Public Safety and Emergency Preparedness Canada & US - - PowerPoint PPT Presentation

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Public Safety and Emergency Preparedness Canada & US Department of Homeland Security

Implications For Business In Our New Security Conscious Environment

Wednesday, February 25, 2004

www.mcmillanbinch.com

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Agenda

• Introduction
• Canada

– Overview of Department of Public Safety and Emergency Preparedness (PSEP) – Programs and Related Requirements Arising From Creation and Mandate of PSEP

• United States

– Overview of Department of Homeland Security (DHS) – Vendor Issues and Procurement-Related Matters – Effect of Maritime Transportation Safety Act and Transportation Canada Harmonization

• Questions

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Participating Law Firms

McMillan Binch LLP is one of Canada’s leading business law firms, committed to understanding clients’ needs and objectives and working with them to achieve effective and creative solutions. Since 1903, we have provided definitive legal advice to Canadian and international businesses, financial institutions, governments and private individuals. Today, McMillan Binch comprises approximately 175 lawyers with a total staff of 500 in Toronto. The firm practises in all major disciplines of business law with a strong emphasis on corporate/commercial work. Keegan, Werlin & Pabian, LLP is a Boston based firm with diverse private and public sector backgrounds and an unparalleled local and regional familiarity and presence. KWP has experience in business and corporate law, energy and regulatory law, estate planning and administration, litigation and alternative dispute resolution, environmental law, real estate, taxation and government relations. Dickstein Shapiro Morin & Oshinsky LLP is a multiservice law firm with offices in Washington, DC and New York City. The firm’s five core practice groups - Corporate & Finance, Energy, Intellectual Property, Legislative & Regulatory Affairs, and Litigation & Dispute Resolution - involve the firm in virtually every major form of counselling, litigation, and advocacy.

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Presenting Lawyers

• David Butler Chair – McMillan Binch LLP
• Bill Hearn – McMillan Binch LLP
• Sarah Diamond – McMillan Binch LLP
• Robert Mangas – Dickstein Shapiro Morin & Oshinsky LLP
• David M. Nadler – Dickstein Shapiro Morin & Oshinsky LLP
• Jon Bonsall – Keegan, Werlin & Pabian, LLP

NB: Member law firms practice independently and not in a relationship for the joint practice of law.

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Introduction

• 9/11 changed landscape
• Most western nations reviewing

national security policies and programs

• US has been most affected
• Canada most affected by US approach

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Introduction

• What has happened?

– In US?

• Creation of Department of Homeland Security (DHS)
• 3rd largest department in US, consisting of 1/12

civilian federal workers

• Budget = $38 billion

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Introduction

– In Canada?

• Creation of Public Safety and Emergency

Preparedness (PSEP)

• Minister: Honourable Anne McLellan
• Budget: C$5 billion

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Introduction

• PSEP mandated to support Minister in

giving effective direction to agencies responsible for:

– policing and law enforcement – national security – corrections and conditional release

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Introduction

• Creation of Canada-US Planning Group at

NORAD

• Joint Emergency Preparedness Program (JEPP)
• Relocation of 2000 federal police officers to

national security issues

• Expansion of urban search and rescue program

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Introduction

• Electronic exchange fingerprint data

agreement

• Budget 2003 provided $3 billion to

infrastructure support

• Purchases of antibiotics to increase National

Emergency Services Stockpile System

• RCMP National Security Tip Hotline

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Introduction

• Impact on Business?

– Individuals:

• You are being affected daily
• Long delays and more intense

searches at borders/airports

– Goods:

• Long border delays/disruptions in

transportation

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Introduction

• Impact on Business:

– Canadian initiatives are following US lead – Concern that Canada not following US funding amounts and structures – Increasingly, mantra is:

COMPLY TO COMPETE

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Introduction

• Impact on Business:

– need greater awareness of structural differences between Canada and US – must understand that:

• doing business with US has changed
• US implementation programs may not be suitable to

Canadian context

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Introduction

• Impact on Business

– be aware of efficiencies and differences that legislation and programs are creating – also aware of differences between Canada and US legislation and programs – Canadian businesses must be innovative in approach to compliance with both US and Canadian security requirements – national security trumps all

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Introduction

• Canada/US Trade (2002)

– Canada/US trade reached ~US$473 billion, or ~US$1.3 billion per day – US exchange with Canada was worth 61% more than Mexico (second largest trading relationship) – US exports to Canada generate 2,000,000 jobs in US

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Introduction

Canada/US Trade (2002):

Top 3 US export destinations:

