Results of the April 12-13 Meeting of NMSAC – Part 2
Mariners’ Second Amendment Rights The final item considered in public by NMSAC on the first day of the meeting was a presentation on US seamen’s Second Amendment rights delivered by mariner Donald Hamrick. Mr. Hamrick started by distributing copies of an anti-TWIC
This is the second post covering the most recent meeting of the National Maritime Security Advisory Committee. The first post dealt with briefings and discussions on Seafarer Access to Shore, CDC Security, and the TWIC Program.
The Future of the Maritime Critical Infrastructure Committee
After those issues, the Committee held a discussion on the Maritime Critical Infrastructure Committee (MCIC), which is a subset of the Transportation Critical Infrastructure group, one of a series of national and sector councils sponsored by the Department of Homeland Security. These groups are exempt from the Federal Advisory Board Act and the Freedom of Information Act and provide venues for nonpublic meetings to transfer information between the federal government and the private sector to aid in the protection of critical infrastructure. The members are selected by industry, not by the government.
When the MCIC was set up, it was agreed to use trade association representatives, rather than individual owner/operators, and that system had worked well. Now, however, a Presidential directive prohibiting registered lobbyists from working with federal advisory boards has made its way down to the MCIC. As the maritime industry has small trade associations, all the association representatives on the MCIC also happened to be registered lobbyists. Since the MCIC is not federally appointed, registered lobbyists could continue to serve on it, but they could no longer attend meetings with federal government officials. Since such meetings were the main value of the MCIC, its members thought it should be dissolved, but first the Coast Guard should be given an opportunity to decide what it wants in this area and the NMSAC was being approached for the views of the affected private sector.
A Coast Guard officer in attendance commented that MCICs primary purpose was to reduce risk and there was lots of overlap with NMSAC topics, as well as cross-modal groups. This brought a response that, when the government had brought a threat against the cruise ship industry to MCIC, the cruise trade association representative had contacted all the cruise line Company Security Officers within 16 minutes. In the speaker’s opinion, NMSAC would not be able to accomplish anything similar for any sector of the maritime industry.
USCG Authorization Act Provisions Dealing with Maritime Security
Next, NMSAC discussed Title VIII of the Coast Guard Authorization Act of 2010 with a view toward determining what provisions the Committee should weigh in on early, in order to play a role before implementing regulations are formally proposed. The brief answer was: almost all of them.
Comments of note regarding specific provisions included the following: Although section 806 dealing with the Coast Guard’s international port security program did not present a direct regulatory issue, the program does impact vessel operators through the conditions on entry imposed on vessels arriving in the US from ports not deemed in compliance with the International Ship and Port Facility (ISPS) Code. Of particular concern to some NMSAC members was that the conditions of entry were applied at each US port within five port calls after leaving a deficient foreign port, not just the first US port, with resultant extra expense and inconvenience to the vessel operator. A staff officer from Coast Guard Headquarters indicated that this issue was being dealt with in the upcoming amendments to the Maritime Transportation Security Act regulations (called “MTSA 2” by insiders).
Section 808 calls for a pilot program to fingerprint maritime workers at a number of DHS-operated or -contracted facilities. The same staff officer commented that TSA was looking at using some mobile facilities and that Coast Guard Headquarters was checking with the various Sectors to determine if any would be able to accommodate TSA’s mobile units. A NMSAC member said NMSAC should be involved. With regard to section 811’s directive regarding seamen’s shoreside access, Coast Guard Headquarters was looking at revising the TWIC NVIC to require facilities to escort seafarers. Section 814 authorized use of “secondary authentication” for TWICs when their holders’ fingerprints can’t be taken or read. The Headquarters staff officer indicated that the current procedure was to require use the individual’s PIN if fingerprints couldn’t be used and expressed the opinion that this provision had been inserted in the law at the behest of the manufacturers of other biometric identification equipment, such as iris scanners.
With regard to section 816, which calls for a report to Congress assessing the feasibility of “efforts to mitigate the threat of small boat attack in security zones of major ports,” it was suggested that NMSAC could endorse SSI version of the recently completed Small Vessel Security Implementation Plan. GAO and TSA are on working on the issue raised in section 817 regarding uniform security background checks. Section 826 calls for the establishment of “area response and recovery protocols to prepare for, respond to, mitigate against, and recover from a transportation security incident.” The Headquarters staff officer indicated that these were already in place and that 33 CFR Part 101 would be modified accordingly in MTSA 2.
Safe Port Act Reauthorization Issues
Over a working lunch, NMSAC then discussed issues that might arise in the forthcoming effort to reauthorize the SAFE Port Act of 2006, which is scheduled to expire. It was predicted that there would be a heavy focus on supply chain security (principally through the Customs-Trade Partnership Against Terrorism—C-TPAT), the Port Security Grant Program, America’s Waterway Watch, and the TWIC Program. Additional items from other bills will no doubt be incorporated, and 100% scanning will be addressed. The House Committee on Homeland Security is expected to hold hearings this summer on the US Coast Guard since 9/11.
