Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on enhancing ship and port facility security

(presented by the Commission)

EXPLANATORY MEMORANDUM

GENERAL INTRODUCTION

The International Maritime Organisation (IMO) began work on maritime security in February 2002. The Commission therefore considered it preferable to await the outcome of the discussions within the IMO rather than develop unilateral initiatives.

On 12 December 2002, after a five-day Diplomatic Conference, IMO adopted an amendment to the International Convention for the Safety of Life at Sea (SOLAS), and in particular a new chapter entitled "Special measures to enhance maritime security", and an International Ship and Port Facility Security (ISPS) Code .

The purpose of these instruments is to take maritime security issues into account in connection with shipping and port facilities. [1]

[1] "Port facilities" being defined as locations where the ship/port interface takes place.

IMO's work on maritime security is confined to ships to and port facilities which represent the ship/port interface. The Commission will be presenting a legislative initiative on security in Community ports.

It should be noted that this concerns all of the Member States as flag States and thirteen of them as port States.

The amendment to the SOLAS Convention and Part A of the ISPS Code consist entirely of mandatory provisions; Part B of the ISPS Code is made up of recommendations which the Contracting Governments are requested to implement. [2]

[2] These provisions apply to passenger ships, cargo ships of 500 gross tonnage and upwards, and mobile offshore drilling units, and to port facilities serving international traffic.

The main provisions of these international instruments are as follows.

The mandatory provisions (the amendment to the SOLAS Convention and Part A of the ISPS Code) are indispensable to enhancing maritime security.

They concern a requirement for ships to be permanently marked with their identification number and fitted with an automatic identification system (AIS) and a ship security alert system for spreading the alarm in the event of hostile action against the ship, and for them to be issued with a continuous synopsis record (CSR), a kind of identity document recording the history of the ship.

They also provide for a set of active and passive security measures based on three security levels (normal, increased, high), their implementation being linked to an overall risk assessment. They include the requirement to appoint people responsible for carrying them out (ship, company and port facility security officers), to prepare a security plan geared to the risk assessment (ship and port facility) and to issue an international ship security certificate, as well as arrangements for personnel training and exercises.

Provision is also made, depending on the potential risk to persons, property and the environment, for the possibility of drawing up a declaration of security between the ship and the host port facility to define the responsibilities of each. Another possibility is that a ship in port or about to enter port can be inspected by the port State authorities for security reasons. The duties and obligations of the various players (Contracting Governments, companies, ships' masters and port facilities) are clearly defined.

Part B of the ISPS Code consists of very detailed recommendations intended to provide guidance in implementing the mandatory provisions.

The Contracting Governments are responsible in particular for designating recognised security organisations (responsible for providing security services to port facilities and ships) and national or regional maritime security contact points, to manage the security levels and to exchange information on security matters. This part of the ISPS Code also contains detailed proposals for both ships and port facilities, regarding assessment of the risks and the security plans to be prepared, and personnel training and exercises. It also shows how and in what cases a declaration of security should be drawn up between the ship and the host port facility.

***

The amendment to the SOLAS Convention and the ISPS Code must enter into force on 1 July 2004. This leaves very little time to complete all the necessary preparations, so some measures will have to be implemented in advance.

These international instruments contain provisions the scope of which has to be defined at Community level. Their application is confined to international shipping, while security has to be seen from a more global perspective that therefore has to embrace certain national modes of transport as well, though maintaining a gradation according to the nature of the risks and their consequences.

Certain provisions of the December 2002 amendment to the SOLAS Convention affect instruments which already form part of Community law, i.e.:

- amendments to Regulation 19V of the SOLAS Convention, "Carriage requirements for shipborne navigational systems and equipment". These rules relating to the automatic identification system (AIS) will have to be adapted pursuant to Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system;

- amendments to Regulations 3 and 5 of Chapter XI of the SOLAS Convention, concerning the identification number and synopsis record of ships. These rules will be taken into account in particular pursuant to Council Directive 95/21/EC of 19 June 1995 concerning port State control of shipping.

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The Commission therefore considers that steps need to be taken to:

- guarantee and monitor at Community level achievement of the main objective of these international instruments, i.e. enhancing ship and port facility security;

- ensure harmonised implementation and equal conditions throughout the European Union for access to and monitoring of markets and activities related to the maritime sector.

Accordingly, the Commission:

- will adapt the abovementioned Directives 2002/59/EC and 95/21/EC following the committee procedure, so as to integrate into them relevant provisions of the new Regulations in the SOLAS Convention in addition to those in Chapter XI-2 of SOLAS and the ISPS Code,

- proposes that the European Parliament and the Council should adopt as soon as possible this Regulation on enhancing ship and port facility security, which transposes Chapter XI-2 of the SOLAS Convention and the ISPS Code, provides a basis for their harmonised interpretation and implementation, as well as Community monitoring, and extends some of their provisions to domestic maritime traffic.

***

NEED FOR A REGULATION

- Implementation of the amendment to the SOLAS Convention and the ISPS Code may vary from one Member State to another since these instruments contain some provisions which though mandatory are open to interpretation and adaptation, and others which are recommendations. There is a need for uniform implementation and uniform monitoring of ships from third countries visiting our shores and putting into our ports.

- Member States may adopt national measures of varying scope and applicable on different dates. Failure to harmonise these measures would be potentially damaging to the shipping industry. It could provoke imbalances in the level of security sought and might easily lead to distortions of competition between the Member States.

- The objective of enhancing maritime security cannot be achieved by measures confined to international shipping alone; there have to be measures covering domestic traffic as well, and only action at the Community level can guarantee this in a harmonised way.

- Finally, provisions need to be adopted which will encourage Member States to promote scheduled maritime traffic within the Community under satisfactory security conditions on fixed routes using dedicated port facilities.

GENERAL PRINCIPLES OF THE PROPOSAL

- As regards achieving the objective of providing a basis for harmonised interpretation and implementation as well as Community monitoring of the special measures to enhance maritime security, by amending the SOLAS Convention and introducing the ISPS Code, the Regulation:

- makes mandatory certain provisions of Part B of the ISPS Code, which have the status of recommendations, in order on the one hand to raise the level of security sought and on the other hand to avoid variations in interpretation from one Member State to another. These provisions relate to the security plans and assessments of ships and port facilities, certain responsibilities of the Contracting Governments in the security field, and the company's obligation to supply the master with information on the ship's operators;

- calls upon Member States to conclude, for the purpose of promoting intra-Community short-sea traffic and in the light of regulation XI-2/11 of the SOLAS Convention, the agreements on security arrangements for scheduled maritime traffic within the Community on fixed routes using dedicated port facilities, without this compromising the general level of security sought. It puts in place a system for checking conformity prior to signature of these agreements;

- details the arrangements to be made by Member States for ports only occasionally serving international traffic;

- establishes the system of security checks prior to the entry of ships of whatever origin into a Community port, as well as that of security checks in the port;

- calls for a single national authority responsible for the security of ships and port facilities, and a timetable for early implementation of some of the measures it contains;

- provides for a process of inspections to check the arrangements for monitoring the implementation of national plans adopted pursuant to it;

- entrusts to the Agency set up by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency [3] the role of assisting the Commission in the performance of its tasks;

[3] OJ L 208, 5.8.2002, p.1.

- lays down a procedure for the adaptation of its provisions.

- The Commission considers that the overall objective of maritime security can be reached only by applying certain measures to domestic shipping. It considers that in order to maintain uniform conditions of access to the market, these measures have to be taken uniformly in all the Member States, while ensuring that the measures are proportional to the potential risks. Passenger transport therefore takes priority but this must not be allowed to place excessive constraints on scheduled maritime services, provided that the general level of security sought is not compromised. Accordingly, the Regulation:

- extends all of the provisions of Chapter XI-2 of the SOLAS Convention and of Part A of the ISPS Code to include passenger ships engaged on domestic voyages during which they are required to be more than twenty nautical miles from the coast, and extends the provisions of the same texts relating to the making of security assessments, the preparation of security plans and the appointment of company and ship security officers to include other ships engaged in domestic traffic;

- establishes the security arrangements for passenger ships engaged on domestic voyages on scheduled lines, during which they are required to be more than twenty nautical miles from the coast;

- provides for possible exemption, under strict and constantly verifiable conditions, from the obligation of security checks prior to entry into a port for ships engaged on a scheduled service within a Member State or between two or more Member States.

- Legal considerations

The Commission proposes to base the Regulation on Article 80(2) of the EC Treaty, without prejudice to Member States' national security legislation and any measures that might be taken on the basis of Title VI of the Treaty on European Union.

SPECIAL CONSIDERATIONS

Article 1:

This article sets out the objectives of the Regulation.

Article 2:

This article contains the definitions of the main terms used in the Regulation. Most of them are based on those used in the special measures to enhance maritime security adopted by the IMO Diplomatic Conference on 12 December 2002, amending the SOLAS Convention, and in the ISPS Code.

Article 3:

This article defines the common measures and the scope of the Regulation.

