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clude the President from proclaiming an amendment to the Regulations. These sections are incompatible with the express provision in the Constitution that a resolution having the force and effect of law must be presented to the President and, if disapproved, repassed by a two-thirds majority in the Senate and the House of Representatives. These sections extend to the Congress the power to prohibit specific transactions authorized by law without changing the law—and without following the Constitutional process such a change would require. It is therefore our view that Section 3(c) would be violative of the provisions of Article I, Section 7 of the Constitution.
In addition, this Department has several objections to Section 9 of the bill, which in our view adversely affects the Department's penalty collection activities,
There are basically two penalty-assessing methods used by Congress when providing a civil penalty for a forbidden activity. The common method is for Congress to forbid an act, which if committed makes the violator subject to a definite and certain penalty set by Congress. A second method is for Congress to provide a maximum statutory penalty, vesting in the administering agency authority to assess an appropriate penalty within the statutory range.
Section 9 of this bill incorporates both methods. Section 9(a) provides that whoever operates a vessel in violation of the Act or of a Coast Guard regulation thereunder shall be liable to a civil penalty of not more than $500. Section 9(b) provides that a vessel operated in violation of the Act or regulation shall be liable in rem to a civil penalty of $500, for which she may be seized and proceeded against in any district court within whose district she may be found. Without distinguishing between these two methods, Section 9(c) authorizes the Secretary to "assess any civil penalty authorized by this section,” upon notice and after hearing. For cause, the Secretary may thereafter remit, litigate, or compromise any penalty he has assessed. The Secretary may then refer the case to the Attorney General should the violator fail to pay the penalty assessed.
There thus appears to be an apparent conflict between Section 9(b) and (c). Section 9(b) clearly contemplates a judicial proceeding which necessarily implies the determination of liability. Yet section 9(c) says that the Secretary may assess any civil penalty authorized by this Section. Congress has set the penalty so that the Secretary has no authority to set the penalty amount. This leaves the arguable construction then, that the Secretary could “assess” liability. If this is the case, then some provision should be made for administrative due process. Subsequent judicial proceedings afford us opportunity for such due process because the bill does not authorize the courts to assess the penalty; they can only enforce or remand. Accordingly, the bill should at the outset require administrative due process and clothe the agency with all the powers necessary to accomplish this end.
Another objection is that the bill fails to provide that the Secretary's mitigating power ends upon referral to the Attorney General. Similar power in the Coast Guard under 46 U.S.C. 7 has been construed to authorize remission even after entry of final judgment. 29 Op. Atty. Gen. 149. This conflicts with the Attorney General's plenary control over litigation. Accordingly, this bill should provide expressly that the Secretary's functions end when the Attorney General's begin.
Subject to the above comments and recommendations, whether this legislation should be enacted involves questions as to which the Department of Justice defers to those agencies more directly concerned with the subject matter of the bill.
The Office of Management and Budget has advised this Department that there is no objection to the submission of this report and that enactment of H.R. 186 with the concurrent resolution procedure discussed above would not be in accord with the program of the President. Sincerely,
PATRICIA M. WALD, Assistant Attorney General.
DEPARTMENT OF STATE,
Washington, D.C., May 23, 1977, Hon. JOHN M. MURPHY, Chairman, Committee on 'Merchant Marine and Fisheries, House of Representatives,
Washington, D.C. DEAR MR. CHAIRMAN: The Secretary has asked me to reply to your letter of February 3, requesting State Department views on H.R. 186, "a bill to imple
ment the Convention on the International Regulations for Preventing Collisions at Sea.”
Similar legislation to implement the Convention was vetoed by President Ford on October 10, 1976. Subsequently, however, in order to avoid any possible threat to life and property at sea should the Convention enter into force without the United States as a Party, President Ford directed that the United States deposit its instrument of accession to the Convention. President Ford then proclaimed the Convention and issued Executive Order 11964 regarding its implementation on January 19.
However, there is need for legislation to expressly repeal the 1960 Convention standards which were enacted as part of domestic law. The Secretary of Transportation has transmitted proposed legislation for this purpose to the Congress.
We believe that the legislation proposed by the Secretary of Transportation should be enacted in lieu of H.R. 186. H.R. 186 contains provisions which are not legally necessary for implementation of the Convention. More significantly, we note that section 3(d) of H.R. 186 would require the President to transmit to the Congress notice of any proposed amendments to the Convention. By adopting a concurrent resolution of disapproval within 60 days, the Congress could then require the President to express United States disapproval of the proposed amendment. This procedure would permit the Congress to direct rejection of a proposed amendment to the regulation without the President's participation as required by the Constitution. Accordingly, we believe that H.R. 186 raises a significant Constitutional issue, although we are confident that no substantive disagreement between the Legislative and Executive Branches on these matters is likely to arise.
