Canada - Marine Transportation Security Regulations

April 2004

Update June 2004:

Since publication of this article in April the Regulations have been finalised. They were published in their final form in the Canada Gazette of 2 June 2004.

It is understood that there are numerous changes in the prescriptive detail when comparing the proposed and finally-adopted versions of the Regulations. However the concept and substance of the regulations have remained unchanged – Canada continues to impose substantial portions of ISPS Part B in addition to Part A, and essentially mirrors the requirements of the US Coast Guard.

Despite the changes in detail, the following article, which was based on the draft Regulations, continues to be operative. Nonetheless, the detail of the finalised regulations must be scrutinized carefully by anyone to whom they may apply to ensure compliance by the 1 July 2004 deadline.

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Transport Canada on April 3, 2004 pre-published the government's proposed Marine Transportation Security Regulations. These are the Regulations, coming into force of which on July 1, 2004 is effectively certain, by which Canada will implement Part A (mandatory) and substantial portions of Part B (recommended) of the International Ship and Port Facility Security ("ISPS") Code, which was adopted internationally by way of December, 2002 amendments to the International Convention for the Safety of Life at Sea ("SOLAS"). Because of critical timing of the coming into force of these Regulations, it is expected that the 30-day deadline for receipt of comments will be very strictly observed. Clients who own or operate, or who supply goods or services to, shipping in any international or cross-border trade, although no doubt previously aware of the proposed Regulations in general terms, are encouraged to obtain and study the actual language, and extensive detail, without delay, so as to ensure that they are in a position to submit any comments which they may have within the mandatory 30-day time limit. 

Background 

It is generally accepted that the 2002 SOLAS amendments were adopted at the initiative of the United States, as the maritime transportation component of the international response to the 9/11 attacks. Being a treaty, and particularly an International Maritime Organization treaty, these amendments reflect the consensus position of multiple national governments, and to some extent are the product of compromise and concession implicit in the negotiation process. This is the reason for which only part A of the ISPS Code is mandatory; the remainder, part B, is said to be "for guidance".

 Economic and practical reality, however, supersedes multilateral diplomacy in many respects, particularly in the context of trade relations between Canada and the United States. The United States Coast Guard (the primary responsible agency in that country) on October 22, 2003 published its Maritime Security Rules, which generally speaking are the regulations with which ships trading into US ports will be required to comply, and which, again generally speaking, are more stringent in their detail than the mandatory requirements of the ISPS Code. Transport Canada, the primary responsible agency of the Canadian government, has taken considerable pains to harmonize the US and proposed Canadian regulatory regimes, in particular to secure the US Coast Guard's recognition that the just-published proposed Canadian Regulations provide the same effect as the US regulations. Transport Canada reports that this recognition has been provisionally granted, and that work is ongoing on a bilateral US-Canada agreement on mutual recognition of the two nations' marine transportation security regulations. 

The importance to Canadian industry of American acceptance of the Canadian maritime security regime cannot be overestimated. Canadian-flag ships trading into US ports would otherwise be subject to inspection, detention and potentially refusal of entry by US port state authorities. The cross-border carriage of passengers, both on ferries and on cruise vessels, must be accommodated without significant incremental formality, delay or cost. Ships calling at Canadian marine facilities risk inspection, detention or exclusion in American ports if those facilities' individual compliance with an acceptable security regime is not demonstrated to the satisfaction of American authorities. Cargo, particularly containerized cargo, discharged at Canadian ports for onward rail or truck carriage into the United States risks delay, and associated cost, at the land border if Canadian seaports are perceived not to provide an acceptable level of screening of incoming cargoes. In this last event, if worldwide exporters of goods into the United States market feel that shipping through Canada causes, or even risks causing, incremental delay or cost, those shippers will simply cease to use Canadian discharge ports. 

Overview of the Proposed Regulations 

The proposed Regulations are highly prescriptive, very lengthy and extremely detailed. In very general terms, they apply to ships (Part 2) and to marine facilities including port authorities (Part 3). They require designation, training and certification of people (such as vessel, company, facility and port security officers) and design, implementation, certification and audit of systems (including security assessments, security plans, drills and exercises). They contemplate three levels of security alert - MARSEC 1, 2 and 3. Level 1 operates at all times. Higher levels can be declared from time to time, either generally or with respect to specific places, facilities or ships, by the Minister of Transport. 

As regards ships, the proposed Regulations will apply to ocean-going ships, both Canadian and foreign flagged, which are required to comply with the SOLAS Convention. In general terms, these are ships over 500 GRT or which carry more than 12 passengers. In addition, the proposed Regulations will apply to Canadian flagged ships between 100 and 500 GRT, and in certain circumstances to Canadian tugs over 8 m in length. These "non-SOLAS" ships are an example of the proposed Canadian Regulation going further than the requirements of the mandatory portions of the ISPS Code. The proposed Regulations will not apply to pleasure craft, fishing vessels or federal government ships. Compliance with the proposed Regulations will be required of "operators", which is defined to include actual owners, beneficial owners, lessees or charterers who are "responsible for navigation" (presumed to mean bareboat charterers), and in some cases the master. There are additional provisions, including in some cases screening of passengers, which apply specifically to ferries and to cruise vessels. 

As regards marine facilities, the proposed Regulations will apply to any facility which "interfaces" with vessels. "Interface" includes the movement of goods or persons to or from the vessel, or the provision of services to or from the vessel. Although it is not clear whether simple berthage is an "interface", the conservative, and therefore prudent, view appears to be that it is. Ships are required to maintain a running record of the last 10 marine facilities at which they have called; it is believed that the underlying security certification and compliance record of each such facility, if deficient, will potentially "taint" the ship until the facility in question has fallen from the end of the running log. Marine facilities may, and in some situations must, have access-controlled areas and be in a position to monitor and restrict persons entering and leaving those areas. 

There are, again, additional requirements applicable to operators of ferry and cruise vessel terminals. These notes are able to give only the most general outline of the kinds of provisions which are to be found in the proposed Regulations. Any reader who has business in a Canadian seaport is advised to obtain and study the proposed Regulations without delay. Even if that reader is not personally required to obtain certification under the proposed Regulations, he or she will nonetheless "interface" with those who are, and will without question be affected by compliance issues arising under the new Regulations commencing July 1, 2004. 

 

With thanks to Stewart McKelvey Stirling Scales for supplying this information.