95-3428. Withholding of Vessel Clearances or Permits; Identification of Satisfactory Sureties in Lieu of Clearance or Permit Denial  

  • [Federal Register Volume 60, Number 28 (Friday, February 10, 1995)]
    [Proposed Rules]
    [Pages 7927-7928]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-3428]
    
    
    
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    DEPARTMENT OF TRANSPORTATION
    
    Coast Guard
    
    33 CFR Chapter I
    
    [CGD 94-100]
    
    
    Withholding of Vessel Clearances or Permits; Identification of 
    Satisfactory Sureties in Lieu of Clearance or Permit Denial
    
    AGENCY: Coast Guard, DOT.
    
    ACTION: Request for comments.
    
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    SUMMARY: The Coast Guard is authorized, under several statutes, to 
    request that the Customs Service refuse or revoke a vessel's clearance 
    if the vessel's owner or operator may be subject to a penalty for 
    violating the provisions of the authorizing statutes. These statutes 
    also provide that the vessel may be cleared upon the filing of a bond 
    or other surety satisfactory to the Coast Guard. However, because there 
    are currently no uniform standards governing the form and terms of an 
    acceptable surety, the policies applied have differed among the Coast 
    Guard districts. The Coast Guard is requesting comments on what 
    problems, if any, are created by these variations and what solutions, 
    if any, are desirable. The Coast Guard may initiate rulemaking based 
    upon the comments received.
    
    DATES: Comments must be received on or before April 11, 1995.
    
    ADDRESSES: Comments may be mailed to the Executive Secretary, Marine 
    Safety Council (G-LRA/3406) (CGD 94-100), [[Page 7928]] U.S. Coast 
    Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, 
    or may be delivered to room 3406 at the same address between 8 a.m. and 
    3 p.m., Monday through Friday, except Federal holidays. The telephone 
    number is (202) 267-1477. Comments will become part of this docket and 
    will be available for inspection or copying at room 3406, U.S. Coast 
    Guard Headquarters, between 8 a.m. and 3 p.m., Monday through Friday, 
    except Federal holidays.
    
    FOR FURTHER INFORMATION CONTACT:
    CDR David Dickman, Maritime and International Law Division (G-LMI), 
    (202) 267-0095.
    
    SUPPLEMENTARY INFORMATION: 
    
    Request for Comments
    
        The Coast Guard encourages interested persons to submit written 
    data, views, or arguments. Persons submitting comments should include 
    their names and addresses, identify this request (CFD 94-100), and give 
    the reason for each comment. Please submit two copies of all comments 
    and attachments in an unbound format, no larger than 8\1/2\ by 11 
    inches, suitable for copying and electronic filing. Persons wanting 
    acknowledgment of receipt of comments should enclose stamped, self-
    addressed postcards or envelopes.
    
