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While the Act certainly has international motivations and consequences, most of the acts of compliance and non-compliance are done by Americans and in American waters and on American soil. All reports indicate that the vast majority of the American vessels and ports succeeded in coming into compliance by that date.
In evaluating the legislation and whether or not it can be determined to be successful, several considerations are important. In the case of a federal law, is this is an area appropriate for federal intervention? Does the law purport to fulfill one of our nation's critical needs? If so, does the law set about fulfilling these needs in the least invasive means possible? What is the financial cost-benefit ratio of the law? Who has been impacted by the law? By answering these questions, one can determine whether or not a law is fair, efficient and effective.
Federal jurisdiction in this area is conferred by the United States Constitution and has been consistently upheld by the United States Supreme Court. Navigable waters in the context of the MTSA include all oceans, harbors, bays, lakes and rivers. In 1979 the Court set out a set of criteria to determine if a body of water is navigable and therefore, subject to federal jurisdiction: In Kaiser Aetna v. United States, the Court found that if body of water (1) is subject to the ebb and flow of the tide, (2) connects with a continuous interstate waterway, (3) has navigable capacity, and (4) is actually navigable, then it is considered a navigable water and under the jurisdiction of the federal government.
While the issue of federal authority to act in the area of maritime and port security has not been a debated issue in the wake of the 9/11 attacks, it is still necessary to evaluate whether it is proper for the federal government to establish protocols over local ports. The Commerce Clause of Article 1, Section 8 of the Constitution gives the federal government authority to regulate all interstate commerce occurring between the states. More than any other type of facility, seaports are used to conduct interstate and international trade and commerce. As a result, the ports and port facilities which have historically been left to local port authorities to manage, do appear to fall within the broad scope of the Commerce Clause. Therefore, under the navigable waters doctrine and the Commerce Clause, the MTSA passes constitutional muster and is area that the federal government may regulate.
Critical Need of the Nation
It would seem to go without saying the measures of the MTSA filled a critical need of the United States after 9/11. However, major aspects of this law were proposed by the Senate as early as 2000, so it is equally clear that the bill is not motivated only by the threat of international terrorism. In 1999, the Secretary of Transportation issued a preliminary report discussing the need to protect the United States waterways from crime and terrorism and our military's ability to mobilize in the time of emergency (Senate Report 2001).
This report, now ten years old, calculated that waterborne cargo was responsible for $742 billion worth of the nation's gross domestic product and the entire marine shipping industry supplied employment to over 13 million Americans (Senate Report 2001). Thus, from a strictly economic need, there has been a critical need to protect this industry from security incidents that, aside from posing a threat to individual lives and national security, could impede the daily functioning of such a vital industry. Finally, it is important to note that as of this 1999 report, the U.S. Department of Transportation still adopted the view that regulation of the seaports was outside the purview of federal authority and a function of state, local and private operation (the reports clearly indicates that the federal government has the authority to regulate port practices under the commerce clause, but traditionally has elected not to do so, leaving these matters to state oversight) (Senate Report 2001).
As of September 11, 2001, the entire focus of the report shifted to that of anti-terrorism. The anti-crime aspects of the law are still incorporated, however, the country's priority became fairly consolidated towards securing our borders and points of entry from outside terrorist threats. It is also, quite clear, in as much as the attacks were perpetrated from within our borders and using national common carriers as the terrorist conduit, that in order to prevent similar acts from recurring, a uniform standardized and updated security system was needed in all applicable industries and facilities. The MTSA is the federal government's effort to provide such a system to the seaports, harbors and vessels that enter and leave our nation's waterways.
Least Invasive Means of Regulation
Much of the legislative process in the United States is a balancing test. Does the need for government regulation outweigh the people's right to live free from government intervention? In the case of maritime security, the answer is clearly yes. The next question to answer regards the nature of the regulation. Does the law or regulation accomplish its goals in the least invasive means necessary? It is likely impossible for the MTSA to be non-invasive altogether, however, it does appear that the MTSA does not contain clauses that are unduly invasive.
The goal of the MTSA is for the Coast Guard to conduct a proper risk assessment of each and every vessel that enters U.S. waters. In order to do this, it is only practical that the Coast Guard pass the burden to the ships to provide information specific to that ship in a manner that enables the Coast Guard to evaluate the risk that ship presents. The Coast Guard has chosen to accomplish this by requiring each ship to register its own security program and receive Coast Guard approval.
One way of measuring the Coast Guard's success at achieving its goal against its burden imposed on the people is to look at the implementation of the regulations. By most accounts, from the very start of enforcement, the industry participants have been able to and willing to comply (White 2004 and Waldron and Dyer 2005). This is important because its indicates that the regulations imposed by the Coast Guard are both intelligible enough to be understood by the average participant and fair enough as to not hinder the industry's ability to operate. The Coast Guard also used very effective information-sharing techniques to ensure, as best as possible, that all vessels were aware of the requirements and how to comply.
Another measure as to the efficiency and propriety of the law is the fact that it has been mimicked. Many of the requirements of the MTSA and its regulations have been adopted by the United Nations International Maritime Organization (IMO) through the International Ship and Port Facility Security Code (ISPS) and through amendments to the International Convention for the Safety of Life at Sea (SOLAS) ("Maritime transportation security," 2003). Both of these measures were ratified in December 2002, after the November 2002 enactment of the MTSA.
Obviously, it is hard to argue that to endeavor to secure the nation's borders, the lives of its maritime workers and the vitality of one of our most important industries should not have a hefty appropriation. In this vein, rather than analyzing whether the law is financially justified, it is probably more worthwhile to address what the overall financial impact of the law will be. As partially discussed above, the government budgeted nearly a billion dollars of additional spending for the MTSA as part of the legislation (Hollings 2002).
In the world of big government spending and considering the high stakes involved, this amount would actually appear to be quite reasonable. As with many government programs, however, the MTSA has quickly become an even bigger ticket item that the government struggles to afford. When executives for the American Association of Port Authorities (AAPA) testified before Congress in 2005 and 2006, they both indicated that the program was underfunded and that ports were spending hundreds of millions of dollars of their own money to achieve security upgrades that were budgeted for by the MTSA (Godwin 2005 and Nagle 2006). As a result, over 80% of the requested grants were not awarded and the government was required to restrict the eligibility of ports authorized to receive the grants, a move strongly opposed by the AAPA (Nagle 2006).
Impact of the Law
The law has had an impact on several categories of people, most notable vessel operators and crewman, port administrators and port employees. Vessel operators now are subject to the additional security measures discussed herein. The failure of the vessel to produce the appropriate paperwork required by the regulations has led to ships being denied entry to port, ships being expelled from port and ships being delayed/detained at port (White 2004). From the standpoint of the vessel operator (and the…[continue]
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