[Federal Register Volume 59, Number 179 (Friday, September 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22865]


[[Page Unknown]]

[Federal Register: September 16, 1994]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 298

[Docket No. R-150]
RIN 2133-AB09

 

Obligation Guarantees

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Final rule.

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SUMMARY: The Maritime Administration (``MARAD'') is issuing this final 
rule which amends its regulations for Obligation Guarantees 
implementing Title XI of the Merchant Marine Act, 1936, as amended 
(``Act''). This rule will carry out the provisions of Subtitle D of 
Title XIII, Public Law 103-160, enacted on November 30, 1993. Subtitle 
D authorizes the Secretary of Transportation (``Secretary'') to 
guarantee obligations issued to finance (1) the construction, 
reconstruction, or reconditioning of eligible export vessels, and (2) 
advanced shipbuilding technology and modern shipbuilding technology of 
a general shipyard facility located in the United States. While Title 
XI of the Act is applicable to financing assistance for all types of 
vessel construction, that part of the Title XI program related to 
fishing vessels is administered by the National Oceanic and Atmospheric 
Administration of the Department of Commerce, (NOAA), pursuant to NOAA 
regulations, which appear at 50 CFR Part 253. Subtitle D of Title XIII 
directed the Secretary to prescribe interim regulations within 90 days 
after the date of enactment and a final rule within 270 days after 
enactment. MARAD published an interim final rule on March 31, 1994, and 
is now issuing this final rule that reflects its consideration of only 
those comments received that addressed the specific subject matter of 
the interim final rule.

EFFECTIVE DATE: This final rule is effective September 16, 1994.

FOR FURTHER INFORMATION CONTACT: Mitchell D. Lax, Director, Office of 
Ship Financing. Telephone 202-366-5744.

SUPPLEMENTARY INFORMATION: Title XI of the Act, 46 App. U.S.C. 1271 et 
seq., authorizes the Secretary to provide guarantees of debt 
(``obligation guarantees'') issued for the purpose of financing or 
refinancing the construction, reconstruction or reconditioning of 
vessels built in United States shipyards. Applications for obligation 
guarantees are made to MARAD, which acts under authority delegated by 
the Secretary to the Maritime Administrator (``Administrator''). Prior 
to execution of a guarantee, MARAD must, among other things, make 
determinations of economic soundness of the project and the financial 
and operating capability of the applicant. Prior to amendment by Public 
Law 103-160, guarantees could be issued only for debt incurred by 
United States citizens for vessels to be operated under the U.S.-flag. 
Now, guarantees may be issued with respect to debt obligations for 
certain vessels flying foreign flags.
    The Title XI program enables owners of eligible vessels to obtain 
long-term financing on terms and conditions and at interest rates 
comparable to those available to large and financially strong 
corporations. Funds secured by the obligation guarantees that are used 
for financing a vessel are borrowed in the private sector.
    Public Law 103-160, the ``National Defense Authorization Act for 
Fiscal Year 1994'' (``Authorization Act''), was enacted on November 30, 
1993. Subtitle D of Title XIII of the Authorization Act, the ``National 
Shipbuilding and Shipyard Conversion Act of 1993'' (``Shipbuilding 
Act''), establishes a National Shipbuilding Initiative (NSI) program to 
support the industrial base and national security objectives by 
assisting in the reestablishment of the United States shipbuilding 
industry as a self-sufficient internationally competitive industry. It 
adds new sections 1111 and 1112 to the Act.
    New section 1111 applies to vessels and provides that the Secretary 
may guarantee obligations for eligible export vessels in accordance 
with the same terms and conditions of Title XI as have been applicable 
to vessels documented under United States law. Alternatively, the 
Secretary may guarantee obligations in accordance with such other terms 
as the Secretary determines to be more favorable than the terms 
otherwise provided in Title XI and to be compatible with export credit 
terms offered by foreign governments for the sale of vessels built in 
foreign shipyards.
    Section 1111 also establishes an Interagency Council to ``obtain 
information on shipbuilding loan guarantees, on direct and indirect 
subsidies, and on other favorable treatment of shipyards provided by 
foreign governments to shipyards in competition with United States 
shipyards.'' New section 1112 applies to shipyards and provides that 
the Secretary may guarantee the payment of the principal of, and the 
interest on, obligations for advanced shipbuilding technology and 
modern shipbuilding technology of general shipyard facilities located 
in the United States.
    Hereinafter in the discussion of this rule, the use of initial 
capital letters in a term will indicate that it is a defined term in 
this Part 298.
    The Act presently provides a limitation of 75 percent or 87\1/2\ 
percent of the amount of Actual Cost which can be guaranteed, depending 
on the category of Vessel financed. However, in 1985 MARAD formalized 
the policy, begun in 1982, of issuing Guarantees of no more than 75 
percent of the Actual Cost of a project in reaction to the growing 
number of defaults in several industry segments. As amended, the 
regulations now require a 25 percent equity contribution in every case. 
The Shipbuilding Act prohibits the Secretary from establishing any 
lesser percentage than set by statute that is intended to be applied 
uniformly to all Guarantees that are subject to the limitation.
    Subtitle D of Title XIII also makes conforming amendments to Title 
XI of the Act to reflect the new authority of the Secretary to issue 
Guarantees of debt Obligations used to finance Eligible Export Vessels 
and shipyard modernization and improvement, in the form of Advanced 
Shipbuilding Technology or Modern Shipbuilding Technology, abbreviated 
in this discussion as ``AST/MST'', and referred to at some places in 
the text as ``Advanced or Modern Shipbuilding Technology.'' It 
restricts the total value of all Guarantees for shipyard modernization 
and improvement to not more than 12\1/2\ percent of the funds available 
per year for loan Guarantees from funds transferred from the Secretary 
of Defense pursuant to section 108 of the National Defense 
Authorization Act for Fiscal Year 1994.
    As specifically authorized by the Shipbuilding Act that became 
effective on November 30, 1993, MARAD published conforming amendments 
to its Title XI regulations, as an interim final rule (59 FR 5123-33; 
March 31, 1994), effective on publication, to avoid delay in 
implementation of the new law that could adversely impact the NSI 
program. This interim final rule was intended to minimize transitional 
uncertainty, while allowing subsequent fine-tuning of these regulations 
based on the opportunity for considered evaluation of comments from 
interested parties before adopting a final rule.
    It was stated that whenever reference is made in the interim final 
regulations to forms prescribed by MARAD for applications or other 
filing requirements, the format of such forms in effect prior to the 
effective date of these regulations may be used pending revision and 
issuance of new forms to be approved by the Office of Management and 
Budget. To the extent necessary to reflect statutory requirements, any 
form submitted may be modified or supplemented to facilitate 
processing, but, until new forms have been approved, these regulations 
do not require more extensive paperwork or reporting requirements than 
exist under the present Title XI regulations. Exemptions provided 
herein should substantially lessen the aggregate reporting burden.

Discussion of Rulemaking Text

    The discussion that follows summarizes the comments submitted to 
MARAD by 28 commenters on the interim final rule, notes where changes 
have been made to it and the rationale therefor and, where relevant, 
states why particular recommendations have not been adopted. In 
addition to soliciting comments on the interim final rule amendments to 
the Title XI regulations, MARAD requested public comment on two 
additional topics: (1) The issuance by the Secretary of a Letter of 
Interest prior to an applicant's submission of a complete application 
and the subsequent issuance, if any, of a Letter Commitment, and (2) 
the establishment of a deadline, such as 60 days, by which the 
Secretary would act on a Title XI application considered complete by 
the Secretary.
    Almost all commenters responded favorably to the proposal that the 
Secretary exercise discretion to issue a Letter of Interest prior to 
the applicant's submission of a complete application. Commenters noted 
that the procedure could be particularly useful if the shipbuilder 
could use the document as a marketing document to compete effectively 
against foreign yards that may be able to offer firm financing on the 
satisfaction of simple conditions. Some suggested that if MARAD were 
also to preapprove ship designs, Letters of Interest would be very 
effective indicators of MARAD's interest in a proposed financing. One 
commenter suggested that Letters of Interest could be used by 
applicants to forecast the cost of a transaction and the expertise that 
will be needed to complete a proposed transaction.
    Commenters proposed that requests for Letters of Interest should 
contain information about (1) the type and design of the Vessel to be 
financed and its intended trade, (2) the approximate cost of the Vessel 
and its proposed builder, (3) the amount of the requested Guarantee, 
(4) recent financial information on the prospective shipowner or 
bareboat charterer, (5) a description of the collateral to secure the 
Secretary's Guarantee, and (6) identification of the country in which 
the vessel would be owned and documented. A commenter recommended that 
there be no charge or fee for the issuance of a Letter of Interest, 
that the letter be issued prior to the filing of an application, and 
that the letter be issued within ten days of the request.
    Several commenters raised two concerns about Letters of Interest. 
First, they argued that requests for such Letters must be treated 
confidentially because a request for a Letter may come during the 
negotiating process and the requester shipyard would not want its 
competitors to be aware of the negotiations or potential prices. A 
second concern raised was that the formalization of a Letter of 
Interest procedure could slow down the expeditious approval by MARAD of 
loan guarantee applications by increasing the burden on MARAD or by 
effectively duplicating the formal application process. It was 
suggested by one commenter that MARAD could substitute preapplication 
meetings for the Letter of Interest. Additional concern was expressed 
that the conditions contained in a Letter of Interest should not be 
deemed by the agency to be binding if the applicant later demonstrates 
that it can meet alternative, but equivalent, conditions.
    Many commenters thought that the 60-day processing period for 
completed applications was reasonable, appropriate, and adequate.
    Some commenters suggested a shorter period of 30 days as conforming 
more closely to international commercial norms. Some shipyards were 
concerned that the 60-day turnaround is noncompetitive in the 
international market because a ``complete'' application may in itself 
take more than 60 days to draft. They suggested that guidelines would 
be necessary to define the procedures for submitting a complete 
application. Some suggested that for a pre-approved ship design, MARAD 
should be able to issue Letter Commitments within 30 days, and 
suggested that MARAD review its application requirements to ensure that 
it is not requiring burdensome information. One commenter suggested 
that a deadline for processing completed applications is an unnecessary 
requirement.
    MARAD Response: The discussion of the interim final rule stated 
that a separate Notice of Proposed Rulemaking (NPRM) would be published 
at a later date that would propose modifications to the Title XI 
regulations to improve administration of the entire Title XI program. 
Such modifications were not addressed in the interim rule because they 
were not required to implement the amendments made to Title XI 
resulting from enactment of the Shipbuilding Act. MARAD has determined 
that the two specific areas on which comments were solicited--the 
Letter of Interest and a deadline, such as 60 days, for processing a 
complete Title XI application--should be addressed in the NPRM because 
they apply to both the export and domestic programs. This will allow 
MARAD to deal with the issues at the same time. Commenters need not 
resubmit their views on Letters of Interest and the 60-day processing 
period in response to the new rulemaking. Meanwhile, MARAD will 
consider requests for Letters of Interest and will make every effort to 
finish its review of completed applications within 60 business days.

Discussion of Regulations by Sections

    Note: Paragraph references are as designated or redesignated in 
the interim final rule.

