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[Federal Register: August 21, 2000 (Volume 65, Number 162)]
[Notices]
[Page 50732-50740]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21au00-125]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
[Docket No. MARAD-2000-7798]
Criteria for Granting Waivers of Requirement for Exclusive U.S.-Flag Vessel
Carriage of Certain Export Cargoes
AGENCY: Maritime Administration, Transportation.
ACTION: Notice of proposed policy revision.
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SUMMARY: The Maritime Administration (MARAD, we, us, our) is soliciting public
comment on whether and/or how MARAD should amend its existing criteria for
granting waivers of the requirement that cargo covered by Public Resolution 17
(PR-17) 73rd Congress, be carried on U.S.-flag vessels. Our goals for any policy
amendments are: (1) the preservation of a cargo base financed by PR-17 for
carriage on U.S.-flag vessels; (2) maximum export of U.S. manufactured goods;
and (3) maintenance of a viable U.S.-flag merchant fleet for economic growth and
national security. The intended effect is to set forth standard procedures for
shippers and carriers to follow regarding PR-17 cargo in order to help support
the U.S.-flag merchant fleet.
DATES: You should submit your comments early enough to ensure that Docket
Management receives them not later than October 20, 2000.
ADDRESSES: Your comments should refer to docket number [MARAD-2000-7798]. You
may submit your comments in writing to: Docket Clerk, U.S. DOT Dockets, Room
PL-401, 400 7th St., SW., Washington, DC 20590. You may also submit them
electronically via the internet at http://dmses.dot.gov/submit/.
You may call Docket Management at (202) 366-9324 and visit the docket Room from
10 a.m. to 5 p.m., EST., Monday through Friday, except Federal Holidays. An
electronic version of this document is available on the World Wide Web at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: For non-legal issues you may call Thomas W.
Harrelson, Director, Office of Cargo Preference at (202) 366-5515. For legal
issues you may call Murray Bloom, Chief, Division of Maritime Assistance
Programs of the Office of the Chief Counsel at (202) 366-5320. You may send mail
to both of these officials at Maritime Administration, 400 Seventh St., SW.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Comments
How Do I Prepare and Submit Comments?
Your comments must be written and in English. To ensure that
your comments are correctly filed in the docket, please include the docket
number of this document in your comments.
We encourage you to write your primary comments in a concise
fashion. However, you may attach necessary additional documents to your
comments. There is no limit on the length of the attachments. Please submit two
copies of your comments, including the attachments, to Docket Management at the
address given above under ADDRESSES.
Please address whether the information collection in this
proposal is necessary for proper performance of the function of the agency and
will have practical utility, accuracy of the burden estimates, ways to minimize
this burden and ways to enhance quality, utility, and clarity of the information
to be collected.
How Can I Be Sure That My Comments Were Received?
If you wish Docket Management to notify you upon its receipt
of your comments, enclose a self-addressed, stamped postcard in the envelope
containing your comments. Docket Management will return the postcard by mail.
How Do I Submit Confidential Business Information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete submission,
including the information you claim to be confidential business information, to
the Chief Counsel, Maritime Administration, at the address given above under FOR
FURTHER INFORMATION CONTACT. You should mark ``CONFIDENTIAL'' on each page of
the original document that you would like to keep confidential. In addition, you
should submit two copies, from which you have deleted the claimed confidential
business information, to Docket Management at the address given above under
ADDRESSES. When you send comments containing information claimed to be
confidential business information, you should include a cover letter setting
forth with specificity the basis for any such claim.
Will the Agency Consider Late Comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated above under
DATES. To the extent possible, we will also consider comments that Docket
Management receives after that date. If Docket Management receives a comment too
late for us to consider in developing a final policy (assuming that one is
issued), we will consider that comment as an informal suggestion for future
policy revisions.
How Can I Read the Comments Submitted By Other People?
You may read the comments received by Docket Management at
the address given above under ADDRESSES. The hours of the Docket Room are
indicated above in the same location.
You may also see the comments on the Internet. To read the
comments on the Internet, take the following steps: Go to the Docket Management
System (DMS) Web page of the Department of transportation (http://dms.dot.gov/).
On that page, click on ``search.'' On the next page (http://dms.dot.gov/search/),
type in the four-digit docket number shown at the beginning of this document.
The docket number for this document is [7798]. After typing the docket number,
click on ``search.'' On the next page, which contains docket summary information
for the docket you selected, click on the desired comments. You may download the
comments.
Please note that even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes available.
Further, some people may submit late comments. Accordingly, we recommend that
you periodically check the Docket for new material.
Background
PR-17 reads:
Resolved by the Senate and the House of Representatives of
the United States of America in Congress assembled, That it is the sense of
Congress that in any loans made by an instrumentality of the Government to
foster the exporting of agricultural or other products, provision shall be made
that such products shall be carried exclusively in vessels of the United States,
unless, as to any or all of such products, the Secretary of Transportation,
after investigation, shall certify to the instrumentality of the Government,
that vessels of the United States are not available in sufficient numbers, or in
sufficient tonnage capacity, or on necessary sailing schedules or at reasonable
rates. 46 App. U.S.C. 1241-1.
