- Monday, August 26, 2019
Today, the Transportation Security Administration is launching a new initiative concerning its approach to enforcement known as the Action Plan Program.
Businesses involved in the air-cargo industry, such as Indirect Air Carriers and Certified Cargo Screening Facilities, have always faced the risk of significant civil penalties assessed by TSA for noncompliance with the agency’s regulations and rules. While businesses could voluntarily disclose violations in hopes of avoiding penalties, the process for doing so was not always straightforward, leaving many confused about the proper way to engage with TSA when such issues arose.
TSA aims to improve the process with this new program. Under the Action Plan Program, which goes into effect today, August 26, 2019, TSA-regulated businesses can voluntarily disclose violations or “security vulnerabilities,” which are circumstances that present a security risk but are not themselves violations. Assuming certain criteria are present, the business may be able to enter into an “Action Plan” to address the root cause of the issue and commit to corrective actions designed to prevent recurrence. Successful completion of an Action Plan entitles the business to “administrative action” in the form of a Letter of Correction issued by TSA - i.e., no penalties.
In a notable change from the agency’s past practice, the ability to enter an Action Plan is available regardless of whether the violation or security vulnerability is self-reported or discovered by TSA. This represents a significant expansion of TSA’s legacy Voluntary Disclosure Program, which the Action Plan Program replaces.
There are detailed steps businesses must follow to properly invoke the Action Plan Program with respect to self-reported violations and security vulnerabilities. Even if TSA discovers the issue, businesses should carefully evaluate the benefits and risks to an Action Plan relative to the nature of the noncompliance or security vulnerability, as TSA must agree that the corrective actions outlined in the Action Plan are likely to prevent recurrence.