    Discussion of Issues
    
        The following statutes authorize the Coast Guard to request that 
    the Customs Service refuse or revoke the clearance required by 46 App. 
    U.S.C. 91 of a vessel the owner or operator of which may be subject to 
    a civil penalty for violation of these statutes:
        (a) Federal Water Pollution Control Act (FWPCA) (33 U.S.C. 1321(b) 
    (12)).
        (b) Act to Prevent Pollution from Ships (APPS) (33 U.S.C. 1908(e)).
        (c) Ports and Waterways Safety Act (PWSA) (33 U.S.C. 1232(f).
        (d) Tank vessel operating or inspection requirements (46 U.S.C. 
    3718(e)).
        (e) Inland Navigation Rules (33 U.S.C. 2072(d)).
        In addition to the provisions that apply to potential liability for 
    civil penalties, the Coast Guard has authority to request that the 
    Customs Service withhold clearance to a vessel when the owner, 
    operator, or person in charge may be liable for criminal fines for 
    violations of APPS, which implements the provisions of MARPOL.
        Clearance from the Customs Service is required before a U.S. or 
    foreign flag vessel may proceed from a port or place in the United 
    States to a foreign port or place, to another port or place in the 
    United States, or to a hovering vessel outside the territorial sea or 
    to receive or deliver merchandise outside the territorial sea. 
    Clearance is not required for a U.S. vessel proceeding from a port or 
    place in the United States to another port or place in the United 
    States if the vessel does not have on board bonded merchandise or 
    foreign merchandise for which entry has not been made (46 App. U.S.C. 
    91(a)(2)).
        All of these statutes provide that the necessary clearance can be 
    granted upon the posting of a bond or other surety satisfactory to the 
    Coast Guard. Historically, the Coast Guard has accepted, as 
    satisfactory, surety bonds, letters of undertaking, and cash placed in 
    escrow in an amount equal to the maximum penalty or fine that could be 
    assessed if a violation of the statute is found. However, the form and 
    terms of the bonds and letters of undertaking have varied among Coast 
    Guard marine safety offices and districts. This has resulted 
    occasionally in some confusion among the marine industry, shipping 
    agents, Protection and Indemnity clubs, and other entities that 
    normally post the required sureties.
        Based on these problems, the Coast Guard seeks comments, 
    particularly on the following issues:
        (a) Is it desirable to provide for nationwide uniformity in the 
    format and content of bonds or other forms of surety accepted by the 
    Coast Guard?
        (b) Is there a need for regulations on this subject and, if so, 
    what should be covered? If regulations are not needed, what alternative 
    methods might be employed to remove the confusion noted above?
        (c) What procedures should be incorporated in regulations or other 
    methods for providing bonds or other forms of surety?
        (d) What types of bonds or other forms of surety should be accepted 
    and why?
        (e) Should the Coast Guard develop standard forms for the sureties 
    to be accepted or should only the basic necessary terms be identified, 
    as in the regulations for Customs bonds under 19 CFR part 113?
        (f) Should an option be provided to allow consideration to be 
    given, on an ad hoc basis, to satisfactory sureties on terms not 
    specified in the regulations? Alternatively, should the specified 
    sureties or terms be exclusive?
        (g) Should a letter of undertaking, as issued traditionally by P&I 
    Clubs, continue to be accepted as a form of surety? If so, is the form 
    used in general admiralty practice sufficient or are additional terms 
    necessary to protect the interests of the government and vessel owners 
    or operators? If letters of undertaking are acceptable, which 
    individuals or entities should be liable in the event of a default in 
    payment of the assessed penalty or fine?
        (h) Are different terms required for acceptable forms of surety 
    depending upon whether or not the statute establishes ``in rem'' 
    liability of the vessel for civil penalties?
        (i) If the owner or operator of the vessel may be subject to a 
    criminal fine, would a letter of undertaking be an appropriate form of 
    surety in light of the fact that, in general admiralty practice, 
    letters of undertaking are used solely for civil liability purposes?
        (j) If a letter of undertaking or other surety is determined by the 
    Coast Guard to be acceptable for the purposes described, should the 
    Coast Guard provide a list of acceptable corporate providers, similar 
    to the listing for surety bonds published by the Department of the 
    Treasury in Treasury Department Circular 570? Alternatively, should 
    minimal qualifications for corporate providers of letters of 
    undertaking or other satisfactory sureties be published without 
    specifically listing acceptable providers?
        (k) Should individuals or partnerships be authorized to provide 
    bonds or other forms of surety? If so, what minimum qualifications 
    should these providers be required to meet?
        The Coast Guard may initiate rulemaking based upon the comments 
    received.
    
        Dated: February 3, 1995.
    J.E. Shkor,
    Chief Counsel.
    [FR Doc. 95-3428 Filed 2-9-95; 8:45 am]
    BILLING CODE 4910-14-M
    
    

Document Information

Published:
02/10/1995
Department:
Coast Guard
Entry Type:
Proposed Rule
Action:
Request for comments.
Document Number:
95-3428
Dates:
Comments must be received on or before April 11, 1995.
Pages:
7927-7928 (2 pages)
Docket Numbers:
CGD 94-100
PDF File:
95-3428.pdf
CFR: (1)
33 CFR None