§12102. Vessels eligible for documentation

(a) A vessel of at least 5 net tons that is not registered under the laws of a foreign country is eligible for documentation if the vessel is owned by—

(1) an individual who is a citizen of the United States;

(2) an association, trust, joint venture, or other entity—

(A) all of whose members are citizens of the United States; and

(B) that is capable of holding title to a vessel under the laws of the United States or of a State;

(3) a partnership whose general partners are citizens of the United States, and the controlling interest in the partnership is owned by citizens of the United States;

(4) a corporation established under the laws of the United States or of a State, whose chief executive officer, by whatever title, and chairman of its board of directors are citizens of the United States and no more of its directors are noncitizens than a minority of the number necessary to constitute a quorum;

(5) the United States Government; or

(6) the government of a State.

(b) A vessel is eligible for documentation only if it has been measured under part J of this subtitle. However, the Secretary of Transportation may issue a temporary certificate of documentation for a vessel before it is measured.

(c)(1) A vessel owned by a corporation, partnership, association, trust, joint venture, limited liability company, limited liability partnership, or any other entity is not eligible for a fishery endorsement under section 12108 of this title unless at least 75 per centum of the interest in such entity, at each tier of ownership of such entity and in the aggregate, is owned and controlled by citizens of the United States.

(2) The Secretary shall apply section 2(c) of the Shipping Act, 1916 (46 App. U.S.C. 802(c)) in determining under this subsection whether at least 75 per centum of the interest in a corporation, partnership, association, trust, joint venture, limited liability company, limited liability partnership, or any other entity is owned and controlled by citizens of the United States. For the purposes of this subsection and of applying the restrictions on controlling interest in section 2(c) of such Act, the terms “control” or “controlled”—

(A) shall include—

(i) the right to direct the business of the entity which owns the vessel;

(ii) the right to limit the actions of or replace the chief executive officer, a majority of the board of directors, any general partner, or any person serving in a management capacity of the entity which owns the vessel; or

(iii) the right to direct the transfer, operation or manning of a vessel with a fishery endorsement; and

(B) shall not include the right to simply participate in the activities under subparagraph (A), or the exercise of rights under loan or mortgage covenants by a mortgagee eligible to be a preferred mortgagee under section 31322(a) of this title, provided that a mortgagee not eligible to own a vessel with a fishery endorsement may only operate such a vessel to the extent necessary for the immediate safety of the vessel or for repairs, drydocking or berthing changes.

(3) A fishery endorsement for a vessel that is chartered or leased to an individual who is not a citizen of the United States or to an entity that is not eligible to own a vessel with a fishery endorsement and used as a fishing vessel shall be invalid immediately upon such use.

(4) The requirements of this subsection shall not apply to a vessel when it is engaged in fisheries in the exclusive economic zone under the authority of the Western Pacific Fishery Management Council established under section 302(a)(1)(H) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1852(a)(1)(H)) or to a purse seine vessel when it is engaged in tuna fishing in the Pacific Ocean outside the exclusive economic zone of the United States or pursuant to the South Pacific Regional Fisheries Treaty, provided that the owner of the vessel continues to comply with the eligibility requirements for a fishery endorsement under the federal ¹ law that was in effect on October 1, 1998. A fishery endorsement issued by the Secretary pursuant to this paragraph shall be valid for engaging only in fisheries in the exclusive economic zone under the authority of such Council, in such tuna fishing in the Pacific Ocean, or pursuant to such Treaty.

(5) A vessel greater than 165 feet in registered length, of more than 750 gross registered tons (as measured under chapter 145 of title 46) or 1,900 gross registered tons as ² measured under chapter 143 of that title), or that has an engine or engines capable of producing a total of more than 3,000 shaft horsepower is not eligible for a fishery endorsement under section 12108 of this title unless—

(A)(i) a certificate of documentation was issued for the vessel and endorsed with a fishery endorsement that was effective on September 25, 1997;

(ii) the vessel is not placed under foreign registry after the date of the enactment of the American Fisheries Act; and

(iii) in the event of the invalidation of the fishery endorsement after the date of the enactment of the American Fisheries Act, application is made for a new fishery endorsement within fifteen (15) business days of such invalidation; or

(B) the owner of such vessel demonstrates to the Secretary that the regional fishery management council of jurisdiction established under section 302(a)(1) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1852(a)(1)) has recommended after the date of the enactment of the American Fisheries Act, and the Secretary of Commerce has approved, conservation and management measures in accordance with such Act to allow such vessel to be used in fisheries under such council's authority.

