Port and Maritime Security: Background and Issues for Congress
Congressional research reportMay 27, 2005
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Port and Maritime Security:
Background and
Issues for Congress
Updated May 27, 2005
John F. Frittelli
Specialist in Transportation
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Port and Maritime Security:
Background and Issues for Congress
Summary
The terrorist attacks of September 11, 2001 heightened awareness about the
vulnerability to terrorist attack of all modes of transportation. Port security has
emerged as a significant part of the overall debate on U.S. homeland security. The
overarching issues for Congress are providing oversight on current port security
programs and making or responding to proposals to improve port security.
The U.S. maritime system consists of more than 300 sea and river ports with
more than 3,700 cargo and passenger terminals. However, a large fraction of
maritime cargo is concentrated at a few major ports. Most ships calling at U.S. ports
are foreign owned with foreign crews. Container ships have been the focus of much
of the attention on seaport security because they are seen as vulnerable to terrorist
infiltration. More than 9 million marine containers enter U.S. ports each year. While
the Bureau of Customs and Border Protection (CBP) analyzes cargo and other
information to target specific shipments for closer inspection, it physically inspects
only a small fraction of the containers.
The Coast Guard and CBP are the federal agencies with the strongest presence
in seaports. In response to September 11, 2001, the Coast Guard created the largest
port-security operation since World War II. The Coast Guard has advanced its 24hour Notice of Arrival (NOA) for ships to a 96-hour NOA. The NOA allows Coast
Guard officials to select high risk ships for boarding upon their arrival at the entrance
to a harbor. CBP has also advanced the timing of cargo information it receives from
ocean carriers. Through the Container Security Initiative (CSI) program, CBP
inspectors pre-screen U.S.-bound marine containers at foreign ports of loading. The
Customs Trade Partnership Against Terrorism (C-TPAT) offers importers expedited
processing of their cargo if they comply with CBP measures for securing their entire
supply chain.
To raise port security standards, Congress passed the Maritime Transportation
Security Act of 2002 (P.L. 107-295) in November 2002. The focus of debate in
Congress has been about whether current efforts to improve port security are
adequate in addressing the threat. While many agree that Coast Guard and CBP
programs to address the threat are sound, they contend that these programs represent
only a framework for building a maritime security regime, and that significant gaps
in security still remain. The GAO has investigated how the CSI and C-TPAT
programs are being implemented and found several shortcomings that need
correction. The GAO found that C-TPAT participants were benefitting from reduced
scrutiny of their imported cargo after they had been certified into the program but
before CBP had validated that the participants were indeed carrying out the promised
security measures. The GAO also found that not all containers that CBP had targeted
for inspection at the overseas loading port were being inspected by the host customs
administration. This report will be updated periodically.
Key Policy Staff: Port and Maritime Security
Area of expertise
Name
Phone
Transportation
Security Admin.
(name redacted)
7-....
[redacted]@crs.loc.gov
Navy & Coast Guard
Ronald O’Rourke
7-....
[redacted]@crs.loc.gov
Customs & Border
Protection
Jennifer Lake
7-....
[redacted]@crs.loc.gov
Nuclear terrorism
Jonathan Medalia
7-....
[redacte
d]@crs.loc.gov
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Concerns for Port Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Features of the U.S. Maritime System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. Ports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commercial Ships Using U.S. Ports . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cargo Containers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Importance of the U.S. Maritime System . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Economic Importance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
National Security Importance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Port Security Threat Scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Port and Ship Vulnerabilities to Terrorist Attack . . . . . . . . . . . . . . . . . . . . . 7
Port Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Container Shipments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Maritime Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Government Authorities at Seaports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Port Governance and Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Federal Agencies Involved in Port Security . . . . . . . . . . . . . . . . . . . . . . 9
Port Security Initiatives by Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . 10
Coast Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bureau of Customs and Border Protection . . . . . . . . . . . . . . . . . . . . . 11
Transportation Security Administration . . . . . . . . . . . . . . . . . . . . . . . . 12
Maritime Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
International Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Recent Law on Port Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Addressing the Threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Funding Port Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Sources of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Allocating Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Resources for Foreign Ports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Balancing Security and Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Point of Origin Cargo Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Vessels Under Foreign Ownership and Control . . . . . . . . . . . . . . . . . 18
International Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Standard vs. Site-Specific Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Security Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Roles and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Intelligence Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Private Industry’s Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Selected Port Security Legislation Introduced in the 109th Congress . . . . . . . . . 21
Port and Maritime Security:
Background and Issues for Congress
Introduction
This report1 provides background information and discusses potential issues for
Congress on the topic of port security, which has emerged as a significant part of the
overall debate on U.S. homeland security.2 The terrorist attacks of September 11,
2001 heightened awareness about the vulnerability to terrorist attack of U.S. ports
and the ships in them. The issue for Congress is providing oversight on port security
and proposals for improving it. Port security legislation can have significant
implications for public safety, the war on terrorism, the U.S. and global economy,
and federal, state, and local homeland security responsibilities and expenditures.
Background
Concerns for Port Security
Government leaders and security experts are worried that the maritime
transportation system could be used by terrorists to smuggle personnel, weapons of
mass destruction, or other dangerous materials into the United States. They are also
concerned that ships in U.S. ports, particularly large commercial cargo ships or cruise
ships, could be attacked by terrorists. Experts are concerned that a large-scale
terrorist attack at a U.S. port could not only cause local death and damage, but also
paralyze global maritime commerce. The 9/11 Commission reported that, “While
commercial aviation remains a possible target, terrorists may turn their attention to
other modes. Opportunities to do harm are as great, or greater, in maritime and
surface transportation. Initiatives to secure shipping containers have just begun.”3
1
This report was prepared with assistance from Jennifer Lake, Jonathan Medalia, and
Ronald O’Rourke.
2
For other CRS products on the subject of maritime security, see CRS Report RS21293,
Terrorist Nuclear Attacks on Seaports: Threat and Response; CRS Report RS21125,
Homeland Security: Coast Guard Operations — Background and Issues for Congress; CRS
Report RS21230, Homeland Security: Navy Operations — Background and Issues for
Congress; CRS Report RS21997, Port and Maritime Security: Potential for Terrorist
Nuclear Attack Using Oil Tankers.
3
The 9/11 Commission Report: Final Report of the National Commission on Terrorist
Attacks Upon the United States, New York: W.W. Norton, 2004, p. 391.
CRS-2
In response to concerns for port security, on November 14, 2002, Congress
passed S. 1214, as amended, the Maritime Transportation Security Act of 2002
(MTSA), and the President signed it into law as P.L. 107-295 on November 25, 2002.
The Coast Guard and Maritime Transportation Act of 2004 was signed into law as
P.L. 108-293 on August 9, 2004. Title VIII of the act adds specificity to some of the
provisions in MTSA. On December 17, 2004, the Intelligence Reform and Terrorism
Prevention Act of 2004 (P.L. 108-458) was signed into law. This act implements the
transportation security-related recommendations of the 9/11 Commission with
respect to maritime transportation.
There is continuing debate about whether current efforts to improve port
security are adequate in addressing the threat. While many agree that Coast Guard
and CBP initiatives to address the threat are strengthening the security of the
maritime transportation system, they contend that these initiatives represent only a
framework for building a maritime security regime, and that significant gaps in
security still remain.
