Customs and International Trade Law Blog : International Trade Lawyer & Attorney : Becker & Poliakoff Law Firm : Customs Law, Border Protection

International passengers at Miami International Airport (MIA) have certainly felt the detrimental effects caused by the sequestration, as thousands have missed connecting flights - because of CBP processing delays.   

The sequestration has created hard caps on the amount of government spending due to the government's inability to compromise on a budget.  Prior to the sequestration, CBP stated that they would ensure that their core mission would not be compromised, and under no circumstances would CBP diminish their commitment to completing their responsibilities.  On March 11, 2013, CBP began sending furlough notices to all of its 60,000 employees as the agency aims to make $754 million in cuts required under the sequestration. The furloughs are set to begin on April 21, 2013 and continue through September 30, 2013. 

These furloughs will...

• put full time employees on unpaid leave for no more than 14 workdays.
• pro-rate furlough time for part-time workers. 
• freeze hiring
• reduce and eliminate overtime and compensatory time

CBP agrees the biggest hit to border security comes from cuts to overtime. CBP will see income cut by 40%. Partly as a result of having to take up to 14 unpaid days off work.

What should importer/exporters and those involved in international trade expect?

Cargo processing during arrivals/departures outside normal business hours may experience delays until the following business morning. This roll over of work may in turn provide for regular cargo processing delays which are expected to take from 30 minutes up to a few hours during regular working hours. The daily tasks completed by cargo processing are not expected to be reduced. However, additional work usually performed during normal overtime shifts will be added to these daily shifts thus providing for extra delays! 

CBP has prioritized perishable goods due to the obvious health risks involved. Agricultural products will also be prioritized to avoid spoilage and delays of these delicate products. The Food and Drug Administration (FDA) has commented that they are not expecting any direct impact to their operations and will immediately notify the industry if they anticipate any negative effects to sequestration. For the Transportation Security Administration (TSA) at Fort Lauderdale Airport (FLL) overtime was immediately ceased, with the exception of security checkpoints. Staff has been kept on to accommodate delayed departing flights. TSA is still evaluating possible furloughs.

For now there are still many what-ifs, and that uncertainty is already taking its toll.

What can be done?  Advise Congress now on how CBP furlough's will negatively impact your business.

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If you travel often, read on, you'll be glad you did. When was the last time you had the ability to go through security WITH YOUR SHOES ON? Without taking out your laptop? WITH your jacket on? Without having to take out your liquids?

If this appeals to you, which it definitely did for me, you'll be pleased to know the Transportation Security Administration (TSA) is partnering with U.S. Customs and Border Protection (CBP) for TSA Pre-Check, an initiative that allows eligible passengers to qualify for expedited screening at participating airports.

U.S. citizens, who are members of a CBP Trusted Traveler program, including Global Entry, SENTRI, and NEXUS are automatically eligible to participate and receive expedited screening benefits for domestic travel through the TSA Pre-Check initiative. TSA Pre-Check benefits include keeping shoes, light outerwear and belts on, keeping laptops in their cases, and leaving the 3-1-1 compliant liquids/gels bag in one’s carry-on during screening through TSA security checkpoints.

Members interested in participating in TSA Pre-Check through their Trusted Traveler program membership must enter their PASS ID into the ‘Known Traveler’ field when booking a flight reservation or saving their PASS ID to their airline’s frequent flyer profile. Members can find their PASS ID either online by accessing their GOES account, or on the back of their membership card in the top-left corner.

When traveling on one of the TSA Pre-Check participating airlines, CBP Trusted Traveler members should remember to provide the airline with their full name, date of birth, and PASS ID exactly as it appears in their CBP Trusted Traveler program online account to ensure they are properly considered for TSA Pre-Check.

To learn more, visit Global Entry or TSA, you'll be glad you did!

Disclaimer, I've been displeased as this is not sure proof. Don't expect it to work 100% of the time, it doesn't... But, when it does, you'll be ecstatic!
 