The special measures to enhance maritime security amending the SOLAS Convention and the ISPS Code apply to the following types of ships engaged on international voyages:

- passenger ships, including high-speed passenger craft;

- cargo ships, including high-speed craft, of 500 gross tonnage and upwards;

- mobile offshore drilling units;

- port facilities serving international traffic.

This Regulation extends all of the measures in the IMO documents to passenger ships engaged on domestic voyages during which they are required to be more than twenty nautical miles from the coast, and to the port facilities serving them.

It also extends the provisions of the special measures to enhance maritime security in the SOLAS Convention and the ISPS Code concerning the making of security assessments, the preparation of security plans and the appointment of company and ship security officers to include other ships engaged in domestic traffic (passenger ships, including high-speed passenger craft; cargo ships, including high-speed craft, of 500 gross tonnage and upwards) and to the port facilities serving them.

Part B of the ISPS Code contains a set of recommendations for the implementation of IMO's mandatory instruments (special measures to enhance maritime security amending the SOLAS Convention and Part A of the ISPS Code), of which Member States must take the utmost account.

To raise the level of security of shipping in the Community and to avoid variations in interpretation from one Member State to another, which could cause, amongst other things, distortions of competition, this Regulation is intended to make the following sections of Part B of the ISPS Code mandatory:

- 1.12 on continuous checking of the relevance of ship security plans, and their revision;

- 1.16 on the security assessments of port facilities, and their periodical revision;

- 4.1 on protection of the confidentiality of security plans and assessments;

- 4.5 on the minimum competency of the recognised security organisations which can be authorised by Member States to assess the security of port facilities and, on behalf of the competent administrations of the Member States, to approve and verify the ship security plans and certify ships' conformity with regard to security;

- 4.8 on the establishment by Member States of the security level for ships and port facilities;

- 4.14, 4.15 and 4.16 on the establishment of central or regional contact points with regard to port facility security plans and the security information to be supplied to ship, company and port facility security officers;

- 4.18 on identification documents for government officials appointed to inspect security measures;

- 4.24 on ships' application of the safety measures recommended by the State in whose territorial waters they are sailing;

- 4.28 on observance of the new requirements generated by security tasks when ships' crews are selected;

- 4.41 on the communication of information between States when entry into port is denied or the ship is expelled from port;

- 4.45 on the treatment of ships from a State which is not party to the Convention;

- 6.1 on the company's obligation to furnish the master with information on the ship's operators;

- 8.3 to 8.10 on the minimum standards to be observed with regard to assessment of the security of the ship;

- 9.2 on the minimum standards to be observed with regard to assessment of the ship security plan;

- 13.6 and 13.7 on the frequency of security training, drills and exercises for ships' crews and for company and ship security officers;

- 15.3 and 15.4 on the minimum standards to be observed with regard to the assessment of the security of a port facility;

- 16.3 and 16.8 on the minimum standards to be observed with regard to the security plan of a port facility;

- 18.5 and 18.6 on the frequency of security training and exercises in port facilities and for port facility security officers.

Article 4:

This article confirms the obligation for each Member State to communicate to the International Maritime Organisation the information requested under regulation 13 (communication of information) of the special measures to enhance maritime security in the SOLAS Convention, and creates this obligation towards the Commission and the other Member States. This information concerns the national authorities responsible for ship and port facility security, the existence of approved port facility security plans, the contact points available at all times to receive and act upon the various types of alert and maritime security information and to give appropriate advice or assistance, the authorisation of recognised security organisations, agreements on other security arrangements and any equivalent security arrangements.

Article 5:

This article gives Member States the possibility of concluding amongst themselves the bilateral or multilateral agreements provided for in regulation 11 (concerning alternative security arrangements) of the special measures to enhance maritime security in the SOLAS Convention, and in particular those necessary for promoting scheduled short-sea shipping within the Community on fixed routes between port facilities located within their territories.

The third indent of paragraph 2 allows the Commission to evaluate the draft agreements before they are concluded, under the safeguard procedure.

Paragraph 4 allows Member States to adopt security arrangements for passenger ships engaged on a scheduled domestic service during which they are required to be more than twenty nautical miles from the coast, and for the port facilities serving them, without the general level of security being compromised. In the inspections provided for in article 10 the Commission will assess the monitoring of these measures.

Article 6:

This article makes provision for port facilities in ports which only occasionally serve international maritime traffic, where it might be disproportionate to apply all the security rules in this Regulation on a permanent basis. In the light of the security assessments it will carry out, each Member State will draw up a list of the ports concerned and alternative measures providing an adequate level of protection. It will communicate all this information to the Commission, and only the list to the other Member States.

Article 7:

This article introduces the obligation for any ship declaring its intention to enter a port of a Member State to provide in advance the information concerning its International Ship Security Certificate and the security level it is currently operating and the level at which it has operated previously, as well as any other practical security-related information.

The article requires Member States to appoint a "competent authority for port security" with the task of coordinating, for each Community port, the application of the security measures laid down by this Regulation for ships and port facilities.

Finally, Member States are required to keep a record of the procedure followed for each ship.

Article 8:

This article provides for the possibility of exempting from these security checks prior to entry into a port ships engaged on scheduled services within a Member State or between two or more Member States. This exemption is tied to a requirement for the shipping company to keep at the disposal of the authorities of the Member States concerned a list of the ships involved and all the information normally required in each case.

The list of companies and ships involved is sent to the Commission by each Member State concerned.

Article 9:

Security checks in port are normally carried out by the competent security authorities of the Member States.

However, the presence of the international ship security certificate on board the ship may also be checked by the port State control inspectors as provided for by Council Directive 95/21/EC of 19 June 1995 concerning port State control, [4] as amended by Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001. [5]

[4] OJ L 157, 7.7.1995, p.1.

[5] OJ L 19, 22.1. 2002, p.17.

This article therefore provides for complementarity of action by the administrations concerned when different administrations are involved.

Article 10:

This article sets out Member States' obligations as regards administration, monitoring and provision of resources necessary for achieving the objectives of the Regulation, and requires them to adopt a national plan for implementing its provisions.

It provides for the setting up of a single national authority responsible for ship and port facility security, which will be the Commission's contact point for implementation of the Regulation.

In paragraph 3 it sets out a timetable for the early implementation of certain measures, in accordance with resolution 6 adopted by the IMO Diplomatic Conference on 12 December 2002, in order for the security system to be up and running by 1 July 2004, the date fixed by IMO. This timetable covers the following measures:

- the appointment of a single national authority, as described in the previous paragraph, by 1 January 2004;

- the making of ship and port facility security assessments and the appointment of ship, company and port facility security officers by 1 March 2004;

- the approval of the ship and port facility security plans by 1 May 2004;

- the issuing of the international ship security certificates by 1 June 2004.

In paragraphs 4 to 6 it sets out a process whereby inspections supervised by the Commission are put in place to check the effectiveness of procedures for monitoring the implementation of each national system.

Paragraph 7 confers on the Agency created by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, [6] and in accordance with its rules, the role of assisting the Commission in its tasks.

[6] OJ L 208, 5.8. 2002, p.1 9.

Article 11:

This article regulates the possibility for the Commission, following the regulatory procedure, to implement further amendments of the SOLAS Convention and of the ISPS Code, and in the light of experience to make mandatory provisions of Part B of the ISPS Code in addition to those which this Regulation already makes mandatory, or to establish a harmonised system for applying those Part B provisions which have been made mandatory.

Article 12:

The Commission is assisted by a committee acting in accordance with the regulatory procedure (Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [7]) and the safeguard procedure (Article 6 of that Decision).

[7] OJ L 184, 17.07.1999, p. 23.

This committee is that established by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) [8].

[8] OJ L 324, 29.11.2002, p.1.

Article 13:

This article calls upon Member States to institute effective, proportionate and dissuasive penalties for infringement of this Regulation.

Article 14:

In order to keep to the 1 July 2004 time limit set by IMO for implementing the provisions of the special measures to enhance maritime security amending the SOLAS Convention and the ISPS Code, and to assist with gradual and ordered implementation, this Regulation will enter into force on the twentieth day following its publication in the Official Journal of the European Union.

It will be applicable as from 1 July 2004, apart from the provisions of Article 10(3), which will enter into force and be applicable on the dates specified by that article. Article 10(3) concerns:

- the appointment of a single national authority by 1 January 2004;

- the making of ship and port facility security assessments and the appointment of ship, company and port facility security officers by 1 March 2004;

- the approval of the ship and port facility security plans by 1 May 2004;

- the issuing of the international ship security certificates by 1 June 2004.

Annex 1:

This annex contains Chapter XI-2 (Special measures to enhance maritime security) of the SOLAS Convention.

Annex 2:

This annex contains Part A of the ISPS Code.

Annex 3:

This annex contains Part B of the ISPS Code.

2003/0089 (COD)

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on enhancing ship and port facility security

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission [9],

[9] OJ C [...], [...], p. [...].

