party or person making 

the motion must show that the 

protective order is necessary to protect 

the party or the person from annoyance, 

embarrassment, oppression, or undue 

burden or expense. As part of the 

protective order, the ALJ may do the 

following: 

(1) Deny the discovery request. 

(2) Order that discovery be conducted 

only on specified terms and conditions, 

including a designation of the time or 

place for discovery or a determination of 

the method of discovery. 

(3) Limit the scope of discovery or 

preclude any inquiry into certain 

matters during discovery. 

(j) Duty to supplement or amend 

responses. A party who has responded 

to a discovery request has a duty to 

supplement or amend the response, as 

soon as the information is known, as 

follows: 

(1) A party must supplement or 

amend any response to a question 

requesting the identity and location of 

any person having knowledge of 

discoverable matters. 

(2) A party must supplement or 

amend any response to a question 

requesting the identity of each person 

who will be called to testify at the 

hearing as an expert witness and the 

subject matter and substance of that 

witness’ testimony. 

(3) A party must supplement or 

amend any response that was incorrect 

when made or any response that was 

correct when made but is no longer 

correct, accurate, or complete. 

(k) Depositions. The following rules 

apply to depositions taken pursuant to 

this section: 

(1) Form. A deposition must be taken 

on the record and reduced to writing. 

The person being deposed must sign the 

deposition unless the parties agree to 

waive the requirement of a signature. 

(2) Administration of oaths. Within 

the United States, or a territory or 

possession subject to the jurisdiction of 

the United States, a party must take a 

deposition before a person authorized to 

administer oaths by the laws of the 

United States or authorized by the law 

of the place where the examination is 

held. Outside the United States, a party 

will take a deposition in any manner 

allowed by the Federal Rules of Civil 

Procedure (28 U.S.C. App.). 

(3) Notice of deposition. A party must 

serve a notice of deposition, stating the 

time and place of the deposition and the 

name and address of each person to be 

examined, on the person to be deposed, 

on the ALJ, on the Enforcement Docket 

Clerk, and on each party not later than 

7 days before the deposition. A party 

may serve a notice of deposition less 

than 7 days before the deposition only 

with consent of the ALJ and for good 

cause shown. If a subpoena ‘‘duces 

tecum’’ is to be served on the person to 

be examined, the party must attach a 

copy of the subpoena duces tecum that 

describes the materials to be produced 

at the deposition to the notice of 

deposition. 

(4) Use of depositions. A party may 

use any part or all of a deposition at a 

hearing authorized under this subpart 

only upon a showing of good cause. The 

deposition may be used against any 

party who was present or represented at 

the deposition or who had reasonable 

notice of the deposition. 

(l) Interrogatories. A party, the party’s 

attorney, or the party’s representative 

may sign the party’s responses to 

interrogatories. A party must answer 

each interrogatory separately and 

completely in writing. If a party objects 

to an interrogatory, the party must state 

the objection and the reasons for the 

objection. An opposing party may use 

any part or all of a party’s responses to 

interrogatories at a hearing authorized 

under this subpart to the extent that the 

response is relevant, material, and not 

repetitious. 

(1) A party must not serve more than 

30 interrogatories to each other party. 

Each subpart of an interrogatory will be 

counted as a separate interrogatory. 

(2) Before serving additional 

interrogatories on a party, a party must 

file a motion for leave to serve 

additional interrogatories on a party 

with the ALJ and must serve a copy on 

each party before serving additional 

interrogatories on a party. The ALJ may 

grant the motion only if the party shows 

good cause for the party’s failure to 

inquire about the information 

previously and that the information 

cannot reasonably be obtained using 

less burdensome discovery methods or 

be obtained from other sources. 

(m) Requests for admission. A party 

may serve a written request for 

admission of the truth of any matter 

within the scope of discovery under this 

section or the authenticity of any 

document described in the request. A 

party must set forth each request for 

admission separately. A party must 

serve copies of documents referenced in 

the request for admission unless the 

documents have been provided or are 

reasonably available for inspection and 

copying. 

(1) Time. A party’s failure to respond 

to a request for admission, in writing 

and signed by the attorney or the party, 

not later than 30 days after service of the 

request, is deemed an admission of the 

truth of the statement or statements 


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contained in the request for admission. 

