U.S. importers are learning just how hard it is to kill federal regulation, even when the agency in charge of implementing a law calls it costly and unfeasible.
Shippers this month failed to convince members of Congress to scrap legislation requiring all containers to be scanned overseas before being allowed into U.S. ports. The good news for shippers is the 100 percent container scanning rule won’t take effect next month as planned, because the Department of Homeland Security will exercise an option to push back the deadline two years.
“Based on engagement with industry and foreign partners, as well as the results of several pilots, DHS has concluded that 100 percent scanning of incoming maritime cargo is neither the most efficient nor cost-effective approach to securing our global supply chain and has extended the implementation of the 100 percent scanning mandate as allowed by the SAFE Port Act,” DHS spokesman Matthew Chandler said.
Though shippers will gain some short-term relief, the mandate isn’t going away. The authors of the original vehicle for the legislation, Sen. Susan Collins, R-Maine, and Sen. Patty Murray, D-Wash., in 2011 failed in their bid to push back the scanning deadline, calling it a costly hindrance to trade that provides a false sense of security. Congress as a whole appears to realize the 100 percent scanning mandate isn’t workable, noting in the DHS fiscal 2010 appropriations bill that the requirement, even if possible, “would come at an unacceptably high cost monetarily and in the displacement of other efforts.”
But such criticism isn’t enough to kill the mandate. “Politics make (eliminating the requirement) difficult,” said Chris Koch, CEO and president of the World Shipping Council. “This was enacted as a political measure to begin with.”
The mandate, part of the 9/11 Act, was tacked onto the 2006 SAFE Port Act as a way for Democrats to flex their security muscle in the face of Republican criticism. The result has been that despite the shipping industry calling the mandate impossible to achieve, few legislators want to risk being accused of being lax on port security. Knowing the DHS would push off the deadline, the House Committee of Homeland Security took the easy route on June 6 by ignoring shippers’ pleas to include language blocking the mandate in the Securing Maritime Activities through Risk-Based Targeting for Port Security, or the SMART Port Security Act, a reauthorization of the SAFE Port Act.
Although most retailers believe the requirement will continually be postponed, the hanging threat isn’t helpful, said Jonathan Gold, vice president of supply chain and customs policy at the National Retail Federation. Agency resources deployed toward pilot programs for 100 percent scanning could be better directed toward initiatives that improve security and are feasible, he said. DHS estimates only 5 percent of inbound containers are scanned today.
The agency, however, has improved port security in other ways. Chandler pointed to the use of the Customs-Trade Partnership Against Terrorism, a voluntary supply chain security program, and the Importer Security Filing program, better known as “10+2,” as ways the agency uses manifest and import data to target suspicious shipments. Security also has been tightened through the Container Security Initiative, in which overseas customers look out for suspicious shipments before they are loaded on a vessel.
Air cargo shippers at least have the luxury of knowing when all cargo arriving from international passenger flights will begin to be screened. The Transportation Security Administration last month set a date of Dec. 3 to begin screening approaches on a per-shipment basis, allowing lower-risk cargo to be screened faster and save shippers money. The agency will be a year late in meeting its original deadline, because reaching agreements with foreign partners has been more difficult than TSA Administrator John Pistole expected.
Don’t be surprised in two years when the next DHS chief cites a similar reason for pushing the deadline back again.