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On May 16, 2012, the Transportation Security Administration [TSA] announced - starting December 3, 2012, all international passenger air carriers destined for the United States will be subject to 100% cargo screening. TSA’s website advises: “[g]lobal shippers and U.S. importers should contact their logistics partners to determine if these measures may have any impact on their supply chain.” This process requires enhanced screening for shipments designated as higher risk, while lower risk shipments will undergo other physical screening protocols.

How Can Your Supply Chain Remain Streamlined?
There is an Air Cargo Advance Screening [ACAS] pilot strategic plan underway to keep global supply chains efficient. ACAS is a voluntary initiative allowing carriers, forwarders and shippers to submit electronic data about cargo before it is shipped.  TSA and CBP will have a fast and efficient new ways to screen vast amounts of cargo and zero-in more quickly on which specific items require further scrutiny, and which cargo items are cleared to get in the air faster.

Recently, at the AirCargo 2012 conference in Miami, CBP Deputy Commissioner Thomas Winkowski stated “[t]his is our new roadmap. . .this will lead everyone in this room toward a better, more secure way of moving cargo by air. . . To date, we have successfully processed 14 million transactions and proved that the system works.” Of those 14 million transactions, less than one percent required further scrutiny. Winkowski stated “ACAS is a game changer.”

For more information regarding how these changes will affect your company’s global supply chain beginning this December, or updates on the ACAS program’s implementation and how to apply, contact attorney Jennifer Diaz at (305) 260-1053 or JDiaz@becker-poliakoff.com.

Jennifer Diaz is the Chair of the Customs and International Trade Department at Becker & Poliakoff, P.A. She earned her J.D. from Nova Southeastern University Shepard Broad Law Center. Jennifer is admitted to practice law in the state of Florida and is board-certified in International Law by the Florida Bar.

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Our beloved Transportation Security Administration (TSA) has the responsibility of screening passengers to "ensure that certain items and persons prohibited from flying don’t board commercial airliners."  This is accomplished through 43,000 Transportation Security Officers (TSOs) located at 450 airports around the United States.  While I am waiting in line to be screened, there seems always to be one energetic TSO screaming at my fellow passengers to take our shoes off, remove most liquids, take our belts off, take out our laptops, etc.. it is hard to remember that the official Mission of the TSA is to "protect the Nation’s transportation systems to ensure freedom of movement for people and commerce."  I do have one funny story to tell you about the TSA and a certain passenger.

While the TSA regulations specifically prohibit the carrying on board an aircraft, or even into the airport, any weapon or explosive device, a particular passenger had a pepper spray pen with him. The pepper spray pen was not detected by the TSO when the passenger's body and luggage went through those radiation-emitting devices.

That is bad enough, but what the passenger did next was a mistake. After passing through TSA, he then approached the crew of the aircraft at his gate of departure, and handed over the pepper spray pen to the gate agents with some sort of statement that the TSOs did not detect the pen during the screening process.  Predictably, the passenger was then approached by law enforcement, interrogated, and not allowed to fly on that aircraft. The passenger subsequently received a Letter of Investigation from the TSA with the threat of a $11,000 penalty for attempting to compromise a security system utilized by TSA.

Seems to me that the gate agents and TSA should simply have said "thank you" to the passenger for turning over the pepper spray pen, rather than going on a witch hunt.  Perhaps the lesson the TSA wants to get across to people is not to tell the truth. If the passenger had kept his mouth shut, he would have kept his pepper spray pen, not missed his flight, and not have to pay a potential penalty of $11,000.  Plus, I guess now the TSOs will start yelling at passengers that the list of prohibited items includes pepper spray pens.

One more thing.  While it is prohibited to carry on board an aircraft any pepper spray, you may still transport it in your checked luggage, according to the TSA website. 

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 On Thursday, March 10, 2011, from 12 noon to 1:30 p.m. EST, Marc Rossi, Chief, Cargo Screening, TSA Headquarters, and Peter Quinter, Chair, Customs and International Trade Department, will be the speakers at a webinar hosted by the National Customs Brokers and Forwarders Association of America.  Shippers, indirect air carriers (IACs) or freight forwarders, and international airlines will benefit from learning about the newest policies and requirements by the Transportation Security Administration (TSA).  Sign up here to take advantage of this webinar opportunity.