The reservation of PR-17 cargoes on U.S.-flag vessels helps
support the U.S.-flag merchant marine, which is a vital national asset and is
necessary in times of war or national emergency. In peacetime, the U.S.-flag
merchant marine provides essential service to ensure the continued flow of
foreign water-borne commerce. The Export-Import Bank of the United States (Eximbank)
is the principal agency generating export cargo subject to PR-17.
In 1934 and 1965, the Attorney General concluded that
granting waivers does not violate PR-17. (see 37 Op. A.G. 546 (1934) and 42 Op.
A.G. 301 (1965)) MARAD's current policy on granting waivers was first published
in Pike & Fischer's Shipping Regulation Report (at para. 501) in 1959).
On June 30, 1997, we published an amendment to our long
established policy. The amendment essentially incorporated the compensatory
waiver and a six-month long extended waiver into the policy. It also set forth
standard procedures and processes for both shippers and carriers to follow. At
that time, we advised that we would review the amended policy after two years to
determine if it needed any additional changes.
Thus, under our existing policy, we grant four types of
waivers: a general waiver, statutory or non-availability waiver, extended
waiver, and compensatory waiver. First, a ``general waiver'' allows the national
flag vessels of the recipient country to carry up to fifty percent (50%) of the
cargo. Our primary conditions for granting a general waiver is that the
recipient country not maintain any discriminatory policies detrimental to
U.S.-flag vessels.
The second waiver is a ``statutory'' or
``non-availability''
waiver. MARAD's policy provides that Eximbank, or other government
instrumentalities, loan or credit guaranty recipients may apply for a
non-availability waiver when it appears that U.S. vessels will not be available
within a reasonable time or at reasonable rates. Although U.S.-flag vessels are
usually available to carry containerized cargo to most destinations, oversized
pieces of equipment require breakbulk vessels. A limited number of U.S.-flag
breakbulk vessels serve regular routes. Much of the Eximbank financed cargo is
project cargo, comprising oversized pieces of equipment requiring breakbulk
vessels. In the past, MARAD has granted non-availability waivers sparingly and
only for specific voyages and specific cargoes.
The third type of waiver is called an ``extended'' waiver. If
a shipper determines there is no projected U.S.-flag service to the cargo's
destination after meetings with the U.S.-flag carriers and us, the shipper can
apply for a waiver which is good for up to six months and which covers multiple
shipments involving specifically identified pieces of cargo.
The fourth type of waiver is called a ``compensatory''waiver.
When a shipper, in honest error or under what we determine to be extenuating
circumstances, moves preference cargo on a foreign-flag vessel, he may apply to
MARAD for a compensatory waiver. After investigation, MARAD may issue such a
compensatory wavier whereby the shipper contracts with MARAD to move an
equivalent amount of non-government impelled cargo, i.e. commercial cargo, on
U.S.-flag vessels within a specified time period. We have
reviewed the results of the 1997 policy changes. Overall, the results have been
very positive. The number of waiver requests has decreased and dialogue between
individual shippers and carriers has increased. More cargoes are being booked
directly with the U.S.-flag carriers without any waiver requests. The policy
amendments have not increased the number of waiver requests that we have denied.
On the contrary, the number of waiver denials has remained constant for pre and
post policy amendments. We have received only three requests for the six-month
extended waiver, all covering small amounts of short interval cargoes, and we
granted all three.
During the past two years, we have held extensive discussions
with shippers and carriers. The shippers are particularly concerned that when
they bid a project, a reasonable projection of transportation availability and
costs is required. Project cargoes typically consist of shipments over an
extended prior of time. Frequently, the shipments must be planned so the
delivery is made in proper sequence and in critical time frames consistent with
the construction schedule. Some cargoes require a long lead time to manufacture
and if damaged during shipment there would be serious adverse effects on the
project.
The shippers have requested that MARAD consider making
changes in the following four areas of our policy:
First, the shippers request that MARAD formalize its current
practice of not requiring transshipment for breakbulk cargoes that are either
long lead time procurement or are critical items (LLIT&C). For the purposes
of the proposed policy change, transshipment is defined as the off-loading of
breakbulk cargo (cargo that is loose or non-containerized) from one vessel at an
intermediate port and reloading the breakbulk cargo on a different vessel for
delivery to final destination. It does not include cargo in containers,
trailers, or barges where the entire conveyance is transferred from one vessel
to another vessel. The shipper must provide us with sufficient acceptable
documentation for us to make a determination that an item is long lead time
procurement or critical items. Incorporating this practice into the formal
policy will provide both shippers and carriers with clear guidance on the
requirements.
