1. A brief timeline of the legislative history of the bill.
As a member of the International Maritime Organization (IMO), the United States has been advocating for global maritime security. In response, the IMO agreed to make security amendments to the Safety of Life at Sea Convention 1974 (SOLAS). These amendments were collectively finalized by parties at a diplomatic conference in London in December 2002 under the IMOs supervision. The conference determined that starting from January 1, 2004, these maritime security measures must be accepted internationally and enforced worldwide by July 1, 2004.
To implement these changes, the International Ship and Port Facility Code (ISPS) was developed. This code incorporates the aforementioned amendments to SOLAS and includes additional provisions. It serves as an international standard for ship and port security. Under this code, nations are required to create port and ship security plans as precautionary measures against potential terrorist threats. Additionally, it establishes a standardized framework for governments to assess risks associated with ship and port facilities during such threats.
It is important to note that ISPS applies to all passenger ships and other vessels over 500 G on international voyages. Furthermore, it applies to all port facilities serving ships on international voyages (Peppinck, 2003; US Department of Homeland Security, 2003).
The Maritime Transportation Security Act (MTSA) was established in the United States in 2002 to address security requirements set by SOLAS and ISPS. Its primary goal is to enhance port security and protect against terrorist threats. The bill was signed on November 25, 2002, with temporary interim rules published on July 1, 2003. A public meeting in Washington, D.C., allowed for written comments on MTSA during that same month. Final MTSA rules were then published on October 22, 2003, and went into effect after a 30-day period on November 22, 2003. Full implementation of the Act occurred on July 1, 2004 (US Department of Homeland Security, 2003; United States Coast Guards, 2006).
2. Review of Previous Legislation: The Necessity for MTSA
The MTSA was implemented in accordance with the ISPS Code, which is recognized as the initial international standard for ship and port security. As the MTSA adheres to the ISPS guidelines and prerequisites, this legislation stands as the primary law concerning port and maritime security in the United States.
The US Coast Guard has the power to board vessels that are subject to or fall under US jurisdiction, as granted by Section 89, Title 14 of the United States Code. This authority applies to any vessel under US jurisdiction through any law. With this authorization, the Coast Guard can conduct inquiries, examinations, searches, and seizures on vessels that have violated US laws. They also have the ability to patrol land, water, and air and issue orders for vessels within their jurisdiction to stop.
It is important to note that federal law specifies that the Coast Guard’s control is limited to the anchorage and movement of vessels in navigable waters of the US. The authority over ship and port security standards is not explicitly mentioned (The Subcommittee on Coast Guard and Maritime Transportation, 2001).
The Secretary of Transportation has the power to regulate vessel movement and operation within US jurisdiction. This authority is granted by the Ports and Waterway Safety Act (PWSA). Additionally, the PWSA enables the Secretary of Transportation to handle terrorist acts against vessels and waterfront facilities. It also allows them to investigate incidents that cause damage to waterfront facilities or pose a safety risk to US ports. If a vessel violates the PWSA, the Secretary can deny or withdraw its clearance to enter the US.
The Omnibus Diplomatic Security and Antiterrorism Act of 1986 expanded the Coast Guard’s authority in response to the terrorist hijacking of the Achille Lauro passenger vessel in 1985, resulting in an American citizen’s death. This act established Title XI as part of the International Maritime and Port Security Act, aiming to safeguard passenger vessels and terminals from terrorist attacks. Title XI mandates that the Coast Guard take measures against terrorism and create security zones. Passenger vessels and terminal operators must also develop approved contingency plans for terrorism security, while cargo vessels and terminals are exempt from this legislation. To ensure safety, collaboration between the Department of State and cruise ship industry includes conducting foreign port assessments, with only two assessments conducted in 2000 (The Subcommittee on Coast Guard and Maritime Transportation, 2001).
The US Department of Transportation’s National Infrastructure Security Committee (NISC) was created after September 11 to focus on intermodal security and ensure coordination across all transportation modes. NISC has established Direct Action Groups for each mode of transportation to propose actions related to legislation, regulations, and diplomacy. Senator Hollings introduced S. 1214, The Port, Maritime, and Rail Security Act of 2001, aiming to enhance maritime and port security in the United States. Former Secretary of Transportation Norman Mineta stressed the importance of a comprehensive security approach that includes smaller ports, bulk cargo handling facilities, coastal waters, and inland waterways.
