TSA Civil Enforcement Kelly Wheaton Kelly Wheaton Deputy Chief - PowerPoint PPT Presentation

TSA Civil Enforcement Kelly Wheaton Kelly Wheaton Deputy Chief Counsel Enforcement Division

TSA Enforcement Authority ▲ Aviation and Transportation Security Act (ATSA) Established TSA to oversee aviation security Established TSA to oversee aviation security ▲ 49 U.S.C. § 114(d): TSA is responsible for security in all modes of transportation ▲ 49 U.S.C. § 114(l): Authority to issue, rescind, and 49 U S C § 114(l) A th it t i i d d revise regulations necessary to carry out its functions ▲ 49 U.S.C. § 114(f)(7): Authority to enforce security- related regulations and requirements l t d l ti d i t ▲ 49 U.S.C. § 114(f)(9): Authority to inspect, maintain, and test security facilities, equipment, and systems ▲ 49 U.S.C. § 46301: Authority to issue civil penalties S C §

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 enforcement authority f t th it

Who is Subject to Civil Enforcement? Regulated Entities Others 1. Aircraft Operators and 1. Passengers Foreign Air Carriers 2. 2 Contractors Contractors 2. 2 Airport Operators Airport Operators 3. Indirect Air Carriers 3. Employees 4. 4 Freight Rail Entities Freight Rail Entities 4. Other parties 5. Passenger Rail Entities 6. 6. Passenger Transportation Passenger Transportation Agencies

Civil Enforcement Civil Enforcement For Regulated Entities

TSA’s Goal and Philosophy TSA Goal = Transportation Security TSA promotes Transportation Security by achieving Compliance through Progressive Enforcement

• Outreach Least 1 1. On-the-Spot Counseling On the Spot Counseling Serious 2. Administrative Action Enforcement Tools 3. Civil Penalty 4. Security Program 4 S it P Most Withdrawal Serious

Least On-the-Spot Counseling p g Serious ▲ Can be the first step in progressive enforcement f t ▲ For use when The noncompliance is minor ▲ The regulated entity can instantly ▲ Most correct the violation Serious

Least Administrative Action Serious ▲ For use when There are no aggravating factors There are no aggravating factors ▲ ▲ It is a first-time violation ▲ The violation is not egregious or intentional ▲ ▲ Types of Administrative Action Most Warning Notice ▲ Serious Letter of Correction ▲ Notice of Noncompliance ▲

Least Civil Penalty Civil Penalty Serious ▲ Usually follows On-the-Spot Counseling or Administrative Action 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 Most or intentional violations Serious

Civil Penalty Maximums Maximum Penalty Regulated Entity Per Violation Aircraft Operators $27,500 Airports, Indirect Air Carriers (cargo), $11,000 Small Businesses, and Individuals Surface Transportation $10,000 Transportation Worker Identification $10,000 Credential (TWIC) Maximum Amount Type of Violator Type of Violator in Controversy Individual or Small Business $50,000 All Other Violator Types yp $400,000 $ ,

Least Security Program Withdrawal y g Serious ▲ For use with the most egregious instances of noncompliance instances of noncompliance ▲ Entities cannot operate without a TSA-approved Security Program pp y g ▲ TSA may withdraw an entity’s Most security program under certain Serious circumstances

Civil Enforcement Civil Enforcement For Individuals

Categories of Cases ▲ Notice of Violation (NOV) ▲ For routine prohibited items violations at the security checkpoint or in checked baggage security 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 Cases NOV ▲ Prohibited items Under $5,000 (checkpoint or checked baggage) Penalty ▲ Artfully concealed weapons ▲ Fraud and intentional falsification ▲ Interference with screening NPCP ▲ Failure to submit to screening before Up to $11,000 entering sterile area Penalty ▲ Circumventing security ▲ Circumventing security ▲ Improper use of access badge ▲ Failure to safeguard Sensitive Security Information Information

How the Civil Penalty How the Civil Penalty Process Works

TSA’s Civil Penalty Process How the Penalty Process Works Respondent Options Pay the civil penalty TSA issues NOV NOV or NPCP 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)

TSA’s Civil Penalty Process How You Can Respond Take Action 1. Ask for & review the investigative report TSA issues NOV or NPCP NOV NPCP 2 2. Evaluate allegations & penalty assessed E l t ll ti & lt d 3. Ask for an informal conference • Ask for things your client can do to lower th the civil penalty i il lt • Tell TSA about corrective actions taken • Tell TSA about penalties already levied 4 4. Request a formal hearing with an Request a formal hearing with an Administrative Law Judge (ALJ) • Remember that the agency’s burden of proof is preponderance

TSA’s Civil Penalty Process What If Respondent Doesn’t Respond? Action Result If respondent TSA will issue Final Notice of doesn’t reply to Violation (FNOV) or Final Notice of NOV or NPCP Proposed Civil Penalty (FNPCP) If respondent FNOV or FNPCP will automatically doesn’t reply to turn into an Order Assessing Civil FNOV or FNPCP Penalty (OACP) within 15 days If respondent OACP becomes a debt to the doesn’t pay OACP United States

TSA’s Civil Penalty Process What If Respondent Doesn’t Pay? What If Respondent Doesn t Pay? Result Action If If respondent d t TSA will forward the debt to a TSA ill f d th d bt t doesn’t pay collection agency where interest, OACP penalties, and fees will accrue If If respondent d Collection agency will forward C ll i ill f d still doesn’t debt to the U.S. Treasury for pay OACP collection

TSA’s Civil Penalty Process What Are Respondent’s Appeal Options? Formal Hearing Appeal to TSA Appeal to Federal with ALJ Decision Maker Court of Appeals

TSA’s Civil Penalty Process Requesting a Formal Hearing or Appeal Reminders 1. Follow procedures, see 49 C.F.R. part 1503 • Notice to TSA & ALJ docketing center Notice to TSA & ALJ docketing center • Pay attention to timelines • Understand how motions work 2. Thoroughly answer Complaint or Motion 2. Thoroughly answer Complaint or Motion 3. Know your appeals options 4. Remember that you can still try settling the case with the agency attorney

Tips on Responding to Tips on Responding to TSA Enforcement Actions

Tips for Responding to Enforcement Actions Tip #1: Be responsive p 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 ▲ Notify the agency the agenc ▲ If you are representing a client on a matter so that we know to send all correspondence to you

Tips for Responding to Enforcement Actions Tip #2: Always read instructions thoroughly and abide by all deadlines d bid b ll d dli ▲ 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!

Tips for Responding to Enforcement Actions Tip #3: Understand your case p y ▲ Ask for Enforcement Investigative Report g p ▲ Read the report to understand the underlying allegations of violation ▲ Understand the government’s burden of proof U d t d th t’ b d f f ▲ 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 penalties AND civil penalties

Tips for Responding to Enforcement Actions Tip #4: Understand the agency’s enforcement process f t ▲ Know the regulations g ▲ 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