Results of the January 2012 NMSAC Meeting – Part I
The first morning session of the January meeting of the National Maritime Security Advisory Committee (NMSAC) opened with a lengthy Welcome/Farewell Address by NMSAC sponsor, short remarks by the Committee’s Executive Director, and what was labeled a discussion of requirements for vessel guards while in port. These were followed briefings/discussions of Maritime Transportation Security Act (MTSA)/Chemical Facility Anti-Terrorism Standards (CFATS) Harmonization, Maritime Domain Awareness and Information Sharing, the long-planned “MTSA II Regulations,” and harmonization of US and Canadian maritime transportation security regimes.
Rear Admiral Paul Zukunft, NMSAC’s sponsor, welcomed the Committee, thanking the members for their service during his tenure, which is coming to an end as he departs in April to become Commander of the Pacific Area. He referred to his personal experience with obtaining a Transportation Worker Identification Credential (TWIC)—he shared a 9:00AM appointment at an enrollment center (staffed by one screener) with twenty mariners. He then provided a brief history of the Department of Homeland Security (DHS) demonstrating that its short life has been dominated by crises, but he maintained that the Department had, despite the absence of a crisis in the maritime arena, acquired an appreciation of the country’s need, as a maritime nation, for maritime security. He opined that, in the current budgetary climate, the Coast Guard would have to transition from its traditional mode of doing more with less to doing less with less. He expressed particular concern for the future of the Port Security Grant Program, which even in flusher times did not provide for sustainment of the initiatives it funded. With regard to intelligence and information sharing, RADM Zukunft felt that the USCG, unlike the Department of Defense intelligence components, had a bridge to the private sector, but he acknowledged that it needed to do better in sharing threat information. Near term issues for DHS and the USCG include global supply chain security, which will be one of the key themes for DHS this year; Arctic oil drilling, which will start this summer, requiring a USCG security presence; deepwater oil drilling in the Cuban Economic Exclusive Zone, which will present numerous policy challenges if something goes wrong; and piracy in High Risk Waters. Regarding piracy, the Admiral commented that what has worked best is the introduction of armed security on board ships—80 or so attacks against vessels with armed security had resulted in no hijackings. Given the reluctance of the European Union to countenance private armed security, some European shipping companies had changed their ships’ registration to flags of convenience. In response to a question as to whether the recognition by DHS of the importance of maritime and global supply chain security would translate into more equitable funding allocations by sector, RADM Zukunft replied that it was threat based and terrorists were still focused on aviation.
The remarks of the Committee Executive Director, Captain Kiefer, were brief. He commented on efforts to fill NMSAC’s vacancies. Proposed new members were being vetted at the DHS and White House levels. Apparently, however, some have been in the vetting process since 2009. With that, the Committee turned to its substantive agenda. As I predicted, the order of business described in the Federal Register Notice announcing the meeting did not hold up. For example, the actual first discussion item had originally been scheduled for the second day of the meeting.
Vessel Guard Requirements
This discussion began with a statement of one of the larger concerns—that there are significant inconsistencies in program implementation from port to port. A vessel required to post armed guards in Port B did not have do this in Port A earlier on the same voyage. Additionally, since Customs and Border Protection (CBP) won’t share information on threats, the problem can’t be fixed because the shipping company doesn’t know what it is. The majority of cases are based on the nationality of the mariners or their lack of credentials rather than a specific threat, however. Sometimes the vessel must take on guards at the sea buoy and keep them until CBP has checked the crew’s credentials, at which point, the guards might be released, or not. This is expensive and does not employ risked-based decision-making. The NMSAC Chair reported that he had had a meeting with Maritime Ministries and had been given a letter from a frustrated chaplain, which he proceeded to read in somewhat sanitized form. He had also received many emails on the subject raising the inconsistencies and pointing to the harm being done to US mariners facing retaliatory actions in foreign ports. Sometimes the issue is that the terminals do not want to deal with vessel crews passing through their facilities. Another NMSAC member raised the issue of armed guard being required by the US Government when a port has a no weapons policy. The port doesn’t know the armed guards are there and private security guards may not have rules of force rules.
At this juncture, a Coast Guard officer in the audience pointed out that the discussion really involved three issues: Two of which, seafarer access and guard standards, were different from the third, armed guards to enforce detention on board, which was the nominal discussion topic.
