U.S. Seaport Security Legislative and Regulatory Initiatives ...

1. U.S. Seaport SecurityLegislative and Regulatory Initiatives Since 9-11 The Good, The Bad, and The Ugly A presentation to the MTSNAC May 13-14, 2002 New Orleans, LA Carol N. Lambos Lambos & Junge

2. MTSNAC Presentation 2 U.S Seaport Security Initiatives Introduction Pre 9-11 World The Good Immediate--9-11 response The Bad Current Events--eight months after 9-11 The Ugly The Future--if the seaport security course is not plotted correctly and the conditions continue to be choppy

3. MTSNAC Presentation 3 U.S Seaport Security Initiatives Pre 9-11 World Seaport Security Efforts Fall 1999--An Assessment of the Marine Transportation System--Report to Congress by then Secretary of Transportation, Rodney Slater Fall 2000--Interagency Commission on Crime and Security at U.S. Seaports (“Graham Commission”) Ensuing U.S. Senate legislation—Hollings Bill On going work of federal agencies such as the U.S. Coast Guard, Customs, DEA, etc. State and local law enforcement Private facility and vessel security plans

4. MTSNAC Presentation 4 U.S Seaport Security Initiatives Pre 9-11 World Some ignorance but not bliss Ignoring the signs 1993 World Trade Center Bombing Attacks on U.S. Military in the Middle East Somalia Embassy bombings in Africa USS Cole

5. MTSNAC Presentation 5 U.S Seaport Security Initiatives Pre 9-11 World Different attitudes towards seaport security—Belief in the sanctity of U.S. shores Different perceived threats Cargo theft Drug smuggling Internal conspiracies Stowaways and alien smuggling Export Crime Threat of terrorism discussed in the Graham Commission report FBI considered the threat to U.S. Seaports as low Recognized the vulnerability to be high Potential damage high Lack of information provided to local entities was significant

6. MTSNAC Presentation 6 U.S Seaport Security Initiatives Pre 9-11 World Initial focus of Hollings Bill Seaport crime and not terrorism Sought to act on many of the recommendations of the Graham Commission Recognizes economic importance of seaports Recognizes the need not to impede maritime commerce

7. MTSNAC Presentation 7 U.S Seaport Security Initiatives The Good—The immediate 9-11 government response Secretary Mineta grounds aviation—ensures the safety of the airways President seeks international coalitions Heroic actions of the U.S. Coast Guard in ensuring the security of U.S. ports and vessels Coast Guard’s early success with IMO Investigatory response of intelligence agencies Bi-Partisan support for military response Government agencies vowing to put turf battles aside to work together to address national security

8. MTSNAC Presentation 8 U.S Seaport Security Initiatives The Good Creation of the Office of Homeland Security Creation of DOT’s National Infrastructure Security Committee Direct Action Groups, GO-Teams and Working Groups Seeking input from private sector Stakeholder outreach Passage of the Aviation and Transportation Security Act Creation of the Transportation Security Agency

9. MTSNAC Presentation 9 U.S Seaport Security Initiatives The Bad The failure of the federal government to enact comprehensive seaport security legislation as guidance for uniform federal standards S. 1214 the Port and Maritime Security Act of 2001 H.R. 3983 Maritime Transportation Anti-Terrorism Act of 2002 S. 2329 Ship, Seafarer, and Container Security Act H.R. 3210 Terrorism Risk Protection Act

10. MTSNAC Presentation 10 U.S Seaport Security Initiatives S. 1214—The Hollings Bill—Passed by the Senate in the Post 9-11 world Has a pedigree—roots in the Graham Commission Addresses broad range of seaport crime but now has a stronger focus on terrorism Creates National Maritime Security Advisory Committee Establishes local port security committees Mandates port security and vulnerability assessments Requires security plans for port facilities Calls for controlled access for port facilities Enhanced cargo documentation procedures Seeks to control foreign port security procedures--sanctions Enhanced Coast Guard waterside security Sea Marshal program Recognizes participation of agencies outside DOT

