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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 20:20:1.0.2.11.63.0.155.1 | 20 | Employees' Benefits | II | E | 356 | PART 356—CIVIL MONETARY PENALTY INFLATION ADJUSTMENT | § 356.1 Introduction. | SSA | (a) The Federal Civil Penalties Inflation Adjustment Act, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (28 U.S.C. 2461 note), requires that civil monetary penalties be adjusted on an annual basis by the percentage by which the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the adjustment exceeds the CPI-U for the month of October of the calendar year prior to the October preceding the adjustment, with final amounts rounded to the nearest dollar. That Act also requires a one-time catch up adjustment in the amount of the percentage by which the CPI-U for October 2015 exceeds the CPI-U for the month of October of the calendar year during which the amount of civil monetary penalty was established or adjusted under a provision of law other than the Federal Civil Penalties Inflation Adjustment Act. (b) Other than adjustments under the Federal Civil Penalties Inflation Adjustment Act, the Board last established or adjusted civil monetary penalties in 1986. The CPI-U increased by 215.628 percent between October 1986 and October 2015. (c) Imposition of the increased civil monetary penalties are limited to actions occurring after the effective date of the increases. (d) The amount of the one-time catch up adjustment may not exceed 150 percent of the penalty amount or range as of November 2, 2015. The ten percent cap on increases imposed by the Debt Collection Improvements Act of 1996 was eliminated in the 2015 amendments to the Federal Civil Penalties Inflation Adjustment Act, and is no longer applicable. | ||||||
| 20:20:1.0.2.11.63.0.155.2 | 20 | Employees' Benefits | II | E | 356 | PART 356—CIVIL MONETARY PENALTY INFLATION ADJUSTMENT | § 356.2 Penalties under the Program Fraud Civil Remedies Act of 1986. | SSA | (a) For claims or statements made on or before October 23, 1996, the maximum penalty which may be assessed under part 355 of this chapter is $5,000. (b) For claims or statements made after October 23, 1996, but before August 1, 2016, the maximum penalty which may be assessed under part 355 of this chapter is $5,500. (c) For claims or statements made on or after August 1, 2016, but before January 1, 2017, the maximum penalty which may be assessed under part 355 of this chapter is $10,781. (d) For claims or statements made on or after January 1, 2017, the maximum penalty which may be assessed under part 355 of this chapter is the larger of: (1) The amount for the previous calendar year; or (2) An amount adjusted for inflation, calculated by multiplying the amount for the previous calendar year by the percentage by which the CPI-U for the month of October preceding the current calendar year exceeds the CPI-U for the month of October of the calendar year two years prior to the current calendar year, adding that amount to the amount for the previous calendar year, and rounding the total to the nearest dollar. (e) Notice of the maximum penalty which may be assessed under part 355 of this chapter for calendar years after 2016 will be published by the Board in the Federal Register on an annual basis on or before January 15 of each calendar year. | ||||||
| 20:20:1.0.2.11.63.0.155.3 | 20 | Employees' Benefits | II | E | 356 | PART 356—CIVIL MONETARY PENALTY INFLATION ADJUSTMENT | § 356.3 False claims. | SSA | (a) For claims or statements made on or before October 23, 1996, the minimum penalty which may be assessed under 31 U.S.C. 3729 is $5,000 and the maximum penalty is $10,000. (b) For claims or statements made after October 23, 1996, but before August 1, 2016, the minimum penalty which may be assessed under 31 U.S.C. 3729 is $5,500 and the maximum penalty is $11,000. (c) For claims or statements made on or after August 1, 2016, but before January 1, 2017, the minimum penalty which may be assessed under 31 U.S.C. 3729 is $10,781 and the maximum penalty is $21,563. (d) For claims or statements made on or after January 1, 2017, the minimum and maximum penalty amounts which may be assessed under 31 U.S.C. 3729 is the larger of: (1) The amount for the previous calendar year; or (2) An amount adjusted for inflation, calculated by multiplying the amount for the previous calendar year by the percentage by which the CPI-U for the month of October preceding the current calendar year exceeds the CPI-U for the month of October of the calendar year two years prior to the current calendar year, adding that amount to the amount for the previous calendar year, and rounding the total to the nearest dollar. (e) Notice of the minimum and maximum penalty which may be assessed under 31 U.S.C. 3729 for calendar years after 2016 will be published by the Board in the Federal Register on an annual basis on or before January 15 of each calendar year. | ||||||
| 46:46:8.0.1.11.34.1.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | A | Subpart A—General Provisions | § 356.1 Purpose. | FMC | (a) Part 356 implements the U.S. Citizenship requirements of the American Fisheries Act of 1998, as amended, Title II, Division C, Public Law 105-277, for owners, Mortgage Trustees, and Mortgagees of vessels of 100 feet or greater in registered length that have a fishery endorsement to the vessel's documentation or where a fishery endorsement to the vessel's documentation is being sought. This part also addresses ancillary matters of charters, management agreements, exclusive sales or marketing contracts, conflicts with international agreements, determinations regarding violations of harvesting or processing limits, and exceptions for certain vessels, vessel owners and Mortgagees from the general requirements of the rule. (b) An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. Part 356 establishes a new requirement for the collection of information. The Office of Management and Budget (“OMB”) has reviewed and approved the information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ) and assigned OMB control number 2133-0530 to the information collection requirements of this part 356. | ||||
| 46:46:8.0.1.11.34.1.12.2 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | A | Subpart A—General Provisions | § 356.2 Waivers. | FMC | [66 FR 45947, Aug. 31, 2001] | 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. | |||
| 46:46:8.0.1.11.34.1.12.3 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | A | Subpart A—General Provisions | § 356.3 Definitions. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5576, Feb. 4, 2003] | For the purpose of this part, when used in capitalized form: (a) 1916 Act refers to section 2 of the Shipping Act, 1916, as amended, 46 App. U.S.C. 802. The Controlling Interest requirements of the Shipping Act are found in section 2(b), 46 App. U.S.C. section 802(b). The citizenship requirements for eligibility to own a vessel with a fisheries endorsement are found in section 2(c), 46 App. U.S.C. 802(c), and 46 U.S.C. 12102(c). (b) AFA means the American Fisheries Act of 1998, as amended, Title II, Division C, of Public Law 105-277; (c) Affiliate or Affiliated refers to a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the first Person. For the purposes of this definition the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise. (d) Charter means any agreement or commitment by which the possession or services of a Fishing Industry Vessel are secured for a period of time, or for one or more voyages, whether or not a bareboat charter of the vessel. A long-term or exclusive contract for the sale of all or a portion of a Fishing Vessel's catch is not considered a Charter. (e) Citizen of the United States, Citizen or U.S. Citizen: (1) Means an individual who is a Citizen of the United States, by birth, naturalization or as otherwise authorized by law, or an entity that in both form and substance, at each tier of ownership and in the aggregate, satisfies the requirements of 46 U.S.C. 12102(c) and section 2(c) of the 1916 Act, 46 App. U.S.C. 802(c). In order to satisfy the statutory requirements an entity other than an individual must meet the requirements of paragraph (e)(2) of this section and the following criteria: (i) The entity must be organized under… | |||
