Maritime Hazardous Cargo Security Act, S 1385

There was an interesting article posted to JOC.com last week about the recent introduction of the Maritime Hazardous Cargo Security Act of 2009 (S 1385) by Sen. Lautenberg (D,NJ). That article notes that the new legislation “would improve the security of vessels and facilities that ship and receive dangerous chemicals and petrochemicals, including liquefied natural gas and liquefied petroleum gas”. According to a press release from Sen. Lautenberg’s office this bill will “protect America’s communities and economy by improving the security of hazardous cargo shipments”. It further explains that the bill would establish an new category of hazardous materials, ‘especially hazardous cargos’ (EHC) and notes that “no international standards exist for the safe and secure handling of these chemicals/petrochemicals by ship and there are limited U.S. Coast Guard resources for EHC”. The GPO did not have a copy of this bill available until yesterday so I did not have a chance to review this bill until then. Oh well, Congress is in recess until July 7th so nothing is going to be done with this until then (at the earliest) so a delay of a couple of days is no big problem. So, let’s take a look at this newly proposed bill. Especially Hazardous Cargo S 1385 would establish another new category of hazardous material, Especially Hazardous Cargo (EHC). Section 10(2) would define EHC as “anhydrous ammonia, ammonium nitrate, chlorine, liquefied natural gas, liquefied petroleum gas, and any other substance or materials identified as an especially hazardous cargo by the Secretary’ of DHS. To be internally consistent, one would expect the Secretary to expand that definition to include other toxic inhalation hazard (TIH) chemicals, bulk explosives similar to AN, and liquefied hydrogen gas. International Standards Section 2a of Sen. Lautenberg’s bill would authorize the DHS Secretary (in consultation with the Secretary of State) to work with the International Maritime Organization (IMO) to establish a committee within the IMO ‘for the safe and secure transportation of especially hazardous cargo’. That committee would include ‘representatives of United States trading partners that supply tank, bulk, or break-bulk vessel shipments of especially hazardous cargo to the United States’. The DHS Secretary would then work with the IMO (presumably through the afore mentioned committee) to (§2b) ‘develop protocols, procedures, standards, and requirements for receiving, handling, loading, unloading, vessel crewing, and transportation of especially hazardous cargo to promote the safe and secure operation of ports, facilities, and vessels that transport especially hazardous cargo to the United States’. Section 2c would establish an 18 month time limit for the DHS Secretary to initiate actions to establish the committee and three years to attempt to have that committee establish the ‘protocols, procedures, and standards’ outlined in §2b. Since accomplishing these goals is dependant on agencies outside of the control of the US Congress, the Secretary will only be required to report to Congress annually on the progress being made in attaining these goals. Section 3 of the bill would provide for independent validation of ports and facilities compliance with the standards established pursuant to §2b. While this section requires that the DHS Secretary to work with the IMO to establish protocols for the qualification of third party inspectors to validate performance of foreign ports, it also requires the Secretary to certify (and decertify when appropriate) these international inspectors. It is interesting that the bill provides for a two year time limit to achieve the establishment of the validation procedures for standards that the bill provides a three year time limit to establish. Since this bill proposes that these would be international standards under the IMO, it would be reasonable to assume that the same standards and validation procedures would also apply to US ports and facilities. Unfortunately, this would seem to conflict with the requirements of §70110A(f) of the proposed amendment to Chapter 701 of title 46 USC. That sub-paragraph requires the Secretary of DHS to protect ‘security sensitive, proprietary, or business sensitive’ information from public disclosure. The Secretary would have no control over international inspectors’ or the IMO committee’s disclosure of such information. Sections 4 and 5 of the legislation would provide authority for the DHS Secretary to provide assistance through assistance programs under 70110(e)(1) of title 46 USC, or Coast Guard assistance programs to deficient foreign ports and facilities to bring them up to US approved international standards. No new appropriations are included for either assistance program. National Strategy for Waterside Security Section 6 requires that the DHS Secretary, through the Commandant of the Coast Guard, to {§6(a)(1)(A)} “initiate a national study to identify measures to improve the security of maritime transportation of liquefied natural gas and other especially hazardous cargoes”. This study will include input from the “National Maritime Security Advisory Committee, and appropriate State and local government officials through the Area Maritime Security Committees, to evaluate the waterside security of vessels carrying, and waterfront facilities handling, especially hazardous cargo” {§6(a)(1)(B)}. The Secretary will be required to report on the results of this study within 12 months. Within an additional six months, using the results form that study, the Secretary, through the Commandant, will submit to Congress a national strategy for “for the waterside security of vessels carrying, and waterfront facilities handling, especially hazardous cargo” {§6(b)}. Presumably the Congress will utilize the results of this study to craft legislation to implement that strategy. Incident Mitigation Plan Section 7 requires the Secretary to “establish regional response and recovery protocols to prepare for, respond to, mitigate against, and recover from a transportation security incident” {§7(2)}. This plan must include provisions to ensure that “Federal, State, and local personnel responsible for the safety and security of vessels in port carrying especially hazardous cargo have successfully completed training in the Department of Homeland Security’s incident command system protocols” (§8). The Lautenberg press release claims that this requires that this establishes a requirement that an “employee security training requirement for vessel security officers to complete training on the Coast Guard’s Incident Command System”. I certainly do not read ‘Federal, State, and local personnel’ as including any non-governmental personnel. It certainly does not specify vessel security officers in any language that I can find. Interoperable Communications Equipment Section 9 provides an amendment to §70107A of title 46 USC requiring the Secretary to ensure that “interoperable communications technology is deployed at all interagency operational centers”. This equipment would be used to re-establish ‘communications when existing infrastructure is damaged or destroyed in an emergency or a major disaster’.