Having regard to the opinion of the European Economic and Social Committee [10],

[10] OJ C [...], [...], p. [...].

Having regard to the opinion of the Committee of the Regions [11],

[11] OJ C [...], [...], p. [...].

Acting in accordance with the procedure laid down in Article 251 of the Treaty [12],

[12] OJ C [...], [...], p. [...].

Whereas:

(1) Malicious acts and terrorism are among the greatest threats to the ideals of democracy and freedom and to the values of peace, which are the very essence of the European Union.

(2) The security of European Community shipping and of citizens using it in the face of threats of intentional unlawful acts should be ensured at all times.

(3) On 12 December 2002 the Diplomatic Conference of the International Maritime Organisation (IMO) adopted amendments to the International Convention for the Safety of Life at Sea (SOLAS) and an International Ship and Port Facility Security Code (ISPS). These instruments are intended to enhance the security of ships used in international trade and associated port facilities; they comprise mandatory provisions, the scope of some of which in the Community should be clarified, and recommendations, some of which should be made mandatory within the Community.

(4) Without prejudice to the rules of the Member States in the field of national security and measures which might be taken on the basis of Title VI of the Treaty on European Union, the security objective described in recital 2 should be achieved by adopting appropriate measures in the field of maritime transport policy establishing joint standards for the interpretation, implementation and monitoring within the Community of the provisions adopted by the Diplomatic Conference of the International Maritime Organisation (IMO) on 12 December 2002. Implementing powers should be conferred on the Commission to adopt detailed implementing provisions.

(5) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

(6) Security should be enhanced not only for ships used in international shipping and the port facilities which serve them, but also for ships operating domestic services within the Community and their port facilities, in particular passenger ships, on account of the number of human lives which such trade puts at risk.

(7) Part B of the ISPS Code comprises a number of recommendations which should be made mandatory within the Community in order to make uniform progress towards achievement of the security objective described in recital 2.

(8) In order to contribute to the recognised and necessary objective of promoting intra-Community short-sea traffic, the Member States should be asked to conclude, in the light of regulation XI-2/11 of the SOLAS Convention, the agreements on security arrangements for scheduled maritime traffic within the Community on fixed routes using dedicated port facilities, without this compromising the general standard of security sought after.

(9) Permanently applying all the security rules provided for in this Regulation to port facilities situated in ports which only occasionally serve international shipping might be disproportionate. The Member States should determine, on the basis of the security assessments which they are to conduct, which ports are concerned and which alternative measures provide an adequate level of protection.

(10) Member States should vigorously monitor compliance with the security rules by ships intending to enter a Community port, whatever their origin. For each Community port, the Member State concerned should appoint a "competent authority for port security" responsible for coordinating the application of the security measures laid down in this Regulation as they apply to ships and port facilities. This authority must require each ship intending to enter the port to provide in advance information concerning its international ship security certificate and the levels of safety at which it operates and has previously operated, and any other practical information concerning security.

(11) Member States should be permitted to grant exemptions from the systematic requirement to provide the information referred to in the previous recital in the case of intra-Community or domestic scheduled shipping services, provided the companies operating such services are able to provide such information at any time on request by the competent authorities of the Member States.

(12) Security checks in the port may be carried out by the competent security authorities of the Member States, but also, as regards the international ship security certificate, by inspectors acting in the framework of port State control, as provided for in Council Directive 95/21/EC of 19 June 1995 on port State control [13], as amended by Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001 [14]. Where different administration are concerned, provision must therefore be made for them to complement each other.

[13] OJ L 157, 7.7.1995, p. 1.

[14] OJ L 19, 22.1.2002, p. 17.

(13) In view of the number of parties involved in the implementation of security measures, each Member State should appoint a single competent authority responsible for coordinating and monitoring the application of shipping security measures at national level. Member States should put in place the necessary resources and draw up a national plan for the implementation of this Regulation in order to achieve the security objective described in recital 2, in particular by establishing a timetable for the early implementation of certain measures in accordance with the terms of Resolution 6 adopted by the Diplomatic Conference of the IMO on 12 December 2002. The effectiveness of the checks on the implementation of each national system should be the subject of inspections supervised by the Commission.

(14) The European Maritime Safety Agency set up by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 [15] should assist the Commission as necessary in its inspection tasks and in keeping and monitoring relevant data supplied by the Member States.

[15] OJ L 208, 5.8.2002, p. 1.

(15) The measures needed to implement this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [16]. These tasks should be assigned to the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) set up by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) [17].

[16] OJ L 184, 17.1.1999, p. 23.

[17] OJ L 324, 29.11.2002, p. 1.

A procedure should be defined for the adaptation of this Regulation to take account of developments in international instruments and, in the light of experience, to make mandatory further provisions of Part B of the ISPS Code not initially made mandatory by this Regulation.

(16) Since the objectives of the proposed action, namely the introduction and application of appropriate measures in the field of maritime transport policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of the European scale of this Regulation, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that Article, this Regulation is limited to the basic joint standards required to achieve the objectives of ship and port facility security and does not go beyond what is necessary for that purpose,

HAVE ADOPTED THIS REGULATION:

Article 1

Objectives

1. The main objective of this Regulation is to introduce and implement Community measures aimed at enhancing the security of ships used in international trade and domestic shipping and associated port facilities in the face of threats of intentional unlawful acts.

2. The Regulation is also intended to provide a basis for the harmonised interpretation and implementation and Community monitoring of the special measures to enhance maritime security adopted by the Diplomatic Conference of the International Maritime Organisation (IMO) on 12 December 2002, which amended the International Convention for the Safety of Life at Sea (SOLAS) and established the International Ship and Port Facility Security Code (ISPS).

Article 2

Definitions

For the purposes of this Regulation:

1. "special measures to enhance maritime security of the SOLAS Convention" means the amendments inserting the new Chapter XI-2 into the Annex to the International Convention for the Safety of Life at Sea, 1974 (SOLAS Convention) of the International Maritime Organisation (IMO), as amended, set out in Resolution 1 adopted by the Diplomatic Conference of the IMO on 12 December 2002 and attached as Annex 1 to this Regulation,

2. "ISPS Code" means the International Ship and Port Facility Security Code adopted by the Diplomatic Conference of the International Maritime Organisation on 12 December 2002,

3. "Part A of the ISPS Code" means the Preamble and the mandatory requirements forming Part A of the ISPS Code concerning the provisions of Chapter XI-2 of the Annex to the International Convention for the Safety of Life at Sea, 1974, as amended, set out in Resolution 2 adopted by the Diplomatic Conference of the International Maritime Organisation (IMO) on 12 December 2002 and attached as Annex 2 to this Regulation,

4. "Part B of the ISPS Code" means the guidance forming Part B of the ISPS Code regarding the provisions of chapter XI-2 of the Annex to the International Convention for the Safety of Life at Sea, 1974, as amended, and Part A of the ISPS Code, set out in Resolution 2 adopted by the Diplomatic Conference of the International Maritime Organisation (IMO) on 12 December 2002 and attached as Annex 3 to this Regulation,

5. "maritime security" means the combination of measures and human and material resources intended to protect shipping against intentional unlawful acts,

6. "single national authority" means the national authority responsible for the security of ships and of port facilities designated by each Member State,

7. "competent authority for port security" means the authority designated for each Community port by the single national authority of the Member State concerned to coordinate the application of the security measures laid down in this Regulation as they apply to ships and port facilities,

8. "international shipping" means any maritime transport service from a port of a Member State to a port outside that Member State, or conversely;

9. "domestic shipping" means any transport service in sea areas from a port of a Member State to the same port or another port within that Member State,

10. "scheduled service" means a series of sailings organised in such a way as to provide a service linking two or more ports:

(a) either on the basis of a published timetable;

(b) or with a regularity or frequency such as to constitute a recognisable systematic service,

11. "port facility" means a location where the ship/port interface takes place; this includes areas such as anchorages, waiting berths and approaches from seaward, as appropriate,

12. "ship/port interface" means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship.

Article 3

Joint measures and scope

1. In respect of international shipping, Member States shall apply in full the special measures to enhance maritime security of the SOLAS Convention and Part A of the ISPS Code, as defined in Article 2 above, in accordance with the conditions and with respect to the ships, companies and port facilities referred to therein.

2. In respect of domestic shipping, the requirements of paragraph 1 above shall apply in exactly the same way to Class A passenger ships within the meaning of Article 4 of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships [18] operating domestic services and to the companies which own and operate them and to the port facilities serving them.

[18] OJ L 144, 15.5.1998, p. 1.

The requirements of the special measures to enhance maritime security of the SOLAS Convention and the ISPS Code relating to the carrying-out of security assessments, the preparation of a security plan, and the designation of company and ship security officers shall apply to other ships as defined in Regulation 2, paragraph 1.1 (application / types of ship) of the special measures to enhance maritime security of the SOLAS Convention operating domestic services. The same requirements shall apply to the port facilities which serve them.

3. When implementing the provisions required pursuant to paragraphs 1 and 2 above, Member States shall take fully into account the recommendations contained in Part B of the ISPS Code, as defined in Article 2(4) above.

