| Major SAFE PORT Act Provisions |
| 11/21/2006 |
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This article summarizes major provisions of the Act. A timetable of required actions by the Department of Homeland Security is included at the end of the article, along with a list of acronyms.
LEGISLATIVE HISTORY: The SAFE Port Act, H.R. 4954, was introduced on March 14, 2006, by Daniel Lungren (R) and Jane Harman (D), members of the House of Representatives from the state of California. This bill had strong support on both sides of the House; it had 45 bi-partisan co-sponsors. It passed the House of Representatives by a vote of 421-2 on May 4, 2006, and passed the Senate on September 14, 2006, by a vote of 98 - 0. There were differences between the House and Senate versions of the bill. A conference committee was established to work out those differences. A conference report resolving the differences was passed in both House and Senate on September 30, 2006. President Bush signed the Act on October 13, 2006. The SAFE Port Act, like most major pieces of legislation, has undergone profound changes from its introductory version to the version that has been signed. Some interesting provisions - for example, a list of violent felonies that would disqualify an applicant from obtaining a TWIC - are probably gone for the foreseeable future. Other provisions, such as the Rail Worker Security Training Program, added as an amendment that did not survive the final conference committee, may be revisited by the new Congress. MAJOR PROVISIONS: Section 1 contains the title of the act and the Table of Contents. Definitions of terms are contained in Sec. 2. The definition of "screening" differs from the definition given in 33 CFR 101 and here refers to a review of information about cargo. Title 1, Security of United States Seaports - Subtitle A - General Provisions In Sec. 101, Title 46 of the USC is amended to ensure that Area Maritime Security Plans include a salvage response plan. The reason for this is to facilitate the flow of trade after a transportation security incident (TSI). Section 102, contains three provisions of interest: --The provision in Sec. 70103 of Title 46 that deal with access control in vessels and facility security plans is amended to widen "facility" to include people engaged in surface transportation of containers in and out of facilities. --Facility security plans must be resubmitted for approval when a change in owner/operator substantially affects the security of the facility; and --The "qualified individual having full authority to implement security actions for a facility" shall be a US citizen. Note: this "qualified individual" language to describe security responsibilities is found in MTSA and Title 46; these security responsibilities are more clearly described (responsibilities of owner/operator, CSO/VSO/FSO, personnel with security duties, all other personnel) in 33 CFR and this language is not used. Section 103 mandates unannounced security inspections, a change from current U. S, Coast Guard policy. These inspections are subject to availability of personnel, but at least one of the two mandated annual inspections will be unannounced. In Sec. 104, the section of Title 46 Sec. 701 that deals with transportation security cards is amended. Provisions that are of interest include: --If a person applies for merchant mariners’ documents and a TWIC at the same time, the applications will be processed concurrently. --Persons who have passed a background check and have a current HME or a current merchant mariners’ document, cannot be charged a fee for another background check under TWIC unless the scope of the background check diverges. --The TWIC implementation schedule is addressed. Each US port must be prioritized based on risk. Using this priority ranking, the "program" must be implemented at the top 10 riskiest ports no later than July 1, 2007; the next 40 riskiest ports no later than January 1, 2008, and the rest by January 1, 2009. --People with current, valid merchant mariners’ documents must be issued their TWIC’s by Jan. 1, 2009. --Card readers, a very hot topic, are addressed. DHS is required to conduct a pilot program to test the readers in a variety of environmental settings, in at least 5 distinct geographic locations, at both facilities and on vessels. (Readers were not tested on vessels during the prototype program.) This program has to start no later than April 13, 2007, and must ensure interoperability with cards. If DHS decides, based on technology requirements, that different TWIC cards must be issued, the department may not charge additional fees. Final regulations must come out of this pilot program no later than 2 years after it commences. DHS must make progress reports to the appropriate Congressional committees about this program. --Card readers