Canada Gazette

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

1. (1) The definition "cruise ship terminal" in section 1 of the Marine Transportation Security Regulations (see footnote 1) is replaced by the following:

"cruise ship terminal" means a marine facility that interfaces with cruise ships. (terminal pour navires de croisière)

(2) The definition "laissez-passer de zone réglementée" in section 1 of the French version of the Regulations is replaced by the following:

« laissez-passer de zone réglementée » Document délivré par l'exploitant d'une installation maritime ou d'un bâtiment ou par un organisme portuaire qui permet au titulaire d'avoir accès à des zones réglementées précises dans des bâtiments ou des installations maritimes durant une période donnée. (restricted area pass)

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

"container" means a structure for transporting commodities on trucks, railcars or vessels that meets the requirements set out in the Safe Containers Convention Act. (conteneur)

"container terminal" means any marine facility that accepts containers for transport. (terminal pour conteneurs)

"security clearance" means a security clearance granted by the Minister under section 509. (habilitation de sécurité)

11. An operator of a vessel to which Part 2 applies, or a marine facility operator or port administration to which Part 3 applies, shall maintain MARSEC level 1 at all times unless a higher MARSEC level is required by a security measure formulated by the Minister under section 7 of the Act.

(g) in the case of a SOLAS ship, a continuous synopsis record issued by the Minister;

4. The portion of subsection 221(2) of the French version of the Regulations before paragraph (a) is replaced by the following:

(2) Les renseignements exigés au préalable à l'égard d'un bâtiment comprennent les éléments suivants :

5. The French version of the Regulations is amended by adding the following after section 221:

6. (1) The portion of subsection 240(2) of the English version of the Regulations before paragraph (a) is replaced by the following:

(b) spaces containing the central controls for security and surveillance equipment and systems and spaces that contain the central lighting system controls;

263. (1) A cruise ship operator shall remove from duty a screening officer who does not conduct an authorized screening in accordance with any security measures that may be formulated under section 7 of the Act and shall not allow the screening officer to conduct any authorized screening before the screening officer is retrained to meet the standards described in the measures.

8. Subsection 312(1) of the Regulations is amended by striking out the word "and" at the end of paragraph (m), by adding the word "and" at the end of paragraph (n) and by adding the following after paragraph (n):

(o) an up-to-date list, by name and position, of the holders of security clearances, except in a case where a port administration keeps the list.

9. (1) Subparagraph 323(e)(i) of the Regulations is replaced by the following:

(2) Section 323 of the Regulations is amended by striking out the word "and" at the end of paragraph (f), by adding the word "and" at the end of paragraph (g) and by adding the following after paragraph (g):

10. (1) Subsection 329(2) of the French version of the Regulations is replaced by the following:

(2) Le plan comprend des procédures de sûreté pour veiller à ce que des avis soient affichés en conformité avec l'article 21 de la Loi.

(c) areas containing the central controls for security and surveillance equipment and systems and areas that contain the central lighting system controls;

(3) Section 329 of the Regulations is amended by adding the following after subsection (3):

(a) areas in the marine facilities set out in Part 1 of Schedule 1 that contain the central controls for security and surveillance equipment and systems and areas that contain the central lighting system controls; and

(b) areas that are designated for the loading or unloading of cargo and ships' stores at the cruise ship terminals set out in Part 1 of Schedule 1 and land areas adjacent to vessels interfacing with those cruise ship terminals.

12. (1) Section 373 of the Regulations is amended by adding the following after paragraph (c):

(c.1) in the case of a port set out in Part 2 or 3 of Schedule 1, the identification of those areas containing the central controls for security and surveillance equipment and systems and areas that contain the central lighting system controls as restricted area two;

(2) Section 373 of the Regulations is amended by striking out the word "and" at the end of paragraph (e), by adding the word "and" at the end of paragraph (f) and by adding the following after paragraph (f):

13. Subsection 375(1) of the Regulations is amended by striking out the word "and" at the end of paragraph (k), by adding the word "and" at the end of paragraph (l) and by adding the following after paragraph (l):

(m) an up-to-date list, by name and position, of the holders of security clearances.

(2) Paragraphs 380(1)(a) and (b) of the Regulations are replaced by the following:

(a) the holder of a restricted area pass issued under section 384 for that restricted area;

(b) a person who does not ordinarily work at the marine facility or port and who is being escorted by a holder of a restricted area pass;

(3) Paragraph 380(1)(d) of the Regulations is amended by adding the word "or" at the end of subparagraph (ii) and by replacing subparagraphs (iii) and (iv) with the following:

(4) Subsection 380(1) of the Regulations is amended by adding the word "or" at the end of paragraph (e) and by adding the following after paragraph (e):

(f) a member of the complement of the vessel in the performance of their duties and in compliance with the vessel security plan and the marine facility security plan.

(5) Section 380 of the Regulations is amended by adding the following after subsection (1):

(2) A commercial truck driver who is required to enter a restricted area two at a marine facility or port as part of their commercial activities may enter and remain in the area to carry out the activities if

(a) the driver holds a valid FAST/EXPRES card issued under the Free and Secure Trade (FAST) program by the Canada Border Services Agency or the U.S. Customs and Border Protection;

(b) the operator of the marine facility or port administration informs the driver of all applicable procedures and requirements, as identified and approved in the marine facility security plan, and ensures that the driver meets the procedures and requirements; and

(c) the driver follows the procedures and requirements identified by the operator of the marine facility or port administration.

(3) A passenger of a cruise ship may transit a restricted area two if the passenger uses a passageway that

(a) is demarcated for use by passengers in accordance with the marine facility security plan; and

15. Section 381 of the Regulations is amended by adding the following after subsection (2):

(3) In the case of a restricted area two, no person shall escort more than 10 persons or one vehicle at one time.

383. The holder of a restricted area pass shall, when they enter or remain in a restricted area, display the pass on their outer clothing and above their waist with, except in the case of a temporary restricted area pass, their photograph or other facial image visible at all times.

384. (1) Subject to subsection (2), a port administration or an operator of a marine facility may issue a restricted area pass or a key only to a person who requires access to a specific restricted area in the performance of their duties and, in the case of a restricted area two, who ordinarily works at the port or marine facility or who requires access to the restricted area on an occasional basis.