| 46:46:8.0.1.11.34.2.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | B | Subpart B—Ownership and Control | § 356.5 Affidavit of U.S. Citizenship. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5577, Feb. 4, 2003] | (a) In order to establish that a corporation or other entity is a Citizen of the United States within the meaning of section 2(c) of the 1916 Act, or where applicable, section 2(b) of the 1916 Act, the form of Affidavit is hereby prescribed for execution in behalf of the owner, charterer, Mortgagee, or Mortgage Trustee of a Fishing Industry Vessel. Such Affidavit must include information required of parent corporations and other stockholders whose stock ownership is being relied upon to establish that the requisite ownership in the entity is owned by and vested in Citizens of the United States. A certified copy of the Articles of Incorporation and Bylaws, or comparable corporate documents, must be submitted along with the executed Affidavit. (b) This Affidavit form set forth in paragraph (d) of this section may be modified to conform to the requirements of vessel owners, Mortgagees, or Mortgage Trustees in various forms such as partnerships, limited liability companies, etc. A copy of an Affidavit of U.S. Citizenship modified appropriately, for limited liability companies, partnerships (limited and general), and other entities is available on MARAD's internet home page at http://www.marad.dot.gov. (c) As indicated in § 356.17, in order to renew annually the fishery endorsement on a Fishing Industry Vessel, the owner must submit annually to the Citizenship Approval Officer evidence of U.S. Citizenship within the meaning of section 2(c) of the 1916 Act and 46 App. U.S.C. 12102(c). (d) The prescribed form of the Affidavit of U.S. Citizenship is as follows: State of ________ County of ________ Social Security Number: ____________ I, ____________, (Name) of ____________, (Residence address) being duly sworn, depose and say: 1. That I am the ________ (Title of office(s) held) of ________, (Name of corporation) a corporation organized and existing under the laws of the State of________ (hereinafter called the “Corporation”), with offices at ____________, (Business address) in evidence of which incorporation a… | |||
| 46:46:8.0.1.11.34.2.12.2 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | B | Subpart B—Ownership and Control | § 356.7 Methods of establishing ownership by United States Citizens. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5579, Feb. 4, 2003] | (a) An entity may demonstrate that the interest in the entity (75% for Citizens of the United States or 51% for entities meeting the Controlling Interest requirements) is owned by Citizens of the United States either by direct proof or through the fair inference method depending on the size of the entity. (b) The “direct proof” method is used for closely held companies that have 30 or fewer stockholders. Under the direct proof method, the following information must be set forth in paragraph four of the Affidavit of U.S. Citizenship: (1) The identity of the holders of stock or other equitable interests; (2) The amount of stock or interest that each stockholder owns; (3) A representation as to the citizenship of the stockholder; and (4) If the stockholder is a corporation or other entity, the names and citizenship of officers, directors, stockholders, etc. must be set out in the Affidavit of U.S. Citizenship. (c) The “fair inference method” is used by corporations whose stock is publicly traded (more than 30 stockholders). Use of the fair inference method requires that: (1)(i) At least 95% of the stock (each class) of the corporation be held by Persons having a registered U.S. address in order to infer at least 75% ownership by U.S. Citizens, or (ii) At least 65% of the stock (each class) of the corporation be held by Persons having a registered U.S. address in order to infer at least 51% ownership by U.S. Citizens; and (2) Disclosure be made in the Affidavit of U.S. Citizenship of the names and citizenship of any stockholders who holds five percent or more of the corporation's stock (including all classes of stock, voting and non-voting), officers, and directors. (d) If the owner of a Fishing Industry Vessel is consecutively owned by several “parent” corporations, the facts revealing the stock ownership of each entity must be set forth in the Affidavit of U.S. Citizenship. | |||
| 46:46:8.0.1.11.34.2.12.3 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | B | Subpart B—Ownership and Control | § 356.9 Tiered ownership structures. | FMC | Non-Citizens may not own or control, either directly through the first tier of ownership or in the aggregate through an interest in other entities at various tiers, more than 25% of the interest in an entity which owns a Fishing Industry Vessel. The prohibition against Non-Citizens owning or controlling more than 25%, in the aggregate, of the interest in an entity that owns a Fishing Industry Vessel means, for example, that: (a) Non-Citizens that own or control a 25% stake in the ownership entity of a Fishing Industry Vessel at the first tier may not have any interest whatsoever in any entity that is being relied upon to establish the required 75% U.S. Citizen ownership; and (b) Non-Citizens that own or control less than a 25% stake at the first tier may participate in the ownership and control of other entities that are being relied upon to establish the required 75% U.S. Citizen ownership and control at the first tier. However, the total ownership and control by Non-Citizens of the entity owning a Fishing Industry Vessel may not exceed 25% in the aggregate as computed by MARAD. | ||||
| 46:46:8.0.1.11.34.2.12.4 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | B | Subpart B—Ownership and Control | § 356.11 Impermissible control by a Non-Citizen. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5579, Feb. 4, 2003] | (a) An impermissible transfer of control will be deemed to exist where a Non-Citizen, whether by agreement, contract, influence, or any other means whatsoever: (1) Has the right to direct the business of the entity which owns the Fishing Industry Vessel. The right to “direct the business of the entity” does not include the right to simply participate in the direction of the business activities of an entity which owns a Fishing Industry Vessel; (2) Has the right in the ordinary course of business 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 Fishing Industry Vessel. Standard rights of minority shareholders to restrict the actions of the entity are permitted provided they are unrelated to day-to-day business activities. These rights include provisions to require the consent of the minority shareholder to sell all or substantially all of the assets, to enter into a different business, to contract with the majority investors or their affiliates or to guarantee the obligations of majority investors or their affiliates; (3) Has the right to direct the transfer, operation, or manning of a Fishing Industry Vessel. The right to “direct the transfer, operation, or manning” of such vessels does not include the right to simply participate in the direction of the transfer, operation, and manning of such vessels; (4) Has the right to restrict unduly the day-to-day business activities and management policies of the entity owning a Fishing Industry Vessel through loan covenants other than those approved for use by the Citizenship Approval Officer or other means; (5) Has the right to derive, through a minority shareholder and in favor of a Non-Citizen, a significantly disproportionate amount of the economic benefit from the ownership and operation of the Fishing Industry Vessel; (6) Has the right to control the management of or to be a controlling factor in the entity owning… | |||
