[Federal Register Volume 67, Number 52 (Monday, March 18, 2002)]
[Rules and Regulations]
[Pages 11939-11941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6304]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 356

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


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

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In an interim final rule published on August 31, 2001, the 
Maritime Administration (``MARAD,'' ``we,'' ``our,'' or ``us'') amended 
our

[[Page 11940]]

regulations implementing the new U.S. citizenship requirements set 
forth in the American Fisheries Act of 1998 (``AFA''). MARAD's 
regulation, at 46 CFR part 356, contains the substantive requirements 
mandated by the AFA and procedural requirements established by MARAD 
for administration of the AFA. We promulgated an amendment that 
provides us with the ability to waive any procedural requirement, if 
there is good cause to do so and the waiver would not be inconsistent 
with the AFA and the intent of part 356. The waiver provision was 
effective, as an interim final rule, upon publication, but we are now 
publishing this waiver provision as a final rule.

DATES: The effective date of this final rule is March 18, 2002.

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

SUPPLEMENTARY INFORMATION: The AFA imposes new citizenship requirements 
for the owners of vessels of 100 feet or greater in registered length 
which hold a fishery endorsement or for which a fishery endorsement is 
sought and for entities holding a preferred ship mortgage on such 
vessels. We are required by the AFA to ``rigorously'' scrutinize any 
transfer of ownership and control over fishing vessels, fish processing 
vessels and fish tender vessels. In so doing, we must pay particular 
attention to leases, charters, financing arrangements, mortgages, and 
other documents to determine if they constitute an impermissible 
conveyance of control to persons not eligible to own a vessel with a 
fishery endorsement.
    MARAD's detailed regulations, 46 CFR part 356, were published in 
the Federal Register on July 19, 2000 (65 FR 44859), following notice 
and opportunity for submission of comments. The new citizenship 
requirements became effective on October 1, 2001. Vessel owners were 
directed to submit citizenship affidavits and other documents to us by 
June 1, 2001. We have provided information on the new requirements on 
MARAD's web site, http:/marad.dot.gov/afa.html, mailed information to 
owners of fishing industry vessels and conducted briefings open to the 
public.
    The new regulations applied for the first time to a population of 
individuals who had not communicated or worked with MARAD. Therefore, 
we were concerned about circumstances and issues that were not 
anticipated by us or the public and that could not be resolved in the 
short period of time before October 1, 2001. In addition, we were 
concerned that some confusion may have arisen for the public because 
the U.S. Coast Guard will administer the AFA's citizenship requirements 
with regard to vessels under 100 feet in registered length under its 
own procedures. Our concerns were based on actual contacts between 
MARAD staff and the public that brought to our attention the potential 
for certain inequitable results that could stem from the implementation 
of the regulations if MARAD did not have the ability to waive certain 
procedural requirements. At that time, we expected to review about 500 
affidavits along with underlying articles of incorporation, bylaws, 
charters, management agreements, sales agreements and other documents.
    In the course of reviewing this large number of complicated 
business arrangements, it became apparent that there were 
circumstances, often not the fault of the vessel owner, that prevented 
us in several instances from making a complete citizenship finding by 
October 1, 2001. Our regulations provide the opportunity for the 
applicant to work with us to resolve matters prior to issuing a 
determination whether the applicant qualifies as a U.S. citizen. 
However, the AFA rule would have caused the vessel owner's fishery 
endorsement to be deemed invalid on October 1, 2001 if we had not 
issued a citizenship determination. Thus, there were times when a 
waiver of our procedures would have been appropriate to avoid this 
result. Accordingly, MARAD promulgated this amendment to 46 CFR part 
356, on August 31, 2001 at 66 FR 45945, which allows us to waive 
procedural provisions of the rule not mandated by the AFA. The waiver 
provision is not applicable to the substantive requirements set out in 
the AFA and the rule. In addition, any waiver must be supported by good 
cause shown.
    The waiver provision became effective as an interim measure 
immediately upon publication on August 31, 2001 so that it was in place 
before October 1, 2001, the date when MARAD was required to determine 
the U.S. citizenship status of 500-700 vessel owners and operators. The 
need to fairly administer the new and intricate requirements of the AFA 
within the stringent time constraints fully supports a finding of good 
cause, under the Administrative Procedure Act, 5 U.S.C. 553(b) and (d), 
that the final rule should be effective upon publication.
    Our practical experience with the waiver authority validated our 
original assumptions. More than a dozen waivers have been issued so 
far. Each waiver was well justified in that they allowed vessel owners 
some additional time to revise troublesome provisions of complicated 
vessel charters or corporate documents or provided needed time for us 
to resolve complex issues. Going forward, we expect the waiver 
provision to be used sparingly. However, there is still a need for the 
waiver provision, because vessel owners enter into new business 
arrangements constantly, and we need to ensure a thorough review of 
such arrangements.
    We received no comments from the public either in favor or opposed 
to making the interim final rule a final rule.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review)

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

Federalism

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

Executive Order 13175

    MARAD does not believe that this final rule will significantly or 
uniquely

[[Page 11941]]

affect the communities of Indian tribal governments when analyzed under 
the principles and criteria contained in Executive Order 13175 
(``Consultation and Coordination with Indian Tribal Governments''). 
Therefore, the funding and consultation requirements of this Executive 
Order would not apply.

Regulatory Flexibility Act

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

Environmental Impact Statement

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

Paperwork Reduction Act

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

Unfunded Mandates Reform Act of 1995

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

Regulation Identifier Number

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

List of Subjects in 46 CFR Part 356

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

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

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

    1. The authority citation for 46 CFR part 356 is revised to read as 
follows:

    Authority: 46 App. U.S.C. 12102; Public Law 105-277, Division C, 
Title II, Subtitle I, section 203 (46 App. U.S.C. 12102 note), 
section 210(e), and section 213(g), 112 Stat. 2681; 49 CFR 1.66.

    2. For the convenience of the reader, 3356.2 is republished to read 
as follows:


Sec. 356.2  Waivers.

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

    Dated: March 11, 2002.

    By Order of the Maritime Administrator.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 02-6304 Filed 3-15-02; 8:45 am]
BILLING CODE 4910-81-P