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Citizenship Standards for Vessel Ownership and Financing; American Fisheries Act
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 7, 2000 (Volume 65, Number 236)]
[Rules and Regulations]
[Page 76572-76577]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de00-6]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Part 67
[USCG-1999-6095]
RIN 2115-AF88
Citizenship Standards for Vessel Ownership and Financing;
American Fisheries Act
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard amends citizenship requirements for fishing
vessels of less than 100 feet in length that are eligible for a fishery
endorsement, by increasing the percentage of interest in a vessel
required to be owned and controlled by U.S. citizens in corporations.
The percentage increased is from more than 50 percent to at least 75
percent. We add provisions making fishery endorsements of documented
fishing vessels chartered or leased to a person who is not a citizen or
to an entity which is ineligible to own a documented fishing vessel
invalid. We also prohibit fishery endorsement for a fishing vessel
mortgaged to a trustee if the mortgage interest is issued, assigned,
transferred, or held in trust for a person not eligible to own a
documented fishing vessel, even if the trustee is eligible to own a
documented fishing vessel.
DATES: This final rule becomes effective on October 1, 2001.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-1999-6095 and are available for inspection or
copying at the Docket Management Facility, U.S. Department of
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this docket on the Internet at http://
dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Patricia J. Williams, Coast Guard, telephone 304-271-2400. If you
have questions on viewing the docket, call Dorothy Beard, Chief,
Dockets, Department of Transportation, telephone 202-366-9329.
SUPPLEMENTARY INFORMATION:
Regulatory History
On July 27, 2000, we published a notice of proposed rulemaking
entitled Citizenship Standards for Vessel Ownership and Financing;
American Fisheries Act [USCG-1999-6095] in the Federal Register (65 FR
46137). No public hearing was requested and none was held.
Background and Purpose
For reasons and purposes as discussed in the NPRM the Coast Guard
amends its fishery endorsement regulations as mandated by the 105th
U.S. Congress (Pub. L. 105-277) outlining fishery endorsement
eligibility for fishing vessels less than 100 feet in length. The
American Fisheries Act (AFA) requires a real, effective, and
enforceable U.S. ownership threshold for U.S.-flag fishing vessels.
Under this Act, U.S. citizens must own and control at least 75 percent
of the ownership interest in any U.S.-flag fishing vessel. The Act is
intended to ensure that vessels with a fishery endorsement are truly
controlled by citizens of the United States. The Act also increases the
penalties for fishery endorsement violations and is intended to
discourage willful noncompliance with the new requirements.
Discussion of Comments and Changes
The Coast Guard received 12 comments from two respondents
addressing the proposed changes to the citizenship requirements for
U.S.-flag fishing vessels with a fishery endorsement. Each respondent
highlighted several different items within the proposed rule.
One comment felt that the proposed change to Sec. 67.11 goes too
far by eliminating the fishing vessel exemption on selling, mortgaging,
leasing, chartering, delivering, or otherwise transferring of the
vessel to a non-U.S. citizen without the prior approval of the Maritime
Administration. The Coast Guard agrees. Our initial intent was to
ensure full compliance with the American Fisheries Act and to ensure
there is no confusion among the regulated community. By removing
paragraphs (b)(1) and (b)(3) we inadvertently exceeded the scope of the
mandate. We have added a paragraph (c) to this section that clarifies
vessels less than 100 feet must comply with the Fishery Endorsement
requirements of the part, and vessels 100 feet and greater must comply
with the requirements found in 46 CFR part 356.
Both respondents stated our proposed restrictions on chartering
should apply only to fish harvesting vessels, and not to fish
processing or fish tender vessels. We have reviewed the issue, as well
as the regulations applicable to larger vessels, implemented by the
Maritime Administration (MARAD), the agency with the authority of
administering the AFA on vessels greater than or equal to 100 feet in
length. We have determined that the regulations regarding chartering of
vessels less than 100 feet should be the same as those regarding larger
vessels. Thus, we have added language to Sec. 67.21(d)(3) that will not
restrict time or voyage charters to Non-Citizens of dedicated Fish
Processing or Fish Tender Vessels. This change will bring the
regulations for vessels less than 100 feet into symmetry with the
regulations for larger vessels, while still invalidating fishery
endorsements whenever a fish harvesting vessel is chartered to a Non-
Citizen. Bareboat charters of any fishing industry vessel to
[[Page 76573]]
Non-Citizens will also invalidate the vessel's fishery endorsement.
