Rule2022-17079
Procedures of the Transportation Security Oversight Board Review Panel Concerning Federal Aviation Administration Airman Certificates
Primary source
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Published
August 9, 2022
Effective
September 8, 2022
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is amending its regulations to codify certain review procedures of the Transportation Security Oversight Board (TSOB) Review Panel. This interim final rule explains the process by which a party appeals the decision of an Administrative Law Judge (ALJ) relating to the determination by the Transportation Security Administration (TSA) that an individual holding a Federal Aviation Administration (FAA) certificate poses or is suspected of posing a security threat. Publishing and codifying the procedures will enhance the TSOB review process by providing clarity to members of the Review Panel and litigants concerning filing deadlines, the form of motions and briefs, the administration of hearings, the standard of review, and the effect of TSOB Review Panel decisions. Providing clarity will reduce misconceptions about the intended process, encourage the uniform treatment of litigants, and promote consistent outcomes. Also, advance knowledge of the procedures will enable prospective parties to make informed decisions concerning whether to seek an appeal of an ALJ's decision. DHS invites comment on the interim final rule and will issue a final rule following consideration of the comments received.
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[Federal Register Volume 87, Number 152 (Tuesday, August 9, 2022)]
[Rules and Regulations]
[Pages 48431-48441]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17079]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 87, No. 152 / Tuesday, August 9, 2022 / Rules
and Regulations
[[Page 48431]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 126
[Docket No. DHS-2022-0039]
RIN 1601-AB09
Procedures of the Transportation Security Oversight Board Review
Panel Concerning Federal Aviation Administration Airman Certificates
AGENCY: Office of the Secretary, DHS.
ACTION: Interim final rule, request for comments.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations to codify certain review procedures of the Transportation
Security Oversight Board (TSOB) Review Panel. This interim final rule
explains the process by which a party appeals the decision of an
Administrative Law Judge (ALJ) relating to the determination by the
Transportation Security Administration (TSA) that an individual holding
a Federal Aviation Administration (FAA) certificate poses or is
suspected of posing a security threat. Publishing and codifying the
procedures will enhance the TSOB review process by providing clarity to
members of the Review Panel and litigants concerning filing deadlines,
the form of motions and briefs, the administration of hearings, the
standard of review, and the effect of TSOB Review Panel decisions.
Providing clarity will reduce misconceptions about the intended
process, encourage the uniform treatment of litigants, and promote
consistent outcomes. Also, advance knowledge of the procedures will
enable prospective parties to make informed decisions concerning
whether to seek an appeal of an ALJ's decision. DHS invites comment on
the interim final rule and will issue a final rule following
consideration of the comments received.
DATES: Effective date: This rule is effective September 8, 2022.
Comment date: Comments must be received by September 8, 2022.
ADDRESSES: You may submit comments, identified by docket number DHS-
2022-0039, through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
Instructions: In your submission, please include the agency name
and docket number for this rulemaking. We will post all comments,
without any change and including any personal information contained in
the comment, to the public docket. All comments may be read at
<a href="http://www.reguations.gov">www.reguations.gov</a>.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS officials, will not be
considered comments on the IFR, and may not be considered by DHS.
Please note that DHS cannot accept any comments that are hand-delivered
or couriered. In addition, DHS cannot accept comments contained on any
form of digital media storage devices, such as CDs/DVDs and USB drives.
DHS is not accepting mailed comments. If you cannot submit your
comment by using <a href="http://www.regulations.gov">www.regulations.gov</a>, please contact Randall Kaplan,
Attorney, Department of Homeland Security, by telephone at 202 282-9822
for alternate instructions.
Docket: For access to the docket or to read background documents or
comments, go to <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Randall Kaplan, Attorney, Office of
the General Counsel, Department of Homeland Security, Washington, DC,
20528-0485. PHONE: 202 282-9822.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
ALJ--Administrative Law Judge
ATSA--The Aviation and Transportation Security Act of 2001
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
FAA--Federal Aviation Administration
FRAP--Federal Rules of Appellate Procedure
Pt.--Part
Pub. L.--Public Law
Sec. --Section
SES--Senior Executive Service
SL--Senior Level
SSI--Sensitive Security Information
Stat.--United States Statutes at Large
Subt.--Subtitle
TSA--Transportation Security Administration
TSOB--Transportation Security Oversight Board
U.S.C.--United States Code
Table of Contents
I. Background and Purpose
II. Discussion of the Rule
III. Regulatory Analyses
A. Executive Order 12866 and Executive Order 13563
B. Regulatory Flexibility Act Assessment
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 13132
F. Executive Order 12988, Civil Justice Reform
G. Paperwork Reduction Act Assessment
I. Background and Purpose
A. Statutory History
Section 102(a) of the Aviation and Transportation Security Act
(ATSA), Public Law 107-71, as amended, (codified at 49 U.S.C. 115)
established the Transportation Security Oversight Board (TSOB) in the
Department of Homeland Security. The Secretary of Homeland Security, or
the Secretary's designee, serves as the Chairperson of the TSOB. 49
U.S.C. 115(b)(2). The other statutory members of the TSOB are the
Secretaries of Transportation, Defense, and the Treasury, the Attorney
General, the Director of National Intelligence, or their designees, and
one individual appointed by the President to represent the National
Security Council. 49 U.S.C. 115(b)(1).
Section 601(a) of the Vision 100--Century of Aviation
Reauthorization Act (Vision 100 Act), (Pub. L. 108-176; 49 U.S.C.
46111(a)) requires the FAA Administrator to issue an order amending,
modifying, suspending, or revoking all or part of an FAA certificate
issued under title 49 of the U.S. Code when notified by the
Administrator of the TSA that the certificate holder poses, or is
suspected of posing, a risk of air piracy or terrorism or a threat to
airline or passenger safety. Following the FAA's issuance of such an
order, an adversely affected U.S. citizen may challenge the TSA's
determination that they pose or are suspected of posing such a risk
(called a Determination of Security Threat) at a hearing on the record
before an ALJ. 49 U.S.C. 46111(b)-(c). Any party to the
[[Page 48432]]
proceedings before the ALJ may appeal the ALJ's decision to a Review
Panel appointed by the TSOB. 49 U.S.C. 46111(d). Any person who is
substantially affected by the TSOB Review Panel's action may seek
review by an appropriate U.S. Court of Appeals. 49 U.S.C. 46110(a) and
46111(e). The TSA Administrator may seek such review if it is
determined that the Review Panel's action will have a significant
adverse impact on carrying out 49 U.S.C. Subt. VII, Pt. A, which
establishes Federal programs to ensure safety in aviation and air
commerce.
When the TSOB receives an appeal from an ALJ's decision regarding a
TSA Determination of Security Threat, it must establish a Review Panel
to review the decision. 49 U.S.C. 46111(d). The members of the Review
Panel may not be TSA employees, and they must hold an appropriate
security clearance. 49 U.S.C. 46111(d)(1) and (2). A TSOB Review Panel
may affirm, modify, or reverse the ALJ's decision. 49 U.S.C.
46111(d)(3).
B. TSA Vetting Process and Redress for Determinations of Security
Threat
As a result of the September 11, 2001 terrorist attacks, Congress
recognized the need for an entirely new and comprehensive regulatory
regime focused on securing the transportation system and enacted many
laws requiring TSA to conduct security threat assessments (STAs) of
individuals who perform security functions in or have access to the
transportation system. TSA conducts STAs of more than 25 million
individuals every day. The vetted populations include airport workers,
airline employees, air cargo handlers, FAA certificate holders,
individuals seeking airspace waivers, drivers hauling hazardous
materials in commerce, merchant mariners and longshoremen working in
ports and on vessels, trusted travelers, flight students, chemical
facility employees, and others. In accordance with the governing
statutory requirements and fundamental principles of due process, TSA
developed these vetting programs to collect ample biographic
information to verify the identity of the applicant, conduct informed
evaluations of the vetting results, and provide robust redress to
protect against incorrectly designating an individual as a threat to
national or transportation security, or of terrorism.
