Mtsa Legislative Critique Maritime Transportation

MTSA Legislative Critique

Maritime Transportation Security Act (2002) Legislative Critique

In 2002, President Bush signed into Law the Maritime Transportation Security Act (MTSA). This federal legislation was passed in direct response to the terrorist acts of 9/11 and represented a milestone in maritime regulation in the United States. While Congress had previously passed legislation regulating the merchant marine industry, American shipping had historically been spared the stringent regulatory administration that had at one time or another impacted the railroad, airline and trucking industries. However, as a result of the World Trade Center attacks, the Government, and the nation, felt the need to overhaul the security system in place for the country's maritime shipping industry. The net result was a litany of new regulations and requirements placed on those who operate vessels, ports and facilities.

Legislative History

S.B. 1214 and H.B. 3983

In 2000 and again in July of 2001, the Senate Committee on Commerce, Science and Transportation introduced a Bill (S.B. 2965 (2000) and S.B. 1214 (2001)) which would require the Secretary of Transportation to design a system to assess the threat risk to U.S. ports and another system which would require the U.S. Coast Guard to design a security program in which each port would have to submit a security plan for approval (United States Senate, 2001). Ultimately S.B. 1214 cleared committee on August 2, 2001, without amendment and which called for the Coast Guard to "establish a process for conducting port vulnerability assessments…One year after the completion of an assessment, [each] seaport would be required to submit a security program for approval to the Coast Guard Captain of the Port (United States Senate, 2001).

The Bill as presently drafted passed the senate on December 20, 2001 and by the House of Representatives on June 4, 2002. The House had proposed a similar Bill (H.B. 3983), however, the House tabled their Bill in favor of the Senate's. A proposed House amendment was rejected by the Senate and the Bill was signed by President Bush and became law #107-295 on November 25, 2002 (United States Senate, 2001).

Previous Legislation

In a sense the MTSA was a direct product of the terrorist attacks of September 11, 2001. It is clear from the Report to Congress by the U.S. Department of Transportation Maritime Administration that the attacks of 9/11 have made the standards and curriculum of the MTSA of critical importance (USDOT). It is equally clear from the Report that the prevention of further terrorist activity is the singular top priority behind the legislation. However, the Report also addresses the need to curtail crime, theft, human trafficking, smuggling etc.… through the sea ports (USDOT). These goals are the remnants of the legislation that was soon to become federal law but for the 9/11 attacks.

The MTSA was originally introduced as the Port and Maritime Security Act in 2001 and was unanimously approved by the Senate Commerce Committee on August 2, 2001. While this draft legislation focused on eradicating theft, smuggling and graft, it did not address the issue of domestic or international terrorism. After the attacks of September 11, 2001, the bill was re-written and expanded significantly to address the threat of terrorism at domestic seaports.

Legislative Summary

Provisions of the MTSA

The Act provides for the first over-arching security regulation of the marine transportation system in our nation's history. The duties are divided between the Secretary of Transportation, the Department of Transportation, the United States Coast Guard, the port administrators and the vessel operators. The overall purpose of the Act is to eliminate all "transportation security incidents" in the nation's ports and aboard its vessels which might result in significant loss of life, environmental damage and/or transportation system or economic disruption.

The Act requires that foreign port risk assessments be conducted but the Secretary of Transportation for all ports which serve U.S. bound vessels. The Secretary can deny entry to ships leaving those ports that fail to maintain proper anti-terrorist measures. The Secretary of Transportation shall also conduct a risk assessment of all vessels and facilities involved in maritime operations in U.S. waters. All high risk vessels and facilities must be identified by the Secretary and interim security measures put in place adopted. The Secretary of Transportation, in consultation with law enforcement and private agencies and individuals with maritime security expertise, will oversee the development of security training and education and certification of security personnel working at ports and facilities. The Act has authorized a $33 million expenditure earmarked for developing the standards for this education and training.

Once the Secretary has identified potential risks to maritime security, the Coast Guard must more fully ascertain the threat levels for any vessels of facilities identified. The Coast Guard, which has greatly expanded responsibilities under the Act, is responsible for developing a National Maritime Transportation Security Plan and regional Area Maritime Transportation Security Plans to deter incidents. The Coast Guard then must develop Area response plans for dealing with terrorist attacks.

Each and every vessel, port and waterfront facility is required to submit security plans and incident response plans to the Coast Guard. These plans must reflect the Coast Guard's threat assessments and security recommendations and the plans must be approved by the Coast Guard. Facilities are very broadly defined to include any "structure of any kind located in, on, under, or adjacent to any waters subject to the jurisdiction of the United States" (MTSA 2002). The 2002 MTSA authorizes the Sea Marshal program to secure the harbors, ports, vessels and waterfront facilities. This portion of the law greatly expands the authority for the Coast Guard to board vessels entering U.S. waters.

The law also incorporated a Coast Guard authorization bill, which reflects the provisions of S.B. 951 and H.B. 3983, the House maritime security bill. The authorization bill provides for $6 billion budgeted to the Coast Guard in 2003 to implement many of the Coast Guard obligations under the Act, as well as increasing the maximum number of active duty guardsmen by 10,000 to 45,500 for 2003. The Coast Guard is also required to report to Congress detailed findings of its National Distress and Response System regarding gaps in the system's coverage, potential targets and strategic plans for addressing the gaps and for achieving its overall goals a protected maritime system.

The Department of Transportation is responsible for designating a portion of every port as a limited-access, high security zone. Facilities and ports are also eligible for a grant program under the Act in order to upgrade their security in order to comply with the Act's requirements.

The Act establishes a system of intelligence for collecting and analyzing information pertaining to all vessels and seamen operating in U.S. waters. The reporting and information regarding all crewmembers, passengers and cargo must be improved in order to better anticipate and deter security incidents. Part of the means to accomplish this will come from more efficient screening and inspection of vessels, crewmembers and cargo (Hollings 2002). Finally, the Act further authorizes $90 million in Research and Development grants to help the U.S. Customs Service inspect all goods and merchandise carried by vessels into Unites States ports.

Regulations and Implementation of the Act

The mandate of the MTSA was implemented through various executive and legislative agencies. Many federal regulations were established to set forth a uniform system of criteria which all vessels, ports and facilities must comply. An explanation of the Act that does not address the various regulations is incomplete because it does not set forth what is required in order to be compliant with the Act.

For example, Title 33 of the Code of Federal Regulations delineates the Coast Guards requirements for vessels, ports and facilities. As of July 1, 2004, mandatory compliance was required for all of the provisions of the Act and its associated regulations. As a result, over 10,000 U.S. flag ships were required to register their anti-terrorist security plans with the United States Coast Guard (Drakos 2004). Each subject vessel required to register must have on board an approved security plan and a letter of approval from the Coast Guard. AU.S. ship not carrying the proper documentation is subject to "inspection of the vessel, delaying of the vessel, detention of the vessel, restriction of operations, including movement within the port, or expulsion of the vessel from port, including denial of entry" (Drakos 2004).

The Coast Guard primary method of compliance screening is by way of boarding a ship. A "point" system is used to determine the priority of boarding a ship. The Coast Guard is required to board in a priority I situation and is not required to board in a priority III situation (Drakos 2004). The regulations do allow for an appeal process for any operator of a vessel that has been subjected to the above enforcement or control measures.

Evaluation of Legislation

The MTSA had a significant impact on the shipping industry from the time it was first instituted. This is because nearly 10,000 American vessels and 300 American ports had to be compliant on the effective date of July 1, 2010. 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

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.