Section 298.2  Definitions

    (c) Advanced Shipbuilding Technology (``AST''). Some shipyards 
urged that the requirement that AST/MST be located at a ``general 
shipyard facility'' should not preclude the design, development and 
construction of ship-borne AST/MST or mobile marine equipment that 
incorporates such technology.
    MARAD Response: The statutory definition of a General Shipyard 
Facility includes a ``Vessel'' designed for the construction, repair, 
rehabilitation, refurbishment or rebuilding of any vessel. To the 
extent that such a Vessel incorporated the AST/MST, the regulations 
would not preclude their eligibility for a Guarantee.
    (e) Closing. Certain shipyard commenters requested that the 
definition of ``Closing'' be amended to clarify that a Mortgage is not 
issued at every closing and that a Mortgage may not be available for 
collateral that does not constitute realty.
    MARAD Response: MARAD believes that the current regulations are 
sufficiently clear. To constitute a ``Closing'' under MARAD's 
regulations, a Mortgage need not be required.
    (f) Depository. A number of commenters argue that it is unfair for 
MARAD to allow foreign Vessel owners and operators to use as a 
Depository foreign financial institutions that are not available to 
U.S. Vessel owners and operators that participate in the Title XI 
program. One commenter was in favor of allowing foreign institutions in 
foreign countries to act as Depositories for Eligible Export Vessels. 
One commenter stated that the Commonwealth of Puerto Rico should be 
specifically added to the definition of Depositories acceptable under 
the domestic program and another stated that it assumes the definition 
of Depository will not exclude foreign branches of U.S. banks.
    MARAD Response: When a Shipowner or charterer fails to maintain an 
agreed financial condition, Title XI documents require that it make 
certain payments from its net cash flow to the Depository as collateral 
for MARAD. MARAD agrees that, for reasons related to the enforceability 
of its collateral interests, there is insufficient reason to allow 
foreign Depositories for Eligible Export Vessels or Vessels in the 
domestic program. To clarify further the range of acceptable financial 
institutions allowed in the Eligible Export Vessel Program, MARAD has 
explicitly added financial institutions located in the Commonwealth of 
Puerto Rico, and, with the subsequent specific approval of MARAD, 
foreign branches of U.S. financial institutions as acceptable 
Depository institutions, to hold Vessel charter hire and Reserve Funds.
    (i) Eligible Export Vessel. A number of commenters stated that the 
definition of Eligible Export Vessels was too ``vague'' and should be 
clarified to include all vessel types within the scope of 298.2(bb), 
the definition of ``Vessel.''
    MARAD Response: The regulations provide that an Eligible Export 
Vessel means a ``vessel'' with certain characteristics and they also 
provide a more comprehensive definition of ``Vessel.'' MARAD intended 
the term Eligible Export Vessel to include the definition of Vessel. 
The clarification sought by commenters is obtained by amending section 
298.2(i) to read: ``Eligible Export Vessel means a Vessel 
``constructed, reconstructed, or reconditioned in the United States for 
use in world-wide trade that will, upon delivery or redelivery, be 
placed under or continued to be documented under the laws of a country 
other than the United States.''
    (k) General Shipyard Facility. Many shipyards requested a 
clarification of whether a General Shipyard Facility must be 
geographically contiguous or whether there may be various components of 
the facility in different locations if it can be shown that there is an 
economically feasible means to achieve increases in productivity, 
efficiency and quality.
    With respect to paragraph (k)(2), relating to a Vessel, floating 
drydock, or barge that constitutes a General Shipyard Facility and that 
must be ``built in the United States,'' one commenter requested 
clarification that the phrase ``built in the United States'' has the 
same meaning in this context as it does for Vessels.
    MARAD Response: The Shipbuilding Act does not explicitly address 
this question of geographic locations of a yard. There is no 
requirement that the components of a shipyard facility be 
geographically contiguous. A shipyard might have supply depots or 
machine shops several blocks away or farther from its main structures 
and these geographically separate buildings would, obviously, still be 
considered part of the yard. For purposes of shipyard modernization and 
improvement projects, the test that MARAD uses is whether the 
facilities at multiple locations, whether owned or leased, are part of 
the common enterprise, whether their activities are wholly or almost 
entirely devoted to the construction, repair, rehabilitation, 
refurbishment or rebuilding of any Vessel, and whether the shipyard 
applicant has management and control over the project and the personnel 
employed at each of the locations, whether owned or leased. The 
regulation is consistent with MARAD's position and, with this 
clarification, need not be amended.
    MARAD agrees that the legislative requirement that the floating 
shipyard facility be built in the United States is intended to meet the 
same standard as U.S.-flag Vessels built with Title XI. Accordingly, 
the definition of a Vessel, floating drydock, or barge that constitutes 
a General Shipyard Facility has been amended to require a showing, in 
the yard's application for a shipyard modernization Guarantee, that it 
meets the section 298.11(a) standards with respect to a Vessel deemed 
to be of U.S. construction.
    (q) Modern Shipbuilding Technology. Many shipyards commented that 
Title XI financing should be available to a shipyard for any item that 
will enhance the shipyard's competitiveness and capabilities even 
though such items do not constitute the ``best available proven 
technology, techniques and processes'' as ``Modern Shipbuilding 
Technology'' is defined. It was argued that an application for 
financing should not be rejected because, standing alone, it does not 
``advance the state-of-the-art.''
    MARAD Response: MARAD agrees that the intent of the statute and 
regulation is to allow flexibility in determining whether a project 
promotes the purpose of the Shipbuilding Act and whether it constitutes 
AST/MST. An application for a Guarantee should not be rejected merely 
because it does not ``advance the state-of-the-art'' or exceed the 
``best available'' processes of shipyards around the world. It is 
MARAD's interpretation of the statutory term that it will be sufficient 
if a proposed project substantially advances the state-of-the-art or 
best available processes of an applicant shipyard and makes it more 
competitive internationally. The regulation has been rewritten to 
clarify MARAD's position.
    (r) Mortgage. Several commenters noted that the reference to 46 
U.S.C. 31322 was confusing and recommended that it be changed to 46 
U.S.C. 31301. Another commenter recommended that the rule should permit 
the use of valid security interests as a reasonable substitute when 
mortgages are not available. An additional commenter argued that MARAD 
should delete its reference to ``first mortgage'' as it relates to AST/
MST, arguing that MARAD would then retain its flexibility to allow co-
financing with pari passu mortgages. Another commenter suggested that 
the use of the word ``enforceable'' before ``preferred mortgage'' was 
unnecessary.
    MARAD Response: The reference in section 298.2(r) has been amended 
to refer to section 298.2(x), Preferred Mortgage, which sets out in 
detail the requirements, among other things, for a foreign mortgage on 
an Eligible Export Vessel, relying on 46 U.S.C. 31301. The rule already 
provides in section 298.31 for the use of other security interests when 
Mortgages are unavailable or inappropriate. MARAD believes that it may 
have a first Mortgage and still enter into pari passu relationships. 
Such relationships are often the rule in co-financing arrangements. In 
any event, there is nothing in Part 298 that would preclude MARAD from 
accepting other security interests in addition to, or instead of, a 
Mortgage. The use of the word ``enforceable'' before Preferred Mortgage 
is surplus and has been removed, given the requirements regarding 
Mortgages in section 298.31(a).
    (w) Person. One commenter suggested that the definition of 
``Person'' be expanded to include entities that are recognized under 
the laws and regulations of a relevant jurisdiction that might not fit 
neatly under MARAD's definition. No examples were offered.
    MARAD Response: MARAD believes that, in the absence of any examples 
of a deficiency in the definition, the existing definition of Person, 
which includes an ``individual'' and ``unincorporated organization,'' 
among many others, is sufficiently broad to encompass any applicant 
likely to apply, whether a U.S. or foreign entity. To ensure that the 
definition is completely clear, however, MARAD has added the phrase 
``or other acceptable legal business entity,'' after the words 
``unincorporated organization'' in paragraph (w).
    (x) Preferred Mortgage. With respect to a Preferred Mortgage, one 
commenter stated that the reference to 46 CFR 221.43 is incorrect and 
suggested that it should refer to section 221.31.
    MARAD Response: The reference to section 221.43 is incorrect, and 
it should be to 46 CFR 221.23(d). Furthermore, MARAD notes that the 
interim final rule inadvertently deleted former provision (s)(4)(vi). 
That provision has been restored in the final rule and is redesignated 
as paragraph (x)(1)(iv)(F). Also, paragraph(x)(3) has been amended to 
recognize that a Mortgage or other security interest on a foreign-
documented Vessel can qualify as a Preferred Mortgage pursuant to 46 
U.S.C. 31301(6)(B).
    Section 298.2(bb). Most commenters objected to the provision 
precluding U.S. citizens from owning Eligible Export Vessels. They 
viewed the provision as discriminating against U.S. citizens and giving 
unfair preferences to foreign owners. Almost all of those objecting 
argued that the prohibition against U.S. citizens owning Eligible 
Export Vessels went beyond the provisions of the statute and some 
argued that it was inconsistent with the intent of Congress to 
eliminate ``burdensome citizenship requirements.'' By contrast, one 
commenter contended that the prohibition of ownership by U.S. citizens 
was consistent with congressional intent. Some argued that the statute 
eliminated all citizenship requirements except for fishing vessels and 
oceanographic research or instruction or pollution treatment abatement 
or control vessels. Some commenters were concerned that MARAD's 
regulatory stance would limit the customer base and improperly 
restrict, rather than expand, the true scope of the Shipbuilding Act. 
One commenter asserted that the proscription of U.S. ownership could be 
easily evaded by imaginative corporate structuring and the use of 
charters. Finally, it was argued that MARAD should encourage U.S. 
ownership of Eligible Export Vessels as a matter of national security.
    MARAD Response: There is no statutory preclusion to U.S. companies 
participating in the Eligible Export Vessel program. The Vessels will 
be delivered in the United States from a U.S. shipyard to a buyer for 
operation in worldwide trade under the documentation of a country other 
than the United States, as the statute requires. A number of 
``American'' companies are, in fact, multi-national companies, and 
regularly order Vessels from foreign shipyards. Congress intends 
American shipyards to enter into the international market, and no sound 
reason exists to preclude U.S. shipyards from competing for this 
portion of the international commercial business. Accordingly, MARAD 
has removed the prohibition on U.S. ownership from the definition of an 
Eligible Export Vessel.

Section 298.3  Applications

    Certain shipyards were concerned about the disclosure provision in 
subsection (d), Confidential information, concerning the disclosure 
requirements of the Freedom of Information Act (``FOIA''), 5 U.S.C. 
552, for two reasons: (1) That in international circles, financing 
applications are treated with strict confidence; and (2) the added 
expense of lawyers' fees for opposing a FOIA request render the Title 
XI programs non-competitive.
    MARAD Response: MARAD has no authority to amend the FOIA or the 
Administration's policy that it is to be liberally construed in favor 
of disclosure. On the other hand, while MARAD has not modified this 
section, it will continue to refuse to disclose information that is 
deemed by MARAD to be confidential, pursuant to legal authority 
interpreting the meaning of FOIA exemption (b)(4), because it would be 
likely to cause substantial harm to the competitive position of the 
person from whom it was obtained. MARAD is, of course, also bound by 
the Trade Secrets Act, 18 U.S.C. 1905, for unauthorized disclosures by 
Government officials of proprietary information that is exempt from 
disclosure under the FOIA, which, among other things, makes it a 
criminal act to release certain financial information such as a 
company's balance sheets, bids, or other proprietary information.
    With respect to paragraph (e), Priority, some shipyards expressed 
concern that it accords unjustified priority to (1) ``naval and 
military auxiliary'' vessels, (2) Vessels seeking domestic Title XI 
financing (in that MARAD must review applications for financing for 
Eligible Export Vessels in light of those for domestic vessels), and 
(3) shipyards engaged in naval vessel construction as well as pilot 
programs for shipyard modernization and vessel construction.
    MARAD Response: As a matter of maritime policy, MARAD accords 
priority for ``naval and auxiliary'' Vessels only in the domestic Title 
XI program. As for any impact on domestic Vessels, MARAD is required by 
statute to review applications regarding Eligible Export Vessels in 
light of the same standards as apply to Vessels to be documented under 
U.S. law. See section 1103(g)(1) of the Act. Any relief in this regard 
must come from Congress.
    Regarding the priority for shipyards engaged in both naval 
construction and pilot programs for shipyard modernization, such 
priority reflects the intent of Congress in facilitating the conversion 
of shipyards that have previously engaged in naval construction to 
commercial activities. The Title XI legislation is part of the National 
Shipbuilding Initiative, which also includes a technology development 
program for innovative commercial ship design and production processes 
and technologies. MARAD intends to administer the Title XI program in a 
manner that achieves the purposes of the National Shipbuilding 
Initiative.
    In addition, the priority in paragraph (e) for General Shipyard 
Facilities that have engaged in naval vessel construction is mandated 
by section 1359(a)(3) of the Shipbuilding Act with respect to amounts 
appropriated by the Secretary of Defense and available for transfer to 
the Secretary of Transportation.