4. Member States shall conform to the following paragraphs of Part B of the ISPS Code as if they were mandatory:

- 1.12 (revision of ship security plans),

- 1.16 (port facility security assessment),

- 4.1 (protection of the confidentiality of security plans and assessments),

- 4.5 (minimum competencies of recognised security organisations),

- 4.8 (setting the security level),

- 4.14, 4.15, 4.16 (contact points and information on port facility security plans),

- 4.18 (identification documents),

- 4.24 (ships' application of the security measures recommended by the State in whose territorial waters they are sailing),

- 4.28 (manning level),

- 4.41 (communication of information when entry into port is denied or the ship is expelled from port),

- 4.45 (ships from a State which is not party to the Convention),

- 6.1 (company's obligation to provide the master with information on the ship's operators),

- 8.3 to 8.10 (minimum standards for the ship security assessment),

- 9.2 (minimum standards for the ship security plan),

- 13.6 and 13.7 (frequency of security drills and exercises for ships' crews and for company and ship security officers),

- 15.3 to 15.4 (minimum standards for the port facility security assessment),

- 16.3 and 16.8 (minimum standards for the port facility security plan),

- 18.5 and 18.6 (frequency of security drills and exercises in port facilities and for port facility security officers).

5. The periodic review of the port facility security plans provided for in paragraph 1.16 of Part B of the ISPS Code shall be carried out each time a component changes either the nature or the intended use of a port facility, and at the latest three years after the plan was drawn up or last reviewed.

6. Each Member State shall communicate to the Commission and the other Member States the contact details of the contact officials referred to in paragraph 4.16 of Part B of the ISPS Code and the information provided for in paragraph 4.41of Part B of the ISPS Code when a ship is expelled from or refused entry to a Community port.

Article 4

Communication of information

Each Member State shall communicate to the International Maritime Organisation, the Commission and the other Member States the information required pursuant to Regulation 13 (Communication of information) of the special measures to enhance maritime security of the SOLAS Convention.

Article 5

Intra-Community and domestic shipping

1. For the purposes of this Regulation, Regulation 11 (Alternative security agreements) of the special measures to enhance maritime security of the SOLAS Convention may apply to scheduled intra-Community shipping operating on fixed routes and using specific associated port facilities.

2. To that end, Member States may conclude among themselves, each acting on its own behalf, the bilateral or multilateral agreements provided for in the said Regulation, and in particular such agreements as are necessary to promote intra-Community short sea shipping.

The Member States concerned shall notify the draft agreements to the Commission.

The Commission shall examine whether the draft agreements guarantee an adequate level of protection, in particular as regards the requirements of paragraph 2 of the above-mentioned Regulation 11, and whether they are in accordance with Community law. If the draft agreements do not meet these criteria, the Commission shall within four months adopt a decision in accordance with the procedure referred to in Article 12(3); in such cases, the Member States concerned shall adapt the drafts accordingly before concluding the agreements.

3. The periodic review of such agreements provided for in paragraph 4 of Regulation 11 of the special measures to enhance maritime security must take place at intervals of no more than three years.

4. Member States may adopt such security arrangements for passenger ships operating domestic scheduled services as referred to in the first subparagraph of Article 3(2) of this Regulation, and for the port facilities serving them, without the general level of security thereby being compromised.

The Member State concerned shall communicate such measures and the outcome of periodic reviews thereof to the Commission by 1 July of each year.

The conditions of application of such measures shall be subject to the Commission inspections provided for in Article 10(4)-(7) of this Regulation under the procedures defined therein.

Article 6

Occasional international shipping

1. Each Member State shall draw up the list of ports concerned, in the light of the port facility security assessments carried out, and establish the scope of the measures taken to apply the provisions of paragraph 2 of Regulation 2 (extent of application to port facilities which occasionally serve international voyages) of the special measures to enhance maritime security of the SOLAS Convention.

2. Each Member State shall communicate the said list and the measures taken to the Commission by 1 July 2004 at the latest.

3. Each Member State shall communicate the said list to the other Member States by the same date.

Article 7

Security checks prior to entry into a Community port

1. When a ship which is subject to the requirements of the special measures to enhance maritime security of the SOLAS Convention and of the ISPS Code or of Article 3 of this Regulation announces its intention to enter a port of a Member State, the competent authority for port security of that Member State shall require that the information referred to in paragraph 2.1 of Regulation 9 (Ships intending to enter a port of another Contracting Government) of the special measures to enhance maritime security of the SOLAS Convention be provided. The said authority shall analyse the information provided and, where necessary, apply the procedure provided for in paragraph 2 of that Regulation.

2. The information referred to in the preceding paragraph shall be provided:

(a) at least twenty-four hours in advance; or

(b) at the latest, at the time the ship leaves the previous port, if the voyage time is less than twenty-four hours; or

(c) if the port of call is not known or it is changed during the voyage, as soon as this information is available.

3. A report shall be kept of the procedure followed in respect of each ship.

Article 8

Exemptions from security checks prior to entry into a port

1. Member States may exempt scheduled services performed between ports located on their territory from the requirement laid down in Article 7 where the following conditions are met:

(a) the company operating the scheduled services referred to above keeps and updates a list of the ships concerned and sends it to the competent authority for security at the port concerned,

(b) for each voyage performed, the information referred to in paragraph 2.1 of Regulation 9 of the special measures to enhance maritime security of the SOLAS Convention is kept available for the competent authority for port security upon request. The company must establish an internal system to ensure that, upon request 24 hours a day and without delay, the said information can be sent to the competent authority.

2. When an international scheduled service is operated between two or more Member States, any of the Member States involved may request of the other Member States that an exemption be granted to that service. All Member States involved shall collaborate in granting an exemption to the service concerned in accordance with the conditions laid down in paragraph 1.

3. Member States shall periodically check that the conditions laid down in paragraphs 1 and 2 are being met. Where at least one of these conditions is no longer being met, Member States shall immediately withdraw the privilege of the exemption from the company concerned.

4. Member States shall draw up a list of companies and ships granted exemption under this Article, and shall update that list. They shall communicate the list and updates thereof to the Commission

Article 9

Security checks in Community ports

1. Certificate verification, as defined in paragraph 1.1 of Regulation 9 (Control of ships in port) of the special measures to enhance maritime security of the SOLAS Convention, shall be carried out in the port either by the competent authority for port security defined in Article 2(7) of this Regulation or by the inspectors defined in Article 2(5) of Council Directive 95/21/EC of 19 June 1995 on port State control of shipping [19], as last amended by Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001 [20].

[19] OJ L 157, 7.7.1995, p. 1.

[20] OJ L 19, 22.1.2002, p.17.

2. Where the inspector performing port State control does not belong to the competent authority for port security defined in Article 2(7) of this Regulation and where he believes that there are clear grounds for believing that the ship is not in compliance with the requirements of the special measures to enhance maritime security of the SOLAS Convention and of the ISPS Code, he shall immediately refer the matter to the competent authority for port security, which shall take the measures provided for in paragraphs 1.2 and 1.3 of Regulation 9 of the special measures to enhance maritime security of the SOLAS Convention.

Article 10

Implementation and conformity checking

1. Member States shall carry out the administrative and control tasks required pursuant to the provisions of the special measures to enhance maritime security of the SOLAS Convention and of the ISPS Code. They shall ensure that all necessary means are allocated and effectively provided for the implementation of the provisions of this Regulation.

2. In accordance with Regulation 13 of the special measures to enhance maritime security of the SOLAS Convention, Member States shall designate the national authority responsible for ship and port facility security. This single national authority shall be the Commission's correspondent for the application of this Regulation.

3 Each Member States shall adopt a national plan for the implementation of this Regulation. Each Member State shall take every measure to ensure the early implementation of:

- the appointment of a single national authority, as described in the previous paragraph, by 1 January 2004;

- the making of ship and port facility security assessments and the appointment of ship, port facility and company security officers by 1 March 2004;

- the approval of the ship and port facility security plans by 1 May 2004;

- the issuing of the international ship security certificates by 1 June 2004.

4. Six months after the date of application of this Regulation, the Commission, in cooperation with the authority referred to in paragraph 2 above, shall start a series of inspections to verify the means of monitoring implementation of the national plans adopted pursuant to this Regulation. These inspections shall take account of the data supplied by the authority referred to in paragraph 2 above, including the monitoring reports. The procedures for conducting such inspections shall be adopted in accordance with the procedure referred to in Article 12(2).

5. The officials mandated by the Commission to conduct such inspections in accordance with paragraph 4 above shall exercise their powers upon production of an authorisation in writing issued by the Commission and specifying the subject-matter, the purpose of the inspection and the date on which it is to begin. The Commission shall in good time before inspections inform the Member States concerned by the inspections.

With a view to verifying the effective implementation of the national plans, such inspections may be extended, as necessary, to the departments responsible for monitoring port facilities, companies and ships. In such cases, the inspections shall be carried out without advance notice.

