Mobility Matters Bulletin

April 29, 2010

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.

  • Looming August Deadline for Air Cargo Screening. US law requires that, beginning this August, 100% of cargo loaded onto passenger planes must be screened. This screening requirement applies to foreign originating flights to the United States, as well as domestic flights within the United States.

    • For domestic departure flights, starting in August, aircraft operators will not be permitted to load cargo that has not been screened.  Many have worried that this requirement will result in screening bottlenecks at airports and delayed cargo.
    • In response to these concerns, the Transportation Security Administration created the Certified Cargo Screening Program (CCSP), which allows US businesses to become certified to screen cargo before it arrives at an airport.
    • TSA and its umbrella organization, the Department of Homeland Security, are encouraging more businesses to become certified screeners. For example, DHS will ‘fast-track’ certified screening facilities for Safety Act designation, which is a form of insurance against terrorism. TSA also has indicated a willingness to consider industry-wide security standards as the bases upon which businesses may become certified to screen cargo under the CCSP. Recognition of such industry standards can reduce the burdens for businesses seeking certification.
    • For foreign originating flights, the situation is murky. TSA has announced that it will take an additional two years to ensure 100% screening of cargo on foreign originating flights.
    • TSA has indicated that it will work with foreign partners to ensure that every country’s air cargo screening systems provide adequate security.
    • One possible mechanism for screening cargo on foreign originating flights is a risk-rating system that relies on data about the shipper, the cargo contents, the intended recipients, and other factors. DHS’s Customs and Border Protection agency developed a risk-rating system for maritime cargo, and DHS often has asserted that such a risk-rating system in the maritime environment is preferable to detailed scanning of every piece of cargo. It is unclear whether such a risk-rating regime would help satisfy the statutory air cargo screening mandate.
  • Enhanced Passenger Screening Requires Enhanced Airline Cooperation. On April 2, the US government announced a new approach to screening passengers departing from foreign countries. In the wake of the Christmas bombing attempt by Umar Farouk Abdulmutallab, a Nigerian who tried to blow up a flight en route from Amsterdam to Detroit, the US government announced enhanced screening for all air travelers from any one of 14 countries of concern, most of which are located in the Mid-East. This prompted criticism from the aviation industry, officials from the 14 countries, and many security experts, among others.

    • The new approach outlined by the US government no longer relies on fixed categories of nationality and departure points as the dominant screening criteria; instead, it focuses on the use of intelligence to make individualized assessments of the need for enhanced screening.
    • All passengers who match specific criteria, including certain travel patterns, will be subjected to additional security screening.
    • The success of this new approach, which will take time to implement fully, depends on close cooperation among airlines, foreign governments, and the Department of Homeland Security, particularly CBP, as decisions will be made in real-time.
    • Protocols for this new approach are under development; airlines and foreign airport authorities will need to ensure that these developing protocols account for their own system capabilities and foreign laws and policies regarding the conduct of passenger screening.
  • ESTA Enforced Compliance. As of March 20, 2010 DHS has begun enforcing electronic authorization requirements regarding certain airline passengers under the VWP.  Citizens from the 36 countries that are members of the VWP may travel to the United States without visas, but these travelers must obtain travel authorizations from the Electronic System for Travel Authorization (ESTA).

    • Currently ESTA is free of charge. However, pursuant to the Travel Promotion Act, which was signed on March 4, 2010, DHS's Customs and Border Protection agency (CBP) is required to establish a fee for ESTA within six months. The fee will be the sum of $10.00 and a to-be-determined amount to cover the cost of administering the system.
    • The ESTA requirement went into effect in January 2009, but CBP determined that enforcement of the requirement would be reasonable only after aircraft operators had time to adjust their systems to ascertain which travelers had obtained ESTAs.
    • On January 20, 2010, CBP announced that by March 20, airlines would be required have the requisite systems implemented to ensure ESTA compliance. CBP has said that VWP travelers and their aircraft operators now risk fines if they travel without ESTAs. CBP may fine aircraft operators as much as $3,300 per violation, and each noncompliant passenger constitutes a violation.
    • CBP also has indicated, however, that it will exercise discretion regarding enforcement and may not issue a fine for every violation.
  • Growth of International Registered Traveler Programs. In November 2009, DHS published a Notice of Proposed Rulemaking to establish Global Entry, a pilot US registered traveler program, as a permanent program. A final rule is expected soon.

    • Global Entry operates at 20 US airports and allows US citizens entering the country by air to skip immigration lines in favor of kiosks. To enroll, citizens pay a fee, provide personal information and fingerprints, and submit to a security interview. When Global Entry members arrive in the United States, they go to a kiosk, place their fingerprints on a reader, and exit the immigration area.
    • In April 2009, after several years of negotiations, CBP implemented an agreement with the Netherlands to allow Dutch citizens to participate in Global Entry. Global Entry is open to Dutch citizens enrolled in the Dutch registered traveler program (called Privium), and US citizens enrolled in Global Entry are eligible for Privium, thereby enabling those US citizens to skip immigration lines in the Netherlands.
    • With the establishment of Global Entry as a permanent program, and the establishment of a multilateral framework – the Fast Low Risk Universal Crossing alliance, or FLUX – to house reciprocal agreements like the US-Netherlands agreement, there is significant interest in the expansion of these registered traveler partnerships, and negotiations of new international partnerships are underway.
    • Particularly with regard to major hub airports in Europe, there is a risk that non-participating countries could lose business. Connecting fliers may choose to route through countries that have international registered traveler partnerships, because such arrangements enable foreign visitors to expedite their travel. Sensitivity to that risk, as well as various airports’ interest in becoming a “travel hubs,” may facilitate new international registered traveler partnerships. 

The Mobility Matters Bulletin will be 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.