Features of the U.S. Maritime System
U.S. Ports. The U.S. maritime system includes more than 300 sea and river
ports with more than 3,700 cargo and passenger terminals and more than 1,000
harbor channels spread along thousands of miles of coastline.4
Transportation firms tend to concentrate traffic through major cargo hubs
because of the high cost of their infrastructure.5 The top 50 ports in the United States
account for about 90% of all cargo tonnage and 25 U.S. ports account for 98% of all
container shipments.6 Energy products are concentrated at particular ports. For
instance, almost one-quarter of California’s imported crude oil is offloaded in one
geographically confined area.7
Commercial Ships Using U.S. Ports. In 2003, approximately 6,000
commercial ships made approximately 60,000 U.S. port calls.8 Most ships calling
at U.S. ports are foreign owned and foreign crewed; less than 3% of U.S. overseas
trade is carried on U.S.-flag vessels.9
4
For further information on the U.S. maritime system, see U.S. DOT, Maritime Admin., An
Assessment of the U.S. Marine Transportation System, Sept. 1999. Available at
[http://www.marad.dot.gov/].
5
The U.S. Army Corps of Engineers’ Navigation Data Center ranks U.S. ports by dollar
value and tons of cargo imported and exported. See [http://www.iwr.usace.army.mil/ndc/].
6
U.S. Congress, House of Representatives, Maritime Transportation Security Act of 2002,
Conference Report, H.Rept. 107-777, p. 4.
7
How Did This Happen? ed. James F. Hoge, Jr. and Gideon Rose (New York: Public
Affairs, 2001), p.186.
8
U.S. Maritime Administration, Vessel Calls at U.S. Ports, 2003, July 2004.
9
“The Maritime Component,” Sea Power, August 2001.
CRS-3
Cargo Containers. Container ships are a growing segment of maritime
commerce — and the focus of much of the attention on seaport security. Container
ships carry stacks of marine containers loaded with a wide variety of goods. A large
container ship can carry more than 3,000 containers, of which several hundred might
be offloaded at a given port.
A marine container is similar to a truck trailer without wheels; standard sizes are
8 x 8 x 20 feet or 8 x 8 x 40 feet. Once offloaded from ships, they are transferred to
rail cars or tractor-trailers or barges for inland transportation. Over-the-road weight
regulations generally limit the cargo load of a 40 foot container to approximately
45,000 pounds. The estimated world inventory of containers is about 12 million.
Container ships tend to carry higher-value cargo than other types of cargo ships.
While they represent only 11% of annual tonnage, they account for 66% of the total
value of U.S. maritime overseas trade. Containerized imports are dominated by
consumer goods, such as clothing, shoes, electronics, and toys. U.S. automakers also
import large quantities of parts in containers. Containerized exports are dominated
by wastepaper, forest products, chemicals, and agricultural products.10
More than 9 million cargo containers enter U.S. sea ports each year. For
comparison, over 13 million trucks and rail cars cross the Canadian and Mexican
borders. CBP analyzes cargo manifest information for each container to decide
which to target for closer inspection, based on such factors as origin, destination,
shipper, and container contents. Only a small portion have their contents physically
inspected by CBP. Physical inspection could include scanning the entire container
with a sophisticated x-ray or gamma ray machine, unloading the contents of a
container, or both.11
Importance of the U.S. Maritime System
Economic Importance. Ships are the primary mode of transportation for
world trade. Ships carry approximately 80% of world trade by volume.12 The United
States is the world’s leading maritime trading nation, accounting for nearly 20%
(measured in tons) of the annual world ocean-borne overseas trade. Ships carry
more than 95% of the nation’s non-North American trade by weight and 75% by
value. Trade now accounts for 25% of U.S. Gross Domestic Product (GDP), up from
11% in 1970. Over the next two decades, the total volume of domestic and
international trade is expected to double.
10
For a list of the top importers and exporters of containerized marine cargo, see “Inside the
Box,” Journal of Commerce, Aug. 12-18, 2002, p. 20A.
11
For further information on CBP’s container inspection process, see CBP Fact Sheet: The
5 Percent Myth vs. U.S. Customs and Border Protection Reality, October 7, 2004.
12
United Nations Conference on Trade and Development (UNCTAD), Review of Maritime
Transport 2002.
CRS-4
Given the importance of maritime trade to the U.S. and world economies,
disruptions to that trade can have immediate and significant economic impacts.13 By
one estimate, the cost to the U.S. economy of port closures on the West Coast due to
a labor- management dispute was approximately $1 billion per day for the first five
days, rising sharply thereafter.14
The container shipping system is designed for speed and efficiency.
Transportation services are a critical component of the global, low-inventory (i.e.,
just-in-time) distribution model that many manufacturers have adopted. Most
industries in the United States use some imported components from overseas
suppliers. By bringing parts to a plant just before they are needed for assembly,
manufacturers can save money on warehouse space and inventory carrying costs.
Transport efficiencies permit warehouse requirements to be minimized. Lean
inventories in turn have contributed to business productivity. From 1980 to 2000,
according to one study, business logistics costs dropped from 16.1% of U.S. GDP to
10.1%.15
Given the dependence of the United States and the global economy on a highly
efficient maritime transportation system, many experts acknowledge that slowing the
flow of trade to inspect all inbound containers, or at least a statistically significant
random selection would be “economically intolerable.”16 Supply chain analysts are
concerned that increased security-related delay at seaports could threaten the
efficiency gains achieved in inventory management over the past two decades by
forcing companies to hold larger inventories.
Enhanced security has benefits as well as costs. Many experts see economic
benefits to tighter control over maritime commerce. Resources put towards seaport
security can also reduce cargo theft, narcotic and migrant smuggling, trade law
violations, the accidental introduction of invasive species, and the cost of cargo
insurance. Improved planning for responding to a terrorist attack at a seaport could
also improve responses to other emergencies, such as natural disasters or
transportation accidents. New technologies intended to convert the sea container into
a “smart box,” such as electronic seals, sensors, or tracking devices, could also
improve shipment integrity, help carriers improve their equipment utilization, and
help cargo owners track their shipments. In response to the terrorist threat, the CBP
has accelerated development of its new information management system, the
Automated Commercial Environment (ACE). This system will assist CBP in
13
For further information, see OECD, Security in Maritime Transport: Risk Factors and
Economic Impact, Maritime Transport Committee, July 2003.
14
Report of an Independent Task Force Sponsored by the Council on Foreign Relations,
America Still Unprepared — America Still in Danger, October 2002, p. 23.
15
Michael Wolfe, North River Consulting Group, Freight Transportation Security and
Productivity, report prepared for U.S. DOT, EU/US Forum on Intermodal Freight Transport,
Apr. 11-13, 2001.
16
Admiral James M. Loy and Captain Robert G. Ross, “Global Trade, America’s Achilles
Heel,” Defense Horizons, Feb. 2002.
CRS-5
evaluating cargo manifest information for high risk shipments but will also speed the
customs filing process for U.S. importers.17
National Security Importance. In addition to its economic significance, the
marine transportation system is vital for national security. The Departments of
Defense and Transportation have designated 17 U.S. seaports as strategic because
they are necessary for use by DOD in the event of a major military deployment.