Section 298.10  Citizenship

    This section sets forth the citizenship requirements for Title XI 
applicants and certain other parties that must establish U.S. 
citizenship prior to acquiring a legal or beneficial interest in a 
Vessel financed under Title XI of the Act. The exceptions to this 
requirement are Eligible Export Vessels and Eligible Shipyards.
    One commenter stated that Section 298.10 should be deleted because 
Title XI of the Act no longer contains a citizenship requirement. 
Another commenter stated that the intent of Congress was to eliminate 
the citizenship requirement for all vessels financed under Title XI, 
not just Eligible Export Vessels. One commenter stated that the 
citizenship requirement in the 1936 Act applies only to a ``fishing 
vessel or oceanographic research or instruction or pollution treatment, 
abatement or control vessel or Eligible Export Vessel.''
    A commenter pointed out that the parenthetical phrase in new 
paragraph (e), Exemption, should exclude ``operators'' in order to 
exempt those entities from being required to prove U.S. citizenship. 
Another recommended deletion of this section because all U.S. 
citizenship requirements have been deleted for Title XI and stated that 
as long as U.S. Coast Guard requirements are satisfied, MARAD should 
impose no additional requirements on U.S. citizens that could result in 
discrimination and additional costs.
    MARAD Response: The position of MARAD is that Section 1101(b) of 
the Act (46 App. U.S.C. 1271(b)), which was not amended by the 
Shipbuilding Act, requires that Vessels, other than Eligible Export 
Vessels, be owned by citizens of the United States as defined by 
section 2 of the Shipping Act, 1916, as amended, 46 App. U.S.C. 802, 
(the ``Shipping Act''). There is no legal requirement that a shipyard 
be owned by a Section 2 U.S. citizen. Review of the Shipbuilding Act 
and Title XI does not support the commenter's suggestion that the 
citizenship requirement for Vessels only applies to ``fishing vessels 
or oceanographic research or instruction or pollution treatment, 
abatement or control vessel.'' Likewise, a review of the legislative 
history of the Shipbuilding Act reveals no statement to eliminate the 
citizenship requirement for all Vessels financed under Title XI. The 
statute explicitly requires Section 2 citizen ownership of such 
Vessels, other than Eligible Export Vessels. If a bareboat charterer or 
other operator desires possession and control of U.S.-flag Vessels, the 
Shipping Act requires that it be a U.S. citizen or obtain MARAD's prior 
approval to charter or operate the Vessel. Consistent with that 
requirement, it has always been MARAD's policy that Title XI Vessels 
may not be bareboat chartered to, or be operated by, non-U.S. citizens. 
There is no reason to change this position now. Accordingly, bareboat 
charterers and other ``operators'' of U.S. flag Vessels will remain 
subject to section 298.10(a). No amendment to paragraph (e) is 
warranted in view of MARAD's disposition of the citizenship issues.

Section 298.11  Vessel Requirement

    Concerning paragraph (a), United States Construction, certain 
shipyards claimed that many component parts are manufactured abroad and 
are not available in the United States, and others pointed out that 
U.S. Coast Guard U.S-built requirements relate to vessels operating in 
the coastwise trade, which are the most restrictive of all. 
Accordingly, they recommended excepting Eligible Export Vessels from 
these requirements; or that foreign made components are excepted so 
long as they are ``physically joined'' in this country; or amendment of 
this section to permit use of foreign made components so long as they 
do not exceed 49 percent of the Vessel's weight.
    MARAD Response: Paragraph (a), United States Construction, has been 
amended to remove the requirements for fabrication in the United States 
of components of the hull and superstructure for Eligible Export 
Vessels. Corresponding changes in Secs. 298.13 and 298.21(c) will make 
it clear that even though foreign components of the hull and 
superstructure may be included for Eligible Export Vessels, these costs 
will not be eligible for Title XI loan Guarantees. The intent is to 
allow hull and superstructure components from worldwide sources so as 
to allow the maximum integration of foreign and U.S. shipyard 
production as U.S. shipyards may desire for economic and/or competitive 
reasons in order to penetrate the international commercial market, 
without financing the foreign components of the hull and 
superstructure. Nonetheless, consistent with MARAD's policy since 1986, 
raw and improved products, such as unshaped, unmolded and unpunched 
steel can be imported and used in the production of the hull and 
superstructure without being excluded from Actual Cost as they are not 
deemed to be ``components'' of the hull and superstructure.
    Paragraph (c), Class, condition, and operation, was amended in the 
interim final rule to allow Vessel classification by members of the 
International Association of Classification Societies (IACS) ``to be 
ISO-9000 certified'', rather than restricting classification authority 
to the American Bureau of Shipping (ABS). With respect to Vessel 
classification, all but one commenter favored allowing Vessel 
classification by all members of the IACS; the ABS stated that this 
amendment would be contrary to law at 46 U.S.C. 3316(b) and could place 
the government's security in serious jeopardy.
    One commenter stated that the statute only requires the ABS, and 
not other IACS members, to be ISO-9000 certified. Another commenter 
proposed that IACS members should be certified to the ``IACS-Quality 
System Certification Scheme (QSCS),'' rather than the ISO-9000 
standard. As to compliance with laws and regulations, several 
commenters requested that the provision be clarified to state that 
Eligible Export Vessels need comply only with all applicable laws, 
rules and regulations of the country of registry, and treaties and 
conventions to which the country of registry is a party, or the laws of 
the ports it serves.
    MARAD Response: MARAD disagrees with the comment that MARAD is 
required to recognize solely the ABS as its agent in all matters 
related to Vessel classification. It is MARAD's position that it has 
the authority under section 1104A(b)(6) of the Act to set 
classification standards for Eligible Export Vessels without relying on 
the classification standards of ABS. Section 1104A(b)(6) of the Act 
specifically states that the guaranteed vessel ``shall be in class A-1, 
American Bureau of Shipping, or shall meet such other standards as may 
be acceptable to the Secretary * * *.'' There was nothing in the 
subsequent enactment of 46 U.S.C. 3316(b) that either explicitly or 
implicitly repealed MARAD's ``other standard'' authority. That phrase 
is not limited to a different ABS class than A-1, as ABS contends. For 
instance, ABS does not class all Vessels eligible for Title XI loan 
Guarantees. MARAD does not believe that the government's security will 
be in serious danger if the Vessel is not maintained in Class A-1 ABS, 
so long as it is classified by an IACS member in accordance with MARAD-
approved standards.
    However, MARAD does not agree that the QSCS standard is more 
appropriate than the ISO 9000 standard. MARAD believes that the ISO 
9000 series reflects a broader and more appropriate set of 
classification standards, and should be required. MARAD agrees 
essentially with the comments about the applicability of U.S. laws and 
regulations and has modified this provision accordingly to clarify that 
Eligible Export Vessels need not comply with all U.S. laws and 
regulations as to Vessel condition and operation, but must be 
constructed in accordance with the requirements of the International 
Maritime Organization that are in force at the time of the Vessel's 
delivery.

Section 298.12  Applicant and Operator's Qualifications

    One commenter suggested that this section be expanded to include 
the concept that a shipyard may be the applicant for Guarantees for 
Eligible Export Vessels and may be the initial party to the 
documentation, with the ultimate purchaser assuming the obligations of 
the contracts as a party upon delivery of the Vessel. Another commenter 
stated that the information required with regard to the identity and 
ownership of the applicant by paragraphs (b)(1)(v) and (vi), which were 
not amended by the interim final rule, is primarily relevant to 
establishing citizenship and should not be required of applicants for 
Eligible Export Vessel Guarantees. A commenter stated that the content 
of this section does not recognize certain structures for corporate 
entities that exist only in foreign countries, e.g., a ``Gmbh'' under 
German law, and suggested that there be a separate section for foreign 
applicants. That commenter also stated that the required disclosure in 
paragraph (c)(4) of whether the applicant or a predecessor has been 
``in default . . . with others'' during the past five years needs 
clarification and should be limited to a default with respect to a 
financial instrument that gave rise to a right of the non-defaulting 
party to receive accelerated payment.
    With respect to the information sought by MARAD in paragraph (c) 
concerning the applicant's structure, business applications, activities 
and management, a commenter remarked that the expense to the 
``smaller'' applicant may be burdensome, particularly where legal and 
accounting services are required, which services are excluded from the 
project's Actual Cost, and that the Secretary's ``waiver authority'' in 
section 298.13 (``Modified requirements'' in paragraph (h)) should be 
amended to exempt such applicants for Guarantees for Eligible Export 
Vessels from having to provide such information. Another commenter 
stated that the information required by paragraph (f)(2) concerning all 
management personnel of an Eligible Shipyard applying for a Guarantee 
for AST/MST is too broad and should be limited to senior supervisory 
personnel of the shipyard.
    MARAD Response: A shipyard can be an applicant for a loan Guarantee 
under the existing regulations. The shipyard would, like all 
applicants, be required to demonstrate successfully that it meets the 
regulatory requirements for the program, i.e., that, among other 
things, it is creditworthy to be the Obligor for the guaranteed 
Obligations, has an economically sound use for the Vessel, and can 
offer sufficient collateral for the guaranteed Obligations. Building a 
ship solely on the speculative hope that it could be sold would not 
qualify. A shipyard, like any qualified Obligor, could transfer the 
Title XI obligation before or after delivery to a qualified purchaser 
with the consent of MARAD. No amendment to the regulation is necessary 
as such transfer is allowed as a matter of contract.
    Paragraph (b) prescribes the type of information an applicant is 
expected to provide about its identity and ownership, depending on the 
structure of the organization. The example (``Gmbh'') cited by the 
commenter is the term used to denote a German limited liability 
company, generally comparable to a U.S. corporation. Such a company 
would file under paragraph (b)(1) of the regulations. To accommodate 
all possible applicants, MARAD has added a new paragraph (b)(4) stating 
that MARAD will inform any entity that does not fit the other 
descriptions in paragraph (b) concerning the information it should 
submit about its identity and ownership. MARAD will consider the 
comments it has received with regard to information required by 
paragraph (b)(1)(v) and (b)(1)(vi), regarding ownership of capital 
shares, when preparing the subsequent rulemaking concerning the 
administration of the entire Title XI program.
    MARAD sees no reason to change the present wording of paragraph 
(c)(4) requiring business data for small firms. The proposal that MARAD 
limit the information it receives on defaults to defaults on financial 
instruments that give rise to accelerated payments is far too limited. 
MARAD collects this information in order to discover needed information 
about the applicant's creditworthiness and its business experience and 
status. Information about its defaults, such as defaults on overdue tax 
liability or even on technical security defaults, can give MARAD 
valuable information on which to make a decision. For similar reasons, 
MARAD rejects the suggestion that it amend paragraph (h) to exempt the 
``smaller'' applicant from describing its structure, activities, and 
management. The requested information is necessary for making a proper 
evaluation and assessment of the applicant regardless of its financial 
and organizational size.
    MARAD does agree with the comment proposing that the information 
sought by paragraph (f)(2) concerning management personnel of an 
Eligible Shipyard is too broad. Accordingly, MARAD has amended the 
provision to limit the information to that concerning senior 
supervisory personnel in the yard.

