Originally published by Air Cargo Magazine November 2015.
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Earlier, I provided an outline of proposed changes to the regulation of air cargo bound for the US following the decision of the US Transport Security Agency (TSA) to require 100% scanning of all such cargo at a piece level.
The policy setting for the change
That earlier article also referred to the efforts of the Office of Transport Security (OTS) of the Department of Infrastructure and Regional Development, working with industry stakeholders to negotiate a 2 year extension to the required change to the Australian regime, subject to satisfactory compliance with a timetable set by the TSA. That timetable requires successful completion of interim stages towards the full compliance with the TSA requirements by 1 July 2017. Some details on the timetable can be found in my earlier article or on the Department's website.
An extension of time to implement the changes
Having secured the extension, the OTS has been taking the necessary steps to ensure compliance with the TSA timetable as the TSA had made it clear that failure to meet the timetable to the satisfaction of the TSA would cause the TSA to revoke the extension and require full compliance with the US 100% scanning regime – "ready or not". As you would expect such an outcome would be a disaster for many exporters to the US and as a result, industry stakeholders have been working closely with the OTS to ensure compliance with TSA requirements and that the revised regime to be developed in Australia is fully understood by industry and capable of being met.
OTS and industry working to co – develop the new Australian regime
The outreach by the OTS with industry has been happening on many levels including through meetings with those affected around the country, the issue of questionnaires by the OTS and through the peak consultative body, the Cargo Working Group (CWG). Representation on the CWG includes those most affected by the changes including the airlines, the ECA (where I get to go along) and industry associations such as the CBFCA and AFIF. The CWG has been receiving email updates from the OTS as well as meeting on a face to face basis. Through this process, the OTS has been seeking views of industry stakeholders and seeking to ensure that, so far as possible, those views are incorporated into the new regime. This is consistent to the sort of "co – development" approach being taken by some Government agencies and from my perspective, the OTS is conducting such co – design as well as any agency and certainly better than many agencies. There is real evidence that the OTS values and incorporates the views of industry.
More recent progress
So, to those who may not be aware, what has been happening in addition to lots of meetings, emails and commentary?
The new Australian regime will require a proper legal structure to operate and in accordance with recent experience that is to include a framework by amending the primary and then provide more details by amendments to the subordinate legislation (aka the regulations) made pursuant to that legislation. Most recently we have seen this approach in relation to the DIBP's "Trusted Trader Programme". The aim is for flexibility while still ensuring legal compliance on the basis that "one size does not fit all".
Like any lawyer I get a little excited about legislation and regulations. Probably more than a little excited and, on occasion, more than is healthy so I have confined myself to a summary below.
Amendment to Legislation
A Bill to amend the Aviation Transport Security Act 2014 was introduced into Parliament on 17 September 2015. The Bill sets out the legal basis to establish the "Known Consignor" scheme, to clarify what is meant by "cargo receiving clearance" and for other changes to meet US requirements.
Amendment to Regulations
The proposed amendments to the Regulations are to focus on four areas:
- Provisions for establishing "Known Consignors" to be consistent with the ICAO "Known Consignor Security Program" with its "6 pillars" of essential security measures for industry participants". This will be flexible based on the participant but will include a high level of security
- Streamlining of clearance provisions, particularly as they relate to Security Declarations and Chain of Custody Statements
- Reform of RACA and ACCA arrangements
- Transitional arrangements
These will all be of interest, with possibly the highest level of interest on the reform to the existing RACA and ACCA arrangements which will affect the business structure and operations of many existing industry participants. More details to follow!
Known Consignor scheme trial
The OTS is undertaking a trial on the proposed Scheme which will run in "tranches" depending on the category of exporters within size or types of exports. The Department and the OTS are keen to hear from those who may wish to join the Scheme. As with the ATTP I believe there is merit in engaging as that will help in developing the Scheme and then meeting its requirements.
The OTS is actively seeking engagement and feedback on the proposed new regime and welcomes comments and offers of assistance. I would encourage those affected to do so as it is developed – once developed and approved by the US it will be hard to change.