Friday, February 18, 2011

TSA Surface Enforcement Activity

Yesterday the Transportation Security Administration published a notice in the Federal Register regarding the summary of their 2010 enforcement activity for surface transportation requirements. In a twisted sense of bureaucratic efficiency, the Federal Register notice does not include the actual summary, it just notes that it is available at under docket number TSA-2009-0024.

Downloading the two page summary document one can see that the TSA Surface Inspectors noted violations in 16 different enforcement actions during 2010. Those violations fall into five categories:

• Railcar chain of custody {49 CFR 1580.107}, twelve instances

• Failure to allow TSA inspection {49 CFR 1580.5}, two instances

• Railcar security {49 CFR 1580.107(f)}, one instance

• Reporting security concern {49 CFR 1580.105}, one instance

• Use of another’s TWIC {49 CFR 1570.7}, one instance
The penalties assessed for these violations range from ‘counseling’, through a ‘warning notice’, to a ‘letter of correction’. No monetary penalties were assessed even though TSA has been given authority {49 U.S.C. 114(v)} “to impose civil penalties of up to $10,000 per violation of any surface transportation requirement under 49 U.S.C. or any requirement related to transportation worker identification credentials (TWIC) under 46 U.S.C. chapter 701” (76 FR 9358).

Security requirements obviously preclude TSA from providing more details about the specific violations. It would be more instructive, however, if TSA were to describe, for instance, what constituted a ‘railcar chain of custody’ violation in each instance. The provisions of §1580.107 cover a wide range of requirements for a variety of rail car transfers including shipper to rail road, rail road to rail road, and rail road to receiver. It would be interesting to see which type of transfer had the most problems

One would like to assume that enforcement activities were consistent enough that we could assume that there was some difference in the severity of the violations that drew these different sanction levels. We would be able to see if this were true if we had a better idea of the actual violations were.

Since 2010 was the first full year of enforcement activities under §1580, I understand why TSA would not have assessed a monetary penalty for technical violations of this relatively new regulation. Of course, that is only true if outreach efforts were being made to educate the industry in how TSA inspectors are looking at the regulations. That really only happens if more information is included in communications like this.

None of the above comments about enforcement activities applies to the TWIC violation noted in the summary. The whole point of the TWIC regulations are that the card provides an assurance that people be given access to port facilities have been appropriately vetted. If someone is using someone else’s card that assurance disappears. This program has been in place for a long enough period that there is no justification for not penalizing violations. If TSA is not willing to assess some monetary penalty (the full $10,000 is probably inappropriate) for violations of this basic requirement, there is no sense in continuing to maintain this expensive system.

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