Both respondents questioned the efficiency of having the Commandant
review and approve every loan by a Non-Citizen that is secured by a
mortgage, regardless of vessel length. Both suggested that the Coast
Guard accept arrangements approved by MARAD for vessels greater than or
equal to 100 feet. This has always been the intent of the Coast Guard.
We have added to 46 CFR 67.21(f) in order to clarify this intent and
prevent confusion among the regulated industry. Additionally, we are
adding language to that same section that will allow owners of vessels
less than 100 feet to presume Commandant approval of standard loan and
mortgage agreements from Non-Citizen lenders, that have received
general approval under MARAD's regulations. For those vessels under 100
feet that are entering into non-standard loan and mortgage agreements
with Non-Citizen lenders, Commandant approval will proceed on a case-
by-case basis.
One comment raised a concern that redefining ``control'' in
Sec. 67.31 ``Stock or equity interest requirements'' would
unnecessarily subject non-fishing industry vessels to the more
stringent requirements included in the AFA. The Coast Guard agrees with
this comment. In order to ensure the AFA definition of control is not
applied to non-fishing industry vessels, we have split the definition
into Secs. 67.31(b) and (c), and moved the current Sec. 67.31(c) to
Sec. 67.31(d).
Both respondents noted that certain larger vessels that were
``grandfathered'' by the AFA have been given a 15-day period to correct
an invalid fishery endorsement. MARAD spelled out the procedures for
such a correction in 46 CFR 356.47(b). We did not address the issue in
our proposed regulations because we no longer have authority over these
vessels. However, it has always been our intention to accept a
determination by MARAD that a correction had occurred, and thus
continue to recognize a vessel's fishery endorsement. Additionally, the
Coast Guard plans to work closely with the Maritime Administration to
ensure that notification of a vessel's fishery endorsement
ineligibility takes place in a timely and uniform manner.
Both respondents noted that our proposed changes did not include
reference to the five vessels specifically granted exemptions by
Congress in section 203(g) of the AFA. These vessels were not included
in our proposal because they are all over 100 feet in length, and thus
outside of our authority. MARAD listed these vessels in 46 CFR
356.51(c) as exempt from the AFA requirements. All are eligible for
documentation.
One comment expressed confusion regarding the application
procedures outlined in Sec. 67.141. The regulation requires that all
vessels, regardless of length, submit certain materials for
documentation. This includes the citizenship oath on the CG-1258
documentation application form. Vessels greater than or equal to 100
feet in length must also meet the requirements MARAD has established in
46 CFR part 356, subpart C, including the more extensive citizenship
affidavit. Vessels not under MARAD's jurisdiction (less than 100 feet
in length) do not need to complete the more extensive form.
One comment noted, as a technicality, that the term ``Exclusive
Economic Zone'' was not being used consistently in our proposed rule.
We have made the necessary changes in Secs. 67.142(b)(3) and 67.142(c)
to ensure consistent usage.
The Coast Guard made two additional changes from the proposed
language. In Sec. 67.350, we reworded paragraph (b)(1) in order to
clarify the evidence needed to obtain a petition for an exemption from
the citizenship requirements. This language change does not affect the
substance of the rule; it clarifies that the required evidence must
show the ownership of the vessel as of October 1, 2001, whether you are
submitting your petition before, on, or after that date.
In Sec. 67.21 we re-designated proposed paragraph (e) as paragraph
(f), and added a new paragraph (e) exempting vessels engaged in the
fisheries in the exclusive economic zone (EEZ) under the authority of
the Western Pacific Fishery Management Council, and certain vessels
operating under the authority of the South Pacific Regional Fisheries
Treaty, as set forth in the American Fisheries Act. We did not include
this provision in the NPRM because a review of vessels under the
authority of the Council and Treaty showed all such vessels to be
greater than 100 feet and therefore outside our authority. We now
include this provision to ensure full compliance with the American
Fisheries Act and to ensure there is no confusion among the regulated
community.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. The
Office of Management and Budget has not reviewed it under that Order.
