Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (Text with EEA relevance)

REGULATION (EC) No 725/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 31 March 2004

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,

Having regard to the Opinion of the European Economic and Social Committee ([^E0001]),

Having consulted the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty ([^E0002]),

Whereas:

• (1) Intentional unlawful acts and especially 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 and of the environment in the face of threats of intentional unlawful acts such as acts of terrorism, acts of piracy or similar, should be ensured at all times.

• (3) In connection with the transport of goods containing especially dangerous substances, such as chemical and radioactive substances, the potential consequences of the threats posed by intentional unlawful acts for Union citizens and the environment are very serious.

• (4) On 12 December 2002 the Diplomatic Conference of the International Maritime Organisation (IMO) adopted amendments to the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention) and an International Ship and Port Facility Security Code (ISPS Code). 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.

• (5) 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 IMO on 12 December 2002. Implementing powers should be conferred on the Commission to adopt detailed implementing provisions.

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

• (7) 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.

• (8) 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.

• (9) 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 11 of the special measures to enhance maritime security 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.

• (10) 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.

• (11) Member States should vigorously monitor compliance with the security rules by ships intending to enter a Community port, whatever their origin. The Member State concerned should appoint a ‘competent authority for maritime security’ responsible for coordinating, implementing and monitoring the application of the security measures laid down in this Regulation as they apply to ships and port facilities. This authority should 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.

• (12) Member States should be permitted to grant exemptions from the systematic requirement to provide the information referred to in recital (11) 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.

• (13) Security checks in the port may be carried out by the competent authorities for maritime security 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 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) ([^E0003]). Where different authorities are concerned, provision must therefore be made for them to complement each other.

• (14) 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.

• (15) The effective and standard application of measures under this policy raises important questions in relation to its funding. Funding certain additional security measures ought not to give rise to distortions of competition. To this end, the Commission should immediately undertake a study (intended to address in particular the way financing is shared between the public authorities and the operators, without prejudice to the distribution of competences between the Member States and the European Community) and to submit the results and, if appropriate, any proposals to the European Parliament and the Council.

• (16) 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 ([^E0004]). A procedure should be defined for the adaptation of this Regulation in the light of experience, to make mandatory further provisions of Part B of the ISPS Code not initially made mandatory by this Regulation.

• (17) Since the objectives of this Regulation, namely the introduction and implementation 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 as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

Article 1

Objectives

Article 2

Definitions

For the purposes of this Regulation:

• 1.‘special measures to enhance maritime security of the SOLAS Convention’ means the amendments, as attached as Annex I to this Regulation, inserting the new Chapter XI-2 into the Annex to the SOLAS Convention of the IMO, in its up-to-date version,

• 2.‘ISPS Code’ means the International Ship and Port Facility Security Code of the IMO, in its up-to-date version,

• 3.‘Part A of the ISPS Code’ means the Preamble and the mandatory requirements forming Part A of the ISPS Code, as attached as Annex II to this Regulation, concerning the provisions of Chapter XI-2 of the Annex to the SOLAS Convention in its up-to-date version,

• 4.‘Part B of the ISPS Code’ means the guidelines forming Part B of the ISPS Code, as attached as Annex III to this Regulation, regarding the provisions of chapter XI-2 of the Annex to the SOLAS Convention, as amended, and of Part A of the ISPS Code, in its up-to-date version,

• 5.‘maritime security’ means the combination of preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts,

• 6.‘focal point for maritime security’ means the body designated by each Member State to serve as a contact point for the Commission and other Member States and to facilitate, follow up and inform on the application of the maritime security measures laid down in this Regulation,

• 7.‘competent authority for maritime security’ means an authority designated by a Member State to coordinate, implement and monitor the application of the security measures laid down in this Regulation in respect of ships and/or one or more port facilities. The competences of this authority may differ depending on the tasks assigned to it,

• 8.‘international shipping’ means any maritime transport service by ship from a port facility of a Member State to a port facility outside that Member State, or conversely,

• 9.‘domestic shipping’ means any transport service by ship in sea areas from a port facility of a Member State to the same port facility or another port facility 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 port facilities: (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,

• 13.‘intentional unlawful act’ means a deliberate act, which, by its nature or context, could harm the vessels used for international or national maritime traffic, their passengers or their cargoes, or the port facilities connected therewith.

Article 3

Joint measures and scope

Member States shall notify the Commission of such decisions when they are adopted, as well as of the periodic review, which must take place at intervals of no more than five years.

