Vol. 148, No. 14 — July 2, 2014

Registration

SOR/2014-162 June 19, 2014

MARINE TRANSPORTATION SECURITY ACT

Regulations Amending the Marine Transportation Security Regulations

P.C. 2014-814 June 18, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to subsection 5(1) (see footnote a) and section 51 (see footnote b) of the Marine Transportation Security Act (see footnote c), makes the annexed Regulations Amending the Marine Transportation Security Regulations.

REGULATIONS AMENDING THE MARINE TRANSPORTATION SECURITY REGULATIONS

AMENDMENTS

1. The heading before section 1 of the French version of the Marine Transportation Security Regulations (see footnote 1) is replaced by the following:

DÉFINITIONS ET INTERPRÉTATION

2. (1) The definitions “certain dangerous cargoes” and “security clearance” in section 1 of the Regulations are repealed.

(2) The definition “breach of security” in section 1 of the English version of the Regulations is repealed.

(3) The definitions “CDC facility”, “ferry”, “interface”, “MARSEC level 1”, “MARSEC level 2”, “MARSEC level 3”, “occasional-use marine facility”, “port administration”, “security incident”, “security threat” and “towing vessel” in section 1 of the Regulations are replaced by the following:

“CDC facility” means a marine facility where any of the following operations are carried out:

“ferry” means a vessel that is used exclusively for the carriage of passengers, vehicles, or passengers in vehicles and that operates on a fixed schedule between two or more points. (traversier)

“interface” means the interaction that occurs between a vessel and a marine facility, or between a vessel and another vessel, throughout the time that the vessel is alongside the marine facility or throughout the vessel-to-vessel activity, and includes the activities affected by the movement of persons and their goods, by the movement of cargo or by the provision of services to and from the vessel. (interface)

“MARSEC level 1” means the level for which minimum security requirements are required to be implemented in accordance with the approved security plan or approved security procedures. (niveau MARSEC 1)

“MARSEC level 2” means the level for which additional security requirements are required to be implemented as a result of heightened risk in accordance with the approved security plan or approved security procedures. (niveau MARSEC 2)

“MARSEC level 3” means the level for which additional security requirements are required to be implemented as a result of a security threat that is probable or imminent, whether or not the specific target is identified, in accordance with the approved security plan or approved security procedures. (niveau MARSEC 3)

“occasional-use marine facility” means a marine facility that, in a calendar year, has 10 or fewer interfaces with vessels to which Part 2 applies. (installation maritime à usage occasionnel)

“port administration” means

“security incident” means an event during which the security of a vessel, marine facility or port is compromised. (incident de sûreté)

“security threat” means any suspicious act or circumstance that could compromise the security of a vessel, marine facility, port or interface. (menace contre la sûreté)

“towing vessel” means a vessel that tows another vessel astern or alongside or that pushes another vessel ahead. (bâtiment remorqueur)

(4) The definition “infraction à la sûreté” in section 1 of the French version of the Regulations is replaced by the following:

« infraction à la sûreté » Violation du présent règlement, de mesures de sûreté établies en vertu du paragraphe 7(1) de la Loi, de règles de sûreté établies en vertu des paragraphes 10(2) ou (3) de la Loi, ou de procédures de sûreté qui sont prévues à un plan de sûreté approuvé ou qui sont approuvées en vertu du paragraphe 360(1), qui n’entraîne pas d’incident de sûreté. (security breach)

(5) Section 1 of the Regulations is amended by adding the following in alphabetical order:

“approved training course” means a course that has been approved under section 803 and that is given by a recognized institution. (cours de formation approuvé)

“CDC residue” means

“certain dangerous cargoes” or “CDCs” means the dangerous goods that are set out in Schedule 4 and that are listed in Schedule 1 to the Transportation of Dangerous Goods Regulations or in Part 3 of the IMDG Code. (certaines cargaisons dangereuses ou CCD)

“IMDG Code” means the International Maritime Dangerous Goods Code, published by the International Maritime Organization, as amended from time to time. (Code IMDG)

“international voyage” means a voyage

“large means of containment” has the meaning assigned by section 1.4 of the Transportation of Dangerous Goods Regulations. (grand contenant)

“marine security document” means any certificate, document or letter issued by the Minister under these Regulations. (document de sûreté maritime)

“MARSEC level” means the level of security requirements that is set by the Minister to reflect the threat environment for vessels, marine facilities and ports. (niveau MARSEC)

“non-SOLAS ship” means a vessel that is not a SOLAS ship, that is engaged on an international voyage, and that

“operator” means, in respect of a vessel,

“port” means

“recognized institution” means a training institution that is designated as a recognized institution by the Minister under section 803.1 and that administers, in accordance with the requirements and established practices of the domestic and international marine industry, approved training courses for the purpose of providing the training necessary to obtain a certificate of proficiency issued under Part 8. (établissement reconnu)

“SOLAS ship” means a vessel that

“STCW Code” means the Seafarers’ Training, Certification and Watchkeeping Code, published by the International Maritime Organization, as amended from time to time. (Code STCW)

“STCW Convention” means the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, published by the International Maritime Organization, as amended from time to time. (Convention STCW)

“transportation security clearance” means a security clearance granted by the Minister under section 509. (habilitation de sécurité en matière de transport)

“vessel personnel with security responsibilities” means crew members, other than the vessel security officer or the company security officer, who have security responsibilities under the vessel’s security plan. (personnel du bâtiment ayant des responsabilités en matière de sûreté)

“vessel personnel without security responsibilities” means crew members, other than the vessel security officer or the company security officer, who do not have security responsibilities under the vessel’s security plan. (personnel du bâtiment n’ayant pas des responsabilités en matière de sûreté)

(6) Section 1 of the English version of the Regulations is amended by adding the following in alphabetical order:

“security breach” means a violation of these Regulations, of a security measure formulated under subsection 7(1) of the Act, of a security rule formulated under subsection 10(2) or (3) of the Act, or of a security procedure set out in an approved security plan or approved under subsection 360(1), that does not result in a security incident. (infraction à la sûreté)

(7) Section 1 of the Regulations is renumbered as subsection 1(1) and is amended by adding the following:

(2) For the purpose of interpreting the ISPS Code, “company” shall be read to mean “operator”.

(3) For the purposes of the definition “international voyage” in subsection (1), a vessel that is entitled to fly the Canadian flag

(4) For the purposes of the definition “certain dangerous cargoes” or “CDCs” in subsection (1), a reference to a UN number in Schedule 4 is a reference to the goods that are listed in Schedule 1 to the Transportation of Dangerous Goods Regulations or in Part 3 of the IMDG Code.

3. The reference “[2 to 10 reserved]” after section 1 of the Regulations is replaced by the following:

2. For greater certainty, nothing in these Regulations derogates from any right otherwise provided to a representative of seafarers’ welfare and labour organizations to access a vessel or a marine facility, unless there is an immediate threat to the safety and security of the vessel or marine facility.

[3 to 10 reserved]

4. Section 11 of the Regulations and the headings before it are replaced by the following:

PART 1

GENERAL

MARSEC LEVEL, OFFICIAL LANGUAGES AND PRESCRIBED GROUNDS

11. The operator of a vessel to which Part 2 applies and the operator of a marine facility or a port administration to which Part 3 applies shall maintain MARSEC level 1 at all times unless a higher MARSEC level is required by the Minister.

5. The portion of section 12 of the Regulations before paragraph (a) is replaced by the following:

12. The operator of a vessel that is entitled to fly the Canadian flag and to which Part 2 applies, and the operator of a marine facility to which Part 3 applies, other than the operator of a marine facility that is referred to in paragraph (a) of the definition “port administration” in subsection 1(1) or the security officer referred to in paragraph (b) of that definition, shall ensure that, where there is a significant demand from at least 5 per cent of the travelling public for services in either official language within the meaning of the Official Languages (Communications with and Services to the Public) Regulations,

6. The reference “[14 to 199 reserved]” after section 13 of the Regulations is replaced by the following:

SUSPENSION OR CANCELLATION OF MARINE SECURITY DOCUMENTS

14. (1) The Minister shall suspend or cancel a marine security document issued to the operator of a vessel or marine facility, or to a port administration, if the Minister has reasonable grounds to believe that

(2) The Minister shall notify the operator or the port administration of the suspension or cancellation by notice served in accordance with section 701. The notice shall include

(3) The suspension or cancellation takes effect

(4) If a marine security document is suspended or cancelled, the operator or port administration to which it was issued shall return it immediately to the Minister.

REVIEWS AND APPEALS

15. The Tribunal has jurisdiction in respect of reviews and appeals under sections 16 to 19.

16. (1) The operator of a vessel or marine facility, or a port administration, may file with the Tribunal a written request for a review of a suspension or cancellation referred to in subsection 14(1) on or before the date specified in the notice of suspension or cancellation or within any further time that the Tribunal allows on application.

(2) A request for a review does not operate as a stay of the suspension or cancellation.

17. (1) On receipt of a request filed under section 16, the Tribunal shall appoint a time and place for the review and shall notify in writing the Minister and the operator of the vessel or marine facility, or the port administration, of the time and place.

(2) The assigned member of the Tribunal shall confirm the suspension or cancellation or refer the matter back to the Minister for reconsideration.

18. (1) Within 30 days after the day on which a determination is made under subsection 17(2), the operator of the vessel or marine facility, or the port administration, may appeal the determination to the Tribunal.

(2) A party who does not appear at a review hearing is not entitled to appeal a determination unless they establish that there was sufficient reason to justify their absence.

(3) The appeal panel of the Tribunal assigned to hear the appeal shall dismiss it or refer the matter back to the Minister for reconsideration.

19. If a matter is referred back to the Minister for reconsideration under subsection 17(2) or 18(3), the suspension or cancellation remains in effect until the reconsideration is concluded. However, the member who made the determination or the appeal panel, after considering any representations made by the parties, may grant a stay of the suspension or cancellation until the reconsideration is concluded if the member or panel determines that granting a stay would not constitute a threat to marine transportation security.

[20 to 199 reserved]

7. Section 200 of the Regulations and the heading “Interpretation” before it are repealed.

8. Subsection 201(2) of the Regulations is replaced by the following:

(2) This Part does not apply to

(3) For the purposes of subsections 211(6) and 213(2), “Administration” means

9. Subsection 202(4) of the Regulations is replaced by the following:

(4) A certificate issued under subsection (1) or (2) is valid while the vessel security plan is valid.

(5) An interim certificate issued under subsection (3) is valid until the expiry of six months after the day on which it is issued or until a certificate is issued under subsection (1) or (2), whichever comes first.

10. (1) Subsections 203(1) and (2) of the Regulations are replaced by the following:

203. (1) The operator of a SOLAS ship that is entitled to fly the Canadian flag shall ensure that the requirements of sections 204 to 268 are met.

