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09 October 2019
How do you create an aviation regulatory framework that "sustain[s] the highest levels of security through shared outcomes"? The Transportation Security Administration's (TSA's) new Action Plan Programme (APP) seeks to answer that essential question. The APP, which went into effect on 26 August 2019, details an alternative framework for addressing security compliance issues. Rather than relying on traditional, penalty-focused civil enforcement action, the new programme focuses on achieving a universally desired outcome – namely, increased aviation security. The programme offers regulated parties a non-punitive option to resolving TSA security regulation violations. While the APP could prove beneficial to both the TSA and industry, it raises some areas of concern for airlines and other regulated parties.
The purpose of the programme is to create:
incentives for eligible parties to identify security vulnerabilities, correct their own instances of regulatory non-compliance whether discovered by the eligible party or TSA, and invest resources and effort to improve transportation security.
At present, when a regulated party violates a TSA security regulation, the TSA may pursue legal enforcement action under federal law. The APP provides an alternative way forward, one where eligible parties may be able "to offset potential civil penalties with investment… a clear benefit over the traditional civil enforcement process". By taking financial resources that would otherwise be put towards a civil penalty and instead investing in security enhancements, the TSA, aviation companies and the travelling public benefit. However, to take advantage of the APP programme, certain criteria must be met, including the satisfaction of several critical components.
First, the programme is available only to 'eligible parties' regulated by the TSA, including:
Second, the programme applies to either "an identified security vulnerability" or "an instance of non-compliance", whether or not they are voluntarily disclosed by an eligible party or discovered by the TSA. However, the programme does not apply to egregious or intentional conduct (or other excluded activity).
Third, both the regulated party and the TSA must agree to take the APP approach.
Assuming these (and other criteria) are met, the parties then proceed with the action plan process. In most cases, the APP will be administered by local airport federal security directors (with certain exceptions) to ensure tailored programmes that address issues of concern that may be specific to a particular geographical location.
Airlines, airports and other regulated parties have good reason to be cautiously optimistic about the new programme, which appears to be focused on directing financial and other company resources towards solving security problems, rather than on punishing instances of non-compliance. However, there are certain unique aspects to the programme of potential concern to airlines, airports and other regulated parties. For example, in addition to TSA-discovered instances of non-compliance, the programme also covers issues that airlines, airports and other parties voluntarily disclose to the TSA. Notably, the programme also covers security vulnerabilities. These are non-violations (often considered precursors to a violation) and involve "circumstances or conditions which are a threat to transportation security prior to the occurrence of any [related] non-compliance". By incorporating vulnerabilities, the TSA provides the partnership-focused benefits of the APP to parties seeking to fix potential concerns before they become something more – a proactive approach that is not currently part of the formal enforcement process. However, since vulnerabilities are technically not yet violations, their incorporation could prove challenging when the parties seek to agree on the desired outcome.
No matter the circumstances, airlines, airports and other regulated parties should carefully consider the legal implications of using the APP option for any case before proceeding given the complexities and uncertainties of the APP framework.
For further information on this topic please contact Rachel Welford at Cozen O'Connor by telephone (+1 202 912 4800) or email (firstname.lastname@example.org). The Cozen O'Connor website can be accessed at www.cozen.com.
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