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NEW U.S. SECURITY PROGRAMS AFTER SEPTEMBER 11, 2001. FREEHILL HOGAN & MAHAR, LLP 80 PINE STREET NEW YORK, NY 10005-1759 TEL: 212 425-1900 FAX: 212 425 1901. Linburg - Before. Linburg - After. The mission of the United States Customs and Border Protection Service: .

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new u s security programs after september 11 2001

NEW U.S. SECURITY PROGRAMS AFTER SEPTEMBER 11, 2001

FREEHILL HOGAN & MAHAR, LLP

80 PINE STREET

NEW YORK, NY 10005-1759

TEL: 212 425-1900

FAX: 212 425 1901

the mission of the united states customs and border protection service
The mission of the United States Customs and Border Protection Service:

We are the guardian’s of our Nation’s borders – America’s frontline. We serve and protect the American Public with integrity, innovation and pride. We enforce the laws of the United States, safeguard the revenue, and foster lawful international trade and travel.

after 9 11 cbp developed new tools to implement its mission in the face of terrorist threats
After 9/11 CBP developed new tools to implement its mission in the face of terrorist threats:
  • Container Security Initiative - “CSI”
  • 24 Hour Manifest Rule
  • Customs-Trade Partnership Against Terrorism –

“C-TPAT”

  • Advance Passenger Information System – “APIS”

Related Actions:

  • Elimination of Crew List Visas
  • Marine Safety Transportation Act
container security initiative csi
Container Security Initiative - “CSI”
  • 16 Million Containers move through U.S. ports annually
  • 40% of all containers in the world pass through U.S. ports annually
  • $475 Billion in commerce
  • 70% of U.S. bound containers originate in 20 foreign ports
  • Only 4%-7% of incoming containers are inspected by CBP

Post- 9/11 CBP’s concerns expanded beyond narcotics and contraband to terrorism.

The challenge: how to monitor container traffic

container security initiative
Container Security Initiative

Four elements:

  • Using automated information to identify and target high-risk containers
  • Pre-screening those containers identified as high risk before they arrive at U.S. ports
  • Using detection technology to quickly pre-screen high-risk containers
  • Using advance, more tamper-resistant containers

CBP has entered into bilateral CSI agreements with 41 ports worldwide

Those foreign ports host U.S. CBP agents to help identify and screen high-risk containers before loading.

What information does CBP review to pre-screen containers?

24 hour manifest rule
24 Hour Manifest Rule
  • Pre- 9/11 – cargo manifests had to be filed 48 hours before vessels arrived at U.S. ports
  • Post- 9/11 – cargo manifests must be filed 24 hours before cargo is loaded on board a U.S. bound vessel at a foreign port (containerized cargo and break-bulk cargo)
  • The cargo manifest must be filed electronically with CBP via the Automated Manifest System (“AMS”)
  • Bulk cargoes – cargo manifest must be filed 24 hours before vessel arrives in U.S.
  • No vague cargo descriptions such as “said to contain” or “freight all kinds”
  • Importers can request confidentiality from CBP for themselves and their shippers
  • Any violation of 24 Hour Rule exposes carrier to penalties - $5,000 for first offense and $10,000 for second offense. Plus, CBP may prevent unloading of cargo.
international carrier bond
International Carrier Bond
  • Anyone who transmits cargo declarations to CBP must file an International Carrier Bond
  • CBP Port Directors have discretion to set amount. Minimum is usually $50,000
  • Who must file the International Carrier Bond – Owners or Charterers?
  • Who must file the Cargo Declaration – Owners or Charterers?
  • CBP will not decide – but will ultimately hold Master and vessel liable for failure to comply
  • Negotiate in charter parties:
    • who is responsible to comply with CBP filing regulations
    • who is will be liable for cargo not loaded due to a CBP Do Not Load order
    • who will bear costs of delay and extra expenses if CBP will not permit discharge
    • who files the International Carrier Bond
customs trade partnership against terrorism c tpat
Customs-Trade Partnership Against Terrorism – “C-TPAT”
  • Voluntary program
  • Importers, carriers and terminals comply with U.S. guidelines for supply-chain security programs
  • Participants document their supply chain security measures, pre-screening of employees, etc.
  • Participating companies who qualify will be designated “low risk”
  • Benefits:
    • fewer CBP inspections
    • faster CBP inspections
    • potential eligibility for CBP self-audit program, where importer, not CBP, audits its own security measures
advance passenger information system apis
Advance Passenger Information System – “APIS”
  • Requires reporting of crew and passenger information in advance of vessel’s arrival in U.S.
    • voyage of more than 96 hours – submit 96 hours before entering port
    • voyage between 24 hours and 96 hours – submit 24 hours before entering port
    • voyage less than 24 hours – submit before departing foreign port
  • Failure to comply or filing false data results in penalties
    • first violation - $5,000
    • second violation - $10,000
  • No action will be taken against carrier’s bond until appeals exhausted
maritime transportation security act mtsa
Maritime Transportation Security Act (“MTSA”)
  • Requires Vessel Security Plans
  • Similar to ISPS (International Ship and Port Facility Security Code) vessel security plans
  • USCG accepts compliance with ISPS as compliance with MTSA
  • 33 CFR 104 requires Vessel Security Plans that include:
    • designation of a Vessel Security Officer
    • training crew to respond to security threats
    • annual security drills – conducted in conjunction with USCG, industry group, port authority or by owner/operators on their own
elimination of crew list visas
Elimination of Crew List Visas
  • U.S. State Department established Crew List Visas, permitting one visa for entire crew
  • Regulation rescinded in July, 2004, resulting in Requirement of individual visas for each crew member
  • If crewmembers do not have visas, they will be denied entry and vessel may be required to hire security guards
  • Who is responsible for costs of security guards and other extra expenses - Owners or Charterers?

- Immigration authorities and USCG will not decide

- Owners and Charterers need to negotiate charter party clauses clearly stating who is liable form extra expenses

- BIMCO ISPS clause does not deal with problem

conclusion
CONCLUSION
  • Security measures and requirements will only increase, not decrease
  • Monitor developments and plan well in advance to comply
  • Where responsibility for compliance as between Owners and Charterers is unclear, negotiate clear charter party clauses allocating responsibility