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) 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 t related 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 it enforcement authority

Who is Subject to Civil Enforcement?

Regulated Entities Others

1. Aircraft Operators and Foreign Air Carriers 2 Airport Operators 1. Passengers 2 Contractors 2. Airport Operators 3. Indirect Air Carriers 4 Freight Rail Entities 2. Contractors 3. Employees 4. Freight Rail Entities 5. Passenger Rail Entities 6. Passenger Transportation 4. Other parties 6. 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

1 On the Spot Counseling

Least

• 1. On-the-Spot Counseling
• 2. Administrative Action

Serious

Enforcement

4 S it P

• 3. Civil Penalty

Tools

• 4. Security Program

Withdrawal

Most Serious

Least On-the-Spot Counseling

▲ Can be the first step in progressive

f t Serious p g enforcement

▲ For use when

▲

The noncompliance is minor

▲

The regulated entity can instantly correct the violation

Most Serious

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 Penalty

Serious 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

• r intentional violations

Most Serious

Civil Penalty Maximums

Regulated Entity

Maximum Penalty Per Violation

Aircraft Operators $27,500 Airports, Indirect Air Carriers (cargo), Small Businesses, and Individuals $11,000 Surface Transportation $10,000 Transportation Worker Identification Credential (TWIC) $10,000 Type of Violator

Maximum Amount

Type of Violator

in Controversy

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

Security Program Withdrawal

Least

▲ For use with the most egregious

instances of noncompliance

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Serious instances of noncompliance

▲ Entities cannot operate without a

TSA-approved Security Program pp y g

▲ TSA may withdraw an entity’s

security program under certain Most circumstances Serious

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

(checkpoint or checked baggage)

Under $5,000 Penalty

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

entering sterile area

▲ Circumventing security

NPCP Up to $11,000 Penalty

▲ 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

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)

TSA’s Civil Penalty Process

How You Can Respond

TSA issues

NOV NPCP

• 1. Ask for & review the investigative report

Take Action 2 E l t ll ti & lt d

NOV 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

TSA’s Civil Penalty Process

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

TSA’s Civil Penalty Process

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 d If d Collection agency will forward debt to the U.S. Treasury for collection If respondent still doesn’t pay OACP

TSA’s Civil Penalty Process

What Are Respondent’s Appeal Options?

Formal Hearing Appeal to Federal Appeal to TSA with ALJ Court of Appeals Decision Maker

TSA’s Civil Penalty Process

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 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

the agenc

▲ Notify the agency

▲ 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 d bid b ll d dli and 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!

Tips for Responding to Enforcement Actions

Tip #3: Understand your case p y

▲ Ask for Enforcement Investigative Report

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▲ 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 penalties AND civil penalties

Tips for Responding to Enforcement Actions

Tip #4: Understand the agency’s f t enforcement process

▲ 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

Tips for Responding to Enforcement Actions

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

▲ Explain extenuating circumstances

p 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 indigent

M t id f f fi i l i bilit t

▲ Must provide proof of financial inability to pay

Tips for Responding to Enforcement Actions

Tip #6: Be reasonable and polite p 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

Tips for Responding to Enforcement Actions

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

• te t a spo tat o

security through enforcement actions

Questions?