Speaking by telephone, a Customs representative said that the main reason for detention on board is that the seafarer lacks necessary documents (e.g., a visa) to be allowed ashore. The statutory language is for all who haven’t the proper documents to be detained on board. There is no expectation of being allowed to land. There is, however, a difference between someone deemed a risk and those who merely lack documents. A NMSAC member commented that there is a difference, but they are treated the same. It’s going overboard to require armed guards for the undocumented. Also, there’s no consistency where the guards go. In some ports they go aboard, in others they may set up on the gangway or the pier. The Customs representative acknowledged that detention on board was never meant to require armed guards and allowed that it might be necessary to remind the field of this. She suggested NMSAC work to get this incorporated in Area Maritime Security Plans (AMSPs). The Chair responded that NMSAC worked for the DHS Secretary and should push to have the Customs Commissioner issue guidance to his people. A representative of the Liquid Terminals Association requested that the Coast Guard share any access problems at a liquid terminal with the Association so that it could help to resolve the situation. He didn’t see a systemic issue in his branch of the industry and wanted to help work on the anomalies. The Customs representative said she was open to further dialogue and communication. The Chair stated he would reconvene the Seafarer Access Working Group and give the Customs representative advance notice of the next meeting.
Mr. James Bull of Coast Guard Headquarters gave NMSAC a status report on efforts to harmonize MTSA and CFATS requirements. In 2009, the DHS General Counsel had convened a working group to attempt to harmonize all of DHS’s security regimes. Since then, the Coast Guard and the Infrastructure Security Compliance Division (ISCD) of DHS, which has the lead on CFATS implementation, had broken off into a bilateral group to deal with just MTSA and CFATS. Cooperative efforts have included attendance of ISCD inspectors at USCG inspector training courses. ISCD has offered to host Coast Guard inspectors at its training, but none have gone yet. In another move, the Coast Guard agreed to propose a regulation requiring MTSA-regulated facilities that handle or transport certain “chemicals of interest” (COIs) to submit Top-Screen reports to ISCD, without subjecting such facilities to the entire CFATS regime, from which they are exempt by statute. (This proposal appeared for the first time in the Spring 2011 Regulatory Agenda, with a target date of last December for a Notice of Proposed Rulemaking (NPRM).) This is desirable because, as things stand, ISCD doesn’t have the full national picture on COIs in view to the statutory exemption. The Coast Guard is still working on the proposed regulation—there are practical difficulties because cargoes fluctuate, with Top-Screen report triggering quantities being present one day and not the next.
Progress has slowed as a result of leadership changes at ISCD, resulting in the need to repeat education on the maritime transportation system and MTSA. Not only are there major differences in the chemical processing and maritime transportation worlds, but MTSA is not merely a US law. The Coast Guard has to maintain a regime that is in compliance with the International Ship and Port Facility Security (ISPS) Code. The election cycle is another complicating factor. An Executive Order from last January has made it more difficult to get discretionary rules through the process. The draft rule did not get published in 2011, but discussions with ISCD continue, as do efforts to avoid differences in standards.
A NMSAC member asked if there was any coordination with local fire departments. In California, at least, they have to be notified of the presence of certain chemicals. This would aid in Maritime Domain Awareness (MDA) as these materials arrive at waterfront facilities from the land side, as well as by water. In response to the answer that coordination with first responders was achieved through Area Maritime Security Committees (AMSCs), another NMSAC member pointed out (1) that this assumed that the relevant responders were part of the AMSC and (2) that Top-Screen information was categorized as CVI (Chemical-terrorism Vulnerability Information) and, while AMSC members would be eligible for access to Sensitive Security Information (SSI), the rules for CVI access are more stringent than those for SSI.
MDA & Information Sharing
The next topic was labeled Maritime Domain Awareness and Information Sharing, but the discussion focused almost exclusively on Information Sharing. When these issues were discussed at last April’s meeting, NMSAC felt it was the appropriate mechanism for information sharing, but there are apparent gaps. Where does NMSAC want to go on information sharing? The Chairman recalled that some members had expressed reluctance to embrace the Information Sharing and Analysis Center (ISAC) approach. One member voiced the concern that there was a lack of integration of the entire stakeholder community and that the Government seemed to adopt a unidirectional approach in the maritime arena. Ports are bidirectional entities—goods flow both ways. There is also a need to look at subsurface and air pictures as well the water and land surfaces. He cited the example of the Port of Long Beach, which had developed a three dimensional model overlaid over a GIS (geographic information system). Another member concurred that it shouldn’t be a one-way street and suggested that DHS was not using the private sector as a force multiplier. There is no easy way to get information to the Coast Guard or Customs—the appropriate points of contact aren’t known. The industry doesn’t get information that would cause greater vigilance in relevant areas. This brought the response of a Coast Guard representative that that was exactly what an ISAC does, but the maritime industry had resisted the ISAC approach, forcing the USCG to work with individual associations, such as the Cruise Lines International Association. A member suggested developing an SSI section where information could be shared. Another questioned creating a new tool when existing ones weren’t being used well. A third member pointed out that MDA was more than just the arrival of a vessel; the entire business model and geospatial issues of a port (railroads, utilities, pipelines, drain systems, etc.) needed to be integrated into the picture. The Chair pointed out that a lot of the information about ports was way out of date and that parochial interests of competing ports have inhibited both business development and maritime security.