(2) The operator of a non-SOLAS ship that is entitled to fly the Canadian flag shall ensure that the requirements of sections 204 to 221 and 228 to 268 are met.

(2) Paragraph 203(3)(a) of the Regulations is replaced by the following:

(3) Paragraph 203(4)(a) of the Regulations is replaced by the following:

11. (1) Paragraph 204(1)(a) of the Regulations is replaced by the following:

(2) Subsection 204(1) of the Regulations is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

(3) Paragraph 204(2)(d) of the English version of the Regulations is replaced by the following:

(4) Subsection 204(3) of the Regulations is replaced by the following:

(3) The vessel security officer on a SOLAS ship and a member of the vessel personnel with or without security responsibilities on a SOLAS ship shall, if they hold a certificate of proficiency, ensure that their certificate is carried on board.

12. Section 205 of the Regulations is replaced by the following:

205. (1) The operator of a vessel shall

(2) The operator of a SOLAS ship shall permanently mark the ship with the International Maritime Organization Ship Identification Number in accordance with Regulation 3 of Chapter XI-1 of SOLAS.

13. Section 206 of the Regulations is amended by adding the following after subsection (4):

(5) The master shall ensure that the vessel security officer and vessel personnel with or without security responsibilities carry on board

14. (1) The portion of subsection 211(3) of the Regulations before paragraph (a) is replaced by the following:

(3) Subject to subsection (6), a SOLAS ship’s vessel security officer shall hold

(2) Subsections 211(4) and (5) of the Regulations are repealed.

(3) Subsection 211(7) of the Regulations is repealed.

15. Section 212 of the Regulations is amended by adding the following after paragraph (h):

16. Section 213 of the Regulations is replaced by the following:

213. (1) A member of the vessel personnel with security responsibilities on a SOLAS ship shall hold

(2) In circumstances of exceptional necessity, if a member of the vessel personnel with security responsibilities is temporarily unavailable to fulfil his or her security responsibilities on a SOLAS ship, the Administration may permit a member of the vessel personnel without security responsibilities but with a knowledge of the vessel security plan to fulfil those responsibilities until the ship arrives at the next port of call or for a period not exceeding 30 days.

(3) A member of the vessel personnel with security responsibilities on a non-SOLAS ship shall have, by training or job experience, knowledge and competence that are relevant to the industry in which the ship operates in any of the following areas that relate to the member’s responsibilities:

17. Section 214 of the Regulations is replaced by the following:

214. (1) A member of the vessel personnel without security responsibilities on a SOLAS ship shall hold

(2) A member of the vessel personnel without security responsibilities on a non-SOLAS ship, and a contractor engaged on the ship, shall receive security orientation that is appropriate to their duties and the amount of time that they have spent on board the ship. The security orientation shall address the following:

18. (1) Subsection 216(1) of the Regulations is replaced by the following:

216. (1) A security drill may be conducted with other drills, if appropriate, but shall be conducted at least once every three months, except in the case of a vessel that is entitled to fly the Canadian flag and that is not engaged on an international voyage or is not in service at the time that a drill is to be conducted, in which case the drill shall be conducted within one week after the beginning of an international voyage or the return to service.

(2) Subsection 216(3) of the Regulations is repealed.

(3) Subsection 216(5) of the Regulations is replaced by the following:

(5) A documented response to a security incident that was recorded under paragraph 218(1)(c) is considered equivalent to a security drill.

19. (1) Paragraph 217(1)(a) of the Regulations is replaced by the following:

(2) Paragraph 217(1)(d) of the Regulations is replaced by the following:

(3) Section 217 of the Regulations is amended by adding the following after subsection (3):

(4) The implementation of security procedures at MARSEC level 2 or MARSEC level 3 is considered equivalent to a security exercise.

20. Subsection 218(1) of the Regulations is amended by adding the following after paragraph (d):

21. Paragraph 219(2)(a) of the Regulations is replaced by the following:

22. (1) Paragraphs 221(2)(g) to (i) of the Regulations are replaced by the following:

(2) Paragraphs 221(2)(m) and (n) of the Regulations are replaced by the following:

(3) Paragraph 221(2)(r) of the Regulations is replaced by the following:

(4) Paragraph 221(2)(s) of the English version of the Regulations is replaced by the following:

(5) Paragraph 221(2)(t) of the Regulations is replaced by the following:

(6) Subsection 221(2) of the Regulations is amended by striking out “and” at the end of paragraph (w), by adding “and” at the end of paragraph (x) and by adding the following after paragraph (x):

(7) Subsection 221(3) of the Regulations is replaced by the following:

(3) If there is any change in the pre-arrival information reported under subsection (1), the master of a vessel shall ensure

23. Subsection 233(4) of the Regulations is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

24. Subsection 234(2) of the Regulations is amended by striking out “and” at the end of paragraph (t) and by adding the following after paragraph (u):

25. Paragraph 256(c) of the Regulations is replaced by the following:

26. Subsection 257(3) of the Regulations is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

27. The reference “[266 to 299 reserved]” after section 265 of the Regulations is replaced by the following:

ACCESS

Prohibition

266. The operator of a SOLAS ship or a non-SOLAS ship shall not allow a person to board the ship unless the person is

267. (1) No person shall enter or remain in a restricted area on a SOLAS ship or a non-SOLAS ship unless the person is

(2) No person shall provide another person with access to a restricted area or assistance in entering a restricted area unless that other person is a person referred to in any of paragraphs (1)(a) to (e).

Escorted Access

268. (1) A person who is being escorted in a restricted area shall remain with the escort while in the restricted area.

(2) An escort shall remain with the person being escorted, or ensure that another person who is authorized to do so under the security plan acts as the escort, while the person being escorted is in the restricted area.

[269 to 299 reserved]

28. Subsection 302(2) of the Regulations is replaced by the following:

(2) The operator of an occasional-use marine facility shall ensure that the requirements of sections 315 and 355 to 360.1 are met.

29. Section 303 of the Regulations is amended by striking out “and” at the end of paragraph (i), by adding “and” at the end of paragraph (j) and by adding the following after paragraph (j):

30. Subsection 310(3) of the Regulations is replaced by the following:

(3) A documented response to a security incident that was recorded under paragraph 312(1)(c) is considered equivalent to a security drill.

31. (1) Subsections 311(1) and (2) of the Regulations are replaced by the following:

311. (1) Security exercises

(2) Security exercises shall be conducted at least once every calendar year with no more than 18 months between them.

(2) Section 311 of the Regulations is amended by adding the following after subsection (3):

(4) If a marine facility is involved in the implementation of MARSEC level 2 or MARSEC level 3 following a security incident, the implementation of the MARSEC level is considered equivalent to a security exercise.

32. Subsection 324(3) of the Regulations is replaced by the following:

(3) For MARSEC levels 2 and 3, the marine facility security plan shall contain procedures for ensuring that the operator of the marine facility evaluates the need for additional security procedures.

33. Subsection 325(1) of the Regulations is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):

34. The heading before section 346 of the English version of the Regulations is replaced by the following:

Security Threats, Security Breaches and Security Incidents

35. Paragraph 346(c) of the Regulations is replaced by the following:

36. Section 350 of the Regulations and the heading before it are repealed.

37. (1) Subsection 352(1) of the Regulations is replaced by the following:

352. (1) If the Minister is satisfied that a marine facility security plan meets the requirements of this Part, the Minister shall approve the plan and issue a letter of approval certifying that the plan meets the requirements of this Part, unless approving the plan is not in the public interest and is likely to adversely affect marine transportation security.

(2) Subsection 352(2) of the Regulations is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(3) Section 352 of the Regulations is amended by adding the following after subsection (2):

(3) The Minister shall issue, in English or French, an interim statement of compliance in respect of a marine facility if the marine facility security plan has been approved but a security inspector has not yet conducted an inspection under section 23 of the Act to ensure compliance with the requirements of this Part.

(4) The interim statement of compliance is valid until the expiry of six months after the day on which it is issued or until a statement of compliance is issued under subsection (5), whichever comes first.

(5) If the Minister is satisfied, on the basis of an inspection conducted under section 23 of the Act, that the requirements of this Part have been met, the Minister shall issue, in English or French, a statement of compliance in respect of the marine facility.

(6) The interim statement of compliance and the statement of compliance are valid while the approved security plan in respect of the marine facility is valid.

38. The reference “[353 and 354 reserved]” after section 352 of the Regulations is replaced by the following:

Required Documentation

353. No person shall operate a marine facility, except an occasional-use marine facility, without a valid interim statement of compliance issued under subsection 352(3) or a valid statement of compliance issued under subsection 352(5).

[354 reserved]

39. Section 355 of the Regulations is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):

40. The reference “[359 and 360 reserved]” after section 358 of the Regulations is replaced by the following:

Security Procedures

359. (1) Security procedures shall be established for an occasional-use marine facility. The security procedures shall include

(2) The security procedures established for an occasional-use marine facility shall also include procedures, as appropriate to the marine facility’s operations, to control access to the marine facility at each MARSEC level and to

Approval of Security Procedures

360. (1) If the Minister is satisfied that the security procedures for an occasional-use marine facility meet the requirements of section 359, the Minister shall approve the security procedures and issue a letter of compliance certifying that they meet the requirements of this Part, unless approving the security procedures is not in the public interest and is likely to adversely affect marine transportation security.

(2) Security procedures are valid for the period fixed by the Minister, which shall not exceed five years after the day on which they are approved by the Minister. In fixing the period, the Minister shall consider the following:

Required Documentation

360.1 No person shall operate an occasional-use marine facility without a valid letter of compliance issued under subsection 360(1).

41. Section 361 of the Regulations and the heading “Definitions” before it are repealed.

42. Section 362 of the Regulations is amended by striking out “and” at the end of paragraph (g), by adding “and” at the end of paragraph (h) and by adding the following after paragraph (h):

43. Section 364 of the Regulations is renumbered as subsection 364(1) and is amended by adding the following:

(2) The port security committee shall meet at least once a year for the purpose of reviewing its responsibilities that result from the application of subsection (1) and determining on that basis whether any modifications are required to the port security plan.

44. Section 372 of the Regulations is replaced by the following:

372. A port security plan

Submission and Approval

372.1 (1) If the Minister is satisfied that a security plan meets the requirements of this Part, the Minister shall approve the security plan and issue a letter of approval certifying that the plan meets the requirements of this Part, unless approving the plan is not in the public interest and is likely to adversely affect marine transportation security.