Of the 25 million individuals TSA vets daily, over five million
hold FAA certificates. TSA is required to ensure that individuals ``are
screened against all appropriate records in the consolidated and
integrated terrorist watchlist maintained by the Federal Government
before being certificated'' by the FAA.\1\ To conduct this vetting, TSA
uses the biographic information the FAA collects from applicants and
certificate holders and compares it against several intelligence and
law enforcement databases. TSA's intelligence analysts review any
derogatory information generated during the vetting to determine
whether the individual poses or is suspected of posing a security
threat. This evaluation requires expertise and rigor to analyze
behaviors and connections that are indicative of potential security
threats. Analysts in TSA's Office of Intelligence and Analysis evaluate
the vetting information thoroughly for behaviors and connections that
reflect security threats based on their longstanding experience with
this information. If TSA believes the individual poses, or is suspected
of posing, a security threat, TSA issues a Determination of Security
Threat, notifies the FAA of the Determination of Security Threat, and
asks the FAA to amend, modify, suspend, or revoke the individual's
certificates. Once the FAA takes action, the individual, if a U.S.
citizen, may appeal the Determination of Security Threat underlying
FAA's action to an ALJ.
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\1\ See 49 U.S.C. 44903(j)(2)(D).
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The ALJs who hear these appeals are experienced judges who are
frequently called upon to review TSA's eligibility determinations for
other transportation worker populations and who possess the appropriate
security clearance to review classified or otherwise protected
information and evidence. As part of their review, they have the power
to receive information and evidence; hold and regulate the course of
hearings; dispose of procedural motions; and examine witnesses. The ALJ
conducts a de novo hearing, reviews the evidence and testimony
presented (including the information on which TSA based its
Determination of Security Threat), and issues a decision based on that
review. Following the ALJ's decision, the parties may appeal to the
TSOB Review Panel.
C. TSOB Review Panel Procedures
As a result of the first appeal to the TSOB Review Panel in 2010,
the TSOB Chairperson issued procedures in May 2011 for use in all
appeals. DHS provides these procedures directly to litigants if they
file a notice of intent to appeal following the ALJ process. All of the
2011 procedures governing briefs and motions, the conduct of
proceedings, the treatment of sensitive documents, and the standard of
review are closely aligned with the Federal Rules of Appellate
Procedure (FRAP).\2\ The 2011 procedures ensure that parties have
adequate time to seek review, prepare briefs, respond to opposing party
assertions, request extensions of time, and request hearings.
Additionally, the 2011 procedures establish the standard of review,
substantial evidence on the record, for the Review Panel to apply when
reviewing evidence and reaching a decision.
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\2\ <a href="https://www.uscourts.gov/rules-policies/current-rules-practice-procedure">https://www.uscourts.gov/rules-policies/current-rules-practice-procedure</a>.
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From 2011 to November 30, 2021, the TSOB received only one
additional appeal, which was resolved by decision of the TSOB Review
Panel on September 23, 2021. The 2021 TSOB Review Panel applied a de
novo standard of review.
Requests for review of an ALJ decision by the TSOB Review Panel are
on the rise. As of the date of this publication, there are four
Determinations of Security Threat regarding U.S. citizens pending
review by an ALJ, and an additional three U.S. citizens have timely
initiated the redress process in response to a Determination of
Security Threat. Overall, TSA's caseload with respect to Determinations
of Security Threat has increased by over 100% between Fiscal Year 2019
and Fiscal Year 2021, in significant part due to rising investigations
of domestic terrorism-related cases in which affected certificate
holders may seek reviews of Determinations of Security Threat by an ALJ
and then the TSOB. Given this trend, publishing and codifying the
procedures will help ensure optimal transparency in the process for
affected individuals, clear understanding of the procedures, and
consistency in results.
As discussed in greater detail in section D. Procedural Rules under
the Administrative Procedure Act, DHS is issuing this interim final
rule as a procedural rule, which are typically exempt from the notice-
and-comment requirements of the Administrative Procedure Act (APA). 5
U.S.C. 553(b)(A). Nevertheless, DHS is asking for comment on this
interim final rule from all affected stakeholders and will consider the
comments and make changes as appropriate.
II. Discussion of the Rule
In the paragraphs below, organized by section number, we explain
the origins and rationale for the standards in the interim final rule,
and where it differs from the 2011 procedures.
[[Page 48433]]
Sec. 126.1 Purpose
Section 126.1 describes the general purpose of part 126, which is
to establish procedures by which a TSOB Review Panel is appointed and
reviews an appeal from an ALJ's decision regarding a TSA Determination
of Security Threat.
Sec. 126.3 Definitions
Section 126.3 provides definitions of important terms that are used
in the interim final rule. The 2011 procedures did not include a
definition section, but based on the experience DHS has gained in prior
TSOB review panel cases and other administrative review programs DHS
and its components administer, establishing definitions of key terms
aids all parties engaged in the review process. These definitions are
taken from existing statutory, regulatory, or Executive Order language,
or reflect common usage meanings.
`Classified information' has the same meaning the term has in
Executive Order 13526, Classified National Security Information, or its
successor Executive Order. The term `communication technology' means
telephone or videoconferencing platform. The term `Sensitive Security
Information' (SSI) is information described in 49 CFR 1520.5. The rule
defines `other protected information' as any other information that the
government is authorized by statute, regulation, or Executive Order to
withhold. The rule defines `Transportation Security Oversight Board
(TSOB)' as the board established pursuant to 49 U.S.C. 115. Finally,
`Transportation Security Oversight Board (TSOB) Review Panel' is
defined as the panel established pursuant to 49 U.S.C. 46111(d) to
consider an appeal from a decision of an ALJ as the result of a hearing
under 49 U.S.C. 46111(b).
Sec. 126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk
Section 126.5(a) provides that TSOB members must designate
individuals who meet specific criteria to serve in a pool of potential
Panel members for a period of two years. The criteria for nominees are
listed in paragraphs (a)(1) through (a)(5). The nominee must be a
member of the Senior Executive Service (SES) or a Senior Level (SL)
employee to ensure that he or she possesses the appropriate level of
experience to evaluate the issues and record before the Panel. The
nominee must hold the appropriate security clearance to ensure that he
or she can effectively review an administrative record that contains
classified material. Nominees may not be employees of TSA or FAA, which
ensures an unbiased review of TSA's security threat determination.
Although 49 U.S.C. 46111(d) excludes only TSA employees from membership
on a TSOB Review Panel, the TSOB Chairperson has determined that FAA
employees should also be excluded. Exclusion of both TSA and FAA
employees from participation in the TSOB Review Panel pool avoids the
possible appearance of impartiality or lack of independent review. To
the extent practicable, the nominee will have a legal background and be
engaged in the practice of law on behalf of the U.S. government.
Although these qualifications were not included in the 2011 procedures,
through experience in this and other administrative appeal programs,
DHS has found that individuals with this background enhance a Review
Panel's ability to efficiently and accurately assess the legal
arguments the parties assert during the appeal, and to prepare cogent
decisions. Finally, to the extent practicable, a nominee will be
familiar with transportation security issues. This factor was not
included in the 2011 procedures, but DHS has found that such a
background enhances the efficiency and accuracy of the review process.