(2) A port administration or an operator of a marine facility may only issue a temporary restricted area pass to a person who

(a) in the case of a restricted area other than a restricted area two, is waiting for a restricted area pass that has been requested;

(b) is a holder of a restricted area pass and is in one of the following circumstances:

(c) does not ordinarily work at the port or marine facility and who, in the performance of their duties, requires temporary access to a restricted area other than a restricted area two.

(3) Prior to issuing a restricted area pass, the port administration or operator of a marine facility shall confirm the identity of the person in the following manner:

(a) in the case of a restricted area pass to be issued to a person who holds a security clearance, by valid photo-bearing identification issued by

(4) Prior to issuing a restricted area pass for a restricted area two, the port administration or operator of the marine facility shall verify with the Minister that the person has been issued a security clearance as required by section 503.

(5) The port administration or operator of the marine facility shall confirm the period during which access to the restricted area is required by way of documentation that sets out an expiry date or other relevant information.

(6) The port administration or operator of the marine facility shall issue restricted area passes that comply with the requirements of sections 392 and 394, as applicable.

385. (1) A holder of a restricted area pass or key that has been lost or stolen shall immediately report its loss or theft to the port administration or the operator of the marine facility.

(2) The port administration or operator of the marine facility shall immediately cancel a restricted area pass and any associated key upon being notified of its loss or theft.

17. Paragraph 386(1)(a) of the French version of the Regulations is replaced by the following:

a) le nombre de laissez-passer de zone réglementée délivrés et de clés remises et, pour chaque laissez-passer ou chaque clé, le nom du titulaire, le numéro du laissez-passer ou de la clé, la date de délivrance, la période de validité et, le cas échéant, la date de suspension ou de révocation;

18. (1) The portion of subsection 389(1) of the French version of the Regulations before paragraph (a) is replaced by the following:

389. (1) Le titulaire d'un laissez-passer de zone réglementée ou d'une clé les rend à l'exploitant de l'installation maritime ou à la personne qui les lui a délivrés au moment :

392. (1) Subject to subsection (2), a restricted area pass shall show the name, height and eye colour of the person to whom the pass has been issued, a clear photograph of the person's head and shoulders or other facial image and an expiry date that is not later than five years after the date of issue or, in the case of a restricted area pass issued to a person who holds a security clearance, that is not later than the expiry date of the security clearance.

(2) A temporary restricted area pass need not meet the requirements of subsection (1), but it shall bear a mark that clearly distinguishes it as a temporary pass.

393. (1) A port administration may issue keys and restricted area passes, and keep an up-to-date list, by name and position, of the holders of security clearances, on behalf of marine facility operators in the port.

21. The reference "[394 to 399 reserved]" after section 393 of the Regulations is replaced by the following:

394. Every restricted area pass issued to a holder of a security clearance shall bear a mark that clearly distinguishes it from restricted area passes issued to persons who are not security clearance holders.

501. (1) This Part applies to the marine facilities set out in Part 1 of Schedule 1 and to the port administrations for the ports at which the marine facilities are located.

(2) This Part also applies to every licensed ship's pilot, as defined in section 2 of the Pilotage Act, having the conduct of a vessel that interfaces with a marine facility set out in Part 1 of Schedule 1 or of a vessel in the waters of a port set out in Part 2 or 3 of that Schedule.

502. The operator of a marine facility and the port administration shall ensure that the requirements of this Part are met.

(a) require access to a restricted area two and cannot enter the area under any of paragraphs 380(1)(b) to (f) or subsection 380(2) or (3);

(d) have security responsibilities, including authorized screening and security guard functions;

(e) take applications for security clearances and the applicants' fingerprints and facial images, which functions are performed on behalf of the Minister and for the purposes of this Part;

(f) have access to a cruise ship that is interfacing with a restricted area two to provide services, supplies or equipment to the cruise ship or a member of the complement of the cruise ship;

(g) could cause the failure of a preventive measure, delay the response to a security incident or adversely affect the recovery from a security incident as a result of being assigned or performing any of the following duties, responsibilities or functions:

(h) are a seafarer who has submitted an application for a Seafarer's Identification Document.

504. The holder of a security clearance who has been issued a restricted area pass shall display the pass on their outer clothing and above their waist, with their photograph or other facial image visible at all times when they

(a) perform the responsibilities, duties or functions for which a security clearance is required; or

505. The following persons may submit an application for a security clearance:

(a) any person who is required to obtain a security clearance under these Regulations;

(b) any person applying for a job for which a security clearance would be required under these Regulations; and

506. (1) In this section, "common-law partner" means any person who is cohabiting with the applicant in a relationship of a conjugal nature and has done so for a period of at least one year.

(2) An application for a security clearance shall include the following information and documentation, to be used only for the purposes of sections 508 and 509:

(a) the applicant's usual given name used, other given names, surname, all other names used and details of any name changes;

(b) the applicant's date of birth, gender, height, weight, and eye and hair colour;

(c) if the applicant was born in Canada, the number and province of issue of their birth certificate, as well as the original of that certificate;

(d) if the applicant was born outside Canada, their place of birth, the port and date of entry, and, in the case of a naturalized Canadian or permanent resident, the number and the original of the applicable certificate issued under the Citizenship Act or the Immigration and Refugee Protection Act;

(e) in the case of a foreign national, the original of any document that is evidence of their status;

(f) the applicant's passport number, including the country of issue and expiry date, or an indication that the applicant does not have a passport;

(g) the addresses of all locations at which the applicant resided during the five years preceding the application;

(h) an identification of the applicant's activities during the five years preceding the application, including the names and street addresses of the applicant's employers and any post-secondary educational institutions attended;

(i) the dates, destination and purpose of any travel of more than 90 days outside Canada or the United States, excluding travel for government business, during the five years preceding the application;

(j) the information referred to in subsection (3) respecting the applicant's spouse or common-law partner, any former spouses or common-law partners;

(l) a facial image of the applicant for identification purposes, taken by or on behalf of the Minister;

(m) a statement signed by the marine facility operator or port administration certifying that the applicant requires or will require a security clearance and specifying the reasons for that requirement; and

(n) a statement signed by the person responsible for taking the fingerprints of the applicant certifying that they have confirmed the identity of the applicant in accordance with paragraph 384(3)(a) at the time of the taking of the fingerprints.

