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Eligibility of U.S.-Flag Vessels of 100 Feet or Greater in Registered Length To Obtain a Fishery Endorsement to the Vessel's Documentation
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[Federal Register: March 18, 2002 (Volume 67, Number 52)]
[Rules and Regulations]
[Page 11939-11941]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr02-20]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 356
[Docket No. MARAD-2001-10518]
RIN 2133-AB45
Eligibility of U.S.-Flag Vessels of 100 Feet or Greater in
Registered Length To Obtain a Fishery Endorsement to the Vessel's
Documentation
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Final rule.
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SUMMARY: In an interim final rule published on August 31, 2001, the
Maritime Administration (``MARAD,'' ``we,'' ``our,'' or ``us'') amended
our
[[Page 11940]]
regulations implementing the new U.S. citizenship requirements set
forth in the American Fisheries Act of 1998 (``AFA''). MARAD's
regulation, at 46 CFR part 356, contains the substantive requirements
mandated by the AFA and procedural requirements established by MARAD
for administration of the AFA. We promulgated an amendment that
provides us with the ability to waive any procedural requirement, if
there is good cause to do so and the waiver would not be inconsistent
with the AFA and the intent of part 356. The waiver provision was
effective, as an interim final rule, upon publication, but we are now
publishing this waiver provision as a final rule.
DATES: The effective date of this final rule is March 18, 2002.
FOR FURTHER INFORMATION CONTACT: Murray A. Bloom, Citizenship Approval
Officer, Maritime Administration, MAR-222 Room 7228, 400 7th Street,
SW, Washington, DC 20590. Telephone: (202) 366-5320.
SUPPLEMENTARY INFORMATION: The AFA imposes new citizenship requirements
for the owners of vessels of 100 feet or greater in registered length
which hold a fishery endorsement or for which a fishery endorsement is
sought and for entities holding a preferred ship mortgage on such
vessels. We are required by the AFA to ``rigorously'' scrutinize any
transfer of ownership and control over fishing vessels, fish processing
vessels and fish tender vessels. In so doing, we must pay particular
attention to leases, charters, financing arrangements, mortgages, and
other documents to determine if they constitute an impermissible
conveyance of control to persons not eligible to own a vessel with a
fishery endorsement.
MARAD's detailed regulations, 46 CFR part 356, were published in
the Federal Register on July 19, 2000 (65 FR 44859), following notice
and opportunity for submission of comments. The new citizenship
requirements became effective on October 1, 2001. Vessel owners were
directed to submit citizenship affidavits and other documents to us by
June 1, 2001. We have provided information on the new requirements on
MARAD's web site, http://marad.dot.gov/afa.html, 
mailed information to owners of fishing industry vessels and conducted
briefings open to the public.
The new regulations applied for the first time to a population of
individuals who had not communicated or worked with MARAD. Therefore,
we were concerned about circumstances and issues that were not
anticipated by us or the public and that could not be resolved in the
short period of time before October 1, 2001. In addition, we were
concerned that some confusion may have arisen for the public because
the U.S. Coast Guard will administer the AFA's citizenship requirements
with regard to vessels under 100 feet in registered length under its
own procedures. Our concerns were based on actual contacts between
MARAD staff and the public that brought to our attention the potential
for certain inequitable results that could stem from the implementation
of the regulations if MARAD did not have the ability to waive certain
procedural requirements. At that time, we expected to review about 500
affidavits along with underlying articles of incorporation, bylaws,
charters, management agreements, sales agreements and other documents.
In the course of reviewing this large number of complicated
business arrangements, it became apparent that there were
circumstances, often not the fault of the vessel owner, that prevented
us in several instances from making a complete citizenship finding by
October 1, 2001. Our regulations provide the opportunity for the
applicant to work with us to resolve matters prior to issuing a
determination whether the applicant qualifies as a U.S. citizen.
However, the AFA rule would have caused the vessel owner's fishery
endorsement to be deemed invalid on October 1, 2001 if we had not
issued a citizenship determination. Thus, there were times when a
waiver of our procedures would have been appropriate to avoid this
result. Accordingly, MARAD promulgated this amendment to 46 CFR part
356, on August 31, 2001 at 66 FR 45945, which allows us to waive
procedural provisions of the rule not mandated by the AFA. The waiver
provision is not applicable to the substantive requirements set out in
the AFA and the rule. In addition, any waiver must be supported by good
cause shown.
The waiver provision became effective as an interim measure
immediately upon publication on August 31, 2001 so that it was in place
before October 1, 2001, the date when MARAD was required to determine
the U.S. citizenship status of 500-700 vessel owners and operators. The
need to fairly administer the new and intricate requirements of the AFA
within the stringent time constraints fully supports a finding of good
cause, under the Administrative Procedure Act, 5 U.S.C. 553(b) and (d),
that the final rule should be effective upon publication.