Paragraph (b) provides that TSOB members must designate officials
for the TSOB Review Panel when each two-year period expires. Paragraph
(c) states that the General Counsel of the Department of Homeland
Security, or the General Counsel's designee, will appoint an individual
from within the Office of the General Counsel to serve as the TSOB
Docket Clerk. The TSOB Docket Clerk serves as the Review Panel's point
of contact for the public and the parties to ALJ proceedings. Paragraph
(d) states that when the TSOB Docket Clerk receives a properly and
timely filed appeal from an ALJ's decision, the TSOB Chairperson will
select at least three individuals from the Review Panel pool to serve
on a Review Panel to review the ALJ's decision. The TSOB Chairperson
has discretion to choose which individuals from the pool will serve on
a TSOB Review Panel. In making selections for a TSOB Review Panel, the
TSOB Chairperson will, to the extent practicable, select at least one
person with a legal background to serve as a Panel Member. A three-
member Review Panel allows for appropriate deliberation and the
exercise of independent judgment, and is similar to the size of other
Federal Government administrative review panels and the panels that
hear cases in the U.S. Courts of Appeals.\3\
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\3\ See 28 U.S.C. 46(b) (providing for three-judge panels to
hear and determine cases in the U.S. Courts of Appeals); 49 CFR
1108.6 (providing for a three-member panel of arbitrators for the
Surface Transportation Board).
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Sec. 126.7 Function of TSOB Review Panel
Section 126.7 requires a TSOB Review Panel to review an ALJ's
decision and affirm, modify, or reverse that decision, or remand the
matter to the ALJ for reconsideration.
Sec. 126.9 Scope and Standard of Review
Section 126.9(a) states that the standard of review a TSOB Review
Panel uses in considering an ALJ's decision is whether the decision is
supported by substantial evidence in the record. The term ``standard of
review'' refers to the degree of deference a reviewing court gives to
the court below. The 2011 procedures stated that the standard of review
is whether the ALJ's decision reasonably supports the conclusion that
the FAA certificate holder does or does not pose a security threat,
which is equivalent to ``substantial evidence in the record.''
Substantial evidence means ``such relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.'' \4\ In
contrast, the ALJ applies a de novo standard of review to TSA's
Determinations of Security Threat for FAA certificate holders. A ``de
novo'' standard of review applies the least amount of deference to the
court below; the reviewing court examines the evidence as though it is
being considered for the first time, allowing the reviewing court to
substitute its own judgment about the application of the law to the
facts.
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\4\ See Richardson vs. Perales, 402 U.S. 389 (1971).
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Generally, the substantial evidence standard of review is used in
civil cases relating to administrative decisions at the Federal level.
TSA administers several vetting programs with robust redress processes
that, like the 2011 TSOB Review Panel procedures, include multiple
levels of review. One transportation-related example is the review
process for the Transportation Worker Identification Credential (TWIC)
and Hazardous Materials Endorsement (HME) programs found at 49 CFR
1515.5-1515.11. TWIC and HME applicants undergo an STA that includes
criminal, immigration, terrorist, and other database checks. See 49 CFR
part 1572. If TSA determines a TWIC or HME applicant poses a security
threat, TSA issues a written preliminary determination of threat
assessment that
[[Page 48434]]
includes information on how to appeal the assessment to TSA. TSA
reviews all documents the applicant provides in the appeal, essentially
providing de novo review of the case, and issues a final determination
based upon its review of all relevant information available to TSA. The
applicant may then appeal the final determination to an ALJ, and the
ALJ applies the substantial evidence standard of review. An
unsuccessful applicant may then appeal the ALJ's decision to the TSA
Final Decision Maker, who also applies the substantial evidence
standard of review. These regulations, issued through notice-and-
comment rulemaking along with the corresponding STA requirements, have
been in use for over a decade.
Cases that reach the TSOB Review Panel have undergone multiple
levels of review within TSA and have been reviewed by an ALJ. TSA has
access to all of the factual and intelligence information generated
during the vetting of the FAA certificate holder, and the expertise to
evaluate whether the information supports a security threat
determination. Then, the ALJ applies a de novo standard of review to
determine whether TSA correctly applied its standard on whether an
individual poses or is suspected of posing a security threat. This de
novo review includes the review of information and evidence; examining
witnesses and weighing the veracity and probity of their testimony; and
determining whether a preponderance of the evidence supports the
security threat determination. Consequently, the TSOB Review Panel
ought to apply the more deferential substantial evidence standard of
review, not a de novo standard. This standard of review requires the
Panel to determine whether a reasonable person might accept the
evidence presented as adequate to support the ALJ's conclusion.
The 2011 and 2021 Review Panels relied on the 2011 procedures but
applied different standards of review. Therefore, without having
codified procedures, it is possible that future panels may also use
different standards of review.
Paragraph (b) states that a TSOB Review Panel will not consider the
constitutionality of any statute, regulation, Executive Order, or order
issued by TSA. A TSOB Review Panel is an administrative body that lacks
the authority or expertise to decide constitutional questions.\5\
Constitutional claims or questions must be addressed by an appropriate
U.S. Court of Appeals reviewing the TSOB Review Panel's action. When
making its decisions, the Review Panel considers the entire record of
the proceedings before the ALJ. The Review Panel may also consider
additional materials that are properly added to the record through a
duly filed motion, as permitted in section 126.19(b).
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\5\ See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215
(1994) (``[W]e agree that adjudication of the constitutionality of
congressional enactments has generally been thought beyond the
jurisdiction of administrative agencies.''); Mont. Chapter of Ass'n
of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1167 (9th
Cir. 1975) (``[F]ederal administrative agencies have neither the
power nor the competence to pass on the constitutionality of
statutes.'').
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Sec. 126.11 Counsel
Section 126.11(a) gives all parties to proceedings before a TSOB
Review Panel the right to be represented by counsel. Because Review
Panel proceedings are civil proceedings that cannot result in a party's
incarceration, the Federal Government is not required to provide legal
counsel to represent a party who is unable to pay for an attorney.
Thus, parties appearing before a TSOB Review Panel must obtain counsel
at their own expense. TSA will designate legal counsel from among the
attorneys in the DHS Office of the General Counsel who cover TSA's
programs and issues on a daily basis, to represent TSA in Review Panel
proceedings. This section also states that counsel for TSA must hold a
security clearance commensurate with the information in the record on
appeal. This requirement was not explicitly listed in the 2011
procedures, but has always been required for TSOB and similar
administrative appeal procedures.
Section 126.11(b) provides that the General Counsel of DHS, or the
General Counsel's designee, will appoint legal counsel who, in the
General Counsel's discretion, has the requisite knowledge and
experience to effectively assist a TSOB Review Panel reach a sound
decision. The Review Panel's counsel facilitates communication between
the Docket Clerk and the Review Panel, and assists with legal research,
drafting documents, and similar tasks consistent with typical legal
support. Appointed counsel must hold a security clearance that enables
access to all materials in the record under review.
Sec. 126.13 Notice of Appeal and Service
Section 126.13 instructs parties on how to request TSOB review of
an ALJ's decision and how to serve notice on all other parties. Any
party to proceedings before the ALJ may file a notice of appeal with
the TSOB via certified mail or email. DHS strongly encourages parties
to file all documents and consent to service via email to the TSOB
Docket Clerk. Allowing parties to file a notice via email will expedite
the receipt of documents and the review process.
Section 126.13(a) provides that a notice of appeal must be filed
within 60 calendar days of the date of issuance of the ALJ's decision.
This time limit is drawn from Rule 4 of the FRAP, which generally
allows parties to a civil action in U.S. District Court 60 days to file
a notice of appeal with an appropriate U.S. Court of Appeals in a case
in which the United States or a Federal agency is a party.
Section 126.13(b) provides the addresses for the TSOB Docket Clerk
and instructions for filing any document with a TSOB Review Panel.
Section 126.13(c) specifies the date on which a document is deemed
filed. The date of filing is the date that the document is received by
the TSOB Docket Clerk.
Section 126.13(d) provides that a TSOB Review Panel must reject and
summarily dismiss a notice of appeal that is filed after the expiration
of the 60-day deadline for appealing an ALJ's decision. The Review
Panel, in its discretion, may accept the untimely notice upon a written
showing of good cause for failing to meet the deadline.