Thirteen of these ports are commercial seaports. During Desert Storm, 90% of all
military equipment and supplies were shipped from U.S. strategic ports. The
deployment required over 312 vessels from 18 commercial and military ports in the
United States. As the GAO has reported, “If the strategic ports (or the ships carrying
military supplies) were attacked, not only could massive civilian casualties be
sustained, but DOD could also lose precious cargo and time and be forced to rely
heavily on its overburdened airlift capabilities.”18
Port Security Threat Scenarios
Security experts are concerned about a variety of terrorist threat scenarios at
U.S. ports. Among other things, they are concerned that terrorists could:
!
use commercial cargo containers to smuggle terrorists, nuclear,
chemical, or biological weapons, components thereof, or other
dangerous materials into the United States;
!
seize control of a large commercial cargo ship and use it as a
collision weapon for destroying a bridge or refinery located on the
waterfront;
!
sink a large commercial cargo ship in a major shipping channel,
thereby blocking all traffic to and from the port;
!
attack a large ship carrying a volatile fuel (such as liquefied natural
gas) and detonate the fuel so as to cause a massive in-port explosion;
!
attack an oil tanker in a port or at an offshore discharge facility19 so
as to disrupt the world oil trade and cause large-scale environmental
damage;
17
For further information on ACE, see [http://www.cbp.gov/xp/cgov/toolbox/about/
modernization/] (viewed 12/4/03).
18
GAO, Combating Terrorism, Actions Needed to Improve Force Protection for DOD
Deployments through Domestic Seaports, GAO-03-15, Oct. 2002.
19
In an offshore “lightering” zone, a very large crude carrier (VLCC) or “supertanker”
transfers part of its cargo to a smaller shuttle tanker that delivers the crude oil to the tank
farm or refinery onshore. There are also offshore oil ports where a tanker discharges its
cargo through a submerged pipeline that carries the cargo along the seabed to the onshore
terminal.
CRS-6
!
seize control of a ferry (which can carry hundreds of passengers) or
a cruise ship (which can carry more than 3,000 passengers, of whom
about 90% are usually U.S. citizens) and threaten the deaths of the
passengers if a demand is not met;
!
attack U.S. Navy ships in an attempt to kill U.S. military personnel,
damage or destroy a valuable U.S. military asset, and (in the case of
nuclear-powered ships) cause a radiological release.
!
use land around a port to stage attacks on bridges, refineries located
on the waterfront, or other port facilities.
Some of these scenarios (or similar ones) have already come to pass elsewhere.
For example, in October 2002, the French oil tanker Limberg appears to have been
attacked by a bomb-laden boat off the coast of Yemen, killing one crewman aboard
the tanker, damaging the ship, and causing an oil spill.20 In October 2001, Italian
authorities arrested on terrorism charges an Egyptian-born Canadian citizen found
with high-tech equipment (including a satellite phone and a computer) and other
personal possessions in a cargo container in an Italian port.21 In October 2000, the
U.S. Navy destroyer Cole was attacked by a bomb-laden boat during a refueling stop
in the harbor of Aden, Yemen, killing 17 sailors, injuring 39 others, and causing
damage to the ship that cost about $250 million to repair.22 In 1985, terrorists seized
the cruise ship Achille Lauro in the Mediterranean and held its passengers hostage,
killing one of them.
Much concern has focused on the threat that a sea container could be used to
smuggle a nuclear weapon into the United States. Experts are concerned that if a
nuclear weapon in a container aboard a ship in port is detonated, it could not only kill
tens of thousands of people and cause massive destruction, but could also paralyze
the movement of cargo containers globally, thereby shutting down world trade.23
Port and Ship Vulnerabilities to Terrorist Attack
Port Facilities. Port areas and ships in ports have many vulnerabilities to
potential terrorist attack. Port areas have very large landside perimeters to secure,
20
“Ships as Terrorist Targets,” American Shipper, Nov. 2002, p.59.
21
His lawyers argued that he was a Maronite Christian fleeing religious discrimination and
personal legal problems in Egypt who was shipping his possessions to Canada and planned
to fly from Rome to Montreal. (He was also carrying a plane ticket.) Charges against him
were dropped and he was ordered freed from jail in mid-November 2001. (Italian Court
Frees Canadian Suspect. Toronto Star, November 16, 2002.)
22
CRS Report RS20721, Terrorist Attack on U.S.S. Cole: Background and Issues for
Congress.
23
U.S. Department of the Treasury, Customs Service. Robert Bonner, U.S. Customs
Commissioner, Speech Before the Center for Strategic and International Studies,
Washington, D.C., January 17, 2002. [http://www.cbp.gov/xp/cgov/newsroom/
commissioner/speeches_statements/archives/jan172002.xml].
CRS-7
giving terrorists many potential landside points of entry. Some ports are located
immediately adjacent to built-up urban areas, giving terrorists places to hide while
approaching or escaping from port areas. Large numbers of trucks move in and out
of ports, making it possible for terrorists to use a truck to bring themselves and their
weapons into a port. Many ports harbor fishing and recreational boats that terrorists
could use to mask their approach to a target ship.
Ships. Commercial cargo ships at pier or at anchorage in harbor are stationary,
and those moving through port do so at slow speeds, making them easy to intercept
by a fast-moving boat. Commercial cargo ships are generally unarmed and have very
small crews, making them vulnerable to seizure by a small group of armed people,
as proven by modern-day pirates. In the 1990s, the number of reported attacks on
cargo ships by pirates tripled.24 Most pirate attacks occur while the ship is in port.
Although most attacks occur in Southeast Asian waters on foreign-flag freighters,
U.S. shippers are likely to be among the owners of cargo onboard. It can also be
noted that some experts believe there is a link between piracy and terrorism — that
the goal of some acts of piracy may be to raise money to finance terrorist operations.
The Financial Times has reported an incident where a chemical tanker in the south
Pacific was boarded by pirates who practiced steering the vessel at varying speeds for
several hours.25
The lack of transparency in ship registration has been a longstanding concern.
An Organization for Economic Cooperation and Development (OECD) study on the
ownership and control of ships reports that:
Not only does perfect transparency not exist, but in fact anonymity seems to be
the rule rather than the exception, and not only is it permitted, but in many cases
positively encouraged. This enables terrorists and would be terrorists to remain
intimately involved in the operation of their vessels, while maintaining totally
hidden, through the use of relatively simple mechanisms that are readily
available and legally tolerated in almost all jurisdictions.26
Unscrupulous ship owners are known to mask their identity by re-registering
their vessels under fictitious corporate names and renaming and repainting their
ships. Shipowners can register their vessels in “flag of convenience” countries which
may have lax regulations and require little information from the applicants.
According to press reports, U.S. intelligence officials believe they have identified 15
cargo ships that have links to al Qaeda.27
24
U.S. DOT, Surface Transportation Security: Vulnerabilities and Developing Solutions,
n.d., n.p.
25
“The Maritime Threat from Al Qaeda,” Financial Times, October 20, 2003.
26
OECD, Ownership and Control of Ships, Maritime Transport Committee, March 2003,
p. 5.
27
See “15 Freighters Believed to Be Linked to al Qaeda,” Washington Post, Dec. 31, 2002,
p. A1. Also, “Terrorism - Bin Laden Group Shipping Interests Probed,” Lloyd’s List, Sept.