A quick chronology is important.  On Aug. 3, 2007, President Bush signed into law the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act). The 9/11 Act required TSA to establish a system for the air cargo industry to screen 100% of cargo transported on passenger aircraft in the United States at the piece level.  That goal was achieved in August 2010.

This webinar is a natural follow-up to my April 7, 2010 blog post entitled "TSA 100% CARGO SCREENING RULE EFFECTIVE AUGUST 1, 2010."  It is just over 6 months since the TSA had implemented its 100% cargo screening requirement, so it's time for a check-up. While Marc Rossi will focus on the operational requirements of 100% air cargo screening as part of the Certified Cargo Screening Program (CCSP), I will focus on the legal requirements of the TSA for IACs, as well as explain how to respond to a TSA Letter of Investigation and a TSA Notice of Proposed Penalty for any alleged failure to comply with some TSA requirement. 

The 100% Air Cargo Screening by TSA - How's it Going 6 Months Later? webinar is sponsored by the National Customs Brokers and Forwarders Association of America (NCBFAA), and you may participate in the webinar by registering on-line, or calling (202) 466-0222 .

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I read a fascinating article entitled "HOMELAND SECURITY HASN'T MADE US SAFER," written by Anne Applebaum, a columnist for the Washington Post and Slate.  It was in the January/February issue of Foreign Policy magazine.  The article criticized the massive spending of time and money by the U.S. Department of Homeland Security.  Ms. Applebaum aimed her barbs right at the Transportation Security Administration (TSA) with the comment:  "As for the TSA, I am not aware of a single bomber or bomb plot stopped by its time-wasting procedures."

I started thinking about it, and even as a pretty well informed customs and international trade attorney, I could not recall a single incident either.  I have seen the indignities of TSA personnel at the airport force handicapped and elderly people out of their wheelchairs.  I have also been the victim of TSA officers groping around my private areas during one of their random, 'enhanced pat down' searches.  For a rollicking good laugh, I encourage you to read the official TSA Blog.  People say the strangest things about their air travel experiences to the TSA from the supposed privacy and safety of their computers.

The TSA submitted a budget request of $8.1 billion for fiscal year 2012. With the billions of dollars spent by both the Bush and Obama Administrations over the past 10 years in the 'War on Terrorism' and in support of 'homeland security,' the question of whether or not the TSA's 43,000 trained and certified Transportation Security Officers make us safer through its passenger and baggage screening procedures is still debatable.

I would still like to meet the idiot savant who came up with the 3-1-1 TSA rule about carrying liquids aboard an airplane.  I can't figure out why we had the technology to send men to the moon in 1969, but in 2011 still have to take our shoes off before walking through a TSA x-ray machine.  I guess the silver lining in all this is that, relatively speaking, the air and ocean cargo screening procedures by the TSA are much better thought out and reasonable.

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On January 11, 2010, I posted "You Ready for 100% Cargo Screening by the TSA" because at that time, the international aviation industry was not prepared for the implementation on August 1, 2010 of the TSA mandated 100% screening of air cargo aboard passenger planes.  The date is fast approaching, and shippers, indirect air carriers (freight forwarders) and airlines which need to get "on board" should attend an upcoming seminar.

The Council of Supply Chain Management Professionals South Florida Roundtable is hosting an excellent, informative seminar the morning of Friday, May 7, in Ft. Lauderdale, Florida. Presenters includes the Assistant Branch Chief of TSA from its Headquarters in Arlington, Virginia, and knowledgeable professionals who have already led the changes at American Airlines, DHL, and others. The seminar will focus on the practical steps that shippers, IACs, and air carriers must know, including how to comply with TSA's Certified Cargo Screening Program (CCSP) and become a Certified Cargo Screening Facility (CCSF).  Registration for the seminar may easily be done on-line.

