1. A Brief Legislative History of the Bill
The United States (US), who is a party to the International Maritime Organization (IMO), has long been pushing for a response to the issue of maritime security worldwide. Prompted by the US, the IMO agreed to make security amendments to the Safety of Life at Sea Convention 1974 (SOLAS). Parties to the IMO and SOLAS convention finalized these amendments at a diplomatic held at the IMO in December 2002 in London. In the diplomatic conference, it was agreed upon that maritime security measures will be accepted internationally by January 1, 2004, and in force six months later by July 1, 2004 worldwide. As a result of this agreement, the International Ship and Port Facility Code (ISPS) was drafted containing the amendments and complimentary provisions to the SOLAS. The ISPS was included as an Annex to Chapter XI-2 of the SOLAS Convention. The new security code is the first multilateral ship and port security standard ever created. It requires nations to develop port and ship security plans primarily as a safeguard against the threat of terrorist attacks. It also provides for a standard framework in helping governments to evaluate risks in case of threat to ship and port facilities. The ISPS applies to all passenger ships on international voyages, to all other ships over 500 G on international voyages, and all port facilities serving ships on international voyages (Peppinck, 2003; US Department of Homeland Security, 2003).
The Maritime Transportation Security Act of 2002 (MTSA) is considered as the US equivalent of the ISPS. It is the US response to the security amendments required by the SOLAS and its complementary ISPS. The purpose of the Bill is to strengthen and add additional defense to the United States (US) port security. The Bill was designed primarily to protect the US’ ports and waterways from terrorist attacks. MTSA was signed on November 25, 2002. In July 1, 2003, the temporary interim rules for the Act was published, as well as the effective date of regulations. In the same month, a public meeting was held in Washington, D.C., and the deadline for submission of written comments on MTSA was set. On October 22, 2003, the publication of the final rules on MTSA was released, and the final rules took effect 30 days after publication on November 22, 2003. The Act was finally fully implemented on July 1, 2004 (US Department of Homeland Security, 2003; United States Coast Guards, 2006).
2. Review of Previous Legislation: The Need for MTSA
MTSA was enacted pursuant to the ISPS Code, which is considered as the first multilateral ship and port security standard created. Since MTSA complies with the standards and requirements of the ISPS, the ACT is considered as the first specific legislation addressing port and maritime security in the US.
Apart from the MTSA, however, Section 89, Title 14 of the United States Code authorizes the US Coast Guard to board any vessel subject to jurisdiction of the US, or subject to US jurisdiction by operation of any law. The Coast Guards have the right to make inquiries, examinations, searches and seizures on board vessels if in violation of US laws. The Coast Guards are likewise allowed to engage in land, water, and air patrols, as well as to order any vessel to stop if it falls within their jurisdiction. However, what federal law provides is control over the anchorage and movement of vessels in navigable waters of the US. Ship and port security standards were not expressly specified as within the power of the Coast Guard (The Subcommittee on Coast Guard and Maritime Transportation, 2001).
The Secretary of Transportation also has the broad authority to regulate the movement and operation of vessels subject to US jurisdiction, as provided in the Ports and Waterway Safety Act (PWSA). The Act also authorizes the Secretary of Transportation to respond to terrorist acts against vessels and waterfront facilities, as well as to investigate any incident that causes damage to waterfront facilities or affects the safety of US ports. Under the Secretary’s authority, a vessel’s clearance to entry in the US may be refused or revoked upon violation of the PWSA (The Subcommittee on Coast Guard and Maritime Transportation, 2001).
The Omnibus Diplomatic Security and Antiterrorism Act of 1986 expanded the authority of the Coast Guard. This law was enacted in response to an incident wherein a US citizen was killed when a passenger vessel, Achille Lauro, was seized by terrorists in 1985. To protect passenger vessels and passenger terminals from terrorist attacks, the US Congress constituted Title XI of the Omnibus Diplomatic Security and Antiterrorism Act as the International Maritime and Port Security Act. Title XI requires the Coast Guard to establish measures to prevent and respond to terrorist attacks, as well as to establish security and safety zones. Passenger vessels and passenger terminal operators are also required under this Act to develop contingency plans for security measures against terrorist acts, subject to examination and approval by the Coast Guard. However, this Act does not cover cargo vessels and terminals. The foreign port assessments are coordinated between the Department of State and the cruise ship industry. In 2000, only two assessments for safety and security plans were conducted (The Subcommittee on Coast Guard and Maritime Transportation, 2001).
