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TSA Takes a Page from FAA's Compliance Program Playbook

A new Transportation Security Administration (TSA) initiative called the Action Plan Program (APP) went into effect on August 26, 2019.

TSA states that the APP is a reflection of the goal to “create incentives for eligible parties to identify security vulnerabilities, correct their own instances of regulatory noncompliance…and invest resources and effort to improve transportation security.” The APP aims to provide a framework for “eligible parties and the TSA to discuss and reach an agreement on corrective actions to address the root cause,” after which the issue can be resolved without a formal enforcement action.

If this sounds familiar, it is: the APP shares many attributes with the FAA’s Compliance Program (formerly Compliance Philosophy). Like the Compliance Program, the Action Plan Program is a voluntary, non-punitive approach to returning parties to compliance with outcomes that do not create a violation history. Also like the Compliance Program, the APP excludes egregious or intentional noncompliance, as well as criminal activity or fraud. According to TSA, the risk to security from such flagrant noncompliance is unacceptable and therefore those types of violations are ineligible for resolution through the APP.

Eligible parties for an Action Plan Program include entities ranging from cargo screening facilities to airport operators, and perhaps most relevant for the General Aviation pilot audience, flight training providers are eligible as well. The APP PDF document linked above contains a full list of eligible parties and applicable TSA regulations, but 49 CFR § 1552 pertaining to flight schools is on the list. This part of the transportation regulations contains the rules requiring CFIs to take security awareness training and non-US-citizens seeking certain types of flight training to go through a TSA vetting process called the Alien Flight Student Program.

Issues related to compliance with 49 CFR § 1552 are the most common call AOPA’s Legal Services Plan receives involving the TSA, so the APP may represent a welcome change in the TSA’s approach to such issues. The Action Plan Program is a new addition to the TSA’s progressive enforcement philosophy, a spectrum that includes options such as counseling, remedial training, and administrative actions but extends to legal enforcement action and criminal prosecution when warranted.

The APP replaces several prior TSA programs including the Voluntary Disclosure Program Policy. Of note, voluntary disclosure procedures have been rolled into the APP, and the TSA notes that “voluntary disclosure must be considered a mitigating factor during the discussion and negotiation of an action plan.” The APP covers both TSA-discovered noncompliance and noncompliance which is voluntarily reported. The APP is quite new, without a track record to evaluate, but it appears that cautious optimism is warranted.

If you are notified by the TSA of an alleged violation related to your operation of an aircraft or your flight training activities, or if you discover noncompliance on your own, consult with counsel such as AOPA’s Legal Services Plan for guidance.

For more on the FAA’s Compliance Program, see articles here and here.

Chad Mayer

Legal Services Plan, Attorney
Chad Mayer is an in-house attorney with AOPA’s Legal Services Plan who counsels Plan members on a daily basis. He is also a Commercial Pilot, a Remote Pilot with sUAS Rating, and an Advanced/Instrument Ground Instructor. The AOPA Legal Services plan is offered as part of AOPA’s Pilot Protection Services.

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