Air Cargo Security Requirements Re: TSA Comments of BAX Global Inc.

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Jasmine Reeves
5 years ago
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1 Air Cargo Security Requirements Re: TSA Comments of BAX Global Inc. These comments are submitted on behalf of BAX Global Inc. (BAX). One of the world's leading international freight transportation and supply chain management companies, BAX is a $2 billion company that offers multi-modal logistics management through a global network of nearly 500 offices in 133 countries and over 10,000 employees. Many of the world s largest companies use BAX to manage their supply chains. BAX specializes in managing the movement of heavyweight packages and cargo of all shapes and sizes on a business-to-business basis. The company offers expedited delivery and airfreight, ocean forwarding, customs brokerage, documentation and banking services across the globe. The company's North American expedited transportation system uses allcargo aircraft almost exclusively and an extensive ground network. For transporting airfreight internationally, BAX primarily uses cargo space on commercial airlines, including on some passenger aircraft. With the broadening of the definition of indirect air carrier (IAC) contained in the November 10, 2004 Notice of Proposed Rulemaking (NPRM), BAX is among the largest IACs in the United States. BAX welcomes the NPRM as an important step toward enhancing the security of the airfreight industry. It makes a laudable effort to codify the product of the close working relationship TSA has developed with the industry, primarily through the work of the Aviation Security Advisory Committee s air cargo security working group, and will result in many improvements in the IAC Standard Security Program. BAX is submitting these comments to help improve the rulemaking by seeking clarity in some of its requirements and ensuring that the proposed measures address the specific terrorist risk faced by the industry without imposing additional measures that will impede the airfreight industry s economic efficiency. Need for Continuous Coordination Of greatest concern to BAX is that TSA needs to be aware of the tremendous impact that the proposed expansion of the definition of IAC and the addition of new security requirements will have on the operations of major IACs. With IACs becoming a full partner in securing the entire air cargo industry, major IACs must be accorded the type and level of liaison that TSA has accorded air carriers through its Principal Security Inspector (PSI) program. BAX s operations are immensely

2 complicated. In order to remain in compliance with the regulations and its security program, and to respond to emerging and imminent security threats, BAX and other major IACs must have a point of contact at TSA on a daily basis at least equivalent to the PSI of a major direct carrier. Application of the Security Threat Assessment We fully agree that people who work around cargo aircraft or those who load or unload cargo aircraft should be subject to a security threat assessment. As drafted, however, the requirement for security threat assessments is far broader and greatly underestimates the complexity of the air cargo industry. For IACs, proposed section would require a security threat assessment to be conducted on individuals having unescorted access to cargo, but provides no further guidance on the meaning of escorted, access or cargo. If the proposed rule intends to incorporate the definition of cargo in 49 C.F.R , which it does as presently drafted, then it encompasses any property tendered for air transportation accounted for on a waybill, and All accompanied commercial courier consignments, whether or not accounted for on an air waybill. Use of this definition in the context of limiting access to cargo would require enormous changes in the way the airfreight industry works with little or no actual gain in security. The tendering of an air waybill cannot realistically be the moment when security measures must commence in the handling of cargo because the issuance of the waybill may have little or no temporal connection to the actual movement of the cargo. Airfreight moves from origin to destination in a variety of ways. The cargo might be delivered by truck to an airfreight station by the shipper or a third party common carrier, or the air cargo carrier, an IAC or one of their contractors, might pick it up from the customer s place of business. In the case of a multi-modal transportation company like BAX, airfreight is likely to arrive at its facilities mixed with freight to be shipped by truck, rail or sea. It is then likely to be consolidated with other airfreight and may well be transported to another facility for reconsolidation before eventually arriving at an airport to be loaded on to an aircraft. If the routing of the air shipment is indirect, the freight might need to be taken to yet another facility for reconsolidation, possibly at an off-airport location, before continuing to its destination. It is common that a different carrier will handle the cargo on each leg of its journey. Finally, upon reaching the end of its air journey, it will be consolidated for delivery with other freight, possibly several times before reaching its final destination. As written, the NPRM would appear to require the IAC to ensure that its employees, agents and contractors obtain a security threat assessment before they can in anyway access the cargo at any time from point of origin to point of delivery. This is a wholly unrealistic expectation given the way cargo moves through the system. Many IACs never even see the cargo they ship, as TSA acknowledges. See proposed section (b)(iii). Even though BAX handles most of its cargo consolidation itself at its stations and hubs, the cargo arrives at those locations in many ways: it may be picked up by a BAX employee or a BAX contractor at the customer s place of business, or customers may drop-off the cargo directly or a common carrier may deliver it. Indeed, it is possible that the cargo might pass through the hands of several common carriers before it eventually comes under BAX s control. 2

