TSA Surface Enforcement Actions 2011

Today the Transportation Security Administration (TSA) published a notice in the Federal Register (77 FR 12865) announcing the availability of their annual report for 2011 summarizing the enforcement actions undertaken by the TSA “for violations of any surface transportation requirements under title 49 of the U.S. Code (U.S.C.) and for any violations of chapter 701 of title 46 of the U.S. Code, which governs transportation worker identification credentials” (77 FR 12865).

The actual report is only three pages long but it is not printed in the Federal Register notice. To see the actual report you have to go to www.regulations.gov (Docket # TSA-2009-0024). The folks managing this web page no longer provide direct links for individual documents; the closest you can get to that is the link for the page where you can get to the document. For this year’s report that page is: http://www.regulations.gov/#!documentDetail;D=TSA-2009-0024-0008 (for the 2010 report replace the last digit with a ‘5’; and for 2009 with a ‘2’).

Summary Data

The table below shows a summary of the data for 2011.

2011 TSA Surface Enforcement Actions	# of Incidents	Maximum Penalty
		Proposed	Imposed
Rail Car Chain of Custody	13	$6,000	$3,000
Rail Car Location	2
Reporting Security Concern	2	$3,000	$3,000
Use of another's TWIC	1
Allow another to use TWIC	2	$1,500	$1,500
Fraudulent Manufacture of TWIC	1
Total	21	$13,500	$8,500

Table 1: 2011 TSA Enforcement Summary

The rail car actions are based upon the freight rail security provisions at 49 CFR 1580.107. The reporting of security concerns are found in the same regulations at §1580.203. The TWIC actions are based upon §1570.7 of 49 CFR not the Coast Guard regulations regarding TWICs. The listing of these actions in the summary report also includes the case numbers for each action.

Not Much in the way of Fines

It is apparent from this report that TSA is not concerned much about collecting fines. Most of the ‘penalties’ noted in the report are administrative in nature. There are three separate administrative actions listed for the violations reported, unfortunately TSA does not provide any information about the relative level of severity or an explanation of the consequences for these actions. The three administrative actions listed are:

• Warning Notice;

• Letter of Correction; and

• Notice of Non-Compliance.

A total of only $8,500 collected in civil penalties for 21 separate enforcement actions would tend to indicate that TSA was more interested in working with the regulated community to correct security problems. That is probably a more effective use of the time available to the limited surface inspection force.

Having said that, TSA is obviously stepping up pressure to achieve compliance. In 2010 there were only 17 enforcement actions and no civil fines were levied and in 2009 (the first year of TSA’s authority to levy civil penalties) there were seven actions and not fines. Still the maximum allowed civil penalty is $10,000 and the highest fine levied was only $3,000.

While I applaud TSA’s working with industry to ensure security compliance, I was a tad bit disturbed to see no fine associated with the single instance of ‘Fraudulent Manufacture of TWIC’. That would seem to be a deliberate attempt to violate the rules which to my mind requires punishment not corrective action. Of course there are no details provided about any of these incidents, so it is really quite difficult to make an even somewhat informed second guess of the TSA’s actions in these cases.

Evolving Enforcement

The Regulation.gov web site still has the summary reports for 2009 and 2010 available for review. Table 2 below summarizes the number and types of enforcement actions completed in the first three years of the program. The one clear piece of data here is that there continues to be issues surrounding the requirements for chain of custody  documentation for rail security sensitive materials (RSSM). The limited data provided here does not allow, however, for a real assessment of how serious the problem is. To fully analyze the situation we would need to know how often, for example, TSA inspectors checked the documentation for chain of custody transfer.

2009 thru 2011 TSA Surface Enforcement Actions	# of Incidents
	2009	2010	2011
Did not allow TSA Inspection		2
Rail Car Chain of Custody	2	12	13
Rail Car Security		1
Rail Car Location			2
Reporting Security Concern		1	2
Use of another’s TWIC	1	1	1
Allow another to use TWIC	1		2
Direct the use of another’s TWIC	2
Fraudulent Manufacture of TWIC			1
Use of an altered TWIC	1
Total	7	17	21

Table 2: TSA Surface Enforcement Actions thru 2011

Another area where the inspection rate data would be of particular interest is with regards to the TWIC enforcement actions. One would like to assume that TSA isn’t spending a lot of time checking general TWIC use at port facilities; that enforcement would more likely fall to the Coast Guard. It is more likely that the TSA inspectors were checking the TWICs of train crews hauling RSSM in and out of port facilities. If that’s the case, and given the small number of available TSA Surface Security Inspectors, the four TWIC enforcement actions in 2011 could indicate a serious problem with rail crews and TWICs. This could be particularly important as more high-risk, non-MTSA, chemical facilities begin to use TWICs as a method of personnel surety vetting for transportation workers.

Congressional Oversight

Congress mandated {49 U.S.C. § 114(v)(7)(A)} that TSA provide these annual reports on enforcement actions. One would assume that the purpose of the report was to allow for Congress to have a relatively easy way to monitor the progress of the surface security programs mandated by law. TSA surface security programs are a relatively small part of the TSA operations and are frequently overlooked by Congress.

In light of the problems still being uncovered at ISCD with another relatively small security program, CFATS, it might be interesting for a responsible subcommittee of either the transportation or homeland security committees (of either the House or Senate) to use the occasion of this report to conduct an oversight hearing on the implementation of the surface security inspection programs.