Thursday, July 29, 2010

MTSA 2010

On July 21, 2010 Sen. Rockefeller (D-WV) introduced Senate Bill 3969, the Maritime Transportation Security Act of 2010. The bill has been referred to the Committee on Commerce, Science, and Transportation. This piece of legislation is in the earliest stages of its life and it is anticipated that substantial changes will occur before/if it is passed. All provisions of the bill affect the MTSA community but here are some selections. My comments are in brackets.

SMALL VESSEL SECURITY. The bill requires operators of recreational vessel equipped with propulsion machinery of any kind to carry a certificate, card, or other proof of successful completion of a recreational boating safety course or test that conforms to the National Boating Education Standards as recognized by the United States Coast Guard. There are exemptions for recent purchases, charters, rentals, and persons who have valid U. S. Coast Guard MMD’s. There is a lengthy phase-in for this provision: 3 years after the date of the enactment for operators 18 years or younger, and 7 years after the date of the enactment for all operators.

The America’s Waterway Watch Program is formally established within the USCG, and funded with $3,000,000 annually through 2016. Provisions address immunity for good-faith reporting of suspicious activities, and immunity for response to the report on the part of the authorized officials not entitled to assert the defense of qualified immunity.

TRANSPORTATION OF ESPECIALLY HAZARDOUS CARGOES. DHS will work with the International Maritime Organization and in consultation with the International Standards Organization and shipping industry stakeholders to 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. An IMO work item concerning this transportation is encouraged.

REGIONAL TRANSPORTATION SECURITY INCIDENT MITIGATION PLAN. These plans will establish regional response and recovery protocols to prepare for, respond to, mitigate against, and recover from a transportation security incident consistent with section 202 of the Security and Accountability for Every Port Act of 2006 (6 U.S.C. 942) [Post-incident recovery.]

ESTABLISHMENT OF A SECURITY INDIVIDUAL. Section 308 states that all U. S. registered vessels five net tons or more or each foreign vessel entering a United States port or a facility on or adjacent to the waterways of the United States, engaged in the commercial transportation of goods or passengers shall designate a U. S. person that is responsible for responding to a transportation security incident involving the vessel while in the United States to notify appropriate emergency response entities and facilitating vessel response activities; and provide notice to the Coast Guard Captain of the Port of the identity of, and contact for such person. [Interesting to see how much of a burden this might be.]

SEAMAN SHORESIDE ACCESS. Section 309 states that each105 facility security plan shall provide a system for seamen assigned to a vessel at that facility, pilots, and representatives of seamen’s welfare and labor organizations, to board and depart the vessel through the facility in a timely manner at no cost to the individual. (Does not affect TWIC.)

RISK BASED RESOURCE ALLOCATION. Section 310 states that n carrying out chapter 701 of title 46 (Port Security,) DHS shall develop and utilize a national standard and formula for prioritizing and addressing assessed security risks at United State ports and facilities on or adjacent to the waterways of the United States, such as the Maritime Assessment Strategy Tool that has been tested by the Department of Homeland Security. AMSC’s shall use this standard to regularly evaluate, prioritize, and mitigate each port’s most significant risks. DHS shall utilize the standard when considering departmental resource allocations and grant making decisions. [Will this codify MSRAM?]

MSRAM. Section 311 states that within 180 days after the date of enactment of the Act, DHS shall make the Coast Guard’s Maritime Security Risk Assessment Model tool available, in an unclassified version, on a limited basis to regulated vessels and facilities to conduct true risk assessments of their own facilities and vessels using the same criteria employed by the United States Coast Guard when evaluating a port area, facility, or vessel.

INTEGRATION OF SECURITY PLANS AND SYSTEMS WITH LOCAL PORT AUTHORITIES, STATE HARBOR DIVISIONS, AND LAW ENFORCEMENT AGENCIES. The owner or operator of a facility shall—‘(1) make a current copy of the vulnerability assessment conducted under subsection (b) of Section 70102 of title 46, United States Code, available to the port authority with jurisdiction of the facility and appropriate State or local law enforcement agencies; an(2) integrate, to the maximum feasible extent, any security system for the facility with compatible systems operated or maintained by the appropriate State, law enforcement agencies, and the Coast Guard.

[Is there a distinction between the 70102 VA and the 105.300 VA?]