The ALJ may determine that a failure to 

respond to a request for admission is not 

deemed an admission of the truth if a 

party shows that the failure was due to 

circumstances beyond the control of the 

party or the party’s attorney. 

(2) Response. A party may object to a 

request for admission and must state the 

reasons for objection. A party may 

specifically deny the truth of the matter 

or describe the reasons why the party is 

unable to truthfully deny or admit the 

matter. If a party is unable to deny or 

admit the truth of the matter, the party 

must show that the party has made 

reasonable inquiry into the matter or 

that the information known to, or 

readily obtainable by, the party is 

insufficient to enable the party to admit 

or deny the matter. A party may admit 

or deny any part of the request for 

admission. If the ALJ determines that a 

response does not comply with the 

requirements of this rule or that the 

response is insufficient, the matter is 

deemed admitted. 

(3) Effect of admission. Any matter 

admitted or deemed admitted under this 

section is conclusively established for 

the purpose of the hearing and appeal. 

(n) Motion to compel discovery. A 

party may move to compel discovery if 

a person refuses to answer a question 

during a deposition, a party fails or 

refuses to answer an interrogatory, if a 

person gives an evasive or incomplete 

answer during a deposition or when 

responding to an interrogatory, or a 

party fails or refuses to produce 

documents or tangible items. During a 

deposition, the proponent of a question 

may complete the deposition or may 

adjourn the examination before moving 

to compel if a person refuses to answer. 

(o) Failure to comply with a discovery 

order or order to compel. If a party fails 

to comply with a discovery order or an 

order to compel, the ALJ, limited to the 

extent of the party’s failure to comply 

with the discovery order or motion to 

compel, may do the following: 

(1) Strike that portion of a party’s 

pleadings. 

(2) Preclude prehearing or discovery 

motions by that party. 

(3) Preclude admission of that portion 

of a party’s evidence at the hearing. 

(4) Preclude that portion of the 

testimony of that party’s witnesses at 

the hearing. 

§ 1503.635 Evidence. 

(a) General. A party is entitled to 

present the party’s case or defense by 

oral, documentary, or demonstrative 

evidence, to submit rebuttal evidence, 

and to conduct any cross-examination 

that may be required for a full and true 

disclosure of the facts. 

(b) Admissibility. A party may 

introduce any oral, documentary, or 

demonstrative evidence in support of 

the party’s case or defense. The ALJ 

must admit any oral, documentary, or 

demonstrative evidence introduced by a 

party, but must exclude irrelevant, 

immaterial, or unduly repetitious 

evidence. 

(c) Hearsay evidence. Hearsay 

evidence is admissible in proceedings 

governed by this subpart. The fact that 

evidence submitted by a party is hearsay 

goes only to the weight of the evidence 

and does not affect its admissibility. 

§ 1503.637 Standard of proof. 

The ALJ may issue an initial decision 

or may rule in a party’s favor only if the 

decision or ruling is supported by a 

preponderance of the evidence 

contained in the record. In order to 

prevail, the party with the burden of 

proof must prove the party’s case or 

defense by a preponderance of the 

evidence. 

§ 1503.639 Burden of proof. 

(a) Except in the case of an affirmative 

defense, the burden of proof is on the 

agency. 

(b) Except as otherwise provided by 

statute or rule, the proponent of a 

motion, request, or order has the burden 

of proof. 

(c) A party who has asserted an 

affirmative defense has the burden of 

proving the affirmative defense. 

§ 1503.641 Offer of proof. 

A party whose evidence has been 

excluded by a ruling of the ALJ may 

offer the evidence for the record on 

appeal. 

§ 1503.643 Public disclosure of evidence. 

This section applies to information 

other than Sensitive Security 

Information (SSI). All release of SSI is 

governed by § 1503.415 and 49 CFR part 

1520. 

(a) The ALJ may order that any other 

information contained in the record be 

withheld from public disclosure. Any 

person may object to disclosure of 

information in the record by filing a 

written motion to withhold specific 

information with the ALJ and serving a 

copy of the motion on each party. The 

party must state the specific grounds for 

nondisclosure in the motion. 

(b) The ALJ must grant the motion to 

withhold information in the record if, 

based on the motion and any response 

to the motion, the ALJ determines that 

disclosure would be detrimental to 

transportation safety, disclosure would 

not be in the public interest, or that the 

information is not otherwise required to 

be made available to the public. 

§ 1503.645 Expert or opinion witnesses. 