The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections.

6. The Commission shall communicate the inspection reports to the Member State concerned, which shall indicate the measures taken to remedy any shortcomings within three months of receipt of the report. The report and the answer of the authority referred to in paragraph 2 shall be communicated to the Committee referred to in Article 12(1).

7. The European Maritime Safety Agency set up by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 [21] shall, in accordance with its rules, assist the Commission in its inspection tasks and in keeping and monitoring the data supplied by the Member States pursuant to Articles 3(6), 4, 5, 6, 8 and 10 of this Regulation.

[21] OJ L 208, 5.8.2002, p. 1.

Article 11

Adaptations

In accordance with the procedure provided for in Article 12(2), provisions may be adopted in order:

- to apply, for the purposes of this Regulation, subsequent amendments to the international instruments referred to herein,

- in the light of experience, to extend the obligations provided for in Article 3(4) of this Regulation to other paragraphs of Part B of the ISPS Code, or to define harmonised arrangements for their application.

Article 12

Committee procedure

1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) created by Article 3 of Regulation (EC) No 2099/2002 of 5 November 2002 of the European Parliament and of the Council establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) [22].

[22] OJ L 324, 29.11.2002, p.1.

2. Where reference is made to this paragraph, Articles 5 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [23] shall apply, having regard to the provisions of Article 8 thereof.

[23] OJ L 184, 17.7.1999, p. 23.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month.

3. Where reference is made to this paragraph, Articles 6 and 7 of Decision 1999/468/EC shall apply having regard to the provisions of Article 8 thereof.

Article 13

Penalties

Penalties for breaching the provisions of this Regulation shall be effective, proportionate and dissuasive.

Article 14

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 1 July 2004, apart from the provisions of Article 10(3), which shall enter into force and apply on the dates specified therein.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, [...]

For the European Parliament For the Council

The President The President

ANNEXE 1

AMENDMENTS TO THE ANNEX TO THE INTERNATIONAL CONVENTION FOR THE SAFETY OF LIFE AT SEA, 1974 AS AMENDED

"CHAPTER XI-2

SPECIAL MEASURES TO ENHANCE MARITIME SECURITY

Regulation 1

Definitions

1 For the purpose of this chapter, unless expressly provided otherwise:

.1 Bulk carrier means a bulk carrier as defined in regulation IX/1.6.

.2 Chemical tanker means a chemical tanker as defined in regulation VII/8.2.

.3 Gas carrier means a gas carrier as defined in regulation VII/11.2.

.4 High-speed craft means a craft as defined in regulation X/1.2.

.5 Mobile offshore drilling unit means a mechanically propelled mobile offshore drilling unit, as defined in regulation IX/1, not on location.

.6 Oil tanker means an oil tanker as defined in regulation II-1/2.12.

.7 Company means a Company as defined in regulation IX/1.

.8 Ship/port interface means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons, goods or the provisions of port services to or from the ship.

.9 Port facility is a location, as determined by the Contracting Government or by the Designated Authority, where the ship/port interface takes place. This includes areas such as anchorages, waiting berths and approaches from seaward, as appropriate.

.10 Ship to ship activity means any activity not related to a port facility that involves the transfer of goods or persons from one ship to another. .11 Designated Authority means the organization(s) or the administration(s) identified, within the Contracting Government, as responsible for ensuring the implementation of the provisions of this chapter pertaining to port facility security and ship/port interface, from the point of view of the port facility.

.12 International Ship and Port Facility Security (ISPS) Code means the International Code for the Security of Ships and of Port Facilities consisting of Part A (the provisions of which shall be treated as mandatory) and part B (the provisions of which shall be treated as recommendatory), as adopted, on 12 December 2002, by resolution 2 of the Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974 as may be amended by the Organization, provided that:

.1 amendments to part A of the Code are adopted, brought into force and take effect in accordance with article VIII of the present Convention concerning the amendment procedures applicable to the Annex other than chapter I; and

.2 amendments to part B of the Code are adopted by the Maritime Safety Committee in accordance with its Rules of Procedure.

.13 Security incident means any suspicious act or circumstance threatening the security of a ship, including a mobile offshore drilling unit and a high speed craft, or of a port facility or of any ship/port interface or any ship to ship activity.

.14 Security level means the qualification of the degree of risk that a security incident will be attempted or will occur.

.15 Declaration of security means an agreement reached between a ship and either a port facility or another ship with which it interfaces specifying the security measures each will implement.

.16 Recognized security organization means an organization with appropriate expertise in security matters and with appropriate knowledge of ship and port operations authorized to carry out an assessment, or a verification, or an approval or a certification activity, required by this chapter or by part A of the ISPS Code.

2 The term "ship", when used in regulations 3 to 13, includes mobile offshore drilling units and high-speed craft.

3 The term "all ships", when used in this chapter, means any ship to which this chapter applies.

4 The term "Contracting Government", when used in regulations 3, 4, 7, 10, 11, 12 and 13 includes a reference to the "Designated Authority".

Regulation 2

Application

1 This chapter applies to:

.1 the following types of ships engaged on international voyages:

.1.1 passenger ships, including high-speed passenger craft;

.1.2 cargo ships, including high-speed craft, of 500 gross tonnage and upwards; and

.1.3 mobile offshore drilling units; and

.2 port facilities serving such ships engaged on international voyages.

2 Notwithstanding the provisions of paragraph 1.2, Contracting Governments shall decide the extent of application of this chapter and of the relevant sections of part A of the ISPS Code to those port facilities within their territory which, although used primarily by ships not engaged on international voyages, are required, occasionally, to serve ships arriving or departing on an international voyage.

2.1 Contracting Governments shall base their decisions, under paragraph 2, on a port facility security assessment carried out in accordance with the provisions of part A of the ISPS Code.

2.2 Any decision which a Contracting Government makes, under paragraph 2, shall not compromise the level of security intended to be achieved by this chapter or by part A of the ISPS Code.

3 This chapter does not apply to warships, naval auxiliaries or other ships owned or operated by a Contracting Government and used only on Government non-commercial service.

4 Nothing in this chapter shall prejudice the rights or obligations of States under international law.

Regulation 3

Obligations of Contracting Governments with respect to security

1 Administrations shall set security levels and ensure the provision of security level information to ships entitled to fly their flag. When changes in security level occur, security level information shall be updated as the circumstance dictates.

2 Contracting Governments shall set security levels and ensure the provision of security level information to port facilities within their territory, and to ships prior to entering a port or whilst in a port within their territory. When changes in security level occur, security level information shall be updated as the circumstance dictates.

Regulation 4

Requirements for Companies and ships

1 Companies shall comply with the relevant requirements of this chapter and of part A of the ISPS Code, taking into account the guidance given in part B of the ISPS Code.

2 Ships shall comply with the relevant requirements of this chapter and of part A of the ISPS Code, taking into account the guidance given in part B of the ISPS Code, and such compliance shall be verified and certified as provided for in part A of the ISPS Code.

3 Prior to entering a port or whilst in a port within the territory of a Contracting Government, a ship shall comply with the requirements for the security level set by that Contracting Government, if such security level is higher than the security level set by the Administration for that ship.

4 Ships shall respond without undue delay to any change to a higher security level.

5 Where a ship is not in compliance with the requirements of this chapter or of part A of the ISPS Code, or cannot comply with the requirements of the security level set by the Administration or by another Contracting Government and applicable to that ship, then the ship shall notify the appropriate competent authority prior to conducting any ship/port interface or prior to entry into port, whichever occurs earlier.

Regulation 5

Specific responsibility of Companies

The Company shall ensure that the master has available on board, at all times,information through which officers duly authorised by a Contracting Government can establish:

.1 who is responsible for appointing the members of the crew or other persons currently employed or engaged on board the ship in any capacity on the business of that ship;

.2 who is responsible for deciding the employment of the ship; and

.3 in cases where the ship is employed under the terms of charter party(ies), who are the parties to such charter party(ies).

Regulation 6

Ship security alert system

1 All ships shall be provided with a ship security alert system, as follows:

.1 ships constructed on or after 1 July 2004;

.2 passenger ships, including high-speed passenger craft, constructed before 1 July 2004, not later than the first survey of the radio installation after 1 July 2004;

.3 oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high speed craft, of 500 gross tonnage and upwards constructed before 1 July 2004, not later than the first survey of the radio installation after 1 July 2004; and

.4 other cargo ships of 500 gross tonnage and upward and mobile offshore drilling units constructed before 1 July 2004, not later than the first survey of the radio installation after 1 July 2006.

2 The ship security alert system, when activated, shall:

.1 initiate and transmit a ship-to-shore security alert to a competent authority designated by the Administration, which in these circumstances may include the Company, identifying the ship, its location and indicating that the security of the ship is under threat or it has been compromised;

.2 not send the ship security alert to any other ships;

.3 not raise any alarm on-board the ship; and

.4 continue the ship security alert until deactivated and/or reset.

