New Development
On November 2, 2010, the U.S. Coast Guard published a Notice of Policy announcing the release of CG-543 Policy Letter 10-03, effective September 1, 2010, which outlines the procedures for denying entry to U.S. ports of non-compliant foreign-flag vessels due to a vessel's history of operating in U.S. waters in a substandard condition. The Policy Letter and Federal Register Notice can be accessed atwww.regulations.gov, keyword: USCG-2010-0947.
Background
The U.S. Coast Guard has broad authority to enforce applicable U.S. federal laws against foreign-flag vessels on waters subject to U.S. jurisdiction. In order to enforce U.S. laws, the Coast Guard is authorized to conduct port-state control inspections of foreign-flag vessels when those vessels are in U.S. waters and take "control" actions against vessels not in compliance with domestic and international standards including the International Safety Management (ISM) Code. In particular, the International Convention for the Safety of Life at Sea (SOLAS) grants a port state the authority to inspect vessels prior to entering ports and to outright deny entry to vessels that are not in compliance. See SOLAS, Chapter XI-2, Regulation 9. Prior to the issuance of this policy, the Coast Guard had no formal mechanism for banning non-compliant vessels from U.S. waters in an effective and consistent manner.
Vessel Banning Procedures
Under the new policy, when a vessel has been detained three times within a period of 12 months and it is determined that a contributing factor of the detentions is the failure to implement the Safety Management System (SMS) required by the ISM Code, the Coast Guard will conduct an ISM expanded exam following its port state control guidelines. Specifically, the Coast Guard will scrutinize its Marine Information for Safety and Law Enforcement (MISLE) database for deficiencies, detentions, marine casualties, pollution incidents and marine violations associated with the vessel prior to conducting a port state control examination. This review is not limited to Coast Guard inspections, but may also include a review of other countries' port-state control examinations and detention history elsewhere. During this review, the port-state control officer will determine whether the substandard condition is a result of a poorly implemented SMS. If the vessel is noncompliant or deficiencies are identified, the vessel may be detained.
If the vessel is detained, the Coast Guard will review the reasons underlying the recent detention and determine if it indicates a failure of the company, the senior crew or the flag administration to correct substandard conditions and implement an effective SMS. If a determination is made that adequate measures have not been taken to implement an effective SMS, then a Letter of Denial will be issued and the vessel will be prohibited from entering a U.S. port until the ban is removed by the Commandant of the Coast Guard. The denial is associated with the vessel's IMO number and will follow the vessel even if there is a change of ownership or the vessel is re-flagged or renamed.
Lifting the Ban
If all of the requirements listed in the Letter of Denial are satisfied, the Coast Guard will issue a Letter of Acceptance allowing the vessel to enter U.S. waters once again. After the Letter of Acceptance is issued, the vessel must undergo a Priority I port-state control exam prior to entering a U.S. port. Should the vessel still have deficiencies or major non-conformities, the vessel will again be detained. If the vessel passes the port-state control inspection, it may proceed to the U.S. port as scheduled. The Coast Guard will monitor the vessel and review any detentions or deficiencies occurring within 12 months of the issuance of the Letter of Acceptance.
Recommendations and Conclusions
Owners and operators should review this new policy, and their SMS to ensure it is being effectively implemented, and take appropriate actions to ensure compliance with applicable domestic and international requirements. This will help to avoid detentions and the potential of Coast Guard action to ban one of its vessels from operating in U.S. waters, particularly if any of its vessels have a recent history of deficiencies identified by the Coast Guard during port state control inspections.
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