(3) The information required with respect to any of the persons referred to in paragraph (2)(j) shall be

(a) in the case of the spouse or common-law partner of the applicant, the following information:

(i) their gender, full given name, surname and, if applicable, maiden name,

(ii) their date and place of birth and, if applicable, date of death,

(iii) if born in Canada, the number and province of issue of their birth certificate,

(iv) if born outside Canada, their place of birth, their nationality and the port and date of entry into Canada, and

(v) their present address, if known; and

(b) in the case of former spouses and common-law partners with whom the relationship ended within the preceding five years, the information referred to in subparagraphs (a)(i), (ii) and (v).

(4) The application for a security clearance shall be valid only if signed by the applicant or, in the case of an applicant who is a minor under the laws of the province where they reside, by a parent or guardian or tutor.

(5) Personal information that is provided in the application for the security clearance and that resulting from the checks and verifications shall not, without the written consent of the individual to whom it relates, be disclosed by the Minister to the government of a foreign state except

(a) where, in the opinion of the Minister, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure; or

(b) for the purpose of complying with a subpoena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information.

507. (1) Subject to subsection (2), every application for a security clearance shall be submitted on the form supplied by the Minister to the port administration at the port where the applicant works or is a candidate for work or to which the applicant otherwise requires access.

(2) If the port administration is not able to transmit the application in accordance with subsection (3), the application shall be submitted to an official of an office

(a) managed by or for an airport authority and that is responsible for the control of the airport's passes, where the airport authority is able to transmit the application in accordance with a document that evidences the understanding to that effect with the Minister; or

(3) The port administration or official shall collect the applicant's information on behalf of the Minister and shall transmit it to the Minister in accordance with the document that evidences the understanding to that effect with the Minister.

508. On receipt of a fully completed application for a security clearance, the Minister shall conduct the following checks and verifications for the purpose of assessing whether an applicant poses a risk to the security of marine transportation:

(b) a check of the relevant files of law enforcement agencies, including intelligence gathered for law enforcement purposes;

(c) a Canadian Security Intelligence Service indices check and, if necessary, a Canadian Security Intelligence Service security assessment; and

509. The Minister may grant a security clearance if, in the opinion of the Minister, the information provided by the applicant and that resulting from the checks and verifications is verifiable and reliable and is sufficient for the Minister to determine, by an evaluation of the following factors, to what extent the applicant poses a risk to the security of marine transportation:

(a) the relevance of any criminal convictions to the security of marine transportation, including a consideration of the type, circumstances and seriousness of the offence, the number and frequency of convictions, the length of time between offences, the date of the last offence and the sentence or disposition;

(b) whether it is known or there are reasonable grounds to suspect that the applicant

(i) is or has been involved in, or contributes or has contributed to, activities directed toward or in support of the misuse of the transportation infrastructure to commit criminal offences or the use of acts of violence against persons or property, taking into account the relevance of those activities to the security of marine transportation,

(ii) is or has been a member of a terrorist group within the meaning of subsection 83.01(1) of the Criminal Code, or is or has been involved in, or contributes or has contributed to, the activities of such a group,

(iii) is or has been a member of a criminal organization as defined in subsection 467.1(1) of the Criminal Code, or participates or has participated in, or contributes or has contributed to, the activities of such a group as referred to in subsection 467.11(1) of the Criminal Code taking into account the relevance of these factors to the security of marine transportation,

(iv) is or has been a member of an organization that is known to be involved in or to contribute to — or in respect of which there are reasonable grounds to suspect involvement in or contribution to — activities directed toward or in support of the threat of or the use of, acts of violence against persons or property, or is or has been involved in, or is contributing to or has contributed to, the activities of such a group, taking into account the relevance of those factors to the security of marine transportation, or

(v) is or has been associated with an individual who is known to be involved in or to contribute to — or in respect of whom there are reasonable grounds to suspect involvement in or contribution to — activities referred to in subparagraph (i), or is a member of an organization or group referred to in any of subparagraphs (ii) to (iv), taking into account the relevance of those factors to the security of marine transportation;

(c) whether there are reasonable grounds to suspect that the applicant is in a position in which there is a risk that they be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security;

(d) whether the applicant has had a restricted area pass for a marine facility, port or aerodrome removed for cause; and

(e) whether the applicant has filed fraudulent, false or misleading information relating to their application for a security clearance.

510. If a criminal charge is outstanding against the applicant that could, if the applicant were convicted, be considered by the Minister under paragraph 509(a), the Minister may decline to process the application until the charge has been disposed of by the courts, in which case the Minister shall advise the applicant in writing.

511. (1) If the Minister intends to refuse to grant a security clearance, the Minister shall advise the applicant in writing to that effect.

(2) The notice shall set out the basis for the Minister's intention and fix a period of time for the applicant to make written representations to the Minister, which period of time shall start on the day on which the notice is served or sent and shall be not less than 20 days from that day.

(3) The Minister shall not refuse to grant a security clearance until the written representations have been received and considered or before the period of time fixed in the notice has expired, whichever comes first. The Minister shall advise the applicant in writing of any refusal.

512. (1) The Minister shall establish a period of validity for a security clearance in accordance with the level of risk posed by the applicant determined under section 509, but the period shall not exceed five years.

(2) If the validity period is less than five years, the Minister may extend the period to a total of five years if the Minister determines under section 509 that the holder does not pose a risk to the security of marine transportation.

(3) If a security clearance is suspended and subsequently reinstated, the end of the validity period remains the same as that established at the time of issuance.

513. A marine facility operator or port administration shall immediately notify the Minister in writing when the holder of a security clearance is no longer required by these Regulations to be the holder of a security clearance.

514. A marine facility operator or port administration shall immediately notify the Minister in writing when they suspend or cancel, for security reasons, a restricted area pass issued to a holder of a security clearance.

515. (1) The Minister may suspend a security clearance on receipt of information that could change the Minister's determination made under section 509.

(2) Immediately after suspending a security clearance, the Minister shall advise the holder in writing of the suspension.