The Office of Management and Budget advises that from the standpoint of the Administration's program, there is no objection to the submission of this report. Sincerely,
DOUGLAS J. BENNET, Jr.
Assistant Secretary for Congressional Relations. Mr. BIAGGI. Our witness today, representing the Department of Transportation, is Rear Adm. G. H. Patrick Bursley, Chief Counsel, U.S. Coast Guard. Also present is a representative of the Department of State, Mr. John Crook. attorney adviser, Office of the Legal Adviser.
I will ask Admiral Bursley to come forward, and I will ask Mr. Crook to join him at the witness table.
STATEMENT OF REAR ADM. G. H. PATRICK BURSLEY, CHIEF COUN
SEL, U.S. COAST GUARD, DEPARTMENT OF TRANSPORTATION, ACCOMPANIED BY CAPT. C. R. HALLBERG, DEPUTY CHIEF COUNSEL; CAPT. ALFRED F. BRIDGMAN, CHIEF, LEGISLATIVE BRANCH, OFFICE OF CHIEF COUNSEL; AND JOHN CROOK, ATTORNEY ADVISER, OFFICE OF THE LEGAL ADVISER, DEPARTMENT OF STATE
Mr. Chairman, I am Rear Admiral Bursley, Chief Counsel of the Coast Grard. I am accompanied by Capt. C. R. Hallberg, the Deputy Chief Counsel; and Capt. A. F. Bridgman, Chief of the Legislative Branch.
As you noted, Mr. Crook is representing the Department of State.
I am very pleased to have the opportunity to speak to you today concerning H.R. 186, a bill to implement the Convention on the International Regulations for Preventing Collisions at Sea, 1972.
A U.S. delegation participated actively in the 1972 Conference on Revision of the International Collision Regulations which resulted in a set of rules reflecting the rapid advances in marine commerce of the past two decades.
The 1972 collision regulations, which I will hereafter refer to as Colregs 1972, have rapidly received wide acceptance and will go into effect internationally on July 15, 1977.
The Senate gave its advice and consent to ratification of the convention on October 25, 1975, and the United States deposited its instrument of accession to the convention on November 23, 1976.
Before I discuss the bill pending before this subcommittee, I think it will be useful to review briefly the history of International Regulations for Preventing Collisions at Sea in order to give the committee a full understanding of what is currently needed in the form of domestic legislation to implement Colregs 1972.
The early efforts to establish International Rules for Preventing Collisions at Sea culminated in the Washington conference of 1889, where a comprehensive set of rules was developed (Colregs 1889). It is important to understand that Colregs 1889 was not afforded the status of a treaty. Rather it was in the nature of model legislation which each nation was expected to put into force by enacting domestic law. In the United States this was accomplished by the act of August 19, 1890.
Subsequent to Colregs 1889, the International Rules for Preventing Collisions at Sea were revised in 1948 and 1960. A 1929 revision never came into force.
The legal status of these revisions remained the same as the original formulation. They were not transmitted to the Senate for advice and consent. They were put into force by domestic legislation.
Colregs 1960, the current navigation rules, were put into force for U.S. vessels by the act of September 24, 1963, which is codified at 33 U.S.C. 1051 et seq.
Dissatisfaction was expressed by the maritime community before the 1972 Conference with the cumbersome, expensive, and very slow mechanism for updating the Colregs which required the calling of a special international conference, and obtaining what amounted to a consensus of maritime states before new rules could become effective. The maritime nations concluded that a new approach, creating a basic instrument susceptible of amendment by a rapid procedure, was needed.
The preparatory work conducted by the Intergovernmental Maritime Consultative Organization (IMCO) led to the conclusion that the status of Colregs would have to be changed to that of a multilateral treaty, or convention, in order that a rapid amendment procedure could be instituted.
Therefore, at the London Conference on Revision of the International Regulations for Preventing Collisions at Sea, 1972, the new instrument, Colregs 1972, was developed as a treaty. Pursuant to this change in status Colregs 1972 was transmitted to the Senate for advice and consent, which was duly given.
Subsequently, on November 23, 1976, the United States deposited its instrument of accession with the Secretary-General of IMCO. In further conformity with treaty practice the United States, on March 30, 1977, gave notice to the Secretary-General of IMCO that, pursuant to article III of Colregs 1972, the application of the treaty was extended to the U.S. territories and possessions.
The Convention, Colregs 1972, enters into force on the 15th of July 1977. By virtue of the second clause of article VI of the Constitution on that date Colregs 1972 becomes the law of the land, and thereupon, the statutory provisions for Colregs 1960, will be superseded to the extent that they are in conflict with Colregs 1972.
