The Irony Of Maritime Security

By Dennis L. Bryant, Senior Maritime Counsel, Haight Gardner Holland & Knight, Washington, D.C.

now appears that the 107th United States Congress will enact new maritime security legislation during a lame-duck session to be held this month. This is ironic since both Senate and the House of Representatives passed maritime security bills months ago, the two measures were largely similar, and the two houses have been conferencing on development of a joint measure for some time. The purpose of this paper is not to dwell on the issues that delayed earlier passage of the measure. Rather, it is to review what new maritime security measures have been adopted by the various federal agencies utilizing their existing authority.

As with the beginning of U.S. involvement in WW II and the Korean War, the War against Terrorism has started out as a 'come as you are' event. While Congress has passed supplemental appropriations bills, it has been noticeably slow in enacting new legislation intended specifically to provide new legal tools to reduce the risk of maritime terrorism in the United States. As the world saw on October 6, 2002 with the terrorist attack on the French supertanker Limburg in Yemen, the maritime security threats are very real and can take many guises.

Thus far, the majority of actions taken by the federal agencies charged with maritime security missions have been undertaken utilizing old statutory authority. Some measures (including some that have generated controversy), though, have been undertaken utilizing little-noticed provisions found in recent legislation.

Old Tools The U.S. Coast Guard's broad port security authority dates from the Espionage Act of 1917. Port security authority was enhanced with enactment of the so-called Magnuson Act in 1950, shortly after the Korean War began. The Ports and Waterways Safety Act of 1972 expanded the program further, focusing this time on maritime safety issues. The Coast Guard also has responsibility to 'superintend' the merchant marine. The Customs Service has enforced the nation's customs laws since the earliest days of the Republic. The Immigration and Naturalization Service (INS) has broad authority to regulate entrance of aliens into the United States.

New Tools It would be inaccurate to say that, since the terrorist attacks of September 11, 2001, Congress has not enacted any measures that have the effect of enhancing the maritime security of the United States. Five new laws have made their impact felt, even though the measures were not primarily concerned with maritime security.

The USA PATRIOT Act of 2001 (Pub.L. 107-56), in addition to authorizing enhanced surveillance techniques and broadening the laws relating to illegal money laundering, directed the Department of Justice to implement an integrated entry and exit data system at all ports of entry, including seaports.

This measure lead to the recent implementation of the National Security Entry-Exit Registration System (NSEERS), under which non-immigrant aliens, including seafarers, from certain nations are required to be photographed, fingerprinted, and interviewed when arriving in the United States. The current list of nationals subject to special registration includes Iran, Iraq, Libya, Sudan, and Syria, plus males between the ages of 16 and 45 from Saudi Arabia, Yemen, and Pakistan.

The Aviation and Transportation Security Act of2001 (Pub.L. 107-71), in addition to establishing the new Transportation Security Administration (TSA) and federalizing airport security, provided the TSA with authority to develop policies, strategies, and plans for dealing with threats to transportation security. The TSA is also directed to ensure the adequacy of security measures for the transportation of cargo; oversee the implementation, and ensure the adequacy, of security measures at transportation facilities; and require background checks for transportation security personnel. Subject to the direction and control of the Secretary of Transportation, the Under Secretary of Transportation for Security, during a national emergency, is also charged with coordinating domestic transportation security (including port security).

The Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub.L.

107-173) added the requirement to include crew members on the passenger manifests of vessels arriving in the United States and directed that such manifests are to be submitted to the Immigration and Naturalization Service (INS) electronically commencing not later than January 1, 2003. The passenger manifest is to include, where applicable, the alien's U.S. visa number, date, and place of issuance.

The Terrorist Bombings Convention Implementation Act of 2002 (Pub.L.

107-197) makes it a federal crime for any person on board a foreign vessel in U.S. waters to deliver, place, discharge, or detonate an explosive or other legal device in, into, or against a public transportation system with intent to cause death or serious bodily injury or with intent to cause extensive destruction.

Conspiracies and attempts to commit such crimes are also punishable under this Act. 'Public transportation system' is defined to include all facilities, conveyances, and instrumentalities, whether publicly or privately owned, that are used in publicly available services for transportation of persons or cargo. If the Limburg attack had taken place in the United States, and the perpetrators were arrested, they would be prosecuted under this statute.

