Trade Groups Call for Repeal of 100% Cargo Inspection Mandate as DHS Authorizes Another Delay

Dozens of industry organizations called on Congress to repeal a law that requires 100 percent scanning on U.S. bound maritime cargo containers in a June 2 letter to Department of Homeland Security (DHS) Secretary Jeh Johnson. While DHS aims to comply with the law, another two-year extension is necessary due to financial and practical constraints, Johnson told the House Judiciary Committee on May 29 (here). The industry signatories, made up of the National Customs Brokers & Forwarders Association of America, the National Retail Federation, the American Apparel and Footwear Association and 67 other organizations, also expressed support for the two-year extension to the implementation deadline.

Johnson said he recently told Congress "how I'm exercising my authority under the law to waive application of the law for the next two years" in a letter to its members. That letter also includes "some of the steps we'll take for a plan to try to get us there, in other words -- including raising the percentage of cargo that is a scanned, to move in the right direction on this, and demonstrate we're making our best efforts at trying to comply," he said. DHS did not make Johnson's letter available.

DHS delayed implementation of the law in 2012 as well under former DHS Secretary Janet Napolitano (see 12061926). CBP uses other methods for monitoring high-risk containers, such as the Customs-Trade Partnership Against Terrorism and Importer Security Filing, said DHS at the time. Johnson’s call for additional delay before the House Judiciary Committee echoes testimony he delivered in February before the House Homeland Security Committee (see 14022702).

Lawmakers passed the law in 2007 at a time of heightened security concerns following the 9/11 attacks, said Jon Kent, a lobbyist with Kent & O'Connor. “The law was never founded on a risk based approach. It just came out because we were back in the days where we wanted to eyeball everything,” said Kent in an interview. “A responsible Congress would go back in sort of a deliberate way and review the effectiveness of the program accordingly. But who knows what Congress can do at this point because of its dysfunction.”

The law lacks guidance on implementation, and lawmakers have yet to determine the resource and structural details of implementation, said the industry letter. "The statutory provision calling for 100% container scanning has always been, and remains, impractical and does not actually improve security,” the letter said. “If implemented, this provision would have a significantly negative impact on global commerce and cause significant conflict with the governments of our foreign trading partners, many of which have stated their opposition to the requirement previously.” The groups sought additional information in a number of areas:

• The statute does not define what “scanned” means. For example, does scan mean simply taking a reading or image of a given container, or does it also require an analysis of the reading or image to determine if the container may be released or held for further inspection?
• Without such analysis, the “scan” would be pointless, yet the statute is silent on this point, as well as the key question of who is to perform such analysis. What resources would CBP’s National Targeting Center require to analyze scans taken of the 10-plus million maritime cargo containers that are bound for the United States each year?
• What are the standards for the applicable scanning technology?
• Who is to pay for the capital cost of the scanning equipment?
• Who is to operate, maintain and monitor the equipment? Who is to pay for the operation and maintenance of the equipment?
• What protocols are to be used in the foreign ports when a container is scanned?
• What is the role of the Customs and other relevant governmental authorities in all those nations around the world that ship goods to the United States?
• Does DHS have the consent of these foreign governments to such a mandatory regime?
• What would the United States’ response be if and when foreign governments insist on a reciprocal or “mirror image” requirement that all U.S. containerized exports be scanned?