Circular letter
MSC/Circ.1132
GUIDANCE RELATING TO THE IMPLEMENTATION OF SOLAS CHAPTER XI-2 AND THE ISPS CODE
(adopted on 10 December 2004)
1.
The Maritime Safety Committee (the Committee), at its seventy-ninth session (1
to 10 December 2004), recognizing the need for additional information to assist
SOLAS Contracting Governments and the industry with the implementation of, and
compliance with SOLAS chapter XI-2 and the ISPS Code, developed the Guidance
relating to the implementation of SOLAS chapter XI-2 and of the ISPS Code set
out in the annex.
2.
The Guidance addresses a series of issues which have arose, following the entry
into force on 1 July 2004 of the special measures to enhance maritime security,
as a result of the implementation or interpretation of the provisions of SOLAS
chapter XI-2 and the ISPS Code.
3.
The Committee reminds SOLAS Contracting Governments and all those who may be
involved with the implementation or interpretation of the provisions of the
special measures to enhance maritime security that paragraph B/1.5 of the ISPS
Code states that the reader of the ISPS Code is advised that:
"nothing in
part В of this Code should be read or interpreted in conflict with any of the
provisions of either SOLAS chapter XI-2 or part A of this Code and that the
aforesaid provisions always prevail and override any unintended inconsistency
which may have been inadvertently expressed in part В of this Code. The
guidance provided in part В of this Code should al-ways be read, interpreted
and applied in a manner which is consistent with the aims, objectives and
principles established in chapter XI-2 and part A of this Code."
4.
The Committee invites SOLAS Contracting Governments, international
organizations and non-governmental organizations with consultative status to
bring to the attention Designated Authorities, Administrations and all parties
concerned and responsible for the implementation of special measures to enhance
maritime security the attached Guidance.
Annex.
GUIDANCE RELATING TO THE IMPLEMENTATION OF SOLAS CHAPTER XI-2 AND THE ISPS CODE
SETTING AND RESPONDING TO SECURITY LEVELS
1.
Security levels can only be set by a SOLAS Contracting Government (Contracting
Government).
2.
Under SOLAS regulation XI-2/3 on Obligations of Contracting Governments with
respect to security Contracting Governments, in their capacity as
Administrations, set the security levels applying to their ships (SOLAS
regulation XI-2/3.1) and Contracting Governments set security levels applying
to port facilities within their territory and to ships prior to entering a port
or whilst in a port within their territory (SOLAS regulation XI-2/3.2).
3.
Administrations have to ensure that security-level information is provided to
ships entitled to fly their flag and Contracting Governments have to ensure
that security-level information is provided to port facilities located within
their territory and to ships prior to entering a port and when in a port within
their territory. Security-level information has to be up-dated as circumstances
dictate.
4.
Under SOLAS regulation XI-2/7 on Threats to ships Contracting Governments set
the security levels applying to their territorial sea and have to ensure the
provision of security-level information to ships operating in their territorial
sea or having communicated their intention to enter their territorial sea. It
is for the ship to determine what action it takes having received security
level information applying to all, or part, of a State's territorial sea.
5.
The same security level can apply to all an Administration's ships or different
security level can apply to a particular ship or a group of ships as determined
by the Administration.
6.
A Contracting Government can set the same security level to apply to all its
ports and port facilities or apply different security levels to a specific port
or port facility, to a group of ports or port facilities or to part of a port
or a port facility. Similarly a Contracting Government can set the same
security level to apply to all of its territorial sea or different security
levels to apply to different parts of their territorial sea.
7.
Under SOLAS regulation XI-2/4.3 a ship prior to entering a port or when in a
port within the territory of a Contracting Government shall comply with the requirements
for the security level set by that Contracting Government if the security level
is higher than that set by the ship's Administration. Under section A/7.6 of
the ISPS Code, prior to entering a port or whilst in a port within the
territory of a Contracting Government, ships shall confirm to the port facility
security officer (PFSO) the initiation of the implementation of the appropriate
measures and procedures as detailed in the ship security plan, and shall report
any difficulties in implementation. A ship can never have a security level
lower than that applying to the port or port facility the ship is entering or
is in (paragraph B/4.12 of the ISPS Code).
8.
SOLAS regulation XI-2/4.5 also requires ships to report if they cannot comply
with the security level set by their Administration or by a Contracting
Government and applicable to that ship. MSC/Circ.1097 on "Guidance
relating to the implementation of SOLAS chapter XI-2 and the ISPS Code»
provides further guidance on this requirement.
9.
If a ship entering a port or within a port, is operating at a security level
set by its Administration which is higher than that set by the port's
Contracting Government, arrangements have to be agreed with the PFSO to allow
the ship to continue to operate at the security level set by its
Administration. A Contracting Government or PFSO cannot require a ship to
reduce that ship's security level.
10.
Notwithstanding the set security level applying to a ship, port or port
facility or territorial sea, if a threat emerges or an incident occurs the ship
or port facility will have to respond to the threat or incident as it develops,
in accordance with the ship or the port facility security plan, without waiting
for the Administration or Contracting Government to set a higher security
level. The initiation of an appropriate response to an emerging threat or
actual incident cannot, and should not, await change of the security level by
the Administration or Contracting Government. The ship or port facility should
report the threat or incident, and the action taken, to the Administration
and/or Contracting Government at the earliest practicable opportunity.