Section 126.13(e) provides that if a party files a notice of appeal
but fails to perfect the appeal by timely filing a supporting brief, a
TSOB Review Panel may dismiss the appeal.
Section 126.13(f) explains that if an appeal is dismissed in
accordance with paragraphs (d) or (e), the ALJ's written decision
becomes final. This provision did not appear in the 2011 procedures,
but DHS is adding this to ensure all parties understand the practical
effect of a dismissal.
Sec. 126.15 Entry of Appearance
Section 126.15 requires parties and counsel to enter appearances in
writing before a TSOB Review Panel within 15 calendar days of being
served with a notice of appeal. This requirement was not part of the
2011 procedures, but DHS is adding it to ensure efficiency and
timeliness in the review process based on prior experience in TSOB.
Also, the requirement to file an entry of appearance is consistent with
Rule 12 of the FRAP.
Sec. 126.17 Procedures for Classified Information, Sensitive Security
Information (SSI), and Other Protected Information
Section 126.17 provides the procedures for handling classified
[[Page 48435]]
information, SSI, and other protected information during proceedings
before a TSOB Review Panel. This section did not appear in the 2011
procedures, but the processes outlined here reflect the current
practice of the review panels. The procedures are consistent with the
statutory provisions regarding the use of classified evidence in
hearings pursuant to 49 U.S.C. 46111(g), and the protection of SSI set
forth in 49 CFR 1520.9. This section sets deadlines for TSA with
respect to protected information to aid efficiency and transparency in
the process. Section 126.17(a) provides that TSA must file a notice of
protected information within 30 calendar days of filing or being served
with a notice of appeal. The notice of protected information must
indicate whether the record of proceedings before the ALJ contains
classified information or SSI. This notice will alert a TSOB Review
Panel to take appropriate steps to protect the record from disclosure
to non-government parties or the public. The TSOB Review Panel will
review materials in the record containing classified information or SSI
in camera or during an ex parte proceeding with TSA.
Section 126.17(b) provides that a TSOB Review Panel may not
disclose classified information or SSI, except to government parties
and government counsel who have the appropriate security clearance and
a need to know the information to be disclosed.
Sec. 126.19 Filing and Supplementing the Record
Section 126.19(a) requires TSA to file a complete record of
administrative proceedings, including a certified and un-redacted
transcript of all proceedings before the ALJ and all material filed
with the ALJ, with the TSOB Review Panel within 30 calendar days after
filing or being served with a notice of appeal. The TSOB Review Panel
needs the full record in order to conduct a comprehensive review of the
ALJ's decision. To ensure that non-government parties have access to a
redacted copy of the transcript of proceedings before the ALJ, this
subsection permits non-government parties to file a motion requesting a
redacted copy of any part of the full administrative record that they
do not possess.
Section 126.19(b) permits a party to supplement the record
presented to the TSOB Review Panel when (i) anything relevant to an
issue on appeal occurs or is created after the ALJ issues a decision,
or (ii) the party can show good cause for failing to submit material
for the record at an earlier stage of the administrative proceedings.
Sec. 126.21 Motions
Section 126.21(a) provides the procedures for filing a motion with
a TSOB Review Panel. The requirements are the same as those for filing
a brief, which are modeled on Rule 28 of the FRAP.
Section 126.21(b) explains the duty to confer with all other
parties before filing any motion. If a party seeks relief from a TSOB
Review Panel (for example, extension of a deadline), that party must
file a motion requesting the relief. Before filing the motion, the
party seeking relief must first confer, or make reasonable, good-faith
efforts to confer, with all other parties in an effort to obtain their
consent to the relief requested. The 2011 procedures do not include
this section, but DHS is adding it to improve efficiency and
communications. It is consistent with Rules 26(c)(1) and 37(a)(1) of
the Federal Rules of Civil Procedure. After conferring or attempting to
confer, the party seeking relief may file the motion with the TSOB
Review Panel. The moving party shall state in the motion, or in a
certificate attached to the motion, the specific efforts made to
confer. The moving party shall also state in the motion the other
parties' positions with regard to the relief requested. If no party
opposes the relief requested in a motion, the moving party shall
include ``Unopposed'' in the motion's title. These provisions are
modeled on Local Rules of Practice adopted by many U.S. District
Courts, including, for example, the Rules of the United States District
Court for the District of Columbia, Local Rule 7(m) (September 2015),
Local Rules for the United States District Court, Eastern District of
Virginia, Local Civil Rule 7 and Local Criminal Rule 47 (December 1,
2020). They are designed to promote cooperation between the parties and
help resolve issues quickly and efficiently.
Section 126.21(c) provides for motion hearings using communication
technology. As defined in this rule, communication technology means
telephone or a videoconferencing platform. Using videoconferencing to
conduct motion hearings allows a TSOB Review Panel to efficiently
resolve motions without burdening the parties. The Review Panel will
consider the availability of adequate security protocols in making
determinations concerning motions hearings.
Section 126.21(d) gives a TSOB Review Panel discretion to grant or
deny a motion at any time after it is filed. This provision allows a
Review Panel to quickly and efficiently resolve routine motions (for
example, motions for an extension of a deadline) without waiting for
all parties to file a response.
Section 126.21(e) permits a TSOB Review Panel to establish
additional procedural requirements regarding motion practice in
response to the exigencies of a particular appeal. Additional
procedural requirements apply on a case-by-case basis. For example, if
a motion raises an unusually complex issue, a Review Panel may find it
appropriate to allow the non-moving parties to file a response that is
longer than the default 35-page limit. Section 126.21(e) gives the
Review Panel the discretion to modify the page limit. This discretion
is crucial to establishing an efficient review process. Section
126.21(e) provides two other examples of additional procedural
requirements that a Review Panel may wish to adopt in a particular
case: time periods for filing responses and replies to motions and a
deadline for concluding all motion practice. These examples are
illustrative and not intended as an exhaustive list of permissible
additional procedural requirements for motion practice. Section
126.21(e) only concerns basic procedural requirements regarding motion
practice, and it does not afford a TSOB Review Panel discretion to
adopt procedural requirements unrelated to motion practice or to
fundamentally change the review process prescribed in this part. A TSOB
Review Panel will communicate specific additional procedural
requirements regarding motion practice to the parties during
proceedings or by serving them with orders.
Sec. 126.23 Briefs
Section 126.23(a) and (b) enumerate the procedures and deadlines
for filing briefs with a TSOB Review Panel. These subsections are
modeled after Rule 28 of the FRAP. A party appealing the ALJ's decision
(an appellant) must perfect the appeal by filing a brief within 60
calendar days after the date on which the TSA files the administrative
record. An appellant's brief must contain a specific list of objections
to the ALJ's decision. This requirement is modeled after Rule 28(a)(8)
of the FRAP, which requires appellants to clearly list and describe
their contentions. A party not appealing the ALJ's decision (an
appellee) may file a brief in response to an appellant brief within 30
calendar days after being served with the appellant brief.
Section 126.23(c) provides the specific form for submitting briefs
to a TSOB Review Panel. The specifications are modeled on Rule 28 of
the FRAP,
[[Page 48436]]
and they are intended to facilitate an efficient process with the least
amount of burden to the parties and the Review Panel.
Sec. 126.25 Oral Argument
Section 126.25 provides for oral argument. A TSOB Review Panel will
decide whether to grant oral argument upon receipt of a request for an
oral argument contained in a brief pursuant to section 126.23(c)(5).
The TSOB Review Panel has discretion to grant or deny a request for
oral argument. The Review Panel may also order oral argument on its own
initiative if it determines that oral argument is necessary to clarify
the parties' arguments or that oral argument will improve the Panel's
understanding of legal or factual issues material to the appeal.
If oral argument is held, the TSOB Review Panel has discretion to
choose the method and location. Oral argument will typically be heard
in Washington, DC, or via teleconference or videoconference. The TSOB
Review Panel will consider expense and inconvenience to the parties,
the need for information security, the quality and reliability of
available communication technology, and concern for the efficient
administration of proceedings when choosing the method and location of
oral argument.