| 46:46:8.0.1.11.34.3.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | C | Subpart C—Requirements for Vessel Owners | § 356.13 Information required to be submitted by vessel owners. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5579, Feb. 4, 2003] | (a) In order to be eligible to document a Fishing Industry Vessel with a fishery endorsement, the entity that owns the vessel must submit documentation to demonstrate that 75 percent (75%) of the interest in such entity is owned and controlled by Citizens of the United States. Unless otherwise exempted, the following documents must be submitted to the Citizenship Approval Officer in support of a request for a determination of U.S. Citizenship: (1) An Affidavit of U.S. Citizenship. This affidavit, set out in § 356.15, must contain all required facts, at all tiers of ownership, needed for determining the citizenship of the owner of the Fishing Industry Vessel. (2) A certified copy of the Articles of Incorporation and Bylaws of the owner of the Fishing Industry Vessel, and any parent corporation, must be submitted. The certification must be by the Secretary of State in which the corporation is incorporated or by the Secretary of the corporation. For entities other than corporations, comparable certified documents must be submitted. For example, for a limited liability company, a copy of the Certificate of Formation filed with a State must be submitted, along with a certified copy of the Limited Liability Company Operating Agreement; (3) An Affidavit of U.S. Citizenship for each charterer of a Fishing Industry Vessel, with the exception of time or voyage charterers of Fish Processing Vessels and Fish Tender Vessels permitted under § 356.39(b)(2); (4) A copy of any time charter or voyage charter to a Non-Citizen of a Fish Tender Vessel or Fish Processing Vessel; (5) Any loan agreements or other financing documents applicable to a Fishing Industry Vessel where the lender has not been approved by MARAD to hold a Preferred Mortgage on Fishing Industry Vessels, excepting financing documents that are exempted from review pursuant to § 356.19(d) and loan documents that have received general approval from the Citizenship Approval Officer pursuant to § 356.21 for use with an approved Mortgage Trustee. (6) A description … | |||
| 46:46:8.0.1.11.34.3.12.2 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | C | Subpart C—Requirements for Vessel Owners | § 356.15 Filing of affidavit of U.S. Citizenship. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5579, Feb. 4, 2003] | (a) New owners of Fishing Industry Vessel after October 1, 2001, must file the Affidavit of U.S. Citizenship and other required documentation with the Citizenship Approval Officer in order for the Citizenship Approval Officer to make a determination whether the owner is eligible to own a vessel with a fishery endorsement to the vessel's documentation. A vessel may not receive a fishery endorsement to its documentation or operate in the fisheries of the United States before this determination has been made. (b) If the Citizenship Approval Officer believes that there is a defect in the Affidavit of U.S. Citizenship or the supporting documentation, the applicant will be notified and will be given an opportunity to work with the Citizenship Approval Officer to resolve the matter before a determination is made whether the applicant qualifies as a U.S. Citizen. (c) A vessel owner that has a valid fishery endorsement prior to October 1, 2001, must obtain a citizenship determination from the Citizenship Approval Officer no later than October 1, 2001, which states that the owner is a U.S. Citizen eligible to own a vessel with a fishery endorsement. If the owner obtains the required determination from the Citizenship Approval Officer, the fishery endorsement will remain valid and will be subject to renewal at the time of its next regularly scheduled annual filing to document the vessel with the Coast Guard, at which point the owner will be required to obtain an annual ruling from the MARAD's Citizenship Approval Officer that it is still a U.S. Citizen. If a vessel owner that owns a vessel with a valid fishery endorsement prior to October 1, 2001, does not obtain the required determination from the Citizenship Approval Officer by October 1, 2001, the vessel's fishery endorsement may be deemed invalid. In order to obtain a new fishery endorsement, the vessel owner will be required to obtain a citizenship determination from the Citizenship Approval Officer and to apply to the U.S. Coast Guard for a new fishery endorsement. … | |||
| 46:46:8.0.1.11.34.3.12.3 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | C | Subpart C—Requirements for Vessel Owners | § 356.17 Annual requirements for vessel owners. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5579, Feb. 4, 2003] | (a) An owner of a Fishing Industry Vessel must submit a certification in the form of an Affidavit of United States Citizenship to the Citizenship Approval Officer on an annual basis as provided in paragraph (b) of this section. The vessel owner does not have to submit duplicate copies of documents that have already been submitted and that have not changed, provided a copy is still retained by us. This annual certification requirement does not excuse the owner from the requirements of § 356.5 to notify the Citizenship Approval Officer throughout the year when changes in the citizenship information occur. (b) The annual certification required by paragraph (a) of this section must be filed at least 45 days prior to the renewal date for the vessel's documentation and fishery endorsement. Where multiple Fishing Industry Vessels are owned by the same entity or by entities that ultimately have common ownership, an Affidavit of U.S. Citizenship and supporting documentation may be filed for all of the vessels in conjunction with the first vessel documentation renewal during each calendar year. Any information or supporting documentation unique to a particular vessel that would normally be required to be submitted under § 356.13 or any other provision of this part 356 such as charters, management agreements, loans or financing agreements, sales, purchase or marketing agreements, or exemptions claimed under this part must be submitted with the annual filing for that vessel if the documents are not already on file with the Citizenship Approval Officer. (c) Failure to file the annual certification in a timely manner may result in the expiration of the vessel's fishery endorsement, which will prohibit the vessel from operating in the fisheries of the United States. | |||
| 46:46:8.0.1.11.34.4.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | D | Subpart D—Mortgages | § 356.19 Requirements to hold a Preferred Mortgage. | FMC | [68 FR 5579, Feb. 4, 2003] | (a) In order for a Mortgagee to be eligible to obtain a Preferred Mortgage on a Fishing Industry Vessel, it must be: (1) A Citizen of the United States; (2) A state or federally chartered financial institution that is insured by the Federal Deposit Insurance Corporation; (3) A farm credit lender established under title 12, chapter 23, of the United States Code (12 U.S.C. 2001 et seq. ); (4) A commercial fishing and agriculture bank established pursuant to State law; (5) A Commercial Lender organized under the laws of the United States or of a State and eligible to own a vessel under 46 U.S.C. 12102(a); or (6) A Mortgage Trustee that complies with the requirements of 46 U.S.C. 31322(f) and 46 CFR 356.27 through 356.37. (b) A Mortgagee must demonstrate to the Citizenship Approval Officer that it satisfies one of the requirements set forth in paragraph (a) of this section before it will be qualified to obtain a Preferred Mortgage on a Fishing Industry Vessel after April 1, 2003. A Mortgagee that has an existing Preferred Mortgage on a Fishing Industry Vessel prior to April 1, 2003, will be required to demonstrate that it satisfies one of the requirements set forth in paragraph (a) of this section before the vessel's next certificate of documentation renewal date after April 1, 2003. Failure to submit the required information may result in the loss of the preferred status for the mortgage. A sample format that may be used to submit the required information for Mortgagees, Commercial Lenders and Lender Syndicates is available on the MARAD website at http://www.marad.dot.gov/afa.html. The required information that must be submitted in order to make such a demonstration for each category in paragraph (a) is as follows: (1) If a Mortgagee plans to qualify as a United States Citizen under paragraph (a)(1) of this section, the Mortgagee must file an Affidavit of United States Citizenship demonstrating that it complies with the citizenship requirements of 46 U.S.C. 12102(c) and section 2(c) of the 1916 Act, which… | |||
