Since its inception in 2001, the Transportation Security Administration’s (TSA) approach to enforcing its rules generally has been a cooperative one. Recognizing the burdens on industry from new security regulations and a difficult economic environment, and understanding that harsh enforcement actions can be counterproductive, TSA generally has sought to educate and train rather than punish. Monetary fines have been uncommon, and serious punishment – steep fines or greater severity – have been rare. While this approach has worked reasonably well, there is reason to believe it will not last forever.

  • A common catalyst to a “harder” enforcement approach (e.g., more frequent and larger fines) is public focus on instances of noncompliance.

A recent example of such a catalyst is the oil spill in the Gulf of Mexico, which has transformed the Interior Department’s Minerals Management Service into the new “Bureau of Ocean Energy Management, Regulation, and Enforcement” – enforcement is now part of the name.

  • The likelihood of public focus on noncompliance is related to at least two factors: the passage of time and the industry’s ability to affect a broad cross-section of the public.

Both factors weigh in favor of an eventual turn toward harder enforcement. First, TSA is still a new agency but, as time passes, the likelihood of a significant rule violation by the regulated industry increases. Second, TSA interacts constantly with a broad cross-section of the public, which is one of the reasons that TSA problems quickly draw broad public attention.

  • Another possible catalyst to a harder enforcement approach is the growth or diversification of the regulated industry.

When the regulated industry grows and/or diversifies, regulators may be more inclined to take a harder approach to enforcement as a way of signaling seriousness to industry participants.

Hard enforcement actions are often an efficient way for regulators to deliver a message to a large or diverse set of industry participants. When the participants are few in number or homogenous, education and training by the regulators may be sufficient, but a “severe fine” warning message is more likely to be carried quickly (by the trade press, lawyers and others) to a large or diverse set of industry participants.

The industry regulated by TSA has been growing and diversifying quickly. Among the recent additions are businesses newly regulated under the Certified Cargo Screening Program (CCSP). These businesses, now approaching 1,000 in number, have to be regulated by TSA without a proportional increase in TSA resources, making an eventual resort to a harder enforcement approach more likely.

For all of these reasons, TSA-regulated companies would be wise to focus on compliance efforts as though TSA were going to take a harder approach to enforcement.