will not be required on vessels unless the vessel has a certain number of personnel (to be determined by DHS) or the vessel is at risk of a severe transportation security incident. Section 105 mandates a study to identify redundancies and inefficiencies in connection with background checks. In Sec. 106, offenses that will disqualify an applicant from gaining a TWIC are listed. This is a change from the offenses listed in the Notice of Proposed Rulemaking on TWIC of 05/22/06 which included certain crimes of violence. According to this law, only treason, espionage, sedition, and terrorism are disqualifying offenses. Long-range vessel tracking system, applicable to vessels equipped with GMDSS or equivalent technology, is addressed in Sec. 107. DHS must establish the program by April 1, 2007, but may issue voluntary regulations before that date. Inter-agency operational centers for port security (IOC) are addressed in Sec. 108. They must be established not later than 3 years after the enactment of the Act, at all high-priority ports. They should copy the characteristics of the pilot IOC centers already in existence, as far as applicable. The IOC should fit the security needs of the individual port where it is located. Participants in the IOC may be law enforcement agencies of all levels, first responders, and port stakeholders subject to the Area Maritime Security Plan. These IOC’s will be incorporated into vessel and facility security plans, maritime intelligence activities, vessel tracking, protocols for resumption of trade, and TSI response plans. Individuals associated with IOC’s will need security clearances and DHS will expedite these clearances. In the event of a TSI, the Captain of the Port in each joint operations center will act as the incident commander. $60,000,000 annually is appropriated for these IOC’s from 2007 through 2012. Not later than 180 days after the enactment of the Act, DHS must submit to the appropriate congressional committees a proposed budget analysis for the IOC program, including any cost-sharing agreements with other entities. Section 109 deals with notice of arrival of foreign vessels on the outer continental shelf (OCS). DHS must update and finalize the rulemaking on this topic by 04/13/2007. In Sec.110, the section of Title 46 Sec. 701 that deals with identification required of crewmembers on vessels calling at United States ports is amended. DHS is given a deadline of October 13, 2007 to decide on this identification. Subtitle B - Port Security Grants; Training and Exercise Programs Section 111 concerns risk assessment tools. In updating AMS plans, or in the port security grant application process, persons may use a tool that utilizes standardized risk assessment criteria. An example given is a tool used by the Coast Guard, and DHS will make its tools available. The Port Security Grant Program is established in Sec. 112, allocating federal funds to ports on the basis of risk, and sec. 70107 is amended to reflect this. That section is further amended to include, under eligible uses for funding, --The cost of conducting exercises or training to prevent/detect/prepare/recover from terrorist attacks --The cost of establishing/enhancing ways to share terrorism threat information, and ensuring that those mechanisms are interoperable among all agencies --The cost of equipment and software to handle/store, etc. classified information Multi-year projects may be considered, but not more than 20% of the total grant funds awarded in any fiscal year may be awarded to projects that span multiple years. Grants must be consistent with AMS plans, and any applicable state or Urban homeland security plans. Any entity subject to an AMS plan may submit a grant. $400,000,000 annually are allocated for this program for the years 2007 through 2012. A port security training program is established in Sec. 113. The purpose of this program is to enhance the capabilities of facilities required to submit security plans to prevent/prepare/respond, etc. to acts of terrorism, natural disasters, and other emergencies. The program will provide validated training in multiple training media across many port security topics. DHS will consult with commercial port personnel and utilize training partners in developing and delivering training. Section 114 concerns a port security exercise program, to test and evaluate the response capabilities of facilities that need to submit a security plan and agencies that respond to those facilities. Requirements for the program are set out, and they include live exercises in the case of the most high-risk facilities. Exercises must be evaluated against clear and consistent performance standards. DHS must also establish an exercise improvement plan, to distribute lessons learned and best practices. Section 115 addresses the high-risk live exercise requirement - these facilities must conduct live exercise at least once every two years. (There are no sections 116 through 120 in the Act) Subtitle C - Port Operations Domestic radiation detection and imaging, in Sec. 121, is required by 12/31/2007 on all containers entering the US through the 22 most high-volume container ports. DHS will develop a detailed strategy for the deployment of this equipment, which will include SOP’s, operator training plans, evaluation of environmental health and safety impact. This strategy must be submitted to Congress by 01/13/2007, and fully implemented by 10/13/2009. DHS must submit to Congress a report on development of equipment to detect shielded nuclear and chemical, biological, and other WMD by 04/13/2007. Not later than 12/31/2008, radiation detection capabilities will be deployed at all other US ports of entry. DHS, in consultation with other entities, will publish capability standards and SOP’s for non-intrusive imaging and radiation detection equipment. DHS will also establish a center to test intermodal rail radiation detection. This center will be located at a public port facility where a majority of the cargo is directly loaded/unloaded from on-dock intermodal rail. Section 122 deals with car ferries entering from other countries. Not later than 02/13/2007, DHS, in consultation with interested parties, will develop a plan for inspecting passengers and vehicles before they board the ferries. Random searches of containers are the subject of Sec. 123. By10/13/2007, DHS will develop and implement a plan to conduct random searches of containers. Section 124 clarifies the definition of TSI to ensure that "economic disruption" does not include work stoppages or labor actions. Threat assessment screening for port truck drivers who possess a commercial drivers’ license but not a HME is the subject of Sec. 125. They must be screened against terrorist watch lists and have an immigration check performed as per the 04/28/2006 Federal Register action. Section 126 establishes a Border Patrol unit for the US Virgin Islands, and Sec. 127 mandates a report to Congress about the effects of providing CBP with arrival and departure manifests on smaller vessels in the territorial waters of the US Virgin Islands and the British Virgin Islands. The Center of Excellence for Maritime Domain Awareness (MDA) is established in Sec. 128. This will be a university-based center that will provide educational and technical assistance to federal agencies with MDA responsibilities. (There are no Sections 129 through 200 in the Act.) Title II - Security of the International Supply Chain Subtitle A - General Provisions DHS is required by Sec. 201 to compose a strategic plan to enhance the security of the international supply chain, consulting with major stakeholders involved in the security of containers moving through the international supply chain. The plan is extensive in scope and is detailed in a twelve-point list, and must include measurable goals and a schedule for improving cargo supply chain security. This plan must include roles and responsibilities of all stakeholders, gaps and vulnerabilities in the supply chain, changes necessary to improve coordination, and measurable goals and a schedule, among other requirements (there is a lengthy list.) DHS is encouraged to consider standards and practices of foreign governments and international organizations. By July 13, 2007, DHS must submit a report to Congress containing the strategic plan, and update it 3 years later. Section 202 deals with post-incident resumption of trade. DHS shall develop and update these protocols, which will include identification of incident commandeer and lead agencies, a plan to redeploy assets and personnel to reestablish flow of trade, a plan to provide training for federal personnel in trade resumption functions, and factors to include in prioritizing vessels and cargo determined to be critical for response and recovery. Vessel factors include approved security plan, manned by credentialed personnel, and operated by C-TPAT participants. Cargo factors include entering directly from a CSI port, from the supply chain of a validated C-TPAT participant, or cargo that has undergone certain types of screening. Section 203 deals with the Automated Targeting System (ATS.) The ATS as it now stands is a complex, rules-based software system that assigns a risk score to cargo and passengers. The scores then indicate if further action should be taken by Customs and Border Patrol and the Coast Guard. In this section, DHS, acting through CBP, shall require additional data to improve the targeting system concerning cargo destined for the US prior to loading onto vessels at foreign seaports. DHS shall also consider other measures to improve targeting, such as requiring additional non-manifest documents, and shall issue