Proposed US Coast Guard regulations to implement the STCW Convention will, if adopted, have both direct and indirect impacts on maritime transportation security programs. That said, implementation of the maritime-security-specific STCW amendments adopted in Manila in 2010 is the 17th and last category in the Coast Guard’s summary of the significant changes being proposed. The indirect impacts would result from regulatory changes affecting training providers and the delivery and assessment of training courses (about which no more will be said here).On August 1st, the USCG issued a Supplemental Notice of Proposed Rulemaking (SNPRM) entitled “Implementation of the Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, and Changes to Domestic Endorsements.” It’s taken me a while to find the time to wade through this 175 page document (in PDF form) and the approximately 115 public comments submitted thus far, but I did want to address it before the comment period runs out at the end of the month. (He said, cutting it close.)
Background
Before diving into the substance of the maritime-transportation-security-related proposals, a little background is in order. The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (“STCW Convention”) was negotiated under the auspices of the International Maritime Organization (then known as the Intergovernmental Maritime Consultative Organization), the UN’s specialized body for maritime transportation safety, security, and environmental protection, and adopted by the international community in 1978. The STCW Convention was formally amended in 1995 and 2010. To ensure US compliance with the 1995 Amendments, the USCG promulgated an Interim Rule affecting mariner credentialing in 1997. In November 2009, it sought to update that regulation to reflect the experience gained through implementation of the 1995 Amendments under the Interim Rule by publishing a Notice of Proposed Rulemaking (NPRM). The NPRM produced over 150 public comments, mostly critical of some aspect of that Coast Guard proposal. Some comments also suggested that the USCG hold off on issuing an actual regulation until it could incorporate the STCW Amendments that were going to be adopted in the summer of 2010. In response to the comments received on the NPRM, the Coast Guard rethought some of its proposals and, in light of the entry into force of the 2010 Amendments on January1, 2012, issued the SNPRM to deal with both sets of issue at once.
Maritime Security Aspects of the SNPRM
The 2010 STCW Amendments establish mandatory minimum requirements for the issuance of certificates of proficiency for ship security officers (called Vessel Security Officers in the US). These were catch-up provisions, however, conforming the STCW Convention and Code to what had been required internationally since 2009. The 2010 Amendments also codified mandatory minimum requirements for security-related training for all seafarers. They must receive security-related familiarization and security-awareness training or instruction in accordance with the STCW Code and meet the specified standard of competence. “Seafarers with designated security duties” must receive additional specified training and prove their competence to undertake such duties.
As the STCW Convention and Code do not apply to mariners who work only within the US, the SNPRM appropriately limits its implementation of these provisions to “seagoing vessels [those that are self-propelled and operate seaward of the boundary line] . . ., subject to the STCW Convention.” Proposed section 15.1113 of Code of Federal Regulations, Title 46, is the last item before the Commandant’s signature block. It contains three subparagraphs. The first requires persons performing duties as Vessel Security Officer (VSO) onboard a seagoing vessel of 200 Gross Registered Tons/500 Gross Tons, or more, to hold a valid VSO endorsement. (This is already required by 33 CFR section 104.215, albeit without the proposed tonnage threshold.) The second subparagraph would mandate that, after July 1, 2012, all “personnel with security duties” hold either an endorsement as vessel personnel with designated security duties or a course completion certificate from a USCG-accepted course that complies with 33 CFR section 104.220. The last subparagraph, also applicable after July 1, 2012, requires all other vessel personnel, “including contractors, whether part-time, full-time, temporary or permanent,” to have either a maritime security awareness endorsement or a course completion certificate (from a USCG-approved course meeting 33 CFR section 104.2250).
Earlier in the SNPRM, “Vessel personnel with security duties” and “Vessel Security Officer” are defined. Section 10.107 uses wording that is basically the existing VSO definition in 33 CFR section 101.105 and is quite close to the definition of ship security officer in both the ISPS Code and the STCW Convention as amended. The proposed definition of “Vessel personnel with security duties,” however, tracks neither the 2010 STCW Amendments nor the indication in 33 CFR section 104.220 that “vessel personnel with security duties” are those “responsible for security duties.” Instead, section 10.107 in the SNPRM would define these people as those, other than a VSO or Company Security Officer “holding a license or MMC officer endorsement, and/or an STCW endorsement; and persons in charge for the loading and unloading of cargo, passengers, and vessel stores.”
Additionally, three different sections proposed in the SNPRM would establish the requirements to qualify for the three STCW maritime security endorsements—section 11.811 for VSO, section 12.625 for vessel personnel with designated security duties, and section 12.627 for security awareness. In each case, the applicant must: (1) present “satisfactory documentary evidence” of compliance with the appropriate section of 33 CFR Part 104; (2) meet the physical examination requirements established elsewhere in CFR Title 46; and (3) meet “the safety and suitability requirements and the National Driver (NDR) review requirements” in 46 CFR section 10.209(e) (unless already done within the past five years in connection with another endorsement). As to the first requirement, it is already in effect for VSOs and is logical for the other two endorsements. The second is a proposed addition to the general application procedures for Merchant Mariner Credentials (MMCs) and endorsements, while the third is an existing requirement of those procedures for MMCs and some endorsements. Listing them in these proposed CFR sections would provide a complete statement of requirements for each maritime security endorsement.