1) Michigan C$74.5 billion 2) New York C$28.8 billion 3) California C$26.3 billion

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Introduction

• Canada/US Trade (2002):

– Canada’s importance to US is more than border-state phenomenon – Canada was leading export market for 37 of 50 US states – 9 of top 20 state importers of Canadian goods are not border states

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Introduction

• Canada/US Trade (2002):

– Canada buys 19% of all US exports of goods (US$163 billion) – Canada supplied 16.5 per cent of all US imports of goods and services (US$188 billion) – 74% of all imports are from US (C$218 billion) – 82% of Canada’s total exports were shipped to US (C$345 billion) – 43% of Canadian GDP consists of exports (US$400 billion)

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Introduction

• Canada/US Trade (2002):

– Canada exports US$18.4 billion worth of services to the US – US exports US$24.3 billion worth of services to Canada – majority US-owned affiliates consumed $US44.3 billion of services in 2000 – majority Canadian-owned firms in US bought $US51.3 billion of services in 2000

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Introduction

Security-related acronyms:

CAN-PASS - customs clearance for frequent airport travellers CATSA- Canadian Air Transport Security Authority CBSA - Canada Border Service Agency CCRA - Canada Customs and Revenue Agency CFC

• Canada Firearms Centre

CFIA

• Canadian Food Inspection Agency

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Introduction

Security-related acronyms:

CIC

• Citizenship and Immigration Canada

CPA

• Canadian Port Authority

CSC

• Correctional Services Canada

CSIS

• Canadian Security Intelligence Service

DHS

• Department of Homeland Security

FAST

• Free and Secure Trade program

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Introduction

Security-related acronyms:

JEPP

• Joint Emergency Preparedness Program

NEXUS- joint customs and immigration program for frequent travellers NORAD- North American Aerospace Defense Command NPB

• National Parole Board

OCIPEP - Office of Critical Infrastructure Protection and Emergency Preparedness

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Introduction

Security-related acronyms:

PIP

• Partners in Protection

PSEP - Public Safety and Emergency Preparedness Canada RCMP - Royal Canadian Mounted Police VACIS - Vehicle and Cargo Inspection System VISIT - Visitor and Immigration Technology program

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Safety and Emergency Preparedness Canada

Overview

By

Sarah Diamond Tel: 416.865.7223 sarah.diamond@mcmillanbinch.com

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National Security: Pre 9/11

Dept. Justice Transport Canada RCMP CSIS CSC NPB Solicitor General OCIPEP National Defence CIC CCRA

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National Security: Post 9/11

New Cabinet Committee CCRA National Security Corrections Policing Criminal Justice Department PSEP RCMP CSIS CSC NPB CFC CBSA Minister PSEP Transport Canada National Security Advisor Standing House Committee

Government architecture in this area is constantly evolving. This

• rganizational chart is based on a

presentation by a PSEP official delivered to the ACPA Port- Government Interface on February 23, 2004.

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PSEP

• Minister: Honourable Anne McLellan
• Budget = C$5 billion
• Employees = 50,000

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PSEP

• New “Cabinet Committee – Security, Public

Health and Emergencies” which is chaired by Minister of PSEP

• House of Commons Standing Committee
• Created new position of National Security Advisor

to Prime Minister (Robert A. Wright)

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Programs and Related Requirements Arising from Creation and Mandate of PSEP

Overview of the Impact of PSEP and Related Vendor Issues

By Bill Hearn Tel: 416.865.7240 bill.hearn@mcmillanbinch.com

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Supply Chain Programs

• Importance of Supply Chain

– Definition:

• entire network of companies that work

together to design, produce, deliver, and service products

• historically, companies focused on in-

house manufacturing and quality improvements

• now efforts extend beyond to encompass

entire supply chain

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Supply Chain Programs

• Importance of Supply Chain:

– locus of value for manufacturers – obvious effects:

• New delivery times for purchasers
• Increased spending on compliance

– non-obvious effects:

• cash flow, accounting practices, and capital structure of

companies

– affects service organizations providing services to these companies (investment firms, law firms, management consultants, etc…)

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Smart Border Declaration

• On December 12, 2001, Smart

Border Declaration signed by Deputy Prime Minister John Manley and US Homeland Security Director Tom Ridge

• Objectives:

– enhancing security of border – facilitating legitimate flow of people and goods

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Smart Border Declaration

• Declaration outlines a set of initiatives

called 30-Point Action Plan, which includes:

– Biometric identifiers – Permanent resident cards – Single alternative border inspection system

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Canada Border Services Agency