(2) The plan is valid for the period fixed by the Minister, which shall not exceed five years after the day on which it is approved by the Minister. In fixing the period, the Minister shall consider the following:

(3) The Minister shall issue, in English or French, an interim statement of compliance in respect of a port if the port security plan has been approved but a security inspector has not yet conducted an inspection under section 23 of the Act to ensure compliance with the requirements of this Part.

(4) The interim statement of compliance is valid until the expiry of six months after the day on which it is issued or until a statement of compliance is issued under subsection (5), whichever comes first.

(5) If the Minister is satisfied, on the basis of an inspection conducted under section 23 of the Act, that the requirements of this Part have been met, the Minister shall issue, in English or French, a statement of compliance in respect of the port.

(6) The interim statement of compliance and the statement of compliance are valid while the approved security plan in respect of the port is valid.

Required Documentation

372.2 No person shall operate a port without a valid interim statement of compliance issued under subsection 372.1(3) or a valid statement of compliance issued under subsection 372.1(5).

45. Section 373 of the Regulations is amended by striking out “and” at the end of subparagraph (f)(iv), by adding “and” at the end of paragraph (g), and by adding the following after paragraph (g):

46. Paragraph 380(1)(d) of the Regulations is amended by striking out “or” at the end of subparagraph (ii), by adding “or” at the end of subparagraph (iii) and by adding the following after subparagraph (iii):

47. (1) Paragraph 503(b) of the Regulations is replaced by the following:

(2) Paragraph 503(d) of the Regulations is replaced by the following:

48. Subsection 701(1) of the Regulations is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (c):

49. The heading of Part 8 of the Regulations is replaced by the following:

CERTIFICATION

50. The heading “DÉFINITIONS ET INTERPRÉTATION” before subsection 800(1) of the French version of the Regulations is replaced by the following:

INTERPRÉTATION

51. (1) Subsection 800(1) of the Regulations is repealed.

(2) The portion of subsection 800(2) of the Regulations before paragraph (a) is replaced by the following:

References in STCW Code

(2) For the purpose of interpreting tables A-VI/5, A-VI/6-1 and A-VI/6-2 of the STCW Code,

(3) The portion of subsection 800(3) of the Regulations before paragraph (a) is replaced by the following:

References in French version of STCW Code

(3) For the purpose of interpreting tables A-VI/5, A-VI/6-1 and A-VI/6-2 of the French version of the STCW Code,

52. The heading before subsection 801(1) of the Regulations is replaced by the following:

ISSUANCE OF A CERTIFICATE OF PROFICIENCY

53. (1) The portion of subsection 801(1) of the Regulations before paragraph (a) is replaced by the following:

Requirements

801. (1) The Minister shall issue a certificate of proficiency to a person if

(2) Paragraph 801(1)(b) of the Regulations is replaced by the following:

(3) Subsection 801(1) of the Regulations is amended by striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:

(4) Subsection 801(3) of the Regulations is replaced by the following:

Alternative before July 1, 2014

(3) The Minister shall issue a certificate of proficiency as a member of the vessel personnel with security responsibilities to a person who commenced sea service before January 1, 2012 if the person

Alternative before July 1, 2014

(4) The Minister shall issue a certificate of proficiency as a member of the vessel personnel without security responsibilities to a person who commenced sea service before January 1, 2012 if the person

54. (1) The portion of subsection 802(1) of the Regulations before paragraph (a) is replaced by the following:

Refusal to issue

802. (1) Despite section 801, the Minister shall refuse to issue a certificate of proficiency to a person if

(2) The portion of subsection 802(2) of the Regulations before paragraph (a) is replaced by the following:

Notice of refusal to issue

(2) If the Minister refuses to issue a certificate of proficiency to a person, the Minister shall notify the person of the refusal. The notice shall include

55. Paragraphs 803(1)(a) and (b) of the Regulations are replaced by the following:

56. The Regulations are amended by adding the following after section 803:

RECOGNIZED INSTITUTION

Designation by Minister

803.1 (1) The Minister shall designate a training institution as a recognized institution if the Minister is satisfied that the training institution administers, in accordance with the established practices and the requirements of the domestic and international marine industry, approved training courses for the purpose of providing the training necessary to obtain a certificate of proficiency issued under this Part.

Monitoring

(2) The approved training courses shall be monitored continuously through a quality management system that conforms to Regulation I/8 of the STCW Convention.

Revocation

(3) The Minister shall revoke the designation of a recognized institution if, after informing the recognized institution that the results of an evaluation conducted by the Minister indicate that the requirements of subsection (1) or (2) are not being met, the Minister is satisfied that timely action has not been taken to correct the deficiencies.

57. Section 804 of the Regulations is replaced by the following:

Suspension or cancellation

804. (1) The Minister shall suspend or cancel a person’s certificate of proficiency if the Minister has reasonable grounds to believe that

Cancellation

(2) The Minister shall cancel a person’s certificate of proficiency if the Minister determines that the person is no longer a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act.

58. The portion of subsection 805(1) of the Regulations before paragraph (a) is replaced by the following:

Notice of suspension or cancellation

805. (1) If the Minister suspends or cancels a person’s certificate of proficiency, the Minister shall notify the person of the suspension or cancellation. The notice shall include

59. Subsection 807(3) of the Regulations is replaced by the following:

Exception

(3) On application in writing by a person whose certificate of proficiency was suspended or cancelled on any of the grounds referred to in paragraph 804(1)(c) or subsection 804(2), a member of the Tribunal assigned for the purpose may, after giving notice to the Minister and after considering any representations made by the parties, grant a stay of the suspension or cancellation until the review is completed if he or she determines that granting a stay would not constitute a threat to marine transportation security.

60. Subsection 809(1) of the Regulations is replaced by the following:

Right of appeal

809. (1) Within 30 days after the day on which a determination is made under subsection 808(2), the certificate holder may appeal the determination to the Tribunal.

61. Sections 811 to 813 of the Regulations are replaced by the following:

Possession of certificate

811. No person shall possess a certificate of proficiency except the person to whom it was issued or the person’s representative.

Production of certificate

812. The holder of a certificate of proficiency shall produce it on the Minister’s request.

Return of certificate

813. If a certificate of proficiency is suspended or cancelled, the person to whom it was issued shall return it to the Minister on request.

62. Schedule 0.1 to the Regulations is repealed.

63. Items 3 to 5 of Part 2 of Schedule 1 to the Regulations are replaced by the following:

3. Vancouver Fraser Port Authority

64. The portion of items 5 and 6 of Schedule 2 to the Regulations in column 3 is replaced by the following:

Item Column 3

Corporation ($)
5. 3,000 to 5,000
6. 3,000 to 5,000

65. Items 99, 120, 209, 293, 374 to 380, 452, 518, 519 and 522 of Schedule 3 to the Regulations are repealed.

66. Schedule 3 to the Regulations is amended by adding the following after item 2:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
2.1 Subsection 14(4) 600 to 2,400 3,000 to 12,000  

67. Schedule 3 to the Regulations is amended by adding the following after item 7:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
7.1 Subsection 203(1) and paragraph 204(1)(f) 250 to 2,400 1,000 to 12,000  

68. Schedule 3 to the Regulations is amended by adding the following after item 10:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
10.1 Subsections 203(1) and 206(5) 250 to 2,400 1,000 to 12,000  

69. Schedule 3 to the Regulations is amended by adding the following after item 37:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
37.1 Subsection 203(1) and paragraph 212(h.1) 250 to 1,000 1,000 to 4,000  
37.2 Subsection 203(1) and paragraph 212(h.2) 250 to 1,000 1,000 to 4,000  

70. The portion of items 42 and 43 of Schedule 3 to the Regulations in column 1 is replaced by the following:

Item Column 1

Provision of the Marine Transportation Security Regulations
42. Subsections 203(1) and  213(1)
43. Subsections 203(1) and  214(1)

71. Schedule 3 to the Regulations is amended by adding the following after item 54:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
54.1 Subsection 203(1) and paragraph 218(1)(d.1) 250 to 1,000 1,000 to 4,000  

72. Schedule 3 to the Regulations is amended by adding the following after item 96:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
96.1 Subsections 203(1) and 267(1) 600 to 2,400 3,000 to 12,000  
96.2 Subsections 203(1) and 267(2) 600 to 2,400 3,000 to 12,000  
96.3 Subsections 203(1) and 268(1) 600 to 2,400 3,000 to 12,000  
96.4 Subsections 203(1) and 268(2) 600 to 2,400 3,000 to 12,000  

73. Schedule 3 to the Regulations is amended by adding the following after item 131:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
131.1 Subsection 203(2) and paragraph 212(h.1) 250 to 1,000 1,000 to 4,000  
131.2 Subsection 203(2) and paragraph 212(h.2) 250 to 1,000 1,000 to 4,000  

74. The portion of items 136 and 137 of Schedule 3 to the Regulations in column 1 is replaced by the following:

Item Column 1

Provision of the Marine Transportation Security Regulations
136. Subsections 203(2) and  213(3)
137. Subsections 203(2) and  214(2)

75. Schedule 3 to the Regulations is amended by adding the following after item 148:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
148.1 Subsection 203(2) and paragraph 218(1)(d.1) 250 to 1,000 1,000 to 4,000  

76. Schedule 3 to the Regulations is amended by adding the following after item 185:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
185.1 Subsections 203(2) and 267(1) 600 to 2,400 3,000 to 12,000  
185.2 Subsections 203(2) and 267(2) 600 to 2,400 3,000 to 12,000  
185.3 Subsections 203(2) and 268(1) 600 to 2,400 3,000 to 12,000  
185.4 Subsections 203(2) and 268(2) 600 to 2,400 3,000 to 12,000  

77. Schedule 3 to the Regulations is amended by adding the following after item 190:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
190.1 Subsections 203(3) and paragraph 204(1)(f) 250 to 2,400 1,000 to 12,000  

78. Schedule 3 to the Regulations is amended by adding the following after item 193:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
193.1 Subsections 203(3) and 206(5) 250 to 2,400 1,000 to 12,000  
193.2 Subsection 203(3) and paragraph 213(1)(b) 600 to 2,400 3,000 to 12,000  
193.3 Subsection 203(3) and paragraph 214(1)(b) 600 to 2,400 3,000 to 12,000  

79. Schedule 3 to the Regulations is amended by adding the following after item 206:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
206.1 Subsections 203(3) and 267(1) 600 to 2,400 3,000 to 12,000  
206.2 Subsections 203(3) and 267(2) 600 to 2,400 3,000 to 12,000  
206.3 Subsections 203(3) and 268(1) 600 to 2,400 3,000 to 12,000  
206.4 Subsections 203(3) and 268(2) 600 to 2,400 3,000 to 12,000  

