Disclaimer

The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.

 Skip to Content

TSA Adds New Compliance Program to Address Violations of Its Security Requirements
October 01, 2019
On August 26, 2019, the Transportation Security Administration (TSA) enacted its new Action Plan Program. The Action Plan Program "provides an opportunity for eligible parties and TSA to discuss and reach an agreement on corrective actions to address the root cause of any security vulnerability or noncompliance with TSA's security requirements" and "resolve that vulnerability or noncompliance with administrative action instead of a civil enforcement action."

The TSA's Action Plan Program is modeled after the Compliance Program implemented by the Federal Aviation Administration in 2015. In essence, if there is a violation of a TSA rule or regulation or a security vulnerability, the Action Plan Program focuses on addressing the "root cause" of the violation or vulnerability so that further violations and vulnerabilities are eliminated. While the TSA retains its usual enforcement tools such as counseling, administrative actions, legal enforcement actions and the like, the Action Plan Program is a sea change in the TSA's enforcement protocol for addressing violations of its rules and regulations or security vulnerabilities.

By way of a police department and traffic cop analogy, instead of a traffic ticket (enforcement action), the Action Plan Program resolves unintentional and non-egregious violations and security vulnerabilities with administrative actions (in effect, a warning), not an enforcement action or civil monetary penalty. Takeaway: Fix the problem or security vulnerability, and the TSA will handle the matter administratively with an action plan letter that instructs the participating party on how to address the root cause of the violation or vulnerability through various corrective actions. If the participant completes all corrective actions, the TSA may issue a letter of correction, ending the matter. Importantly, the letter of correction "is not part of an eligible party's violation history."

The Action Plan Program applies to several transportation security regulations and relevant security programs, including cargo screening facilities (49 C.F.R. pt. 1549), aircraft operators (49 C.F.R. pt. 1544), flight schools (49 C.F.R. pt. 1552), and others. Given the FAA Compliance Program's success at diverting violators into its Compliance Program and away from civil enforcement actions, the Action Plan Program will likely become an important tool for eligible parties to avoid TSA enforcement actions including the imposition of civil monetary penalties. But the Action Plan Program does not apply to "egregious, flagrant, continuous, wanton, bad-faith, extraordinary, or conspicuously bad or glaring deviations" or "deliberate or intentional deviations" from the TSA's regulatory requirements, including those involving criminal activity or fraud.

The linchpin, however, to the TSA's Action Plan Program is voluntary disclosure by an eligible party, and that's always the rub in self-disclosure programs: "TSA encourages eligible parties to discover their own instances of noncompliance and take prompt and effective corrective action to ensure that the same or similar noncompliance does not reoccur." In short, self-disclose and fix the problem, and the Action Plan Program is available to mitigate and avoid typical TSA sanctions, including civil monetary penalties.
Authored By
Image: Edward J. Page
Edward J. Page
Related Practices
Aviation
©2024 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.