• December 12, 2003: federal government

announced creation of the Canada Border Services Agency (CBSA)

• Part of PSEP

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Canada Border Services Agency

• CBSA comprises:

– Customs program, formerly with the CCRA – intelligence, interdiction and enforcement functions, formerly with CIC – passenger and initial import inspection services at ports of entry, formerly with CFIA

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Road

• Context:

– Six million trucks crossed from Canada into US in 2002 (= over 11.5 trucks per minute 24/7) – Constitutes 70% (in value), 41% (in volume), of all CDN exports to US – Projected growth rate of truck freight 1995-2020 = 61%

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Road

• FAST

– Free and Secure Trade (FAST) program is a joint Canada-US initiative – Participants must voluntarily register in the CBSA’s Partners in Protection (PIP) program (similar to DHS C-TPAT program)

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Road

• FAST

– harmonizes commercial process offered to pre- approved importers, carriers, and registered drivers at 12 major border crossings – shipments for approved companies, transported by approved carriers using registered drivers, will be cleared into either country with greater speed and certainty, and at a reduced cost of compliance

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Road

• NEXUS

– joint customs and immigration program for frequent travellers that both Canadian and American governments have implemented – dedicated lanes at select border crossings – not be regularly subjected to usual customs and immigration questioning

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Road

• Advance Cargo Reporting

– Non-FAST = 1 hr prior to arrival at border – FAST = none

• Shared border facilities under Canada-

United States Accord on Our Shared Border- Joint Facilities Initiative

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Rail

• Overview:

– Constitutes 27% (in value), 32% (in volume), of all CDN exports to US – Projected growth rate of rail freight 1995-2020 = 38%

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Rail

• Declaration of Principles

– On April 3, 2003, US and Canadian customs agencies and Canada’s two major railways signed a declaration of principles – further enhances security at Canada-US border and to ensure Canada’s secure rail access to US

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Rail

• The Declaration:

– outlines principles for targeting, screening and examining rail shipments to US by:

• Canadian National Railway
• Canadian Pacific Railway

– includes guidelines for collecting electronic manifests and installing imaging and radiation detection equipment

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Marine

• Overview:

– Constitutes 3% (in value), 27% (in volume) of all CDN exports to US – Over 250 commercial ports – $100 billion passes through CPAs, generating

• ver $20 billion in annual economic activity

and 250,000 direct and indirect jobs – 3.5 million containers brought into Canada, but

• nly 3% checked

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Marine

• Feds committed C$172.5 million in 2003 on

marine and port security

• Implementing International Ship and Port

Facility (ISPS) Code

– by July 1, 2004

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Marine

• Enhanced security screening procedures for

ships entering St. Lawrence Seaway/Great Lakes System

• Advance cargo reporting

– 24 hours prior to lading – Canada is adopting US rule, giving up its intention to require 96 hours

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Air

• Overview:

– Projected growth rate of air freight 1995-2020 = 91% – Not very large when compared to big 3 (road, rail, marine)

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Air

• Canadian Air Transport

Security Authority (CATSA)

– created April 1, 2002

• CAN-PASS AIR

– implementation began July 2003 – allows pre-screened, low-risk travelers to pass quickly through Canadian customs and immigration at major Canadian airports

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Air

• Share advance passenger information and agreed-

to passenger name records

• Canada-US Pre-Clearance Agreement
• Air Travellers Security Charge
• Advance cargo reporting

– flights > 4 hrs = 4 hrs prior to arrival – flights < 4 hrs = at time of take off

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Vendor Programs

• What challenges are there for organizations
• perating in this “secure” environment?
• Closely review new security environment

and try to determine where and how new programs will affect you

• Often new infrastructure required but no or

insufficient $ to offset costs imposed by federal government

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Vendor Programs

• Ensure compliance department in place, if

possible

• HR must be more vigilant in background checks

– Vigilance must be balanced with realities and unions/employees – Tension with health/safety and privacy legislation

• Re-structure value chain depending on “just-in-

time” structure of organization

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Procurement

• Opportunities from investments in security-

based initiatives

• $7.7 billion for security enhancement

initiatives in 2001 budget

• $3 billion for infrastructure support in 2003

budget

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Procurement

• Examples of goods required:

– hi-tech equipment to scan freight – advanced explosives detection system – ion mobility spectrometers – underwater vehicles to search for contraband/dangerous goods – VACIS (gamma-ray imaging system)

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Procurement Programs

• Examples of services required

– Operators of certain hi-tech equipment – Trainers of security personnel – Security assessments and plans for ship owners and port facility operators – Assisting with security certification

• being done in US; possible in Canada?

