Thursday, July 23, 2009

TSA Enforcement Procedures Final Rule

Earlier this week the Transportation Security Administration published a final rule in the Federal Register implementing new procedures for enforcing TSA surface transportation requirements in 49 United States Code. Additionally the rule re-organized the structure of 49 CFR 1503 without making any substantive changes. Because no new requirements are being imposed on the regulated community, TSA issued this final rule without any intermediate notices. Public comments on the final rule are being accepted until September 21st, 2009 while the regulations go into effect on August 20th. Comments may be submitted electronically to at docket number TSA-2009-0013. Surface Regulation Enforcement Authority The Implementing Recommendations of the 9/11 Commission Act of 2007 (Public Law 110–53) provided authority for the TSA to enforce surface transportation requirements in 49 USC and the Transportation Workers Identification Credential system requirements in chapter 701 in 46 USC. This regulation applies the same enforcement procedures used by the TSA in aviation security matters outlined in 49 CFR part 1503 to violations of surface transportation security regulations. The areas of surface transportation security addressed by this regulation include rules concerning CDL’s with hazmat endorsement (49 CFR parts 1570 and 1572) as well as rail transportation security regulations (49 CFR part 1580). The TSA enforcement procedure requires that before TSA can assess a civil penalty they provide a 30 day Notice of Proposed Civil Penalty. During that period the alleged violator may elect to pay the proposed penalty, show that the violation did not take place, present mitigating information, or explain why the alleged violator cannot pay the penalty. If the civil penalty is not paid during the 30 day period the respondent must request an informal hearing with TSA counsel or a formal hearing before an Administrative Law Judge. If the issue is not resolved in the 30 day period, TSA will issue a Final Notice of Proposed Civil Penalty (FNPCP). The alleged violator then has 15 days to pay, reach a settlement or request a formal hearing before an ALJ. The formal hearing will be conducted in accordance with the rules set forth in 49 CFR part 1503 sub-part G. The final ruling by the ALJ may be appealed to the TSA Decision Maker (the Assistant Secretary of Homeland Security (Transportation Security Administration) or his or her designee). The ruling of the TSA Decision Maker is the final agency action and may be appealed in US District Court. Reorganizing 49 CFR part 1503 TSA is including an extensive reorganization of part1503 of 49 CFR. In making these changes TSA intends 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” (74 FR 36033). For the most part this means that sections were renumbered and re-titled. In some cases, however, large sections were broken down into separate sections and redistributed throughout the part. For example §1503.16 was broken down into 8 separate sections. While the re-organization forms the major part of the changes made to part 1503, there were minor changes made to many of the individual sections. Those changes are explained in the pre-amble to the rule. Amendments and corrections were not made to every section. Since this section deals with enforcement and investigation procedural matters, analysis of these changes is best left to the lawyers. One thing is certain, however, changing section numbers is going to have an effect on procedures that have been written in a number of organizations that reference the old section numbers. A careful review of any procedure that deals with TSA enforcement actions needs to be done to ensure that references to 49 CFR part 1503 actually point at the intended section.

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