During the last Congress, this committee reported out H.R. 5446, a bill substantially similar to H.R. 186. H.R. 5446_was passed by both the House and the Senate; however, President Ford vetoed it because of provisions added by the Congress in respect to the manner by which the so-called tacit amendment procedure could be exercised.
Very soon thereafter, on November 23, 1976, because the Congress had adjourned, and because of the need to initiate timely measures to facilitate compliance with Colregs 1972, the President caused the United States to deposit its instrument of accession to Colregs 1972 with the Intergovernmental Maritime Consultative Organization (IMCO).
At the same time, he issued a Presidential proclamation that put Colregs 1972 into force for the United States. President Ford also issued Executive Order No. 11964 directing implementing actions by the Secretary of the department in which the Coast Guard is operating and the Secretary of the Navy.
On March 31, 1977, the Coast Guard published in the Federal Register, at page 17111 of volume 42, regulations providing the procedures whereby vessel owners can obtain certificates of alternative compliance with certain provisions of Colregs 1972.
Therefore, today the major purpose of H.R. 186—the implementation of the 1972 International Collision Regulations-has been accomplished. However, there are a number of loose ends which need to be tied up through legislative action. H.R. 186 and a similar proposal which the administration has submitted to Congress address a number of these matters.
First, the bill would repeal Public Law 88–131, the act which authorized the President to issue the 1960 collision regulations. Although the 1960 collision regulations that are inconsistent with the 1972 Colregs will be superseded as a matter of law effective July 15, 1977, Public Law 88–131 should be formally expunged to avoid having an obsolete law remaining in the U.S. Code, and to avoid any misapprehension that there is more than one set of effective international collision regulations.
The President's Executive order of January 19, 1977 authorized and directed the Secretary of the Department in which the Coast Guard is operating, to exercise regulatory authority necessary to implement Colregs 1972.
Adequate regulatory authority for this purpose appears in 14 U.S.C. 2. Nevertheless, it would be desirable to give the Secretary of the Department in which the Coast Guard is operating and the Secretary of the Navy specific legislative authority to promulgate reasonable rules and regulations to implement Colregs 1972. H.R. 186 contains the desired authority in section 8; the administration bill contains the desired authority in section 4(b).
Third, during consideration of H.R. 5446 the 94th Congress made it clear that the Congress wants to have a voice in the tacit amendment procedures of Colregs 1972.
That procedure is that any party to the Convention may propose an amendment to the Colregs, and if the Maritime Safety Committee and the Assembly of IMCO approve the proposed amendment, it is sent to the contracting parties. In the absence of objections by at least one-third of the parties, the amendment enters into effect on the date stated in the amendment.
The 94th Congress, by enacting H.R. 5446, indicated that there should be a provision in U.S. law for a legislative initiative to trigger a U.S. objection to any proposed amendment. The method chosen, a legislative veto by simple resolution of disapproval of one House, was deemed by President ford to be unconstitutional under the presentment clause, article I, section 7, clause 2.
While H.R. 186 would incorporate a concurrent resolution rather than a simple resolution, the procedure poses the same constitutional difficulties as a simple resolution, since a concurrent resolution need not be presented to the President for approval.
The only form of resolution which avoids constitutional difficulties is the joint resolution, and this is the method incorporated in the administration's proposal. Accordingly, we recommend that the provisions contained in our proposal be adopted in lieu of the concurrent resolution in H.R. 186.
Fourth, H.R. 186 proposes a $500 civil penalty for violations of Colregs 1972.
As you know, the previous administration's initial proposal included a $10,000 maximum civil penalty. This committee reduced the maximum penalty to $500 to be consistent with the Inland Rules of the Road.
We regard a $500 limit as relatively ineffective as a deterrent or as a penalty. At this level the primary motivation and incentive to adhere to collision regulations is the thousands of dollars in damages that may result from a collision.
Accordingly, this administration's current proposal does not contain a penalty provision. However, the Department of Transportation expects to propose at an early date a unification of the various collision
a rules applicable on internal waters of the United States. At that time we intend to propose a substantial civil penalty for violations of all collision regulations.
Finally, and not covered by any bill currently under consideration, is the fact that throughout the U.S. Code there are a number of references to outmoded versions of the International Collision Regulations. Because of the anomalies in various laws, the lighting requirements of the 1890 International Regulations may technically still be applicable to the Western rivers; the requirements of the 1960 International Regulations will still technically apply to motorboats.
This situation arises because the references to the International Collision Regulations in other laws have not been amended with any degree of uniformity as new International Regulations have been adopted.
I would propose that language be added to the bill to the effect that any reference to previous International Collision Regulations in the laws of the United States shall be deemed a reference to the International Collision Regulations currently in force for the United States.