Navigating the Morass of New Maritime Regulations: The Maritime Transportation Securtity Act of 2002

Legge, Farrow, Kimmitt, McGrath & Brown, L.L.P.

            The purpose of this paper is to provide an overview of the Maritime Transportation Security Act of 2002, and its ramifications upon facilities and vessels operating in the United States.  It also discusses the difficulties owners, operators, and vendors may encounter when visiting or servicing their ships. 

Introduction

            After the September 11, 2001 terrorist attacks, the Department of Homeland Security found it essential to implement port and waterway security measures.  On November 25, 2002, President Bush signed the Maritime Transportation Security Act of 2002 to protect the United States Marine Transportation System (“MTS”).  The MTS consists of all U.S. waterways, ports, vessels, vehicles and navigation systems.  Coastal facilities and plants are critical national assets to the U.S. economy and security, and necessary for continued trade.  However, many ports and waterways are vulnerable to future terrorist attacks, which could lead to catastrophic loss of life and economic disruption.[1] 

            The Secretary for the Department of Homeland Security tasked the United States Coast Guard with the responsibility of implementing the Maritime Transportation Security Act of 2002 (“MTSA”).  The MTSA requires agencies, ports and vessel owners to upgrade security measures and submit security plans to the Coast Guard.  The MTSA became effective on July 1, 2004.  Over 9200 domestic vessels, 3200 port facilities, 361 ports and 40 offshore facilities fall under the MTSA.[2]  Of these vessels and port facilities, 99% had submitted security plans to the Coast Guard pursuant to the MTSA.[3]  In turn, the Coast Guard has approved 90% of these security plans and will likely have reviewed the remaining plans by the July 1 deadline.[4] 

             The international maritime community has also joined in the effort to protect ports and waterways from terrorist threats.  The International Maritime Organization (“IMO”) adopted amendments to the International Convention for the Safety of Life at Sea 1974 (“SOLAS”), which incorporates the International Ship and Port Facility Security (“ISPS”) Code.  The ISPS Code provisions are the first “multilateral ship and port security standard ever created,” and are commensurate with the MTSA.[5]  The ISPS Code requires foreign-flagged vessels and foreign port facilities to implement security plans by July 1, 2004.  Each country must report the status of its compliance with SOLAS and ISPS Code to the IMO.[6]  

 The foreign regimes will further strengthen the security of U.S. ports, vessels and waterways.  The Coast Guard has trained more than 500 inspectors throughout the country to inspect foreign-flagged vessels entering the United States to insure the vessel has implemented security measures pursuant to the ISPS Code.  Each foreign-flag vessel must carry an International Ship Security Certificate demonstrating compliance with SOLAS Chapter XI-2, Part A of the ISPS Code.[7]  Any vessel that fails to produce such certification will be denied access to the U.S.[8]

The MTSA

            The MTSA is codified at Title 46, Subtitle VI of the United States Code.  The Coast Guard has subsequently published six final rules consisting of: Implementation of National Maritime Security Initiatives, Area Maritime Security, Vessel Security, Facility Security, Outer Continental Shelf (“OCS”) Facility Security and Automatic Identification System.  These rules are found in Subchapter H of title 33 of the Code of Federal Regulations (“CFR”) Parts 101, 103, 104, 105 and 106.  The Automatic Identification System rules amend several sections of title 33.

             1)         33 CFR Part 101

                        Part 101 defines many terms necessary to understand the rules.  The following key terms are most relevant to vessel owners, operators and vendors. 

·        Company Security Officer (CSO) means the person designated by the Company as responsible for the security of the vessel or OCS facility, including implementation and maintenance of the vessel or OCS facility security plan, and for liaison with their respective vessel or facility security officer and the Coast Guard.

·        Cruise Ship means any vessel over 100 gross register tons, carrying more than 12 passengers for hire which makes voyages lasting more than 24 hours, of which any part is on the high seas.  Passengers from cruise ships are embarked or disembarked in the U.S. or its territories. 