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I just returned from a wonderful trip to both Italy and Israel, and I can't help but compare our Transportation Security Administration (TSA) procedures to that of other countries.  In both Italy and Israel, I did not have to take off my shoes or follow the all too familiar 3-1-1 TSA enforced liquid policy. Yet, on April 2, 2010, Department of Homeland Secretary Napolitano announced another set of security measures that hassle passengers who travel by air.

As you may recall, TSA implemented the 3-1-1 policy in response to the thwarted liquid explosive bomb plot in the United Kingdom in August of 2006. The current TSA 3-1-1 rule for carry-on bags is that liquids and gels must be in a 3.4 ounce (100ml) bottle or less (by volume) , put in a 1 quart-sized, clear, plastic, zip-top bag, and that there is only 1 bag per passenger placed in screening bin. I would really like to know the scientific basis for why 3.4 ounces, and why a 1 quart-sized bag?  Who comes up with this stuff at TSA or DHS? And if it is so necessary to protect the traveling public, why does neither Italy or Israel follow the same rules since they both have far more experience with terrorism than the United States?

I am a customs and international trade lawyer, not a security expert. I don't pretend to know the difference between a millimeter wave or backscatter body imaging system, I just am not thrilled about taking my shoes off or separating my liquids in my carry-on bag when going through TSA if it is not absolutely necessary (as it is not in both Italy and Israel). Civil libertarians are opposed to the new, anatomically revealing technology on all travelers, and consider the body scanners an invasion of privacy that is akin to a strip search. The devices detect objects concealed under clothes and can produce detailed images of the body.  According to Jay Stanley, public education director for the technology and liberty program at the American Civil Liberties Union (ACLU), he sarcastically announced that "We would certainly all be safer on airlines if we all flew naked."

I am all for TSA's risk management approach to aviation safety, and I sure like to know that when I get on an airplane, it will safely take me from one city or country to another.  In Israel, I saw exactly the same x-ray machines as we have in the United States, but I did not see in Israel or Italy any canine teams or the use of the very controversial advanced imaging technology that the TSA is now promoting in the United States. So, I ask the question again, why does the TSA think they know better how to handle aviation safety than the law enforcement agencies in Italy and Israel?

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In my October 5, 2009 post entitled "TSA's New Air Cargo Screening Rules Have A Serious Flaw," I commented on the Air Cargo Screening Interim Final Rule, which created the certified cargo screening program (CCSP).   CCSP authorizes companies other than airlines to be approved by the Transportation Security Administration (TSA ) to screen cargo before it is delivered to an airline at the airport to be put in the belly of a passenger plane. As of February 3, 2009, U.S. airlines and foreign air carriers must have screened at least 50% of its cargo transported on passenger aircraft. That number goes up to 100% as of August 3, 2010.  The problem is that even as August 3, 2010 quickly approaches, the TSA, the International Air Cargo Association (TIACA), and other prominent organizations have warned that the air cargo industry needs to do more to be ready.

On February 8-9, 2010, in Miami, Florida, The National Cargo Security Association (www.TNCSA.org) is hosting a Florida Cargo Security Conference. Speakers include managers of TSA' Air Cargo Division from its national headquarters in Arlington, Virginia, and TSA managers in Florida, the Director of the Air Forwarders Association, nationally renowned security and legal experts, and an FAA Senior Special Agent who enforces dangerous goods compliance.

Be advised that the air cargo screening rule only applies to (1) air cargo, (2) loaded on board an aircraft in the United States. The Rule also does not apply to all-cargo aircraft (freighters).  However,one of the primary differences between now and August 3, 2010 (when the 100 percent deadlines hits full force) is that the stacked and shrink-wrapped shipments known as ULDs — basically numerous smaller packages stacked and wrapped on pallets for shipments — will have to be broken down so that the packages can be screened individually and then restacked.

TIACA has expressed some of its concerns when it recently stated "to avoid widespread delays, greater participation in the Certified Cargo Screening Program (CCSP) is needed." An excellent Powerpoint introduction to the TSA's CCSP is found at theTIACA website.