An employee of the agency may not 

be called as an expert or opinion 

witness, for any party other than TSA, 

in any proceeding governed by this 

subpart. An employee of a respondent 

may not be called by an agency attorney 

as an expert or opinion witness for TSA 

in any proceeding governed by this 

subpart to which the respondent is a 

party. 

§ 1503.647 Subpoenas. 

(a) Request for subpoena. A party may 

obtain a subpoena to compel the 

attendance of a witness at a deposition 

or hearing, or to require the production 

of documents or tangible items, from the 

ALJ who is assigned to the case, or, if 

no ALJ is assigned or the assigned law 

judge is unavailable, from the chief ALJ. 

The party must complete the subpoena, 

stating the title of the action and the 

date and time for the witness’ 

attendance or production of documents 

or items. The party who obtained the 

subpoena must serve the subpoena on 

the witness or the custodian of the 

documents or tangible items sought to 

be produced. 

(b) Motion to quash or modify the 

subpoena. A party, or any person upon 

whom a subpoena has been served, may 

file a motion to quash or modify the 

subpoena at or before the time specified 

in the subpoena for compliance. The 

applicant must describe, in detail, the 

basis for the application to quash or 

modify the subpoena including, but not 

limited to, a statement that the 

testimony, document, or tangible 

evidence is not relevant to the 

proceeding, that the subpoena is not 

reasonably tailored to the scope of the 

proceeding, or that the subpoena is 

unreasonable and oppressive. A motion 

to quash or modify the subpoena will 

stay the effect of the subpoena pending 

a decision by the ALJ on the motion. 

(c) Enforcement of subpoena. Upon a 

showing that a person has failed or 

refused to comply with a subpoena, a 

party may apply to the U.S. district 

court having jurisdiction to seek judicial 

enforcement of the subpoena in 

accordance with 49 U.S.C. 46104. 

§ 1503.649 Witness fees. 

(a) General. Unless otherwise 

authorized by the ALJ, the party who 

applies for a subpoena to compel the 

attendance of a witness at a deposition 

or hearing, or the party at whose request 

a witness appears at a deposition or 


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hearing, must pay the witness fees 

described in this section. 

(b) Amount. Except for an employee 

of the agency who appears at the 

direction of the agency, a witness who 

appears at a deposition or hearing is 

entitled to the same fees and mileage 

expenses as are paid to a witness in a 

court of the United States in comparable 

circumstances. 

§ 1503.651 Record. 

(a) Exclusive record. The request for 

hearing, complaint, answer, transcript of 

all testimony in the hearing, all exhibits 

received into evidence, and all motions, 

responses to motions, applications, 

requests, and rulings will constitute the 

exclusive record for decision of the 

proceedings and the basis for the 

issuance of any orders in the 

proceeding. 

(b) Examination and copying of 

record. (1) Generally. Any person 

interested in reviewing or obtaining a 

copy of a record may do so only by 

submitting a Freedom of Information 

Act (FOIA) request under 5 U.S.C. 552, 

et seq., 49 CFR part 7, and any 

applicable DHS regulations. Portions of 

the record may be exempt from 

disclosure pursuant to FOIA. 

(2) Docket Files or Documents Not for 

Public Disclosure. (i) Only the following 

persons may review docket files or 

particular documents that are not for 

public disclosure: 

(A) Parties to the proceedings. 

(B) Their designated representatives. 

(C) Persons who have a need to know 

as determined by the Administrator. 

(ii) Those persons with permission to 

review these documents or docket files 

may view the materials at the TSA 

Headquarters, 601 South 12th Street, 

Arlington, Virginia 20598–6002. Persons 

with access to these records may have 

a copy of the records after payment of 

reasonable costs. 

§ 1503.653 Argument before the ALJ. 

(a) Arguments during the hearing. 

During the hearing, the ALJ must give 

the parties a reasonable opportunity to 

present arguments on the record 

supporting or opposing motions, 

objections, and rulings if the parties 

request an opportunity for argument. 

The ALJ may request written arguments 

during the hearing if the ALJ finds that 

submission of written arguments is 

necessary before the ALJ issues the 

ruling or order. 

