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  <FMTR>
    <TITLEPG>
      <CODE>CODE OF FEDERAL REGULATIONS</CODE>
      <PRTPAGE P="1"/>
      <TITLENUM>46</TITLENUM>
      <PARTS>Parts 200 to 499</PARTS>
      <REVISED>Revised as of October 1, 2002</REVISED>
      <SUBJECT>Shipping</SUBJECT>
      <CONTAINS>Containing a codification of documents of general applicability and future effect</CONTAINS>
      <DATE>As of October 1, 2002</DATE>
      <ANCIL>With Ancillaries</ANCIL>
      <PUB>
        <P>Published by</P>
        <P>Office of the Federal Register</P>
        <P>National Archives and Records</P>
        <P>Administration</P>
      </PUB>
      <SPECED>A Special Edition of the Federal Register</SPECED>
    </TITLEPG>
    <BTITLE>
      <PRTPAGE P="?ii"/>
      <GPO>U.S. GOVERNMENT PRINTING OFFICE</GPO>
      <CITY>WASHINGTON : 2002</CITY>
      <FORSALE>
        <P>For sale by the Superintendent of Documents, U.S. Government Printing Office</P>
        <P>Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800</P>
        <P>Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001</P>
      </FORSALE>
    </BTITLE>
    <TOC>
      <PRTPAGE P="iii"/>
      <HD SOURCE="HED">Table of Contents</HD>
      <PGHD>Page</PGHD>
      <EXPL>
        <SUBJECT>Explanation</SUBJECT>
        <PG>v</PG>
      </EXPL>
      <TITLENO>
        <HD SOURCE="HED">Title 46:</HD>
        <CHAPTI>
          <SUBJECT>Chapter II—Maritime Administration, Department of Transportation</SUBJECT>
          <PG>3</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter III—Coast Guard (Great Lakes Pilotage), Department of Transportation</SUBJECT>
          <PG>421</PG>
        </CHAPTI>
      </TITLENO>
      <FAIDS>
        <HD SOURCE="HED">Finding Aids:</HD>
        <SUBJECT>Table of CFR Titles and Chapters</SUBJECT>
        <PG>453</PG>
        <SUBJECT>Alphabetical List of Agencies Appearing in the CFR</SUBJECT>
        <PG>471</PG>
        <SUBJECT>List of CFR Sections Affected</SUBJECT>
        <PG>481</PG>
      </FAIDS>
    </TOC>
    <CITE>
      <PRTPAGE P="iv"/>
      <P>Cite this Code:<E T="01">CFR</E>
      </P>

      <CITEP>To cite the regulations in this volume use title, part and section number. Thus, <E T="01">46 CFR 201.1</E> refers to title 46, part 201, section 1.</CITEP>
    </CITE>
    <EXPLA>
      <PRTPAGE P="v"/>
      <HD SOURCE="HED">Explanation</HD>
      <P>The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.</P>
      <P>Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:</P>
      <IPAR>
        <P SOURCE="P1">Title 1 through Title 16 </P>
        <STUB>as of January 1</STUB>
        <P SOURCE="P1">Title 17 through Title 27 </P>
        <STUB>as of April 1</STUB>
        <P SOURCE="P1">Title 28 through Title 41 </P>
        <STUB>as of July 1</STUB>
        <P SOURCE="P1">Title 42 through Title 50 </P>
        <STUB>as of October 1</STUB>
      </IPAR>
      <P>The appropriate revision date is printed on the cover of each volume.</P>
      <SIDEHED>
        <HD SOURCE="HED">LEGAL STATUS</HD>
        <P>The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">HOW TO USE THE CODE OF FEDERAL REGULATIONS</HD>
        <P>The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule.</P>
        <P>To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2002), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">EFFECTIVE AND EXPIRATION DATES</HD>
        <P>Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OMB CONTROL NUMBERS</HD>

        <P>The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. <PRTPAGE P="vi"/>Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OBSOLETE PROVISIONS</HD>
        <P>Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949-1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate volumes. For the period beginning January 1, 2001, a “List of CFR Sections Affected” is published at the end of each CFR volume.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">CFR INDEXES AND TABULAR GUIDES</HD>

        <P>A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR <E T="04">Index and Finding Aids.</E> This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.</P>
        <P>An index to the text of “Title 3—The President” is carried within that volume.</P>
        <P>The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.</P>
        <P>A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">REPUBLICATION OF MATERIAL</HD>
        <P>There are no restrictions on the republication of material appearing in the Code of Federal Regulations.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">INQUIRIES</HD>
        <P>For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.</P>
        <P>For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail info@fedreg.nara.gov.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">SALES</HD>
        <P>The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll free, 866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-512-1803.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">ELECTRONIC SERVICES</HD>

        <P>The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Privacy Act Compilation are available in electronic format at www.access.gpo.gov/nara (''GPO Access''). For more information, contact Electronic Information Dissemination Services, U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, gpoaccess@gpo.gov.<PRTPAGE P="vii"/>
        </P>
        <P>The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information.  Connect to NARA's web site at www.nara.gov/fedreg. The NARA site also contains links to GPO Access.</P>
      </SIDEHED>
      <SIG>
        <NAME>Raymond A. Mosley,</NAME>
        <POSITION>Director,</POSITION>
        <OFFICE>Office of the Federal Register.</OFFICE>
      </SIG>
      <DATE>October 1, 2002.</DATE>
    </EXPLA>
    <THISTITL>
      <PRTPAGE P="ix"/>
      <HD SOURCE="HED">THIS TITLE</HD>
      <P>Title 46—<E T="04">Shipping</E> is composed of nine volumes. The parts in these volumes are arranged in the following order: Parts 1-40, 41-69, 70-89, 90-139, 140-155, 156-165, 166-199, 200-499 and 500 to End. The first seven volumes containing parts 1-199 comprise chapter I—Coast Guard, DOT. The eighth volume, containing parts 200 to 499, includes chapter II—Maritime Administration, DOT and chapter III—Coast Guard (Great Lakes Pilotage), DOT. The ninth volume, containing part 500 to End, includes chapter IV—Federal Maritime Commission. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2002.</P>
      <P>Subject indexes appear for subchapter B—Merchant Marine Officers and Seamen, subchapter C—Uninspected Vessels, and subchapter D—Tank Vessels following the subchapters in parts 1-40; for subchapter F—Marine Engineering following the subchapter in parts 41-69; for subchapter H—Passenger Vessels following the subchapter in parts 70-89; for subchapter I—Cargo and Miscellaneous Vessels, subchapter I-A—Mobile Offshore Drilling Units, subchapter J—Electrical Engineering, subchapter K—Small Passenger Vessels Carrying More Than 150 Passengers or With Overnight Accommodations for More Than 49 Passengers, and subchapter L—Offshore Supply Vessels following the subchapters in parts 90-139; for subchapter S—Subdivision and Stability, subchapter T—Small Passenger Vessels (Under 100 Gross Tons), and subchapter W—Lifesaving Appliances and Arrangements following the subchapters in parts 166-199.</P>
      <GPH DEEP="532" SPAN="1">
        <PRTPAGE P="x"/>
        <GID>CFRORDR.FRM</GID>
      </GPH>
    </THISTITL>
  </FMTR>
  <TITLE>
    <LRH>46 CFR Ch. II (10-1-02 Edition)</LRH>
    <RRH>Maritime Administration, DOT</RRH>
    <CFRTITLE>
      <TITLEHD>
        <PRTPAGE P="1"/>
        <HD SOURCE="HED">Title 46—Shipping</HD>
        <P>(This book contains parts 200 to 499)</P>
      </TITLEHD>
      <CFRTOC>
        <PTHD>Part</PTHD>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter ii</E>—Maritime Administration, Department of Transportation</SUBJECT>
          <PG>201</PG>
          <SUBJECT>
            <E T="04">chapter iii</E>—Coast Guard (Great Lakes Pilotage), Department of Transportation</SUBJECT>
          <PG>401</PG>
        </CHAPTI>
        <CROSSREF>
          <HD SOURCE="HED">Cross References:</HD>
          <P>U.S. Customs Service, Department of the Treasury: See Customs Duties, 19 CFR chapter I.</P>
          <P>Coast Guard, Department of Transportation: See Navigation and Navigable Waters, 33 CFR chapter I; Federal Acquisition Regulations System, 48 CFR, chapter 12; Shipping, 46 CFR, chapter I.</P>
          <P>Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR chapter IV.</P>
          <P>Surface Transportation Board: See Transportation, 49 CFR chapter X.</P>
          <P>Panama Canal Regulations: See Panama Canal, 35 CFR chapter I.</P>
        </CROSSREF>
      </CFRTOC>
    </CFRTITLE>
    <CHAPTER>
      <TOC>
        <TOCHD>
          <PRTPAGE P="3"/>
          <HD SOURCE="HED">CHAPTER II—MARITIME ADMINISTRATION, DEPARTMENT OF TRANSPORTATION</HD>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—POLICY, PRACTICE AND PROCEDURE</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>200</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>201</PT>
          <SUBJECT>Rules of practice and procedure</SUBJECT>
          <PG>7</PG>
          <PT>202</PT>
          <SUBJECT>Procedures relating to review by Secretary of Transportation of actions by Maritime Subsidy Board</SUBJECT>
          <PG>29</PG>
          <PT>203</PT>
          <SUBJECT>Procedures relating to conduct of certain hearings under the Merchant Marine Act, 1936, as amended</SUBJECT>
          <PG>33</PG>
          <PT>204</PT>
          <SUBJECT>Claims against the Maritime Administration under the Federal Tort Claims Act</SUBJECT>
          <PG>35</PG>
          <PT>205</PT>
          <SUBJECT>Audit appeals; policy and procedure</SUBJECT>
          <PG>37</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED ACTIVITIES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>221</PT>
          <SUBJECT>Regulated transactions involving documented vessels and other maritime interests</SUBJECT>
          <PG>38</PG>
          <PT>232</PT>
          <SUBJECT>Uniform financial reporting requirements</SUBJECT>
          <PG>52</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—REGULATIONS AFFECTING SUBSIDIZED VESSELS AND OPERATORS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>249</PT>
          <SUBJECT>Approval of underwriters for marine hull insurance</SUBJECT>
          <PG>62</PG>
          <PT>251</PT>
          <SUBJECT>Application for subsidies and other direct financial aid</SUBJECT>
          <PG>65</PG>
          <PT>252</PT>
          <SUBJECT>Operating-differential subsidy for bulk cargo vessels engaged in worldwide services</SUBJECT>
          <PG>69</PG>
          <PT>272</PT>
          <SUBJECT>Requirements and procedures for conducting condition surveys and administering maintenance and repair subsidy</SUBJECT>
          <PG>87</PG>
          <PT>276</PT>
          <SUBJECT>Construction-differential subsidy repayment</SUBJECT>
          <PG>96</PG>
          <PT>277</PT>
          <SUBJECT>Domestic and foreign trade; interpretations</SUBJECT>
          <PG>96</PG>
          <PT>280</PT>
          <SUBJECT>Limitations on the award and payment of operating-differential subsidy for liner operators</SUBJECT>
          <PG>96<PRTPAGE P="4"/>
          </PG>
          <PT>281</PT>
          <SUBJECT>Information and procedure required under liner operating-differential subsidy agreements</SUBJECT>
          <PG>102</PG>
          <PT>282</PT>
          <SUBJECT>Operating-differential subsidy for liner vessels engaged in essential services in the foreign commerce of the United States</SUBJECT>
          <PG>109</PG>
          <PT>283</PT>
          <SUBJECT>Dividend policy for operators receiving operating-differential subsidy</SUBJECT>
          <PG>127</PG>
          <PT>287</PT>
          <SUBJECT>Establishment of construction reserve funds</SUBJECT>
          <PG>132</PG>
          <PT>289</PT>
          <SUBJECT>Insurance of construction-differential subsidy vessels, operating-differential subsidy vessels and of vessels sold or adjusted under the Merchant Ship Sales Act 1946</SUBJECT>
          <PG>148</PG>
          <PT>295</PT>
          <SUBJECT>Maritime Security Program (MSP)</SUBJECT>
          <PG>149</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—VESSEL FINANCING ASSISTANCE</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>298</PT>
          <SUBJECT>Obligation guarantees</SUBJECT>
          <PG>157</PG>
        </CHAPTI>
        <SUBCHAP>
          <RESERVED>SUBCHAPTER E[RESERVED]</RESERVED>
        </SUBCHAP>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—POSITION REPORTING SYSTEM</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>307</PT>
          <SUBJECT>Establishment of mandatory position reporting system for vessels</SUBJECT>
          <PG>191</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—EMERGENCY OPERATIONS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>308</PT>
          <SUBJECT>War risk insurance</SUBJECT>
          <PG>194</PG>
          <PT>309</PT>
          <SUBJECT>Values for war risk insurance</SUBJECT>
          <PG>217</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—TRAINING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>310</PT>
          <SUBJECT>Merchant Marine training</SUBJECT>
          <PG>225</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER I-A—NATIONAL SHIPPING AUTHORITY</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>315</PT>
          <SUBJECT>Agency agreements and appointment of agents</SUBJECT>
          <PG>253</PG>
          <PT>317</PT>
          <SUBJECT>Bonding of ship's personnel</SUBJECT>
          <PG>254</PG>
          <PT>324</PT>
          <SUBJECT>Procedural rules for financial transactions under Agency agreements</SUBJECT>
          <PG>257</PG>
          <PT>325</PT>
          <SUBJECT>Procedure to be followed by general agents in preparation of invoices and payment of compensation pursuant to provisions of NSA Order No. 47</SUBJECT>
          <PG>262</PG>
          <PT>326</PT>
          <SUBJECT>Marine protection and indemnity insurance under agreements with agents</SUBJECT>
          <PG>263</PG>
          <PT>327</PT>
          <SUBJECT>Seamen's claims; administrative action and litigation</SUBJECT>
          <PG>265</PG>
          <PT>328</PT>
          <SUBJECT>Slop chests</SUBJECT>
          <PG>267</PG>
          <PT>329</PT>
          <SUBJECT>Voyage data</SUBJECT>
          <PG>269</PG>
          <PT>330</PT>
          <SUBJECT>Launch services</SUBJECT>
          <PG>271</PG>
          <PT>332</PT>
          <SUBJECT>Repatriation of seamen</SUBJECT>
          <PG>271<PRTPAGE P="5"/>
          </PG>
          <PT>335</PT>
          <SUBJECT>Authority and responsibility of general agents to undertake emergency repairs in foreign ports</SUBJECT>
          <PG>273</PG>
          <PT>336</PT>
          <SUBJECT>Authority and responsibility of general agents to undertake in continental United States ports voyage repairs and service equipment of vessels operated for the account of the National Shipping Authority under general agency agreement</SUBJECT>
          <PG>274</PG>
          <PT>337</PT>
          <SUBJECT>General agent's responsibility in connection with foreign repair custom's entries</SUBJECT>
          <PG>276</PG>
          <PT>338</PT>
          <SUBJECT>Procedure for accomplishment of vessel repairs under National Shipping Authority master lump sum repair contract—NSA-LUMPSUMREP</SUBJECT>
          <PG>277</PG>
          <PT>339</PT>
          <SUBJECT>Procedure for accomplishment of ship repairs under National Shipping Authority individual contract for minor repairs—NSA-WORKSMALREP</SUBJECT>
          <PG>288</PG>
          <PT>340</PT>
          <SUBJECT>Priority use and allocation of shipping services, containers and chassis, and port facilities and services for national security and national defense related operations</SUBJECT>
          <PG>289</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER I-B—CONTROL AND UTILIZATION OF PORTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>345</PT>
          <SUBJECT>Restrictions upon the transfer or change in use or in terms governing utilization of port facilities</SUBJECT>
          <PG>296</PG>
          <PT>346</PT>
          <SUBJECT>Federal port controllers</SUBJECT>
          <PG>298</PG>
          <PT>347</PT>
          <SUBJECT>Operating contract</SUBJECT>
          <PG>301</PG>
          <PT>349</PT>
          <SUBJECT>Reemployment rights of certain merchant seamen</SUBJECT>
          <PG>307</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER J—MISCELLANEOUS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>350</PT>
          <SUBJECT>Seamen's service awards</SUBJECT>
          <PG>311</PG>
          <PT>351</PT>
          <SUBJECT>Depositories</SUBJECT>
          <PG>313</PG>
          <PT>355</PT>
          <SUBJECT>Requirements for establishing United States citizenship</SUBJECT>
          <PG>313</PG>
          <PT>356</PT>
          <SUBJECT>Requirements for vessels of 100 feet or greater in registered length to obtain a fishery endorsement to the vessel's documentation</SUBJECT>
          <PG>317</PG>
          <PT>370</PT>
          <SUBJECT>Claims</SUBJECT>
          <PG>341</PG>
          <PT>380</PT>
          <SUBJECT>Procedures</SUBJECT>
          <PG>342</PG>
          <PT>381</PT>
          <SUBJECT>Cargo preference—U.S.-flag vessels</SUBJECT>
          <PG>346</PG>
          <PT>382</PT>
          <SUBJECT>Determination of fair and reasonable rates for the carriage of bulk and packaged preference cargoes on U.S.-FLAG commercial vessels</SUBJECT>
          <PG>350</PG>
          <PT>383</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>385</PT>
          <SUBJECT>Research and development grant and cooperative agreements regulations</SUBJECT>
          <PG>354<PRTPAGE P="6"/>
          </PG>
          <PT>386</PT>
          <SUBJECT>Regulations governing public buildings and grounds at the United States Merchant Marine Academy</SUBJECT>
          <PG>363</PG>
          <PT>387</PT>
          <SUBJECT>Utilization and disposal of surplus Federal real property for development or operation of a port facility</SUBJECT>
          <PG>365</PG>
          <PT>388</PT>
          <SUBJECT>Administrative waivers of the Coastwise Trade Laws for eligible vessels</SUBJECT>
          <PG>368</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER K—REGULATIONS UNDER PUBLIC LAW 91-469</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>390</PT>
          <SUBJECT>Capital Construction Fund</SUBJECT>
          <PG>372</PG>
          <PT>391</PT>
          <SUBJECT>Federal income tax aspects of the Capital Construction Fund</SUBJECT>
          <PG>399</PG>
          <PT>392-399</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="7"/>
        <HD SOURCE="HED">SUBCHAPTER A—POLICY, PRACTICE AND PROCEDURE</HD>
        <PART>
          <RESERVED>PART 200 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 201</EAR>
          <HD SOURCE="HED">PART 201—RULES OF PRACTICE AND PROCEDURE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General Information (Rule 1)</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>201.1</SECTNO>
              <SUBJECT>Scope of rules.</SUBJECT>
              <SECTNO>201.2</SECTNO>
              <SUBJECT>Mailing address; hours.</SUBJECT>
              <SECTNO>201.3</SECTNO>
              <SUBJECT>Authentication of rules, orders, determinations and decisions of the Administration.</SUBJECT>
              <SECTNO>201.4-201.5</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>201.6</SECTNO>
              <SUBJECT>Documents in foreign languages.</SUBJECT>
              <SECTNO>201.7</SECTNO>
              <SUBJECT>Information; special instructions.</SUBJECT>
              <SECTNO>201.8</SECTNO>
              <SUBJECT>Use of gender and number.</SUBJECT>
              <SECTNO>201.9</SECTNO>
              <SUBJECT>Suspension, amendment, etc., of rules.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Appearance and Practice Before the Administration (Rule 2)</HD>
              <SECTNO>201.15</SECTNO>
              <SUBJECT>Appearance in person or by representative.</SUBJECT>
              <SECTNO>201.16</SECTNO>
              <SUBJECT>Authority for representation.</SUBJECT>
              <SECTNO>201.17</SECTNO>
              <SUBJECT>Written appearance.</SUBJECT>
              <SECTNO>201.18</SECTNO>
              <SUBJECT>Practice before the Administration defined.</SUBJECT>
              <SECTNO>201.19</SECTNO>
              <SUBJECT>Presiding officers.</SUBJECT>
              <SECTNO>201.20</SECTNO>
              <SUBJECT>Attorneys at law.</SUBJECT>
              <SECTNO>201.21</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>201.22</SECTNO>
              <SUBJECT>Firms and corporations.</SUBJECT>
              <SECTNO>201.23</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>201.24</SECTNO>
              <SUBJECT>Suspension or disbarment.</SUBJECT>
              <SECTNO>201.25</SECTNO>
              <SUBJECT>Statement of interest.</SUBJECT>
              <SECTNO>201.26</SECTNO>
              <SUBJECT>Former employees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Parties (Rule 3)</HD>
              <SECTNO>201.30</SECTNO>
              <SUBJECT>Parties; how designated.</SUBJECT>
              <SECTNO>201.31</SECTNO>
              <SUBJECT>Public counsel.</SUBJECT>
              <SECTNO>201.32</SECTNO>
              <SUBJECT>Substitution of parties.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Form, Execution and Service of Documents (Rule 4)</HD>
              <SECTNO>201.41</SECTNO>
              <SUBJECT>Form and appearance of documents filed with the Administration.</SUBJECT>
              <SECTNO>201.42</SECTNO>
              <SUBJECT>Subscription, authentication of documents.</SUBJECT>
              <SECTNO>201.43</SECTNO>
              <SUBJECT>Service by parties.</SUBJECT>
              <SECTNO>201.44</SECTNO>
              <SUBJECT>Date of service.</SUBJECT>
              <SECTNO>201.45</SECTNO>
              <SUBJECT>Certificate of service.</SUBJECT>
              <SECTNO>201.46</SECTNO>
              <SUBJECT>Copies of documents for use of the Administration.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Time (Rule 5)</HD>
              <SECTNO>201.51</SECTNO>
              <SUBJECT>Computation.</SUBJECT>
              <SECTNO>201.52</SECTNO>
              <SUBJECT>Additional time after service by mail.</SUBJECT>
              <SECTNO>201.53</SECTNO>
              <SUBJECT>Extension of time to file documents.</SUBJECT>
              <SECTNO>201.54</SECTNO>
              <SUBJECT>Reduction of time to file documents.</SUBJECT>
              <SECTNO>201.55</SECTNO>
              <SUBJECT>Postponement of hearing.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart F—Rule Making (Rule 6)</HD>
              <SECTNO>201.61</SECTNO>
              <SUBJECT>Petition for issuance, amendment, or repeal of rule or regulation.</SUBJECT>
              <SECTNO>201.62</SECTNO>
              <SUBJECT>Notice of proposed rule making.</SUBJECT>
              <SECTNO>201.63</SECTNO>
              <SUBJECT>Participation in rule making.</SUBJECT>
              <SECTNO>201.64</SECTNO>
              <SUBJECT>Contents of rules.</SUBJECT>
              <SECTNO>201.65</SECTNO>
              <SUBJECT>Effective date of rules.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart G—Formal Proceedings, Notice, Pleadings, Replies (Rule 7)</HD>
              <SECTNO>201.71</SECTNO>
              <SUBJECT>Commencement of proceedings.</SUBJECT>
              <SECTNO>201.72</SECTNO>
              <SUBJECT>Notice.</SUBJECT>
              <SECTNO>201.73</SECTNO>
              <SUBJECT>Joinder of proceedings.</SUBJECT>
              <SECTNO>201.74</SECTNO>
              <SUBJECT>Declaratory orders.</SUBJECT>
              <SECTNO>201.75</SECTNO>
              <SUBJECT>Petitions—general.</SUBJECT>
              <SECTNO>201.76</SECTNO>
              <SUBJECT>Applications for Government aid.</SUBJECT>
              <SECTNO>201.77</SECTNO>
              <SUBJECT>Amendments or supplements to pleadings.</SUBJECT>
              <SECTNO>201.78</SECTNO>
              <SUBJECT>Petition for leave to intervene.</SUBJECT>
              <SECTNO>201.79</SECTNO>
              <SUBJECT>Motions.</SUBJECT>
              <SECTNO>201.80</SECTNO>
              <SUBJECT>Answers to applications, petitions, or motions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart H—Responsibilities and Duties of Presiding Officer (Rule 8)</HD>
              <SECTNO>201.85</SECTNO>
              <SUBJECT>Commencement of functions of Department of Transportation Office of Hearings.</SUBJECT>
              <SECTNO>201.86</SECTNO>
              <SUBJECT>Presiding officer.</SUBJECT>
              <SECTNO>201.87</SECTNO>
              <SUBJECT>Authority of presiding officer.</SUBJECT>
              <SECTNO>201.88</SECTNO>
              <SUBJECT>Postponement or change of place by presiding officer.</SUBJECT>
              <SECTNO>201.89</SECTNO>
              <SUBJECT>Disqualification of presiding officer.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart I—Summary Disposition (Rule 9)</HD>
              <SECTNO>201.91</SECTNO>
              <SUBJECT>Filing of motions, answers.</SUBJECT>
              <SECTNO>201.92</SECTNO>
              <SUBJECT>Ruling on motion.</SUBJECT>
              <SECTNO>201.93</SECTNO>
              <SUBJECT>Review of ruling, appeal.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart J—Prehearing Conference; Settlements; Procedural Agreements (Rule 10)</HD>
              <SECTNO>201.101</SECTNO>
              <SUBJECT>Prehearing conference.</SUBJECT>
              <SECTNO>201.102</SECTNO>
              <SUBJECT>Prehearing rulings.</SUBJECT>
              <SECTNO>201.103</SECTNO>
              <SUBJECT>Opportunity for agreement of parties and settlement of case.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart K—Discovery and Depositions (Rule 11)</HD>
              <SECTNO>201.109</SECTNO>
              <SUBJECT>Discovery and production of documents.</SUBJECT>
              <SECTNO>201.110</SECTNO>
              <SUBJECT>Depositions: request for orders to take; time of filing.</SUBJECT>
              <SECTNO>201.111</SECTNO>
              <SUBJECT>Contents of order.</SUBJECT>
              <SECTNO>201.112</SECTNO>
              <SUBJECT>Record of examination; oath; objections.</SUBJECT>
              <SECTNO>201.113</SECTNO>
              <SUBJECT>Submission to witness, changes, signing.<PRTPAGE P="8"/>
              </SUBJECT>
              <SECTNO>201.114</SECTNO>
              <SUBJECT>Certification and filing by officer; copies.</SUBJECT>
              <SECTNO>201.115</SECTNO>
              <SUBJECT>Waiver of objections and admissibility.</SUBJECT>
              <SECTNO>201.116</SECTNO>
              <SUBJECT>Time of filing.</SUBJECT>
              <SECTNO>201.117</SECTNO>
              <SUBJECT>Inclusion in record.</SUBJECT>
              <SECTNO>201.118</SECTNO>
              <SUBJECT>Witness fees; expenses of taking depositions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart L—Subpoenas (Rule 12)</HD>
              <SECTNO>201.121</SECTNO>
              <SUBJECT>Application for subpoena ad testificandum.</SUBJECT>
              <SECTNO>201.122</SECTNO>
              <SUBJECT>Application for subpoena duces tecum.</SUBJECT>
              <SECTNO>201.123</SECTNO>
              <SUBJECT>Standards for issuance of subpoena duces tecum.</SUBJECT>
              <SECTNO>201.124</SECTNO>
              <SUBJECT>Service and quashing of subpoenas.</SUBJECT>
              <SECTNO>201.125</SECTNO>
              <SUBJECT>Attendance and mileage fees.</SUBJECT>
              <SECTNO>201.126</SECTNO>
              <SUBJECT>Service of subpoenas.</SUBJECT>
              <SECTNO>201.127</SECTNO>
              <SUBJECT>Subpoena of Administration employees, documents, or things.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart M—Hearing Procedures (Rule 13)</HD>
              <SECTNO>201.131</SECTNO>
              <SUBJECT>Presentation of evidence.</SUBJECT>
              <SECTNO>201.132</SECTNO>
              <SUBJECT>Conduct of the hearing.</SUBJECT>
              <SECTNO>201.133</SECTNO>
              <SUBJECT>Appeal from ruling of presiding officer.</SUBJECT>
              <SECTNO>201.134</SECTNO>
              <SUBJECT>Separation of functions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart N—Evidence (Rule 14)</HD>
              <SECTNO>201.136</SECTNO>
              <SUBJECT>Evidence admissible.</SUBJECT>
              <SECTNO>201.137</SECTNO>
              <SUBJECT>Rights of parties as to presentation of evidence.</SUBJECT>
              <SECTNO>201.138</SECTNO>
              <SUBJECT>Unsponsored written material.</SUBJECT>
              <SECTNO>201.139</SECTNO>
              <SUBJECT>Documents containing matter both material and not material.</SUBJECT>
              <SECTNO>201.140</SECTNO>
              <SUBJECT>Records in other proceedings.</SUBJECT>
              <SECTNO>201.141</SECTNO>
              <SUBJECT>Stipulations.</SUBJECT>
              <SECTNO>201.142</SECTNO>
              <SUBJECT>Further evidence required by presiding officer during hearing.</SUBJECT>
              <SECTNO>201.143</SECTNO>
              <SUBJECT>Exceptions to rulings of presiding officer unnecessary.</SUBJECT>
              <SECTNO>201.144</SECTNO>
              <SUBJECT>Offer of proof.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart O—The Record: Contents; Development; Perfection; Confidential Treatment (Rule 15)</HD>
              <SECTNO>201.146</SECTNO>
              <SUBJECT>Receipt of documents after hearing.</SUBJECT>
              <SECTNO>201.147</SECTNO>
              <SUBJECT>Official transcript.</SUBJECT>
              <SECTNO>201.148</SECTNO>
              <SUBJECT>Corrections of transcript.</SUBJECT>
              <SECTNO>201.149</SECTNO>
              <SUBJECT>Copies of data or evidence.</SUBJECT>
              <SECTNO>201.150</SECTNO>
              <SUBJECT>Record for decision.</SUBJECT>
              <SECTNO>201.151</SECTNO>
              <SUBJECT>Objections to public disclosure of information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart P—Briefs, Requests for Findings, Decisions, Exceptions (Rule 16)</HD>
              <SECTNO>201.155</SECTNO>
              <SUBJECT>Briefs; request for findings.</SUBJECT>
              <SECTNO>201.156</SECTNO>
              <SUBJECT>Requests for extension of time for filing briefs.</SUBJECT>
              <SECTNO>201.157</SECTNO>
              <SUBJECT>Reopening of a case by presiding officer prior to decision.</SUBJECT>
              <SECTNO>201.158</SECTNO>
              <SUBJECT>Decisions, authority to make and kinds.</SUBJECT>
              <SECTNO>201.159</SECTNO>
              <SUBJECT>Decisions, contents and service.</SUBJECT>
              <SECTNO>201.160</SECTNO>
              <SUBJECT>Decision based on official notice.</SUBJECT>
              <SECTNO>201.161</SECTNO>
              <SUBJECT>Exceptions to, and review by the Administration of initial or recommended decisions.</SUBJECT>
              <SECTNO>201.162</SECTNO>
              <SUBJECT>Replies to exceptions.</SUBJECT>
              <SECTNO>201.163</SECTNO>
              <SUBJECT>Request for extension of time for filing exceptions and replies thereto.</SUBJECT>
              <SECTNO>201.164</SECTNO>
              <SUBJECT>Certification of record by presiding officer.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart Q—Oral Argument; Submittal for Final Decision (Rule 17)</HD>
              <SECTNO>201.166</SECTNO>
              <SUBJECT>Oral argument.</SUBJECT>
              <SECTNO>201.167</SECTNO>
              <SUBJECT>Submission to Administration for final decision.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart R—Stay of Administration's Decision, Reopening of Proceedings (Rule 18)</HD>
              <SECTNO>201.171</SECTNO>
              <SUBJECT>Stay of Administration's decision.</SUBJECT>
              <SECTNO>201.172</SECTNO>
              <SUBJECT>Time for filing petition to reopen.</SUBJECT>
              <SECTNO>201.173</SECTNO>
              <SUBJECT>Reopening by Administration and modification or setting aside of decision.</SUBJECT>
              <SECTNO>201.174</SECTNO>
              <SUBJECT>Petition for reopening.</SUBJECT>
              <SECTNO>201.175</SECTNO>
              <SUBJECT>Answers to petition to reopen.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart S—Judicial Standards of Practice (Rule 19)</HD>
              <SECTNO>201.181</SECTNO>
              <SUBJECT>General matters.</SUBJECT>
              <SECTNO>201.182</SECTNO>
              <SUBJECT>Improper pressures.</SUBJECT>
              <SECTNO>201.183</SECTNO>
              <SUBJECT>Ex parte communications.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart T—Effective Date (Rule 20)</HD>
              <SECTNO>201.185</SECTNO>
              <SUBJECT>Effective date and applicability of rules.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>46 App. U.S.C. 1114(b); 49 CFR 1.66 and 1.69.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>General Order 41, 3d Rev., 29 FR 14475, Oct. 22, 1964; 29 FR 15374, Nov. 17, 1964, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General Information (Rule 1)</HD>
            <SECTION>
              <SECTNO>§ 201.1</SECTNO>
              <SUBJECT>Scope of rules.</SUBJECT>

              <P>The regulations in this part govern practice and procedure before the Maritime Administration and Maritime Subsidy Board (as described in 49 CFR 1.66 and 1.67), hereinafter referred to collectively as the “Administration,” under the Merchant Marine Act, 1920, as amended, Merchant Marine Act, 1936, as amended, Merchant Ship Sales Act, 1946, Administrative Procedure Act, and related Acts. In addition, certain proceedings under sections 605(c) <PRTPAGE P="9"/>and 805(a) of the Merchant Marine Act, 1936, as amended, shall be conducted in accordance with part 203 of this chapter except as may be provided otherwise by the Administration.</P>
              <CITA>[55 FR 12358, Apr. 3, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.2</SECTNO>
              <SUBJECT>Mailing address; hours.</SUBJECT>
              <P>Documents required to be filed in, and correspondence relating to, proceedings governed by the regulations in this part should be addressed to “Secretary, Maritime Administration, Department of Transportation, Washington, DC 20590.” The Office of the Secretary, Maritime Administration, including the public document reading room, located in room 7210, 400 Seventh Street, SW., Washington, DC 20590, is open from 8:30 a.m. to 5:00 p.m.</P>
              <CITA>[55 FR 12358, Apr. 3, 1990, as amended at 63 FR 9157, Feb. 24, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.3</SECTNO>
              <SUBJECT>Authentication of rules, orders, determinations and decisions of the Administration.</SUBJECT>
              <P>All rules, orders, determinations or decisions issued in any proceeding covered by the regulations in this part shall, unless otherwise specifically provided by the Administration, be signed and authenticated by seal by the Secretary of the Administration in the name of the Administration.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§§ 201.4-201.5</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.6</SECTNO>
              <SUBJECT>Documents in foreign languages.</SUBJECT>
              <P>Every document, exhibit, or other paper written in a language other than English and filed with the Administration or offered in evidence in any proceeding before the Administration under the regulations in this part or in response to any rule or order of the Administration pursuant to the regulations in this part, shall be filed or offered in the language in which it is written and shall be accompanied by an English translation thereof duly subscribed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.7</SECTNO>
              <SUBJECT>Information; special instructions.</SUBJECT>
              <P>Information as to procedure under the regulations in this part, and instructions supplementing the regulations in this part in special instances, will be furnished upon application to the Secretary of the Administration.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.8</SECTNO>
              <SUBJECT>Use of gender and number.</SUBJECT>
              <P>Words importing the singular number may extend and be applied to several persons or things; words importing the plural number may include the singular; and words importing the masculine gender may be applied to females.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.9</SECTNO>
              <SUBJECT>Suspension, amendment, etc., of rules.</SUBJECT>

              <P>The regulations in this part may, from time to time, be suspended, amended, or revoked, in whole or in part. Notice of any such action will be published in the <E T="04">Federal Register.</E> Also, any regulation in this part may be waived by the Administration or the Presiding Officer to prevent undue hardship in any particular case.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Appearance and Practice Before the Administration (Rule 2)</HD>
            <SECTION>
              <SECTNO>§ 201.15</SECTNO>
              <SUBJECT>Appearance in person or by representative.</SUBJECT>
              <P>A party may appear in person or by an officer, partner, or regular employee of the party, or by or with counsel or other duly qualified representative, in any proceeding under the regulations in this part. A party may offer testimony, produce and examine witnesses, and be heard upon brief and at oral argument if oral argument is granted. Any person compelled to appear in a proceeding pursuant to subpoena may be accompanied, represented, and advised by counsel and may purchase a transcript of his testimony.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.16</SECTNO>
              <SUBJECT>Authority for representation.</SUBJECT>
              <P>Any individual acting in a representative capacity in any proceeding before the Administration may be required by the Administration or the Presiding Officer to show his authority to act in such capacity.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.17</SECTNO>
              <SUBJECT>Written appearance.</SUBJECT>

              <P>Persons who appear at any hearing shall deliver a written notation of appearance to the reporter, stating for whom the appearance is made. The <PRTPAGE P="10"/>written appearance shall be made a part of the record.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.18</SECTNO>
              <SUBJECT>Practice before the Administration defined.</SUBJECT>
              <P>Practice before the Administration shall be deemed to comprehend all matters connected with any presentation to the Administration or its staff.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.19</SECTNO>
              <SUBJECT>Presiding officers.</SUBJECT>
              <P>Hearings on any matter before the Administration will be held by a duly designated Member or Members thereof, or a Hearing Examiner qualified under section 11 of the Administrative Procedure Act, assigned by the Chief Hearing Examiner, who shall be designated as the Presiding Officers. Where appropriate the Administration may designate other members of the staff to serve as Presiding Officers in hearings not required by statute, as provided in § 201.86.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.20</SECTNO>
              <SUBJECT>Attorneys at law.</SUBJECT>
              <P>Attorneys at law who are admitted to practice before the Federal courts or before the courts of any State or territory of the United States may practice before the Administration. An attorney's own representation that he is such in good standing before any of the courts herein referred to will be sufficient proof thereof.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.21</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.22</SECTNO>
              <SUBJECT>Firms and corporations.</SUBJECT>
              <P>Except as regards law firms, practice before the Administration by firms or corporations on behalf of others shall not be permitted.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.23</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.24</SECTNO>
              <SUBJECT>Suspension or disbarment.</SUBJECT>
              <P>The Administration may, in its discretion, deny admission to, suspend, or disbar any person from practice before the Administration who it finds does not possess the requisite qualifications to represent others or is lacking in character, integrity, or to have engaged in unethical or improper professional conduct. Disrespectful, disorderly, or contumacious language or contemptuous conduct at any hearing before the Administration or a presiding officer shall constitute grounds for immediate exclusion from said hearing by the Presiding Officer. Any person who has been admitted to practice before the Administration may be disbarred from such practice only after he has been afforded an opportunity to be heard.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.25</SECTNO>
              <SUBJECT>Statement of interest.</SUBJECT>
              <P>The Administration, in its discretion, may call upon any practitioner for a full statement of the nature and extent of his interest in the subject matter presented by him before the Administration. Attorneys retained on a contingent fee basis shall file with the Administration a copy of the contract of employment.</P>
              <CITA>[General Order 41, 3d Rev., 29 FR 14475, Oct. 22, 1964; 29 FR 15374, Nov. 17, 1964, as amended at 60 FR 38735, July 28, 1995]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.26</SECTNO>
              <SUBJECT>Former employees.</SUBJECT>
              <P>(a) No former officer or employee of the Administration, after his or her employment with the Administration has ceased, shall act as agent or attorney for anyone other than the United States in connection with any particular matter in which a specific party or parties are involved and in which the United States is a party or has a direct and substantial interest and in which the former officer or employee participated personally and substantially as an officer or employee of the Maritime Administration through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise while so employed by the Maritime Administration.</P>

              <P>(b) No former officer or employee of the Administration shall practice, appear, or represent anyone, directly or indirectly, other than the United States, before the Administration in any matter for a period of 1 year subsequent to the termination of his or her employment with the Administration in connection with any proceeding, application, request for a ruling or other determination, contract, claim, controversy, or other particular matter involving a specific party or parties in which the United States is a party or directly and substantially interested <PRTPAGE P="11"/>and which was under his or her official responsibility as an officer or employee of the Administration at any time during the last year of his or her service.</P>
              <P>(c) Any person in doubt as to the applicability of paragraph (a) or (b) of this § 201.26 to a particular case or to the postemployment activities of a former officer or employee of the Administration may address an application to the Administration for the Administration's consent to appear, stating his former connection with the Administration or predecessor agency, identifying the matter in which he or she desires to appear and describe in detail his or her participation in or responsibility for the particular matter and the specific party or parties involved and the extent, if any, in which the former officer or employee had participated while employed by the Administration. The applicant shall be promptly advised as to his or her privilege to appear in the particular matter. Separate consents to appear must be obtained in each particular matter.</P>
              <CITA>[G.O. 41, 3d Rev., Amdt. 3, 36 FR 4377, Mar. 5, 1971]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Parties (Rule 3)</HD>
            <SECTION>
              <SECTNO>§ 201.30</SECTNO>
              <SUBJECT>Parties; how designated.</SUBJECT>
              <P>The term <E T="03">party,</E> whenever used in these Rules, shall include any natural person, corporation, association, firm, partnership, trustee, receiver, agency, public or private organization, or governmental agency. A party requesting official action subject to these Rules shall be designated as <E T="03">applicant.</E> A party whose petition for leave to intervene is granted pursuant to § 201.78 shall be designated as <E T="03">intervenor.</E> Only a party as designated in this section may introduce evidence or examine witnesses at hearings.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.31</SECTNO>
              <SUBJECT>Public counsel.</SUBJECT>
              <P>The Assistant General Counsel, Chief, Division of Operating Subsidy Contracts, shall be a party to all proceedings involving operating-differential subsidy contracts. The Assistant General Counsel and his representatives shall be designated as Public Counsel and shall be served with copies of all papers, pleadings, and documents in such proceedings. In addition the General Counsel may designate any member of his staff to serve as Staff Counsel in contract appeal cases or any other proceeding governed by the regulations in this part. Public Counsel or Staff Counsel shall participate in any proceeding to which he is a party, to the extent he deems required in the public interest, subject to the separation of functions required by section 5(c) of the Administrative Procedure Act.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.32</SECTNO>
              <SUBJECT>Substitution of parties.</SUBJECT>
              <P>Upon petition and for good cause shown, the Administration may order a substitution of parties; except that in case of death of a party substitution may be ordered upon suggestion and without the filing of a petition.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Form, Execution and Service of Documents (Rule 4)</HD>
            <SECTION>
              <SECTNO>§ 201.41</SECTNO>
              <SUBJECT>Form and appearance of documents filed with the Administration.</SUBJECT>
              <P>All papers to be filed under the regulations in this part may be reproduced by printing or by any other process, provided the copies are clear and legible; shall be dated, the original signed in ink, and shall show the docket description and title of the proceeding, and the title, if any, and address of the signatory. If typewritten, the impression shall be on only one side of the paper and shall be double spaced, except that quotations shall be single spaced and indented. Documents not printed, except correspondence and exhibits, should be on strong, durable paper and shall not be more than 8<FR>1/2</FR> inches wide and 12 inches long, with a left margin 1<FR>1/2</FR> inches wide. Printed documents shall be printed in clear type (never smaller than pica or 11-point type) adequately leaded, and the paper shall be opaque and unglazed. Briefs, if printed, shall be printed on paper not less than 6<FR>1/8</FR> inches wide and 9<FR>1/4</FR> inches long, with inside margin not less than 1 inch wide. All briefs over 15 pages shall contain a subject index with page references and a list of authorities cited.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="12"/>
              <SECTNO>§ 201.42</SECTNO>
              <SUBJECT>Subscription, authentication of documents.</SUBJECT>
              <P>(a) Documents filed shall be subscribed: (1) By the person or persons filing same, (2) by an officer thereof if it be a corporation, (3) by an officer or employee if it be a government instrumentality, or (4) by an attorney or other person having authority with respect thereto.</P>
              <P>(b) Documents submitted pursuant to stipulation of counsel where no sponsoring witness will be used must be verified.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.43</SECTNO>
              <SUBJECT>Service by parties.</SUBJECT>
              <P>All documents, when tendered for filing should show that service has been made upon all parties to the proceeding. Such service shall be made by delivering one copy to each party in person or by mailing by first-class mail properly addressed with postage prepaid. When a party has appeared by attorney or other representative, service upon such attorney or other representative will be deemed service upon the party. All documents served by mail preferably should be mailed in sufficient time to reach the parties on the date on which the original is due to be filed and should be air mailed if addressee is more than 300 miles distant.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.44</SECTNO>
              <SUBJECT>Date of service.</SUBJECT>
              <P>The date of service of documents shall be the day when the matter served is deposited in the United States mail, shown by the postmark thereon, or is delivered in person, as the case may be.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.45</SECTNO>
              <SUBJECT>Certificate of service.</SUBJECT>

              <P>The original of every document filed with the Administration and required to be served upon all parties to a proceeding shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party to the proceeding. Certificates of service may be in substantially the following form:
              </P>
              <EXTRACT>
                <P>I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by mailing, postage prepaid (or by delivering in person) a copy to each such party.</P>
                <P>Dated at ___ this __ day of ___, 19_</P>
                <FP SOURCE="FP-1">(Signature)________</FP>
                <FP SOURCE="FP-1">For________</FP>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.46</SECTNO>
              <SUBJECT>Copies of documents for use of the Administration.</SUBJECT>
              <P>Except as otherwise provided in the regulations in this part, an original and fifteen copies of every document shall be filed for use of the Administration, except written testimony and exhibits to be made a part of a record, which shall be filed in triplicate unless otherwise directed.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Time (Rule 5)</HD>
            <SECTION>
              <SECTNO>§ 201.51</SECTNO>
              <SUBJECT>Computation.</SUBJECT>
              <P>In computing any period of time under these Rules, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or national legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and holidays shall be excluded from the computation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.52</SECTNO>
              <SUBJECT>Additional time after service by mail.</SUBJECT>
              <P>Whenever service of a document has been made by mail in accordance with § 201.43 three (3) days shall be added to the prescribed period for answer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.53</SECTNO>
              <SUBJECT>Extension of time to file documents.</SUBJECT>
              <P>Applications for extension of time for the filing of any document shall set forth the reasons for the application and may be granted upon a showing of good cause on the part of applicant. Answers to such applications are permitted.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.54</SECTNO>
              <SUBJECT>Reduction of time to file documents.</SUBJECT>
              <P>Except as prohibited by law, for good cause the Administration, or the Presiding Officer with respect to matters pending before him, may reduce any time limit prescribed in the regulations in this part.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.55</SECTNO>
              <SUBJECT>Postponement of hearing.</SUBJECT>

              <P>Applications for postponement of any hearing date may be granted upon a showing of good cause on the part of <PRTPAGE P="13"/>the applicant. Answers to such applications are permitted.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart F—Rule Making (Rule 6)</HD>
            <SECTION>
              <SECTNO>§ 201.61</SECTNO>
              <SUBJECT>Petition for issuance, amendment, or repeal of rule or regulation.</SUBJECT>
              <P>Any interested person may file with the Administration a petition for the issuance, amendment, or repeal of a rule designed to implement, interpret, or prescribe law, policy, organization, procedure, or practice requirements of the Administration. The petition shall set forth the interest of petitioner and the nature of the relief desired, shall include any facts, views, arguments, and data deemed relevant by petitioner, and shall be subscribed to. If such petition is for the amendment or repeal of a rule, it shall be accompanied by proof of service on all persons, if any, specifically named in such rule, and shall conform in all other aspects to subpart D of this part. Answers to such petition shall conform to the requirements of subpart D of this part.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.62</SECTNO>
              <SUBJECT>Notice of proposed rule making.</SUBJECT>

              <P>After receipt of petitions and any answers thereto described in § 201.61, or upon its own initiative, the Administration may, in its discretion, direct that notice thereof be published in the <E T="04">Federal Register</E> unless all persons subject thereto are named and either are personally served or otherwise have actual notice thereof in accordance with law. Except where publication of notice of proposed rule making and public hearing is required by statute, this section shall not apply to interpretative rules, general statements of policy, organization rules, rules of procedure, or practice of the Administration, or amendments thereto, or any situation in which the Administration for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.63</SECTNO>
              <SUBJECT>Participation in rule making.</SUBJECT>