Admiral James M. Loy emphasized the importance of the US port and maritime security strategy during his testimony before the Subcommittee on the Coast Guard and Maritime Transportation. He stated that effective homeland security relies on awareness, prevention, response, and consequence management, with awareness and prevention being primary objectives. He highlighted how awareness helps allocate resources and optimize prevention efforts. Prevention focuses on detecting, identifying, and tracking threats to homeland security. However, if terrorists or means of terrorism are already in motion towards or within the United States, effective measures must be in place to detect and intercept them before they reach borders and transportation systems.
Admiral Loy acknowledged that maritime trade is crucial for the country’s economic strength and continues to flow through ports with minimal interruptions. Despite this mobility carrying a higher cost for everyone, he stressed that as an open democratic nation, there remains a risk of terrorist attacks. Therefore, it is the government’s responsibility to minimize this risk.
The legislation known as MTSA, which is a continuation of S.1214 introduced by Senator Hollings, addresses gaps in previous legislations related to port and maritime security in the US. It requires vulnerability assessments and security plans for passenger, vehicle, and baggage screening by vessels and port facilities. The powers granted to the Coast Guard under PWSA, such as establishing security patrols and access control measures, are also included in MTSA.
Unlike the International Maritime and Port Security Act, MTSA applies to multiple sectors within the maritime industry that have a higher risk of being involved in transportation security incidents. These sectors include tank vessels, barges, cargo vessels, towing vessels, offshore oil and gas platforms, as well as port facilities handling dangerous cargo or providing services.
In addition to these provisions, MTSA establishes Area Maritime Security Committees in all ports. These committees coordinate activities among various stakeholders including federal agencies like NISC (National Infrastructure Security Committee), local and state agencies industries ,and the boating public . Alongside NISC , they develop plans that ensure effective use of resources for preventing and responding to terrorist threats and attacks (United States Coast Guards Agency Report 2006).
Summary of important provisions of the MTSA:
The main objective of the MTSA was to improve security at US seaports. As part of this effort, the Secretary of Transportation was instructed to create a strategy for identifying vessel types and US port facilities that are likely to be involved in a transportation security incident. According to the Act, an “incident” refers to an event that causes significant loss of life, environmental damage, disruption to transportation systems, or economic disturbance in a specific area.
The responsibility for evaluating the vulnerability of US port facilities and vessels engaged in transportation security incidents rests with the Secretary of Transportation. The Secretary must develop a plan called the National Maritime Transportation Security Plan with the aim of preventing and responding to these incidents. This plan requires collaboration among federal, state, and local government agencies. Additionally, owners and operators of vessels or facilities are obligated to create their own security plans which must be reviewed and approved by the Secretary of Transportation.
Furthermore, it is the duty of the Secretary to establish response plans for vessels and facilities involved in such incidents. Moreover, it is mandatory for the Secretary (MTSA § 102) to assess the effectiveness of anti-terrorism measures implemented in specified foreign ports.
The Secretary of Transportation has the authority to deny admission or remove an individual from the US if they are deemed to pose a terrorism security risk. However, qualified individuals can obtain a transportation security card to enter secured areas of vessels or facilities. The Secretary is also responsible for establishing criteria for denial of entry to the country and can direct background checks by the Attorney General. Additionally, the Secretary has the power to deny entry of vessels from foreign ports that lack effective antiterrorism measures. Furthermore, the Secretary is obligated to collaborate with the US Coast Guard in creating an international agreement for identifying seafarers in US waters and other involved countries.
In order to facilitate implementation, the Secretary of Transportation has been directed to establish maritime safety and security teams. Their main duty is to protect vessels, harbors, ports, facilities, and cargo within US waters. Furthermore, the Secretary is responsible for implementing a system to collect and assess information about vessels operating in or heading towards US waters. This information should include specifics about the crew, passengers, cargo, and intermodal shipments of these vessels. Additionally, designated vessels that travel through navigable waters in the US must be equipped with Automatic Identification Systems (AIS) (MTSA, § 102).
The MTSA (Maritime Transportation Security Act) mandates that the Secretary of Transportation is responsible for enforcing multiple measures. These include vessel identification, information collection, vulnerability assessment, and creating security plans for domestic and foreign ports. Non-compliance with these provisions allows the secretary to impose civil penalties.
