Could make the program less flexible, says expert

By Peter A. Buxbaum, AJOT

If Congress passes port security legislation this year, and that is likely, it will almost certainly include a provision that includes first-ever Congressional authorization for the Customs-Trade Partnership Against Terrorism. Thus far, C-TPAT has functioned as a ‘voluntary’ program within the Bureau of Customs and Border Protection.

C-TPAT was organized by Customs in the wake of the terror attacks of September 11, 2001. The program, started up without legislative authority, promised companies that implemented cargo security programs fewer inspections of their incoming cargo. Since its inception, the program has developed three tiers, each successively requiring more stringent cargo security in exchange for additional Customs benefits.

The House of Representatives passed its SAFE Ports Act in May 2006. Similar legislation is now considered by the Senate, along with two other alternatives, all three of which address C-TPAT. The political imperatives created in the aftermath of the Dubai Port World debacle dictate that Congress produce port security legislation before this year’s Congressional elections, creating a strong likelihood that C-TPAT will become the law of the land before too long.

‘The House bill sets up the statutory requirements for participation in the program and codifies how one can become a member,’ said Page Hall, an international trade attorney with the law firm of Dorsey & Whitney in Washington. ‘It also indicates how companies can progress from Tier One to Tier Three and codifies the benefits for each.’

The problem presented by incorporating a government-industry partnership in Congressional legislation is that the program is likely to become much more rigid, according to Hall. ‘Right now, C-TPAT is a partnership between Customs and the trade and things are working well,’ he said. ‘But every time a partnership between government and the private sector is codified in law it becomes less flexible and less easy to change. Congress could add requirements to the program that would be administratively burdensome and impossible to achieve. We really have yet to see what the ultimate law will look like.’

The legislation which passed in the House, besides codifying C-TPAT, also provides the same treatment for the Container Security Initiative and mandates non-intrusive scanning of most containers destined for United States ports. ‘It’s a pretty comprehensive bill,’ Hall commented.

Of the three bills now pending in the Senate, one, reported out of the Homeland Security and Government Affairs Committee and dubbed the GreenLane Maritime Cargo Security Act, essentially tracks the provisions of the House measure. A second bill, crafted by the Commerce, Science, and Transportation Committee and called the Maritime, Rail, and Public Transport Safety Act of 2006, provides for additional security measures for rail transportation and public transit as well as for the maritime side. The third and newest bill was introduced on July 13 and is sponsored by the chairman and ranking member of the Finance Committee. Called the Customs and Trade Facilitation Reauthorization Act of 2006, the measure, besides providing statutory authority for C-TPAT, has the added virtue of providing tens of millions of dollars over the next five years for maritime security studies and programs.

‘This new bill is pretty exciting because it was introduced by a couple of powerful senators and provides funding for programs and studies which the other bills don’t do,’ Hall commended. But he added that such a measure may be difficult to get through the House. ‘Both the Senate and the House want to see some port security legislation become law this year,’ he added, ‘so maybe the Senate just goes along with the House version.’

‘Ever fewer Customs inspections’

The problem in including C-TPAT in legislation is that Congress could water down some of C-TPAT’s benefits and/or tinker with some of its requirements.