(b) Final oral argument. At the 

conclusion of the hearing and before the 

ALJ issues an initial decision in the 

proceedings, the parties are entitled to 

submit oral proposed findings of fact 

and conclusions of law, exceptions to 

rulings of the ALJ, and supporting 

arguments for the findings, conclusions, 

or exceptions. At the conclusion of the 

hearing, a party may waive final oral 

argument. 

(c) Posthearing briefs. The ALJ may 

request written posthearing briefs before 

the ALJ issues an initial decision in the 

proceedings. If a party files a written 

posthearing brief, the party must 

include proposed findings of fact and 

conclusions of law, exceptions to 

rulings of the ALJ, and supporting 

arguments for the findings, conclusions, 

or exceptions. The ALJ must give the 

parties a reasonable opportunity, not 

more than 30 days after receipt of the 

transcript, to prepare and submit the 

briefs. 

§ 1503.655 Initial decision. 

(a) Contents. The ALJ may issue an 

initial decision after the conclusion of 

the hearing or after the submission of 

written posthearing briefs, if so ordered. 

In each oral or written decision, the ALJ 

must include findings of fact and 

conclusions of law, and the grounds 

supporting those findings and 

conclusions, upon all material issues of 

fact, the credibility of witnesses, the 

applicable law, any exercise of the ALJ’s 

discretion, the amount of any civil 

penalty found appropriate by the ALJ, 

and a discussion of the basis for any 

order issued in the proceedings. The 

ALJ is not required to provide a written 

explanation for rulings on objections, 

procedural motions, and other matters 

not directly relevant to the substance of 

the initial decision. If the ALJ refers to 

any previous unreported or unpublished 

initial decision, the ALJ must make 

copies of that initial decision available 

to all parties and the TSA decision 

maker. 

(b) Written decision. At the 

conclusion of the hearing, the ALJ may 

issue the initial decision and order 

orally on the record. The ALJ must issue 

a written initial decision and order not 

later than 30 days after the conclusion 

of the hearing or submission of the last 

posthearing brief. The ALJ must serve a 

copy of any written initial decision on 

each party. 

(c) Order assessing civil penalty. 

Unless appealed pursuant to § 1503.657, 

the initial decision issued by the ALJ 

will be considered an order assessing 

civil penalty if the ALJ finds that an 

alleged violation occurred and 

determines that a civil penalty, in an 

amount found appropriate by the ALJ, is 

warranted. 

(d) Effect of initial decision. An initial 

decision of an ALJ is persuasive 

authority in any other civil penalty 

action, unless appealed and reversed by 

the TSA decision maker or a court of 

competent jurisdiction. 

§ 1503.657 Appeal from initial decision. 

(a) Notice of appeal. Either party may 

appeal the initial decision, and any 

decision not previously appealed 

pursuant to § 1503.631, by filing a 

notice of appeal with the Enforcement 

Docket Clerk. A party must file the 

notice of appeal with USCG ALJ 

Docketing Center, ATTN: Enforcement 

Docket Clerk, 40 S. Gay Street, Room 

412, Baltimore, Maryland 21202–4022. 

A party must file the notice of appeal 

not later than 10 days after entry of the 

oral initial decision on the record or 

service of the written initial decision on 

the parties and must serve a copy of the 

notice of appeal on each party. Upon 

filing of a notice of appeal, the 

effectiveness of the initial decision is 

stayed until a final decision and order 

of the TSA decision maker have been 

entered on the record. 

(b) Issues on appeal. A party may 

appeal only the following issues: 

(1) Whether each finding of fact is 

supported by a preponderance of the 

evidence. 

(2) Whether each conclusion of law is 

made in accordance with applicable 

law, precedent, and public policy. 

(3) Whether the ALJ committed any 

prejudicial errors during the hearing 

that support the appeal. 

(c) Perfecting an appeal. Unless 

otherwise agreed by the parties, a party 

must perfect an appeal, not later than 50 

days after entry of the oral initial 

decision on the record or service of the 

written initial decision on the party, by 

filing an appeal brief with the 

Enforcement Docket Clerk. 

(1) Extension of time by agreement of 

the parties. The parties may agree to 

extend the time for perfecting the appeal 

with the consent of the TSA decision 

maker. If the TSA decision maker grants 

an extension of time to perfect the 

appeal, the Enforcement Docket Clerk 

will serve a letter confirming the 

extension of time on each party. 