              <P>Interested persons will be afforded an opportunity to participate in rule making through submission of written data, views, or arguments, with or without opportunity to present the same orally in any manner: <E T="03">Provided,</E> That where the proposed rules are such as are required by statute to be made on the record after opportunity for a hearing, or where a hearing is ordered by the Administration upon petition of any party or upon its own initiative, such hearing shall be conducted pursuant to sections 7 and 8 of the Administrative Procedure Act.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.64</SECTNO>
              <SUBJECT>Contents of rules.</SUBJECT>
              <P>The Administration will incorporate in any rule to be adopted a concise general statement of their basis and purpose.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.65</SECTNO>
              <SUBJECT>Effective date of rules.</SUBJECT>

              <P>The publication or service of any substantive rule shall be made not less than 30 days prior to its effective date except: (a) As otherwise provided by the Administration for good cause found and published in the <E T="04">Federal Register</E> or (b) in the case of rules granting or recognizing exemption or relieving restriction, interpretative rules, and statements of policy.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart G—Formal Proceedings, Notice, Pleadings, Replies (Rule 7)</HD>
            <SECTION>
              <SECTNO>§ 201.71</SECTNO>
              <SUBJECT>Commencement of proceedings.</SUBJECT>
              <P>Formal proceedings may be commenced with respect to any phase of an application for Government aid or other relief, the processing of which by statute requires a public hearing. The Administration may, in its discretion, also direct the holding of a hearing not required by statute for any purpose authorized in the statutes it administers.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.72</SECTNO>
              <SUBJECT>Notice.</SUBJECT>

              <P>Notice of any matter which may result in or involves the institution of a formal proceeding will be given by publication in the <E T="04">Federal Register</E> in sufficient detail and in sufficient time to apprise interested persons of the nature of the issues to be heard and to allow for an opportunity to file petitions for leave to intervene.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="14"/>
              <SECTNO>§ 201.73</SECTNO>
              <SUBJECT>Joinder of proceedings.</SUBJECT>
              <P>(a) Two or more matters which have been set for hearing by the Administration, and which involve similar issues, may be consolidated for the purpose of hearing. Such consolidation may, at the discretion of the Administration, or Presiding Officer after hearing has been ordered, be ordered upon petition of any party to said hearing or upon the initiative of the Administration.</P>
              <P>(b) A petition to consolidate shall be filed not later than the first prehearing conference in the proceeding with which consolidation is requested, and shall relate only to then pending applications. If made at such conference, the petition may be oral. A petition which is not timely filed shall be dismissed unless the petitioner shall clearly show good cause for the failure to file said petition on time. A petition which does not relate to an application pending at the time of or before a prehearing conference in a proceeding with which consolidation is requested, shall likewise be dismissed unless the petitioner shall clearly show good cause for a failure to file the application within the prescribed period.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.74</SECTNO>
              <SUBJECT>Declaratory orders.</SUBJECT>
              <P>The Administration may issue a declaratory order to terminate a proceeding or to remove uncertainty. Petitions for the issuance thereof shall state clearly and concisely the nature of the controversy or uncertainty, shall cite the statutory authority involved, shall include a complete statement of the facts and grounds supporting the petition, together with a full disclosure of petitioner's interest.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.75</SECTNO>
              <SUBJECT>Petitions—general.</SUBJECT>
              <P>All petitions shall be written and shall state the petitioner's grounds of interest in the subject matter, the facts relied upon, and the relief sought, and shall cite the authority upon which the petition rests. The petition shall be served upon all parties named therein or affected thereby. Answers to petitions may be filed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.76</SECTNO>
              <SUBJECT>Applications for Government aid.</SUBJECT>
              <P>Applications for operating-differential subsidies, charter of Government-owned vessels, and other types of Government aid shall conform to the requirements set forth in the various general orders and other regulations of the Administration specifically provided therefor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.77</SECTNO>
              <SUBJECT>Amendments or supplements to pleadings.</SUBJECT>

              <P>Amendments or supplements to any pleading will be allowed or refused in the discretion of the Administration if the case has not been assigned for hearing, otherwise in the discretion of the presiding officer designated to conduct the hearing; <E T="03">Provided,</E> That after a prehearing conference has been held no amendment shall be allowed which would substantially broaden the issues, unless an opportunity is afforded all parties to answer such amended pleadings and to prepare for hearing upon the broadened issues. The presiding officer may direct a party to state its case more fully and in more detail by way of amendment. If a response to an amended pleading is necessary, it may be filed and served. Amendments or supplements allowed prior to hearing will be served in the same manner as the original pleading. Whenever by the regulations in this part a pleading is required to be subscribed, the amendment or supplement shall also be subscribed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.78</SECTNO>
              <SUBJECT>Petition for leave to intervene.</SUBJECT>

              <P>A petition for leave to intervene may be filed in any proceeding before the Administration. The petition will be granted by the presiding officer if the proposed intervenor establishes that it has a substantial interest in the proceeding and will not unduly broaden the issues therein or unduly delay the proceeding. All such petitions shall be filed prior to the opening of the prehearing conference, or if none is held, before the commencement of hearing, unless petitioner shows good cause for allowing the petition at a later time. Intervention petitions shall be served in the same manner as other petitions, and shall be subject to answer. Intervention petitions will be granted where necessary to protect substantial interests of the petitioner and where intervention will not materially broaden the issues. A person granted permission <PRTPAGE P="15"/>to intervene becomes a party to the proceeding.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.79</SECTNO>
              <SUBJECT>Motions.</SUBJECT>

              <P>All motions and requests for rulings shall state the relief sought, the authority relied upon, and the facts alleged. If made before or after the hearing, such motions shall be in writing. If made at the hearing, they may be stated orally: <E T="03">Provided, however,</E> That the presiding officer may require that such motion be reduced to writing and filed and served in the same manner as a formal motion. Answers to formal motions shall comply with the requirements of § 201.80. Motions and answers thereto shall be addressed to the presiding officer if the case is pending before such officer. Oral argument upon a written motion in which an answer has been filed may be granted within the discretion of the Administration or the presiding officer, as the case may be. A repetitious motion will not be entertained.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.80</SECTNO>
              <SUBJECT>Answers to applications, petitions, or motions.</SUBJECT>

              <P>A pleading filed in response to an application, petition, or motion is called an answer. An answer may be filed to any application, petition, motion or pleading which is required to be served on the answering party or noticed in the <E T="04">Federal Register.</E> An answer to a written application, petition, or motion shall be in writing and shall be filed within ten days after service of the pleading which it answers. Any new matter raised in an answer shall be deemed to be controverted. A response to an answer is called a reply. A short reply restricted to such new matters may be filed within five days of service of the answer.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart H—Responsibilities and Duties of Presiding Officer (Rule 8)</HD>
            <SECTION>
              <SECTNO>§ 201.85</SECTNO>
              <SUBJECT>Commencement of functions of Department of Transportation Office of Hearings.</SUBJECT>
              <P>In proceedings handled by the Department of Transportation Office of Hearings, its functions shall attach upon notice of the institution of a formal proceeding involving a prehearing conference and/or a hearing by the Administration.</P>
              <CITA>[General Order 41, 3d Rev., 29 FR 14475, Oct. 22, 1964; 29 FR 15374, Nov. 17, 1964, as amended at 63 FR 9157, Feb. 24, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.86</SECTNO>
              <SUBJECT>Presiding officer.</SUBJECT>
              <P>An Administrative Law Judge in the Department of Transportation Office of Hearings will be designated by the Department's Chief Administrative Law Judge to preside at hearings required by statute, or directed to be held under the Administration's discretionary authority in hearings not required by statute, in rotation so far as practicable, unless the Administration shall designate one or more of its officials to serve as presiding officer(s) in hearings required by statute, or member(s) of the staff in proceedings not required by statute.</P>
              <CITA>[63 FR 9157, Feb. 24, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.87</SECTNO>
              <SUBJECT>Authority of presiding officer.</SUBJECT>

              <P>The officer designated to hear a case shall have authority to arrange and issue notice of the date, time and place of hearings; under appropriate circumstances consolidate dockets for joint hearing; sign and issue subpoenas authorized by law; take or cause depositions to be taken; rule upon proposed amendments or supplements to pleadings; hold conferences for the settlement or simplification of matters embraced in the proceedings; regulate the course of the hearing; prescribe the order in which evidence shall be presented; dispose of procedural requests or similar matters; hear and initially rule upon all motions and petitions before him; administer oaths and affirmations; examine witnesses, direct witnesses to testify or produce available evidence and to submit reports, studies and analyses of data available to them which may be generally relevant and material to the determination of any questions of fact in issue; rule upon offers of proof and receive competent, relevant, material, reliable, and probative evidence; exclude irrelevant, immaterial, unreliable, repetitious or cumulative evidence; exclude cross-examination which is primarily intended to elicit self-serving declarations in favor <PRTPAGE P="16"/>of the witness; and limit cross-examination of any questions of fact in issue; for a full and true disclosure of the facts in issue; act upon petitions to intervene; act upon submission of facts, or argument; initially consider offers of settlement or other proposals of adjustment upon which recommendations to the Administration may be made; hear oral argument at the close of testimony; fix the time for filing briefs, motions and other documents to be filed in connection with hearings and replies thereto; and issue the initial or recommended decisions and dispose of any other pertinent matter that normally and properly arises in the course of proceedings. When the presiding officer is unavailable for any reason, and the exercise of any of his powers and functions, as described herein, is due, timely, and necessary, the Chief Administrative Law Judge may exercise such powers and functions until the presiding officer becomes available or until his successor is designated.</P>
              <CITA>[General Order 41, 3d Rev., 29 FR 14475, Oct. 22, 1964; 29 FR 15374, Nov. 17, 1964, as amended at 63 FR 9157, Feb. 24, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.88</SECTNO>
              <SUBJECT>Postponement or change of place by presiding officer.</SUBJECT>
              <P>If, in the judgment of the presiding officer, convenience or necessity so requires he may postpone the time or change the place of hearing.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.89</SECTNO>
              <SUBJECT>Disqualification of presiding officer.</SUBJECT>
              <P>Any presiding officer may at any time withdraw if he deems himself disqualified, in which case another presiding officer will be designated. If a party to a proceeding, or his representative, files in good faith a timely and sufficient affidavit of personal bias or disqualification of a presiding officer, the Administration will determine the matter as a part of the record and decision in the case.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart I—Summary Disposition (Rule 9)</HD>
            <SECTION>
              <SECTNO>§ 201.91</SECTNO>
              <SUBJECT>Filing of motions, answers.</SUBJECT>
              <P>Any party or (if a petition to intervene shall have been filed but not have been acted upon) any prospective party may at or before the first prehearing conference in any proceeding, or at such later time as might be allowed by the presiding officer, move with supporting affidavits for a summary disposition in his favor of all or any part of the proceeding. Any adverse party may within 20 days serve opposing affidavits or may countermove for summary disposition. Oral argument thereon may be granted in the discretion of the presiding officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.92</SECTNO>
              <SUBJECT>Ruling on motion.</SUBJECT>
              <P>The presiding officer may grant such motion if the application, motion, or other pleadings, affidavits or depositions, if any, and matters of official notice show that there is no genuine issue as to any material facts, that there is no necessity that further facts be developed in the record, and that such party is entitled to a decision as a matter of law.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.93</SECTNO>
              <SUBJECT>Review of ruling, appeal.</SUBJECT>
              <P>The order of the presiding officer denying a motion for summary disposition shall be subject to interlocutory appeal under the provisions of § 201.123. An order granting a motion for summary disposition is automatically reviewable by the Administration in accordance with the provisions of § 201.133 and shall not be final until acted upon by the Administration.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart J—Prehearing Conference; Settlements; Procedural Agreements (Rule 10)</HD>
            <SECTION>
              <SECTNO>§ 201.101</SECTNO>
              <SUBJECT>Prehearing conference.</SUBJECT>
              <P>Prior to any hearing a prehearing conference may be held before the presiding officer. Written notice of a prehearing conference shall be transmitted by the Secretary of the Administration or the Chief Hearing Examiner to all parties of record including persons whose petitions for leave to intervene in the proceeding have not theretofore been granted, and where practicable, by general release to the public press.</P>

              <P>(a) At the prehearing conference the following matters, among others, shall be considered: (1) Petitions for leave to intervene; (2) motions for consolidation <PRTPAGE P="17"/>or severance of dockets for joint or separate hearing to the extent that the Administration has not theretofore taken specific action; (3) simplification and delineation of the issues to be heard; (4) designation of matters in respect of which official notice may be taken; (5) requests for discovery and production of evidence considered to be generally relevant and material to the issues in the proceeding; (6) stipulations; (7) limitation of number of witnesses, particularly the avoidance of duplicate expert witnesses; (8) procedure applicable to the proceeding; (9) offers of settlement, as hereinafter to be more particularly discussed in § 201.103; and (10) scheduling of the dates for exchange of exhibits, written testimony both affirmative and rebuttal and establishing the date, time and place for hearing.</P>
              <P>(b) If deemed necessary or appropriate, the presiding officer may also, on his own motion, or on motion of Public Counsel direct any party to a proceeding to prepare and submit exhibits setting forth studies, forecasts, or estimates on matters relevant and material to the issues in the proceeding to be sponsored by witnesses available for cross-examination thereon.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.102</SECTNO>
              <SUBJECT>Prehearing rulings.</SUBJECT>
              <P>The presiding officer will, where practicable, issue prehearing rulings, acting on petitions for leave to intervene, delineating the issues, summarizing the rulings made at the conference, specifying a schedule for the exchange of exhibits and written testimony, the date, time and place of hearing and specifying a time for the filing of exceptions to the rulings. The prehearing rulings shall be served upon all parties to the proceeding and any persons who participated in the conference. Exceptions to the prehearing rulings may be filed by any such party or person within the time specified therein. The presiding officer may serve amended rulings in the light of the exceptions presented. Such rulings and amendments, if any, shall constitute the official account of the conference and shall control the subsequent course of the proceeding, but they may be reconsidered and modified at any time to protect the public interest or to prevent injustice.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.103</SECTNO>
              <SUBJECT>Opportunity for agreement of parties and settlement of case.</SUBJECT>
              <P>Where time, the nature of the proceeding, and the public interest permit, all interested parties shall have the opportunity for submission to and consideration by the presiding officer of offers of settlement, or proposals of adjustment together with facts and/or arguments relevant to such offers or proposals without prejudice to the rights of the parties. The presiding officer need not be present at any negotiations of such nature. The presiding officer shall issue an initial or recommended decision thereon recommending approval or disapproval of such offer of settlement or proposal of adjustment to the Administration for final action thereon. No agreement, offer, or proposal shall be admissible in evidence over the objection of any party in any hearing on the matter. When any settlement does not dispose of the whole proceeding, the remaining issues shall be determined in accordance with sections 7 and 8 of the Administrative Procedure Act.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart K—Discovery and Depositions (Rule 11)</HD>
            <SECTION>
              <SECTNO>§ 201.109</SECTNO>
              <SUBJECT>Discovery and production of documents.</SUBJECT>

              <P>Upon request of any party showing good cause therefor, at the prehearing conference or otherwise upon notice to all other parties, the Administration or presiding officer may direct any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged which constitute or contain evidence relating to any matter, not privileged, which is relevant to the subject matter involved in the pending proceeding, and which are in his possession, custody or control. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just. In lieu of such inspections the material may be <PRTPAGE P="18"/>produced in exhibit form and served upon all parties to a formal proceeding. Such exhibits may also, upon request of any party, be offered in evidence at a hearing.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.110</SECTNO>
              <SUBJECT>Depositions: request for orders to take; time of filing.</SUBJECT>
              <P>The Administration or presiding officer may, upon proper request of a party to a proceeding or under circumstances deemed proper, issue an order to take a deposition regarding any matter, not privileged, which is relevant to the subject matter involved in the proceedings. A motion to take a deposition shall be filed not less than fifteen (15) days before the proposed date for taking the deposition, unless a shorter period is fixed under § 201.54, and shall set forth the reason for the deposition, the place and time of taking, the officer before whom it is to be taken, the name and address of each witness to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and whether the deposition is to be based upon written interrogatories or upon oral examination. If the deposition is to be based upon oral examination, the motion shall contain a statement of the matters concerning which each witness will testify. If the deposition is to be based on written interrogatories, the motion shall be accompanied by the interrogatories to be propounded, serially numbered. Copies of all motions to take depositions, and accompanying interrogatories, if any, shall conform to the requirements of subpart D of this part. Objection to the taking of such depositions may be made in an answer to such motion. Without prejudice to objection, the answer may also state objection to any individual interrogatory, and if the deposition is permitted, the presiding officer will rule upon such objections to interrogatories. A party served with an order to take a deposition on written interrogatories shall have ten (10) days after date of service of such order unless a shorter period is fixed under § 201.54, within which to file and serve written cross interrogatories, which shall be served pursuant to subpart D of this part. Answers to applications for cross interrogatories may be filed in accordance with § 201.80. Upon the issuance of an order by the Administration or the presiding officer for the taking of a deposition, the Docket Clerk shall mail a copy thereof to all parties, including the party who requested the deposition. An application to take a deposition in a foreign country will be entertained when necessary or convenient, and authority to take such deposition will be granted upon such notice and other terms and directions as are lawful and appropriate.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.111</SECTNO>
              <SUBJECT>Contents of order.</SUBJECT>
              <P>The order issued authorizing the taking of a deposition will state the name and address of each witness or a general description sufficient to identify him or the particular class or group to which he belongs, the matters concerning which the witness may be questioned, the place where, the time when, and the officer before whom the deposition is to be taken, any or all of which may or may not be the same as set forth in the motion filed. If the deposition is to be taken upon written interrogatories, a list of the interrogatories will accompany the order.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.112</SECTNO>
              <SUBJECT>Record of examination; oath; objections.</SUBJECT>

              <P>The officer before whom the deposition is to be taken shall put the witness under oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically, shall be translated to English, if necessary, and shall be transcribed unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objections to the proceedings, shall be noted by the officer upon the deposition. Any party served with a notice to take an oral deposition may cross-examine a witness whose testimony is taken under such deposition. In lieu of cross-examination, parties served with notice of taking a deposition may transmit written interrogatories or cross-interrogatories to the <PRTPAGE P="19"/>officer taking the deposition, who shall propound them to the witness and record the answers verbatim together with any objections interposed thereto by adverse parties.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.113</SECTNO>
              <SUBJECT>Submission to witness, changes, signing.</SUBJECT>
              <P>When the testimony is fully transcribed the deposition of each witness shall be submitted to him for examination and shall be read to or by him. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign, together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless upon objection the presiding officer holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.114</SECTNO>
              <SUBJECT>Certification and filing by officer; copies.</SUBJECT>
              <P>The officer taking the deposition shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness, and that said officer is not of counsel or attorney to either of the parties and is not directly or indirectly interested in the outcome of the proceeding or investigation. He shall then securely seal the deposition in an envelope endorsed with the title of the proceeding and marked “Deposition of (here insert name of witness)”, and shall promptly send the original and two copies thereof, together with the original and two copies of all exhibits, by registered mail to the Administration. Parties shall make their own arrangements with the officer taking the deposition for copies of the testimony and exhibits.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.115</SECTNO>
              <SUBJECT>Waiver of objections and admissibility.</SUBJECT>
              <P>Objections to the form of question and answer shall be made before the officer taking the deposition by parties or representatives present, and if not so made, shall be deemed waived. Depositions shall, when offered at the hearing, be subject to proper legal objections.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.116</SECTNO>
              <SUBJECT>Time of filing.</SUBJECT>
              <P>Any depositions to be offered in evidence shall be filed with the presiding officer not later than the close of the offering party's presentation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.117</SECTNO>
              <SUBJECT>Inclusion in record.</SUBJECT>
              <P>No deposition or part thereof shall constitute a part of the record in any proceeding until received in evidence.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.118</SECTNO>
              <SUBJECT>Witness fees; expenses of taking depositions.</SUBJECT>
              <P>Witnesses whose depositions are taken pursuant to the regulations in this part, and the officer taking such deposition, shall severally be entitled to the same fees and mileage as are paid in the courts of the United States. All expenses of taking such depositions shall be paid by the party at whose instance the deposition is taken.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart L—Subpoenas (Rule 12)</HD>
            <SECTION>
              <SECTNO>§ 201.121</SECTNO>
              <SUBJECT>Application for subpoena ad testificandum.</SUBJECT>
              <P>An application for a subpoena requiring attendance of a witness at a hearing may be made without notice by any party to the presiding officer, or, in the event that a presiding officer has not been assigned to a proceeding or the presiding officer is not available, to the Chief Hearing Examiner, for action by him or by a member of the Administration. A subpoena for the attendance of a witness shall be issued on oral application at any time and shall be issued upon request of any interested party upon tender of an original and two copies of such subpoena. A record of the issuance of such a subpoena shall be entered in the docket.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="20"/>
              <SECTNO>§ 201.122</SECTNO>
              <SUBJECT>Application for subpoena duces tecum.</SUBJECT>
              <P>An application for a subpoena duces tecum for documentary or tangible evidence shall be in duplicate except that for good cause shown it may be made during the course of a hearing on the record to the presiding officer. Such application need not be served upon all parties. All such applications, whether written or oral, shall contain a statement or showing of general relevance and reasonable scope of the evidence sought and shall be accompanied by an original and two copies of the subpoena sought which shall describe the documentary or tangible evidence to be subpoenaed with as much particularity as is feasible.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.123</SECTNO>
              <SUBJECT>Standards for issuance of subpoena duces tecum.</SUBJECT>
              <P>The officer considering any application for a subpoena duces tecum shall issue the subpoena requested if he is satisfied the application complies with this section and the request is not unreasonable, oppressive, excessive in scope or unduly burdensome. No attempt shall be made to determine the admissibility of evidence in passing upon an application for a subpoena duces tecum and no detailed or burdensome showing shall be required as a condition to the issuance of any subpoena.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.124</SECTNO>
              <SUBJECT>Service and quashing of subpoenas.</SUBJECT>
              <P>Subpoenas issued under this section may be served upon the person to whom directed in accordance with subpart D of this part. Any person upon whom a subpoena is served may within seven (7) days after service or at any time prior to the return date thereof, whichever is earlier, file a motion to quash or modify the subpoena with the officer who issued the subpoena for action by him, and serve a copy of such motion to quash upon the party requesting the subpoena. If the person to whom the motion to modify or quash the subpoena has been addressed or directed has not acted upon such a motion by the return date, such date shall be stayed pending his final action thereon. The Administration may at any time review, upon its own initiative, the ruling of the officer denying a motion to quash a subpoena. In such cases, the Administration may at any time order that the return date of a subpoena which it has elected to review be stayed pending Administration action thereon.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.125</SECTNO>
              <SUBJECT>Attendance and mileage fees.</SUBJECT>
              <P>Persons attending hearings under requirement of subpoenas are entitled to the same fees and mileage as in the courts of the United States, to be paid by the party at whose instance the persons are called.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.126</SECTNO>
              <SUBJECT>Service of subpoenas.</SUBJECT>
              <P>If service of subpoena is made by a United States marshal or his deputy, such service shall be evidenced by his return thereon. If made by any other person, such person shall make affidavit thereto, describing the manner in which service is made, and return such affidavit on or with the original subpoena. In case of failure to make service, the reasons for the failure shall be stated on the original subpoena. In making service the original subpoena shall be exhibited to the person served, shall be read to him if he is unable to read, and a copy thereof shall be left with him. The original subpoena, bearing or accompanied by required return, affidavit, or statement, shall be returned without delay to the Administration, or if so directed on the subpoena, to the presiding officer before whom the person named in the subpoena is required to appear.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.127</SECTNO>
              <SUBJECT>Subpoena of Administration employees, documents, or things.</SUBJECT>
              <P>No subpoena for the attendance of an Administration officer or employee, or for the production of Administration documents or things shall be complied with except upon written authorization of the General Counsel upon written application by the party requesting the subpoena. </P>
            </SECTION>
            <HD SOURCE="HED">Subpart M—Hearing Procedures(Rule 13)</HD>
            <SECTION>
              <SECTNO>§ 201.131</SECTNO>
              <SUBJECT>Presentation of evidence.</SUBJECT>
              <P>(a) <E T="03">Testimony.</E> Where appropriate, the Presiding officer may direct that the testimony of witnesses be prepared in <PRTPAGE P="21"/>written exhibit form and shall be served at designated dates in advance of the hearing. Evidence as to events occurring after the exhibit-exchange dates shall be presented by a revision of exhibits. Witnesses sponsoring exhibits shall be made available for cross-examination. However, unless authorized by the presiding officer, witnesses will not be permitted to read prepared testimony into the record. The evidentiary record shall be limited to factual and expert opinion testimony. Argument will not be received in evidence but rather should be presented in opening and/or closing statements of counsel and in briefs to the presiding officer subsequently filed.</P>
              <P>(b) <E T="03">Exhibits.</E> All exhibits and responses to requests for evidence shall be numbered consecutively by the party submitting same and appropriately indexed as to number and title and shall be exchanged on dates prior to the hearing prescribed in the prehearing rulings. Written testimony should be identified alphabetically. Two copies shall be sent to each party and two to the presiding officer. No response to a request for evidence will be received into the record unless offered and received as an exhibit at the hearing. The exhibits, other than the written testimony, shall include appropriate footnotes or narrative material explaining the source of the information used and the methods employed in statistical compilations and estimates and shall contain a short commentary explaining the conclusions which the offeror draws from the data. Rebuttal exhibits should refer specifically to the exhibits being rebutted. Where one part of a multipage exhibit is based upon another part, appropriate cross-reference should be made. The principal title of each exhibit should state precisely what it contains and may also contain a statement of the purpose for which the exhibit is offered. However, such explanatory statement, if phrased in an argumentative fashion, will not be considered as a part of the evidentiary record. Additional exhibits pertinent to the issues may be submitted in a proceeding with the approval of the presiding officer.</P>
              <P>(c) <E T="03">Cooperation on basic data.</E> Parties having like interests are specifically encouraged to cooperate with each other in joint presentations particularly in such items as basic passenger, cargo, and scheduling data compiled from official or semiofficial sources, and any other evidence susceptible to joint presentation. Duplicate presentation of the same evidence should be avoided wherever possible.</P>
              <P>(d) <E T="03">Authenticity.</E> The authenticity of all documents submitted as proposed exhibits in advance of the hearing shall be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection.</P>
              <P>(e) <E T="03">Statement of position and trial briefs.</E> A written statement of position should be exchanged by all counsel with copies to all other parties prior to the beginning of the hearing: <E T="03">Provided, however,</E> That Public Counsel or counsel for a public body which has intervened as its interests may appear, may offer his statement of position at the conclusion of the evidentiary hearing, unless such is impracticable. This statement should include a showing of the theory of the case of the party submitting the statement and will not be subject to cross-examination. Trial briefs are acceptable but will not be required.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.132</SECTNO>
              <SUBJECT>Conduct of the hearing.</SUBJECT>
              <P>(a) <E T="03">Order of presentation.</E> Normally the order of presentation at the hearing will be alphabetical in each of the following categories:</P>
              <P>(1) MarAd statistical material.</P>
              <P>(2) Shipper interests, United States and foreign government departments.</P>
              <P>(3) Applicants.</P>
              <P>(4) Intervenors.</P>
              <P>(5) Public counsel.</P>
              <FP>Normally, rebuttal should be presented without any adjournment in the proceedings.</FP>
              <P>(b) <E T="03">Burden of proof.</E> The burden of proof shall be (1) upon an applicant for any form of government aid or grant; and (2) upon a proponent for the issuance of any rule or order within the jurisdiction of the Administration. The burden of going forward with rebuttal <PRTPAGE P="22"/>evidence in proceedings involving matters under paragraphs (b) (1) and (2) of this section shall fall upon opposing intervenors. Whenever an intervenor is permitted by the presiding officer to raise or advance a new issue in the proceeding, the burden of proof as to such issue shall fall upon such intervenor. If the burden of proof is met as to such new issue, the other parties shall have the burden of going forward with rebuttal evidence in such regard.</P>
              <P>(c) <E T="03">Requirement for submission of corrected copies of exhibits.</E> Each party shall present three fully corrected copies of its exhibits to be offered in evidence, one for the docket and two for the presiding officer.</P>
              <P>(d) <E T="03">Offer of exhibits in evidence.</E> The exhibits and written testimony sponsored by each witness shall be offered in evidence at the close of his direct examination to the extent practicable. After ruling upon motions to strike they shall be received in evidence subject to cross-examination. The presiding officer, in his discretion, may defer such ruling until after completion of cross-examination.</P>
              <P>(e)(1) <E T="03">Cross-examination.</E> Cross-examination shall be limited to the scope of the direct examination and, except for Public Counsel and counsel for public bodies which have intervened as their interests may appear, to witnesses whose testimony is adverse to the party desiring to cross-examine—this being intended specifically to prohibit so-called “friendly cross-examination”. Cross-examination, which is not necessary to test the truth and completeness of the direct testimony and exhibits, will not be permitted.</P>
              <P>(2) <E T="03">Re-cross-examination.</E> Second rounds of cross-examination normally will not be permitted unless it is necessary to cover new matters raised by a subsequent examination. Cross-examination of any particular witness shall be limited to one attorney for each party and shall not include subjects which are not germane to the interest represented by the cross-examiner.</P>
              <P>(f) <E T="03">Oral motions.</E> Oral presentation on any motion or objection shall be limited to the party or parties making the motion or objection and the party or parties against which the motion or objection is directed and Public Counsel. Such presentation shall also be limited to one attorney for each party.</P>
              <P>(g) <E T="03">Official notice; public document items.</E> Whenever there is offered (in whole or in part) a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations), or a similar document issued by a State or its agencies, and such document (or part thereof) has been shown by the offerer to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice as a public document item by specifying the document or relevant part thereof.</P>
              <P>(h) <E T="03">Oral argument at hearings.</E> A request for oral argument at the close of testimony will be granted or denied by the presiding officer in his discretion.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.133</SECTNO>
              <SUBJECT>Appeal from ruling of presiding officer.</SUBJECT>
              <P>Rulings of presiding officers may not be appealed prior to, or during the course of, the hearing except where the presiding officer has granted a Motion for Summary Disposition under subpart I of this part, or in extraordinary circumstances where prompt decision by the Administration is necessary to prevent unusual delay, expense, or detriment to the public interest, in which instances the matter shall be referred forthwith by the presiding officer to the Administration. Any such appeal shall be filed within fifteen (15) days from the date of the ruling by the presiding officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.134</SECTNO>
              <SUBJECT>Separation of functions.</SUBJECT>
              <P>The separation of functions as required by section 5(c) of the Administrative Procedure Act shall be observed in adversary proceedings involving controverted factual issues arising under the regulations in this part.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="23"/>
            <HD SOURCE="HED">Subpart N—Evidence (Rule 14)</HD>
            <SECTION>
              <SECTNO>§ 201.136</SECTNO>
              <SUBJECT>Evidence admissible.</SUBJECT>
              <P>In any proceeding under the regulations in this part all evidence which is relevant, material, reliable and probative, and not unduly repetitious or cumulative shall be admissible. Irrelevant and immaterial or unduly repetitious or cumulative evidence shall be excluded.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.137</SECTNO>
              <SUBJECT>Rights of parties as to presentation of evidence.</SUBJECT>
              <P>Every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.138</SECTNO>
              <SUBJECT>Unsponsored written material.</SUBJECT>
              <P>(a) <E T="03">Material that may be deemed evidence.</E> Where a formal hearing is held, a party shall be afforded an opportunity to participate through submission of relevant, material, reliable and probative written evidence including official notice matters covered in § 201.132(g): <E T="03">Provided,</E> That such evidence submitted by persons not present at the hearing will not be made a part of the record if opposed to by any party for good cause shown.</P>
              <P>(b) <E T="03">Material that may not be deemed evidence.</E> Letters expressing views or urging action and other unsponsored written material in respect of matters embraced in, or related to, a formal hearing will be placed in the correspondence section of the docket of the proceeding. These data are not to be deemed part of the evidence or part of the record in the material unless sponsored at the public hearing by an authenticating and supporting witness.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.139</SECTNO>
              <SUBJECT>Documents containing matter both material and not material.</SUBJECT>
              <P>Where written matter offered in evidence is embraced in a document containing other matter which is not intended to be offered in evidence, the party offering shall present the original document to all parties at the hearing for their inspection, and shall offer a true copy of the matter which is to be introduced unless the presiding officer determines that the matter is short enough to be read into the record. Opposing parties shall be afforded an opportunity to introduce in evidence, or by stipulations other portions of the original document which are material and relevant.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.140</SECTNO>
              <SUBJECT>Records in other proceedings.</SUBJECT>
              <P>When any portion of the record before the Administration in any proceeding other than the one being heard is offered in evidence, a true copy of such portion shall be presented for the record in the form of an exhibit unless the parties represented at the hearing stipulate upon the record that such portion may be incorporated by reference.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.141</SECTNO>
              <SUBJECT>Stipulations.</SUBJECT>
              <P>The parties may, by stipulation in writing filed at the prehearing conference, or by written or oral stipulation presented at the hearing or by written stipulation subsequent to the hearing, agree upon any facts involved in the proceeding and include them in the record with the consent of the presiding officer. Proposed written stipulations shall be subscribed by the sponsors and served upon all parties of record. Only upon acceptance by all parties to the proceeding may a stipulation be noted for the record or received as evidence.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.142</SECTNO>
              <SUBJECT>Further evidence required by presiding officer during hearing.</SUBJECT>
              <P>At any time during the hearing the presiding officer may call for the production of further relevant and material evidence, reports, studies, and analyses upon any issue, and require such evidence, where available, to be presented by the party or parties concerned, either at the hearing or adjournment thereof in accordance with § 201.132(b). Such material shall be received subject to appropriate motions, cross-examination and/or rebuttal. If a witness refuses to testify or produce the evidence as requested, the presiding officer shall report such refusal to the Administration forthwith.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="24"/>
              <SECTNO>§ 201.143</SECTNO>
              <SUBJECT>Exceptions to rulings of presiding officer unnecessary.</SUBJECT>
              <P>Formal exceptions to rulings of the presiding officer are unnecessary. It is sufficient that a party, at the time the ruling of the presiding officer is made or sought, makes known the action which he desires the presiding officer to take or his objection to an action taken, and his grounds therefor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.144</SECTNO>
              <SUBJECT>Offer of proof.</SUBJECT>
              <P>An offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart O—The Record: Contents; Development; Perfection; Confidential Treatment (Rule 15)</HD>
            <SECTION>
              <SECTNO>§ 201.146</SECTNO>
              <SUBJECT>Receipt of documents after hearing.</SUBJECT>
              <P>Documents to be submitted for the record after the close of the hearing will not be received in evidence except upon ruling of the presiding officer. Such documents when submitted shall be accompanied by proof that copies have been served upon all parties, who shall have an opportunity to comment thereon; and shall be received not later than ten (10) days after the close of the hearing except for good cause shown, and not less than ten (10) days prior to the date set for filing briefs. Exhibit numbers should be assigned by counsel or the party. In computing the time within which to file such documents or other writings the five (5) additional days provided in § 201.54 shall not apply. Documents which are submitted but do not comply with the provisions of this rule will be filed in the correspondence section of the docket.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.147</SECTNO>
              <SUBJECT>Official transcript.</SUBJECT>
              <P>The Administration will designate the official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and any briefs or memoranda of law filed therewith shall be filed with the Administration. Transcripts of testimony will be available in any proceeding under the regulations in this section, and will be supplied by the official reporter to the parties and to the public except when required for good cause to be held confidential, at rates not to exceed the maximum rates fixed by the contract between the Administration and the reporter.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.148</SECTNO>
              <SUBJECT>Corrections of transcript.</SUBJECT>
              <P>Motions made at the hearing to correct the record will be acted upon by the presiding officer. Motions made after the hearing to correct the record as to matters of substance rather than form, shall be filed with the presiding officer within ten (10) days after receipt of the transcript, unless otherwise directed by the presiding officer, and shall be served on all parties. Such motions may be in the form of a letter and shall certify the date when the transcript was received. If no objections are received within ten (10) days after date of service, the transcript will, upon approval of the presiding officer, be changed to reflect such corrections. If objections are received, the motion will be acted upon with due consideration of the stenographic record of the hearing.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.149</SECTNO>
              <SUBJECT>Copies of data or evidence.</SUBJECT>
              <P>Every person compelled to submit data or evidence shall be entitled to retain or procure a copy of transcript thereof on payment of proper costs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.150</SECTNO>
              <SUBJECT>Record for decision.</SUBJECT>
              <P>The transcript of testimony and exhibits, together with all papers and requests (except the correspondence section of the docket), including rulings and any recommended or initial decisions filed in the proceeding shall constitute the exclusive record for decision. Final decisions will be predicated on the same record, including the initial decision of the presiding officer.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="25"/>
              <SECTNO>§ 201.151</SECTNO>
              <SUBJECT>Objections to public disclosure of information.</SUBJECT>
              <P>Upon objection to public disclosure of any information sought to be elicited during a hearing, and a showing of cause satisfactory to the presiding officer, the witness shall disclose such information only in the presence of the presiding officer, official reporter and such attorneys or representatives of each party with demonstrated interests, as the presiding officer shall determine and after all present have been sworn to secrecy. The transcript of testimony shall be held confidential. Within five (5) days after such testimony is given, or document received, the objecting party shall file with the presiding officer a verified written motion to withhold such information from public disclosure, setting forth sufficient identification of same and the basis upon which public disclosure should not be made. Copies of said transcript and motion need not be served upon any other parties than those sworn to secrecy unless so ordered by the presiding officer.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart P—Briefs, Requests for Findings, Decisions, Exceptions (Rule 16)</HD>
            <SECTION>
              <SECTNO>§ 201.155</SECTNO>
              <SUBJECT>Briefs; request for findings.</SUBJECT>
              <P>The time for filing briefs to the presiding officer, and extensions thereof, shall be fixed by him. The period of time allowed shall be the same for all parties unless the presiding officer, for good cause shown, directs otherwise. Normally there shall be an opening brief by the moving parties, an answering brief by the proponents of a contrary conclusion and a short reply by the moving parties. Briefs and statements of position as authorized, shall be served upon all parties pursuant to subpart D of this part. Briefs shall include a summary of evidence, together with references to exhibit numbers and pages of the transcript, and memoranda of law with appropriate citations of the authorities relied upon. They shall contain proposed findings of fact and conclusions in serially numbered paragraphs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.156</SECTNO>
              <SUBJECT>Requests for extension of time for filing briefs.</SUBJECT>
              <P>Requests for extension of time within which to file briefs shall conform to the requirements of § 201.53. Except for good cause shown, such requests shall be filed and served not later than five (5) days before the expiration of the time fixed for the filing of briefs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.157</SECTNO>
              <SUBJECT>Reopening of a case by presiding officer prior to decision.</SUBJECT>
              <P>At any time prior to the filing of his initial or recommended decision, the presiding officer, either upon petition or upon his own initiative may, for good cause shown and upon reasonable notice, reopen the case for the receipt of further evidence.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.158</SECTNO>
              <SUBJECT>Decisions, authority to make and kinds.</SUBJECT>
              <P>To the presiding officer is delegated the authority to render initial or recommended decisions in all proceedings before him, including motions, petitions and other pleadings. Tentative or final decisions will be rendered by the Administration. The same officers who preside at the reception of evidence pursuant to section 7 of the Administrative Procedure Act shall render the initial or recommended decisions except where such officers become unavailable to the Administration, in which case another Presiding Officer will be designated to make such decision or certify the record to the Administration. Where the Administration requires the entire record in the case to be certified to it for initial decision, the Presiding Officer shall first recommend a decision, except that in rule making:</P>
              <P>(a) In lieu thereof the Administration may issue a tentative decision or any of its responsible officers may recommend a decision or (b) any such procedure may be omitted in any case in which the Administration finds upon the record that due and timely execution of its functions in the public interest imperatively and unavoidably so requires.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.159</SECTNO>
              <SUBJECT>Decisions; contents and service.</SUBJECT>

              <P>All initial, recommended, tentative, and final decisions, whether rendered <PRTPAGE P="26"/>orally or in writing shall include a statement of findings and conclusions, as well as the reasons or bases therefor, upon the material issues presented, as well as a statement of the appropriate rule, order, sanction, relief to be imposed, or the denial thereof. A copy of each decision when issued or when transcribed if orally rendered (and all orally presented decisions shall be stenographically recorded) shall be served on the parties to the proceeding, and furnished to interested persons upon request.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.160</SECTNO>
              <SUBJECT>Decision based on official notice.</SUBJECT>

              <P>Official notice may be taken of such matters as might be judicially noticed by the courts, or of technical or scientific facts within the general or specialized knowledge of the Administration as an expert body or of a document required to be filed with or published by a duly constituted governmental body: <E T="03">Provided,</E> That where a decision or part thereof rests on the official notice of a material fact not appearing in the evidence of the record, the fact of official notice shall be so stated in the decision, and any party, on timely request, shall be afforded an opportunity to show the contrary.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.161</SECTNO>
              <SUBJECT>Exceptions to, and review by the Administration of initial or recommended decisions.</SUBJECT>
              <P>Within twenty (20) days after the service date of the initial or recommended decision, whether oral or in writing, unless a shorter period is fixed under § 201.54, any party may file exceptions to any conclusions, findings, or statements contained in such decision, and a brief in support of such exceptions. Such exceptions and brief shall constitute one document, shall indicate with particularity alleged errors, shall indicate pages of transcript and exhibit numbers when referring to the record, and shall be served on all parties pursuant to subpart D of this part. Whenever the presiding officer renders an initial decision, in the absence of the filing of exceptions thereto, or notice of review thereof by the Administration, such decision, shall upon the issuance of an appropriate order by the Administration, become the decision of the Administration. Upon the filing of exceptions to, or notice of review of, an initial or recommended decision, such decision shall become inoperative until the Administration determines the matter. Where exceptions are filed to, or the Administration reviews, an initial or recommended decision, the Administration, except as it may limit the issues upon notice or by rule, will have all the powers which it would have in making the initial decision. Whenever the Administration shall determine to review an initial or recommended decision on its own initiative, notice of such intention shall be served upon the parties within thirty (30) days after the date when the initial or recommended decision is orally rendered and, if in writing, served.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.162</SECTNO>
              <SUBJECT>Replies to exceptions.</SUBJECT>
              <P>Any party may file and serve a reply to exceptions within twenty (20) days after date of service thereof, unless a shorter period is fixed pursuant to § 201.54. Such reply shall indicate pages of the transcript and exhibit numbers when referring to the record.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.163</SECTNO>
              <SUBJECT>Request for extension of time for filing exceptions and replies thereto.</SUBJECT>
              <P>Requests for extension of time within which to file exceptions, and briefs in support thereof, or replies to exceptions shall conform to the applicable provisions of subpart E of this part. Except for good cause shown, such requests shall be filed and served not later than five (5) days before the expiration of the time fixed for the filing of such documents.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.164</SECTNO>
              <SUBJECT>Certification of record by presiding officer.</SUBJECT>
              <P>The presiding officer shall certify and transmit the entire record to the Administration when: (a) Exceptions are filed or the time therefor has expired, (b) notice is given by the Administration that the initial or recommended decision will be reviewed on its own initiative, or (c) the Administration requires the case to be certified to it for initial decision.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="27"/>
            <HD SOURCE="HED">Subpart Q—Oral Argument; Submittal for Final Decision (Rule 17)</HD>
            <SECTION>
              <SECTNO>§ 201.166</SECTNO>
              <SUBJECT>Oral argument.</SUBJECT>
              <P>If oral argument before the Administration is desired on exceptions or replies to exceptions to an initial, recommended, or tentative decision, or on a motion, petition, or application, a request therefor shall be made in writing properly addressed to the Administration. Any party may make such request irrespective of his filing exceptions or replies. If a brief on exceptions or replies thereto are filed, the request for oral argument shall be incorporated therein. Requests for oral argument on any motion, petition, or application shall be made in the motion, petition, or application or in the reply thereto. Requests for oral argument will be granted or denied in the discretion of the Administration, and, if granted, the notice of oral argument will set forth the order of presentation and the amount of time to be allotted. Those who appear before the Administration for oral argument should confine their argument to points of controlling importance and shall limit their argument to points upon which exceptions have been filed. Where the facts of a case are adequately and accurately dealt with in the initial, recommended, or tentative decision, parties should, as far as possible, address themselves in argument to the conclusions. Effort should be made by parties taking the same position to agree in advance of the argument upon those who are to present their side of the case. The names of persons who will argue and the amount of time requested by each should be received by the Administration not later than ten (10) days before the date set for the argument. Ordinarily, consolidation of appearances at oral argument will permit the parties' interests to be presented more effectively in the time allotted.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.167</SECTNO>
              <SUBJECT>Submission to Administration for final decision.</SUBJECT>
              <P>A proceeding will be deemed submitted to the Administration for its determination as follows: (a) If oral argument is had, on the date of completion thereof, or if memoranda on points of law are permitted to be filed after argument, the last date of such filing; (b) if oral argument is not had, the last date when exceptions or replies thereto are filed, or if exceptions are not filed, the expiration date for such exceptions or the date when all parties have stated that no exceptions will be filed; (c) in the case of an initial decision, the date of notice of the Administration to review the decision, if such notice is given.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart R—Stay of Administration's Decision, Reopening of Proceedings (Rule 18)</HD>
            <SECTION>
              <SECTNO>§ 201.171</SECTNO>
              <SUBJECT>Stay of Administration's decision.</SUBJECT>
              <P>The Administration's decision or order shall be stayed pending resolution by the Administration of a petition for reopening, duly filed, and for so long as such Administration's action has not been finally disposed of in accordance with the provisions of section 7 of Department of Commerce Order 117 (Revised).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.172</SECTNO>
              <SUBJECT>Time for filing petition to reopen.</SUBJECT>
              <P>Except for good cause shown, and upon leave granted, petition to reopen under § 201.174, shall be filed with the Administration within twenty (20) days after the date of service of the Administration's decision or order in the proceeding, unless a different period is fixed under § 201.54.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.173</SECTNO>
              <SUBJECT>Reopening by Administration and modification or setting aside of decision.</SUBJECT>
              <P>Upon petition and a showing of compelling cause, filed in accordance with § 201.174, or on its own motion, the Administration may at any time reopen any proceeding under the regulation in this part for rehearing, reargument, or reconsideration in whole or in part. After reasonable notice and opportunity for hearing or such other procedure as the Administration may direct, the Administration may alter, modify or set aside in whole or in part its decision therein if it finds such action is required by changed conditions in fact or law or by the public interest.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="28"/>
              <SECTNO>§ 201.174</SECTNO>
              <SUBJECT>Petition for reopening.</SUBJECT>
              <P>A petition for reopening for the purpose of rehearing, reargument, or reconsideration, shall be made in writing, shall state the grounds relied upon, and conform to the requirements of subpart D of this part. If the petition is for the purpose of rehearing, said petition shall state the nature and purpose of the new evidence to be adduced and that such evidence was not available at the time of the prior hearing. If the petition be for reargument or reconsideration, the matter claimed to have been erroneously decided shall be specified and the alleged errors briefly stated. In case of exceptional circumstances, satisfactorily shown by the petitioner, a request for modification of rules or orders may be made by telegram or otherwise, upon notice to all parties or attorneys of record, but such request shall be followed by a petition filed and served in accordance with subpart D of this part.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.175</SECTNO>
              <SUBJECT>Answers to petition to reopen.</SUBJECT>
              <P>Answers to petitions to reopen shall conform to the requirements of subpart D of this part.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart S—Judicial Standards of Practice (Rule 19)</HD>
            <SECTION>
              <SECTNO>§ 201.181</SECTNO>
              <SUBJECT>General matters.</SUBJECT>
              <P>(a) In general, the functions of the Administration involve hearing procedures comparable to those of a court and accordingly parties to proceedings before the Administration and persons representing these parties are expected to conduct themselves with honor and dignity. For the same reasons, the members of the Administration and those of its employees who participate with the Administration in the determination of formal proceedings are expected to conduct themselves with the same fidelity to standards of propriety that characterizes a court and its staff. The standing and the effectiveness of the Administration are in direct relation to the observance by it, its staff and the parties and attorneys appearing before it of the highest of judicial and professional ethics.</P>
              <P>(b) It is essential in cases to be determined after notice and hearing and upon a record, or in any other cases which the Administration by order may designate, that the judicial character of the Administration be recognized and protected. As a consequence, from the time of the filing of an application or a petition which can be granted by the Administration only after notice and opportunity for hearing, or in the case of other matters from the time of notice by the Administration that such matters shall be determined after notice and opportunity for hearing, no ex parte communications, as hereinafter defined, are to constitute or be considered part of the record on which the final decision is to be predicated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.182</SECTNO>
              <SUBJECT>Improper pressures.</SUBJECT>
              <P>It is determined to be improper that there be any effort by any person interested in a case before the Administration to attempt to sway the judgment of the Administration by undertaking to bring pressure or influence to bear upon the Administration, its staff, or the presiding officer assigned to the proceeding. It is further determined to be improper that such interested persons or any member of the Administration's staff or the presiding officer directly or indirectly give statements to the press or radio, by paid advertisements or otherwise, designed to influence the Administration's judgment in the matter. In addition, it is further determined to be improper that any person solicit communications to the Administration or any of its members, its staff or the presiding officer in the case other than by counsel of record who shall serve copies thereof on all other parties to the proceeding.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 201.183</SECTNO>
              <SUBJECT>Ex parte communications.</SUBJECT>

