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In a Foreign Affairs article published in November 2000, Stephen Flynn, a former Coast Guard officer, sketched a nightmare scenario involving terrorist exploitation of the nation's laxly guarded seaports to deliver a biological weapon into the United States.
Each day, more than 16,000 containers arrive in the United States by ship, truck, or rail, yet only 2 percent of those that come by sea are inspected. Because containers were at that time not required to have their contents declared until they reach their 'entry' port, totally separate from the actual point where they reached U.S. territory, any terrorist who was willing to use a 'front' company to move a biological or other type of weapon into the United States via container would have had a relatively easy task. The importer was permitted 30 days to make the trip from the point of U.S. territorial entry to the 'entry port,' and the container could have been diverted at any point along the way.
Following the Sept. 11, 2001, terrorist attacks on the United States, this loophole, and other potential holes in the nation's port security, started to receive greater attention as it was realized that seaports were as vulnerable as the airports through which the Sept. 11 attacks originated, and in some cases more so. This article will lay out the regulatory responses made in the U.S. since September 2001 to the potential threat, as well as the regulations that the worldwide body for international shipping standards, the International Maritime Organization, has instituted based on U.S. proposals.
Responses Since September 2001
In January 2002, the U.S. Customs Service launched the Container Security Initiative in partial response to the vulnerable seaport situation. The program aimed to tackle the problem of potentially dangerous containers well before they entered the United States, and consisted of four core elements. They were to establish security criteria to identify high-risk containers, pre-screen those containers before arrival at U.S. ports, use technology to pre-screen high risk containers, and to develop and use smart technology to secure containers.
The program focused upon the so-called mega-ports that dominate the world's sea trade, each handling thousands upon thousands of containers a year. The top 20 worldwide ports handle 70 percent of all containers bound for the United States.
To conduct the pre-screening, U.S. Customs Service personnel were to be deployed to foreign ports. Over the course of the next six months, a number of the ports that handle the highest volume of containers joined the program. The Canadian ports of Halifax, Montreal, and Vancouver became the first deployment locations for U.S. inspectors in March 2002. (Half a million containers destined for the United States arrived through those three ports in 2001.) The Canadian Customs and Revenue Agency also sent inspectors to the ports of Seattle and Newark-New York, where about 65,000 sea containers destined for Canada arrive every year. Singapore joined the program in June, quickly followed by a number of European seaports: Rotterdam, Antwerp, and Le Havre, along with Bremerhaven and Hamburg in Germany. A greater boost for the program followed in late September 2002 when officials for the number one container port in the world, Hong Kong, signed on. Two Japanese ports followed in late September 2002. Delays have followed in deploying Customs personnel; five inspectors earmarked for Hong Kong will not arrive until January 2003. However, by November 2002, 11 of the top 20 mega-ports had agreed to take part in the scheme.
The system was tightened in November when U.S. Customs announced that it would soon require full consignment data posted electronically to it 24 hours before the cargo is loaded aboard the vessel at the foreign port. The enormous adaptation process that this requirement sparked at ports in Asia and elsewhere has significantly delayed adoption of the tighter requirement, from the initially hoped Dec. 2, 2002, to at least Feb. 2, 2003, for Singapore. However, even the February date may be unrealistic as shipping firms scramble to arrange automated transfer of mammoth amounts of data, previously un-requested, based on ship cargos that historically change constantly before loading aboard the vessel. Another problem surfaced in December when the European Union initiated legal action against member states that had joined the Container Security Initiative, arguing that the U.S. should have negotiated with the European Union as a whole, and also that signatory ports would have an advantage over non-signatory ports, thus undermining fair competition.
While this regulatory effort was ongoing, work was also underway in the U.S. Congress to institute stronger maritime security legislation. The result was the Maritime Transportation Security Act of 2002 (MTSA), which was comprehensive port security legislation, but with the severe disadvantage that Congress was unable to come to an agreement over how it was to be funded. The bill was approved in November 2002 and requires that:
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The secretary of Transportation conduct a risk assessment of all vessels and facilities on or near the water to identify those at high risk of attack or accident.
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National and area maritime transportation security plans be developed.
