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The Role of Small Vessels in National Security: Is DHS Doing Enough?

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Introduction

With 13 million registered recreational vessels (and perhaps 8 million unregistered vessels) plying U.S. waters every year, it is not surprising that the Commandant of the Coast Guard, ADM Thad Allen, has raised the critical question as to whether these vessels are “Friend or Foe?” and, in reply to his own question, said it is “Tough to Tell.”1 But, the Coast Guard and its parent organization, the Department of Homeland Security (“DHS”), have taken serious steps to develop a new security strategy focused solely on small vessels. A small vessel is defined as a vessel that is less than 300 gross tons and generally less than 100 feet in length. It can be a recreational, fishing, or small commercial vessel to qualify as a small vessel for purposes of this strategy. With the exception of small commercial vessels that do meet a higher standard of security,2 as a general rule, these vessels are not subject to SOLAS or the ISPS Code.3

Since 9/11, the Coast Guard, DHS, and Congress have initially focused on the security requirements for large vessels. 4 However, given the role small vessels have played in the tragic 2000 attack on the USS Cole,5 and the apparent maritime link to the 2008 Mumbai attacks,6 it is understandable that in recent years these agencies and Congress have turned their attention to small vessel security.

This attention has resulted in the issuance by DHS of a Small Vessel Security Strategy (“Strategy”) in April 2008. Subsequently, in September 2009, the DHS Office of Inspector General (“OIG”) released a report critical of the Strategy, entitled “DHS’ Strategy and Plans to Counter Small Vessel Threats Need Improvement.”7 This article reviews and discusses the 2008 Strategy, the OIG report, efforts by private entities such as the National Association of Boating Law Administrators (“NASBLA”) and the Passenger Vessel Association (“PVA”) to enhance maritime security, as well as the recent issuance by the International Maritime Organization (“IMO”) of non-binding guidelines for the security of vessels that are not covered by SOLAS or the ISPS Code. The article also touches briefly on recent, relevant Congressional actions.

Review of the DHS Strategy

In 2008, after hosting a 2007 Summit with involved stakeholders in Arlington, Virginia, DHS issued its Strategy. The Strategy initially notes the difference between the present security regime for large and small vessels. For example, all large vessels have to submit to the Coast Guard a 96-hour Advance Notice of Arrival, a cargo manifest/crew list within 24-hours of departure, and carry the Automatic Identification System (“AIS”). In contrast, the Coast Guard/DHS acknowledged, that with respect to small vessels, they lack a centralized access to hull identification and vessel registration (owner) data, there are uneven requirements for small vessel user certification and documentation, and there are very limited Advance Notice of Arrival requirements for most small recreational vessels arriving from abroad.

While acknowledging that the vast majority of small vessel operators are legitimate, law-abiding citizens, DHS expressed its concern that small vessels could be implicated in a terrorist-related attack. As the Commandant identified in his “Friend or Foe” letter, referenced above, several serious attacks have been linked to small vessels, including the USS Cole attack, the October 2002 attack by a small fishing vessel with explosives into the side of the supertanker Limburg, and the November 2005 attack of the cruise ship Seabourne Spririt by terrorists using 25-foot inflatable boats.8

The Strategy identified the following four scenarios of greatest concern that small vessels could pose in terrorist-related attacks:

  1. Domestic use of waterborne improvised explosive devices (“WBIEDS”);
  2. Conveyance for smuggling weapons (including weapons of mass destruction) into the United States;
  3. Conveyance for smuggling terrorists into the United States; and
  4. Waterborne platform for conducting a stand-off attack (e.g. Man-Portable Air Defense System (“MANPADS”)) attacks.

As part of its strategic vision for responding to these potential scenarios, the Strategy determined that a “one-size-fits-all approach cannot adequately ensure U.S. maritime security and safety due to the diversity of the maritime domain and the heterogeneity of the small vessel community.”9 Therefore, the Strategy contains four diverse goals with specific objectives pertaining to each goal.

The first goal is to: Develop and leverage a strong partnership with the small vessel community and public and private sectors in order to enhance maritime domain awareness.10 A specific objective to address this goal is to partner with the 80 million individuals who participate in recreational boating activities each year, and to increase public awareness of how to report suspected terrorist activity through America’s Waterway Watch (“AWW”).11 DHS cited as a prime example of the success of AWW when a tour boat operator in Florida in 2003 reported suspicious activity by one of its passengers, which led to the investigation of the suspect and his subsequent apprehension in New York.12

The second goal is to: Enhance maritime security and safety based on a coherent plan with a layered, innovative approach.13 To implement this goal, the Coast Guard will identify which operators present a low-risk profile, and develop appropriate risk targeting systems to distinguish high-risk users. The Coast Guard also called for enhanced use of the 96-hour advance notification rule for recreational vessels entering U.S. waters from overseas.