The Trade Act of 2002 (Pub.L. 107- 210), which is largely devoted to giving the President 'fast-track' authority to negotiate a trade agreement with Andean nations of South America, contains a provision authorizing the Customs Service to require transmission to the agency, through an electronic data interchange system, of information pertaining to cargo destined for importation into or exportation from the United States prior to such importation or exportation. The information required shall be that which is determined to be reasonably necessary to ensure transportation safety and security. The statute also authorizes the Customs Service to require expanded documentation of waterborne cargo to be exported from the United States.

The centerpiece of the new U.S. maritime security initiative was intended to be the combination of the Senate's Port and Maritime Security Act (S. 1214) and the Maritime Transportation Antiterrorism Act (H.R. 3983) adopted by the House of Representatives. As noted above, this measure has not come to fruition due to circumstances outside the bounds of the original bills.

Recent Initiatives Coast Guard Initiatives Following the events of September 11, the U.S. Coast Guard immediately established security zones and safety zones in most major U.S. ports. Sea Marshals were placed on many vessels entering or departing some ports and vessels of high interest (e.g., passenger vessels, LNG carriers, LPG carriers, etc.) were escorted by Coast Guard patrol boats. The agency has imposed, on an as-needed basis, added requirements for security of waterfront facilities.

Vessels are now required to submit their Advance Notices of Arrival at least 96 hours prior to arrival at their first U.S. port of call. Information to be included in this Notice has been expanded to include a complete list of all persons on board, a general description of the cargo, and the identity of the charter- er. The Coast Guard has also issued guidelines for port security committees and for preparation of port security plans.

The Coast Guard also resurrected a regulation originally promulgated in 1952 requiring maritime identification credentials. The regulation, which had not been enforced in decades, requires persons wanting access to waterfront facilities, areas within a port or harbor, vessels, and harbor craft to carry and produce upon proper request identification credentials acceptable to the U.S.

Coast Guard. To be acceptable, the credential must (at a minimum) be laminated or otherwise secured against tampering and contain the person's full name, a current photograph, and the name of the issuing authority. Acceptable credentials include a military identification card, a badge for a federal employee, a driver's license or official identification card issued by a Department of Motor Vehicles within the U.S., a merchant mariner's document issued by the U.S.

Coast Guard, a valid passport, a local law enforcement credential, an identification credential issued by a state or local port authority, or an identification credential issued by a company, union, or trade association. Meanwhile, the U.S. Department of Transportation is at work developing standards for a National Transportation Workers' Identification Card (TWIC) and the International Labour Organization (ILO) is developing standards for an internationally uniform and secure Seafarer's Identification Document.

Customs Service Initiatives The Customs Service recently issued a proposed rule that would, if it comes into effect, require ocean carriers to electronically present detailed manifest information to the agency at least 24 hours prior to lading the cargo on a vessel bound for the United States. The proposal would also require that the manifest report include a precise description and weight of the cargo or, for a sealed container, the shipper's declared description and weight. Generic descriptions, such as FAK (freight of all kinds), general cargo, and STC (said to contain) would not be acceptable.

The proposal has engendered severe criticism as being commercially unworkable.

In addition to the proposed 24-hour advance manifest reporting requirement, the U.S. Customs Service has undertaken a variety of measures to enhance cargo security. It has increased the percentage of cargo (particularly containerized cargo) that is subject to inspection.

It has deployed non-intrusive inspection devices (such as large x-ray and gammaray equipment) to examine entire containers in one sweep without breaking the seals. The Customs-Trade Partnership Against Terrorism (C-TPAT) enlists shippers, carriers, and intermediaries in a voluntary program to enhance security throughout the international supply chain. C-TPAT participants can expect a lower level of Customs scrutiny for cargo and vessels arriving in the United States. The Container Security Initiative (CSI) is a bi-lateral program with customs agencies in other nations whereby U.S. Customs officials working alongside host-nation customs officials help identify containers bound for the United States that should be subjected to increased scrutiny. The goal is to expedite processing of containers from those locations when they arrive in U.S. ports.

To date, the following have agreed to participate in the CSI program: Canada, Singapore, Netherlands, Belgium, France, Germany, Hong Kong, and Japan. The European Commission (EC) and others have been critical of CSI as potentially providing participating ports with an unfair competitive over smaller, non-participating ports.

