[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]
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