·        Dangerous Substance or Devices means any material, substance, or item that reasonably has the potential to cause a transportation security incident.

·        Declaration of Security (DoS) means an agreement executed between the responsible Vessel and Facility Security Officer, or between Vessel Security Officers in the case of a vessel-to-vessel activity, that provides a means for ensuring that all shared security concerns are properly addressed and security will remain in place throughout the time a vessel is moored to the facility or for the duration of the vessel-to-vessel activity, respectively.

·        Facility means any structure or facility of any kind located in, on, under, or adjacent to any waters subject to the jurisdiction of the U.S. and used, operated, or maintained by a public or private entity, including any contiguous or adjoining property under common ownership or operation.

·        Facility Security Officer (FSO) means the person designated as responsible for the development, implementation, revision and maintenance of the facility security plan and for liaison with the COTP and Company and Vessel Security Officers.

·        Facility Security Plan (FSP) means the plan developed to ensure the application of security measures designed to protect the facility and its servicing vessels or those vessels interfacing with the facility, their cargoes, and persons on board at the respective MARSEC levels.

·        Foreign Vessel means a vessel of foreign registry or a vessel operated under the authority of a country, except the U.S., that is engaged in commerce.

·        ISPS Code means the International Ship and Port Facility Security Code, as incorporated into SOLAS.

·        Maritime Security (MARSEC) Directive means an instruction issued by the Commandant, or his/her delegee, mandating specific security measures for vessels and facilities that may be involved in a transportation security incident.

·        Maritime Security (MARSEC) Level means the level set to reflect the prevailing threat environment to the marine elements of the national transportation system, including ports, vessels, facilities, and critical assets and infrastructure located on or adjacent to waters subject to the jurisdiction of the U.S.

·        MARSEC Level 1 means the level for which minimum appropriate protective security measures shall be maintained at all times.

·        MARSEC Level 2 means the level for which appropriate additional protective security measures shall be maintained for a period of time as a result of heightened risk of a transportation security incident.

·        MARSEC Level 3 means the level for which further specific protective security measures shall be maintained for a limited period of time when a transportation security incident is probable or imminent, although it may not be possible to identify the specific target.

·        Transportation Security Incident (TSI) means a security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area.

·        Vessel Security Plan (VSP) means the plan developed to ensure the application of security measures designed to protect the vessel and the facility that the vessel is servicing or interfacing with, the vessel’s cargoes, and persons on board at the respective MARSEC Levels.

·        Vessel Security Officer means the person onboard the vessel, accountable to the Master, designated by the Company as responsible for the security of the vessel, including implementation and maintenance of the Vessel Security Plan, and for liaison with the Facility Security Officer and the vessel’s Company Security Officer. 

2)         33 CFR Part 104 – Vessel Security 

A major component of the MTSA is vessel security, which impacts over 9200 domestically operating vessels and all international vessels (through implementation of the ISPS Code by reference) transiting a United States port.  Pursuant to Part 104, domestic vessels must implement a Vessel Security Plan and vessels intending to sail internationally must receive an International Ship Security Certificate (“ISSC”) in accordance with the SOLAS Convention.       

Further, 147 foreign member nations of the SOLAS Convention must submit vessel security plans in accordance with the ISPS Code to their respective administrations.  Upon arriving at a United States port, as mentioned earlier, a foreign-flagged vessel must demonstrate it has fully complied with the ISPS Code.[9]    All vessels must comply with either the MTSA or ISPS Code by July 1, 2004.[10]   

The vessel owner or operator has been tasked to insure its vessels operate pursuant to the MTSA.[11]  Specifically, the owner or operator must:[12] 

·        Define the security organizational structure for each vessel;

·        Designate a Company Security Officer, a Vessel Security Officer and identify how each can be contacted at any time;