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All ports, facilities and vessels develop comprehensive security plans and that these be approved by the U.S. Coast Guard.
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Local port security committees be set up to better coordinate the efforts of federal, state, local, and private law enforcement bodies, including intelligence agencies, the FBI, Customs, Immigration, and the U.S. Coast Guard.
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The Transportation Department develop regulations for secure areas in ports, including identification cards.
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$90 million be awarded in research and development grants for better customs inspection of ships entering the United States.
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$33 million be awarded for the development of security training and for the education and certification of security personnel.
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A maritime intelligence system be developed and reporting of crew, passengers, and cargo be improved.
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Commercial vessels be equipped with an automatic identification system so that vessels are able to be tracked in U.S. waters.
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The Sea Marshal program be authorized.
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The U.S. Coast Guard be authorized about $6 billion dollars for the 2003 fiscal year.
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However, while all these measures were directed, as noted above, the only funding in the bill was for the U.S. Coast Guard. The original way the MTSA provisions would have been funded was through a user fee on all shipping, which would have helped provide $3.2 billion for port security over the next six years. However, opponents of the user fee eventually managed to block its implementation on the basis that security enhancements are not particular to the shipping companies and that the burden should be more equitably distributed. That left the funding to be sorted out via an administration funding plan, which is required to be submitted within six months of the bill's enactment. The Bush administration has so far not submitted its plan; in December the Republicans decided to halt work on all funding measures until the beginning of the 108th Congress in January 2003, when the party took control of both congressional houses.
Seeking to widen efforts to increase security for shipping worldwide, the United States in early 2002 introduced proposals similar to the MTSA at the United Nations specialized agency responsible for worldwide maritime trade standards. The International Maritime Organization (IMO), based in London, and responsible since 1948 for the international promotion of maritime safety, agreed to consider the proposals in February and adopted after much discussion in mid-December 2002. The attack on the French tanker Limburg on Oct. 7, 2002 off the coast of Yemen increased the urgency of the efforts. Vessels will have to have security plans and security officers, as well as port security plans and automatic identification systems similar to those embodied in the MTSA. The IMO has directed that the new standards enter into force in July 2004 for its 162 member states. As there are only about 200 sovereign states on Earth, such measures will, if successfully adopted by all IMO members, become reasonably common practice all round the world. At the same time, the U.S. Coast Guard will synchronize its security regulations with those of the IMO.
In summary, the efforts by individuals aware of the threat before the Sept. 11, 2001, attacks, and those of the U.S. government after the attacks, have reached the stage where the necessary legal and regulatory framework is in place for shipping security. This is a first step, and now the challenge will be to comprehensively implement the measures approved. This will be a long and difficult process involving cultural change around the world as long-held shipping practices that up to now have placed commercial imperatives first are challenged in the name of security. However, the progress made in this area so far does give hope for an ultimately more secure shipping industry.
Sources
Stephen E. Flynn, "Beyond Border Control," Foreign Affairs, Nov./Dec. 2001
U.S. Customs Press Release, "U.S. Customs Container Security Initiative Guards America, Global Commerce From Terrorist Threat," November 2002
Donald Urquhart, "US must consider EC security concerns: Lamy," Business Times, Nov. 15, 2002
Lloyd's List, "Implication Of 24-Hour Rule Spelt Out in Detail," Nov. 11, 2002
Mark Rosen, "Port Security Legislation off Life Support, But Challenges Remain, Part 1," Intellibridge Homeland Security Monitor, Nov. 1, 2002
Office of U.S. Senator Fritz Hollings, "Legislative Summary: Maritime Transportation Security Act of 2002 (S.1214)"
Jeremy Torobin, "Year in Review: Security and Free Trade Clash at U.S. Ports and Borders," CQ Homeland Security, Dec. 30, 2002
Mary Jacoby, "Congress Tightens Port Security," St. Petersburg Times, Nov. 15, 2002
R.G. Edmonton, "IMO Adopts Security Measures," Journal of Commerce On-Line, Dec. 19, 2002
Jeremy Torbin, "U.N. Moves to Secure Ships for First Time," CQ Homeland Security, Dec. 13, 2002
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