USCG approval of Ship Security Plans of non-US SOLAS ships

Maritime Security Issues for Non-US Flag, SOLAS Ships Trading to US Ports
2 December 2003

1. ABS has, in recent months, received questions regarding the need to obtain US Coast Guard approval of Ship Security Plans for non-US flag SOLAS ships arriving at US ports in light of the US Maritime Transportation Security Act of 2002 (MTSA). You may have seen press articles or newsletters on the same issues with various opinions expressed.
   
   
2. ABS sought guidance and advice from the US Coast Guard on these issues. Our questions, and the replies from US Coast Guard Rear Admiral Larry Hereth, Director of Port Security in the Marine Safety, Security and Environmental Protection Directorate at US Coast Guard Headquarters, Washington, DC, are quoted below for your information:
   
   

Q1	Will the USCG review/approve Vessel Security Plans submitted by owners and operators of non-US ships that expect to call at US ports for compliance with US regulations promulgated under the MTSA, if so requested by the submitter?
A1	We have consistently taken the position that security plans for foreign flag SOLAS vessels do not have to be submitted to the Coast Guard. The regulations that we published on July 1st and then finalized last month make this clear. We have also gone on record with that position with our oversight committees in Congress. The Coast Guard fully intends to abide by the reciprocal obligations in SOLAS and the ISPS Code regarding ISSCs and security plans. The Coast Guard will not approve foreign SOLAS vessel security plans even if requested by the owners or operators. The US Administration is convinced that the SOLAS amendments and the ISPS Code provide an excellent framework for minimizing the threat of terrorism in the maritime community. The United States should not alone battle this world-wide threat. We need the help of the 102 signatories.
Q2	Does the USCG concur with the contention that a foreign ship owner that fails to comply with the unique security plan requirements of the MTSA runs the risk of not being able to limit its liability in the event of a terrorist attack involving the vessel in US waters because, under US law, the owner must show compliance with applicable laws and regulations before limitation of liability will be allowed"?
A2	Specifically, with regard to the limitation of liability issue, the MTSA and our regulations do not address third party liability. We have concluded, however, that the requirements of the MTSA are satisfied through participation in the international regime and that an owner's ability to limit liability is not in jeopardy by complying with the MTSA regulations. In our view, compliance with a plan will not only prevent a TSI (Transportation Security Incident) but also will allow an owner of a SOLAS vessel who has complied with the SOLAS amendments and the ISPS Code to limit liability. This can be accomplished by those responsible for security effectively implementing its plan so that the requirements of the ISPS Code are met. Of course, we reemphasize the point that this assumes the plan being implemented fully complies with the SOLAS amendments and the ISPS Code and takes into account the relevant provisions of Part B. We will be vigorously overseeing this implementation through a very active port state control regime and through our foreign country audit program.
Q3	Can the USCG advise us of the additional requirements for Vessel Security Plans in the MTSA in relation to those for the Ship Security Plan in the ISPS Code which would need to be included in the Ship Security Plan to comply with the requirements of the MTSA of 2002?
A3	An International Ship Security Certificate issued under the ISPS Code will be accepted as prima facie evidence that the ship is in compliance with the MTSA and its implementing regulations, with the exception of 33 CFR Parts 104.240, 104.255, 104.292, and 104.295, as appropriate. We will verify implementation of the ship security plan through our robust port state control regime.




3. In light of this information, and to facilitate the US Coast Guard’s oversight through port State control, it would appear prudent for owners of non-US flag SOLAS ships arriving at US ports to document in the Ship Security Plan, relative to the ISPS Code Parts A and relevant aspects of Part B, the additional requirements contained in 33 CFR Parts 104.240, 104.255, 104.292, and 104.295. In that regard, ABS’ assessment of the USCG requirements which exceed those of the ISPS Code are contained in the Annex.

Very Truly Yours,

Steve McIntyre
American Bureau of Shipping
Director, Regulatory Affairs

Annex
Requirements of US Code of Federal Regulations,
33 CFR Parts 104.240, 104.255, 104.292, and 104.295
Exceeding
ISPS Code Part A and the relevant aspects of Part B

1. Notification to the COTP when the ship complies with all measures called out for by MARSEC Level 2 or Level 3, as set by the particular port (33 CFR 104.240(b)(2)). ISPS Code requires notification when implementation of such measures has been initiated;
   
   
2. Compliance with all measures called out for MARSEC Level 2 or 3 must be achieved within 12 hours (33 CFR 104.240(b)(3)). ISPS Code does not specify a time limit;
   
   
3. At MARSEC Level 3, armed security personnel may be required (33 CFR 104.240(e)(3)), as opposed to additional security personnel referred to by the ISPS Code;
   
   
4. At MARSEC Level 3, the USCG may require the vessel to be screened for underwater devices (33 CFR 104.240(e)(4)), whereas the ISPS Code recommends that steps be taken to prepare for underwater inspection;
   
   
5. For all MARSEC Security Levels, , any coordinated security activity must be agreed and the Declaration of Security signed off prior to passenger embarkation/disembarkation and/or cargo transfer (33 CFR 104.255(b)(2)). The ISPS Code does not specify when such agreement/signing is to be accomplished;
   
   
6. Although not prohibited by the ISPS Code, the USCG may issue a continuous Declaration of Security for multiple visits under certain conditions (33 CFR 104.255(e));
   
   
7. For passenger vessels and ferries (excluding cruise ships), the operator may, as an alternative to identification checks and screening, implement other security provisions as specified by USCG regulations (33 CFR 104.292(b)). Some of these alternative security provisions are contained in Part B of the ISPS Code, but the Code does not recommend that alternatives can be implemented in lieu of passenger identification checks and screening;
   
   
8. Operators of passenger vessels and ferries must address the security measures for the interface of the vessel and the public access facility in accordance with the USCG approved Area Maritime Security Plan for that port (33 CFR 104.292(d));
   
   
9. Operators of "cruise" ships must, in addition to implementing the relevant provisions of 9.14 of Part B of the ISPS Code, carry out a search of selected areas prior to passenger embarkation and prior to sailing for all MARSEC Levels (33 CFR 104.295(a)(4)). This is required by the ISPS Code for Security Levels 2 and 3; and
   
   
10. Operators of "cruise" ships are to provide security briefs to all passengers when a MARSEC Level 3 is in effect (33 CFR 104.295(b)), whereas the ISPS Code does not require the briefing of passengers.