(3) The notice shall set out the basis for the suspension and shall fix a period of time for the holder to make written representations to the Minister, which period of time shall start on the day on which the notice is served or sent and shall be not less than 20 days from that day.

(4) The Minister may reinstate the security clearance if the Minister determines under section 509 that the holder does not pose a risk to marine transportation security.

(5) The Minister may cancel the security clearance if the Minister determines under section 509 that the holder may pose a risk to marine transportation security or that the security clearance is no longer required. The Minister shall advise the holder in writing of any cancellation.

(6) The Minister shall not cancel a security clearance until the written representations have been received and considered or before the time period fixed in the notice has expired, whichever comes first.

516. If the Minister refuses to grant or cancels a security clearance, an applicant may submit a new application only if

(a) a period of five years has elapsed after the day of the refusal or cancellation; or

(b) a change has occurred in the circumstances that led to the refusal or cancellation.

517. (1) An applicant or a holder may request that the Minister reconsider a decision to refuse to grant or to cancel a security clearance within 30 days after the day of the service or sending of the notice advising them of the decision.

(b) the grounds for the request, including any new information that the applicant or holder wishes the Minister to consider; and

(3) On receipt of a request made in accordance with this section, the Minister, in order to determine the matter in a fair, informal and expeditious manner, shall give the applicant or holder

(a) where the situation warrants, the opportunity to make representations orally or in any other manner; and

(b) in any other case, a reasonable opportunity to make written representations.

(4) After representations have been made or a reasonable opportunity to do so has been provided, the Minister shall reconsider the decision in accordance with section 509 and shall subsequently confirm or change the decision.

(5) The Minister may engage the services of persons with appropriate expertise in security matters to advise the Minister.

(6) The Minister shall advise the applicant or holder in writing of the decision made following the reconsideration.

518. The Minister shall send to the person at their last known address, by personal service or registered mail, any notices to be given under this Part.

519. No person shall knowingly file with the Minister a fraudulent application or an application containing false or misleading information in order to obtain a security clearance.

SCHEDULE 1
(Subsection 329(4), paragraph 373(c.1), section 501 and subparagraph 503(1)(d)(vi))

3. Marine Traffic Control Centres and Operations Centres of The St. Lawrence Seaway Management Corporation

23. In the following provisions of the French version of the Regulations, the words "détenteur" and "détenteurs" are replaced by the words "titulaire" and "titulaires", respectively, with any modifications that the circumstances require:

24. (1) Subject to subsection (2), these Regulations come into force on the day on which they are registered.

(2) Sections 8 and 9, subsection 10(3), sections 12 to 16 and 19 to 21 of these Regulations, and sections 501 to 504, and Schedule 1 to the Marine Transportation Security Regulations, as enacted by section 22 of these Regulations, come into force on

(b) December 15, 2008, with respect to the ports set out in Part 3 of Schedule 1.

In December 2002, in response to the events of September 11, 2001, the International Maritime Organization adopted the International Ship and Port Facility Security Code (ISPS Code) and amendments to the International Convention for the Safety of Life at Sea, 1974. Canada, an IMO Contracting Government, implemented these documents through the Marine Transportation Security Regulations (the Regulations). These were passed under the authority of section 5 of the Marine Transportation Security Act (MTSA) and came into force on July 1, 2004.

Amendments now add substantive new Parts 5, 6, and 7 to the Regulations and to correct certain minor errors and inconsistencies that were inadvertently included in the Regulations and to clarify that certain existing provisions are mandatory. Part 5 implements a marine workers' security clearance program, hereafter referred to as the Marine Transportation Security Clearance Program (MTSCP), Part 6 would implement an administrative monetary penalty (AMP) enforcement scheme and Part 7 implements the notice and service requirements applicable to that enforcement scheme.

The MTSCP was announced in 2003 with the commitment to introduce background checks of workers at marine facilities and ports. It was one of the early marine security priorities supported by the over $900M to date dedicated to Marine Security enhancement. The purpose of the MTSCP is to enhance the security of the marine transportation system, benefiting the public, passengers, marine workers, and operators of vessels, ports and marine facilities. The MTSCP is not a new program. Rather, it is an expansion of the existing Security Clearance Program, which has been in place in Canada's airports since the 1980s.

Part 5 of the Regulations provide the regulatory framework for the MTSCP. In addition to Part 5, the amendments introduce a number of consequential amendments to Part 3 of the Regulations. These amendments specify restricted areas for which a security clearance is required for access.

The MTSCP applies to persons who work in a restricted area two (R2) and persons who perform certain designated duties.

Designated duties at container terminals located in the marine facilities and ports set out in Parts 2 and 3 of Schedule 1 and at the Marine Traffic Control Centres and Operations Centres of The St. Lawrence Seaway Management Corporation will be identified through an examination of the functions that may be performed under paragraph 503(g) of the Regulations.

(d) have security responsibilities, including authorized screening and security guard functions;

(e) take applications for security clearances and the applicants' fingerprints and facial images;

(f) have access to a cruise ship that is interfacing with a restricted area two to provide services, supplies or equipment to the cruise ship or a member of the complement of the cruise ship;

(g) could cause the failure of a preventive measure, delay the response to a security incident or adversely affect the recovery from a security incident as a result of being assigned or performing the following duties, responsibilities or functions:

(h) are a seafarer who has submitted an application for a Seafarer's Identification Document.

The amendments to the Regulations establish the process for submitting and evaluating applications for security clearances. This process was built on experience gained from Canada's program of background security checks for airport personnel.

The assessment of whether to grant a security clearance will be based on a global evaluation of information obtained from the applicant to determine if the applicant poses a risk to marine transportation security. Where all the required checks are successfully completed and there are no concerns, the Minister or an official with delegated authority may grant a security clearance.

Where, as a result of the assessment process, there is information concerning the applicant that could lead to a recommendation to refuse to grant a security clearance, notice providing a summary of the concerns and of the applicant's ability to make written representations to Transport Canada will be sent to the applicant. The applicant is allowed no less than 20 days to make written submissions, after which the application will be assessed and a decision made.

If a security clearance is refused, cancelled, or suspended, the applicant will be informed of the decision.

