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August 2008

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Maritime Security

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 Reprinted from the AUGUST 2008 Edition of Maritime Reporter & Engineering News
Maritime Security and the Coast Guard Authorization Act of 2008
From Canines to Liquefied Natural Gas
By Jonathan K. Waldron and
Charles T. Blocksidge
For the past several years, maritime security
has been on everyone's mind. From the halls
of Congress to the longshoremen working the
midnight shift, the threat of a possible terrorist
attack on the maritime interests of the United
States and dealing with new security require-
ments have kept this topic on the front burner.
While most in the maritime industry are rela-
tively aware of the legislation that has been
promulgated since the terrorist attacks of
September 11, 2001, new evolving legislation
continues to be implemented. In this regard,
the most recent legislation that addresses the
continuing implementation of the maritime
security regime is the Coast Guard
Authorization Act of 2008, HR 2830 (the
"Bill"). It is sort of a misnomer to state this is
"recent" legislation since it has been bouncing
around Congress for the last year or so, but
nonetheless, maritime security continues to be
a priority for most lawmakers. This article
provides an overview of the security related
provision of the Bill so that the regulated com-
munity can continue to monitor possible future
requirements and programs to assist in their
security related efforts.
The Bill was passed by the House of
Representatives on April 24, 2008 by a vote of
395-7. In short, the Bill authorizes $8.4 billion
for Coast Guard programs for the current fis-
cal year. With regard to security, the Bill con-
tains several, twenty-four to be exact, provi-
sions that deal with maritime security issues.
The more important of these provisions will
be discussed in more detail below.
Specifically, the Bill, in part, expands the
Coast Guard's canine team program, further
implements the Transportation Worker
Identification Credential ("TWIC") program,
and provides logistical and jurisdictional guid-
ance for the security of Liquefied Natural Gas
("LNG") facilities, both onshore and offshore.
The Senate version of the Bill, S. 1892, was
introduced in 2007 and was placed on the
Senate legislative calendar for further action
on February 5, 2008. S. 1892 does not con-
tain any different security provisions of par-
ticular note.
It appears, however, that the Coast Guard
Authorization Act of 2008 is going no where
fast. As widely reported in the news media,
President Bush threatened to veto the Bill
based primarily on the provisions requiring
the Coast Guard to take responsibility for
security around LNG facilities, which the
Administration asserts is a state and local
responsibility. While the President has taken
no definitive action on the Bill, given other
political priorities, including the public and
Congressional focus on the economy, the war
in Iraq and the elections, it is unlikely that the
Senate will be willing to take action on the
Bill this year. Without Senate action, the
work done by the House of Representatives
will be lost for 2008. In any event, however,
these security provisions will at a minimum be
taken up again next year after the elections.
TITLE VII: PORT SECURITY
Section 702: Transportation Worker
Identification Credential: The subject of
Section 702 is one of the most relevant for
maritime operations in the near future since it
concerns the TWIC program, which has
become the biggest sore spot with regard to
security implementation. This Section would
require that an assessment of the TWIC pro-
gram be submitted by the Coast Guard to the
House Committee on Homeland Security, and
Senate Committees on Commerce, Science,
and Transportation, and Homeland Security
and Governmental Affairs. This report would,
among other things, contain an assessment of
the TWIC program after it is implemented at
the ten ports designated a top priority by the
Department of Homeland Security ("DHS").
In addition, DHS recently changed the final
implementation date for the TWIC program.
When the TWIC final rule was promulgated in
January 2007, DHS allowed 20 months for all
affected maritime workers to receive their
TWIC. This time frame was established, in
About the Authors
Left: Jonathan K. Waldron, Partner, Blank Rome LLP
tel: 202.772.5964; Email: Waldron@BlankRome.com
Waldron concentrates his practice in maritime, international, and envi-
ronmental law, including maritime security.
Right: Charles T. Blocksidge, Associate, Blank Rome LLP
tel: 202.772.5834; Email: Blocksidge-C@BlankRome.com
Charles Blocksidge, a former naval officer, concentrates his practice
in the areas of maritime and environmental law for domestic and inter-
national clients.
part, to allow for the opening of a sufficient
number of TWIC enrollment centers to
accommodate the need, which put the effective
date at September 25, 2008. Given the extra
time it has taken to establish a sufficient num-
ber of enrollment centers, there are currently
approximately 100, the effective date has been
extended to April 15, 2009. The implementa-
tion for shore-based facilities and Outer
Continental Shelf ("OCS") facilities will con-
tinue to be on a rolling basis with a 90-day
notice to coincide with the enrollment status in
their particular Coast Guard Captain of the
Port zone. However, it appears that the April
15 date will be the final implementation date
upon which all mariners must obtain a TWIC
and owners and operators of vessels, facilities
and OCS facilities must implement access
control procedures utilizing TWIC. Interested
parties should continue to monitor the Federal
Register as to the exact rollout dates for each
port.
Section 705: Maritime Security Response
Teams: Section 705 would require that no less
than two maritime security response teams be
established to act as the Coast Guard's rapidly
deployable counterterrorism and law enforce-
ment response units. The goal of these teams
would be to apply advanced interdiction skills
Reprinted from the AUGUST 2008 Edition of Maritime Reporter & Engineering News
in response to threats of maritime terrorism in
a timely manner and in coordination with
other federal, state, and local law enforcement
and emergency response agencies.