(2) Written motion for extension. If the 

parties do not agree to an extension of 

time for perfecting an appeal, a party 

desiring an extension of time may file a 

written motion for an extension with the 

Enforcement Docket Clerk and must 

serve a copy of the motion on each 

party. The TSA decision maker may 

grant an extension if good cause for the 

extension is shown in the motion. 

(d) Appeal briefs. A party must file 

the appeal brief with the Enforcement 

Docket Clerk and must serve a copy of 

the appeal brief on each party. 

(1) In the appeal brief, a party must 

set forth, in detail, the party’s specific 


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objections to the initial decision or 

rulings, the basis for the appeal, the 

reasons supporting the appeal, and the 

relief requested in the appeal. If, for the 

appeal, the party relies on evidence 

contained in the record for the appeal, 

the party must specifically refer in the 

appeal brief to the pertinent evidence 

contained in the transcript. 

(2) The TSA decision maker may 

dismiss an appeal, on the TSA decision 

maker’s own initiative or upon motion 

of any other party, where a party has 

filed a notice of appeal but fails to 

perfect the appeal by timely filing an 

appeal brief. 

(e) Reply brief. Unless otherwise 

agreed by the parties, any party may file 

a reply brief not later than 35 days after 

the appeal brief has been served on that 

party. The party filing the reply brief 

must serve a copy of the reply brief on 

each party. If the party relies on 

evidence contained in the record for the 

reply, the party must specifically refer 

to the pertinent evidence contained in 

the transcript in the reply brief. 

(1) Extension of time by agreement of 

the parties. The parties may agree to 

extend the time for filing a reply brief 

with the consent of the TSA decision 

maker. If the TSA decision maker grants 

an extension of time to file the reply 

brief, the Enforcement Docket Clerk will 

serve a letter confirming the extension 

of time on each party. 

(2) Written motion for extension. If the 

parties do not agree to an extension of 

time for filing a reply brief, a party 

desiring an extension of time may file a 

written motion for an extension and will 

serve a copy of the motion on each 

party. The TSA decision maker may 

grant an extension if good cause for the 

extension is shown in the motion. 

(f) Other briefs. The TSA decision 

maker may allow any person to submit 

an amicus curiae brief in an appeal of 

an initial decision. A party may not file 

more than one appeal brief or reply 

brief. A party may petition the TSA 

decision maker, in writing, for leave to 

file an additional brief and must serve 

a copy of the petition on each party. The 

party may not file the additional brief 

with the petition. The TSA decision 

maker may grant leave to file an 

additional brief if the party 

demonstrates good cause for allowing 

additional argument on the appeal. The 

TSA decision maker will allow a 

reasonable time for the party to file the 

additional brief. 

(g) Number of copies. A party must 

file the original appeal brief or the 

original reply brief, and two copies of 

the brief, with the Enforcement Docket 

Clerk. 

(h) Oral argument. The TSA decision 

maker has sole discretion to permit oral 

argument on the appeal. On the TSA 

decision maker’s own initiative or upon 

written motion by any party, the TSA 

decision maker may find that oral 

argument will contribute substantially 

to the development of the issues on 

appeal and may grant the parties an 

opportunity for oral argument. 

(i) Waiver of objections on appeal. If 

a party fails to object to any alleged 

error regarding the proceedings in an 

appeal or a reply brief, the party waives 

any objection to the alleged error. The 

TSA decision maker is not required to 

consider any objection in an appeal 

brief or any argument in the reply brief 

if a party’s objection is based on 

evidence contained in the record and 

the party does not specifically refer to 

the pertinent evidence from the record 

in the brief. 

(j) The TSA decision maker’s decision 

on appeal. The TSA decision maker will 

review the briefs on appeal and the oral 

argument, if any, to determine if the ALJ 

committed prejudicial error in the 

proceedings or that the initial decision 

should be affirmed, modified, or 

reversed. The TSA decision maker may 

affirm, modify, or reverse the initial 

decision, make any necessary findings, 

or may remand the case for any 

proceedings that the TSA decision 

maker determines may be necessary. 

(1) The TSA decision maker may raise 

any issue, on the TSA decision maker’s 

own initiative, that is required for 

proper disposition of the proceedings. 