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Procurement Programs

• Outsourcing opportunities
• P3 opportunities

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Other Related Programs

• Money laundering legislation
• Enhancements to surveillance and animal

tracking systems

• New bank notes ($100, $50, and $20)
• Canada opening new consulates in US

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Summary & Recommendations

• 1. Be aware of changing government structure

and programs

• moving target
• rganizations must be nimble
• 2. Enrol in trade facilitation programs
• NEXUS = people (ground)
• CAN-PASS = people (air)
• FAST = goods
• anticipate challenges (e.g. union/employee reaction)

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Summary & Recommendations

• 3. Comply to Compete
• Comply with emerging security

enhancements

• e.g.: advance cargo requirements
• beginning April 1, 2004
• Marine:

24 hrs prior to lading

• Road:

FAST: no advance notice required Non-FAST: 1 hr prior to arrival

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Summary & Recommendations

Certify as required

e.g.: ISPS Code

compliance required by July 1, 2004 for all port facility

• perators and ship owners

Cause all in supply chain to comply and certify

e.g.: representations & warranties and tiered remedies (including indemnities) regarding security compliance and certification

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Summary & Recommendations

• 4. Seize Business Opportunities
• massive government expenditures in Canada and

the US

• search out request for proposals (RFPs) in order to

be a prime government supplier

• provide support services to those companies

contracting directly with government

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Public Safety and Emergency Preparedness Canada & US Department of Homeland Security

Implications For Business In Our New Security Conscious Environment

Wednesday, February 25, 2004

www.mcmillanbinch.com

MBDocs 1253046

U.S. DEPARTMENT OF HOMELAND SECURITY

Structure, Priorities, and Procurement Issues

Rob Mangas and Dave Nadler Dickstein, Shapiro, Morin & Oshinsky McMillan Binch Conference Centre Toronto, Ontario February 25, 2004

DHS ORGANIZATION

• Information Analysis and Infrastructure Protection
• Science and Technology
• Border and Transportation Security
• Emergency Preparedness and Response

OTHER KEY AGENCIES WITH RESPONSIBILITY Department of Defense CIA Department of Justice/FBI Department of Health and Human Services Department of Energy

DHS FUNCTIONAL ORGANIZATION

“Entry” Security

• People
• Goods

Infrastructure Protection

• Physical Structures
• Cybersecurity
• Borders and Ports

Transportation Security

• Public Communication
• Aviation
• Rails
• Mass Transit

Health Security

• B/C/R/N releases
• Food Security
• Water Security

FUNDING PRIORITY Entry Security Infrastructure Protection Transportation Security Health Security Detection and Prevention Readiness and Response Highest Highest High High High High Modest Modest

DHS FY05 Budget Priorities:

Slowly Shifting from Response to Prevention

Proposed Declines in “Response” funding:

• ODP state formula grants

$ 700 mil. (- $ 1,026 mil.)

• Firefighter assistance grants

$ 500 mil. (- $ 250 mil.)

Significant “Prevention and Detection” initiatives:

• Container Security Initiative
• Customs-Trade Partnership (C-TPAT)
• Automated Commercial Environment
• Non-Intrusive Inspection technology
• Baggage Screening
• Cargo Screening
• Anti-missile technology
• CAPPS-II
• US-VISIT
• Remote Video Surveillance
• Biosurveillance
• Radiation Detection

FUNDING INCREASES BY AGENCY

(Dollar amounts in $ billions) $0 $2 $4 $6 $8 $10 $12 C&I USCG TSA EPR ODP S&T IAIP '01 '02 '03 '04 '05

Container Security Initiative (CSI)

• Modeled after Smart Border Accord
• Stations DHS personnel (usually 5 man teams) at international ports

(5 Canadian), examines high risk cargo before it is placed on ships

Customs-Trade Partnership Against Terrorism (C-TPAT)

• Allows private industry to develop supply chain security plans
• Benefits include expedited clearance of goods
• Free and Secure Trade (FAST) program has “FAST lanes”
• perational at twelve U.S.-Canadian border crossings
• More than 4,500 applicants so far; participants include importers; air,

rail and sea carriers; brokers; freight forwarders; non-vessel common carriers; highway carriers; port authorities and terminal

• perators; foreign manufacturers and warehouses

Non-Intrusive Inspection (NII) technologies Automated Commercial Environment (ACE)

NEW TECHNOLOGY What do they Need?