Section 126.25(c) provides that the TSOB Review Panel may also
establish any necessary procedural rules to ensure the efficient
administration of oral argument. This allows the Review Panel to adjust
to the exigencies of a particular appeal. For example, the Review Panel
may want to grant the parties a longer amount of time for argument if
an appeal is complex and involves a large amount of evidence.
Section 126.25(d) provides that classified information and SSI may
not be disclosed during oral argument, and that a Review Panel may hold
ex parte proceedings to allow TSA to present such information.
Sec. 126.27 Deliberations and Action
Section 126.27 provides the procedures by which a TSOB Review Panel
resolves an appeal. A Review Panel will consider the transcript of the
ALJ's hearing, all material that the ALJ considered as part of the
record for decision, any properly filed supplemental material, the
parties' briefing, and, if applicable, oral argument. The Review
Panel's deliberations are closed to the public, and any materials
created by Panel members, the TSOB Docket Clerk, and the Panel's
appointed counsel for use in deliberations are not part of the final
administrative record and may not be disclosed to the public.
A TSOB Review Panel may affirm, reverse, or modify the ALJ's
decision. It may also remand the matter to the ALJ with instructions to
address particular issues or consider additional testimony or evidence.
A TSOB Review Panel requires a simple majority to decide an action. A
Review Panel is required to prepare a written explanation of its action
and serve it on the parties. The Review Panel will endeavor to act to
resolve an appeal and serve a written explanation within 60 calendar
days after the last of the following events: (1) receipt of a timely
filed appellant brief; (2) receipt of a timely filed appellee brief; or
(3) oral argument. If a Panel member disagrees with the Panel's action
or reasoning, that member may write a dissenting report to be served
with the written explanation. A Review Panel must redact all classified
information and SSI from the written explanation before serving it on
non-government parties. The written explanation will not be made
available to the public through publication.
Sec. 126.29 Effect of TSOB Review Panel Action
Section 126.29 explains the effect of a TSOB Review Panel action.
After the TSOB Review Panel acts to resolve an appeal and serves a
written explanation of its action, any person substantially affected by
the action, or the TSA Administrator if he decides that the Panel's
action will have a significant adverse impact on Federal programs to
ensure safety in aviation and air commerce, may obtain judicial review
of the action in an appropriate U.S. Court of Appeals. If judicial
review is not obtained, the action of the TSOB Review Panel is final
and binding on the parties for the purpose of resolving the particular
matter under review.
Sec. 126.31 Administration of Proceedings
Section 126.31(a) describes the authority of a TSOB Review Panel to
adopt additional procedures consistent with those established in this
part. This ensures that a Review Panel has the flexibility to adjust to
the exigencies of a particular appeal. Additional procedures apply on a
case-by-case basis, and a Review Panel will communicate specific
additional procedures to the parties during proceedings or by serving
them with orders. For example, if a party or a party's counsel suffers
from poor health that renders participation in proceedings difficult, a
Review Panel may find it appropriate to adopt additional procedures to
accommodate such needs. Section 126.31(a) gives the Review Panel the
discretion to make the necessary accommodations. This discretion is
crucial to establishing an efficient review process. Other examples of
exigencies that may necessitate the adoption of additional procedures
include unexpected changes to the TSOB office facilities and technical
issues that make communication between the parties and a Review Panel
difficult. These examples are illustrative and not intended as an
exhaustive list of permissible additional procedures. The discretion
afforded by Section 126.31(a) is similar to that afforded by Section
126.21(e) above in that it also does not empower a TSOB Review Panel to
fundamentally change the review process prescribed in this part.
Section 126.31(b) provides that proceedings before a TSOB Review
Panel are rendered moot and closed if TSA withdraws its Determination
of Security Threat. If TSA withdraws its Determination, TSA will notify
the TSOB Review Panel of the withdrawal within five calendar days.
Section 126.31(c) provides that TSOB Review Panel proceedings are
generally closed to the public. DHS is adding this provision to protect
sensitive panel deliberations and discussions, and other kinds of
sensitive or protected information from disclosure, including
information regarding the conduct of individuals impacted by a
Determination of Security Threat and witnesses to that conduct that may
adversely impact these respective individuals' privacy interests. The
Review Panel may, at its discretion, decide to open its proceedings to
the public. No classified information, SSI or other protected
information will be released during an open hearing.
D. Procedural Rules Under the Administrative Procedure Act
The Administrative Procedure Act (APA) generally requires agencies
to publish a notice of proposed rulemaking in the Federal Register and
provide interested persons the opportunity to submit comments. 5 U.S.C.
553(b) and (c). However, the APA provides an exception to this prior
notice and comment requirement for ``rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). This exemption has
generally covered matters such as agency rules of practice governing
the conduct of its proceedings and rules delegating authority or duties
[[Page 48437]]
within an agency.\6\ The primary purpose for the procedural rule
exemption is to ``preserve agency flexibility when dealing with limited
situations where substantive rights are not at stake.'' \7\ The
distinction between `procedural' and `substantive' rules is sometimes
hard to apply because ``even unambiguously procedural measures affect
parties to some degree.'' \8\ A mundane rule establishing office hours
for an agency affects the public's ability to make use of agency
programs.\9\ The core distinction between a procedural and substantive
rule is whether ``the agency action jeopardizes the rights and
interests of parties.'' \10\ In a 2000 case involving a U.S. Department
of Agriculture rule that eliminated expedited face-to-face meetings to
approve commercial food labels, the Court of Appeals for the D.C.
Circuit held that the rule was clearly procedural even though the
elimination might have a ``substantial impact'' on food processors.\11\
The D.C. Circuit stressed that ``the critical feature of a procedural
rule is that it covers agency actions that do not themselves alter the
rights of parties, although it may alter the manner in which the
parties present themselves to the agency.'' \12\
---------------------------------------------------------------------------
\6\ See A Guide to Federal Agency Rulemaking, Fifth Edition, pp
58-59; Jeffrey S. Lubbers; 2012.
\7\ American Hospital Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C.
Cir. 1987).
\8\ Id. at 1047.
\9\ E. Freund, Administrative Powers Over Persons and Property
213-214 (1928).
\10\ Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980).
\11\ James V. Hurson Assoc. v. Glickman, 229 F.3d 277, 281 (D.C.
Cir. 2000).
\12\ Id. at 280, also citing National Whistleblower Center v.
Nuclear Regulatory Commission, 208 F.3d 256, 262 (D.C. Cir. 2000);
See also JEM Broadcasting Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994).
---------------------------------------------------------------------------
This interim final rule is procedural within the meaning of the APA
because it does not alter the rights of or substantive standards
applied to an individual appearing before the TSOB Review Panel, such
as whether the individual poses or is suspected of posing a threat.
Rather, the rule establishes the procedures a TSOB Review Panel uses to
efficiently review the decision reached by the ALJ on that issue. If
this rule established the standards TSA uses to determine whether an
individual poses or is suspected of posing a threat, then the
substantive rights of the individual would be implicated. This rule
establishes only the process by which an individual may seek review of
the ALJ's decision; it does not alter the individual's ability to
appeal the ALJ decision, or the standards TSA uses to determine if an
individual is a security threat.
The Administrative Conference of the United States (ACUS) issued a
recommendation on how Federal agencies should approach the procedural
rule exemption.\13\ The Recommendation notes the value of notice and
public comment in the development of sound policy, but also states
there are distinct public costs associated with that process, including
the time it takes to go through rulemaking and the delay in
implementing the standards. The Recommendation concludes that ``the
procedural and practice rule exemption can, in appropriate
circumstances, serve a legitimate governmental purpose, and that
Congress intended it to be available in such cases. Where such rules
are truly procedural, rather than substantive in a procedural mask, the
st atutory exemption should be available.'' The Recommendation also
suggests that agencies voluntarily seek comment, if time permits, to
further the development of good policy. For this reason, DHS is asking
for comment on this interim final rule from all affected stakeholders.