              <P>(a) Requests for expeditious treatment of matters pending with the Administration are deemed communications on the merits and as such are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications from parties to a proceeding should be in the form of a motion and are to be dealt with as such by the Administration, the presiding officer, and <PRTPAGE P="29"/>the parties to the proceeding. Any such request which is not made as a motion shall be placed in the public correspondence file and will not be considered by the Administration or any of its staff members or the presiding officer in connection with the disposition of the case.</P>

              <P>(b) Written or oral communications involving any substantive or procedural issue in a matter subject to public hearing directed to a Member of the Administration, its staff, or the presiding officer in the case, from any individual in private or public life shall be deemed a private communication in respect of the merits of the case. These communications, unless otherwise provided for by law or a published rule of the Administration are deemed ex parte communications and are not to be considered part of any record or the basis for any official action by the Administration, members of its staff or the presiding officer: <E T="03">Provided, however,</E> That this prohibition shall not be determined to apply to informal petitions or applications filed with the Administration; the usual informal communications between counsel including discussions directed toward the development of a stipulation or settlement between parties; communications of a nature deemed proper in proceedings in U.S. Federal courts; and communications which merely inquire as to the status of a proceeding without discussing issues or expressing points of view. Any prohibited communications in writing received by a Member of the Administration, its staff or the presiding officer shall be made public by placing it in the correspondence file of the docket which is available for public inspection and will not be considered by the Administration or the presiding officer as part of the record for decision. If the ex parte communication is received orally, a memorandum setting forth the substance of the conversation shall be made and filed in the correspondence section of the appropriate public docket.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart T—Effective Date (Rule 20)</HD>
            <SECTION>
              <SECTNO>§ 201.185</SECTNO>
              <SUBJECT>Effective date and applicability of rules.</SUBJECT>

              <P>The regulations in this part shall become effective October 23, 1964, and shall apply only to cases which are designated for hearing on or after October 23, 1964: <E T="03">Provided, however,</E> That the regulations in this part shall be applicable to cases designated for hearing prior to October 23, 1964, if consolidated with a case designated for hearing on or after that date. All other cases designated for hearing prior to October 23, 1964, shall be governed by the rules in effect immediately prior to such date.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 202</EAR>
          <HD SOURCE="HED">PART 202—PROCEDURES RELATING TO REVIEW BY SECRETARY OF TRANSPORTATION OF ACTIONS BY MARITIME SUBSIDY BOARD</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>202.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>202.2</SECTNO>
            <SUBJECT>Time and place for filings.</SUBJECT>
            <SECTNO>202.3</SECTNO>
            <SUBJECT>Form of petitions, requests and replies.</SUBJECT>
            <SECTNO>202.4</SECTNO>
            <SUBJECT>Petitions and requests for review—content.</SUBJECT>
            <SECTNO>202.5</SECTNO>
            <SUBJECT>Replies and requests that review not be exercised—content.</SUBJECT>
            <SECTNO>202.6</SECTNO>
            <SUBJECT>Grant or denial of review.</SUBJECT>
            <SECTNO>202.7</SECTNO>
            <SUBJECT>Supplemental briefs.</SUBJECT>
            <SECTNO>202.8</SECTNO>
            <SUBJECT>Oral argument.</SUBJECT>
            <SECTNO>202.9</SECTNO>
            <SUBJECT>Decisions by the Secretary of Transportation.</SUBJECT>
            <SECTNO>202.10</SECTNO>
            <SUBJECT>Petitions for reconsideration.</SUBJECT>
            <SECTNO>202.11</SECTNO>
            <SUBJECT>Ex parte communications.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 204, 49 Stat. 1987, as amended; sec. 204(b), as amended, 46 U.S.C. 1114(b); Reorganization Plan No. 7 of 1961 (26 FR 7315).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>32 FR 2705, Feb. 9, 1967, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 202.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>

            <P>The rules of this part prescribe procedures relating to Secretarial review of any decision, report, order or action of the Maritime Subsidy Board (Board) pursuant to Department Order 117-A (31 FR 8087, 15331). Section 6 of Department Order 117-A is reprinted here for the convenience of the public.
            </P>
            <EXTRACT>
              <PRTPAGE P="30"/>
              <P>
                <E T="05">Sec. 6.</E>
                <E T="03">Review and finality of actions by Maritime Subsidy Board.</E> .01 The Secretary of Transportation (hereinafter referred to as “Secretary”) may, on his own motion or on the basis of a petition filed as hereinafter provided, review any decision, report and/or order of the Maritime Subsidy Board based on a hearing held pursuant to (a) statutory requirements or (b) Board order, by entering a written order stating that he elects to review the action of the Board. Copies of all orders for review shall be served on all parties of record (which phrase includes the Board). Petitions for review under this paragraph may be filed by parties of record, shall be in writing, and shall state the grounds upon which petitioner relies. Ten (10) copies of such petitions for review, together with proof of service thereof on all parties of record, shall be filed with the Secretary within fifteen (15) days after the date of the service of the Board's decision, report or order. Parties of record may file replies in writing thereto. Ten (10) copies of such replies, together with proof of service thereof on the petitioner and all other parties of record, shall be filed with the Secretary within ten (10) days after the date the petition for review is timely filed. Petitions for review and replies thereto shall be limited to the record before the Board. If a petition for review is filed within the time prescribed, a decision, report or order of the Board shall be final fifteen (15) days after expiration of the time prescribed for filing a reply thereto unless the Secretary, prior to expiration of the fifteen (15) days, enters a written order granting the petition for review. If no petition for review is filed within the time prescribed, a decision, report or order of the Board shall be final twenty (20) days after the date of service of the decision unless the Secretary, prior to expiration of the twenty (20) days, enters a written order stating that he elects to review the action of the Board. If upon any review the decision of the Secretary rests on official notice of a material fact not appearing in the evidence in the record, any party of record shall, if request is made within ten (10) days after the date of service of the Secretary's decision on said party, be afforded an opportunity to show the contrary. The said ten (10) days shall constitute the period for a “timely request” within the meaning of section 7(d) of the Administrative Procedure Act.</P>
              <P>.02 The Secretary may on his own motion review all actions of the Maritime Subsidy Board other than those referred to in paragraph .01 of this section by entering a written order stating that he elects to review the action of the Board. Any person having an interest in any action of the Board under this paragraph shall have the privilege of submitting to the Secretary within ten (10) days after the date of such Board action, a request that the Secretary undertake such review. Such request shall be in writing and shall state the grounds upon which the person submitting the same relies and his interest in the action for which review is requested. Ten (10) copies of such requests shall be submitted to the Secretary. Any other person having an interest in such matter shall have the privilege of submitting within fifteen (15) days after the date of the Board's action, a written request that the Secretary not exercise such review. Copies of request that the Secretary undertake or not exercise review will be open for public inspection at the office of the Secretary of the Board. If either a request that the Secretary undertake review or a request that he not exercise review is submitted within the time prescribed, an action of the Board shall be final in ten (10) days after expiration of the time prescribed for submission of a request that review not be exercised unless the Secretary, prior to the expiration of the ten (10) days, enters a written order stating that he elects to review the action of the Board. If neither a request that the Secretary undertake review nor a request that he not exercise review is submitted within the time prescribed, an action of the Board shall be final in twenty (20) days after the date of such action unless the Secretary, prior to expiration of the twenty (20) days, enters a written order stating that he elects to review the action of the Board. Copies of all orders for review shall be served upon the Board, and upon all persons filing requests as herein described.</P>
              <P>.03 If a timely petition for reconsideration is filed under the rules prescribed by the Board, the time for filing a petition or request for review by the Secretary under paragraph .01 or .02 of this section, respectively, or the entry of an order by the Secretary on his own motion electing to review an action of the Board under paragraph .01 or .02 of this section, shall, in the case of actions under paragraph .01 of this section run from the date of service of the Board's action and, in the case of actions under paragraph .02 of this section, run from the date of the Board's action, finally disposing of the issues presented by the petition for reconsideration.</P>
              <P>.04 In computing any period of time under this section, the time begins with the day following the act, event, or default, and includes the last day of the period unless it is Saturday, Sunday, or national legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or such holiday. The prescribed time for action by the Secretary in a proceeding in which additional days have been added pursuant to the provisions of this paragraph shall be extended by the total of such additional days.</P>

              <P>.05 Petitions and requests for review by the Secretary shall not be filed:<PRTPAGE P="31"/>
              </P>
              <P>a. Unless the petitioner shall have first exhausted his administrative remedies (other than a petition for reconsideration) before the Maritime Subsidy Board; nor</P>
              <P>b. With respect to interlocutory decisions of the Maritime Subsidy Board in actions or proceedings referred to in paragraphs .01 and .02 of this section.</P>
              <P>.06 The Secretary may, for good cause and/or in order to prevent undue hardship in any particular case, waive or modify any procedural provision of this section by written order.</P>
            </EXTRACT>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.2</SECTNO>
            <SUBJECT>Time and place for filings.</SUBJECT>
            <P>All petitions, requests and replies relating to Secretarial review of Maritime Subsidy Board actions shall be filed with the Office of the Secretary of Transportation, Department of Transportation. Such papers shall be filed in accordance with the provisions of and within the time periods prescribed by Department Order 117-A.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.3</SECTNO>
            <SUBJECT>Form of petitions, requests and replies.</SUBJECT>
            <P>(a) All papers presented to the Secretary, other than records, shall bear on the cover the name and post office address of the party, and the name and address of the principal attorney or authorized representative (if any) for the party concerned. Certification shall be made that service of the paper has been made upon all parties of record (if any) and upon the Secretary of the Maritime Subsidy Board. One copy of every paper filed with the Secretary must in addition bear at its close the hand written signature of the party or attorney.</P>
            <P>(b) All papers presented to the Secretary, other than records, shall, unless they are fewer than 10 pages in length, be preceded by a subject index of the matter contained therein, with page references, and a table of the cases (alphabetically arranged), textbooks, statutes and other material cited, with references to the pages where they are cited.</P>
            <P>(c) Whenever a reference is made to a transcript, exhibit or other part of the record, such reference must be accompanied by a specific citation identifying the document and indicating the relevant page number of the document concerned.</P>
            <P>(d) Papers filed with the Secretary should be logically arranged, with proper headings, concise, and free from irrelevant and unduly repetitious matter.</P>
            <P>(e) It will not be necessary to reproduce the opinion of the Board.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.4</SECTNO>
            <SUBJECT>Petitions and requests for review—content.</SUBJECT>
            <P>Petitions and requests for review shall contain in the order here indicated—</P>
            <P>(a) A reference to the decision, report, order or action of the Board;</P>
            <P>(b) A concise statement of the interest of the party submitting the paper;</P>
            <P>(c) A concise summary statement of the case containing that which is material to the consideration of the questions presented;</P>
            <P>(d) A listing of each of the grounds upon which the party seeking review relies, expressed in the terms and circumstances of the case, each ground set forth in a separate, numbered paragraph;</P>
            <P>(e) The argument, generally amplifying the material in paragraph (d) of this section and exhibiting clearly the points of law, policy and fact being presented, citing the authorities, statutes and other material relied upon. The argument should separately identify and treat each of the grounds upon which review is sought. In cases where reversible legal error is contended, a full legal argument on the points concerned should be presented. In cases where policy error is contended, it should be pointed out what policy of the Board is alleged to be wrong, what is wrong with it and what policy the submitting party advocates as the correct one. In cases where reversible factual error is contended, the findings of fact alleged to be erroneous should be pointed out along with citations to the record where appropriate. The party should further indicate precisely what it contends to be the correct findings of fact, with supporting references;</P>
            <P>(f) A conclusion, specifying with particularity the action which the submitting party believes the Secretary should take.</P>
          </SECTION>
          <SECTION>
            <PRTPAGE P="32"/>
            <SECTNO>§ 202.5</SECTNO>
            <SUBJECT>Replies and requests that review not be exercised—content.</SUBJECT>
            <P>Replies and requests that review not be exercised shall contain in the order here indicated—</P>
            <P>(a) A reference to the decision, report, order, or action of the Board;</P>
            <P>(b) A concise statement of the interests of the party submitting the paper;</P>
            <P>(c) Where deemed necessary by the submitting party, a concise summary statement of the case explicitly pointing out any inaccuracy or omission in the statement of the other side, with references to the record where appropriate;</P>
            <P>(d) A listing of the reasons why review should not be exercised, each reason set forth in a separate, numbered paragraph;</P>
            <P>(e) The argument generally amplifying the material in paragraph (d) of this section and, in addition, specifically replying to the points of law, policy and fact presented by the other side (each stated separately) citing the authorities, statutes, and other material relied upon by the submitting party;</P>
            <P>(f) A conclusion, specifying with particularity the action which the submitting party believes the Secretary should take.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.6</SECTNO>
            <SUBJECT>Grant or denial of review.</SUBJECT>
            <P>(a) A petition or request for review by the Secretary of any decision, report, order or action of the Board will not be granted unless significant and important questions of over-all policy requiring the Secretary's attention are involved or there appears to be significant legal, policy, or factual error in the Board's action.</P>
            <P>(b) The parties and the Secretary of the Board will be notified, by Order, of the Secretary's decision to review a case on his own motion, and of his decision to review or to deny review of a case where a petition or request concerning review has been filed.</P>
            <P>(c) Promptly upon notice of a decision by the Secretary to review a case subject to review under section 6.01 of Department Order 117-A, the Secretary of the Board shall certify to the Secretary the complete record of the proceeding before the Board and shall serve upon all parties a copy of such certification which shall adequately identify the matter so certified. The Secretary of the Board shall further serve upon all parties a copy of any further communication from the Board or Maritime Administration on such a case.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.7</SECTNO>
            <SUBJECT>Supplemental briefs.</SUBJECT>
            <P>If an order taking review is entered by the Secretary, further briefs supplementing the arguments set forth in the petitions and replies may be requested in cases where the Secretary deems such to be appropriate and desirable.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.8</SECTNO>
            <SUBJECT>Oral argument.</SUBJECT>
            <P>Generally, oral argument will not be necessary. However, the Secretary reserves the right to schedule such when he deems it desirable.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.9</SECTNO>
            <SUBJECT>Decisions by the Secretary of Transportation.</SUBJECT>
            <P>Decisions of the Secretary will be reached in accordance with applicable law and the evidence. Upon the determination of a case taken under review by the Secretary, a written decision and opinion which states the Secretary's conclusions and an explanation thereof will be issued.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.10</SECTNO>
            <SUBJECT>Petitions for reconsideration.</SUBJECT>
            <P>Petitions for reconsideration of decisions by the Secretary in any case taken under review will be considered, upon a showing of good cause, if filed within ten (10) days of service of the Secretary's decision.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 202.11</SECTNO>
            <SUBJECT>Ex parte communications.</SUBJECT>

            <P>Oral or written communications with the Department concerning a matter subject to Secretarial review under section 6.01 of Department Order 117-A, unless otherwise provided by law or by order, rule, or regulation of the Department, shall be deemed ex parte communications and shall not be part of the record and shall not be considered in making any recommendation, decision or action; <E T="03">Provided, however,</E> That this rule shall not apply to customary informal communications with Department counsel, including discussions directed toward the development of a stipulation or settlement between parties; communications of a nature <PRTPAGE P="33"/>deemed proper in proceedings in U.S. Federal courts; and communications with Department counsel which merely inquire as to procedures or the status of a proceeding without discussing issues or expressing points of view. Any written communication subject to the above stated rule received by the Department shall be placed in the correspondence file of the case, which is available for public inspection. If an oral communication subject to the above stated rule is received, a memorandum setting for the the substance of the conversation shall be made and placed in the correspondence file.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 203</EAR>
          <HD SOURCE="HED">PART 203—PROCEDURES RELATING TO CONDUCT OF CERTAIN HEARINGS UNDER THE MERCHANT MARINE ACT, 1936, AS AMENDED</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>203.1</SECTNO>
            <SUBJECT>Scope of rules.</SUBJECT>
            <SECTNO>203.2</SECTNO>
            <SUBJECT>Applications.</SUBJECT>
            <SECTNO>203.3</SECTNO>
            <SUBJECT>Opposition to applications.</SUBJECT>
            <SECTNO>203.4</SECTNO>
            <SUBJECT>Replies.</SUBJECT>
            <SECTNO>203.5</SECTNO>
            <SUBJECT>Types of hearings.</SUBJECT>
            <SECTNO>203.6</SECTNO>
            <SUBJECT>Oral evidentiary hearing before one or more members.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Secs. 204(b), 605(c) and 805(a), Merchant Marine Act, 1936, as amended (46 U.S.C. app. 1114(b), 1175(c) and 1223(a)).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>55 FR 12358, Apr. 3, 1990, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 203.1</SECTNO>
            <SUBJECT>Scope of rules.</SUBJECT>
            <P>(a) The provisions of this part apply to applications which involve statutorily mandated hearings under sections 605(c) and 805(a) of the Merchant Marine Act, 1936, as amended (46 U.S.C. app. 1175(c), 1223(a)), hereinafter referred to as the “Act”, conducted by the Maritime Administrator or Maritime Subsidy Board of the Maritime Administration, hereinafter referred to collectively as the “Administration”.</P>
            <P>(b) The provisions of this part are to be construed consistently with the Administration Rules of Practice and Procedure in 46 CFR part 201. If this part and 46 CFR part 201 conflict, this part shall govern.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 203.2</SECTNO>
            <SUBJECT>Applications.</SUBJECT>

            <P>(a) Notice of all applications subject to this part shall be published in the <E T="04">Federal Register,</E> in accordance with the provisions of 46 CFR 201.72.</P>
            <P>(b) All applications under section 605(c) of the Act shall specify, at a minimum, full details of the existing or proposed new or amended service, to include itineraries and the number and type of vessels currently operated in the trade or trade route, the number and type of vessels proposed to be operated in the trade or trade route, the frequency of sailings and port calls and the nature and extent of U.S.-flag and any foreign-flag competition. As a matter of discretion, the Administration may request additional information, which may be protected by a confidentiality ruling, if justified. If the application is one for additional service on a route in which the applicant has an established service, or for an existing service, then the applicant must include information on its previous three years of operation. Applicants for permission under section 805(a) of the Act must describe clearly the scope of permission sought, including details of proposed domestic service and existing or proposed foreign service, as well as the applicant's operating structure.</P>
            <P>(c) Applications under section 605(c) of the Act shall be filed on Form MA-964, in accordance with the instructions annexed thereto. Copies of Form MA-964 may be obtained on request from the Secretary of the Administration.</P>
            <P>(d) Applications for permission under section 805(a) of the Act shall be submitted in accordance with the procedures set forth in 46 CFR part 380, and shall comply with all of the requirements of that part.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 203.3</SECTNO>
            <SUBJECT>Opposition to applications.</SUBJECT>
            <P>(a) <E T="03">Required documents.</E> A person seeking to oppose an application shall file with the Secretary of the Administration, and concurrently serve upon the applicant, a petition for leave to intervene, together with an answer, within the time period specified in the <E T="04">Federal Register</E> notice of the application. Normally, twenty days will be provided.</P>
            <P>(b) <E T="03">Petition for leave to intervene.</E> The petition for leave to intervene shall <PRTPAGE P="34"/>specify the basis upon which such person asserts a right to intervene and shall set forth with particularity:</P>
            <P>(1) The number and type of U.S.-flag vessels currently operated by the person seeking intervention in the trade or trade route to which the application pertains.</P>
            <P>(2) The frequency of sailings of vessels operated by such person in the trade or trade route to which the application pertains in the 36 calendar months immediately preceding the date of the application.</P>
            <P>(3) The specific ports of call conducted by such person in the trade or trade route to which the application pertains in the 36 calendar months immediately preceding the date of the application.</P>
            <P>(4) The average annual carriage by such person for the past 36 months on the trade route to which the application pertains.</P>
            <P>(5) If applicable, specific information detailing firm and definite plans for the inauguration of a new service, including, as appropriate, but not limited to, approval by the board of directors or general partners, membership in applicable conference agreements, office openings or the retention of agents in the proposed service area, acquisition of vessels and related equipment, subsidy applications, applications for any needed Government approvals or advertisement for the proposed service.</P>
            <P>(6) Such other information as the person believes should be considered in a determination of such person's right to intervene.</P>
            <P>(c) <E T="03">Answer.</E> (1) The answer shall be simultaneously filed with the petition for leave to intervene and shall specify the basis upon which such person asserts the application should be denied or granted subject to modifications.</P>
            <P>(2) The answer shall set forth with particularity:</P>
            <P>(i) The ground upon which opposition is based;</P>
            <P>(ii) The factual matters which such person believes must be determined by the Administration;</P>
            <P>(iii) The legal matters which such person believes must be determined by the Administration;</P>
            <P>(iv) For each factual and legal matter raised such person's position and basis therefor; and</P>
            <P>(v) The precise nexus between each factual and legal matter raised and the decision of the Administration.</P>
            <P>(d) <E T="03">Right to intervene in Opposition to applications.</E> (1) Leave to intervene in opposition to applications under section 605(c) of the Act will only be granted to operators of U.S.-flag vessels, and only to the extent, as demonstrated by the petition for leave to intervene, that such person provides an existing service, or that such person has firm and definite plans to provide a service, by a showing that its vessels operate in the same trade or on the same trade route as that proposed by the applicant and so operate in a manner competitive with the specific service proposed by the applicant. Although persons seeking intervention need not call at the same specific ports proposed by the applicant by direct vessel calls, any filing based on intermodal service in opposition to an application shall demonstrate that such person regularly competes by intermodal service for cargo moving to or from ports in the service proposed by the applicant. The burden of demonstrating competition between the vessels of the person seeking intervention and those of the applicant will be with the person seeking such intervention. Leave to intervene will not be granted to those conducting a competing service on an intermittent or <E T="03">de minimis</E> basis.</P>
            <P>(2) Leave to intervene in opposition to applications under section 805(a) of the Act will be granted, as provided in the statute, to every person, firm, or corporation “having any interest” in such application.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 203.4</SECTNO>
            <SUBJECT>Replies.</SUBJECT>
            <P>Within ten (10) days after the date for filing answers, the applicant may file a reply specifically addressed to the issues raised in the answers and to oppose the grant to any petitioner of leave to intervene.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 203.5</SECTNO>
            <SUBJECT>Types of hearings.</SUBJECT>
            <P>(a) <E T="03">Oral Evidentiary Hearing:</E> If, upon review of the application, answers, petitions to intervene and replies, the Administration determines that the <PRTPAGE P="35"/>proceeding involves a disputed issue of material fact which cannot be resolved on the basis of available information of record, and that the case is anticipated to involve the submission of extensive evidence, or the Administration determines that it is otherwise appropriate, the Administration may issue an order referring the case to an Administrative Law Judge for oral evidentiary hearing. Such hearing shall be conducted in accordance with the procedures set out in 46 CFR part 201. The Administration may resolve issues of intervention in such order or refer such issues to the Administrative Law Judge. The burden of establishing that there is a disputed issue of material fact is upon the party seeking the oral evidentiary hearing.</P>
            <P>(b) <E T="03">Hearing on Submission of Written Evidence and Argument:</E> If, upon review of the application, answers, petitions to intervene and replies, the Administration determines that the proceeding involves a disputed issue of material fact which cannot be resolved on the basis of available information of record, but which is not anticipated to involve the submission of extensive evidence, the Administration may fulfill the hearing requirement in sections 605(c) and 805(a) of the Act by rendering a decision solely on the merits of papers submitted, provided that a full and true disclosure of the facts is made and such procedure is fair to all parties. The Administration may, in its discretion, direct the submission of briefs on legal issues together with evidence in written form, and/or the holding of oral argument before the Administration prior to issuing its final decision on the proceeding.</P>
            <P>(c) <E T="03">Show Cause Proceeding:</E> If, upon review of the application, answers, petitions to intervene and replies, the Administration determines that the proceeding does not or is not likely to involve a disputed issue of material fact or that if such facts exist they can be resolved on the basis of available information subject to official notice, and if the case is not anticipated to involve the submission of extensive evidence, the Administration may determine to handle the matter by show-cause proceeding. In that event, it will issue a decision setting out its tentative conclusions on all of the matters of fact and law at issue in the proceeding. A Notice summarizing such decision shall be published in the <E T="04">Federal Register</E> in accordance with 46 CFR 201.72. Interested persons may file comments, including support or rebuttal for any matter officially noticed, within 30 days of the date of service of the tentative decision and responses to such comments shall be filed within ten days thereafter unless a shorter or longer period is provided by the Administration for such comments and answers.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 203.6</SECTNO>
            <SUBJECT>Oral evidentiary hearing before one or more members.</SUBJECT>
            <P>If an oral evidentiary hearing is to be conducted, the Maritime Administration, or the Maritime Subsidy Board or one or more of its members, may conduct such hearing. A member who is not present at the hearing may participate in the consideration and the decision of the case where the oral evidentiary hearing, if held, has been stenographically recorded in full and transcribed for the member's review.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 204</EAR>
          <HD SOURCE="HED">PART 204—CLAIMS AGAINST THE MARITIME ADMINISTRATION UNDER THE FEDERAL TORT CLAIMS ACT</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>204.1</SECTNO>
            <SUBJECT>Scope and procedure for filing claims.</SUBJECT>
            <SECTNO>204.2</SECTNO>
            <SUBJECT>Claims payable.</SUBJECT>
            <SECTNO>204.3</SECTNO>
            <SUBJECT>Claims not payable.</SUBJECT>
            <SECTNO>204.4</SECTNO>
            <SUBJECT>Time limitations on claims.</SUBJECT>
            <SECTNO>204.5</SECTNO>
            <SUBJECT>Notification to claimant of action on claim.</SUBJECT>
            <SECTNO>204.6</SECTNO>
            <SUBJECT>Payment of claims.</SUBJECT>
            <SECTNO>204.7</SECTNO>
            <SUBJECT>Delegation of authority.</SUBJECT>
            <SECTNO>204.8</SECTNO>
            <SUBJECT>Where to file claims.</SUBJECT>
            <SECTNO>204.9</SECTNO>
            <SUBJECT>Indemnity or contribution.</SUBJECT>
            <SECTNO>204.10</SECTNO>
            <SUBJECT>Attorney's fees.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>28 U.S.C. 2672; 28 CFR 14.11; 49 CFR 1.45(a)(2), (3), and (16).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 25711, June 21, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 204.1</SECTNO>
            <SUBJECT>Scope and procedure for filing claims.</SUBJECT>

            <P>This part prescribes the requirements and procedure for administrative settlement of claims against the United States, involving the Maritime Administration, under the Federal Tort Claims Act, based on death, personal <PRTPAGE P="36"/>injury, or damage to or loss of property. The controlling regulations are promulgated by the Department of Justice at 28 CFR Part 14—Administrative Claims Under Federal Tort Claims Act. These regulations supplement those of the Department of Justice and provide specific guidance regarding claims processing in the Maritime Administration.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.2</SECTNO>
            <SUBJECT>Claims payable.</SUBJECT>
            <P>Claims for death, personal injury, or damage to or loss of real or personal property are payable when the death, injury or damage is caused by a negligent or wrongful act or omission of an employee of the Maritime Administration, while acting within the scope of employment and under circumstances in which the United States, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.3</SECTNO>
            <SUBJECT>Claims not payable.</SUBJECT>
            <P>A claim is not payable under the regulations in this part 204, if such tort claim is excluded from the scope of the Federal Tort Claims Act, as amended, pursuant to 28 U.S.C. 2680.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.4</SECTNO>
            <SUBJECT>Time limitations on claims.</SUBJECT>
            <P>(a) A claim can be settled only if presented in writing within two years after it accrues.</P>
            <P>(b) The two year statute of limitations is not tolled until the Office of the Chief Counsel of the Maritime Administration receives from a claimant, or the claimant's duly authorized agent or legal representative, an executed Standard Form 95, “Claims for Damage, Injury, or Death,” or written notification of an incident, together with a claim for money damages in a sum certain, for death, personal injury, or damage to or loss of real or personal property. When a claim is received in any office, mail unit, or other Maritime Administration activity other than the Office of the Chief Counsel, such office, unit or activity shall transmit it to the Office of the Chief Counsel without delay.</P>
            <CITA>[50 FR 25711, June 21, 1985, as amended by 64 FR 54782, Oct. 8, 1999]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.5</SECTNO>
            <SUBJECT>Notification to claimant of action on claim.</SUBJECT>
            <P>(a) If a claim is approved (either for the amount claimed or less than such full amount), the claimant, prior to the disbursement of an award, shall sign a document releasing the United States, its agents and employees from all further claims relating to the incident giving rise to the approved claim.</P>
            <P>(b) If the claim is finally denied, the official vested with such authority shall inform the claimant by certified or registered mail of the final denial of the claim. Notification of final denial shall include a statement that a claimant who does not accept or is dissatisfied with the action may institute suit against the United States not later than six months after the date of mailing of the notice of final denial.</P>
            <P>(c) A claimant may regard the failure of the Maritime Administration to make a final disposition of a claim within six months after the date of receipt of the claim by the Maritime Administration as a final denial for the purpose of filing suit.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.6</SECTNO>
            <SUBJECT>Payment of claims.</SUBJECT>
            <P>(a) Once the amount to be paid has been agreed upon, the agency shall attempt to forward a check for such amount to the claimant within thirty days.</P>
            <P>(b) If a claimant is represented by an attorney, both the claimant and the claimant's attorney shall be designated as payees on any check delivered to the claimant's attorney.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.7</SECTNO>
            <SUBJECT>Delegation of authority.</SUBJECT>
            <P>(a) Subject to written approval of the Attorney General of the United States of any payment in excess of $100,000, the Chief Counsel of the Maritime Administration is authorized to approve the award, compromise, or settlement of any tort claim and to authorize payment of the claim.</P>
            <P>(b) The Chief Counsel is authorized to deny any claim and to settle and authorize payment of any tort claim involving the Maritime Administration in an amount not exceeding $100,000.</P>
            <CITA>[64 FR 54783, Oct. 8, 1999]</CITA>
          </SECTION>
          <SECTION>
            <PRTPAGE P="37"/>
            <SECTNO>§ 204.8</SECTNO>
            <SUBJECT>Where to file claims.</SUBJECT>
            <P>Claimants must file claims with the Chief Counsel (MAR-220), Maritime Administration, Department of Transportation, Room 7232, SW, Washington, DC 20590 at the Nassif Building, 7th and D Streets.</P>
            <CITA>[64 FR 54783, Oct. 8, 1999]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.9</SECTNO>
            <SUBJECT>Indemnity or contribution.</SUBJECT>
            <P>(a) <E T="03">Sought by the United States.</E> If a claim arises under circumstances in which the United States is entitled to indemnity or contribution under a contract or the applicable law governing joint tort-feasors, the Chief Counsel of the Maritime Administration shall notify the third party of the claim and request the third party to honor its obligation to the United States or to accept its share of joint liability. If the issue of third party indemnity or contribution is not satisfactorily adjusted, the underlying claim shall be settled only after consultation with the Department of Justice as provided in 28 CFR 14.7</P>
            <P>(b) <E T="03">Sought from the United States.</E> Claims for indemnity or contribution from the United States shall be settled under this part only if the incident giving rise to liability and the claim is otherwise cognizable under this part.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 204.10</SECTNO>
            <SUBJECT>Attorney's fees.</SUBJECT>
            <P>Attorney's fees for any claim settled under this part are limited to not more than twenty percent of the amount paid in settlement.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 205</EAR>
          <HD SOURCE="HED">PART 205—AUDIT APPEALS; POLICY AND PROCEDURE</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>205.1 </SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>205.2 </SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SECTNO>205.3 </SECTNO>
            <SUBJECT>Procedure.</SUBJECT>
            <SECTNO>205.4 </SECTNO>
            <SUBJECT>Finality of decisions.</SUBJECT>
            <SECTNO>205.5 </SECTNO>
            <SUBJECT>Contracts containing disputes article.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 204, 49 Stat. 1987, 1998, 2004, 2011; 46 U.S.C. 1114, 1155, 1176, 1212.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 23861, May 10, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 205.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <P>This part establishes the policy and procedure for parties to use when seeking redress and appeals of audit decisions involving contracts with the Maritime Subsidy Board or the Maritime Administration (MARAD, we, our, or us). A party to a contract (you or your) may appeal MARAD's findings, interpretations, or decisions of annual or special audits.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 205.2</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>If you disagree with audit findings and fail to settle any differences with the appropriate Office Director, you may ask the appropriate office Associate Administrator to review the audit findings. If you disagree with the Associate Administrator, you may appeal to the Maritime Administrator (Administrator).</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 205.3</SECTNO>
            <SUBJECT>Procedure.</SUBJECT>
            <P>(a) You have 90 days from the date you receive the initial audit findings to file a written request for review of the audit findings with the appropriate Associate Administrator. Your written request must state the legal or factual bases for your disagreement. The appropriate Associate Administrator will issue a written determination.</P>
            <P>(b) You have 30 days following the Associate Administrator's final audit determination to submit your appeal in writing to the Administrator. Your written appeal must set forth the legal and factual bases for your appeal. The Administrator may, at his or her discretion, extend the time limitation in the case of extenuating circumstances.</P>
            <P>(c) We will notify you, in writing, if you must submit additional facts for our consideration of the appeal. We will notify you, in writing, once the Administrator has made a decision regarding your appeal.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 205.4</SECTNO>
            <SUBJECT>Finality of decisions.</SUBJECT>
            <P>The Administrator's decision will be the final administrative action on all audit appeals.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 205.5</SECTNO>
            <SUBJECT>Contracts containing disputes article.</SUBJECT>
            <P>When a contract contains a disputes article, the disputes article will govern the bases for negotiating disputes regarding audit findings, interpretations, or decisions made by MARAD and any appeals.</P>
          </SECTION>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="38"/>
        <HD SOURCE="HED">SUBCHAPTER B—REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED ACTIVITIES</HD>
        <PART>
          <EAR>Pt. 221</EAR>
          <HD SOURCE="HED">PART 221—REGULATED TRANSACTIONS INVOLVING DOCUMENTED VESSELS AND OTHER MARITIME INTERESTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Introduction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>221.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>221.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>221.5</SECTNO>
              <SUBJECT>Citizenship declarations.</SUBJECT>
              <SECTNO>221.7</SECTNO>
              <SUBJECT>Applications and fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Transfers to Noncitizens or to Registry or Operation Under Authority of a Foreign Country</HD>
              <SECTNO>221.11</SECTNO>
              <SUBJECT>Required approvals.</SUBJECT>
              <SECTNO>221.13</SECTNO>
              <SUBJECT>General approval.</SUBJECT>
              <SECTNO>221.15</SECTNO>
              <SUBJECT>Approval for transfer of registry or operation under authority of a foreign country or for scrapping in a foreign country.</SUBJECT>
              <SECTNO>221.17</SECTNO>
              <SUBJECT>Sale of a documented vessel by order of a district court.</SUBJECT>
              <SECTNO>221.19</SECTNO>
              <SUBJECT>Possession or sale of vessels by mortgagees or trustees other than pursuant to court order.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart C [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart D—Transactions Involving Maritime Interests in Time of War or National Emergency Under 46 App. U.S.C. 835 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Civil Penalties</HD>
              <SECTNO>221.61</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>221.63</SECTNO>
              <SUBJECT>Investigation.</SUBJECT>
              <SECTNO>221.65</SECTNO>
              <SUBJECT>Criteria for determining penalty.</SUBJECT>
              <SECTNO>221.67</SECTNO>
              <SUBJECT>Stipulation procedure.</SUBJECT>
              <SECTNO>221.69</SECTNO>
              <SUBJECT>Hearing Officer.</SUBJECT>
              <SECTNO>221.71</SECTNO>
              <SUBJECT>Hearing Officer referral.</SUBJECT>
              <SECTNO>221.73</SECTNO>
              <SUBJECT>Initial Hearing Officer consideration.</SUBJECT>
              <SECTNO>221.75</SECTNO>
              <SUBJECT>Response by party.</SUBJECT>
              <SECTNO>221.77</SECTNO>
              <SUBJECT>Disclosure of evidence.</SUBJECT>
              <SECTNO>221.79</SECTNO>
              <SUBJECT>Request for confidential treatment.</SUBJECT>
              <SECTNO>221.81</SECTNO>
              <SUBJECT>Counsel.</SUBJECT>
              <SECTNO>221.83</SECTNO>
              <SUBJECT>Witnesses.</SUBJECT>
              <SECTNO>221.85</SECTNO>
              <SUBJECT>Hearing procedures.</SUBJECT>
              <SECTNO>221.87</SECTNO>
              <SUBJECT>Records.</SUBJECT>
              <SECTNO>221.89</SECTNO>
              <SUBJECT>Hearing Officer's decision.</SUBJECT>
              <SECTNO>221.91</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
              <SECTNO>221.93</SECTNO>
              <SUBJECT>Collection of civil penalties.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart F—Other Transfers Involving Documented Vessels [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart G—Savings Provisions</HD>
              <SECTNO>221.111</SECTNO>
              <SUBJECT>Status of prior transactions—controlling dates.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>46 App. U.S.C. 802, 803, 808, 835, 839, 841a, 1114(b), 1195; 46 U.S.C. chs. 301 and 313; 49 U.S.C. 336; 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>57 FR 23478, June 3, 1992, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—Introduction</HD>
            <SECTION>
              <SECTNO>§ 221.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) This part implements statutory responsibilities of the Secretary of Transportation (the Secretary) with respect to:</P>
              <P>(1) The regulation pursuant to 46 App. U.S.C. 808 of transactions involving transfers of:</P>
              <P>(i) An interest in or control of Documented Vessels owned by Citizens of the United States (including the Transfer of a Controlling Interest in such owners) to Noncitizens or;</P>
              <P>(ii) A Documented Vessel to registry or Operation under Authority of a Foreign Country or for scrapping in a foreign country; and</P>
              <P>(2) Transactions involving maritime interests in time of war or national emergency under 46 App. U.S.C. 835.</P>
              <P>(b) The responsibilities in paragraph (a) (1) and (2) of this section have been delegated by the Secretary to the Maritime Administrator.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6880, Feb. 11, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For the purpose of this part, when used in capitalized form:</P>
              <P>(a) <E T="03">Bowaters Corporation</E> means a Noncitizen corporation organized under the laws of the United States or of a State that has satisfied the requirements of 46 App. U.S.C. 883-1(a)-(e) and holds a valid Certificate of Compliance issued by the Coast Guard.</P>
              <P>(b) <E T="03">Charter</E> means any agreement or commitment by which the possession or services of a vessel are secured for a <PRTPAGE P="39"/>period of time, or for one or more voyages, whether or not a demise of the vessel.</P>
              <P>(c) <E T="03">Citizen of the United States</E> means a Person (including receivers, trustees and successors or assignees of such Persons as provided in 46 App. U.S.C. 803), including any Person (stockholder, partner or other entity) who has a Controlling Interest in such Person, any Person whose stock or equity is being relied upon to establish the requisite U.S. citizen ownership, and any parent corporation, partnership or other entity of such Person at all tiers of ownership, who, in both form and substance at each tier of ownership, satisfies the following requirements—</P>
              <P>(1) An individual who is a Citizen of the United States, by birth, naturalization or as otherwise authorized by law;</P>
              <P>(2) A corporation organized under the laws of the United States or of a State, the Controlling Interest of which is owned by and vested in Citizens of the United States and whose president or chief executive officer, chairman of the board of directors and all officers authorized to act in the absence or disability of such persons are Citizens of the United States, and no more of its directors than a minority of the number necessary to constitute a quorum are Noncitizens;</P>
              <P>(3) A partnership organized under the laws of the United States or of a State, if all general partners are Citizens of the United States and a Controlling Interest in the partnership is owned by Citizens of the United States;</P>
              <P>(4) An association organized under the laws of the United States or of a State, whose president or other chief executive officer, chairman of the board of directors (or equivalent committee or body) and all officers authorized to act in their absence or disability are Citizens of the United States, no more than a minority of the number of its directors, or equivalent, necessary to constitute a quorum are Noncitizens, and a Controlling Interest in which is vested in Citizens of the United States;</P>
              <P>(5) A joint venture, if it is not determined by the Maritime Administrator to be in effect an association or a partnership, which is organized under the laws of the United States or of a State, if each coventurer is a Citizen of the United States. If a joint venture is in effect an association, it will be treated as is an association under paragraph(c)(4) of this section, or, if it is in effect a partnership, will be treated as is a partnership under paragraph (c)(3) of this section; or</P>
              <P>(6) A Trust described in paragraph (t)(1) of this section.</P>
              <P>(d) <E T="03">Controlling interest</E> owned by and vested in Citizens of the United States means that—</P>
              <P>(1) In the case of a corporation:</P>
              <P>(i) Title to a majority of the stock thereof is owned by and vested in Citizens of the United States, free from any trust or fiduciary obligation in favor of any Noncitizen;</P>
              <P>(ii) The majority of the voting power in such corporation is vested in Citizens of the United States;</P>
              <P>(iii) Through no contract or understanding is it so arranged that the majority of the voting power may be exercised, directly or indirectly, in behalf of any Noncitizen; and</P>
              <P>(iv) By no other means whatsoever control of the corporation is conferred upon or permitted to be exercised by any Noncitizen;</P>
              <P>(2) In the case of a partnership, all general partners are Citizens of the United States and ownership and control of a majority of the partnership interest, free and clear of any trust or fiduciary obligation in favor of any Noncitizen, is vested in a partner or partners each of whom is a Citizen of the United States;</P>
              <P>(3) In the case of an association, a majority of the voting power is vested in Citizens of the United States, free and clear of any trust or fiduciary obligation in favor of any Noncitizen; and</P>
              <P>(4) In the case of a joint venture, a majority of the equity is owned by and vested in Citizens of the United States free and clear of any trust or fiduciary obligation in favor of any Noncitizen; but</P>

              <P>(5) In the case of a corporation, partnership, association or joint venture owning a vessel which is operated in the coastwise trade, the amount of interest and voting power required to be owned by and vested in Citizens of the United States shall be not less than 75 <PRTPAGE P="40"/>percent as required by 46 App. U.S.C. 802.</P>
              <P>(e) <E T="03">Documented vessel</E> means a vessel documented under chapter 121, title 46, United States Code or a vessel for which an application for such documentation is pending.</P>
              <P>(f) <E T="03">Fishing vessel</E> means a vessel that commercially engages in the planting, cultivating, catching, taking, or harvesting of fish, shellfish, marine animals, pearls, shells, or marine vegetation or an activity that can reasonably be expected to result in the planting, cultivating, catching, taking, or harvesting of fish, shellfish, marine animals, pearls, shells, or marine vegetation.</P>
              <P>(g) <E T="03">Fish processing vessel</E> means a vessel that commercially prepares fish or fish products other than by gutting, decapitating, gilling, skinning, shucking, icing, freezing, or brine chilling.</P>
              <P>(h) <E T="03">Fish tender vessel</E> means a vessel that commercially supplies, stores, refrigerates, or transports (except in foreign commerce) fish, fish products, or materials directly related to fishing or the preparation of fish to or from a Fishing Vessel, Fish Processing Vessel, or another Fish Tender Vessel or a fish processing facility.</P>
              <P>(i) <E T="03">Hearing Officer</E> means an individual designated by the Maritime Administrator to conduct hearings under Subpart E of this part and assess civil penalties.</P>
              <P>(j) <E T="03">Noncitizen</E> means a Person who is not a Citizen of the United States.</P>
              <P>(k) <E T="03">Operation under the authority of a foreign country</E> means any agreement, undertaking or device by which a Documented Vessel is voluntarily subjected to any restriction or requirement, actual or contingent, under the laws or regulations of a foreign country or instrumentality thereof concerning use or operation of the vessel that is or may be in derogation of the rights and obligations of the owner, operator or master of the vessel under the laws of the United States, unless such restriction or requirement is of general applicability and uniformly imposed by such country or instrumentality in exercise of its sovereign prerogatives with respect to public health, safety or welfare, or in implementation of accepted principles of international law regarding cabotage or safety of navigation.</P>
              <P>(l) <E T="03">Party</E> means the Person alleged to have violated the statute or regulations for which a civil penalty may be assessed.</P>
              <P>(m) <E T="03">Person</E> includes individuals and corporations, partnerships, joint ventures, associations and Trusts existing under or authorized by the laws of the United States or of a State or, unless the context indicates otherwise, or any foreign country.</P>
              <P>(n) <E T="03">Pleasure vessel</E> means a vessel that has been issued a Certificate of Documentation with a recreational endorsement and is operated only for pleasure pursuant to 46 U.S.C. 12109.</P>
              <P>(o) <E T="03">Settlement</E> means the process whereby a civil penalty or other disposition of the alleged violation is agreed to by the Hearing Officer and the Party in accordance with § 221.73 of this part.</P>
              <P>(p) <E T="03">State</E> means a State of the United States, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Commonwealth of the Northern Mariana Islands, and any other territory or possession of the United States.</P>
              <P>(q) <E T="03">Transfer</E> means the passing of control of or an interest in a Documented Vessel and includes the involuntary conveyance by a foreign judicial or administrative tribunal of any interest in or control of a Documented Vessel owned by a Citizen of the United States to a Noncitizen that is not eligible to own a Documented Vessel.</P>
              <P>(r) <E T="03">Trust</E> means:</P>
              <P>(1) In the case of ownership of a Documented Vessel, a Trust that is domiciled in and existing under the laws of the United States, or of a State, of which the trustee is a Citizen of the United States and a Controlling Interest in the Trust is held for the benefit of Citizens of the United States; or</P>
              <P>(s) <E T="03">United States,</E> when used in the geographic sense, means the States of the United States, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Commonwealth of the Northern Mariana Islands, and any other territory or possession of the United States; when used in other than the geographic sense, it means the United States Government.<PRTPAGE P="41"/>
              </P>
              <P>(t) <E T="03">United States Government</E> means the Federal Government acting by or through any of its departments or agencies.</P>
              <P>(u) <E T="03">Vessel Transfer Officer</E> means the Maritime Administration's Vessel Transfer and Disposal Officer, whose address is MAR-745.1, Maritime Administration, United States Department of Transportation, Washington, DC 20590, or that person's delegate.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6880, Feb. 11, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.5</SECTNO>
              <SUBJECT>Citizenship declarations.</SUBJECT>
              <P>(a) Pursuant to 46 U.S.C. 31306(a), when an instrument transferring an interest in a Documented Vessel owned by a Citizen of the United States is presented to the United States Government for filing or recording, the Person filing shall submit therewith Maritime Administration Form No. MA-899 so it may be determined if sections 9 or 37 of the Shipping Act of 1916 (46 App. U.S.C. 808 and 837) apply to the transaction. Form No. MA-899 is available from the Coast Guard Documentation Office at the port of record of the vessel or from the Vessel Transfer Officer.</P>
              <P>(b) The filing required by paragraph (a) of this section is not required for transactions involving vessel types described in § 221.11(b)(1)(i) through (iv) of this part.</P>
              <P>(c) The filing required by paragraph (a) of this section is waived for transactions which are given general approval in this part.</P>
              <P>(d) If the transfer of interest is one which requires written approval of the Maritime Administrator, the Person filing shall submit therewith evidence of that approval.</P>
              <P>(e) A declaration filed by any Person other than an individual shall be signed by an official authorized by that Person to execute the declaration.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.7</SECTNO>
              <SUBJECT>Applications and fees.</SUBJECT>
              <P>(a) <E T="03">Applications.</E> Whenever written approval of the Maritime Administrator is required for transfers to Noncitizens or to foreign registry or Operation Under Authority of a Foreign Country, or pursuant to a Maritime Administration contract or Order, an application on Maritime Administration Form MA-29 or MA-29B giving full particulars of the proposed transaction shall be filed with the Vessel Transfer Officer.</P>
              <P>(b) <E T="03">Fees.</E> Applications for written approval of any of the following transactions shall be accompanied by the specified fee:</P>
              <P>(1) Transactions requiring approval for:</P>
              <GPOTABLE CDEF="s10,4" COLS="2" OPTS="L0,6/7,g1,t1,i1">
                <ROW EXPSTB="00">
                  <ENT I="11">(i) Sale and delivery by a Citizen of the United States to a Noncitizen, or Transfer to foreign registry or Operation Under Authority of a Foreign Country, of a Documented Vessel, per vessel—</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">(A) Of 1,000 gross tons and over</ENT>
                  <ENT>$325</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">(B) Of less than 1,000 gross tons</ENT>
                  <ENT>170</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(ii) Transfer of any interest in, or control of, a Documented Vessel owned by a Citizen of the United States to a Noncitizen, per vessel</ENT>
                  <ENT>250</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(iii) Charter of a Documented Vessel owned by a Citizen of the United States to a Noncitizen, per vessel</ENT>
                  <ENT>250</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(iv) Sale or Transfer of an interest in or the control of an interest in an entity that is a Citizen of the United States and owns, or is the direct or indirect parent of an entity that owns, any Documented Vessel, if by such sale or Transfer the Controlling Interest in such entity is vested in, or held for the benefit of, any Noncitizen</ENT>
                  <ENT>325</ENT>
                </ROW>
              </GPOTABLE>
              <P>(2) Transactions requiring written approval pursuant to a Maritime Administration contract or Order:</P>
              <GPOTABLE CDEF="s10,4" COLS="2" OPTS="L0,6/7,g1,t1,i1">
                <ROW>
                  <ENT I="01">(i) Transfer of ownership or registry, or, both, of the vessel, per vessel</ENT>
                  <ENT>$260</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(ii) Sale or Transfer of any interest in the owner of the vessel, if by such sale or Transfer the Controlling Interest in the owner is vested in, or held for the benefit of, a Noncitizen, per vessel</ENT>
                  <ENT>235</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(iii) Charter of the vessel to a Noncitizen, per vessel</ENT>
                  <ENT>240</ENT>
                </ROW>
              </GPOTABLE>
              <P>(c) <E T="03">Modification of applications or approvals.</E> An application for modification of any pending application or prior approval, or of an outstanding Maritime Administration contract or Order, shall be accompanied by the fee established for the original application.</P>
              <P>(d) <E T="03">Reduction or waiver of fees.</E> The Maritime Administrator, in appropriate circumstances, and upon a written finding, may reduce any fee imposed by paragraph (b) or (c) of this section, or may waive the fee entirely in extenuating circumstances where the interest of the United States Government would be served.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6880, Feb. 11, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="42"/>
            <HD SOURCE="HED">Subpart B—Transfers to Noncitizens or to Registry or Operation Under Authority of a Foreign Country</HD>
            <SECTION>
              <SECTNO>§ 221.11</SECTNO>
              <SUBJECT>Required approvals.</SUBJECT>
              <P>(a) Except as provided in section 12106(e) of title 46, United States Code, a Person may not, without the approval of the Maritime Administrator:</P>
              <P>(1) Sell, lease, charter, deliver, or in any manner Transfer to a Noncitizen, or agree (unless such agreement by its terms requires approval of the Maritime Administrator in order to effect such transfer), to sell, lease, charter, deliver, or in any manner Transfer to a Noncitizen, any interest in or control of a Documented Vessel owned by a Citizen of the United States or a vessel the last documentation of which was under the laws of the United States except as provided in this part; or</P>
              <P>(2) Place any Documented Vessel, or any vessel the last documentation of which was under the laws of the United States, under foreign registry or operate that vessel under the authority of a foreign country, except as provided in this part.</P>