Second, the shippers expressed a desire for a clear and
predictable definition of ``reasonable rates'', as stated in PR-17, that will
allow them to make a more accurate bid on their projects. Shippers state that
PR-17 Guideline Rates should only apply to trade lanes where U.S.-flag liner
breakbulk service is not available. Shippers requested that we establish a
system for calculating guideline rates subject to PR-17 in much the same fashion
as we provide for agricultural cargoes under the Cargo Preference Act of 1954,
although the guideline rate would be expressed in dollars per revenue ton of
cargo. MARAD has analyzed
twenty actual voyages and several potential rate models. We believe a workable
guideline rate system for PR-17 cargoes can be constructed within the basic
framework of our current guideline rate regulations (46 CFR part 382). The
modifications would tailor rates to more closely reflect the timing of the
request, the requirements of the cargo, and vessels in, or potentially in, the
trade.
Third, the shippers requested that we change the ``extend
waiver to become a ``condition wavier. This waiver would only apply to
specifically identified breakbulk over-dimensional (oversize and/or heavylift)
cargoes and integral components that could not be handled by the existing
U.S.-flag liner services and which are part of multiple shipments to the same
project. We would consider granting such waivers only in those trade lanes in
which U.S.-flag breakbulk service was not available on a liner basis. We would
grant the proposed conditional waiver in advance for a period of up to two year
unless a U.S.-flag breakbulk carrier subsequently offers service at or below the
guideline rates that we establish. If a U.S.-flag vessel offers service at or
below the guideline rates during the period of the conditional waiver, the
U.S.-flag vessel would get the cargo if the carrier meets our conditions of
carriage.
Fourth, the shippers recommend that any shipper wishing to
obtain a waiver must provide us with all available cargo details including cargo
value and rates, projected shipping time frame, and service requirements. Of
this information, only essential cargo information will be posted on our web
page. Carriers could then evaluate (1) The potential for combining various
shippers' cargoes and (2) the economic feasibility of new U.S.-flag tonnage in
that trade lane.
MARAD is seeking comments on whether we should incorporate
these suggestions into our existing PR-17 waiver policy. Our goals for any new
proposals are (1) The preservation of a cargo base financed by PR-17 for
U.S.-flag vessels; (2) maximum export of U.S. manufactured goods; and (3)
maintenance of a viable U.S.-flag merchant fleet for economic growth and
national security.
We ask the public to comment on the above proposed shipper
suggestions and the below proposed language which would incorporate the above
shipper suggestions. This proposed revision to the policy language would not be
expected to significantly change the current requirement for the collection of
information approved under OMB Numbers 2133-0013 or 2133-0514.
Proposed Revised Policy Language
The Maritime Administration proposes to amend our policy
governing the Criteria for Granting Waivers of the Requirement for Exclusive
U.S.-flag Vessel Carriage of Certain Cargo Covered by Public Resolution 17
(PR-17), 73rd Congress, to read as follows:
1. Scope of Applicability
Public Resolution No. 17 provides that where an
instrumentality of the Government makes loans or credit guarantees to foster the
export of agricultural or other products, such products must be carried
exclusively in vessels of the United States unless the Maritime Administration
(we, us, or our) certifies to the lending agency that such vessels are not
available as to numbers, tonnage capacity, sailing schedule or at reasonable
rates. The Resolution is applicable to credits of the Export-Import Bank (Eximbank)
or other Government instrumentalities for the purpose of financing the
acquisition and shipment of United States products or services. The Eximbank
must include in such credit agreement a requirement that shipments be made in
United States flag vessels, except to the extent that we grant a waiver of the
requirement as outlined in this policy statement. If the Eximbank receives a
request for a waiver, it will refer the request to us.
2. Types of Waivers
The general process for all waiver requests is set forth in
Appendix A. Guidelines for the information to be included in the waiver request
are set forth in Appendix B. We will post the essential terms of applications
for, and status of, all waiver requests and waivers on our web site. Security
access to waiver information will be limited to bonafide U.S.-flag carriers.
(A) Statutory (Non-Availability) Waiver
When it appears that U.S. vessels will not be available
within a reasonable time or at reasonable rates, public or private foreign
borrowers, or their representatives or their shippers in the United States may
apply directly to our Office of Cargo Preference, for waiver of the U.S.-flag
requirement. Requests for waivers must follow the format in Appendix B and must
have a legal signature. We will make any necessary investigation to determine
whether U.S.-flag vessels are available and will approve or deny the waiver
request in writing. We may request additional information. Copies of approved
waivers or denials will be
sent to the Eximbank.