28, 2001.
CRS-8
Container Shipments. The complexity of the process for completing
containerized shipments makes it more difficult to ensure the integrity of this type of
cargo.28 Unlike other cargo ships whose loading process occurs at the port and whose
cargo is often owned by a single company, container ships carry cargo from hundreds
of companies and the containers are loaded away from the port at individual company
warehouses. A typical single container shipment may involve a multitude of parties
and generate 30 to 40 documents. A single container could also carry cargo for
several customers, thus multiplying the number of parties and documents involved.
The parties involved in a shipment usually include the exporter, the importer, a
freight forwarder, a customs broker, a customs inspector, inland transportation
provider(s) (which may include more than one trucker or railroad), the port operators,
possibly a feeder ship, and the ocean carrier. Each transfer of the container from one
party to the next is a point of vulnerability in the supply chain. The security of each
transfer facility and the trustworthiness of each company is therefore critical in the
overall security of the shipment. It is also important to keep in mind that not all U.S.bound containers arrive at U.S. ports. Half of the containers discharged at the Port
of Montreal, for instance, move by truck or rail for cities in the northeastern or midwestern United States.29 Also, many containers that enter U.S. waters are bound for
other nations.
Maritime Crimes. Security experts warn that terrorists attempting to use a
container to smuggle a weapon of mass destruction or components thereof into the
United States could purchase a known exporter with a long and trustworthy shipping
record. Drug smugglers have been known to employ this strategy to disguise their
contraband in otherwise legitimate cargo. While both the Coast Guard and CBP are
experienced in the marine environment with the “war on drugs,” they recognize that
terrorism is a different kind of threat. Among other things, drug smugglers are often
interested in finding a smuggling method that can be used over and over to make
multiple shipments. This permits the Coast Guard and CBP to look for certain
patterns of operation among drug smugglers. Terrorists, on the other hand, are more
likely to be interested in using a particular method of attack only once, to carry out
a particular terrorist operation. This makes the tactic of looking for patterns of
operation potentially much less useful. Another difference concerns the potential
consequences of failure to detect and intercept. Given the tremendous amount of
cargo arriving at seaports, the mission of interdicting illegal drugs or a weapon of
mass destruction is often described as searching for the needle in the haystack. In the
case of the weapon of mass destruction, however, the potential consequence of not
finding the so-called needle is much greater.
The incidence of other shipping-related crimes also attests to the challenges
faced in improving port security. The National Cargo Security Council estimates that
28
See, Arun Chatterjee, An Overview of Security Issues Involving Marine Containers and
Ports, proceedings of the 2003 Transportation Research Board Annual Meeting, available
on CD-ROM.
29
Hoge and Rose, ed. How Did This Happen? p. 188.
CRS-9
cargo theft domestically ranges between $10 billion and $15 billion annually.30 The
FBI believes much of this theft occurs in or near seaports.31 Identifying where cargo
theft occurs in the transportation system may help identify where terrorist infiltration
could occur.
Government Authorities at Seaports
Port Governance and Financing. In considering how to enhance seaport
security, it is important to know how they are governed and operated. The governing
structure of ports varies from place to place. While the federal government has
jurisdiction over interstate and foreign commerce and designated federal waterway
channels, state or local governments have ownership over ports. There are ports
which are part of state government and others which are part of city government.
The Port Authority of New York and New Jersey and the Delaware River Port
Authority are examples of bi-state or regional port agencies.
Ports can be a subsidiary of a public agency but may be structured to act as a
private sector corporation. Most ports are “landlord ports,” which means the port
provides the basic services and infrastructure but the tenant, such as a terminal
operator, performs most of the activity. “Operating ports” both generate and carry
out most of the activity at the port. In addition to city law enforcement personnel,
some port authorities also have their own police forces.
Depending on how they are structured, ports finance infrastructure
improvements through a variety of means. Some may levy taxes, if they are granted
this authority. Ports may also pay for infrastructure with the general funds they
receive from the governments they are a part of, from operating revenues, general
obligation bonds, revenue bonds, trust fund monies, or loan guarantees. Most ports
generally break even or are minimally profitable.32
Federal Agencies Involved in Port Security. Federal agencies involved
in port security include the Coast Guard, the Bureau of Customs and Border
Protection (CBP), and the Transportation Security Agency (TSA), all of which are
housed in the Department of Homeland Security (DHS), and the Maritime
Administration (MARAD). The Coast Guard and CBP are the two federal agencies
with the strongest presence at seaports.
Coast Guard. The Coast Guard is the nation’s principal maritime law
enforcement authority and the lead federal agency for the maritime component of
homeland security, including port security.33 Among other things, the Coast Guard
30
“Executive Viewpoint, Joe M. Baker, Jr. Exec. Director, NCSC,” Journal of Commerce,
May 8, 2002.
31
“Cargo Crime Bill Hit,” Traffic World, Oct. 9, 2000.
32
U.S. DOT, Maritime Administration, Public Port Finance Survey for FY1999, Jan. 2001.
33
The Navy and the Coast Guard agree that the Coast Guard is the lead federal agency for
the maritime component of homeland security, and that the Navy’s role is to support the
(continued...)
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is responsible for evaluating, boarding, and inspecting commercial ships as they
approach U.S. waters, for countering terrorist threats in U.S. ports, and for helping
to protect U.S. Navy ships in U.S. ports. A high-ranking Coast Guard officer in each
port area serves as the Captain of the Port (COTP), who is lead federal official
responsible for the security and safety of the vessels and waterways in his or her
geographic zone. Under the terms of the Ports and Waterways Safety Act of 1972
(P.L. 92-340) and the recently enacted Maritime Transportation Security Act of 2002,
the Coast Guard has responsibility to protect vessels and harbors from subversive
acts.
Bureau of Customs and Border Protection. The Bureau of Customs and
Border Protection (CBP) is the federal agency with principal responsibility for
inspecting cargoes, including cargo containers, that commercial ships bring into U.S.
ports and for the examination and inspection of ship crews and cruise ship passengers
for ships arriving in U.S. ports from any foreign port. Prior to the establishment of
the CBP, customs and immigration functions at U.S. borders were conducted
separately by the Department of the Treasury’s U.S. Customs Service and the
Department of Justice’s Immigration and Naturalization Service.
Transportation Security Administration. TSA is an agency created by
the Aviation and Transportation Security Act of 2001 (P.L. 107-71). Initially, its
focus was the security of air transportation but it is responsible for the security of all
modes of transportation, cargo and passenger.
Maritime Administration. MARAD, which is part of the Department of
Transportation (DOT), is a civilian agency that supports the U.S. commercial
maritime industry. MARAD publishes regular Maritime Security Reports and a
national planning guide on port security. MTSA requires MARAD to publish a
revised version of its national planning guide on port security.
Port Security Initiatives by Federal Agencies
Coast Guard. In response to the terrorist attacks of September 11, 2001, the
Coast Guard created the largest port-security operation since World War II. Coast
Guard cutters and aircraft were diverted from more distant operating areas to patrol
U.S. ports and coastal waters. The Coast Guard began to maintain security zones
around waterside facilities, Navy ships, and cruise and cargo ships entering or leaving
port. Coast Guard port security teams began to inspect certain high-interest vessels,
and Coast Guard sea marshals began escorting certain ships transiting the harbor.
