Holland & Knight LLP, law firm in Washington D.C, USA, has provided us with the following information. The Club wishes to draw special attention to the statement that to allow access to unidentified law enforcement personnel could be considered a violation of MTSA/ISPS Code.
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Following is a generic letter prepared by the U.S. Coast Guard expressing its policy regarding access by law enforcement personnel to commercial ships and facilities. While prompted by the upcoming implementation of maritime security regulations, it is consistent with long-standing agency guidelines.
Dear Mr. :
The U.S. Coast Guard is standardizing the process by which law enforcement personnel access commercial vessels and facilities. As vessels have begun to exercise elements of their security plans as required by the U.S. Maritime Transportation Security Act (MTSA) and the International Ship and Port Facility Security (ISPS) Code, certain conflicts have arisen with law enforcement access protocols. The intent of this letter is two fold, first to clarify procedures that will be followed by all Coast Guard personnel as they access foreign flagged vessels and second, to detail potential actions if properly identified Coast Guard personnel are denied access to a vessel or facility. This policy has been distributed to Coast Guard commands and will be shared with our partner law enforcement agencies.
Recognizing that maritime security is a shared responsibility, the following steps will be adhered to by a Coast Guard official when attempting to access a commercial vessel or facility:
- Verbally provide their name and organizational affiliation,
- Present an official government issued ID card at each security checkpoint,
- Sign the visitor’s logbook and provide an office contact number if requested,
- Accept an escort if requested.
Coast Guard personnel will fully expect to be approached for an ID check before being granted access to a vessel or facility. Vessels or facilities that allow access to unidentified law enforcement personnel could be considered to be in violation of the MTSA / ISPS Code, which could prompt immediate corrective actions by the Coast Guard.
Please note that properly identified law enforcement officials on official business cannot and will not surrender their government issued ID cards or firearms, and will not consent to and are exempt from baggage and government vehicle searches. Recognizing that some Ship Security Plans may not adequately address the access needs of law enforcement officials, policy has been established and promulgated stating that Coast Guard personnel will not attempt to “test” security procedures by fabricating or refusing to show credentials or by simulating the smuggling of prohibited items in baggage or government vehicles. If Coast Guard personnel refuse to show proper ID or vessel or facility personnel have doubts about the veracity of a credential, they should immediately contact the cognizant Coast Guard Captain of the Port.
Law enforcement officers have the right to access vessels and facilities subject to inspection without delay or obstruction. Further, law enforcement officers have the right to use reasonable force to compel compliance with lawful orders, including orders to permit access. Swift and decisive actions will be initiated against vessels or facilities if law enforcement personnel are denied access to a facility or vessel after complying with the above procedures. The remedial actions taken by the Coast Guard may include Captain of the Port operational controls, civil penalties, and potential criminal sanctions. It should also be noted that the procedures outlined in this letter do not apply to Coast Guard officers accessing vessels or facilities during emergencies or exigent circumstances in the performance of their duties.
We recognize that as we work our way through this initial implementation period for the MTSA and ISPS security requirements, issues will arise that neither security plans nor Administration policies have directly addressed. The Coast Guard will not be taking immediate action against vessels in circumstances where the vessel security plan conflicts with law enforcement procedures, but we will be recommending that the approved security plan be amended to address proper procedures for dealing with law enforcement officials.
Sincerely,
L. L. HERETH
Rear Admiral, U. S. Coast Guard
Director, Port Security
Should you have questions regarding the above, please contact Mr Dennis L. Bryant of Holland & Knight LLP, Washington, DC, at dennis.bryant@hklaw.com.
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Member Alert is published by The Swedish Club as a service to members. While the information is believed correct, the Club cannot assume responsibility for completeness or accuracy.