Such waivers will apply to the specifically approved cargo
movements. Within thirty (30) calendar days of vessel loading, applicants or
their designated representatives in the United States must report the name of
the vessel, registry, date of sailing, load and discharge ports, ocean freight
amount, value of cargo, gross weight of cargo in kilos, gross volume of cargo in
cubic meters, and total revenue tons, in the general form of Appendix F. A copy
of the rated bills-of-lading must be attached to the report. The Eximbank Credit
Number must be provided to the ocean carrier and must be shown clearly on the
rated bill of lading issued by the ocean carrier. The Maritime Administration
and the Eximbank will accept only the ocean bill of lading issued by the carrier
operating the vessel as proof of export. An NVOCC bill of lading must be
accompanied by a rated ocean bill of lading.
We strongly encourage those public or private foreign
borrowers, and/or their United States representatives or their shippers to meet
with U.S. flag carriers and then to meet separately with our Office of Cargo
Preference staff. During the meeting, we must receive full and complete
information regarding the project, specifically identifying those cargoes for
which a waiver might be sought. Appendix C lists the information that must be
presented to us and the carriers. Waiver information will be posted on our web
site for use by bonafide U.S.-flag carriers.
(B) General Waivers
In certain circumstances, although U.S.-flag vessels may be
available, recipient nation vessels may be authorized to share in the ocean
carriage of Eximbank financed movements, but not in excess of fifty percent
(50%) of the total movement under the credit. Although allowing a recipient
nation to share in this type of ocean carriage may reduce the U.S.-flag share,
we may allow such participation if the recipient nation gives similar treatment
to U.S. vessels in the trade of its foreign nation. When public or private
foreign borrowers, or their U.S. representatives, or the primary U.S. shipper
acting on behalf of the borrower desire a general waiver for partial use of the
national flag vessels of the recipient nation, they must apply to our Office of
Cargo Preference, for a General Waiver for the particular credit. When private
interests apply, we may request sponsorship by a foreign government official of
the recipient nation, to assure the recipient nation's responsibility to
maintain fair and equitable treatment for U.S.-flag shipping.
(1) If we grant such waivers, they will apply only to vessels
of recipient nation registry to the extent of their capacity to carry the cargo,
based on normal flow of the traffic from interior through ports of shipment, but
not in excess of fifty percent of the total movement under the credit. The
U.S.-flag portion should be awarded first to ensure the minimum fifty percent
(50%) requirement.
(2) General Waivers will normally apply throughout the life
of the credit, but we or the Eximbank may reconsider the duration of the general
waiver at any time in light of altered circumstances.
(3) The record of cargo distribution between U.S. and
recipient national flag vessels will be based on (a) revenue tons and ocean
freight revenue; and/or (b) such other units as appropriate.
(4) Applicants or their representatives in the United States
must provide reports of movements to our Office of Cargo Preference, monthly.
The reports must include the name of the vessel, registry, date of sailing, load
and discharge ports, ocean freight, value of cargo, gross weight of cargo in
kilos, gross volume of cargo in cubic meters, and total revenue tons in the
general form of Appendix F. From time to time, we may change the data to be
included on these reports to meet specific circumstances of the movements.
Copies of the rated ocean bills-of-ladings must be attached. The Eximbank Credit
Number must be provided to the underlying ocean carrier and must be shown
clearly on the rated bill of lading issued by the ocean carrier. The Maritime
Administration and the Eximbank will accept only the ocean bill of lading issued
by the carrier operating the vessel as proof of export.
An NVOCC bill of lading must be accompanied by a rated copy of the underlying
ocean bill of lading.
(5) We will not grant a General Waiver until our Office of
Cargo Preference has received written confirmation of the applicant's agreement
to the foregoing terms and conditions and has been advised of the name and
address of the designee located in the United States who will be responsible for
controlling the routing of the cargo and for providing the required monthly
reports.
(6) General Waiver information will be posted on our web site
for use by bonafide U.S.-flag carriers.
(C) Compensatory Waivers
When public or private foreign borrowers, or their U.S.
representatives, or their shippers in the U.S., prior to a decision to seek an
Eximbank credit agreement, in honest error or through extenuating circumstances
as approved by us, move cargo for which a waiver is necessary to meet Eximbank
financing requirements, the exporter may apply to our Office of Cargo Preference
for a Compensatory Waiver. After investigation, we may grant a Compensatory
Waiver whereby the exporter contracts in writing with us to move an equivalent
or greater amount of revenue tons and ocean freight revenue of non-government
impelled cargo on U.S.-flag vessels within a specified time period. If our
Office of Cargo Preference determines that a U.S.-flag ocean carrier made the
error, we may issue a retroactive Statutory Waiver.
Waiver recipients or their representatives in the United
States must provide reports of movements to our Office of Cargo Preference,
monthly. The reports must include the name of the vessel, registry, date of
sailing, load and discharge ports, ocean freight, value of cargo, gross weight
of cargo in kilos, gross volume of cargo in cubic meters, total revenue tons,in
the general form of Appendix F. From time to time, we may change the data to be
included on these reports to meet specific circumstances of the movements.