Although the rule will become effective sixty days after publication,
DHS will consider all comments received and make appropriate changes to
these standards in light of the comments received.
---------------------------------------------------------------------------
\13\ ACUS Recommendation 92-1, The Procedural and Practice Rule
Exemption from the APA Notice-and-Comment Rulemaking Requirements,
(December 18, 1992).
---------------------------------------------------------------------------
III. Regulatory Analyses
A. Executive Order 12866 and Executive Order 13563
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action'' under section 3(f) of Executive Order 12866.
Accordingly, the rule has not been reviewed by the Office of Management
and Budget (OMB).
To evaluate properly the benefits and costs of regulations, it is
important to define the baseline. DHS evaluates the impacts of this
rule against both a no action and pre-statutory baseline. According to
OMB Circular A-4, the no action baseline is what the world would be
like if the rule is not adopted.\14\ The pre-statutory baseline is an
assessment against what the world would be like if the relevant
statute(s) had not been adopted.
---------------------------------------------------------------------------
\14\ <a href="https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/">https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/</a>.
---------------------------------------------------------------------------
Relative to the pre-statutory baseline, this rule increases costs.
The statute mandates that an appeal from a decision of an ALJ is made
to the TSOB Review Panel. The law provides the benefits of appeal, but
it also requires government time to manage and execute the panel's
responsibilities, time of the parties to the appeal, and time and
potential associated legal fees for the appellant. The government also
incurred costs in 2011 developing the procedures for use by the TSOB
Review Panel. As of the date of this publication, the panel has
reviewed two requests for appeal. The 2011 and 2021 Review Panels
relied on the 2011 procedures, but applied different standards of
review.
Relative to the no action baseline, this rule has no costs. Without
this rule, the TSOB Review Panel still has the authority and duty to
review appeals. As discussed above, the TSOB Chairperson issued
procedures in May 2011 intended for use in all appeals. Significant
attorney time and resources were spent developing the procedures used
in those cases. In the absence of a codified set of procedural rules,
this developmental process might need to be repeated each time an
appeal is filed with the TSOB. While DHS believes this rule does not
impose any new costs (given that TSOB Review Panels would continue to
issue decisions even if this rule was not promulgated), publication of
this rule does provide several benefits which are discussed
qualitatively below.
Codifying TSOB Review Panel procedures before the conclusion of
presently pending and future ALJ proceedings serves the public's
interest in government transparency, consistency in administrative
review processes, and certainty of expectations regarding government
operation. In the absence of codified procedures, the public does not
have notice of the details regarding how a TSOB Review Panel is
selected and operates, and U.S. citizens who may be adversely affected
by FAA certificate action do not have a complete picture of the
administrative process by which they may challenge TSA's Determination
of Security Threat. Codified procedures allow the public to be informed
about the operation of the
[[Page 48438]]
Federal Government. Codification also provides certainty to U.S.
citizens who may be adversely affected by FAA certificate action. This
will allow them to make informed decisions about whether to challenge
TSA's Determination, instill confidence that they will have a full and
fair opportunity to be heard, and allow them to plan for the entire
administrative review process. Codified procedures provide the public
with confidence that all appeals will be reviewed following a
consistent set of procedures and standards.
B. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121, title II, 110 Stat. 847, 857-74) requires
Federal agencies to consider the potential impact of regulations on
small businesses, small governmental jurisdictions, and small
organizations during the development of their rules. However, when a
rule is exempt from APA notice and comment requirements the RFA does
not require an agency to prepare a regulatory flexibility analysis.
Because this rule does not trigger APA notice and comment requirements,
DHS is exempt from preparing a regulatory flexibility analysis for this
rule. DHS does note, however, that this rule regulates individuals, and
individuals are not small entities as contemplated by the RFA.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by the Small Business
Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804(2). This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign based companies in domestic and export markets.
E. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act Assessment
This interim final rule does not call for a collection of
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
et seq. This rule falls under the category of an administrative action
or investigation involving an agency against specific individuals or
entities and is therefore excluded from Paperwork Reduction Act
requirements. 44 U.S.C. 3518(c)(1)(B) and 5 CFR 1320.4(a).
List of Subjects in 6 CFR Part 126
Administrative practice and procedures, Appeals, Penalties,
Reporting and recordkeeping requirements, Security measures.
The Amendments
0
For the reasons set forth in the preamble, the Department of Homeland
Security adds part 126 to Title 6, Code of Federal Regulations, to read
as follows:
PART 126--TRANSPORTATION SECURITY OVERSIGHT BOARD REVIEW PANEL
PROCESS AND PROCEDURES
Sec.
126.1 Purpose.
126.3 Definitions.
126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk.
126.7 Function of TSOB Review Panel.
126.9 Scope of review and standard of review.
126.11 Counsel.
126.13 Notice of appeal and service.
126.15 Entry of appearance.
126.17 Procedures for classified information, sensitive security
information (SSI), and other protected information.
126.19 Filing and supplementing the record.
126.21 Motions.
126.23 Briefs.
126.25 Oral argument.
126.27 Deliberations and action.
126.29 Effect of TSOB Review Panel action.
126.31 Administration of proceedings.
Authority: 6 U.S.C. 112, 49 U.S.C. 115, 46111; Department of
Homeland Security Delegation No. 7071.1.
Sec. 126.1 Purpose.
This part establishes the procedures by which a Transportation
Security Oversight Board (TSOB) Review Panel reviews and acts to
resolve an appeal from an Administrative Law Judge (ALJ) decision
regarding a Determination of Security Threat made by the Administrator
of the Transportation Security Administration (TSA).
Sec. 126.3 Definitions.
Classified information has the meaning given to that term in
Executive Order 13526 or any successor Executive Order.
Communication technology means telephone or a videoconferencing
platform.
Other protected information means other information that the
government is authorized by statute, regulation, or Executive Order to
withhold.
Sensitive Security Information (SSI) means information described in
49 CFR 1520.5.
Transportation Security Oversight Board (TSOB) means the board
established pursuant to 49 U.S.C. 115.
Transportation Security Oversight Board (TSOB) Review Panel means
the panel established pursuant to 49 U.S.C. 46111(d) to consider an
appeal from a decision of an administrative law judge as the result of
a hearing under 49 U.S.C. 46111(b).
Sec. 126.5 Appointment of TSOB Review Panel and TSOB Docket Clerk.
(a) Upon request by the Chairman of the TSOB, TSOB members will
designate at least one official who meets the criteria in paragraphs
(a)(1) through (5) of this section to participate in a TSOB Review
Panel pool for a period of two years. The Review Panel nominees must--
(1) Be a member of the Senior Executive Service (SES) or a Senior
Level (SL) employee;
(2) Hold a security clearance commensurate with the record under
review;
(3) Not be employed by TSA or FAA;
(4) To the extent practicable, have a legal background and be
engaged in the practice of law on behalf of the United States
Government; and
[[Page 48439]]
(5) To the extent practicable, be familiar with transportation
security issues.
(b) Upon the expiration of each two-year period, TSOB members will
again designate officials to participate in the TSOB Review Panel pool.
(c) The General Counsel of the Department of Homeland Security, or
the General Counsel's designee, will appoint an individual from within
the Office of the General Counsel to serve as the TSOB Docket Clerk.
The TSOB Docket Clerk will serve as the TSOB Review Panel's point of
contact for both the public and the parties to ALJ proceedings.
(d) When the TSOB Docket Clerk receives a properly and timely filed
appeal from an ALJ's decision, the TSOB Chairperson selects at least
three individuals from the TSOB Review Panel pool to serve on a Review
Panel to review the ALJ's decision. The TSOB Chairperson has discretion
to choose which individuals from the pool will serve on a TSOB Review
Panel. In making selections for a TSOB Review Panel, the TSOB
Chairperson will consider selecting at least one person with the
qualifications set out in paragraph (a)(4) of this section to serve as
a Panel Member, and will consider, based upon the composition of the
pool as well as the issues raised in the appeal, appointing more than
one person with the qualifications set out in paragraph (a)(4) to the
TSOB Review Panel.