It is not ``significant'' under the regulatory policies and procedures
of the Department of Transportation (DOT)(44 FR 11040, February 26,
1979). We expect the economic impact of this rule to be so minimal that
a full Regulatory Evaluation under paragraph 10e of the regulatory
policies and procedures of DOT is unnecessary.
The Marine Safety Management System (MSMS) shows that about 36,000
vessels have fishery endorsements. This regulation impacts documented
vessels with fishery endorsements that are less than 100 feet. About
35,500 vessels with fishery endorsements are less than 100 feet. Of
these, we researched a random sample of 1,010 vessels in order to
achieve a 95 percent confidence level. We found that the change to
minimum U.S. ownership requirements from ``more than 50 percent'' to
``at least 75 percent'' affects one of the vessels in the random
sample. This means that 0.099 percent of the random sample do not meet
the requirement. The margin of error is plus or minus 3.04 percent.
Applying this percentage to the population, we expect that the owner of
35 vessels will not meet the change in owner citizenship requirement if
current ownership levels in each company remain the same (0.099 percent
of 35,500 vessels).
In the random sample, there are 843 vessels (83 percent of the
affected population) that are owned by individual persons and 167
vessels (17 percent of the affected population) that are owned by
corporations or companies. All individual owners are already required
to be U.S. citizens in order to document a vessel. Therefore, these
vessels and individuals are considered to meet the citizenship
requirement, and have 100 percent U.S. ownership. Corporations,
partnerships or limited liability companies are required to attest to
the level of ownership by U.S. citizens by checking a box in the
application for documentation. The ``Application for Initial Issue,
Exchange, or Replacement of Certificate of Documentation;
Redocumentation'' (CG-1258 (REV.9-97)) has four choices for reporting
the level of ownership by U.S. citizens in a corporation. The choices
are: less than 50 percent, at least 50 percent, more than 50 percent
but less than 75 percent, and 75 percent or more. One hundred sixty six
(166) corporations certified that the ownership level by U.S. citizens
is 75 percent or more. One certified that its corporation's percentage
of stock owned by U.S. citizens who are eligible to document vessels
was more than 50 percent but less than 75 percent.
[[Page 76574]]
Costs: For further analysis, we assume that the 35 adversely
affected vessel owners have more than 50 but less than 75 percent of
stock owned by U.S. citizens. We further assume that each vessel owner
prefers to continue fishing in the Exclusive Economic Zone of the
United States. Therefore, we expect each vessel owning company will
make changes to its U.S. ownership level. The change of U.S. ownership
level could entail the following: adding an additional investor,
selling stock to U.S. citizens, adding a partner, or removing a
partner.
Once each vessel owning company has met the ownership criteria, the
vessel's fishery endorsement will be renewed, as it will be in any
other year. Thus, the cost of this rulemaking is directly associated
with the change of U.S. ownership level made by each of the 35 vessel
owning companies. We assume that each company will hire a law firm to
complete the articles of incorporation or any other documents needed to
reflect the changes to the ownership levels, and that the law firm will
charge about $600 for its services. The one time cost of changing the
ownership structure for the 35 companies is $21,000.
We do not expect the restriction to leases and charters by non-U.S.
citizens to impact any vessel owners. Similarly, we do not expect the
restriction on foreign controlled mortgages to impact any vessels.
Therefore, these regulations cause no additional cost to vessel owners,
operators, or managers.
Benefits: The changes in the law necessitate this rulemaking. The
regulation gives U.S. citizens a higher level of ownership in the
vessels that harvest fish in the U.S. Exclusive Economic Zone.
Consequently, more of the profits from the fishery industry will accrue
to U.S. citizens.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we
considered whether this proposed rule will have a significant impact on
a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
This rule impacts the owners of about 35,500 vessels that are
documented with fishery endorsements. These vessels are less than 100
feet in length, and we considered each one to be owned by a small
entity. As shown by the sample statistics, we expect 35 entities to be
adversely affected by the rulemaking. We do not consider the number of
adversely affected entities to be a substantial number for they
represent 0.099 percent of all entities that would have to comply with
the requirements.