Copies of the rated ocean bills-of-ladings must be attached. The Eximbank Credit
Number must be provided to the ocean carrier and must be shown clearly on the
rated bill of lading issued by the ocean carrier. The Maritime Administration
and the Eximbank will accept only the ocean bill of lading issued by the carrier
operating the vessel as proof of export. An NVOCC bill of
lading must be accompanied by a rated ocean bill of lading. All outstanding
compensatory waiver amounts and shipper contact information will be published on
our web site for use by bonafide U.S.-flag carriers.
(D) Conditional Waivers
Public or private foreign borrowers or their U.S.
representatives or their shippers in the U.S. may apply to our Office of Cargo
Preference for a Conditional Waiver of the U.S.-flag requirement if they find
that no U.S.-flag breakbulk vessel service will be available during their
proposed
project to carry multiple shipments of overdimensional cargoes. Such Conditional
Waiver may be for the length of the project but not greater than two years from
the date of any such waiver approval. Also, if during the course of executing
the project, U.S.-flag breakbulk liner vessel service becomes unavailable to
carry the multiple shipments of their overdimensional cargoes, the borrower or
their shippers also may apply for such a Conditional Waiver.
Before we will grant a Conditional Waiver, the exporter must
meet with the U.S.-flag carriers and then must meet separately with our Office
of Cargo Preference staff, to provide full and complete information regarding
the project, specifically identifying those cargoes on which the waiver is
sought. Appendix C lists the information that must be presented to us and the
carriers.
We will grant a Conditional Waiver only for those trade lanes
in hich no U.S.-flag breakbulk liner service is currently available. A
Conditional Waiver will only cover specifically identified and approved
overdimensional cargoes and integral components. If a U.S.-flag carrier that is
willing to provide the shipper at least thirty (30) days notice and is willing
to carry the cargo at a guideline rate that we calculate (see Appendix D),
becomes available later, then that U.S.-flag carrier will be entitled to carry
the cargo, provided the carrier meets our conditions of carriage.
Once we grant a Conditional Waiver, in order to meet the
needs of the Eximbank, the shipper must provide us with the Export-Import Bank
Credit Number and country, vessel name, registry, sailing date, load port,
discharge port, cargo weight in kilos, cargo volume in cubic meters, revenue
tons, FAS value of cargo, ocean freight, list of cargoes
shipped, and a freighted copy of the ocean carrier's bills of lading for each
voyage made under the terms of the Conditional Waiver. This information must be
provided within fifteen (15) days of the date of loading. We will then issue a
standard non-availability waiver letter, for presentation to the Eximbank, for
each voyage. This standard non-availability waiver letter will cover only those
cargoes
specifically identified with projected shipping dates previously agreed to under
the Conditional Waiver. A shipper wishing to place any additional cargoes on the
same voyage must use the standard non-availability waiver procedure, detailed in
Appendix A, paragraph A, with appropriate notice to the U.S. carriers. We will
post waiver information on our web site for use by bonafide U.S.-flag carriers.
3. Considerations Influencing Approval of Applications for Waivers
(A) In evaluating applications for non-availability waivers
under Paragraph 2(A) or conditional waivers under paragraph 2(D) we will
consider:
(1) Whether the applicant followed the process set forth in
Appendix A and provided the waiver information in Appendix B and met with the
U.S.-flag carriers and with us at the beginning of the project to provide the
information listed in Appendix C;
(2) Whether a carrier's proposed transshipment of Long Lead
time or Critical Item cargoes constitute non-availability. However, the shipper
must provide sufficient documentation acceptable to us to prove the cargoes meet
the definition of Long Lead Time or Critical Items (Appendix E).
(3) Whether a non-liner breakbulk carrier's refusal to offer
service at or below a guidelines rate may constitute non-availability.
Upon application by the shipper, we will calculate a guideline rate for
non-liner breakbulk service. The rate will be expressed as rate per revenue ton
of cargo, as set forth in Appendix D. If a non-liner breakbulk carrier does not
agree to carry the cargo at or below the
guideline rate, we may deem the carrier not available for that specific cargo
movement.
(4) The national policy of the United States, including the
Merchant Marine Act, of 1936, as amended, as well as the purpose of the Eximbank
in authorizing the credit.
(B) In evaluating applications for General Waivers under
Paragraph 2(B), we will consider:
(1) The treatment given U.S.-flag vessels in the trade with
the recipient nation, particularly whether U.S.-flag vessels have equal
opportunity compared to national flag or other foreign flag vessels to solicit
and participate in movements controlled in the foreign nation; parity in the
application of consular invoice fees, port charges and facilities; also parity
of exchange treatment including the privilege of converting freight collections
to dollars as needed. We will seek information from U.S. ship owners and other
sources as to their experiences in the particular trade.
(2) The national policy of the United States, including the
Merchant Marine Act, 1936, as amended, as well as the purpose of the Eximbank in
authorizing the credit.