| 46:46:8.0.1.11.34.4.12.2 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | D | Subpart D—Mortgages | § 356.21 General approval of standard loan or mortgage agreements. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5581, Feb. 4, 2003] | (a) A lender that is engaged in the business of financing Fishing Industry Vessels and that is not a Commercial Lender or Lender Syndicate using a Mortgage Trustee to hold a Preferred Mortgage for its benefit or an entity that is otherwise qualified to hold a Preferred Mortgage on Fishing Industry Vessels pursuant to § 356.19(a)(2) through (a)(5), may apply to the Citizenship Approval Officer for general approval of its standard loan and mortgage agreements for such vessels. In order to obtain general approval for its standard loan and mortgage agreements, a lender using an approved Mortgage Trustee must submit to the Citizenship Approval Officer: (1) A copy of its standard loan or mortgage agreement for Fishing Industry Vessel, including all covenants that may be included in the loan or mortgage agreement; and, (2) A certification that it will not use covenants or restrictions in the loan or mortgage agreement outside of those approved by the Citizenship Approval Officer without obtaining the prior approval of the Citizenship Approval Officer. (b) A lender that receives general approval may enter into loans and mortgages on Fishing Industry Vessel without prior approval from us of each individual loan or mortgage; provided, that the loan or mortgage conforms to the standard agreement approved by the Citizenship Approval Officer and does not include any other covenants that have not been approved by the Citizenship Approval Officer. (c) The lender must provide an annual certification to the Citizenship Approval Officer certifying that all loans and mortgages on Fishing Industry Vessel entered into under this general approval conform to the standard agreement approved by us and do not contain deviations from the standard agreement or covenants that were not reviewed and approved by the Citizenship Approval Officer. The certification must be submitted at least 30 calendar days prior to the annual anniversary date of the previous approval. (d) If the lender wishes to use covenants that were not approved pursu… | |||
| 46:46:8.0.1.11.34.4.12.3 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | D | Subpart D—Mortgages | § 356.23 Restrictive loan covenants approved for use by lenders. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5581, Feb. 4, 2003] | (a) We approve the following standard loan covenants, which may restrict the activities of the borrower without the lender's consent and which may be included in loan agreements or other documents between an owner of a Fishing Industry Vessel and an unrelated lender that is using an approved Mortgage Trustee to hold the mortgage and debt instrument for the benefit of the lender and that is not exempted under § 356.19(d) from MARAD review of its loan and mortgage covenants, so long as the lender's consent is not unreasonably withheld: (1) Borrower cannot sell part or all of its assets; (2) Borrower cannot merge, consolidate, reorganize, dissolve, or liquidate; (3) Borrower cannot undertake new borrowing or contingent liabilities; (4) Borrower cannot insure, guaranty or become otherwise liable for debt obligations of any other entity, Person, etc.; (5) Borrower cannot Charter or lease a vessel that is collateral for the loan; (6) Borrower cannot incur liens, except any permitted liens that may be set forth in the loan or other financing documents; (7) Borrower must limit its investments to marketable investments guaranteed by the United States or a State, or commercial paper with the highest rating of a generally recognized rating service; (8) Borrower cannot make structural alterations or any other major alteration to the vessel; (9) Borrower, if in arrears in its debt obligations to the lender, cannot make dividend payments on its capital stock; and, (10) Borrower, if in arrears in its debt obligations to the lender, cannot make excessive contributions to pension plans, make payment of employee bonuses, or make excessive contributions to stock option plans, or provide other major fringe benefits in terms of dollar amount to its employees, officers, and directors, such as loans, etc. (b) The mortgage may not include covenants that allow the Mortgagee to operate the vessel except as provided for in § 356.25. | |||
| 46:46:8.0.1.11.34.4.12.4 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | D | Subpart D—Mortgages | § 356.25 Operation of Fishing Industry Vessel Mortgagees. | FMC | (a) A Mortgagee that has demonstrated to MARAD that it qualifies as a Citizen of the United States and is eligible to own a vessel with a fishery endorsement may operate a Fishing Industry Vessel. (b) A Mortgagee not eligible to own a Fishing Industry Vessel cannot operate or cause operation of, the vessel in the fisheries of the United States. Except as provided in paragraph (c) of this section, the vessel may not be operated for any purpose without the prior written approval of the Citizenship Approval Officer. (c) A Mortgagee not eligible to own a Fishing Industry Vessel may operate the vessel for a non-commercial purpose to the extent necessary for the immediate safety of the vessel or for repairs, drydocking or berthing changes; provided, that the vessel is operated under the command of a Citizen of the United States and for no longer than 15 calendar days. (d) A Mortgagee that is holding a Preferred Mortgage on a Fishing Industry Vessel but that is not eligible to own a Fishing Industry Vessel may take possession of the vessel in the event of default by the mortgagor other than by foreclosure pursuant to 46 U.S.C. 31329, if provided for in the mortgage or a related financing document. However, the vessel may not be operated, or caused to be operated in commerce, except as provided in paragraph (c) of this section or with the approval of the Citizenship Approval Officer. (e) A Non-Citizen Lender that has brought a civil action in rem for enforcement of a Preferred Mortgage lien on a Citizen-owned Fishing Industry Vessel pursuant to 46 U.S.C. 31325(b)(1) may petition the court pursuant to 46 U.S.C. 31325(e)(1) for appointment of a receiver, and, if the receiver is a Person eligible to own a Fishing Industry Vessel , to authorize the receiver to operate the mortgaged vessel pursuant to terms and conditions consistent with this part 356. If the receiver is not a Citizen of the United States that meets the requirements of section 2(c) of the 1916 Act, 46 App. U.S.C. 802(c), and 46 U.S.C. 12102(c), the vessel… | ||||
| 46:46:8.0.1.11.34.5.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | E | Subpart E—Mortgage Trustees | § 356.27 Mortgage Trustee requirements. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5581, Feb. 4, 2003] | (a) A lender who is not qualified under § 356.19(a)(1) through (5) to hold a Preferred Mortgage directly on a Fishing Industry Vessel may use a qualified Mortgage Trustee to hold, for the benefit of the lender, the Preferred Mortgage and the debt instrument for which the Preferred Mortgage is providing security. (b) In order to qualify as an approved Mortgage Trustee, the Mortgage Trustee must: (1) Be eligible to hold a Preferred Mortgage on a Fishing Industry Vessel under § 356.19(a)(1) through (a)(5); (2) Be organized as a corporation and doing business under the laws of the United States or of a State; (3) Be authorized under the laws of the United States or of the State under which it is organized to exercise corporate trust powers; (4) Be subject to supervision or examination by an official of the United States Government, or of a State; (5) Have a combined capital and surplus (as stated in its most recent published report of condition) of at least $3,000,000; and (6) Meet any other requirements prescribed by the Citizenship Approval Officer. (c) The Mortgage Trustee must submit to the Citizenship Approval Officer the following documentation in order to be an approved Mortgage Trustee: (1) An application for approval as a Mortgage Trustee as set out in paragraph (g) of this section; (2) The appropriate certification and documentation required under § 356.19(b)(1) through (5) to demonstrate that it is qualified to hold a Preferred Mortgage on Fishing Industry Vessels; (3) A copy of the most recent published report of condition of the Mortgage Trustee; and, (4) A certification that the Mortgage Trustee is authorized under the laws of the United States or of a State to exercise corporate trust powers and is subject to supervision or examination by an official of the United States or of a State; (5) A certification that the Mortgage Trustee is authorized under the laws of the United States or of a State to exercise corporate trust powers and is subject to supervision or examination by an official of… | |||
