A new low

A new low

Not that we needed further evidence in the current partisan political environment, but we are witnessing a complete breakdown in responsible policymaking in Washington. The 100 percent container-scanning bill that seemed headed for likely passage and signature by the president when this column went to press is an example. This isn't just irresponsible policymaking, it's faux policymaking; if this bill does become law, in all likelihood it will never be implemented.

Don't point fingers at the trade community. They were never asked for their opinion. Implementing the 9/11 Commission Recommendations Act of 2007, which includes the 100 percent scanning requirement, will have been passed without ever receiving a hearing. It was drafted and railroaded through Congress by the Democratic leadership in order to one-up the president on a highly sensitive issue of homeland security.

The input of legislators such as Sen. Susan Collins, R-Maine, who have worked hard to create legitimate container security policies, in the end were all but ignored.

Specific language on scanning is so thin that every major question surrounding its implementation is left to the imagination. It simply says that by 2012, "A container that was loaded on a vessel in a foreign port shall not enter the United States (either directly or via a foreign port) unless the container was scanned by non-intrusive imaging equipment and radiation-detection equipment at a foreign port before it was loaded on a vessel."

That begs the question: What is this bill intended to do, improve U.S. security or score political points for Democrats? The answer seems obvious. If this were really about security, that is, if it were debated and considered in the context of the multipronged and successful container security strategy implemented since Sept. 11, it wouldn't have progressed nearly this far and certainly would never be within sight of becoming law. Why? Because an endless list of questions would have been raised that would have given any reasonable legislator pause for concern.

Questions such as what happens if a major trading partner like China feels its own security system is good enough and doesn't want us doing scanning in their country? Do we stop accepting containers from China? China accounted for 45 percent of all U.S. import loads in 2006, according to PIERS Global Intelligence, sister company of the JoC.

Solutions? What happens if a foreign government demands reciprocity; are we prepared to allow scanning on all export containers? Who will buy, pay for and operate the scanners? What happens once the data is collected? Is it OK if foreign marine terminals conduct the scanning - terminals such as DP World, the operator of many facilities where U.S.-bound containers are loaded? Can the Department of Homeland Security, which strongly opposes 100 percent scanning, be coerced into implanting a law it is fundamentally opposed to?

Is such a heavy-handed policy really needed when Congress has already passed the 2002 Maritime Transportation Security Act, the 2006 SAFE Port Act, and when other policies such as the Customs-Trade Partnership Against Terrorism, the 24-hour rule, the Container Security Initiative, the "10+2" program and an extensive radiation screening rollout at U.S. ports are already in effect or in the process of being implemented? You get the point; the bill has no answer for any of these questions.

"The idea that the United States is going to mandate to the globe how to practice supply-chain security doesn't make a lot of sense," said Al Thompson, vice president for global supply-chain policy at the Retail Industry Leaders Association.

A way around the law will eventually be found. The deadline for 100 percent scanning is five years away, and the bill appears to allow the secretary of homeland security to extend that deadline if scanning technology isn't up to the task and if implementation "will significantly impact trade capacity and the flow of cargo."

Eventually, this legislation may be seen as a legacy of a highly partisan, pre-presidential and congressional campaign environment that in hindsight doesn't make sense.

"A lot can happen in five years," said Jon Kent, the Washington representative of the National Customs Brokers and Forwarders Association of America. "Maybe it will become clear to policymakers and regulators that the technology and practicality is there or that it's not there, and then make allowances."