(d)(1) For the issuance of a certificate of documentation with only a registry endorsement, subsection (a)(2)(A) of this section does not apply to a beneficiary of a trust that is qualified under paragraph (2) of this subsection if the vessel is subject to a charter to a citizen of the United States.

(2)(A) Subject to subparagraph (B) of this paragraph, a trust is qualified under this paragraph with respect to a vessel only if—

(i) each of the trustees is a citizen of the United States; and

(ii) the application for documentation of the vessel includes the affidavit of each trustee stating that the trustee is not aware of any reason involving a beneficiary of the trust that is not a citizen of the United States, or involving any other person that is not a citizen of the United States, as a result of which the beneficiary or other person would hold more than 25 percent of the aggregate power to influence or limit the exercise of the authority of the trustee with respect to matters involving any ownership or operation of the vessel that may adversely affect the interests of the United States.

(B) If any person that is not a citizen of the United States has authority to direct or participate in directing a trustee for a trust in matters involving any ownership or operation of the vessel that may adversely affect the interests of the United States or in removing a trustee for a trust without cause, either directly or indirectly through the control of another person, the trust is not qualified under this paragraph unless the trust instrument provides that persons who are not citizens of the United States may not hold more than 25 percent of the aggregate authority to so direct or remove a trustee.

(3) Paragraph (2) of this subsection shall not be considered to prohibit a person who is not a citizen of the United States from holding more than 25 percent of the beneficial interest in a trust.

(4) If a person chartering a vessel from a trust that is qualified under paragraph (2) of this subsection is a citizen of the United States under section 2 of the Shipping Act, 1916 (46 App. U.S.C. 802), then the vessel is deemed to be owned by a citizen of the United States for purposes of that section and related laws, except for subtitle B of title VI of the Merchant Marine Act, 1936.

(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 585; Pub. L. 99–509, title V, §5102(b)(6), Oct. 21, 1986, 100 Stat. 1927; Pub. L. 100–239, §7(a), Jan. 11, 1988, 101 Stat. 1782; Pub. L. 100–710, title I, §104(a)(4), (5), Nov. 23, 1988, 102 Stat. 4750; Pub. L. 101–225, title III, §301(a)(2), Dec. 12, 1989, 103 Stat. 1920; Pub. L. 104–324, title XI, §1136(a), Oct. 19, 1996, 110 Stat. 3986; Pub. L. 105–277, div. C, title II, §202(a), Oct. 21, 1998, 112 Stat. 2681–617; Pub. L. 105–383, title IV, §§401(a)(1), 421, Nov. 13, 1998, 112 Stat. 3424, 3439; Pub. L. 107–20, title II, §2202(a), July 24, 2001, 115 Stat. 168; Pub. L. 107–206, title I, §1103, Aug. 2, 2002, 116 Stat. 884.)

Section 12102 provides that vessels of at least five net tons, not registered under the laws of a foreign nation, are eligible for documentation if certain ownership requirements are met, and lists the ownership requirements.

References in Text

The date of the enactment of the American Fisheries Act, referred to in subsec. (c)(5), is the date of enactment of title II of div. C of Pub. L. 105–277, which was approved Oct. 21, 1998.

Such Act, referred to in subsec. (c)(5)(B), probably means the Magnuson-Stevens Fishery Conservation and Management Act, Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended, which is classified principally to chapter 38 (§1801 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 16 and Tables.