              <P>(b)(1) The approvals required by paragraph (a)(1) of this section are not required for the following Documented Vessel types if the vessel has been operated exclusively and with <E T="03">bona fides</E> for one or more of the following uses, under a Certificate of Documentation with an appropriate endorsement and no other, since initial documentation or renewal of its documentation following construction, conversion, or transfer from foreign registry, or, if it has not yet so operated, if the vessel has been designed and built and will be operated for one or more of the following uses:</P>
              <P>(i) A Fishing vessel;</P>
              <P>(ii) A Fish processing vessel;</P>
              <P>(iii) A Fish tender vessel; and</P>
              <P>(iv) A Pleasure vessel.</P>
              <P>(2) A vessel of a type specified in paragraphs (b)(1)(i) through (iii) of this section will not be ineligible for the approval granted by this paragraph by reason of also holding or having held a Certificate of Documentation with a coastwise or registry endorsement, so long as any trading under that authority has been only incidental to the vessel's principal employment in the fisheries and directly related thereto.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6880, Feb. 11, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.13</SECTNO>
              <SUBJECT>General approval.</SUBJECT>
              <P>(a) <E T="03">Transactions other than transfer of registry or operation under authority of a foreign country.</E> (1) The Maritime Administrator hereby grants the approval required by 46 App. U.S.C. 808(c)(1) for the sale, lease, Charter, delivery, or any other manner of Transfer to a Noncitizen of an interest in or control of a Documented Vessel owned by a Citizen of the United States or a vessel the last documentation of which was under the laws of the United States except:</P>
              <P>(i) As limited by paragraph (b) of this section for transfers to Bowaters Corporations;</P>
              <P>(ii) As limited by § 221.15(d) of this part for sales for scrapping;</P>
              <P>(iii) Bareboat or demise Charters of vessels operating in the coastwise trade.</P>
              <FP>A Documented Vessel shall remain documented following any transaction approved by this paragraph (a)(1). Other approvals may be required by statutes other than 46 App. U.S.C. 808(c)(1)   -and/or by contract for certain vessels.</FP>
              <P>(2) The approvals granted by paragraph (a)(1) of this section shall not apply to any such Transfer proposed to be made during any period when the United States is at war or during any national emergency, the existence of which has invoked the provisions of section 37 of the Shipping Act, 1916, as amended (46 App. U.S.C. 835), or to any such Transfer proposed to be made to a citizen of any country when such transfer would be contrary to the foreign policy of the United States as declared by an executive department of the United States.</P>
              <P>(3) An information copy of any sales agreement, bareboat or demise Charter entered into pursuant to this approval shall be submitted to the Vessel Transfer Officer not later than thirty days following a request by that official.</P>

              <P>(4) Except for Charters to Noncitizens of documented bulk cargo vessels engaged in carrying bulk raw and processed agricultural commodities from the United States to ports in the geographic area formerly known as the <PRTPAGE P="43"/>Union of Soviet Socialist Republics, or to other permissible ports of discharge for transshipment to the geographic area formerly known as the Union of Soviet Socialist Republics, pursuant to an operating- differential subsidy agreement that is consistent with the requirements of 46 CFR parts 252 and 294, this approval excludes and does not apply to Transfers to a Person who is subject, directly or indirectly, to control of an entity within the geographic area formerly known as the Union of Soviet Socialist Republics, Latvia, Lithuania, Estonia, Libya, Iraq, Bulgaria, Albania, North Korea, Laos, Cambodia, Mongolian Peoples Republic, Vietnam, or Cuba, unless such transferee is an individual who has been lawfully admitted into, and resides in, the United States, or to Charters for the carriage of cargoes of any kind to or from, or for commercial operation while within the waters of (as distinct from passage through), any of these countries. This list of countries is subject to change from time to time. Information concerning current restrictions may be obtained from the Vessel Transfer Officer.</P>
              <P>(b) <E T="03">Bowaters corporations.</E> (1) For documented Vessels other than those operating in the coastwise trade, the approvals granted in paragraph (a) of this section shall apply to Bowaters Corporations.</P>
              <P>(2) The Maritime Administrator hereby grants approval for the time charter of a Documented Vessel of any tonnage by a Citizen of the United States to a Bowaters Corporation for operation in the coastwise trade, subject to the following conditions:</P>
              <P>(i) If non-self-propelled or, if self-propelled and less than 500 gross tons, no such vessel shall engage in the fisheries or in the transportation of merchandise or passengers for hire between points in the United States embraced within the coastwise laws except as a service for a parent or subsidiary corporation; and</P>
              <P>(ii) If non-self-propelled or, if self-propelled and less than 500 gross tons, no such vessel may be subchartered or subleased from any such Bowaters Corporation except:</P>
              <P>(A) At prevailing rates;</P>
              <P>(B) For use otherwise than in the domestic noncontiguous trades;</P>
              <P>(C) To a common or contract carrier subject to part 3 of the Interstate Commerce Act, as amended, which otherwise qualifies as a Citizen of the United States and which is not connected, directly or indirectly, by way of ownership or control with such corporation.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6880, Feb. 11, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.15</SECTNO>
              <SUBJECT>Approval for transfer of registry or operation under authority of a foreign country or for scrapping in a foreign country.</SUBJECT>
              <P>In no case will approval be granted to place under foreign registry or to operate under the authority of a foreign country a Fishing Vessel, Fish Processing Vessel, or Fish Tender Vessel that has had its fishery endorsement revoked pursuant to Appendix D of Public Law 106-554, 114 Stat 2763. Subject to this exclusion, approval requests will be considered as set forth in this section.</P>
              <P>(a) <E T="03">Vessels of under 1,000 gross tons.</E> (1) The Maritime Administrator hereby grants approval for the Transfer to foreign registry and flag or Operation Under the Authority of a Foreign Country or for scrapping in a foreign country of Documented Vessels or vessels the last documentation of which was under the laws of the United States and which are of under 1,000 gross tons if at the time of such Transfer there are no liens or encumbrances recorded against the vessel in the U.S. Coast Guard Documentation Office at its last U.S. port of record.</P>
              <P>(2) This approval shall not apply if the vessel is to be placed under the registry, or operated under the authority of, or scrapped in any country listed in § 221.13(a)(4) of this part.</P>

              <P>(3) This approval shall not apply to any such Transfer proposed to be made during any period when the United States is at war or during any national emergency, the existence of which has invoked the provisions of section 37 of the Shipping Act, 1916, as amended (46 App. U.S.C. 835), or to any such Transfer proposed to be made to a citizen of any country when such transfer would be contrary to the foreign policy of the <PRTPAGE P="44"/>United States as declared by an executive department of the United States.</P>
              <P>(b) <E T="03">Vessels of 1,000 gross tons or more.</E> (1) Applications for approval of Transfer to foreign registry and flag or Operation Under the Authority of a Foreign Country or for scrapping in a foreign country of Documented Vessels or vessels the last documentation of which was under the laws of the United States and which are of 1,000 gross tons or more will be evaluated in light of—</P>
              <P>(i) The type, size speed, general condition, and age of the vessel;</P>
              <P>(ii) The acceptability of the owner, proposed transferee and the country of registry or the country under the authority of which the vessel is to be operated; and</P>
              <P>(iii) The need to retain the vessel under U.S. documentation, ownership or control for purposes of national defense, maintenance of an adequate merchant marine, foreign policy considerations or the national interest.</P>
              <P>(2) If the application is found to be acceptable under the criteria of this paragraph, approval will be granted. For vessels of under 3,000 gross tons, in the absence of unusual circumstances, no conditions will be imposed on the transfer. For vessels of 3,000 gross tons and above, approval will be granted upon acceptance by the owner of the terms and conditions referred to in paragraph (c) or (d) of this section, as applicable. Additional terms deemed appropriate by the Maritime Administrator may be imposed. The terms and conditions shall be contained in an Approval Notice and Agreement (“Contract”) executed prior to issuance of the Transfer Order. Unless otherwise specified, the terms and conditions shall remain in effect for the period of the remaining economic life of the vessel or for the duration of a national emergency proclaimed by the President prior or subsequent to such Transfer, whichever period is longer. The economic life of a vessel for purposes of this regulation is deemed to be twenty (20) years for tankers and other liquid bulk carriers and twenty-five (25) years for other vessel types. This period is to be calculated from the date the vessel was originally accepted for delivery from the shipbuilder, but may be extended for such additional period of time as may be determined by the Maritime Administrator if the vessel has been substantially rebuilt or modified in a manner that warrants such extension.</P>
              <P>(c) <E T="03">Foreign transfer other than for scrapping.</E> If the foreign Transfer of a vessel referred to in paragraph (b) of this section is other than for the purpose of scrapping the vessel and other than a Transfer to the government of an acceptable foreign country, and in the absence of unusual circumstances as determined by the Maritime Administrator (for example a Transfer to an entity controlled by the government of an acceptable foreign country), the following conditions will be imposed on the transferee:</P>
              <P>(1) <E T="03">Ownership.</E> (i) Without the prior written approval of the Maritime Administrator, there shall be no further Transfer of ownership, change in the registry or Operation of such vessel Under the Authority of a Foreign Country; provided, however, that, if the Transfer of ownership is to a Citizen of the United States or other entity qualified under 46 U.S.C. 12102(a) to document a vessel and the vessel is thereafter documented under U.S. law, no prior written approval shall be required but the transferee shall notify the Vessel Transfer Officer in writing of such change in the ownership and the U.S. documentation within thirty (30) days after such change in ownership and documentation.</P>
              <P>(ii) The restrictions contained in paragraph (c)(1)(i) of this section shall not be applicable to a change in ownership resulting from the death of the vessel owner, so long as notification of any such Transfer of ownership occurring by reason of death shall be filed with the Vessel Transfer Officer within 60 days from the date of such Transfer identifying with particularity the name, legal capacity, citizenship, current domicile or address of, or other method of direct communication with, the transferee(s).</P>
              <P>(2) <E T="03">Requisition.</E> The vessel shall, if requested by the United States, be sold or Chartered to the United States on the same terms and conditions upon which a vessel owned by a Citizen of the United States or documented under <PRTPAGE P="45"/>U.S. law could be requisitioned for purchase or Charter pursuant to section 902 of the Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1242). If the vessel is under the flag of a country that is a member of the North Atlantic Treaty Organization (NATO), the Maritime Administrator will consider this condition satisfied if the owner furnishes satisfactory evidence that the vessel is already in noncommercial service under the direction of the government of a NATO country.</P>
              <P>(3) <E T="03">Trade.</E> Without the prior written approval of the Maritime Administrator, the vessel shall not carry cargoes of any kind to or from, or be operated commercially while within the waters of (as distinct from passage through), a country referred to in § 221.13(a)(4) of this part, nor shall there be any Charter or other Transfer of an interest in the vessel, other than to a Citizen of the United States, for carriage of cargoes of any kind to or from, or for commercial operation while within the waters of (as distinct from passage through), any such country.</P>
              <P>(4) <E T="03">Default.</E> In the event of default under any or all of the conditions set forth in paragraphs (c) (1), (2) or (3) of this section, the owner shall pay to the Maritime Administration, without prejudice to any other rights that the United States may have, as liquidated damages and not as a penalty, the sum of not less than $25,000 or more than $1,000,000, as specified in the contract, and the vessel shall be subject to the penalties imposed by 46 App. U.S.C. 808 and 839. Pursuant to 46 App. U.S.C. 836, the Maritime Administrator may remit forfeiture of the vessel upon such conditions as may be required under the circumstances of the particular case, including the payment of a sum in lieu of forfeiture, and execution of a new agreement containing substantially the same conditions set forth above and such others as the Maritime Administrator may deem appropriate and which will be applicable to the vessel for the remaining period of the original agreement. In order to secure the payment of any such sums of money as may be required as a result of default, the transferee shall contractually agree, in form and substance approved by the Chief Counsel of the Maritime Administration, to comply with the above conditions and to provide a United States commercial surety bond or other surety acceptable to the Maritime Administrator for an amount not less than $25,000 and not more than $1,000,000, depending upon the type, size and condition of the vessel. “Other surety” may be any one of the following:</P>
              <P>(i) An irrevocable letter of credit, which is acceptable to the Maritime Administrator, issued or guaranteed by a Citizen of the United States or by a federally insured depository institution;</P>
              <P>(ii) A pledge of United States Government securities;</P>
              <P>(iii) The written guarantee of a friendly government of which the transferee is a national;</P>
              <P>(iv) A written guarantee or bond by a United States corporation found by the Maritime Administrator to be financially qualified to service the undertaking to pay the stipulated amount;</P>
              <P>(v) If the transferee is controlled in any manner by one or more Citizens of the United States, a contractual agreement in form and substance acceptable to the Chief Counsel of the Maritime Administration by the transferee and the Citizens of the United States with authority to exercise such control, if found by the Maritime Administrator to be financially qualified, jointly and severally to pay the stipulated amount, such agreement to be secured by the written guarantee of the transferee and each of the Citizens of the United States or other form of guarantee as may be required by the Maritime Administrator; or</P>
              <P>(vi) Any other surety acceptable to the Maritime Administrator and approved as to form and substance by the Chief Counsel of the Maritime Administration.</P>
              <P>(d) <E T="03">Foreign transfer for scrapping.</E> If the transfer of control, whether or not there is a transfer of registry, of a vessel referred to in paragraph (b) of this section is for the purpose of scrapping the vessel abroad, the following conditions will be imposed on the transferee:</P>

              <P>(1) The vessel or any interest therein shall not be subsequently sold to any Person without the prior written approval of the Maritime Administrator, nor shall it be used for the carriage of <PRTPAGE P="46"/>cargo or passengers of any kind whatsoever.</P>
              <P>(2) Within a period of 18 months from the date of approval of the sale, the hull of the vessel shall be completely scrapped, dismantled, dismembered, or destroyed in such manner and to such extent as to prevent the further use thereof, or any part thereof, as a ship, barge, or any other means of transportation.</P>
              <P>(3) The scrap resulting from the demolition of the hull of the vessel, the engines, machinery, and major items of equipment shall not be sold to, or utilized by, any citizen or instrumentality of a country referred to in § 221.13(a)(4) of the part, nor may such scrap be exported to these countries. The engines, machinery and major items of equipment shall not be exported to destinations within the United States.</P>
              <P>(4) In the event of default under any or all of the conditions set forth in paragraphs (d) (1), (2) or (3) of this section, the transferee shall pay to the Maritime Administration, without prejudice to any other rights that the United States may have, as liquidated damages and not as a penalty, the sum of not less than $25,000 or more than $1,000,000, as specified in the contract, depending upon the size, type and condition of the vessel. This payment shall be secured by a surety company bond or other surety satisfactory to the Maritime Administrator. “Other surety” may be one of those set out in paragraph (c)(4) (i) through (vi) of this section.</P>
              <P>(5) There shall be filed with the Vessel Transfer Officer a certificate or other evidence satisfactory to the Chief Counsel of the Maritime Administration, duly attested and authenticated by a United States Consul, that the scrapping of the vessel (hull only) and disposal or utilization of the resultant scrap and the engines, machinery and major items of equipment have been accomplished in accord with paragraphs (d) (2) and (3) of this section.</P>
              <P>(e) <E T="03">Resident agent for service.</E> (1) Any proposed foreign transferee shall, prior to the issuance and delivery of the Transfer Order covering the vessel or vessels to be transferred, designate and appoint a resident agent in the United States to receive and accept service of process or other notice in any action or proceeding instituted by the United States relating to any claim arising out of the approved transaction.</P>
              <P>(2) The resident agent designated and appointed by the foreign transferee shall be subject to approval by the Maritime Administrator. To be acceptable, the resident agent must maintain a permanent place of business in the United States and shall be a banking or lending institution, a ship-owner or ship-operating corporation or other business entity that is satisfactory to the Maritime Administrator.</P>
              <P>(3) Appointment and designation of the resident agent shall not be terminated, revoked, amended or altered without the prior written approval of the Maritime Administrator.</P>
              <P>(4) The foreign transferee shall file with the Vessel Transfer Officer a written copy of the appointment of the resident agent, which copy shall be fully endorsed by the resident agent stating that it accepts the appointment, that it will act thereunder and that it will notify the Vessel Transfer Officer in writing in the event it becomes disqualified from so acting by reason of any legal restrictions. Service of process or notice upon any officer, agent or employee of the resident agent at its permanent place of business shall constitute effective service on, or notice to, the foreign transferee.</P>
              <P>(f) <E T="03">Administrative provisions.</E> (1) The subsequent Transfer of ownership or registry of vessels that have been Transferred to foreign ownership or registry or both, or to Operation Under the Authority of a Foreign Country, that remain subject to Maritime Administration contractual control as set forth above, will be subject to substantially the same Maritime Administration policy considerations that governed the original Transfer, including such changes or modifications that have subsequently been made and continued in effect. Approval of these subsequent Transfers will be subject to the same terms and conditions governing the foreign Transfer at the time of the previous Transfer, as modified (if applicable).</P>

              <P>(2) The authorization for all approved transactions, either by virtue of 46 <PRTPAGE P="47"/>App. U.S.C. 808, 835 and 839 or the Maritime Administration's Contract with the vessel owner, will be by notification in the form of a Transfer Order upon receipt of the executed Contract, the required bond or other surety, and other supporting documentation required by the Contract.</P>
              <P>(3) In order that the Maritime Administration's records may be maintained on a current basis, the transferor and transferee of the vessel are required to notify the Vessel Transfer Officer of the date and place where the approved transaction was completed, and the name of the vessel, if changed. This information relating to the completion of the transaction and any change in name shall be furnished as soon as possible, but not later than 10 days after the same has occurred.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6881, Feb. 11, 1998; 66 FR 55596, Nov. 2, 2001]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.17</SECTNO>
              <SUBJECT>Sale of a documented vessel by order of a district court.</SUBJECT>
              <P>(a) A Documented Vessel may be sold by order of a district court only to a Person eligible to own a Documented Vessel or to a mortgagee of the vessel. Unless waived by the Maritime Administrator, a Person purchasing the vessel pursuant to court order or from a mortgagee not eligible to document a vessel who purchased the vessel pursuant to a court order must document the vessel under chapter 121 of title 46, United States Code.</P>
              <P>(b) A Person purchasing the vessel, pursuant to court order or from a mortgagee not eligible to document a vessel who purchased the vessel pursuant to a court order, and wishing to obtain waiver of the documentation requirement must submit a request including the reason therefor to the Vessel Transfer Officer.</P>
              <P>(c)(1) A mortgagee not eligible to own a Documented Vessel shall not operate, or cause operation of, the vessel in commerce. Except as provided in paragraph (c)(2) of this section, the vessel may not be operated for any purpose without the prior written approval of the Maritime Administrator.</P>
              <P>(2) The Maritime Administrator hereby grants approval for a mortgagee not eligible to own a Documented Vessel to operate the vessel to the extent necessary for the immediate safety of the vessel or for repairs, drydocking or berthing changes, but only under the command of a Citizen of the United States.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6881, Feb. 11, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.19</SECTNO>
              <SUBJECT>Possession or sale of vessels by mortgagees or trustees other than pursuant to court order.</SUBJECT>
              <P>(a) A mortgagee or a trustee of a preferred mortgage on a Documented Vessel that is not eligible to own a Documented Vessel does not require the express approval of the Maritime Administrator to 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, but in such event the vessel may not be operated, or caused to be operated, in commerce. The vessel may not, except as provided in paragraph (b) of this section, be operated for any other purpose unless approved in writing by the Maritime Administrator, nor may the vessel be sold to a Noncitizen without the approval of the Maritime Administrator.</P>
              <P>(b) The Maritime Administrator hereby grants approval for such mortgagee or trustee to operate the vessel to the extent necessary for the immediate safety of the vessel, for its direct return to the United States or for its movement within the United States, or for repairs, drydocking or berthing changes, but only under the command of a Citizen of the United States.</P>

              <P>(c) A Noncitizen mortgagee that has brought a civil action <E T="03">in rem</E> for enforcement of a preferred mortgage lien on a citizen-owned Documented 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 Person eligible to own a Documented Vessel, to authorize the receiver to operate the mortgaged vessel on such terms and conditions as the court deems appropriate. If the receiver is not a Citizen of the United States, the vessel may not be operated <PRTPAGE P="48"/>in coastwise trade without prior written approval of the Maritime Administrator.</P>
              <CITA>[57 FR 23478, June 3, 1992, as amended at 63 FR 6881, Feb. 11, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart C [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart D—Transactions Involving Maritime Interests in Time of War or National Emergency Under 46 App. U.S.C. 835 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Civil Penalties</HD>
            <SECTION>
              <SECTNO>§ 221.61</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>

              <P>This subpart describes procedures for the administration of civil penalties that the Maritime Administration may assess under 46 U.S.C. 31309 and 31330, and section 9(d) of the Shipping Act, 1916, as emended (46 App. U.S.C. 808(d), pursuant to 49 U.S.C. 336.
              </P>
              <NOTE>
                <HD SOURCE="HED">Note:</HD>
                <P>Pursuant to 46 U.S.C. 31309, a general penalty of not more than $11,000 may be assessed for each violation of chapter 313 or 46 U.S.C. subtitle III administered by the Maritime Administration, and the regulations in this part that are promulgated thereunder, except that a person violating 46 U.S.C. 31329 and the regulations promulgated thereunder is liable for a civil penalty of not more than $27,500 for each violation. A person that charters, sells, or transfers a vessel, or an interest therein, in violation of 46 App. U.S.C. 808 is liable for a civil penalty of not more than $11,000 for each violation. These penalty amounts are in accordance with Public Law 101-410, as amended by Public Law 104-134. Criminal penalties may also apply to violations of these statutes.</P>
              </NOTE>
              
              <CITA>[61 FR 56901, Nov. 5, 1996, as amended at 63 FR 6881, Feb. 11, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.63</SECTNO>
              <SUBJECT>Investigation.</SUBJECT>

              <P>(a) When the Vessel Transfer Office obtains information that a Person may have violated a statute or regulation for which a civil penalty may be assessed under this subpart, that Officer may investigate the matter and decide whether there is sufficient evidence to establish a <E T="03">prima facie</E> case that a violation occurred.</P>
              <P>(b) If that Officer decides there is a <E T="03">prima facie</E> case, then that Officer may enter into a stipulation with the Party in accordance with § 221.67 of this subpart, or may refer the matter directly to a Hearing Officer for procedures in accordance with § 221.73 to 221.89 of this subpart.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.65</SECTNO>
              <SUBJECT>Criteria for determining penalty.</SUBJECT>
              <P>In determining any penalties assessed, the Vessel Transfer Officer under § 221.67 and the Hearing Officer under §§ 221.73 to 221.89 of this part shall take into account the nature, circumstances, extent and gravity of the violation committed and, with respect to the Party, the degree of culpability, any history of prior offenses, ability to pay and other matters that justice requires.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.67</SECTNO>
              <SUBJECT>Stipulation procedure.</SUBJECT>
              <P>(a) When the Vessel Transfer Office decides to proceed under this section, that Office shall notify the Party in writing by registered or certified mail—</P>
              <P>(1) Of the alleged violation and the applicable statute and regulations;</P>
              <P>(2) Of the maximum penalty that may be assessed for each violation;</P>
              <P>(3) Of a summary of the evidence supporting the violation;</P>
              <P>(4) Of the penalty that the Vessel Transfer Officer will accept in settlement of the violation;</P>
              <P>(5) Of the right to examine all the material in the case file and have a copy of all written documents provided upon request;</P>
              <P>(6) That by accepting the penalty, the Party waives the right to have the matter considered by a Hearing Officer in accordance with §§ 221.73 to 221.89 of this subpart, and that if the Party elects to have the matter considered by a Hearing Officer, the Hearing Officer may assess a penalty less than, equal to, or greater than that stipulated in settlement if the Hearing Officer finds that a violation occurred; and</P>
              <P>(7) That a violation will be kept on record and may be used by the Maritime Administration in aggravation of an assessment of a penalty for a subsequent violation by that Party.</P>

              <P>(b) Upon receipt of the notification specified in paragraph (a) of this section, a Party may within 30 days—<PRTPAGE P="49"/>
              </P>
              <P>(1) Agree to the stipulated penalty in the manner specified in the notification; or</P>
              <P>(2) Notify in writing the Vessel Transfer Officer that the Party elects to have the matter considered by a Hearing Officer in accordance with the procedure specified in §§ 221.73 through 221.89 of this subpart.</P>
              <P>(c) If, within 30 days of receipt of the notification specified in paragraph (a) of this section, the Party neither agrees to the penalty nor elects the informal hearing procedure, the Party will be deemed to have waived its right to the informal hearing procedure and the penalty will be considered accepted. If a monetary penalty is assessed, it is due and payable to the United States, and the Maritime Administration may initiate appropriate action to collect the penalty.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.69</SECTNO>
              <SUBJECT>Hearing Officer.</SUBJECT>
              <P>(a) The Hearing Officer shall have no responsibility, direct or supervisory, for the investigation of cases referred for the assessment of civil penalties.</P>
              <P>(b) The Hearing Officer shall decide each case on the basis of the evidence before him or her, and must have no prior connection with the case. The Hearing Officer is solely responsible for the decision in each case referred to him or her.</P>
              <P>(c) The Hearing Officer is authorized to administer oaths and issue subpoenas necessary to the conduct of a hearing, to the extent provided by law.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.71</SECTNO>
              <SUBJECT>Hearing Officer referral.</SUBJECT>
              <P>If, pursuant to § 221.67(b)(2) of this subpart, a Party elects to have the matter referred to a Hearing Officer, the Vessel Transfer Officer may—</P>
              <P>(a) Decide not to proceed with penalty action, close the case, and notify the Party in writing that the case has been closed; or</P>
              <P>(b) Refer the matter to a Hearing Officer with the case file and a record of any prior violations by the Party.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.73</SECTNO>
              <SUBJECT>Initial Hearing Officer consideration.</SUBJECT>
              <P>(a) When a case is received for action, the Hearing Officer shall examine the material submitted. If the Hearing Officer determines that there is insufficient evidence to proceed, or that there is any other reason which would make penalty action inappropriate, the Hearing Officer shall return the case to the Vessel Transfer Officer with a written statement of the reason. The Vessel Transfer Officer may close the case or investigate the matter further. If additional evidence supporting a violation is discovered, the Vessel Transfer Officer may resubmit the matter to the Hearing Officer.</P>
              <P>(b) If the Hearing Officer determines that there is reason to believe that a violation has been committed, the Hearing Officer notifies the Party in writing by registered or certified mail of—</P>
              <P>(1) The alleged violation and the applicable statute and regulations;</P>
              <P>(2) The maximum penalty that may be assessed for each violation;</P>
              <P>(3) The general nature of the procedure for assessing and collecting the penalty;</P>
              <P>(4) The amount of the penalty that appears to be appropriate, based on the material then available to the Hearing Officer;</P>
              <P>(5) The right to examine all the material in the case file and have a copy of all written documents provided upon requests; and</P>
              <P>(6) The right to request a hearing.</P>
              <P>(c) If at any time it appears that the addition of another Party to the proceedings is necessary or desirable, the Hearing Officer will provide the additional Party and the Party alleged to be in violation with notice as described above.</P>
              <P>(d) At any time during a proceeding, before the Hearing Officer issues a decision under § 221.89, the Hearing Officer and the Party may agree to a Settlement of the case.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.75</SECTNO>
              <SUBJECT>Response by party.</SUBJECT>
              <P>(a) Within 30 days after receipt of notice from the Hearing Officer, the Party, or counsel for the Party, may—</P>
              <P>(1) Pay the amount specified in the notice as being appropriate;</P>
              <P>(2) In writing request a hearing, specifying the issues in dispute; or</P>
              <P>(3) Submit written evidence or arguments in lieu of a hearing.</P>

              <P>(b) The right to a hearing is waived if the Party does not submit a request to <PRTPAGE P="50"/>the Hearing Officer within 30 days after receipt of notice from the Hearing Officer, unless additional time has been granted by the Hearing Officer.</P>
              <P>(c) The Hearing Officer has discretion as to the venue and scheduling of a hearing. The hearing will normally be held at the office of the Hearing Officer. A request for a change of location of a hearing or transfer to another Hearing Officer must be in writing and state the reasons why the requested action is necessary or desirable. Action on the request is at the discretion of the Hearing Officer.</P>
              <P>(d) A Party who has requested a hearing may amend the specification of the issues in dispute at any time up to 10 days before the scheduled date of the hearing. Issues raised later than 10 days before the schedule hearing may be presented only at the discretion of the Hearing Officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.77</SECTNO>
              <SUBJECT>Disclosure of evidence.</SUBJECT>
              <P>The Party shall, upon request, be provided a free copy of all the evidence in the case file, except material that would disclose or lead to the disclosure of the identity of a confidential informant and any other information properly exempt from disclosure.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.79</SECTNO>
              <SUBJECT>Request for confidential treatment.</SUBJECT>
              <P>(a) In addition to information treated as confidential under § 221.77 of this subpart, a request for confidential treatment of a document or portion thereof may be made by the Person supplying the information on the basis that the information is—</P>
              <P>(1) Confidential financial information, trade secrets, or other material exempt from disclosure by the Freedom of Information Act (5 U.S.C. 552);</P>
              <P>(2) Required to be held in confidence by 18 U.S.C. 1905; or</P>
              <P>(3) Otherwise exempt by law from disclosure.</P>
              <P>(b) The Person desiring confidential treatment must submit the request to the Hearing Officer in writing and the reasons justifying nondisclosure. The Hearing Officer shall forward any request for confidential treatment to the appropriate official of the Maritime Administration for a determination hereon. Failure to make a timely request may result in a document being considered as nonconfidential and subject to release.</P>
              <P>(c) Confidential material shall not be considered by the Hearing Officer in reaching a decision unless—</P>
              <P>(1) It has been furnished by a Party; or</P>
              <P>(2) It has been furnished pursuant to a subpoena.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.81</SECTNO>
              <SUBJECT>Counsel.</SUBJECT>
              <P>A Party has the right to be represented at all stages of the proceeding by counsel. After receiving notification that a Party is represented by counsel, the Hearing Officer will direct all further communications to that counsel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.83</SECTNO>
              <SUBJECT>Witnesses.</SUBJECT>
              <P>A Party may present the testimony of any witness either through a personal appearance or through a written statement. The Party may request the assistance of the Hearing Officer in obtaining the personal appearance of a witness. The request must be in writing and state the reasons why a written statement would be inadequate, the issue or issues to which the testimony would be relevant, and the substance of the expected testimony. If the Hearing Officer determines that the personal appearance of the witness may materially aid in the decision on the case, the Hearing Officer will seek to obtain the witness' appearance. The Hearing Officer may move the hearing to the witness' location, accept a written statement, or accept a stipulation in lieu of testimony.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.85</SECTNO>
              <SUBJECT>Hearing procedures.</SUBJECT>
              <P>(a) The Hearing Officer shall conduct a fair and impartial proceeding in which the Party is given a full opportunity to be heard. At the opening of a hearing, the Hearing Officer shall advise the Party of the nature of the proceedings and of the alleged violation.</P>

              <P>(b) The material in the case file pertinent to the issues to be determined by the Hearing Officer shall first be presented. The Party may examine, respond to and rebut this material. The Party may offer any facts, statements, explanations, documents, sworn or unsworn testimony, or other exculpatory items that bear on the issues, or <PRTPAGE P="51"/>which may be relevant to the size of an appropriate penalty. The Hearing Officer may require the authentication of any written exhibit or statement.</P>
              <P>(c) At the close of the Party's presentation of evidence, the Hearing Officer may allow the introduction of rebuttal evidence. The Hearing Officer may allow the Party to respond to rebuttal evidence submitted.</P>
              <P>(d) In receiving evidence, the Hearing Officer shall not be bound by the strict rules of evidence. In evaluating the evidence presented, the Hearing Officer shall give due consideration to the reliability and relevance of each item of evidence.</P>
              <P>(e) After the evidence in the case has been presented, the Party may present argument on the issues in the case. The party may also request an opportunity to submit a written statement for consideration by the Hearing Officer. The Hearing Officer shall allow a reasonable time for submission of the statement and shall specify the date by which it must be received. If the statement is not received within the specified time, the Hearing Officer may render a decision in the case without consideration of the statement.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.87</SECTNO>
              <SUBJECT>Records.</SUBJECT>
              <P>(a) A verbatim transcript of a hearing will not normally be prepared. The Hearing Officer will prepare notes on material and points raised by the Party in sufficient detail to permit a full and fair review of the case.</P>
              <P>(b) A Party may, at its own expense, cause a verbatim transcript to be made, in which event the Party shall submit, without charge, two copies to the Hearing Officer within 30 days of the close of the hearing.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.89</SECTNO>
              <SUBJECT>Hearing Officer's decision.</SUBJECT>
              <P>(a) The Hearing Officer shall issue a written decision. Any decision to assess a penalty shall be based on substantial evidence in the record, and shall state the basis for the decision.</P>
              <P>(b) If the Hearing Officer finds that there is not substantial evidence in the record establishing the alleged violation, the Hearing Officer shall dismiss the case. A dismissal is without prejudice to the Vessel Transfer Officer's right to refile the case if additional evidence is obtained. A dismissal following a rehearing is final and with prejudice.</P>
              <P>(c) The Hearing Officer shall notify the Party in writing, by certified or registered mail, of the decision and, if adverse, shall advise the Party of the right to an administrative appeal to the Maritime Administrator or an individual designated by the Administrator from that decision.</P>
              <P>(d) If an appeal is not filed within the prescribed time, the decision of the Hearing Officer constitutes final agency action in the case.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.91</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
              <P>(a) Any appeal from the decision of the Hearing Officer must be submitted in writing by the Party to the Hearing Officer within 30 days from the date of receipt of the Hearing Officer's decision.</P>
              <P>(b) The only issues that will be considered on appeal are those issues specified in the appeal which were raised before the Hearing Officer and jurisdictional questions.</P>
              <P>(c) There is no right to oral argument on an appeal.</P>
              <P>(d) The Maritime Administrator or an individual designated by the Administrator will issue a written decision on the appeal, and may affirm, reverse, or modify the decision, or remand the case for new or additional proceedings. In the absence of a remand, the decision on appeal is final agency action.</P>
              <P>(e) The Maritime Administrator or an individual designated by the Administrator shall notify the Party in writing, by certified or registered mail, of the decision on appeal and, if adverse, shall advise the Party of the right of appeal to the courts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 221.93</SECTNO>
              <SUBJECT>Collection of civil penalties.</SUBJECT>
              <P>Within 30 days after receipt of the Hearing Officer's decision, or a decision on appeal, the Party must submit payment of any assessed penalty in the manner specified in the decision letter. Failure to make timely payment will result in the institution of appropriate action to collect the penalty.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart F—Other Transfers Involving Documented Vessels [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="52"/>
            <HD SOURCE="HED">Subpart G—Savings Provisions</HD>
            <SECTION>
              <SECTNO>§ 221.111</SECTNO>
              <SUBJECT>Status of prior transactions—controlling dates.</SUBJECT>
              <P>(a) The Maritime Administrator hereby grants approval for any transaction occurring on or after January 1, 1989 and prior to July 3, 1991 that was lawful under 46 CFR part 221, revised as of October 1, 1989.</P>
              <P>(b) The Maritime Administrator hereby grants approval for any transaction occurring on or after July 3, 1991 and prior to June 3, 1992 that was lawful under 46 CFR part 221, revised as of October 1, 1991.</P>
              <P>(c) Any transaction approved by the Maritime Administrator prior to January 1, 1989, or any transaction that did not require such approval prior to that date, shall continue to be lawful.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 232</EAR>
          <HD SOURCE="HED">PART 232—UNIFORM FINANCIAL REPORTING REQUIREMENTS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>232.1</SECTNO>
            <SUBJECT>Purpose and applicability.</SUBJECT>
            <SECTNO>232.2</SECTNO>
            <SUBJECT>General instructions.</SUBJECT>
            <SECTNO>232.2</SECTNO>
            <SUBJECT>(a)Use of Generally Accepted Accounting Principles</SUBJECT>
            <FP SOURCE="FP1-2">(b)Need to Conform Accounting Information</FP>
            <FP SOURCE="FP1-2">(c)Reconciliation of Financial Reports</FP>
            <FP SOURCE="FP1-2">(d)Submission of Questions</FP>
            <FP SOURCE="FP1-2">(e)Effective Date</FP>
            <SECTNO>232.3</SECTNO>
            <SUBJECT>Chart of accounts.</SUBJECT>
            <SUBJGRP>
              <HD SOURCE="HED">Balance Sheet</HD>
              <SECTNO>232.4</SECTNO>
              <SUBJECT>Balance sheet accounts.</SUBJECT>
              <FP SOURCE="FP1-2">(A)Asset Accounts</FP>
              <FP SOURCE="FP2-2">100Cash</FP>
              <FP SOURCE="FP2-2">120Marketable Securities</FP>
              <FP SOURCE="FP2-2">140Notes Receivable</FP>
              <FP SOURCE="FP2-2">150Accounts Receivable</FP>
              <FP SOURCE="FP2-2">160Allowance for Bad Debts</FP>
              <FP SOURCE="FP2-2">170Other Current Assets</FP>
              <FP SOURCE="FP2-2">300Restricted Funds</FP>
              <FP SOURCE="FP2-2">310Investments</FP>
              <FP SOURCE="FP2-2">330Property and Equipment</FP>
              <FP SOURCE="FP2-2">360Deferred Charges</FP>
              <FP SOURCE="FP2-2">380Other Assets</FP>
              <FP SOURCE="FP2-2">390Intangible Assets</FP>
              <FP SOURCE="FP1-2">(B)Liability Accounts</FP>
              <FP SOURCE="FP2-2">400Notes Payable and Current Portion of Long-Term Debt</FP>
              <FP SOURCE="FP2-2">420Accounts Payable</FP>
              <FP SOURCE="FP2-2">440Accrued Liabilities</FP>
              <FP SOURCE="FP2-2">450Other Current Liabilities</FP>
              <FP SOURCE="FP2-2">470Advance Payments and Deposits</FP>
              <FP SOURCE="FP2-2">510Long-Term Debt</FP>
              <FP SOURCE="FP2-2">530Other Liabilities</FP>
              <FP SOURCE="FP2-2">560Deferred Credits</FP>
              <FP SOURCE="FP1-2">(C)Equity Accounts</FP>
              <FP SOURCE="FP2-2">570Invested Capital</FP>
              <FP SOURCE="FP2-2">580Treasury Stock</FP>
              <FP SOURCE="FP2-2">590Retained Earnings</FP>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Income Statement</HD>
              <SECTNO>232.5</SECTNO>
              <SUBJECT>Income statement accounts.</SUBJECT>
              <FP SOURCE="FP1-2">(D)Revenue Accounts</FP>
              <FP SOURCE="FP2-2">600Vessel Revenue</FP>
              <FP SOURCE="FP2-2">640Operating-Differential Subsidy</FP>
              <FP SOURCE="FP2-2">650Other Shipping Operations Revenue</FP>
              <FP SOURCE="FP2-2">670Other Revenue</FP>
              <FP SOURCE="FP1-2">(E)Expense Accounts</FP>
              <FP SOURCE="FP2-2">700Vessel Operating Expense</FP>
              <FP SOURCE="FP2-2">750Vessel Port Call Expense</FP>
              <FP SOURCE="FP2-2">760Cargo Handling Expense</FP>
              <FP SOURCE="FP2-2">800Inactive Vessel Expense</FP>
              <FP SOURCE="FP2-2">860Other Shipping Operations Expense</FP>
              <FP SOURCE="FP2-2">900General and Administrative Expenses</FP>
              <FP SOURCE="FP2-2">940Depreciation and Amortization Expense</FP>
              <FP SOURCE="FP2-2">950Other Expense</FP>
              <FP SOURCE="FP2-2">960Interest Expense</FP>
              <FP SOURCE="FP2-2">970Income Taxes</FP>
              <FP SOURCE="FP2-2">990Cumulative Effect of Change in Accounting Policy</FP>
              <FP SOURCE="FP2-2">995Income or Loss from Extraordinary Items Net of Taxes</FP>
              <SECTNO>232.6</SECTNO>
              <SUBJECT>Financial report filing requirement.</SUBJECT>
            </SUBJGRP>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Section 204(b), Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1114(b)); 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>48 FR 30122, June 30, 1983, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 232.1</SECTNO>
            <SUBJECT>Purpose and applicability.</SUBJECT>
            <P>(a) <E T="03">Purpose.</E> The purpose of this regulation is to establish uniform reporting requirements for the preparation of financial reports and submissions of information to the Maritime Administration. The Maritime Administration will, as necessary, issue clarifying instructions to those subject to these reporting requirements to assist in their interpretation and application. The uniform reporting requirements consist of:</P>
            <P>(1) A chart of accounts defined in this regulation.</P>
            <P>(2) Standard financial report formats, set forth in Form MA-172 (Revised).</P>
            <P>(b) <E T="03">Applicability.</E> This regulation is application to all participants in financial assistant programs administered by the Maritime Administration, U.S. Department of Transportation, that are required to file periodic financial reports with that agency.</P>
            <CITA>[48 FR 30122, June 30, 1983, as amended at 58 FR 62043, Nov. 24, 1993]</CITA>
          </SECTION>
          <SECTION>
            <PRTPAGE P="53"/>
            <SECTNO>§ 232.2</SECTNO>
            <SUBJECT>General instructions.</SUBJECT>
            <P>(a) <E T="03">Use of generally accepted accounting principles.</E> All contractors shall conform their accounting policies to generally accepted accounting principles (promulgated by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants).</P>
            <P>(b) <E T="03">Need to conform accounting information.</E> All contractors may continue to use their current accounting system, if the system provides a basis for the preparation of reports in the prescribed formats and is consistent with generally accepted accounting principles.</P>
            <P>(c) <E T="03">Reconciliation of financial reports.</E> When a program participant issues certified financial statements following accounting policies different from those followed for the financial statement filed with the Maritime Administration (such as reports filed with the Securities and Exchange Commission, public service commissions or other regulatory agencies, or reports using other acceptable accounting methods differing from methods used for this regulation's purposes), the program participant shall clearly set forth the nature and amount of each adjustment necessary to reconcile the published statements with those filed with the Maritime Administration.</P>
            <P>(d) <E T="03">Submission of questions.</E> (1) A contractor may submit in writing any question involving the interpretation of any provision of this part for consideration and decision to the Director, Office of Financial Approvals, Maritime Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Appeals from such interpretation will be in accordance with the interpretation letter.</P>
            <P>(2) A contractor who has a question of financial accounting or reporting procedure pending before the Maritime Administration at the time a financial report is due shall file the report in accordance with established scheduled dates. The contractor shall include in the report a footnote disclosure that adequately describes the question pending, the manner of presentation in the report, and the relative impact on the balance sheet and income statement, respectively.</P>
            <P>(e) <E T="03">Effective Date.</E> This regulation is effective as of December 27, 1993 and its requirements are mandatory for financial reports for accounting periods ending on or after December 31, 1993.</P>
            <CITA>[48 FR 30122, June 30, 1983, as amended at 58 FR 62043, Nov. 24, 1993]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 232.3</SECTNO>
            <SUBJECT>Chart of accounts.</SUBJECT>
            <P>(a) <E T="03">Purpose of accounts.</E> A contractor shall use this chart of accounts as a guide for preparing the financial statements and for other required financial reports required to be submitted to the Maritime Administration. However, whenever there is a conflict between the meaning of any term used in the Chart of Accounts in this part 232 and that stated in any revision to generally accepted accounting principles, the meaning of the latter shall control and shall be followed.</P>
            <P>(b) <E T="03">Account numbers.</E> Contractors are not required to use these account numbers or titles for their internal accounting.</P>
            <APPRO>(Approved by the Office of Management and Budget under control number 2133-0005)</APPRO>
            <CITA>[48 FR 30122, June 30, 1983, as amended at 58 FR 62044, Nov. 24, 1993]</CITA>
          </SECTION>
          <SUBJGRP>
            <HD SOURCE="HED">Balance Sheet</HD>
            <SECTION>
              <SECTNO>§ 232.4</SECTNO>
              <SUBJECT>Balance sheet accounts.</SUBJECT>
              <P>(a) <E T="03">Accounts defined.</E> Each account is identified by an account number and an account title, followed by a text describing the accounting information to be included in that account. Where considered necessary, accounting procedures are also included to explain how the contractor shall disclose information for reporting purposes.</P>
              <P>(b) <E T="03">Purpose of balance sheet accounts.</E> The balance sheet accounts are intended to disclose the financial condition of the contractor as of a given date.</P>
              <P>(A) <E T="03">Asset Accounts.</E>
              </P>
              <P>
                <E T="03">(1) 100Cash.</E>
              </P>