3 The ship security alert system shall:

.1 be capable of being activated from the navigation bridge and in at least one other location; and

.2 conform to performance standards not inferior to those adopted by the Organization.

4 The ship security alert system activation points shall be designed so as to prevent the inadvertent initiation of the ship security alert.5 The requirement for a ship security alert system may be complied with by using the radio installation fitted for compliance with the requirements of chapter IV, provided all requirements of this regulation are complied with.

6 When an Administration receives notification of a ship security alert, that Administration shall immediately notify the State(s) in the vicinity of which the ship is presently operating.

7 When a Contracting Government receives notification of a ship security alert from a ship which is not entitled to fly its flag, that Contracting Government shall immediately notify the relevant Administration and, if appropriate, the State(s) in the vicinity of which the ship is presently operating.

Regulation 7

Threats to ships

1 Contracting Governments shall set security levels and ensure the provision of security level information to ships operating in their territorial sea or having communicated an intention to enter their territorial sea.

2 Contracting Governments shall provide a point of contact through which such ships can request advice or assistance and to which such ships can report any security concerns about other ships, movements or communications.

3 Where a risk of attack has been identified, the Contracting Government concerned shall advise the ships concerned and their Administrations of:

.1 the current security level;

.2 any security measures that should be put in place by the ships concerned to protect themselves from attack, in accordance with the provisions of part A of the ISPS Code; and

.3 security measures that the coastal State has decided to put in place, as appropriate.

Regulation 8

Master's discretion for ship safety and security

1 The master shall not be constrained by the Company, the charterer or any other person from taking or executing any decision which, in the professional judgement of the master, is necessary to maintain the safety and security of the ship. This includes denial of access to persons (except those identified as duly authorized by a Contracting Government) or their effects and refusal to load cargo, including containers or other closed cargo transport units.

2 If, in the professional judgement of the master, a conflict between any safety and security requirements applicable to the ship arises during its operations, the master shall give effect to those requirements necessary to maintain the safety of the ship. In such cases, the master may implement temporary security measures and shall forthwith inform the Administration and, if appropriate, the Contracting Government in whose port the ship is operating or intends to enter. Any such temporary security measures under this regulation shall, to the highest possible degree, be commensurate with the prevailing security level. When such cases are identified, the Administration shall ensure that such conflicts are resolved and that the possibility of recurrence is minimised.

Regulation 9

Control and compliance measures

1 Control of ships in port

1.1 For the purpose of this chapter, every ship to which this chapter applies is subject to control when in a port of another Contracting Government by officers duly authorised by that Government, who may be the same as those carrying out the functions of regulation I/19. Such control shall be limited to verifying that there is onboard a valid International Ship Security Certificate or a valid Interim International Ships Security Certificate issued under the provisions of part A of the ISPS Code (Certificate), which if valid shall be accepted, unless there are clear grounds for believing that the ship is not in compliance with the requirements of this chapter or part A of the ISPS Code.

1.2 When there are such clear grounds, or where no valid Certificate is produced when required, the officers duly authorized by the Contracting Government shall impose any one or more control measures in relation to that ship as provided in paragraph 1.3. Any such measures imposed must be proportionate, taking into account the guidance given in part B of the ISPS Code.

1.3 Such control measures are as follows: inspection of the ship, delaying the ship, detention of the ship, restriction of operations including movement within the port, or expulsion of the ship from port. Such control measures may additionally or alternatively include other lesser administrative or corrective measures.

2 Ships intending to enter a port of another Contracting Government

2.1 For the purpose of this chapter, a Contracting Government may require that ships intending to enter its ports provide the following information to officers duly authorized by that Government to ensure compliance with this chapter prior to entry into port with the aim of avoiding the need to impose control measures or steps:

.1 that the ship possesses a valid Certificate and the name of its issuing authority;

.2 the security level at which the ship is currently operating;

.3 the security level at which the ship operated in any previous port where it has conducted a ship/port interface within the timeframe specified in paragraph 2.3;

.4 any special or additional security measures that were taken by the ship in any previous port where it has conducted a ship/port interface within the timeframe specified in paragraph 2.3;

.5 that the appropriate ship security procedures were maintained during any ship to ship activity within the timeframe specified in paragraph 2.3; or

.6 other practical security related information (but not details of the ship security plan), taking into account the guidance given in part B of the ISPS Code.

If requested by the Contracting Government, the ship or the Company shall provide confirmation, acceptable to that Contracting Government, of the information required above.

2.2 Every ship to which this chapter applies intending to enter the port of another Contracting Government shall provide the information described in paragraph 2.1 on the request of the officers duly authorized by that Government. The master may decline to provide such information on the understanding that failure to do so may result in denial of entry into port.

2.3 The ship shall keep records of the information referred to in paragraph 2.1 for the last 10 calls at port facilities.

2.4 If, after receipt of the information described in paragraph 2.1, officers duly authorised by the Contracting Government of the port in which the ship intends to enter have clear grounds for believing that the ship is in non-compliance with the requirements of this chapter or part A of the ISPS Code, such officers shall attempt to establish communication with and between the ship and the Administration in order to rectify the non-compliance. If such communication does not result in rectification, or if such officers have clear grounds otherwise for believing that the ship is in non-compliance with the requirements of this chapter or part A of the ISPS Code, such officers may take steps in relation to that ship as provided in paragraph 2.5. Any such steps taken must be proportionate, taking into account the guidance given in part B of the ISPS Code.

2.5 Such steps are as follows:

.1 a requirement for the rectification of the non-compliance;

.2 a requirement that the ship proceed to a location specified in the territorial sea or internal waters of that Contracting Government;

.3 inspection of the ship, if the ship is in the territorial sea of the Contracting Government the port of which the ship intends to enter; or

.4 denial of entry into port.

Prior to initiating any such steps, the ship shall be informed by the Contracting Government of its intentions. Upon this information the master may withdraw the intention to enter that port. In such cases, this regulation shall not apply.

3 Additional provisions

3.1 In the event:

.1 of the imposition of a control measure, other than a lesser administrative or corrective measure, referred to in paragraph 1.3; or

.2 any of the steps referred to in paragraph 2.5 are taken, an officer duly authorized by the Contracting Government shall forthwith inform in writing the Administration specifying which control measures have been imposed or steps taken and the reasons thereof. The Contracting Government imposing the control measures or steps shall also notify the recognized security organization, which issued the Certificate relating to the ship concerned and the Organization when any such control measures have been imposed or steps taken.

3.2 When entry into port is denied or the ship is expelled from port, the authorities of the port State should communicate the appropriate facts to the authorities of the State of the next appropriate ports of call, when known, and any other appropriate coastal States, taking into account guidelines to be developed by the Organization. Confidentiality and security of such notification shall be ensured.

3.3 Denial of entry into port, pursuant to paragraphs 2.4 and 2.5, or expulsion from port, pursuant to paragraphs 1.1 to 1.3, shall only be imposed where the officers duly authorized by the Contracting Government have clear grounds to believe that the ship poses an immediate threat to the security or safety of persons, or of ships or other property and there are no other appropriate means for removing that threat.

3.4 The control measures referred to in paragraph 1.3 and the steps referred to in paragraph 2.5 shall only be imposed, pursuant to this regulation, until the non-compliance giving rise to the control measures or steps has been corrected to the satisfaction of the Contracting Government, taking into account actions proposed by the ship or the Administration, if any.

3.5 When Contracting Governments exercise control under paragraph 1 or take steps under paragraph 2:

.1 all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is thereby unduly detained, or delayed, it shall be entitled to compensation for any loss or damage suffered; and

.2 necessary access to the ship shall not be prevented for emergency or humanitarian reasons and for security purposes.

Regulation 10

Requirements for port facilities

1 Port facilities shall comply with the relevant requirements of this chapter and part A of the ISPS Code, taking into account the guidance given in part B of the ISPS Code.

2 Contracting Governments with a port facility or port facilities within their territory, to which this regulation applies, shall ensure that:

.1 port facility security assessments are carried out, reviewed and approved in accordance with the provisions of part A of the ISPS Code; and

.2 port facility security plans are developed, reviewed, approved and implemented in accordance with the provisions of part A of the ISPS Code.

3 Contracting Governments shall designate and communicate the measures required to be addressed in a port facility security plan for the various security levels, including when the submission of a Declaration of Security will be required.

Regulation 11

Alternative security agreements

1 Contracting Governments may, when implementing this chapter and part A of the ISPS Code, conclude in writing bilateral or multilateral agreements with other Contracting Governments on alternative security arrangements covering short international voyages on fixed routes between port facilities located within their territories.

2 Any such agreement shall not compromise the level of security of other ships or of port facilities not covered by the agreement.

3 No ship covered by such an agreement shall conduct any ship-to-ship activities with any ship not covered by the agreement.

4 Such agreements shall be reviewed periodically, taking into account the experience gained as well as any changes in the particular circumstances or the assessed threats to the security of the ships, the port facilities or the routes covered by the agreement.

