As Concerns About Seaport Security Mount, the U.S. Government Reacts

"Maritime Domain Awareness" is the new watchword for the maritime community. The discovery of a well equipped, suspected Al-Qa'eda member in a cargo container in Italy was one of the recent stark lessons in the vulnerability of maritime transportation security. In addition, the U.S. Coast Guard temporarily denied entry to the liquefied natural gas tanker Matthew to Boson for insufficient security and a crew member on another vessel who jumped ship in New Orleans was later found to have the telephone number of an Al-Qa'eda terrorist.

Congress and the Executive branch are now turning their attention to improving seaport security in ways that could disrupt the movement of ships, freight, crews, and passengers and result in major operational changes for companies in the industry. The boundaries and details of the coming changes are yet to be determined, but the urgency of the concerns and the scope of the activity throughout the government agencies that regulate the maritime industry make major changes highly certain.

Congress Poised to Take Action Security Industry concerns about increased costs and labor concerns about criminal background checks are less likely to be central to the debate. The mantra of "whatever it takes" will be more likely to be heard. The discovery recently of a suspected Al-Qa'eda member in a cargo container in Italy (headed for Canada) will further increase pressure to take action. Since September 11, ten bills have been introduced in Congress directly addressing port and maritime security issues. Among the proposals are bills that would: • Require all cargo entering the U.S. to be inspected; • Establish a new government agency to coordinate domestic transportation modes during national emergencies; or • Make permanent the 96-hour notice of arrival requirements for vessel operations. While it is unclear that any law will be enacted this year, the Senate is likely to debate a bill the week of November 5. That Senate bill, S.1214, originally focused primarily on cargo theft issues, including development of port security plans, grants and loan guarantees for port security projects, and funding screening and detection equipment purchases for the U.S. Customs Service. Post September 11, the bill was substantially revised to focus on broader port security issues, including creating new cargo documentation and passenger and crew manifest information requirements and prohibiting covered employers-defined by the bill as "an ocean carrier, foreign ocean carrier, port authority, marine terminal operator, or ocean shipping intermediary"-from hiring individuals that fail to meet certain criteria (e.g., criminal background checks) for security-sensitive positions. Employers would be required to pay fees associated with carrying out background checks and investigations of employees. A recent revision of the Senate bill require the Secretary of Transportation to supervise port security planning instead of leaving that responsibility on the local level. Seaport vulnerability assessment are required beginning with the top 50 ports and, under a newly added rail section, Amtrak security would also be improved. The legislation would reauthorize an extension of tonnage duties through2006 on foreign vessels entering the United States to help pay for these costs associated with the bill. Rep. Corrine Brown has introduced a companion bill to the Senate's Port and Maritime Security Act in the House. Consultations with House staff, however, have indicated that the House will be looking at different methods to make U.S. ports more secure and may require vessels to do some preparation abroad before entering a U.S. port. Executive Branch agencies are also imposing new regulations of port and maritime operations and are discussing various methods of improving security in the transportation sector. Since September 11, the Coast Guard has issued a temporary final rule changing the notification requirements for vessels entering or departing from U.S. ports from 24 hours to 96 hours "to ensure receipt of comprehensive and timely information on vessels entering U.S. ports." The Coast Guard has also established numerous "temporary moving security zones" around tank vessels, passenger vessels and military ships entering or departing U.S. ports and has increased regulations in certain anchorage areas and regulated navigation areas. Everyone has been asked to be aware of suspicious activities within the maritime environment and report them to the nearest Captain of the Port or call 1-800-424-8802. President Bush created the Office of Homeland Security (OHS) on October 8, 2001, and Governor Tom Ridge of Pennsylvania appointed as its Director. OHS is to "coordinate efforts to protect transportation systems within the United States, including railways, highways, shipping, ports and waterways, and airports and civilian aircraft, from terrorist attack." OHS is likely to take and active role in developing and coordinating transportation security policies. Port security was one of the issues discussed at the first meeting of the Homeland Defense Council on October 29. Other agencies, such as Customs, will likely continue to increase security measures at U.S. ports. In addition, a Treasury Advisory Committee on Commercial Operations of the U.S. Customs Service is scheduled to discuss on November 15, 2001 the impact of the Port and Maritime Security Act of 2001 and the Department of Transportation's National Infrastructure Security Committee is already focused on maritime security issues. The U.S. must strike a delicate balance between facilitating international commerce and ensuring security at the nation's ports and on vessels entering those ports. Source: Preston/Gates/Ellis & Rouvelas/Meeds LLP