The Small Business Administration has determined that the size
standard for small businesses involved in the fishing industry is $3
million in annual revenues (Standard Industry Codes 0912, 0913, 0919,
and 0921). The imposed burden of $600 represents 0.02 percent for
entities with $3 million in annual revenues. For entities with $60,000
and $30,000 in annual revenues, the burden represents 1 percent and 2
percent of annual revenues, respectively. We do not consider this cost
to create a significant economic impact on the affected entities.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this final rule will not have a significant economic impact on a
substantial number of small entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule calls for a new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). This rulemaking
adds a new collection of information burden to companies that no longer
meet the threshold of at least 75 percent ownership by U.S. citizens.
This regulation allows these companies to apply for an exemption from
the 75 percent U.S. ownership level. The application and related
submissions comprise a new collection of information burden.
We presented an estimate of the burden this rulemaking will cause
for public comment in the NPRM. No comments were received regarding the
collection of information, and we perceive this to mean acceptance of
the burden by the public.
The information collection requirements of the rule are addressed
in the previously approved OMB collection titled ``Vessel
Documentation'' (OMB 2115-0110).
As required by 44 U.S.C. 3507(d), we submitted a copy of this rule
to the Office of Management and Budget (OMB) for its review of the
collection of information. OMB has not approved the collection, and we
will publish its approval when it occurs. The section numbers are
Secs. 67.350 and 67.352.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
Federalism
We have analyzed this rulemaking in accordance with the principles
and criteria contained in E.O. 13132, (``Federalism'') and have
determined that it does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. The
regulations have no substantial effects on the States, or on the
current Federal-State relationship or on the current distribution of
power and responsibilities among various local officials. Therefore,
consultation with the State and local officials was not necessary.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their regulatory
actions not specifically required by law. In particular, the Act
addresses actions that may result in the expenditure by a State, local,
or tribal government, in the aggregate, or by the private sector of
$100,000,000 or more in any one year. Though this rule will not result
in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
[[Page 76575]]
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not concern an
environmental risk to health or risk to safety that may
disproportionately affect children.
Environment
We considered the environmental impact of this rule and concluded
that preparation of an Environmental Impact Statement is not necessary.
An Environmental Assessment and a Finding of No Significant Impact are
available in the docket where indicated under ADDRESSES.
List of Subjects in 46 CFR Part 67
Citizenship; Fishery endorsements, Fishing vessels, Mortgages,
Penalties, Vessel Documentation.
For the reasons discussed in the preamble, the Coast Guard amends
46 CFR part 67 as follows:
PART 67--DOCUMENTATION OF VESSELS
1. The authority citation for part 67 continues to read as follows:
Authority: 14 U.S.C. 664; 31 U.S.C. 9701; 42 U.S.C 9118; 46
U.S.C. 2103, 2107, 2110, 10102; 46 U.S.C. app. 841a, 876; 49 CFR
1.45, 1.46.
2. Amend Sec. 67.11 by adding paragraph (c) to read as follows:
Sec. 67.11 Restriction on transfer of an interest in documented
vessels to foreign persons; foreign registry or operation.
* * * * *
(c) The exemption in paragraph (b) of this section does not relieve
all vessels from meeting the fishery endorsement requirements of this
part. If your vessel is less than 100 feet in length and is a fishing
vessel, fish processing vessel, or fish tender vessel as defined in 46
U.S.C. 2101, you must meet the fishery endorsement requirements set out
in this part. Each vessel 100 feet and greater in length applying for a
fishery endorsement is regulated by the Maritime Administration
requirements found in 46 CFR part 356.
* * * * *
3. Amend Sec. 67.21 by revising paragraph (d) and adding paragraphs
(e) and (f) to read as follows:
Sec. 67.21 Fishery endorsement.
