A Report Card on DHS Security Policies, Standards and Programs
Part 1 of 5: a look at CBP’s False Positive Standard, and Legislation on 100% Scanning. By Dr. Jim Giermanski, Chairman of Powers Global Holdings, Inc. and President of Powers International, LLC, an international transportation security company.
– Jason P. Ahern, Acting Commissioner, Customs and Border Protection
Although the introductory quotation of J. Ahern represents just one issue of this country’s treatment of container security, it is based on the standards against which Ahern and others in DHS form their conclusions. It is not the issue of only standards that influence their decisions, laws and policies are equally important. In the case of container security, Ahern’s statement demonstrates the lack of knowledge of container and cargo security technology and practice that relates directly back to standards established by DHS. If one looks seriously at the claimed standards of technology and/or practices of Congress, the Department of Homeland Security (DHS), and Customs and Border Protection (CBP) in the global container and cargo security arena, it becomes obvious that the standards and practices to which they adhere are either unsupportable scientifically, or practically, or at best, weak in light of standards in the rest of the world. Of course, this is easy to say. Therefore, to be reasonable, honest, and convincing, it is necessary to treat with specificity examples of laws, standards, programs or practices of Congress, CBP or DHS. My analysis will examine only eight standards or criteria against which security decisions are made:
• CBP’s False Positive Standard;
• Legislation on 100% Scanning;
• CBP’s Container Management Standard;
• CSI and The 24-hours Manifest;
• Sealed-Door Standard;
• RFID Standard;
• In-bonds standard; and the
• Science and Technology Directorate CSD standard.
1. False-Positive Standard (2)
Whether this one is DHS’s or CBP’s, it really doesn’t make much sense in practical terms and goes against any serious scientific appraisal. In 2005 and then in 2006, DHS determined that any smart container used for entry into the United States must meet a 99% false positive standard, that is, once in 100 times a smart container is permitted to alert a need to examine that is false, that is, when it is examined, all is normal – in other words, an alert that was false and unnecessary. That means, of course, DHS assumes that the other 99 times that it didn’t alert, it was correct and there was no problem that caused the transmission of an alert signal. The smart container was then 99% accurate. However scientifically, while this standard may be applicable in laboratories where all conditions can be controlled, outside the lab in real-world conditions which cannot be controlled, it is impossible to achieve. For instance, we all want and are willing to pay for a 100% guarantee that when we take off in an airliner, we land without incident. But reality is that getting to destination and landing without incidents is not 100% assured.
The scientific community uses different confidence levels for different purposes. Therefore, if we are using a smart container to thwart thefts and hijacking of cargo or for supply chain tracking information, we would likely use and be happy with a 95% confidence level typically used in scientific research. While the 99% false positive threshold is laudable, the requirement of obtaining near-perfection is extremely difficult in the global container market and, more important, inhibits the development and implementation of new ideas and practices. So what do we do in the health care area? We look around to find a test, an indicator of potential risk, and a drug that can give us the best protection we can find. If our potential disease is cancer and we can find a drug that works only 80% of the time, should we not take it? Yes, it costs money, and yes, it is not a 100% sure thing, and yes, it may be uncomfortable to take. If an 80% false/positive was used in the container security area, Customs and Border Protection probably wouldn’t like it. It may cost them, inconvenience them, and even slow down port clearance. So does that mean we don’t accept it? We certainly can inconvenience some Customs and Border Protection employees whose salaries we pay.
Another concept to consider is the “reasonable man theory” commonly used in judicial or quasi-judicial proceedings. What would a reasonable man believe or do? Said another way, it’s the 75% level of probability, or “probable cause.” The grand jury system is based on it, and people’s lives are affected by it, and the nation accepts it. Would it not be “reasonable” to have a minimum 75% standard of reliability instead of 99%?
It seems that a reasonable standard should allow a failure rate that still gives us the best protection possible. We are dealing with creative, dangerous persons against whom we must have the best defense attainable, not the best defense possible. We cannot afford to have no defense because of a bureaucratic standard that simply cannot be met with our current and likely future technology or cannot be developed because of unacceptable costs of added redundancies for sensors and communications. Containers are victims of our climates, temperatures, rough handling, rough roads, and rough seas. Perfect mechanical and electronic functioning of container security systems capable of all that is expected of them is unattainable at this time. The obvious conclusion is that the current False-Positive Standard is unrealistic and fundamentally flawed.
2. Legislation on 100 % Scanning
Congress legislated 100 % scanning and the president signed the legislation. The requirements to scan containers were contained in the SAFE Port Act signed into law in October 2006, and in the Implementing Recommendations of the 9/11 Commission Act of 2007, signed into law in August 2007. The SAFE Port Act says this about scanning at U.S. seaports:
"SCANNING CONTAINERS.-Subject to section 1318 of title 19, United States Code, not later than December 31, 2007, all containers entering the United States through the 22 ports through which the greatest volume of containers enter the United States by vessel shall be scanned for radiation. To the extent practicable, the Secretary shall deploy next generation radiation detection technology." (Section 121).
