[Federal Register Volume 66, Number 170 (Friday, August 31, 2001)]
[Rules and Regulations]
[Pages 45945-45947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22039]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 356

[Docket No. MARAD-2001-10518]
RIN 2133-AB45


Eligibility of U.S.-Flag Vessels of 100 Feet or Greater in 
Registered Length To Obtain a Fishery Endorsement to the Vessel's 
Documentation

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Interim final rule and request for comments.

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SUMMARY: The Maritime Administration (``MARAD,'' ``we,'' ``our,'' or 
``us'') is publishing this interim final rule amending our regulations 
implementing the new U.S. citizenship requirements set forth in the 
American Fisheries Act of 1998 (``AFA''). MARAD's regulation,

[[Page 45946]]

at 46 CFR Part 356, contains the substantive requirements mandated by 
the AFA and procedural requirements established by MARAD for 
administration of the AFA. We are promulgating an amendment which 
provides us with the ability to waive any procedural requirement, if 
there is good cause to do so and the waiver would not be inconsistent 
with the AFA and the intent of this part. The waiver provision is 
effective upon publication, but we are inviting comments on the 
provision.

DATES: The effective date of this final rule is August 31, 2001. Submit 
comments on or before October 1, 2001.

ADDRESSES: Comments should refer to docket number MARAD-2001-  . 
Written comments may be submitted by hand or by mail to the Docket 
Clerk, U.S. DOT Dockets, Room PL-401, Department of transportation, 400 
7th St., SW. Washington, D.C. 20590-0001. You may send comments 
electronically via the Internet at http://dmses.dot.gov/submit/. All 
comments will become part of this docket and will be available for 
inspection and copying at the above address between 10 a.m. and 5 p.m., 
ET, Monday through Friday, except Federal holidays. An electronic 
version of this document and all documents entered into this docket is 
available on the World Wide Web at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Murray A. Bloom, Citizenship Approval 
Officer, Maritime Administration, MAR-222 Room 7228, 400 7th Street, 
SW, Washington, DC 20590. Telephone: (202) 366-5320.

SUPPLEMENTARY INFORMATION: The AFA imposes new citizenship requirements 
for the owners of vessels of 100 feet or greater in registered length 
which hold a fishery endorsement or for which a fishery endorsement is 
sought and for entities holding a preferred ship mortgage on such 
vessels. We are required by the AFA to ``rigorously'' scrutinize any 
transfer of ownership and control over fishing vessels, fish processing 
vessels and fish tender vessels. In so doing, we must pay particular 
attention to leases, charters, financing arrangements, mortgages, and 
other documents to determine if they constitute an impermissible 
conveyance of control to persons not eligible to own a vessel with a 
fishery endorsement.
    MARAD's detailed regulations, 46 CFR Part 356, were published in 
the Federal Register on July 19, 2000 (65 FR 44860), following notice 
and opportunity for submission of comments. The new citizenship 
requirements become effective on October 1, 2001. Vessel owners were 
directed to submit citizenship affidavits and other documents to us by 
June 1, 2001. We have provided information on the new requirements on 
MARAD's web site, http:/marad.dot.gov/afa.html, mailed information to 
owners of fishing industry vessels and conducted briefings open to the 
public.
    Nevertheless, because the new regulations apply for the first time 
to a population of individuals who have not yet had the opportunity to 
communicate or work with MARAD, we are concerned that we may face 
circumstances in which issues that were not anticipated by us or the 
public can not be resolved in the short period of time before October 
1, 2001. In addition, some confusion may arise for the public because 
the U.S. Coast Guard will administer the AFA's citizenship requirements 
with regard to vessels under 100 feet in registered length under its 
own procedures. Our concerns are based on actual contacts between MARAD 
staff and the public that have brought to our attention the potential 
for certain inequitable results that could stem from the implementation 
of the regulations if MARAD does not have the ability to waive certain 
procedural requirements. We expect to review about 500 affidavits along 
with underlying articles of incorporation, bylaws, charters, management 
agreements, sales agreements and other documents.
    In the course of reviewing this large number of complicated 
business arrangements it has become apparent that circumstances will 
arise, often not the fault of the vessel owner, that prevent us from 
making a complete citizenship finding by October 1, 2001. Our 
regulations provide the opportunity for the applicant to work with us 
to resolve matters prior to issuing a determination whether the 
applicant qualifies as a U.S. citizen. However, the AFA rule would 
cause the vessel owner's fishery endorsement to be deemed invalid on 
October 1, 2001. Thus, there will be times when a waiver of our 
procedures will be appropriate to avoid this result. Accordingly, MARAD 
is promulgating this amendment to 46 CFR Part 356, which allows us to 
waive procedural provisions of the rule not mandated by the AFA. The 
waiver provision would not be applicable to the substantive 
requirements set out in the AFA and the rule. In addition, any waiver 
must be supported by good cause shown.
    We expect to issue decisions by October 1, 2001, on the bulk of the 
citizenship applications that we have received; however, the waiver 
provision will provide MARAD with the necessary flexibility to ensure 
that vessel owners do not suffer harsh consequences such as the loss of 
their ability to fish or the loss of the vessel's fishery endorsement 
if MARAD is unable to make a citizenship determination by that date. 
Vessel owners are advised that we intend to process citizenship 
affidavits as expeditiously as possible and that the waiver provision 
is not intended to provide a mechanism that can be used by vessel 
owners to circumvent the requirements of the American Fisheries Act or 
to delay its implementation. Accordingly, we expect to complete 
decisions on any remaining applications by December 31, 2001.
    The waiver provision will be effective as an interim measure 
immediately upon publication so that it will be in place before October 
1, 2001, the date when MARAD must determine the U.S. citizenship status 
of 500-700 vessel owners and operators. The need to fairly administer 
the new and intricate requirements of the AFA within the stringent time 
constraints fully supports a finding of good cause, under the 
Administrative Procedure Act, 5 U.S.C. Sec. 553(b) and (d), that the 
interim final rule should be effective upon publication and that prior 
notice and opportunity for public comment is not practicable and would 
not be in the public interest. However, we will consider public comment 
on the waiver provision before making the provision a permanent final 
rule.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review)