Section 706: Coast Guard Detection Canine
Team Program Expansion: Section 706 would
require that, no later than 240 days following
enactment of the Bill, the Coast Guard would
begin to increase the number of detection
canine teams for the purpose of maritime secu-
rity. In particular, the number of teams would
be increased by no fewer than ten teams annu-
ally through 2012. Additionally, this Section
would encourage owners and operators of port
facilities, passenger ships, ocean-going cargo
vessels, and other vessels to utilize canine
teams. These teams would be deployed to
ports based on risk, consistent with the
Security and Accountability for Every Port Act
of 2006.
Section 707: Coast Guard Port Assistance
Program: Section 707 is intended to assist
owners and operators of foreign ports in bring-
ing their particular port into compliance with
the International Ship and Port Facility
("ISPS") Code. In particular, DHS would
lend, donate or otherwise provide equipment,
and provide technical training and support
based on the risks to the security of the United
States, the inability of the port or facility to
come into and remain in compliance with the
ISPS Code standards and the precondition that
the port or facility has been subjected to a
comprehensive port security assessment by the
Coast Guard.
Section 709: Review of Potential Threats:
Section 709 would require DHS to submit a
report to the House Committee on Homeland
Security and the Senate Committee on
Commerce, Science, and Transportation ana-
lyzing the threat, vulnerability, and conse-
quence of a terrorist attack on the gasoline and
chemical cargo shipments in port areas of the
United States not later than one year from
enactment of the Bill.
Section 710: Port Security Pilot: Section 710
would establish a pilot program to test and
deploy preventive radiological or nuclear
detection equipment on Coast Guard vessels
and other locations in select port regions to
enhance border security.
Section 711: Advance Notice of Port Arrival
of Significant or Fatal Incidents Involving U.S.
Persons: Section 711 would require owners
and operators of cruise ships that embark and
disembark passengers in the United States to
notify the Coast Guard of any covered securi-
ty incident that occurs on the cruise ship in
which a U.S. person is involved in conjunction
with its advance notice of arrival requirements.
A covered security incident includes any crim-
inal act or omission that results in death or
bodily injury, all sexual assaults and missing
persons, or any other incident that poses a sig-
nificant threat to the cruise ship, any cruise
ship passenger, any port facility, or any person
in or near the port. This information will be
maintained on a publicly available internet
database and where the cruise lines will be
identified by name along with the alleged
crime. Additionally, cruise lines will be
required to have a link from their own web-
sites to this database.
Section 714: Comparative Risk Assessment of
Vessel-Based and Facility-Based LNG
Regasification Processes: Section 714 would
require that a study be conducted within 90
days of passage of the Bill comparing the safe-
ty and security risks associated with vessel-
based and facility-based LNG regasification
processes conducted within three nautical
miles from land versus such processes con-
ducted more than three nautical miles from
land. This study would need to be completed
and presented to the House Committees on
Homeland Security, Transportation and
Infrastructure, and Energy and Commerce and
the Senate Committees on Homeland Security
and Governmental Affairs and Commerce,
Science, and Transportation within a year of
the enactment of the Bill.
Section 719: Seamen's Shoreside Access:
Section 719 would require each facility securi-
ty plan to provide a system for seamen to
board and depart vessels at a facility in a time-
ly manner at no cost to the individual.
Section 720: Waterside Security around LNG
Terminals and LNG Tankers: Section 720
would require enforcement, by the Coast
Guard, of any security zone established by the
Coast Guard around an LNG tanker, offshore
or within navigable waters. In the event mul-
tiple security zones are established, the Coast
Guard would be required to make a decision to
allocate adequate resources to deter a
Transportation Security Incident ("TSI"), to
the maximum extent practicable. A TSI is
defined as a security incident resulting in a sig-
nificant loss of life, environmental damage,
transportation system disruption, or economic
disruption in a particular area. In order to
carry out these enforcement activities, the Bill
would permit limited reliance on state and
local governments as long as the state or local
government enters into a contract, cooperative
agreement, or other arrangement with the ter-
minal operator to provide such services. This
is the specific provision of the Bill that is the
source of the Administration's threatened veto.
Section 721: Review of LNG Facilities:
Section 721 would require DHS to notify the
Federal Energy Regulatory Commission
("FERC") when a determination is made that
the waterway to a proposed land-based facility
is suitable or unsuitable for the maritime traf-
fic associated with such a facility. Within 90
days of such notice of determination, FERC
would have to notify DHS of what action it
intends to take regarding a proposal to con-
struct and operate an LNG terminal.
Section 723: Report on State and Local Law
Enforcement Augmentation of Coast Guard
Resources with Respect to Security Zones and
U.S. Ports
Section 723 would require a report, within
180 days of the enactment of the Bill, to the
House Committees on Homeland Security,
Transportation and Infrastructure, and Energy
and Commerce and the Senate Committees on
Homeland Security and Governmental Affairs
and Commerce, Science, and Transportation
regarding the state and local law enforcement
augmentation of certain Coast Guard
resources. Specifically, the report would have
to address the extent to which state and local
law enforcement resources are augmenting
Coast Guard resources that are being used to
enforce security zones around vessels transit-
ing to, through, or from a United States port or
conducting port security patrols.
Even though it appears unlikely that new
security legislation will be enacted in 2008,
given that over 95% of the U.S. international
trade is transported by water, maritime securi-
ty issues will continue to be a priority for
Congress and the public at a minimum by next
year. Owners and operators of vessels and
other interested stakeholders must continue to
be ever-vigilant in monitoring and implement-
ing evolving security requirements as they are
rolled out. Thus, this article is intended to
meet that goal.