March 14, 2011
GAO on Aviation Security
The U.S. Government Accountability Office has released a new report, Aviation Security: Progress Made, But Challenges Persist in Meeting the Screening Mandate for Air Cargo, GAO-11-413T (Mar. 9, 2011) (available here). From the summary:
The Department of Homeland Security's (DHS) Transportation Security Administration (TSA) is the federal agency with primary responsibility for securing the air cargo system. The Implementing Recommendations of the 9/11 Commission Act of 2007 mandated DHS to establish a system to screen 100 percent of cargo flown on passenger aircraft by August 2010. GAO reviewed TSA's progress in meeting the act's screening mandate, and any related challenges it faces for both domestic (cargo transported within and from the United States) and inbound cargo (cargo bound for the United States). This statement is based on prior reports and testimonies issued from April 2007 through December 2010 addressing the security of the air cargo transportation system and selected updates made in February and March 2011. For the updates, GAO obtained information on TSA's air cargo security programs and interviewed TSA officials.
As of August 2010, TSA reported that it met the mandate to screen 100 percent of air cargo as it applies to domestic cargo, but as GAO reported in June 2010, TSA lacked a mechanism to verify the accuracy of the data used to make this determination. TSA took several actions in meeting this mandate for domestic cargo, including creating a voluntary program to facilitate screening throughout the air cargo supply chain; taking steps to test technologies for screening air cargo; and expanding its explosives detection canine program, among other things. However, in June 2010 GAO reported that TSA did not have a mechanism to verify screening data and recommended that TSA establish such a mechanism. TSA partially concurred with this recommendation and stated that verifying such data would be challenging. As GAO reported in June 2010, data verification is important to provide reasonable assurance that screening is being conducted at reported levels. As GAO further reported in June 2010, there is no technology approved or qualified by TSA to screen cargo once it is loaded onto a pallet or container--both of which are common means of transporting domestic air cargo on passenger aircraft. As a result, questions remain about air carriers' ability to effectively screen air cargo on such aircraft. TSA has also taken a number of steps to enhance the security of inbound air cargo, but also faces challenges that could hinder its ability to meet the screening mandate. TSA moved its deadline for meeting the 100 percent screening mandate as it applies to inbound air cargo to the end of 2011, up 2 years from when the TSA administrator previously reported the agency would meet this mandate. According to TSA officials, the agency determined it was feasible to accelerate the deadline as a result of trends in air carrier reported screening data and discussions with air cargo industry leaders regarding progress made by industry to secure cargo on passenger aircraft. TSA also took steps to enhance the security of inbound cargo following the October 2010 Yemen air cargo bomb attempt--such as requiring additional screening of high-risk cargo prior to transport on an all-cargo aircraft. However, TSA continues to face challenges GAO identified in June 2010 that could impact TSA's ability to meet this screening mandate as it applies to inbound air cargo. For example, GAO reported that TSA's screening percentages were estimates and were not based on actual data collected from air carriers or other entities, such as foreign governments, and recommended that TSA establish a mechanism to verify the accuracy of these data. TSA partially agreed, and required air carriers to report inbound cargo screening data effective May 2010. However, TSA officials stated while current screening percentages are based on actual data reported by air carriers, verifying the accuracy of the screening data is difficult. It is important for TSA to have complete and accurate data to verify that the agency can meet the screening mandate. GAO will continue to monitor these issues as part of its ongoing review of TSA's efforts to secure inbound air cargo, the final results to be issued later this year. GAO has made recommendations in prior work to strengthen air cargo screening. Although not fully concurring with all recommendations, TSA has taken or has a number of actions underway to address them. Continued attention is needed to ensure some recommendations are addressed, such as establishing a mechanism to verify screening data. TSA provided technical comments on the information in this statement, which GAO incorporated as appropriate.
Remedies in International Law
Though not directly aviation related, blog readers who are interested in international law (or international trade law) generally may want to read Eric A. Posner & Alan O. Sykes' new working paper, Efficient Breach of International Law: Optimal Remedies, "Legalized Noncompliance," and Related Issues (U Chi. Olin Working Paper No. 546, Mar. 2011) (available from SSRN here).
In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this paper, however, that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why non-performance of private contracts is sometimes desirable – the concept of “efficient breach,” familiar to modern students of contract law, has direct applicability to international law. As in the case of private contracts, it is important for international law to devise remedial or other mechanisms that encourage compliance where appropriate and facilitate noncompliance where appropriate. To this end, violators ideally should internalize the costs that violations impose on other nations, but should not be “punished” beyond this level. We show that the (limited) international law of remedies, both at a general level and in certain subfields of international law, can be understood to be consistent with this principle. We also consider other mechanisms that may serve to “legalize” efficient deviation from international rules, as well as the possibility that breach of international obligations may facilitate efficient evolution of the underlying substantive law.