Required “Consent to Search” Could Result in Danger to Your Shipment

One of ASA members recently asked questions about the Consent to Screen letter, which is an obligation derived from TSA regulations.

TSA regulations require air carriers and freight forwarders to have security programs. The Consent to Screen letter authorizes an air carrier or freight forwarder to screen cargo as part of their TSA-required security program.

The member raised two sets of concerns about the unintended impact on aviation safety of these letters. First, a search of some aviation materials could result in damage that might airworthiness of the part, and the shipper could be held responsible despite the fact that the freight forwarder had actually occasioned the damage. The second concern is whether a shipper can impose burdens on the freight forwarder (like a duty to warn that cargo has been subject to search so we can warn our customer to inspect for damage) or whether the freight forwarder can impose burdens on a shipper (like freight forwarder language that seeks indemnification from the shipper or otherwise seeks to shift any legal burden or liability).  Under the current law, there are no clear answers to respond to either of these issues.

From TSA’s perspective, the form of the Consent to Screen letter appears to be a matter of commercial practice. They do not appear to have any specific instructions in the regulations for what must be included in the consent letter, only a requirement that consent (to the searches covered by the regulations) is required.

The regulations state that an aircraft operator “must refuse to transport any cargo if the shipper does not consent to a search or inspection of that cargo” in accordance with the security system established under the regulations. 49 C.F.R. § 1544.205(d); see also 49 C.F.R. § 1546.205(b); 49 C.F.R. § 1548.9(b). The regulations also provide that any certified cargo screening facility (this is the category in which many freight forwarders fall) must refuse to offer to another certified cargo screening facility or aircraft operator any cargo if the shipper does not consent to a search or inspection of that cargo. 49 C.F.R. § 1549.101(c).

The regulations do not specifically state what form the consent to screen must take. However, the Certified Cargo Screening Program records keeping provision does provide that “[e]ach certified cargo screening facility must maintain records demonstrating compliance with all statutes, regulations, directives, orders, and security programs that apply to operation as a certified cargo screening facility.” 49 CFR 1549.105(a). Additionally, the Preamble to the Air Cargo Security Requirements Final Rule states that:

“While TSA does not state in which manner the shipper’s consent to search or inspect cargo be obtained, it does require that the consent be explicit and in writing. TSA allows aircraft operators, foreign air carriers, and IACs to manage the collection of consent to search in a manner consistent with individual operational needs.”

71 Fed. Reg. 30477, 30486 (May 26, 2006) (emphasis added).

So the requirement for a written consent comes from the preamble to the rule (not from the actual regulations).  Written consent is further implied (but not required) by TSA regulations that require the freight forwarder to retain records (thus implying that such records must be in a format that may be retained).

Any record keeping requirement that the government wants to enforce has to be first approved by OMB.  The OMB approval referenced in the TSA rule was limited only to creation of security programs and imposed no burden on shippers. This means that TSA may be precluded from bringing an enforcement action against a shipper for non-compliance with the record-keeping requirement; but this does not stop a freight forwarder from refusing to do business with a shipper who does not complete the consent form that the freight forwarder insists upon.

In the preamble to the rule that established the obligation for the consent letters, TSA notes that “[t]he regulations allow a shipper to provide a blanket authorization, as proposed by IBM.” IBM’s proposal was simply “We suggest that the best alternative would be to permit the shipper to give a blanket authorization to the IAC as part of their contract or other supporting document or instruction to the IAC.”  [‘IAC’ is an Indirect Air Carrier]  This TSA response sheds little light on the question of whether the freight forwarder or the shipper can impose commercial obligations on the other party through the blanket consent.

There is a very real danger of damage to the parts as a consequence of a search by TSA or by the freight forwarder. For example, avionics and other electronic equipment can be very sensitive to electro-static discharge. Most distributors of ESD-sensitive equipment have special workstations and infrastructure designed to protect ESD-sensitive equipment from ESD-related damage. It is likely that a freight forwarder lacks this ESD-protection infrastructure. Thus, a freight forwarder performing a search could damage ESD-sensitive equipment (and might not even know it).

This raises a strong argument in favor of the proposition that distributors should be able to seek notification when TSA or a freight forwarder performs an inspection of freight.  Such notification would afford the shipper an opportunity to ask the recieving party to confirm that the inspection has not resulted in damage that could adversely affect airworthiness.  But at present there is no means to obtain such notification short of making a part of the contract with the freight forwarder.

Unfortunately, some freight forwarders actually include, as part of their standard consent to search form, a commitment from the shipper to indemnify and hold harmless the freight forwarder from damages, including in situations where the fright forwarder itself damages the shipment during the inspection.  In some cases, these clauses may be unenforceable if there is no additional value provided in exchange for this indemnification, but in many cases the freight forwarders primary duties may serve as consideration to support enforcement of the indemnification clause.

Distributors should be vigilant about such clauses and should consider whether they should reasonably be part of the consent to search form that the distributor provides to the freight forwarder.

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About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

One Response to Required “Consent to Search” Could Result in Danger to Your Shipment

  1. Pingback: 2014 in review | ASA Web Log

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