Details of 9/11 Commission Act (Part II - 100% Scanning of Maritime Cargo Containers; Container Security Standards)

This is Part II of a multi-part series of summaries of P.L. 110-53 and highlights the provisions in Section 1701 requiring 100% scanning of maritime cargo containers at foreign ports prior to loading, as well as container security standards and procedures. See future issues of ITT for additional summaries.

Deadline for 100% Scanning of U.S. Bound Maritime Cargo Containers in Foreign Ports

P.L. 110-53 amends Section 232(b) of the Security and Accountability for Every (SAFE) Port Act of 2006 so that a container that was loaded on a vessel in a foreign port is prohibited from entering the U.S. (either directly or via a foreign port) unless the container was scanned by non-intrusive imaging (NII) equipment and radiation detection equipment at a foreign port before it was loaded on a vessel.

This requirement applies to containers loaded on vessels in a foreign country on or after the earlier of:

(a) July 1, 2012; or

(b) such other date as may be established by the Secretary of the Department of Homeland Security (Secretary) pursuant to the lessons learned through the Secure Freight Initiative (SFI) pilot integrated scanning system¹ (established under Section 231 of the SAFE Port Act).

(Prior to this amendment, Section 232(b) of the SAFE Port Act only required such scanning if certain requirements were met, and it did not set a specific implementation date.)

Deadline can be extended for a port or ports. The DHS Secretary is allowed to extend the above deadline for two years, and may renew the extension in additional two-year increments, for containers loaded in a port or ports, if the DHS Secretary certifies to Congress that at least two of the following conditions exist:

(A) systems to scan containers in accordance with the above provision are not available for purchase and installation.

(B) systems to scan containers in accordance with the above provision do not have a sufficiently low false alarm rate for use in the supply chain.

(C) systems to scan containers in accordance with the above provision cannot be purchased, deployed, or operated at ports overseas, including, if applicable, because a port does not have the physical characteristics to install such a system.

(D) systems to scan containers in accordance with the above provision cannot be integrated, as necessary, with existing systems.

(E) use of systems that are available to scan containers in accordance with the above provision will significantly impact trade capacity and the flow of cargo.

(F) systems to scan containers in accordance with the above provision do not adequately provide an automated notification of questionable or high-risk cargo as a trigger for further inspection by appropriately trained personnel.

Scanning technology standards. The DHS Secretary, in implementing the above scanning provisions, is required to: (i) establish technological and operational standards for systems to scan containers; (ii) ensure that the standards are consistent with the global nuclear detection architecture developed under the Homeland Security Act of 2002; and (iii) coordinate with other Federal agencies that administer scanning or detection programs at foreign ports.

(P.L. 110-53 also imposes certain reporting and consultation requirements on DHS. See footnotes 2, 3, and 4 below for details.)

April/October 2008 Deadlines for Container Security Standards or Seals

P.L. 110-53 also amends Section 204(a)(4) of the SAFE Port Act, which requires all containers bound for U.S. ports of entry to meet certain minimum container security standards and procedures not later than two years after such standards and procedures are established, by adding the following new "interim" requirement:

If an interim final rule establishing minimum standards and procedures for securing containers in transit to the U.S. is not issued by April 1, 2008, then effective not later than October 15, 2008, all containers in transit to the U.S. would be required to meet the requirements of the International Organization for Standardization Publicly Available Specification (ISO PAS) 17712 standard for sealing containers. This provision would remain in effect until the effective date of the interim final rule.

(Subscribers should note that under the Customs-Trade Partnership Against Terrorism (C-TPAT) minimum security criteria for importers, customs brokers, rail carriers, foreign manufacturers, highway carriers, and sea carriers, all seals must meet or exceed the current ISO PAS 17712 standards for high security seals.)

Certain DOD Supplies, Foreign Military Cargo Exempt

P.L. 110-53 also provides certain exemptions for supplies bought by the Secretary of the Department of Defense (DOD) and transported in compliance with 10 USC Section 2631, and the military cargo of foreign countries. (BP has certain questions about the scope of this exemption (whether it applies to the 100% scanning requirement as well as the container security standard/seal requirements) and will update readers with more detailed information when available.)

¹Under the SFI pilot, the capability to scan 100% of allU.S. bound cargo containerswith radiation detection and NII equipment is being evaluated at three ports - Port Qasim, Puerto Cortes, and Southampton. Data from these systems is then provided to U.S. officials at the National Targeting Center for analysis, thus fulfilling the pilot requirements of the SAFE Port Act. See ITT's Online Archives or 05/14/07 news, 07051415, for recent BP summary on SFI.)

²According to P.L. 110-53, an extension of the deadline for 100% scanning for a port or ports will take effect upon the expiration of the 60-day period beginning on the date that the Secretary provides a report to Congress that (a) states what container traffic will be affected by the extension; (b) provides evidence to support the Secretary's certification of the basis for the extension; and (c) explains what measures the Secretary is taking to ensure that scanning can be implemented as early as possible at the port or ports that are the subject of the report.

³If an extension of the 100% scanning deadline takes effect, the Secretary shall, after one year, submit a report to Congress on whether the Secretary expects to seek renewal of the extension.

⁴In carrying out the scanning provisions, P.L. 110-53 requires the DHS Secretary to consult with appropriate Federal departments and agencies and private sector stakeholders, and ensure that the provisions of Section 1701 do not violate international trade obligations, and are consistent with the World Customs Organization (WCO) framework, or other international obligations of the U.S.

(See ITT's Online Archives or 08/07/07 news, 07080705, for Part I.)

Conference report to accompany H.R. 1 (including conference version of H.R. 1 and the joint legislative statement available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_reports&docid=f:hr259.110.pdf.

BP Note

In the joint legislative statement, the House and Senate conferees stated that they expect the Secretary, the Secretary of State, the U.S. Trade Representative, and other appropriate Federal officials to work with U.S. international partners and international organizations such as the WCO to establish an international framework for scanning and securing containers.