3 Moreover, the concept of access appears to derive from other TSA-required security programs that are based on geography. Everywhere else in the aviation security regulations when escorted or unescorted access are mentioned, the terms are used in relation to an area (i.e., security identification display area (SIDA) or secured area access under 49 C.F.R ). Cargo, however, consists of things; things that move often through unsecured areas. It is easy to understand when a person has access to an area. It is not so clear when someone has access to a thing. For example, when cargo is in a crate, box or other container, does a person who can touch or handle the container have access to the cargo? Does it make a difference if the box or other container has tamper-evident seals and the integrity of those seals is checked prior to loading the cargo on an aircraft? If cargo is in a warehouse, must every person having access to that warehouse have a security threat assessment or otherwise be escorted even if they do not in any way handle the cargo? The proposed rule provides no answers. The proposed rule also does not indicate who can escort a person who needs to access cargo but who has not been subject to a security threat assessment. We presume than anyone who has been assessed may serve as the escort, but the rule needs to be revised to make this clear. As presently worded, the proposed rule could be interpreted to cover not only those directly involved in the handling of air cargo at airports, but all the delivery and pick-up employees and contractors of IACs like BAX, and integrated all-cargo carriers like UPS and Federal Express. If that is the covered population, the number of persons subject to assessments is likely to be several hundred thousand more than the 63,000 that the NPRM cites as the basis of the economic analysis of the security threat assessment requirement. An error of that magnitude requires a careful reassessment of whether this scheme is truly the most appropriate and cost-effective means of obtaining the security improvements sought and an opportunity be given for further public comment on the reasonableness of the requirement. Finally, it is unclear whether the security threat assessment required under proposed new section is a one-time procedure or intended to be periodically renewed. If it is intended that it must be renewed, that should be clearly stated in the rule. It is also unclear whether an employee who has received a security threat assessment from one employer in the airfreight industry is able to go to work for another employer in the industry without the need to have another assessment performed. This is an industry in which there is traditionally a significant amount of movement by employees between employers and requiring repeated assessments of the same individual will impose significant additional costs and inefficiencies without any apparent gain in security. In sum, we believe that the proposed security threat provisions must be substantially revised to reflect the complexity of the industry TSA seeks to regulate and to clarify to whom and how these substantial new requirements are to be applied. Given the enormous potential impact of these provisions and the substantial revisions required, they should be reissued as proposals for comment before they are finalized. More Coordination Needed Between Security Programs of Customs, TSA and other Agencies The preamble to the NPRM rightly identifies one of the goals of the Homeland Security Act as the reduction of redundancy and the improvement of security effectiveness and states that, This 3

4 priority has particularly been the case in the area of air cargo security. 69 Fed. Reg. at Unfortunately, the proposed rule itself does not reflect this priority. Indeed, elsewhere in the preamble, the regulations of Customs and Border Protection are dismissed as virtually irrelevant because they have a different purpose than these regulations. As a result, there is no redundancy in the two programs. Id. at Redundancy cannot be determined from looking solely at the purpose of a program. Instead the actual compliance requirements need to be examined. For example, Customs requires a background check for anyone who has access to Customs secure areas and the required information is similar if not identical to that required by TSA to conduct a security threat assessment. See 19 C.F.R Similarly, TSA requires submission of the same type of information before a state can issue a hazardous materials endorsement on a drivers license. See 49 C.F.R While all of these DHS programs arguably serve different purposes, the requirements for submission of information and background checks should be better coordinated to obviate individuals going through overlapping DHS security clearance processes simply to perform their job. A simple way to address this specific issue would be to expand the list of other programs in proposed section (a) (with conforming amendments elsewhere) to include any program where an employee s ability to perform a particular job or activity is dependant upon the submission of identifying information and clearance against government databases of potential security threats. More broadly, a careful examination of security requirements imposed by Customs and other government agencies is very likely to reveal other areas where such redundancies can be reduced or eliminated. SIDA Definition The definition of the security identification display area in proposed section (a)(2) is too broad because it covers cargo sorting areas that may be located nowhere near aircraft and are often not even on airport property. The amendment to the definition should extend SIDA coverage only to areas regularly used to load cargo on or unload cargo from... aircraft. At the very least, to avoid any confusion, the proposed regulation must be amended to make clear that any expansion of the SIDA does not extend to off-airport cargo operations. Operation of Foreign Stations of IACs Proposed sections (f) and (f) require U.S. and foreign carriers respectively to have security programs that apply to the transportation of air cargo into and out of the United States. However, it describes the required elements of such programs in only the most general terms because, as a general practice, TSA treats standard security programs for different parts of the aviation industry as sensitive security information that cannot be disclosed publicly. While we agree completely with the need to limit access to these plans, BAX and a number of its competitors who are not direct air carriers have extensive foreign operations that will be directly affected by the way in which air cargo security programs are implemented by U.S. and foreign carriers overseas. Accordingly, BAX and other similarly situated IACs must be included in the development and review of the carriers standard air cargo security programs. 4

5 Conclusion The NPRM is a significant step forward in enhancing the security of the air cargo industry. We welcome many of its proposals and look forward to the issuance of the final rule. However, significant revisions to some provisions are required and, as noted above, the security threat assessment requirements need further development and public airing before they can be finalized. Respectfully submitted, Gregory S. Walden, Esq. Therese Groff, Esq. Patton Boggs, LLP BAX Global Inc M Street, N.W. P.O. Box Washington, D.C Irvine, CA (202) (714) January 10,

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