    After discussing compliance requirements with interested vessel 
owners, operators and mortgagees, we became aware of a need to have a 
waiver provision in the AFA regulations so that non-material 
discrepancies in a vessel's documentation would not arbitrarily cause a 
vessel owner to lose their fishery endorsement. The waiver provision 
will not entail any cost to vessel owners, mortgagees, charterers, or 
other parties regulated by 46 CFR part 356.
    This final rule is not a significant regulatory action under 
Sec. 3(f) of Executive Order 12866. Consequently, it was not reviewed 
by the Office of Management and Budget. The economic impact, if any, 
should be minimal; therefore, no further analysis is necessary. This 
proposed rule is not significant according to the Regulatory Policies 
and Procedures of the Department of Transportation, 44 FR 11034 
(February 26, 1979) as it merely

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allows waiver of administrative and procedural requirements.

Federalism

    We analyzed this rulemaking in accordance with the principles and 
criteria contained in E.O. 13132 (``Federalism'') and have determined 
that it does not have sufficient federalism implications to warrant 
consultation with State and local officials. The regulations have no 
substantial effects on the States, or on the current Federal-State 
relationship, or on the current distribution of power and 
responsibilities among the various local officials.

Executive Order 13175

    MARAD does not believe that this final rule will significantly or 
uniquely affect the communities of Indian tribal governments when 
analyzed under the principles and criteria contained in Executive Order 
13175 (``Consultation and Coordination with Indian Tribal 
Governments''). Therefore, the funding and consultation requirements of 
this Executive Order would not apply.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires us 
to consider whether our proposals will have a significant economic 
impact on a substantial number of small entities. ``Small entities'' 
include independently owned and operated small businesses that are not 
dominant in their field and that otherwise qualify as ``small business 
concerns'' under Sec. 3 of the Small Business Act (15 U.S.C. 632). This 
rulemaking may reasonably be expected to affect small businesses or 
entities that currently own documented fishing vessels, fish processing 
vessels, or fish tender vessels, that have financed such vessels, or 
that are engaging in the fisheries of the United States with such 
vessels. The Small Business Administration defines businesses within 
the fishing industry that have annual receipts of $3 million or less as 
small businesses, 13 CFR 121.201. We do not believe that there will be 
any cost to small business entities to comply with this interim final 
rule. Therefore, MARAD certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

Environmental Impact Statement

    We have analyzed this rule for purposes of compliance with the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
have concluded that under the categorical exclusions provision in 
section 4.05 of Maritime Administrative Order 600-1, ``Procedures for 
Considering Environmental Impacts,'' 50 FR 11606 (March 22, 1985), the 
preparation of an Environmental Assessment, and an Environmental Impact 
Statement, or a Finding of No Significant Impact for this rulemaking is 
not required. This rulemaking involves administrative and procedural 
regulations that clearly have no environmental impact.

Paperwork Reduction Act

    This rulemaking does not establish any new requirement for the 
collection of information.

Unfunded Mandates Reform Act of 1995

    This final rule will not impose an unfunded mandate under the 
Unfunded Mandates Reform Act of 1995. It will not result in costs of 
$100 million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector. 
This proposed rule is the least burdensome alternative that achieves 
the objective of the rule.

Regulation Identifier Number

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 46 CFR Part 356

    Citizenship and naturalization, Fishery endorsement, Fishing 
vessels, Mortgages, Mortgage trustee, Penalties, Preferred mortgages, 
Reporting and recordkeeping requirements, Vessels.

    For the reasons discussed in the preamble, MARAD amends 46 CFR Part 
356 as follows:

PART 356--REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN 
REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S 
DOCUMENTATION

    1. The authority citation for 46 CFR Part 356 continues to read as 
follows:

    Authority: 46 App. U.S.C. Sec. 12102; Public Law 105-277, 
Division C, Title II, Subtitle I, Sec. 203 (46 App. U.S.C. 12102 
note), Sec. 210(e), and Sec. 213(g), 112 Stat. 2681; 46 CFR 1.66.

    2. Amend 46 CFR Part 356 by adding a new Sec. 356.2 to read as 
follows:


Sec. 356.2  Waivers.

    In special circumstances and for good cause shown, we may waive the 
procedures prescribed in this part, provided the waiver is consistent 
with the requirements of the AFA and with the intent of this part.

    Dated: August 28, 2001.

    By Order of the Acting Deputy Maritime Administrator.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 01-22039 Filed 8-30-01; 8:45 am]
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