Section 298.13  Financial Requirements

    A commenter stated with respect to paragraph (a)(2)(i), which was 
not amended by the interim final rule, that the exclusion from the cost 
of the project (Actual Cost) of foreign equipment and services, unless 
a waiver is specifically granted, should be deleted, along with the 
section 298.32(a)(6) required provision in the documentation for use of 
articles, materials, and supplies of U.S. growth production or 
manufacture, because these are Buy American provisions that are 
obsolete (by virtue of a 1986 amendment to section 298.11(a)). With 
respect to Eligible Export Vessels, comments in behalf of U.S. 
shipyards cited many reasons militating against exclusion of non-U.S. 
components from Actual Cost, e.g., few U.S. suppliers have the approval 
of classification societies other than ABS, and obtaining an equivalent 
certificate could be expensive (i.e., a 5-10 percent differential), and 
could result in undesirable exceptions to the ship's class that would 
put the U.S. shipyard in an unfavorable position vis-a-vis its foreign 
competitors; foreign shipowners want local components for ease of 
replacement and repair; foreign shipowners and designers designate the 
use of specific components which the shipbuilder cannot reject; many 
advanced ship types require components that are not available from U.S. 
sources but are from foreign sources; and many components of AST/MST 
are not available on the U.S. market.
    Based on these assessments, it was recommended that MARAD delete 
the third sentence in paragraph (a)(2)(i), which requires the exclusion 
of all foreign-made components from Actual Cost, as well as an obsolete 
Buy American provision remaining in section 298.32(a)(6), which 
requires only articles, materials or supplies of U.S. growth or origin 
to be used in a Title XI Vessel.
    A commenter also objected to the requirement in paragraph (a)(2)(i) 
for the applicant to submit supporting data, suggesting that MARAD add 
a provision stating that where a contract is competitively bid, the 
applicant is not required to submit supporting data, such as the cost 
of materials or worker hours, regarding the contract price, since the 
competitive bidding process should satisfy MARAD that the contract 
price is fair and reasonable. It is asserted that many shipyards do not 
bid a contract on such a basis and the requirement to supply such 
information to MARAD adds unnecessary administrative costs to the 
shipyard. A commenter stated that paragraph (a)(3), Financing, should 
be harmonized with paragraph (g) with respect to the treatment of 
subordinated debt and equity since the latter provides that 
subordinated debt may be included in equity, while the former disallows 
its inclusion.
    MARAD Response: With respect to the export program, MARAD has 
determined that the requirements in the third sentence of paragraph 
(a)(2)(i) and the provisions of sections 298.32(a)(6) and 
298.32(b)(5)(ii), relating to foreign equipment and materials, should 
be amended. These provisions were inadvertently left unamended in the 
regulations in 1986. With one important exception, foreign components 
will no longer be excluded from the Actual Cost of a Vessel. The 
exception is that foreign components of the hull and superstructure of 
any Vessel, including an Eligible Export Vessel, are excluded from 
Actual Cost; this will ensure that significant Vessel construction and 
reconstruction that is financed by the United States will be performed 
by U.S. yards. MARAD will still need to be apprised of the use of 
foreign components and will not exclude them from Actual Cost, 
recognizing that many components are not available in the U.S. market 
or are not available in a cost or delivery competitive basis. MARAD 
will allow the value of such foreign components in the hull and 
superstructure to be used as owner-furnished equipment in meeting the 
equity requirements of section 298.13(a)(3).
    MARAD declines to adopt the proposal that it not require applicants 
to submit supporting data, such as labor costs and worker hours, 
regarding a construction contract where the contract is competitively 
bid. Generally, shipyards must prepare backup data to assure against 
doing business at a loss. Hence, in virtually all circumstances, the 
supporting data are already available, which are all that MARAD is 
reviewing. Further, as guarantor, MARAD needs to make an independent 
determination that the costs reflected in the Obligations are fair and 
reasonable, and has a statutory responsibility to ensure that it is 
guaranteeing no more than the statutory limit of allowable costs. A 
competitively-bid contract may reduce the likelihood of MARAD's 
guaranteeing inflated contract prices, but MARAD does not regard that 
procedure as an adequate safeguard. Without conducting its own analysis 
of the cost of the project, MARAD would not be able to determine 
whether (1) it was impermissibly guaranteeing ``soft costs''; (2) 
subsequent changes and extras were fair and reasonable; or (3) the 
contract price exceeded the fair and reasonable cost of the Vessel, 
despite the competitive bidding process.
    With respect to the comment that paragraph (a)(3) should be 
harmonized with paragraph (g) with respect to the treatment of 
subordinated debt as equity, MARAD believes that the rule could be 
improved with the addition of language cross-referencing the two 
provisions. Accordingly, it has added directly after the word ``debt,'' 
in the penultimate sentence of paragraph (a)(3), a reference to the 
discretion of the Secretary, provided in paragraph (g) of this section, 
to allow subordinated debt as equity.
    With regard to Primary financial requirements at Closing in 
paragraph (d), a commenter for shipyard interests stated that the 
factors upon which the existing financial requirements for a project 
are based, and which are made applicable under the interim final rule 
to a General Shipyard Facility owning AST/MST, do not appear to apply 
to such technology, and suggests that there should be a separate 
concept demonstrating how use of modern shipbuilding practices will 
enhance the shipyard's competitiveness. That commenter was also 
troubled by the fact that financial requirements are generally required 
to be based on U.S. Generally Accepted Accounting Principles (GAAP), 
but that many potential applicants will not have GAAP-based accounts 
and that restatement to GAAP would be prohibitively expensive and time 
consuming. This includes the requirement to file MARAD Form MA-172.
    According to another commenter, since Actual Cost of a Title XI 
project, including AST/MST is made up of items that are usually 
capitalizable under GAAP, and costs of research and development must 
generally be expensed, in order to stimulate and encourage the 
development and construction of AST/MST MARAD should allow research and 
development costs to be included in Actual Cost. Another commenter 
representing shipyard interests argued that the requirement that a 
shipowner's equity be at least 50 percent of its long term debt, 
exclusive of Title XI debt, is unsatisfactory, adding that this 
standard will preclude many potential international shipowners from 
using U.S. shipyards, since in the international market, use of such 
factors as value of the collateral, possibly with some recourse, is the 
normal practice. Furthermore, it was argued that there are subsidies 
available through the European Union and the Australian government that 
tip the scales against Title XI financing. Accordingly, that commenter 
recommended that paragraph (d)(1)(ii) be amended to the effect that the 
Vessel will serve as the sole security for the Guarantees; that in a 
highly leveraged transaction, additional security should be considered; 
and that applicants with a well established market share and a solid 
trading and revenue profile be required to maintain equity of only 15 
percent of total long term debt.
    Another commenter argued that MARAD's minimum working capital, net 
worth, debt to equity ratios, and other financial ratios are too 
conservative when applied to the construction of AST/MST, particularly 
in the first year when expenses are high. It was alleged that such 
severe financial restrictions will thwart the purpose of Congress in 
advancing and assisting the transition of U.S. shipyards to modern 
shipyard facilities. One commenter noted that use of the term ``Owner'' 
of technology in new paragraph (e)(3) may be limiting because the 
General Shipyard Facility may be a ``Lessee'' of that technology.
    Another commenter stated that MARAD should allow more flexibility 
in reviewing the financial strength of the applicant as MARAD's equity 
to debt test provides no flexibility for evaluating potential financial 
structures as is now used in the export market, particularly by U.S. 
aircraft manufacturers for exporting aircraft, nor would it appear to 
allow MARAD to review and approve a financing structure utilizing a 
foreign sales corporation.
    MARAD Response: MARAD is not persuaded by the suggestion that the 
primary financial requirements at Closing should not apply to a General 
Shipyard Facility because they do not apply to AST/MST owned by a 
General Shipyard Facility. These financial requirements are criteria 
used to measure how adequately a company is capitalized to undertake 
the business it intends to pursue. MARAD needs that information for 
AST/MST projects just as it needs the information for other Title XI 
projects to assure reasonable prospect of repayment of the underlying 
debt.
    Regarding the requirement for a restatement of accounts in GAAP 
format, modern financial analysis requires accurate and standardized 
information. Companies seeking loan Guarantees for multimillion dollar 
projects should be prepared to demonstrate their creditworthiness in a 
reliable and standard manner. Thus far, it has been MARAD's experience 
with the Eligible Export Vessel program that the requirement for GAAP 
accounting has not proved an undue burden on applicants.
    Accordingly, MARAD declines to adopt the suggestions that it 
deviate from its normal financial terms, such as debt to equity ratios 
or a minimum net worth test for Eligible Export Vessels or shipyards. 
MARAD believes that these traditional tests, set forth in paragraphs 
(d) and (e), are useful in determining the creditworthiness of an 
applicant to function in the marketplace and make its debt service 
payments. As appropriate, MARAD can modify the existing requirements as 
provided under paragraph (h), Modified Requirements. MARAD also is not 
convinced to adopt the suggestion that it allow research and 
development costs to be included in Actual Cost. The financing of 
``soft costs,'' such as research and development costs, exceeds the 
financing of the specific project, which is all that is authorized to 
be financed.
    MARAD has not adopted the suggestion that the financed Vessel be 
treated as the sole security for a Guarantee because in some 
circumstances that collateral will be insufficient to secure the 
Government's interest. MARAD has a fiduciary responsibility to ensure 
that the Government has received sufficient security for its loan 
Guarantees. Too often, unfortunately, the proceeds of defaulted Vessels 
sold to recover MARAD's payments under its Guarantee have not been 
sufficient. On the other hand, the current regulations state that 
``under normal circumstances'' a financed Vessel or shipyard technology 
will be adequate security for the Guarantee. The same regulations 
authorize the Secretary to require additional collateral if it is 
determined that the Mortgage ``is not sufficient to provide adequate 
security.'' See section 298.31(c).

Section 298.14  Economic Soundness

    A commenter argued that the new requirement in the interim final 
rule in paragraph (a)(2)(i) for disclosure of the ``number, type, and 
buyer of Vessels'' for which AST/MST ``will be used'' is unduly strict 
since a shipyard may be modernizing to attract a market segment rather 
than a specific buyer. Another commenter stated that satisfying the 
existing Title XI requirement in paragraph (b)(3) that the internal 
rate of return (IRR) analysis show a minimum return of 10 percent, 
based on the total project cost, would be difficult for the applicant 
to show in the case of the construction and development of new and 
innovative AST/MST facilities and equipment, and will discourage 
operators of General Shipyard Facilities from taking initial steps in 
the direction of greater productivity and efficiency.
    MARAD Response: MARAD recognizes that many shipyards may modernize 
to attract a market segment rather than a specific buyer, but MARAD 
believes that a shipyard's sound economic planning involves making 
reasonable business projections about the number and type of Vessels 
that can be reasonably sold and the number and types of potential 
buyers that can be expected to purchase them. Most businesses make such 
cost-benefit estimates and analyses of their business activities, 
especially before they commit substantial amounts of capital to expand 
their business. Additionally, MARAD does not believe that the IRR test 
will pose an insurmountable difficulty to shipyards since most shipyard 
projects would not be undertaken unless they were projected to have a 
minimum internal rate of return of 10 percent.

Section 298.17  Evaluation of Applications

    One commenter suggested adding a fourth consideration for Eligible 
Export Vessels, in new paragraph (b) of the interim final rule, ``the 
export credit terms offered by foreign governments,'' while another 
commenter states that the new provision regarding factors considered in 
determining the applicant's equity requirements is not necessary as it 
is within the scope of the economic soundness finding in section 
298.14, and should be deleted.
    MARAD Response: The list of items that the Secretary is required to 
consider in determining the amount of an applicant's equity was not 
intended to be exhaustive. MARAD will also consider all relevant 
factors, including the export credit terms offered by foreign 
governments, the convertibility of foreign currency, foreign sovereign 
guarantees, corporate parent guarantees, and other credit enhancements 
in determining the amount of applicant equity. It was deemed 
appropriate, however, to give notice to the public of some of the 
primary items MARAD would consider. Accordingly, MARAD has amended 
paragraph (b) to indicate that ``the Secretary shall consider, among 
other things, the following'' items.