The third goal is to: Leverage technology to enhance the ability to detect, determine intent, and when necessary, interdict small vessels.14 To achieve this goal, the Coast Guard acknowledged that it must expand research into low-cost, non-intrusive, small vessel identification systems, such as Radio-Frequency Identification (“RFID”) tags, adaptable miniature transponders, portable GPS devices, or cell-phone based recognition systems.15 The Coast Guard also has Memoranda of Understanding with states to allow access to basic information about state-registered recreational vessels through the Vessel Identification System.

The fourth and final goal is to: Enhance coordination, cooperation, and communications between Federal, state, local, and Tribal partners, and the private sector as well as international partners.16 One way to implement this goal, according to DHS, is to update area maritime security processes to ensure that small vessels are addressed when conducting area assessments and developing area security management plans. Another method, as the Commandant described in “Friend or Foe”, is to partner with organizations such as the National Association of State Boating Law Administrators (“NASBLA”). He credits NASBLA with “advocating for the state registration of all motorized and non-powered vessels (canoes, kayaks, etc.)” to increase maritime domain awareness at the local and state level. The PVA is another source of cooperation on security matters with its members. 17

To carry the Strategy to the next phase, the Coast Guard is developing an Implementation Plan to provide detailed direction to all DHS agencies on how to achieve the four major goals. As of this writing, we do not have information on the date of release of the Implementation Plan.

Review of the OIG Report and DHS Response

DHS OIG found the Strategy to be deficient in certain respects after comparing it with the six characteristics for an effective national antiterrorism strategy articulated by the General Accounting Office (“GAO”) in its 2004 report entitled “Combating Terrorism: Evaluation of Selected Characteristics in National Strategies Related to Terrorism.”18 The six characteristics prescribed by GAO include: problem definition and risk assessment; goals and performance measures; identification of resources; organizational roles and responsibilities; and integration and implementation.

The OIG criticized the Coast Guard for not addressing all of the characteristics laid out in the GAO report, such as setting priorities, milestones, performance measures, or progress indicators. The OIG also criticized the Coast Guard and DHS for not providing detailed information regarding costs, human capital, resources, or economic principles. Finally, the OIG commented that DHS had not sufficiently analyzed the adequacy of certain programs and processes that DHS would rely on in support of its Strategy, such as the AWW and the Pleasure Boat Reporting System that Customs and Border Protection (“CBP”) administers for small vessels traveling to the U.S. from a foreign country. OIG complained that the AWW is not widely known, that AWW calls are not tracked, and that the Pleasure Boat Reporting System is ineffective and the data it gathers is not accurate.

In response, DHS partly agreed and partly disagreed with the OIG’s conclusions. For example, DHS acknowledged that it could address more of the GAO characteristics and stated that it planned to do so in the execution of an Implementation Plan.19 However, DHS did not concur with the OIG recommendation that it needed to evaluate the effectiveness of programs such as AWW and the Pleasure Boat Reporting System in order to use them as part of its solution to improve security from small vessel threats since they had been recommended by DHS agencies as useful tools.20

Initial Assessment and Next Steps-Implementation Plan, IMO Guidelines,and Congressional Action

While it is beyond the scope of this article to fully assess either the GAO process or the OIG report, in the view of this author, the OIG report is fairly formulaic and fails to take into account both the diffuse nature of the recreational boating community, the tremendous cost of administering a new security program for the 80 million Americans who enjoy recreational boating, and the seriousness of the effort that the Coast Guard and DHS have undertaken in trying to develop a Small Vessel Security Strategy that balances the individual rights of boaters in this country to operate in U.S. waterways alongside other maritime partners with the threat that a terrorist attack from a small vessel of the nature described above could inflict on a waterway, port, or critical infrastructure.

In the meantime, DHS is developing and planning to release an Implementation Plan to fill in a number of the gaps identified by the OIG. The Coast Guard has also worked closely with the IMO’s Maritime Safety Committee (“MSC”) to develop a set of non-binding guidelines that can be used by government and private sector entities engaged in small vessel operations and security.

The IMO issued the guidelines in December 2008 to address the lack of existing guidance on security aspects of those ships that do not fall within the scope of SOLAS and the ISPS Code, i.e., small vessels.21 The IMO made clear that the guidance is non-mandatory.

