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Feds Seeking New Ideas to Achieve 100 Percent Cargo Container Scanning

Tuesday, May 31, 2016
Sandler, Travis & Rosenberg Trade Report

The Department of Homeland Security recently extended for a third time the deadline for complying with a congressionally mandated requirement of 100 percent scanning of U.S.-bound maritime cargo containers. However, DHS is also soliciting new ideas on how to meet this requirement, an effort that has some business groups concerned.

The SAFE Port Act of 2006 requires all maritime cargo containers admitted into the U.S. to be scanned through non-intrusive inspection and radiation detection equipment in a foreign port prior to being loaded on a U.S.-bound ship. The original deadline for achieving this goal was July 1, 2012, but DHS has now invoked three successive two-year waivers, the latest running through 2018. Officials have said compliance is virtually impossible with available resources and technology and conflicts with the department’s general approach to risk management, which seeks to focus scarce inspection resources on the highest-risk containers. Most recently, DHS Secretary Jeh Johnson told Congress in May 2014 that the department’s “ability to fully comply with this unfunded mandate of 100 per cent scanning, even in the long term, is highly improbable, hugely expensive and, in our judgment, not the best use of taxpayer resources to meet this country's port security and homeland security needs.”

Nevertheless, DHS recently announced that it is seeking input by June 6 on new programs, capabilities, models, strategies or approaches that could be used to make progress toward 100 percent scanning for both containerized and non-containerized (e.g., dry/liquid bulk, breakbulk, roll-on/roll-off, etc.) maritime cargo bound for the U.S. Recommendations may be either near-term solutions that are fast, low-cost, easy to implement and yield immediate payoffs, or longer-term solutions that may require some additional development. DHS is particularly interested in solutions that build on existing programs, such as the Customs-Trade Partnership Against Terrorism, and leverage private sector resources and expertise. The desired outcomes are to increase the amount of U.S.-bound maritime cargo scanned, improve global radiological/nuclear detection capability and capacity, and reduce nuclear and other radioactive materials out of regulatory control in the global maritime shipping environment.

Submissions will be reviewed during the summer and fall and additional information may be requested during that time. There will be further discussion of a limited number of well-qualified submissions in late 2016 and any viable solutions could be tested in real-world operational environments in mid-2017.

Trade and business groups have long opposed the 100 percent scanning mandate as impractical, ineffective and a danger to global commerce, as illustrated by a series of pilot tests. A letter currently being drafted on behalf of many such groups reiterates that position and also expresses concern about some of the issues raised in DHS’s request for information, particularly a potential expansion of the mandate to non-containerized cargo and the search for “quick wins.” The letter again urges the White House to recommend that Congress re-evaluate the 100 percent scanning mandate and instead focus on “practical supply chain security solutions.”

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