Science & Technology Directorate: Portfolio Managers

Countermeasures Portfolios

• Biological Countermeasures
• Chemical Countermeasures
• Radiological & Nuclear

Countermeasures

• Explosives Countermeasures
• Threat and Vulnerability, Testing

and Assessment

• Comparative Studies
• Critical Infrastructure Protection
• Cyber Security

Portfolios Supporting Operational End-Users and Conventional Missions

• Border and Transportation

Security

• Emergency Preparedness and

Response

• Standards
• U.S. Coast Guard
• U.S. Secret Service

NEW TECHNOLOGY What do they Need?

DHS/TSWG Process: Rapid Prototype Development

• C/B/R/N Countermeasures
• Explosives Detection
• Improvised Device Defeat
• Infrastructure Protection
• Investigative Support and Forensics
• Personnel Protection
• Physical Security

Standard Setting:

National Institute of Standards and Technology (www.nist.gov) Major Homeland Security Project Areas

• Strengthening structural and fire safety standards
• Improved materials for structures
• Cybersecurity standards and technologies
• Enhanced threat detection and protection
• Tools for law enforcement
• Emergency Response

Standard Setting:

American National Standards Institute (www.ansi.org) Major Homeland Security Topics

• Private Sector Emergency Preparedness and

Business Continuity

• Biological and Chemical Threat Agents
• Training Programs for First Responders
• Biometrics
• Emergency Communications
• Risk Assessment
• Cyber Security
• Supply Chain Security
• Equipment for First Responders

Standard Setting: Other Relevant Sources

National Institute of Justice (www.ojp.doj.gov/nij) Technical Support Working Group (www.tswg.gov) PREPARE Act, H.R.3158 (www.thomas.gov) State government homeland security offices NGA Center for Best Practices (www.nga.gov) International Organization for Standardization (www.iso.ch) ASIS International (www.asisonline.org) ASME Critical Assets Protection Initiative (www.asme.org)

Current Policy Debate in Congress

Hot Topics

• State and Local Grants: Allocation and Targeting
• Port Security
• Airline Screening

Additional Future Topics

• Water Security
• Intelligence Activities
• Container Security Initiative
• International Nuclear Stockpiles
• Immigration Reform
• Infrastructure: Nuclear and Chemical Facilities
• Rails and Mass Transit
• SAFETY Act Liability Protections

SELLING TO THE U.S. GOVERNMENT AND THE DEPARTMENT OF HOMELAND SECURITY

U.S. GOVERNMENT MARKET

• Largest Consumer Of Goods And Services In The

World

• Steady Growth Market

– Total U.S. Government Expenditures Will Exceed $2.23 Trillion In 2004 – DHS FY04 Budget = $38 Billion – DHS 2005 Budget = $40.2 Billion

– Overall Homeland Security Activities Across All Federal Agencies Will Grow To $47.4 Billion In 2005

• 83 Independent Agencies
• 27 Vertical Markets – Healthcare, Law

Enforcement, Logistics, Etc.

• Thousands Of State, Local Municipal

Governments Plus Public Universities

U.S. GOVERNMENT MARKET INDICATORS

• You Will Always Get Paid
• Private Markets Are Slumping

– Dot.Com Crash

• Steady And Consistent Growth
• Preference For Commercial Items
• New Players Entering The Market
• Requirement For Competition
• Incentives For Small/Disadvantaged

Companies

• Different Culture And Business Drivers
• R & D Programs For New Technology

– DHS = $800 M

• Modernization

– Cross Agency Initiatives

• Procurement Reform

– Streamlined Acquisition – Commercial Practices

• Difficult To Penetrate – Risk Adverse
• Homeland Security

– War On Terrorism – Iraq Reconstruction

GOVERNMENT SALES MODELS

• Direct Sales

– Respond To Government Bid Opportunity – Contract Between Government And Company For Discrete Order Or Term Contract – Government Terms And Conditions Apply

• Channel Sales

– Sales Through Distributor And/Or Reseller – Certain Terms And Conditions Flowed Down – Reseller/Distributor Terms And Conditions

– Small Disadvantaged Business Program – 75% Of All Sales – Teaming/Subcontracting

• Government Drives Requirements
• Primes Hold Contract Vehicles
• Procurement Vehicles

– Contracts – Fixed Price, Cost, Incentives – GSA Schedule – Government-Wide Acquisition Contracts – Open Market

THE DHS LEGAL FRAMEWORK

• Competition In Contracting Act (CICA)

– Requires “Full And Open Competition” – Expenditure Of Public Tax Dollars – Publicizing Contract Actions – 7 Exceptions Including:

• Only One Source Or A Limited Number Of Sources

Will Satisfy Government Requirements

• Unusual And Compelling Urgency
• Industrial Mobilization
• National Security
• Public Interest

– Agency Must Provide Justification For “Other Than Full And Open Competition” – CICA Implemented Through The FAR – DHS FAR Supplement

• Iraq Reconstruction Contracts

– Example Of Sole Source Or Restricted Competition – USAID Has Awarded Several Contracts Using Restricted Competition Based On Urgency

• Improper Business Practices

– Gratuities – Bribes – Kickbacks – Improper Influence – Procurement Integrity – Antitrust Violations – Conflicts Of Interest – Revolving Door Restrictions

• Socio-Economic Programs

– Small Business Set-Asides – Disadvantaged Companies

TERMS AND CONDITIONS

• Numerous Clauses Incorporated By Reference

Into Government Contracts

• Clauses Allocate Risks, Protect Taxpayer, And

Implement Socio-Economic Policies

• Many Clauses Differ From Commercial World

And Are Unique To Government

• Flow Down Clauses To Subcontractors And

Suppliers

KEY TERMS AND CONDITIONS

• Payment
• Warranty
• Patent Indemnity
• Rights In Data
• Inspection And Acceptance
• Most Favored Customer
• Price Reduction
• Audit
• Cost Accounting Standards

• Liquidated Damages
• Labor Clauses
• Buy American Act
• Insurance
• Assignment/Contract Financing
• Disputes
• Changes
• Termination For Convenience
• Termination For Default
• Commercial Items
• Representations And Certifications

DHS SPECIAL CONTRACTING RULES

• Existing Contracts With Consolidated

Agencies Transferred To DHS

• Act Includes Special Contracting Procedures

For DHS

• Special Contracting Procedures For Other

Executive Agencies Acquiring Goods And Services Needed To Fight Terrorism

• DHS Acquisitions

– Subject To Procurement Statutes And The FAR – Sole Source And Restricted Competition – DHS May Use Special Contracting Authority When Its Mission Otherwise Would Be “Seriously Impaired”

• Determination Must Be Made By Secretary Of DHS Or

His Designee

• Must Inform Congress Of Determination And Its Basis

• Special Contracting Authority For DHS

– Increase Micro-Purchase Threshold From $2,500 To $7,500 – Increase Simplified Acquisition Threshold From $100K To $200K For Domestic Contracts And $300K For Foreign Contracts

• Reduces Advertising, Competition, And Evaluation

Requirements And Specifies Less Burdensome Contract Clauses

– Expand The Use Of Commercial Item Acquisitions

• DHS May Purchase Items That Are Not Commercial

Items As If They Were Commercial Items

• “Deemed” Commercial Items

– Agencies Can Generally Purchase Commercial Items Consistent With Standard Commercial Practice – Items Have Been “Tested” By The Marketplace – Deemed Commercial Items May Not Have Established Commercial Or Catalog Pricing So Government May Pay Excessive Prices – Warranty, QA, Technical Data Rights Issues

• Government-Wide Emergency Contracting

Procedures

– Special Contracting Authority To All Executive Agencies For Acquisition Of Goods And Services To Fight Terrorism

• 1 Year Provision

– Agency Must Determine That Goods Or Services Relate To Defense Against Or Recovery From Terror Or WMD Attack – Same DHS Special Contracting Procedures Would Be Available To Other Agencies

• “Other Transactions”

– Transactions Other Than Contracts, Cooperative Agreements, Or Grants – Very Flexible Arrangements Typically For R&D Programs (i.e. CRADAs) – Exempt From Virtually All Procurement Statutes – Allows DHS To Acquire Cutting Edge Technology And Research Capabilities Without Requiring Extensive Government Data Rights

SAFETY ACT

• Support Anti-Terrorism By Fostering Effective

Technologies Act Of 2002

• Limits Third Party Liability For Contractors

Providing “Qualified Anti-Terrorism Goods Or Services” To The Government

• DHS Must Qualify Technology Under Specific

Factors For Liability Protection To Apply

• Presumption That Government Contractor

Defense Applies

– Shields Contractors From Liability To Third Party For Harm Caused By Product

• Caps Contractor’s Liability To Amount Of

Liability Insurance

• Allows Company To Move Action To Federal

Court And Limits Types Of Damages That Can Be Imposed

TECHNOLOGIES IN DEMAND

• Bio-Hazard Detection
• Decontamination Equipment
• Vaccines And Antidotes For NBCR Threats
• IT – Data Mining, Information Sharing, Etc.
• Cyber-security
• Biometrics
• Equipment/Techniques To Secure Shipping,