To counter the terrorist threat, the Coast Guard and CBP have sought to improve
the quality and advance the timing of information submitted to them by shippers and
carriers so that they can better evaluate the terrorist risk of ships, cargo, or crew
33
(...continued)
Coast Guard in areas where the Coast Guard’s capabilities are limited or lacking, such as
air defense or antisubmarine warfare. For more on the Navy’s role in homeland security,
see CRS Report RS21230, Homeland Security: Navy Operations — Background and Issues
for Congress, by Ronald O’Rourke.
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bound for the United States. By increasing their knowledge of the various parties in
the marine environment it is hoped that federal authorities will be better able to
separate the bad from the good without impeding the flow of legitimate commerce.
In support of this goal, the Coast Guard has instituted new reporting requirements for
ships entering and leaving U.S. harbors. The former 24-hour advance Notice of
Arrival (NOA) has been extended to a 96-hour NOA. The NOA includes detailed
information on the crew, passengers, cargo, and the vessel itself.
The Coast Guard has also developed the concept of maritime domain awareness
(MDA). MDA involves fusing intelligence information with information from
public, private, commercial, and international sources to provide a more complete
picture of potential maritime security threats. The Coast Guard will use this picture
to support a risk-management approach to preventing or mitigating terrorist threats
through the use of actionable knowledge.34 In support of the MDA effort, the Coast
Guard is expanding a vessel tracking system (the Automatic Identification System)
to monitor ship traffic in harbors and is underway on a multibillion dollar effort (the
Deepwater program) to replace and modernize its aging vessels and aircraft.35
On October 22, 2003 the Coast Guard issued final rules implementing MTSA.36
These regulations became effective on November 21, 2003.
Bureau of Customs and Border Protection. Among the programs CBP
has initiated to counter the terrorist threat are the Container Security Initiative (CSI)
and the Customs-Trade Partnership Against Terrorism (C-TPAT). CSI is a series of
bilateral, reciprocal agreements that, among other things, allow CBP personnel at
selected foreign ports to pre-screen U.S.-bound containers. In order to give
inspectors the data and time they need to pre-screen containers, CBP issued a new
rule requiring that information about an ocean shipment be transmitted to CBP 24
hours before the cargo is loaded at a foreign port onto a U.S.-bound vessel.
Previously, ocean carriers did not submit this information until the ship arrived at a
U.S. port. CBP is also requiring more comprehensive and specific cargo information
so it can more efficiently evaluate individual container shipments for risks of
terrorism. More detailed descriptions are intended to help speed up non-intrusive
inspections of high risk containers by reducing the number of containers inspectors
need to unload for closer examination. The rationale of CSI is that a nuclear weapon
34
For further information on the Coast Guard as it relates to homeland security, see CRS
Report RS21125, Homeland Security: Coast Guard Operations — Background and Issues
for Congress by Ronald O’Rourke.
35
For further information on the Deepwater program, see CRS Report RS21019, Coast
Guard Deepwater Program: Background and Issues for Congress by Ronald O’Rourke.
36
See 68 Federal Register 60447 (Oct. 22, 2003).
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or a radiological “dirty bomb”37 that enters a U.S. port could be detonated, before the
ship is inspected.38
C-TPAT, initiated in April 2002, offers importers expedited processing of cargo
if they comply with CBP guidelines for securing their entire supply chain. Businesses
that sign up for the program are required, among other things, to conduct a
comprehensive self-assessment of their supply chain and submit a completed
questionnaire to CBP that describes their current security practices. If CBP certifies
an applicant, they may benefit from a reduced number of cargo inspections, thus
reducing the risk of shipment delay.
Transportation Security Administration. The Transportation Security
Administration in conjunction with CBP is conducting the Operation Safe Commerce
(OSC) pilot project.39 The goal of OSC is to verify the contents of containers at their
point of loading, ensure the physical integrity of containers in transit, and track their
movement through each mode of transport from origin to final destination. Container
tracking is a key area of debate on cargo security. Various “smart container” devices
are being developed that would provide real-time location information and container
tampering notification. The challenge is developing a device that can withstand the
harsh ocean environment, be relatively inexpensive, and reliable enough not to
trigger false alarms. TSA is also field-testing a Transportation Worker Identification
Credential (TWIC) for workers in all modes of transportation that will be used to
control access to secure areas of cargo and passenger facilities. The agency has
developed a “Maritime Self-Assessment Risk Module” to assist port terminal and
vessel owners in developing their security plans as required by MTSA.
Maritime Administration. MARAD, along with the Coast Guard, CBP, and
TSA, is part of the Container Working Group which has made classified
recommendations on how best to ensure the security of marine container
transportation. MARAD has also developed a curriculum for training maritime
security personnel.
International Institutions. In June 2002, the Group of Eight Nations
identified the IMO and the World Customs Organization (WCO) as two institutions
that should develop global initiatives to improve maritime security.
At its December 2002 conference, the IMO adopted a new chapter to the Safety
of Life at Sea (SOLAS) Convention entitled International Ship and Port Facility
37
A dirty bomb is a conventional explosive device with radioactive material wrapped
around it. Detonating the device disperses the radioactive material, contaminating the area
with radioactivity that can be difficult to clean. Dirty bombs are also known as radiological
dispersion devices. For further information, see CRS Report RS21528, Terrorist ‘Dirty
Bombs’: A Brief Primer.
38
See also, GAO, Summary of Challenges Faced in Targeting Oceangoing Cargo
Containers for Inspection, GAO-04-557T, March 31, 2004.
39
67 Federal Register 70110-70112 (Nov. 2, 2002).
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Security (ISPS) Code.40 The code contains both mandates and voluntary measures
to improve maritime security. IMO member governments had until July 1, 2004 to
implement the new regulations. The code largely parallels the requirements called
for in MTSA.41
The World Customs Organization is a Brussels-based entity that has been
working towards simplifying and harmonizing customs procedures to improve the
efficiency of cross-border trade.42 Currently, 164 countries accounting for 99% of
world trade are members of the WCO. In June 2002, the WCO created a task force
to draft a “Resolution on Security and Facilitation of the International Supply Chain”
which they completed in June 2003. In May 2005, the WCO issued its Framework
of Standards to Secure and Facilitate Global Trade. The framework sets out
principles for advance, electronic reporting of cargo and shipper data and requires
importers to verify security measures taken by its suppliers.
Recent Law on Port Security
The bill creating the new Department of Homeland Security (DHS), was passed
by the Senate on November 19, 2002 and by the House on November 22, 2002, and
signed into law as P.L. 107-296 on November 25, 2002. The DHS incorporates the
Coast Guard, the former Customs Service, and TSA, among others.43
The Maritime Transportation Security Act of 2002 was passed by Congress on
November 14, 2002 and signed into law as P.L. 107-295 on November 25, 2002.
The act creates a U.S. maritime security system and requires federal agencies, ports,
and vessel owners to take numerous steps to upgrade security. The act requires the
Coast Guard to develop national and regional area maritime transportation security
plans. It requires ports, waterfront terminals, and certain types of vessels to develop
security and incident response plans with approval from the Coast Guard. The act
authorizes CBP to require that cargo manifest information for inbound or outbound
shipments be provided to the agency electronically prior to the arrival or departure
of the cargo. This information may be shared with other appropriate federal agencies.
