NVIC 12-04: Maritime security enforcement in U.S./Canadian boundary waters

Commandant 2100 Second Street, S.W. United States Coast Guard Washington, DC 20593-0001 Staff Symbol: G-MOC-2 Phone: (202) 267-2978 Fax: (202) 267-0506 Email: fldr-g-moc@comdt.uscg.mil COMDTPUB P16700.4 COMDTPUB P16700.4 NVIC 12-04 November 5, 2004 NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 12-04 Subj: MARITIME SECURITY COMPLIANCE AND ENFORCEMENT FOR U. S. / CANADIAN BOUNDARY AND COASTAL WATERS Ref: (a) Maritime Transportation Security Act (b) 33 CFR Chapter I, Subchapter H – Maritime Security (c) MOU Between the United States Coast Guard & Transport Canada Regarding Exchange of Personnel to Enhance Communication & Cooperation Between the Coast Guard & Transport Canada Regarding the Implementation of the Provisions of SOLAS Chapter XI-2 & the International Ship & Port Facility Security Code, dated June 30, 2004 (d) Commandant (G-MP) letter to Transport Canada (Marine Security) dated July 1, 2004 (e) Commandant (G-MP) letter to Transport Canada re: Intended Course of Action, dated June 18, 2004 (f) Safety of Life at Sea Convention, Chapter XI-2 (g) International Ship and Port Facility Security Code (h) Coast Guard Port State Control Targeting and Boarding Policy for Security and Safety, COMDTPUB P16700.4, NVIC 06-03, CH-1

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — PURPOSE. In order to comply with United States and international maritime security regulations and

standards, it is in the best interest of the U.S. to establish and implement maritime security procedures for vessels operating in the boundary waters of the U.S. and Canada. These procedures should: take into account security efforts made by Canada prior to the vessel arriving at a U.S. port; be consistent with U.S. maritime security regulations and implementation policies; address the management of routine and contingency marine security incidents and operations in North American waters; and include detailed targeting, boarding and enforcement procedures to ensure vessels DISTRIBUTION - SDL No. 141 a b c d e f g h I j k l m N o p q r s t u v w x y z A B * 1 1 1 1 1 C 1 1 1 1 D 1 1 E 1 1 F G H NON-STANDARD DISTRIBUTION: B:a Transport Canada, G-MOC, G-MO-1, G-MSE (1) NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 12-04 transiting boundary waters are in compliance with U.S. laws and regulations, and applicable international maritime security standards and policies.

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — ACTION. Port state control authorities of the U.S. Coast Guard and designated Port State

Control Officers (PSCOs) should: a. Bring this circular to the attention of appropriate individuals in the marine industry within their zones. The Coast Guard will distribute this NVIC by electronic means only. You may find this circular on the worldwide web at: http://www.uscg.mil/hq/g-m/nvic/index.htm. b. Follow the guidance in this circular during pre-arrival targeting and during port state ISPS/MTSA compliance examinations. c. Become familiar with the provisions of references (c) and (d) in order to effectively implement U.S. port state control activities involving maritime security, for vessels transiting the boundary waters of Canada and the U.S..

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — DIRECTIVES AFFECTED. The processes outlined in this Navigation and Vessel Inspection

Circular (NVIC) modify in part existing guidance provided by reference (h). These modifications primarily address U.S. jurisdictional issues during the performance of port state control actions involving maritime security upon vessels that transit boundary waters.

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — BACKGROUND. Canada and the United States have performed port state control since 1988 and