Transportation Water Systems, And Energy Plants

CONTACT INFORMATION: Robert Mangas (202) 828-2241 MangasR@dsmo.com David Nadler (202) 828-2281 NadlerD@dsmo.com

U.S. MARI TI ME SECURI TY U.S. MARI TI ME SECURI TY

I MPLI CATI ONS FOR I MPLI CATI ONS FOR CANADI AN I NDUSTRY CANADI AN I NDUSTRY

Jon Jon Bonsall Bonsall and Harlan Doliner and Harlan Doliner Keegan, Werlin & Pabian, LLP Keegan, Werlin & Pabian, LLP Boston, Massachusetts Boston, Massachusetts

CANADA’S RESPONSE CANADA’S RESPONSE

Transport Canada’s Requirements and Transport Canada’s Requirements and Procedures Parallel Those in the U.S. Procedures Parallel Those in the U.S. July 1, 2004: I mplement New Security July 1, 2004: I mplement New Security Requirements for Port Facilities and Requirements for Port Facilities and Certain Vessels Certain Vessels Working with the U.S. Coast Guard to Working with the U.S. Coast Guard to Harmonize the Marine Security Regimes Harmonize the Marine Security Regimes

U.S. MARI TI ME SECURI TY U.S. MARI TI ME SECURI TY RESPONSES RESPONSES

Post 9-11 Thrust – Strategic Planning

• Vulnerability Assessment for Critical

Assets − Identify Specific Threat − Analyze Nature of the Threat

• Prioritize Risks and Response Measures

U.S. MARI TI ME SECURI TY U.S. MARI TI ME SECURI TY RESPONSES (cont.) RESPONSES (cont.)

• U.S. Coast Guard
• Department of Homeland Security

(“DHS”)

• Maritimes Transportation Security

Act (“MTSA”)

• State Actions

U.S. Coast Guard

• Regulations for Facility Security Planning

(Final Rule: October 22, 2003) − December 31, 2003: Deadline for Submission of Facility/Vessel Security Plans − July 1, 2004: Vessels and Facilities Must be in Compliance − December 31, 2004: Enforcement of AIS Requirements

U.S. MARI TI ME SECURI TY U.S. MARI TI ME SECURI TY RESPONSES (cont.) RESPONSES (cont.)

• Applicability: Facilities on the water and

subject to certain 33 CFR Regulations

• Owner/Operator must conduct Facility

Security Assessment and develop Facility Security Plan

• Must identify a Facility Security Officer (FSO)
• Training, drill and exercise requirements
• Must define security measures for specific

activities

• Must develop security incident procedures
• Submit to Coast Guard for approval

U.S. MARI TI ME SECURI TY U.S. MARI TI ME SECURI TY RESPONSES (cont.) RESPONSES (cont.)

U.S. COAST GUARD U.S. COAST GUARD

RESOURCES SHI FTED TO RESOURCES SHI FTED TO PORT SECURI TY PORT SECURI TY

U.S. COAST GUARD (cont.) U.S. COAST GUARD (cont.)

• Unified Commands

Unified Commands

• Increased Monitoring at Sea

Increased Monitoring at Sea

• Increased Pre

Increased Pre-

• Arrival Inspections and

Arrival Inspections and Searches Searches

• Rigorous Application of Existing Laws,

Rigorous Application of Existing Laws, OPA 90, OPA 90, e.g. e.g.

U.S. DEPARTMENT OF U.S. DEPARTMENT OF HOMELAND SECURI TY HOMELAND SECURI TY

• USCG, I NS, FEMA, CUSTOMS, ETC. MOVED UNDER ONE

USCG, I NS, FEMA, CUSTOMS, ETC. MOVED UNDER ONE DEPARTMENT DEPARTMENT

• DHS HAS PRESI DENT’S EAR

DHS HAS PRESI DENT’S EAR

• I NCREASED FUNDI NG I N EXCHANGE FOR I NCREASED

I NCREASED FUNDI NG I N EXCHANGE FOR I NCREASED OVERSI GHT OVERSI GHT

• BETTER COORDI NATI ON & I NFORMATI ON SHARI NG

BETTER COORDI NATI ON & I NFORMATI ON SHARI NG

• MORE CONSI STENT RESPONSES

MORE CONSI STENT RESPONSES

• STI LL ON LEARNI NG CURVE

STI LL ON LEARNI NG CURVE

MARI TI ME TRANSPORTATI ON MARI TI ME TRANSPORTATI ON SAFETY ACT (MTSA) SAFETY ACT (MTSA)

ADAPT & I MPLEMENT I MO ADAPT & I MPLEMENT I MO REQUI REMENTS, “I SPS” REQUI REMENTS, “I SPS”

– – ASSESSMENTS/ “ ASSESSMENTS/ “AUDI TS”

AUDI TS”

• FOR VESSELS

FOR VESSELS

• FOR FACI LI TI ES

FOR FACI LI TI ES

• OF PLANS

OF PLANS

MTSA (cont.) MTSA (cont.)