The legislation calls on the Department of Transportation to determine the level of
funding needed for a grant program that will finance security upgrades. The act also
authorizes $90 million in grants for research and development in improving cargo
inspection, detecting nuclear materials, and improving the physical security of marine
containers. A dispute over how to pay for the cost of enhancing port security was
resolved by eliminating controversial user fee provisions from the conference report
(funding issues are discussed further below).
40
For further information about the code, see [http://www.imo.org/home.asp].
41
For further information on meeting this deadline, see GAO, Maritime Security:
Substantial Work Remains to Translate New Planning Requirements into Effective Port
Security, GAO-04-838, June 2004.
42
For further information about the WCO and trade security, see [http://www.wcoomd.org/ie/
En/en.html].
43
For further information, see CRS Report RL31549, Department of Homeland Security:
Consolidation of Border and Transportation Security Agencies, by (name redacted).
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The Trade Act of 2002 (P.L. 107-210) was enacted into law on August 6, 2002.
Section 343 provides authority to CBP to issue regulations requiring the electronic
transmission of cargo information to CBP prior to the shipments’ exportation or
importation into the United States.
The Coast Guard and Maritime Transportation Act of 2004 was signed into law
as P.L. 108-293 on August 9, 2004. Title VIII of the act contains a number of
provisions related to maritime security, many of which add specificity to provisions
in MTSA. Among other things, the act requires the DHS to submit a plan to
Congress implementing a maritime intelligence system (section 803); it requires the
DHS to submit a plan for a maritime security grant program, including
recommendations on how funds should be allocated (section 804); it requires the
Coast Guard to report on the implementation and use of joint operational centers at
certain U.S. ports (section 807); it requires the DOT to investigate and examine
sensors that are able to track marine containers throughout their supply chain and
detect hazardous and radioactive materials within the containers (section 808); it
requires the DHS to report on the costs of vessel and container inspections, and a
plan for implementing secure systems of transportation, including the need for and
feasibility to inspect and monitor intermodal shipping containers within the United
States (section 809).
The week of December 6, 2004, Congress passed the Intelligence Reform and
Terrorism Prevention Act of 2004 (P.L. 108-458). The act imposes an urgency on
DHS’s efforts in strengthening maritime security by imposing deadlines on the
agency in planning and carrying out certain maritime security activities that were
called for in MTSA. This includes a deadline of April 1, 2005 for completion of a
national maritime security plan; a deadline of December 31, 2004 for completion of
facility and vessel vulnerability assessments; and deadlines for a deployment plan for
TWIC, a status report on standards for seafarer identification, and a status report on
establishing performance standards for container seals and locks. The act also
requires DHS to create a terrorism “watch list” for passengers and crew aboard cruise
ships.
Issues for Congress
The challenge of port security raises several potential issues for Congress.
Some Members of Congress, who have introduced their own versions of maritime
security legislation, are concerned that MTSA does not go far enough in its
requirements. In addition to considering further port security legislation, Congress
is debating whether the federal government is providing enough funds to port
authorities and border agencies for improving port security. Congress is also
considering how to pay for port security.
Addressing the Threat
A major concern for Congress is assessing whether the Nation is addressing the
threat to maritime security with enough urgency. Despite the progress that has been
made in strengthening port security thus far, many security officials still describe
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seaports as “wide open” and “very vulnerable” to terrorist attack.44 Seaports, along
with air cargo, general aviation, and mass transit were identified in a recent GAO
report as the “major vulnerabilities” remaining in the nation’s transportation system.45
The GAO found that “an effective port security environment may be many years
away.” While many agree that CSI, C-TPAT, OSC, and MDA, are sound strategies
for addressing the threat, they contend that these programs represent only a
framework for building a maritime security regime, and that significant gaps in
security still remain. In the words of one security expert,46
Right now, none of these initiatives has changed the intermodal transportation
environment sufficiently to fundamentally reduce the vulnerability of the cargo
container as a means of terrorism. However, all are important stepping-off points
for building an effective risk management approach to container security — a
foundation that simply did not exist prior to September 11, 2001.
In its oversight role, Congress is examining the effectiveness of these programs
in addressing the terrorist threat, whether they are proceeding at sufficient pace, and
whether enough resources are being provided to implement these and other security
initiatives.
Some observers and Members of Congress are concerned that initiatives to fill
gaps in port security are not proceeding at a sufficient pace. TSA’s program to
credential all transportation workers and its effort to develop a “smart-box” to ensure
the integrity of container shipments has also been criticized for moving forward too
slowly. Some argue that the security funding provided to seaports, especially when
compared to the amount provided to airports, is woefully inadequate.
Others argue that current efforts to improve port security are proceeding at an
unprecedented pace. They note that the IMO, with leadership from the U.S. Coast
Guard, agreed to new international port security measures within a year. They also
note that the Coast Guard issued final rules implementing MTSA within a year after
becoming law. During Operation Liberty Shield, (March 17, 2003 through April 16,
2003) the Coast Guard and CBP demonstrated their ability to rapidly intensify port
security operations by increasing ship and cargo inspections, increasing air and
surface patrols, escorting more ships through harbors, and other activities.47
Funding Port Security
According to many, the unresolved debate over how to pay for port security is
stalling efforts to improve port security. The debate is over whether port security
should be paid for with federal revenues, by state and local governments, by the
44
“Safe Harbors?” Wall Street Journal, April 21, 2003, p.B1.
45
GAO, Transportation Security, Post September 11th Initiatives and Long-Term
Challenges, April 1, 2003, GAO-03-616T.
46
47
Stephen Flynn, “On The Record,” Government Executive Magazine, October 1, 2003.
For further information on Operation Liberty Shield, see CRS Report RS21475,
Operation Liberty Shield: Border, Transportation, and Domestic Security.
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maritime industry, or by a cost sharing arrangement among all of the above. The
Coast Guard roughly estimates the cost of implementing the new IMO security code
and the security provisions in MTSA to be approximately $1.5 billion for the first
year and $7.3 billion over the succeeding decade.48 Congress has provided over $650
million through FY2005 in direct federal grants to ports to improve their physical and
operational security. This is in addition to the budgets of the Coast Guard, Bureau
of Customs and Border Protection, TSA, and other federal agencies involved in port
security.49 Advocates for more spending argue that the federal funds provided to port
authorities thus far are woefully inadequate, particularly when compared to airports.
Skeptics of additional spending argue that taxpayers should not provide funds to
large and profitable corporations to secure infrastructure that is in their own financial
interest to do so.
Sources of Funds. A dispute over how to finance security requirements
arose during the conference committee on MTSA. Senator Hollings proposed
creating a system of user fees on ship cargo as a means of generating funds for port
security upgrades required in the legislation. Other conferees opposed this proposal,
calling the user fees a tax. Some policymakers contend that without providing a
funding source, the act amounts to an unfunded mandate.