Sec. 126.7 Function of TSOB Review Panel.
A TSOB Review Panel reviews an ALJ's decision regarding a
Determination of Security Threat issued by the TSA Administrator and
may affirm, modify, or reverse the ALJ's decision, or remand the matter
to the ALJ with instructions to address particular issues or consider
additional testimony or evidence.
Sec. 126.9 Scope of review and standard of review.
(a) A TSOB Review Panel reviews an ALJ's decision to address
whether the decision is supported by substantial evidence in the record
before the TSOB Review Panel.
(b) A TSOB Review Panel will not consider the constitutionality of
any statute, regulation, Executive Order, or order issued by the TSA.
Sec. 126.11 Counsel.
(a)(1) Parties to proceedings before a TSOB Review Panel may be
represented by an attorney who is in good standing with the bar of any
State, district, territory, or possession of the United States. Parties
desiring representation must obtain such representation at their own
expense.
(2) TSA will designate counsel to represent TSA before a TSOB
Review Panel. The attorney must hold a security clearance that enables
access to all materials related to the appeal.
(b) The General Counsel of the Department of Homeland Security, or
the General Counsel's designee, appoints legal counsel to assist a TSOB
Review Panel. Counsel appointed to assist the TSOB Review Panel
facilitates communication between the TSOB Docket Clerk and the TSOB
Review Panel, and assists with legal research and drafting for the
Panel, as needed. Appointed counsel must hold a security clearance that
enables access to all materials related to the appeal.
Sec. 126.13 Notice of appeal and service.
(a) Notice of appeal. A party seeking review of the ALJ's decision
must file a notice of appeal with the TSOB Docket Clerk via email at
<a href="/cdn-cgi/l/email-protection#0753544845586368646c6273476f7629636f7429606871"><span class="__cf_email__" data-cfemail="5b0f081419043f3438303e2f1b332a753f3328753c342d">[email protected]</span></a> or via certified U.S. mail at ATTN: TSOB Docket
Clerk, Office of the General Counsel, Department of Homeland Security,
Washington, DC 20528-0485. A notice of appeal must be filed within 60
calendar days of the date of issuance of the ALJ's written decision.
(b) Service. To file any document with a TSOB Review Panel, a party
must send the document to the TSOB Docket Clerk via email at
<a href="/cdn-cgi/l/email-protection#7d292e323f2219121e1618093d150c5319150e531a120b"><span class="__cf_email__" data-cfemail="f8acabb7baa79c979b939d8cb89089d69c908bd69f978e">[email protected]</span></a>, or via certified U.S. mail at ATTN: TSOB Docket
Clerk, Office of the General Counsel, Department of Homeland Security,
Washington, DC 20528-0485. Parties are strongly encouraged to file all
documents and consent to service via email. Any document filed with the
TSOB Docket Clerk (except a notice of protected information, the
administrative record, ex parte motions, and documents containing
classified information, Sensitive Security Information (SSI), or other
protected information that accompany a motion to supplement the record)
must also be served on all other parties by certified U.S. mail or
email.
(c) Filing date. For purposes of all deadlines in this part, the
date of filing of a notice of appeal or any document filed with a TSOB
Review Panel is the date on which the document is received by the TSOB
Docket Clerk.
(d) Untimely appeals. A TSOB Review Panel must reject and summarily
dismiss a notice of appeal that is filed more than 60 calendar days
after the date of issuance of the ALJ's written decision. A TSOB Review
Panel may, in its discretion, accept an untimely notice of appeal upon
a showing of good cause for failure to meet the filing deadline.
(e) Failure to perfect the appeal. A TSOB Review Panel may dismiss
an appeal, on its own initiative or upon motion of any party, when a
party has filed a notice of appeal but failed to perfect the appeal by
timely filing a brief in accordance with Sec. 126.23.
(f) Effect of dismissal of appeal. Where an appeal is dismissed in
accordance with paragraph (d) or (e) of this section the ALJ's written
decision becomes final.
Sec. 126.15 Entry of appearance.
(a) All parties to a proceeding before a TSOB Review Panel must
enter their appearances in writing with the TSOB Docket Clerk within 15
calendar days after filing or being served with a notice of appeal. A
party's written notice of entry of appearance must identify counsel, if
applicable.
(b) Counsel beginning representation of a party after that party
has already entered an appearance must file a separate notice of entry
of appearance within 15 calendar days of beginning representation.
Sec. 126.17 Procedures for classified information, sensitive security
information (SSI), and other protected information.
(a) Notice of protected information. Within 30 calendar days of
filing or being served with a notice of appeal, TSA must file a notice
of protected information indicating whether the record of proceedings
before the ALJ contains classified information, SSI, or other protected
information. The notice of protected information must be filed with the
TSOB Docket Clerk in accordance with Sec. 126.13(b). If the TSA
presented classified information, SSI, or other protected information
to the ALJ at an ex parte proceeding or provided such information for
in camera review during the ALJ proceedings, then the TSOB Review Panel
will also consider that information at an ex parte proceeding or in
camera.
(b) Access to protected information. A TSOB Review Panel may not
disclose Classified Information or other protected information to any
non-government party or counsel. A TSOB Review Panel may not disclose
SSI to any non-government party or counsel unless the TSA has
determined that the party had a preexisting need to know specific SSI
as a covered person pursuant to 49 CFR 1520.7 and 1520.11.
Sec. 126.19 Filing and supplementing the record.
(a) Filing the record. The TSA must file a complete record of
administrative proceedings, including a certified and
[[Page 48440]]
unredacted transcript of all proceedings before the ALJ (including ex
parte proceedings) and all material filed with the ALJ (including
material containing classified information, SSI, or other protected
information that was reviewed by the ALJ in camera), with the TSOB
Docket Clerk within 30 calendar days after filing or being served with
a notice of appeal. Upon motion filed by the TSA, or on its own
initiative, the TSOB Review Panel may extend the time to file the
record. The TSOB Docket Clerk notifies all parties of the date when the
record is filed. Within 30 calendar days of the date the record is
filed, non-government parties may file a motion requesting that the TSA
provide them with a redacted copy of any part of the record (excluding
ex parte proceedings and materials reviewed in camera) that they do not
possess. The TSA redacts classified information or other protected
information from any part of the record it provides to non-government
parties, except to the extent that the TSA has determined that the
party had a preexisting need to know specific SSI as a covered person
pursuant to 49 CFR 1520.7 and 1520.11.
(b) Supplementing the record. (1) A party may file a motion to
supplement the record when anything relevant to an issue on appeal
occurs after the ALJ issued a decision, or the party can show good
cause, as determined by the TSOB Review Panel, for failing to submit
material for the record at an earlier stage of the administrative
proceedings. When the TSA seeks to supplement the record with material
that contains classified information, SSI or other protected
information, it may file a motion to supplement the record ex parte.
(2) A TSOB Review Panel may grant a motion to supplement the record
when it finds that the supplemental material is relevant to an issue on
appeal and that a condition described in paragraph (b)(1) of this
section applies.
Sec. 126.21 Motions.
(a) Form of motions. (1) A motion filed with a TSOB Review Panel
must comply with the requirements set forth in Sec. 126.23(c)(1)
through (4).
(2) Motions must be filed with the TSOB Docket Clerk and served on
all parties in accordance with Sec. 126.13(b). The TSOB Docket Clerk
provides all motions to the TSOB Review Panel.
(b) Duty to confer. Before filing any motion, a party must confer
or make reasonable, good-faith efforts to confer with all other parties
to resolve the issues that are the subject of the motion. The moving
party must state in the motion, or in a certificate attached to the
motion, the specific efforts made to comply with this duty to confer.