Shippers, indirect air carriers, airlines, and other persons involved in the international supply chain should attend the Conference to learn more about the air cargo screening requirements.  Consequences of the new 100% screening rule surely will be (1) cargo that is delayed or not shipped at all, and (2) penalties against companies by the TSA for non-compliance.

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Effective August 20, 2009, the new Transportation Security Administration (TSA) regulations increased the maximum amount of its monetary penalties against aircraft operators and freight forwarders/indirect air carriers (IACs) for violations of the Transportation Security Regulations.  TSA also made significant change to its Investigative and Enforcement Procedures in 49 CFR Part 1503.

Following the tragic events of September 11, 2001, when the United States was attacked by terrorists, the U.S. Congress and President George Bush quickly passed the Aviation and Transportation Security Act of 2001 which created the Transportation Security Administration (TSA). The primary responsibilities of the TSA was to ensure the security of passengers and cargo in air transportation.  Many responsibilities formerly handled by the Federal Aviation Administration (FAA) were transferred to the TSA.  After moving from the U.S. Department of Transportation to the U.S. Department of Homeland Security, as part of the Homeland Security Act of 2002, the TSA had its first Administrator to lead the agency, and moved into its current physical headquarters office in Arlington, Virginia.

In a critical U.S. General Accountability Office report entitled "Aviation Security: Vulnerabilities and Potential Improvements for the Air Cargo System," dated December 2002, the GAO stated:
 

U.S. air carriers transport billions of tons of cargo each year in both passenger planes and all-cargo planes. Typically, about one-half of the hull of each passenger aircraft is filled with cargo. As a result, any vulnerabilities in the air cargo security system potentially threaten the entire air transport system.  Numerous government and industry studies have identified vulnerabilities in the air cargo system. These vulnerabilities occur in the security procedures of some air carriers and freight forwarders and in possible tampering with freight at various hand-offs that occur from the point when cargo leaves a shipper to the point when it is loaded onto an aircraft. As a result, any weaknesses in this program could create security risks.

It was a serious and urgent challenge for the TSA to correct these weaknesses.

The Transportation Security Regulations, 49 CFR Parts 1500 to 1572, were issued on July 23, 2002, and implemented the various laws that created and outlined the functions and expanded powers of the TSA.  Important operational regulations are Part 1542 (Airport Security), Part 1544 (Aircraft Operator Security), Part 1546 (Foreign Air Carrier Security), and Part 1548 (Indirect Air Carrier Security) whereby the TSA sets forth all the many new and comprehensive requirements that attempt to prevent any person, luggage, provisions, or cargo getting aboard an aircraft that could cause it to crash.

What is most important for this discussion is the amended TSA regulation at 49 CFR Part 1503 (Investigative and Enforcement Procedures) whereby the TSA describes how and when it may issue a monetary civil penalty against an airline or IAC (a.k.a. "freight forwarder") for a violation of the Transportation Security Regulations.

In the new TSA regulations, the TSA announced that certain penalties that previously were at a maximum of $25,000 per violation are now $27,500, and those that were at a maximum of $10,000 per violation are now $11,000.  More importantly, the TSA announced:  "TSA may assess a maximum penalty per case of $50,000 if the violation is committed by an individual or small business.  TSA may assess a maximum penalty amount per case of $400,000 if the violation is committed by a person other than an individual or small business."  Those are big numbers by any count in the airline and cargo transportation business.

Often, a monetary civil penalty is issued months after the violation actually occurred. Typically a TSA Inspector visits the airline or warehouse of an IAC unannounced to verify that it is complying with all of the relevant TSA regulations.  If a violation is discovered, the TSA Inspector issues a Letter of Investigation (LOI) to the alleged violator, and allows 30 days for a written response. If the response is not forthcoming or is not satisfactory to the TSA Inspector, the case is referred to an attorney for TSA in its Office of Chief Counsel.  The TSA attorneys are located at all major international airports in the United States.

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On 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.

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