The Merchant Marine Act, 1936, referred to in subsec. (d)(4), is act June 29, 1936, ch. 858, 49 Stat. 1985, as amended. Subtitle B of title VI of the Act is classified generally to part B (§1187 et seq.) of subchapter VI of chapter 27 of Title 46, Appendix, Shipping. For complete classification of this Act to the Code, see section 1245 of Title 46, Appendix, and Tables.

Amendments

2002—Subsec. (c)(5). Pub. L. 107–206, which directed amendment of title II of division C of Public Law 105–277 by substituting “of more than 750 gross registered tons (as measured under chapter 145 of title 46) or 1,900 gross registered tons as measured under chapter 143 of that title)” for “of more than 750 gross registered tons” each place appearing, was executed by amending subsec. (c)(5) of this section, to reflect the probable intent of Congress. See 1998 Amendment note below.

2001—Subsec. (c)(2)(B). Pub. L. 107–20, §2202(a)(1), substituted “or the exercise of rights under loan or mortgage covenants by a mortgagee eligible to be a preferred mortgagee under section 31322(a) of this title, provided that a mortgagee not eligible to own a vessel with a fishery endorsement may only operate such a vessel to the extent necessary for the immediate safety of the vessel or for repairs, drydocking or berthing changes” for “or the use by a mortgagee under paragraph (4) of loan covenants approved by the Secretary”.

Subsec. (c)(4) to (6). Pub. L. 107–20, §2202(a)(2), which directed amendment of subsec. (c) “by striking paragraph (4) and renumbering the remaining paragraph accordingly”, was executed by striking par. (4) and redesignating pars. (5) and (6) as (4) and (5), respectively, to reflect the probable intent of Congress. Prior to amendment, par. (4) read as follows:

“(4)(A) An individual or entity that is otherwise eligible to own a vessel with a fishery endorsement shall be ineligible by reason of an instrument or evidence of indebtedness, secured by a mortgage of the vessel to a trustee eligible to own a vessel with a fishery endorsement that is issued, assigned, transferred or held in trust for a person not eligible to own a vessel with a fishery endorsement, unless the Secretary determines that the issuance, assignment, transfer, or trust arrangement does not result in an impermissible transfer of control of the vessel and that the trustee—

“(i) is organized as a corporation, and is doing business, under the laws of the United States or of a State;

“(ii) is authorized under those laws to exercise corporate trust powers;

“(iii) is subject to supervision or examination by an official of the United States Government or a State;

“(iv) has a combined capital and surplus (as stated in its most recent published report of condition) of at least $3,000,000; and

“(v) meets any other requirements prescribed by the Secretary.

“(B) A vessel with a fishery endorsement may be operated by a trustee only with the approval of the Secretary.

“(C) A right under a mortgage of a vessel with a fishery endorsement may be issued, assigned, or transferred to a person not eligible to be a mortgagee of that vessel under section 31322(a)(4) of this title only with the approval of the Secretary.

“(D) The issuance, assignment, or transfer of an instrument or evidence of indebtedness contrary to this paragraph is voidable by the Secretary.”

1998—Subsec. (a). Pub. L. 105–383, §401(a)(1), struck out “or is not titled in a State” after “a foreign country” in introductory provisions.

Subsec. (a)(4). Pub. L. 105–383, §421, struck out “president or other” after “a State, whose” and inserted “, by whatever title,” after “chief executive officer”.

Subsec. (c). Pub. L. 105–277, §202(a), as amended by Pub. L. 107–206, amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows:

“(c)(1) A vessel owned by a corporation is not eligible for a fishery endorsement under section 12108 of this title unless the controlling interest (as measured by a majority of voting shares in that corporation) is owned by individuals who are citizens of the United States. However, if the corporation is owned in whole or in part by other United States corporations, the controlling interest in those corporations, in the aggregate, must be owned by individuals who are citizens of the United States.

“(2) The Secretary shall apply the restrictions on controlling interest in section 2(b) of the Shipping Act, 1916 (46 App. U.S.C. 802(b)) when applying this subsection.”

1996—Subsec. (d). Pub. L. 104–324 added subsec. (d).

