The Legal Corner, June 2014 Issue:
The general population of our country takes a varied attitude about “security,” either underestimating the need for mandatory expenditure as evidenced by Congress’ slashing of requested Budget numbers, or criticizing the lack of adequate spending. However, many experts, as well as the U.S. Government General Accountability Office (GAO), continue to insist that the appropriate risk/reward analyses have not been done to justify either position.
The Department of Homeland Security (DHS) and its Agencies have yet to perform, on any regular basis, evaluations of “the risk posed by foreign ports that ship cargo to the United States…since 2005.” The risk model that had been proposed was never implemented because of budget cuts. And additionally it was intended for only ocean shipments. Air Cargo security remains a “poor sister.”
Similar to these ocean shipment deficiencies, Air Cargo Security Procedures remain without the needed risk analysis. There have been no objective risk analyses published for public consideration to evaluate the effectiveness of current procedures and Congress seems to be “rubber stamping” budget requests, even if approved, without insisting on proof that the security measures in place are effective. It would appear that if objective criteria were available, then DHS requests for additional funding could be properly reviewed by Congress for its appropriate implementation.
Granted that although cooperation from our international trading partners is often difficult or impossible to obtain, we have neglected to use our substantial trade leverage to insist on the necessity of cooperation; without that cooperation, “supply chain” security effectiveness is questionable.
GAO emphasizes that, at this point, “Customs officials must be present in each CSI (Container Security Initiative) port to view scanned images because of certain laws prohibiting that Government’s Officials from transmission of those images to another Government’s Customs officials.” These impediments seem to suggest that only Commercial pressure on private industry will have the needed direct impact to insure proper implementation of supply chain security measures.
A final note concerns the recent FDA proposals which, if executed and enforced, would have a major impact on food transportation. The proposal would mandate regulations relating to the:
- “design and maintenance of transportation equipment;
- safety measures during transportation;
- cleaning, maintenance and temperature controls;
- compiling written procedures and records; and
- waivers, if FDA determines that a waiver will not result in unsafe food.”
The comment period on this proposed rule was scheduled to end on May 31, 2014.
We will have to be vigilant to keep abreast of these and all other security provisions impacting the import/export community.
by Carl R. Soller
McBreen & Kopko
Carl R. Soller, Special Customs, International Cargo and Regulatory Compliance Counsel to McBreen & Kopko is counsel to the JFK Airport Customs Brokers and Freight Forwarders Association and a recognized expert in his practice areas. He and his firm concentrate their Air Cargo Practice in all business and regulatory matters on a nationwide basis. He offers advice on supply chain security and its related Government Regulations to the Air Cargo Community as well as advice and a vast range of assistance to importers and exporters of all kinds of consumer goods. He can be reached at (646) 502-5791 or csoller@mklawnyc.com