Peter A. Quinter, Florida Customs LawyerOn September 16, 2009, the Transportation Security Administration (TSA) issued new air cargo screening rules.   The rules are generally well thought out, except for one glaring problem.

Some background first.  After the tragic, terrorist events of September 11, 2001, the U.S. Congress convened a Commission to investigate how it happened and how it could be prevented from happening again. A primary result was the "Implementing Recommendations of the 9/11 Commission Act of 2007 ("9/11 Act").  The amended law at 49 U.S.C. section 44901(g)(1) required all airlines to screen 50% of the cargo on passenger aircraft by February 3, 2009.  The law also required 100% of the air cargo to be screened by August 3, 2010.  The challenge was that with 12 million pounds of cargo that is now transported on passenger aircraft daily, the TSA concluded that airlines by themselves could not achieve the 100% screening requirement.

Hence, the September 16, 2009 Air Cargo Screening Interim Final Rule, effective November 16, 2009, created the certified cargo screening program (CCSP) so that companies other than airlines could be approved by TSA to screen cargo before it was delivered to an airline at the airport to be put in the belly of a passenger plane.  The companies that would screen the cargo would be known as certified cargo screening facilities (CCSF).

The term "screening" is defined as a "physical examination or non-intrusive method of assessing whether cargo poses a threat to transportation security.  Methods include x-ray systems, explosive detection, explosives detection canine teams, or a physical search together with manifest verification."

TSA has an elaborate (read ‘bureaucratic’) system for which screening companies may apply, be reviewed, selected, trained, and finally approved to work with shippers, freight forwarders, and airlines to allow cargo to be placed aboard a passenger aircraft.  My concerns are with new 49 CFR Part 1522 which established a system to authorize TSA-approved ‘validators’ to perform assessments of CCSFs, and with new 49 CFR Part 1549 which provided for a qualifications process for facilities participating in the CCSP.

In summary, TSA selects ‘validators’ who them will visit, review, and qualify applicant CCSFs to be approved to screen cargo.  As stated in the Federal Register on September 16, 2009:  "These validators are responsible for conducting the assessments of the facility seeking certification as a CCSF under part 1549…The CCSF applicants…will pay the validation firm for the validation assessment.  TSA will not charge or establish a fee for that purposes."  In other words, the TSA selects the validator, the validator selects the CCSF, and the CCSF screens the cargo which is then moved to the airline.  To me, there is a glaring problem for anyone seriously interested in air cargo security.

In my opinion, a validator hired by and paid by the applicant for a CCSF has an inherent conflict of interest with the applicant whom she or he is evaluating.  TSA apparently thought of this, and created its own, specific conflict of interest rule which states at 49 CFR 1522.1(b) that a conflict of interest exists "in a situation in which a relationship with, or a financial interest in, the person being assessed may adversely affect the impartiality of the assessment."  Exactly my point!  TSA’s proposed system is like a builder directly handing a suitcase full of cash to the building inspector to approve the certificate of occupancy for the building.  That would be called corruption.

TSA announced this "Interim Final Rule" effective November 16, 2009 because it believes further delay using its cost/benefit analysis would be too costly.  TSA stated that the typical cost scenario is when an explosive device placed in the cargo shipped on a flight in the belly of a plane destroys the aircraft in flight.  It figures that means 128 passengers and 5 crew members dead along with loss of the aircraft.  The loss of aircraft is valued at $22 million, and the monetary loss of life at $771 million for a total of $793 million.

It has been more than 8 years since 9/11/01, and even though $793 million is a huge sum of money, getting it right the first time to prevent a weapon of mass destruction (WMD) exploding aboard an aircraft is more important.  The Validators have not yet been selected by the TSA.  So TSA, my recommendation is take a few more months to iron out the concern that I have identified above.