Risk-based rules can end the absurdity of fishy air cargo regulation

Brandon Fried is executive director of the U.S. Airforwarders Association (AfA)

There are many regulations in our country bordering on the absurd. For example, catching a fish with your bare hands in Indiana is illegal. Eating dead frogs in California is punishable by a fine. And, if one is so inclined to hire someone to point out the sights in our nation’s capital, that tour guide in Washington, D.C., must be licensed.

Despite these examples of ridiculousness, in most cases, regulations are indispensable to the proper functioning of economies and societies. They support fair markets, protect the rights and safety of citizens, and ensure the delivery of public goods and services. But some regulations, however well-intentioned, can cause more harm than good. As the world changes around us with rapid advances in technology, the evolution of e-commerce and continuously shifting supply chains, forwarders and carriers scramble to adapt despite the preponderance of regulations coming from a government that seems oblivious to modern realities.

Recently, in a case involving a regulated carrier, the U.S. Transportation Security Administration (TSA) assessed fines for inappropriately accepting a shipment based on an interpretation of the specific language versus the outcome or spirit of the regulation. In this particular instance, safety never was compromised, but reasonable people disagreed on vague program language seemingly sensible at the time of inception, yet no longer realistic in today’s evolving marketplace. The carrier lost the battle and, along with substantial legal costs, was forced to pay a significant penalty to the government.

Indeed, TSA enforced the letter of the law, but at the same time, it seemingly missed a considerable opportunity to amend the regulation while enhancing safety in today’s changing environment. The case should have been seen as a teachable wake-up call to the agency, showing that policies that were initiated years ago may no longer make sense in the e-commerce consumer environment, where identifying buyers, sellers, shippers and the origin of goods are no longer as easy to determine.

U.S. Customs and Border Protection (CBP) and TSA recently implemented the Air Cargo Advanced Screening (ACAS) program to assess import data on shipments destined for the United States. The Airforwarders Association (AfA) supports the regulation, which promises to serve as an essential screening tool in making air cargo safer for the flying public. ACAS seems to be an intelligent approach and an example of a valid regulation that will enhance safety and security.

However, as with any regulatory effort, implementing agencies should determine if the ACAS rule creates redundancy or conflicts with other existing requirements. A perfectly sensible regulation borders on the absurd if the mandate duplicates current filings or, worse, fails to share its data across multiple government agency platforms and multiple import shipment admissibility. Further, the ACAS technology platform must be robust and scalable to accommodate increasing shipment volume, amid future security demands.

The rapidly changing supply chain requires the government and industry to work collaboratively. First, TSA’s mousetrap mindset must switch to a more cooperative, outcome-based enforcement strategy. TSA has long touted this approach, but, in many cases, recent aggressive enforcement actions prove otherwise. Where a situation may appear not to meet the letter of a long-standing regulation, all need to work together to understand the market influencers and achieve the intended security goal.

Freight forwarders and their supply-chain partners continue to be significant proponents of a risk-based, multilayered security approach. Each new proposed layer must undergo rigorous scrutiny to ensure the absence of conflicts and redundancies while providing the streamlining of processes. We know that effective security comes at a cost in which all stakeholders must invest. Inefficient and dated technology systems impede commerce, increase costs, and undermine the efficient and seamless application’s essential security protocols.

Recently, two glimmers of hope for change appeared, indicating the beginning of a time when regulators and stakeholders will be working towards a common purpose. For example, TSA just sent a survey to the industry to learn the user perspective of agency technology platforms, including the Indirect Air Carrier Management System and the Known Shipper Management System. Also, the Federal Motor Carrier Safety Administration, in response to the ongoing trucking shortage, is now reconsidering its strict driver hours of service regulations. These are positive steps, as long as the initiatives move quickly, without dragging on for months – or even years.

The e-commerce retailing trend continues at a brisk pace, producing significantly large shipment volumes worldwide. Protecting the consumer and the traveling public should be an essential government role in assuring that fair trade and security precautions work in harmony without interference from ill-conceived regulations that may have seemed sensible yesterday but are now ridiculous in today’s reality.

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