80. Schedule 3 to the Regulations is amended by adding the following after item 214:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
214.1 Subsections 203(4) and 213(3) 600 to 2,400 3,000 to 12,000  
214.2 Subsections 203(4) and 214(2) 600 to 2,400 3,000 to 12,000  

81. Schedule 3 to the Regulations is amended by adding the following after item 227:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
227.1 Subsections 203(4) and 267(1) 600 to 2,400 3,000 to 12,000  
227.2 Subsections 203(4) and 267(2) 600 to 2,400 3,000 to 12,000  
227.3 Subsections 203(4) and 268(1) 600 to 2,400 3,000 to 12,000  
227.4 Subsections 203(4) and 268(2) 600 to 2,400 3,000 to 12,000  

82. The portion of items 228 to 234 of Schedule 3 to the Regulations in column 1 is replaced by the following:

Item Column 1

Provision of the Marine Transportation Security Regulations
228. Paragraph 205(1)(a)
229. Paragraph 205(1)(b)
230. Paragraph 205(1)(c)
231. Paragraph 205(1)(d)
232. Paragraph 205(1)(e)
233. Paragraph 205(1)(f)
234. Paragraph 205(1)(g)

83. Schedule 3 to the Regulations is amended by adding the following after item 234:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
234.1 Paragraph 205(1)(h) 250 to 5,000 1,000 to 25,000
234.2 Paragraph 205(1)(i) 600 to 2,400 3,000 to 12,000
234.3 Subsection 205(2) 600 to 2,400 3,000 to 12,000 X

84. Schedule 3 to the Regulations is amended by adding the following after item 237:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
237.1 Subsection 206(5) 250 to 2,400    

85. Schedule 3 to the Regulations is amended by adding the following after item 264:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
264.1 Paragraph 212(h.1) 250 to 1,000  
264.2 Paragraph 212(h.2) 250 to 1,000    

86. The portion of item 269 of Schedule 3 to the Regulations in column 1 is replaced by the following:

Item Column 1

Provision of the Marine Transportation Security Regulations
269. Subsection 213(1)

87. Schedule 3 to the Regulations is amended by adding the following after item 269:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
269.1 Subsection 214(1) 600 to 2,400    

88. Schedule 3 to the Regulations is amended by adding the following after item 273:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
273.1 Paragraph 218(1)(d.1) 250 to 1,000    

89. Schedule 3 to the Regulations is amended by adding the following after item 315:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
315.1 Section 266 600 to 2,400 3,000 to 12,000
315.2 Subsection 267(1) 600 to 2,400 3,000 to 12,000
315.3 Subsection 267(2) 600 to 2,400 3,000 to 12,000
315.4 Subsection 268(1) 600 to 2,400 3,000 to 12,000
315.5 Subsection 268(2) 600 to 2,400 3,000 to 12,000  

90. Schedule 3 to the Regulations is amended by adding the following after item 413:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
413.1 Paragraph 303(k) 600 to 2,400 3,000 to 12,000  

91. Schedule 3 to the Regulations is amended by adding the following after item 458:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
458.1 Section 353 600 to 2,400 3,000 to 12,000  

92. Schedule 3 to the Regulations is amended by adding the following after item 464:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
464.1 Paragraph 355(g) 600 to 2,400 3,000 to 12,000  

93. Schedule 3 to the Regulations is amended by adding the following after item 471:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
471.1 Section 360.1 250 to 1,000 1,000 to 4,000  

94. The portion of item 477 of Schedule 3 to the Regulations in column 1 is replaced by the following:

Item Column 1

Provision of the Marine Transportation Security Regulations
477. Paragraph 362(g) and subsection 364(1)

95. Schedule 3 to the Regulations is amended by adding the following after item 501:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
501.1 Paragraph 362(i) 600 to 2,400 3,000 to 12,000  

96. Schedule 3 to the Regulations is amended by adding the following after item 502:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
502.1 Section 372.2 600 to 2,400 3,000 to 12,000  

97. The portion of item 521 of Schedule 3 to the Regulations in column 1 is replaced by the following:

Item Column 1

Provision of the Marine Transportation Security Regulations
521. Subsection 380(1)

98. Schedule 3 to the Regulations is amended by adding the following after item 555:

Item Column 1

Provision of the Marine Transportation Security Regulations		 Column 2


Individual ($)		 Column 3


Corporation ($)		 Column 4


Continuing violation
556. Section 811 600 to 2,400 3,000 to 12,000
557. Section 812 250 to 1,000 1,000 to 4,000
558. Section 813 600 to 2,400 3,000 to 12,000  

99. The Regulations are amended by adding, after Schedule 3, the Schedule 4 set out in the schedule to these Regulations.

100. The Regulations are amended by replacing “security clearance” and “security clearances” with “transportation security clearance” and “transportation security clearances”, respectively, in the following provisions:

101. The English version of the Regulations is amended by replacing “breaches of security” with “security breaches” in the following provisions:

CONSEQUENTIAL AMENDMENTS TO THE DOMESTIC FERRIES SECURITY REGULATIONS

102. The definitions “certain dangerous cargoes” and “port administration” in subsection 2(1) of the Domestic Ferries Security Regulations (see footnote 2) are replaced by the following:

“certain dangerous cargoes”
« certaines cargaisons dangereuses »

“certain dangerous cargoes” has the meaning assigned by the definition “certain dangerous cargoes” or “CDCs” in subsection 1(1) of the Marine Transportation Security Regulations.

“port administration”
« organisme portuaire »

“port administration” means

103. Subsection 13(2) of the Regulations is replaced by the following:

Deemed compliance

(2) The operator of a domestic ferry facility is deemed to comply with the requirements of subsection (1) if the Minister has issued a letter of approval in respect of the ferry facility under subsection 352(1) of the Marine Transportation Security Regulations.

COMING INTO FORCE

104. These Regulations come into force on the day on which they are registered.

SCHEDULE
(Section 99)

SCHEDULE 4
(Subsections 1(1) and (4))

CERTAIN DANGEROUS CARGOES (CDCs)
  1. All explosives of Class 1.1, 1.2 and 1.5.
  2. The following gases of Class 2.1, when carried in a large means of containment or in such a quantity as to require an emergency response assistance plan (ERAP) under section 7.1 of the Transportation of Dangerous Goods Regulations:
    • (a) UN1035, UN1086, UN1971 and UN1972; and
    • (b) UN1010, UN1011, UN1012, UN1032, UN1036, UN1037, UN1060, UN1063, UN1077, UN1962 and UN1978, except when carried as CDC residue.
  3. All gases of Class 2.3, when carried in a large means of containment or in such a quantity as to require an ERAP under section 7.1 of the Transportation of Dangerous Goods Regulations.
  4. The following flammable liquids of Class 3, when carried in a large means of containment or in such a quantity as to require an ERAP under section 7.1 of the Transportation of Dangerous Goods Regulations, except when carried as CDC residue:
    • UN1089 and UN1280.
  5. The following oxidizing substances of Class 5.1, when carried in a large means of containment or in such a quantity as to require an ERAP under section 7.1 of the Transportation of Dangerous Goods Regulations:
    • (a) UN1479 and UN3139; and
    • (b) UN1942, UN2067 and UN3375, except when carried as CDC residue.
  6. The following liquids of Class 6.1 (either primary or subsidiary class) that are toxic by inhalation, when carried in a large means of containment or in such a quantity as to require an ERAP under section 7.1 of the Transportation of Dangerous Goods Regulations:
    • (a) UN1051, UN1052, UN1092, UN1163, UN1182, UN1185, UN1238, UN1239, UN1244, UN1251, UN1259, UN1380, UN1510, UN1560, UN1569, UN1580, UN1583, UN1595, UN1613, UN1614, UN1647, UN1670, UN1672, UN1695, UN1722, UN1744, UN1745, UN1746, UN1752, UN1809, UN1892, UN1994, UN2032, UN2232, UN2285, UN2334, UN2337, UN2382, UN2407, UN2438, UN2474, UN2477, UN2478, UN2480, UN2481, UN2482, UN2483, UN2484, UN2485, UN2486, UN2487, UN2488, UN2521, UN2605, UN2606, UN2644, UN2646, UN2668, UN2740, UN2742, UN2743, UN2809, UN3023, UN3246, UN3275, UN3276, UN3278, UN3279, UN3280, UN3281 UN3294, UN3381, UN3382, UN3383, UN3384, UN3385, UN3386, UN3387, UN3388, UN3389, UN3390, UN3488, UN3489, UN3490, UN3491, UN3494 and UN3495; and
    • (b) UN1098, UN1135, UN1143, UN1541, UN1605, UN1831, UN2983 and UN3079, except when carried as CDC residue.
  7. Radioactive substances of Class 7, if the quantity in a single means of containment exceeds the least of
    • (a) 3,000 times the A1 value, as defined in subsection 1(1) of the Packaging and Transport of Nuclear Substances Regulations, of the radionuclides,
    • (b) 3,000 times the A2 value, as defined in subsection 1(1) of those Regulations, of the radionuclides, and
    • (c) 1,000 TBq (27,000 Ci).
  8. The following corrosive substance of Class 8, when carried in a large means of containment or in such a quantity as to require an ERAP under section 7.1 of the Transportation of Dangerous Goods Regulations, except when carried as CDC residue:
    • UN1754.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Executive summary

Issues: While Canada’s current marine security regulatory framework is robust, enhancements must be made over time in order to continuously improve and deliver a secure transportation system for Canadians in the face of rapidly evolving threats. In addition, the International Maritime Organization (IMO) has called on the contracting states to the International Convention for the Safety of Life at Sea (SOLAS), to which Canada is a member, to harmonize their regulations with the new training requirements for vessel personnel with or without security responsibilities.

Description: The amendments to the Marine Transportation Security Regulations (the Regulations) introduce amendments that respond to Canada’s international obligations, further harmonize the Canadian regulatory regime with the U.S. regime, reduce financial and regulatory compliance burden, where possible, and address interpretation issues and regulatory gaps.

Cost-benefit statement: The benefits of the amendments include improved marine security, enhanced marine sector efficiency and flexibility, international harmonization, and improved regulatory clarity and consistency. If the amendments prevent just one significant act of unlawful interference at a large Canadian port, they could result in benefits between $20 million and $57 billion.

The amendments are expected to result in costs to seafarers and vessel operators of $20.6 million over 25 years, due to enhanced seafarer security training requirements, including $0.1 million in administrative costs. Other provisions are not expected to result in significant incremental costs. Transport Canada (TC) expects that the benefits of the amendments will significantly exceed the costs.

