Public Safety and Emergency Preparedness Canada US ... Security all slides.pdf · • Relocation of...

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Public Safety and Emergency Preparedness Canada

&US Department of Homeland Security

Implications For Business In Our NewSecurity Conscious Environment

Wednesday, February 25, 2004

www.mcmillanbinch.com

http://www.statecapitallaw.org/default.asp

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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.

http://www.mcmillanbinch.com/default.aspx

http://www.dicksteinshapiro.com/Default.asp


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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 arelationship 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

http://www.ridgewoodcameraclub.org/Photo Gallery/Twin-Towers.jpg


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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


http://www.dhs.gov/dhspublic/index.jsp

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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

24Safety and Emergency Preparedness Canada

OverviewBy

Sarah DiamondTel: 416.865.7223

[email protected]


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National Security: Pre 9/11

Dept.Justice

TransportCanada

RCMP

CSIS

CSC

NPB

SolicitorGeneral

OCIPEP

NationalDefence

CIC CCRA


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National Security: Post 9/11

New CabinetCommittee

CCRA

NationalSecurity

Corrections

Policing Crimina lJustice

DepartmentPSEP

RCMP CSIS CSC NPB CFC CBSA

MinisterPSEP

TransportCanada

NationalSecurityAdvisor

StandingHouse

Committee

Government architecture in this area is constantly evolving. This organizational 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)

29Programs and Related Requirements Arising from Creation and Mandate of PSEP

Overview of the Impact of PSEP

and

Related Vendor IssuesBy

Bill HearnTel: 416.865.7240

[email protected]


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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

over $20 billion in annual economic activity and 250,000 direct and indirect jobs

– 3.5 million containers brought into Canada, but only 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 operating 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 targetorganizations must be nimble

2. Enrol in trade facilitation programsNEXUS = people (ground)CAN-PASS = people (air) FAST = goodsanticipate challenges (e.g. union/employee reaction)

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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 requiredNon-FAST: 1 hr prior to arrival

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Certify as requirede.g.: ISPS Code

compliance required by July 1, 2004 for all port facility operators and ship owners

Cause all in supply chain to comply and certifye.g.: representations & warranties and tiered remedies (including indemnities) regarding security compliance and certification

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4. Seize Business Opportunitiesmassive government expenditures in Canada and the USsearch out request for proposals (RFPs) in order to be a prime government supplierprovide 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 NewSecurity Conscious Environment

Wednesday, February 25, 2004

www.mcmillanbinch.com

MBDocs 1253046


U.S. DEPARTMENT OF HOMELAND SECURITYStructure, Priorities, and Procurement Issues

Rob Mangas and Dave NadlerDickstein, Shapiro, Morin & Oshinsky

McMillan Binch Conference CentreToronto, OntarioFebruary 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 DefenseCIADepartment of Justice/FBIDepartment of Health and Human ServicesDepartment 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


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”

operational 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 terminaloperators; foreign manufacturers and warehouses

Non-Intrusive Inspection (NII) technologies

Automated Commercial Environment (ACE)

NEW TECHNOLOGYWhat 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 OperationalEnd-Users and Conventional Missions

• Border and Transportation Security

• Emergency Preparedness and Response

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


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 CongressHot 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) [email protected]

David Nadler(202) [email protected]

U.S. MARITIME SECURITYU.S. MARITIME SECURITY

IMPLICATIONS FORIMPLICATIONS FOR

CANADIAN INDUSTRYCANADIAN INDUSTRY

Jon Jon BonsallBonsall and Harlan Doliner and Harlan Doliner Keegan, Werlin & Pabian, LLPKeegan, Werlin & Pabian, LLP

Boston, MassachusettsBoston, Massachusetts

CANADA’S RESPONSECANADA’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: Implement New Security July 1, 2004: Implement New Security Requirements for Port Facilities and Requirements for Port Facilities and Certain VesselsCertain Vessels

Working with the U.S. Coast Guard to Working with the U.S. Coast Guard to Harmonize the Marine Security RegimesHarmonize the Marine Security Regimes

U.S. MARITIME SECURITY U.S. MARITIME SECURITY RESPONSESRESPONSES

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. MARITIME SECURITY U.S. MARITIME SECURITY 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


• 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. COAST GUARDU.S. COAST GUARD

RESOURCES SHIFTED TO RESOURCES SHIFTED TO PORT SECURITYPORT SECURITY

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

•• Unified CommandsUnified Commands•• Increased Monitoring at SeaIncreased Monitoring at Sea•• Increased PreIncreased Pre--Arrival Inspections and Arrival Inspections and

SearchesSearches•• Rigorous Application of Existing Laws, Rigorous Application of Existing Laws,

OPA 90, OPA 90, e.g.e.g.