·        Insure all personnel receive training, drills, exercises, etc.;

·        Insure vessel records are kept;

·        Insure coordination of security issues takes place between vessels and the port facilities, including execution of a DoS;

·        Insure coordination of shore leave for personnel or crew change;

·        Insure communications are readily available

·        Insure implementation of the requisite MARSEC Level;

·        Insure security systems and equipment are installed;

·        Insure vessel access, embarkation and debarkation are controlled;

·        Insure restricted areas are controlled;

·        Insure cargo and vessel stores and bunkers are handled in compliance with MTSA;

·        Insure restricted areas, deck areas and surrounding vessel is controlled;

·        And for vessels on domestic routes only provide the Master with the following information:

o       Parties responsible for appointing vessel personnel, such as vessel management companies, agents, contractors, vendors, etc. 

The Vessel Security Officer (“VSO”) or Ship Security Officer must be the Master or member of the vessel’s crew.[13]  The VSO has the responsibility to inspect the vessel, insure implication of the vessel security plan, coordinate cargo and stores, propose any modifications to vessel security, train vessel personnel, report security incidents and insure security equipment is tested and maintained.  The VSO oversees the vessel’s security and is responsible for vessel access.   

Maritime interests such as vessels, facilities, vendors, and visitors, may want to request the name of the VSO prior to the vessel arriving at the sea buoy.  Information can be exchanged with the VSO regarding the boarding of the vessel such as name, ID card number, etc., and the equipment the visitor will be carrying on board, i.e. lap top computers, VHF radio, etc.  In addition, the visitor can coordinate with the VSO and determine what type of screening and security measures the vessel currently has in place. This advance information may speed up the boarding interchange and avoid potential problems.  

Visitors will also need to know what MARSEC Level is in effect for the Port.  Each vessel must implement its vessel security plan pursuant to the applicable MARSEC Level.[14]  Knowing the MARSEC Level prior to boarding a vessel will give the vessel visitor a “heads-up” to the degree of security he/she will encounter.  The degree of security increases with the MARSEC Level number, levels 1, 2 and 3 correspond to normal, medium and high threat situations respectively.  The Captain of the Port (“COPT”) determines the MARSEC Level for his port. 

An overview of the MARSEC Levels is as follows: 

MARSEC Level 1 (Vessels must operate at this level at all times)[15] 

1)   The vessel owner or operator must screen all persons, baggage (including carry-on items), personal effects;

2)   Conspicuously display the MARSEC Level in effect;

3)   Check identification of any person seeking to board the vessel, and confirm the reason for boarding the vessel, which includes vendors and Pilots;

4)   Provide a designated area for screening people, baggage, personal effects, etc;

5)   Screen all unaccompanied baggage. 

MARSEC Level 2 

1)         In addition to conducting the same security measures in MARSEC Level 1, the vessel operator or owner must insure MARSEC Level 2 security measures have been implemented;

2)         Increase the frequency and detail of screening people and personal effects;

3)         X-ray unaccompanied baggage;

4)         Limit vessel access points;

5)         Deny people access who do not have a verified destination. 

MARSEC Level 3 

1)         In addition to the security measures listed in MARSEC Levels 1 and 2, the vessel owner or operator must insure implementation of additional security measures;

2)         Screen all persons, baggage and personal effects for dangerous substances and devices;

3)         Screen all unaccompanied baggage more extensively;

4)         Limit access to one point;

5)         Granting access to only those responding to a security incident or threat;

6)         Suspending all embarkation/debarkation of personnel;

7)         Suspend cargo operations;

8)         Evacuate vessel;

9)         Move vessel;

10)       Search entire vessel. 

            Cruise Vessels 

            Regardless of which MARSEC Level is in effect, owners and operators of cruise vessels must insure additional security measures are conducted on board cruise vessels.[16]  The owner or operator must insure the following measures are enforced: 

1)         Screen all persons, baggage, and personal effects for dangerous substances and devices;

2)         Check identification of all persons seeking to board the vessel, including confirmation of the reason for boarding;

3)         Perform security patrols;

4)         Search vessel prior to sailing. 