              <P>(i) This account shall include the amount of current funds available on demand in the hands of financial officers or deposited in banks or trust companies, including cash in transit <PRTPAGE P="54"/>for which agents or others have received credit. Cash appropriated or otherwise restricted for any purpose shall be included in Account 300, “Restricted Funds.”</P>
              <P>(ii) Compensating balances included in this account shall be disclosed by appropriate footnote.</P>
              <P>
                <E T="03">(2) 120Marketable Securities.</E>
              </P>
              <P>(i) This account shall include securities and other temporary investments which are available for general purposes of the business. In no case shall securities of the reporting contractor or of a related party be included in this account. Separate subaccounts may be used to account for discounts and premiums on marketable securities.</P>
              <P>(ii) For financial reporting, the lower of aggregate cost or market value at the balance sheet date shall be used to value securities included in this account.</P>
              <P>
                <E T="03">(3) 140Notes Receivable.</E>
              </P>
              <P>(i) This account shall include the amount of all obligations in the form of short-term notes receivable or other evidences (except interest coupons) of money receivable and due on demand or within one year from date of issue.</P>
              <P>(ii) Separate subaccounts shall be used to segregate notes receivable from related parties.</P>
              <P>
                <E T="03">(4) 150Accounts Receivable.</E>
              </P>
              <P>(i) This account shall include trade or traffic receivables and claims receivable from insurance underwriters and other miscellaneous receivables not otherwise provided for in other accounts. Accrued accounts receivable for interest, dividends, rents, royalties, charters and other unmatured receivables of a current nature shall be reported in this account, except those accrued amounts which are required to be deposited to a restricted fund.</P>
              <P>(ii) Separate subaccounts shall be used to segregate trade or traffic receivables, claims receivables and miscellaneous receivables. Receivables arising from transactions with related parties shall also be segregated.</P>
              <P>(iii) This account shall also be used to report construction-differential subsidy (CDS) and operating-differential subsidy (ODS) estimated to have accrued to the contractor and which remain unpaid as of the balance sheet date.</P>
              <P>(iv) Separate subaccounts shall be maintained by contract number and, under each contract, identified by year of termination and by category of subsidy as applicable, e.g., for CDS categories may include design and inspection costs; and for ODS categories may include wages, maintenance and repair, and any other category for which the contractor receives an operating subsidy.</P>
              <P>
                <E T="03">(5) 160Allowance for Bad Debts.</E>
              </P>
              <P>This account shall be credited at the close of each accounting period for estimated uncollectible notes and accounts.</P>
              <P>
                <E T="03">(6) 170Other Current Assets.</E>
              </P>
              <P>(i) Inventories, prepaid expenses and other items that are expected to be used or consumed within 12 months of purchase or acquisition shall be reported in this account.</P>
              <P>(ii) Acquisition of similar items that will not be used or consumed within one year should be reported as part of account 360, Other Assets.</P>
              <P>(iii) For Financial Report purposes, this account shall be used to record the contra entries of accrued deposits in account 300 Restricted Funds.</P>
              <P>
                <E T="03">(7) 300Restricted Funds.</E>
              </P>
              <P>(i) This account shall include the amount of cash and securities (at cost) deposited to any restricted fund, including but not limited to Title XI Reserve or Restricted Fund, Capital Construction Fund, Construction Reserve Fund, Title XI Escrow Fund, Title XI Construction Fund, Drilling Rig Reserve Fund, Insurance Fund, Debt Retirement Fund, special and guarantee deposits.</P>
              <P>(ii) For each fund established, subsidiary accounts shall be used to separately account for cash or securities deposited to the fund. At the close of each accounting period accrual entries shall be made to account for earned but undeposited investment income.</P>
              <P>(iii) Compensating balances under an agreement which legally restricts the use of such funds and constitutes support for borrowing arrangements shall be included in this account.</P>

              <P>(iv) Deposits required to be made into any Restricted Fund are to be included in the column “Accrued for Deposit”—appearing in Schedule 211. The contra <PRTPAGE P="55"/>entry for the accrual shall be credited to account 170 Other Current Assets.</P>
              <P>
                <E T="03">(8) 310Investments.</E>
              </P>
              <P>(i) This account shall include amounts of investment instruments intended to be held more than one year and includes securities of related parties, noncurrent notes receivable and noncurrent accounts receivable, both from related parties and others, cash value of life insurance policies and other investments. Noncurrent marketable securities shall be carried at the lower of aggregate cost or market value at the balance sheet date.</P>
              <P>(ii) Separate subaccounts shall be maintained for the various investments, including those resulting from related party transactions.</P>
              <P>(iii) For financial reporting purposes, the lower of cost or market value at the close of business on the balance sheet date will be used to value the securities included in the account except as noted below.</P>
              <P>(iv) Investments in related parties must be reported using the equity or consolidated basis of accounting as adopted by the Financial Accounting Standards Board.</P>
              <P>
                <E T="03">(9) 330Property and Equipment.</E>
              </P>
              <P>(i) This account shall include the cost of acquisition or construction and related capitalizable cost, including additions and betterments and all other associated cost necessary to place the respective property and equipment in acceptable condition for its intended use. This account shall also include the capitalized amount of financing leases, computed in accordance with generally accepted accounting principles, as prescribed by the Securities and Exchange Commission and the Financial Accounting Standard Board.</P>
              <P>(ii) Subaccounts shall be maintained by type and category of property and equipment such as, but not limited to, the following: (A) Floating equipment, including self-propelled vessels for transporting cargo or passengers in U.S. foreign or worldwide foreign commerce, tugs and barges, drilling platforms used in offshore operations, fishing and associated service vessels, service vessels used in conjunction with off-shore drilling platforms and deep-water mining operations, lighters primarily used to transport cargo within port areas and river systems or carried aboard mother vessels—i.e., LASH and SEABEE lighters and barges, other floating equipment ancillary to the operator's primary vessel operations; (B) containers and flat racks; (C) chassis and trailer equipment; (D) terminal property and cargo handling equipment; (E) other property and equipment; (F) leaseholds, leasehold improvements and Capital Leases; and (G) construction work-in-progress (to provide information by project or by type of capitalized asset cost category). For each asset account within account 330 a separate depreciation or amortization accumulation account must be established except for work-in-progress accounts.</P>
              <P>
                <E T="03">(10) 360Deferred Charges</E>.</P>
              <P>(i) This account shall be used to report expenses, the payment for which the contractor has become liable currently, but which will not be charged to income within one year of the balance sheet date.</P>
              <P>(ii) Separate subaccounts shall be maintained to identify the different categories of expense included in this account. These subaccounts may include such items as prepaid insurance; the expense of issuing long-term debt and for absorption of discounts on the stated value of the debt instruments; organization expenses; deferred prepayments and other deferred charges.</P>
              <P>(iii) Separate subaccounts shall be maintained for amortization of the various deferred charges included in this account.</P>
              <P>
                <E T="03">(11) 380Other Assets.</E>
              </P>

              <P>All assets, not otherwise provided for above, shall be reported in this account. Separate subaccounts shall be maintained for the various types of assets, including notes and accounts receivable which are not due in the normal course of business within one year of the balance sheet date. Each type of asset shall be further segregated to disclose amounts due from officers and employees of the reporting contractor or operator, officers and employees of related parties, related parties themselves, allowance for the trade in of vessels to the Maritime Administration (where the allowance is to be applied by the agency on behalf of the contractor toward progress payments on <PRTPAGE P="56"/>new construction) and other assets not otherwise accounted for as miscellaneous assets.</P>
              <P>
                <E T="03">(12) 390Intangible Assets</E>.</P>
              <P>(i) This account shall be used to report the amount of goodwill attributed to the cost of acquiring a business or segment of a business from an unrelated party, as well as the cost of acquiring by purchase, development or other means such intangible assets as patents, copyrights, trade names, operating rights, and similar assets.</P>
              <P>(ii) The contractor shall maintain separate subaccounts for the identified intangible assets, including subaccounts to identify their respective amortization.</P>
              <P>
                <E T="03">(B) Liability Accounts</E>.</P>
              <P>
                <E T="03">(1) 400Notes Payable and Current Portion of Long-Term Debt</E>.</P>
              <P>(i) The amount reported for this account shall include the face value of notes, drafts and other evidences of indebtedness issued by the contractor which are payable on demand or within one year of the balance sheet date.</P>
              <P>(ii) Separate subaccounts shall be used to identify different groups of creditors, e.g., banks, insurance companies, officers and employees, related parties and all other creditors.</P>
              <P>(iii) The amount of capitalized lease liability maturing during the twelve months following the balance sheet date shall also be reported in this account. A record shall be maintained for each lease agreement, with a description of the type of equipment under lease.</P>
              <P>(iv) This account shall not include obligations due within one year which the contractor intends to refinance on a long-term basis or which are payable from restricted funds. Long-term refinancing of short-term obligations means replacement with long-term obligations or equity securities or renewal, extension, or replacement with short-term obligations for an uninterrupted period extending beyond one year from the balance sheet date. Such short-term obligations are to be recorded in account 510, Long-term Debt.</P>
              <P>
                <E T="03">(2) 420Accounts Payable</E>.</P>
              <P>(i) The amount reported for this account shall include accounts payable—trade; accounts payable—traffic; pension and welfare funds; accounts payable—Maritime Administration; and other accounts payable.</P>
              <P>(ii) Sufficient information shall be maintained to identify individual creditors and the general categories or classification of the liabilities.</P>
              <P>(iii) Debts of individual creditors not incurred in the normal course of business shall be identified by group, e.g., officers and employees, affiliated companies, officers and employees of an affiliated company, and other appropriate groupings of creditors not otherwise affiliated in any way with the contractor.</P>
              <P>
                <E T="03">(3) 440Accrued Liabilities</E>.</P>
              <P>(i) This account shall be used to report the amount of accrued taxes, accrued operating expenses and other accrued liabilities arising in the regular course of business.</P>
              <P>(ii) Subaccounts shall be maintained for each category of liability.</P>
              <P>
                <E T="03">(4) 450Other Current Liabilities</E>.</P>
              <P>(i) This account shall include all current liabilities for which no other account has been provided.</P>
              <P>(ii) Subaccounts shall be maintained to account separately for each class of current liabilities that arise from transactions with officers or employees, affiliated companies and officers or employees of affiliated companies, and must be readily identifiable to facilitate financial reporting requirements.</P>
              <P>
                <E T="03">(5) 470Advance Payments and Deposits</E>.</P>
              <P>(i) This account shall be used to report the balance of collections from customers for services not yet provided by the contractor.</P>
              <P>(ii) Sufficient accounting information shall be maintained to readily disclose collections from related parties.</P>
              <P>
                <E T="03">(6) 510Long-Term Debt</E>.</P>
              <P>(i) This account shall be used to report the noncurrent portion of long-term debt, including mortgage notes payable to the Maritime Administration, U.S. Government insured or guaranteed debt obligations issued under Title XI of the Act, and the face amount of bonds, debentures and other long-term debt not provided for in other accounts.</P>

              <P>(ii) Subaccounts shall be maintained to disclose unsecured and secured debt by creditor and by secured asset.<PRTPAGE P="57"/>
              </P>
              <P>(iii) This account shall also include the balance of the long-term portion of capitalized lease liabilities. Reporting shall be by lease agreement and type of asset leased.</P>
              <P>(iv) This account shall also include obligations due within one year which are expected to be refinanced on a long-term basis in accordance with the discussion of Account 400.</P>
              <P>(v) Separate subaccounts shall be maintained to record the premiums for each class of funded debt (which shall be amortized over the respective lives of the securities by credit to Account 670, Other Revenue).</P>
              <P>
                <E T="03">(7) 530Other Liabilities.</E>
              </P>
              <P>(i) This account shall be used to report the balance of all other liabilities maturing after one year from the balance sheet date and for which no other account has been specifically provided.</P>
              <P>(ii) Subsidiary accounts shall be maintained for each category or type of liability and accounted for by debtor.</P>
              <P>(iii) Reporting of balances outstanding shall show separately amounts due to officers and employees, affiliated companies and officers and employees of affiliated companies.</P>
              <P>
                <E T="03">(8) 560Deferred Credits.</E>
              </P>
              <P>This account shall be used to report the amount of accumulated deferred income taxes, income or credits for which no other account is specifically provided.</P>
              <P>
                <E T="03">(C) Equity Accounts.</E>
              </P>
              <P>
                <E T="03">(1) 570Invested Capital.</E>
              </P>
              <P>This account shall be used to report the amount of capital contribution by an individual in a proprietary company, by partners of a partnership, and by stockholders of a corporation for the par or stated value of the capital stock outstanding and additional paid-in capital.</P>
              <P>
                <E T="03">(2) 580Treasury Stock.</E>
              </P>
              <P>This account shall be used to report the cost to the contractor of its stock that has been reacquired.</P>
              <P>
                <E T="03">(3) 590Retained Earnings.</E>
              </P>
              <P>(i) This account shall be used to report the balance of restricted and unrestricted retained earnings for an incorporated business entity. Subsidiary accounts shall be used for each class of restricted earnings.</P>
              <P>(ii) Partnerships should make appropriate changes of titles to account for partners accounts.</P>
              <P>(iii) For purposes of meeting the Maritime Administration's Dividend Policy for Operators Receiving ODS (46 CFR part 283), accounting information for unrestricted retained earnings shall be made available to show the income or loss taken into retained earnings, dividends and other distributions paid, and the current balance of unrestricted retained earnings available for distribution.</P>
              <CITA>[48 FR 30122, June 30, 1983, as amended at 58 FR 62044, Nov. 24, 1993; 58 FR 64798, Dec. 9, 1993]</CITA>
            </SECTION>
          </SUBJGRP>
          <SUBJGRP>
            <HD SOURCE="HED">Income Statement</HD>
            <SECTION>
              <SECTNO>§ 232.5</SECTNO>
              <SUBJECT>Income Statement Accounts.</SUBJECT>
              <P>(a) <E T="03">Accounts Defined.</E> Each account shall be identified by an account number and an account title followed by a text describing the accounting information to be included in that account.</P>
              <P>(b) <E T="03">Purpose of Income and Expense Accounts.</E> The income and expense accounts shall show for each reporting period the amount of money the contractor is entitled to receive for services rendered; the income accrued from investments in securities and property; accrued expenses; and income and expense attributable to extraordinary items.</P>
              <P>(<E T="03">D</E>) <E T="03">Revenue Accounts.</E>
              </P>
              <P>
                <E T="03">(1) 600Vessel Revenue.</E>
              </P>
              <P>(i) This account shall be used to report revenue (including surcharges) from operations. As used here, vessel refers to any asset that qualifies for obligation guarantees pursuant to regulations issued under Title XI of the Act (46 CFR part 298).</P>

              <P>(ii) For contractors who operate vessels in the U.S. foreign commerce with a construction or operating-differential subsidy agreement (CDSA or ODSA), operating revenue attributed to such vessels shall be separately accounted for to report the following: Freight-foreign, freight-coastwise and intercoastal; passenger-foreign, passenger-coastwide and intercoastal; charter revenue; and other voyage revenue. Contractors with an ODSA shall further describe freight and passenger revenue—foreign (including surcharges), <PRTPAGE P="58"/>U.S. foreign commerce revenue outbound and foreign commerce revenue (transportation between foreign ports). Revenue shall be accounted for to facilitate reporting the source of revenue by trade route or service area.</P>
              <P>(iii) All other contractors shall report vessel revenue by category or class, or by operating segment or division if different business segments or operating divisions produce vessel revenue.</P>
              <P>(iv) Except as otherwise provided in paragraph <E T="03">(D)(1)</E>(i) of this section, vessel revenue shall be accounted for following generally accepted accounting principles for the segment of the maritime industry of which the contractor is a part and shall be applied consistently between reporting periods.</P>
              <P>
                <E T="03">(2) 640Operating-Differential Subsidy.</E>
              </P>
              <P>(i) This account shall be used to report the revenue accrued under provisions of the ODSA.</P>
              <P>(ii) Subsidiary accounts shall be used to account for the amount of subsidy accrued by expense classifications to include: Wages of officers and crew; subsistence of officers and crew; maintenance, repairs and upkeep not compensated by insurance; hull and machinery insurance premiums; protection and indemnity insurance premiums; protection and indemnity insurance; deductible expense attributed to illness or injury of crew members; and other expense categories as may be specified in the ODSA.</P>
              <P>(iii) Records shall be maintained by vessel for each trade route or service area in which a vessel subject to an ODSA operates.</P>
              <P>(iv) If ODS is accrued at substantially different rates developed by the contractor applicable to any year in which final rates have not been agreed to, the difference between the ODS accruals based on billing rates established by MARAD and the ODS accruals based on the contractor's rates shall be disclosed in appropriate footnotes to the balance sheet and to the income statement.</P>
              <P>
                <E T="03">(3) 650Other Shipping Operations Revenue.</E>
              </P>
              <P>This account shall be used to report revenue earned from shipping activities other than vessel operations. Examples are revenue from pooling agreements, terminal services provided to others, and cargo handling services performed for others; cargo equipment rentals, and repairs to cargo equipment belonging to others; agency fees, commissions and brokerage fees earned.</P>
              <P>
                <E T="03">(4) 670Other Revenue.</E>
              </P>
              <P>This account shall be used to report revenue from the following sources: Interest bearing securities, dividends from capital stock, gains from the sale of assets not accounted for under the provisions prescribed for account 995, amortization of premium on funded debt, income or loss from subsidiaries, and other revenue not otherwise provided for, including nonshipping operations revenue.</P>
              <P>
                <E T="03">(E) Expense Accounts.</E>
              </P>
              <P>
                <E T="03">(1) 700Vessel Operating Expense.</E>
              </P>
              <P>(i) This account shall be used to report expenses of vessel operations of any kind. As used here, vessel has the same meaning as in paragraph (D)(1)(i) of this section.</P>

              <P>(ii) For contractors with an ODSA who operate vessels subject to such an agreement in the U.S.-foreign commerce or worldwide foreign commerce, vessel expense shall be recorded by category as follows: Salaries and wages of officers and unlicensed crew, including relief crews and others regularly employed aboard the vessel; fringe benefits, such as pension and welfare, vacation payments to unions on behalf of the officers, crew and others, accrued payroll taxes; consumable stores, supplies and equipment, sales taxes, delivery and inspection charges; vessel maintenance and repair expense, including laundry service, inspection services, cost of maintaining expendable equipment and other costs not recoverable from insurance which are integral parts of vessels (including the purchase of permanent equipment and spares required by the classification societies in the United States and its territories and possessions); hull and machinery insurance costs, including premium expense, deductibles which have been incurred or paid, protection and indemnity insurance, including premium expense, personal injury and illness deductibles which have been incurred or paid, and second seaman's insurance premiums; premiums for other marine risk insurance involving the <PRTPAGE P="59"/>vessel and not properly chargeable to hull and machinery insurance or to protection and indemnity insurance accounts; vessel fuel and incidental costs; charter hire expenses, including time, trip, short-term and long-term bareboat charter hire; and other vessel expenses not properly chargeable to other accounts described herein which are incidental to the operation of vessels.</P>
              <P>(iii) For contractors who own or operate vessels not subject to an ODSA, vessel expense shall include all expenses directly attributable to the operation of vessels. Such expense shall include such expense classifications as generally in use by the segment of the industry with which the contractor is identified. To the extent applicable, the expense classifications mentioned in the preceding paragraph (ii) shall be used.</P>
              <P>(iv) Contractors operating vessels to transport cargo or passengers shall maintain appropriate vessel expense records for the purpose of filing vessel operating reports with the Maritime Administration.</P>
              <P>
                <E T="03">(2) 750Vessel Port Call Expense.</E>
              </P>
              <P>(i) This account shall be used to report the expenses of a vessel at each port of call. Port call expenses may include: Charges for wharfage and dockage of the vessel, pilotage, entry dues and fees, port dues and taxes; anchor dues; canal tolls; launch hire, and tug hire; dispatch and husbanding fees of agents; and other port and terminal expenses.</P>
              <P>(ii) Port charges attributable to the vessel's cargo or passengers are not to be reported in this account. Such expenses shall be reported in Account 760, Cargo Handling Expense.</P>
              <P>
                <E T="03">(3) 760Cargo Handling Expense.</E>
              </P>
              <P>This account shall be used to report all expenses directly attributable to the handling of cargo or passengers for a fee. This account shall include: Cost of preparing a vessel to receive cargo; cost of loading and discharging of the vessel's cargo, including stevedoring and equipment and service charges of stevedoring contractors; cost of transporting cargo from the point of delivery into the possession of the contractor to the loading port and from the discharge port to the point of delivery stipulated by the freight agreement if different from the port of discharge; brokerage expense, including commissions paid brokers' agencies for the procurement of passengers or freight; cargo loading plans, demurrage, costs incidental to receiving, delivering and warehousing at freight station facilities; and other charges for cargo services performed by others.</P>
              <P>
                <E T="03">(4) 800Inactive Vessel Expense.</E>
              </P>
              <P>(i) This account shall be used to report all expenses incurred during and directly incident to inactive periods of vessels.</P>
              <P>(ii) Expenses in this account include: Wages of officers and crew; contributions to crew fringe benefit plans; accrued payroll taxes; subsistence cost of personnel assigned to inactive vessels; consumables other than subsistence items; vessel maintenance expense; vessel repairs; insurance expense; charter hire cost; wharfage and dockage; port expense; and miscellaneous expenses.</P>
              <P>
                <E T="03">(5) 860Other Shipping Operations Expense.</E>
              </P>
              <P>This account shall be used to report cost of container leasing, maintenance and repair cost and costs of shipping related activities in which the contractor engages to support vessels, such as terminal operations, cargo equipment, fleet operations, cargo pooling agreements, container loading and other activities that are not accounted for elsewhere and that are ancillary to the contractor's vessel operations.</P>
              <P>
                <E T="03">(6) 900General and Administrative Expenses.</E>
              </P>
              <P>(i) This account shall be used to report the administrative and general expenses incurred in the operation of the business.</P>

              <P>(ii) This account shall include: Compensation of corporate officers, directors, administrative and service employees; fringe benefits of general and administrative personnel; legal fees; accounting and auditing fees; other professional fees; office and storage expense; utilities; communications expense; data processing expense; dues; subscriptions; entertainment; travel expense; insurance expense; maintenance and repair expense for office facilities; fixtures and equipment; fees <PRTPAGE P="60"/>and commissions paid to managing agents; advertising expense; foreign currency conversion; and other expenses to enhance the operation of the business.</P>
              <P>
                <E T="03">(7) 940Depreciation and Amortization Expense.</E>
              </P>
              <P>(i) This account shall be maintained by class of assets as accounted for in the property and equipment accounts.</P>
              <P>(ii) Subaccounts shall be grouped by classifications such as: Vessels; terminals; cargo equipment; office furniture and fixtures; and nonshipping assets.</P>
              <P>
                <E T="03">(8) 950Other Expense.</E>
              </P>
              <P>This account is to be used to report expenses not chargeable to any other expense account. Such charges may include: Amortization of deferred charges; taxes other than income; debt discount and expense; nonshipping operations expense; organization and preoperating expense and other miscellaneous deferred charges; as well as doubtful notes and accounts receivable.</P>
              <P>
                <E T="03">(9) 960Interest Expense.</E>
              </P>
              <P>(i) This account shall be used to report all interest expense accrued and charged to income during the period.</P>
              <P>(ii) Subaccounts shall be maintained by debt source/contract to provide information needed to fulfill reporting disclosure requirements.</P>
              <P>
                <E T="03">(10) 970Income Taxes.</E>
              </P>
              <P>(i) This account shall be used to report accrued income tax liability for the current year's operation exclusive of extraordinary items, discontinued operations and the cumulative effect of a change in accounting policy.</P>
              <P>(ii) Sufficient accounting records shall be maintained to meet income and expense allocation requirements that may exist as a result of a Capital Construction Fund Agreement entered into under 46 CFR parts 390 and 391, pursuant to provisions of Title VI of the Act.</P>
              <P>
                <E T="03">(11) 990Cumulative Effect of Change in Accounting Policy.</E>
              </P>
              <P>(i) This account shall be used to report the cumulative effect of a change in accounting policy or a change required under generally accepted accounting principles.</P>
              <P>(ii) A footnote shall be added to the income statement explaining the substance of the old and new accounting methods and the reason supporting the change in accounting policy.</P>
              <P>(iii) The amount reported in this account shall be net of all taxes.</P>
              <P>
                <E T="03">(12) 995Income or Loss from Extraordinary Items Net of Taxes.</E>
              </P>
              <P>(i) Amounts representing gain or loss from extraordinary items, as defined by generally accepted accounting principles customarily applied in the industry of which the contractor is a part, shall be reported in this account. Generally, these transactions would be attributed to insurance proceeds from the total loss of a vessel or catastrophic losses to shore-based facilities, as well as from sales of damaged assets scrapped because of a natural catastrophe, and disposal of assets used primarily in a business segment which is being discontinued.</P>
              <P>(ii) Sufficient records shall be maintained to fully describe and account for all aspects of each item reported in this account, and when a firm commitment is made to dispose of an operating business segment, a provision for anticipated gain or loss to be realized in the subsequent period from disposal of assets and winding down of operations of the discontinued segment shall be taken into income in the year the contractor makes the decision.</P>
              <P>(iii) Amounts in this account must be net of all taxes including Federal income taxes.</P>
              <CITA>[48 FR 30122, June 30, 1983, as amended at 58 FR 62044, Nov. 24, 1993]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 232.6</SECTNO>
              <SUBJECT>Financial report filing requirement.</SUBJECT>

              <P>(a) Reporting Frequency and Due Dates. The contractor shall file a semiannual financial report and an annual financial report, in the format referred to in § 232.1(a)(2) of this part, which MARAD shall make available to the contractor. This Form MA-172 (Revised) shall be prepared in accordance with generally accepted accounting principles and modified to the extent necessary to comply with this regulation. The annual financial report shall be reconciled to the financial statements audited by independent certified public accountants (CPAs) licensed to practice by a state or other political subdivision of the United States, or licensed public accountants <PRTPAGE P="61"/>licensed to practice by regulatory authority or other political subdivision of the United States on or before December 31, 1970. Both the annual and semiannual financial reports shall be due within 120 days after the close of the contractor's annual or semiannual accounting period. If certified (CPA) statements are not available when required, company certified statements are to be submitted within the due dates, and the CPA statements shall be submitted as soon as available. The respondent may, in place of any Schedule(s) contained in the Form MA-172, submit (1) a schedule or schedules from its audited financial statements, or, (2) a computer print-out or schedule, consistent with the instructions provided in the MARAD formats.</P>
              <P>(b) <E T="03">Certification.</E> Annual and semiannual reports shall be certified as shown on the oath contained in the reporting formats prescribed as the MA-172 submission.</P>
              <P>(c) <E T="03">Presumption of confidentiality.</E> MARAD will initially presume that each part of the financial reports or data submitted as prescribed by this Regulation, other than Schedule 101—Identity of Respondent and Schedules 102 and 103, only with respect to the names and titles of directors and principal officers and employees, is privileged or confidential within the meaning of 5 U.S.C. 552(b)(4). In the event of a subsequent request for any portion of the reports or data under 5 U.S.C. 552, the submitter will be notified of such request and given the opportunity to comment. The contractor shall claim confidentiality at that time by memorandum or letter stating the basis, in detail, for such assertion of exemption, including but not limited to statutory and decisional authorities. Those parts not so claimed by the submitter to be confidential will be disclosed, and those parts so claimed will be subject to initial determination by the Freedom of Information Act Officer.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 2133-0005)</APPRO>
            </SECTION>
          </SUBJGRP>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="62"/>
        <HD SOURCE="HED">SUBCHAPTER C—REGULATIONS AFFECTING SUBSIDIZED VESSELS AND OPERATORS</HD>
        <PART>
          <EAR>Pt. 249</EAR>
          <HD SOURCE="HED">PART 249—APPROVAL OF UNDERWRITERS FOR MARINE HULL INSURANCE</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>249.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>249.2</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SECTNO>249.3</SECTNO>
            <SUBJECT>Amounts of insurance.</SUBJECT>
            <SECTNO>249.4</SECTNO>
            <SUBJECT>Eligibility.</SUBJECT>
            <SECTNO>249.5</SECTNO>
            <SUBJECT>Eligibility criteria.</SUBJECT>
            <SECTNO>249.6</SECTNO>
            <SUBJECT>Application procedures.</SUBJECT>
            <SECTNO>249.7</SECTNO>
            <SUBJECT>Approval.</SUBJECT>
            <SECTNO>249.8</SECTNO>
            <SUBJECT>Limitation on risk.</SUBJECT>
            <SECTNO>249.9</SECTNO>
            <SUBJECT>American market participation.</SUBJECT>
            <SECTNO>249.10</SECTNO>
            <SUBJECT>Non-discrimination policy.</SUBJECT>
            <SECTNO>249.11</SECTNO>
            <SUBJECT>Confidentiality.</SUBJECT>
            <SECTNO>249.12</SECTNO>
            <SUBJECT>Waivers.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 204(b), 1109, Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1114(b), 1279b); 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 23119, June 20, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 249.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <P>This part prescribes certain regulations governing the placement of marine hull insurance on vessels built or operated with subsidy or covered by vessel obligation guarantees issued pursuant to Title XI of the Merchant Marine Act, 1936, as amended (Act). (46 U.S.C. 1271-1279)</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.2</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>(a) It is the policy of the Maritime Administration (MARAD) that companies subject to requirements for the placement of marine hull insurance shall be afforded the widest possible opportunity to obtain the necessary coverage, with minimal regulatory constraints, with financially sound underwriters, and that such placement should not create any unnecessary impediments to competitive maritime operations.</P>
            <P>(b) It is also the policy of MARAD to require owners of vessels with ODS or Title XI obligation guarantees to allow the American marine insurance market the opportunity to compete for the marine hull insurance on their vessels before such insurance is placed. Consistent with sound business judgment, owners will be expected to place their insurance with the American market to the maximum extent possible when the rates, terms and conditions offered by American underwriters are competitive with those offered by foreign underwriters.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.3</SECTNO>
            <SUBJECT>Amounts of insurance.</SUBJECT>
            <P>MARAD will inform the owner of each vessel that is subsidized or covered by vessel obligation guarantees, prior to initial placement and at least annually thereafter, of the minimum amount of insurance required to be placed on the vessel.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.4</SECTNO>
            <SUBJECT>Eligibility.</SUBJECT>
            <P>
              <E T="03">In General.</E> All required marine hull insurance must be placed with:</P>
            <P>(a) Underwriters licensed to do business in one or more of the United States;</P>
            <P>(b) Underwriters at Lloyds;</P>
            <P>(c) Member companies of the Institute of London Underwriters; or</P>
            <P>(d) Other underwriters specifically approved in advance by the Maritime Administration.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.5</SECTNO>
            <SUBJECT>Eligibility criteria.</SUBJECT>
            <P>(a) <E T="03">U.S. Underwriters.</E> Underwriters licensed to do business in a state are eligible to participate without further consideration, provided they have at least a B security rating, as published in the latest edition of A.M. Best's Insurance Reports, and the amount of insurance does not exceed the limitation on risk prescribed in § 249.8.</P>
            <P>(b) <E T="03">Foreign Underwriters.</E> (1) Underwriters at Lloyds are eligible to participate without further consideration.</P>

            <P>(2) Underwriters which are members of the Institute of London Underwriters (ILU) (i.e., <E T="03">member</E> companies, not parents or affiliates of the member companies) are eligible to participate without further consideration, provided that the ILU member company actually underwriting the risk maintains a trust fund in the United States for the benefit of its U.S. policyholders in an amount at least equal to the minimum provided in § 249.7(d), and the <PRTPAGE P="63"/>amount insured does not exceed the limitation on risk prescribed in § 249.8. Parent companies or affiliates of the ILU member companies are treated as other foreign underwriters under subsection (c) of this section.</P>
            <P>MARAD reserves the right to review this eligibility at any time.</P>
            <P>(c) <E T="03">Other Foreign Underwriters.</E> Foreign underwriters, other than those specified in paragraphs (b) (1) and (2) of this section, may also be eligible to participate in the writing of marine hull insurance on MARAD program vessels, if approved to do so in accordance with the procedures contained in §§ 249.6 and 249.7.</P>
            <P>(d) <E T="03">Documentation of eligibility.</E> It shall be the responsibility of the vessel owner and its broker to ensure that the requirements of this section are met, and they should be able to provide MARAD, upon request, with documentation to that effect.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.6</SECTNO>
            <SUBJECT>Application procedures.</SUBJECT>
            <P>(a) MARAD may grant specific approval for underwriters described in § 249.5(c) to participate in the writing of marine hull insurance on MARAD program vessels, only in advance of any actual placement.</P>
            <P>(b) Only those foreign underwriters who have obtained a high rating (A or comparable) from an accepted international rating service may apply, and if approved, such approval will be contingent upon continued maintenance of such rating. MARAD will make available to interested parties the names of any accepted international rating service.</P>
            <P>(c) To seek approval, an applicant shall submit to MARAD:</P>
            <P>(1) Certified financial data for the five previous years in sufficient detail to enable MARAD to assess the financial strength and solvency of the applicant. Normally, this would be the same data which the underwriter must submit to the regulatory agency in its country of domicile. However, MARAD may request additional data if the applicant's submissions are considered inadequate;</P>
            <P>(2) A comprehensive description and English language version of the insurance regulatory regime that is in place in the insurer's country of domicile. (After review, MARAD may contact the foreign national regulatory authorities, as appropriate);</P>
            <P>(3) An affidavit in writing, executed by an agent of the applicant who is a domiciliary of the United States, and supported by appropriate documentation, to demonstrate that there is nothing in either law or practice to preclude a U.S. insurer from obtaining the same access to the applicant's home market as the applicant is seeking to the U.S. market, and</P>
            <P>(4) The details of its reinsurance program, if it wishes to write any risks in excess of five percent of its policyholders' surplus. These details shall be accompanied by a statement that clearly demonstrates the special circumstances and good cause by which MARAD should be persuaded to modify its general policy on limitation of risk described in § 249.8.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.7</SECTNO>
            <SUBJECT>Approval</SUBJECT>
            <P>(a) Approval of the applicant will be based upon an assessment of the applicant's financial condition and solvency, its rating by an accepted international rating service, suitability of the regulatory regime under which the applicant must operate in its home country, and on the principle of reciprocal non-discrimination. MARAD will not approve access to the U.S. hull insurance market, if U.S. insurers are denied similar access to the hull insurance market in the applicant's home country.</P>
            <P>(b) MARAD will publish in the <E T="04">Federal Register</E> each Notice of Application received from foreign underwriters described in § 249.5(c), affording interested persons an opportunity to bring to MARAD's attention any discriminatory laws or practices relating to the placement of marine hull insurance which might exist in the applicant's country of domicile.</P>
            <P>(c) In granting approval, MARAD will consider all materials available to it, and may impose reasonable terms and conditions upon any such approvals granted.</P>

            <P>(d) Upon approval, applicant will be required to establish and maintain for the benefit of its U.S. policyholders a U.S. trust fund in the amount of at least $1.5 million, such amount to be <PRTPAGE P="64"/>reviewed periodically (but not more frequently than annually), and adjusted as appropriate. This requirement may be satisfied by means of an appropriate irrevocable letter of credit.</P>
            <P>(e) All policies, at the time of issuance, shall contain the latest American Institute of Marine Underwriters' forms, or equivalent, as approved by MARAD.</P>
            <P>(f) All policies issued by foreign underwriters shall include New York Suable Clause or Service of Suit (USA) Clause.</P>
            <P>(g)(1) To maintain approval, foreign underwriters, other than those specified in § 249.5(b), shall, in addition to retaining the high rating from an accepted international rating service, file annual financial statements in the same level of detail as required for original approval. Such statements shall be due within 120 days after the close of the underwriter's annual accounting period.</P>
            <P>(2) In addition, a new affidavit concerning the lack of discriminatory laws or practices related to hull insurance in the underwriter's home market, as described in § 249.6(c)(3), shall be filed annually at the same time as the financial statements.</P>
            <P>(h) Since there is no annual reapproval required, foreign underwriters which are approved shall agree to submit additional information, as requested by MARAD, if it has reason to believe there has been a change in the underwriter's financial status or business practices which could affect the quality of its security. Failure to provide such information on a timely basis could result in immediate withdrawal of the authorization to write hull insurance on MARAD program vessels.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.8</SECTNO>
            <SUBJECT>Limitation on risk.</SUBJECT>

            <P>(a) Underwriters may take a line on any single risk in excess of five percent of its Policyholders' Surplus only with the prior approval of MARAD. MARAD will grant such approval to certain underwriters only in special circumstances, and for good cause shown. The standard to be applied in such cases shall be that the underwriter's <E T="03">net</E> retention on any single risk may not exceed five percent of its Policyholders' Surplus, the gross amount of the risk may not exceed its surplus, and the reinsurers must have a high (A or comparable) rating from an accepted international rating service.</P>
            <P>(b) The vessel owner shall also provide MARAD with a mortgagee's interest policy in an amount equal to the difference between the net retention and the amount of the line taken by such underwriter.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.9</SECTNO>
            <SUBJECT>American market participation.</SUBJECT>
            <P>(a) Owners of vessels receiving ODS or Title XI vessel obligation guarantees, or their brokers, shall offer to the American marine insurance market the opportunity to compete for the placement of marine hull insurance on each vessel. Consistent with sound business judgment, owners will be expected to place their insurance with the American market to the maximum extent possible when the rates, terms and conditions offered by American underwriters are competitive with those offered by foreign underwriters. MARAD will make available a list of approved American underwriters and their capacities.</P>
            <P>(b) In the event that less than 50 percent of the placement is made with the American marine insurance market, the owners, or their brokers, shall file an affidavit confirming that the risk has been offered to a substantial portion of the American market. The affidavit shall list the American underwriters to which the risk was offered, and such underwriters shall account for at least 50 percent of the approved American market capacity, or 75 percent in the event that more than 75 percent of the risk was placed in foreign markets.</P>
            <P>(c) Failure to comply with (a) or (b), above, may result in MARAD requiring that the risk be reoffered and that the existing placement be modified, as deemed appropriate.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.10</SECTNO>
            <SUBJECT>Non-discrimination policy.</SUBJECT>

            <P>To administer effectively the policy regarding non-discrimination against U.S. insurers in other countries, as described in §§ 249.6(b)(3) and 249.7(a), MARAD seeks the assistance of the American marine insurance industry to <PRTPAGE P="65"/>provide information at the time of publication of Notice of Application described in § 249.7(b) concerning the existence of any discriminatory laws or practices in the marine hull insurance market abroad. Upon receipt of such information, MARAD will take whatever action it deems appropriate.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.11</SECTNO>
            <SUBJECT>Confidentiality.</SUBJECT>
            <P>(a) If the data submitted under this rule contain information that the submitter considers to be commercial or financial information and privileged or confidential, or otherwise exempt from disclosure under the Freedom of Information Act (FOIA) (5 U.S.C. 552), the submitter shall assert a claim of exemption at the time the data are submitted. The claim shall be made in a letter contained in a sealed enveloped marked “Confidential Information,” addressed to the Secretary, Maritime Administration. The submitter shall stamp or mark “confidential” on the top of each page containing information claimed to be confidential.</P>
            <P>(b) In claiming an exemption under FOIA, the submitter must state the basis for such action, including supporting information showing: (1) That the information claimed to be confidential is a trade secret or commercial or financial information in accordance with statutory and decisional authority; and (2) that measures have been taken by the submitter of the information to ensure that the information has not been disclosed or otherwise made available to the public, or, if the information has been disclosed or otherwise becomes available to the public, why such disclosure or availability does not compromise the confidential nature of the information.</P>
            <P>(c) In the event of a subsequent request for any portion of the data under the FOIA, those submissions not so claimed by the submitter will be disclosed, and those so claimed will be subject to the initial determination by the Secretary, Maritime Administration.</P>
            <P>(d) If the Secretary makes a determination unfavorable to the submitter, the submitter will be advised that MARAD will not honor the request for confidentiality at the time of any request for production of information under the FOIA by third parties.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 249.12</SECTNO>
            <SUBJECT>Waivers.</SUBJECT>
            <P>The provision of this part may be waived in writing, for special circumstances and good cause shown, provided the procedures adopted are consistent with the Act and with the intent of these regulations.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 251</EAR>
          <HD SOURCE="HED">PART 251—APPLICATION FOR SUBSIDIES AND OTHER DIRECT FINANCIAL AID</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>251.1</SECTNO>
            <SUBJECT>Applications for construction-differential subsidy under Title V, Merchant Marine Act, 1936, as amended.</SUBJECT>
            <SECTNO>251.11</SECTNO>
            <SUBJECT>Applications under Title VI, Merchant Marine Act, 1936, as amended.</SUBJECT>
            <SECTNO>251.21</SECTNO>
            <SUBJECT>Applications under sections 803, 804, 805 (a) and (d), and 605(b), Merchant Marine Act, 1936.</SUBJECT>
            <SECTNO>251.31</SECTNO>
            <SUBJECT>Charges for processing applications for authorization to transfer ownership of ships built with construction-differential subsidy.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 204, 49 Stat. 1987, as amended; 46 U.S.C. 1114.</P>
          </AUTH>
          <SECTION>
            <SECTNO>§ 251.1</SECTNO>
            <SUBJECT>Applications for construction-differential subsidy under Title V, Merchant Marine Act, 1936, as amended.</SUBJECT>
            <P>(a) Applications under section 501 of the Act for subsidy to aid in the construction of new vessels or the reconstruction of existing vessels, to be operated in the foreign commerce of the United States, shall be filed on form FMB-8 in accordance with the instructions annexed thereto.<SU>1</SU>
              <FTREF/>
            </P>
            <FTNT>
              <P>
                <SU>1</SU> Copies of forms referred to may be obtained on request from the Secretary, Maritime Subsidy Board, Washington, D.C.</P>
            </FTNT>
            <P>(b) Applications for aid in the construction of new vessels to be operated in domestic trade shall be filed on Form VA-9 in accordance with the instructions annexed thereto.<SU>1</SU>
            </P>
            <EXTRACT>
              <HD SOURCE="HD1">Appendix No. 1—Policy</HD>
              <P>1. <E T="03">To the maximum practical extent as determined by the Maritime Subsidy Board</E> applicants for construction-differential subsidy (CDS) under Title V of the Merchant Marine Act of 1936, as amended, shall duplicate designs of ships previously approved by the Board for Subsidized Ship Construction. <PRTPAGE P="66"/>Such duplication contemplates retention of: Hull form; major structure, i.e., shell, transverse bulkheads, decks, girder systems; etc.; machinery horsepower and arrangement; and arrangement of deck house. However the Board will permit modifications such as changes to reefer cargo capacity, deep tankage, and cargo gear in a manner so as not to disrupt the basic configuration of the ship and without sacrificing gains that can be made from group production. New ship designs will be considered from any operator who has already constructed sufficient ships of a given design to have optimized the economy of standardized ship construction, when the applicant feels that a new design is necessary in exceptional cases and justifies this need to the Board. Where the Board concludes contrary to an applicant that a previously developed design can be satisfactorily adapted to requirements of the intended service at a substantial saving compared with building to a new design, invitations to bid shall be issued for both the standard design and the custom design of the owner's preference. Construction-differential subsidy will be based on whichever design requires the least subsidy.</P>
              <P>2. The Board may require such variations from designs of ships previously approved as are necessary to optimize the economic utilization of mechanization and labor saving equipment with the potential of reducing operating-differential subsidy (ODS). Other nonstandard equipment or shipbuilding components shall be eligible for CDS, only if (a) their effect is to decrease the total sum of such CDS and ODS projected over the life of a ship, or (b) when it can be demonstrated with reasonable certainty that the added investment will produce a return to the owner of at least 10 percent per annum after taxes over the life of the investment.</P>
              <P>3. Value engineering provisions will be included in all construction-differential subsidy contracts and construction contracts. Value engineering items considered mandatory by the Board prior to or during the development of the bidding plans and specifications and during the actual ship construction period shall be incorporated in the plans and specifications or incorporated in the ship. If the mandatory items are not acceptable to the owner the difference in cost, as determined by the Board, between the value engineered and the installed item will be borne by the owner. This paragraph shall not be construed (a) as revising the present appeal rights of the shipowner, or (b) as imposing upon the shipbuilding contractor any requirement for employment of a specific number of value engineering personnel.</P>
              <P>4. Subsidy for changes under the construction contract will be allowed only when the net effect of the change will with reasonable certainty (a) comply with the standard in 2 (a) or (b) above, (b) correct a deficiency in design which is clearly essential, or (c) comply with a change in the requirement of a regulatory body which becomes effective after 30 days preceding bid opening. Any changes desired by the owner which do not adversely affect the safe, efficient or economical operation of the ship will be permitted, but without the benefit of subsidy. Subsidy for changes under category 2(b) shall be based on an estimate as to what the work would have cost if it had been included in the bidding specifications.</P>
              <P>5. Post-contract engineering costs incurred by the owner for engineering review and plan approval will be subsidized within a ceiling. The owner's expenses for such engineering and plan approval shall be limited for subsidy purposes to a maximum of 2 percent of the low bid for each of one ship in each contract. This limitation shall apply to liner cargo vessels of the break bulk type with no more than twelve passengers, but including special features such as mechanization, container carrying devices, special cargo handling equipment, refrigeration spaces and special deep tanks, etc. This upper limit shall be adjusted downward to take into account features including, but not limited to, standardized design, successive flights of ships in the same yard, or successive flights of ships in different yards.</P>
              <P>6. Construction-differential subsidy on owner's engineering expenses for inspection when only one ship is being built shall be limited to an amount equal to 1.3 percent of the bid price. For multiple ship construction the amount subsidizable will be 1.3 percent of the contract price per ship plus an additional increment of 0.36 percent for each vessel beyond the first. For example, the subsidizable amount for inspection on a four ship contract would be 1.3 percent plus 1.08 percent (0.36×3) or 2.38 percent times the cost of the each of four ship bid price.</P>
              <P>This limitation shall apply to liner type cargo vessels of the break bulk type with no more than 12 passengers but including special features such as mechanization, container carrying devices, special cargo handling equipment, refrigeration spaces and special deep tanks, etc. This upper limitation shall be adjusted downward to take into account features including, but not limited to, standardized design, or other vessels for the same owner and in the same shipyard.</P>
              <P>7. Interior decorators' fees will be limited to a maximum of $10,000 per contract.</P>