An applicant whose application is denied may request a reconsideration of the Minister's decision. The Minister's reconsideration will be conducted in a manner independent of the initial decision. Apart from reconsideration, a person whose security clearance has been refused or cancelled may reapply for a security clearance where there has been a change in the applicant's circumstances or, in any case, after five years.

If a person is refused a clearance or his or her clearance has been cancelled on the basis of information received from the Canadian Security Intelligence Service, the applicant, in some circumstances, may file a complaint with the Security Intelligence Review Committee.

If all avenues of recourse are exhausted, a person whose clearance has been refused or cancelled may file a request for judicial review by the Federal Court.

Phase 1 Ports: Vancouver, Montreal, Halifax, Fraser River, North Fraser, and Marine Traffic Control Centres and Operations Centres of the St. Lawrence Seaway Management Corporation.

Phase 2 Ports: Victoria, Prince Rupert, Québec, Saint John, Toronto, Hamilton, Windsor, and St. John's.

The amendments for anyone requiring a security clearance come into force on December 15, 2007, for Phase 1 ports, and December 15, 2008 for Phase 2 ports. This will allow reasonable time for marine workers who need access to these areas to obtain a security clearance.

Other ports and marine facilities may be added to the program in the future, on the basis of marine transportation security risk and threat assessments and ongoing evaluation of the program. Any such expansion of the MTSCP would require amendments to the Regulations. It is the long-term goal that this program be in place at other Canadian ports.

Parts 6 and 7 of the Regulations come into force one year after the registration of the amendments to give vessel and marine facility operators time to become familiar with their responsibilities under the Regulations.

The MTSA was amended in 2001 to include sections 32 to 51, which introduce two new tools into the MTSA compliance and enforcement scheme: assurances of compliance and administrative monetary penalties (AMPs).

Administrative enforcement action is considered preferable, in most instances, to instituting criminal proceedings for regulatory infractions as it is typically more expedient and economical than criminal proceedings.

The main purpose of the new Part 6 of the Regulations is to enable the implementation of assurances of compliance and AMPs.

Section 32 of the MTSA requires the designation in regulations of those provisions of the legislation that will be subject to the new AMPs scheme. Contraventions of the designated provisions are called "violations" under the MTSA.

Designation of a legislative provision as subject to the AMPs scheme does not preclude its prosecution. Where prosecuting a case is not considered necessary, the violation may be dealt with either by entering into an assurance of compliance with the individual or company or by the assessment of a monetary penalty. Assurances of compliance are written agreements under which the individual or company acknowledges that they committed the violation and undertakes to bring themselves into compliance within a certain period of time.

The Transportation Appeal Tribunal of Canada (TATC) will adjudicate disputes between Transport Canada and the marine community related to AMPs and assurances of compliance. The TATC is an independent, quasi-judicial body that was established in 2001 under the Transportation Appeal Tribunal of Canada Act. The TATC currently adjudicates certain administrative enforcement decisions made under the Aeronautics Act, Canada Transportation Act and Railway Safety Act. It will assume a similar jurisdiction under the MTSA when the AMPs provisions of the MTSA and these regulatory amendments enter into force.

Under the amendments, many of the offence-creating provisions that are potentially the subject of enforcement action by Transport Canada Marine Security have been designated as violations. It is possible to levy administrative penalties to both individuals and corporate or business entities.

The provisions designated as violations are set out in two schedules to the Regulations. The schedules prescribe the range of penalty amounts for individuals and corporations. Some violations are identified as "continuing violations" where an action or omission continues on more than one day. This would constitute a separate violation for each day. The penalty range for each violation has been established based on a characterization of the violation as being of a low, medium or high risk threat level as follows:

The range of penalties established for various violations are, to the extent possible, set out in a manner and amount consistent with the penalty levels under other legislation within the mandate of Transport Canada, particularly the Canada Shipping Act, 2001.

The purpose of the new Part 7 of the Regulations is to specify how notices must be served under the new Part 6 of the Regulations. Part 7 provides maximum flexibility to the Minister of Transport and is consistent with current and emerging court practices.

The Regulations provide for the personal service of documents, service by registered mail and by courier, and service by facsimile. Documents served by registered mail are deemed to be served on the fourth day after the day on which they were mailed and documents served by facsimile are deemed to be served on the day after they were sent.

Parts 6 and 7 of the Regulations come into force one year after the registration of the amendments to give vessel and marine facility operators time to become familiar with their new responsibilities under the Regulations.

In addition to adding new Parts 5, 6 and 7, amendments are made to the Regulations to correct minor errors and inconsistencies that were inadvertently included when the Regulations were initially made. These include changes made to ensure that English and French texts have exactly the same meaning, changes made to clarify which person is responsible for ensuring that particular requirements are met, and changes to clarify that particular requirements are mandatory. Notable changes are listed below.

MARSEC Level: Section 11 of the Regulations is amended to clarify that the normal operating level for vessels, marine facilities or ports is MARSEC (Marine Security) Level 1 and that they remain at that level unless the Minister of Transport issues a measure under section 7 of the MTSA, raising the MARSEC level. If the operator of a vessel, port or marine facility believes there is cause to increase the entity's MARSEC level, Transport Canada Marine Security should then be contacted.

Authorized Screening of Cruise Ships: Section 263 is amended to clarify that authorized screening at cruise ship terminals is to be conducted in accordance with any applicable security measures issued under section 7 of the MTSA.

Restricted Areas: In addition to the changes to the restricted area provisions to specify certain restricted areas as restricted area two for which a security clearance are required for access, other changes to the restricted area provisions in Parts 2 and 3 of the Regulations have also been made. For example, paragraphs 240(2)(b) and 329(3)(c) are amended by adding the word "central" before the word "controls", since not all areas where there might be some localised control of security and surveillance equipment and lighting systems (such as light switches or camera monitors) are intended to be restricted areas.

Restricted Area Passes: Section 384 is amended to permit persons who do not work at a port or marine facility, but who require occasional access on a long-term basis to a restricted area, to obtain a restricted area pass.

Temporary Restricted Area Passes: Section 384 is also amended to permit marine facility operators and port administrations to issue temporary restricted area passes to persons who do not ordinarily work at the marine facility or port, but who require temporary access to a restricted area. There is an exception: temporary restricted area passes are not available to access restricted areas for which a security clearance is required for access.

