Havnen:Port Security has Become the Dominant Maritime Issue

Much has been happening in the area of Transportation Security. The Department of Homeland Security has been created and will officially open its doors on March 1, 2003. The Coast Guard will remain intact and be an integral part of the new department. The International Maritime Organization (IMO) in London has been furiously at work generating new international standards. Last and not at all least, the Maritime Transportation Safety Act of 2002 (MTSA) is now the law of the land.

For almost a year the Congress has been at an absolute impasse on the subject of maritime security. Suddenly, it has become sufficiently important (after the election) to draw the full attention of the Congress. The Lame Duck session of the Congress performed what had been impossible for the entire year. Truly miraculous.

Port Security has become what must be considered to be a major shift in direction on the part of the U.S. maritime regulators. In the past hundred years we have seen several issues that have dramatically impacted upon the maritime. They include WWI, Prohibition, WWII, the Cold War, OPA '90, and now the War on Terrorism. This is not to say that the War on Terrorism carries equal weight with either World War (or the Cold War, for that matter), but the impact on the maritime will be of enduring consequence and change our national maritime direction for the foreseeable future.

One may disregard the magnitude, focus and drive of the MSTA but only at one's own peril.

The new Maritime Security Act seems to be as broad in scope as OPA 90. It seems probable that the Coast Guard will use many of the tools that were developed for OPA 90 compliance with terminology and methodology similar in many respects. There are several elements of the Act that cannot go without specific mention.

The Act includes annual security grants for facilities and port authorities, although the one-time $125 million funding for the current year comes from a different statute. There are also annual research and development grants available to help the technology evolve.

Vessel & Facility Security Plans: The Coast Guard has one year to develop regulations for vessel and facility security plans; once they are implemented, operators will then have six months to submit plans for approval. The USCG has already published mandatory standards for passenger vessels and voluntary standards for other vessels in the form of Navigation Vessel Inspection Circulars (NVIC 10-02, 09-02, and 04-02).

Vessel and facility security plans will be required for most inspected commercial vessels, the exceptions being small passenger vessels, towing vessels, and the facilities where these vessels routinely pick up and/or discharge cargo or passengers. The security plans will most probably be similar to OPA 90 vessel and facility response plans. USCG Marine Safety Offices will review and approve facility security plans and CG Headquarters (or a contractor working for HQ) will review and approve vessel security plans. Mandatory initial qualification and periodic training will be required for personnel involved with security and security management.

Transportation Security Incident Response Plans are also required for both vessels and facilities but may be made part of the required security plans.

Automatic Identification System: The IMO has initiated requirements to equip vessels engaged in international trade with Automatic Identification System (AIS) black boxes that will communicate with various vessel traffic services (VTSs) all over the world. The new law, MSTA, adds vessels to the list of vessels that must be equipped with AIS:

• Commercial self-propelled vessels over 65 feet in length.

• Towing vessels over 26 feet length and 600 horsepower.

• A vessel carrying more passengers for hire as determined by the USCG.

• Any other vessel for which the USCG thinks AIS is necessary for safe navigation of the vessel.

It is not yet clear when regulations for the mandatory AIS will become affective.

Transportation Security Cards (TSCs): New Transportation Security Cards are mandatory for personnel entering designated secure areas on vessels and facilities requiring approved security plans. Personnel requiring the cards include:

• An individual allowed unescorted access of a secure area of a vessel or facility,

• Licensed or documented (z-card) personnel,

• Vessel pilot,

• An individual engaged on a towing vessel the works with tank vessels,

• An individual with access to security sensitive information as determined by the Secretary of Homeland Security,

• Other individuals engaged in port security activities.

The MTSA states that some individuals may be denied a TSC if they meet any of the following criteria:

• Convicted of a felony within 7 years of application;

• Released from incarceration for a felony conviction within 5 years of application;

• Someone who may be denied admission to or removed from the US under the Immigration and Nationality Act;

• Anyone otherwise posing a terrorism security risk to the US.

It would appear that anyone convicted of a drug violation will most probably be excluded, and that exclusion will probably extend to all crimes of violence as well. There will be a waiver process wherein individuals who otherwise could be excluded may be accepted.

Internationally, the MTSA allows for the development of an acceptable identification documents. The US will almost certainly impose unilateral requirements if no acceptable system for foreign seamen exists in two years.

Long-Range Vessel Tracking: The statute directs the development and implementation of a long-range automated vessel tracking system for all vessels that are equipped with Global Marine Distress and Safety System (GMDSS).

User fees may be imposed for all or any part of the requirements contained within this law.

The MTSA is a truly comprehensive statute, covering a broad range of security topics. There is no question that our world has changed for the foreseeable future.

One burning question: When will all this take place? The security plan requirements must be published within a year. The AIS carriage requirement will probably be effective for vessels in international trade and those included under the MTSA in approximately two years. There may be a phase-in period for mandatory carriage by some of the smaller vessels. The Transportation Security Cards themselves will probably take one to two years (at a minimum) to come into widespread use. It is not even clear yet who will issue the cards - the Coast Guard, Transportation Safety Administration, or some other agency. One thing is for certain - only time will tell.

The discussions within this article represent but a small portion of the items within the Act that have impact upon typical port workers, mariners, and others routinely involved in maritime operations. We will continue to follow this thread in later articles.

The past 50+ years of marine transportation in the US have emphasized facilitating the prompt passage of cargo, passengers (and crews) into, out of, and around our country. Are we going to reverse this progress? Much of that ease of motion seems to have disappeared under the current threat of terrorism. Our conscious attention to caution has induced friction into the once-smooth process.

Many are concerned about the ability of our maritime infrastructure to survive this dramatic change in direction. One need only recall the SS Exxon Valdez grounding, the subsequent Oil Pollution Act of 1990 (OPA 90), and the tremendous uproar they caused. Despite the massive upheaval at the time, the entire maritime has learned to live with these massive changes without much fanfare today.

In 10 years, will we be able to look back on today's changes and shrug our shoulders at the uproar about the MTSA and the sweeping, fundamental changes it will cause? Probably.

Charley Havnen is a Commander USCG Ret. His organization can help you with your vessel construction project, regulatory problems, vessel manning issues, procedure manuals, accident analysis or serve as an expert witness. His organization can do what you can't or don't want to do. Check out the Havnen Group's website at havnengroup.com. They can also be reached by contacting the Havnen Group in New Orleans: (800) 493-3883 or (504) 394-8933, fax: (504) 394-8869.