| 46:46:8.0.1.11.34.5.12.2 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | E | Subpart E—Mortgage Trustees | § 356.31 Maintenance of Mortgage Trustee approval. | FMC | [68 FR 5582, Feb. 4, 2003] | (a) A Mortgage Trustee that holds a Preferred Mortgage on a Fishing Industry Vessel must submit the following information to the Citizenship Approval Officer during each calendar year that it is acting as a Mortgage Trustee: (1) The appropriate certification and documentation required under § 356.19(b)(1) through (b)(5) to demonstrate that it is qualified to hold a Preferred Mortgage on Fishing Industry Vessels; (2) A copy of the most recent published report of condition of the Mortgage Trustee; (3) A list of the Fishing Industry Vessels for which it is acting as Mortgage Trustee; and (4) The identity and address of all beneficiaries for which it is acting as a Mortgage Trustee. (b) The Mortgage Trustee must file the documents required in paragraph (a) of this section within 30 calendar days prior to the anniversary date of the original approval from the Citizenship Approval Officer. (c) If at any time the Mortgage Trustee fails to meet the statutory requirements set forth in the AFA, the Mortgage Trustee must notify the Citizenship Approval Officer of such failure to qualify as a Mortgage Trustee not later than 20 calendar days after the event causing such failure. Upon learning that a Mortgage Trustee fails to meet the statutory or regulatory requirements to qualify as a Mortgage Trustee, we will publish a disapproval notice in the Federal Register and will notify the U.S. Coast Guard, the Mortgage Trustee, and the beneficiary of each Preferred Mortgage of such disapproval by providing them a copy of the disapproval notice. The notice to beneficiaries will be provided by standard U.S. mail to the address supplied to the Citizenship Approval Officer by the Mortgage Trustee. Within 30 calendar days of publication in the Federal Register of the disapproval notice, the disapproved Mortgage Trustee must either transfer its fiduciary responsibilities to a successor Mortgage Trustee that has been approved by the Citizenship Approval Officer or cure the defect in its approval. The preferred status of the mort… | |||
| 46:46:8.0.1.11.34.5.12.3 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | E | Subpart E—Mortgage Trustees | § 356.37 Operation of a Fishing Industry Vessel by a Mortgage Trustee. | FMC | [68 FR 5582, Feb. 4, 2003] | An approved Mortgage Trustee cannot operate a Fishing Industry Vessel without the approval of the Citizenship Approval Officer, except where non-commercial operation is necessary for the immediate safety of the vessel, or for repairs, drydocking or berthing changes; provided, that the vessel is operated under the command of a Citizen of the United States for a period of no more than 15 calendar days. | |||
| 46:46:8.0.1.11.34.6.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | F | Subpart F—Charters, Management Agreements and Exclusive or Long-Term Contracts | § 356.39 Charters. | FMC | (a) Charters to Citizens of the United States: (1) Bareboat charters may be entered into with Citizens of the United States subject to approval by the Citizenship Approval Officer that the charterer is a Citizen of the United States. The bareboat charterer of Fishing Industry Vessel must submit an Affidavit of U.S. Citizenship to the Citizenship Approval Officer for review and approval prior to entering into such charter. (2) Time charters, voyage charters and other charter arrangements that do not constitute a bareboat charter of the Fishing Industry Vessel may be entered into with Citizens of the United States. The charterer must submit an Affidavit of U.S. Citizenship to the Citizenship Approval Officer within 30 calendar days of execution of the charter. (b) Charters to Non-Citizens: (1) Bareboat or demise charters to Non-Citizens of Fishing Industry Vessel for use in the United States are prohibited. Bareboat charters to Non-Citizens of Fish Processing Vessels and Fish Tender Vessels for use solely outside of the United States are permitted. (2) Time charters, voyage charters and other charters that are not a demise of the vessel may be entered into with Non-Citizens for the charter of dedicated Fish Tender Vessels and Fish Processing Vessels that are not engaged in the Harvesting of fish or fishery resources. A copy of the charter must be submitted to the Citizenship Approval Officer prior to being executed in order for the Citizenship Approval officer to verify that the charter is not in fact a demise of the vessel. (3) Time charters, voyage charters and other charters of Fishing Industry Vessels to Non-Citizens are prohibited if the Fishing Industry Vessel will be used to Harvest fish or fishery resources. (c) We reserve the right to request a copy of any time charter, voyage charter, contract of affreightment or other Charter of a Fishing Industry Vessel in order to confirm that the Charter is not a bareboat charter of the Fishing Industry Vessel. (d) Any violation of this section will render the… | ||||
| 46:46:8.0.1.11.34.6.12.2 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | F | Subpart F—Charters, Management Agreements and Exclusive or Long-Term Contracts | § 356.41 Management agreements. | FMC | (a) An owner or bareboat charterer of a Fishing Industry Vessel may enter into a management agreement with a Non-Citizen in which the management company provides marketing services, consulting services or other services that are ministerial in nature and do not convey control of the vessel to the Non-Citizen. (b) An owner or bareboat charterer of a Fishing Industry Vessel may not enter into a management agreement that allows the Non-Citizen to appoint, discipline or replace the crew or the master, direct the operations of the vessel or to otherwise effectively gain control over the management and operation of the vessel or vessel-owning entity. (c) The owner or bareboat charterer must file with the Citizenship Approval Officer a description of any management agreement entered into with a Non-Citizen. The description must be submitted within 30 days of the execution and must include: (1) A description of the agreement with a summary of the terms and conditions, and, (2) A representation and warranty that the agreement does not contain any provisions that convey control over the vessel or vessel-owning entity to a Non-Citizen. (d) The Citizenship Approval Officer may request a copy of any management agreement to determine if it contains provisions that convey control over the vessel or vessel-owning entity to a Non-Citizen. | ||||