(C) In evaluating applications for compensatory waivers under
Paragraph 2(C), we will consider:
(1) The circumstances leading to the movement on a foreign
flag vessel;
(2) The prior history of the exporter in shipping its
government-impelled and commercial cargoes on U.S.-flag
vessels; (3) Any previous or current compensatory waivers used
by the exporter and its efforts to comply with the terms of the previous or
existing compensatory waivers; and
(4) The national policy of the United States, including the
Merchant Marine Act, 1936, as amended, as well as the purpose of the Eximbank in
authorizing the credit;
(D) Non-compliance with the terms of a waiver may result in
the cancellation of the current waiver and/or a refusal to grant future waivers
and/or other appropriate actions, including debarment from government contracts.
Civil or criminal fraud will be penalized under the appropriate United States
Code section.
Attachments (these attachments are hereby incorporated into
this policy):
Appendix A: Waiver Request Procedures
Appendix B: Waiver Request Required Information
Appendix C: Information and Communication Guide
Appendix D: Guideline Rate Policy
Appendix E: Definitions and Miscellaneous Information
Appendix F: Movement Reports Guide
Appendix A
(OMB No. 2133-0013 applies to this collection of information.)
Waiver Request Procedures
A. Statutory (Non-Availability) Waivers
1. The public or private foreign borrowers of their United
States representative, receives or expects to receive Eximbank credit approval.
(Note: Shipments could begin before the credit approval. See the section on
Compensatory Waivers.) In the early stages of the project, either before or when
the credit is approved, the shipper should meet with the U.S.-flag carriers and
us and discuss the project cargoes detailing the information suggested in
Appendix C. We will confirm the Eximbank Credit Number.
2. The shipper must present its Request for Quotation (RFQ) for ocean service to
the carriers at least forty-five (45) calendar days in advance of the intended
shipping date. For efficiency, the RFQ also should be sent to the Martime
Administration. The RFQ must be
presented at the same time and with the same information to all carriers, both
U.S. and foreign. The RFQ must be given to all U.S.-flag carriers who may have
service or could initiate service and should contain the most detailed
information available regarding the commodities, sizes and weights. The shipper
must give carriers at least fourteen (14) calendar days in which to respond.
3. The U.S.-flag carriers must respond to the RFQ within
fourteen (14) calendar days either declining the cargo or providing an offer
addressing both the rate quotations and the logistical needs expressed in the
RFQ.
4. If the shipper cannot obtain service from a U.S.-flag
carrier, the shipper may apply for a waiver from us. Such waiver application
must be presented at least thirty (30) calendar days in advance of the intended
shipping date. The request must contain all the required information as shown in
Appendix B.
5. We will review the application, verify the waiver
documentation provided by the shipper, investigate or request further
information as necessary, and search the market for U.S.-flag carriers to handle
the cargo.
6. We will either approve or deny the waiver in writing.
B. General Waivers
1. As set forth in Policy Statement paragraph 2(B), a foreign
borrower or primary U.S. exporter who desires to make partial use of registered
vessels of the recipient nation for a specific Eximbank credit must send our
Office of Cargo Preference a written request.
2. We will make necessary investigations, including
consultations with U.S.-flag carriers, to determine that parity of treatment is
extended to U.S.-flag vessels in the trade of that foreign nation.
3. If we do not find discrimination, we will advise the
applicant that we may grant a General Waiver upon receipt of written
confirmation of the applicant's agreement to the terms and conditions set forth
in Policy Statement paragraph 2 (B). When we receive the written confirmation,
we will grant the General Waiver in writing with a copy to the Eximbank.
C. Compensatory Waivers
1. If a Compensatory Waiver is needed (Policy Statement
paragraph 2 (C)), the shipper should apply to us in writing, stating the
reasons, identifying the Eximbank Credit Number and country, and attaching
freighted copies of the ocean bill of lading covering the applicable cargoes.
2. If, after investigation, we decide to grant a
Compensatory
Waiver, we will notify the shipper of the requirements. The shipper
must then execute a written contract to meet those requirements.
3. Once we receive the written contract from the shippers,
we
will issue the waiver.
D. Conditional Waivers
1. An applicant for a Conditional Waiver (Policy Statement
paragraph 2(D) must fulfill the conditions and information stated in Appendix C
and must identify the specific overdimensional and integral component cargoes
with projected shipping dates during the waiver time period. The shipper must
search the market for U.S.-flag carriers to transport the identified cargoes. If
the shipper cannot find such carriers, the shipper may apply in writing to us
and must provide the information required in Appendix B and state the requested
beginning and ending dates of the conditional waiver period. We must receive the
application at least sixty (60) calendar days before the intended start of the
requested Conditional Waiver period.
2. We will review the application in light of the information
presented at the earlier meeting, will consult with the U.S. carriers, and will
request additional necessary information.