11.
Under SOLAS regulation XI-2/10.3 Contracting Governments determine when the
submission of a Declaration of Security (DoS) from a ship is to be required by
a port facility. Section A/5.2 of the ISPS Code specifies when a ship can
request a DoS from a port facility. Paragraphs B/5.1 to B/5.6 of the ISPS Code
offer guidance in relation to DoS. The practice of requiring or responding to
requests for a DoS should be set out in the Port Facility Security Plan (PFSP)
and that on requesting a DoS in the Ship Security Plan (SSP).
12.
Though a ship has to comply with a request from a port facility to complete a
DoS, a port facility does not have to com-ply with a request for the completion
of a DoS from a ship, though a request from a ship to complete a DoS has to be
acknowledged by the port facility (section A/5.3 of the ISPS Code). In the same
way another ship does not have to comply with the request for a DoS though it
should acknowledge receipt of the request (section A/5.3 of the ISPS Code).
13.
The DoS is intended to be used in exceptional cases usually related to higher
risk, when there is a need to reach an agreement between the port facility and
the ship as to the security measures to be applied during the ship/port
interface because, either the provisions of the PFSP and of the SSP did not
envisage the situation or SOLAS chapter XI-2 and part A of the ISPS Code have
not anticipated the specific circumstances as listed in section A/5.2 of the
ISPS Code. There should be a security-related reason relating to the specific
ship/port interface or ship-to-ship activity for requiring or requesting completion
of a DoS.
14.
Experience since entry into force of the special measures to enhance maritime
security has shown that DoS are being frequently requested by ships, in part
because ships anticipate being requested to produce DoS covering previous port visits
or ship-to-ship activities by duly authorized officers by a Contracting
Government (duly authorized officers) to exercise control and compliance
measures pursuant to the provisions of SOLAS regulation XI-2/9. However, while
a ship can request a DoS the port facility or other ship is not required to
complete one.
15.
Unless there are specific security reasons for doing so relating to the
specific ship/port interface or ship-to-ship activity, a ship should not
request a DoS. The circumstances specified in section A/5.2 of the ISPS Code
should apply. A DoS should not normally be completed if both the ship, port
facility or other ship covered by the ISPS Code are operating at security level
1.
16.
Under section A/5.2 of the ISPS Code a ship can request completion of a DoS
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;
.5 the ship is
conducting ship-to-ship activities with another ship not required to have and
implement an approved ship security plan.
17.
Duly authorized officers can inspect those DoS that have been completed during
the last 10 calls at port facilities and any evidence that the request by a
ship for a DoS, during the period of the last 10 calls at port facilities,
where applicable, was acknowledged by a port facility or another ship even
though the port facility or the other ship did not comply with the request.
Duly authorized officers should not expect ships to have DoS covering all
previous port calls or ship-to-ship activities.
THE NEED FOR AND THE
BENEFITS FROM AN EFFECTIVE AND CONTINUING DIALOGUE
18.
Effective and continuing dialogue between Company and Ship Security Officers
and PFSOs, duly authorized officers and control authorities is central to the
efficient implementation of the security regime established under SOLAS chapter
XI-2 and the ISPS Code. Without such dialogue issues can arise which could lead
to possible misunderstandings and the risk of delay or disruption to ship/port
interfaces, the ability of shipboard personnel to exercise effective access
controls to their ship or undertake essential safety related inspections or
safety exercises.
19.
In most cases dialogue on security-related matter will be between the ship and
the PFSO. If issues arise which are the responsibility of Government control
authorities operating at the port facility, the PFSO should seek to facilitate
dialogue between the ship and such authorities, for example by providing the
contact details of the relevant authority.
20.
To the extent that such dialogue involves the exchange of security-related
information including, for example, information on the security level the ship
is operating, details of the ship's access controls or the timing of ship
related exercises they should be conducted by secure means and, if possible,
the transmission of such information using VHP should avoided.
21.
All ships to which SOLAS chapter XI-2 and the ISPS Code applies are required to
exercise appropriate access controls in accordance with their SSPs. The purpose
of such dialogue is to secure agreement on the procedures to be followed when
the ship is in port. Examples of situations where such dialogue and agreement
would be beneficial include, but are not limited to:
— pilots;
— stevedore
identification;
— safety related
inspections undertaken by the shipboard personnel requiring access to the
immediate vicinity of the ship;
- undertaking
lifeboat and evacuation drills and exercises;
- access to the
ship by shore based personnel, by owner's representatives, safety inspectors or
auditors, maintenance and repair personnel and representatives of seafarers`
welfare and labour organizations.
22.
Control of access by shore based personnel to ships when in port should be
regulated under the provisions of the respective PFSP. The circumstances when
access to ships through the port facility is restricted, or denied, to owners'
representatives, safety inspectors or auditors, maintenance and repair
personnel and representatives of seafarers' welfare and labour organizations
should be specified in the PFSP and approved by the Contracting Government. In
general every effort should be made to facilitate such access unless there are
specific security related reasons specified in the PFSP for not doing so.
23.
The ISPS Code requires all those wishing to board the ship to have a means of
identification which is acceptable to that ship. This includes stevedores and
other port workers. Stevedores and other port workers should carry
identification issued by the port facility or a local authority responsible for
the engagement or employment of stevedores. The dialogue between the ship and
the PFSO should establish how access to the ship by stevedores and