The MTSA also amended past legislation, including the Ports and Waterways Safety Act (PWSA) and the International Maritime and Port Security Act. Section 104 of the Act extended the jurisdiction of the US to include all waters of the territorial sea according to Presidential Proclamation 5928. The PWSA was amended to allow qualified armed Coast Guard personnel to serve as sea marshal on vessel and public or commercial structures within or adjacent to the US, with the responsibility of preventing or responding to terrorist acts or transportation security incidents (MTSA, § 107). The International Maritime and Port Security Act, also known as Title XI of the Omnibus Diplomatic Security and Antiterrorism Act, was amended to require an annual report to Congress on threats of terrorism to US ports and vessels. This report also includes an analysis of the effectiveness of maritime transportation security activities under MTSA in terms of port security against terrorist attacks (MTSA, § 110).
The Coast Guard’s authority has been extended by the MTSA. They now have the power to investigate marine accidents involving foreign vessels outside of US territorial waters. This authority aligns with international law (MTSA, § 423). The Act also expands the Coast Guard’s jurisdiction for drug interdiction to 24 nautical miles from US shores, which is the outer limit of the US contiguous zone. Additionally, the MTSA outlines conditions where the US Government may seize a vessel involved in illegal drug smuggling (MTSA, § 418).
4. Strengths and Weaknesses of MTSA
The MTSA is significant legislation that establishes a standard for ship and port security in the US. This standard aligns with the international ISPS Code, ensuring uniformity in security procedures. Secretary Tom Ridge emphasized the importance of this legislation, stating that it will foster a culture of security at ports worldwide and require specific enhancements (Ridge, 2004).
The MTSA vessel identification system enables the US to regulate the entry of vessels, along with their passengers, crew, and cargo, by evaluating their risks to transportation security incidents and terrorist attacks. It also allows the US to gather maritime information to analyze trends in transportation security incidents and identify port vulnerabilities. Additionally, the MTSA requires action plans for harbor areas to ensure compliance with security and safety requirements and coordinate with federal and local agencies and maritime stakeholders. This coordinated effort aims to strengthen ports and protect the US from potential terrorist attacks. Ultimately, the MTSA’s strength lies in its verification process for vessel entry into US ports, effectively preventing and regulating terrorist threats.
One key advantage of the MTSA is its requirement for customized security plans and assessments for each port or harbor area. Rather than following a strict security plan, US ports create assessments and action plans that address their unique security and safety needs (Ridge, 2004).
In the related literature, criticisms of the legislation have pointed out three main security-related weaknesses of MTSA. These weaknesses include: 1) the requirement for the MTSA vessel identification system only applies to a limited number of ports; 2) concerns about the extent and accuracy of port security assessments, specifically in relation to vulnerability assessments; 3) the Coast Guard’s decision to not individually approve security plans for foreign vessels (Wrightson, 2003).
The AIS, also known as the automatic identification system, is a requirement set by the MTSA, specifically §102, for the development of a vessel identification system. This system is aimed at enabling port officials and other vessels to identify the identity and position of vessels entering or operating within their respective harbor area. Its purpose is to serve as an “early warning” system for vessels that are unidentified or not where they are supposed to be. However, the implementation of this system faces a challenge because it necessitates substantial land-based equipment and infrastructure, which are currently lacking in many ports across the United States. According to studies, it is projected that the AIS will only be accessible in less than half of the 25 busiest ports in the country (Wrightson, 2003, p. 7).
According to the United States General Accounting Office (GAO), the MTSA Act has a second weakness related to the vulnerability assessments required for port facility and vessel owners and operators regarding transportation security incidents (MTSA, § 102). Margaret Wrightson, Director for Homeland Security and Justice Issues, stated in a Testimony before the Committee on Commerce, Science and Transportation on September 9, 2003, that during their work they interviewed port stakeholders and found issues with the assessment process. At one port, stakeholders were not given the opportunity to comment on the assessment report, which contained factual errors and failed to assess railroads and the local power generating plant. At another port, the assessment referred to the wrong port and included irrelevant security questions, raising concerns about credibility. Many stakeholders believed that these assessments were not helpful because they had already conducted their own more extensive security reviews.Wrightson (2003, pp.9-10) stated that the assessments concentrated on the same systems already reviewed, suggesting greater value could be achieved if they shifted focus towards unexplored areas like the potential for waterborne assault.
