October 19, 2006

The Honorable Richard L. Skinner
Inspector General
Department of Homeland Security
Washington, DC  20528

Dear Inspector General Skinner:

            I recently was contacted by individuals employed in the air cargo industry about a troubling industry practice that they asserted is routinely performed at major commercial airports in violation of aviation security requirements that permit only cargo from so-called “known shippers” to be transported on passenger aircraft.  As you may know, the Air Cargo Final Rule announced on May 17, 2006 reaffirmed the requirement that only cargo from known shippers can be carried aboard passenger aircraft.  Specifically, Section 1544.239 of the rule stipulates, in pertinent part, that: 

“(a) For cargo to be loaded on its aircraft in the United States, each aircraft operator must have and carry out a known shipper program in accordance with its security program.  The program must – (1) Determine the shipper’s validity and integrity as provided in the security program; (2) Provide that the aircraft operator will separate known shipper cargo from unknown shipper cargo; and (3) Provide for the aircraft operator to ensure that cargo is screened or inspected as set forth in its security program.”

According to industry experts who have contacted my office, both all-cargo and passenger aircraft operators regularly fail to follow these requirements.  For instance, when all-cargo operators determine that they do not have the capacity to carry loads that they have accepted for shipment, a so-called “overload” results, and all-cargo operators contract with passenger carriers to transport the excess cargo, transferring packages to the passenger carrier, including packages that are not from known shippers.  I also understand that such intermingling of cargo from unknown shippers with cargo from known shippers on passenger aircraft occurs when there is “late freight” – i.e., freight arriving at the airport after its scheduled time or a situation in which the all-cargo aircraft scheduled to transport the freight is delayed, resulting in the transfer of unknown cargo to passenger planes available to meet the freight’s scheduled delivery time.

There is evidence to support the contention of these experts.  I understand that in recent months the Transportation Security Administration (TSA) has taken action in some cases to penalize shippers that violate air cargo rules.  Specifically, in August 2006 TSA reportedly revoked a freight forwarder's authority to work with passenger airlines due to violations that included tendering "at least 48 shipments from unknown shippers to passenger air carriers."[1] While the known shipper program is, in my view, no substitute for physical scanning of 100 percent of the cargo loaded on passenger planes, circumvention of this albeit flawed measure as a matter of course by industry participants is a serious security breach that deserves your attention.

Accordingly, I request that your office promptly begin an investigation into this important matter and produce a report that addresses the following issues:

(1)   What policies and procedures exist to prevent cargo from unknown shippers from being transported on passenger planes?  How is TSA enforcing these policies and procedures and does TSA have sufficient resources to enforce them effectively?  In recent correspondence from the Department of Homeland Security (DHS) in response to my request for information regarding screening of packages weighing 16 ounces or less, DHS informed me that TSA had withdrawn or denied approval to six freight forwarders that failed to comply with TSA cargo security requirements.[2]  While such enforcement actions are important, it should be noted that there are approximately 3,800 freight forwarders operating at about 10,000 facilities nationwide.[3]  To evaluate how air cargo policies and procedures operate in practice, not merely on paper, I encourage your office to utilize “red teams” of undercover investigators – as the Inspector General’s office has done in the past to investigate aviation security measures, including explosive detection capabilities at airport checkpoints – to gauge the effectiveness of TSA enforcement in this area.

(2)   As you may be aware, there are online electronic booking and shipment management services for the air cargo industry, such as Cargo Portal Services (https://www.cargoportalservices.com).  Such services enable freight forwarders, free of charge, to schedule and manage bookings and track shipments over the Web on the commercial passenger airliners that participate in the portal service. How does TSA ensure that the freight forwarders that utilize such online services to schedule and ship cargo on passenger planes are, in fact, known shippers?  Is TSA in regular contact with the operators of such services to assist in TSA’s cargo security mission?  If yes, please describe these contacts (e.g., what is the nature and frequency of the communications between TSA and the online services) and whether such contacts have helped TSA to identify freight forwarders that attempt to ship cargo on passenger planes from unknown shippers.  If there is no such contact between TSA and online air cargo services, why not and would such contact be advisable from an aviation security perspective?

(3)   In the discussion section of the final rule for air cargo security requirements, TSA’s response to comments from FedEx, UPS, the Cargo Airline Association, and Air Transport Association regarding whether the proposed air cargo rule prohibits acceptance of cargo for air transportation from a variety of retail outlets, such as the UPS Store and FedExKinko’s, states that:  “Aircraft operators under a full all-cargo security program are not prohibited from accepting cargo from retail entities as described in these comments. Under these rules, such retail outlets may operate either under an IACSSP, or as an agent with security responsibilities under the aircraft operator’s security program.”[4]  Are packages that originate at such retail outlets considered to be from known shippers?  Do such retail outlets consistently perform security checks, including visual inspection of the interior of all packages presented for shipment by customers?  Does TSA require that companies such as FedEx and UPS direct their retail outlets to perform certain security measures?  If so, what are these measures and which entity – e.g., the companies, TSA – is responsible for ensuring that such measures are performed at these retail outlets? 

   The thwarted plot to detonate explosives on multiple aircraft traveling from London to the United States is the most recent evidence that terrorists view commercial aviation as an enticing target.  The vulnerability of air cargo to infiltration by terrorists is well known and documented; therefore, it is imperative that the Inspector General’s office investigate the security loopholes described by air cargo industry insiders and gauge TSA’s efforts to close these loopholes.  I appreciate your prompt attention to this matter. 

Sincerely,

            Edward Markey

dhs letter.PDF