2005-2006 U.S. Maritime Legislative Developments

Journal of Maritime Law and Commerce, Jul 2007 by Papavizas, Constantine G, Kiern, Lawrence I

I

INTRODUCTION

Although the 109th Congress1 was criticized in the national press as a "do nothing" Congress,2 it was productive in the maritime arena enacting into law the Security and Accountability for Every Port Act or 2006 (commonly referred to as the SAFE Port Act),3 the Coast Guard and Maritime Transportation Act of 2006 (CGMTA),4 a reauthorization of the MagnusonStevens Fishery Conservation and Management Act,5 miscellaneous provisions in the John Warner National Defense Authorization Act for Fiscal Year 2007 ,6 and other bills.

The biggest maritime-related headlines for 2005-2006 arose from the devastating hurricanes in the U.S. Gulf of Mexico and the failed attempt by Dubai Ports World to acquire a number of U.S. marine terminals. Both events resulted in legislative activity, which we review below.

Finally, for those maritime attorneys and others who have spent their careers knowing their references to the compilation of maritime laws comprising the Appendix to Title 46 of the U.S. Code- its time to re-learn everything, as Congress enacted a codified version of the Appendix into positive law in the fall of 2006.

II

LEGISLATIVE DEVELOPMENTS

A. Security

Security has been a Congressional preoccupation since 9/11. That focus continued in the maritime world as Congress revisited a number of prior enactments in the 109th Congress and enacted a new layer of mandates.

1 . SAFE Port Act

Congress enacted the Maritime Transportation Security Act of 2002 (MTSA)7 in direct response to the 9/11 attacks with the intention of securing U.S. ports from terrorist threat. A number of unresolved issues subsequently became apparent as MTSA was implemented, and Congress refined its approach in 2006 with the enactment of the SAFE Port Act.

a. Container inspection

One port security threat that has captured the public's attention is the specter of a weapon of mass destruction entering the United States inside a maritime cargo container. Reacting to that risk, the SAFE Port Act requires that all containers entering the United States through the 22 largest (by container volume) U.S. ports must be scanned for radiation as of December 31 , 2007 .8 AU other ports must scan all containers for radiation as soon as practicable after a strategy for implementation is provided to Congress, but, in no event, later than December 28, 2008.9

The SAFE Port Act requires the Department of Homeland Security (DHS) to focus more generally on security threats presented by cargo containers. The Act requires DHS to "screen" 100 percent of all containers originating outside the United States to identify high risk containers.10 All high-risk imported cargo containers must be "scanned" or "searched" before they leave a U. S. seaport." This requirement falls short of demands by some in Congress to "scan" or "search" 100 percent of all containers entering the United States.12

The SAFE Port Act also requires that DHS: (i) establish and implement a "Container Security Initiative" to identify and examine or search maritime containers that pose a security risk before loading such containers in a foreign port for shipment to the United States;"13 (ii) develop a plan by October 13, 2007 to conduct random searches of containers;14 and (iii) initiate a rulemaking by January 1 1 , 2007 to establish minimum standards and procedures for securing containers in transit to the United States.15

b. Transportation worker identification credential (TWIC)

A key feature of MTSA was the requirement that all persons entering a secure area in a facility or vessel must have either a Transportation Worker Identification Credential (TWIC) or be escorted by someone with a TWIC card.16 The TWIC program crawled forward from 2002 witfi widespread and significant industry opposition.17 A Notice of Proposed Rulemaking was issued on May 22, 2006 jointly by the U.S. Coast Guard and the Transportation Security Administration.18 Frustrated at the slow pace,19 Congress reacted in the SAFE Port Act.

That Act mandated a number of TWIC-related implementation deadlines: (1) issuance of a final rule by January 1, 2007; (2) commencement of a TWIC card electronic reader pilot program by April 2007; (3) card access implementation (without card readers) at the 10 "top priority" ports by July 1 , 2007; (4) card access implementation at the next 40 highest priority ports by January 1 , 2008 and all other ports by January 1 , 2009; and (5) a requirement that all holders of merchant mariner credentials have TWIC cards by January 1, 2009 .20 The final rule was in fact made available on the DHS web site on January 1 .21 The card reader pilot project deadline has been missed.22

The SAFE Port Act also offered some relief due to overlapping background check requirements and encouraged the decoupling of the electronic reader requirement from the TWIC itself by requiring that the government first conduct a reader pilot program.23 The SAFE Port Act also made it clear that there would only be a fairly narrow list of permanent disqualifying offenses consisting of treason, espionage, sedition and similar crimes.24 Further, the SAFE Port Act addressed the concerns of small vessel owners regarding the implementation of the card reader requirement by mandating that DHS establish a threshold for vessels with small crews mat will not require readers.25