The criticism surrounding the usefulness and accuracy of vulnerability assessments is extensive among those who are obliged to participate in them. Furthermore, Wrightson highlights that not only is the quality of these assessments questionable, but the costs associated with conducting them are also exceedingly high. It is worth noting that these assessments have predominantly taken place at medium-sized ports in the US, with estimates putting the costs per assessment at $1 million or more at each port (Wrightson, 2003, p. 10). As a result of such high costs and doubts regarding their efficacy, the implementation of this requirement under the MTSA continues to be an ongoing struggle and remains ineffective to this day.
The third issue concerns the vessel security plans required for all vessels operating in US waters. These security plans must comply with MTSA requirements and be reviewed and approved by the Secretary of Transportation. The US Coast Guard has stated that it does not individually approve vessel security plans for foreign vessels. Instead, they consider flag state approval of a vessel security plan as compliance with the MTSA requirement. However, MTSA does not specify any role or involvement of foreign countries in the approval process by the US Secretary of Transportation. This raises concerns because ISPS international requirements state that a vessel’s flag state is responsible for reviewing and certifying its security plan. The problem is that some flag states may not have stringent safety requirements. Hence, foreign vessels belonging to such flag states are subject to review and certification of their safety requirements according to their flag state’s standards. To address this issue, the Coast Guard has implemented rules to verify that foreign vessels have approved and fully implemented security plans (Wrightson, 2003, pp. 10-11).
Unfortunately, the US Coast Guard’s security effort is based on the US safety program, which may not align with safety requirements of other countries. The Coast Guard doesn’t have contingency plans in place if stronger safety measures are needed to verify a foreign vessel. However, these concerns mainly apply to foreign flag vessels. US-registered vessels and their security plans are reviewed and approved by the Coast Guard, but this process incurs high costs. In the 2004 budget, $70 million was allocated for reviewing and approving security plans for domestic vessels as required by MTSA. Additionally, 150 full-time personnel were needed for this task (Wrightson, 2003, pp. 10-11).
There is a weakness in the MTSA regarding the lack of standard security measures for each port in the US. Congress has acknowledged the need for common standards and practices that apply to all seaports. However, this conflicts with the tailored approach that MTSA promotes for addressing the safety needs of each specific port. For example, there is no specific requirement for Customs Service to physically inspect a certain percentage of cargo at US seaports (Fritelli, 2003, p. 6).
Final assessment and recommendations for improving MTSA
Despite its flaws, the MTSA is still significant legislation as it took a major step in allowing the US to prevent and handle terrorist attacks on the nation’s maritime ports. Of the 46 key areas identified to implement the requirements of MTSA, 43 ports or harbors have already transmitted maritime information, which is an initial step in establishing security systems and action plans (Wrightson, 2003, p. 1). The Coast Guard has also published six interim rules on the provisions in the ACT, as required by the MTSA. It has lead responsibility for national maritime security initiatives, area maritime security, vessel security, facility security, outer continental shelf facility security, and AIS. The rules also provided a comprehensive description of industry-related maritime security requirements and cost-benefit assessments for US ports (Wrightson, 2003, pp. 4-6).
According to the US Department of Homeland Security (2005), a thorough examination of strategies and concerns related to the Maritime Transportation Security Act (MTSA) in this document indicates the need for the following recommendations:
Development of an Infrastructure Recovery Plan is crucial for the recovery of maritime infrastructure after an attack or disruption. This plan should be accompanied by vulnerability assessment to address criticism about the limited effectiveness of such assessments in ports. Additionally, vulnerability assessment should evaluate the costs and scope of recovery required for an area after a transportation security incident or terrorist attack.
Development of an International Outreach and Coordination Strategy is necessary to establish a framework for the coordination between US and foreign governments in terms of security measures and standards. This strategy will specifically focus on addressing the concern related to the Coast Guard verification of foreign flag vessels that may adhere to different security measures and standards compared to the US.
The weaknesses of the MTSA that were identified include the costs associated with implementing AIS, conducting assessments in ports, and the absence of a uniform measure for all ports compared to specific area standards per port. These concerns have been resolved in HR 2193, also known as the Port Security Improvements Act of 2003, which was introduced during the 108th Congress, 1st Session. This Bill addresses the funding for enhancing port security in accordance with MTSA. The House Bill facilitates the standardization of security requirements for ports, vessels, and facilities by mandating the Coast Guard to establish national minimum standards through regulations under Section 70103, Title 46 of the United States Code. These regulations apply to all ports, facilities within ports in the US, and every vessel entering a US port (§ 5, HR 2193). Additionally, the Bill outlines sources of funding to enhance port security measures in the US (The Orator, 2003). By implementing these measures, the financial concerns and lack of uniform standards in MTSA will be addressed efficiently.