Section 298.18  Financing Advanced or Modern Shipbuilding Technology

    Two commenters argued that paragraph (a), Initial criteria, should 
be deleted as there is no requirement in the Shipbuilding Act that 
MARAD make a finding that the guaranteed financing will aid in the 
transition of U.S. shipyards, and encourage modernization or support 
increased productivity. A shipyard requested that there be included in 
paragraph (b) a definition of ``Technological Life'' of an asset when 
used to determine the duration of a Guarantee for AST/MST.
    MARAD Response: Although there is no requirement in the Act that 
the Guarantee of shipyard financing aid in the transition of those 
yards, encourage modernization, and support increased productivity, the 
Secretary is clearly authorized to impose such a requirement as a 
matter of policy. Section 1112(a) of the Act authorizes the Secretary, 
``subject to the terms the Secretary shall prescribe,'' to Guarantee an 
Obligation for AST/MST. The Secretary has the authority to prescribe 
terms so long as they are reasonable and are consistent with the 
purposes of the Act. One major purpose of the Shipbuilding Act was to 
encourage yards in their efforts to make the transition to commercial 
activities. It is clear that the initial criteria of section 298.18(a) 
are reasonable and are consistent with the policies of the Act.
    MARAD is not yet able to include a definition of a ``technological 
life'' for a shipyard asset being financed. Although the request is 
understandable, MARAD will determine, on a case-by-case basis, what the 
technological life of financed assets is likely to be. In general, 
MARAD does not desire to have its Guarantees extend longer than the 
``reasonable useful life'' of the collective assets which comprise this 
technology (the AST/MST).

Section 298.19  Financing Export Vessels

    Paragraph (a), Transmittal to Secretary of Defense, requires the 
Secretary of Transportation to give the Secretary of Defense notice of 
receipt of an application. The Secretary of Defense may disapprove the 
loan Guarantee for reasons of national security. As to the requirement 
for review by the Secretary of Defense, one commenter urged that it 
should be clear that the Secretary of Defense can only disapprove the 
loan Guarantee based on national security interests and for no other 
reason. In addition, the commenter stated that the 30-day review period 
pursuant to which the Secretary has the right to exercise a veto is too 
long, given the need to streamline the approval process. Accordingly, 
the commenter recommended seven days. One commenter suggested that, to 
avoid confusion, the third reference to the Secretary in the second 
sentence of paragraph (a) should include the words ``of Defense.''
    Paragraph (b), Determinations by the Secretary, sets forth the 
determinations that must be made in order to issue an Eligible Export 
Vessel loan Guarantee. Paragraph (b)(1) requires the Vessel to be of at 
least 5,000 gross tons if the loan Guarantee commitment cost is made 
available from funds transferred from the Secretary of Defense. Several 
commenters suggested that MARAD should make it clearer that Vessels 
under 5,000 gross tons are entitled to be financed as Eligible Export 
Vessels. In such instances, the loan Guarantee commitment cost would be 
charged against the appropriated funds provided by the Department of 
Transportation instead of the Department of Defense. However, one 
shipyard argued that all Eligible Export Vessel projects should be 
greater than 5,000 gross tons because the purpose of the statute is to 
facilitate conversion from defense to commercial activities. It 
asserted that to expend resources on relatively small Vessels, such as 
yachts and service boats, would not maximize U.S. shipyards' potential 
to compete in the commercial market. In addition, there would be the 
added practical difficulty of administering monies from two sources 
(Department of Defense and Department of Transportation) and the 
administrative overlay would be too expensive.
    Paragraph (b)(3) provides that Guarantees for Eligible Export 
Vessels shall not be approved unless the Secretary determines that the 
country to which the Vessel is to be exported, together with related 
institutions, is sufficiently creditworthy. Numerous commenters 
objected to the requirement that the Secretary make a determination as 
to the creditworthiness of the foreign country to which an Eligible 
Export Vessel is to be exported. They noted that the new statute does 
not contain such a requirement and that the regulation does not clarify 
what is meant by the country ``to which the Vessel is to be exported.'' 
The country could be the country of flag, the country where the owner 
and/or operator is located, or the countries where the Vessel could 
operate. Two commenters expressed concern that the creditworthiness 
requirement, if applied to the country of flag, would apply to flag-of-
convenience countries where the Vessels will rarely call. One commenter 
specifically noted that Liberia and Panama, two of the largest Vessel 
registers, would be off limits pursuant to such a requirement. The 
commenter stated that a lender can accept a Mortgage and registration 
from a country with poor credit provided the overall project is sound.
    Some commenters argued that the creditworthiness of a foreign 
nation should not be a concern because the Secretary will have a 
security interest in vessels or other collateral. Another commenter 
suggested that where there is adequate security for the Guarantees, 
MARAD's only other legitimate interest should be whether the country of 
registry's legal structure provides for adequate enforcement of the 
Mortgage or other security. One commenter noted that this is a 
different loan program from those that would require some political or 
country risk analysis and the provisions for a review by the Secretary 
of Defense should be adequate to screen out deals that may involve 
entities from countries whose interests are hostile to the U.S. or who 
pose a threat to our national security. Another commenter noted that 
the regulation does not identify the issues or elements to be weighed 
by the Secretary in making a determination of ``creditworthiness'' nor 
do they state the standards against which such elements shall be 
measured.
    MARAD Response: The role of the Secretary of Defense is established 
by statute. See section 1104A(j)(1) of the Act. MARAD cannot alter the 
time period established by Congress for review by the Secretary of 
Defense or otherwise expand or contract that Secretary's authority. It 
is, of course, clear that the Secretary of Defense may only disapprove 
a loan Guarantee based on an assessment of ``the potential use of the 
Vessel in a manner that may cause harm to the United States national 
security interests.'' Id. MARAD concurs, however, with the comment that 
the third reference in the second sentence of paragraph (a) to the 
Secretary should include the words ``of Defense'' and has so modified 
that sentence in the final rule.
    MARAD concurs with the suggestion that it should clarify that 
vessels under 5,000 gross tons can be financed as Eligible Export 
Vessels with funds provided by appropriations to the Department of 
Transportation instead of funds provided by the Department of Defense. 
MARAD believes that it should exercise the broadest possible 
flexibility to assure that U.S. yards can be stimulated to engage in 
international commerce effectively. MARAD also believes that it may, in 
fact, be very reasonable to finance smaller, ``niche'' vessels, and is 
acting to preserve its authority to do so. Problems of administering 
the monies from two different sources are negligible.
    The objection of numerous commenters to the language of paragraph 
(b)(3) as it applies to the creditworthiness of ``the country to which 
the Vessel is to be exported'' is, in part, well taken. Some Vessel 
owners will document their Vessel under a flag of convenience that 
bears no commercial relationship to the country in which the shipowner 
or charterer has its principal place of business. Of course, MARAD, as 
mortgagee, is concerned about the enforceability of its security 
interests in the various jurisdictions involved in the business plan of 
the Vessel, including the enforceability of a mortgage under a flag of 
convenience. However, the country of the ship's documentation is not 
the issue here. The problems intended to be addressed by paragraph 
(b)(3) deal with the creditworthiness of the country in which the 
shipowner and its charterers have their chief executive offices and 
have located a substantial portion of their assets. It is in those 
places where MARAD will have to enforce deficiency judgments or pursue 
enforcement of Guarantees. Among other things, these problems of 
enforcement include (1) the convertibility and the stability of 
currency from the shipowner's or the applicable (bareboat or time) 
charterers' countries, (2) the likelihood of political violence, 
expropriation, and government sanctioned repudiation of contracts, (3) 
the ability to enforce contract rights in the juridical systems of the 
shipowner's and charterers' countries, (4) the likelihood that MARAD 
could enforce sovereign and corporate guarantees, (5) the existence of 
acceptable lien filing and bankruptcy systems, and (6) the stability of 
the banking systems. Accordingly, MARAD has revised paragraph (b)(3) to 
state that ``Such Guarantee shall not be approved unless the Secretary 
determines that the countries in which the shipowner, its charterers, 
guarantors, or other financial interests, if any, supporting the 
proposed transaction have their chief executive offices or have located 
a substantial portion of their assets, present an acceptable financial 
or legal risk to MARAD's collateral interests.''

Section 298.20  Term, Redemption and Interest Rates

    Several shipyards and other commenters proposed that the Secretary 
should make liberal use of the maximum 25-year duration for Guarantees 
in paragraph (a), and should disregard the provisions in the 
Organization for Economic Co-operation and Development's (OECD) 
Arrangement on Guidelines for Officially Supported Export Credits that 
preclude financing for more than 80 percent of the contract price of a 
Vessel and restrict financing to a maximum of eight and a half years at 
a minimum interest rate of 8 percent.
    Paragraph (c), Interest rate, was amended in the interim final rule 
to allow the Secretary discretion with respect to Guarantees for all 
transactions other than those for U.S.-flag Vessels owned by U.S. 
citizens. Two commenters objected to the requirement that interest 
rates for U.S. Vessels must be ``reasonable'' while there is no such 
requirement for non-U.S. Vessels. One of the commenters observed that 
while the intention of the legislation was to assist the shipbuilders, 
the specifics are offensive when foreign owners are granted preferences 
by the regulation. Another of the commenters stated that there is no 
statutory basis for Secretarial discretion with regard to interest 
rates for transactions other than for U.S. owned Vessels that is 
similar to the discretion that exists in section 298.39 of the interim 
regulations. That regulation is based on section 1111(a)(2) of the Act, 
as amended by the Shipbuilding Act, allowing the Secretary to meet 
export credit terms of foreign governments. Therefore, it was submitted 
that the provision granting discretion in setting interest rates should 
be eliminated.
    One commenter noted that the word ``rates'' appears to be missing 
after the words ``. . . taking into account the range of interest . . 
.''. The commenter suggested that, at the end of the paragraph, the 
words ``with respect to each application'' be deleted and the words ``. 
. . with respect to the Obligations to be guaranteed'' be substituted 
therefor.
    MARAD Response: In issuing loan Guarantees pursuant to section 
1111(a), MARAD is not subject to the OECD guidelines. Among other 
reasons, the U.S. is not a party to the OECD Understanding On Export 
Credits For Ships and, further, Congress intended MARAD to issue its 
Eligible Export Vessel Guarantees according to the same terms and 
principles it applies in the domestic program. MARAD notes that an OECD 
agreement on shipbuilding subsidies was negotiated on July 17, 1994, 
and still must be ratified by all parties thereto. If and when this 
OECD agreement on shipbuilding subsidies goes into force, the terms of 
the Title XI program will be modified to conform. In the meantime, 
applicants shall be required to demonstrate their qualifications for 
the current loan Guarantee program, on the basis of their 
creditworthiness, the economic soundness of their proposed project and 
the value of the proposed collateral.
    MARAD agrees that there is an unnecessary appearance of unjustified 
preference in the way interest rates could be approved for the various 
programs and MARAD has removed in the final rule the last sentence of 
paragraph (c) as requested. MARAD has also inserted the word ``rates,'' 
after the words ``taking into account the range of interest,'' in that 
paragraph (c).