11. MTSNAC Presentation 11 U.S Seaport Security Initiatives S. 1214 People Security Credentialing Employment investigations and criminal background checks for individuals with unrestricted access to controlled areas, or access to security-sensitive information These terms are undefined List of enumerated offenses that might disqualify a person from certain employment Limited appeals process—7 year look back period Does not require a national security database check Does not enumerate the entity responsible for performing employment investigations and criminal background checks

12. MTSNAC Presentation 12 U.S Seaport Security Initiatives S. 1214 People Security Speaks of a credentialing requirement but does not discuss a specific type of credential such as a card or what the credentialing process entails Secretary may give results of investigations to employers for the purpose of carrying out the provisions of the bill

13. MTSNAC Presentation 13 U.S Seaport Security Initiatives S. 1214 Cargo and Passenger Screening Enhanced procedures for export cargo Prohibits export of improperly documented cargo Pre-arrival reporting requirements Information provided to the Coast Guard Pilot program for pre-clearing inbound shipments under authority of Customs To be tested at multiple ports

14. MTSNAC Presentation 14 U.S Seaport Security Initiatives H.R. 3983 Focus on Antiterrorism and not seaport crime Does not define antiterrorism Planning for catastrophic emergencies Antiterrorism plans required Modeled on the OPA 90 family of plans Foreign Port Assessments Sanctions for foreign ports with deficient security Shipping Container Antiterrorism Leaves most details to regulators

15. MTSNAC Presentation 15 U.S Seaport Security Initiatives H.R. 3983 People Security Requires Transportation Security Cards For individuals requiring unescorted access to an area of a vessel or facility that is designated as a secure area Individual also must be authorized to be in such an area Also applies to seafarers, vessel pilots, tow vessels Secretary issues cards Cards can be denied if in the discretion of the Secretary the individual poses a terrorism security risk Disqualifying offenses not enumerated Does not prescribe a time period Considers mitigating circumstances Appeals process

16. MTSNAC Presentation 16 U.S Seaport Security Initiatives H.R. 3983 People Security Background records check Conducted by the Attorney General Checks relevant criminal history databases Immigration status Checks relevant international databases Checks national security-related databases Confidentiality provisions

17. MTSNAC Presentation 17 U.S Seaport Security Initiatives H.R. 3983 Cargo Security Shipping Container Antiterrorism Creates Transportation Security Oversight Board Develop and maintain an antiterrorism cargo identification and screening system for containerized cargo shipped to or from the U.S. Develop performance standards to enhance container security and container seals Cargo information provided to the Under Secretary by electronic means in a manner prescribed by the Under Secretary

18. MTSNAC Presentation 18 U.S Seaport Security Initiatives H.R. 3983 Cargo This new board is the subject of the jurisdictional dispute between House Committee on Transportation and Infrastructure and the House Committee on Ways and Means Ways and Means oversight over Customs The functions allocated to the new board are traditionally functions of U.S. Customs This dispute has stalled the House bill Waiting for a compromise that restores the function to Customs OMB issues

19. MTSNAC Presentation 19 U.S Seaport Security Initiatives S. 2329—Ship, Seafarer, and Container Security Act (the “Breaux Bill”) Likely to be an amendment to S. 1214 Like the Kerry amendments to S. 1214 mandating the Sea Marshal program and international port security guidelines

20. MTSNAC Presentation 20 U.S Seaport Security Initiatives S. 2329 Requires vessels to have transponders Seafarer identification Uniform, comprehensive, international system of identification of seafarers to establish the identity of seafarers By treaty initiative or legislative alternative Greater transparency of ship registration By treaty initiative or legislative alternative

21. MTSNAC Presentation 21 U.S Seaport Security Initiatives S. 2329 International agreement on container integrity Container integrity and anti-tampering standards By treaty initiative or legislative alternative Coast Guard to develop risk-based analysis and security zone system for vessels Evaluating potential threat to the security of the U.S. from vessels entering waters of U.S. System of security zones for ports, territorial waters, and waterways Use of public/private partnerships to implement and enforce security within zones, shore side protection alternatives Grants for technology to provide the protection

