Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



More Fusion Coming?

Over the last year or two, we have heard a good deal about Fusion Centers. These are locations where the federal government electronically shares details about individuals with state and local governments (which also share data among themselves) for the purpose of enforcing the U.S. immigration laws, and for related law enforcement aims. Recently, we heard about a Fusion Center of another sort when Secretary Napolitano announced the formation of the Import Safety Commercial Targeting and Analysis Center or CTAC. Modeled after current Customs targeting centers, CTAC is supposed to "streamline and enhance federal efforts to address import safety issues."

Led by Customs, CTAC will add the resources of ICE, CPSC, FDA, and FSIS. A staff of about 30 is expected to get the Center operational. Whereas Customs targeting centers (passenger and cargo) are designed to address risk management pre-entry, CTAC is said to be designed to deal with post-entry events. It seems reasonable to anticipate that issues found at the Customs targeting centers, plus those identified through the FDA’s PREDICT risk-based screening module, will be handed off to CTAC to address under domestic law. It is equally likely CTAC’s findings would then be fed back to Customs and FDA for use with their targeting systems.

Now, in light of the failed Christmas 2009 terrorist attack, there is the possibility of more fusions centers, but these may well be focused just on intelligence efforts within the federal government. In his January 7, 2010 memo to the various agencies, President Obama directed them to work together more closely. In particular, State was ordered to review its visa issuance and revocation criteria and processes, which could lead to even more difficulties with the immigration of skilled foreign workers.

Similarly, DHS was directed to "aggressively" seek enhanced screening technology, protocols and procedures, but this directive is not limited to any one transportation sector. The directive also instructs those efforts be undertaken "consistent" with privacy rights and civil liberties. DHS is further instructed to develop recommendations for long-term law enforcement requirements for aviation security and to do so in conjunction with Justice.

What does all of this mean for the movement of legitimate cargo? Well, let’s start with a couple of obvious points. First, we know that Secretary Napolitano recognizes the technology does not currently exist to allow 100% screening of maritime cargo and so the SAFE Ports Act deadline has been put off until 2014. At the same time, TSA is still on target to have screening of all cargo in the belly of passenger planes occur by August 3, 2010.

The question these renewed government cooperation efforts raises is will this greater emphasis on enhanced technology move up the date by which it might be feasible to scan all maritime containers? Even if that were to be the case, we know the lessons learned from the Secure Freight Initiative will remain. Which equipment to use? How to vary the approved equipment based on weather or available port space? Who pays for it? Who maintains it? How will it be staffed? What is to be done with the resulting images? Right now, the public understanding is those images are only retrieved if there is a question about a given shipment. If every image had to be reviewed pre-loading, does CBP have the ability to do so? Probably not. Should it have to review all of them prior to loading? Probably not. Many of us have been around long enough to remember the law used to require Customs to inspect 10% of all imported cargo. That law was changed because Customs was inspecting cargo just to meet the 10% mandate, rather than to focus on potentially problem shipments, which is clearly is not desirable.

If you start with the realistic fact that bad guys are always going to be ahead of the technology, just look at what happened on that December Detroit-bound flight, it is lunacy to think that all these levels of security really can stop a determined terrorist. After all, the truth is that if you wanted to create havoc in the U.S., you could time the winds, run your truck with an explosive device up near one of the Canadian or Mexican border crossings and when the wind shift is just right, blow it up! The particulates would come into the U.S., and then, can you imagine what would happen?

Another side effect of this government refocus, and the reason for analogizing to Focus Centers, is the National Counterterrorism Center was directed to "establish" and "resource" a process to prioritize and "exhaustively" pursue terrorism threat threads and to identify the intelligence, law enforcement and homeland security community to follow-up. It is likely this will lead to Customs having more information about more suspected individuals and entities and is also likely to mean that Customs will have more responsibilities but with the current same inadequate assets (people and equipment). At the same time, that additional information could well also lead to additional questions about specific imported shipments.

The Importer Security Filing (10 + 2 or ISF) becomes subject to enforced compliance on January 26th. ISF is designed to provide more details to Customs in advance of shipment about the parties to and additional details about that shipment. When the disparate parts of the federal government start doing a better job of working together and sharing information, it is reasonable to anticipate that will have some commercial cargo implications as well. Get ready for a bumpy ride again in 2010!

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