The TSA decision maker will give the 

parties a reasonable opportunity to 

submit arguments on the new issues 

before making a decision on appeal. If 

an issue raised by the TSA decision 

maker requires the consideration of 

additional testimony or evidence, the 

TSA decision maker will remand the 

case to the ALJ for further proceedings 

and an initial decision related to that 

issue. If the TSA decision maker raises 

an issue that is solely an issue of law, 

or the issue was addressed at the 

hearing but was not raised by a party in 

the briefs on appeal, the TSA decision 

maker need not remand the case to the 

ALJ for further proceedings but has the 

discretion to do so. 

(2) The TSA decision maker will issue 

the final decision and order of the 

Administrator on appeal in writing and 

will serve a copy of the decision and 

order on each party. Unless a petition 

for review is filed pursuant to 

§ 1503.659, a final decision and order of 

the Administrator will be considered an 

order assessing civil penalty if the TSA 

decision maker finds that an alleged 

violation occurred and a civil penalty is 

warranted. 

(3) A final decision and order of the 

Administrator after appeal is binding 

precedent in any other civil penalty 

action unless appealed and reversed by 

a court of competent jurisdiction. 

(4) The TSA decision maker will 

determine whether the decision and 

order of the TSA decision maker, with 

the ALJ’s initial decision or order 

attached, may be released to the public, 

either in whole or in redacted form. In 

making this determination, the TSA 

decision maker will consider whether 

disclosure of any of the information in 

the decision and order would be 

detrimental to transportation security, 

would not be in the public interest, or 

should not otherwise be required to be 

made available to the public. 

§ 1503.659 Petition to reconsider or modify 

a final decision and order of the TSA 

decision maker on appeal. 

(a) General. Any party may petition 

the TSA decision maker to reconsider or 

modify a final decision and order issued 

by the TSA decision maker on appeal 

from an initial decision. A party must 

file a petition to reconsider or modify 

not later than 30 days after service of the 

TSA decision maker’s final decision and 

order on appeal and must serve a copy 

of the petition on each party. The TSA 

decision maker will not reconsider or 

modify an initial decision and order 

issued by an ALJ that has not been 

appealed by any party to the TSA 

decision maker and filed with the 

Enforcement Docket Clerk. 

(b) Form and number of copies. A 

party must file in writing a petition to 

reconsider or modify. The party must 

file the original petition with the 

Enforcement Docket Clerk and must 

serve a copy of the petition on each 

party. 

(c) Contents. A party must state 

briefly and specifically the alleged 

errors in the final decision and order on 

appeal, the relief sought by the party, 

and the grounds that support the 

petition to reconsider or modify. 

(1) If the petition is based, in whole 

or in part, on allegations regarding the 

consequences of the TSA decision 

maker’s decision, the party must 

describe and support those allegations. 

(2) If the petition is based, in whole 

or in part, on new material not 

previously raised in the proceedings, 

the party must set forth the new 

material and include affidavits of 

prospective witnesses and authenticated 

documents that would be introduced in 

support of the new material. The party 

must explain, in detail, why the new 


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material was not discovered through 

due diligence prior to the hearing. 

(d) Repetitious and frivolous petitions. 

The TSA decision maker will not 

consider repetitious or frivolous 

petitions. The TSA decision maker may 

summarily dismiss repetitious or 

frivolous petitions to reconsider or 

modify. 

(e) Reply petitions. Any other party 

may reply to a petition to reconsider or 

modify, not later than 10 days after 

service of the petition on that party, by 

filing a reply with the Enforcement 

Docket Clerk. A party must serve a copy 

of the reply on each party. 

(f) Effect of filing petition. Unless 

otherwise ordered by the TSA decision 

maker, filing a petition pursuant to this 

section will stay the effective date of the 

TSA decision maker’s final decision and 

order on appeal. 

(g) The TSA decision maker’s decision 

on petition. The TSA decision maker 

has sole discretion to grant or deny a 

petition to reconsider or modify. The 

TSA decision maker will grant or deny 

a petition to reconsider or modify 

within a reasonable time after receipt of 

the petition or receipt of the reply 

petition, if any. The TSA decision 

maker may affirm, modify, or reverse 

the final decision and order on appeal, 

or may remand the case for any 

proceedings that the TSA decision 

maker determines may be necessary. 

§ 1503.661 Judicial review of a final order. 

For violations of a TSA requirement, 

a party may petition for review of a final 

order of the Administrator only to the 

courts of appeals of the United States or 

the United States Court of Appeals for 

the District of Columbia pursuant to 49 

U.S.C. 46110. A party seeking judicial 

review of a final order must file a 

petition for review not later than 60 

days after the final order has been 

served on the party. 