1989—Subsec. (a). Pub. L. 101–225, §301(a)(2)(A), inserted “that is” before “not” and “or is not titled in a State” after “foreign country”.

Subsecs. (b), (c). Pub. L. 101–225, §301(a)(2)(B)–(D), redesignated former subsec. (b), relating to eligibility of a vessel owned by a corporation for a fishery license, as (c), substituted “fishery endorsement” for “fishery license” in par. (1), and struck out former subsec. (c) which provided that a vessel titled in a State was eligible for documentation only if the State certificate of title was surrendered.

1988—Pub. L. 100–710 directed insertion of “of Transportation” after “Secretary” in subsec. (b), which was executed by making insertion in subsec. (b) relating to eligibility of a vessel for documentation after having been measured under part J, as probable intent of Congress, and added subsec. (c).

Pub. L. 100–239, §7(a), directed that “(a)” be inserted before “A vessel”, which was not executed because of a similar amendment by Pub. L. 99–509, and added at end subsec. (b) relating to eligibility of a vessel owned by a corporation for a fishery license under section 12108 of this title.

1986—Pub. L. 99–509 designated existing provisions as subsec. (a) and added subsec. (b) relating to eligibility of a vessel for documentation after having been measured under part J.

Effective Date of 2001 Amendment

Pub. L. 107–20, title II, §2202(d), July 24, 2001, 115 Stat. 170, provided that: “Section 31322 of title 46, United States Code as amended in this section, and as amended by section 202(b) of the American Fisheries Act (Public Law 105–277, division C, title II) shall not take effect until April 1, 2003, nor shall the Secretary of Transportation, in determining whether a vessel owner complies with the requirements of section 12102(c) of title 46, United States Code, consider the citizenship status of a lender, in its capacity as a lender with respect to that vessel owner, until after April 1, 2003.”

Effective Date of 1998 Amendment

Pub. L. 105–277, div. C, title II, §203(a), Oct. 21, 1998, 112 Stat. 2681–619, provided that: “The amendments made by section 202 [amending this section and section 31322 of this title] shall take effect on October 1, 2001.”

Effective Date of 1989 Amendment

Amendments by section 301(a)(2) of Pub. L. 101–225 effective Jan. 1, 1989, except that amendment by section 301(a)(2)(A) inapplicable to a vessel titled in a State until one year after the Secretary of Transportation prescribes guidelines for a titling system under section 13106(b)(8) of this title, see section 309(b)(1) of Pub. L. 101–225, set out as a note under section 12101 of this title.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–710 effective Jan. 1, 1989, with certain exceptions and qualifications, see section 107 of Pub. L. 100–710, set out as an Effective Date note under section 30101 of this title.

Regulations; Enforcement of Standard

Pub. L. 105–277, div. C, title II, §203(b)–(e), Oct. 21, 1998, 112 Stat. 2681–619, provided that:

“(b) Regulations.—Final regulations to implement this subtitle [subtitle I (§§201–204) of title II of div. C of Pub. L. 105–277, amending this section and sections 12122 and 31322 of this title, enacting provisions set out as notes under this section and section 2101 of this title, and repealing provisions set out as a note under this section] shall be published in the Federal Register by April 1, 2000. Letter rulings and other interim interpretations about the effect of this subtitle and amendments made by this subtitle on specific vessels may not be issued prior to the publication of such final regulations. The regulations to implement this subtitle shall prohibit impermissible transfers of ownership or control, specify any transactions which require prior approval of an implementing agency, identify transactions which do not require prior agency approval, and to the extent practicable, minimize disruptions to the commercial fishing industry, to the traditional financing arrangements of such industry, and to the opportunity to form fishery cooperatives.

