Chipping away at 100%

Chipping away at 100% Senate bills would soften container inspection mandate, but measure still generates strong reactions.

By Eric Kulisch

   For the first time in three years there has been movement on the impasse between Congress and the Department of Homeland Security regarding the mandate to scan all inbound ocean container traffic at overseas ports by July 2012.
   The Maritime Transportation Security Act of 2010, introduced in late July by Sen. John D. ‘Jay’ Rockefeller, chairman of the Senate Commerce, Science and Transportation Committee, and ranking member Kay Bailey Hutchison, R-Texas, would push back the 100 percent deadline by three years, to 2015. The most significant compromise is that it allows the requirement to be met through the use of X-ray machines or radiation detection equipment.
   The inspection deadline pushed for by Democrats in the 9/11 Recommendation Act specifically calls for the use of radiation detectors and large-scale devices that can produce images of a container’s contents to stop terrorists from smuggling a nuclear weapon into the United States.
   The radiation detection requirement is a much easier threshold given that virtually all ocean containers exiting U.S. ports to inland destinations already must pass through radiation portal monitors that can detect the presence of radioactive isotopes. And the machines automatically signal if there is a problem, whereas container X-rays must be manually analyzed.
   Sens. Patty Murray, D-Wash., and Susan Collins, R-Maine, also offered a bill to reauthorize the 2006 SAFE Port Act and sunset the 100-percent inspection deadline if Homeland Security Secretary Janet Napolitano certifies that existing security programs are doing the job. It would require every container identified by advance targeting as high-risk to be scanned or searched before entering the United States.
   ‘This is a more reasonable method to secure our cargo until a new method of X-raying containers is proven effective,’ the senators said in a statement.
   DHS and its Customs and Border Protection component vigorously argued against the scan-all measure prior to its passage in 2007, instead favoring the existing layered security regime that focuses on using risk management principles to target inspections on containers of suspicious or unknown origin. DHS, companies and foreign governments have since pressed Congress to roll back or modify the comprehensive inspection requirements because of technological and other limitations that would make inspections relatively ineffective. In addition there are concerns that moving ahead would undermine existing programs such as the Container Security Initiative (CSI) and the Customs-Trade Partnership Against Terrorism, cause cargo delays, as well as raise questions about potential installation and operational costs.
   CSI is an eight-year-old program under which CBP collaborates with foreign authorities in 58 ports around the world to inspect cargo on its behalf. CBP officers stationed at the ports are alerted to suspicious shipments by an automated targeting system that analyzes the risk factors for each shipment. The officers request that law enforcement counterparts in the host country run suspect containers through an imaging system to check for potential contraband. Some countries also use radiation portal monitors. The majority of inspections ‘ involving less than 5 percent of the 10 million inbound boxes in 2009 ‘ occur in U.S. ports because of CSI’s small scale. CBP intends to cut costs next fiscal year by repatriating many CSI personnel and doing the container risk analysis from a centralized cargo targeting center near Washington (see ‘CSI, C-TPAT face budget cuts,’ July American Shipper, page 8 ).
   C-TPAT is a trusted trader program under which importers voluntarily implement approved supply chain security plans that meet minimum standards in exchange for reduced inspection levels, expedited treatment when cargo scans are necessary and other benefits. Vendors also join the program to ensure end-to-end shipment security and satisfy their customers.
   CBP, at the direction of Congress, also managed a pilot program of 100 percent inspections at a handful of low-volume ports, or sections of ports. The Secure Freight Initiative (SFI) was designed to test whether X-ray and radiation detection technologies could be incorporated into the port environment to examine containers and determine the cost and operational impact. The best inspection rate CBP achieved in the small, controlled port environments was 86 percent. The rate was 3 percent to 5 percent at high-volume terminals in Hong Kong and Busan, South Korea.
   Last December, Napolitano indicated the department would seek a two-year scanning waiver, allowed for under the law, when the July 2012 deadline nears. She said lessons from the SFI program underscored the difficulty of trying to expand the scan-all approach to every port in the world.

