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TSA Enforcement Guidelines Would Improve Supply Chain Performance

In the logistics business, there is little tolerance for uncertainty. The supply chain, from the producer to the consumer, must be finely tuned so goods arrive at the right destination within tight time frames. Flowers freshly cut on Monday have a value on Tuesday that is much higher than their value on Friday.

TSA rules, particularly security procedures for processing cargo transported by air, can dramatically affect supply chain performance. The rules improve security, and air cargo transporters have adapted well to these rules so that there has been little decline in efficiency. But the rules, as I have noted previously, are unwieldy and in some places vague and inconsistent, often making strict compliance a practical impossibility.

Unwieldy rules from the government are commonplace. Less common is extreme uncertainty regarding enforcement. While substantial fines and even criminal prosecutions have resulted from violations of TSA rules, such dramatic enforcement actions appropriately have been reserved (thus far) for extreme, and generally intentional, noncompliance.

But there are no TSA enforcement guidelines stating that such sound discretion is, in fact, TSA’s policy. Nor is there any other significant comfort to be gleaned for the numerous companies that receive a “Letter of Investigation” or other statement from a TSA investigator finding noncompliance. Does the letter mean potentially significant harm for the business? For companies diligently trying to determine how best to allocate compliance resources, while ensuring that flowers cut on Monday arrive by Tuesday, the proliferation of such findings can create frightening uncertainty.

In general, TSA does a commendable job balancing the need for security and the need for efficiency. But TSA would do well to follow the lead of other U.S. government agencies that have published enforcement guidelines. The Treasury Department’s Office of Foreign Assets Control, for example, dramatically reduced the previously opaque enforcement environment in the area of economic sanctions by publishing enforcement guidelines and subsequently summarizing enforcement actions. And the Department of Justice and Securities and Exchange Commission similarly have sought to shed light on their enforcement of the Foreign Corrupt Practices Act with the recent (and long-awaited) publication of their FCPA “Resource Guide.”

TSA should consider following suit.

Stephen Heifetz blogs primarily on aviation, transportation and maritime security, immigration and border security, and homeland security policy. He is a partner in the Washington office of Steptoe & Johnson, LLP , where he helps clients navigate laws and policies at the nexus of international business and security. Read More