              <P>8. Construction-differential subsidy will not apply to owner furnished equipment. All material or equipment to which construction-differential subsidy shall apply must be included in the plans and specifications upon which the competitive ship construction bids are based or included in authorized changes under contract.<PRTPAGE P="67"/>
              </P>
              <P>9. Notwithstanding any of the foregoing limitations on subsidy the Board will in exceptional cases authorize subsidy or research and development grants for new ship concepts or individual ship features whose economic justification lie in the possibility of future major advances in ship construction or operation and which in the Board's judgment may lead to greater efficiency and economy.</P>
              <HD SOURCE="HD1">Appendix No. 2—Statement of General Policy</HD>
              <P>1. The appropriations available for the payment of construction-differential subsidy by the Maritime Subsidy Board necessarily are limited. Present replacement program schedules for individual operators repeatedly have been revised and extended in recent years in accordance with the operating-differential subsidy contracts. It is possible that further delay will occur in the replacement of some of the vessels required to be replaced pursuant to the existing contractual obligations of those operators under operating-differential subsidy contracts with the Government. These standards are designed to provide better guidance for the operators and the Government in making the judgments necessary in selecting from among competing applications for limited funds. This policy will apply to requests for and allocations of appropriations for fiscal year 1967 and thereafter. It furthermore applies only to awards of financial assistance in the construction of vessels for liner service.</P>
              <P>2. (a) To provide for the optimum development of the American Merchant Marine in number of vessels and in shipping capability, the Board will allocate federal financial assistance for construction or reconstruction of vessels so as to give priority to those proposals which, having met all requirements of Title V, Merchant Marine Act, 1936, will in the Board's opinion utilize such assistance to obtain the greatest shipping capability and productivity possible. In making its determinations under this policy, the Maritime Subsidy Board will take into consideration the following factors:</P>
              <P>(1) Number of vessels proposed for construction by the applicant.</P>
              <P>(2) Cubic and deadweight capacities and speed of the proposed vessels.</P>
              <P>(3) Proposed cargo handling equipment and techniques for transfer of cargo in and out of vessels and to and from inland points. In this connection, the applicant will be required to set forth the estimated rate of loading and of discharge of cargo, as well as the adaptability of the proposed vessel to integrated systems of transportation embracing both ocean and overland transportation.</P>
              <P>(4) Estimated domestic cost of construction.</P>
              <P>(5) Estimated revenues and cost of operation; and with respect to wage cost, the proposed manning schedule on the proposed vessels.</P>
              <P>(6) The applicant's intention to seek operating subsidy and if so, the duration and amount of such subsidy payments.</P>
              <P>The Board will weigh the above factors in such a fashion as will measure the productivity of the vessel (i.e., its carrying capacity, speed, and rate of cargo handling) against the Government's cost of construction and operating aid. The Board will award aid (so far as funds are available) for the construction of those vessels otherwise eligible, as will give the greatest productivity for each dollar of Government aid.</P>
              <P>(b) The Board reserves for determination at a later time standards to be applied in the allocation of federal financial assistance for the construction of vessels to be used in non-liner operations.</P>
              <HD SOURCE="HD1">Appendix No. 3—Construction-Differential Subsidy for Machinery and Electric Plant Spare Parts</HD>
              <P>1. The total cost of machinery and electric plant spare parts (whether shore-based or carried aboard ship), which are in addition to those spare parts required by all cognizant regulatory bodies (including ABS, Coast Guard and the FCC), which shall be eligible for CDS, shall not exceed the amount determined by application of the percentages shown in the Table below:</P>
              <GPOTABLE CDEF="xs30,r50,12" COLS="3" OPTS="L2">
                <TTITLE>2. Table 2—Cost of additional spare parts eligible for CDS</TTITLE>
                <TDESC>[Footnotes at end of table]</TDESC>
                <BOXHD>
                  <CHED H="1">Cost class</CHED>
                  <CHED H="1">Type of equipment covered <SU>2</SU>
                  </CHED>
                  <CHED H="1">Cost of spare parts <SU>1</SU>
                  </CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">12</ENT>
                  <ENT>Gallley, pantry, and utility space equipment</ENT>
                  <ENT>1.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">15</ENT>
                  <ENT>Ventilation and heating</ENT>
                  <ENT>2.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">17</ENT>
                  <ENT>Air-conditioning machinery</ENT>
                  <ENT>3.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">18</ENT>
                  <ENT>Hull piping (engineering)</ENT>
                  <ENT>2.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">19</ENT>
                  <ENT>Cargo oil system</ENT>
                  <ENT>2.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">20</ENT>
                  <ENT>Hull piping (domestic)</ENT>
                  <ENT>2.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">21</ENT>
                  <ENT>Deck machinery</ENT>
                  <ENT>8.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">22</ENT>
                  <ENT>Electric generation and distribution</ENT>
                  <ENT>5.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">23</ENT>
                  <ENT>Electronics</ENT>
                  <ENT>5.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">25</ENT>
                  <ENT>Main engine</ENT>
                  <ENT>3.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">26</ENT>
                  <ENT>Shafting and propellers</ENT>
                  <ENT>6.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">27</ENT>
                  <ENT>Condensers</ENT>
                  <ENT>1.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">28</ENT>
                  <ENT>Boilers</ENT>
                  <ENT>1.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">29</ENT>
                  <ENT>Fuel oil service piping</ENT>
                  <ENT>4.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">30</ENT>
                  <ENT>Steam piping</ENT>
                  <ENT>4.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">31</ENT>
                  <ENT>Feed, condensate, circulating, and drain piping</ENT>
                  <ENT>4.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">32</ENT>
                  <ENT>Lube oil piping</ENT>
                  <ENT>4.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">33</ENT>
                  <ENT>Salt water evaporator system</ENT>
                  <ENT>7.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">34</ENT>
                  <ENT>Feed heaters and other heat exchangers</ENT>
                  <ENT>3.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">35</ENT>
                  <ENT>Pumps</ENT>
                  <ENT>13.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">36</ENT>
                  <ENT>Miscellaneous auxiliaries</ENT>
                  <ENT>7.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">39</ENT>
                  <ENT>Instruments and gauges</ENT>
                  <ENT>15.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">40</ENT>
                  <ENT>Engineers workshop</ENT>
                  <ENT>1.0</ENT>
                </ROW>
                <TNOTE>

                  <SU>1</SU> Expressed as percentage of base cost of the equipment in each cost class.<PRTPAGE P="68"/>
                </TNOTE>
                <TNOTE>
                  <SU>2</SU> Cost of spare anchor, propeller, or tailshaft is not included in this allowance and is handled as a separate Maritime Subsidy Board action.</TNOTE>
              </GPOTABLE>
              <P>3. This regulation shall be implemented in accordance with the following procedures and guidelines:</P>
              <P>(a) The allowance is to be calculated by the Maritime Administration and will be included in the contract price for all new contracts for which CDS is awarded after this regulation becomes effective. For ships under contract on the effective date of this regulation, the regulation shall form the basis for permitting a change under contract for additional spare parts to be subsidized, provided that a request for CDS participation is submitted to the Maritime Administration prior to delivery of the applicable ship.</P>
              <P>(b) The allowance is to be fixed and will not be escalated under the escalation provisions (if any), of the contract. For changes to existing contracts, the allowance will be computed based on the original contract price.</P>
              <P>(c) An audit, as deemed appropriate by the Maritime Administration, will be made at the end of the contract to determine total spare parts expenditures and a change under contract will be issued if actual expenditures are less than the allowance. The audit will be based on Maritime Administration review of a priced list, by shipyard purchase orders, of spare parts furnished pursuant to this § 251.1.</P>
              <P>(d) Shipping and shipyard handling costs are to be included in the allowance.</P>
              <P>(e) If the cost of material in a cost class is increased or decreased by reason of a change under contract, the total spare parts allowance will not be increased or decreased unless included as part of the change under contract.</P>
              <P>(f) The actual expenditure of funds for spare parts by the Owner need not correspond to the percentages shown in the table which are used to determine the total amount eligible for CDS.</P>
              <P>(g) An owner may exceed the limit set by this regulation, provided such excess is for his sole account.</P>
            </EXTRACT>
            <APPRO>(Approved by the Office of Management and Budget under control number 2133-0020)</APPRO>
            <SECAUTH>(Reorganization Plans No. 21 of 1950 (64 Stat. 1273) and No. 7 of 1961 (75 Stat. 840), as amended by Pub. L. 91-469 (84 Stat. 1036); and Department of Commerce Organization Order 10-8 (38 FR 19707, July 23, 1973))</SECAUTH>
            <CITA>[G.O. 11, 2 FR 2205, Sept. 22, 1937, as amended by Amdt. 1, 24 FR 7832, Sept. 29, 1959; 30 FR 11756, Sept. 15, 1965; 30 FR 14598, Nov. 24, 1965; 43 FR 1622, Jan. 11, 1978; 47 FR 25530, June 14, 1982]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 251.11</SECTNO>
            <SUBJECT>Applications under Title VI, Merchant Marine Act, 1936, as amended.</SUBJECT>
            <P>(a) Applications under title VI of the Act for subsidy to aid in the operation of vessels in the foreign commerce of the United States shall be filed on Form MA-632 in accordance with the instructions annexed thereto.</P>
            <P>(b) Copies of Form MA-632 may be obtained on request from the Secretary, Maritime Subsidy Board, Washington, D.C., 20590.</P>
            <APPRO>(Approved by the Office of Management and Budget under control number 2133-0017)</APPRO>
            <CITA>[G.O. 13, Rev., 36 FR 11033, June 8, 1971, as amended at 47 FR 25530, June 14, 1982]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 251.21</SECTNO>
            <SUBJECT>Applications under sections 803, 804, 805 (a) and (d), and 605 (b), Merchant Marine Act, 1936.</SUBJECT>
            <P>Form VI-B of instructions is the required form for the preparation of applications under sections 803, 804, 805(a) (see procedure for 805(a) applications covered in part 380 of this chapter (General Order 86)) and (d), and 605(b), Merchant Marine Act, 1936 (49 Stat. 2012, 2013, 2003; 46 U.S.C. Sup., 1221-1223 (a), (d), 1175(b)).<SU>1</SU>
              <FTREF/> All applicants for operating differential subsidies who file such applications are required to comply therewith.</P>
            <FTNT>
              <P>
                <SU>1</SU> Copies of form referred to may be obtained from the Secretary, Maritime Subsidy Board, Washington, D.C.</P>
            </FTNT>
            <CITA>[G.O. 14, 2 FR 2295, Sept. 28, 1937, as amended at 23 FR 7538, Sept. 27, 1958]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 251.31</SECTNO>
            <SUBJECT>Charges for processing applications for authorization to transfer ownership of ships built with construction-differential subsidy.</SUBJECT>
            <P>(a) Applications for an amendment or addendum to construction-differential subsidy contracts to provide for the sale of a vessel built under Title V, Merchant Marine Act, 1936, as amended, to a buyer who assumes the obligations under said contracts, shall be filed with the Secretary, Maritime Subsidy Board, Washington, DC 20590.</P>
            <P>(b) <E T="03">Fee.</E> Each such application shall be accompanied by the sum of $200, <PRTPAGE P="69"/>which sum will be retained to recover the cost of processing the application.</P>
            <SECAUTH>(Sec. 4; 5 U.S.C. 553)</SECAUTH>
            <CITA>[G.O. 106, 31 FR 3397, Mar. 4, 1966]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 252</EAR>
          <HD SOURCE="HED">PART 252—OPERATING-DIFFERENTIAL SUBSIDY FOR BULK CARGO VESSELS ENGAGED IN WORLDWIDE SERVICES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Introduction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>252.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>252.2</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>252.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>252.4</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Eligibility and Agreement</HD>
              <SECTNO>252.10</SECTNO>
              <SUBJECT>Eligibility.</SUBJECT>
              <SECTNO>252.11</SECTNO>
              <SUBJECT>Application forms.</SUBJECT>
              <SECTNO>252.12</SECTNO>
              <SUBJECT>Approval.</SUBJECT>
              <SECTNO>252.13</SECTNO>
              <SUBJECT>Contract.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Operation</HD>
              <SECTNO>252.20</SECTNO>
              <SUBJECT>Subsidized and nonsubsidized voyages.</SUBJECT>
              <SECTNO>252.21</SECTNO>
              <SUBJECT>Essential service requirement.</SUBJECT>
              <SECTNO>252.22</SECTNO>
              <SUBJECT>Substantiality and extent of foreign-flag competition.</SUBJECT>
              <SECTNO>252.23</SECTNO>
              <SUBJECT>Financial and other reporting requirements.</SUBJECT>
              <SECTNO>252.24</SECTNO>
              <SUBJECT>Continued eligibility for subsidy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Calculation of Subsidy Rates</HD>
              <SECTNO>252.30</SECTNO>
              <SUBJECT>Amount of subsidy payable.</SUBJECT>
              <SECTNO>252.31</SECTNO>
              <SUBJECT>Wages of officers and crews.</SUBJECT>
              <SECTNO>252.32</SECTNO>
              <SUBJECT>Maintenance (upkeep) and repairs.</SUBJECT>
              <SECTNO>252.33</SECTNO>
              <SUBJECT>Hull and machinery insurance.</SUBJECT>
              <SECTNO>252.34</SECTNO>
              <SUBJECT>Protection and indemnity insurance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Subsidy Payment and Billing Procedures</HD>
              <SECTNO>252.40</SECTNO>
              <SUBJECT>Payment of subsidy.</SUBJECT>
              <SECTNO>252.41</SECTNO>
              <SUBJECT>Subsidy billing procedures.</SUBJECT>
              <SECTNO>252.42</SECTNO>
              <SUBJECT>Appeals procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>46 app. U.S.C. 1114(b), 1117, 1121, 1171, 1172, 1173, and 1175; 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>40 FR 43490, Sept. 22, 1975, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—Introduction</HD>
            <SECTION>
              <SECTNO>§ 252.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>This part prescribes regulations implementing provisions in Title VI of the Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1171-1176 and 1178-1181) governing operating-differential subsidy for bulk cargo vessels engaged in carrying bulk cargo in essential services in the foreign commerce of the United States.</P>
              <CITA>[51 FR 40425, Nov. 7, 1986, as amended at 61 FR 32706, June 25, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.2</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>The policy of the Merchant Marine Act, 1936, as amended, is set forth in section 101 thereof, as follows:
              </P>
              <EXTRACT>
                <P>It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service essential for maintaining the flow of such domestic and foreign water-borne commerce at all times, (b) capable of serving as a naval and military auxiliary in time of war or national emergency, (c) owned and operated under the United States flag by citizens of the United States insofar as may be practicable, (d) composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned with a trained and efficient citizen personnel, and (e) supplemented by efficient facilities for shipbuilding and ship repair. It is hereby declared to be the policy of the United States to foster the development and encourage the maintenance of such a merchant marine.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>When used in this part:</P>
              <P>(a) <E T="03">Act</E> means the Merchant Marine Act, 1936, as amended (46 U.S.C. 1101-1294).</P>
              <P>(b) <E T="03">Maritime Administrator</E> means the Maritime Administrator, Department of Transportation of the Department of Transportation.</P>
              <P>(c) <E T="03">Board</E> means the Maritime Subsidy Board of the Maritime Administration.</P>
              <P>(d) <E T="03">Bulk cargo vessel</E> means a vessel built to carry solid, liquid or gaseous commodities that in normal shipment are contained only by the vessel's structure.</P>
              <P>(e) <E T="03">Citizen of the United States</E> includes a corporation, if all directors of the corporation are citizens of the United States, partnership or association but only if it is deemed a citizen of the United States under section 2 of the Shipping Act, 1916, as amended (46 U.S.C. 802).<PRTPAGE P="70"/>
              </P>
              <P>(f) <E T="03">Contracting Officer</E> means the Associate Administrator for Maritime Aids.</P>
              <P>(g) <E T="03">Fiscal year</E> means any annual period beginning on July 1 and ending on June 30.</P>
              <P>(h) <E T="03">Foreign-flag competition</E> means those foreign-flag vessels deemed by the Board to be competitive with the subsidized vessel.</P>
              <P>(i) <E T="03">Gross revenue</E> means the operator's total gross receipts from cargoes or fixtures of a vessel or both.</P>
              <P>(j) <E T="03">Operating-differential subsidy agreement</E> (<E T="03">ODSA</E>) means the agreement entered into by the operator and the United States government for the payment of operating-differential subsidy.</P>
              <P>(k) <E T="03">Operating-differential subsidy</E> (<E T="03">ODS</E>) means, except as the operator and the United States government should agree upon a lesser amount, the excess of the cost of subsidizable items of expense incurred in the operation under United States registry of a vessel over the estimated fair and reasonable cost of the same items of expense (excluding any increase in the cost of such items necessitated by features incorporated for national defense), if such vessel were operated under the registry of a foreign country whose vessels are substantial competitors of the vessel, or such sums as the Board may determine to be necessary to make the cost of operating such vessel competitive with the cost of operating similar vessels under the registry of a foreign country.</P>
              <P>(l) <E T="03">Operator</E> means any individual, partnership, corporation or association that contracts with the United States government under Title VI of the Act to receive ODS.</P>
              <P>(m) <E T="03">Reduced crew period</E> means any period in port beginning on the day that a vessel's normal crew complement is reduced by 4 or more men and division of wages is not paid for the missing men and ending on the day prior to the day that the vessel's crew complement is restored to not more than 3 men less than the normal crew complement, or division of wages is paid for the missing men, or the vessel is temporarily or permanently withdrawn from subsidized service, whichever occurs first.</P>
              <P>(n) <E T="03">Region Director</E> means the Region Director of the Maritime Administration within whose region the principal office of the operator is located.</P>
              <P>(o) <E T="03">Subsidized service</E> means the operation of a vessel other than in the coastal or intercoastal trade in accordance with the terms and conditions of the ODSA.</P>
              <P>(p) <E T="03">Subsidy rate</E> means the method adopted by the Board for determining the amount of ODS that is to be paid for an item of subsidizable expense.</P>
              <P>(q) <E T="03">Subsidized vessel</E> means a vessel covered by an ODSA.</P>
              <P>(r) <E T="03">U.S. foreign commerce</E> means the commerce or trade between the United States, its territories or possessions, or the District of Columbia and a foreign country.</P>
              <P>(s) <E T="03">Vessel</E> means subsidized vessel unless otherwise specified.</P>
              <P>(t) <E T="03">Voyage day</E> means any day or part of a day during which a subsidized vessel is operated in accordance with the terms and conditions of the ODSA.</P>
              <CITA>[40 FR 43490, Sept. 22, 1975, as amended at 45 FR 30442, May 8, 1980; 51 FR 40425, Nov. 7, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.4</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
              <P>In special circumstances and for good cause shown, the procedures prescribed in this part may be waived, in writing, by mutual agreement of the parties, in keeping with the circumstances then present, provided that the procedures adopted are consistent with the Act and with the intent of these regulations.</P>
              <CITA>[51 FR 40425, Nov. 7, 1986]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Eligibility and Agreement</HD>
            <SECTION>
              <SECTNO>§ 252.10</SECTNO>
              <SUBJECT>Eligibility.</SUBJECT>
              <P>Any citizen of the United States may apply to the Board for the payment of ODS for the operation of a bulk cargo vessel in an essential service in the U.S. foreign commerce.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.11</SECTNO>
              <SUBJECT>Application forms.</SUBJECT>
              <P>Application forms may be obtained from the Secretary, Maritime Administration, Department of Transportation, Washington, DC 20590.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="71"/>
              <SECTNO>§ 252.12</SECTNO>
              <SUBJECT>Approval.</SUBJECT>
              <P>The Board may not approve an application for the payment of ODS until the Board has determined, in addition to other statutorily required determinations, that:</P>
              <P>(a) The operation of the vessel in an essential service is required to meet foreign-flag competition and to promote U.S. foreign commerce;</P>
              <P>(b) The vessel was built in the United States, or built foreign and determined to be eligible for ODS pursuant to the applicable law at the time it was built or acquired, and the vessel is documented under the laws of the United States.</P>
              <P>(c) The applicant owns or leases, or can and will build or purchase or lease, a vessel or vessels of the size, type, speed and number, and with the proper equipment required to enable him to operate in an essential service in such manner as may be necessary to meet competitive conditions and to promote U.S. foreign commerce;</P>
              <P>(d) The applicant possesses the ability, experience, financial resources and other qualifications necessary to enable him to conduct the proposed operation of the vessel to meet competitive conditions and promote U.S. foreign commerce;</P>
              <P>(e) The granting of the aid applied for is necessary to place the proposed operations of the vessel on a parity with the vessels of foreign competitors, and is reasonably calculated to carry out effectively the purposes and policy of the Act;</P>
              <P>(f) The vessel is of steel or other acceptable metal, is propelled by steam or motor, and is as nearly fireproof as practicable; and</P>
              <P>(g) The vessel is constructed in accordance with plans and specifications approved by the Board and Secretary of the Navy, with particular reference to economical conversion into an auxiliary naval vessel, or approved by the Board and Navy Department as otherwise useful to the United States in time of national emergency.</P>
              <CITA>[40 FR 43490, Sept. 22, 1975, as amended at 51 FR 40425, Nov. 7, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.13</SECTNO>
              <SUBJECT>Contract.</SUBJECT>
              <P>Upon approval by the Board of an application for ODS, the applicant and the United States may enter into an ODSA.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Operation</HD>
            <SECTION>
              <SECTNO>§ 252.20</SECTNO>
              <SUBJECT>Subsidized and nonsubsidized voyages.</SUBJECT>
              <P>(a) <E T="03">Subsidized voyages</E>—(1) <E T="03">Minimum operation.</E> The operator shall operate each subsidized vessel for a minimum of 335 days each year in the worldwide carriage of bulk cargo in the U.S. foreign commerce and in the carriage of such cargo between foreign ports.</P>
              <P>(2) <E T="03">Commencement.</E> The first voyage shall commence at the time provided in the ODSA. All subsequent voyages shall commence at 0001 hours local time of the day following the day of termination of the previous voyage or, in the event that a reduced crew period follows such termination, at 0001 hours local time of the day following the day on which such reduced crew period terminates.</P>
              <P>(3) <E T="03">Termination.</E> A voyage shall terminate at 2400 hours local time:</P>
              <P>(i) In a U.S. port, on the day of completion of (<E T="03">a</E>) paying off the crew from foreign articles, (<E T="03">b</E>) discharge of cargo at the last U.S. port of discharge, or (<E T="03">c</E>) voyage repairs, whichever event occurs last;</P>
              <P>(ii) In a foreign port, on the day (<E T="03">a</E>) of completion of the discharge of cargo if the vessel loads cargo in such port of discharge, (<E T="03">b</E>) prior to the day of commencement of loading cargo if the vessel departed its last port of cargo discharge in ballast;</P>
              <P>(iii) In the case of special circumstances such as strike or lack of cargo activity, on the day approved by the Region Director upon request for a variance by the operator; or</P>
              <P>(iv) On the final voyage, on the day provided in the ODSA for termination of the final voyage.</P>
              <P>(4) <E T="03">Periods of reduced crew, idleness, delay or lay-up—</E>(i) <E T="03">Report by operator.</E> The operator shall report promptly to the Region Director any reduced crew period and any period of idleness, lay-<PRTPAGE P="72"/>up or delay occurring during or between voyages and the facts and circumstances relating to any such period.</P>
              <P>(ii) <E T="03">Region Director's finding.</E> The Region Director shall make a finding as to whether the period reported by the operator could have been avoided through the efficient and economical operation of the vessel and whether operating costs were reduced to a minimum in accordance with sound commercial practice. The Region Director shall, by means of a written report, promptly advise the operator and Contracting Officer of his finding.</P>
              <P>(iii) <E T="03">Contracting Officer's determination.</E> The Contracting Officer shall consider the Region Director's finding and shall determine what costs, if any, shall be subsidized during the period reported by the operator. The Contracting Officer shall promptly advise the operator of his determination in writing.</P>
              <P>(b) <E T="03">Nonsubsidized voyages in the U.S. foreign commerce.</E> (1) For any period of nonsubsidized service in the U.S. foreign commerce with respect to which the Board has granted prior authorization, a vessel shall go off subsidy after 2400 hours local time of the day of final discharge of cargo on the last subsidized voyage, or in the event the nonsubsidized voyage follows a subsidized period of reduced crew, idleness or lay-up, the vessel shall be deemed to be off subsidy at 0001 hours local time of the day following the day on which such period of reduced crew, idleness or lay-up terminates. The vessel shall continue in this nonsubsidized service until 2400 hours local time of the day of final discharge of the nonsubsidized cargo after which time the vessel will resume subsidized status. In the event the vessel makes consecutive nonsubsidized voyages during any such period of nonsubsidized service, it will remain in nonsubsidized status until completion of the final nonsubsidized voyage.</P>
              <P>(2) For the purposes of meeting the requirements set forth in §§ 252.20(a) and 252.21, any such nonsubsidized voyage will be considered in the same manner as a subsidized voyage.</P>
              <P>(3) Voyage reports shall be submitted upon the completion of each nonsubsidized voyage in the same manner as specified in § 252.23(a) and shall clearly indicate that the voyage is nonsubsidized.</P>
              <CITA>[40 FR 43490, Sept. 22, 1975, as amended at 43 FR 4858, Feb. 6, 1978; 51 FR 40426, Nov. 7, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.21</SECTNO>
              <SUBJECT>Essential service requirement.</SUBJECT>
              <P>(a) <E T="03">Essential service.</E> A vessel which is not subject to a charter, or a vessel subject to a charter which does not exceed 5 years duration and which may not be extended beyond 5 years duration by exercise of an option either within the charter or contained in a separate agreement, shall be deemed to be in an essential service, within the meaning of section 211(b) of the Act. The operator shall be entitled to the full amount of ODS payable under the operator's ODSA (less any reduction with respect to the carriage of cargo in the coastwise or intercoastal trades, as described in section 605(a) of the Act). A vessel subject to a charter which exceeds 5 years duration, or which may be extended beyond 5 years duration by exercise of an option (pursuant to provision of the charter or any separate agreement), shall not be deemed to be in an essential service unless such charter has been approved by the Maritime Administrator pursuant to paragraph (b) of this section.</P>
              <P>(b) <E T="03">Approval of charters.</E> Charters of vessels that exceed 5 years duration or that may be extended beyond 5 years duration by exercise of an option (pursuant to provision of the charter or any separate agreement) shall be submitted to the Maritime Administrator for review and approval at least 30 days prior to execution of such charter. Charters exceeding 5 years shall be approved if the Maritime Administrator finds that the vessel will probably be employed during a substantial portion of its economic life in carrying a significant volume of cargo in the U.S. foreign commerce. The Maritime Administrator shall base this finding on all relevant considerations, including but not limited to, the terms of the charter, the business of the charterer and the normal tendency for bulk operators to participate substantially in <PRTPAGE P="73"/>U.S. foreign commerce. When the Maritime Administrator has made this finding with respect to a vessel, its operations during any period of subsidized service while subject to that charter shall be deemed to be operation in an essential service. The payment of ODS for such period shall not be reduced because of any amendment to this section or any other provision in this part 252 made prior to expiration of the charter. ODSA default provisions shall be applicable to noncompliance with this requirement. Charters that do not exceed 5 years and do not provide for extension beyond 5 years do not have to be submitted for approval by the Maritime Administrator, unless otherwise required by the ODSA. Charters previously approved by the Maritime Administration under existing procedures are deemed approved for purposes of this section.</P>
              <P>(c) <E T="03">Modification of requirement.</E> The Board shall have the authority to modify prospectively the provisions of this section as future circumstances may dictate. However, any such modification made by the Board shall apply only to charters that are executed on or after the date of the Board action, and the Board shall have discretion in determining whether such modification shall have general or limited applicability.</P>
              <P>(d) <E T="03">Applicability.</E> This is a general requirement applicable to the payment of ODS to operators of all types of bulk cargo vessels. The provisions of any ODS regulations pertaining specifically to dry bulk cargo vessels as may be finally adopted by the Maritime Administration and set forth in title 46, Code of Federal Regulations, shall govern as to dry bulk cargo vessels where such provisions are inconsistent with those contained in this section.</P>
              <CITA>[45 FR 30442, May 8, 1980]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.22</SECTNO>
              <SUBJECT>Substantiality and extent of foreign-flag competition.</SUBJECT>
              <P>(a) <E T="03">Type and tonnage groupings.</E> Foreign-flag competition shall be determined, as of January 1 of the year preceding January 1 of the subsidized year, by surveying a data file known as “Merchant Fleets of the World” that is maintained by MARAD. All foreign-flag bulk cargo vessels included in this data file are divided by type and category, and further subdivided by class. Classes include, but are not limited to general tanker, chemical tanker, OBO, general dry bulk carrier and wood chip carrier. Each vessel class is further divided into deadweight tonnage ranges as follows:</P>
              <P>(1) Range A-vessels of less than 25,000 DWT;</P>
              <P>(2) Range B-vessels of 25,000 but less than 50,000 DWT;</P>
              <P>(3) Range C-vessels of 50,000 but less than 100,000 DWT; and</P>
              <P>(4) Range D-vessels of 100,000 or more DWT.</P>
              <P>(b) <E T="03">Competitive classes and range.</E> The following classes of foreign-flag vessels in the same tonnage range as the subsidized vessel shall be deemed to be competitive with the subsidized vessel:</P>
              <HD SOURCE="HD2">Subsidized Vessels and Foreign-flag Class</HD>
              <P>(1) General tanker—general tanker</P>
              <P>(2) Chemical tanker—general and chemical tankers</P>
              <P>(3) OBO—general dry bulk carriers and tankers, OBO, bulk/oil, ore/oil and ore carriers</P>
              <P>(4) General dry bulk carrier—general dry bulk carriers</P>
              <P>(c) <E T="03">Grouping and ranking competitive foreign-flags.</E> The foreign-flag vessels deemed to be competitive with the subsidized vessel shall be grouped by nationality and ranked according to the total deadweight tonnage under each foreign-flag.</P>
              <P>(d) <E T="03">Competitive foreign flag.</E> The competitive foreign flag shall be the flag with the greatest total tonnage in the range.</P>
              <P>(e) <E T="03">Largest foreign flag not competitor.</E> In the event that the Board believes that the competitive foreign-flag so determined pursuant to this § 252.22 is not a substantial competitor of any particular operator, the Board may determine the foreign-flag competition in a manner that more accurately reflects the true competition of the particular operator. In making this determination, the Board shall consider the written views of the operator and any other interested parties.</P>
              <CITA>[40 FR 43490, Sept. 22, 1975, as amended at 45 FR 8024, Feb. 6, 1980; 51 FR 40426, Nov. 7, 1986]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="74"/>
              <SECTNO>§ 252.23</SECTNO>
              <SUBJECT>Financial and other reporting requirements.</SUBJECT>
              <P>(a) <E T="03">Voyage report.</E> The operator shall submit a voyage report to the Director, Office of Subsidy Administration, Maritime Administration, Washington, DC 20590, upon the completion of each subsidized voyage. Each voyage report shall include the following:</P>
              <P>(1) Name of vessel and voyage number.</P>
              <P>(2) Subsidy contract number.</P>
              <P>(3) Vessel activity, including the following:</P>
              <P>(i) Ports of voyage commencement and termination, including dates and times.</P>
              <P>(ii) Loading ports, including dates of arrival and departure and long tons of cargo loaded (specify commodity).</P>
              <P>(iii) Discharge ports, including dates of arrival and departure and long tons of cargo discharged.</P>
              <P>(iv) Other ports, ports of bunkering, emergency calls, etc., including dates of arrival and departure (specify reason for call).</P>
              <P>(4) All reduced crew periods, all periods of idleness, lay-up and delay, and all related correspondence with the Region Director.</P>
              <P>(b) <E T="03">Condition of vessels, inspection and repairs.</E> In order that the Maritime Administration may participate in the inspection of vessels, in compliance with part 272 of this subchapter, the operator shall give at least 24 hours notice to the Region Director as to the time and place of vessel inspections.</P>
              <P>(c) <E T="03">Vessel insurance—</E>(1) <E T="03">Policies.</E> Upon the binding of any insurance policy with respect to a subsidized vessel, the operator shall submit promptly to the Director, Office of Marine Insurance, Maritime Administration, Washington, DC 20590, for approval of the Maritime Administration, a signed copy of each cover note issued by the operator's brokers, which, to the extent applicable, shall set forth as to such vessel the amounts covered by hull, increased value and other forms of total loss protection, as well as protection and indemnity insurance. Such cover notes shall include the rates, the amounts placed in the different markets, the participating underwriters, the amount underwritten by each underwriter, and the amounts of the deductibles. Upon request, copies of the policy shall be submitted to the Maritime Administration for examination.</P>
              <P>(2) <E T="03">Cancellation and policy changes.</E> The operator shall advise the Maritime Administration promptly of the cancellation of any policy of insurance, any changes in the terms or underwriters of any policy of insurance, any period of lay-up that permits the collection of return premiums, and the occurrence of any major casualty or total loss covered by a policy of insurance.</P>
              <P>(d) <E T="03">Financial statements.</E> The operator shall submit, in triplicate, to the Director, Office of Financial Approvals, Maritime Administration, Washington, DC 20590, the following reports, including management footnotes where necessary to make a fair financial presentation:</P>
              <P>(1) Not later than 120 days after the close of the operator's semiannual accounting period, a Form MA-172 on a semiannual basis, in accordance with 46 CFR 232.6.</P>
              <P>(2) Not later than 120 days after the close of the operator's annual accounting period an audited annual financial statement, in accordance with 46 CFR 232.6.</P>
              <APPRO>(Reporting requirements for paragraph (a) were approved by the Office of Management and Budget under control number 2133-0024 and reporting requirements for paragraph (d) were approved by the Office of Management and Budget under control number 2133-005)</APPRO>
              <CITA>[40 FR 43490, Sept. 22, 1975, as amended at 45 FR 30443, May 8, 1980; 47 FR 25530, June 14, 1982. Redesignated and amended at 51 FR 40426, Nov. 7, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.24</SECTNO>
              <SUBJECT>Continued eligibility for subsidy.</SUBJECT>

              <P>Operators shall remain eligible for ODS so long as they are engaged in service which would, under this part and sections 601(a), 602, and 605(c) of the Act, qualify for approval of an ODSA. The payment of ODS will be made only for carriage of commercial cargoes for which U.S.-flag vessels are in direct competition with foreign-flag vessels. An example of cargo that is excluded is bulk cargo reported by a shipper as the U.S.-flag share of cargoes subject to an agreement (including a unilateral commitment by a foreign <PRTPAGE P="75"/>government which has the effect of reserving cargoes for U.S.-flag vessels), between the United States and a foreign government in connection with any U.S. cash transfer foreign assistance program. In such a circumstance, there is no foreign-flag competitions for such cargoes.</P>
              <CITA>[54 FR 39182, Sept. 25, 1989]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Calculation of Subsidy Rates</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>51 FR 40426, Nov. 7, 1986, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>§ 252.30</SECTNO>
              <SUBJECT>Amount of subsidy payable.</SUBJECT>
              <P>(a) <E T="03">Daily rates.</E> Daily ODS rates shall be used to quantify the amount of ODS payable except for the ODS rates applicable to maintenance and repair expenses, as described separately in § 252.32. The daily ODS rate represents the cost differential between the subsidized vessel and its foreign-flag competition. A daily rate shall be calculated for each subsidized item of expense identified in the ODSA (with the exception of ODS rates applicable to maintenance and repair expenses), and the total of all items is the daily amount of ODS payable for approved vessel operating days, excluding reduced crew periods.</P>
              <P>(b) <E T="03">Reduced crew periods.</E> For reduced crew periods, as defined in § 252.3 of this part, a man-day reduction amount, calculated separately for officers and unlicensed crew members, shall be used to reduce the daily wage ODS rate to conform to the complement remaining on the vessel. The man-day reduction amounts shall be determined by dividing the daily wage ODS for officers and unlicensed crew members by the number of subsidizable crew members in each category. For each day of a reduced crew period, the man-day amount shall be multiplied by the number of crew members missing for that day, and the resulting product shall be deducted from the daily ODS rate. The difference shall be the ODS payable for such day. (See illustration in Schedule C at § 252.41 of this part.)</P>
              <P>(c) <E T="03">Review of rates.</E> Daily subsidy rates shall be reviewed every six months. For the item, “wages of officers and crews,” the daily rate shall be calculated for fiscal periods July 1 through June 30, in accordance with provisions of the Act. During the period January through June, adjustments—paid as a lump sum or as a daily amount—shall be made to wage ODS so that the correct amount of ODS for the full fiscal period is received by the operator. For other subsidizable items of expense, the daily rate shall be calculated for calendar years.</P>
              <P>(d) <E T="03">Negative rates.</E> When an ODS rate in any category is less than zero, indicating that the subsidized operator is at an advantage rather than a disadvantage in such category, the negative rate shall be deducted from positive rates in determining the daily ODS amount payable.</P>
              <P>(e) <E T="03">Operator Comments.</E> The operator shall have the opportunity to comment on each subsidy rate as calculated by MARAD. The operator and contracting officer shall make every effort to resolve disagreements that arise. In the event of a disagreement that cannot be resolved, comments received from the operator and the contracting officer's recommendation shall be presented to the Board for its consideration in determining subsidy rates.</P>
              <CITA>[51 FR 40426, Nov. 7, 1986, as amended at 58 FR 17349, Apr. 2, 1993]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.31</SECTNO>
              <SUBJECT>Wages of officers and crews.</SUBJECT>
              <P>(a) <E T="03">Definitions.</E> When used in this part:</P>
              <P>(1) <E T="03">Base period.</E> The first base period under the wage index systems, as provided in section 603 of the Act, is the period beginning July 1, 1970 and ending June 30, 1971. Thereafter, base period means any annual period beginning July 1 and ending June 30, with respect to which the Board establishes a base period cost. At intervals of not less than two years, nor more than four years, the Maritime Subsidy Board shall establish a new base period. Base periods shall be announced by the Board prior to the December 31 date that would be included in the new base period.</P>
              <P>(2) <E T="03">Base period cost</E>—(i) <E T="03">Initial base period.</E> For the initial base period of subsidized service, the term <E T="03">base period cost</E> means the collective bargaining <PRTPAGE P="76"/>cost as of January 1 of that base period.</P>
              <P>(ii) <E T="03">Subsequent base periods.</E> For base periods subsequent to the initial base period, the term <E T="03">base period cost</E> means the average of the collective bargaining cost as of January 1 of such fiscal year, and the base period cost of the previous base period, indexed to January 1 of the new base period by an index compiled by the Bureau of Labor Statistics. This index shall consist of the average annual change in wages and benefits placed into effect for employees covered by collective bargaining agreements, with equal weight to be given to changes affecting employees in the transportation industry (excluding the off-shore maritime industry) and to changes affecting employees in private non-agricultural industries other than transportation. However, such base period cost shall not be less than a minimum, nor more than a maximum amount, determined as a percentage of the collective bargaining cost computed for January 1 of such base period in accordance wth the following schedule:</P>
              <GPOTABLE CDEF="s25,10,10" COLS="3" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Minimum (pct)</CHED>
                  <CHED H="1">Maximum (pct)</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="11">Base period following a:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">2 year cycle</ENT>
                  <ENT>97<FR>1/2</FR>
                  </ENT>
                  <ENT>102<FR>1/2</FR>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="02">3 year cycle</ENT>
                  <ENT>96<FR>1/4</FR>
                  </ENT>
                  <ENT>103<FR>3/4</FR>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="02">4 year cycle</ENT>
                  <ENT>95</ENT>
                  <ENT>105</ENT>
                </ROW>
              </GPOTABLE>
              <P>(3) <E T="03">Collective bargaining cost (CBC)</E> means the annual cost, calculated on the basis of the per diem rate of expense, as of January 1 of the annual fiscal periods July 1 through June 30, of all items of expense required by the operator through a collective bargaining or other agreement, covering the employment of the approved manning complement of the subsidized vessel, including payments required by law to assure old-age pensions, unemployment benefits or similar benefits, and taxes or other governmental assessments on crew payrolls.</P>
              <P>(4) <E T="03">Approved manning complement</E> means the complement approved by the Board for subsidy.</P>
              <P>(5) <E T="03">U.S. wage cost (WC)</E> means the annual cost, calculated on the basis of the per diem rate of expense as of January 1 of the annual fiscal periods July 1 through June 30, of all items of expense required of the operator through a collective bargaining or other agreement, covering the employment of the normal manning complement of the subsidized vessel, including payments required by law to assure old-age pensions, unemployment benefits or similar benefits, and taxes or other governmental assessments on crew payrolls.</P>
              <P>(6) <E T="03">Normal manning complement</E> means the crew complement established by a collective bargaining or other agreement with the officers and unlicensed crew of the vessel. When ratings of different salaries are in the same job during the year, the base wages of the rating carried most of the time shall be used.</P>
              <P>(7) <E T="03">Subsidizable wage cost</E> means, (i) with respect to a base period, the base period cost, and (ii) in any fiscal period other than a base period, the most recent base period cost, increased or decreased by the change from January 1 of the base period to January 1 of the non-base period. The subsidizable wage cost shall not be less than 90 percent nor greater than 110 percent of the collective bargaining cost as of January 1 of such period.</P>
              <P>(8) <E T="03">Unpredictably timed costs</E> are collective bargaining costs that are not regularly incurred. Examples of unpredictably timed costs are such costs as severance pay, shortfalls, special assessments, and war zone bonuses.</P>
              <P>(b) <E T="03">Method of calculating collective bargaining cost (CBC).</E> CBC shall be determined by pricing out, for the approved crew complement, the per diem total of fixed costs specified in the collective bargaining agreement and adding a per diem total of variable costs obtained from the cost experience of the subsidized vessel during the first nine months of the preceding calendar year.</P>
              <P>(1) <E T="03">Fixed Costs.</E> The per diem total of fixed costs shall include all costs that are stated in specific or determinable amounts per time period and, based on operating experience, do not vary. In cases where a monthly amount is specified in the agreement, the per diem amount shall be determined by dividing the monthly amount by 30. When a daily amount is specified it shall be used. Examples of fixed costs are:</P>
              <P>(i) Base wages:</P>
              <P>(ii) Non-watch pay;<PRTPAGE P="77"/>
              </P>
              <P>(iii) Vacation pay (including contributions to vacation funds);</P>
              <P>(iv) Tool allowance;</P>
              <P>(v) Clothing and uniform allowances; and</P>
              <P>(vi) Per diem contributions for pension, training, welfare, unemployment, including unallocated contributions placed in escrow.</P>
              <P>(2) <E T="03">Variable costs.</E> Variable costs are regularly incurred employment costs which vary with ship operating experience. The per diem aggregate of variable costs as of January 1 shall be determined by applying a ratio to the per diem aggregate of base wage costs as of January 1, the numerator of which shall be the total of variable costs for the first nine months of the preceding calendar year and the denominator of which shall be the total of base wage costs for the first nine months of the preceding calendar year. Variable costs include but are not limited to:</P>
              <P>(i) Payroll taxes (including social security taxes);</P>
              <P>(ii) Overtime and penalty pay;</P>
              <P>(iii) Variable pension, training, welfare, unemployment, and vacation costs;</P>
              <P>(iv) Pay in lieu of time off;</P>
              <P>(v) Transportation and travel allowances;</P>
              <P>(vi) Payments to relief officers and crews;</P>
              <P>(vii) Wages and other expenses of USMMA cadets and extra messmen;</P>
              <P>(viii) Board and lodging allowances;</P>
              <P>(ix) Overlap in wages (a maximum of three days for officers and two days for unlicensed crew); and</P>
              <P>(x) Penalty cargo bonuses.</P>
              <P>(c) <E T="03">Method of calculating U.S. wage cost (WC).</E> Two different calculations of WC are necessary—a per diem amount for every ship type on the service and a per month amount for the predominant ship type (most voyages) on the service. The purpose of the per month calculation is to make a comparison with the monthly foreign wage costs. The relationship of WC to foreign costs for the predominant ship is applied to the per diem WC for other ship types in the service to estimate comparable foreign costs for them.</P>
              <P>(1) <E T="03">Calculation of per diem WC.</E> The per diem WC shall be calculated by the same method that applies to CBC, except that the normal manning complement shall be used.</P>
              <P>(2) <E T="03">Calculation of per month WC.</E> The costs and manning level used in this calculation shall be the same as those used for the per diem WC.</P>
              <P>(d) <E T="03">Data submission requirements.</E> For purposes of calculating CBC and WC the operator shall each year submit Form MA-790 and, as appropriate, current copies of all collective bargaining or other agreements, memoranda of understanding, and arbitration awards, which specify the fixed costs as of January 1. Schedule A of Form MA-790, which covers wage costs on voyages terminated during the first nine months of the previous calendar year, shall be submitted by December 31. Schedule B of Form MA-790—normal manning complement, rates of pay, and contributions in effect on January 1 of the current year—shall be submitted by January 31. Form MA-790, Schedules A and B, shall be submitted to the Director, Office of Ship Operating Costs, Maritime Administration, 400 Seventh Street, SW., Washington, DC 20590.</P>
              <P>(e) <E T="03">Example Calculation.</E> The following is a sample calculation of CBC and WC:</P>
              <GPOTABLE CDEF="s25,10,10" COLS="3" OPTS="L2">
                <TTITLE>ABC Bulk Co.</TTITLE>
                <TDESC>Jan. 1, 1985, Collective Bargaining Costs (CBC) and U.S. Wage Cost (WC)</TDESC>
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Per diem</CHED>
                  <CHED H="2">WC</CHED>
                  <CHED H="2">CBC</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Crew Complement</ENT>
                  <ENT>
                    <SU>1</SU> 35</ENT>
                  <ENT>
                    <SU>2</SU> 31</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Fixed Costs as of January 1, 1985:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Base Wages and non-watch pay</ENT>
                  <ENT>$1,789.79</ENT>
                  <ENT>$1,571.60</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Allowances (radio, telephone, clothing, etc.)</ENT>
                  <ENT>$5.75</ENT>
                  <ENT>$5.75</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Vacation Pay</ENT>
                  <ENT>$1,189.60</ENT>
                  <ENT>$1,109.65</ENT>
                </ROW>
                <ROW RUL="n,s,s">
                  <ENT I="02">Pension, Welfare, Training, Unemployment Fund Contributions</ENT>
                  <ENT>$,280.80</ENT>
                  <ENT>$1,171.75</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Total Fixed</ENT>
                  <ENT>$4,265.94</ENT>
                  <ENT>$3,858.75</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Variable Costs as of January 1, 1985:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Variable Cost Factor (based on 1984 cost experience) (pct)</ENT>
                  <ENT>104.69</ENT>
                  <ENT>104.69</ENT>
                </ROW>
                <ROW RUL="n,s,s">
                  <ENT I="02">Total Variable Costs (January 1, 1985 base wages × variable cost factor)</ENT>
                  <ENT>$1,873.73</ENT>
                  <ENT>$1,645.31</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Total wage costs as of January 1, 1985</ENT>
                  <ENT>$6,139.67</ENT>
                  <ENT>$5,504.06</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Normal manning complement.</TNOTE>
                <TNOTE>
                  <SU>2</SU> Approved manning complement.</TNOTE>
              </GPOTABLE>
              <PRTPAGE P="78"/>
              <P>(f) <E T="03">Method of calculating foreign wage costs.</E> The foreign wage cost (FC) of the principal foreign-flag competitor and the comparable WC of the subsidized vessel are matched as of January 1 of the last fiscal year preceding the subsidized fiscal year for purposes of determining the wage cost of the principal foreign flags. The following procedures are used:</P>
              <P>(1) <E T="03">Manning.</E> The foreign manning complement in number and nationality for the principal foreign-flag competitor shall be constructed for the subsidized vessel type using the manning scales and practice of the competitor as developed through an examination of alien crew manifests, payrolls, and other reliable information. The commonly used crew complement of the competitor shall be adjusted to fit the predominant vessel type, in recognition of differences in physical characteristics that would affect manning scales. Where the manning complement cannot be estimated with reasonable substantiation, it will be deemed to be identical with that of the subsidized vessel.</P>
              <P>(2) <E T="03">Method.</E> The method of calculating FC shall be the same as that used for WC, provided that it is possible to obtain foreign cost data on the same basis as wage cost data. Preference shall be given to pricing out for fixed costs and to cost experience for variable costs. Where applicable, foreign currencies shall be converted into U.S. currency equivalents by using the average of end-month exchange rates for the period July through June that includes the January 1 for which FC is calculated. The exchange rates shall be obtained from the publication, “International Financial Statistics”, published monthly by the International Monetary Fund. If exchange rates for particular foreign currencies are not available in this publication, they shall be obtained from the United States Department of the Treasury.</P>
              <P>(3) <E T="03">Foreign wage costs.</E> The per diem composite foreign wage cost is determined by multiplying the per diem WC for the U.S. ship type, calculated as of January 1 of the subsidized fiscal year, by the ratio of FC to WC, calculated as of January 1 of the last fiscal year preceding the subsidized fiscal year. The following is a sample calculation of the foreign percentage.</P>
              <GPOTABLE CDEF="s25,10,10" COLS="3" OPTS="L2">
                <TTITLE>ABC Bulk Company, Inc.</TTITLE>
                <TDESC>[Jan. 1, 1985—Foreign Wage Cost (FC)]</TDESC>
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">United States</CHED>
                  <CHED H="1">Liberia</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Crew Complement</ENT>
                  <ENT>26</ENT>
                  <ENT>26</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Base Wages</ENT>
                  <ENT>
                    <SU>1</SU> $53,687</ENT>
                  <ENT>
                    <SU>1</SU> $24,779</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Allowances</ENT>
                  <ENT>$1,074</ENT>
                  <ENT>$4,584</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Vacation Pay (leave)</ENT>
                  <ENT>
                    <SU>1</SU> $35,681</ENT>
                  <ENT>
                    <SU>1</SU> $13,009</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Pension and Welfare</ENT>
                  <ENT>
                    <SU>3</SU> $38,407</ENT>
                  <ENT>
                    <SU>1</SU> $2,065</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Social Security</ENT>
                  <ENT>
                    <SU>2</SU> $6,608</ENT>
                  <ENT>
                    <SU>2</SU> $7,227</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Overtime and other variable costs (not elsewhere included)</ENT>
                  <ENT>
                    <SU>2</SU> $48,732</ENT>
                  <ENT>
                    <SU>2</SU> $10,944</ENT>
                </ROW>
                <ROW RUL="n,s,s">
                  <ENT I="01">Repatriation</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="03">Total wage costs</ENT>
                  <ENT>$184,189</ENT>
                  <ENT>$62,608</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Percentage FC to WC</ENT>
                  <ENT/>
                  <ENT>33.99</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Based on Jan. 1 priced out cost.</TNOTE>
                <TNOTE>
                  <SU>2</SU> Based on cost experience.</TNOTE>
                <TNOTE>
                  <SU>3</SU> Excludes training costs—foreign data not available.</TNOTE>
              </GPOTABLE>
              <P>(g) <E T="03">Determination of daily wage rate.</E> The foreign wage cost is deducted from subsidizable wage costs to determine the daily wage subsidy rate. Table 1 is an example calculation of a daily wage subsidy rate using the procedures described in this section.</P>
              <P>(h) <E T="03">Unpredictably timed costs (UTC)</E> are subsidized by calculating costs incurred during the previous six months and converting them into a daily rate. A lump sum amount would be paid for special lump sum assessments or for per man-day increases to benefits plans which become effective during the six months following the establishment of the daily rate. In either case, the percentage subsidy rate—which is the differential percentage between the subsidizable wage cost and the foreign wage cost—is used to establish the amount of subsidy payable for UTC incurred.</P>
              <P>(1) UTC expenses such as severance pay and area bonuses shall be eligible for subsidy payment without obtaining prior approval and subsidy shall be paid as a lump sum amount.</P>