With regard to C-TPAT, more emphasis can be expected on verification, including unannounced inspections. A NMSAC member suggested that the Committee weigh in the issue of facilities being subjected to inspections for both C-TPAT and the Maritime Transportation Security Act. Although these inspections are not the same, there are overlaps. Another member identified a need to clarify eligibility for Port Security Grants, because some communities have been able to supplement their police and fire budgets through grants simply because their first responders were part of a mutual aid agreement that included a port. There was also speculation about what the total authorization for the Port Security Grant Program would be. A NMSAC member raised the issue of section 109 of the SAFE Port Act, which required a Coast Guard rulemaking on Advance Notice of Arrival (ANOA) for foreign vessels on the US Outer Continental Shelf. The Coast Guard had implemented this section without ever briefing NMSAC. In the member’s view, the Final Rule as promulgated is not workable in situations where area block boundaries are crossed. In addition, the member raised questions about where the ANOA information went, whether it could be used in real time, and how it actually contributed to Maritime Domain Awareness (MDA). The Chair indicated that NMSAC would take this issue on.
[UPDATES ON POST NMSAC MEETING EVENTS: Section 1632(7) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, which was signed into law April 15, and which is colloquially referred to as the budget deal, reduces the Port Security Grant Program for 2011 to $250 million, down from the $ 400 million authorized and $300 million appropriated for 2010. On April 14, Senators Collins and Murray, the co-authors of the original SAFE Port Act, introduced Senate Bill 832, the SAFE Port Reauthorization Act. It reauthorizes the Automated Targeting System, the Container Security Initiative, and C-TPAT. It strengthens C-TPAT in various ways, including authorizing Customs and Border Protection to conduct unannounced inspections. It provides civil immunity for people who in good faith report objectively reasonable suspicions through the America’s Waterway Watch Program, as well as for officials responding reasonably and in good faith thereto. With regard to the Port Security Grant Program, the bill would require decisions on completed grant applications and related requests to be made within 60 days of submission and it would authorize only $300 million annually for 2011 through 2016. Finally, the bill would allow the DHS Secretary to waive, rather than merely extend the date for implementation of, the SAFE Port Act requirement for 100% scanning of US-bound containers, provided she/he certifies five items to Congress. Of course, how much of this and what other items will actually be enacted remains to be seen, as does how much will be appropriated for Port Security Grants in the out-years.]
NMSAC TWIC Working Group Report
The Committee next heard from its TWIC Working Group on the concerns of Group members:
- TSA is not going to share with industry specific information on the various TWIC readers, e.g., reader performance, transaction times, etc. While TSA’s reasons are understandable, it would be very useful information for industry to have.
- In view of the “higher than expected” rate of card failure, why doesn’t TSA have the antenna tested at card activation?
- As the time for the first surge of renewals approaches, the Working Group plans to review the suggestion list for enrollment improvements that NMSAC developed in 2008-09.
- The Group is pleased that TSA is going to revise the specifications for readers to require them to display more information on why a reader rejected a specific card.
In questions and comments from NMSAC as a whole, it was noted that, while the number of enrollment centers might have remained about the same, as indicated by the TSA briefer in the morning, some of the centers are now located far from the mariner population being served. A member asked whether NMSAAC was going to hold TSA to requirements, such as maximum transaction times, that NMSAC had earlier identified. Another member stated that it was unacceptable that TSA has decided it’s not going share what it has learned about the different readers’ performance. This means that someone will buy a brand of reader that TSA knows to be a poorer performer than others.
Mariners’ Second Amendment Rights
The final item considered in public by NMSAC on the first day of the meeting was a presentation on US seamen’s Second Amendment rights delivered by mariner Donald Hamrick. Mr. Hamrick started by distributing copies of an anti-TWIC diatribe that had appeared in Lloyd’s List in February and recommending that the TWIC Program be abolished in view of the problems mentioned in the article and of the TWIC’s vulnerability to identity theft by RFID. In the alternative, TWICs should have data added to state the mariner’s Second Amendment right to carry firearms openly in interstate commerce, which allowed a segue to the topic of his presentation. In his view, Congress and the federal agencies are regulating as if there were no Second Amendment rights. 33 CFR section 104.220 lists security duties imposed on merchant seamen. The US State Department’s efforts to determine the legalities in various foreign countries of carriage of self-defense weapons on board merchant ships could provide the basis for an international treaty on mariners’ rights to arms to protect against piracy. Mr. Hamrick concluded by asking NMSAC to consider taking up the rights of US mariners to have weapons on board their vessels.
With that, NMSAC went into working session before reconvening in public the morning of the 13. To be blogged about in the future: The Day 2 issues, including Maritime Domain Awareness and Information Sharing, Information Sharing and Analysis Centers (ISACs), this meeting’s formal Resolutions, future meeting dates, and agenda items for the next meeting.
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