Our practical experience with the waiver authority validated our
original assumptions. More than a dozen waivers have been issued so
far. Each waiver was well justified in that they allowed vessel owners
some additional time to revise troublesome provisions of complicated
vessel charters or corporate documents or provided needed time for us
to resolve complex issues. Going forward, we expect the waiver
provision to be used sparingly. However, there is still a need for the
waiver provision, because vessel owners enter into new business
arrangements constantly, and we need to ensure a thorough review of
such arrangements.
We received no comments from the public either in favor or opposed
to making the interim final rule a final rule.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review)
After discussing compliance requirements with interested vessel
owners, operators and mortgagees, we became aware of a need to have a
waiver provision in the AFA regulations so that non-material
discrepancies in a vessel's documentation would not arbitrarily cause a
vessel owner to lose their fishery endorsement. The waiver provision
will not entail any cost to vessel owners, mortgagees, charterers, or
other parties regulated by 46 CFR part 356.
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866. Consequently, it was not
reviewed by the Office of Management and Budget. The economic impact,
if any, should be minimal; therefore, no further analysis is necessary.
This final rule is not significant according to the Regulatory Policies
and Procedures of the Department of Transportation, 44 FR 11034
(February 26, 1979) as it merely allows waiver of administrative and
procedural requirements.
Federalism
We 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
consultation with State and local officials. 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 the various local officials.
Executive Order 13175
MARAD does not believe that this final rule will significantly or
uniquely
[[Page 11941]]
affect the communities of Indian tribal governments when analyzed under
the principles and criteria contained in Executive Order 13175
(``Consultation and Coordination with Indian Tribal Governments'').
Therefore, the funding and consultation requirements of this Executive
Order would not apply.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires us
to consider whether our proposals will have a significant economic
impact on a substantial number of small entities. ``Small entities''
include independently owned and operated small businesses that are not
dominant in their field and that otherwise qualify as ``small business
concerns'' under section 3 of the Small Business Act (15 U.S.C. 632).
This rulemaking may reasonably be expected to affect small businesses
or entities that currently own documented fishing vessels, fish
processing vessels, or fish tender vessels, that have financed such
vessels, or that are engaging in the fisheries of the United States
with such vessels. The Small Business Administration defines businesses
within the fishing industry that have annual receipts of $3 million or
less as small businesses, 13 CFR 121.201. We believe that any cost to
small business entities to comply with this final rule will be minimal,
if any, because this final rule allows waiver of procedural (i.e.,
administrative) requirements that may cause a vessel owner to lose its
fishery endorsement. Therefore, MARAD certifies that this rule will not
have a significant economic impact on a substantial number of small
entities.
Environmental Impact Statement
We have analyzed this rule for purposes of compliance with the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
have concluded that under the categorical exclusions provision in
section 4.05 of Maritime Administrative Order 600-1, ``Procedures for
Considering Environmental Impacts,'' 50 FR 11606 (March 22, 1985), the
preparation of an Environmental Assessment, and an Environmental Impact
Statement, or a Finding of No Significant Impact for this rulemaking is
not required. This rulemaking involves administrative and procedural
regulations that clearly have no environmental impact.
Paperwork Reduction Act
This rulemaking does not establish any new requirement for the
collection of information.
Unfunded Mandates Reform Act of 1995
This final rule will not impose an unfunded mandate under the
Unfunded Mandates Reform Act of 1995. It will not result in costs of
$100 million or more, in the aggregate, to any of the following: State,
local, or Native American tribal governments, or the private sector.
This final rule is the least burdensome alternative that achieves the
objective of the rule.
Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 46 CFR Part 356
Citizenship and naturalization, Fishery endorsement, Fishing
vessels, Mortgages, Mortgage trustee, Penalties, Preferred mortgages,
Reporting and recordkeeping requirements, Vessels.
For the reasons discussed in the preamble, MARAD amends 46 CFR part
356 as follows:
PART 356--REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN
REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S
DOCUMENTATION
1. The authority citation for 46 CFR part 356 is revised to read as
follows:
Authority: 46 App. U.S.C. 12102; Public Law 105-277, Division C,
Title II, Subtitle I, section 203 (46 App. U.S.C. 12102 note),
section 210(e), and section 213(g), 112 Stat. 2681; 49 CFR 1.66.
2. For the convenience of the reader, 3356.2 is republished to read
as follows:
Sec. 356.2 Waivers.
In special circumstances and for good cause shown, we may waive the
procedures prescribed in this part, provided the waiver is consistent
with the requirements of the AFA and with the intent of this part.
Dated: March 11, 2002.
By Order of the Maritime Administrator.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 02-6304 Filed 3-15-02; 8:45 am]
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