The National Infrastructure Security Committee (NISC) of the US Department of Transportation was created after September 11, and is charged with the responsibility of focusing on intermodal security issues and to ensure coordination of the Department’s security work across all modes of transportation. Direct Action Groups were created within NISC to make recommendations for action on legislative, regulatory and diplomatic initiatives for each mode of transportation. S. 1214, The Port, Maritime, and Rail Security Act of 2001, was introduced by Senator Hollings of South Carolina, as a new paradigm in maritime and port security in the US. In discussing these initiatives, then Secretary of Transportation, Norman Mineta, in a Statement before the Subcommittee on Coast Guard and Maritime Transportation, discussed that focusing exclusively on security at ports is not enough. A comprehensive approach that looks beyond ports and port facilities, embracing the entire marine transportation system, is crucial. It should involve not only large seaports but smaller ports as well as ports of all sizes handling bulk cargoes, and the security of coastal waters and inland waterways (Mineta, 2001).
Admiral James M. Loy, on the same occasion before the Subcommittee on the Coast Guard and Maritime Transportation, had this to say on the US port and maritime security strategy: “While effective homeland security is built upon the principles of awareness, prevention, response, and consequence management, the primary objectives are awareness and prevention. Awareness helps focus resources and provides efficiency to prevention. Prevention places a premium on awareness, detecting, identifying, and tracking threats to our homeland security. However, once terrorists or the means of terrorism are on the move towards or within the United States, the nation must have the means to detect and intercept them before they reach our borders and our transportation system. While there are no guarantees, there is good reason to believe that we can improve our national ability to detect potential threats in or to transportation through effective use of information that is, to a great extent, already available.” (Loy, 2001). Admiral Loy further stresses that, “maritime trade, which is critical to this country’s economic strength, continues to move through ports with minimal interruption. It is no surprise that sustaining mobility will come at a higher cost to all of us. But the reality is that we live in a country that prides itself on the openness of its democracy, so we remain at risk to attacks of terrorism. It is incumbent upon our government to minimize this risk” (Loy, 2001).
MTSA fills in the gaps of these other past legislations and responds to the need for a more comprehensive approach towards port and maritime security in the US. Based on S. 1214 as earlier introduced by Senator Hollings, MTSA requires vessels and port facilities to conduct vulnerability assessments and to develop security plans that cover passenger, vehicle, and baggage screening procedures. The powers of the Coast Guard under PWSA, involving establishing security patrols, establishing security and safety areas, and to access control measures were deemed incorporated into the MTSA. Unlike the International Maritime and Port Security Act however, the MTSA is not limited to passenger vessels and passenger operator terminals. Its scope and security regulations cover sectors of maritime industry with higher risk of involvement in transportation security incident, and includes not only large passenger vessels, but also various tank vessels, barges, large passenger vessels, cargo vessels, towing vessels, offshore oil and gas platforms, and port facilities handling certain kinds of dangerous cargo or service. MTSA, incorporating the role of NISC, also requires the establishment of committees in all the nation’s ports in order to coordinate the activities of all port stakeholders. The latter includes other federal, local and state agencies and industries, as well as the boating public. These committees, called the Area Maritime Security Committees, performs much of the same tasks as NISC, with the primary responsibility of developing plans so that resources in the committee’s particular area are best equipped and utilized to prevent and respond to terrorist threats and attacks (United States Coast Guards, 2006).