The new Implementing Regulations of the 9/11 Commission Act of 2007 goes further by amending the SAFE Port Act to say:
"IN GENERAL.-A container that was loaded on a vessel in a foreign port shall not enter the United States (either directly or via a foreign port) unless the container was scanned by nonintrusive imaging equipment and radiation detection equipment at a foreign port before it was loaded on a vessel also mandate scanning." (Section 1701)
The standard Congress is using is this: the United States can mandate that other sovereign states obey our law. How can we as a nation, mandate other nations to provide the means for or perform the scanning of containers inbound to the United States in their ports? There is a clear question of sovereignty and a foreign nation's right to decide what steps to take within its sovereign territory. The EU's Taxation Commissioner, Laszio Kovacs said 100% scanning would not only not improve security but cost EU exporters. Further, even introducing U.S. legislation of this type puts the resource burden of protecting the United States on it trading partners (International Herald Tribune, Aug. 2, 2007). The UE commission is already examining whether these U.S. laws breach World Trade Organization (WTO) and World Customs Organization (WCO) rules (FT.com Europe, August 2007). Even Ralph Basham, the U.S. Commissioner of Customs of Customs and Border Protection (CBP) said on July 11, 2007, in a speech to the Center for Strategic and International Studies, that 100% scanning is "fundamentally flawed" and "just does not make sense" because it would impede the flow of commerce. Supporting commissioner Basham's position are Christopher Koch, president of the World Shipping Council (WSC), and Janet F. Kavinoky, Director of Transportation Infrastructure for the U.S. Chamber of Commerce (Florida Shipper, August 27, 2007). As recently as April 2009, Acting Commissioner of CBP Ahern affirmed that the U.S. cannot simply compel other nations to scan containers for us. He testified: “CBP is currently taking a close look at what will be possible and useful and will come back to the Congress soon with a clear path forward.”
Of course, if this standard is sound, then other nations can mandate the United States to scan all containers leaving from the United States to their countries. If that happened, the U.S. could not scan all the containers and would likely refuse to do so. Therefore, the standard established by Congress is unworkable, unfair, and like the false-positive standard, flawed.
(1.) Jayson P. Ahern, U.S. Customs and Border Protection (CBP), Testimony before the House Appropriations Committee, Subcommittee on Homeland Security, on Cargo and Container Security, released April 1, 2009.
(2.) For an expanded treatment of this issue see: Dr. James Giermanski and Dr. Peter Lodge, The Problem of Errors, DHS and the ‘False Positive’ Standard, Journal of Homeland Security, October 2007.
NEXT WEEK – Part Two: CBP’s Container Management Standard; and CSI and The 24-hours Manifest.
• About Dr. Giermanski:
Dr. Giermanski is the Chairman of Powers Global Holdings, Inc. and President of Powers International, LLC, an international transportation security company. He served as Regents Professor at Texas A&M International University, and as an adjunct graduate faculty member at the University of North Carolina at Charlotte. He was Director of Transportation and Logistics Studies, Center for the Study of Western Hemispheric Trade at Texas A&M International University.
Dr. Giermanski is co-inventor of a patent issued in the U.S. and in 32 other countries connected to transport container security. He is a recognized expert in global supply chain and container security by the World Bank and the World Customs Organization (WCO). He has frequently given invited testimony on NAFTA, transportation, and other international business issues before the U.S. Senate and House, the Texas Senate and House, EPA, and the U.S. International Trade Commission. He served as the co-chairman of the Texas Transportation Committee of the Task Force to prepare for NAFTA, sat for 5 years on the Texas Office of the Attorney General’s Trans-border Trucking International Working Group, and for three years as a member of the Research Advisory Committee on Management and Policy, Technical Advisory Panel, Texas Department of Transportation. He consults on international transportation and transportation security, border logistics, and trade matters involving Mexico, and has served as a border expert to assist the Arizona Department of Transportation in developing concepts and practices to improve the border crossing activities on the Arizona-Mexico border. And at the request of the White House, Council of Economic Advisors, he provided insight on trade issues and barriers on the southern border.
He has authored over 130 articles, books, and monographs with most focusing on container and supply chain security, international transportation and trade issues and for five years wrote the International Insight column in Logistics Management. He has appeared nationally as a special guest on the FOX News Channel’s Special Report with Brit Hume, CNN, NBC, CBS, NPR, BBC, Voice of America and the Canadian Broadcasting Corporation in addition to many local and regional affiliates.
Finally, with his background as a former FBI special agent, OSI special agent and a Colonel in the Office of Special Investigations where he handled counterintelligence matters, He currently provides transportation security lectures on C-TPAT, and other Customs and Border Protection (CBP) programs.
Dr. Giermanski has a Masters degree from the University of North Carolina in Charlotte, a Masters from Florida International University, and a Doctorate from the University of Miami. He is a graduate of Air Command and Staff College, and The Air War College. And while serving as a visiting scholar at the Center of Aerospace Doctrine, Research, and Education, (CADRE), an Air Force think tank, he wrote a book on the counterintelligence training of Air Force Office of Special Investigation Special Agents which was published by the Department of Defense.