| 46:46:8.0.1.11.34.6.12.3 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | F | Subpart F—Charters, Management Agreements and Exclusive or Long-Term Contracts | § 356.43 Long-term or exclusive sales contracts. | FMC | (a) An owner or bareboat charterer of a Fishing Industry Vessel may enter into an agreement or contract with a Non-Citizen for the sale of all or a significant portion of its catch where the contract or agreement is solely for the purpose of employment of certain vessels on an exclusive basis for a specified period of time. Such contracts or agreements will not require our prior approval; provided, that the contract or agreement does not convey control over the owner or bareboat charterer of the vessel or the vessel's operation, management and harvesting activities. (b) Provisions of a long-term or exclusive contract or agreement for the sale of all or a significant portion of a vessel's catch entered into pursuant to paragraph (a) of this section that are not considered to convey impermissible control to a Non-Citizen and do not require our approval include provisions that: (1) Specify that the owner or bareboat charterer agrees to sell and purchaser agrees to procure, on a preferential basis, a certain quantity of fish caught by a vessel owner or bareboat charterer on a specific vessel; (2) Specify that the vessel owner or charterer is responsible for supplying a specific type of fish to off-loading points designated by the purchaser; (3) Provide for the replacement by the vessel owner of vessels covered by the contract or agreement in the event of loss or damage; (4) Specify refrigeration criteria; (5) Provide that the owner or bareboat charterer has to comply with fishing schedules that specify the maximum age of fish to be delivered and a method to coordinate delivery to the purchaser; (6) Provide for methods of calculating price per pound or other price schedules and a schedule for payment for delivered fish; (7) Provide for an arbitration mechanism in the event of dispute; and (8) Provide for the purchaser to furnish off-loading crew and/or processing or quality control technicians but no other vessel crew members. (c) An owner or bareboat charterer of a Fishing Industry Vessel must obtain the ap… | ||||
| 46:46:8.0.1.11.34.6.12.4 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | F | Subpart F—Charters, Management Agreements and Exclusive or Long-Term Contracts | § 356.45 Advance of funds. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5582, Feb. 4, 2003] | (a) A Non-Citizen may advance funds to the owner or bareboat charterer of a Fishing Industry Vessel: (1) As provisional payment for products delivered for consignment sales, but not yet sold; or (2) Where the basis of the advancement is an agreement between the Non-Citizen and the vessel owner or bareboat charterer to sell all or a portion of the vessel's catch to the Non-Citizen and the agreement meets the following conditions: (i) The amount of the advancement does not exceed the annual value of the sales contract, measured as the value of the product to be supplied to the processor; (ii) The Non-Citizen is not granted any rights whatsoever to control the operation, management and harvesting activities of the Fishing Industry Vessel other than as provided for in § 356.43; (iii) The owner or bareboat charterer submits to the Citizenship Approval Officer within 30 days of execution a description of the arrangement and a certification and warranty that the agreement or contract with the Non-Citizen does not convey control over the vessel, the vessel owner or bareboat charterer in any manner whatsoever other than as provided for in § 356.43; and, (iv) No security interest in the vessel is conveyed as collateral for the advance of funds, unless a qualified Mortgage Trustee is used to hold the debt instrument for the benefit of the Non-Citizen. (b) An owner or bareboat charterer may enter into an unsecured letter of credit or promissory note with a U.S. branch of a Non-Citizen Lender if: (1) The Non-Citizen Lender is not affiliated with any party with whom the owner or bareboat charter has entered into a mortgage, long-term or exclusive sales or purchase agreement, or other similar contract; (2) The Non-Citizen Lender is not granted any rights whatsoever to control the owner or the operation, management and harvesting activities of the Fishing Industry Vessel; and, (3) The owner or bareboat charterer submits to the Citizenship Approval Officer within 30 days of execution a description of the arrangement and… | |||
| 46:46:8.0.1.11.34.7.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | G | Subpart G—Special Requirements for Certain Vessels | § 356.47 Special requirements for large vessels. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5582, Feb. 4, 2003; 82 FR 56901, Dec. 1, 2017] | (a) Unless exempted in paragraph (b), (c) or (d) of this section, a vessel is not eligible for a fishery endorsement under 46 U.S.C. 12113 if: (1) It is greater than 165 feet in registered length; (2) It is more than 750 gross registered tons (as measured pursuant to 46 U.S.C. Chapter 145) or 1900 gross registered tons (as measured pursuant to 46 U.S.C. Chapter 143); or (3) It possesses a main propulsion engine or engines rated to produce a total of more than 3,000 shaft horsepower; such limitation shall not include auxiliary engines for hydraulic power, electrical generation, bow or stern thrusters, or similar purposes. (b) A vessel that meets one or more of the conditions in paragraph (a) of this section may still be eligible for a fishery endorsement if: (1)(i) A certificate of documentation was issued for the vessel and endorsed with a fishery endorsement that was effective on September 25, 1997; and (ii) The vessel is not placed under foreign registry after October 1998; (2) The vessel— (i) Is either a rebuilt vessel or replacement vessel under section 208(g) of the American Fisheries Act (title II of division C of Pub. L. 105-277; 112 Stat. 2681-627); (ii) Is eligible for a fishery endorsement under this section; and (iii) In the case of a vessel listed in paragraphs (1) through (20) of section 208(e) of the American Fisheries Act (title II of division C of Pub. L. 105-277; 112 Stat. 2681-625 et seq. ) is neither participating in nor eligible to participate in the non-AFA trawl catcher processor subsector (as that term is defined under section 219(a)(7) of the Department of Commerce and Related Agencies Appropriations Act, 2005 (Pub. L. 108-447; 118 Stat. 2887)); or (3) The vessel is a fish tender vessel that is not engaged in harvesting or processing of fish. (c) A vessel that is prohibited from receiving a fishery endorsement under paragraph (a) of this section will be eligible if the owner of such vessel demonstrates to MARAD that: (1) The regional fishery management council of jurisdiction… | |||
| 46:46:8.0.1.11.34.7.12.2 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | G | Subpart G—Special Requirements for Certain Vessels | § 356.49 Penalties. | FMC | [65 FR 44877, July 19, 2000, as amended at 88 FR 1124, Jan. 6, 2023; 88 FR 89560, Dec. 28, 2023; 89 FR 106293, Dec. 30, 2024] | If the owner or the representative or agent of the owner has knowingly falsified or concealed a material fact or knowingly made a false statement or representation with respect to the eligibility of the vessel under 46 U.S.C. 12102(c), in applying for or applying to renew the vessel's fishery endorsement, the following penalties may apply: (a) The vessel's fishery endorsement may be revoked; (b) A fine of up to $192,476 may be assessed against the vessel owner for each day in which such vessel has engaged in fishing (as such term is defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)) within the exclusive economic zone of the United States; and (c) The owner, representative or agent may be subject to additional fines, penalties or both for violation of the proscriptions of 18 U.S.C. 286, 287, and 1001. | |||
| 46:46:8.0.1.11.34.7.12.3 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | G | Subpart G—Special Requirements for Certain Vessels | § 356.51 Exemptions for specific vessels. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5583, Feb. 4, 2003; 82 FR 56901, Dec. 1, 2017] | (a) The following Fishing Industry Vessels are exempt from the new ownership and control standards under the AFA and this part 356 for vessel owners and Mortgagees: (1) Fishing Industry Vessels 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)); and (2) Purse seine vessels when they are 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. (b) Fishing Industry Vessels that are claiming the exemption provided for in paragraph (e) of this section must certify to the Citizenship Approval Officer that the vessel is exempt from the ownership and control requirements of this part 356 pursuant to the exemption in paragraph (e) of this section. The vessel owner will be required to follow the U.S. Coast Guard's procedures for documenting a vessel with a fishery endorsement, as in effect prior to the passage of the AFA. The vessel owner must also notify the Coast Guard's National Vessel Documentation Center that it is claiming an exemption from the ownership and control requirements of this part 356 pursuant to paragraph (e) of this section. | |||