SECURI TY PLANS FOR VESSELS AND SECURI TY PLANS FOR VESSELS AND FACI LI TI ES FACI LI TI ES

MTSA (cont.) MTSA (cont.)

“VESSELS” “VESSELS” include:

include:

• SOLAS PASSENGER

SOLAS PASSENGER

• FOREIGN COMMERCIAL >100 GRT

FOREIGN COMMERCIAL >100 GRT

• INSPECTED CARGO, INCLUDING BARGES

INSPECTED CARGO, INCLUDING BARGES

• COMMERCIAL FISHING

COMMERCIAL FISHING

• UNINSPECTED TOWING/HARBOR

UNINSPECTED TOWING/HARBOR ASSISTANCE ASSISTANCE

MTSA (cont.) MTSA (cont.)

• VESSEL SECURITY

VESSEL SECURITY

– – APPLICABILITY APPLICABILITY – – ASSESSMENTS ASSESSMENTS – – PLANS PLANS – – TRAINING AND DRILLS TRAINING AND DRILLS – – RECORD KEEPING RECORD KEEPING

MTSA (cont.) MTSA (cont.)

“FACILITIES” “FACILITIES” include those:

include those:

• HANDLING BULK AND SOLID HAZMATS

HANDLING BULK AND SOLID HAZMATS

• LNG, PETROLEUM AND LIQUID/GAS HAZMATS

LNG, PETROLEUM AND LIQUID/GAS HAZMATS

• RECEIVE VESSELS CERTIFIED FOR >150

RECEIVE VESSELS CERTIFIED FOR >150 PASSENGERS PASSENGERS

• RECEIVE INSPECTED CARGO VESSELS > 100 GT

RECEIVE INSPECTED CARGO VESSELS > 100 GT

• FLEET BARGES CARRY DANGEROUS CARGOES

FLEET BARGES CARRY DANGEROUS CARGOES

MTSA (cont.) MTSA (cont.)

“FACI LI TI ES” “FACI LI TI ES” ALSO I NCLUDE

ALSO I NCLUDE WATERFRONT WATERFRONT FACI LI TI ES/ I NFRASTRUCTURE SUCH AS: FACI LI TI ES/ I NFRASTRUCTURE SUCH AS: – – ANCHORAGES ANCHORAGES – – LI GHTERI NG ZONES LI GHTERI NG ZONES – – SAFETY/ SECURI TY ZONES SAFETY/ SECURI TY ZONES – – POWER PLANTS POWER PLANTS – – MARI NAS MARI NAS – – BRI DGES BRI DGES – – UTI LI TI ES UTI LI TI ES

MTSA (cont.) MTSA (cont.)

• FACILITY SECURITY

FACILITY SECURITY

– – APPLICABILITY APPLICABILITY – – ASSESSMENTS ASSESSMENTS – – PLANS PLANS – – TRAINING AND DRILLS TRAINING AND DRILLS – – RECORD KEEPING RECORD KEEPING

MTSA (cont.) MTSA (cont.)

STATE ACTI ONS STATE ACTI ONS

FI LLI NG THE GAPS FI LLI NG THE GAPS

HARBOR TRANSI T STANDARDS HARBOR TRANSI T STANDARDS

– – VESSEL TYPES VESSEL TYPES – – VESSEL EQUI PMENT VESSEL EQUI PMENT – – MASTER & CREW QUALS & TRAI NI NG MASTER & CREW QUALS & TRAI NI NG – – AUDI TI NG AUDI TI NG

STATE ACTI ONS STATE ACTI ONS

FI LLI NG THE GAPS FI LLI NG THE GAPS LOCALI ZED REQUI REMENTS: LOCALI ZED REQUI REMENTS:

• OPERATI ONS

OPERATI ONS

• SENSI TI VE

SENSI TI VE FACI LI TI ES/ “RECEPTORS” FACI LI TI ES/ “RECEPTORS”

Keegan, Werlin & Pabian, L.L.P.