“One-for-One” Rule and small business lens: In order to provide the flexibility of grandfathering existing seafarers and the associated cost savings, and enable the enforcement of training provisions of the Regulations, the amendments require vessel masters or the duly authorized operator’s representative to download and complete certification forms for grandfathered seafarers. TC estimates that 6 398 certification forms will be completed up-front, an exercise which would require 20 minutes of time per form, with an average hourly loaded wage of $49.80. Other provisions — pre-arrival information reporting and submission of security procedures by occasional-use marine facilities (OUMFs) — are expected to have a negligible impact on administrative burden. TC estimates that the amendments would introduce a total annualized administrative burden of $13,550, or $323 for each of the 42 operators.

TC assumes that the associated cost, estimated to be $20.6 million over 25 years, will be borne primarily by vessel operators. Although it is not known what share of these costs will be borne by small businesses, costs are expected to be proportionate to the size of a given operation — small businesses with fewer vessels and fewer seafarers incur lower costs. Further, TC expects that, to the extent that seafarer training, awareness and orientation sessions can be scheduled during downtime, the financial cost to vessel operators may be reduced substantially.

Domestic and international coordination and cooperation: The Canada–United States Regulatory Cooperation Council (RCC) will better align our regulatory approaches in order to eliminate duplication and impediments to trade without compromising marine security, where appropriate. The amendments include two key provisions that further harmonize the Canadian marine security regime with that of the United States: further aligning the Canadian list of certain dangerous cargoes (CDC) with that of the United States and introducing the flexibility to enter into an alternative security arrangement (ASA) with other countries, including the United States.

2. Background

Canada’s marine security regulatory framework establishes baseline requirements to safeguard the integrity and security and to preserve the efficiency of Canada’s marine transportation system against unlawful interference, terrorist attacks, or use as a means to attack Canada’s allies.

Marine security regulatory requirements apply to

Canada’s marine laws are greatly influenced by the International Maritime Organization (IMO) to which Canada is a member state. The lead federal department, Transport Canada, works closely with the shipping industry and international partners to ensure that Canada’s marine transportation system remains one of the safest and most secure in the world. Moreover, TC develops and promotes risk-based marine security requirements through regulations and other instruments as appropriate to achieve acceptable levels of marine security.

In December 2002, in response to the events of September 11, 2001, the IMO adopted the International Ship and Port Facility Security Code (ISPS Code), as well as amendments to the International Convention for the Safety of Life at Sea, 1974 (SOLAS), to significantly enhance the deterrence, prevention and detection of acts that threaten security in the marine transportation sector. The ISPS Code sets out a framework that gives member states a common way to measure risk, reduce threats and make vessels and marine facilities less vulnerable through well-defined security levels and procedures. All SOLAS contracting states, including Canada, were required to adopt the ISPS Code on or before July 1, 2004. Canada implemented the Code through the Regulations, which came into force on July 1, 2004, established under the authority of section 5 of the Marine Transportation Security Act (MTSA).

3. Issues

Canada’s marine security regulatory instruments establish an essential framework for the federally regulated marine industry (ports, marine facilities, vessels) and persons carrying out activities related to marine transportation in order to prepare for, prevent and respond to security threats and risks. While TC’s current marine regulatory framework is robust, enhancements must be made over time in order to continuously improve and deliver a secure transportation system for Canadians.

Transport Canada and the marine community recognize that the Regulations require amendments from time to time given the growth of the TC Marine Security Program and the ever-changing security environment that the marine community faces both domestically and internationally. Due to the short time frame to adopt the ISPS Code, TC was hindered in developing and implementing the Regulations and the Program simultaneously by July 2004. The implementation time frame made it difficult to foresee some of the challenges these requirements would pose to the marine community. As a result, applying the Regulations for the last nine years has led to the identification of gaps and sources of misinterpretation due to both the structure and wording of the Regulations. A notable misinterpretation identified among all regions is whether a Canadian-flagged vessel is required to interface with a regulated marine facility while on a domestic voyage (see footnote 3) or the domestic portion of an international voyage.

In addition, the IMO, to which Canada is a member state, continues to establish new international standards and recommended practices for marine safety and security in consultation with all member states. Canada must ensure that it continues to respond to its international obligations and must remain aligned with its international partners, including the United States, in order to facilitate Canada’s trade competitiveness within the international shipping world. Canada is required to adopt recent changes that have been made to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW).

Furthermore, the Regulations needed to be amended to further align the regulatory framework with additional security practices that are already being implemented by the majority of the regulated Canadian marine community, to reduce the financial and the regulatory burdens by providing additional flexibility for Canadian-flagged vessels regulated by the Regulations, to further harmonize, where possible, the Canadian regulatory regime with that of the United States, and to address regulatory gaps and sources of misinterpretation such as unclear wording and redundancies.

4. Objectives

The objective of the amendments to the Regulations is to further strengthen and revitalize the marine transportation security framework which supports the Government’s overall strategy to promote a safe, secure and efficient transportation system that contributes to Canada’s economic development and security objectives.

The amendments to the Regulations support the Government of Canada’s Red Tape Reduction Commission by reducing the financial and the regulatory burdens on industry, where possible. The amendments also address areas that Canada could further harmonize with the U.S. marine security regulatory regime. This is a key element of the mandate of the Canada–United States Regulatory Cooperation Council (RCC).

To summarize, the amendments focus on the following objectives to revitalize and renew the existing regulatory framework:

5. Description

A description of the amendments is set out according to the four above-mentioned objectives.

Respond to Canada’s international obligations

In order to meet their international obligations, all SOLAS contracting states, including Canada, must adopt the recent changes that have been made to the International Convention on Standards of Training, Certification and Watchkeeping (STCW) for seafarers. The changes require that all seafarers, with or without security responsibilities, be properly educated and trained, adequately experienced, skilled and competent to perform their duties and be required to hold a certificate of proficiency by January 1, 2012.

The amendments to the Regulations require that all vessel personnel with or without security responsibilities on Canadianflagged SOLAS ships engaged on international voyages hold a certificate of proficiency issued by the Minister by January 1, 2012. Given the short implementation time frames associated with the new IMO requirements, a Marine Security Operations Bulletin (MSOB) was issued on March 22, 2012, to advise industry to comply with the newly proposed STCW requirements. TC has taken this approach in the past to meet other short implementation time frames set by the IMO to adopt mandatory requirements.

The transitional provision in the amendment, which expires July 1, 2014, gives seafarers who have sea service prior to January 1, 2012, the opportunity to receive their certificates of proficiency without taking the required training if they can demonstrate knowledge and competence in performing their duties to their ship’s master or the duly authorized operator’s representative. If so, the master or duly authorized operator’s representative will be required to sign a testimonial confirming that the conditions have been met before a certificate of proficiency can be issued by the Minister.

Individuals who commence sea service after January 1, 2012, must successfully complete their training at an institution recognized by TC.

The amendments also encompass other minor changes required by the IMO, such as

Harmonize the Canadian regulatory regime with that of the United States

Since the inception of the Regulations in 2004, TC has strived to align its regulatory regime, where possible, with the U.S. marine security regime to allow for the consistent application of requirements. The amendments include two key provisions that will further harmonize the Canadian marine safety regulatory regime with that of the United States:

1. Vessels carrying certain dangerous cargoes (CDC)

Currently, Canadian and U.S. marine security regulations capture certain sized vessels if they are carrying CDC. However, at present, the U.S. list of CDC is more expansive than the Canadian list of CDC. As a result of this misalignment, since 2004 Canadian vessels crossing over to the United States are subject to greater inspection from U.S. inspectors. Further, this misalignment means that Canadian industry cannot compete fairly with its American counterparts. This situation creates an uneven playing field and an economic disadvantage for Canada’s west coast tug and barge industry. The amendment includes a new schedule to the Regulations that contains an expanded list of Canadian CDC that is aligned with the CDC list of the U.S. Amending the Regulations to harmonize the CDC list with that of the United States will improve the Canadian industry’s competitiveness.

2. Adding the flexibility to enter into alternative security arrangements (ASA)

In 2004, the IMO adopted a provision in the ISPS Code that included the use of ASA for all IMO member states. An ASA program allows SOLAS contracting states, which include Canada and the United States, to enter into arrangements to modify certain ISPS Code requirements in situations where they may be unreasonable or too cumbersome to apply. In 2004, the United States included a provision with respect to ASA in its regulatory regime. However, due to the extremely tight deadline of implementing the Regulations in July 2004, ASA were not included in the Canadian regulations. This regulatory amendment addresses the existing gap and align Canada’s regime with that of the United States. For example, the ASA program will provide Canada the flexibility to enter into an arrangement with the United States to allow the two countries to agree to an amended security regime in a particular shared border area (e.g. a Great Lakes regime where the regulatory requirements of both countries are mutually recognized).

During consultations on the amendments to the Regulations, industry stakeholders expressed their support for both the ASA program and a list of CDC harmonized with that of the United States, which will facilitate the reduction of duplicate requirements and improve the competitiveness of Canadian industry.

Reduce financial and regulatory compliance burdens (Red Tape Reduction initiative)

As part of TC’s ongoing commitment to reduce an unnecessary regulatory compliance burden for industry stakeholders without compromising marine security, TC is proposing to clarify through regulations that Canadian-flagged vessels may interface with non-regulated ports and facilities while on a domestic voyage. The application section of Part 2, subsection 201(2), of the Regulations is amended to clarify that Part 2 does not apply to Canadianflagged vessels operating on a domestic voyage or the domestic portion of an international voyage except when the vessel has an interface with a foreign-flagged vessel in Canadian waters. In addition, a vessel is now required to interface with a regulated marine facility at its last port of call in Canada before engaging on an international voyage and when returning to Canadian waters from an international voyage.

This clarification ensures that those operators of the Canadian domestic fleet who engage on international and domestic voyages clearly have the choice, depending on their business needs, to interface with either regulated or non-regulated ports and facilities while on a domestic voyage or the domestic portion of an international voyage. As non-regulated ports and facilities generally have lower fees than regulated ones, the Canadian domestic fleet could see a reduction in its costs.

Address interpretation issues

The amendments include restructuring or rewording of certain provisions and definitions of the Regulations that required clarification of their intent. This restructuring was undertaken after consultation with both Government and industry stakeholders to respond to their concerns that certain provisions and definitions are unclear and difficult to understand. For example, in the current Regulations, many of the definitions are located throughout the Regulations which made it cumbersome for stakeholders to locate. In the amendments, the definitions are placed in the “Interpretation” section of the Regulations. Along with amendments to several existing definitions, several new definitions are proposed to further enhance clarity. Notable amendments to the definitions include international voyage, MARSEC levels, certain dangerous cargoes (CDC), CDC facility and marine security document.

These minor amendments make it easier for industry stakeholders to read and better understand the intent and their obligations within the Regulations.

Address regulatory gaps

A focal point of the amendments to the Regulations is to address certain regulatory gaps that do not involve extensive program and policy development and to align the marine security regulatory framework with international requirements and/or security practices that industry stakeholders have already implemented. Notable amendments are presented below by the specific Part of the Regulations in which they are located.