However, the author expects that a number of the guidelines will show up in the final Coast Guard Implementation Plan because they offer practical suggestions and best management practices for government entities and operators alike. For example, the IMO recommended that Member States consider encouraging operators of pleasure craft to register with the Administration or a suitable organization that could provide a database available for authorized online access to assist in both preventative and response activities related to both safety and security.22 The IMO also recommended that Member States encourage operators of small vessels engaged in international voyages to adopt, where appropriate, the provisions of the ISPS Code as industry best practice.23 Finally, the Guidance contains detailed recommendations on how small vessels can mitigate the risk of theft, piracy, and armed robbery24-a serious new (or new old) problem, but one that is not addressed in this commentary.

Congress is watching the development of the Strategy closely. [On December 9, 2009, the Subcommittee on Coast Guard and Marine Transportation of the House Committee on Transportation and Infrastructure held its hearing on Maritime Domain Awareness (MDA). Testifying were RADM Brian M. Salerno of the Coast Guard and Margaret Podlich for BOATUS. Their statements and a Subcommittee report on MDA are available here.] Congress has also taken steps to correct the lack of criminal penalties for operators of submersible and semi-submersible vessels that engage on international voyages without a national registry.25 And, the House of Representatives just passed the Coast Guard Authorization Act for FY2010 that included language directing the Secretary of Homeland Security to establish a Maritime Homeland Security Public Awareness Program, encouraging recreational and commercial boaters to improve awareness of activity in the maritime domain and report suspicious or unusual activity.26

Conclusions

DHS and the Coast Guard have undertaken a serious review of the potential threat from small vessels and taken the initial steps necessary to develop a security strategy and implementation plan for that strategy. DHS acknowledged, in response to the OIG report, that it needs to do more to follow all of the recommended GAO steps for such strategy and plans to incorporate their suggestions in the Implementation Plan. From the perspective of the small boating community, they can expect to see closer scrutiny paid to small vessels with accompanying increased regulation and financial commitments. The movement is likely to be in the direction of more SOLAS-and ISPS-like compliance mechanisms for owners and operators of small vessels. Companies with off-the-shelf technologies that can address these issues may also find a welcome mat at the Coast Guard.

Copyright © 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. Reprinted with permission. All rights reserved.

  1. “Friend or Foe? Tough to Tell”, October 2008 Proceedings, U.S. Naval Institute, Annapolis, Maryland, See www.usni.org.
  2. The requirements for commercial small vessels are described at length in the October 2009 issue of Foghorn magazine, a publication of the Passenger Vessel Association. See www.foghornmagazine.com.
  3. The International Convention for the Safety of Life at Sea (“SOLAS”), adopted 1 November 1974, entered into force, 25 May 1980, as amended by the International Ship and Port Facility Security Code (“ISPS”), entered into force, 1 July 2004. See www.IMO.org/Conventions.
  4. The Marine Transportation Security Act of 2002, Pub.L. 107-295, was one of the first U.S. laws to address security requirements for large vessels, and is intended to implement the IMO’s ISPS Code for large vessels.
  5. “Terrorist Attack on USS Cole: Background and Issues for Congress,” a CRS Report for Congress, Order Code RS20721, updated 20 January 2001.
  6. “The United States warned the Indian government about a potential maritime attack against Mumbai at least a month before last week’s massacre in the country’s financial capital left nearly 180 dead, a U.S. counter­terrorism official told CNN.” See http://www.cnn.com/2008/WORLD/asiapcf/12/01/india.attacks2/index.html.
  7. DHS OIG-09-100.
  8. Supra n.1 at 15.
  9. Strategy at 15.
  10. Strategy at 16.
  11. See www.AmericasWaterwayWatch.org.
  12. Strategy at 16.
  13. Strategy at 17.
  14. Strategy at 19.
  15. Strategy at 20.
  16. Strategy at 20.
  17. See www.passengervessel.com.
  18. GAO-04-408T, February 2004.
  19. OIG Report at 17.
  20. Idem.
  21. “Non-Mandatory Guidelines on Security Aspects of the Operation of Vessels Which Do Not Fall Within the Scope of SOLAS Chapter XI-2 and the ISPS Code.” I:\CIRC\MSC\01\1283.doc.
  22. IMO Guidance, Annex at 5.
  23. IMO Guidance, Annex at 6.
  24. IMO Guidance, Annex at 20.
  25. The Drug Trafficking Vessel Interdiction Act of 2008, Pub.L.110-407.
  26. Sec. 1101 of H.R. 3619.

Notice: The purpose of this newsletter is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. The Advisory should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel. Additional information on Blank Rome may be found on our website www.blankrome.com.