Port authorities, ocean carriers, and shippers argue that port security is a national
concern and therefore the federal government should finance it through general
revenues. Others argue that the maritime industry should finance port security
through user fees because it is a direct beneficiary of improved security as it reduces
cargo theft and other economic damages.50
Proponents of user fees contend that user surcharges are an effective means of
ensuring improved security because they would provide a more secure and
predictable source of funding than annual appropriations. They propose that a port
security trust fund be created in a manner that prevents the user fees from being spent
on anything other than port security. If such a port security trust fund were created,
they argue, port security would not have to compete with other funding priorities in
the annual appropriations process. Some economists contend that a user fee system
is also more efficient than direct subsidies because the users of the service being
provided (in this case port security) are likely to demand that policymakers spend the
funds in the most productive manner.
Allocating Resources. An issue of likely interest to Congress is how to
allocate resources appropriately to the various ports. Maximum security is
prohibitively expensive. Therefore, it is important to properly identify specific
security areas that have the greatest vulnerability and apportion funds accordingly.
Criteria could include a port’s relative economic importance and its proximity to an
48
See 68 Federal Register 60464 (Oct. 22, 2002).
49
See CRS Report RL32863, Homeland Security Department: FY2006 Appropriations.
50
Representative Dana Rohrabacher introduced an amendment to H.R. 2557 that would
allow ports to impose a per-container fee to pay for port security. Unlike Senator
Hollings’s user fee proposal, the fund would be administered locally by individual ports.
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urban or sensitive area. The 9/11 Commission criticized the TSA for lacking a
strategic plan for systematically analyzing transportation assets, risks, costs, and
benefits in order to allocate limited resources in the most cost-effective way.51 The
Inspector General of the DHS was critical of port security grant award decisions
made thus far and made recommendations for improving them.52
Resources for Foreign Ports. In addition to funding security at U.S. ports,
there is also the issue of finding resources for improving security at foreign ports,
especially in developing countries that may not be able to afford the technology to
improve their ports’ security. The IMO’s recent adoption of new security measures
includes a statement inviting the Secretary General of the IMO to give early
consideration to establishing a “Maritime Security Trust Fund” for the purpose of
providing financial support in developing countries for strengthening their maritime
security infrastructure.53
Balancing Security and Commerce
Security experts argue that perfect maritime security can only be achieved by
shutting down the transportation system. As one observer stated, “a harbor without
ships is safe, but that is not what harbors are built for.”54 The issue for Congress is
how to increase port security to desired levels while minimizing the economic
impacts associated with impeding the maritime trade system. When security experts
speak of significant gaps still remaining in maritime security, they are often referring
to the credibility problems associated with the container loading and screening
process overseas and the true identity of ships and their crew on the high seas.
Point of Origin Cargo Security. A major area of concern is ensuring the
integrity of cargo as it begins its transit to the United States from its overseas origin.
Point of origin security is necessary because inspecting cargo on the high seas is
practically impossible and inspecting cargo upon its arrival at a U.S. port could be
too late to prevent a terrorist event. Ensuring that the container was not stuffed with
illegitimate cargo at the overseas factory, that the loaded container was not tampered
with while trucked to the port of loading, and ensuring that the cargo information
reported to CBP is not fraudulent are all critical challenges in supply chain security.
Congress is examining the effectiveness of C-TPAT, CSI, and OSC in ensuring the
integrity of U.S. bound cargo at its overseas point of origin. Issues include what type
of procedures are necessary to verify the legitimacy of cargo loaded into a container,
what type of “smart box” devices should be required to ensure the physical integrity
of the container while en route, and what specific information should cargo manifests
contain to enable CBP to target shipments for closer inspection.
51
The 9/11 Commission Report: Final Report of the National Commission on Terrorist
Attacks Upon the United States (New York: W.W. Norton, 2004), p. 391.
52
DHS, Office of Inspector General, Review of the Port Security Grant Program, OIG-0510, January 2005.
53
54
For further information, see [http://www.imo.org/home.asp].
“Port Shutdown for Terrorist Incidents Could Cost Billions, Drill Shows,” CQ Homeland
Security, Dec. 5, 2002.
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The GAO investigated how the CSI and C-TPAT programs were being
implemented and found several shortcomings that need correction.55 The GAO found
that C-TPAT participants were benefitting from reduced scrutiny of their imported
cargo after they had been certified into the program but before CBP had validated
that the participants were indeed carrying out the promised security measures. The
GAO also found that not all containers that CBP had targeted for inspection at the
overseas loading port were being inspected by the host customs administration. The
GAO found other flaws in these two programs and CBP has taken corrective action
to address some of these flaws.56
Vessels Under Foreign Ownership and Control. There is no single
sovereign power that regulates international shipping. MTSA requires the Coast
Guard to report on foreign-flag vessels calling at U.S. ports, specifically those vessels
with murky ownership histories, and to report on actions taken to improve the
transparency of vessel registration procedures (section 112). In December 2002, as
mentioned above, the IMO adopted more stringent international standards for the
security of vessels and ports.
Congress is likely to examine the effectiveness of Coast Guard and international
efforts at raising the security level of ship operators. Skeptics contend that the new
IMO regulations mostly offer the illusion of increased security. They contend that
“flag of convenience” countries lack the resolve to enforce these standards and that
the compliance documentation is too easy to manipulate in order to appear as
legitimate operators.57 While the United States enforces its standards when the Coast
Guard selects arriving ships for boarding, their burden is greater if there is no
effective international shipping regime that pre-screens sub-standard shipping.
International Considerations
In the wake of the terrorist attacks of September 11, 2001, a consensus emerged
among experts involved in the issue that an effective solution for securing maritime
trade requires creating an international maritime security regime. This regime would
rely not on a single solution, such as increasing the number of container inspections,
but rather on a layered approach with multiple lines of defense from the beginning
to the final destination of a shipment. The first security perimeter in this “defense in
depth” strategy would be at the overseas point of origin.58 Security experts argue that
an effective solution must start with preventing undesired items from entering the
maritime transportation network, because if some of these items — particularly
nuclear weapons or dirty bombs — reach a U.S. seaport, they could be detonated
before inspectors could find them.
55
GAO, Homeland Security: Key Cargo Security Programs Can Be Improved, GAO-05466T, May 26, 2005.
56
See Senate Committee on Homeland Security and Government Affairs, Subcommittee on
Investigations, Hearing on CSI and C-TPAT, May 26, 2005.
57
58
See, for example, William Langewiesche, “Anarchy at Sea,” Atlantic Monthly, Sept. 2003, p. 50.
A leading advocate for point of origin security is Stephen Flynn; see “Beyond Border
Control,” Foreign Affairs, Nov./Dec. 2000.
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A related issue is whether raising international port security standards should
become part of international trade agreements. Thus far, the United States’ strategy
has been to raise standards by working within the maritime transportation industry,
such as through the IMO. However, some assert that given the strong link between
maritime security and international trade, the United States could also pursue
international port security standards as part of international trade agreements.
Standard vs. Site-Specific Measures
An additional issue for Congress is determining what elements of port security
might be best addressed through across-the-board requirements that establish
common standards and practices to be applied at all seaports, versus those elements
of port security that might be best addressed through a tailored, bottom-up approach
that employs measures that are designed to fit the specific circumstances and meet
specific needs of each seaport.
Some observers, while acknowledging the need for site-specific measures, argue
that a certain amount of uniform measures are necessary to help ensure that no
seaport remains excessively vulnerable to terrorist attack. Other observers argue that
while standardized measures make sense up to a point, the effort to implement such
measures must not come at the expense of efforts to devise and implement sitespecific security measures that respond to the unique characteristics of each port.
