HR 3619 Sent to President

The House finally got around to addressing HR 3169, the Coast Guard Authorization Act for Fiscal Years 2010 and 2011 which made it the first DHS authorization bill to passed this year. The Senate passed the bill in early May, substituting Senate language for bill that passed in the House last October. Title VIII, Port Security, contains the provisions of the bill that might be of interest to the Chemical Security Community

America’s Waterway Watch Program

The bill does establish a waterway watch program designed to encourage reporting of “activities that may indicate that a person or persons may be preparing to engage or engaging in a violation of law relating to a threat or an act of terrorism” {§ 70122(b)}. The bill authorizes $3 million for this program.

TWIC Reader Report

The bill requires DHS to submit a report to Congress when it completes their testing of TWIC “access control technologies” (TWIC Readers). It also requires GAO to review that report and report on the report to Congress. Congress continues to be concerned about the slow pace of TWIC Reader implementation.

Especially Hazardous Cargo

Section 812 establishes yet another category of hazardous material; especially hazardous cargo which is defined as: “anhydrous ammonia, ammonium nitrate, chlorine, liquefied natural gas, liquiefied (sic) petroleum gas, and any other substance, material, or group or class of material, in a particular amount and form that the Secretary determines by regulation poses a significant risk of creating a transportation security incident while being transported in maritime commerce” {§812(d)(1)}.

Interestingly this extensive section of the bill requires the Secretary to conduct a study of risk assessments relating to these cargoes while mandating the establishment of a security program to protecting security zones around vessels containing such cargo.

Section 828 adds requirements to existing Port Security Zone rules for the Secretary to establish “(c)redentialing standards, training, and certification for State and local support for the enforcement of security zones for the transportation of especially hazardous cargo” {§70132}.

Miscellaneous TWIC Provisions

The TWIC program continues to attract Congressional attention. Section 814 allows the use of a “secondary authentication system to verify identification” when an individuals fingerprints cannot be taken or read. Section 815 requires an assessment of the adequacy of TWIC enrollment sites. Section 818 addresses the time it takes to get a TWIC issued, both allowing escorted access to individuals awaiting a TWIC to be re-issued and requiring studies about the time it takes get cards issued. And §819 allows the Secretary to extend TWIC expirations to align that expiration with “the expiration of a license, certificate of registry, or merchant mariner document”.

Security Training Program

Section 821 requires the Secretary to establish “comprehensive facility security officer training requirements designed to provide full security training that would lead to certification of such officers”. Among other things it requires that the training program “provide for continuing education and training for facility security officers beyond certification requirements, including a program to educate on the dangers and issues associated with the shipment of hazardous and especially hazardous cargo [emphasis added]” {§70125(b)(4)}. It also repeals §113 of the Safe Port Act (6 U.S.C. 911) which contained less comprehensive training requirements.

Integration of Security Plans

Section 822 required facilities and vessels will share vulnerability assessments conducted by the Coast Guard under 46 USC 70102 with port authorities and “appropriate State or local law enforcement agencies” {§70102(c)(1)} to allow for the integration of security plans for that vessel/facility with “compatible systems operated or maintained by the appropriate State, law enforcement agencies, and the Coast Guard” {§70102(c)(2)}.

Semi-submersibles

Section 911 addresses the issue of semi-submersible craft by requiring the Secretary to submit a report to Congress on the Department’s “comprehensive strategy to combat the illicit flow of narcotics, weapons, bulk cash, and other contraband through the use of submersible and semi-submersible vessels”. While this is envisioned as a counter-narcotics operation, the requirement to conduct an “assessment of the threats posed by submersible and semi-submersible vessels” {§911(1)} should probably also identify the potential for smuggling terrorists and weapons near or into port side chemical facilities.

Moving Forward

Once the President signs this legislation the Secretary and the Coast Guard have a lot of work before them. There are studies to conduct, reports to present to Congress and, of course, new regulations to write. It will take some time to see a practical effect from this newly passed legislation.

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’.