              <P>(2) Expenses such as shortfalls in benefit fund contributions, special assessments for benefits funds, and retroactive wage increases may be treated as UTC if the cost increase was not negotiated. Such costs must be approved as UTC by the Director, Office of Ship Operating Costs. To the extent such expenses qualify for UTC, the Director shall determine the appropriate method of paying subsidy—added to the per <PRTPAGE P="79"/>diem wage subsidy rate and/or as a lump sum amount treated separately.</P>
              <GPOTABLE CDEF="4,4,7,8,15,4,11" COLS="7" OPTS="L2">
                <TTITLE>Table 1—ABC Bulk Company, Inc.</TTITLE>
                <TDESC>[Calculation of Wage Subsidy Rates <SU>1</SU>]</TDESC>
                <BOXHD>
                  <CHED H="1">Base period</CHED>
                  <CHED H="1">Interim period</CHED>
                  <CHED H="1">U.S. wage cost</CHED>
                  <CHED H="1">Collective bargaining cost</CHED>
                  <CHED H="1">Application of BLS index to base period cost</CHED>
                  <CHED H="1">Averaging in base periods (4)+(5)</CHED>
                  <CHED H="2">2</CHED>
                  <CHED H="1">Appropriate limits</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="25">(1)</ENT>
                  <ENT>(2)</ENT>
                  <ENT>(3)</ENT>
                  <ENT>(4)</ENT>
                  <ENT>(5)</ENT>
                  <ENT>(6)</ENT>
                  <ENT>(7)</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">1981</ENT>
                  <ENT O="xl"/>
                  <ENT>$4,162.60</ENT>
                  <ENT>$3,850.29</ENT>
                  <ENT O="xl"/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>1982</ENT>
                  <ENT>$4,578.24</ENT>
                  <ENT>$4,230.15</ENT>
                  <ENT>$3,850.29 × 1.0845 = $4,175.64</ENT>
                  <ENT O="xl"/>
                  <ENT>.9 × (4) = $3,807.14</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT>1.1 × (4) = $4,653.17</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>1983</ENT>
                  <ENT>$4,578.24</ENT>
                  <ENT>$4,230.15</ENT>
                  <ENT>$3,850.29 × 1.1816 = $4,549.50</ENT>
                  <ENT O="xl"/>
                  <ENT>.9 × (4) = $4,104.34</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT>1.1 × (4) = $5,016.42</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>1984</ENT>
                  <ENT>$5,539.40</ENT>
                  <ENT>$4,966.90</ENT>
                  <ENT>$3,850.29 × 1.2992 = $5,002.30</ENT>
                  <ENT O="xl"/>
                  <ENT>.9 × (4) = $4,470.21</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT>1.1 × (4) = $5,463.59</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">1985</ENT>
                  <ENT O="xl"/>
                  <ENT>$6,139.57</ENT>
                  <ENT>$5,504.06</ENT>
                  <ENT>$3,850.29 × 1.4044 = $5,407.35</ENT>
                  <ENT O="xl"/>
                  <ENT>.95 × (4) = $5,228.86</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT>1.05 × (4) = $5,779.26</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> This computation is based on a new vessel entering subsidized service in May 1981.</TNOTE>
              </GPOTABLE>
              <GPOTABLE CDEF="10,10,8,10,10,8" COLS="6" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1">Base period cost</CHED>
                  <CHED H="1">Subsidizable wage cost</CHED>
                  <CHED H="1">Foreign cost percentage</CHED>
                  <CHED H="1">Foreign wage cost</CHED>
                  <CHED H="1">Wage subsidy daily rate</CHED>
                  <CHED H="1">Wage subsidy percentage rate (12)+(9)</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">$3,850.9</ENT>
                  <ENT>$3,850.29</ENT>
                  <ENT>32.99</ENT>
                  <ENT>$1,373.24</ENT>
                  <ENT>$2,477.05</ENT>
                  <ENT>64.33</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>$4,175.64</ENT>
                  <ENT>32.98</ENT>
                  <ENT>$1,509.90</ENT>
                  <ENT>$2,665.74</ENT>
                  <ENT>63.84</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>$4,549.50</ENT>
                  <ENT>32.15</ENT>
                  <ENT>$1,812.49</ENT>
                  <ENT>$2,737.01</ENT>
                  <ENT>60.16</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>$5,002.30</ENT>
                  <ENT>34.77</ENT>
                  <ENT>$1,926.05</ENT>
                  <ENT>$3,076.25</ENT>
                  <ENT>61.50</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">$5,455.71</ENT>
                  <ENT>$5,455.71</ENT>
                  <ENT>33.99</ENT>
                  <ENT>$2,086.84</ENT>
                  <ENT>$3,368.87</ENT>
                  <ENT>61.75</ENT>
                </ROW>
              </GPOTABLE>
              <CITA>[51 FR 40426, Nov. 7, 1986, as amended at 54 FR 5086, Feb. 1, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.32</SECTNO>
              <SUBJECT>Maintenance (upkeep) and repairs.</SUBJECT>
              <P>(a) <E T="03">Subsidy items.</E> The fair and reasonable maintenance and repair costs not compensated by insurance, if eligible for subsidy under the ODSA and the regulations in 46 CFR part 272, incurred by the operator during the calendar year.</P>
              <P>(b) <E T="03">Subsidy rate.</E> The subsidy rate for maintenance and repair shall be the U.S.-foreign cost differential determined from price estimates of representative items of maintenance and repair work and by using the repair practices of the foreign-flag competition. See paragraph (b)(4) of this section for an example calculation.</P>
              <P>(1) <E T="03">Cost survey.</E> MARAD shall select a sample of jobs which are representative of the various types of maintenance and repair work—drydocking and underwater repairs, machinery repairs, hull and deck repairs, electrical repairs, exterior painting and interior painting, etc. The jobs shall be described fully and combined into a standard set of specifications based on a particular type of vessel. The same specifications shall be used for obtaining all price estimates. MARAD shall request reliable and mutually acceptable ship repair cost experts to ascertain the U.S. and foreign M&amp;R prices. MARAD shall survey foreign countries during a three-year cycle. The survey year prices shall be adjusted in the years between surveys by price adjustments estimated by the ship repair cost experts.</P>
              <P>(2) <E T="03">Country cost differential.</E> A country cost differential shall be determined for each country where work was performed on the competitive vessels. The country cost differential shall be 100 percent minus the ratio of the estimated foreign price to the U.S. price estimate. The U.S. price estimate shall be representative of the coastal area included in the subsidized service (for example East Coast) or, if more than one coast is served, the coast where the company is home based. For example:<PRTPAGE P="80"/>
              </P>
              <GPOTABLE CDEF="s50,10,10" COLS="3" OPTS="L2,i1">
                <TTITLE>Determination of Country Cost Differential</TTITLE>
                <TDESC>[Year—1985; U.S. Atlantic—Gulf Coast; Foreign Country—Singapore]</TDESC>
                <BOXHD>
                  <CHED H="1">Repair category</CHED>
                  <CHED H="1">Foreign price</CHED>
                  <CHED H="1">U.S. price</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Drydocking and Underwater Repairs</ENT>
                  <ENT>$89,840</ENT>
                  <ENT>$300,245</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Tank Cleaning and Coating</ENT>
                  <ENT>70,160</ENT>
                  <ENT>77,080</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Boiler Repairs</ENT>
                  <ENT>10,545</ENT>
                  <ENT>47,550</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Machinery Repairs</ENT>
                  <ENT>22,505</ENT>
                  <ENT>108,165</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Hull and Deck Repairs</ENT>
                  <ENT>33,500</ENT>
                  <ENT>99,370</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Piping System</ENT>
                  <ENT>71,905</ENT>
                  <ENT>215,830</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Electrical Repairs</ENT>
                  <ENT>12,340</ENT>
                  <ENT>36,660</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Exterior Painting</ENT>
                  <ENT>5,035</ENT>
                  <ENT>30,640</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="01">Interior Painting</ENT>
                  <ENT>390</ENT>
                  <ENT>1,470</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Estimate Totals</ENT>
                  <ENT>316,220</ENT>
                  <ENT>917,010</ENT>
                </ROW>
                <TNOTE>Foreign/U.S. Price Ratio—34%.</TNOTE>
                <TNOTE>Country Cost Differential (100-34)—66%.</TNOTE>
              </GPOTABLE>
              <P>(3) <E T="03">Distribution of repairs.</E> The distribution of repairs refers to the countries where M&amp;R work was performed on the vessels of the foreign-flag competitor. When data on the repairing practices are obtained directly from the foreign competitor, they shall be used. If information about such practices is unavailable—or only partially available—data, published by the classification societies and Lloyd's Voyage Record, reporting the dates and localities of drydocking and completion of the various types of vessel surveys, shall be used for determining the geographical distribution of the unknown repairing practices. If such information is unavailable, repairing practices shall be determined on the basis of the industry as a whole.</P>
              <P>(4) <E T="03">M&amp;R subsidy rate.</E> The U.S.-foreign cost differential for the foreign-flag competitor shall be determined by multiplying the percentage distribution of repairs for each country where repair work was performed by the country cost differential for that country, and by adding the resulting weighted cost differential for all countries. For example:</P>
              <GPOTABLE CDEF="s35,r35,10,10,25" COLS="5" OPTS="L2,i1">
                <TTITLE>ABC Bulk Company, Inc., Maintenance and Repair Subsidy Rate</TTITLE>
                <BOXHD>
                  <CHED H="1">Principal competitor</CHED>
                  <CHED H="1">Distribution of repairs</CHED>
                  <CHED H="2">Country</CHED>
                  <CHED H="2">Percent</CHED>
                  <CHED H="1">Country cost differential percent</CHED>
                  <CHED H="1">Weighted cost differentials   ___   (1) × (2) (percent)</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="25"/>
                  <ENT>(1)</ENT>
                  <ENT/>
                  <ENT>(2)</ENT>
                  <ENT>(3)</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Liberia</ENT>
                  <ENT>U.K.</ENT>
                  <ENT>15</ENT>
                  <ENT>19</ENT>
                  <ENT>2.9</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>Japan</ENT>
                  <ENT>20</ENT>
                  <ENT>36</ENT>
                  <ENT>7.2</ENT>
                </ROW>
                <ROW RUL="n,n,n,n,s">
                  <ENT I="22"/>
                  <ENT>Singapore</ENT>
                  <ENT>65</ENT>
                  <ENT>57</ENT>
                  <ENT>37.1</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Subsidy rate</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>47</ENT>
                </ROW>
              </GPOTABLE>
              <P>(c) <E T="03">Data submission requirement.</E> The operator is required to submit a Subsidy Repair Summary (Form MA-140) quarterly, in accordance with 46 CFR part 272.</P>
              <CITA>[51 FR 40426, Nov. 7, 1986, as amended at 54 FR 5086, Feb. 1, 1989; 58 FR 17349, Apr. 2, 1993; 61 FR 32706, June 25, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.33</SECTNO>
              <SUBJECT>Hull and machinery insurance.</SUBJECT>
              <P>(a) <E T="03">Subsidy items.</E> The fair and reasonable net premium costs (including stamp taxes) of hull and machinery, increased value, excess general average, salvage, and collision liability insurance against risks and liabilities covered under the terms and conditions of policies approved as to form and coverage by MARAD, less lay-up returns, shall be eligible for subsidy and used for determining the U.S.-foreign cost differential. Port risk premiums are eligible for subsidy but not for determining the U.S.-foreign cost differential.</P>
              <P>(b) <E T="03">U.S.-foreign cost differential.</E> A U.S.-foreign cost differential shall be calculated for the service. Due to the difficulty of comparing forms and costs of hull and machinery insurance coverages, the following assumptions shall be used for estimating the composite premium cost of the foreign-flag competitor.</P>
              <P>(1) <E T="03">Coverage.</E> The foreign competitive vessels have the same types and amounts of insurance coverages and deductible averages as the subsidized vessels.</P>
              <P>(2) <E T="03">Premium rate.</E> The foreign competitive vessels are insured in the British market and the rate for such vessels is the same as the British market rate for <PRTPAGE P="81"/>the subsidized vessels. If the operator carries all of its insurance in the American market, the American market rate shall be assumed to be the same as the British market rate.</P>
              <P>(3) <E T="03">Repairs.</E> Insurable repairs of the foreign competitive vessels are performed in the same countries and in the same distribution as non-insurable repairs, and the cost differential for such repairs shall be the same as the maintenance and repair percentage differential.</P>
              <P>(4) <E T="03">Particular average.</E> The percentage of particular average repair claims for the foreign competitive vessels is the same as the percentage of particular average repair claims for the subsidized vessels. The particular average portion of the premium cost for the subsidized vessels shall be determined as follows:</P>
              <P>(i) <E T="03">Percentage.</E> The particular average portion of the premium cost shall be determined by applying a percentage to the hull and machinery premium cost after deducting the estimated total loss premium. The percentage is based on insured claims experience. The percentage shall be determined by dividing the total of underwriter's absorptions for particular average domestic repair claims paid and estimated by the total of underwriter's absorptions for all claims paid and estimated (excluding total loss and constructive total loss claims) under the hull and machinery portion of the insurance coverage, except that such percentage shall not exceed eighty-five (85) percent. The percentage is based on the claims experience of the subsidized vessels for the five (5) calendar year period preceding the subsidized year. For subsidized operators that do not have five years of claims experience, the average percentage of particular average domestic repair claims for all similar subsidized vessels shall be used unless the operator can submit data to substantiate its own claims cost experience on similar vessels.</P>
              <P>(ii) <E T="03">Data submission requirement.</E> The operator shall submit the five year claims experience, invoices showing net premium costs and coverages for the subsidized year, and lay-up returns for the previous year to the Director, Office of Ship Operating Costs, not later than sixty (60) days after the close of each calendar year.</P>
              <P>(c) <E T="03">Calculation.</E> In calculating the subsidized premium cost, the following steps shall be taken:</P>
              <P>(1) The particular average portion of the premium cost shall be adjusted in order to give effect to the repair cost differential for the foreign competitive vessels by applying the complement of the maintenance and repairs percentage cost differential (100 percent minus the differential) to the particular average portion of the premium cost. The adjusted particular average foreign premium cost shall be added to the net premium cost excluding the particular average portion to determine the composite foreign premium cost.</P>
              <P>(2) The foreign premium cost shall be subtracted from the operator's total premium cost to determine the difference in dollars. The percentage differential is determined by dividing the dollar difference by the operator's total premium cost. An example calculation is included in Table 2.</P>
              <P>(3) The net premium cost of the subsidized vessels shall be divided by the number of days in the calendar year and the resultant daily insurance cost shall be multiplied by the U.S.-foreign cost differential percentage applicable to the most recent year to determine the daily amount of subsidy for hull and machinery insurance.</P>
              <GPOTABLE CDEF="s25,10,10" COLS="3" OPTS="L2(0),6/7">
                <TTITLE>Table 2—ABC Bulk Company, Inc., U.S./Foreign Cost Differential for Hull and Machinery Insurance—1985</TTITLE>
                <ROW>
                  <ENT I="11">1. Foreign Premium Cost:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">A. Hull and Machinery, Total coverage</ENT>
                  <ENT>$92,741,996</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Average Premium Rate in British Market</ENT>
                  <ENT>1.00966%</ENT>
                </ROW>
                <ROW>
                  <ENT I="04">Premium Cost in British Market</ENT>
                  <ENT/>
                  <ENT>$936,379</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">(Estimated Total Loss Premium $92,741,966@ .46500% <SU>1</SU>
                  </ENT>
                  <ENT>431,250)</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">B. <E T="03">Increased Value,</E> Total Coverage</ENT>
                  <ENT>1,083,325</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Average Premium Rate in British Market</ENT>
                  <ENT>.32550%</ENT>
                </ROW>
                <ROW>
                  <ENT I="04">Premium Cost in British Market</ENT>
                  <ENT/>
                  <ENT>3,526</ENT>
                </ROW>
                <ROW RUL="n,n,s">
                  <ENT I="02">C. <E T="03">Excess Liability,</E> Total Coverage</ENT>
                  <ENT/>
                  <ENT>None</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">D. Total Premium Cost if Insured 100% in British Market</ENT>
                  <ENT/>
                  <ENT>939,905</ENT>
                </ROW>
                <ROW>
                  <PRTPAGE P="82"/>
                  <ENT I="02">E. <E T="03">Deduct Particular Average Portion:</E> $936,379 Less $431,250= $505,129 × 62% <SU>2</SU>
                  </ENT>
                  <ENT/>
                  <ENT>313,180</ENT>
                </ROW>
                <ROW RUL="n,n,d">
                  <ENT I="02">F. Net Premium Cost Exclusive of Particular Average</ENT>
                  <ENT/>
                  <ENT>626,725</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">G. <E T="03">Particular Average Adjustment.</E>
                  </ENT>
                  <ENT O="oi0">Worldwide service</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">P/A Portion of Premium Cost</ENT>
                  <ENT>$313,180</ENT>
                </ROW>
                <ROW RUL="n,s,n">
                  <ENT I="03">M&amp;R Subsidy Rate Complement <SU>3</SU>
                  </ENT>
                  <ENT>84.48%</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Adjusted P/A Foreign Premium Cost</ENT>
                  <ENT>264,574</ENT>
                </ROW>
                <ROW RUL="n,s,n">
                  <ENT I="03">Add: Net Premium Cost (Excluding P/A)</ENT>
                  <ENT>626,725</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">2. <E T="03">Foreign Premium Cost</E>
                  </ENT>
                  <ENT>891,299</ENT>
                </ROW>
                <ROW RUL="n,s,n">
                  <ENT I="01">3. <E T="03">Total Premium Cost to Subsidized Operators</E>
                  </ENT>
                  <ENT>1,068,998</ENT>
                </ROW>
                <ROW RUL="n,d,n">
                  <ENT I="01">4. <E T="03">Differential in Dollars</E>
                    <SU>4</SU>
                  </ENT>
                  <ENT>177,699</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">5. <E T="03">U.S.-Foreign Cost Differential</E>
                    <SU>5</SU>
                  </ENT>
                  <ENT>16.62%</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Estimated gross total loss rate adjusted for broker's discounts, policy tax and other costs, as necessary.</TNOTE>
                <TNOTE>
                  <SU>2</SU> Percentage of particular average.</TNOTE>
                <TNOTE>
                  <SU>3</SU> 100% minus M&amp;R subsidy rate of the same calendar year.</TNOTE>
                <TNOTE>
                  <SU>4</SU> Line 3 less line 2.</TNOTE>
                <TNOTE>
                  <SU>5</SU> Line 4 divided by line 3.</TNOTE>
              </GPOTABLE>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.34</SECTNO>
              <SUBJECT>Protection and indemnity insurance.</SUBJECT>
              <P>(a) <E T="03">Subsidy items.</E> Items eligible for determination of subsidizable costs and the U.S.-foreign cost differential are:</P>
              <P>(1) <E T="03">Premiums.</E> The fair and reasonable net premium costs (including stamp taxes) of protection and indemnity, excess insurance, second seamen's insurance, “tovalop” or other forms of pollution insurance, bumbershoot (only that portion identified as applicable to P&amp;I insurance), cargo liability if excluded from the primary policy, supplemental calls against liabilities covered under the terms and conditions of policies approved as to form and coverage by MARAD, less lay-up return premiums, shall be eligible for subsidy and used for determining the U.S.-foreign cost differential.</P>
              <P>(2) <E T="03">Deductibles.</E> The fair and reasonable cost of crew claims paid by and pending with the operator under the deductible provision of the protection and indemnity insurance policy approved as to form and coverage by MARAD, to the extent that such cost would have been paid by the insurance underwriter under the terms of the policy, except for the fact that it did not exceed the deductible provision of the policy, shall be eligible for subsidy. For subsidy purposes, the deductible absorption shall not exceed $50,000 for each accident or occurrence, provided however, that benefits paid on unearned wages, if excluded from coverage under the protection and indemnity insurance policy, shall be eligible, notwithstanding that the deductible provisions of the policy may be exceeded.</P>
              <P>(b) <E T="03">Assumptions made in calculation.</E> For purposes of determining subsidy for protection and indemnity insurance, it shall be assumed that the cost differential between the subsidized vessels and the foreign competitive vessels is limited to those portions of premium costs and deductible absorptions which are related to crew liability and that the cost of all other liabilities is the same for both the subsidized vessels and the foreign competitive vessels.</P>
              <P>(c) <E T="03">Calculation.</E> The following is the method of calculating the U.S.-foreign cost differential for premiums:</P>
              <P>(1) <E T="03">General.</E> A differential shall be calculated for the service of the vessels. Since the premium cost for all other liabilities is assumed to be the same for both the U.S. and foreign competitive vessels, the calculation of the differential for protection and indemnity insurance premiums is in effect based on the difference between U.S. and foreign premium costs for crew liabilities. Premium costs are determined in costs per gross registered ton (GRT).</P>
              <P>(2) <E T="03">Reporting requirement.</E> The operator shall submit the total premium cost for the subsidized year, plus any supplemental calls and lay-up return premiums not previously reported, to the Director, Office of Ship Operating Costs, not later than 60 days after the beginning of such year. The data shall be supported by invoices from the insurance underwriter.</P>
              <P>(3) <E T="03">U.S. crew liability cost.</E> the crew liability portion of the total premium cost shall be determined by applying a percentage to the total premium cost based on five (5) years of claims experience for the five years commencing six <PRTPAGE P="83"/>years prior to January 1 of the subsidized year. The percentage shall be determined by dividing the total of underwriter's absorptions for crew claims, paid and estimated, by the total of underwriter's absorptions for all claims, paid and estimated. The crew claims portion shall be limited to eighty-five (85) percent unless the operator can substantiate a higher percentage as a result of having crew liability and all other liabilities insured with different underwriters. The operator shall submit the five-year claims experience not later than 60 days following the close of each calendar year.</P>
              <P>(4) <E T="03">All other liabilities cost—U.S. and foreign.</E> The all other liabilities portion of the U.S. premium cost shall be determined by subtracting the crew liability portion from the total premium cost. The same cost shall be used for the all other liabilities portion of the foreign-flag competitor's premium cost.</P>
              <P>(5) <E T="03">Foreign crew liability cost.</E> The crew liability cost of each principal foreign-flag competitor shall be used, if reliable cost data can be obtained. If such data cannot be obtained for a principal competitor, and it is determined that such competitor has a non-national crew, the crew liability cost for similar vessels registered under the flag of the crew's nationality may be used, at the Board's discretion, provided reliable cost data are obtained. If no reliable cost data are obtained for a competitor, the crew liability cost for that competitor shall be estimated by multiplying the subsidized operator's crew liability portion of the total premium cost by the ratio of that competitor's wage costs (FC) to the subsidized operator's wage costs (WC), as determined in the calculation of the wage differential.</P>
              <P>(6) <E T="03">U.S.-Foreign cost differential.</E> The U.S.-foreign cost differential shall be the excess of the operator's total premium cost over the principal foreign-flag competitor's estimated total premium cost, expressed as a percentage, calculated in the following manner.</P>
              <GPOTABLE CDEF="s50,10,10" COLS="3" OPTS="L2,i1">
                <TTITLE>ABC Bulk Company, Inc., Protection and Indemnity Insurance Premiums, 1985</TTITLE>
                <BOXHD>
                  <CHED H="1">Premium cost (per GRT)</CHED>
                  <CHED H="1">United States</CHED>
                  <CHED H="1">Liberia</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Crew liability</ENT>
                  <ENT>
                    <SU>1</SU> $3.98</ENT>
                  <ENT>
                    <SU>2</SU> $1.27</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="01">All other liability</ENT>
                  <ENT>$1.06</ENT>
                  <ENT>$1.06</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Total cost</ENT>
                  <ENT>$5.04</ENT>
                  <ENT>$2.33</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Differential—Excess of U.S. cost over foreign cost</ENT>
                  <ENT/>
                  <ENT>$2.71</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">U.S.-foreign cost differential (pct)</ENT>
                  <ENT/>
                  <ENT>53.77</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Determined by applying 79.03% (based on 5-year claims experience) to total GRT premium rate of $5.04.</TNOTE>
                <TNOTE>
                  <SU>2</SU> Crew Liability data obtained by Maritime Administration.</TNOTE>
                <TNOTE>
                  <E T="04">Note:</E> The unweighted percentage of foreign to U.S. wage costs would be used to estimate the foreign cost if the foreign crew liability data were not available.</TNOTE>
              </GPOTABLE>
              <P>(d) <E T="03">Daily subsidy rate.</E> The daily subsidy rate shall be calculated in the following manner:</P>
              <P>(1) <E T="03">Premiums.</E> The net premium costs per calendar day for the subsidized year shall be multiplied by the U.S.-foreign cost differential percentage determined for the most recent year. The product shall be the daily amount of subsidy for P&amp;I premiums.</P>
              <P>(2) <E T="03">Deductibles.</E> (i) The eligible illness and injury crew claims paid and pending for each calendar year of a three-year period commencing six years prior to January 1 of the subsidized year, shall be recalculated, if necessary, to reflect the operator's current deductible levels. These expenses, after audit, shall be multiplied by the percentage wage differential, and determined in the calculation of wage subsidy for the appropriate fiscal period. The resulting calendar period P&amp;I deductible subsidy for the three-year period shall be divided by the voyage days for the period to arrive at an aggregate daily P&amp;I deductible subsidy. The aggregate fiscal period wage subsidy accrued for the three-year period shall be divided by the voyage days for the period to arrive at an aggregate daily wage subsidy amount. The aggregate daily P&amp;I deductible subsidy for the three-year calendar period shall be divided by the aggregate daily wage subsidy for the three-year period. The P&amp;I deductible differential shall be divided by the fiscal period wage differential in the service for the three-year period, and the resulting percentage shall be applied to the wage per diem calculated for each <PRTPAGE P="84"/>ship type in the service to derive the daily amount of subsidy for P&amp;I deductibles. As to pending claims previously recognized in the historical period, only the amount of changes in cost with respect to such claims shall be subsequently recognized. The following methodology shall determine subsidy for P&amp;I deductibles.</P>
              <GPOTABLE CDEF="s50,9,9,9,10" COLS="5" OPTS="L2,i1">
                <TTITLE>Determination of Daily Amount of Subsidy for P&amp;I Deductibles</TTITLE>
                <BOXHD>
                  <CHED H="1">Item</CHED>
                  <CHED H="1">Calendar year 1979</CHED>
                  <CHED H="1">Calendar year 1980</CHED>
                  <CHED H="1">Calendar year 1981</CHED>
                  <CHED H="1">Total</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">P&amp;I deductible C.Y. expenses</ENT>
                  <ENT>$1,680,000</ENT>
                  <ENT>$1,220,000</ENT>
                  <ENT>$1,400,000</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Diff. foreign/U.S. wage cost (pct)</ENT>
                  <ENT>26.00</ENT>
                  <ENT>23.00</ENT>
                  <ENT>20.00</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Subsidy</ENT>
                  <ENT>$436,800</ENT>
                  <ENT>$280,600</ENT>
                  <ENT>$280,000</ENT>
                  <ENT>$997,400</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Voyage days</ENT>
                  <ENT>1,140</ENT>
                  <ENT>1,100</ENT>
                  <ENT>1,225</ENT>
                  <ENT>3,465</ENT>
                </ROW>
                <TNOTE>Average subsidy per voyage day ($997,400÷3,465 days)=$287.85.</TNOTE>
              </GPOTABLE>
              <GPOTABLE CDEF="s50,9,9,9,10" COLS="5" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Fiscal year 1979</CHED>
                  <CHED H="1">Fiscal year 1980</CHED>
                  <CHED H="1">Fiscal year 1981</CHED>
                  <CHED H="1">Total</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Wages fiscal year per diem rate</ENT>
                  <ENT>$7,660</ENT>
                  <ENT>$7,700</ENT>
                  <ENT>$8,050</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Voyage days</ENT>
                  <ENT>1,090</ENT>
                  <ENT>1,180</ENT>
                  <ENT>1,230</ENT>
                  <ENT>3,500</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Subsidy</ENT>
                  <ENT>$8,349,400</ENT>
                  <ENT>$9,086,000</ENT>
                  <ENT>$9,901,500</ENT>
                  <ENT>$27,336,900</ENT>
                </ROW>
                <TNOTE>Average subsidy per voyage day ($27,336,900÷3,500 days)=$7,810.54.</TNOTE>
                <TNOTE>Ratio P&amp;I deductible ODS to wage ODS $287.85÷$7,810.54=3.69%.</TNOTE>
              </GPOTABLE>
              <GPOTABLE CDEF="s50,6,6,10" COLS="4" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1">T.R. 98 ship type</CHED>
                  <CHED H="1">Daily wage ODS 1/1/85</CHED>
                  <CHED H="1">Ratio P&amp;I ded. to wage ODS (pct)</CHED>
                  <CHED H="1">Daily P&amp;I ded. ODS 1/1/85</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">C4-A</ENT>
                  <ENT>$9,000</ENT>
                  <ENT>×3.69</ENT>
                  <ENT>$332.10</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">C5-B</ENT>
                  <ENT>9,300</ENT>
                  <ENT>×3.69</ENT>
                  <ENT>343.17</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">C6-C</ENT>
                  <ENT>9,600</ENT>
                  <ENT>×3.69</ENT>
                  <ENT>354.34</ENT>
                </ROW>
              </GPOTABLE>
              <P>(ii) In cases where national insurance schemes cover crew claims costs in their entirety, resulting in no cost to the foreign competitor for deductible absorptions, the composite percentage differential for wages shall be adjusted by substituting a zero cost for such foreign competitor in the calculation of the differential. The adjustment of the wage percentage differential shall not be used for Japan, where operators incur minimal costs for deductible absorptions, rather than no costs. For Japan, the insurance related costs which are normally included in the calculation of Japanese wage costs shall be excluded in adjusting the wage percentage differential for this purpose.</P>
              <P>(3) <E T="03">Data submission requirement.</E> The operator is required to submit annually a certified statement of eligible and audited crew claims as identified in paragraph (d)(2) of this section for the historical period identified therein. The report shall be submitted to the Director, Office of Ship Operating Costs, no later than January 1 of the subsidized year.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Subsidy Payment and Billing Procedures</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>51 FR 40432, Nov. 7, 1986, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>§ 252.40</SECTNO>
              <SUBJECT>Payment of subsidy.</SUBJECT>
              <P>(a) <E T="03">Submission of voucher.</E> At the close of each calendar month, the subsidized operator may submit a voucher, and include for payment in such voucher the amount of ODS accrued for the voyages terminated during the period.</P>
              <P>(b) <E T="03">Maintenance and repair subsidy.</E> In the case of payments for maintenance and repair subsidy only, the subsidized operator shall submit an initial voucher and include for payment in such voucher a percentage of the ODS payable for the period covered by the voucher, which percentage shall be negotiated between MARAD and the subsidized operator, but in no instance shall exceed 90 percent. Upon the completion of MARAD's determinations that the expenses are fair and reasonable, MARAD's computation of the ratio of subsidized vs. nonsubsidized days during the calendar year in which the last voyage terminated, and the Office of the Inspector General's audit of subsidizable expenses, the subsidized <PRTPAGE P="85"/>operator shall submit a final voucher for an adjustment of the amount of subsidy paid.</P>
              <CITA>[51 FR 40432, Nov. 7, 1986, as amended at 58 FR 17349, Apr. 2, 1993]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.41</SECTNO>
              <SUBJECT>Subsidy billing procedures.</SUBJECT>
              <P>(a) <E T="03">Subsidy voucher—</E>(1) <E T="03">Form.</E> Requests for payment of ODS shall be submitted on a public voucher, Standard Forms 1034 and 1034A, which can be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC. 20402.</P>
              <P>(2) <E T="03">Copies.</E> The operator shall submit the original and 3 copies of the voucher to the MARAD Region Director for payment. The original and 2 copies must be supported by schedules and an affidavit. The third copy is the payee's copy and need not be supported.</P>
              <P>(b) <E T="03">Schedules and affidavit.</E> (1) The following schedules shall be used for calculating the amount of ODS payable:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Schedule A</HD>
                <FP SOURCE="FP-DASH">(Company)</FP>
                <FP SOURCE="FP-DASH">ODSA No.</FP>
                <FP>ODS Accrued During Fiscal Year 19_</FP>
                <FP>ODS Payable for the Month of ___</FP>
                <GPOTABLE CDEF="s50,8,8,8" COLS="4" OPTS="L2,i1">
                  <BOXHD>
                    <CHED H="1"/>
                    <CHED H="1">Current voucher</CHED>
                    <CHED H="1">Previous voucher</CHED>
                    <CHED H="1">Total</CHED>
                  </BOXHD>
                  <ROW>
                    <ENT I="01">Total accrued ODS (sched. B)</ENT>
                    <ENT>$___</ENT>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW>
                    <ENT I="01">Les ODS reductions: reduced crew (sched. C)</ENT>
                    <ENT>___</ENT>
                    <ENT/>
                    <ENT/>
                  </ROW>
                  <ROW RUL="n,s">
                    <ENT I="01">Net ODS accrued</ENT>
                    <ENT>___</ENT>
                    <ENT>$___</ENT>
                    <ENT>$___</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">Less previous payments</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT>___</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">ODS payable</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT>___</ENT>
                  </ROW>
                </GPOTABLE>
              </EXTRACT>
              <EXTRACT>
                <HD SOURCE="HD1">Schedule B</HD>
                <FP SOURCE="FP-DASH">(Company)</FP>
                <FP>ODS Accrued for the Month of ___</FP>
                <GPOTABLE CDEF="s50,4,5,5,5,7,7" COLS="7" OPTS="L2,i1">
                  <BOXHD>
                    <CHED H="1">Vessel name</CHED>
                    <CHED H="1">Voy. No.</CHED>
                    <CHED H="1">Voyage dates</CHED>
                    <CHED H="2">From</CHED>
                    <CHED H="2">To</CHED>
                    <CHED H="1">Voy. days</CHED>
                    <CHED H="1">Per diem rates</CHED>
                    <CHED H="1">Accrued subsidy</CHED>
                  </BOXHD>
                  <ROW>
                    <ENT I="01"/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>$___</ENT>
                    <ENT>$___</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">ODS payable for unpredictably timed expenses not included in daily amount (attach supporting supporting information)</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>$___</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">Total accured subsidy (enter on Schedule A)</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>$___</ENT>
                  </ROW>
                </GPOTABLE>
                <HD SOURCE="HD1">Schedule C</HD>
              </EXTRACT>
              <EXTRACT>
                <FP SOURCE="FP-DASH">(Company)</FP>
                <GPOTABLE CDEF="s10,5,5,7,2,7,2,5,2,7,2,7" COLS="12" OPTS="L2,i1">
                  <TTITLE>Reduced Crew Periods</TTITLE>
                  <BOXHD>
                    <CHED H="1">Vessel</CHED>
                    <CHED H="1">Reduced crew dates</CHED>
                    <CHED H="2">From</CHED>
                    <CHED H="2">To</CHED>
                    <CHED H="1">No. of reduced crew days (a)</CHED>
                    <CHED H="1"/>
                    <CHED H="1">No. of crew reduced</CHED>
                    <CHED H="1"/>
                    <CHED H="1">Man-days</CHED>
                    <CHED H="1"/>
                    <CHED H="1">Man-day amount</CHED>
                    <CHED H="1"/>
                    <CHED H="1">Reduced crew reduction</CHED>
                  </BOXHD>
                  <ROW>
                    <ENT I="01"/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT/>
                    <ENT>=</ENT>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT>$___</ENT>
                    <ENT>=</ENT>
                    <ENT>$___</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01"/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT/>
                    <ENT>=</ENT>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT>___</ENT>
                    <ENT>=</ENT>
                    <ENT>___</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01"/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT/>
                    <ENT>=</ENT>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT>___</ENT>
                    <ENT>=</ENT>
                    <ENT>___</ENT>
                  </ROW>
                  <ROW RUL="n,n,n,n,n,n,n,n,n,n,n,s">
                    <ENT I="01"/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT/>
                    <ENT>=</ENT>
                    <ENT/>
                    <ENT>×</ENT>
                    <ENT>___</ENT>
                    <ENT>=</ENT>
                    <ENT>___</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="03">Total reduced crew reduction (enter on Schedule A)</ENT>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT/>
                    <ENT>___</ENT>
                  </ROW>
                  <TNOTE>(a) If licensed crew, indicate (a).</TNOTE>
                  <TNOTE>(b) If unlicensed crew, indicate (b).</TNOTE>
                </GPOTABLE>
              </EXTRACT>
              <P>(2) A notorized affidavit as shown below shall be signed by an official of the subsidized operator who is familiar with the ODSA, these regulations, the operation of the subsidized vessel, and the accounts, books, records, and disbursements of the subsidized operator relating to such operation:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Affidavit</HD>
                <FP SOURCE="FP-DASH">State of</FP>
                <FP SOURCE="FP-DASH">City of</FP>
                <FP SOURCE="FP-DASH">County/Parish of</FP>

                <P>I, ___, being duly sworn, depose and say that I am ___ (title) of the ___ (herein referred to as the “Operator”), and as such am familiar with (a) provisions of the Operating-Differential Subsidy Agreement, Contract No. ___, dated as of ___, as amended, to which the Operator is a party; and (b) <PRTPAGE P="86"/>the regulations governing the payment of operating-differential subsidy for bulk cargo vessels, PART 252, Title 46, CFR: and (c) the operation of the vessels covered by said Agreement and regulations; and (d) the accounts, books, records, and disbursements of the Operator relating to such operation.</P>
                <P>Referring to the public voucher dated ___, covering voyage days allowed for subsidy during the periods commencing ___, and ending ___, and attached, submitted by said Operator concurrent herewith for a payment on account in the sum of ___, under said Agreement, I further depose and say that, to the best of my knowledge and belief, the Operator has fully complied with the terms and conditions of said Agreement and regulations, applicable orders, rulings and provisions of the Merchant Marine Act, 1936, as amended, and is entitled, under the provisions of said Agreement and regulations, orders and rulings applicable thereto, to the amount of the payment on account requested; and further depose and say that the vessels named in the attached schedules were in authorized service for the vessel operating days on which the payment is requested and has not included in the calculation of the amount of subsidy claimed in the attached voucher any costs of a character that the Maritime Administration, or Secretary of Transportation acting by and through the Maritime Subsidy Board or any predecessor or successor, had advised the Operator to be ineligible to be so included, or any costs collectible from insurance, or from any other source.</P>
                <P>Payment by the Maritime Administration of all or part of the amount claimed herein shall not be construed as approval of the correctness of the amount stated to have been due, nor a waiver of any right of remedy the Maritime Administration, or Secretary of Transportation, acting by and through the Maritime Subsidy Board, or any predecessor or successor, may have under the terms of said Agreement, or otherwise.</P>

                <P>I further depose and say that this affidavit is made for and on behalf and at the direction of the Operator for the purpose of inducing the Maritime Administration to make a payment pursuant to the provisions of the aforesaid Operating-Differential Subsidy Agreement, as amended.
                </P>
                <FP SOURCE="FP-DASH"/>
                

                <P>Subscribed and sworn to before me, a Notary Public, in and for the aforesaid County and State, this ___ day of ___,
                </P>
                <FP SOURCE="FP-DASH">My commission expires</FP>
                <FP SOURCE="FP-DASH">Notary Public</FP>
              </EXTRACT>
              <P>(3) The subsidized operator shall furnish its own supply of supporting schedules and affidavit.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 252.42</SECTNO>
              <SUBJECT>Appeals procedures.</SUBJECT>
              <P>(a) <E T="03">Appeals of annual or special audits.</E> An operator who disagrees with the findings, interpretations or decisions in connection with audit reports of the Office of the Inspector General and who cannot settle said differences by negotiation with the Contracting Officer may submit an appeal to the Maritime Administrator from such findings, interpretations or decisions in accordance with Part 205 of this chapter.</P>
              <P>(b) <E T="03">Appeals of administrative determinations—</E>(1) <E T="03">Policy.</E> An operator who disagrees with the findings, interpretations or decisions of the Contracting Officer with respect to the administration of this part may submit an appeal from such findings, interpretations or decisions as follows:</P>
              <P>(i) Appeals shall be made in writing to the Secretary, Maritime Subsidy Board, Maritime Administration, within 60 days following the date of the document notifying the operator of the administration determination of the Contracting Officer. In his appeal to the Secretary the operator shall indicate whether or not he desires a hearing.</P>
              <P>(ii) The appellant will be notified in writing if a hearing is to be held and whether he is required to submit additional facts for consideration in connection with the appeal.</P>
              <P>(iii) When a decision has been rendered by the Board, the appellant will be notified in writing.</P>
              <P>(2) <E T="03">Appeal to the Secretary of Transportation.</E> An operator who disagrees with the Board may appeal such findings and determinations by filing a written petition for review of the Board's action with the Secretary of Transportation. The petition shall be filed in accordance with provisions of the Department of Transportation pertaining to Secretarial review.</P>
              <P>(3) <E T="03">Hearings,</E> The Rules of Practice and Procedures, 46 CFR part 201, subpart M, shall be followed for all hearings granted under 46 U.S.C. 1176 and 46 CFR 252.42.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="87"/>
          <EAR>Pt. 272</EAR>
          <HD SOURCE="HED">PART 272—REQUIREMENTS AND PROCEDURES FOR CONDUCTING CONDITION SURVEYS AND ADMINISTERING MAINTENANCE AND REPAIR SUBSIDY</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>272.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>272.2</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <SECTNO>272.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>272.4</SECTNO>
              <SUBJECT>Effective date.</SUBJECT>
              <SECTNO>272.5</SECTNO>
              <SUBJECT>Prior instructions superseded.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Requirements and Procedures for Determining the Condition of Eligible Vessels.</HD>
              <SECTNO>272.11</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <SECTNO>272.12</SECTNO>
              <SUBJECT>Determining the condition of eligible vessels.</SUBJECT>
              <SECTNO>272.13</SECTNO>
              <SUBJECT>Operator's responsibilities.</SUBJECT>
              <SECTNO>272.14</SECTNO>
              <SUBJECT>Survey procedures.</SUBJECT>
              <SECTNO>272.15</SECTNO>
              <SUBJECT>Execution of condition survey reports.</SUBJECT>
              <SECTNO>272.16</SECTNO>
              <SUBJECT>Non-compliance with survey requirements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Eligibility Criteria for M&amp;R Subsidy; Substantiation of M&amp;R Expenses</HD>
              <SECTNO>272.21</SECTNO>
              <SUBJECT>General eligibility criteria.</SUBJECT>
              <SECTNO>272.22</SECTNO>
              <SUBJECT>Improvements and other similar work.</SUBJECT>
              <SECTNO>272.23</SECTNO>
              <SUBJECT>Examples of ineligible expenses.</SUBJECT>
              <SECTNO>272.24</SECTNO>
              <SUBJECT>Subsidy repair summaries.</SUBJECT>
              <SECTNO>272.25</SECTNO>
              <SUBJECT>Requirements for subsidy repayment.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Penalties</HD>
              <SECTNO>272.31</SECTNO>
              <SUBJECT>Determination of penalty.</SUBJECT>
              <SECTNO>272.32</SECTNO>
              <SUBJECT>Mitigation of penalty.</SUBJECT>
              <SECTNO>272.33</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Examination, Audit, Review and Appeal Procedures</HD>
              <SECTNO>272.41</SECTNO>
              <SUBJECT>Requirements for examination and allocation of M&amp;R expenses.</SUBJECT>
              <SECTNO>272.42</SECTNO>
              <SUBJECT>Audit requirements and procedures.</SUBJECT>
              <SECTNO>272.43</SECTNO>
              <SUBJECT>Review and appeal procedures.</SUBJECT>
              <SECTNO>272.44</SECTNO>
              <SUBJECT>Dates.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>46 App. U.S.C. 1114(b), 1173, 1176; 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>55 FR 34919, Aug. 27, 1990, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 272.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>The purpose of this part is to prescribe the requirements and procedures for determining the condition of vessels receiving operating-differential subsidy, to prescribe the requirements for reporting and substantiating maintenance and repair (M&amp;R) expenses, and to establish the criteria and procedures for determining whether a M&amp;R expense is subsidizable.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.2</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <P>Except as otherwise provided in subpart B, the provisions of this part apply only to vessels operating under an operating-differential subsidy agreement which provides for the payment of M&amp;R subsidy, except that this part does not apply to any vessel operating under an operating-differential subsidy agreement for the carriage of bulk raw and processed agricultural commodities from the United States to the Union of Soviet Socialist Republics, pursuant to part 294 of this chapter.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For the purposes of this part:</P>
              <P>(a) <E T="03">Act</E> means the Merchant Marine Act, 1936, as amended, 46 App. U.S.C. 1101 <E T="03">et seq.</E>
              </P>
              <P>(b) <E T="03">MARAD</E> means the Maritime Administration, a unit of the United States Department of Transportation, as distinguished from the Board (which is a unit of MARAD).</P>
              <P>(c) <E T="03">Board</E> means the Maritime Subsidy Board of the Maritime Administration.</P>
              <P>(d) <E T="03">Domestic Origin:</E>
              </P>
              <P>(1) <E T="03">Labor.</E> With respect to labor, Domestic Origin means that the work shall be performed by a U.S. ship repair facility, a U.S. independent contractor, or by the Operator's own shore gang.</P>
              <P>(2) <E T="03">Materials.</E> With respect to materials, Domestic Origin means that all articles, materials, and supplies shall be of the growth, production or manufacture of the United States.</P>
              <P>(e) <E T="03">Eligible Vessel</E> means a vessel operated under an ODSA, other than an ODSA subject to part 294 of this chapter, which provides for the payment of M&amp;R subsidy with respect to the operation of that vessel.</P>
              <P>(f) <E T="03">Equipment</E> means that part of an Eligible Vessel that is not part of the vessel's hull or machinery.</P>
              <P>(g) <E T="03">Expendable equipment</E> means those articles, outfittings and furnishings <PRTPAGE P="88"/>that are portable, semi-portable or detachable, that are used in equipping a ship for service and in its normal day-to-day maintenance and operation, and that are subject to casual or gradual deterioration and replacement. It does not include items classified as stores and supplies or Spare Parts.</P>
              <P>(h) <E T="03">Improvement</E> means work to be performed on an Eligible Vessel which is a modification, alteration, addition or betterment, which may be accomplished separately from M&amp;R, but may be eligible for M&amp;R subsidy pursuant to § 272.22 of this part.</P>
              <P>(i) <E T="03">M&amp;R</E> and <E T="03">M&amp;R Subsidy</E> mean, respectively, maintenance and repairs and maintenance and repair subsidy payable pursuant to section 603 of the Act.</P>
              <P>(j) <E T="03">ODS</E> and <E T="03">ODSA</E> refer, respectively, to operating-differential subsidy provided under an operating-differential subsidy agreement entered into pursuant to title VI of the Act.</P>
              <P>(k) <E T="03">Operator</E> means any individual, partnership, corporation, or association that enters into an ODSA with the Board pursuant to title VI of the Act.</P>
              <P>(l) <E T="03">Permanent equipment</E> means Equipment that is, or is intended to become when installed, an integral, permanent, built-in part of the vessel.</P>
              <P>(m) <E T="03">Region Office</E> means any one of the four Maritime Administration Region Offices in New York, NY; New Orleans, LA; San Francisco, CA; and Chicago, IL; established pursuant to section 809 of the Act.</P>
              <P>(n) <E T="03">Spare parts</E> means such items as spare propellers and tailshafts and self-contained operable units of machinery or equipment, as well as those items generally recognized within the maritime industry as Spare Parts.</P>
              <P>(o) <E T="03">United States</E> means the states of the United States, the District of Columbia and Puerto Rico.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.4</SECTNO>
              <SUBJECT>Effective date.</SUBJECT>
              <P>The provisions of this part apply to voyages of every Eligible Vessel which terminate on or after September 26, 1990.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.5</SECTNO>
              <SUBJECT>Prior instructions superseded.</SUBJECT>
              <P>The provisions of this part supersede any provisions of MARAD Circular Letters and Accounting Instructions applicable to M&amp;R and dated prior to the effective date of these regulations to the extent that the provisions of this part may be inconsistent with the provisions of such prior instructions.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Requirements and Procedures for Determining the Condition of Eligible Vessels</HD>
            <SECTION>
              <SECTNO>§ 272.11</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <P>This subpart applies to any Eligible Vessel, other than one operating under an ODSA subject to part 294 of this chapter.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.12</SECTNO>
              <SUBJECT>Determining the condition of eligible vessels.</SUBJECT>
              <P>The Operator of an Eligible Vessel shall make the vessel available whenever MARAD may require, in any of the following instances:</P>
              <P>(a) At the commencement of the first subsidized voyage, except for a newly constructed vessel which enters subsidized service immediately upon delivery by the shipyard, and for which there is a prior condition survey report. If that subsidized service commences outside the continental limits of the United States, the vessel may be surveyed at the first United States port of call;</P>
              <P>(b) At the commencement of the first voyage following the effective date for M&amp;R subsidy established by MARAD, if such M&amp;R rate was not established at the commencement of the vessel's first voyage;</P>
              <P>(c) Upon the discontinuance of a M&amp;R subsidy rate;</P>
              <P>(d) Upon resumption of subsidized voyages after temporary withdrawal from subsidized operation. The vessel shall not be considered as having been temporarily withdrawn from subsidized service if it performed unsubsidized voyages in a subsidized service of the Operator;</P>
              <P>(e) Upon withdrawal from subsidized service, either temporarily (subject to the provisions of paragraph (d) of § 272.14), or permanently;</P>
              <P>(f) During the dry docking period incident to the vessel's American Bureau of Shipping Special Surveys;</P>