Part 1 — General

Suspension and cancellation of marine security document

The amendments introduce new suspension and cancellation provisions with respect to marine security documents, which include vessel certificates and statements of compliance, issued to marine facility operators and port administrations. The Regulations do not include provisions to cancel or suspend a marine security document, i.e. when an operator is not in compliance with its security plan or when the requirements for issuance of the document are no longer met. This is consistent with other TC modes of transportation, such as the aviation sector, which have cancellation and suspension provisions with respect to security documents issued to operators.

To ensure the conditions are clear when a marine security document can be suspended or cancelled, modifications were made to subsection 14(1) of the amending Regulations following publication of the amendments in Canada Gazette, Part I.

Review and appeal mechanisms

The amendments also include a provision to allow operators and port administrations a mechanism to request reconsideration of the Minister’s decision to cancel or suspend a marine security document.

The Minister shall notify the operator in writing of the suspension or cancellation and advise that they may file a request for a review by the Transportation Appeal Tribunal of Canada (TATC). The TATC is an independent, quasi-judicial body that was established in 2001 under the Transportation Appeal Tribunal of Canada Act. This review and appeal process is consistent with the existing appeal process for the suspension and cancellation of a person’s certificate of proficiency in Part 8 of the Regulations.

Part 2 — Vessels
Part 3 — Marine facilities and ports
Part 6 — Contravention of provisions designated as violations

6. Regulatory and non-regulatory options considered

The considered options of the amendments are set out according to the four mentioned objectives.

Respond to Canada’s international obligations
Option 1: Status quo/voluntary compliance

Maintaining the status quo is not an acceptable alternative nor is having the marine industry voluntarily comply with the new mandatory IMO requirements for all vessel personnel with or without security responsibilities to hold a certificate of proficiency by January 1, 2012. It will leave Canada outside the international legal framework for marine security and will have significant adverse effects on trade. Furthermore, failure to do so through a regulatory or other legally enforceable framework would be interpreted by other SOLAS contracting states, as a default on an international commitment to increase security in the marine sector. Such a perception could adversely affect Canada’s relations with major trading partners, in particular the United States, as well as attract threats to the North American continent and increase the possibility of a transportation security incident such as terrorism.

There are no advantages to this option.

Option 2: Mandatory certification of vessel personnel

The disadvantage of this option is that there will be some costs to, and impacts on, seafarers and operators. As these impacts are not expected to be significant, the analysis has determined that the benefits of this option far outweigh the costs.

The advantage of this option is that it will standardize the level of security training for vessel personnel, ensure Canada’s compliance with international agreements and provide vessel personnel with an internationally recognized document. Industry is generally supportive of the amendments as they will ensure that Canada’s approach is consistent with that of its major trading partners. Costs to, and impacts on, seafarers, marine transportation operations and institutions are not expected to be significant. This option is considered the most effective to address this IMO mandatory requirement.

This holds true for other IMO mandatory requirements, such as requiring vessel operators to mark the vessel with their assigned IMO number and requiring vessel operators to clearly identify each restricted area on the vessel.

Harmonize the Canadian regulatory regime with that of the United States
Option 1: Status quo/voluntary compliance

Amending the CDC definition

Lack of action does not enhance security and places the west coast tug and barge industry on an uneven playing field with its U.S. counterparts across the marine border, thereby impeding the flow of goods and people across the border. Voluntary compliance is not considered the most viable solution as it is bound to create gaps and inconsistencies in the application of marine security requirements across the marine border. In addition, it is inconsistent with the Regulatory Cooperation Council (RCC) initiative between Canada and the United States which strives to align regulatory approaches where possible, in order to eliminate duplication and impediments to trade without compromising marine security.

There are no advantages to this option. Given the financial implication and the increased inspections on the tug and barge industry by the United States, a non-regulatory option is not the most effective instrument of choice to address this issue.

Alternative security arrangements

Not including ASAs in the Regulations disadvantages Canada with respect to the flexibility to enter into and implement ASAs with the United States and other SOLAS contracting states to modify certain regulatory requirements in situations where they may be unreasonable or too cumbersome. Furthermore, in 2004, IMO adopted a provision in the ISPS Code that included the use of ASAs for all SOLAS contracting states.

There are no advantages to this option. It does not align with Canada’s ongoing commitment to harmonize its marine security requirements where possible with those of the United States.

Option 2: Amend the Regulations to further harmonize them with those of the United States with respect to amending the CDC definition and including ASAs

The advantage of this option is that it further strengthens Canada’s ongoing commitment with the United States to enhance border security via the marine mode. In addition, this option is consistent with previous amendments made to the Regulations to harmonize them with those of the United States in the interest of marine security and the flow of goods and people. Furthermore, both of these amendments to the Regulations were identified through the joint Canada and United States RCC initiative, whose goal is to better align the regulatory approaches of both countries, in order to eliminate duplication of regulatory program efforts and impediments to trade, where appropriate.

During consultations, industry stakeholders widely supported TC’s proposed action to amend the Regulations with respect to aligning with the U.S. list of CDCs and including the flexibility to enter into ASAs with the United States and other countries. This option is considered to be the most viable method to enhance marine security and to further facilitate the flow of goods and people between the shared marine border with the United States.

Reducing the financial and the regulatory compliance burdens (Red Tape Reduction initiative)
Allow Canadian-flagged vessels to interface with unregulated marine facilities

The action taken is a result of industry stakeholders approaching TC to request flexibility regarding the requirement of Canadian-flagged vessels interfacing with a regulated marine facility while on a domestic voyage.

The “application” section of Part 2, subsection 201(2), of the Regulations is amended to clarify that Part 2 does not apply to Canadian-flagged vessels while operating on a domestic voyage or the domestic portion of an international voyage.

Option 1: Voluntary compliance

This option was considered. However, it was deemed that it would create gaps and inconsistencies in the application of Canada’s marine security regime with respect to domestic vessels on a domestic voyage. Furthermore, this option is inconsistent with TC’s commitment to ensure that the Regulations are clear, concise and understood by government officials, industry stakeholders and the general public.

Option 2: Clarify through regulations the requirements for Canada’s domestic fleet on domestic voyages

The disadvantage of this option is that it requires Canadianflagged vessel operators to include procedures in their security plan to mitigate security risks when interfacing with a nonregulated marine facility when operating on the domestic portion of an international voyage. However, during consultations, vessel operators supported including an additional security procedure in their security plan given the benefits associated with the flexibility to interface with a non-regulated marine facility.

The advantage of this option is that it clarifies Canada’s marine security regime, which is centered on securing vessels, ports and marine facilities involved in international voyages. This option is expected to have no negative impact on the security of Canadians as it is aligned with Canada’s risk-based approach to securing its marine transportation system. Furthermore, those vessels that form Canada’s domestic fleet who choose to exercise this flexibility, based on business needs, will see a reduction in their financial and regulatory compliance burden, which far outweigh the cost, if any, to include a procedure in their security plan. This is consistent with the mandate of the Government of Canada’s Red Tape Reduction Commission, which is to reduce the financial and regulatory compliance burden to industry.

This option is considered to be the most viable method as it ensures that the Regulations are internally more consistent and make it easier for industry stakeholders to better understand the intent and their obligations under the Regulations.

Address interpretation issues

There are no viable alternatives regarding the amendments to the Regulations that clarify the intent of certain provisions and definitions. These amendments are intended to ensure that the Regulations are internally more consistent and make it easier for industry stakeholders to read and better understand the intent and their obligations within the Regulations. During stakeholder consultations, industry raised the issue of improving the clarity of various provisions and definitions in the Regulations, which will address operational problems generated by the Regulations that came into force on July 1, 2004.

Address regulatory gaps

The options represent all regulatory gaps in a general fashion as presented in the “Description” section.

Option 1: Status quo/voluntary compliance

The advantages of the status quo option are that it will minimize operational impacts and regulatory compliance requirements with vessels, marine facilities and ports and will imply minimal additional costs, if any, to industry.

The disadvantages are that it will not address operational problems generated by the Regulations that came into force on July 1, 2004. For that reason, it will not enhance the security of Canada’s marine transportation system. This option is not considered to be the most viable method to enhance marine security nor is relying on industry’s voluntary compliance to bridge the identified regulatory gaps. Voluntary compliance will create inconsistencies given the complexity of the marine industry, in particular, foreignflagged vessels entering Canadian waters that are regulated under the Regulations.

Option 2: Address regulatory gaps by amending the Regulations

The disadvantage of this option is that it further regulates industry which may lead to additional costs in order to comply.

The advantage of this option is that it further aligns the regulatory framework with additional security practices that are already implemented by the majority of industry stakeholders. Some of the regulatory gaps addressed in the amendments were put forward by industry stakeholders.

This option is considered the most viable, as it demonstrates a strong commitment by TC to continue to enhance and re-invigorate the marine security legal framework. In addition, it is considered the most effective instrument with respect to enforcement of foreign-flagged vessels that enter Canadian waters.

7. Benefits and costs

Transport Canada has conducted an analysis of benefits and costs to assess the impacts of the amendments on stakeholders, including seafarers, vessel operators, marine facilities, marine security training providers and TC. The cost-benefit analysis (CBA) report is available on request.

Benefits

The amendments will result in a range of benefits to stakeholders, including

Improved marine security

The security benefits of the amendments are primarily a function of the probability and impact of acts and attempted acts of unlawful interference with marine transportation under baseline conditions and following implementation of the amendments. However, as with the analysis of other security regulations, it is not possible to quantify or monetize these benefits given that both the probability and impact (baseline and regulated) are subjective and uncertain.

Canada’s marine security system is already robust. The amendments update and fine-tune elements of the existing system in light of evolving threats, and international and domestic best practices. Security improvements result primarily from:

The access control and prohibition provisions and restricted area identification provisions requiring security procedures from occasional-use marine facilities (OUMFs) will improve marine security. However, given that baseline conformity is already high, the incremental impact on marine security may be low.

A terrorist attack at a Canadian port could result in significant negative impacts, such as loss of life, property damage and reduced international trade flows. Security gaps in the Canadian marine sector could also result in vulnerabilities throughout Canada. In order to assess the marine security benefits of the amendments, and in the absence of Canada-specific impact studies, studies of the benefits of preventing terrorist attacks on a U.S. port were adjusted to reflect the order of magnitude of impacts in the Canadian context (see Table 1). These estimates show that the benefits of preventing just one imminent attack could be significant, and range between $20 million and $57 billion.

