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Senate Action to Repeal Nuclear Detection Mandate Possible in Lame Duck

By Douglas P. Guarino

Global Security Newswire

A truck passes through a system that scans cargo for nuclear materials at a Hong Kong port in 2006. The U.S. Senate might act as early as November on a bill that would eliminate a legal requirement that all U.S.-bound cargo undergo scanning for illicit nuclear material before it departs from foreign seaports (AP Photo/Lo Sai Hung). A truck passes through a system that scans cargo for nuclear materials at a Hong Kong port in 2006. The U.S. Senate might act as early as November on a bill that would eliminate a legal requirement that all U.S.-bound cargo undergo scanning for illicit nuclear material before it departs from foreign seaports (AP Photo/Lo Sai Hung).

WASHINGTON -- The Senate could act as early as next month on legislation to repeal a controversial requirement that 100 percent of U.S.-bound cargo be scanned for illicit nuclear material before it leaves foreign seaports, according to sources closely following the issue.

Senator Susan Collins of Maine, the top Republican on the Senate Homeland Security Committee, has introduced a bill that would remove the requirement, which Congress imposed in 2007 in an effort to limit the prospect of nuclear terror attacks. The committee chairman, Joseph Lieberman (I-Conn.) also opposes the mandate, according to panel spokeswoman Leslie Phillips.

While Phillips acknowledges that the bill, S. 832, appears on a list of items the panel could act on during a lame-duck session of Congress, the legislation’s prospects for becoming law remain unclear.

The House in June passed its own port security bill, H.R. 4251, that does not repeal the 100 percent mandate. And as of last year, at least some key senators were urging the Obama administration to continue efforts to meet the requirement.

In a March 2011 letter to Secretary of Homeland Security Janet Napolitano, Senate Appropriations Chairman Daniel Inouye (D-Hawaii) urged her department to “aggressively investigate” the potential of an emerging new scanning technology, known as "muon tomography."

The letter, also signed by Senator Thad Cochran of Mississippi, the panel’s top Republican, said the lawmakers hope the department “can help foster technological advances that will allow us to meet the statutory cargo screening requirement.”

Last month, Homeland Security awarded a new contract under which it will help pay to test the new technology, the developers of which are actively lobbying lawmakers to retain the requirement.

The Collins bill would eliminate the 100 percent scanning mandate “if the secretary of Homeland Security certifies the effectiveness of individual security measures of [a] layered security approach,” Collins said in a statement on the Senate floor last year.

“Until … scanning technology is proven effective at detecting radiological material and not disruptive of trade, requiring the [scanning] of all U.S. bound cargo, regardless of risk, at every foreign port, is misguided and provides a false sense of security,” she said.

Others have also raised concerns about the practicality of the 100 percent scanning requirement.

“Logistical, technological, and other problems” have prevented any of the ports that have participated in a pilot project from meeting the 100 percent target, “leaving the feasibility and efficacy of the 100 percent scanning largely unproven,” the nonpartisan Government Accountability Office reported in February.

U.S. Customs and Border Protection has abandoned efforts to implement the requirement at all but one of six international ports that participated in the pilot program, according to the GAO report.

The European Union has also raised strong objections to the U.S. law. Implementing 100 percent scanning “would require sizable investments, increase transport costs significantly and entail massive welfare losses,” a 2010 EU report said. “The European Union is resolutely opposed to carrying out 100 percent scanning at export in European ports.”

The EU report estimated at the time that 430 million euros, or about $585 million, “would be required for investments for scanning and radiation detection including significant changes in infrastructure to create space for extra facilities for ports and terminals involved in U.S.-bound container traffic.”

Transport costs for goods destined for the United States would increase by 10 percent and ports unable to implement the requirement would lose access to the U.S. market, the report predicted.

“Annual welfare loss and trade disruption” due to the scanning mandate could cost about 10 billion euros, or roughly $14 billion, for Europe and the United States combined, the assessment estimated. Annual worldwide losses could reach 150 billion euros, or about $200 billion, the European entity said.

Echoing Collins, the EU report raised concerns that diverting “scarce European financial and human resources” away from other security objectives in order to meet the 100 percent requirement “could lead to a false sense of security” and neglect chemical, biological and other potential threats. It also noted that the European Union would be adhering “to a unilateral U.S. requirement without a reciprocal commitment” by the United States to scan exports to Europe.

The Obama administration has also raised concerns about the requirement. Napolitano has estimated it would cost $16 billion to implement the mandate at approximately 700 foreign ports. When announcing a two-year implementation delay earlier this year, she maintained that all “high risk” shipments are already “examined through a number of measures, including screening, scanning [and] physical inspection.”

The recipient of the recent DHS technology research-and-development contract, Decision Sciences of Chantilly, Va., argues that the mandate could be met for less investment. Under the contract, the department will pay approximately $2.7 million to test the technology.

Decision Sciences CEO Stanton Sloane argues that the technology has the potential to dramatically reduce the projected costs of meeting the 100 percent requirement. Sloane, whose company could profit from the expanded market for scanning technology that such a requirement would create, estimates that 99.5 percent of U.S.-bound cargo could be scanned with a capital investment of less than $1 billion.

Part of this dramatically lower estimate is due to the fact that 99.5 percent of U.S.-directed cargo originates from only 155 of the approximately 700 ports that exist worldwide, Sloane told Global Security Newswire. A bigger factor, he asserted, is that his company’s technology is more efficient than conventional x-ray scanning technology used at some ports.

Based on technology originally developed by Los Alamos National Laboratory, the Multi-Mode Passive Detection System can scan a cargo container for illicit nuclear material in less than one minute -- no more time than it would take a truck driver to present paperwork to customs officials, Sloane contended.

Unlike x-ray technology, the system releases no radiation, so the scanning system does not need to be located in an area separate from the usual shipping lanes at a port, he said. Drivers can remain safely in their vehicles while customs workers review their paperwork and the scanner simultaneously checks for nuclear materials -- minimizing interference with the usual flow of shipping, Sloane said.

The new technology has other potentially cost-saving features, according to Sloane, including what he says is a relatively simple interface that is designed to make recruitment of highly skilled workers unnecessary. The scanners can detect shielded nuclear material and are not prone to time-consuming false positives -- pitfalls that other technology Homeland Security has tested in recent year has faced, he contended.

If paid for through fees assessed on a per-container basis, Sloane predicted shipping costs would increase by less than 1 percent using the muon tomography technology.

DHS officials did not respond to a request for comment inquiring whether muon tomography -- or any other competing technology it might be testing -- could potentially change the estimated cost and other challenges associated with the 100 percent scanning mandate. 

The U.S. Chamber of Commerce -- along with other industry groups whose members look to minimize shipping costs -- is lobbying for the repeal of the 100 percent scanning requirement. It maintains that it is impossible to meet the mandate without adversely affecting other security efforts and the flow of trade.

Adam Salerno, director of the national security and emergency preparedness department at the Chamber of Commerce, suggested muon tomography’s purported ability to scan without disrupting trade had not yet been tested at a high-volume port.

“They’re doing a pilot in the Bahamas where there’s like four containers,” said Salerno, referring to a technology demonstration that Decision Sciences recently initiated at the Freeport Container Port in the Caribbean nation. “Congratulations, but let’s throw it into Singapore and see what kind of impact it has on the transportation and trade flow.” 

Sloane said this claim mischaracterizes the Freeport demonstration, which he said was designed to simulate a constant flow of shipments passing through the scanners, regardless of the number of real shipments coming into the port at a given time.

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