TSA Civil Enforcement · TSA Enforcement Authority Aviation and Transportation Security Act (ATSA) Established TSA to oversee aviationTSA to oversee aviation security 49 U.S.C. §

TSA Civil Enforcement

Kelly WheatonKelly WheatonDeputy Chief CounselEnforcement Division

TSA Enforcement Authority

▲ Aviation and Transportation Security Act (ATSA) Established TSA to oversee aviation securityEstablished TSA to oversee aviation security

▲ 49 U.S.C. § 114(d): TSA is responsible for security in all modes of transportation49 U S C § 114(l) A th it t i i d d▲ 49 U.S.C. § 114(l): Authority to issue, rescind, and revise regulations necessary to carry out its functions

▲ 49 U.S.C. § 114(f)(7): Authority to enforce security-l t d l ti d i trelated regulations and requirements

▲ 49 U.S.C. § 114(f)(9): Authority to inspect, maintain, and test security facilities, equipment, and systems

S C §▲ 49 U.S.C. § 46301: Authority to issue civil penalties

TSA Enforcement Authority

▲ Homeland Security Act of 2002 (HSA)▲ Moved TSA from Department of Transportation (DOT)▲ Moved TSA from Department of Transportation (DOT)

to Department of Homeland Security (DHS)

▲ Intelligence Reform and Terrorism Prevention Act (IRTPA)

▲ Enacted 9/11 Commission Act

▲ Implementing Recommendations of the 9/11▲ Implementing Recommendations of the 9/11 Commission Act (9/11 Commission Act)

▲ Section 1302(a) of the 9/11 Act expands TSA’s civil f t th itenforcement authority

Who is Subject to Civil Enforcement?

Regulated Entities Others1. Aircraft Operators and

Foreign Air Carriers2 Airport Operators

1. Passengers

2 Contractors2. Airport Operators

3. Indirect Air Carriers

4 Freight Rail Entities

2. Contractors

3. Employees4. Freight Rail Entities

5. Passenger Rail Entities

6. Passenger Transportation

4. Other parties

6. Passenger Transportation Agencies

Civil EnforcementCivil EnforcementFor Regulated Entities

TSA’s Goal and Philosophy

TSA Goal = Transportation Security

TSA promotes Transportation Security by achieving

Compliance through Progressive Enforcement

• Outreach

1 On the Spot Counseling Least 1. On-the-Spot Counseling

2. Administrative Action

Serious

Enforcement

4 S it P

3. Civil PenaltyTools

4. Security Program Withdrawal Most

Serious

LeastOn-the-Spot Counseling

▲ Can be the first step in progressive f t

Seriousp g

enforcement

▲ For use when▲ The noncompliance is minor

▲ The regulated entity can instantly correct the violation

MostSerious

Administrative Action Least

▲ For use when▲ There are no aggravating factors

Serious

▲ There are no aggravating factors▲ It is a first-time violation▲ The violation is not egregious or intentional

▲ Types of Administrative Action▲ Warning Notice Most▲ Letter of Correction▲ Notice of Noncompliance

Serious

Civil Penalty Least

▲ Usually follows On-the-Spot Counseling or Administrative Action

Civil PenaltySerious

Counseling or Administrative Action for a same or similar violation

▲ TSA issues civil penalties for first-▲ TSA issues civil penalties for first-time offenses involving egregious or intentional violations Most

Serious

Civil Penalty Maximums

Regulated Entity Maximum Penalty Per Violation

Aircraft Operators $27,500Airports, Indirect Air Carriers (cargo), Small Businesses, and Individuals

$11,000

Surface Transportation $10,000Transportation Worker IdentificationCredential (TWIC)

$10,000

Type of Violator Maximum Amount Type of Violatorin Controversy

Individual or Small Business $50,000All Other Violator Types $400,000yp $ ,

Security Program Withdrawal Least

▲ For use with the most egregious instances of noncompliance

y gSerious

instances of noncompliance

▲ Entities cannot operate without a TSA-approved Security Programpp y g

▲ TSA may withdraw an entity’s security program under certain Mostcircumstances Serious

Civil EnforcementCivil Enforcement For Individuals

Categories of Cases▲ Notice of Violation (NOV)

▲ For routine prohibited items violations at the security checkpoint or in checked baggagesecurity checkpoint or in checked baggage

▲ Not for use with artfully concealed weapons cases▲ Maximum civil penalty is less than $5,000

▲ Notice of Proposed Civil Penalty (NPCP)▲ For more serious and fact-intensive violations▲ Maximum civil penalty is $11 000▲ Maximum civil penalty is $11,000

Typical CasesNOV

▲ Prohibited items (checkpoint or checked baggage)

Under $5,000Penalty

▲ Artfully concealed weapons▲ Fraud and intentional falsification▲ Interference with screeningg▲ Failure to submit to screening before

entering sterile area▲ Circumventing security

NPCPUp to $11,000

Penalty▲ Circumventing security▲ Improper use of access badge▲ Failure to safeguard Sensitive Security

InformationInformation

How the Civil PenaltyHow the Civil Penalty Process Works

TSA’s Civil Penalty Process

How the Penalty Process Works

TSA issues NOV NPCP

Pay the civil penalty

Respondent Options

NOV or NPCP Request an informal conference with a TSA attorney or agency official

Submit evidence that violation did not happen as alleged

Claim financial hardship

Request a formal hearing with an Administrative Law Judge (ALJ)


How You Can Respond

TSA issues NOV NPCP

1. Ask for & review the investigative report

Take Action

2 E l t ll ti & lt dNOV or NPCP

3. Ask for an informal conference • Ask for things your client can do to lower

th i il lt

2. Evaluate allegations & penalty assessed

4 Request a formal hearing with an

the civil penalty• Tell TSA about corrective actions taken• Tell TSA about penalties already levied

4. Request a formal hearing with an Administrative Law Judge (ALJ)

• Remember that the agency’s burden of proof is preponderance


What If Respondent Doesn’t Respond?