• —1.12 (revision of ship security plans),

• —1.16 (port facility security assessment),

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

• —4.4 (recognised security organisations),

• —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),

• —9.4 (independence of recognised security organisations),

• —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).

Article 4

Communication of information

Each Member State shall communicate the said list to the other Member States and to the Commission by 1 July 2004 at the latest. The Commission and any Member State concerned shall also be given sufficient details of the measures taken.

Article 5

Alternative security agreements or equivalent security arrangements

The Member States concerned shall notify the agreements to the Commission and provide sufficient details of the measures to allow the Commission to consider whether the agreements compromise the level of security of other ships or port facilities not covered by the agreements. The details of the measures directly linked to national security, if any, may be omitted from the notification to the Commission.

The Commission shall examine whether the agreements guarantee an adequate level of protection, in particular as regards the requirements of paragraph 2 of the abovementioned SOLAS regulation 11, and whether they conform with Community law and are in accordance with the proper functioning of the internal market. If the agreements do not meet these criteria, the Commission shall within four months adopt a decision in accordance with the procedure referred to in Article 11(3); in such cases, the Member States concerned shall revoke or adapt the agreements accordingly.

The Member State concerned shall communicate to the Commission sufficient details of such arrangements when they are adopted, and the outcome of periodic reviews thereof, at the latest five years after they were adopted or last reviewed.

The conditions of application of such arrangements shall be subject to the Commission inspections provided for in Article 9(4), (5) and (6) of this Regulation under the procedures defined therein.

Article 6

Provision of security information prior to entry into a port of a Member State

• (a)at least 24 hours in advance; or

• (b)at the latest, at the time the ship leaves the previous port, if the voyage time is less than 24 hours; or

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

Article 7

Exemptions from the provision of security information prior to entry into a port

• (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 maritime security for 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 maritime 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 for maritime security.

Article 8

Security checks in Member State ports

Article 9

Implementation and conformity checking

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

Article 10

Integration of amendments to international instruments

On imperative grounds of urgency, the Commission may have recourse to the urgency procedure referred to in Article 11(5).

The procedure for checking conformity may be used solely to make amendments to this Regulation in the fields expressly covered by the procedure referred to in Article 11(2) and strictly within the framework of exercise of implementing powers conferred on the Commission.

The Commission shall submit to the Committee set up in Article 11(1), without delay, after the adoption of an amendment to an international instrument, a proposal for measures with the aim of excluding the amendment in question from this Regulation.

The procedure for checking conformity, including, if applicable, the procedures set up in Article 5(6) of Decision 1999/468/EC, shall be completed at least one month before the expiration of the period established internationally for the tacit acceptance of the amendment concerned or the envisaged date for the entry into force of said amendment.

Article 11

Committee procedure

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

The periods laid down in Article 6(b) and (c) respectively of Decision 1999/468/EC shall be set at one month.

Article 12

Confidentiality

In applying this Regulation, the Commission shall take, in accordance with the provisions of Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 amending its internal Rules of Procedure ([^E0006]), appropriate measures to protect information subject to the requirement of confidentiality to which it has access or which is communicated to it by Member States.

The Member States shall take equivalent measures in accordance with relevant national legislation.

Any personnel carrying out security inspections, or handling confidential information related to this Regulation, must have an appropriate level of security vetting by the Member State of the nationality of the personnel concerned.

Article 13

Dissemination of information

Article 14

Sanctions

Member States shall ensure that effective, proportionate and dissuasive sanctions for breaching the provisions of this Regulation are introduced.

Article 15

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 Articles 3(2) and (3), and 9(4), which shall enter into force on and apply from the dates specified therein.

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

ANNEX I

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

• 1For the purpose of this chapter, unless expressly provided otherwise: .1Bulk carrier means a bulk carrier as defined in regulation IX/1.6. .2Chemical tanker means a chemical tanker as defined in regulation VII/8.2. .3Gas carrier means a gas carrier as defined in regulation VII/11.2. .4High-speed craft means a craft as defined in regulation X/1.2. .5Mobile offshore drilling unit means a mechanically propelled mobile offshore drilling unit, as defined in regulation IX/1, not on location. .6Oil tanker means an oil tanker as defined in regulation II-1/2.12. .7Company means a Company as defined in regulation IX/1. .8Ship/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. .9Port 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. .10Ship 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. .11Designated Authority means the organisation(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. .12International 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 Organisation, provided that: .1amendments 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 .2amendments to part B of the Code are adopted by the Maritime Safety Committee in accordance with its Rules of Procedure. .13Security 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. .14Security level means the qualification of the degree of risk that a security incident will be attempted or will occur. .15Declaration 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. .16Recognised security organisation means an organisation with appropriate expertise in security matters and with appropriate knowledge of ship and port operations authorised 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.

