Confused Seas

Navigating through U.S. Maritime Security Requirements

By Dennis L. Bryant

Senior Maritime Counsel

Holland & Knight, Washington, D.C.

The U.S. Maritime Transportation Security Act (MTSA) imposes various maritime security requirements on operating in waters subject to the jurisdiction of the United States. Maritime security regulations promulgated by the U.S. Coast Guard implement some (but not all) of the MTSA requirements and impose some additional requirements. In other words, Congress has imposed various requirements on the owners and operators of ships navigating waters of the United States and the U.S. Coast Guard has not provided full guidance on how to comply with those legislative mandates.

Foreign ships subject to the International Convention for the Safety of Life at Sea (SOLAS Convention) seeking to operate in waters subject to the jurisdiction of the United States will have to undertake their ship security assessments earlier than might be necessary under the ISPS Code. Likewise, they will have to prepare their ship security plan not later than December 29, 2003 (rather than July 1, 2004, as provided in the ISPS Code). All commercial ships will have to include in the vessel security plan submitted to the Coast Guard several items that were not listed by the agency in its July 1, 2003 interim rulemaking. As of July 1, 2004, all ships navigating U.S. waters must be operating in compliance with their vessel security plans. There are also differences between the implementation dates of the SOLAS Convention and the U.S. maritime security regulations for carriage of AIS equipment. Specific recommendations for navigating through these confused seas follow. Commence ship security assessment and ship security plan process immediately. Because the U.S. deadline for submittal of vessel security plans is six months sooner than the international deadline, the ship owner/operator must start the process immediately. Even if the process has been initiated, the timeline must be adjusted so that the plan is complete and ready for submittal to the U.S. Coast Guard on or before December 29, 2003.

Prepare a U.S. Appendix to plan

The owners and operators of ships subject to SOLAS Convention can comply with these unilateral requirements, in part, by adding a U.S. Appendix to their international ship security plan. The U.S. Appendix must contain the following elements, which are in addition to the international requirements:

• Identification of the Qualified Individual with authority to implement the ship security plan.

• Explanation of how the ship security plan is consistent with the national and area maritime transportation security plans.

• Identification of security measures available under contract or other means approved by the U.S. Coast Guard, necessary to deter to the maximum extent practicable a transportation security incident or substantial threat of such a security incident.

• Provisions for a comprehensive response to a transportation security incident, including notifying and coordinating with local, state, and federal authorities (including the Director of the Federal Emergency Management Agency), securing the ship, and evacuating persons on the ship.

• A copy of the ship security assessment.

Recommendations on how to deal with the five elements of the U.S. Appendix follow:

Qualified Individual

The maritime security regulations promulgated by the U.S. Coast Guard on July 1, 2003, indicate that the Coast Guard considers the term 'Qualified Individual' to be equivalent to 'ship security officer'. The regulations also provide that vessel security plans should include 24-hour contact information for the company security officer and the ship security officer. It is recommended that the U.S. Appendix to the ISPS Code ship security plan include 24-hour contact information for the company security officer and the ship security officer and also contain a statement indicating that these two officials, along with the master, have authority to implement the ship security plan, including the U.S. Appendix.

Consistency with National and Area Plans

The national and area maritime transportation security plans are currently under development. It is recommended that, until those plans are promulgated, the U.S. Appendix to the ISPS Code security plan include a provision to the following effect:

A subsequent iteration of this ship security plan will be made consistent with the U.S. national and area maritime transportation security plans after those plans have been promulgated. In the meantime, this ship will be operated consistent with applicable maritime transportation security requirements promulgated by the U.S. Coast Guard at the national or area (e.g., Captain of the Port) level.

Identification of Security Measures

The U.S. Coast Guard has not identified any specific security measures (other than those to be implemented by the company and the ship, under the ISPS Code), which should be included in the U.S. version of the ship security plan. Rather, the Coast Guard has broad authority under the MTSA and elsewhere to mandate additional specific security measures to meet identified threats. It is therefore recommended that the U.S. Appendix to the ISPS Code ship security plan include a provision to the following effect:

The master, the vessel security officer, and the company security officer each have authority to implement additional security measures that may be directed by the U.S. Coast Guard. As necessary, these additional security measures may be implemented by means of contract or other means approved by the U.S. Coast Guard.

Transportation Security

Incident Response

Maritime transportation security plans in the United States are to include provision for a comprehensive response to an emergency, including notifying and coordinating with local, state, and federal authorities (including the Director of the Federal Emergency Management Agency - FEMA - now called the Under Secretary of Homeland Security for Emergency Preparedness and Response), securing the vessel or facility, and evacuating vessel or facility personnel. It is recommended that the U.S. Appendix to the ISPS Code ship security plan include the following:

• A notification section (resembling the notification section found in vessel response plans - VRPs or shipboard oil pollution emergency plans - SOPEPs), but including names and telephone numbers of local, state, and federal government emergency response agencies and specifically including the Under Secretary of Homeland Security for Emergency Preparedness and Response. It should be noted that the main telephone number for the Under Secretary of Homeland Security for Emergency Preparedness and Response is (202) 566-1600. It is suggested that this telephone number be included in the notification section.

• A provision for securing the ship, addressing issues such as securing power and water; terminating cargo-handling operations; bunkering, and loading of stores; and doubling up of lines and other means of enhancing the ability of the ship to remain at its current location.

• A provision for evacuating all persons on the ship, including means for assembling in a safe location and accounting for all persons.

Ship Security Assessment

The ISPS Code requires owners and operators of ships subject to the SOLAS Convention to conduct a ship security assessment, in accordance with published guidelines, prior to development of the ship security plan. The ISPS Code appears to treat the ship security assessment as an internal company document, as the Code is silent regarding any use of the assessment other than preparation of the ship security plan. On the other hand, the maritime security regulations promulgated by the U.S. Coast Guard mandate that owners and operators of ships requiring U.S.-approved vessel security plans include a copy of the vessel security assessment with the vessel security plan when it is submitted for USCG review.

AIS

The SOLAS Convention, as amended, has a timeline for carriage of automatic identification system (AIS) equipment, depending on the type vessel and its size. The MTSA has a similar, but not identical, timeline. The maritime security regulations generally follow the SOLAS approach, but have special compliance dates for vessels transiting various vessel traffic service (VTS) areas. As most vessels engaged in international trade must be capable of entering all major ports, it is recommended that AIS be installed not later than July 1, 2004, unless an earlier installation date is mandated by SOLAS.

It is highly unfortunate that the U.S. Congress adopted a unilateral approach to addressing the multilateral problem of maritime security. The U.S. Coast Guard attempted to convince Congress that vigorous port state control efforts of international requirements would provide the nation (and the world) with a high level of security. Those efforts, though, fell on deaf ears, with Congress insisting on full compliance with the provisions of the MTSA. The owners and operators of ships operating in U.S. waters are stuck in the middle - with two masters issuing similar, but not identical, orders. The above recommendations are intended to address the gaps between the MTSA and the maritime security regulations promulgated by the U.S. Coast Guard.