3. Summary of Pertinent Provisions of the MTSA
The MTSA was intended with the primary purpose of establishing a program to ensure greater security for US seaports. It requires the Secretary of Transportation to establish a vessel identification plan wherein vessel types and US port facilities that pose a high risk of being involved in a transportation security incident must be identified. The “incident” as covered by this Act pertains to one that involves significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area. The Secretary is likewise responsible for assessing the vulnerability of US port facilities and vessels that may be involved in any of the abovementioned transportation security incidents. In addition to vessel identification and vulnerability assessment, the Secretary of Transportation is required to develop a plan called the National Maritime Transportation Security Plan, which should prevent and respond to any transportation security incident. The plan requires for the coordination of federal, state, and local government agencies. Consistent with the National Maritime Transportation Security Plan, owner and operators of vessels or facilities are likewise required to submit their own vessel or facility security plan to prevent and respond to transportation security incidents. These plans are subject to the examination and approval of the Secretary of Transportation. The Secretary likewise needs to establish security incident response plans for vessels and facilities involved in transportation security incidents. The Secretary of Transportation is also required to assess the effectiveness of antiterrorism measures in specified foreign ports (MTSA, § 102)
The Secretary of Transportation may also deny admission, or removal, of an individual from the US if the individual poses as terrorism security risk to the nation. Otherwise, a qualified individual may be issued a transportation security card for entry into secured areas for vessels or facilities. The Secretary can also establish criteria for denial of admission to the US and can direct the Attorney General to perform background checks on individuals seeking entry into the US. Likewise, the Secretary is authorized to deny entry of vessels from foreign ports with ineffective antiterrorism measures or not maintaining effective antiterrorism measures (MTSA, § 102). In addition, the Secretary is tasked with coordinating with the US Coast Guard in developing an international agreement that provides for a uniform, comprehensive, international system for identification of seafarers that will allow the US and another country to establish the identity of any seafarer on a vessel within the US waters or such other country involved (MTSA, § 103).
To help in implementation, the Secretary of Transportation is tasked with the establishment of maritime safety and security teams. The scope for these teams is protection of vessels, harbors, ports, facilities, and cargo in US waters. The Secretary is also tasked with implementing a system to collect and analyze information on vessels operating on or bound for US waters. This information should include data relating to the vessels’ crew, passengers, cargo and intermodal shipments. Specified vessels operating in the navigable waters of the US are also required to be equipped with Automatic Identification Systems (AIS) (MTSA, § 102).
In summary, pursuant to the MTSA, the Secretary of Transportation is required to implement measures for vessel identification, information collection, vulnerability assessment and to establish security plans for the nation’s ports and specified foreign ports. Violations of the requirements in this section gives the secretary authority to set forth civil penalties.
The MTSA also served to amend past legislation. Section 104 of the Act provides that MTSA amends federal law to extend the jurisdiction of the US to include all waters of the territorial sea as described in Presidential Proclamation 5928. The Ports and Waterways Safety Act (PWSA), which was earlier discussed in this paper, was also amended to authorize the use of qualified armed Coast Guard personnel to serve as sea marshal on vessel and public or commercial structures which are on or are adjacent to the US. These sea marshals have the duty of preventing or responding to terrorist acts or transportation security incidents (MTSA, § 107). The International Maritime and Port Security Act, which was also earlier discussed as Title XI of the Omnibus Diplomatic Security and Antiterrorism Act, was also amended to require an annual report to be submitted to Congress on threats of terrorism to US ports and vessels. Such an annual report is also supposed to contain an analysis of the effectiveness of maritime transportation security activities under MTSA regarding port security against terrorist attacks (MTSA, § 110).
The MTSA has also touched on the authority of the Coast Guard. They are now authorized to conduct marine casualty investigations involving foreign vessels in areas outside US territorial waters. Such authority is consistent with practices and procedures of international law (MTSA, § 423). The Act also amends the Maritime Drug Law Enforcement Act to permit the Coast Guard’s drug interdiction jurisdiction to extend to 24 nautical miles from US shores. This constitutes the outer limit of the US contiguous zone. The MTSA also provides for circumstances under which the US Government may legally seize a vessel involved in illicit drug smuggling (MTSA, § 418).
4. Strengths and Weaknesses of MTSA
One major strength of the MTSA is that, as landmark legislation, it provides for a standard for US ship and port security which is pursuant to one world standard for ship and port security as pursuant to the ISPS Code. The US no longer has to rely on a patchwork of security procedures since there is a comprehensive set of standards that the international community must adhere to (Ridge, 2004). In his Remarks delivered at the Port of Los Angeles, Secretary Tom Ridge stated: “This will help create a culture of security at ports around the world and mandate specific improvements” (2004).
The vessel identification system required by MTSA will allow the US to regulate the entry of vessels, as well as its passengers, crew, and cargo before allowing their entry into the US. Vulnerability assessment should also help port facilities and vessel owners and operators to evaluate their risks to transportation security incidents and terrorist attacks. The gathering of maritime information will allow the US to analysis trends as to transportation security incidents and areas or circumstances that may make a port vulnerable to such incidents. The action plans required by the MTSA also calls for harbor areas to take affirmative steps in ensuring they comply with security and safety requirements, as well as to coordinate among federal and local agencies, as well as other maritime stakeholders. There is thus a joint, nationwide effort to fortify our ports and to protect the nation from potential terrorist attack. Basically, the obvious strength of the MTSA is that it calls for verification in the entry of vessels, foreign or domestic, into US ports. This allows the US to prevent and regulate terrorist threats to the country.