1994, respectively. Since then, both countries have seen a steady downward trend of substandard vessels during port state control examinations, largely due to port state control activities by both countries and other like-minded port States. Additionally, Canada’s and the United States’ port state control programs have expanded to incorporate enforcement of the Standards of Training, Certification and Watchkeeping Convention and the International Safety Management Code. The enforcement of these additional standards through port state control contributed to a further reduction of substandard vessels visiting both countries. The events of September 11, 2001, underscored the need for developing and incorporating security standards into port state control. a. Both Canada and the United States have worked diligently since 9/11 to develop comprehensive national and international security standards. b. In December 2002, the International Maritime Organization (IMO) adopted amendments to the International Convention for the Safety of Life at Sea (SOLAS): Chapter XI-2, “Special Measures to Enhance Maritime Security,” and the International Ship and Port Facility Security (ISPS) Code. c. In October 2003, the USCG published reference (b) issued under the authority of reference (a). The regulations in reference (b) pertaining to vessels closely parallel those developed at IMO. In December 2003, the USCG promulgated implementation policy on port state control targeting NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 12-04 and boarding for both safety and security examinations. Policy available on the internet at: http://www.uscg.mil/hq/g-m/nvic/03/NVIC%2006-03%20Ch-1%20Part1.pdf and at http://www.uscg.mil/hq/g-m/nvic/03/NVIC%2006-03%20Ch-1%20Part2.pdf. d. In June 2004, Canada published Marine Transportation Security Regulations under the authority of their Marine Transportation Security Act.

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — DISCUSSION. United States PSCOs will enforce applicable requirements of SOLAS Chapter XI­

2, the ISPS Code, and the maritime security regulations promulgated by the U.S. for all foreign vessels subject to SOLAS and all foreign cargo vessels greater than 100 gross register tons as outlined herein. This NVIC provides specific program guidelines for targeting vessels for examination, conducting vessel examinations, controlling substandard vessels, and tracking and reporting results of vessel examinations.

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — IMPLEMENTATION. The Coast Guard will enforce applicable domestic and international maritime

security requirements on foreign vessels in order to provide security for ships, ports, port infrastructure, and persons that work in the maritime industry. A vessel must have an approved and fully implemented security plan in place if it calls on U.S. ports. Vessel owners and operators, Administrations, Recognized Security Organizations, and port States each play an important role in ensuring that vessels meet the applicable maritime security standards. a. Canadian SOLAS/non-SOLAS Vessels. In accordance with reference (e), the Coast Guard determined that Canadian regulations applicable to Canadian vessels calling at United States ports provide a level of security equivalent to the requirements of SOLAS Chapter XI-2, the ISPS Code, and the regulations implementing the Maritime Transportation Security Act. The U.S. deems non-SOLAS Canadian vessels meet applicable requirements if they hold a ship security plan approved by Transport Canada. SOLAS Canadian vessels meet applicable requirements if they hold an International Ship Security Certificate. Reference (e) does not limit the Coast Guard in imposing control actions on Canadian vessels if the Coast Guard observes, or otherwise obtains, clear grounds to determine that a Canadian vessel does not comply with applicable security regulations. The COTP will immediately notify Transport Canada and the Coast Guard district commander when taking control action. b. Foreign-flag (i.e. other than U.S./Canadian) SOLAS Vessels. SOLAS Chapter XI-2, the ISPS Code, and MTSA apply to these vessels. The implementation policy includes four key pieces: risk-based targeting; reporting and notification; boarding procedures; and control and enforcement procedures.

(1) Risk-Based Targeting (Monitoring). T he Coast Guard will target vessels for ISPS/MTSA compliance examination, port state control safety and environmental compliance examinations, and security boardings in accordance with the guidance of reference (h). NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 12-04

(a) Great Lakes. MSD Massena will perform vessel targeting on vessels entering the Great Lakes, regardless of the vessel’s final Great Lakes destination. MSD Massena will use the PSC Safety and Environmental Protection Compliance Targeting Matrix and the ISPS/MTSA Security Compliance Targeting Matrix in reference (h). MSD Massena will target all vessels using Notice of Arrival information provided by the National Vessel Movement Center, the St. Lawrence Seaway Development Corporation, and the Canadian Coast Guard. The COTP or Officer-in-Charge, Marine Inspection (OCMI) at the various Ninth District ports of destination will target vessels for random compliance exams, in accordance with the guidance of reference (h). Commander, Ninth District (ole) will coordinate targeting for security boardings.

(b) Coastal Ports involving boundary waters. For coastal ports, the COTP or OCMI will continue to screen and target vessels transiting U.S./Canadian boundary waters and destined for port(s) within their AOR.

(2) Reporting and Notification.

(a) Targeting information. The Coast Guard may share targeting information with Canada for each vessel targeted for port state control (PI/PII and Canadian equivalent) and ISPS/MTSA compliance examination (ISPS I/ ISPS II and Canadian equivalent).