Compared to commercial airports, seaports are generally more diverse in terms of
their physical infrastructure and operations. As a result of this diversity in
characteristics, each ship and port facility presents different risks and vulnerabilities.
Port authorities are also very concerned with finding the right balance between
standard and port specific security regulations. Ports seek a level of uniformity in
security requirements because they are concerned that their customers will move their
business to competing ports where their goods may be cleared more quickly. At the
same time, ports do not want to be held to inflexible federal standards. They are
concerned that setting security benchmarks may waste time and resources if those
benchmarks are not applicable at their port given their particular commodity mix or
other unique circumstances.
Security Cards. In addition to improving the security infrastructure of U.S.
ports, there is also the issue of ensuring the trustworthiness of the people who work
in them. Issuing credentials for port workers illustrates the challenge of
implementing standard security measures. One of the difficult questions is what
should disqualify someone from holding a job in a port area. MTSA (Section 70105)
requires the Secretary of Homeland Security to develop a transportation security card
for port workers that would be used to limit access to secure areas in a port.59 Among
the items that would disqualify a port worker from obtaining a card would be a felony
conviction within the last seven years that the Secretary believes could cause the
59
For a status report on progress towards development of this card, see GAO Report GAO05-106, Port Security[:] Better Planning Needed to Develop and Operate Maritime Worker
Identification Card Program, December 2004.
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individual to be a terrorism risk.60 The USA PATRIOT Act (P.L. 107-273) passed
in October 2001, requires background checks for truckers carrying hazardous
materials. The TSA is developing a “Transportation Worker Identification
Credential” (TWIC) Program that will use biometric cards issued to all transportation
workers to limit access to secure areas in the nationwide transportation network.
Issuing transportation ID cards is an example of an across-the-board
requirement. However, the difficulty of implementing such measures at specific
ports is illustrated below:61
...Tampa offers a good example. Some of the port’s major employers consist of
ship repair companies that hire hundreds of workers for short-term projects as the
need arises. Historically, according to port authority officials, these workers
have included persons with criminal records. However, new state requirements
for background checks, as part of issuing credentials, could deny such persons
needed access to restricted areas of the port. From a security standpoint,
excluding such persons may be advisable; but from an economic standpoint, a
company may have difficulty filling jobs if it cannot include such persons in the
labor pool.
Roles and Responsibilities
A major concern for U.S. policymakers is assigning roles and responsibilities
for maritime security among federal agencies, among federal, state, and local
agencies, and between government agencies and private industry. Clear roles and
responsibilities are needed to prevent overlap, duplication of effort, and conflicting
regulations. It is critical that the maritime trade community perceives that federal
agencies are working in concert, otherwise the DHS’s goal of a close partnership with
industry in fighting terrorism may be frustrated.
Intelligence Sharing. The difficulty of detecting terrorist activity once it has
entered the maritime system may point to the value of intelligence. Most
acknowledge that there is just too much cargo, coming from all corners of the globe,
to scrutinize each shipment thoroughly. Uncovering terrorist activity is likely to
require “actionable” or precise intelligence identifying exactly which shipment to
intercept. The GAO reports that “in surface transportation, timely informationsharing has been hampered by the lack of standard protocols to exchange information
among federal, state, and local government agencies and private entities.”62 One
60
Preexisting regulations regarding the issuing of Coast Guard port security cards are
contained at 33 C.F.R. Part 125 — Identification Credentials for Persons Requiring Access
to Waterfront Facilities or Vessels.
61
GAO, Port Security, Nation Faces Formidable Challenges in Making New Initiatives
Successful, GAO-02-993T, p. 13.
62
GAO, Transportation Security, Post-September 11th Initiatives and Long-Term
Challenges, April 1, 2003, GAO-03-616T. The GAO also examined this issue in the
maritime context, see GAO, Maritime Security: New Structures Have Improved Information
Sharing, but Security Clearance Processing Requires Further Attention, April 2005, GAO05-394.
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barrier to more effective intelligence sharing with local port authorities may be that
state and local government officials do not have the required security clearances.
Private Industry’s Role. A broad policy question for Congress is how much
of a role the private sector should have in enhancing maritime security. Many
observers believe that businesses will worry more about near term profits than the
remote possibility that their property will be attacked.63 At the same time, most
experts acknowledge that there are just too many cargo movements for the
government to monitor on its own. Security experts believe that tightening control
over maritime commerce requires that security be “embedded” into everyday
business processes. CBP’s C-TPAT program is intended to enlist the effort of the
many companies involved in international container shipments. In its oversight
responsibilities, Congress may evaluate the effectiveness of this program, particularly
in ensuring the due diligence of maritime traders over the long term. Congress may
consider how best to ensure sustained follow through on the part of C-TPAT
participants. A “trust but verify” approach utilizing regular CBP security audits may
be one strategy policymakers consider.
Selected Port Security Legislation Introduced in the
109th Congress
Several proposals have been introduced in the 109th Congress to improve port
security. In the House, H.R. 163, introduced by Representative MillenderMcDonald, would create a pilot program for the sealing of empty containers. H.R.
173, introduced by Representative Millender-McDonald, would amend the criminal
code to include certain terrorist related acts in the marine environment as unlawful,
require the Attorney General to coordinate port-related crime data collection, as well
as other port security related provisions. H.R. 478, introduced by Representative
Millender-McDonald, authorizes federal port security grants and the issuance of
letters of intent to fund port security projects. H.R. 785, introduced by
Representative Stearns, would create a federal database for the collection of cargo
crime data. H.R. 1731, introduced by Representative Harman, authorizes federal port
security grants to be funded from Customs import duties. H.R. 1817, the DHS
Authorization Act for FY2006, which passed the House on May 18, 2005, contains
numerous provisions related to port security.
In the Senate, S. 3, introduced by Senator Gregg, makes unlawful certain acts
related to maritime security. S. 12, introduced by Senator Biden, would accelerate
the deployment of radiation detection portal equipment at U.S. and foreign seaports
and establish a tanker security initiative, among other provisions. S. 376, introduced
by Senator Hutchinson, requires the DHS to develop a strategy to ensure the security
of intermodal shipping containers, whether imported, exported, or shipped
domestically and requires that no less than half of all imported containers be
equipped with “smart box” technology by 2007. S. 378, introduced by Senator
Biden, and reported by the Committee on the Judiciary on April 21, 2005, increases
63
“Gaps in Our Defenses,” Baltimore Sun, Feb. 12, 2003.
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penalties for certain maritime crimes. S. 744, introduced by Senator Nelson, requires
the Maritime Administration to create a Caribbean Basin Port Security Assistance
Program. S. 855, introduced by Senator Collins, parallels H.R. 1731. S. 1052,
introduced by Senator Stevens, would establish additional joint harbor operational
centers for port security, establish a deadline of January 1, 2006 for the issuance of
the TWIC card, require importers to submit additional manifest data as part of the 24
hour rule, increase the number of CSI inspectors, establish and develop a plan for the
random inspection of shipping containers, require DHS to conduct a study on the
desirability of creating a user fee for funding port security, as well as other provisions
related to port security.
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