Another important strength of the MTSA is that it calls for security plans and assessments which are pertinent per port or harbor area. US ports are not required to follow one strict security plan. Assessments and action plans are designed according to meet the unique security and safety needs for each specific port (Ridge, 2004).
Critiques of the legislation in related literature have identified three weaknesses of MTSA which relate primarily to security issues. The three weaknesses are as follows: 1) the limited number of ports that will be covered by the MTSA vessel identification system requirement; 2) the scope and quality of the port security assessments pertaining to vulnerability assessments; 3) Coast Guard’s intention of not individually approving security plans for foreign vessels (Wrightson, 2003).
The AIS, or automatic identification system, to be developed for vessel identification system (MTSA, § 102) requires the Coast Guard to implement a process that allows port officials and other vessels to identify the identity and position of vessels entering or operating within their respective harbor area, as an “early warning” of unidentified vessels or vessels which are not in a location. The problem with implementing such a system is that it requires considerable land-based equipment and infrastructure which are not currently available in many ports across the US. Studies forecast that the AIS will be available in less than half of the 25 busiest ports in the nation (Wrightson, 2003, p. 7).
The second weakness in MTSA, which was apparent after examination and review by United States General Accounting Office (GAO), pertains to the scope and quality of the vulnerability assessments required by the Act for every port facility and vessel owners and operators regarding transportation security incidents (MTSA, § 102). In a Testimony before the Committee on Commerce, Science and Transportation on September 9, 2003, Margaret Wrightson, Director for Homeland Security and Justice Issues, said: “As part our work, we have interviewed port stakeholders to obtain their views on the process. At one port, where the assessment has been completed and the report issued, stakeholders said they had not been given an opportunity to comment on the report, which contained factual errors and did not include an assessment of railroads and the local power generating plant. At the other port, where the assessment was still in process, local Coast Guard personnel and port stakeholders noted that a survey instrument referred to the wrong port, asked questions they regarded as not pertaining to security, and was conducted in ways that raised concerns about credibility. Many of these stakeholders saw little usefulness in the assessments, believing that they added little to what the stakeholders had already learned from conducting their own more extensive security reviews of individual facilities or installations. They said the assessments focused on the same systems that had already been reviewed and would have greater value if they were focused on matters that had not already been thoroughly studied, such as the potential for waterborne assault” (Wrightson, 2003, pp. 9-10).
The usefulness and accuracy of such vulnerability assessments have been criticized extensively by those required to participate in such assessments. In addition to quality of such assessments, according to Wrightson, the costs for these assessments are also extremely high. Most assessments have been conducted only at medium-sized ports in the US, and even at each port the costs per assessment is estimated at $ 1 million or more (Wrightson, 2003, p. 10). Given the cost and the questions as to the usefulness of such assessments, implementing this requirement of the MTSA continues to be a struggle and ineffective today.
The third issue pertains to the vessel security plans required for all vessels operating in US waters. These security plans, subject to review and approval by the Secretary of Transportation, must comply with MTSA requirements. According to Wrightson, to implement this requirement, the US Coast Guard has stated that it does not have the intent to individually approve vessel security plans for foreign vessels. The Coast Guard provides that flag state approval of a vessel security plan constitutes compliance with the MTSA requirement of MTSA vessel security plans. Unfortunately, MTSA does not mention any role or participation of foreign countries with respect to the US Secretary of Transportation’s require approval of such vessel security plans. The problem with this is that ISPS provides for an international requirement for a security plan, which provides that a vessel’s flag state is responsible for reviewing and certifying the vessel’s security plan. The concern here is that a vessel may belong to a flag state which does not have a strong safety requirement standard. A foreign vessel belonging to a flag state is subject to the review and certification of such state’s safety requirements of that vessel’s security plan. According to Wrightson (2003), the Coast Guard implemented rules to address this issue by verifying that foreign vessels have approved, fully implemented security plans (Wrightson, 2003, pp. 10-11).