* * * * *
(d) A vessel otherwise eligible for a fishery endorsement under
paragraph (b) of this section loses that eligibility during any period
in which it is:
(1) Owned by a partnership which does not meet the requisite
citizenship requirements of Sec. 67.35(b);
(2) Owned by a corporation which does not meet the citizenship
requirements of Sec. 67.39(b); or
(3) Chartered or leased to an individual who is not a citizen of
the United States or to an entity that is not eligible to own a vessel
with a fishery endorsement, except that time charters, voyage charters
and other charters that are not a demise of the vessel may be entered
into with Non-Citizens for the charter of dedicated Fish Tender Vessels
and Fish Processing Vessels that are not engaged in the harvesting of
fish or fishery resources without the vessel losing its eligibility for
a fishery endorsement.
(e) A vessel operating with a fishery endorsement on October 1,
1998, under the authority of the Western Pacific Fishery Management
Council, or a purse seine vessel engaged in tuna fishing outside of the
EEZ of the United States or pursuant to the South Pacific Regional
Fisheries Treaty may continue to operate as set out in 46 U.S.C.
12102(c)(5), provided that the owner of the vessel continues to comply
with the fishery endorsement requirements that were in effect on
October 1, 1998.
(f) An individual or entity that is otherwise eligible to own a
vessel with a fishery endorsement shall be ineligible if an instrument
or evidence of indebtedness, secured by a mortgage of the vessel, to a
trustee eligible to own a vessel with a fishery endorsement is issued,
assigned, transferred, or held in trust for a person not eligible to
own a vessel with a fishery endorsement, unless the Commandant
determines that the issuance, assignment, transfer, or trust
arrangement does not result in an impermissible transfer of control of
the vessel and that the trustee:
(1) Is organized as a corporation that meets Sec. 67.39(b) of this
part, and is doing business under the laws of the United States or of a
State;
(2) Is authorized under those laws to exercise corporate trust
powers which meet Sec. 67.36(b) of this part;
(3) Is subject to supervision or examination by an official of the
United States Government or a State;
(4) Has a combined capital and surplus (as stated in its most
recent published report of condition) of at least $3,000,000; and
(5) Meets any other requirements prescribed by the Commandant.
For vessels greater than or equal to 100 feet in length, approval
of such an arrangement from the Maritime Administration will be
accepted as evidence that the above conditions are met and will be
approved by the Commandant. For vessels less than 100 feet, a standard
loan and mortgage agreement that has received general approval under 46
CFR 356.21 will be accepted as evidence that the above conditions are
met and will be approved by the Commandant.
4. Revise Secs. 67.31(b) and (c), and add Sec. 67.31(d) to read as
follows:
Sec. 67.31 Stock or equity interest requirements.
* * * * *
(b) For the purpose of stock or equity interest requirements for
citizenship under this subpart, control of non-fishing industry vessels
includes an absolute right to: Direct corporate or partnership
business; limit the actions of or replace the chief executive officer,
a majority of the board of directors, or any general partner; direct
the transfer or operations of any vessel owned by the corporation or
partnership; or otherwise exercise authority over the business of the
corporation or partnership. Control does not include the right to
simply participate in these activities or the right to receive a
financial return, e.g., interest or the equivalent of interest on a
loan or other financing obligations.
(c) For the purpose of this section, control of a fishing industry
vessel means having:
(1) The right to direct the business of the entity that owns the
vessel;
(2) The right to limit the actions of or to replace the chief
executive officer, the majority of the board of directors, any general
partner, or any person serving in a management capacity of the entity
that owns the vessel;
(3) The right to direct the transfer, the operation, or the meaning
of a vessel with a fishery endorsement.
(d) For purposes of meeting the stock or equity interest
requirements for citizenship under this subpart where title to a vessel
is held by an entity comprised, in whole or in part, of other entities
which are not individuals, each entity contributing to the stock or
equity interest qualifications of the entity holding title must be a
citizen eligible to document vessels in its own right with the trade
endorsement sought.
5. In Sec. 67.35, revise the introductory text and paragraph (b) to
read as follows:
Sec. 67.35 Partnership.