Subpart H—Judicial Assessment of 

Civil Penalties 

§ 1503.701 Applicability of this subpart. 

(a) Jurisdictional minimums. This 

subpart applies to a civil penalty action 

under this part in which the total 

amount in controversy exceeds the 

following amounts. 

(b) In general. Except as provided in 

paragraph (c) of this section, in the case 

of violation of title 49 U.S.C. or 46 U.S.C 

chapter 701, a regulation prescribed, or 

order issued under any of those 

provisions, the amount in controversy 

exceeds the following: 

(1) $50,000, in the case of violation by 

an individual or small business concern, 

as defined in section 3 of the Small 

Business Act (15 U.S.C. 632). 

(2) $400,000, in the case of violation 

by any other person. 

(c) Certain aviation related violations. 

In the case of a violation of 49 U.S. C. 

chapter 449 (except sections 44902, 

44903(d), 44907(a)–(d)(1)(A), 

44907(d)(1)(C)–(f), 44908, and 44909), or 

a regulation prescribed or order issued 

under any of those provisions, the 

amount in controversy exceeds the 

following: 

(1) $50,000, in the case of violation by 

an individual (except an airman serving 

as an airman), any person not operating 

an aircraft for the transportation of 

passengers or property for 

compensation, or a small business 

concern, as defined in section 3 of the 

Small Business Act (15 U.S.C. 632). 

(2) $400,000, in the case of violation 

by a person operating an aircraft for the 

transportation of passengers or property 

for compensation (except an individual 

serving as an airman). 

§ 1503.703 Civil penalty letter; referral. 

(a) Issuance. In a civil penalty action 

in which the amount in controversy 

exceeds the amounts set forth in 

§ 1503.701, the Administrator will send 

a civil penalty letter to the person 

charged with a violation of a TSA 

requirement. 

(b) Contents. The civil penalty letter 

will contain a statement of the charges; 

the applicable law, rule, regulation, or 

order; the amount of civil penalty that 

the Administrator will accept in full 

settlement of the action or an offer to 

compromise the civil penalty. 

(c) Response. Not later than 30 days 

after receipt of the civil penalty letter, 

the person charged with a violation may 

present to the agency attorney any 

material or information in answer to the 

charges, either orally or in writing, that 

may explain, mitigate, or deny the 

violation or that may show extenuating 

circumstances. The Administrator will 

consider any material or information 

submitted in accordance with this 

paragraph (c) to determine whether the 

person is subject to a civil penalty or to 

determine the amount for which the 

Administrator will compromise the 

action. 

(d) Compromise. If the person charged 

with a violation offers to compromise 

the civil penalty action for a specific 

amount, that person must send payment 

in a form and manner acceptable to TSA 

for that amount to the agency, made 

payable to the Transportation Security 

Administration, or make payment 

electronically through http:// 

www.pay.gov. The Chief Counsel or the 

Deputy Chief Counsel for Civil 

Enforcement may accept the payment or 

may refuse and return the payment. If 

the Administrator accepts the offer to 

compromise, the agency will send a 

letter to the person charged with the 

violation stating that the payment is 

accepted in full settlement of the civil 

penalty action and that the matter is 

closed. 

(e) Referral for prosecution and 

collection. If the parties cannot agree to 

compromise the civil penalty action or 

the offer to compromise is rejected and 

the payment submitted in compromise 

is returned, the Administrator may refer 

the civil penalty action to the United 

States Attorney General, or the delegate 

of the Attorney General, to begin 

proceedings in a United States district 

court, pursuant to the authority in 49 

U.S.C. 114 or 46305 to prosecute and 

collect the civil penalty. 

(f) The Administrator delegates to the 

Chief Counsel and the Deputy Chief 

Counsel for Enforcement the authority 

to carry out any function of the 

Administrator described in this 

§ 1503.703. 

Subpart I—Formal Complaints 

§ 1503.801 Formal complaints. 

(a) Any person may file a complaint 

with the Administrator with respect to 

any act or omission by any person in 

contravention of 49 U.S.C., subtitle VII, 

part A, (except sections 44902, 

44903(d), 44907(a)–(d)(1)(A), 

44907(d)(1)(C)–(f), 44908, and 44909) 

administered by the Administrator, or a 

regulation prescribed or order issued 

under any of those provisions. This 

section does not apply to complaints 

against the Administrator or employees 

of the TSA acting within the scope of 

their employment. 