The moving party must also state in the motion the other parties'
positions with regard to the relief requested. If no party opposes the
relief requested in a motion, the moving party includes ``Unopposed''
in the motion's title. TSA does not have a duty to confer before filing
an ex parte motion, but must provide notice to all parties that it has
made an ex parte filing.
(c) Motion hearings. Upon request of any party, or on its own
initiative, a TSOB Review Panel may order the parties to appear for a
hearing on any motion that was not filed ex parte. Motion hearings may
be conducted via communication technology unless all parties agree to
appear in person or the TSOB Review Panel in its discretion determines
that an in person appearance is necessary for efficient administration
of the hearing. The Review Panel considers expense and inconvenience to
the parties, the importance of information security, and the quality
and reliability of available communication technology when making these
determinations.
(d) Disposition. A TSOB Review Panel may, consistent with the
requirements of due process and after providing the opposing party with
an opportunity to review and respond, grant or deny a motion at any
time after it is filed.
(e) Additional procedural requirements for motion practice. A TSOB
Review Panel has discretion to establish via order served on the
parties, additional procedural requirements regarding motion practice
in response to the exigencies of a particular appeal. Such requirements
may include, for example, time periods for filing responses and
replies, a deadline for concluding all motion practice, and page
limitations different from the default 35-page limit established in
Sec. 126.23(c)(3). A TSOB Review Panel may not require disclosure of
classified information, SSI, or other protected information.
Sec. 126.23 Briefs.
(a) Appellant brief. (1) A party appealing the ALJ's decision must
perfect the appeal by filing an appellant brief with the TSOB Docket
Clerk and serving that brief on all other parties in accordance with
Sec. 126.13(b) within 60 calendar days after the date on which TSA
files the record in accordance with Sec. 126.19(a), unless all parties
consent to an extension of the filing deadline and provide notice of
such agreement to the TSOB Docket Clerk or the TSOB Review Panel
extends the filing deadline upon a motion by the appellant.
(2) The appellant brief must enumerate the appellant's objections
to the ALJ's decision.
(b) Appellee brief. Within 30 calendar days after being served with
an appellant brief, a party may file an appellee brief in response with
the TSOB Docket Clerk. Any such brief must be served on all other
parties in accordance with Sec. 126.13(b) at the same time it is filed
with the TSOB Docket Clerk. The parties may consent to an extension of
the filing deadline and provide notice of such agreement to the TSOB
Docket Clerk or the TSOB Review Panel may extend the deadline for
filing an appellee brief upon a motion by the appellee.
(c) Brief requirements. A brief submitted to a TSOB Review Panel
must adhere to the following specifications:
(1) The brief must be typewritten in Times New Roman, 12-point
font, double-spaced, and, if submitted as a hard copy via certified
U.S. mail, must be printed single-sided on 81/2-by-11 inch paper;
(2) The brief must set forth the name, address, email address, and
telephone number of the party or attorney filing it;
(3) The brief must contain no more than 35 pages of text (excepting
any tables, appendices, or cover sheets) unless prior permission to
file excess pages has been granted by the TSOB Review Panel after
consideration of a duly filed motion showing good cause as determined
by the TSOB Review Panel;
(4) If submitted as a hard copy via certified U.S. mail, the brief
must be bound in any manner that is secure, does not obscure the text,
and permits easy reproduction; and
(5) If oral argument is desired, the brief should contain a request
for oral argument that explains why oral argument will contribute
substantially to the development of an issue on appeal.
Sec. 126.25 Oral argument.
(a) Upon receipt of a request from any party contained in a brief
or in a motion, or on its own initiative, a TSOB Review Panel may order
the parties to present oral argument. The Review Panel orders oral
argument if it determines that oral argument will contribute
substantially to the development of an issue on appeal.
(b) A TSOB Review Panel has discretion, within the requirements of
all relevant statutory and regulatory provisions for information
security, to choose the method and location of oral argument. The
Review Panel will consider expense and inconvenience to the parties,
the importance of
[[Page 48441]]
information security, the quality and reliability of available
communication technology, and concern for the efficient administration
of proceedings when establishing the method and location of oral
argument.
(c) A TSOB Review Panel has discretion to structure and establish
procedural rules for oral argument via order served on the parties.
Such rules may include time limits for argument and the order in which
parties present argument.
(d) Classified information, SSI, or other protected information may
not be disclosed during oral argument. A TSOB Review Panel may hold ex
parte proceedings to allow for the presentation of classified
information, SSI, or other protected information.
Sec. 126.27 Deliberations and action.
(a) Deliberations. TSOB Review Panel deliberations are closed
proceedings. Any materials created by Review Panel members, the TSOB
Docket Clerk, and the Review Panel's appointed counsel for use in
deliberations are not part of the final administrative record.
(b) Action. A TSOB Review Panel may affirm, modify, or reverse the
ALJ's decision. It may also remand the matter to the ALJ with
instructions to address particular issues or consider additional
testimony or evidence.
(1) A TSOB Review Panel requires a simple majority to decide an
action.
(2) In case of a disagreement among TSOB Review Panel members, a
dissenting report may be served with the written explanation of the
Review Panel's action. A dissenting report must be prepared in
accordance with the requirements for the Review Panel's written
explanation.
(c) Written explanation. A TSOB Review Panel will explain its
action in writing to the maximum extent permitted by prudent concern
for the national security interests of the United States and applicable
laws and regulations governing information disclosure. If necessary,
the Review Panel may prepare its written explanation in both a
protected format (which may contain classified information, SSI, and
other protected information) and a non-protected format (which must not
contain classified information, SSI, and other protected information).
The Review Panel serves non-government parties with the non-protected
written explanation and government parties with the protected written
explanation. The Review Panel is prohibited from providing the
protected written explanation to non-government parties. The protected
written explanation is part of the final administrative record that TSA
must submit to a U.S. Court of Appeals in the event that a party seeks
judicial review of the Review Panel's action.
(d) Timing. A TSOB Review Panel endeavors to resolve an appeal and
issue a written explanation of its action to the parties no later than
60 calendar days after the last of the following events:
(1) Receipt of a timely filed appellant brief;
(2) Receipt of a timely filed appellee brief; or
(3) Oral argument.
Sec. 126.29 Effect of TSOB Review Panel action.
(a) Any person substantially affected by a TSOB Review Panel's
action, or the TSA Administrator when he decides that the Panel's
action will have a significant adverse impact on carrying out 49 U.S.C.
Subt. VII, Pt. A, may obtain judicial review in an appropriate U.S.
Court of Appeals. The Administrators of the FAA and TSA must be made
parties to any civil action filed in a U.S. Court of Appeals seeking
review of a TSOB Review Panel action.
(b) If judicial review is not obtained, the action of the TSOB
Review Panel is final and binding on the parties for the purpose of
resolving the particular decision under review.
Sec. 126.31 Administration of proceedings.
(a) A TSOB Review Panel has authority to govern the conduct of its
proceedings and internal operations by establishing any additional
rules or procedures that are not inconsistent with this part.
(b) If TSA withdraws its Determination of Security Threat at any
time after a notice of appeal has been filed pursuant to Sec.
126.13(a), the proceedings before the TSOB Review Panel are rendered
moot and closed. TSA must file a notice of withdrawal of the
Determination of Security Threat with the TSOB Docket Clerk within five
calendar days of such withdrawal.
(c) TSOB Review Panel proceedings will generally be closed to the
public. A TSOB Review Panel may, in its discretion, open its
proceedings to the public. Classified information, SSI, or other
protected information shall not be disclosed during administrative
proceedings, in accordance with Sec. 126.25(d).
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-17079 Filed 8-4-22; 4:15 pm]
BILLING CODE 9110-9B-P
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</html>Indexed from Federal Register on August 9, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.