(b) Examination Results. The Coast Guard may share with, or receive from Transport Canada information regarding the results of port state control boardings performed on vessels in the U.S. and Canada. This cooperative step ensures that satisfactory examinations held in one country receive appropriate weight during subsequent visits to the other country. At the onset of this cooperative program, a boarding in Canada by Transport Canada, may allow the Coast Guard to downgrade the priority of a targeted examination (e.g. ISPS I to ISPS II, P I to P II, or P II to Non-Priority Vessel (NPV), but not ISPS II to ISPS III). A previous satisfactory examination in Canada may lead to a downgraded examination priority. Conversely, unsatisfactory examinations held in Canada would influence Coast Guard targeting decisions during a subsequent visit of a vessel to the United States. For example, the Coast Guard may add points during the targeting process because of an unsatisfactory examination of a vessel in Canada and target the vessel for follow-up examination during the its subsequent visit to the U.S. If Coast Guard members observe a Canadian compliance examination and the Coast Guard observers concur with the Canadian disposition, then the Coast Guard may consider that information favorably when prioritizing vessel examinations in U.S. waters. The Coast Guard shall communicate frequently with Transport Canada to coordinate activities and examinations.

(c) The Coast Guard will share MARSEC Level changes and the reason for the change with Canada so that application of that change may be considered for possible implementation throughout the boundary waters. NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 12-04

(3) Vessel Examination. The PSCO will determine vessel compliance with approved security provisions, including applicable requirements of ISPS Code Part A, taking into consideration the relevant guidance of ISPS Code Part B. The PSCO will observe onboard security measures, review security related certificates and records, and question ship’s personnel assigned security duties. Vessels shall comply with safety and environmental standards as described in Enclosure (3) to reference (h).

(a) For Great Lakes ports, the COTP or OCMI will follow the examination guidance in the subparagraphs below and in Enclosures (1) and (2), which modify guidance provided in Enclosure (3) to reference (h). MSD Massena will board and perform a pre-clearance examination of targeted vessels in accordance with Enclosure (1). Commander, Ninth Coast Guard District (m) will specify the location for the pre-clearance examination. PSCOs at U.S. destination ports will board and complete the ISPS/MTSA compliance items not checked during the pre-clearance examination by MSD Massena for vessels that successfully pass the pre-clearance examination(s). If a vessel fails the pre-clearance exam, the inspector shall immediately contact the Supervisor of MSD Massena. The Supervisor will immediately contact MSO Buffalo and Commander, Ninth Coast Guard District (m) for a determination on the appropriate actions to take. Actions may include denying entry of the vessel into U.S. waters, completing a full ISPS/MTSA compliance exam upon entry into U.S. waters, or allowing the vessel to proceed to its port of destination. Vessels targeted as an ISPS-I boarding that successfully complete a pre­ clearance exam may be downgraded to an ISPS-II boarding and, therefore, may be boarded at the dock. Vessels targeted as an ISPS-II boarding that successfully complete a pre-clearance exam shall remain an ISPS-II boarding.

(b) For coastal ports, the COTP or OCMI will examine vessels transiting U.S./Canadian boundary waters and destined for their port(s) in accordance with NVIC 06-03.

(c) For all ports, on-board review of Ship Security Plan. I f the only means to verify or rectify the non-compliance is to review the relevant portions of the ship security plan, the PSCO must obtain permission from the Master or the Administration as described in Paragraph 9.8.1 of ISPS Code, Part A before reviewing the plan. Reference (h) contains further guidance on determining whether a vessel meets applicable maritime security requirements.

(4) Control and Enforcement. I f there are clear grounds that the vessel does not meet the applicable requirements, the PSCO should take the following actions:

(a) For Great Lakes ports, if a vessel fails the pre-clearance exam in Canadian waters, the PSCO shall immediately contact the Supervisor of MSD Massena. The Supervisor will immediately contact MSO Buffalo and Commander, Ninth Coast Guard District (m) to determine the appropriate actions to take. Actions may include denying entry of the vessel into U.S. waters, completing a full ISPS/MTSA compliance exam upon entry into U.S. waters, or allowing the vessel to proceed to its port of destination. During the full examination conducted in U.S. waters, if the PSCO finds clear grounds that the vessel NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 12-04 does not meet the applicable requirements, the OCMI should impose appropriate control and/or enforcement actions as discussed in Enclosure (4) to reference (h). These may include inspection, delay, or detention of the ship; restriction of ship operation; expulsion of the ship from port; and/or lesser administrative or corrective measures.