22. MTSNAC Presentation 22 U.S Seaport Security Initiatives H.R. 3210 Terrorism Risk Protection Act Passed in the House and stalled in the Senate Finding that uncertainty threatens the continued availability of commercial property casualty insurance for terrorism risk Threatens the ability for financing projects in capital markets Develop risk spreading mechanisms Develop necessary reserves to fund future losses Subject of a conference at the U.S. Customs House in NYC on May 31, 2002 Sponsored by the Global Maritime and Transportation School of the United States Merchant Marine Academy

23. MTSNAC Presentation 23 U.S Seaport Security Initiatives The Bad House and Senate anticipated conference on seaport security bill—creating uncertainty What stays and what goes? Focus—Seaport Crime and Terrorism or Antiterrorism Credentialing—screening for enumerated list of crimes or just terrorist threats Cards issued by an agency or other entity Cargo documentation—export and import procedures under auspices of Customs or new agency Seafarer Identification Vessel Ownership Transparency Vessel Identification Systems

24. MTSNAC Presentation 24 U.S Seaport Security Initiatives The Bad What about National Advisory Council and Local Port Security Committees? Compromise likely to result in less detailed bill than S. 1214 Outstanding issues left to regulations Making future planning difficult

25. MTSNAC Presentation 25 U.S Seaport Security Initiatives The Ugly The ugliest scenario is the government implementing ineffective seaport security standards that leave our nation vulnerable to a terrorist act that could destroy critical transportation infrastructure and result in the loss of lives

26. MTSNAC Presentation 26 U.S Seaport Security Initiatives The Ugly Agencies using existing authority to act without coordinating activities or requirements Coast Guard activity Customs moving on its pilot programs TSA beginning to move Enhanced bureaucratic reporting requirements without attendant security enhancements Enhanced procedures that do not have attendant security benefits Inconsistency when consistency is most important

27. MTSNAC Presentation 27 U.S Seaport Security Initiatives The Ugly Agencies acting without sufficient information regarding the impact on the private sector Significant financial burden on industry Security regimes created without consideration for practical implementation Creating future operational problems Airport security analogies Hasty implementation Lack of equipment—lack of personnel Airport delays impact passengers--Cargo delays will stop commerce

28. MTSNAC Presentation 28 U.S Seaport Security Initiatives The Ugly As it pertains to Federal legislation Legislation that is not specific enough to provide a framework for reasonable regulations that will not impede the flow of commerce Legislation that is gratuitous without ability to enhance seaport security Legislation that is only focused on domestic seaports and does not push the borders out to reach the real threat Legislation that improperly burdens private industry with law enforcement functions

29. MTSNAC Presentation 29 U.S Seaport Security Initiatives The Ugly As it pertains to agency action Ignoring the stakeholder input they have sought and have been provided Implementing regulations in anticipation of legislation without analyzing the consequences to the entire system Forgetting the spirit of interagency cooperation that was pervasive immediately after 9-11

30. MTSNAC Presentation 30 U.S Seaport Security Initiatives The Ugly As it pertains to the private sector To be subject to inconsistent seaport security regimes in the various ports of the U.S. To be subject to redundant credentialing requirements To be subject to seaport security standards that were not promulgated with regard to their practical applications

31. MTSNAC Presentation 31 U.S Seaport Security Initiatives Conclusion Must retain the Good Must keep commerce moving in a secure system Use the resources of the government working in partnership with the private sector to ensure a workable system Enact viable federal seaport security legislation Minimize the Bad Agencies must coordinate their activities under a clear mandate from the federal government Agencies must coordinate their activities with state and local entities

32. MTSNAC Presentation 32 U.S Seaport Security Initiatives Conclusion Never permit the Ugly Create a secure system that allows responsible entities to detect potential threats without unnecessarily impeding commerce Create long lasting public and private partnerships to address security issues that might arise in the future Create an environment for agency cooperation that can provide needed efficiencies in the system Create a security regime that frees Americans from the fear that the next threat will come from a seaport related source