Section 298.21  Limits

    Paragraph (a), Actual Cost basis, was amended in the interim final 
rule to include reference to AST/MST and to add new paragraphs (14) and 
(15) which, respectively, disallow payments for early equipment 
delivery or non-capitalizable pre-delivery expenses for such 
technology. Paragraph (b), Actual Cost items, sets forth the items 
which comprise Actual Cost. One commenter advised that the citations to 
the Act in paragraph (a) should be corrected to ``Section 1104A(b)(2) 
or 1104B(b)(2)'' and ``Section 1103(A)(a)(5)''.
    With regard to paragraph (b), Inclusion of owner furnished 
equipment in Actual Cost Determination, one commenter stated that it is 
appropriate to include as part of Actual Cost items the cost of owner 
supplied facilities that are part of AST/MST, such as land, buildings, 
drydocks, piers, etc., and the cost of upgrading, renovating, 
refurbishing, and relocating such facilities. The rationale is that 
such items play a role in construction of AST/MST that is as important 
as owner-furnished equipment in the construction of a vessel and that 
the value assigned to such items should be fair market value or a 
percentage thereof. Several shipyards commented that, to the extent 
that the regulations do not follow Cost Accounting Standard 404 
relating to tangible capital assets constructed by a contractor for its 
own use, they should be amended to do so in order to permit the 
inclusion of indirect costs in the calculation of Actual Cost, i.e., 
general and administrative expense when in-house construction requires 
planning, supervisory, or other significant effort by officers or other 
personnel whose salaries are charged to G&A expenses.
    With respect to new paragraph (b)(14), some commenters urged that 
the concept of including payments for early delivery of a Vessel or 
AST/MST should be reconsidered since there is clear economic value in 
many cases for receiving early delivery, and speed in producing the end 
result should be encouraged and not discouraged. This is especially 
true when the need is considered for U.S. shipyards to accelerate their 
delivery schedules to compete more effectively with foreign yards.
    MARAD Response: The references in paragraph (a) will be corrected 
to read ``section 1104A(b)(2) or 1104B(b)(2)'' and ``section 
1103A(a)(5),'' respectively. Extending the Guarantee to land, 
buildings, and other preexisting facilities is not accepted, as MARAD 
has limited resources to finance the AST/MST vessel projects.
    Moreover, as a general practice, MARAD has disallowed the inclusion 
of indirect costs in the calculation of Actual Cost. MARAD's 
appropriated funds are available for the direct costs of constructing 
the asset; the inclusion of indirect costs carries with it the 
potential for unjustified inflation of the Actual Cost to the detriment 
of the taxpayer and the program. MARAD has not financed the payment of 
premiums for early delivery of Vessels because these costs do not add 
to the value of the collateral and, in any event, the value of the 
premium should be recoverable by the shipowner as profit arising from 
its operations.
     Consistent with the amendments to sections 298.11(a), concerning 
U.S. construction, and 298.13(a)(2)(i) with respect to Actual Cost, 
MARAD has also adopted a specific, explicit exclusion of the cost of 
such foreign components of the hull and superstructure, and the cost of 
their foreign assembly, in a new paragraph (c)(16) of section 298.21.

Section 298.23   Refinancing

    The section was amended in the interim final rule to provide that 
refinancing of Title XI debt only shall be permitted for AST/MST. One 
commenter noted that the refinancing limitation with respect to 
technology is not imposed by statute and that refinancing of recently 
incurred debt should be allowed. Several shipyards commented that the 
provision regarding technology is too restrictive because it would 
preclude the refinancing of a ``bridge loan'' incurred prior to the 
receipt of Title XI financing.
    MARAD Response: MARAD is of the opinion that it is not sound policy 
to use a Government Guarantee to refinance existing shipyard debt. As a 
matter of administrative discretion, MARAD has decided to use its 
limited funds for the development and use of new technology by U.S. 
shipyards not previously privately financed and for Vessel projects. On 
the other hand, the refinancing of Title XI debt at a lower interest 
rate benefits all participants, thereby reducing the government's 
exposure under the guaranteed obligations. To clarify, however, that 
the whole of section 298.23 applies to the refinancing of AST/MST, the 
final rule has been amended by inserting the words ``or Advanced or 
Modern Shipbuilding Technology'', where appropriate, in section 298.23.

Section 298.31   Mortgage

    Paragraph (a), In general, was amended in the interim final rule to 
include a provision for evidence of the Secretary's security interest 
in AST/MST, which may be a form of security other than a Mortgage. That 
paragraph also requires, with respect to a foreign Mortgage for 
Eligible Export Vessels, that to ensure the validity and worldwide 
enforceability of such Mortgages, the Secretary will require the 
Obligor to obtain satisfactory legal opinions from foreign counsel. One 
commenter stated that it is not clear whether a security interest that 
is not a Mortgage can be used as satisfactory evidence for the 
Secretary. The commenter suggested that MARAD specifically provide for 
the use of security interests, in addition to Mortgages, in its program 
for Eligible Export Vessels. The commenter argued that MARAD should 
specifically allow this type of transaction and should not rely on the 
``Exemptions'' provision in the regulations to permit other financing 
structures.
    Many commenters objected to the requirement for legal opinions as 
to the worldwide enforceability of Mortgages because, generally, no 
lawyer is able to give an opinion on the law with respect to any 
jurisdiction other than that in which the lawyer is admitted to 
practice. Furthermore, it was stated that there are some jurisdictions 
where Mortgages cannot be enforced as a practical matter. The 
commenters noted that this requirement adds an additional cost to a 
transaction that needs to be financially competitive with non-U.S. 
financing alternatives. Several commenters stated that in-house counsel 
should be permitted to render opinions and that such practice is 
commercially acceptable. One commenter noted that the focus should be 
on the country in which the Vessel is registered and the country where 
the owner has its principal place of business.
    Another commenter argued that the Secretary should be authorized to 
accept various types of collateral (i.e., land, buildings, equipment) 
or a collateral package (i.e., a combination of first and second 
Mortgages, assignments, etc.) for Title XI financing.
    One commenter questioned whether it would be practical for the 
Secretary to promulgate a standard mortgage for each country, because 
there are so many differences from country to country. Another 
commenter suggested that there are some countries where the Secretary 
may not, by law, be a mortgagee and proposed that the regulation be 
amended to permit the Secretary to appoint or designate an authorized 
and eligible mortgagee to act on the Secretary's behalf. The comment 
does not cite any examples.
    MARAD Response: The regulations provide that ``Under normal 
circumstances, a Guarantee shall not be endorsed on any Obligation 
until the Secretary receives satisfactory evidence of a security 
interest in one or more Vessels . . . .'' See section 298.31(a). The 
existing regulations also specifically provide that ``In the case where 
a Mortgage or a security interest on the financed assets may not be 
available or enforceable, the Secretary shall require alternative forms 
of security.'' Therefore, the existing regulations provide flexibility 
to accept collateral other than ship Mortgages and in unusual 
circumstances, for example, where a Mortgage is not available in a 
foreign jurisdiction for a delivered Vessel, MARAD could accept another 
type of security interest. No amendment to the regulation is necessary 
in this connection.
    The hallmark of a ship Mortgage is that, once foreclosed upon in 
admiralty court in an in rem proceeding, the admiralty order 
transferring possession free and clear of all liens is valid against 
the whole world. The reference in section (a) was to this type of 
``worldwide enforceability.'' Understandably, there are countries which 
do not afford this comity and international recognition of judgments, 
particularly those countries which do not have admiralty courts. Taking 
into account the objections raised to the term ``worldwide 
enforceability'' and the potentially burdensome legal costs entailed in 
such an opinion, MARAD has amended this provision to require an 
enforceability opinion only (1) As to the country in which the vessel 
is documented, (2) the United States, and (3), in the case of dedicated 
service (over specified trade routes), the country or countries 
involved in this service, or if those destinations are too numerous in 
MARAD's opinion, then only in the Vessel's primary port of operation.
    After much deliberation, MARAD has decided not to accept the 
suggestion that legal opinions be issued by in-house counsel. It has 
long been a MARAD precondition for the issuance of a Guarantee that an 
applicant retain outside, independent legal counsel, who are acceptable 
to MARAD, to issue such a legal opinion to MARAD. Counsel are required 
to opine, among other things, that the documents comprising the 
guaranteed transaction have been duly authorized, executed, and 
delivered and constitute the valid, legally binding, and enforceable 
obligations of the Obligor and other Related Parties. We note that 
other government agencies, most notably the Overseas Private Investment 
Corporation and Export-Import Bank, when engaged in similar commercial 
transactions, require that the applicants pay for an attorney to advise 
the agency in addition to any that they may employ for themselves.
    With respect to the argument that the Secretary should be 
authorized to accept various types of collateral, including land and 
equipment, second mortgages, assignments, etc., MARAD notes that 
section 298.31(c) already states that if it is determined that a 
Mortgage on a financed Vessel or AST/MST is not sufficient, then the 
Secretary ``may require additional collateral, such as mortgage(s) on 
other . . . assets, special escrow funds, pledges of stock, charters, 
contracts, notes, letters of credit, accounts receivable, assignments, 
and guarantees.'' No amendment to the rule is necessary to preserve 
this discretion, which the Secretary has consistently exercised over 
the life of the Title XI program.
    In response to the query whether it would be practical for MARAD to 
promulgate a standard Mortgage for each country, it should be stated 
that MARAD has no intention of proposing a standard foreign mortgage. 
MARAD may, however, over time compile a list of jurisdictions that have 
satisfactory mortgage laws.
    Finally, with respect to jurisdictions where the Secretary may not, 
as a matter of law, be a mortgagee, MARAD will not issue a loan 
Guarantee, unless some other acceptable form of security can be 
provided.

Section 298.32  Required Provisions in Documentation

    Paragraph (a)(1) was amended in the interim final rule to provide 
for the furnishing of satisfactory insurance or a performance bond by 
the manufacturer of AST/MST. Several shipyards commented that a 
performance bond is not necessary where the manufacture of AST/MST is 
concerned because the manufacturers are merely suppliers of goods and 
services.
    The proscription against work done outside the shipyard contained 
in paragraph (a)(5) was not within the scope of the interim final rule, 
but several shipyards have requested that MARAD amend the provision to 
remove the prohibition against the use of Title XI proceeds for payment 
of work done outside the shipyard unless the Secretary consents in 
writing to such use. It was suggested that such language is probably 
unintentionally too restrictive and should be modified by adding, 
``except for customary and usual subcontractor or supplier off-site 
prefabrication or fabrication of components where considered 
appropriate for cost or risk containment purposes.''
    Several shipyards have requested that MARAD amend paragraph (a)(6), 
which requires that materials and supplies of the United States be 
used, to delete this remnant of the former ``Buy American'' requirement 
in section 298.11, which was amended in 1986.
    With respect to paragraph (b)(4), which prescribes covenants by 
shipowners, including citizenship requirements that were amended in the 
interim final rule to exclude Eligible Export Vessels from compliance, 
one commenter suggested that the word ``registry'' is confusing in that 
while the term is common for documentation of foreign vessels in 
foreign countries, it is a confusing term when used for documentation 
of a vessel under the laws of the United States. The commenter 
suggested substituting for the term ``registry'', the term 
``documentation'', to correct the confusion. In addition, another 
commenter suggested that ``compliance with the provisions of 46 U.S.C. 
31301-31343'', is inappropriate with regard to Eligible Export Vessels 
and reference to them should be stricken.
    MARAD received several comments by shipyards about paragraph (b)(8) 
that requires the Obligor to maintain insurance on Title XI assets, 
suggesting the regulation be amended to allow shipyards to self-insure 
if those shipyards can demonstrate their financial well-being to the 
satisfaction of the Secretary. Paragraph (b)(9) requires covenants for 
Eligible Export Vessels to maintain additional types of insurance as 
may be required against such risks as those of a political, financial, 
or economic nature, to reflect any risk of the foreign country 
associated with the shipowner. One commenter expressed concern that 
compliance with this regulation may be impossible because the Vessel 
may be purchased by one foreign national, sold to another foreign 
national, and flagged yet in another country.
    MARAD Response: MARAD believes that paragraph (a)(1) is written 
with sufficient qualifications to ensure that, in a proper case, MARAD 
will not require a performance bond. In the case of mere suppliers of 
goods that need not be specially constructed to meet the shipyard's 
specifications, a performance bond would not be required. Accordingly, 
MARAD has not found it necessary to amend the regulation further to 
achieve this result.
    With respect to paragraph (a)(5), concerning the constraints on 
work done outside the shipyard, the commenters misapprehend MARAD's 
practice. MARAD merely needs to be aware of offsite prefabrication or 
fabrication practices; MARAD does not discourage that practice. The 
requirement for written approval has not posed a problem for other 
projects and it is not anticipated to pose a problem.
    The Buy American issue concerning paragraphs (a)(6) and (b)(5)(ii) 
were addressed earlier in the discussion concerning section 298.13. 
Accordingly, those provisions have been amended.
    As to paragraph (b)(4), MARAD agrees with the commenter who 
suggested that Eligible Export Vessels should not be required to comply 
with the provisions of 46 U.S.C. 31301-31343, Commercial Instruments 
and Maritime Liens. Instead, the regulation has been amended to state 
that the Obligor shall covenant with the Secretary that the Mortgage on 
its Eligible Export Vessel shall comply with the definition of a 
``preferred mortgage'' under 46 U.S.C. 31301(6)(B), to wit, it shall 
comply with the mortgage laws of the foreign country where the Vessel 
is documented and shall have been registered under those laws in a 
public register. In addition, paragraph (b)(4) has been modified to 
state the requirement for ``maintaining United States documentation of 
the Vessel or documentation under the laws of a country other than the 
United States with regard to an Eligible Export vessel'', instead of 
``registry'' of the Vessel.
    Insurance of the Title XI assets is a critical and essential part 
of the Title XI program. Self-insurance by shipyards as to its 
collateral is considered by MARAD to be unduly risky. Finally, MARAD 
does not agree that compliance with the provisions of section (b)(9) on 
certain insurance for Eligible Export Vessels is ``impossible.'' In 
domestic Title XI projects, such insurance has been procured. The 
requirement is not invalidated by the possibility of subsequent 
transfer of the Vessel because such transfer requires MARAD's prior 
consent. MARAD's consent will not be given unless the proposed 
purchaser agrees, among other things, to obtain the required insurance.