(b) For coastal ports, the OCMI should impose appropriate control and/or enforcement actions as discussed in Enclosure (4) to reference (h) when clear grounds exist that the vessel does not meet the applicable requirements. These may include inspection, delay, or detention of the ship; restriction of ship operation; expulsion of the ship from port; and/or lesser administrative or corrective measures. c. Foreign-flag (other than U.S./Canadian Vessels) Non-SOLAS/Non-Signatory Vessels. Ships of non-SOLAS parties and non-SOLAS vessels subject to MTSA shall not be given more favorable treatment than given to vessels from signatory countries. The standards of the MTSA, 33 CFR Parts 101 and 104, and reference (h) apply to these vessels and the comments in paragraph 6.b. above apply. The following additional notes apply to such vessels entering the Great Lakes:

(1) A non-SOLAS vessel from a signatory country must submit security plans for review by the U.S., unless the Administration has reviewed and approved its security plan, verified its implementation, and issued the vessel an ISSC. MSD Massena and the U.S. destination port will verify the plan as discussed in paragraph C.8 of Enclosure (3) to reference (h).

(2) A vessel from a non-signatory country must submit security plans for review by the U.S., unless the vessel complies with an alternate security program approved by the U.S. MSD Massena and the U.S. destination port will verify the plan as discussed in paragraph C.8 of Enclosure (3) to reference (h).

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — INFORMATION SECURITY. Security assessments, security plans and their amendments contain

information that, if released to the general public, would compromise the safety or security of the port and its users. In the United States, this information is known as Sensitive Security Information (SSI). The Transportation Security Administration (TSA) governs SSI through 49 CFR 1520, titled “Protection of Sensitive Security Information.” These regulations allow the Coast Guard to maintain national security by sharing sensitive but unclassified information with various vessel and facility personnel without releasing SSI to the public. Vessel and facility owners and operators must follow procedures stated in the 49 CFR 1520 for the marking, storing, distributing and destroying of SSI material, which includes many documents that discuss screening processes and detection procedures. a. Under these regulations, only persons with a “need to know,” as defined in 49 CFR 1520.11, will have access to security assessments, plans and amendments. Vessel and facility owners or operators must determine which of their employees need to know which provisions of the security plans and assessments. The owners and operators must then restrict dissemination of these documents accordingly. The Coast Guard will not disclose SSI material under the Freedom of Information Act (FOIA) under almost all circumstances. NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 12-04 b. Any person or entity releasing SSI material to unauthorized persons must file a report with the Department of Homeland Security. The releasing of SSI material to an unauthorized person subjects the releaser to a civil penalty.

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — DISCLAIMER. While the guidance contained in this document may assist the industry, the public, the

USCG, and other governmental regulators in applying statutory and regulatory requirements, this guidance is not a substitute for applicable legal requirements, nor is it in itself a rule. Thus, it is not intended to nor does it impose legally binding requirements on any party, the USCG, other government agencies, and States, or the regulated community.

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — CHANGES. The Coast Guard will post this NVIC on the web at www.uscg.mil/hq/g­

m/nvic/index00.htm and post changes as necessary. The Coast Guard will issue and post time- sensitive amendments as “urgent change” messages on the USCG website for the benefit of industry. Please submit any suggestions for improvement of this circular in writing to Commandant (G-MOC).

Maritime security compliance and enforcement for U.S./Canadian boundary and coastal waters. — FORMS AVAILABILITY. Forms can be retrieved at http://cgweb.comdt.uscg.mil/g-mp/g-mp.htm

and reproduced locally. T. H. GILMOUR Rear Admiral, U. S. Coast Guard Assistant Commandant for Marine Safety, Security, and Environmental Protection Encl: (1) ISPS Code Compliance, Great Lakes (2) Commandant (G-MP) letter to Transport Canada (Marine Security) dated July 1, 2004