Unfortunately, the US Coast Guard admits that its security effort is modeled after the US safety program, which may differ from a flag state’s safety requirements. The Coast Guard is reported to not have contingency plans in place in the event that stronger safety measures than those called for in their current plans are required in order to verify a foreign vessel. These concerns however pertain mainly to foreign flag vessels. US-registered vessels and their corresponding security plans will be reviewed and approved by the Coast Guard. Such review and approval also comes at high costs. In the 2004 budget for the US Coast Guard, the review and approval of the security plans as required by MTSA for domestic vessels alone were set for $ 70 million, with 150 full time personnel required to conduct the review and approval (Wrightson, 2003, pp. 10-11).
Lastly, there is a fourth weakness that can be identified in the MTSA. Although it was discussed that the fact that MTSA does not require for a specific security or action plan for each part, and that action plans are tailored to fit the safety needs of each specific port in the US, this lack of standard site measures may also have its drawbacks. Congress has identified the issue of determining what elements of port security might be best addressed through establishing across-the-board or standard measures applicable to all seaports in the US. These common standards and practices is naturally contradictory to the tailored, site specific approach that MTSA encourages in order to meet the safety needs and specific circumstances of each particular port in the US. For instance, the MTSA does not provide for a specific percentage of cargo which Customs Service should physically inspect at US seaports (Fritelli, 2003, p. 6).
5. Final Assessment and Recommendations to Strengthen MTSA
Despite its flaws, the MTSA is still landmark legislation as it took a huge step in allowing the US to prevent and deal with terrorist attacks on the nation’s maritime ports. Of the 46 key areas identified to implement the requirements of MTSA, 43 of these ports or harbors have already transmitted maritime information which is a preliminary step in helping to establish security systems and action plans (Wrightson, 2003, p. 1). Due to the requirements in MTSA, the Coast Guard has also published its six interim rules on the provisions in the ACT wherein it has lead responsibility pertaining to national maritime security initiatives, area maritime security, vessel security, facility security, outer continental shelf facility security, and AIS. The rules also provided for a comprehensive description of industry-related maritime security requirements and cost-benefit assessments for US ports (Wrightson, 2003, pp. 4-6).
A careful analysis of strategies and issues identified by the US Department of Homeland Security calls for the following recommendations relating to the issues and weaknesses of MTSA identified in this paper (US Department of Homeland Security, 2005):
§ Development of an Infrastructure Recovery Plan which sets standards and procedures for recovery of maritime infrastructure following an attack or similar disruption. This should go hand in hand with vulnerability assessment, in order to respond to the criticism as to lack of usefulness of vulnerability assessments in ports. Vulnerability assessment should thus include assessment as to the costs and extent of recovery needed for an area after a transportation security incident or terrorist attack.
§ Development of an International Outreach and Coordination Strategy. This should allow a framework for the US and foreign governments to coordinate regarding security measures and standards. This will address the issue regarding the Coast Guard verification of foreign flag vessels which may have different security measures and standards as the US.
The other issues identified as weaknesses of the MTSA – costs of putting AIS in place, costs of conducting assessments in ports, and the lack of a standard measure for all ports versus specific area standards per port – have been addressed in the 108th Congress, 1st Session, in HR 2193. The Bill, cited as the Port Security Improvements Act of 2003, provides for funding of port security enhancements pursuant to MTSA. The House Bill provides for standardization of security requirements for ports, vessels and facilities, requiring the Coast Guard to issue regulations under Section 70103, Title 46 of the United States Code, to establish national minimum standards for security requirements for each port, facility in a port in the US, and each vessel entering a US port (§ 5, HR 2193). The Bill also provides for funding sources to enhance port security enhancements in the US (The Orator, 2003). These measures will help address the financial concerns and lack of standard measures in MTSA.
In conclusion, terrorist threat is a real and very global concern. The US, in passing the MTSA, has taken a very important step in addressing this threat. Despite some weaknesses to the law and issues concerning its implementation, it should be noted that it is better to have this law than no legislation or guidelines at all. The government has taken a pro-active step in preventing and responding to terrorist acts through the passage of MTSA. It means not only security of our ports but ultimately, the security and protection of our nation.
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Fritelli, John F. (February 24, 2003). Maritime Security: Overview of Issues. Congressional Research Service (CRS) Report for Congress. The Library of Congress. Retrieved February 26, 2006 from http://www.boozman.house.gov/UploadedFiles/TRANS%20-%20Maritime%20Security%20Overview%20of%20Issues.pdf#search=’Maritime%20Port%20and%20Security%20Act%202002′
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