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

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

• 4The 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:

• .1the 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

• .2port 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

• 1Administrations 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.

• 2Contracting 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

• 1Companies 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.

• 2Ships 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.

• 3Prior 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.

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

• 5Where 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:

• .1who 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;

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

• .3in 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

• 1All ships shall be provided with a ship security alert system, as follows: .1ships constructed on or after 1 July 2004; .2passenger 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; .3oil 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 .4other 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: .1initiate 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; .2not send the ship security alert to any other ships; .3not raise any alarm on-board the ship; and .4continue the ship security alert until deactivated and/or reset.

• 3The ship security alert system shall: .1be capable of being activated from the navigation bridge and in at least one other location; and .2conform to performance standards not inferior to those adopted by the Organisation.

• 4The ship security alert system activation points shall be designed so as to prevent the inadvertent initiation of the ship security alert.

• 5The 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.

• 6When 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.

• 7When 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

• 1Contracting 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.

• 2Contracting 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.

• 3Where a risk of attack has been identified, the Contracting Government concerned shall advise the ships concerned and their Administrations of: .1the current security level; .2any 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 .3security measures that the coastal State has decided to put in place, as appropriate.

Regulation 8   Master's discretion for ship safety and security

• 1The 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 authorised by a Contracting Government) or their effects and refusal to load cargo, including containers or other closed cargo transport units.

• 2If, 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 Ship 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 when no valid Certificate is produced when required, the officers duly authorised 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 authorised 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:

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

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

• .3the 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;

• .4any 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;

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

• .6other 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 authorised 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:

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

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

• .3inspection 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

• .4denial 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.

• 1. Additional provisions

• 3.1 In the event:

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

• .2any of the steps referred to in paragraph 2.5 are taken, an officer duly authorised 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 recognised security organisation, which issued the Certificate relating to the ship concerned and the Organisation 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 Organisation. 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 authorised 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:

• .1all 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

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

Regulation 10   Requirements for port facilities

• 1Port 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.

• 2Contracting Governments with a port facility or port facilities within their territory, to which this regulation applies, shall ensure that: .1port facility security assessments are carried out, reviewed and approved in accordance with the provisions of part A of the ISPS Code; and .2port 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

• 1Contracting 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.

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

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

• 4Such 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

• 1An 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 Organisation particulars thereof.

• 2When 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 Organisation particulars thereof.

Regulation 13   Communication of information

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

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

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

• .3the 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;

• .4the 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

• .5the 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 Organisation 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 Organisation the names and contact details of any recognised security organisations authorised to act on their behalf together with details of the specific responsibility and conditions of authority delegated to such organisations. Such information shall be updated as and when changes relating thereto occur. The Organisation 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 Organisation 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:

• .1changes 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;

• .2an approved port facility security plan, previously included in the list submitted to the Organisation, 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 Organisation as soon as is practically possible; and

• .3additions 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 Organisation 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 Organisation, pursuant to paragraph 3, during the preceding five years.

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

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

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

• .3the periodicity of review of the agreement;

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

• .5information on any consultations which have taken place with other Contracting Governments;

and thereafter shall communicate, as soon as practically possible, to the Organisation 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 Organisation particulars thereof.

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

ANNEX II

‘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 cooperate 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 Organisation (“the Organisation”), 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 Organisation's Maritime Safety Committee (MSC) on the basis of submissions made by Member States, intergovernmental organisations and non-governmental organisations in consultative status with the Organisation.

• 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 May 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 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 cooperation, and cooperative work with the International Labour Organisation and World Customs Organisation. It was recognised that review and amendment of certain of the new provisions regarding maritime security may be required on completion of the work of these two Organisations.

• 5.The provisions 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 Organisation and the International Labour Organisation. 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 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 recognised that they may place a significant additional burden on certain Contracting Governments. The importance of technical cooperation to assist Contracting Governments implement the provisions is fully recognised.

• 8.Implementation of the provisions will require continuing effective cooperation 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 recognised 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 Organisation Declaration of Fundamental Principles and Rights at Work as well as international standards concerning maritime and port workers.

• 11.Recognising 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 ANNEX TO 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 of 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:

• .1to establish an international framework involving cooperation 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;

• .2to 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;

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

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