Section 298.34  Construction Fund

    Paragraph (b) was amended to include disbursements from the 
construction fund prior to delivery of the AST/MST. Several shipyards 
have suggested that in the international market place, the shipowner 
may, at its own risk, contract with the shipyard for construction prior 
to obtaining the loan or loan Guarantee, and pay for the initial stages 
of construction with the required 12.5 percent equity (87.5 percent 
Guarantee) or the 25 percent equity contribution (75 percent Guarantee) 
at that time. Thereafter, once the Secretary has authorized its 
commitment, such equity expenditures would be credited as the equity 
contribution. Thus, it was proposed that section 298.34 should be 
amended to authorize such interpretation of equity contribution.
    MARAD Response: The proposed practice is consistent with those that 
MARAD follows under the regulation as drafted, and no additional 
amendments in this respect are necessary.

Section 298.35  Reserve Fund and Financial Agreement

    Several shipyard commenters have stated that there is a need for 
clarification of the calculation to determine the amount of required 
deposits into the Reserve Fund because existing regulations do not 
provide a shipyard with enough facts to make an informed decision with 
respect to the total cost of Title XI financing. In addition, the 
Reserve Fund deposit requirements, as written, do not address how net 
operating revenue will be determined in conjunction with the shipyards' 
AST/MST assets.
    MARAD Response: MARAD agrees and has amended Section 298.35 to 
provide for a simple calculation of net income deposits into the 
shipyard's Title XI Reserve Fund. Such calculation will be set at 2 
percent of net cash flow, as defined by GAAP, and as shown on its 
audited financial statements.

Section 298.36  Annual Guarantee Fee

    Several shipyard commenters have suggested that MARAD waive the 
Guarantee Fee if the interest provided for under Title XI is greater 
than that provided for overseas under OECD financing in order to meet 
international competitiveness.
    MARAD Response: The Secretary has no authority to waive the 
statutorily-required Guarantee Fee. On the other hand, MARAD has 
authority to match export credit terms offered by foreign governments 
if those offered are more favorable than under Title XI. To date, MARAD 
has not had occasion to exercise that authority.

Section 298.39  Exemptions

    Several shipyards have suggested that MARAD needs to codify 
specific guidelines for exemptions from its regulations, and the 
following standards should be added to allow greater flexibility: MARAD 
(1) Should waive Guarantee and investigation fees where foreign 
shipyards do not charge fees, or allow the applicant to include such in 
its actual costs; (2) extend the life of the Guarantee beyond 25 years; 
(3) authorize the inclusion of legal and accounting costs in Actual 
Cost; (4) and finance more than 87.5 percent of the Actual Cost. In 
addition, it was stated that the phrase ``not required by law'' in the 
first paragraph of the section is ambiguous since the statute 
specifically authorizes waiver of statutory requirements, and it should 
be deleted for this reason. Commenters further suggested that MARAD 
should have the flexibility to provide for waivers when, in the 
judgment of MARAD, a waiver (1) Is required to provide effective 
assistance to U.S. shipyards in competing in the global market; (2) is 
not inconsistent with law; and (3) will not unduly affect the financial 
interests of the United States, given the objectives of the program.
    MARAD Response: MARAD declines to adopt these proposals as 
unnecessarily diluting the force and effect of the regulation. The 
exemptions are not intended to address MARAD authority under section 
1111(a) of the Act to provide more favorable terms than specified by 
Title XI in order to be compatible with export credit terms offered by 
foreign governments. Any exercise of such authority will be on a case-
by-case-basis.

Section 298.42  Reporting Requirements--Financial Statements

    Several shipyards have suggested that since they are wholly owned 
subsidiaries and are included in the general audit of the parent 
corporation, MARAD should accept such audits because independent audits 
could be too costly to conduct for the shipyards.
    MARAD Response: The regulation already preserves the discretion of 
MARAD to allow the submission of consolidated audits in an appropriate 
case and no amendment of the regulation is necessary to accommodate the 
commenter's request.

Rulemaking Analyses and Notices

Executive Order 12886 (Regulatory Planning and Review) and Other 
Requirements of Law

    This rulemaking has been reviewed under Executive Order 12866, and 
it has been determined that it is a significant regulatory action since 
it is likely to result in a rule that may have an annual effect on the 
economy of $100 million or more. It has also been determined to be a 
significant rule under the Department's Regulatory Policies and 
Procedures. Final Regulatory Assessments have been prepared and are 
available in the docket for inspection or copying where indicated under 
ADDRESSES. In summary, the Final Regulatory Assessments finds that the 
cost of the Title XI program over the first two years is $144 million, 
resulting in an average annual cost of $72.0 million. Assuming that 
there is demand for maximum guarantees and guarantees will range from 
70 percent to 87\1/2\ percent of actual cost of the vessel and shipyard 
modernization and improvement projects, the value of the vessels, 
capital goods and other assets produced over the first two years of the 
program will be about $1.85 billion. Further, it is estimated that new 
Title XI guarantees could generate 19,440 worker years of employment 
for U.S. shipyard workers, which translates into employment for 9,720 
workers over a period of two years.
    This rulemaking document has been reviewed by the Office of 
Management and Budget under Executive Order 12866, ``Regulatory 
Planning and Review.''

Federalism

    MARAD has analyzed this rulemaking in accordance with the 
principles and criteria contained in Executive Order 12612 and has 
determined that these regulations do not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    MARAD certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities.

Environmental Assessment

    MARAD has considered the environmental impact of this rulemaking 
and has concluded that an environmental impact statement is not 
required under the National Environmental Policy Act of 1969.

Paperwork Reduction Act

    This rulemaking contains reporting requirements that have 
previously been approved by the Office of Management and Budget 
(Approval No. 2133-0018).

List of Subjects in 46 CFR Part 298

    Loan programs--transportation, Maritime carriers, and Mortgages.

    Accordingly, the interim final rule amending 46 CFR Part 298, which 
was published at 59 FR 15123-15133 on March 31, 1994, is adopted as a 
final rule, with the following changes:

PART 298--[AMENDED]

    1. The authority citation for part 298 continues to read as 
follows.

    Authority: 46 App. U.S.C. 1114(b), 1271 et seq.; 49 CFR 1.66


Sec. 298.2  [Amended]

    2. Section 298.2 is amended as follows:
    a. By amending paragraph (i), Eligible Export Vessel, to capitalize 
the first letter of ``vessel'' in the definition.
    b. By amending paragraph (w), Person, to add the words ``or other 
acceptable legal business entity'' after the words ``unincorporated 
organization''.
    c. By amending paragraph (bb), Vessel, at the end of the paragraph, 
by removing the words ``may not be owned by citizens of the United 
States nor documented under the laws of the United States.'', and 
adding the words ``shall not be documented under the laws of the United 
States.''.
    d. By revising paragraphs (f), (k), (q), (r) and (x) to read as 
follows:


Sec. 298.2  Definitions.

* * * * *
    (f) Depository means a bank or other financial institution 
organized and doing business under the laws of the United States, any 
State or territory thereof, the District of Columbia or the 
Commonwealth of Puerto Rico that is authorized under such laws to 
exercise corporate trust powers, is a member of the Federal Deposit 
Insurance Corporation, and accepts deposits for purposes of 
implementing the program authorized by Title XI of the Act; but in the 
case of an Eligible Export Vessel can also mean, with the specific 
approval of the Secretary, foreign branches, but not the foreign 
subsidiaries, of such United States financial institutions.
* * * * *
    (k) General Shipyard Facility means:
    (1) For operations on land, any structure or appurtenance thereto 
designed for the construction, repair, rehabilitation, refurbishment, 
or rebuilding of any Vessel, including graving docks, building ways, 
ship lifts, wharves and pier cranes; the land necessary for any 
structures or appurtenances; and equipment necessary for the 
performance of any function referred to in this paragraph; and
    (2) For operations other than on land, any Vessel, floating 
drydock, or barge built in the United States, within the meaning of 
Sec. 298.11(a), and used for, or a type that is usually used for, 
activities referred to in paragraph (k)(1) of this section.
* * * * *
    (q) Modern Shipbuilding Technology means a technology to be 
introduced into the shipyard that is comprised of the best available 
proven technology, techniques, and processes appropriate to advancing 
the state-of-the-art of the applicant shipyard, or exceeds the best 
available processes of American shipbuilding, and that will enhance its 
productivity and make it more competitive internationally.
    (r) Mortgage means a first Preferred Mortgage on any Vessel or a 
first mortgage with respect to Advanced Shipbuilding Technology or with 
respect to Modern Shipbuilding Technology.
* * * * *
    (x) Preferred Mortgage means:
    (1) In the case of a mortgage on a Vessel documented under United 
States law, whenever made, a mortgage that--
    (i) Includes the whole of a Vessel;
    (ii) Is filed in substantial compliance with 46 U.S.C. 31321;
    (iii) Covers a documented Vessel or a Vessel for which an 
application for documentation has been filed that is in substantial 
compliance with the requirements of 46 U.S.C. Ch. 121 and the 
regulations prescribed under that Chapter by the United States Coast 
Guard; and
    (iv) Has as the mortgagee--
    (A) A State;
    (B) The United States Government;
    (C) A Federally insured depository institution, unless disapproved 
by the Secretary for that Vessel;
    (D) An individual who is a citizen of the United States;
    (E) A Person qualifying as a citizen of the United States pursuant 
to a provision of 46 App. U.S.C. 802; or
    (F) A Person approved by the Secretary pursuant to regulations at 
46 CFR 221.23(d); and
    (2) In the case of a mortgage on an Eligible Export Vessel, 
whenever made, a mortgage that--
    (i) Constitutes a mortgage that is established as security on an 
Eligible Export Vessel under the laws of a foreign country;
    (ii) Was executed under the laws of that foreign country and under 
which laws the ownership of the Vessel is documented;
    (iii) Is registered under the laws of that foreign country in a 
public register at the port of registry of the Vessel or at a central 
office;
    (iv) Otherwise satisfies the requirements of 46 U.S.C. 31301(6)(B) 
to constitute a Preferred Mortgage; and
    (v) Has the Secretary as the mortgagee, or such other mortgagee as 
is permitted by the applicable foreign law and approved by the 
Secretary.
* * * * *
    3. Section 298.3 is amended by revising the third sentence of the 
introductory text in paragraph (e) to read as follows:


Sec. 298.3  Applications.