            Based on the foregoing, all vessel visitors must present their identification tag[17] and orders upon boarding the vessel.  In addition, Pilots and their bags will be subject to screening, although each vessel will vary on how this is implemented.  Depending on the MARSEC Level in place at the time, most vessels will probably screen persons using a wand and/or manual bag search.  Again, this information may be gained from communicating with the VSO for each vessel.  The VSO may give the visitor the vessel’s screening process so each visitor will know what to expect prior to boarding.  At this point in time it is not clear how each vessel will react to these new regulations, and some vessels may have more stringent screening practices and equipment than others, regardless of the applicable MARSEC Level.   

            Vessels Covered by the MTSA 

            The MTSA applies to a wide range of vessels, which could be involved in a transportation security incident while operating on the MTS.  Title 33 CFR Part 101.110 states that “unless otherwise specified, this subchapter applies to vessels, structures, and facilities of any kind, located under, in, on, or adjacent to waters subject to the jurisdiction of the U.S.”[18]  Vessels subject to the MTSA include tank vessels, barges, cargo vessels, passenger vessels, offshore supply vessels and mobile offshore drilling units. 

                        Examples of Vessels Impacted by Part 104[19]  

1)  Small cruise ship transiting from Houston to Mexico;

2)  SOLAS-Certified cargo ship traveling from New Orleans to         Houston;

3) Container vessel carrying cargo from New Orleans to Houston;

4) Container vessel traveling from Hong Kong to Houston;

5) Barge carrying containers from Canada to Houston;

6) Cruise ship leaving and returning to Houston;

7) Dinner boat on Galveston Bay carrying more than  150 persons;

8) Tug and barge carrying petroleum cargo on the Houston Ship Channel;

9) Tanker carrying petroleum cargo;

10) Supply vessel heading from Galveston to an offshore oil rig in the Gulf of Mexico;

11) Mobile offshore drilling unit operating in the Gulf of Mexico.

             3)         33 CFR Part 105 – Facility Security

             The MTSA has defined “facility” very broadly.  The definition encompasses almost every type of waterfront facility located in a port.  As such, visitors must be aware of the type of security measures required for facilities under the MTSA. 

            Similar to the VSO for vessels, the MTSA mandates that facility owners or operators designate a Facility Security Officer (“FSO”), and how to contact that person at all times.[20]  The FSO must insure coordination of access to the facility, implement additional security measures within 12 hours of a MARSEC Level increase, insure regular inspections are conducted, train personnel, maintain records and, when requested, assist the VSO in identifying personnel seeking to board the vessel. 

            An FSO must insure all applicable security measures over facility access are in place.  The facility must designate a location restricting unauthorized access, identify the type of restriction and enforcement, means of identification for access to the facility, identify locations where persons, personal effects and vehicle screening will be conducted, insure an identification system is in place, etc. 

            The access regulations, however, allow facility owners and operators to treat certain long-term, frequent vendor representatives more as employees than visitors.  It is recommended that the frequent visitors submit a request to each FSO that they be designated “frequent vendors.”  This could greatly reduce the screening process and possible transportation problems and delays one may encounter each time he visits a facility to board a vessel.              

The Facility Security requirements also include applicable MARSEC Levels similar in reach and scope as those discussed above for vessels.  The regulations call for increases in screening and security measures as on board vessels.  The visitor will want to ascertain what MARSEC Level is in effect prior to arriving at a facility to board a vessel.  This information can be gained from the COTP. 