The advantages of the status quo are that it would minimize operational impacts in ports and at marine facilities and it would imply no additional cost to Transport Canada or industry. The disadvantages are that it would not increase the security of Canada's marine transportation system in a manner consistent with the aviation transportation sector, as well as with Canada's largest trading partner, the United States, and other like-minded countries such as Australia. The United States are introducing a clearance program, known as the Transportation Worker Identification Credential (TWIC). For all these reasons, this option was rejected.

Option 2: Security Clearances for All Port and Marine Facility Workers Requiring Access to Restricted Areas

The advantages of this option are that it would meet the commitment and that it would be consistent with the security clearance at Canada's airports and with the security efforts of a number of Canada's main trading partners. In addition, it is anticipated that any security clearance program would increase public and industry confidence in the security of the marine transportation system. This is expected to generate long-term benefits for Canada's maritime trade.

National consultations and stakeholder input through the working groups has established that the main disadvantage of this option is that a broad program of security clearances would require more work due to the complexity of marine operations and the mobility of the workforce. It would require larger expenditures on new security personnel and changes in operations, rendering, for the time being, such a scheme slightly more expensive and not quite as efficient. Accordingly, this option was reserved for now but could be revisited in the future.

Option 3: Security Clearances for Port and Marine Facility Workers Requiring Access to Certain Restricted Areas or Having Designated Duties

The advantages of this option are that it also meets the Government of Canada's commitment that it would also be consistent with the security efforts of a number of Canada's main trading partners.

This approach is a risk-based approach, requiring security clearances for persons who are likely to be able to affect security of the marine transportation system as a consequence of their duties, responsibilities or functions, or areas they access, at those facilities determined to be most at risk. This minimizes regulatory burden and is consistent with the Government of Canada's Smart Regulations policy. It is also anticipated that the introduction of the MTSCP would increase public and industry confidence in the security of the marine transportation system.

The disadvantages of this option are that there will be some costs to, and impacts on, marine transportation workers and operations. As these impacts are not expected to be significant, and analysis has determined that the benefits of this option far outweigh the costs, this is the preferred option to be adopted.

With respect to reconsideration mechanisms, some stakeholders proposed that applicants who have a security clearance refused or cancelled be given the right to appeal to the TATC. As this is not possible under the MTSA at present, the Office of Reconsideration within Transport Canada has been developed as an alternative. This issue may be revisited at a later date.

With respect to the new Parts 6 and 7 of the Regulations, there are no viable alternatives. The MTSA requires the making of regulations to give effect to the AMPs scheme. Without the new amendments, Transport Canada would be limited in its enforcement program to prosecuting contraventions of the MTSA and Regulations in criminal court.

There are no viable alternatives regarding the miscellaneous amendments. The amendments are intended to ensure that the Regulations are internally more consistent and technically and linguistically correct in both official languages. In addition, these amendments address operational problems generated by the Regulations that came into force on July 1, 2004.

The benefits of the amendments are expected to be a reduction in the likelihood of security incidents at marine facilities and ports and in the consequences of such incidents, such as fatalities, injuries, and property damage, as well as disrupting and bringing into disrepute the marine transportation system.

Estimates were developed of current long run average annual losses to Canada associated with possible marine security incidents for which the risk would be reduced if the MTSCP were in place. The difference in the losses provides an estimate of the benefits of the amendments to the Regulations. The estimates of the consequences of the possible incidents do not include indirect and induced impacts or the impact of potential long-term trade restrictions.

The current long run average annual losses to Canada associated with marine security incidents are shown in the table below.

The costs of implementing MTSCP will be borne by both government and affected port administrations and marine facility operators.

The cost to government includes the cost to Transport Canada, CSIS and the RCMP of activities required to process requests for clearances, compliance and enforcement activities including inspections at the affected ports, the cost of Automated Fingerprint Identification System (AFIS) equipment to be used for transmission of the applicant's information to Transport Canada headquarters, staff training, regulatory development and inspection and compliance activities. No new funding is required, as resources for these estimated costs have already been allocated.

Industry costs would include time and material required to collect and forward the information necessary for Transport Canada to process applications for clearances, as well as the cost of controlling access to restricted areas requiring a security clearance. Industry costs were estimated by comparing the MTSCP with the clearance program currently in place at Canada's airports, assuming 10,000 clearance requests per year. Costs include time required to verify information submitted on security clearance applications, input information in the required format, collect fingerprints and photograph, send and receive information to/from Transport Canada, issue new identification cards showing that a security clearance has been granted, train and employ personnel on AFIS equipment, as well as the cost of additional space required. Costs associated with the requirements of the Regulations that came into force on July 1, 2004, are not included.

Estimated costs are shown below. Costs after year 4 are estimated at $3.9 million annually.

As shown in the table below, the benefits of the amendments significantly exceed the costs, even when the impact of port closures is excluded from the analysis:

Given that with the risk managed approach there will be significantly less than 10,000 clearances issued per year at the five key ports, it is expected that costs will not change appreciably with the expansion to other ports. The benefits of increasing security at the other eight ports in Phase 2 will be substantial but to provide additional conservatism to the cost-benefit analysis, we have decided to leave it unchanged.

The benefits of Part 6 of the Regulations relate to the benefits of enforcing regulatory requirements by administrative rather than judicial proceedings. If the Part 6 amendments to the Regulations were not made, all contraventions would have to be prosecuted through the criminal courts, often at considerable cost.

Individuals and companies against whom a monetary penalty is assessed would have the right to apply to the TATC. Tribunal members hearing cases under the MTSA will have expertise in marine matters, thus ensuring the full and proper consideration of all technical issues.

The benefits of Part 7 of the Regulations lie in the fact that there will be more procedures provided to ensure that notices are given and documents served under the MTSA and in so doing minimize the costs for administering the Regulations.

The amendments will not affect the costs that Transport Canada Marine Security will incur for monitoring compliance with the MTSA and Regulations. The costs to the Government of presenting cases before the TATC, however, will be lower than having the case heard by the criminal courts, since the TATC process is generally much quicker and less likely to involve Government legal counsel. Experience in other transport modes has shown that Transport Canada inspectors and program personnel, as opposed to legal counsel, can usually present cases heard by the TATC.