Regulation 12

Equivalent security arrangements

1 An Administration may allow a particular ship or a group of ships entitled to fly its flag to implement other security measures equivalent to those prescribed in this chapter or in part A of the ISPS Code, provided such security measures are at least as effective as those prescribed in this chapter or part A of the ISPS Code. The Administration, which allows such security measures, shall communicate to the Organization particulars thereof.

2 When implementing this chapter and part A of the ISPS Code, a Contracting Government may allow a particular port facility or a group of port facilities located within its territory, other than those covered by an agreement concluded under regulation 11, to implement security measures equivalent to those prescribed in this chapter or in Part A of the ISPS Code, provided such security measures are at least as effective as those prescribed in this chapter or part A of the ISPS Code. The Contracting Government, which allows such security measures, shall communicate to the Organization particulars thereof.

Regulation 13

Communication of information

1 Contracting Governments shall, not later than 1 July 2004, communicate to the Organization and shall make available for the information of Companies and ships:

.1 the names and contact details of their national authority or authorities responsible for ship and port facility security;

.2 the locations within their territory covered by the approved port facility security plans.

.3 the names and contact details of those who have been designated to be available at all times to receive and act upon the ship-to-shore security alerts, referred to in regulation 6.2.1;

.4 the names and contact details of those who have been designated to be available at all times to receive and act upon any communications from Contracting Governments exercising control and compliance measures, referred to in regulation 9.3.1; and

.5 the names and contact details of those who have been designated to be available at all times to provide advice or assistance to ships and to whom ships can report any security concerns, referred to in regulation 7.2; and thereafter update such information as and when changes relating thereto occur. The Organization shall circulate such particulars to other Contracting Governments for the information of their officers.

2 Contracting Governments shall, not later than 1 July 2004, communicate to the Organization the names and contact details of any recognized security organizations authorized to act on their behalf together with details of the specific responsibility and conditions of authority delegated to such organizations. Such information shall be updated as and when changes relating thereto occur. The Organization shall circulate such particulars to other Contracting Governments for the information of their officers.

3 Contracting Governments shall, not later than 1 July 2004 communicate to the Organization a list showing the approved port facility security plans for the port facilities located within their territory together with the location or locations covered by each approved port facility security plan and the corresponding date of approval and thereafter shall further communicate when any of the following changes take place:

.1 changes in the location or locations covered by an approved port facility security plan are to be introduced or have been introduced. In such cases the information to be communicated shall indicate the changes in the location or locations covered by the plan and the date as of which such changes are to be introduced or were implemented;

.2 an approved port facility security plan, previously included in the list submitted to the Organization, is to be withdrawn or has been withdrawn. In such cases, the information to be communicated shall indicate the date on which the withdrawal will take effect or was implemented. In these cases, the communication shall be made to the Organization as soon as is practically possible; and

.3 additions are to be made to the list of approved port facility security plans. In such cases, the information to be communicated shall indicate the location or locations covered by the plan and the date of approval.

4 Contracting Governments shall, at five year intervals after 1 July 2004, communicate to the Organization a revised and updated list showing all the approved port facility security plans for the port facilities located within their territory together with the location or locations covered by each approved port facility security plan and the corresponding date of approval (and the date of approval of any amendments thereto) which will supersede and replace all information communicated to the Organization, pursuant to paragraph 3, during the preceding five years.

5 Contracting Governments shall communicate to the Organization information that an agreement under regulation 11 has been concluded. The information communicated shall include:

.1 the names of the Contracting Governments which have concluded the agreement;

.2 the port facilities and the fixed routes covered by the agreement;

.3 the periodicity of review of the agreement;

.4 the date of entry into force of the agreement; and

.5 information on any consultations which have taken place with other Contracting Governments; and thereafter shall communicate, as soon as practically possible, to the Organization information when the agreement has been amended or has ended.

6 Any Contracting Government which allows, under the provisions of regulation 12, any equivalent security arrangements with respect to a ship entitled to fly its flag or with respect to a port facility located within its territory, shall communicate to the Organization particulars thereof.

7 The Organization shall make available the information communicated under paragraph 3 to other Contracting Governments upon request.

ANNEXE 2

INTERNATIONAL CODE FOR THE SECURITY OF SHIPS

AND OF PORT FACILITIES

PREAMBLE

1 The Diplomatic Conference on Maritime Security held in London in December 2002 adopted new provisions in the International Convention for the Safety of Life at Sea, 1974 and this Code to enhance maritime security. These new requirements form the international framework through which ships and port facilities can co-operate to detect and deter acts which threaten security in the maritime transport sector.

2 Following the tragic events of 11th September 2001, the twenty-second session of the Assembly of the International Maritime Organization (the Organization), in November 2001, unanimously agreed to the development of new measures relating to the security of ships and of port facilities for adoption by a Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974 (known as the Diplomatic Conference on Maritime Security) in December 2002. Preparation for the Diplomatic Conference was entrusted to the Organization's Maritime Safety Committee (MSC) on the basis of submissions made by Member States, intergovernmental organizations and non-governmental organizations in consultative status with the Organization.

3 The MSC, at its first extraordinary session, held also in November 2001, in order to accelerate the development and the adoption of the appropriate security measures established an MSC Intersessional Working Group on Maritime Security. The first meeting of the MSC Intersessional Working Group on Maritime Security was held in February 2002 and the outcome of its discussions was reported to, and considered by, the seventy-fifth session of the MSC in March 2002, when an ad hoc Working Group was established to further develop the proposals made. The seventy-fifth session of the MSC considered the report of that Working Group and recommended that work should be taken forward through a further MSC Intersessional Working Group, which was held in September 2002. The seventy-sixth session of the MSC considered the outcome of the September 2002 session of the MSC Intersessional Working Group and the further work undertaken by the MSC Working Group held in conjunction with the Committee's seventy-sixth session in December 2002, immediately prior to the Diplomatic Conference and agreed the final version of the proposed texts to be considered by the Diplomatic Conference.

4 The Diplomatic Conference (9 to 13 December 2002) also adopted amendments to the existing provisions of the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74) accelerating the implementation of the requirement to fit Automatic Identification Systems and adopted new Regulations in Chapter XI-1 of SOLAS 74 covering marking of the Ship's Identification Number and the carriage of a Continuous Synopsis Record. The Diplomatic Conference also adopted a number of Conference Resolutions including those covering implementation and revision of this Code, Technical Co-operation, and co-operative work with the International Labour Organization and World Customs Organization. It was recognized that review and amendment of certain of the new provisions regarding maritime security may be required on completion of the work of these two Organizations.

5 The provision of Chapter XI-2 of SOLAS 74 and this Code apply to ships and to port facilities. The extension of SOLAS 74 to cover port facilities was agreed on the basis that SOLAS 74 offered the speediest means of ensuring the necessary security measures entered into force and given effect quickly. However, it was further agreed that the provisions relating to port facilities should relate solely to the ship/port interface. The wider issue of the security of port areas will be the subject of further joint work between the International Maritime Organization and the International Labour Organization. It was also agreed that the provisions should not extend to the actual response to attacks or to any necessary clear-up activities after such an attack.

6 In drafting the provision care has been taken to ensure compatibility with the provisions of the International Convention on Standards of Training, Certification and Watchkeeping and Certification for Seafarers, 1978, as amended, the International Safety Management (ISM) Code and the harmonised system of survey and certification.

7 The provisions represent a significant change in the approach of the international maritime industries to the issue of security in the maritime transport sector. It is recognized that they may place a significant additional burden on certain Contracting Governments. The importance of Technical Co-operation to assist Contracting Governments implement the provisions is fully recognized.

8 Implementation of the provisions will require continuing effective co-operation and understanding between all those involved with, or using, ships and port facilities including ship's personnel, port personnel, passengers, cargo interests, ship and port management and those in National and Local Authorities with security responsibilities. Existing practices and procedures will have to be reviewed and changed if they do not provide an adequate level of security. In the interests of enhanced maritime security additional responsibilities will have to be carried by the shipping and port industries and by National and Local Authorities.

9 The guidance given in part B of this Code should be taken into account when implementing the security provisions set out in Chapter XI-2 of SOLAS 74 and in part A of this Code. However, it is recognized that the extent to which the guidance applies may vary depending on the nature of the port facility and of the ship, its trade and/or cargo.

10 Nothing in this Code shall be interpreted or applied in a manner inconsistent with the proper respect of fundamental rights and freedoms as set out in international instruments, particularly those relating to maritime workers and refugees including the International Labour Organization Declaration of Fundamental Principles and Rights at Work as well as international standards concerning maritime and port workers.

11 Recognizing that the Convention on the Facilitation of Maritime Traffic, 1965, as amended, provides that foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reasons of public health, public safety or public order, Contracting Governments when approving ship and port facility security plans should pay due cognisance to the fact that ship's personnel live and work on the vessel and need shore leave and access to shore based seafarer welfare facilities, including medical care.