A partnership meets citizenship requirements if all its general
partners are citizens, and:
* * * * *
(b) For the purpose of obtaining a fishery endorsement, at least 75
percent
[[Page 76576]]
of the equity interest in the partnership, at each tier of the
partnership and in the aggregate, is owned by citizens.
* * * * *
6. Amend Sec. 67.36 by revising the introductory text of paragraphs
(a), (b), and (c) and by revising paragraph (b)(2) to read as follows:
Sec. 67.36 Trust.
(a) For the purpose of obtaining a registry or recreational
endorsement, a trust arrangement meets citizenship requirements if:
* * * * *
(b) For the purpose of obtaining a fishery endorsement, a trust
arrangement meets citizenship requirements if:
* * * * *
(2) At least 75 percent of the equity interest in the trust, at
each tier of the trust and in the aggregate, is owned by citizens.
(c) For the purpose of obtaining a coastwise or Great Lake
endorsement or both, a trust arrangement meets citizenship requirements
if:
* * * * *
7. Revise Sec. 67.37 to read as follows:
Sec. 67.37 Association or joint venture.
(a) An association meets citizenship requirements if each of its
members is a citizen.
(b) A joint venture meets citizenship requirements if each of its
members is a citizen.
8. Revise Sec. 67.39 by revising the introductory text of
paragraphs (a), (b), and (c) and by revising paragraph (b)(2) to read
as follows:
Sec. 67.39 Corporation.
(a) For the purpose of obtaining a registry or a recreational
endorsement, a corporation meets citizenship requirements if:
* * * * *
(b) For the purpose of obtaining a fishery endorsement, a
corporation meets citizenship requirements if:
* * * * *
(2) At least 75 percent of the stock interest in the corporation,
at each tier of the corporation and in the aggregate, is owned by
citizens.
(c) For the purpose of obtaining a coastwise or Great Lakes
endorsement or both, a corporation meets citizenship requirements if:
* * * * *
9. Remove Sec. 67.45.
Sec. 67.45 [Removed]
10. Amend Sec. 67.141 by revising paragraph (b) and adding
paragraph (c) to read as follows:
Sec. 67.141 Application procedure; all cases.
* * * * *
(b) Each vessel 100 feet and greater in length applying for a
fishery endorsement must meet the requirements of 46 CFR part 356 and
must submit materials required in paragraph (a) of this section.
(c) Upon receipt of the Certification of Documentation and prior to
operation of the vessel, ensure that the vessel is marked in accordance
with the requirements set forth in subpart I of this part.
11. Add Sec. 67.142 to read as follows:
Sec. 67.142 Penalties.
(a) An owner or operator of a vessel with a fishery endorsement who
violates Chapter 121 of Title 46, U.S. Code or any regulation issued
thereunder is liable to the United States Government for a civil
penalty of not more than $10,000. Each day of a continuing violation is
a separate violation.
(b) A fishing vessel and its equipment are liable to seizure and
forfeiture to the United States Government--
(1) When the owner of the fishing vessel, or the representative or
agent of the owner, knowingly falsifies applicable information or
knowingly conceals a material fact during the application process for
or application process to renew a fishery endorsement of the vessel;
(2) When the owner of the fishing vessel, or the representative or
agent of the owner, knowingly and fraudulently uses a vessel's
certificate of documentation;
(3) When the fishing vessel engages in fishing [as such term is
defined in section 3 of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1802)] within the Exclusive Economic Zone
after its fishery endorsement has been denied or revoked;
(4) When a vessel is employed in a trade without an appropriate
trade endorsement;
(5) When a documented vessel with only a recreational endorsement
operates as a fishing vessel; or
(6) When a vessel with a fishery endorsement is commanded by a
person who is not a citizen of the United States.
(c) In addition to penalties under paragraphs (a) and (b) of this
section, the owner of a vessel with a fishery endorsement is liable to
the United States Government for a civil penalty of up to $100,000 for
each day in which the vessel has engaged in fishing within the
Exclusive Economic Zone, if the owner of the fishing vessel, or the
representative or agent of the owner, knowingly falsifies applicable
information or knowingly conceals a material fact during the
application process for or application process to renew a fishery
endorsement of the vessel.
