TSA Issues Sanctions Guidance for Security Violations by Indirect Air Carriers, Etc
The Transportation Security Administration (TSA) has issued a policy directive which provides sanction guidance for imposing civil penalties for violations of its security regulations by aircraft operators, airport operators, and indirect air carriers (IACs, including freight forwarders) when a determination is made that civil penalty enforcement action should be taken.
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According to TSA, the purpose of this guidance is to assist, not replace, the exercise of prosecutorial judgment in determining the appropriate civil penalty in a particular case.
(Subscribers should note that this BP summary focuses on IACs only. TSA's policy directive should be consulted for its sanction guidance regarding aircraft operators and airport operators.)
Minimum, Moderate, & Maximum Civil Penalties for IAC Violations
With respect to a single violation committed by IACs, the TSA states that the following civil penalty ranges may apply: minimum ($1,000 - $2,999), moderate ($3,000 - $5,999), or maximum ($6,000 - $10,000).
Examples of Cargo Security Violations
In its policy directive, TSA has provided a number of examples of cargo security violations that would apply to IACs. TSA also states whether such violations would warrant a minimum, moderate, or maximum civil penalty. These examples include (partial list):
| Violation | Penalty Level |
|---|---|
| Acting as an IAC without an approved program | Maximum |
| Failure to comply with any requirement necessary to establish a known shipper (repeated failures would justify a maximum penalty) | Moderate |
| Failure to control access to cargo by unauthorized persons | Moderate-Maximum |
| Failure to comply with any requirement related to the screening or inspection of cargo | Moderate-Maximum |
TSA Will Examine Aggravating, Mitigating Circumstances to Determine Penalty
TSA states that in selecting an appropriate sanction, the totality of circumstances, including any aggravating and mitigating factors, should be considered.
A sanction amount at the higher end of a range is appropriate where there are aggravating factors surrounding the alleged violation, while a sanction amount at the lower end of the range is appropriate for first time violations and where mitigating factors exist.
In addition, a sanction amount that falls outside a range may be sought based on factors of extreme aggravation or mitigation, or if necessary to further TSA policy.
The TSA's policy directive also includes the aggravating and mitigating factors that should be considered in determining the appropriate civil penalty.
(TSA's Aviation Security Advisory Committee (ASAC) has previously stated that a cargo IAC is any person or entity within the U.S. who undertakes to engage indirectly in air transportation of property, and uses for the whole or any part of such transportation the services of an air carrier or a foreign air carrier that directly engages in the operation of aircraft under a certificate, regulation, order, or permit issued by the Department of Transportation (DOT) or the services of its agent, or of another indirect cargo air carrier.)
(See future issue of ITT for BP summary of the TSA's voluntary disclosure program.)
TSA Announcement of Civil Enforcement Policies available at http://www.tsa.gov/public/display?theme=5&content=0900051980091268
TSA Policy Directive on Enforcement Sanctions available athttp://www.tsa.gov/interweb/assetlibrary/FINALSanctionGuidance.doc