Table 1: The benefits of preventing a terrorist attack at a Canadian port, literature review

Author Attack Impact estimate (original) Benefit of preventing a similar scenario in Canada (see footnote 4)
Rosoff and Winterfeldt, 2007 Dirty bomb in LA/Long Beach ports $130 million to $100 billion, depending on length of shutdown (assumes zero lives lost) [assume 2007 USD] $20 million to $57 billion
Gordon et al. LA/Long Beach ports From $1.1 billion to $34 billion (assume 2000 USD) $141 million to $19 billion
Enhanced efficiency and flexibility

The amendments improve the efficiency and flexibility of the Regulations.

International harmonization and Canada–United States Regulatory Cooperation Council

The amendments further harmonize Canada’s marine security regulations with international practices, delivering greater consistency in the marine security system, and ensuring that Canada meets its international obligations. Specific provisions promoting international harmonization and Canada–United States regulatory cooperation include

Improved regulatory clarity and consistency

The amendments benefit stakeholders via improved clarity and consistency in existing practices, with negligible impacts on stakeholders.

Costs

The amendments will result in some incremental costs to stakeholders, primarily due to enhanced security training provisions for seafarers with or without security responsibilities.

Costs to industry

The amendments require seafarers to acquire training and/or demonstrate knowledge and competence in performing their duties. Specific input assumptions underlying this estimation are provided in Table 2.

For the purposes of the analysis, TC assumes that, existing seafarers with security responsibilities (who are not grandfathered (see footnote 5) — assumption 7 in Table 2) will take the required training, such that in 2014 and every year thereafter, only new seafarers with security responsibilities will be required to take the training. TC assumes that most seafarers will be able to receive training at a local training facility, although some may be required to travel (assumptions 11 and 12).

Similarly, it is assumed that those existing seafarers without security responsibilities (who are not grandfathered — assumption 8) will attend awareness sessions up-front, such that in 2014 and every year thereafter, only new seafarers without security responsibilities will be required to attend awareness sessions. Some travel costs may be incurred (assumptions 11 and 12).

Transport Canada assumes that existing seafarers with or without security responsibilities will attend orientation sessions up-front, with each new seafarer thereafter attending an orientation session in their first year of work.

Table 2: Security training, awareness and orientation input assumptions

Variable Value Source
1 Total seafarers in 2011 13 570 Section 3.2
2 Annual growth rate of seafarer population 0.68% Section 3.2
3 Share of seafarers with security responsibilities 33.3% TC subject-matter experts
4 Share of seafarers without security responsibilities 66.7% TC subject-matter experts
5 Annual turnover, all seafarers 12.24% Section 3.2
6 Average hourly wage per seafarer $25.63 to $54.63 Section 3.2
7 2011 seafarers with security responsibilities grandfathered 50% to 75% TC subject-matter experts
8 2011 seafarers without security responsibilities grandfathered 50% to 75% TC subject-matter experts
9 Seafarers with security responsibilities — cost per training session $400 to $600 TC subject-matter experts
10 Seafarers without security responsibilities — cost per awareness session $250 to $400 TC subject-matter experts
11 Share of seafarers required to travel for training 30% to 50% TC subject-matter experts
12 Average cost of travel $100 to $200 Estimate of one-day hospitality
13 Duration of training session 7.5 hours TC subject-matter experts
14 Duration of awareness session 4.5 hours TC subject-matter experts
15 Duration of orientation session 0.5 to 1 hour TC subject-matter experts

Using these assumptions, TC estimates that the present value of costs to seafarers and their employers of the training, awareness and orientation provisions of the amendments will be $20.6 million over 25 years. (see footnote 6)

It is important to note that these costs include both “out-of-pocket” costs (e.g. training course fees and travel costs) and opportunity costs (e.g. the value of seafarer time). “Out-of-pocket” costs are estimated to be $13.1 million over 25 years, with opportunity costs estimated to be $7.4 million. To the extent that seafarers can receive training, awareness and/or orientation sessions without working overtime (e.g. during “down time”), the impact of these opportunity costs may be reduced. Security training costs estimated on a “per seafarer” basis are provided in Table 3.

Table 3: Training, awareness and orientation costs per seafarer

Training Awareness Orientation Total
Seafarers with security responsibilities        
  • Requiring training
  • Not requiring training (grandfathered)
 $801(see footnote 7)
0		 0
0		 $30
$30		 $831
$30
Seafarers without security responsibilities        
  • Requiring training
  • Not requiring training (grandfathered)
 $0
0		 $506(see footnote 8)
0		 $30
$30		 $536
$30
Travel and hospitality (if needed) $150 $150 $0  

The amendments provide an opportunity for seafarers in service prior to January 1, 2012, to receive their certificates of proficiency without taking the aforementioned training if they can demonstrate to their ship’s master or the duly authorized operator’s representative knowledge and competence in performing their duties. To do so, the master or duly authorized operator’s representative is required to download, print and sign a form confirming that these conditions have been met (taking 10 to 30 minutes per seafarer). Overall, TC estimates that this will result in administrative costs of $0.1 million, incurred upfront. Additional administrative costs, associated with incremental PAIR and OUMF reporting will be negligible.

Costs of other regulatory provisions are expected to be negligible, as they are designed to

Costs to Government

The amendments are not expected to result in significant incremental costs to TC, other government departments or agencies.

Costs to Canadians

The amendments are not expected to have a significant impact on prices, nor any other significant impact on Canadians.

Cost-benefit statement

Costs, Benefits and Distribution Up-front 2014 2038 Total (Present Value) Annualized
A. Quantified impacts (in dollars)
Benefits Canadians The benefits of the amendments are expected to significantly exceed the break-even level of $20.6 million. Estimates from the literature indicate that, if the amendments prevent just one significant act of unlawful interference at a Canadian port, they could result in benefits between $20 million and $57 billion.
Costs Vessel operators (seafarer training, awareness and orientation costs) $5,107,762 $1,242,540 $1,463,338 $20,482,499 $1,757,614
Administrative cost: certificates for grandfathered seafarers $106,199 $0 $0 $106,199 $9,113
PAIR Reporting $0 $27 $48 $392 $34
Total costs $5,213,961 $1,242,567 $1,463,386 $20,589,090 $1,766,760
Net benefits Greater than $0
B. Qualitative impacts
Benefits
  • Improved marine security
  • Enhanced efficiency and flexibility
  • Improved international and Canada–United States regulatory harmonization (including meeting international obligations)
  • Improved regulatory clarity and consistency
Costs
  • The amendments are not expected to result in significant costs to stakeholders beyond the training costs quantified and monetized above.

8. “One-for-One” Rule

Transport Canada has considered the potential impacts of all provisions of the amendments on administrative burden, and has monetized that burden for the purposes of the Government of Canada’s “One-for-One” Rule.

In order to provide the flexibility of grandfathering existing seafarers and the associated cost savings, and enable the enforcement of training provisions of the Regulations, the amendments will require vessel masters or the duly authorized operator’s representative to download and complete certification forms for grandfathered seafarers. TC estimates that 6 398 certification forms will be completed up-front, an exercise which would require 20 minutes per form, with an average hourly loaded wage of $49.80. Other provisions — pre-arrival information reporting and submission of security procedures by OUMFs — are expected to have a negligible impact on administrative burden. The results reported in the CBA were converted to align with TBS “One-for-One” reporting requirements. (see footnote 9) TC estimates that the amendments would introduce a total annualized administrative burden of $13,550, or $323 for each of the 42 operators.

9. Small business lens

The Amendments were designed to strengthen seafarer security training requirements, ensuring that seafarers are more alert to security risks and better prepared in the event of a security incident. In addition, the amendments ensure that Canada meets its international obligations under the IMO, without imposing an unreasonable or disproportionate burden on small business.

TC initially considered a proposal that would have required all seafarers (including experienced seafarers) to receive marine security training, an option that would have significantly increased costs to their employers (vessel owner/operators).

In response, TC developed a less costly option (the amendments), whereby seafarers at work prior to January 1, 2012, with appropriate awareness of security issues and procedures, could receive certificates of proficiency based on the recommendation of their vessel’s master or the duly authorized operator’s representative. In this way, compliance costs will be limited to those seafarers in need of security training (including new seafarers), and the overall burden on vessel operators would be reduced by 17% relative to the initial option. Further, costs to individual vessel operators would be proportionate to the size of their operations and the number of seafarers employed. This option was developed for all business in mind affected by the new international security training requirements.

10. Consultation

Consultations with industry stakeholders, other government departments, and departmental colleagues have taken place across the country since 2009, which produced an extensive volume of amendments. In late 2010, after reviewing this vast amount of input, TC decided to proceed with the amendments in phases to allow for a more manageable approach within a reasonable time frame. This regulatory package constitutes Phase 1, which focuses on priorities, such as IMO requirements, harmonizing, where possible, with the U.S. regulatory regime and addressing interpretation issues and regulatory gaps that do not require substantial policy or program development. Those recommended amendments that demand further in-depth policy and program development will be considered for further regulatory work.

Key participants in the consultation process included vessel operators, marine facility operators, port administrators, industry associations and labour groups. Stakeholder groups have been consulted throughout the development of the amendments to the Regulations through various mechanisms, including face-to-face meetings, teleconferences, direct mail consultations and industry surveys to gauge costs associated with the amendments and levels of conformity of security practices already being done by industry. As an official forum, TC has informed, engaged and consulted key participants at the biannual national Canadian Marine Advisory Council (CMAC) meetings, with the November 2011 meeting being the final consultation session on the amendments to the Regulations. A regulatory update on key amendments was further provided at the spring 2012 CMAC meeting.

During consultations on the amendments to the Regulations, Canadian industry made it clear that any change that will lower costs, minimize administrative burden and improve its ability to conduct business will be welcome. TC recognizes the challenges and limitations that the Regulations can impose on industry, and ensured that industry was fully engaged in the amendments to the Regulations. As a result, stakeholder feedback and recommendations contributed to many new and amended provisions, such as introducing the flexibility to enter into ASA with other contracting states, harmonizing the list of CDC with the United States, clarifying through the Regulations that Canadian-flagged vessels may interface with non-regulated ports and facilities while on a domestic voyage and allowing for an interim statement of compliance for a ship or marine facility security certificate pending a TC inspection.

Transport Canada consulted with industry stakeholders regarding the additional administrative costs associated with the vessel master or duly authorized operator’s representative completing certification forms for grandfathered seafarers. Stakeholders acknowledged the additional administrative cost as the cost of doing business and to remain competitive internationally. Without this flexibility, the alternative will require all seafarers regardless of sea service time to take the in-class training, which will result in higher training costs for vessel operators.

Stakeholders further requested that TC develop guidance material to assist the marine industry in understanding its regulatory responsibilities on some of the amendments to the Regulations, in particular, the new IMO training requirements and the amendment to clarify that Canadian-flagged vessels may interface with non-regulated ports and facilities while on a domestic voyage or the domestic portion of an international voyage.