12. Revise Sec. 67.233(b) to read as follows:
Sec. 67.233 Restrictions on recording mortgages, preferred mortgages,
and related instruments.
* * * * *
(b) A mortgage of a vessel 100 feet or greater in length applying
for a fishery endorsement is eligible for filing and recording as a
preferred mortgage only if it meets the requirements of this part and
the requirements of 46 CFR 356.19.
* * * * *
13. Add subpart V to read as follows:
Subpart V--Exemption From Fishery Endorsement Requirements Due to
Conflict With International Agreements
Sec.
67.350 Conflicts with international agreements.
67.352 Applicability.
Subpart V--Exception From Fishery Endorsement Requirements Due to
Conflict With International Agreements
Sec. 67.350 Conflicts with international agreements.
(a) If you are an owner or mortgagee of a fishing vessel less than
100 feet in length and believe that there is a conflict between 46 CFR
part 67 and any international treaty or agreement to which the United
States is a party on October 1, 2001, and to which the United States is
currently a party, you may petition the National Vessel Documentation
Center (NVDC) for a ruling that all or sections of part 67 do not apply
to you with respect to a particular vessel, provided that you had an
ownership interest in the vessel or a mortgage on the vessel on October
1, 2001. You may file your petition with the NVDC before October 1,
2001, with respect to international treaties or agreements in effect at
the time of your petition which are not scheduled to expire before
October 1, 2001.
(b) If you are filing a petition for exemption with the NVDC for
reasons stated in paragraph (a) of this section, your petition must
include:
(1) Evidence of the ownership structure of the vessel petitioning
for an exemption as of October 1, 2001, and any subsequent changes to
the ownership structure of the vessel;
(i) If you are filing your petition before October 1, 2001, you may
substitute evidence of the ownership structure as it exists on the date
you file your petition;
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(2) A copy of the provisions of the international agreement or
treaty that you believe is in conflict with this part;
(3) A detailed description of how the provisions of the
international agreement or treaty conflict with this part;
(4) For all petitions filed before October 1, 2001, a certification
that the owner intends to transfer no ownership interest in the vessel
to a non-U.S. citizen for the following year.
(5) For all petitions filed after October 1, 2001, a certification
that no ownership interest was transferred to a non-U.S. citizen after
September 30, 2001.
(c) You must file a separate petition for each vessel requiring an
exemption unless the NVDC authorizes consolidated filing. Petitions
should include two copies of all required materials and should be sent
to the following address: National Vessel Documentation Center, 792 TJ
Jackson Drive, Falling Water, West Virginia, 25419.
(d) Upon receipt of a complete petition, the NVDC will review the
petition to determine whether the effective international treaty or
agreement and the requirements of this part are in conflict. If the
NVDC determines that this part conflicts with the effective
international treaty or agreement, then the NVDC will inform you of the
guidelines and requirements you must meet and maintain to qualify for a
fisheries endorsement.
(e) If the vessel is determined through the petition process to be
exempt from all or sections of the requirements of this part, then you
must annually, from the date of exemption, submit the following
evidence of its ownership structure to the NVDC:
(1) The vessel's current ownership structure;
(2) The identity of all non-citizen owners and the percentages of
their ownership interest in the vessel;
(3) Any changes in the ownership structure that have occurred since
you last submitted evidence of the vessel's ownership structure to the
NVDC; and
(4) A statement ensuring that no interest in the vessel was
transferred to a non-citizen during the previous year.
Sec. 67.352 Applicability.
The exemption in this subpart shall not be available to:
(a) Owners and mortgagees of a fishing vessel less than 100 feet in
length who acquired an interest in the vessel after October 1, 2001; or
(b) Owners of a fishing vessel less than 100 feet in length, if any
ownership interest in that vessel is transferred to or otherwise
acquired by a non-U.S. citizen after October 1, 2001.
Dated: November 22, 2000.
Joseph J. Angelo,
Acting Assistant Commandant for Marine Safety and Environmental
Protection.
[FR Doc. 00-31094 Filed 12-6-00; 8:45 am]
BILLING CODE 4910-15-U