            One additional note is that facilities must now implement surveillance equipment, additional lighting, security guards, etc. to continually monitor the facility.  Surveillance includes the facility and its approaches, on land and water; restricted areas within the facility; vessels docked at the facility; and areas surrounding such vessels.  Although all facilities do not currently have dock surveillance, we believe in the future most facilities will install cameras (the cheapest option) on their docks.  These cameras could have some impact on future incidents and litigation involving ships approaching, mooring and unmooring at these facilities. 

            4)         Automatic Identification System 

            The MTSA requires that certain vessels operating on United States navigable waters be equipped with and operate an Automatic Identification System (“AIS”).[21]  The AIS includes a position indicating transponder and an electronic display for accessing the information.[22]  The AIS will allow the Coast Guard and the vessel owner or operator to identify the position and heading of the vessel and other vessels in the area.   

The following excerpt from the Subcommittee Hearings provides a comprehensive overview of the AIS: 

The Coast Guard’s regulations required the installation of AIS on board certain vessels engaged in international trade, as well as certain vessels that transit through vessel traffic systems (“VTS”) in the United States.  The AIS regulations exempt certain fishing and passenger vessels.  The Coast Guard is considering expansion of AIS implementation to vessels not on international voyages outside of VTS and Vessel Movement Reporting System (“VMRS”) areas.

While the MTSA required AIS equipment on all navigable waters of the United States, it allowed the Coast Guard to exempt certain vessels if AIS is not needed for safe navigation on specified navigable waters.  The Coast Guard initially has decided to implement AIS predominantly in VTS and VMRS areas as they become equipped with AIS capability.  The Coast Guard intends to carry out this mandate completely, however, at this early state of AIS deployment, the Service deems it important to require an AIS, particularly in congested waters, where it has the capability to manage the AIS VHF data link.  The Coast Guard anticipates having these facilities in most major U.S. waterways, but intends to proceed on a rollout plan by waterway.[23] 

Penalties for Violations of the MTSA 

            Title 33 CFR Part 101.415 provides for civil and criminal penalties for violations of the MTSA.  Any person who violates the MTSA, including a Maritime Security Directive, is liable for a civil penalty of not more than $25,000.  Enforcement of this provision is in accordance with 33 CFR 1.07.  Violators have already been prosecuted by the Federal Government.  In 2003, guilty pleas were obtained in a case involving violations of the MTSA in the form of falsifying security documents in violation of facility security plans.  Those defendants face up to eleven years in prison and a hefty fine. 

            While the MTSA does not specifically provide for criminal or civil penalties regarding vessel vendors or other maritime visitors, we believe vessel and facility owners will seriously enforce their security plans and may report any persons violating applicable security measures.  Pursuant to Part 101.415, the language is clear that “any person who does not comply with any other applicable requirement under this subchapter” shall be liable for a civil penalty of not more than $25,000.  This provision authorizes the Coast Guard to penalize any person who violates the MTSA.  Thus, if a visitor refuses to follow a vessel’s or facility’s security measures, and it is reported by the vessel or facility, he or she could face civil penalties.   

            Further, 33  CFR 1-07-10 states that any person may report a violation of any law, regulation or order that is enforced by the Coast Guard, and the Coast Guard has authority to investigate and evaluate any such violations.  At this time it is not clear how the Coast Guard will handle non-threatening “breaches” of security.  However, considering the seriousness of national security, and the fact a vessel and facility must enforce its security plans, the Coast Guard will likely investigate all reported violations.  As such, visitors should be prepared to cooperate and follow all applicable security measures on board vessels and in port facilities.     

Conclusion 

            The MTSA is in its infancy and most vessels and facilities will likely face “growing pains” as they attempt to implement their security plans.  However, the MTSA is here to stay and vessel interests and visitors should be aware of the MTSA provisions and its possible implications on their profession.  It is hoped that, other than screening and stricter facility access, the MTSA will not substantially alter one’s normal routine.  Effective communication between vessels, facilities, vendors, and visitors, will greatly assist a smooth transition.   

            For additional information on the MTSA and its effect, please don’t hesitate to contact us.