Other Government costs are those that will be incurred directly by the TATC. Tribunal costs per hearing currently average approximately $5,000, including the costs of renting hearing facilities, arranging for a court reporter, preparing the transcript of proceedings, paying the travel and per diem fees of the TATC members, and publishing the TATC decision in both official languages. These costs compare very favourably with the costs that would be incurred by the criminal courts to hear and decide a case.

Regarding costs incurred by members of the regulated marine community, only those individuals and companies against whom administrative enforcement action is taken will be affected. The individual or company may choose to admit the contravention and pay the monetary penalty assessed. Alternatively, they may choose to challenge the decision before the TATC. The costs to the individual or company related to the TATC review will not be more than the costs that would be incurred if the case were prosecuted by Transport Canada in criminal court and, in most cases, may be considerably less.

All monies paid by the regulated marine community as a result of the assessment of an AMP would be deposited into the Government's consolidated revenue fund. The monies would not be attributed back to Transport Canada Marine Security.

These amendments do not provide any specific benefits, other than those related to the internal consistency of the Regulations. There are no costs.

The amendments to the Regulations will not have significant environmental impacts, either positive or negative, requiring a detailed environmental assessment. Both Parts 5 and 6 will have indirect positive outcomes for the environment: Part 5 by improving maritime security and reducing the likelihood of terrorist acts with significant consequences for the environment, and Part 6 by virtue of introducing effective compliance and enforcement mechanisms that are anticipated to result in increased levels of regulatory compliance.

In accordance with the Privacy Impact Assessment Policy of the Treasury Board of Canada, a privacy impact assessment was conducted to identify the privacy and security related risks associated with the operation of the MTSCP and to find ways to eliminate those risks. More specifically, the privacy impact assessment is aimed at ensuring that privacy provisions are fully integrated into all operational aspects of the security clearance program, that the activities related to its administration and operation are conducted in compliance with the requirements of the Privacy Act and that Transport Canada can adequately answer questions from interested parties about the impact of the program on the privacy of the individuals whose personal information is collected for security clearance purposes. The Office of the Privacy Commissioner of Canada was kept informed during the privacy impact assessment process throughout the development of these amendments.

The review established that the program has been developed in compliance with the requirements of the Privacy Act and generally accepted privacy principles. All fields of personal information collected are required for the security clearance application process. Transport Canada also has a framework for the use and disclosure of personal information that is collected to ensure that it would only be used in accordance with the requirements of sections 7 and 8 of the Privacy Act.

The Parts 6 and 7 amendments and the miscellaneous amendments do not raise privacy issues.

The amendments to the Regulations are consistent with the principles of Smart Regulation in minimizing the regulatory burden on Canadians as much as possible while reducing the risk of threats to the marine transportation system. Part 5 uses a risk-based approach, requiring security clearances only for persons likely to be able to affect security of the marine transportation system in those facilities determined to be most at risk. Part 6 of the Regulations allows for assurances of compliance, AMPs and a process that ensures that enforcement is independent, fair, consistent and expeditious.

Consultations on this regulatory amendment package have been ongoing with stakeholders since January 2003. Originally included in the Regulations that came into force on July 1, 2004, these regulatory amendments were held in reserve to allow further consultation and policy development.

Following pre-publication of these amendments to the Marine Transportation Security Regulations (MTSRs) in the Canada Gazette, Part I, July 1, 2006, Transport Canada received seventeen written submissions from the following: six labour groups; five shipping organizations; three port authorities; and three marine industry groups. Overall, there is widespread support for the MTSCP, although some labour groups still question the rationale. Nevertheless, some questions were raised in the written submissions, so further clarification is provided on these issues and concerns.

Stakeholders recommended clarification that requirements for security clearances apply to those who access and/or control documentation, whether working on or off the facitility. While there was recognition of the rationale for this approach, concerns regarding implementation and manageability were identified. TC is confident that the clarified wording of the provision addresses the implementation concerns.

In a similar vein, several stakeholders recommended clarification that a security clearance be required for those who board a cruise ship interfacing with a restricted area two, including those who directly interface with such a vessel on the waterside, as for example, to provide bunkering and other services. This recommendation was accepted and wording clarified.

It was suggested by some labour groups to delay the publication of the Regulations until all pilot projects and the process mapping has been completed for both cruise ship and container terminals. These ongoing projects are intended to assist in developing guidelines to facilitate implementation. Since these will continue throughout the thirteen month implementation period of the amendments, and have no effect on the Regulations, a delay in publication is not warranted.

Some stakeholders were concerned about the lack of time for workers to obtain their security clearances prior to the regulations coming into force. The phased-in implementation approach of the Regulations addresses this issue. Phase 1 ports will need to comply with the Regulations by December 15, 2007, over a year away, and Phase 2 ports will be given an additional year (December 15, 2008). Therefore, ample time will be given for individuals to apply for their security clearances, including all full-time employees, occasional employees, and seasonal employees. TC will work closely with all parties to facilitate the enrolment process.

Labour also cited the technology problems that the United States is currently experiencing with the Transportation Worker Identification Credential (TWIC) program as a reason for delaying publication of the amendments, however TC is not proposing new technology for the port pass issuance or access control.

With respect to a reconsideration mechanism, it was requested that individuals who have a security clearance refused or cancelled be given the right to appeal to the TATC, or alternatively, to an organization or entity wholly independent from Transport Canada. In order for the TATC to perform the reconsideration function, amendments to several acts of Parliament would be required. This can be a lengthy process, and this option will be explored in the future. In any case, the TATC does not have the legislated authority to overturn a Minister's decision, nor to recommend that the Minister reconsider a decision. Likewise, any outside organization or agency also lacks the legislated authority to overturn a Minister's decision, or to recommend that the Minister reconsider a decision. However, the applicant still has the option of filing an appeal with the Federal Court.

