United States: Mobility Matters Bulletin - February 2011

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

Wave of TSA Enforcement Actions

In the August 2010 issue of this newsletter we predicted that TSA would turn toward a "harder" approach to enforcing its rules rather than the cooperative, educational approach used in the past.  That predicted trend has become evident in the last few months, as the press has reported on five companies under investigation – including one criminal investigation – for potential violations of the Certified Cargo Screening Program (CCSP).

  • Press reports indicate that in December 2010 TSA began an investigation of Activair, an air cargo subsidiary of third-party logistics operator OHL.
    • Based on TSA's preliminary findings, TSA ordered Activair's Indianapolis facility to cease handling air cargo.
    • OHL told news networks that it is cooperating with the investigation and that it voluntarily removed Activair's Indianapolis facility from the CCSP.
    • Seven employees in Activair's Indianapolis facility were reported to have been given their walking papers.
    • Initially the investigation was considered civil, but after interviews with employees at Activair's Indianapolis facility revealed that the employees were acting under direct orders from supervisors to forgo screening to save money, TSA brought in criminal investigators to interview OHL and Activair employees and former employees.
    • TSA also sent agents to Activair's Chicago, Seattle and New York facilities, and in response OHL has voluntarily suspended Activair's air export business across the United States.
  • Press reports indicate that in 2011 at least four other companies have received citations from TSA for possible air cargo screening violations.
    • While there are no indications that the other investigations are criminal in nature, several of the companies under investigation reportedly have been removed from the CCSP.
    • Even temporary removal from the CCSP can have a devastating effect for a company committed to screening cargo for customers, as those customers have to find new cargo screeners.
  • In light of the multiple CCSP compliance problems, TSA recently sent letters to CCSP participants asking that they voluntarily review their CCSP compliance efforts and report to TSA on any actions to boost those compliance efforts.
    • TSA reminded CCSP participants that, in the event TSA discovers negligent or willful violations of regulatory requirements, TSA may take appropriate action, including the issuance of civil penalties, referral for criminal prosecution, and/or withdrawal from TSA programs.
  • As all of this activity suggests, TSA-regulated companies should focus on compliance efforts. 

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.

Support for Tiered Risk System for Passenger Screening Grows

  • Several industry organizations have recently begun work on proposals that would significantly change how passengers are screened at airport security checkpoints.  Many proposals revolve around a tiered risk system that would divide passengers into three groups – trusted, regular, or risky – and apply varying screening techniques based on the passenger's risk profile.
  • A tiered risk system is favored because it likely would make the airport screening process more efficient, which has been a major goal of airline industry organizations in the face of increased passenger traffic and increasingly onerous passenger screening requirements.
  • The proposed trusted traveler programs would involve passengers undergoing voluntary background checks so that they may be admitted to a "trusted" security lane the next time they travel.  This program might be similar to the existing Global Entry program, which allows travelers to bypass customs lines by submitting fingerprint scans at kiosk stations.
  • The tiered risk system for passenger screening has global and governmental support.  The International Civil Aviation Organization, a United Nations body, has acknowledged that it is considering recommending the trusted traveler program to member states. 
  • Furthermore, John S. Pistole, head of TSA, recently expressed support for a trusted traveler program in his remarks to the American Bar Association.

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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