United States: Security Partnerships Bulletin - February 2011

Last Updated: March 6 2011
Article by Stephen Heifetz and Marc Frey

2011 Deadline for 100% Screening of Inbound Passenger Air Cargo

Since August 2010, US law has required physical screening for 100% of cargo loaded onto passenger planes flying from, within, or to the United States. 

  • This 100% screening mandate has been met for cargo loaded onto passenger planes flying within, or departing from, the United States. 
  • Because of limited jurisdiction and resources, TSA originally announced that the requirement for cargo loaded onto passenger planes flying into the United States would not be implemented for several years.  The air cargo bombing plot in October 2010, however, caused TSA to reconsider the timetable for implementing the screening requirement for inbound cargo and to announce a new implementation deadline of December 31, 2011.
  • It is unclear whether and how TSA can enforce this requirement for inbound flights; many stakeholders believe that the 100% screening mandate for inbound flights is impractical.
    • One option under consideration is for TSA to enter into mutual recognition agreements – on either a bilateral or multilateral basis – with foreign partners.  While TSA has begun discussions of such arrangements, completing these agreements will be a time – and resource – intensive undertaking that is highly unlikely to be complete by the end of this year.
    • Another option is for TSA to require airlines to ensure that inbound cargo is screened by contracting with screeners in overseas locations.  TSA would like to put the airlines "on the hook" for the screening work undertaken by overseas screeners; the airlines understandably would prefer that TSA directly regulate oversees screeners rather than forcing the airlines into the job.

Slow Progress Implementing a Screening System for "All Cargo" Flights

The requirement to physically screen 100% of cargo applies only to passenger flights.  The air cargo bombing plot last October, however, implicated "all cargo" flights as well as passenger flights.  In the aftermath of that bombing plot, DHS began establishing a "risk-rating" system for air cargo similar to the type used in the maritime cargo environment.

  • All maritime cargo bound for the United States is "risk-rated" before it leaves the foreign port; the risk rating is a function of factors such as the sender, the recipient, the country of origin, and other variables.  High-risk cargo is subjected to additional scrutiny.  DHS intends to establish a similar risk-rating system for air cargo, but progress has been slow.  DHS has been working with a variety of private sector stakeholders to determine what data is available at what time – the data is only useful if it can be provided to DHS well before a flight takes off.  DHS has not yet found data elements that are both available in a timely manner and that produce useful risk ratings; further, even when DHS arrives at a satisfactory risk-rating formula based on available data, there will be difficult questions about what to do – and who should do it – with cargo that exceeds the risk threshold.
     
  • Notwithstanding the slow progress, generating a risk-rating system for "all cargo" flights remains a DHS priority for 2011.

Continued Growth of International Trusted Traveler Programs

The Global Entry Program has expanded its network of participating countries.  As discussed in previous newsletters, Global Entry allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States and in participating foreign partner countries.

  • In January 2011, US Customs and Border Protection (CBP) entered a reciprocal agreement with Mexico to allow Mexican citizens to participate in Global Entry when arriving in the United States.  Global Entry is now open to qualified Mexican nationals enrolled in CBP's SENTRI program, which is designed for frequent crossings at the southern land border.  Mexican members of SENTRI are eligible to apply for Global Entry benefits at no additional fee.  In addition to the standard vetting performed by CBP, these applicants will receive a thorough risk assessment conducted by the Mexican government before receiving full Global Entry benefits.
  • US citizens and lawful permanent residents enrolled in SENTRI may also enjoy the benefits of the Global Entry program at no additional cost when arriving at participating US airports.
  • Global Entry benefits are also now available for all members of NEXUS, which is a program jointly administered by the CBP and the Canadian Border Services Agency that allows pre-approved, low-risk travelers expedited crossing at the northern border. 
  • The extension of Global Entry to trusted Mexican and Canadian travelers – along with the previous agreements with the Netherlands and Germany – demonstrates that granting efficiency benefits to travelers in return for increased security makes sense for all participants.  Additional trusted traveler partnerships are likely to emerge in the near future and travelers will increasingly choose to route through countries that take advantage of these partnerships.

Visa Waiver Program Developments

  • During the visit of Polish President Bronislaw Komorowski to the United States in early December 2010, President Obama promised that he would work with Congress to advance Poland's inclusion in the VWP.  Poland has long been interested in the VWP and is one of only a handful of European countries whose citizens are required to obtain visas for short-term travel to the United States.  Despite the strong statement of support from the President – and the existence of several draft bills currently circulating in Congress – the short-term prospects for a legislative fix that would open the door to Poland and other US allies are unclear.  It will likely take a concerted and coordinated effort by these countries to achieve their VWP objectives.
  • Croatia also has long been interested in joining the VWP.  Although the current VWP law imposes significant obstacles for Croatia (and Poland and other allies),  Croatia took a significant step on February 16, 2011 toward eventual qualification for the program by signing an agreement with the United States to cooperate to prevent and combat serious crime.  This information-sharing agreement – through which the signatories exchange biometric information such as fingerprints – is a key VWP requirement and is an example of the high security standards demanded of VWP members.
  • Inclusion in the VWP is also a long-time priority for Taiwan.  Taiwan has met a number of the law's requirements, including a nonimmigrant refusal rate of less than 3 percent, and is currently in discussions with the Department of Homeland Security about possible designation later this year.  

US-Indian Homeland Security Dialogue

The United States and India have closely cooperated on security issues for a number of years.  In the aftermath of the Mumbai terrorist attacks, the United States and India deepened their collaborative efforts, culminating in the signing of the Counterterrorism Cooperation Initiative (CCI) in July 2010.

  • During President Obama's visit to India in November 2010, he announced that DHS and the Indian Ministry of Home Affairs had agreed to engagement in a wide-ranging dialogue on homeland security issues under the chairmanship of DHS Secretary Napolitano and Indian Minister of Home Affairs Chidambaram.  This formal dialogue mirrors similar engagements that DHS established with the United Kingdom and Germany in recent years.
  • DHS officials have had several preliminary meetings with their Indian counterparts in preparation for the kick-off of the dialogue in April 2011 when Secretary Napolitano visits New Delhi.
  • In the next three years, India is projected to spend more than $10 billion on homeland security technology products and services for border protection, passenger and cargo screening, surveillance, intelligence, marine security, cybersecurity, and other critical security infrastructure needs.  The sustained and regular dialogue with DHS will advance India's goal of modernizing the country's homeland security architecture.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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