| 46:46:8.0.1.11.34.8.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | H | Subpart H—International Agreements | § 356.53 Conflicts with international agreements. | FMC | [65 FR 44877, July 19, 2000, as amended at 68 FR 5583, Feb. 4, 2003] | (a) If the owner or Mortgagee of a Fishing Industry Vessel believes that there is a conflict between the AFA or 46 CFR part 356 and any international treaty or agreement to which the United States is a party on July 24, 2001, and to which the United States is currently a party, the owner or Mortgagee may petition the Chief Counsel of the Maritime Administration at any time after July 19, 2000 to request a ruling that all or part of the requirements of this part 356 do not apply to that particular owner or particular Mortgagee with respect to a specific vessel; provided, the petitioner had an ownership interest in the Fishing Industry Vessel, or a mortgage on the vessel in the case of a Mortgagee, on July 24, 2001, and is covered by the international agreement. (b) A petition for exemption from the requirements of this part 356 must include: (1) Evidence of the ownership structure, or mortgage structure in the case of a Mortgagee, of the Fishing Industry Vessel as of July 24, 2001 (or on the date of the petition, for petitions filed prior to July 24, 2001), and any subsequent changes to the ownership structure, or mortgage structure in the case of a Mortgagee, of the vessel; (2) A copy of the provisions of the international agreement or treaty which the owner or mortgagee believes are in conflict with the regulations in this part 356; (3) A detailed description of how the provisions of the international agreement or treaty and the regulations in this part 356 are in conflict; and (4) A certification in all petitions filed on or after July 24, 2001, that no interest in the vessel-owning entity has been transferred to a Non-Citizen after July 24, 2001. (c) A separate petition must be filed for each Fishing Industry Vessel for which the vessel owner or a Mortgagee is requesting an exemption unless the Chief Counsel authorizes consolidated filing. Petitions should include two copies of all materials and should be sent to the following address: Maritime Administration, Chief Counsel, Room 7228, 400 7th Street, SW… | |||
| 46:46:8.0.1.11.34.9.12.1 | 46 | Shipping | II | J | 356 | PART 356—REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S DOCUMENTATION | I | Subpart I—Review of Harvesting and Processing Compliance | § 356.55 Review of compliance with harvesting and processing quotas. | FMC | (a) Upon the request of either the North Pacific Fishery Management Council (“NPFMC”) or the Secretary of Commerce, the Chief Counsel will review any allegation that an individual or entity has exceeded the allowable percentage for harvesting or processing pollock as provided for in section 210(e)(1) or (2) of the AFA. (b) Following a request for MARAD review under paragraph (a) of this section, the NPFMC and the Secretary of Commerce (through the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service) will transmit to MARAD any relevant information in their possession including, but not limited to: (1) The identity of the parties alleged to have exceeded the excessive share caps; (2) The relevant harvesting or processing data (the amount harvested or processed by particular parties); (3) Any information that would be helpful in determining if the parties are related; (4) Any information regarding the ownership structure of the parties, including: (i) Articles of incorporation; (ii) Bylaws; (iii) Identity of shareholders and the percentage owned; (iv) Any contracts or agreements that would demonstrate ownership or control of one party by another allegedly related party; and (v) Any other evidence that would demonstrate ownership or control of one party by another allegedly related party. (c) If MARAD determines during the course of its review that additional information is required from the parties alleged to have exceeded the excessive share cap, the Chief Counsel will advise the Secretary of Commerce and/or the NPFMC what information is required. The Secretary and/or the NPFMC will request that specific parties submit the required information to MARAD. (d) The Chief Counsel will make a finding as soon as practicable and will submit it to the Secretary of Commerce and the NPFMC. (e) For purposes of this section, if 10% or more of the interest in an entity is owned or controlled either directly or indirectly by another individual or entity, the two entities will be … | ||||
| 7:7:5.1.1.1.16.0.47.1 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.1 Property subject to forfeiture procedures. | APHIS | [49 FR 46336, Nov. 26, 1984] | This part sets forth procedures relating to the forfeiture of any plant, equipment, means of conveyance or other property 1 seized under the Endangered Species Act of 1973, as amended, (16 U.S.C. 1531 et seq. ) or the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq. ), 2 in possession (actual or constructive) of the United States Department of Agriculture, and subject to forfeiture under these Acts because of activities pertaining to the importation, exportation, or reexportation of terrestrial plants. 1 Under section 11(e)(4) of the Endangered Species Act (“Act”; 16 U.S.C. 1540(e)(4)) any such equipment and means of conveyance would be subject to forfeiture upon conviction of a criminal violation pursuant to section 11(b)(1) of the Act (16 U.S.C. 1540(b)(1)); however, such a plant may be subject to forfeiture regardless of whether a criminal conviction is obtained. 2 Under section 5(a)(2) of the Lacey Act Amendments of 1981 (16 U.S.C. 3374(a)(2)) USDA has authority to initiate forfeiture proceedings against all vessels, vehicles, aircraft, and other equipment used to aid in the importation or exportation of plants in a criminal violation of the Lacey Act Amendments of 1981 for which a felony conviction has been obtained if (a) the owner of such vessel, vehicle, aircraft, or equipment was at the time of the alleged illegal act a consenting part or privy thereto or in the exercise of due care should have known that such vessel, vehicle, aircraft, or equipment would be used in a criminal violation of the Lacey Act Amendments of 1981, and (b) the violation involved the sale or purchase of, the offer of sale or purchase of, or the intent to sell or purchase plants. However, under section 5(a)(1) of the Lacey Act Amendments of 1981 (16 U.S.C. 3474(a)(1) plants seized for violations of the Amendments are subject to forfeiture regardless of whether a civil penalty assessment or criminal conviction is obtained. | ||||||
| 7:7:5.1.1.1.16.0.47.2 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.2 Appraisement. | APHIS | Promptly following the seizure or other receipt of property specified in § 356.1, the Deputy Administrator shall determine the retail value of such property in the same quantity or quantities as seized. If the property may lawfully be sold in the United States, the value thereof shall be determined by ascertaining the price at which the property or similar property in the ordinary course of trade is freely offered for sale at the time of appraisement, and at a principal market as close as possible to the place of appraisement. If the property may not lawfully be sold in the United States, the value thereof shall be determined by other reasonable means. | |||||||
| 7:7:5.1.1.1.16.0.47.3 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.3 Property valued at greater than $10,000; notice of seizure and civil action to obtain forfeiture. | APHIS | Promptly following the seizures or other receipt of any property specified in § 356.1 and determined under § 356.2 to have a value greater than $10,000, the Deputy Administrator shall mail a notice of seizure by registered or certified mail to the current or last known or reasonable ascertainable address, return receipt requested, to persons known or reasonably ascertained to be the owner or agent of the seized property and to any other person having an interest in the property. Such notice shall describe the seized property, shall state the time, date, place, and reason for the seizure, that there is a right to petition for remission or mitigation of forfeiture pursuant to § 356.7, and shall state that action shall be taken in accordance with this part. Promptly following the seizure of such property, the Secretary shall also submit a report concerning such property to the U.S. Attorney for the district in which the seizure was made for institution of forfeiture proceedings in the U.S. District Court. The report shall provide a statement of all the relevant facts and circumstances of the case, including the names of the witnesses, and a citation to the laws believed to have been violated and on which reliance may be had for forfeiture. | |||||||