* * * * *
    (e) Priority. * * * In regard to shipyards, priority will be given 
to applications from General Shipyard Facilities that have engaged in 
naval Vessel construction and that have pilot projects for shipyard 
modernization and Vessel construction, with respect only to funds 
appropriated to the Secretary of Defense, pursuant to provision of 
section 1359(a) of Pub. L. 103-160, 107 Stat. 1547. * * *
* * * * *
    4. Section 298.11 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 298.11  Vessel requirements.

* * * * *
    (a) United States Construction. A Vessel financed by an Obligation 
Guarantee is considered to be of United States construction if:
    (1) With respect to a U.S.-documented Vessel:
    (i) It is built in a shipyard or shipyards of the United States 
within the meaning of section 505 of the Act;
    (ii) All components of the hull and superstructure are fabricated 
in the United States; and
    (iii) It is assembled in a shipyard geographically located within 
the United States.
    (2) With respect to Eligible Export Vessels, the Vessel is 
assembled in a shipyard geographically located within the United 
States.
* * * * *
    (c) Class condition and operation. The Vessel shall be constructed, 
maintained, and operated so as to meet the highest classification, 
certification, rating, and inspection standards for Vessels of the same 
age and type imposed by the American Bureau of Shipping (ABS), or other 
such standards as may be approved by the Secretary, or in the case of 
an Eligible Export Vessel, such standards as may be imposed by a member 
of the International Association of Classification Societies (IACS) 
(classification societies to be ISO 9000 series registered) with 
appropriate certificates required at delivery, so long as the home 
country of that ICAS member accords equal reciprocity, as determined by 
the Secretary, to United States classification societies. A Vessel, 
except an Eligible Export Vessel, shall comply with all applicable 
laws, rules, and regulations as to condition and operation, including, 
but not limited to, those administered by the United States Coast 
Guard, Environmental Protection Agency, Federal Communications 
Commission, Public Health Service, or their respective successor 
agencies, and all applicable treaties and conventions to which the 
United States is a signatory, including, but not limited to, the 
International Convention for Safety of Life at Sea. An Eligible Export 
Vessel shall be documented in a country that is party to the 
International Convention for Safety of Life at Sea, or other treaty, 
convention, or international agreement governing vessel inspection to 
which the United States is a signatory, and shall comply with the 
applicable laws, rules, and regulations of its country of 
documentation, all applicable treaties, conventions on international 
agreements to which that country is a signatory, and the laws of the 
ports it serves. An Eligible Export Vessel shall be constructed in 
accordance with the requirements of the International Maritime 
Organization.
* * * * *
    5. Section 298.12, is amended as follows:
    a. By amending paragraph (f)(2), with respect to demonstrating 
operating ability, by removing the words ``all management personnel,'' 
and inserting in their place the words ``all senior supervisory 
personnel in the shipyard''; and
    b. By adding a new paragraph (b)(4) to read as follows


Sec. 298.12  Applicant and operator's qualifications.

* * * * *
    (b) Operator's qualifications. * * *
* * * * *
    (4) Other entities. For any entity that does not fit the 
descriptions in paragraphs (b)(1) through (b)(3) of this section, MARAD 
will specify the information that the entity shall submit regarding its 
identity and ownership.
* * * * *
    6. Section 298.13, Financial requirements is amended as follows:
    a. In paragraph (a)(2), Cost of the project, by revising the third 
sentence of paragraph (a)(2)(i) and adding a new sentence immediately 
thereafter to read:


Sec. 298.13  Financial requirements.

    (a) *  *  *
    (2) *  *  *
    (i) *  *  *  Each item of foreign components and services shall be 
excluded from Actual Cost, unless a waiver is specifically granted for 
the item, which waiver shall not be granted for foreign components of 
the hull and superstructure. Although excluded from Actual Cost, 
foreign components can be regarded as owner-furnished equipment that 
may be used in satisfying the applicant's equity requirements imposed 
by paragraph (a)(3) of this section.
* * * * *
    b. In paragraph (a)(3), Financing, in the penultimate sentence, by 
adding after the word ``debt'' and before the period, the words ``, 
except to the extent allowed by paragraph (g) of this section''.


Sec. 298.17  [Amended]

    7. Section 298.17, Evaluation of applications, is amended in the 
introductory text of paragraph (b) after the words the ``Secretary 
shall consider'' and before the words ``the following'' by adding the 
words ``, among other things,''.


Sec. 298.18  [Amended]

    8. Section 298.18, Financing Advanced or Modern Shipbuilding 
Technology, paragraph (b), Other conditions, is amended in paragraph 
(b)(1) by removing the words ``technological life of the assets being 
financed,'' and inserting in their place the words ``reasonable 
economic useful life of the collective assets which comprise this 
technology,''.


Sec. 298.19  [Amended]

    9. Section 298.19, Financing Export Vessels, is amended as follows:
    a. In paragraph (a), Transmittal to Secretary of Defense, by adding 
in the second sentence, after the word ``assessment of the Secretary'' 
and in the fourth sentence, after the word ``authority of the 
Secretary'' respectively, the words ``of Defense'';
    b. In paragraph (b), Determination by the Secretary, by revising 
the second sentence of paragraph (b)(3) to read, ``Such Guarantee shall 
not be approved unless the Secretary determines that the countries in 
which the shipowner, its charterers, guarantors, or other financial 
interests supporting the transaction, if any, have their chief 
executive offices or have located a substantial portion of their 
assets, present an acceptable financial or legal risk to MARAD's 
collateral interests.''; and
    c. In paragraph (b)(1), by adding a sentence at the end to read, 
``Vessels of less than 5,000 gross tons can receive Guarantees with 
funds appropriated to the Department of Transportation.''.
    10. Section 298.20 is amended by revising paragraph (c) to read as 
follows:


Sec. 298.20  Term, redemption and interest rate.

* * * * *
    (c) Interest rate. The interest rate of each Obligation must be 
determined by the Secretary to be reasonable, taking into account the 
range of interest rates prevailing in the private market for similar 
loans and the risks assumed by the Secretary.


Sec. 298.21  [Amended]

    11. Section 298.21 is amended as follows:
    a. In paragraph (a), Actual Cost basis, by removing the citations 
to ``section 1104(b)(2) of the Act'' in the second sentence, and 
``section 1104(a)(4) of the Act'' in the fourth sentence, and by 
inserting in their places, respectively, the citations to ``section 
1104A(b)(2) or section 1104B(b)(2) of the Act,'' and ``section 
1103A(a)(5) of the Act''; and
    b. In paragraph (c), by removing the words ``and'' at the end of 
paragraphs (c)(13) and (c)(14), by removing the period at the end of 
paragraph (c)(15) and adding in its place ``; and'', and by adding a 
new paragraph (c)(16) to read as follows:


Sec. 298.21  Limits.

* * * * *
    (c) Items excludable from Actual Cost. * * *
* * * * *
    (16) The cost of foreign components and then assembly when 
comprising any part of the hull and superstructure of a Vessel.
* * * * *


Sec. 298.23  [Amended]

    12. Section 298.23, Refinancing, is amended by inserting after the 
words ``Vessels'', ``Vessel'' and ``Vessel(s)'', respectively, each 
place where they appear, the words ``or Advanced or Modern Shipbuilding 
Technology'' and by removing the word ``vessels'' in the second 
sentence and adding the words ``Vessels or Advanced or Modern 
Shipbuilding Technology''.
    13. Section 298.31 is amended by amending paragraph (a) as follows:
    a. After the heading, ``In general'', designate the existing first 
two sentences as paragraph (a)(1) and the third, fourth, fifth, and 
sixth sentences as paragraphs (a)(2), (a)(3), (a)(4) and (a)(5), 
respectively.
    b. Revise newly designated paragraph (a)(2) to read as follows:


Sec. 298.31  Mortgage.

    (a) * * *
    (2) In order to ensure that the Secretary's Mortgages or other 
security interests are valid and enforceable, the Secretary shall 
require that the Obligor obtain legal opinions, in form and substance 
satisfactory to the Secretary, from independent, outside legal counsel 
satisfactory to the Secretary, including foreign independent outside 
legal Counsel with respect to Eligible Export Vessels, which opinions 
shall state, among other things, that the Mortgage or other security 
interest(s) are valid and enforceable:
    (i) In the country in which the Vessel is documented (or, in the 
case of a security interest, in jurisdictions acceptable to the 
Secretary);
    (ii) In the United States; and
    (iii) For vessels operating on specified trade routes, in the 
country or countries involved in this service, unless the Secretary 
determines that those destinations are too numerous, in which case, the 
Secretary will instead require an opinion of foreign validity and 
enforceability in the Vessel's primary port of operation.
* * * * *
    14. Section 298.32 is amended by revising paragraphs (a)(6), (b)(4) 
and (b)(5) to read as follows:


Sec. 298.32  Required provisions in documentation.

    (a) Performance under shipyard and related contracts * * *
* * * * *
    (6) Requiring that all components of the hull and superstructure of 
a U.S.-documented Vessel be fabricated, and that all components of the 
hull and superstructure of an Eligible Export Vessel shall be assembled 
in the United States. If obligations will not be issued during the 
period of construction of a Vessel, shipyard-related contracts shall 
generally include the provisions specified in paragraphs (a)(2) and 
(a)(3) of this section and this paragraph (a)(6).
    (b) Assignments and general covenants from Obligor to Secretary. * 
* *
* * * * *
    (4) Covenants relating to the annual filing of satisfactory 
evidence of continuing United States citizenship, in accordance with 46 
CFR part 355, with the exception of Eligible Export Vessels and 
shipyards with Advanced or Modern Shipbuilding Technology projects; 
warranty of Vessel or Advanced or Modern Shipbuilding Technology title 
free from all liens other than those specifically excepted; maintaining 
United States documentation of the Vessel or documentation under the 
laws of a country other than the United States with regard to an 
Eligible Export Vessel; compliance with the provisions of 46 U.S.C. 
31301-31343, except that Eligible Export Vessels shall comply with the 
definition of a ``preferred mortgage'' in 46 U.S.C. 31301(6)(B), 
requiring, among other things, that the Mortgage shall comply with the 
mortgage laws of the foreign country where the Vessel is documented and 
shall have been registered under those laws in a public register; 
Notice of Mortgage, payment of all taxes (except if being contested in 
good faith); annual financial statements audited by independent 
certified or independent licensed public accountant.
    (5) Covenants to keep records of construction costs paid by or for 
the Obligor's account and to furnish the Secretary with a detailed 
statement of those costs, distinguishing between:
    (i) Items paid or obligated to be paid, attested to by independent 
certified public accountants unless otherwise verified by the 
Secretary; and
    (ii) Costs of American and foreign materials (including services) 
in the hull and superstructure.
* * * * *
    15. Section 298.35, Reserve Fund and Financial Agreement, is 
amended as follows:
    a. The fifth sentence of paragraph (d) introductory text, Title XI 
Reserve Fund Net Income, of this section is revised to read ``In the 
case of Advanced or Modern Shipbuilding Technology, the Agreement shall 
provide that within 105 days after the end of its accounting year, the 
Company shall submit its audited financial statements showing its net 
cash flow in a manner acceptable to the Secretary, in lieu of any other 
computation of Reserve Fund Net Income specified herein for Vessels.''; 
and
    b. A new paragraph (e)(5) is added to read as follows:


Sec. 298.35  Reserve Fund and Financial Agreement.

* * * * *
    (e) Deposits. * * *
* * * * *
    (5) In the case of Advanced or Modern Shipbuilding Technology, 
unless the shipyard as of the close of its accounting year was subject 
to and in compliance with the primary financial requirements, the 
shipyard shall make a deposit at two percent of its net cash flow, as 
defined by GAAP, and as shown on its audited financial statements.
* * * * *
    Dated: September 12, 1994.

    By order of the Maritime Administrator.
Joel C. Richard,
Acting Secretary, Maritime Administration.
[FR Doc. 94-22865 Filed 9-14-94; 10:12 am]
BILLING CODE 4910-81-P