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laws, including guidance on six ele- ments demonstrating an effective com- pliance program. • Draft U.S. Sentencing Guidelines for Environmental Crimes: Sets forth seven fundamental elements that must be satisfied for a company to be granted mitigation for its commitment to envi- ronmental compliance — submitted to the Sentencing Commission in 1993 but not adopted to date. • U.S. Sentencing Guidelines for Organizations: Defines a compliance program as one demonstrating that a company exercised "due diligence" in seeking to prevent and detect criminal conduct and requires that an organiza- tion meet seven compliance program related elements. • Unpublished DOJ Memorandum of June 16, 1999: Details seven factors for federal prosecutors to consider in decid- ing whether to pursue criminal charges including whether an environmental compliance program is adequately designed for maximum effectiveness in preventing and detecting wrongdoing and whether management is enforcing the program or tacitly encouraging or pressuring employees to engage in mis- conduct to achieve business objectives. The guidance notes that prosecuting a corporation is no substitute for prosecut- ing individuals. At first glance a shipowner or operator appears to be facing a daunting task in determining the environmental compli- ance model to ensure that prosecutors will conclude that a company has estab- lished an effective environmental com- pliance program. Frankly, though chal- lenging, the vagaries in determining an effective environmental compliance program can be used to the advantage of a company. It provides a company with great flexibility in developing and main- taining and effective program if it can be demonstrated that a carefully devel- oped and executed program has been tailored and implemented to meet the practical needs of a company based on applicable guidelines. Moreover, it pro- vides defense counsel with the opportu- nity to be creative in negotiations with prosecutors due to the uncertainty in applying the various guidelines. In summary, the establishment of an effective maritime environmental com- pliance program is crucial to the contin- ued success of companies engaged in marine transportation. A company should analyze the common elements of the various environmental compliance guidelines as discussed above and com- March, 2000 17 pare them against its compliance pro- gram. First, an assessment of which ele- ments are most commonly found in the compliance guidance documents should be completed. Second, the company should then modify its environmental compliance program as appropriately modeled after the common compliance elements found in the agency guidance. In short, a compliance program devel- oped in this manner will best shield or help deflect prosecutorial actions by demonstrating that a thoughtful, effec- tive, and practical program has been developed and implemented based on applicable guidelines. The future will belong to those who plan for it. Jonathan K. Waldron is a partner with Dyer Ellis & Joseph, Washington, D.C. (800) 913-0062 Foam Filled Marine Fenders Marine Guard The Ultimate Protector for Ships, Harbor Craft, Wharves & Piers. Circle 286 on Reader Service Card • Construction complies with United States Navy and Coast Guard Specifications. • Core consists of closed-cell, resilient, energy absorbing foam, covered with a protective, seamless polyurethane elastomer skin. Filament nylon tire cord reinforcement is continously wound in the skin for added strength and durability. Will not mark or scratch vessel hulls. • Constructed with integral swivel end fittings, internally connected with a heavy duty chain. • Easy to install with very little maintenance. • Light weight and extremely buoyant with a lower reaction force than either hard rubber or pneumatic fenders. (Almost 40% higher energy absorption than pneumatic fenders.) URETHANE PRODUCTS CORPORATION 17007 South Broadway, Gardena CA 90248, U.S.A. Tel (310) 532-3662 • Fax (310) 532-9884 Stocking Distributors: Waterman Supply Company 910 Mahar, Wilmington, CA 90744, U.S.A. 1-800-322-3131 Tel (310) 522-9698 • Fax (310) 522-1043 Anchor Marine & Industrial Supply, Inc. 6545 Lindbergh, Houston, TX 77087, U.S.A. 1-800-233-8014 Tel (713) 644-1183 • Fax (713) 644-1185