| 7:7:5.1.1.1.16.0.47.4 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.4 Property valued at $10,000 or less; notice of seizure administrative action to obtain forfeiture. | APHIS | (a) When authorized. The Secretary shall take measures to obtain forfeiture in accordance with this section of any property specified in § 356.1 and determined under § 356.2 to have a value of $10,000 or less. (b) Waiver of forfeiture procedures by owner of seized property. A person claiming to be an owner or to have an interest in any property specified in § 356.1 with a value of $10,000 or less may waive any rights to any procedures relating to forfeiture under this subpart by signing a statement providing for waiver of such rights. (1) The Deputy Administrator shall publish a copy of the notice of seizure and proposed forfeiture as provided in paragraph (c)(1) of this section, by posting for 21 days in a conspicuous place accessible to the public at the Plant Protection and Quarantine Enforcement office nearest the place of seizure. The time and date of posting shall be indicated on the notice. (2) Upon the execution of such statement and following publication of the notice for 21 days as provided in paragraph (c)(1) of this section, any interest in such property by such owner shall become forfeited under the Act without further action under this subpart, and the Deputy Administrator shall not be required to send such owner any notices or declarations otherwise required by this subpart. (c) Procedure absent waiver of forfeiture procedures by owner. (1) Notice of seizure and proposed forfeiture. Promptly following seizure of property, the Deputy Administrator shall issue a notice of seizure and proposed forfeiture. The notice shall be in substantially the same form as a complaint for forfeiture filed in the U.S. District Court. The notice shall describe the seized property, including any identification numbers, such as the license, registration, motor, and serial numbers for a motor vehicle. The notice shall state the time, date, and place of seizure; the reason for seizure; and shall specify the value of the property as determined under § 356.2. The notice shall contain specific reference to the prov… | |||||||
| 7:7:5.1.1.1.16.0.47.5 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.5 Bonded release. | APHIS | (a) The Deputy Administrator may accept a bond or other security, in the amount of the value of the property as determined under § 356.3, in place of any property specified in § 356.1 and release the property to the owner or agent of the property, if such action would not frustrate the purposes of the Act and Convention. As an example, this section does not allow the release of terrestrial plants that are without documentation required under 50 CFR chapter I. (b) Any request for the return of property based on the acceptance of a bond or other security shall be submitted in writing to the Deputy Administrator. The request shall include evidence to establish that the person making the request is the sole owner of the property referred to in the request or is the agent of the sole owner of such property. A response in writing, granting or denying the request, and the reasons therefor, shall be sent to the person making the request. | |||||||
| 7:7:5.1.1.1.16.0.47.6 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.6 Storage of property. | APHIS | Following the seizure or other receipt of any property specified in § 356.1 and valued at $10,000 or less, the property shall remain in the custody of the Deputy Administrator pending disposition. Pending such disposition, the property shall be stored in such place, as, in the opinion of the Deputy Administrator, is most convenient and appropriate with due regard to the expense involved, whether or not the place of storage is within the judicial district in which the property was seized. | |||||||
| 7:7:5.1.1.1.16.0.47.7 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.7 Petition for remission or mitigation of forfeiture. | APHIS | (a) Any person who has an interest in any property specified in § 356.1 and valued at $10,000 or less, or any person who has incurred or is alleged to have incurred a forfeiture of any such property, may file with the Deputy Administrator a petition for remission or mitigation of forfeiture while the property is in the custody of the Deputy Administrator. (b) A petition filed with the Deputy Administrator need not be in any particular form, but must contain the following: (1) A description of the property: (2) The time, date, and place of seizure; (3) Evidence of the petitioner's interest in the property such as contracts, bills of sale, invoices, security interests, certificates of title; and (4) A statement of all facts and circumstances relied upon by the petitioners to justify remission or mitigation of the forfeiture. (c) The petition shall be signed by the petitioner or the petitioner's attorney at law. If the petitioner is a business, the petition must be signed by a partner, officer, or petitioner's attorney at law. (d) Upon receiving the petition, the Deputy Administrator shall decide whether or not to grant relief. In making a decision, the Deputy Administrator shall consider the information submitted by the petitioner, as well as any other available information relating to the matter, and may require that testimony be taken concerning the petition. (e) If the Deputy Administrator finds that the forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to violate the law or finds the existence of such mitigating circumstances as to justify remission or mitigation of the forfeiture or alleged forfeiture, the Deputy Administrator may remit or mitigate the same upon terms and conditions as he deems reasonable and just. However, remission or mitigation will not be made if such action would frustrate the purposes of the Act or Convention. As an example, this section does not allow remission or mitigation with respect to terrestrial plants that are witho… | |||||||
| 7:7:5.1.1.1.16.0.47.8 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.8 Return procedure. | APHIS | If, at the conclusion of proceedings, seized property is to be returned to the person determined to be the owner or agent thereof, the Deputy Administrator shall issue a letter or other document to the person determined to be owner or agent thereof authorizing its return. This letter shall be delivered personally or sent by registered or certified mail, return receipt requested, and shall identify the person determined to be the owner or agent, the seized property, and if appropriate, the bailee of the seized property. It shall also provide that upon presentation of the letter or other document and proper identification, and the signing of a receipt provided by Plant Protection and Quarantine, the seized property is authorized to be released. | |||||||
| 7:7:5.1.1.1.16.0.47.9 | 7 | Agriculture | III | 356 | PART 356—FORFEITURE PROCEDURES | § 356.9 Filing of documents. | APHIS | (a) Any document required by this subpart to be filed or served within a certain period of time, will be considered filed or served as of the time of receipt by the party with or upon whom filing or service is required. (b) Saturdays, Sundays, and federal holidays shall be included in computing the time allowed for the filing or serving of any document or paper; except that when such time expires on a Saturday, Sunday or federal holiday, such period shall be extended to include the next following business day. |
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