Port State Control - US Banning Policy
The United States Coast Guard (USCG) has recently issued a Policy Letter regarding the banning of foreign flagged vessels which have been detained repeatedly in US ports.
Over the past few years a number of foreign flagged vessels have been detained by the USCG several times following Port State Control (PSC) inspections in the USA. Although the deficiencies were subsequently rectified, the USCG considers that successive detentions due to substandard conditions are indicative of an unsatisfactory Safety Management System (SMS).
The USCG has therefore introduced a policy to penalise foreign flagged vessels that have been detained repeatedly, are found to be operating without an effectively implemented SMS or if measures are not taken to improve the SMS following the identification of substandard conditions.
Prior to conducting a PSC inspection of a vessel that has been detained previously in the USA, the USCG will research the vessel’s history including deficiencies, detentions, bans, casualties and pollution incidents. They will also review information made available by other PSC MOUs to help them determine the effectiveness of the SMS. If a vessel is detained for a third time in twelve months, the PSC Officer will assess whether the deficiencies are symptomatic of a poorly implemented SMS. If there are clear grounds to show that this may be the case, the PSC Officer will conduct an expanded inspection of the vessel’s SMS using Navigation and Vessel Inspection Circular (NVIC) 04-05 Port State Control Guidelines for the Enforcement of Management for the Safe Operation of Ships (ISM Code) for guidance. If, following the expanded inspection, the PSC Officer determines that the detainable deficiencies were the product of an improperly implemented SMS or that the measures to prevent future non-conformities are insufficient, the vessel may be denied entry to any port or place in the USA until remedial action has been taken to the USCG’s satisfaction.
A ban will remain in place until revoked by the USCG regardless of whether the vessel is renamed, re-flagged or sold.
A vessel which has had a banning order revoked will be subject to a Priority 1 PSC examination prior to entry on returning to the USA. If a previously banned vessel is permitted to return to the USA and is detained again, further indications of substandard conditions or an unsatisfactory SMS will result in another denial of entry for a minimum of twelve months until the USCG is satisfied that SMS has been implemented effectively.
A detained vessel which fails to comply with the conditions specified on the PSC Report of Inspection/Report of Deficiencies Form prior to departure or which does not proceed to an agreed shipyard for repairs will also be banned. Before being allowed to return to the USA such vessels will be required to submit satisfactory evidence to the USCG confirming that the ship complies with all relevant statutory regulations.
It should also be noted that vessels with less than three detentions in the preceding twelve months may also be barred from entering the USA if “in the opinion of the US Coast Guard the condition of such vessel may pose a significant risk to the safety of the vessel, crew or the marine environment.” Also a vessel that is subject to the provisions of Chapter 37 of Title 46 U.S.C. (i.e. a tank vessel engaged in the carriage of bulk liquid dangerous cargoes) may be denied entry if it “has a history of accidents, pollution incidents, or serious repair problems which creates reason to believe that such a vessel may be unsafe or create a threat to the marine environment, or has discharged oil or hazardous material in violation of any law of the United States or in a manner or quantities inconsistent with the provisions of any treaty to which the United States is a party”.
Breaches of a banning order may result in a civil penalty of $32,500 per day for the duration of the violation, and/or a criminal penalty of up to $50,000 or up to five years imprisonment or both.
Members affected by a detention or banning order have the right to request reconsideration in accordance with USCG regulations set forth at 33 C.F.R. § 160.7 (Appeals). In certain circumstances, Members may wish to consider a request to stay the effect of a prior detention while a ruling is being appealed. While the banning order arises under the authority of the local Captain of the Port, the policy directs owners to submit all correspondence to the USCGs Foreign & Offshore Vessel Compliance Division in Washington, D.C., which would include appeals.
Members are reminded that in the event of a vessel being banned; cover for the legal and related costs of filing an appeal against a banning order is discretionary. In the event of a vessel breaching a banning order; the payment of any fines imposed would likewise only be covered at the Club’s discretion.
The foregoing is a brief overview of the new requirements. Members are advised to review the USCG’s policy letter in full for detailed information regarding the new regulations.