regulations to carry out this section. Information required by DHS from supply chain partners shall be transmitted in a secure mode. Through an independent panel, DHS shall conduct a review of the effectiveness of the ATS, consider future versions incorporating smart features, and address other recommendations made by government agencies such as the Inspector General about the ATS. Appropriated for this section: --$33,200,000 for FY2008 --$35,700,000 for FY2009 --$37,485,000 for FY 2009 Container security standards and procedures are addressed in Section 204. By January 13, 2007, DHS must issue a rulemaking to establish minimum standards and procedures for securing containers in transit to the US. No later than April 13, 2007, DHS must issue an interim final rule on this subject. By Jan. 13, 2009, all containers bound for US ports of entry must meet these standards and procedures. These standards and procedures shall be regularly reviewed and enhanced. Consulting with other federal agencies, DHS is encouraged to international standards for the security of containers moving through the international supply chain. Section 205 established CBP’s Container Security Initiative program. This program identifies and examines high-risk containers before they are loaded for shipment to the US at a foreign port. DHS, acting through CBP, can designate ports as CSI ports if they meet certain stated criteria. DHS must notify Congress about establishing a port as a CSI port, or revoking this designation, before telling the public. The requirements and procedures for overseas inspections of CSI ports are listed in this section. DHS may treat cargo loaded at a CSI port as lesser risk than cargo from a non-CSI port. If the ATS identifies cargo from a CSI port as high risk, it is "do not load" until certain criteria are met - extra scanning, physical inspection, etc. By September 30, 2007, DHS shall submit a report to Congress on the CSI program’s effectiveness. This report will be updates in three years. Appropriated for this section: --$144,000,000 for FY2008 --$146,000,000 for FY2009 --$153,300,000 for FY2010 Subtitle B - Customs-Trade Partnership Against Terrorism Section 211 establishes the existing C-TPAT program. It remains a voluntary program. Participants in C-TPAT are divided into 3 tiers of participation. The minimum security requirements will be reviewed every year and updated as necessary. Section 212 lists the entities in the supply chain that are eligible to join C-TPAT. In Sec. 213, minimum requirements are addressed. These include: --A history of moving cargo through the international supply chain --Conduct of a supply chain security assessment based on criteria established by DHS --Implementation /maintenance of supply chain security measures and practices meeting criteria established by DHS --Meet all other requirements established by DHS Tier 1 participants, described in Sec. 214, are offered limited benefits. They must meet the criteria listed in Sec. 213. By April 13, 2007, DHS must update the guidelines for certifying a C-TPAT participant’s security measures and practices; these guidelines must include a background investigation and extensive documentation review. DHS should, if possible, complete the Tier 1 certification within 90 days of receiving the application. Benefits may include reduced scores on ATS. Section 215 concerns Tier 2 participants. This is a Tier 1 participant whose security measures and supply chain practices have been validated by DHS. This validation will include on-site assessment of foreign locations. If practical, this validation will be completed no later than one year after Tier 1 certification. Benefits may include reduced scores on ATS, reduced screening of cargo, and priority searches of cargo. By April 13, 2007, DHS must develop a schedule and update the guidelines for validation. Tier 3 participants are established in Sec. 216. These are entities that demonstrate a sustained commitment to maintaining supply chain security measures and practices exceeding the guidelines established for validation of Tier 2 participants. Criteria for validating an entity as Tier 3 may include --Particular attention to access control over cargo throughout the supply chain --Submission of additional information about cargo prior to loading --Use of container security devices Benefits of Tier 3 participation may include further reduction of ATS scores, expedited release of cargo at all MARSEC levels, further reductions in screening, priority for examinations of cargo, and inclusion in incident management exercises. No later than October 13, 2008, DHS shall designate the appropriate Tier 3 validation criteria. Problems with participants are described in Sec. 217. If a participant’s practices fail to meet standards, certification may be revoked. If the participant lies