In order to provide an expedited review of any negative decision, the Office of Reconsideration was developed. Transport Canada is currently establishing the OOR in Ottawa, and it will operate under the Assistant Deputy Minister of Corporate Services. It is, therefore, completely independent from the Safety and Security ADM, and the original decision-maker. The OOR will be administered by a Director who will hire, on a contractual basis, independent advisors to review the applications for reconsideration. When review of the application is complete, the OOR will make a recommendation to the Minister to either confirm or reconsider the original decision on the file. The Office of Reconsideration is a review process, not an appeal process.

Extensive information was requested on the Office of Reconsideration, the independent review mechanism to which individuals may apply for reconsideration within thirty days of having a security clearance refused or cancelled. Specifically, stakeholders questioned if the OOR will have a quasi-judicial process that includes hearings, appeals, stays, witnesses, affidavits, evidence, standards of proof, regional offices, etc. The OOR is intended to provide an expedited and inexpensive process. The timely nature of the process was a key consideration throughout the regulatory development.

Information requests on how to apply to the OOR: The OOR will soon have a website and an operational 1-800-number to provide complete information to the public. As well, the OOR will supply information pamphlets at the enrolment sites where they can be readily available to individuals when applying for a security clearance.

Stakeholders asked if security clearances in the air mode would be recognized in the marine mode. The MTSCP is an expansion of Transport Canada's existing Security Clearance Program, which has been in place at Canadian airports since 1985. There is only one Security Clearance Program; therefore, it will now serve two industries, the air industry and the marine industry. A security clearance issued to an individual under this program is equally valid in Canadian airports, marine ports and facilities; however, the individual still requires a port or airport pass specific to their place(s) of employment. For example, if an individual with a valid security clearance works at Pearson International Airport in Toronto, then moves to Vancouver and wishes to work at the Port of Vancouver, his security clearance is valid in Vancouver, and he will only need to apply for a port pass.

Some stakeholders questioned if the MTSCP would effectively address all possible security risks in the marine industry. The Security Clearance Program is a proven success in Canada's air industry, and by now extending it to the marine sector, Transport Canada takes an important step forward to further enhance security at Canadian ports. The MTSCP is one of many risk management strategies that the Government of Canada is using to address the modern threat environment, and to protect Canadians and Canadian industry.

Some stakeholders required clarification on the depth of personal information required by Transport Canada to perform background checks. Since the RCMP, CSIS, and CIC perform these background checks for Transport Canada, only the necessary personal information, as specified by these departments and agencies, is requested from the applicant for the purpose of performing these background checks.

There were questions about background checks and sharing of information with foreign governments or agencies. Subsection 506(5) states that information will not be shared with a foreign government without the written consent of the applicant. When an applicant has resided outside of Canada during the five-year period under review, there may be a requirement for Transport Canada to conduct verifications of the applicant's information from an authority in a state in which the person lived during the five-year period.

The Minister must have verifiable information in order to conduct appropriate background checks. In keeping with the spirit of the Privacy Act, Transport Canada will not exchange information with foreign governments without the written consent of the applicant.

Recognition of the (Free and Secure Trade) FAST and Transportation Worker Identification Credential (TWIC) Programs

Stakeholders asked if Canada would recognize the FAST and TWIC programs. Commercial truck drivers bearing a valid FAST card will be allowed to enter a restricted area two as long as they follow the procedures and requirements identified in the approved marine security facility plan. Since the TWIC program is currently under development, it is anticipated that discussions on possible reciprocity will take place in the future.

Stakeholders expressed concerns about Transport Canada requiring their original identification documents for the application process. All original identification will be verified and documented at the enrolment site at the time of application and returned to the applicant. Transport Canada will not retain the applicant's original identification documents.

Several stakeholders requested clarification on the roles and responsibilities of the port administrations and the marine facilities under the MTSCP. The roles and responsibilities are clearly defined in sections 501 and 502.

In response to stakeholder concerns, Fraser River and North Fraser have been included in Phase 1 implementation of the MTSCP. Also added to Phase 2 are Hamilton, Toronto and Windsor (based on further risk assessment).

Seafarer's Identification Document (SID) — Stakeholders raised the need for a nationally accepted identification document for seafarers or ships' pilots who must access many different marine facilities and ports. Under the MTSCP, a security clearance is valid across Canada, and since the security clearance will be an integral component of a SID, marine facilities, ports or the St. Lawrence Seaway Management Corporation could choose to amend their security plans to include the SID documents as part of their access control procedures.

Some stakeholders also requested that SID be mutually recognized in the United States and Canada to enable seafarers to get off the vessels in each other's marine facilities. Once the TWIC and SID are in place, it will allow Transport Canada to enter into discussions with the United States.

Some stakeholders were concerned about the AMPs penalties. AMPs is a graduated system whereby the penalty is matched to the severity of the offence.

In addition, other minor changes requested were made to the proposed Regulations.

The Transport Canada Marine Security enforcement approach is based on five governing principles: transparency, fairness, timeliness, consistency and confidentiality. The "fairness" principle refers to striking the right balance between voluntary compliance with the MTSA and Regulations, and the taking of harsher enforcement measures (either administrative or judicial) when circumstances warrant it.

An assurance of compliance is based on the agreement of the party who committed the contravention to comply with all legislative and regulatory requirements in the future. In other cases, contraventions of the law will be subject to either administrative enforcement action based on the nature of the contravention and the circumstances under which it was committed. The enforcement response by Transport Canada Marine Security will increase in severity in relation to the severity of the consequences of non-compliance, any recurrence of non-compliance, and will be based on a determination of what action is required to achieve both compliance and deterrence.

AMPs will be assessed when no assurance of compliance can be agreed on, generally, to deal with more serious violations or those with more serious or potentially serious consequences, and contraventions that are committed deliberately or on a repetitive basis.

To promote voluntary compliance, Transport Canada Marine Security conducts promotional, educational and awareness activities designed to ensure that the regulated community understands and is aware of its responsibilities under the Act and Regulations. Members of the marine community are expected to carry out these responsibilities, to identify any shortcomings and to institute corrective action on their own initiative.

In addition, marine 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 information on how best to respond to non-compliant behaviour.

Joanne St-Onge
Director
Marine Security Regulatory Affairs (ABMA)
Marine Security
Transport Canada
Place de Ville, Tower B, 14th Floor
112 Kent Street
Ottawa, Ontario
K1A 0N5
Telephone: (613) 949-0655