U.S. DEPARTMENT OFU.S. DEPARTMENT OFHOMELAND SECURITYHOMELAND SECURITY

•• USCG, INS, FEMA, CUSTOMS, ETC. MOVED UNDER ONE USCG, INS, FEMA, CUSTOMS, ETC. MOVED UNDER ONE DEPARTMENT DEPARTMENT

•• DHS HAS PRESIDENT’S EARDHS HAS PRESIDENT’S EAR

•• INCREASED FUNDING IN EXCHANGE FOR INCREASED INCREASED FUNDING IN EXCHANGE FOR INCREASED OVERSIGHTOVERSIGHT

•• BETTER COORDINATION & INFORMATION SHARINGBETTER COORDINATION & INFORMATION SHARING

•• MORE CONSISTENT RESPONSESMORE CONSISTENT RESPONSES

•• STILL ON LEARNING CURVESTILL ON LEARNING CURVE

MARITIME TRANSPORTATIONMARITIME TRANSPORTATIONSAFETY ACT (MTSA)SAFETY ACT (MTSA)

ADAPT & IMPLEMENT IMO ADAPT & IMPLEMENT IMO REQUIREMENTS, “ISPS”REQUIREMENTS, “ISPS”

–– ASSESSMENTS/ “ASSESSMENTS/ “AUDITS”AUDITS”

•• FOR VESSELSFOR VESSELS

•• FOR FACILITIESFOR FACILITIES

•• OF PLANSOF PLANS

MTSA (cont.)MTSA (cont.)

SECURITY PLANS FOR VESSELS AND SECURITY PLANS FOR VESSELS AND FACILITIESFACILITIES


“VESSELS”“VESSELS” include:include:

•• SOLAS PASSENGERSOLAS PASSENGER•• FOREIGN COMMERCIAL >100 GRTFOREIGN COMMERCIAL >100 GRT•• INSPECTED CARGO, INCLUDING BARGESINSPECTED CARGO, INCLUDING BARGES•• COMMERCIAL FISHINGCOMMERCIAL FISHING•• UNINSPECTED TOWING/HARBOR UNINSPECTED TOWING/HARBOR

ASSISTANCEASSISTANCE


•• VESSEL SECURITYVESSEL SECURITY–– APPLICABILITYAPPLICABILITY

–– ASSESSMENTSASSESSMENTS

–– PLANSPLANS

–– TRAINING AND DRILLSTRAINING AND DRILLS

–– RECORD KEEPINGRECORD KEEPING


“FACILITIES”“FACILITIES” include those:include those:

•• HANDLING BULK AND SOLID HAZMATSHANDLING BULK AND SOLID HAZMATS•• LNG, PETROLEUM AND LIQUID/GAS HAZMATSLNG, PETROLEUM AND LIQUID/GAS HAZMATS•• RECEIVE VESSELS CERTIFIED FOR >150 RECEIVE VESSELS CERTIFIED FOR >150

PASSENGERSPASSENGERS•• RECEIVE INSPECTED CARGO VESSELS > 100 GTRECEIVE INSPECTED CARGO VESSELS > 100 GT•• FLEET BARGES CARRY DANGEROUS CARGOESFLEET BARGES CARRY DANGEROUS CARGOES


“FACILITIES”“FACILITIES” ALSO INCLUDEALSO INCLUDE WATERFRONT WATERFRONT FACILITIES/INFRASTRUCTURE SUCH AS:FACILITIES/INFRASTRUCTURE SUCH AS:

–– ANCHORAGESANCHORAGES

–– LIGHTERING ZONESLIGHTERING ZONES

–– SAFETY/SECURITY ZONESSAFETY/SECURITY ZONES

–– POWER PLANTSPOWER PLANTS

–– MARINASMARINAS

–– BRIDGESBRIDGES

–– UTILITIESUTILITIES


•• FACILITY SECURITYFACILITY SECURITY–– APPLICABILITYAPPLICABILITY

–– ASSESSMENTSASSESSMENTS

–– PLANSPLANS

–– TRAINING AND DRILLSTRAINING AND DRILLS

–– RECORD KEEPINGRECORD KEEPING


STATE ACTIONSSTATE ACTIONSFILLING THE GAPSFILLING THE GAPS

HARBOR TRANSIT STANDARDSHARBOR TRANSIT STANDARDS

–– VESSEL TYPES VESSEL TYPES

–– VESSEL EQUIPMENTVESSEL EQUIPMENT

–– MASTER & CREW QUALS & TRAININGMASTER & CREW QUALS & TRAINING

–– AUDITINGAUDITING

STATE ACTIONSSTATE ACTIONSFILLING THE GAPSFILLING THE GAPS

LOCALIZED REQUIREMENTS:LOCALIZED REQUIREMENTS:

•• OPERATIONSOPERATIONS

•• SENSITIVE SENSITIVE FACILITIES/“RECEPTORS”FACILITIES/“RECEPTORS”

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

U.S. DEPARTMENT OF HOMELAND SECURITYStructure, Priorities, and Procurement Issues

Rob Mangas and Dave NadlerDickstein, Shapiro, Morin & Oshinsky

McMillan Binch Conference CentreToronto, OntarioFebruary 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 DefenseCIADepartment of Justice/FBIDepartment of Health and Human ServicesDepartment of Energy

DHS FUNCTIONAL ORGANIZATION

“Entry” Security• People • Goods

Infrastructure Protection• Physical Structures • Cybersecurity

• Borders and Ports


• Public Communication

• Aviation • Rails • Mass Transit

Health Security

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

FUNDING PRIORITY

Entry Security

Infrastructure Protection


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”

operational 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 terminaloperators; foreign manufacturers and warehouses

Non-Intrusive Inspection (NII) technologies

Automated Commercial Environment (ACE)


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 OperationalEnd-Users and Conventional Missions

• Border and Transportation Security

• Emergency Preparedness and Response

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