I N S Initiatives In addition to the NSEERS program described above, the U.S. Immigration and Naturalization Service (INS) has begun issuing 'detain on board' orders relating to alien crew members whom the agency believes may present a security risk to the United States or whom the agency believes may not depart with the vessel when it leaves port. Issuance of a 'detain on board' order was a rare occurrence prior to the terrorist attacks.

Now, it is quite common, particularly for certain U.S. ports on Gulf of Mexico.

At times, issuance of a 'detain on board' order has many similarities to lightning — one often doesn't know when and where it will strike. A ship making port calls in different ports, but with the same crew, has sometimes been issued such an order in one port, but not another. 'Detain on board' orders have been issued up to 24 hours after the ship arrives. Masters have been refused permission to fly 'suspect' crewmembers out of the country. The INS refuses to disclose, even in general terms, what triggers a 'detain on board' order. If such information were disclosed, vessel owners and operators could reduce the risk that is apparently being presented to U.S. homeland security by the presence of these suspect crewmembers. Controversy over this policy continues.

The INS has also ceased granting routine waivers for seafarers to come ashore without all required documents.

In many countries (and, previously, in the United States), seafarers were allowed shore leave and other privileges without the formality of passports and visas. That is no longer the situation in the U.S. A foreign seafarer without a valid passport and a current U.S. visa (either a personal visa or by being included on a crew list visa) is no longer allowed ashore in the U.S. except for urgent medical care. At the same time, the U.S. Department of State is proposing to eliminate the crew list visa and has increased the processing fee for a nonimmigrant visa to $100 (from the prior fee of $65). For a variety of rea- sons, processing time for U.S. visa applications in many consulates around the world has increased to two months and more. These developments have effectively made U.S. visas out of reach for many seafarers, particularly those from third world nations. The Seamen's Church Institute and other seamen welfare groups have complained about the adverse impact these initiatives have on morale of crewmembers.

Initially, the U.S. Coast Guard was assisting, in an ad hoc manner, with enforcement of the 'detain on board' orders. Recently, the two agencies have developed a Standard Operating Procedure (SOP) whereby the Coast Guard will issue a Captain of the Port (COTP) Order requiring a vessel for which a 'detain on board' order has been issued to remain outside the three-mile limit until it submits a crewmember security plan and the plan has been approved by the INS. Almost always, the plan is required to include arrangements for hiring by the vessel of a commercial guard service to provide a visible deterrent against detained crewmembers departing the vessel.

The INS inspector examines detained crewmembers when the vessel arrives and generally attends the vessel when it departs to ensure that all crewmembers depart with the vessel. The vessel will remain under the COTP Order for the entire port call, so that any deviation from the approved crewmember security plan or other requirement constitutes a violation of federal law.

Future Actions The U.S. Coast Guard will continue to work with the Department of Transportation, the Maritime Administration (MarAd), and other agencies to develop a National Transportation Workers' Identification Card (TWIC). Even if the pending maritime security legislation is not enacted this year, the Coast Guard may well establish a requirement that vessels calling in U.S. ports prepare (and submit to the Coast Guard for approval) ship security plans largely consistent with IMO policy. The IMO requirements, due to be adopted in December 2002, probably will not come into effect until July 2004 at the earliest.

The Coast Guard can be expected to advance the effective date for vessels making U.S. port calls.

The U.S. Customs Service will continue to deploy additional equipment to conduct nonintrusive inspections of containerized cargo. It will continue its efforts to broaden its Container Security Initiative to all major ports that export containerized cargo to the United States.

It will continue to enroll shippers, carriers, and intermediaries in C-TPAT. Following some adjustments, the Customs Service can be expected to adopt its proposed regulation requiring carriers to electronically submit manifests 24- hours prior to lading cargo bound for the United States, although the effective date will probably be delayed while the agency 'ramps up' the personnel and computers needed to process the thousands of manifests that it will receive daily.

Conclusion Federal agencies involved in port and maritime security (particularly the Coast Guard and the Customs Service) have not waited for Congress to enact the maritime security legislation.

Rather, they have utilized (and will continue to utilize), to the maximum possible extent, the considerable authorities they now possess to enhance the port and maritime security of the United States.

There will be the inevitable missteps and a long learning curve for all involved (including the agencies involved, individual enforcement officials at the port level and ship owners and operators), but events such as the attack on the Limburg have added renewed emphasis to maritime security.

Maritime Reporter Magazine, page 18,  Nov 2002

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