Critique
First, the proposed definition of “personnel with security duties” in section 10.107 is confusing and may include some personnel not intended to be covered by the STCW Code, while excluding others who were meant to be covered. Although the STCW Convention and Code do not contain a formal definition of “personnel with designated security duties,” Section B-VI/6, paragraph 4 of the STCW Code indicates that the phrase “with designated security duties” refers to seafarers “with specific security duties and responsibilities in accordance with the ship security plan.” Not every person “holding a license or MMC officer endorsement, and/or an STCW endorsement . . . [or] in charge for the loading and unloading of cargo, passengers, and vessel stores” will necessarily be charged by the Vessel Security Plan (VSP) with specific security duties and responsibilities. Additionally, those seafarers without specific security duties who choose to minimize the wear and tear on their Maritime Security Awareness course completion certificate by obtaining a Security Awareness endorsement in their Merchant Mariner Credentials (MMCs). As this is one of the STCW endorsements listed in proposed section 10.109(d), the holder would then be classified by the definition as a person with security duties, which would require undergoing training for personnel with security duties. Conversely personnel tasked with specifc security duties by the VSP might not hold and officer or an STCW endorsement or be in charge of loading and unloading something. A definition should accurately capture and clearly indicate who or what will be affected by requirements attaching to the term defined. Tracking the STCW Code would do that much better than the proposal in the SNPRM.
Second, sections 12.625 and 12.627 overreach in requiring applicants for endorsements for vessel personnel with designated security duties and for security awareness to undergo safety and suitability and NDR review requirements. Both as currently worded and as proposed, section 10.209(e) only applies to issuance/reissuance of MCCs and to issuance of “new officer endorsements.” These two endorsements are included in Part 12 dealing with rating endorsements, not in Part 11 on officer endorsements.
Third, as to proposed Section 15.113, the July 1, 2012 deadline for obtaining either a “security awareness endorsement or one for “vessel personnel with designated security duties” does not allow for sufficient time for compliance. At the present time, no courses for either endorsement are listed in the National Maritime Center’s list of approved courses. The SNPRM states that “training requirements for vessel personnel with designated security duties and for security awareness . . . will be part of a separate rulemaking.” Rulemaking is a drawn out process and once the requirements are defined, training providers would have to develop and submit their courses to the USCG for approval, both of which would take more time. Even if one assumes the grandfathering of courses previously approved through the Maritime Administration’s voluntary certification program, MARAD’s list of “Certified Maritime Security Courses” has only three approved courses for Vessel Personnel with Specific Security Duties and only nine for Maritime Security Awareness.
Fourth, it’s unclear whether subsections 15.1113(b) and (c) are meant to apply to all vessels subject to the STCW Convention and Code or just to those that are also subject to the Chapter XI-2 of the SOLAS Convention and the ISPS Code. Subsection (a) explicitly limits the requirement for a VSO endorsement to VSOs serving on seagoing vessels of 200GRT/500GT or more, which is the SOLAS/ISPS Code threshold. The tonnage threshold is not repeated for the categories of seafarers dealt with in subsections (b) and (c). The training requirements for specific security duties and for security awareness originated in the ISPS Code. The STCW Code characterizes “designated security duties” as arising out of the ship security plan, a document that only is required of vessels meeting the tonnage threshold. This suggests that only personnel performing specific security duties onboard SOLAS vessels should be required to obtain an endorsement for vessel personnel with designated security duties.
You Still Can Comment (Just)
Sometime between now and the deadline at 11:59 PM on September 30th, I intend to submit comments based on the forgoing to the Coast Guard. You, to can comment, whether about maritime security issues in the SNPRM, the adequacy of the proposed sea service credit for time spent on non-ocean-going vessels, the plan to require payment of all mariner credentialing fees by credit card, or other burning issue. But time is short. At this point, your options are effectively limited to FAX transmittal (to 202-493-2251) or online posting. To submit your comment online, go to http://www.regulations.gov, click on the ••submit a comment” box, which will then become highlighted. In the ••Document Type” drop down menu select ••Proposed Rule” and insert ••USCG—2004—17914″ in the ••Keyword” box. Click ••Search” then click on the balloon shape in the ••Actions” column.
If you submit a comment by either method, the Coast Guard would like you to include the docket number USCG—2004—17914, indicate the specific section of the SNPRM to which each comment applies, and provide a reason for each suggestion or recommendation. The USCG recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your comment so that they can contact you about any questions regarding your submission.
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