during the validation process, DHS may suspend or expel him. There is an appeal process. Section 218 describes third party validation. DHS shall develop a 1-year voluntary pilot program to test the efficiency of using third party entities to conduct C-TPAT validations. No later than 02/13/2007, DHS consult with private industry stakeholders and shall submit a report to Congress on this program. Not later than 1 year after the consultations, DHS shall conduct the pilot program. The decision to validate will remain solely with DHS. The qualifications of the third-party entities include --Ability to perform validations according to DHS standards --Maintains a certain level of liability insurance --Signs an agreement to protect the participant’s proprietary information DHS will regularly monitor third-party validators, and revoke those who do not meet standards. Thirty days after the pilot program ends, DHS shall report the results to Congress Revalidation is addressed in Sec. 219. DHS shall develop a revalidation process for Tiers 2 and 3. Participants will be revalidated not less frequently than once during every 4-year period following validation. Section 220 deals with non-containerized cargo. DHS shall consider importers of non-containerized cargo that otherwise fit all C-TPAT criteria. Section 221 addresses C-TPAT program management controls. DHS must ensure that the program includes --A 5-year strategic plan, including goals and performance measures --An annual plan for each FY, to match resources to workload --A standardized all-agency work program. DHS shall maintain a record management system to record the application and validation process. DHS shall also recruit and train staff to meet C-TPAT objectives, and provide cross-training in post0incident trade resumption for C-TPAT administrators. DHS must include a report on C-TPAT progress with the annual DHS appropriation request. In Sec. 222, full-time C-TPAT personnel are increased by 50 for FY 2008 and FY2009. Training and support are to be provided. Appropriated for C-TPAT (Sec. 223) --$65,000,000 for FY2008 --$72,000,000 for FY 2009 --$75,600,000 for FY 2010 Additional amounts are appropriated to meet staffing requirements. Subtitle C - Miscellaneous Provisions In Sec. 231, DHS is required, by January 13, 2007, to designate 3 foreign container ports for the establishment of pilot integrated scanning systems. These systems will contain non-intrusive imaging equipment and radiation detection equipment. Not later than October 13, 2007, DHS will achieve a full-scale implementation of the program at these ports, that will scan all containers bound for the US, and transmit images to US personnel. By April 13, 2008, DHS submits a report to Congress on lessons learned from this program, analysis of using ATS or other programs to examine high-risk containers, and other factors. Section 232 deals with 100% screening and scanning of cargo containers. DHS shall ensure this, in order to identify high-risk containers. DHS shall also ensure that 100% of the containers identified as high-risk are scanned or searched. This shall be done as soon as possible, but not before the system --Meets the requirements set out in the pilot integrated scanning systems program --Has a sufficiently low false alarm rate --Can integrate as necessary with existing systems --Does not significantly impact the flow of trade --Provides an automated notification as a trigger for further inspection Not later than October 13. 2008, and every six months afterwards, DHS shall submit a report to Congress describing the screening deployment. Section 233 allows DHS and other agencies to provide technical assistance, equipment, and training to CSI ports. In Sec. 234, DHS is required to periodically reassess the effectiveness of antiterrorism measures of CSO ports. Section 235 creates a one-year pilot program to improve the security of empty containers at US ports. Section 236 deals with information sharing between DHS and the private sector about supply chain security. DHS shall develop a system to share risk information with the private sector, and may issue alerts and warnings. (There are no sections 237 to 300 in the Act.) Title III - Administration Section 301 establishes the Office of Cargo Security Policy, to coordinate all DHS policies relating to cargo security and consult with cargo security stakeholders. The Office will be headed by a Director, whose responsibilities include advising the Secretary about cargo security and coordinating policies with other agencies. Section 302 reauthorizes the Homeland Security Science and Technology Advisory Committee. Section 303 deals with research, development, testing, and evaluation. DHS will conduct R&D testing and evaluation to enhance maritime cargo security, coordinate with public and private sector entities to develop