3. We will calculate a Guideline Rate for the specific
cargoes, as set forth in Appendix D, and will publish the Guideline Rate on our
web site. If no U.S.-flag breakbulk liner carrier can be found, we will grant a
Conditional Waiver for the agreed time period, conditions, and specific
identified cargoes.
4. If at any time during the period of the Conditional
Waiver, a U.S.-flag carrier gives at least a thirty (30) day notice to the
shipper and us in which the U.S.-flag carrier offers to carry the cargo at or
below the published guideline rate, the U.S.-flag carrier will be entitled to do
so provided the carrier meets our appropriate and approved conditions of
carriage.
5. Immediately after each shipment departs the load port, the
shipper must give us an update of the remaining project cargoes previously
approved under the Conditional Waiver and an update of the projected shipping
dates.
6. To meet the needs of the Eximbank, once we grant a
Conditional Waiver, the shipper must give us the Eximbank Credit Number and
country, vessel name, registry, sailing date, load port, discharge port, cargo
weight in kilos, cargo volume in cubic meters, revenue tons, FAS
value of cargo, ocean freight, list of cargoes shipped, and a freighted copy of
the ocean carrier's bill of lading for each voyage made under the terms of the
Conditional Waiver. This
information must be provided within fifteen (15) days of the date of loading. We
will then issue a standard non-availability waiver letter for each voyage for
presentation to the Eximbank. This standard non-availability waiver letter will
cover only those cargoes specifically identified and previously agreed to under
the Conditional Waiver. A shipper who wishes to place any additional cargoes on
the same voyage must use the standard non-availability waiver procedure,
detailed in Appendix A paragraph A, with appropriate notice to the U.S.
carriers.
7. A shipper who needs additional time beyond the original
Conditional Waiver period must apply for an extension by following steps 1
through 6 above. After investigation and consultation with the U.S. carriers, we
may grant an extension.
Appendix B
(OMB No. 2133-0013 applies to this collection of information.)
PR-17 Statutory Waiver Request--Format
The below information is required to process a statutory
waiver request. This information should be mailed or faxed to Office of Cargo
Preference, Room 8118, Maritime Administration, 400 Seventh Street, SW,
Washington, DC 20590. Fax number is 202-366-5522.
Electronic mail address is cargo@marad.dot.gov
Re: ExImBank Credit No. (Enter the number)--Country (Enter
Country name)
Applicant: (Name of company seeking the waiver. Should be the
cargo shipper or beneficial owner. If a freight forwarder or other party makes
the application, it must clearly state on whose behalf it is seeking the waiver
and that it legally represents said party.)
Vessel: (Name of vessel you propose to use. Enter ``To Be
Named'' if unknown. Note that actual vessel must be named before a final waiver
is issued. Shippers should be aware that Pub.L. 105-383 prohibits the carriage
of preference cargoes on substandard vessels. See the Maritime Administration
web site.)
Registry: (Nation of registry of vessel. Enter ``To Be
Named''
if unknown.)
Commodity: (Short one line description similar to Acquisition
List line items. Attach detailed description as part of packing list or similar
document.)
Weight: (Total weight in kilos. Attach details of individual
shipping components with dimensions and weights as part of packing list or
similar document.)
Volume: (Total volume in cubic meters. Attach details of
individual shipping components with dimensions and weights as part of packing
list or similar document.)
Revenue Tons: (Shipper's estimate of cargo revenue tons.)
Value of Shipment: (FAS value in U.S.
dollars.)
Ocean Freight: (Actual or estimated ocean freight charges
from carrier applicant proposes to use.)
Loading Port: (Desired port to load cargo.)
Loading Date: (Date when cargo will be ready to load.)
Discharge Port: (Desired port of destination of ocean
carriers.)
Written Reason(s) for the Waiver Request with Documentation
Supporting Each Reason Attached: The following language must be included in any
waiver request above the signatory block:
This application is made for the purpose of inducing the
United States of America to grant a waiver of Public Resolution 17 and the
policy prescribed to carry out the provisions of PR-17. I have carefully
examined the application and all documents submitted in connection therewith
and, to the best of my knowledge, information and belief, the statements and
representations contained in said application and related documents are full,
complete, accurate and true.
Signature:-------------------------------------------------------------
Name (typed):----------------------------------------------------------
Title:-----------------------------------------------------------------
Date:------------------------------------------------------------------
The Following Documents Must Be Attached
1. Copy of the ``Request for Quotations (RFQ)'' package which
the shipper sent to the carriers. Note it is preferable that the shipper send a
copy of the RFQ to Maritime Administration at the same time it is sent to the
carriers, in which case it is not necessary to attach another copy. The RFQ
should contain the most detailed information available regarding the
commodities, sizes and weights. A packing list is preferable.
2. A list of all carrier, with names of personnel, to whom
the RFQ
was sent.
3. Copies of any responses received from any U.S.-flag
carriers.