WRITTEN AGREEMENTS REQUIRED BETWEEN THE DEPARTMENT OF HOMELAND SECURITYAND PUBLIC OR PRIVATE MARINE TERMINAL OPERATORS. Section 313 addresses these agreements, and states that at a minimum they will cover the terms and conditions for use of the screening devices, including operations and safety procedures. The agreements will include an indemnification and hold harmless clause to protect the marine terminal operator from liability for injuries or damage to individuals or property caused by DHS.

PORT SECURITY TRAINING AND CERTIFICATION. This section amends 46 USC 701 and addresses comprehensive facility security officer training requirements designed to provide full security training that would lead to certification of such officers.

In establishing the requirements, the Secretary shall work with affected industry stakeholders and evaluate 1) the requirements that the training program shall provide; 2) existing security training programs employed at marine terminal facilities; and 3) existing port security training programs developed by the Federal Government.

The training program shall provide validated training that—

(1) provides training at the awareness, performance, management, and planning levels;

(2) utilizes multiple training mediums and methods;

(3) establishes a validated provisional on-line certification methodology;

(4) addresses port security topics, including—

(A) facility security plans and procedures, including how to develop security plans and security procedure requirements when threat levels are elevated;

(B) facility security force operations and management;

(C) physical security and access control at facilities;

(D) methods of security for preventing and countering cargo theft;

(E) container security;

(F) recognition and detection of weapons, dangerous substances, and devices;

(G) operation and maintenance of security equipment and systems;

(H) security threats and patterns;

(I) security incident procedures, including procedures for communicating with governmental and nongovernmental emergency response providers; and

(J) evacuation procedures;

(5) is consistent with, and supports implementation of, the National Incident Management System, the National Response Plan, the National Infrastructure Protection Plan, the National Preparedness Guidance, the National Preparedness Goal, the National Maritime Transportation Security Plan, and other such national initiatives;

(6) is evaluated against clear and consistent performance measures; and addresses security requirements under facility security plans.

CONTINUING SECURITY TRAINING.—DOT will work with State and local law enforcement agencies and industry stakeholders to develop and certify

the following additional security training requirements for Federal, State, and local officials with security responsibilities at United States seaports:

(1) A program to familiarize them with port and shipping operations, requirements of the Maritime Transportation Security Act, and other port

and cargo security programs that educates and trains them with respect to their roles and responsibilities.

(2) A program to familiarize them with dangers and potential issues with respect to shipments of hazardous and especially hazardous cargoes.

(3) A program of continuing education as deemed necessary by DOT.

TRAINING PARTNERS.—In developing and delivering training under the training program and continuing security training, the Secretary, in coordination with the Maritime Administration of the Department of Transportation, and consistent with section 109 of the Maritime Transportation Security Act of 2002 (46 U.S.C. 70101), shall—

(1) work with government training facilities, academic institutions, private organizations, employee organizations, and other entities that provide

specialized, state-of-the-art training for governmental and non-governmental emergency responder providers or commercial seaport personnel and management; and

(2) utilize, as appropriate, government training facilities, courses provided by community colleges, public safety academies, State and private universities, and other facilities.

CONSULTATION.—In carrying out this section, DOT shall ensure that activities surrounding the development of curriculum and the provision of training are eligible to receive grant funds.

GRANT PROGRAM.—DOT shall establish a grant program to provide funds to industry stakeholders to help underwrite their assistance in the development of curriculum and training under this section.

This training program is funded to DOT, $3,000,000 in 2011 and 2012.

[Interesting additions. First of all, does this section use the 33 CFR 101 definitions for facility security officer? On-line training is mentioned. The program is funded. The IMO Model Course is not addressed. MARAD is still in charge. Training for port first responders is addressed. {The University of Findlay has been presenting this training in a DHS-certified format since 2007, all over the U. S.}The subchapter H updates are supposed to address training standards – there is no connection between this bill it its final form and the updates, which have been in the regulatory hopper for years.]

NMSAC – Section 315 refines the membership of NMSAC, ensuring that there is at least one member representing port authorities, facilities, terminals, vessels, maritime labor, academia, state and local government, and maritime industry. AMSC membership is also refined; members are to be composed of individuals who represent the interests of the port industry, terminal operators, port labor organizations, and other users of the port areas.

[Just my opinion but the purpose of the AMSC is the security port area as a whole, and the idea of choosing someone because of the interest that they represent is odd and possibly counterproductive. The phrase “the interests of” indicates to me the interests of that group to the exclusion of everyone else.]

More to come on this bill......

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