PART 126—TRANSPORTATION SECURITY OVERSIGHT BOARD REVIEW PANEL PROCESS AND PROCEDURES Authority: 49 U.S.C. 115, 46111; Department of Homeland Security Delegation No. 7071.1. Source: 89 FR 17702, Mar. 12, 2024, unless otherwise noted. § 126.1 Purpose and scope. 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). § 126.3 Definitions. Classified information Communication technology Other protected information Sensitive Security Information (SSI) Substantial evidence Transportation Security Oversight Board (TSOB) Transportation Security Oversight Board (TSOB) Review Panel § 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 the Federal Aviation Administration (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 (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. § 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. The TSOB Review Panel also may remand the matter to the ALJ with instructions to address particular issues or consider additional testimony or evidence. § 126.9 Scope 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. § 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, will appoint legal counsel to assist a TSOB Review Panel. Counsel appointed to assist the TSOB Review Panel will facilitate communication between the TSOB Docket Clerk and the TSOB Review Panel, and assist 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. § 126.13 Notice of appeal and service. (a) Notice of appeal. [email protected] (b) Service. [email protected], (c) Filing date. (d) Untimely appeals. (e) Failure to perfect the appeal. (f) Effect of dismissal of appeal. § 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. § 126.17 Procedures for classified information, Sensitive Security Information (SSI), and other protected information. (a) Notice of protected information. (b) Access to protected information. § 126.19 Filing and supplementing the record. (a) Filing the record. (b) Supplementing the record. (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. (3) A TSOB Review Panel may grant a motion to supplement the record by remanding the case to the ALJ for additional proceedings, where good cause is shown. § 126.21 Motions. (a) Form of motions. (2) Motions must be filed with the TSOB Docket Clerk and served on all parties in accordance with § 126.13(b). The TSOB Docket Clerk provides all motions to the TSOB Review Panel. (b) Duty to confer. (c) Motion hearings. (d) Disposition. (e) Additional procedural requirements for motion practice. § 126.23 Briefs. (a) Appellant brief. (2) The appellant brief must enumerate the appellant's objections to the ALJ's decision. (b) Appellee brief. (c) Brief requirements. (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 8 1/2-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. § 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 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. § 126.27 Deliberations and action. (a) Deliberations. (b) Action. (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. (d) Timing. (1) Receipt of a timely filed appellant brief; (2) receipt of a timely filed appellee brief; or (3) Oral argument. § 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 or she decides that the Panel's action will have a significant adverse impact on carrying out 49 U.S.C. subtitle VII, part A, may obtain judicial review in an appropriate U.S. Court of Appeals in accordance with 49 U.S.C. 46110. 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. § 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 § 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 § 126.25(d).