4. Documentation supporting each reason justifying the need
for a waiver. For example, a contract problem requires a copy of the applicable
contract clauses; a letter of credit problem requires a copy of the L/C;
U.S.-flag service not available requires copies of written declinations by the
U.S. carriers; etc.
Note: The essential terms of the waiver application and cargo
shipment information will be posted on the Maritime Administration web site but
restricted to bonafide U.S.-flag cariers.
Note: The U.S. Criminal Code makes it a criminal offense for
any person knowingly to make a false statement or representation to, or to
conceal a material fact from, any department or agency of the United States as
to any matter within its jurisdiction (18 U.S.C. 1001), or to file a false,
fictitious or fraudulent claim against the United States (18 U.S.C. 287). Civil
fraud may incur fines of $10,000 plus 3 times damages and expenses of government
recovery. Criminal fraud provides up to 5 years imprisonment. In addition,
corporations may be debarred from further Government contracts.
Appendix C
(OMB No. 2133-0013 applies to this collection of
information.)
Information and Communication
At the beginning of a project shippers should (required
for
Conditional Waivers):
--Meet with the U.S.-flag ocean carriers
--Meet with the Maritime Administration
Purpose:
--Layout project in as much detail as possible
--Discuss contract requirements
--Discuss any unique or expected problem requirements
--Provide best estimates, details, pictures of types of cargo
--Identify any long lead time or critical items
--Discuss what cargoes should move together and why
--Discuss anticipated shipment dates tied to project schedules
--Discuss items which it is doubtful U.S. carriers can handle & alternatives
--Obtain carrier capabilities & alternatives
--Establish and maintain a dialogue with U.S.-flag carriers
Note: For Conditional Waivers, the shipper must specify the
projected overdimensional cargoes and integral components and specify their
projected shipping dates.
In addition, for the Maritime Administration meeting:
--Discuss potential waivers, if applicable
--Discuss reporting requirements
--Establish a working relationship with Maritime Administration
The essential information will be posted on the Maritime
Administration web site.
As the project progresses, keep the carriers and Maritime
Administration informed of progress related to initial projections and
unforeseen problems as they arise.
Increased understanding of each party's objectives and
capabilities will establish better communications and create a smoother/faster
process.
Appendix D
(OMB No. 2133-0013 and 2133-0514 apply to this collection of
information.)
Once a shipper requests a Conditional Waiver of the U.S.-flag
requirement of PR-17, we will calculate a guideline rate or rates as part of the
waiver process. The guideline rate will be for the proposed movement of a
specific cargo or cargoes on a specific voyage or voyages on U.S.-flag non-liner
breakbulk vessels. For the purpose of this PR-17 policy, the guideline rates
will be calculated using the basic framework contained in the Maritime
Administration regulations at 46 CFR 382.3, except as follows:
1. We calculate the guideline rate based on a vessel or group
of vessels we determine is most suited to the cargo and destination.
2. Costs will be indexed to the year of cargo carriage.
3. The calculation will assume, unless we determine
otherwise, that the cargo occupies seventy percent of the cubic capacity of the
selected vessel(s).
4. The rate will be specified in U.S. dollars per revenue
ton.
Appendix E
(OMB No. 2133-0013 applies to this collection of information.)
Definitions
The following definitions apply to this PR-17 policy.
Critical Item Cargo: A product whose non-availability to
support the required installation date would cause the project to shut down or
to incur substantial liquidated damages.
Foreign Borrower: A foreign government, corporation, or
person who is the recipient of a loan or credit guarantee by an instrumentality
of the United States.
Liner Service: A service provided on an advertised schedule
giving relatively frequent sailings between specific U.S. ports or ranges and
designated foreign ports or ranges.
Long Lead Time Cargo: A product which, if damaged during
shipment, would require more than six (6) months to repair or remanufacture and
which is not available sooner from the shipper's inventory or from any other
manufacturer.
Ocean Carrier: The operator of the ocean vessel which carries
the cargo between one or more United States ports and one or more foreign ports.
Overdimensional Cargo: A specific piece of cargo is
considered overdimensional or out-of-gauge when one or more of its dimensions
exceed the interior dimensions of a standard maritime industry forty-foot
container or the cargo weight exceeds 39 metric tons.
Revenue Ton: A metric ton or cubic meter of cargo, whichever
yields the greatest revenue to the ocean carrier.
Shipper: A person or company who contracts with a shipping
line or shipowner for the carriage of cargo.
Transshipment: The offloading of breakbulk cargo from one
vessel at an intermediate port and reloading the breakbulk cargo on a different
vessel for delivery to final destination. It does not include cargo in
containers, trailers, or barges where the entire conveyance is relayed form one
vessel to another vessel under a through bill of lading.
BILLING CODE 04910-81-P
[[Page 50740]]
By Order of the Maritime Administrator.
Dated: August 14, 2000.
Joel C. Richard,
Secretary, Maritime Administration.
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