House Passes Air Cargo Security Bill

On January 9, 2007, the House of Representatives passed H.R.1, “Implementing the 9/11 Commission Recommendations Act of 2007,” Section 406 of which is entitled “Inspection of Cargo Aboard Passenger Aircraft.” The Bill has been received in the Senate and was referred to the Committee on Homeland Security and Governmental Affairs, where it currently remains.

As currently drafted, Section 406 requires that within three years all cargo on passenger aircraft be inspected for explosives to the same degree that checked baggage currently is inspected. Specifically, the Bill directs the Secretary of Homeland Security to establish a system to inspect 100 percent of “cargo transported on passenger aircraft operated by an air carrier or foreign air carrier in air transportation to ensure the security of all such passenger aircraft carrying cargo.” The minimum standards to be implemented require that the “equipment, technology, procedures, and personnel [used] … provide a level of security equivalent to the level of security for the inspection of passenger checked baggage.” The Bill further allows for the phasing in of the enhanced security inspection features for air cargo according to the following schedule:

• 35 percent by the end of fiscal year 2007
• 65 percent by the end of fiscal year 2008
• 100 percent by the end of fiscal year 2009

Closing the Gap in Security

Interestingly, the Bill attempts to close an apparent gap in security protocol by requiring that no later than 120 days after the enactment of the Act, the Secretary of Homeland Security shall submit an “assessment of each exemption granted for the inspection of air cargo and an analysis to assess the risk of maintaining such exemption.” The assessment shall include:

• the rationale for the exemption
• the percentage of cargo not screened as a result of the exemption
• the impact of each exemption on aviation security
• the projected impact on the flow of commerce if the Secretary eliminates the exemption
• the plans and rationale for maintaining, changing, or eliminating each exemption

Carriage of cargo by air generates an estimated $4.7 billion in annual revenues for the U.S. passenger airlines and $21.1 billion for all-cargo airlines and directly accounts for more than 100,000 U.S. jobs. It is no surprise, therefore, that the passage of the Bill by the House has not gone without its critics.

The ATA’s View

The Air Transport Association (ATA) airline members, who transport more than 90 percent of all U.S. airline passenger and cargo traffic, have voiced objections to the proposed enhanced measures. ATA Chief Operating Officer and Executive Vice President John Meenan issued the following statement:

The airlines have been proactive, on a voluntary basis, in working with the Transportation Security Administration (TSA) to implement a number of initiatives designed to enhance cargo security. ATA members’ top priority is to ensure the safest and most secure transportation system. We are firmly committed to supporting a security solution built on a framework that identifies and prioritizes risks, yet one that is practical and cost-effective.

The ATA opposes mandating the physical inspection of 100 percent of air cargo carried on passenger airlines. The ATA believes that such a policy would “undermine the viability of passenger air service, dramatically increase costs for air cargo shippers, and jeopardize cargo services to many small communities.” The ATA also believes that the “just-in-time inventory strategy that is indispensable to U.S. industries would be thrown into disarray.” The ATA instead champions “a multi-layered, risk-based approach to maintaining the security of air cargo” – one that identifies potentially risky shipments and applies layers of security at various points throughout the supply chain. The ATA believes that such measures would balance the need and desire for security in air cargo with the needs of the U.S. economy.

On January 8, 2007, the ATA sent coalition letters to the House Committee on Homeland Security and the Senate Committee on Commerce, Science and Transportation. In its letters, the ATA reiterated its commitment to security and safety and preference for “reasonable risk-based measures to strengthen the security of cargo on passenger airlines” in lieu of the broad-sweeping measures proffered by the Bill. Among other measures, the ATA supports the following:

• increasing the number of canine teams in the TSA’s Explosive Detection Canine program, which the ATA contends are extremely effective, available and cost-efficient because canines can screen pallets and loose pieces of freight, and screen large quantities much more quickly than any other methods
• establishing a voluntary “certified shipper” program that would require the participating shipping companies to comply with supply chain security criteria established by the TSA, while non-participating shipping companies would be subjected to higher levels of security
• significantly increasing Congressional funding for research and development, and advanced scanning technologies capable of scanning palletized cargo in the operational environment
• securing Congressional funding to pay for the equipment and the personnel instead of passing the cost on to businesses and consumers in the form of new taxes and/or fees

Whether the enhanced security measures as outlined in H.R.1, Section 406 are passed by the Senate and enacted into law remains to be seen. Indeed, Homeland Security Department officials concede that there is no “proven” technology for such comprehensive cargo screening. In addition, balancing the costs of implementation might prove prohibitive given that the cost for the comprehensive screening of air cargo over the next 10 years is estimated to be $3.6 billion.