Mobility Matters Bulletin - July 2011

The Mobility Matters Bulletin reviews significant legal and policy developments regarding the secure movement of people and cargo across borders. Steptoe & Johnson LLP offers clients comprehensive counseling on these matters, including insights from former senior government officials responsible for homeland security laws and policies.

US-Qatar Global Entry Program Partnership Could be First in Middle East

• The Global Entry Program is a “trusted traveler” program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States and in participating foreign partner countries.
  
  
• In May 2011, Qatari Interior Ministry officials traveled to Washington to meet US Customs and Border Protection (CBP) officials and to discuss Qatari citizen participation in the Global Entry Program. If a Global Entry partnership moves forward, Qatar could be the first country in the Middle East to offer Global Entry benefits to its citizens.
  
  
• Qatar seeks a Global Entry partnership as part of its effort to develop innovative travel enterprises that enhance security and improve efficiencies at the New Doha International Airport. Possible Qatari citizen participation in Global Entry demonstrates that enhancing security and improving efficiencies makes sense for all participants.
  
  
• CBP continues to formalize trusted traveler partnerships with other countries as part of the Fast Low-Risk Universal Crossing (FLUX) Alliance. In April 2011, CBP and the South Korean Immigration Service signed a joint statement agreeing to integrate Global Entry with South Korea’s Smart System program. South Korea joins the Netherlands, Germany, Mexico, and Canada as countries that have formalized Global Entry partnerships with the United States.
  
  
• Overall, trusted traveler programs (including Global Entry, NEXUS, SENTRI, and FAST) reached 1 million members in May 2011. In comments to the US Chamber of Commerce in December 2010, CBP Commissioner Alan Bersin set a goal of increasing membership in these programs to 3.5 million by December 2013.

TSA Steps Back from December 2011 Deadline for 100% Inbound Passenger Air Cargo Screening

• Earlier this year, the Transportation Security Administration (TSA) committed to a December 31, 2011 deadline to screen all incoming air cargo on passenger planes. TSA appears, however, to be reconsidering this commitment in light of air carrier industry comments.
  
  
• TSA recognizes that it will be difficult to achieve 100 percent screening of inbound passenger air cargo by December 2011 due to operational and legal challenges.
  
  
• TSA faces major operational challenges to meet the December 2011 deadline, including the lack of an overseas air cargo security verification mechanism and the complicated logistics of screening certain types of cargo.
  
  
• TSA has limited authority to regulate foreign countries. While TSA may require that foreign air carriers with operations to, from, or within the United States comply with any applicable requirements, foreign countries cannot be compelled to implement specific aviation security standards.
  
  
• Given these operational and legal challenges, TSA has recently detailed various avenues it is pursuing to improve inbound passenger air cargo screening. Among these, TSA indicates it is:
  
  
• Reviewing other countries’ screening processes to determine the adequacy of their cargo security programs.
  
  
• Considering establishing a supply chain security screening program whereby foreign authorized representatives, such as freight forwarders, perform air cargo screening.
  
  
• Working with the International Civil Aviation Organization and the World Customs Organization to harmonize international air cargo security standards over the long term.
  
  
• Developing risk-based screening procedures whereby TSA collects data about air cargo, uses that data to identify high-risk cargo, and undertakes more robust screening for that high-risk cargo.

TSA Tightens Air Cargo Guidelines

• Apart from efforts to improve inbound passenger air cargo screening, TSA has recently tightened all air cargo guidelines that revise existing Security Directives and Emergency Amendments.
  
  
• The tightened air cargo guidelines, which became effective May 27, 2011, impact all foreign and domestic air cargo operators originating, transiting, or transferring cargo shipments at non-US locations.
  
  
• Some of the key revisions to the Security Directives and Emergency Amendments include changes to the definition of a “Business Relationship,” air cargo acceptance procedures, requirements for length of relationships, and the tendering statement. In addition, Indirect Air Carriers (IACs) may be subject to additional requirements if the aircraft operator is unfamiliar with participants in its supply chain.
  
  
• Generally speaking, these tightened guidelines are reorienting air cargo procedures away from a one-size-fits-all approach in favor of risk-based screening.

CBP Indicates Commitment to Growing the Number of Customs-Trade Partnership Against Terrorism Mutual Recognition Arrangements

• The Customs-Trade Partnership Against Terrorism (C-TPAT) is a voluntary public-private supply chain security initiative. C-TPAT members – including importers, carriers, consolidators, licensed customs brokers, and manufacturers – voluntarily adhere to cargo security standards in exchange for a range of benefits, such as reduced CBP inspections and priority border processing.
  
  
• C-TPAT Mutual Recognition (MR) Arrangements facilitate bilateral trade by extending reciprocal recognition to qualifying foreign customs programs, thereby enabling members of the foreign programs to receive the benefits of C-TPAT membership. MR Arrangements indicate that security requirements, standards, and verification procedures of foreign industry partnership programs are substantially equivalent to those of C-TPAT.
  
  
• CBP currently has MR Arrangements with only five countries: Canada, Japan, Jordan, New Zealand, and South Korea. These five countries have accounted for about 20 percent of US trade since 2004.
  
  
• CBP has indicated that it is committed to growing the number of C-TPAT MR Arrangements. In December 2010, at a Transatlantic Economic Council meeting, US and EU officials discussed the possibility of implementing a MR Arrangement between the United States and the European Union by October 31, 2011.
  
  
• In a June 2011 report, the US Chamber of Commerce called for CBP to develop a MR Arrangement with Mexico.

CBP Seeks Middle East Expansion of Immigration Advisory Program

• The Immigration Advisory Program (IAP) posts CBP officers at foreign airports. IAP officers use targeting and passenger analysis information and/or an assessment of passenger documentation to make “no board” recommendations to carriers and host governments regarding US-bound passengers.
  
  
• CBP has requested $14.1 million in its fiscal year 2012 budget to expand the IAP across airports in the Middle East, including Abu Dhabi, Dubai, and Amman. In May 2011, Qatari Interior Ministry officials traveled to Washington to meet CBP officials and to discuss expanding the IAP to the Doha International Airport.
  
  
• Expanding the IAP across the Middle East will enhance US and Middle East partner capabilities to protect immigration systems and the global aviation network from abuse by terrorists, human smugglers, and other transnational criminals.

The Mobility Matters Bulletin is published quarterly. If you have any questions or for further information, please feel free to contact Stephen Heifetz at 202.429.6227 or Marc Frey at 202.429.6414.