technology, and evaluate any such technology. The Department must make sure that R&D efforts funded in this area are coordinated to avoid duplication of effort, and that results of R&D are shared within DHS, as appropriate. (There are no Sections 304 through 400 in the Act.) Title IV - Agency Resources and Oversight Within this title of the SAFE Port Act, provisions of interest include: Section 405 addresses the International Trade Data System. This will be established by DHS and will be an electronic trade data interchange. It will be implemented when the Automated Commercial Environment is fully implemented. All federal agencies that require documentation for importing/exporting cargo will participate in this system. An Interagency Steering Committee will be established to oversee the implementation of this system. This Committee will define the set of data elements to be collected. Section 406 deals with in-bond cargo. By June 30, 2007, the Commissioner of CBP must make a report to Congress on in-bond cargo security issues, including: --A plan for closing in-bond entries --Assessment of resources required to reconcile in-bond entries between port of arrival and port of destination as well as other factors. Title V- Domestic Nuclear Detection Office Section 501 establishes the Domestic Nuclear Detection Office. Personnel may come from other federal agencies. The Director will be appointed by the President. Its purpose it to detect/protect against unauthorized importation, possession, storage, etc. of a nuclear explosive, fissile material, or radiological material in the US. The responsibilities and mission of this new Office are described in detail in this section. MAJOR DEADLINES As soon as possible 100% cargo screening when technology meets requirements January 1, 2007 Final rule for issuing TWIC cards January 13, 2007 (90 days after enactment of the Act) DHS submits to Congress strategy on domestic radiation detection DHS issues rulemaking to establish minimum standards and procedures for securing containers in transit to the US DHS to establish pilot integrated scanning systems in 3 foreign container ports February 13, 2007 (120 days after enactment of the Act) DHS develops plan to inspect passengers/vehicles on ferries bound for US from foreign countries DHS submits a report to Congress about third-party C-TPAT validation April 1, 2007 DHS establishes long-range vessel tracking program in US waters April 13, 2007 (6 months after the enactment of the Act) Commencement of pilot program for TWIC card readers Comptroller-General to submit to Congress result of background check redundancy/inefficiency study DHS submits to Congress budget analysis for IOC program DHS update and finalize rulemaking on arrival of foreign vessels on OCS DHS submits to Congress (secure) report on methodology used to allocate port security grants on basis of risk DHS submits to Congress report on development of equipment to detect shielded nuclear and chemical, biological, and other WMD DHS issues interim final rule on container security standards and procedures DHS updates guidelines for certifying C-TPAT security measures and practices June 30, 2007 Commissioner of CBP to submit report to Congress on in-bond cargo issues July 1, 2007 TWIC program implemented at 10 highest risk ports July 13, 2007 (270 days after enactment of the Act) DHS submits to Congress report containing strategic plan about security of international supply chain - updated in 3 years September 30, 2007 DHS reports to Congress on the effectiveness of CSI program October 13, 2007 (one year after enactment of the Act) DHS to decide on crewmember identification required in Sec. 70111 Title 46 DHS will achieve a full-scale implementation of the pilot integrated scanning program January 1, 2008 TWIC program implemented at 40 second - highest-risk ports January 1, 2009 TWIC program implemented at all the rest of the ports All persons with current merchant mariners’ credentials issued TWICs January 13, 2009 All containers bound for US shall meet container security standards and procedures April 13, 2009 Deadline for final regulations from TWIC card reader pilot program ACRONYMS USED IN THIS REPORT AMSC: Area Maritime Security Committee ATS: Automated Targeting System CFR: Code of Federal Regulations CSI: Container Security Initiative CSO: Company Security Officer C-TPAT: Customs- Trade Partners Against Terrorism DHS: Department of Homeland Security; the Secretary FSO: Facility Security Officer GMDSS: Global Maritime Distress and Safety System HME: Hazardous materials endorsement (to commercial drivers’ license) MTSA: Maritime Transportation Security Act of 2002 TSI: Transportation security incident USC: United States Code VSO: Vessel Security Officer Copyright, 2006, The University of Findlay. Photographs: http://cbp.gov and http://uscg.mil |