“(c) Vessels Measuring 100 Feet and Greater.—(1) The Administrator of the Maritime Administration shall administer section 12102(c) of title 46, United States Code, as amended by this subtitle, with respect to vessels 100 feet or greater in registered length. The owner of each such vessel shall file a statement of citizenship setting forth all relevant facts regarding vessel ownership and control with the Administrator of the Maritime Administration on an annual basis to demonstrate compliance with such section. Regulations to implement this subsection shall conform to the extent practicable with the regulations establishing the form of citizenship affidavit set forth in part 355 of title 46, Code of Federal Regulations, as in effect on September 25, 1997, except that the form of the statement under this paragraph shall be written in a manner to allow the owner of each such vessel to satisfy any annual renewal requirements for a certificate of documentation for such vessel and to comply with this subsection and section 12102(c) of title 46, United States Code, as amended by this Act, and shall not be required to be notarized.

“(2) After October 1, 2001, transfers of ownership and control of vessels subject to section 12102(c) of title 46, United States Code, as amended by this Act, which are 100 feet or greater in registered length, shall be rigorously scrutinized for violations of such section, with particular attention given to leases, charters, mortgages, financing, and similar arrangements, to the control of persons not eligible to own a vessel with a fishery endorsement under section 12102(c) of title 46, United States Code, as amended by this Act, over the management, sales, financing, or other operations of an entity, and to contracts involving the purchase over extended periods of time of all, or substantially all, of the living marine resources harvested by a fishing vessel.

“(d) Vessels Measuring Less Than 100 Feet.—The Secretary of Transportation shall establish such requirements as are reasonable and necessary to demonstrate compliance with section 12102(c) of title 46, United States Code, as amended by this Act, with respect to vessels measuring less than 100 feet in registered length, and shall seek to minimize the administrative burden on individuals who own and operate such vessels.

“(e) Endorsements Revoked.—The Secretary of Transportation shall revoke the fishery endorsement of any vessel subject to section 12102(c) of title 46, United States Code, as amended by this Act, whose owner does not comply with such section.”

Inapplicability of Subsection (c)(5) to Certain Menhaden Fisheries

Pub. L. 106–31, title III, §3027(c), May 21, 1999, 113 Stat. 102, provided that: “The limitation on registered length contained in section 12102(c)(6) [now section 12102(c)(5)] of title 46, United States Code, shall not apply to a vessel used solely in any menhaden fishery which is located in the Gulf of Mexico or along the Atlantic coast south of the area under the authority of the New England Fishery Management Council for so long as such vessel is used in such fishery.”

Application of Section to Fishing Vessels in California

Citizen of the United States to include an alien lawfully admitted for permanent residence, for purposes of applying this section to vessels operating in waters off the coast of California, subject to United States jurisdiction, see section 317 of Pub. L. 101–595, set out as a note under section 8103 of this title.

Applicability of Subsection (b)

Section 7(b) of Pub. L. 100–239 provided that subsec. (b) of this section applied to vessels issued a fishery license after July 28, 1987, with exceptions for certain vessels documented under this chapter or contracted for purchase for use as fishing or fish processing vessels, prior to repeal by Pub. L. 105–277, div. C, title II, §204, Oct. 21, 1998, 112 Stat. 2681–620, effective Oct. 1, 2001.

Temporary Restriction on Documentation of Foreign-Built Fish Processing Vessels

Pub. L. 100–111, Aug. 20, 1987, 101 Stat. 733, as amended by Pub. L. 100–151, §2, Nov. 3, 1987, 101 Stat. 884, provided: “That notwithstanding chapter 121 of title 46 of the United States Code, the Secretary of the department in which the Coast Guard is operating may not document a foreign-built vessel for which an application for documentation was submitted after July 20, 1987, for use as a fish processing vessel as defined in section 2101(11b) of title 46, United States Code. This prohibition is effective until November 15, 1987. The Secretary may issue regulations to obtain information about the intended use of a vessel for which an application for documentation has been submitted to prevent the documentation of a foreign-built fish processing vessel.”

Section Referred to in Other Sections

This section is referred to in sections 12103a, 12106, 12112, 12122, 31322, 31329 of this title; section 1704 of Appendix to this title.

¹ So in original. Probably should be capitalized.

² So in original. Probably should be “(as”.