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   DHS’s compromise position at the time was that non-intrusive inspection of all containers only has value on a limited basis and that it would selectively scan in strategic locations where terrorist groups are known to operate and pose a threat of infiltrating a U.S.-bound container with a weapon of mass destruction. Napolitano approved the ‘strategic trade corridor strategy’ early last year, but the department has since sent mixed messages about its intent. A CBP official recently said the agency wants to establish scan-all operations in Karachi, Pakistan; Alexandria, Egypt; Aqaba, Jordan; and Shuaiba, Kuwait; in addition to maintaining full exam rates in Port Qasim, Pakistan.
   Port Qasim is one of the original SFI pilot ports.
   Other CBP officials have thrown cold water on the idea during the past year. Meanwhile, the secretary didn’t mention the strategy during Senate testimony last December and the department’s fiscal year 2011 budget request contains no money to implement such a program.
   The budget request and statements by officials are further evidence that DHS is moving away from any new wholesale scanning projects. Furthermore, DHS and CBP have proposed to downgrade three SFI ports to the CSI level and cut SFI funding from $19.9 million to $3.3 million. That means only cargo that is targeted as high risk would be inspected as opposed to all cargo under SFI.
   The mindset of many lawmakers on both sides of the aisle towards 100 percent X-ray inspections has shifted during the past two years with the realization that the mandate is impractical. Democrats have found it easier to soften their stance because the Obama administration’s opposition to the measure gives them political cover. The new understanding is reflected in the Rockefeller and Murray-Collins bills.
   But a vocal minority of senators and congressmen still insist that DHS do more to hit the scan-all target.
   Pressed on the matter by Sen. Frank Lautenberg, D-N.J., during a July 21 Senate Commerce Committee hearing, CBP Commissioner Alan Bersin responded, ‘Frankly, senator, I think we’re going to need to develop an alternative approach to provide us with the security that is sought by the 100 percent scanning, but to do so in a way that incorporates risk management.’
   Bersin said CBP is working to document the complete governmental and private-sector costs and logistical requirements necessary to meet the law.
   The three-year delay Rockefeller proposes is still problematic for the business community because it doesn’t eliminate the uncertainty over whether mandatory container checks will become established U.S. policy, which inhibits companies and ports from investing in other supply chain security measures, said Adam Salerno, senior manager for national security and emergency preparedness at the U.S. Chamber of Commerce, at a Heritage Foundation symposium on maritime security.
   Soon after Rockefeller dropped his bill, three House supporters of the 9/11 Act provision wrote Napolitano criticizing DHS for dragging its feet on the inspection mandate, as the Bush administration did. Democratic representatives Bennie Thompson, chairman of the Homeland Security Committee, Jerrold Nadler of New York and Edward Markey of Massachusetts, said the opt-out clauses were only included to provide flexibility meeting specific challenges such as unavailability of technology for purchase, lack of an automated image analysis capability, port installation constraints, and potential cargo congestion.
   ‘Congress did not intend for the department to seek an indefinite extension for all ports in the absence of any meaningful efforts to implement the law,’ they wrote. ‘While we understand that implementation challenges exist, we are troubled by the department’s apparent intent to grant all ports a two-year delay for implementation, without presenting a concomitant plan of action to ensure the mandate is fully or partially achieved at any port in the world by 2012.’
   On the third anniversary of the 9/11 Act’s enactment, ‘the agency charged with implementing this important security provision has made no measurable progress. Instead, the Department of Homeland Security has expended its resources on campaigning against the 100-percent scanning mandate,’ Thompson said in a separate statement.
   The congressmen requested Napolitano provide a detailed list of the challenges faced at each foreign port that handles U.S.-bound cargo, a specific implementation plan complete with annual inspection milestones, information on how CSI can be used as a steppingstone to comprehensive inspections, and projected funding and manpower requirements needed for 100 percent scanning.
   In addition to reauthorizing and increasing funding for CSI and C-TPAT, the Collins-Murray bill attempts to enhance C-TPAT by providing new benefits to participating companies, including voluntary security training, information sharing on maritime and port security threats, and authorizing CBP to conduct unannounced inspections to ensure that security practices are sufficient.
   CBP currently schedules on-site supply chain audits with C-TPAT members ahead of time.
   The chances of either bill advancing to a vote this year are slim, given that lawmakers will leave early this fall to campaign for the mid-year congressional elections and Congress is preoccupied with other issues. When the new 112th Congress is seated legislation will not carry over and will have to be reintroduced. But mark up of the bills in the Senate Commerce and Homeland Security committees would at least serve as a jumping off point for debate during the next session.
   The more likely scenario is that all involved will muddle through by relying on the DHS secretary to invoke the waiver authority and kick the can down the road every two years, which Capitol Hill will go along with because of the general understanding that the operational impediments in foreign countries are too great.