Constitution Gets in Way of Full Inspection

...yet somehow, we're not overrun with dangerous situations.

The Government Accounting Office has just released a report, prepared for Congressman William Lipinski (below-right), that details some of the practices, hurdles, and dangers of our current freight-transportation regulation. While the system obviously works pretty well, and while amost all breaches turn out to be careless-shipper related, there is a finite but nagging problem of how to deal with those who would intentionally harm this branch of our infrastructure.

As the GAO says, "Each day, businesses, individuals, and government agencies package and ship dangerous goods on ships, trains, trucks, and airplanes. Dangerous goods are by definition chemical, including infectious, substances (or anything containing such substances) that pose a threat to public safety or the environment during transportation. When these goods are properly packaged, labeled, and stowed onboard, they can be transported safely, but when they are not, they can pose significant threats to people and property. Improper, or 'undeclared,' shipments of dangerous goods are particularly dangerous in air transport because there is little room for error or time to take corrective action if a problem occurs in flight—a lesson learned tragically in 1996 when a ValuJet plane crashed in Florida after oxygen generators caught fire in the plane’s cargo compartment."

After a lengthy and careful examination, the agency realized that, "Little is known about the nature and frequency of undeclared shipments of dangerous goods." There are several reasons for this. The largest is that, most of the time, one can assume that nothing goes wrong, when such shipments are made. That is, of course, the generally-intended scenario, even by sloppy or uninformed shippers.

Another reason things go smoothly most of the time is that, "Private industry does business primarily with 'known shippers.'" That case is self-explanatory.

However, there is always a tradeoff between security and liberty; and the Constitution was designed from the start to safeguard liberty. Those whose job it has become to safeguard everyone find that limits to their powers can get in the way of their task. The report notes, "Statistically valid, generalizable data are not available and would be difficult to obtain, not only because more inspections would entail costly delays for carriers but also because Constitutional protections limit DOT’s and the Postal Service’s inspection authority."

A third factor that hinders compliance with dangerous-goods shipping rules comes from a perceived inconstistency in the FAA's own enforcement: "FAA’s enforcement guidance calls for documenting the reasons for any changes in the fines its inspectors initially propose. GAO’s review of enforcement case files indicates that the reasons for changes were not always documented. FAA attributes some changes to the results of penalty negotiations. Because FAA is not always following its guidance, it cannot ensure that its fines are appropriate or consistent."

The GAO doesn't make recommendations based on constitutionality. It bases its recommendations on practicality; so when it proposes "legislative changes," it is making the assumption that Congress will honor the foundational document of our nation: "GAO recommends that DOT improve its enforcement approach by (1) determining whether the unique characteristics of air transport warrant the development of a legislative proposal that would enhance DOT’s authority to inspect packages shipped by air and (2) requiring FAA to strengthen its policy on documenting the reasons for changes to the amounts of the recommended fines."

It's a problem that will have to be addressed. We'll find out if liberty wins...

FMI: www.gao.gov/new.items/d0322.pdf