Consultation following publication in the Canada Gazette, Part I

This regulatory package was published in the Canada Gazette, Part I, on April 27, 2013, followed by a 60-day public comment period, during which time four written submissions were received from stakeholders. The following is a summary of the stakeholder’s comments and TC’s response:

One stakeholder suggested that the authority to sign the Testimonial of Security Duties Performed be extended to include the Company Representative in addition to the master of the vessel. This suggestion is addressed through the Transport Canada Marine Security Operations Bulletin 2013-003, dated November 2013, which articulates that a master on board the vessel or the duly authorized operator’s representative in the performance of his or her security duties can fill, sign, date and stamp with the vessel’s stamp or with the operator’s stamp as appropriate, a testimonial.

Many of the comments from the stakeholders were seeking guidance material and clarification regarding the new STCW security training requirements for vessel personnel with and without security responsibilities. In spring 2012, the Marine Security Program issued an operational bulletin to all stakeholders regarding the new security training requirements. Further guidance material is planned regarding the process to complete the Testimonial of Security Duties Performed for those seafarers that have sea service prior to January 1, 2012. The guidance material is designed to clarify requirements and expectations in order to assist vessel operators in their implementation.

To ensure the seafarer testimonial process is clearly articulated, additional changes have been made to the amending Regulations following publication in Canada Gazette, Part I. These modifications, which have been communicated to industry during recent CMAC consultations and various other industry meetings, set out July 1, 2014, as the termination date for the validity period of the testimonial provisions while specifying the qualifying sea service must have commenced before January 1, 2012, and have concluded by January 1, 2014. Moreover, as a housekeeping measure proposed subsections 213(2) to (3) and subsections 214(2) to (3), which were included in the prepublished version of the Regulations and which would have concluded January 1, 2014, are removed as they are now expired.

One stakeholder questioned the estimated costs associated with the training requirements and wanted to know how TC arrived at the figures. The data noted in the cost benefit analysis is due in part from input from stakeholders as a result of a questionnaire sent out by MSP to stakeholders to gauge their estimated cost associated with the new training requirements. The data was validated by the MSP using historical cost data for the security portion of the training conducted by the recognized training institution. It should be noted that the message that TC heard throughout consultations with stakeholders, is that the cost associated with the new international training requirements, is the cost of doing business with Canada’s international partners, hence stakeholders are supportive of the amendment to align with the new international security training standards.

One stakeholder generally supported the amendments with respect to further aligning regulatory approaches with the United States (U.S.), but wished it went further. Canada continues to work with the U.S. to better align our regulatory approaches. The joint Regulatory Cooperation Council was created to do just that. Future regulatory work may include additional regulatory cooperation security measures between Canada and the U.S.

It should be noted that some of the comments were outside the scope of the current proposal. However, they have been noted and will be subject to further analysis and possible consideration for future regulatory work.

11. Regulatory cooperation

In February 2011, Canada and the United States announced the creation of the joint Regulatory Cooperation Council (RCC) to better align our regulatory approaches. The main goal of the RCC is to make it easier for Canadian and American firms to do business on both sides of the border without compromising safety or security.

The RCC established a Canada-United States joint working group that serves as the principal binational forum for Canadian and American discussion and cooperation. The working group addressed issues related to the safety and security of vessels in order to eliminate the duplication of regulatory program efforts and impediments to trade, where appropriate. The amendments to the Regulations include two regulatory cooperation activities:

12. Rationale

The amendments to the Regulations have been undertaken after consultations with stakeholders to further align the regulatory framework with the ever-changing security environment that the marine community faces domestically and internationally. As security threats and security innovations are constantly evolving, it is important that the marine security regulatory environment be nimble to encourage continuous improvement and to counter those threats. Therefore, the amendments are addressing many regulatory gaps and are aligning with security practices that have been implemented by the majority of the marine security community. Given that baseline conformity is already high, the incremental impact on marine security is considered to be negligible.

Rationale for adopting new IMO requirements

Canada, as a member state of the IMO, is expected to conform to the new international standards. Taking this action further harmonizes Canada’s international obligations and competitiveness, and ensures that Canada does not lose credibility internationally. Furthermore, conformity will result in a seafarer community that is more alert to security risks, and better prepared in the event of a security incident. The costs to seafarers and/or vessel operators will be $20.6 million over 25 years, with the vessel operators experiencing the majority of the cost for enhancing seafarer security training requirements. The vessel community accepts the changes as part of doing business with Canada’s international partners.

Rationale for further harmonizing the Canadian marine security regulatory regime with that of the United States

With the creation of the Regulatory Cooperation Council, Canada and the United States have taken the next step in working together to better align their marine security regulatory approaches. The two amendments with respect to adding the flexibility to enter into ASA with other IMO member states and aligning the list of Canadian CDC with the CDC list of the U.S. were inspired by this Canada–United States joint initiative. Taking this regulatory action will result in increased efficiencies, eliminate the duplication of regulatory program efforts and eliminate impediments to trade without compromising marine security across the U.S. and Canadian marine border. The amendments may benefit the competitiveness of some Canadian firms, in particular tugs and barges operating on Canada’s west coast, which are impacted by the misalignment of the CDC lists. Impacts on domestic and international trade are expected to be low but positive.

Rationale for allowing Canadian-flagged vessels to interface with non-regulated marine facilities

The amendment to clarify that Canadian-flagged vessels may interface with non-regulated marine facilities is a direct result of stakeholder input and the Government’s Red Tape Reduction Commission initiative. Moreover, the amendment clarifies Canada’s marine security regime, which is centred on securing vessels, ports and marine facilities involved in international voyages. It is expected that the amendment will have no negative impact on the security of Canadians, as it will be aligned with Canada’s risk-based approach to securing its marine transportation system.

Taking this action is expected to result in an increase in the number of such interfaces, improving efficiency, reducing regulatory burden by giving vessel operators the flexibility to choose to interface with either a regulated or non-regulated marine facility based on their business needs, and providing potential cost savings for vessel operators.

Overall, the amendments will result in a range of benefits to stakeholders, including improved clarity and consistency, international harmonization, and enhanced efficiency and flexibility, which support a well-functioning marine security system. TC expects that the value of these benefits will significantly exceed the costs ($20.6 million) over 25 years, and that the annualized costs ($1.8 million) will not impose a significant burden on an industry with an average annual GDP from 2002 to 2011 of $1.1 billion. (see footnote 10) If the amendments prevent just one significant act of unlawful interference at a large Canadian port, they could result in benefits ranging between $20 million and $57 billion.

The amendments support the Government’s overall strategy to promote a safe, secure and efficient transportation system that contributes to Canada’s economic development and security objectives. Excluding the costs associated with the seafarer security training requirements, the provisions are not expected to result in significant incremental costs.

13. Implementation and enforcement

Transport Canada provides rigorous oversight and enforcement of the Marine Transportation Security Act and its related legislative instruments through a national network of marine security inspectors.

During implementation, Transport Canada will use a graduated compliance and enforcement approach with respect to the amendments to the Regulations. TC is planning to issue guidance material and operational bulletins to industry stakeholders to ensure a well-coordinated and efficient implementation of, in particular, the new IMO training requirements for seafarers and the amendment regarding Canadian-flagged vessels interfacing with a nonregulated marine facility when operating on the domestic portion of an international voyage. Furthermore, TC regional inspectors have been involved in developing the amendments to the Regulations and will receive training to update their TC marine security inspector credentials with respect to the amendments to the Regulations.

New IMO requirements

On August 26, 2011, the IMO confirmed with all member states that the new STCW amendments to the STCW Code regarding the training and certification standards for vessel personnel with or without security responsibilities will come into force on January 1, 2012.

Given the short implementation time frames associated with the new IMO requirements, TC issued a Marine Security Operations Bulletin (MSOB) to advise industry to comply with the newly proposed STCW requirements by January 1, 2012. The MSOB provides industry with implementation procedures regarding the new IMO requirements, including the availability of transitional provisions for vessel personnel who have sea services before January 1, 2012.

Enforcement and compliance

Transport Canada’s goal is to create a fair and equitable compliance and enforcement environment that allows industry to take corrective actions first. Resorting to alternative enforcement actions in the absence of any such actions is not the preferred solution, but will be used, if necessary. TC also conducts education and awareness activities with stakeholders in order to encourage comprehension of the Regulations and ensure individual responsibilities are understood, thereby promoting voluntary compliance.

The enforcement of these amendments will be done through the compliance and enforcement regime set out in the Marine Transportation Security Act (MTSA) and Regulations. Sanctions for non-compliance will be administered under section 32 of the MTSA and Part 6 of the Regulations. When compliance is not achieved on a voluntary basis or where there are flagrant violations, enforcement action may be taken in the form of administrative monetary penalties (AMP) or the suspension or the cancellation of a marine security document.

In addition, security inspectors will be informed of their new duties through Transport Canada’s proposed Inspection and Enforcement Manual, setting out Transport Canada’s enforcement policy and procedures and how best to respond to non-compliant behaviour.

The compliance and enforcement of the amendments to the Regulations will not require additional resources and monitoring to ensure compliance, as security inspectors will monitor compliance as part of the current inspection and oversight regime.

14. Performance measurement and evaluation

Transport Canada recognizes that the results of security regulations are difficult to measure because they pertain mainly to detection and prevention. However, improvements in security performance should be evident with the implementation of the IMO security training requirements that require vessel personnel with or without security responsibility to hold a certificate of proficiency. It would result in a seafarer community that is more alert to security risks, and better prepared in the event of a security incident.

Additionally, TC will be looking to the marine community to provide further information on whether the amendments to the Regulations have made noticeable improvements to security in their facilities.

With respect to vessel operators implementing the new IMO seafarer training requirements, the expected outcomes after implementation and beyond are:

Furthermore, TC plans to conduct periodic surveys aimed at a sampling of the Canadian-flagged fleet and regulated Canadian ports and marine facilities to measure the performance on Canadian-flagged vessels interfacing with unregulated facilities during a domestic voyage or the domestic portion of an international voyage.

In general, TC intends to use evidence-based analysis, through monitoring and tracking of enforcement results, to identify if the intended results of the Regulations are being achieved.

15. Contact

Stéphane Doucet
Chief
Regulatory Issues (AMSXB)
Legislative, Regulatory and International Affairs
Marine Safety and Security
Transport Canada
Place de Ville, Tower B, 14th Floor, Room 1435
112 Kent Street
Ottawa, Ontario
K1A 0N5
Telephone: 613-993-5051
Fax: 613-993-3906
Email: Stephane.Doucet@tc.gc.ca