In conclusion, the terrorist threat is a significant and worldwide concern. The United States has taken a crucial step in addressing this threat by enacting the MTSA. Although there are some flaws in the law and challenges in its implementation, it is important to highlight that having this legislation is preferable to having no guidelines or laws at all. The government has proactively acted to prevent and respond to terrorist activities through the passage of the MTSA. This not only ensures the security of our ports but also safeguards our nation as a whole.
REFERENCES
The Subcommittee on Coast Guard and Maritime Transportation held a hearing on Port Security on December 6, 2001. This hearing was conducted by the Committee on Transportation and Infrastructure. The memo can be retrieved from the US House of Representatives Website at http://www.house.gov/transportation/cgmt/12-06-01/12-06-01memo.html.
HR 2193, also known as “The Orator,” was introduced in the House of Representatives during the 108th Congress, 1st Session. It can be retrieved from http://www.theorator.com/bills108/hr2193.html.
On December 6, 2001, Admiral James M. Loy of the United States Coast Guard’s Department of Transportation released a statement regarding the Port and Maritime Security Strategy. This statement was given before the Subcommittee on the Coast Guard and Maritime Transportation. To access the full statement, visit the US House of Representatives Website at http://www.house.gov/transportation/cgmt/12-06-01/loy.html.
Maritime Transportation Security Act 2002 (Public Law 107-295, November 25, 2002) 116 STAT. 2064
Maritime Transportation Security Act of 2002. (2006). United States Coast Guards. Retrieved February 26, 2006 from http://www.uscg.mil/hq/g-cp/comrel/factfile/Factcards/MTSA2002.htm
Statement by Norman Y. Mineta, Secretary of Transportation, presented before the Subcommittee on Coast Guard and Maritime Transportation on December 6, 2001. Accessed from the US House of Representatives Website at http://www.house.gov/transportation/cgmt/12-06-01/mineta.html on February 26, 2006.
Peppinck, Adam. (May 2003). The International Ship and Port Facility Code (“ISPS Code”). Find Law – Australia. Retrieved February 28, 2006 from http://www.findlaw.com.au/article/8924.htm
The Port Security Improvements Act of 2003, also known as HR 2193, was introduced during the 108th Congress.
On October 23, 2003, the US Department of Homeland Security’s Office of the Press Secretary released a fact sheet titled “Maritime Security Requirements.” The press release can be accessed at http://www.dhs.gov/dhspublic/display?content=2036.
The attached text is a press release titled “Remarks by Secretary Tom Ridge at Port of Los Angeles” by Ridge, Tom. It was released on June 21, 2004, and is from the US Department of Homeland Security. The full document can be retrieved from http://www.dhs.gov/dhspublic/interapp/speech/speech_0185.xml starting from February 26, 2006.
Wrightson, Margaret. (September 9, 2003). Testimony Before the Committee on Commerce, Science, and Transportation, United States Senate – Maritime Security – Progress Made in Implementing Maritime Transportation Security Act, but Concerns Remain – Statement of Margaret Wrightson, Director, Homeland Security and Justice Issues. Retrieved February 26, 2006 from the United States General Accounting Office (GAO) Website at: http://www.aapa-ports.org/govrelations/GAO%20Testimony%209-9-03.pdf#search=’Maritime%20Port%20and%20Security%20Act%202002’
The text provided is a citation for a report titled “Maritime Security: Overview of Issues” by John F. Fritelli. It was published by the Congressional Research Service (CRS) and can be retrieved from The Library of Congress website. The citation includes the date of publication (February 24, 2003) and the date it was retrieved (February 26, 2006). The report can be found at the following URL: http://www.boozman.house.gov/UploadedFiles/TRANS%20-%20Maritime%20Security%20Overview%20of%20Issues.pdf#search=’Maritime%20Port%20and%20Security%20Act%202002′
Maritime Transportation System Security Recommendations For The National Strategy For Maritime Security (October 2005). US Department of Homeland Security. Retrieved February 26, 2006 from http://www.dhs.gov/interweb/assetlibrary/HSPD_MTSSPlan.pdf