TSA will issue Final Notice of

Result

If respondent

Action

Violation (FNOV) or Final Notice of Proposed Civil Penalty (FNPCP)

FNOV or FNPCP will automatically

doesn’t reply to NOV or NPCP

If respondent

OACP becomes a debt to the

turn into an Order Assessing Civil Penalty (OACP) within 15 days

If respondent

doesn’t reply to FNOV or FNPCP

United States doesn’t pay OACP


What If Respondent Doesn’t Pay?

TSA ill f d th d bt t

Result

What If Respondent Doesn t Pay?

If d t

Action

TSA will forward the debt to a collection agency where interest, penalties, and fees will accrue

If respondent doesn’t pay OACP

C ll i ill f dIf d Collection agency will forward debt to the U.S. Treasury for collection

If respondent still doesn’t pay OACP


What Are Respondent’s Appeal Options?

Formal Hearing Appeal to Federal Appeal to TSA with ALJ Court of AppealsDecision Maker


Requesting a Formal Hearing or Appeal

1. Follow procedures, see 49 C.F.R. part 1503• Notice to TSA & ALJ docketing center

Reminders

Notice to TSA & ALJ docketing center• Pay attention to timelines• Understand how motions work

2. Thoroughly answer Complaint or Motion

3. Know your appeals options

2. Thoroughly answer Complaint or Motion

4. Remember that you can still try settling the case with the agency attorney

Tips on Responding toTips on Responding toTSA Enforcement Actions

Tips for Responding to Enforcement Actions

Tip #1: Be responsivep p

▲ Take action ▲ Be responsive when you receive a notice of

enforcement action from a government agency▲ The worst thing you can do is ignore the notice▲ The worst thing you can do is ignore the notice

▲ Return calls

▲ Notif the agenc▲ Notify the agency▲ If you are representing a client on a matter so that

we know to send all correspondence to you


Tip #2: Always read instructions thoroughly d bid b ll d dliand abide by all deadlines

▲ Read all instructions▲ If you don’t understand the instructions, contact the

agency attorney and ask for clarification

▲ Ask for more time if needed▲ You may get an extension▲ If you fail to meet deadlines or get an extension, y g ,

there is little that the agency can do for you

▲ Remember: judges strictly interpret timelines!


Tip #3: Understand your casep y

▲ Ask for Enforcement Investigative Reportg p▲ Read the report to understand the underlying

allegations of violation

U d t d th t’ b d f f▲ Understand the government’s burden of proof▲Burden of proof is preponderance▲Some violations do not require intent

▲Understand the nature of the violation▲Some violations are subject to criminal penalties

AND civil penaltiesAND civil penalties


Tip #4: Understand the agency’s f tenforcement process

▲ Know the regulationsg▲ Familiarize yourself with the regulations that

govern the agency’s enforcement process▲ TSA’s civil enforcement process is codified in▲ TSAs civil enforcement process is codified in

49 C.F.R. part 1503

▲ Review the sanction guidance table▲ TSA’s sanction guidance table can be found on

www.tsa.gov. See also 49 C.F.R. § 1503.401 for updated maximum civil penalty amounts


Tip #5: Help the agency attorney reduce the i il lt fcivil penalty for your case

▲ Explain extenuating circumstancesp g▲ Let the attorney know if your client has already

been punished for the same cause of action▲ Did your client go to jail or pay criminal fines?▲ Did your client go to jail or pay criminal fines?▲ Was your client fired?

▲ Let the attorney know if your client is indigentM t id f f fi i l i bilit t▲ Must provide proof of financial inability to pay


Tip #6: Be reasonable and politep p

▲ Be nice▲ Everyone is more willing to go out of their way to

help those who are reasonable, calm, and polite

▲ Be reasonable▲ Understand that TSA’s attorneys are responsible for

ensuring transportation security by promoting compliance through enforcement actions

▲ Provide supporting evidence for all requests to reduce the civil penalty

▲ Don’t expect the agency to drop all penalties


Overview of Tips▲ Be responsive ▲ Read instructions and meet deadlines▲ Understand the government’s burden of proof▲ Understand the government s burden of proof▲ Understand the agency’s enforcement process▲ Help the attorney reduce the civil penalty in your case▲ Be reasonable and polite▲ Be reasonable and polite

Remember: TSA attorneys promote transportation e e be S atto eys p o ote t a spo tat osecurity through enforcement actions

Questions?

Documents

TSA Civil Enforcement · TSA Enforcement Authority Aviation and Transportation Security Act (ATSA) Established TSA to oversee aviationTSA to oversee aviation security 49 U.S.C. §