A representative of the National MDA Office added that an ISAC involves sharing within an industry—DHS can provide help and support, but the initiative and leadership must come from industry. The best example of an ISAC is that of the financial sector—the banks are cutthroat competitors on an international scale, but share information. The maritime industry is an anomaly in not having an ISAC; every other major industry grouping has one. The Chair replied that there isn’t one maritime industry, there are over 50 sectors having to do with maritime transportation. A Coast Guard officer commented that the US Government doesn’t understand the maritime industry culture all that well. US Navy Intelligence calls itself the Information Dominance Corps, a moniker that could be off-putting to many in the maritime community. As to the complaint from people in the industry that they give information to the Government and then it’s locked up as classified, the value of an ISAC lies not just in compiling information, but in the ability to determine how it will be shared. Additionally, better information from industry would help the Government make better policy.
A NMSAC member asked how a port director would get a synthesis of the information produced by the MDA efforts of the three of four government agencies that have them. Speaking by telephone, a representative of the DHS Office of Infrastructure Protection noted that the effort at DHS to integrate air and land domain awareness with MDA was a long way from fruition. After the DHS start up money for their ISAC’s ran out, both the oil and gas and the chemical sectors did away with their ISACs, because they didn’t want to pick up the tab. Both sectors get threat information through a DHS portal.
The Chairman noted that the bus, railroad, and other industries had figured out how to make sharing security information work. He reminded the Committee that it had a tasking to make recommendations on how to improve Coast Guard information sharing mechanisms and policies, which are due at the end of the year.
Updating the MTSA Regulations
The NMSAC Executive Director was then asked to address to long-gestating “MTSA II” regulatory update of the original regulations promulgated to implement the Maritime Transportation Security Act of 2002. He started with the premise that the Administrative Procedure Act, which lays out the hoops through which the Government has to jump to produce regulations, limits the detail in which regulatory proposals can be disclosed outside formal rulemaking channels. The plan is to incorporate into the existing regulations lessons learned through experience with the current regulations, including numerous Policy Advisory Council decisions and screening standards from Navigation and Vessel Inspection Circular (NVIC) 06-04, as well as new provisions implementing the additional requirements of the SAFE Port Act. This would not be a complete rewrite of the existing regulations.
The Coast Guard had hoped to have the NPRM out last summer, but this was not to be. The proposal needs internal DHS scrutiny and then OMB review before it can be published. The Coast Guard will have several public meetings on the proposal once it’s published. As a constantly moving target, these are hard to budget for. Asked about the impact of pending SAFE Port Act legislation, he replied that, as currently drafted, it had little impact on the Coast Guard. Later, during the public comment period, my good friend and fellow blogger, Laurie Thomas asked if MTSA II would reconcile earlier MARAD-approved Facility Security Officer training with the requirements contained in the Coast Guard Authorization Act of 2010 [in Section 821]. Captain Kiefer replied that this would be addressed in a separate rulemaking, probably in 2013, although the Coast Guard might put out an interim policy sooner. If so, that would be run by NMSAC first. Laurie also noted that NVIC 06-04 set a very high standard for screening. She asked if the Coast Guard had conducted anysurvey of industry screening practices and suggested, based on experience gained while training Facility Security Officers, that there would be substantial industry push back if the Coast Guard attempted to make the voluntary standards of the NVIC compulsory. Captain Kiefer thanked her for providing that information about the industry. A NMSAC member proposed that the Committee come up with suggestions for inclusion in the rulemaking, rather than waiting for USCG taskings on specific issues.
Harmonizing MTSA and Canadian Maritime Security Regimes
Captain Kiefer was then asked to discuss ongoing efforts to harmonize the US and Canadian maritime transportation security rules. He indicated that the USCG had for some time had a standing committee, now called the Maritime Security Working Group, with Transport Canada. Following the Joint Statement of the President and the Canadian Prime Minister last February establishing the United States-Canada Regulatory Cooperation Council (RCC), aligning the two countries’ maritime transportation security requirements had come under that initiative and now appears in Council’s Action Plan on the White House website. The Working Group’s Work Plan has been submitted for approval, after which it too will be published on the White House website. Captain Kiefer opined there would be more changes on the Canadian side than on the American side, including, possibly, Canadian adoption of the US definition of Certain Dangerous Cargo (CDC). Additionally, under the Beyond the Border Initiative, announced at the same time as the RCC, the two countries are talking about resiliency, such as how to shift resources if one port goes down. Finally, Captain Kiefer said that he anticipated that Transport Canada would be invited to brief their perspective at the June NMSAC meeting. The Committee then broke for lunch.
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