Part A

Mandatory Requirements Regarding the Provisions of Chapter XI-2

of the International Convention for the Safety of Life At Sea, 1974,

as amended

1. GENERAL

1.1. Introduction

This part of the International Code for the Security of Ships and Port Facilities contains mandatory provisions to which reference is made in chapter XI-2 of the International Convention for the Safety of Life at Sea, 1974 as amended.

1.2. Objectives

The objectives of this Code are:

.1 to establish an international framework involving co-operation between Contracting Governments, Government agencies, local administrations and the shipping and port industries to detect security threats and take preventive measures against security incidents affecting ships or port facilities used in international trade

.2 to establish the respective roles and responsibilities of the Contracting Governments, Government agencies, local administrations and the shipping and port industries, at the national and international level for ensuring maritime security

.3 to ensure the early and efficient collection and exchange of security-related information

.4 to provide a methodology for security assessments so as to have in place plans and procedures to react to changing security levels; and

.5 to ensure confidence that adequate and proportionate maritime security measures are in place.

1.3. Functional requirements

In order to achieve its objectives, this Code embodies a number of functional requirements. These include, but are not limited to:

.1 gathering and assessing information with respect to security threats and exchanging such information with appropriate Contracting Governments

.2 requiring the maintenance of communication protocols for ships and port facilities

.3 preventing unauthorized access to ships, port facilities and their restricted areas

.4 preventing the introduction of unauthorized weapons, incendiary devices or explosives to ships or port facilities

.5 providing means for raising the alarm in reaction to security threats or security incidents

.6 requiring ship and port facility security plans based upon security assessments; and

.7 requiring training, drills and exercises to ensure familiarity with security plans and procedures

2. DEFINITIONS

2.1. For the purpose of this part, unless expressly provided otherwise:

.1 Convention means the International Convention for the Safety of Life at Sea, 1974 as amended

.2 Regulation means a regulation of the Convention

.3 Chapter means a chapter of the Convention

.4 Ship security plan means a plan developed to ensure the application of measures on board the ship designed to protect persons on board, cargo, cargo transport units, ship's stores or the ship from the risks of a security incident

.5 Port facility security plan means a plan developed to ensure the application of measures designed to protect the port facility and ships, persons, cargo, cargo transport units and ship's stores within the port facility from the risks of a security incident

.6 Ship security officer means the person on board the ship, accountable to the master, designated by the Company as responsible for the security of the ship, including implementation and maintenance of the ship security plan and for liaison with the company security officer and port facility security officers

.7 Company security officer means the person designated by the Company for ensuring that a ship security assessment is carried out; that a ship security plan is developed, submitted for approval, and thereafter implemented and maintained and for liaison with port facility security officers and the ship security officer.8 Port facility security officer means the person designated as responsible for the development, implementation, revision and maintenance of the port facility security plan and for liaison with the ship security officers and company security officers

.9 Security level 1 means the level for which minimum appropriate protective security measures shall be maintained at all times

.10 Security level 2 means the level for which appropriate additional protective security measures shall be maintained for a period of time as a result of heightened risk of a security incident

.11 Security level 3 means the level for which further specific protective security measures shall be maintained for a limited period of time when a security incident is probable or imminent, although it may not be possible to identify the specific target

2.2. The term "ship", when used in this Code, includes mobile offshore drilling units and high-speed craft as defined in regulation XI-2/1.

2.3. The term "Contracting Government" in connection with any reference to a port facility, when used in sections 14 to 18, includes a reference to the "Designated Authority".

2.4. Terms not otherwise defined in this part shall have the same meaning as the meaning attributed to them in chapters I and XI-2.

3. APPLICATION

3.1. This Code applies to:

1 the following types of ships engaged on international voyages:

.1 passenger ships, including high-speed passenger craft

.2 cargo ships, including high-speed craft, of 500 gross tonnage and upwards; and

.3 mobile offshore drilling units; and

2 port facilities serving such ships engaged on international voyages.

3.2. Notwithstanding the provisions of section 3.1.2, Contracting Governments shall decide the extent of application of this Part of the Code to those port facilities within their territory which, although used primarily by ships not engaged on international voyages, are required, occasionally, to serve ships arriving or departing on an international voyage.

3.2.1. Contracting Governments shall base their decisions, under section 3.2, on a port facility security assessment carried out in accordance with this Part of the Code.

3.2.2. Any decision which a Contracting Government makes, under section 3.2, shall not compromise the level of security intended to be achieved by chapter XI-2 or by this Part of the Code.

3.3. This Code does not apply to warships, naval auxiliaries or other ships owned or operated by a Contracting Government and used only on Government non-commercial service.

3.4. Sections 5 to 13 and 19 of this part apply to Companies and ships as specified in regulation XI-2/4.

3.5. Sections 5 and 14 to 18 of this part apply to port facilities as specified in regulation XI-2/10.

3.6. Nothing in this Code shall prejudice the rights or obligations of States under international law.

4. RESPONSIBILITIES OF CONTRACTING GOVERNMENTS

4.1. Subject to the provisions of regulation XI-2/3 and XI-2/7, Contracting Governments shall set security levels and provide guidance for protection from security incidents. Higher security levels indicate greater likelihood of occurrence of a security incident. Factors to be considered in setting the appropriate security level include:

.1 the degree that the threat information is credible;

.2 the degree that the threat information is corroborated;

.3 the degree that the threat information is specific or imminent; and

.4 the potential consequences of such a security incident.

4.2. Contracting Governments, when they set security level 3, shall issue, as necessary, appropriate instructions and shall provide security related information to the ships and port facilities that may be affected.

4.3. Contracting Governments may delegate to a recognized security organization certain of their security related duties under chapter XI-2 and this Part of the Code with the exception of:

.1 setting of the applicable security level;

.2 approving a Port Facility Security Assessment and subsequent amendments to an approved assessment;

.3 determining the port facilities which will be required to designate a Port Facility Security Officer;

.4 approving a Port Facility Security Plan and subsequent amendments to an approved plan;

.5 exercising control and compliance measures pursuant to regulation XI-2/9; and

.6 establishing the requirements for a Declaration of Security.

4.4. Contracting Governments shall, to the extent they consider appropriate, test the effectiveness of the Ship or the Port Facility Security Plans, or of amendments to such plans, they have approved, or, in the case of ships, of plans which have been approved on their behalf.

5. Declaration of security

5.1. Contracting Governments shall determine when a Declaration of Security is required by assessing the risk the ship/port interface or ship to ship activity poses to persons, property or the environment.

5.2. A ship can request completion of a Declaration of Security when:

.1 the ship is operating at a higher security level than the port facility or another ship it is interfacing with;

.2 there is an agreement on a Declaration of Security between Contracting Governments covering certain international voyages or specific ships on those voyages;

.3 there has been a security threat or a security incident involving the ship or involving the port facility, as applicable;

.4 the ship is at a port which is not required to have and implement an approved port facility security plan; or

.5 the ship is conducting ship to ship activities with another ship not required to have and implement an approved ship security plan.

5.3. Requests for the completion of a Declaration of Security, under this section, shall be acknowledged by the applicable port facility or ship.

5.4. The Declaration of Security shall be completed by:

.1 the master or the ship security officer on behalf of the ship(s); and, if appropriate,

.2 the port facility security officer or, if the Contracting Government determines otherwise, by any other body responsible for shore-side security, on behalf of the port facility.

5.5. The Declaration of Security shall address the security requirements that could be shared between a port facility and a ship (or between ships) and shall state the responsibility for each.

5.6. Contracting Governments shall specify, bearing in mind the provisions of regulation XI-2/9.2.3, the minimum period for which Declarations of Security shall be kept by the port facilities located within their territory.

5.7. Administrations shall specify, bearing in mind the provisions of regulation XI-2/9.2.3, the minimum period for which Declarations of Security shall be kept by ships entitled to fly their flag

6. Obligations of the Company

6.1. The Company shall ensure that the ship security plan contains a clear statement emphasizing the master's authority. The Company shall establish in the ship security plan that the master has the overriding authority and responsibility to make decisions with respect to the safety and security of the ship and to request the assistance of the Company or of any Contracting Government as may be necessary.

6.2. The Company shall ensure that the company security officer, the master and the ship security officer are given the necessary support to fulfil their duties and responsibilities in accordance with chapter XI-2 and this Part of the Code.

7. Ship security

7.1. A ship is required to act upon the security levels set by Contracting Governments as set out below.

7.2. At security level 1, the following activities shall be carried out, through appropriate measures, on all ships, taking into account the guidance given in part B of this Code, in order to identify and take preventive measures against security incidents:

.1 ensuring the performance of all ship security duties;

.2 controlling access to the ship;

.3 controlling the embarkation of persons and their effects;

.4 monitoring restricted areas to ensure that only authorized persons have access;

.5 monitoring of deck areas and areas surrounding the ship;

.6 supervising the handling of cargo and ship's stores; and

.7 ensuring that security communication is readily available.

7.3. At security level 2, the additional protective measures, specified in the ship security plan, shall be implemented for each activity detailed in section 7.2, taking into account the guidance given in part B of this Code.

7.4. At securi