(b) Complaints filed under this 

section must— 

(1) Be submitted in writing and 

identified as a complaint filed for the 

purpose of seeking an appropriate order 

or other enforcement action; 

(2) Be submitted to the U.S. 

Department of Homeland Security, 

Transportation Security Administration, 

by following the instructions to 

complete a ‘‘complaint’’ contact form by 

following the instructions on the TSA 

Web site, currently accessible at http:// 

www.tsa.gov/contact/index.shtm. 

(3) Set forth the name and address, if 

known, of each person who is the 

subject of the complaint and, with 

respect to each person, the specific 

provisions of the statute, regulation, or 

order that the person filing the 

complaint believes were violated; 

(4) Contain a concise, but complete, 

statement of the facts relied upon to 

substantiate each allegation; 


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(5) State the name, address, and 

telephone number of the person filing 

the complaint; and 

(6) Be signed by the person filing the 

complaint or a duly authorized 

representative. 

(c) TSA will consider complaints that 

do not meet the requirements of 

paragraph (b) of this section as reports 

under § 1503.1. 

(d) TSA will place complaints that 

meet the requirements of paragraph (b) 

of this section in the docket and will 

mail a copy to each person named in the 

complaint. 

(e) TSA will refer any complaint 

against a member of the Armed Forces 

of the United States acting in the 

performance of official duties to the 

Secretary of the Department concerned 

in accordance with the procedures set 

forth in § 1503.407. 

(f) The person named in the 

complaint must file an answer within 20 

days after service of a copy of the 

complaint. 

(g) After the complaint has been 

answered or after the allotted time in 

which to file an answer has expired, the 

Administrator, or a designated official, 

will determine if there are reasonable 

grounds for investigating the complaint. 

(h) If the Administrator, or a 

designated official, determines that a 

complaint does not state facts that 

warrant an investigation or action, the 

Administrator or designated official may 

dismiss the complaint without a hearing 

and, if so, will provide the reason for 

the dismissal, in writing, to the person 

who filed the complaint and the 

person(s) named in the complaint. 

(i) If the Administrator, or a 

designated official, determines that 

reasonable grounds exist, an informal 

investigation may be initiated. Each 

person named in the complaint will be 

advised which official has been 

delegated the responsibility under 

§ 1503.203 for conducting the 

investigation. 

(j) If the investigation substantiates 

the allegations set forth in the 

complaint, a notice of proposed order 

may be issued or other enforcement 

action taken in accordance with this 

part. 

(k) The complaint and other pleadings 

and official TSA records relating to the 

disposition of the complaint are 

maintained in current docket form at: 

U.S. Department of Homeland Security, 

Transportation Security Administration, 

Office of the Chief Counsel, TSA–2, 

Complaint Docket, 601 South 12th 

Street, Arlington, VA 20598–6002. If 

this location changes, TSA will give 

notice of the change by publishing a 

notice in the Federal Register. 

(1) Generally. Any person interested 

in reviewing or obtaining a copy of a 

record may do so only by submitting a 

Freedom of Information Act (FOIA) 

request under 5 U.S.C. 552, et seq. and 

49 CFR part 7. Portions of the record 

may be exempt from disclosure 

pursuant to FOIA. 

(2) Docket files or documents not for 

public disclosure. (i) Only the following 

persons may review docket files or 

particular documents that are not for 

public disclosure: 

(A) Parties to the proceedings. 

(B) Representatives designated in 

writing by a party. 

(C) Persons who have a need to know 

as determined by the Administrator. 

(ii) Those persons with permission to 

review these documents or docket files 

may view the materials at the Complaint 

Docket, TSA Headquarters, Visitor 

Center, 601 South 12th Street, 

Arlington, Virginia 20598–6002, Attn: 

Office of Chief Counsel. If this address 

changes, TSA will give notice by 

publishing a notice in the Federal 

Register. Persons with access to these 

records may have a copy of the records 

after payment of reasonable costs. 

Issued in Arlington, Virginia, on July 10, 

2009. 

Gale D. Rossides, 

Acting Administrator. 

[FR Doc. E9–17133 Filed 7–20–09; 8:45 am] 

BILLING CODE 9110–05–P 


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