              <P>(g) Upon termination of the last voyage under the ODSA, or at the end of the contract period, with respect to <PRTPAGE P="89"/>subsidized vessels in idle status at that time; or</P>
              <P>(h) At any other time that MARAD considers to be appropriate.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.13</SECTNO>
              <SUBJECT>Operator's responsibilities.</SUBJECT>
              <P>Whenever MARAD notifies an Operator that a survey of an Eligible Vessel is required under this section, the Operator shall:</P>
              <P>(a) Make the vessel immediately available for survey if the vessel is in a port of the United States at the time of notification, or make the vessel available for survey immediately upon arrival at the first port of call in the United States if the vessel is not in a port of the United States at the time of notification; and</P>
              <P>(b) Furnish to the Secretary of the Board the following:</P>
              <P>(1) A copy of each American Bureau of Shipping report and every other salvage association or damage survey report; and</P>
              <P>(2) Copies of certificates or other evidence of compliance with applicable laws, rules, and regulations as to vessel condition and operation, including, but not limited to, those administered by the United States Coast Guard, Environmental Protection Agency, Federal Communications Commission, Public Health Service, or their respective successors, and compliance with all applicable treaties and conventions to which the United States is a signatory.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 2133-0007)</APPRO>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.14</SECTNO>
              <SUBJECT>Survey procedures.</SUBJECT>
              <P>(a) <E T="03">Prior to survey.</E> Unless otherwise directed by MARAD, the Operator of a vessel which is required to be surveyed under this subpart shall contact the ship operations unit of the Region Office in which the survey is to be conducted.</P>
              <P>(b) <E T="03">Operator's assistance to surveyor.</E> The Operator shall assist the marine surveyor performing the survey for MARAD and shall permit access by that surveyor to all parts of the vessel, its log books, and other official records. The Operator may designate a representative to accompany the marine surveyor during the survey, but no Operator's representative is required to be present during the survey.</P>
              <P>(c) <E T="03">On-subsidy surveys.</E> An on-subsidy survey consists of the following:</P>
              <P>(1) <E T="03">Vessel survey.</E> This includes an inspection and the completion of reports by the surveyor, in sufficient detail to reveal a comprehensive picture of the conditions noted.</P>
              <P>(2) <E T="03">On-subsidy survey report.</E> The on-subsidy survey report consists of:</P>
              <P>(i) Ship Survey Report, Form MA-58; and</P>
              <P>(ii) As appropriate for the circumstances of the survey and the respective vessel, Forms MA-55 (Turbines and Gears Report); MA-56 (Tooth Contact Report); MA-57 (Drydock Report); and MA-59 (Measurements of Piston Rings and Grooves).</P>
              <P>(d) <E T="03">Off-subsidy surveys.</E> An off-subsidy survey consists of the following:</P>
              <P>(1) <E T="03">Repair specifications.</E> The Operator shall prepare and furnish to the appropriate Region Office detailed repair specifications covering all repair work attributable to completed subsidized service.</P>
              <P>(2) <E T="03">Off-subsidy survey report.</E> The survey report for an off-subsidy survey consists of the repair specifications required by paragraph (c)(1) of this section, and the findings of the Region Office on these specifications after the survey required by paragraph (c)(2) of this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.15</SECTNO>
              <SUBJECT>Execution of condition survey reports.</SUBJECT>
              <P>Every survey report shall be signed by:</P>
              <P>(a) The Operator's representative, when designated pursuant to § 272.13(a), but only if that representative was in attendance during the survey;</P>
              <P>(b) The Operator's superintendent engineer or eqivalent;</P>
              <P>(c) The marine surveyor who conducted the survey; and</P>
              <P>(d) The appropriate representative of the Region Office for the Region in which the survey was conducted.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.16</SECTNO>
              <SUBJECT>Non-compliance with survey requirements.</SUBJECT>
              <P>MARAD may disallow any one or more M&amp;R claims otherwise eligible for subsidy if an Operator fails to:</P>

              <P>(a) Contact the appropriate Region Office as required by § 272.14(a);<PRTPAGE P="90"/>
              </P>
              <P>(b) Comply with provisions of § 272.14(c)(1) with respect to repair specifications, or to make the vessel reasonably available for inspection before its next sailing; or</P>
              <P>(c) Comply with any other requirement specified in this subpart B.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Eligibility Criteria for M&amp;R Subsidy; Substantiation of M&amp;R Expenses</HD>
            <SECTION>
              <SECTNO>§ 272.21</SECTNO>
              <SUBJECT>General eligibility criteria.</SUBJECT>
              <P>(a) <E T="03">Eligible maintenance and repairs.</E> Costs of maintenance and repair are eligible for M&amp;R subsidy participation if they are:</P>
              <P>(1) Performed on an Eligible Vessel;</P>
              <P>(2) Necessary, because of subsidized operation, for the M&amp;R or replacement of damaged or worn parts of the vessel's hull, machinery, or Permanent Equipment;</P>
              <P>(3) Uncompensated by insurance;</P>
              <P>(4) Considered fair and reasonable by the Board;</P>
              <P>(5) Of Domestic Origin; and</P>
              <P>(6) Otherwise eligible in accordance with provisions of this part.</P>
              <P>(b) <E T="03">Off-subsidy survey items.</E> Any M&amp;R contained in an executed off-subsidy survey report is eligible maintenance and repair if:</P>
              <P>(1) Paragraphs (a) (1) through (6) of this section are met;</P>
              <P>(2) The work is accomplished by the Operator before or during the next drydocking period (periodic or otherwise); and</P>
              <P>(3) The vessel is either owned by the same Operator who owned it at the time of the off-subsidy survey, or ownership was transferred to the Federal Government pursuant to section 510 of the Act (46 App. U.S.C. 1160).</P>
              <P>(c) <E T="03">Operator furnished items.</E> In addition to the general requirements of paragaph (a) of this section, the cost of the Operator's materials, supplies, or both, furnished by the Operator which are necessary to the performance of eligible M&amp;R, is eligible for M&amp;R subsidy if:</P>
              <P>(1) The items for which the cost was incurred are issued by the Operator from ship's inventory or the Operator's shoreside inventory, or are issued by direct purchase to the ship repair yard, other independent contractor, or shore gang labor; and</P>
              <P>(2) No subsidy, whether M&amp;R or otherwise, has previously been paid for such material, supplies, or both; and</P>
              <P>(3) The items are of Domestic Origin.</P>
              <P>(d) <E T="03">Costs associated with shore gang labor.</E> In addition to the general requirements of paragraph (a) of this section, the costs incurred with respect to the Operator's employment of U.S. shore gang labor necessary for the performance of eligible M&amp;R are eligible for M&amp;R subsidy participation only if such costs are:</P>
              <P>(1) For direct labor charges;</P>
              <P>(2) For eligible Spare Parts, as described in paragraph (e) of this section; or</P>
              <P>(3) Incidental to the payment of wages for the direct labor, to the extent that such costs are required by State or Federal law or by collective bargaining agreements.</P>
              <P>(e) <E T="03">Spare parts.</E> Spare parts are eligible for M&amp;R subsidy if they are:</P>
              <P>(1) Necessary for eligible M&amp;R;</P>
              <P>(2) Issued by the Operator from the Operator's shoreside inventory or issued by direct purchase to a U.S. ship repair yard, U.S. independent contractor, or U.S. shore gang labor; and</P>
              <P>(3) Placed aboard an Eligible Vessel, and</P>
              <P>(4) Of Domestic Origin.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.22</SECTNO>
              <SUBJECT>Improvements and other similar work.</SUBJECT>
              <P>(a) <E T="03">Eligible expenditures.</E> Any expenditure not in excess of $200,000 for work effected during any one or a series of repair periods, which the Operator and MARAD consider to be an Improvement, is eligible for M&amp;R subsidy if otherwise eligible for such subsidy pursuant to provisions of this Part.</P>
              <P>(b) <E T="03">Capital expenditures.</E> An expenditure in excess of $200,000 for work effected during any one or a series of repair periods, which is not necessary for maintenance or repair shall be considered to be a capital expenditure, ineligible for M&amp;R subsidy, except that work on an Eligible Vessel which the operator considers to be an Improvement is eligible for M&amp;R subsidy if, before awarding this work:</P>

              <P>(1) The Operator submits a written request to the Director, Office of Ship <PRTPAGE P="91"/>Operations, for consideration of the expenditures;</P>
              <P>(2) The Director determines that the work is an Improvement and is technically acceptable; and</P>
              <P>(3) The Associate Administrator for Maritime Aids approves M&amp;R subsidy for the work, as appropriate, pursuant to the provisions of title VI of the Act.</P>
              <P>(c) <E T="03">Improvements performed in more than one repair period.</E> Whenever an Operator desires to spread the work incident to any Improvement over more than one repair period, the operator shall give written notice to the Director, Office of Ship Operations, prior to commencement of the work, as to the scope of work involved, expected benefits, the number of voyages over which the work will be spread and the estimated total cost. The operator shall report in the Subsidy Repair Summary (Form MA-140) the actual total cost of such work, covering the repair period in which it is finally completed, and shall attach a copy of the acknowledgement of such notification to the Form MA-140.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.23</SECTNO>
              <SUBJECT>Examples of ineligible expenses.</SUBJECT>
              <P>Expenses ineligible for M&amp;R subsidy participation include, but are not limited to, the following examples:</P>
              <P>(a) <E T="03">Specialized improvements.</E> Any expenditure or Improvement required to alter, outfit or otherwise equip a vessel for its intended subsidized service which MARAD determines should have been performed before the initial entry of the vessel into subsidized service;</P>
              <P>(b) <E T="03">Convenience items.</E> Any expenditure for items that the Region Director determines to be aboard a ship only for the convenience of the Operator or crew members, and which are not considered integral parts of the vessel and are not required for seaworthiness, navigation or the health or well-being of the crew or passengers.</P>
              <P>(c) <E T="03">Unsupported expenses.</E> Any expense item which the Operator fails to substantiate adequately with documentation, as required by § 272.24.</P>
              <P>(d) <E T="03">Untimely requests for review.</E> Any disallowed expense item for which the Operator fails to make a timely request for review, as required by § 272.43.</P>
              <P>(e) <E T="03">Untimely appeals.</E> Any expense item disallowed in the final determination by the Director, Office of Ship Operations, for which the Operator fails to make a timely appeal to the Board, pursuant to § 272.43.</P>
              <P>(f) <E T="03">Absence of notice of multi-repair period Improvements.</E> Any expenses for an Improvement extending over more than one repair period in which the Operator did not notify the Director, Office of Ship Operations, as required by § 272.22(c).</P>
              <P>(g) <E T="03">Cargo expenses.</E> Any expense of special cargo fittings of a temporary nature, dunnage, ceiling, battens, the cleaning of cargo holds and tanks for cargo, the reading and certification of temperatures for refrigerated cargoes, and similar expenses.</P>
              <P>(h) <E T="03">Stevedore damage.</E> Any expense or any damage to the vessels or cargo gear directly attributable to a stevedore.</P>
              <P>(i) <E T="03">Rented equipment.</E> Any expense for the rental of Permanent or Expendable Equipment, such as compressors, paint floats, and other similar items for use by shore gangs or ship's crew on repair or other work, radar, radio telephones, and other similar items for use by ship's crew in ship operations.</P>
              <P>(j) <E T="03">Special requirements for trade routes.</E> Any expense for the initial installation of equipment necessary for the vessel's particular trade route, such as Suez Canal davits, which should have been installed before the entry of the vessel into the particular subsidized service.</P>
              <P>(k) <E T="03">General operating expenses.</E> Any expense for the loading of stores, the landing and sorting of laundry, pilot service, tug charges, removing surplus equipment to warehouses, and other similar expenses which do not involve actual maintenance and repair.</P>
              <P>(l) <E T="03">Items attributable to unsubsidized operations.</E> Any item of maintenance or repair that is clearly attributable to unsubsidized operation, including expenses noted in on-subsidy surveys for repairs which clearly should have been made before departure from the last United States port on the first voyage:</P>
              <P>(1) In subsidized service, or</P>

              <P>(2) Upon resumption of subsidized operation following temporary withdrawal.<PRTPAGE P="92"/>
              </P>
              <P>(m) <E T="03">Overdue classification and inspection requirements.</E> Any expenses for work required by a classification society or an agency of the Federal Government, which was due (irrespective of any grace period granted) and not completed before the first voyage:</P>
              <P>(1) In subsidized service, or</P>
              <P>(2) Upon resumption of subsidized operation following temporary withdrawal, except when such work is attributable to prior subsidized service.</P>
              <P>(n) <E T="03">Foreign maintenance and repairs.</E> Any expense for any item of M&amp;R, including insurance repairs, that is not of Domestic Origin.</P>
              <P>(o) <E T="03">Marine or other loss.</E> Any part of an expense or a repair which is recovered or recoverable from an insurer or another party.</P>
              <P>(p) <E T="03">Consumables, expendables.</E> Any procurement expense for consumables, expendables, and Expendable Equipment, when used or installed by ship's crew or furnished for inclusion in ship's inventory, and any expense for maintenance, repair, or replacement of Expendable Equipment.</P>
              <P>(q) <E T="03">Excessive costs.</E> Costs for M&amp;R which MARAD considers excessive, after allowing the Operator an opportunity to present all relevant facts pertinent to such costs.</P>
              <P>(r) <E T="03">Overhead costs.</E> Any expense included in shore gang labor charges which is an overhead item, as prescribed by 46 CFR part 232—Uniform Financial Reporting Requirements.</P>
              <P>(s) <E T="03">Guarantee items.</E> Any expense for an item adjudged or noted as being a guarantee item of a construction or repair contractor.</P>
              <CITA>[55 FR 34919, Aug. 27, 1990, as amended at 57 FR 34690, Aug. 6, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.24</SECTNO>
              <SUBJECT>Subsidy repair summaries.</SUBJECT>
              <P>(a) <E T="03">Filing requirements.</E> The Operator of an Eligible Vessel shall submit to the appropriate MARAD regional Ship Operations Office a Subsidy Repair Summary (Form MA-140) for each quarter of a calendar year in which one or more of the Operator's Eligible Vessels (including any vessel which has been temporarily withdrawn from subsidized service) terminates a voyage. This quarterly report shall include supporting documents and information, as described in paragraph (c) of this section. This summary may be for either a single voyage or multiple voyages, and shall be filed not later than 120 days after:</P>
              <P>(1) The close of the calendar quarter in which a voyage is terminated, or</P>
              <P>(2) The date the reported vessel is temporarily or permanently withdrawn from subsidized service.</P>
              <P>(b) <E T="03">Form requirements.</E> MARAD will make available one copy of Form MA-140 upon request. Each Operator shall furnish its own supply of the form and prepare each form for submission. Information on any Form MA-140 shall pertain to only one vessel. The Operator's superintendent engineer or other responsible official shall certify every summary submitted by an Operator in the following manner:
              </P>
              <EXTRACT>

                <FP>This is to certify that, to the best of my knowledge and belief, and based on recorded entries through (<E T="03">Date</E>), this is a true and correct statement of repair and maintenance expenditures for the period stated, and that the repair and maintenance items indicated as eligible for subsidy participation are reasonably attributable to service subsequent to commencement of the first voyage under the Operating-Differential Subsidy Agreement and were necessary, satisfactorily completed, and the price is fair and reasonable (exceptions are listed on separate page).</FP>
              </EXTRACT>
              
              <P>(c) <E T="03">Categorization.</E> The Operator shall exercise due diligence in identifying each item in the Form MA-140 within the following three separate categories:</P>
              <P>(1) <E T="03">Claimed for subsidy.</E> This includes the following:</P>
              <P>(i) M&amp;R</P>
              <P>(ii) Spare Parts</P>
              <P>(iii) Improvements</P>
              <P>(2) <E T="03">Marine loss.</E> If any M&amp;R expense is incurred because of marine loss, the Operator shall list such an M&amp;R expense under this separate category, and shall exclude such expense from the totals for the “Claimed for Subsidy” and “Non-Subsidized Items” categories provided for in this section.</P>
              <P>(3) <E T="03">Non-subsidized items.</E> This category shall include builders' guarantee items, foreign repairs, and other items of M&amp;R expense not claimed for subsidy.</P>
              <P>(d) <E T="03">Required supporting documents and information—</E>(1) <E T="03">General.</E> The Operator shall support every item in the Form MA-140 with documents or other information, in sufficient detail to permit <PRTPAGE P="93"/>MARAD to determine the fairness and reasonableness of the prices for the submitted work. With respect to any claims for M&amp;R performed outside the United States, the Operator shall submit with the claim a certificate, signed either by the Operator (if it uses its own shore gang labor or materials from its own inventory) or by an official of the ship repair yard or the independent contractor performing the work, stating that the M&amp;R were performed with materials, labor, or both, of Domestic Origin.</P>
              <P>(2) <E T="03">U.S. Independent contractors.</E> If a U.S. independent contractor performed M&amp;R work, the Operator shall support each such expense with one copy of the contractor's invoices covering the work performed. If an invoice is not itemized and fully descriptive of the work performed with item prices then the Operator shall attach to the contractor's invoice other supporting documentation, such as specifications, prepared in sufficient detail to permit a determination of the fairness and reasonableness of the prices for each segment of the work performed.</P>
              <P>(3) <E T="03">Operator's shore gang.</E> If an Operator's own U.S. shore gang has performed any M&amp;R work, the Operator shall submit with the Form MA-140 specifications covering that work, prepared in sufficient detail (including the material and labor cost of each item) to permit a determination of the specific cost of each segment of work performed.</P>
              <P>(4) <E T="03">Operator furnished material.</E> Whenever an Operator furnishes to a contractor material obtained either from the Operator's own ship stores or shoreside inventory, or by direct purchase for a specific job, the Operator shall include on the invoice, requisition form or other form of transfer memorandum the item number for which the material was used and the contract number covering the work performed.</P>
              <P>(5) <E T="03">Spare parts.</E> The Operator shall ensure that the invoice covering any Spare Part for an Eligible Vessel which is to be used or installed as an integral, permanent part of the vessel, indicates the specific piece or part of the vessel's hull, machinery, or Equipment for which the Spare Part was obtained.</P>
              <P>(6) <E T="03">Foreign repairs.</E> Operators receiving M&amp;R subsidy shall submit copies of all U.S. Customs entry forms detailing foreign expenditures on behalf of Eligible Vessels. The copies shall include all expenditures made during the quarter.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 2133-0007)</APPRO>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.25</SECTNO>
              <SUBJECT>Requirements for subsidy repayment.</SUBJECT>
              <P>(a) <E T="03">Repayment of M&amp;R subsidy for compensated marine or other loss.</E> If an Operator eventually receives compensation from an insurer or any other person for a marine loss or any other loss for which M&amp;R subsidy has been paid, the Operator shall repay to MARAD an amount equal to the amount of subsidy paid with respect to that loss.</P>
              <P>(b) <E T="03">Repayment of M&amp;R subsidy for Improvements—three year service requirement.</E> If, within three years after the completion of an Improvement for which M&amp;R subsidy was paid, the Operator permanently withdraws the Eligible Vessel from the ODSA, the Operator shall repay to MARAD an amount equal to the amount of M&amp;R subsidy paid with respect to that Improvement unless MARAD shall have determined that such action was beyond the control of the Operator.</P>
              <P>(c) <E T="03">Repayment of M&amp;R subsidy due to allocation of costs.</E> If the allocation of total M&amp;R costs required by § 272.41(e) of this part results in the allocation of a lesser amount of subsidizable M&amp;R costs than were actually paid for during the calendar year, the Operator shall repay to MARAD the amount of ODS which was paid in excess of the allocated subsidizable costs.</P>
              <P>(d) <E T="03">Administrative action.</E> If an Operator fails to repay an M&amp;R subsidy required to be repaid by this section, MARAD may either reduce any ODS payable by the amount of M&amp;R subsidy required to be repaid by this section, or take any other action necessary to secure repayment.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Penalties</HD>
            <SECTION>
              <SECTNO>§ 272.31</SECTNO>
              <SUBJECT>Determination of penalty.</SUBJECT>

              <P>Operators whose Eligible Vessels have undergone foreign repairs, which MARAD determines are non-emergency in nature, may be subject to a penalty <PRTPAGE P="94"/>in an amount equal to the total cost (exclusive of applicable U.S. Customs duties) of such foreign repairs and purchases, such penalty to be effected by a deduction from the Operator's total ODS otherwise accrued. The Director, Office of Ship Operating Assistance, shall notify the Operator by letter with respect to:</P>
              <P>(a) MARAD's determination of a penalty and the reasons therefore; and</P>
              <P>(b) Whether the determination is final or subject to the submission of additional information.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.32</SECTNO>
              <SUBJECT>Mitigation of penalty.</SUBJECT>
              <P>The Director, Office of Ship Operating Assistance, may decide, after a non-emergency foreign repair occurs, to mitigate the penalty. Any mitigation of penalty shall be based on a determination that special circumstances existed at the time of repair. The Director shall not consider the difference in the price of foreign and domestic repair work in making this determination, and shall not grant prior approval of foreign repairs. In determining whether special circumstances existed, the Director shall consider, among others, the following factors:</P>
              <P>(a) The trading area of the vessel both before and after the repair was performed;</P>
              <P>(b) Loss of revenue and effect on vessel utilization if the vessel had returned to the United States for repairs;</P>
              <P>(c) The additional operating expense which would have resulted from a return to the United States to repair the vessel; and</P>
              <P>(d) Whether the repairs could have been deferred until return to the United States, taking into consideration the Coast Guard requirements for dry docking and special surveys.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.33</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
              <P>The Operator may appeal final penalty determinations of the Director, Office of Ship Operating Assistance, to the Board, as provided in § 272.43(c) of this part.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Examination, Audit, Review and Appeal Procedures</HD>
            <SECTION>
              <SECTNO>§ 272.41</SECTNO>
              <SUBJECT>Requirements for examination and allocation of M&amp;R expenses.</SUBJECT>
              <P>(a) <E T="03">Examination requirement.</E> Pursuant to the specific limitations on M&amp;R subsidy in section 603 of the Act, the Region Office shall examine the expenses submitted by an operator on Form MA-140 in order to determine eligibility to receive M&amp;R subsidy and the reasonableness of such expenses.</P>
              <P>(b) <E T="03">Operator's responsibility.</E> During the examination, the operator shall provide, at the request of the Director or other official of the Region Office, any further documentation or information necessary to support an M&amp;R expense. If such documentation or information, including information required under paragraph (e) of this section, is not received at the Region Office on a timely basis, the Director or other official of the Region Office may disallow the M&amp;R expense.</P>
              <P>(c) <E T="03">Notification of examination results.</E> At the completion of the examination the Director or other appropriate official of the applicable Region Office shall notify the Operator by letter of the results of the examination, and shall state the reason for each disallowance of an item claimed for subsidy and/or each nonapproval of a marine loss item.</P>
              <P>(d) <E T="03">Record retention requirements.</E> To facilitate an audit examination of M&amp;R made pursuant to § 272.42 of this part, the Operator shall maintain files arranged by vessel and voyage, which shall include, at a minimum, a copy of the Region Office notice letter, a copy of the Form MA-140 with all supporting documents submitted therewith, and the condition survey report. The Operator shall retain all the required materials in files for not less than 3 years after completion of the audit.</P>
              <P>(1) <E T="03">Limitation on approval.</E> Any approval for payment of M&amp;R subsidy for a marine loss item shall be subject to rescission or modification if the Operator subsequently receives insurance or other compensation for the item. The Region Finance Officer may at any <PRTPAGE P="95"/>time request verification that the Operator has not received such compensation.</P>
              <P>(2) <E T="03">Status report on approved marine loss items.</E> The Operator shall advise the Region Finance Office by letter as to whether insurance or other compensation will be recovered for the marine loss item. The Operator is responsible for ensuring that the letter reaches the applicable Region Office within 120 days after:</P>
              <P>(i) The date on which all repairs for damage attributed to the “Policy Voyage” (as defined in the Operator's insurance policy) are completed, when the amount for such repairs does not exceed the franchise or deductible of the policy, or</P>
              <P>(ii) The date of the underwriter's rejection of the Operator's marine loss insurance claim or claims.</P>
              <APPRO>(Reporting and recordkeeping requirements contained in paragraph (d) introductory text were approved by the Office of Management and Budget under control number 2133-0007)</APPRO>
              <CITA>[55 FR 34919, Aug. 27, 1990, as amended at 61 FR 32706, June 25, 1996]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.42</SECTNO>
              <SUBJECT>Audit requirements and procedures.</SUBJECT>
              <P>(a) <E T="03">Required audit.</E> In connection with the audit of the Operator's subsidizable expenses, the Office of the Inspector General, Department of Transportation, shall audit for MARAD the Operator's M&amp;R costs, as necessary, for the determination of final subsidy rates. The Operator shall substantiate those costs recorded on the books of account which have been approved by the Administration.</P>
              <P>(b) <E T="03">Notification of audit results.</E> Upon completion of the audit by the Office of Inspector General, the MARAD Office of Financial Approvals shall notify the Operator of the audit results, including any items disallowed and the reasons for such disallowance.</P>
              <CITA>[57 FR 34690, Aug. 6, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.43</SECTNO>
              <SUBJECT>Review and appeal procedures.</SUBJECT>
              <P>(a) <E T="03">Exclusive procedures.</E> Notwithstanding the audit appeal procedures of part 205 of this chapter, the provisions of this section shall be the exclusive remedy available to an Operator for the review and appeal of any disallowance of subsidy for a M&amp;R expense claimed or any penalty assessed pursuant to § 272.31.</P>
              <P>(b) <E T="03">Request for review.</E> An Operator may request review by:</P>
              <P>(1) The Director, Office of Ship Operations, with respect to any disallowance by the Region office of a claimed M&amp;R expense, after receiving the notification required by § 272.41(c); or</P>
              <P>(2) The Director, Office of Financial Approvals, with respect to any disallowance of a claimed M&amp;R expense, after receiving the notification required by § 272.42(b).</P>
              <P>(c) <E T="03">Timeliness of request.</E> The Operator shall file all requests for review pursuant to paragraph (b) of this section within 60 days after the date of the audit notification. Any disallowance with respect to which the Operator fails to file a timely request for review shall be final and shall not be subject to appeal to the Board pursuant to paragraph (e) of this section.</P>
              <P>(d) <E T="03">Notification of review determination.</E> The appropriate MARAD Office Director shall notify the Operator by letter, with respect to each timely filed review request, of the Director's determination and the reasons for each disallowance and whether the determination is final or subject to the submission of additional information.</P>
              <P>(e) <E T="03">Appeal to the Maritime Subsidy Board</E>—(1) <E T="03">Right to appeal.</E> An Operator may appeal a MARAD Office Director's final determination issued pursuant to § 272.32 (penalties) or § 272.43 (review of claims disallowance or of audit results) of this section to the Board in writing.</P>
              <P>(2) <E T="03">Contents and timeliness.</E> The Operator shall set forth in any appeal the reasons for the Operator's objection to a penalty or disallowance of M&amp;R subsidy and shall file such appeal with the Secretary of the Board within 60 days after the date of the notification sent to the operator by the appropriate Director pursuant to paragraph (d) of this section or § 272.33.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 272.44</SECTNO>
              <SUBJECT>Dates.</SUBJECT>

              <P>The dates noted on the letters or notifications sent to the Operator by officials of the Region Office, any Director or any other official or MARAD, pursuant to the provisions of this part, shall <PRTPAGE P="96"/>be conclusive for the purposes of determining the timeliness of any requests for review made under the provisions of this part.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 276</EAR>
          <HD SOURCE="HED">PART 276—CONSTRUCTION-DIFFERENTIAL SUBSIDY REPAYMENT</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>276.1</SECTNO>
            <SUBJECT>Partial repayment—incidental domestic trading.</SUBJECT>
            <SECTNO>276.2</SECTNO>
            <SUBJECT>Reporting requirement—partial repayment.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>46 App. U.S.C. 1114(b), 1117, 1156, and 1204; 49 CFR 1.66.</P>
          </AUTH>
          <SECTION>
            <SECTNO>§ 276.1</SECTNO>
            <SUBJECT>Partial repayment—incidental domestic trading.</SUBJECT>
            <P>In every instance where a vessel, with respect to which a construction-differential subsidy has been paid or allowance therefor has been made in calculating the basic charter hire under section 714 of the Merchant Marine Act, 1936, as amended (49 Stat. 1995, 52 Stat. 995; 46 U.S.C. 1151) is operated in other than exclusively foreign trade, the owner or charterer thereof shall pay to the Maritime Administration, not later than March 31 of the calendar year succeeding such operation, the proportion of the difference between the domestic and foreign cost of such vessel that is required to be paid to the Maritime Administration in such act, and particularly sections 506 and 714 thereof.</P>
            <SECAUTH>(Sec. 204, 49 Stat. 1987, as amended; 46 U.S.C. 1114)</SECAUTH>
            <CITA>[G.O. 50, 7 FR 588, Jan. 29, 1942, as amended at 45 FR 68394, Oct. 15, 1980]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 276.2</SECTNO>
            <SUBJECT>Reporting requirement—partial repayment.</SUBJECT>
            <P>Every owner of a vessel for which a construction-differential subsidy has been paid and every charterer of a vessel constructed under the provisions of the Merchant Marine Act, 1936, shall file with the Maritime Administration a General Financial Statement in the form and at the times prescribed by the Maritime Administration but not less frequently than annually; the amount of the payment due the Maritime Administration on account of the operation of such vessel in other than exclusively foreign trade must be shown in Balance Sheet Account No. 430; and a schedule reflecting the details of the manner in which the amount of such payment was determined must be made a corporate part of the General Financial Statement.</P>
            <SECAUTH>(Sec. 204, 49 Stat. 1987, as amended; 46 U.S.C. 1114)</SECAUTH>
            <CITA>[G.O. 50, 7 FR 588, Jan. 29, 1942, as amended at 45 FR 68394, Oct. 15, 1980]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 277</EAR>
          <HD SOURCE="HED">PART 277—DOMESTIC AND FOREIGN TRADE; INTERPRETATIONS</HD>
          <SECTION>
            <SECTNO>§ 277.1</SECTNO>
            <SUBJECT>Guam, Midway and Wake.</SUBJECT>
            <P>Steamship service between ports of the United States mainland and ports in the islands of Guam, Midway and Wake is not “domestic intercoastal or coastwise service” within the meaning of section 805(a) of the Merchant Marine Act, 1936. This interpretation is limited to Guam, Midway and Wake and does not signify that a similar interpretation is or would be applicable to Hawaii, Puerto Rico or Alaska.</P>
            <SECAUTH>(Sec. 204, 49 Stat. 1987, as amended; 46 U.S.C. 1114. Interprets or applies sec. 805, 49 Stat. 2012, as amended; 46 U.S.C. 1223)</SECAUTH>
            <CITA>[G.O. 73, 15 FR 9065, Dec. 19, 1950]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 280</EAR>
          <HD SOURCE="HED">PART 280—LIMITATIONS ON THE AWARD AND PAYMENT OF OPERATING-DIFFERENTIAL SUBSIDY FOR LINER OPERATORS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>280.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>280.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>280.3</SECTNO>
            <SUBJECT>Standards governing award of an ODS agreement.</SUBJECT>
            <SECTNO>280.4</SECTNO>
            <SUBJECT>Standards governing payment of ODS.</SUBJECT>
            <SECTNO>280.5</SECTNO>
            <SUBJECT>Criteria for determining whether or not civilian preference cargo is carried at a premium rate.</SUBJECT>
            <SECTNO>280.6</SECTNO>
            <SUBJECT>Calendar year accounting.</SUBJECT>
            <SECTNO>280.7</SECTNO>
            <SUBJECT>Reporting and recordkeeping requirements.</SUBJECT>
            <SECTNO>280.8</SECTNO>
            <SUBJECT>Certain ODS agreement provisions not affected.</SUBJECT>
            <SECTNO>280.9</SECTNO>
            <SUBJECT>Special rules for last year of ODS agreement.</SUBJECT>
            <SECTNO>280.10</SECTNO>
            <SUBJECT>Waiver.</SUBJECT>
            <SECTNO>280.11</SECTNO>
            <SUBJECT>Example of calculation and sample report.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>

            <P>Sec. 204(b), Merchant Marine Act, 1936, as amended (46 U.S.C. 1114) Reorganization Plans No. 21 of 1950 (64 Stat. 1273) and No. 7 of 1961 (75 Stat. 840) as amended by Pub. L. 91-469 (84 Stat. 1036), Department of <PRTPAGE P="97"/>Commerce Organization Order 10-8 (38 FR 19707, July 23, 1973).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>42 FR 61460, Dec. 5, 1977, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 280.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <P>The purpose of this part is to prescribe regulations governing the award of operating-differential subsidy agreements and payment of operating-differential subsidy to liner operators under Title VI of the Merchant Marine Act, 1936, as amended, as interpreted by the Maritime Subsidy Board in Docket No. S-244.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.2</SECTNO>
            <SUBJECT>Defintions.</SUBJECT>
            <P>For purposes of this part only:</P>
            <P>(a) <E T="03">Commercial cargo</E> means cargo other than military cargo and civilian preference cargo.</P>
            <P>(b) <E T="03">Military cargo</E> means that cargo required to be carried on a U.S.-flag vessel by 10 U.S.C. 2631.</P>
            <P>(c) <E T="03">Civilian preference cargo</E> means any cargo other than military cargo required by law to be carried on a U.S.-flag vessel, including, but not limited to, cargo required to be carried on a U.S.-flag vessel by 15 U.S.C. 616a and 46 U.S.C. 1241(b).</P>
            <P>(d) <E T="03">Conference-rated civilian preference cargo</E> means any civilian preference cargo moving at rates set by an international rate conference.</P>
            <P>(e) <E T="03">International rate conference</E> means any formal organization of competing carriers established for the purpose of setting shipping rates.</P>
            <P>(f) <E T="03">Open-rated civilian preference cargo</E> means any civilian preference cargo moving at a rate other than a set rate established by an international rate conference.</P>
            <P>(g) <E T="03">Open-rated civilian preference cargo carried at the world rate</E> means any open-rated civilian preference cargo that is considered pursuant to § 280.5 not to be carried at a premium rate.</P>
            <P>(h) <E T="03">Competitive cargo</E> means commercial cargo, conference-rated civilian preference cargo, and open-rated civilian preference cargo carried at the world rate.</P>
            <P>(i) <E T="03">Secretary</E> means the Secretary of the Maritime Administration, Department of Transportation.</P>
            <P>(j) <E T="03">Region Director</E> means the Region Director of the Maritime Administration within whose region the principal office of the operator is located.</P>
            <P>(k) <E T="03">Operator</E> means any individual, partnership, corporation or association that contracts with the United States Government under Title VI of the Act to receive ODS.</P>
            <P>(l) <E T="03">Board</E> means the Maritime Subsidy Board of the Maritime Administration, Department of Transportation.</P>
            <P>(m) <E T="03">Act</E> means the Merchant Marine Act, 1936, as amended.</P>
            <P>(n) <E T="03">Operating-differential subsidy (ODS)</E> means, except as the operator and the United States Government shall agree upon a lesser amount, the excess of the cost of subsidizable items of expense incurred in the operation under United States registry of a vessel over the estimated fair and reasonable cost of the same items of expense (excluding any increase in the cost of such items necessitated by features incorporated for national defense), if such vessel were operated under the registry of a foreign country whose vessels are substantial competitors of the vessel.</P>
            <P>(o) <E T="03">Gross freight revenue</E> means total gross receipts earned from the carriage of cargo (other than mail) in the U.S. foreign commerce.</P>
            <P>(p) <E T="03">Miscellaneous gross revenue</E> means total gross receipts earned in the U.S. foreign commerce from the carriage of passengers and mail plus miscellaneous voyage revenues.</P>
            <P>(q) <E T="03">Inbound gross freight revenue</E> means gross freight revenue earned from the carriage of cargo in foreign commerce inbound to the United States.</P>
            <P>(r) <E T="03">Outbound gross freight revenue</E> means gross freight revenue earned from the carriage of cargo in foreign commerce outbound from the United States.</P>
            <P>(s) <E T="03">Wayport gross freight revenue</E> means gross freight revenue earned from the carriage of cargo between foreign ports.</P>
            <P>(t) <E T="03">Total gross revenue</E> means the sum of inbound gross freight revenue, outbound gross freight revenue, wayport gross freight revenue and miscellaneous gross revenue.</P>
            <P>(u) <E T="03">Service</E> means any essential service in the foreign commerce of the United States under section 211(a) of <PRTPAGE P="98"/>the Act for which an ODS agreement has been entered into by the operator and the United States.</P>
            <P>(v) <E T="03">ODS payable on the inbound leg of a service</E> means the inbound gross freight revenue of the service divided by the total gross revenue of the service times the ODS payable for the service.</P>
            <P>(w) <E T="03">ODS payable on the outbound leg of a service</E> means the outbound gross freight revenue of the service divided by the total gross revenue of the service times the ODS payable for the service.</P>
            <P>(x) <E T="03">U.S. foreign commerce</E> means the commerce or trade between the United States, its territories or possessions, or the District of Columbia and a foreign country.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.3</SECTNO>
            <SUBJECT>Standards governing award of an ODS agreement.</SUBJECT>
            <P>No ODS agreement, including any amendments thereto concerning additional services or revised service area, shall be made under Title VI of the Act, unless the applicant establishes in its application to the satisfaction of the Board, that the vessel operations proposed to be subsidized will be conducted in a manner which will not preclude the applicant from earning at least 50 percent of its inbound gross freight revenue and at least 50 percent of its outbound gross freight revenue for each service covered by the application from the carriage of competitive cargo.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.4</SECTNO>
            <SUBJECT>Standards governing payment of ODS.</SUBJECT>
            <P>(a) <E T="03">Full payment.</E> Except to the extent otherwise provided in § 280.8, ODS shall be paid in full to the operator for vessel operations on the inbound and outbound legs of each service if, during the calendar year, at least 50 percent of the inbound and 50 percent of the outbound gross freight revenues earned on voyages terminated during the calendar year, for each service, are earned from the carriage of competitive cargo.</P>
            <P>(b) <E T="03">Reduction in payment</E>—(1) <E T="03">Inbound leg of service.</E> The amount of ODS payable for the inbound leg of a service for the calendar year shall be reduced as provided in paragraph (b)(3) of this section if, during the calendar year, less than 50 percent of the inbound gross freight revenue earned in such service, on voyages terminated during the calendar year, is earned from the carriage of competitive cargo.</P>
            <P>(2) Outbound leg of service. The amount of ODS payable for the outbound leg of a service for the calendar year shall be reduced as provided in paragraph (b)(3) of this section if, during the calendar year, less than 50 percent of the outbound gross freight revenue earned in such service, on voyages terminated during the calendar year, is earned from the carriage of competitive cargo.</P>
            <P>(3) <E T="03">ODS reduction formula.</E> The reduction in ODS payable required by paragraphs (b) (1) and (2) of this section for any calendar year shall be made by reducing the amount payable on one or more ODS vouchers for the subsequent calendar year by a cumulative amount equal to an amount determined in accordance with the following table:</P>
            <GPOTABLE CDEF="s50,6" COLS="2" OPTS="L2">
              <BOXHD>
                <CHED H="1">Percent of inbound or outbound gross freight revenue from carriage of competitive cargo</CHED>
                <CHED H="1">ODS reduction <SU>1</SU>
                </CHED>
              </BOXHD>
              <ROW>
                <ENT I="01">40 to 49.9</ENT>
                <ENT>20</ENT>
              </ROW>
              <ROW>
                <ENT I="01">30 to 39.9</ENT>
                <ENT>40</ENT>
              </ROW>
              <ROW>
                <ENT I="01">20 to 29.9</ENT>
                <ENT>60</ENT>
              </ROW>
              <ROW>
                <ENT I="01">10 to 19.9</ENT>
                <ENT>80</ENT>
              </ROW>
              <ROW>
                <ENT I="01">0 to 9.9</ENT>
                <ENT>100</ENT>
              </ROW>
              <TNOTE>
                <SU>1</SU> Expressed in percent of total ODS payable for cargo carriage on the inbound or outbound leg of the service.</TNOTE>
            </GPOTABLE>
            <P>(4) <E T="03">Last calendar year exception.</E> The provisions of this paragraph do not apply to the last calendar year of an ODS agreement except to the extent that any reduction in ODS payable required by this section for the calendar year immediately preceding the last calendar year is to be made, pursuant to paragraph (b)(3) of this section, on ODS vouchers submitted in the last calendar year.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.5</SECTNO>
            <SUBJECT>Criteria for determining whether or not civilian preference cargo is carried at a premium rate.</SUBJECT>
            <P>Civilian preference cargo shall be considered to be carried at a premium rate unless carried:</P>

            <P>(a) At the tariff commodity rate published in a conference tariff or at the stated minimum level or floor rate for an open-rated commodity published in a conference tariff, <E T="03">Provided,</E> That the international rate conference issuing such tariff commodity rate, stated <PRTPAGE P="99"/>minimum level, or floor rate has at least one foreign-flag carrier as a voting member, or</P>

            <P>(b) At a rate or tariff agreement rate, or at the stated minimum level or floor rate for an open-rated commodity, established by a rate making group other than an international rate conference, <E T="03">Provided,</E> That such rate making group has at least one foreign-flag carrier as a voting member, or</P>
            <P>(c) At a rate approximately the same as or less, or at a rate that the subsidized operator by use of indices or other mechanism can demonstrate is reasonably equated to or less, than a rate quoted or actually charged by a foreign-flag carrier for the same commodity with the same or a competitive origin and destination and within a reasonably similar time period. This paragraph is applicable to, but is not limited to, rates:</P>
            <P>(1) Established by a conference or other rate making group that has only U.S. flag carriers as voting members;</P>
            <P>(2) Quoted by an individual member of an international rate conference or other rate making group with permits an individual member to negotiate or otherwise establish its own rate; or</P>
            <P>(3) Quoted by a carrier and not published in any conference tariff.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.6</SECTNO>
            <SUBJECT>Calendar year accounting.</SUBJECT>
            <P>Except as provided in § 280.9 (relating to the final year of an ODS agreement), the calculations required under this part for years after 1973 shall be on the basis of voyages terminated during the calendar year. Calculations for the calendar year 1973 shall be made on the basis of voyages commenced and terminated in 1973.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.7</SECTNO>
            <SUBJECT>Reporting and recordkeeping requirements.</SUBJECT>
            <P>(a) <E T="03">Reporting requirement.</E> Except as provided in § 280.9 of this part (relating to the final year of an ODS agreement), each operator shall submit to the Secretary (two copies) and to the Region Director (one copy), by March 31 of the succeeding year, a report for each calendar year setting forth for each service; the total gross revenue, the miscellaneous gross revenue, the inbound and outbound gross freight revenues, the wayport gross freight revenue, and the outbound and inbound gross freight revenues earned from the carriage of military cargo and from the carriage of civilian preference cargo carried at premium rates as determined pursuant to § 280.5. See § 280.10(b) for the form of the report required to be submitted by this paragraph.</P>
            <P>(b) <E T="03">Recordkeeping requirement.</E> In support of each report submitted pursuant to this section or § 280.9, each operator shall:</P>
            <P>(1) Maintain and make available for audit upon request, records for each service, outbound and inbound, which show for each item of civilian preference cargo carried during the calendar year, the name of the commodity carried according to the tariff desription, the rate at which it was carried, the world rate for the commodity for the same or a competitive origin and destination and within a reasonably similar time period, and whether or not the item was considered to have been carried at a premium rate, or</P>
            <P>(2) Establish upon request to the satisfaction of the Region Director, by demonstration of its accounting system or by other reasonable means, that the report filed under paragraph (a) of this section is substantially correct.</P>
            <P>(c) <E T="03">Certification of report.</E> Each report submitted pursuant to this section or § 280.9 must be accompanied by a certification by a responsible official of the operator in the following form:
            </P>
            <EXTRACT>
              <P>I hereby certify to the best of my knowledge and belief that this report is complete and accurate and conforms to the requirements of 46 CFR part 280.</P>
            </EXTRACT>
            
            <P>(d) <E T="03">Requirements for requesting confidentiality.</E> (1) Except as otherwise provided in this paragraph, the information contained in any report submitted pursuant to this section or § 280.9 is not entitled to be considered confidential for purposes of the Freedom of Information Act (5 U.S.C. 552).</P>

            <P>(2) If an operator desires confidential treatment of any information contained in such a submitted report, the operator is required to file concurrently with each such report a written request for a determination of confidentiality.<PRTPAGE P="100"/>
            </P>
            <P>(3) The operator shall include in any confidentiality request filed under this paragraph:</P>
            <P>(i) A precise, item-by-item specification of the information in the report that the operator asserts is within one of the exemptions from disclosure in 5 U.S.C. 552(b);</P>
            <P>(ii) A statement as to whether each identified item is treated as confidential by the operator and the steps taken by the operator to ensure that confidentiality; and</P>
            <P>(iii) An explanation of how release of each identified item would cause substantial competitive injury to the operator, and the exact nature of that injury.</P>
            <P>(4) An operator's general, unexplained assertions of exemption under section 552(b) are insufficient and the item or items concerned will not be considered for confidential treatment.</P>
            <P>(e) <E T="03">Determination.</E> (1) If it is determined that an exemption is applicable to an item or items of information which have been properly specified and supported in a confidentiality request under paragraph (d) of this section, the operator will be so notified in writing.</P>
            <P>(2) If it is determined that no exemption is applicable to or that none will be asserted for an item of information included in a confidentiality request, the operator will be given a written statement of and reasons for that determination.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.8</SECTNO>
            <SUBJECT>Certain ODS agreement provisions not affected.</SUBJECT>
            <P>The provisions of this part are not intended to supersede contractual or other requirements dealing with sailings, and the carriage of full loads of military or bulk cargoes.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.9</SECTNO>
            <SUBJECT>Special rules for last year of ODS agreement.</SUBJECT>
            <P>(a) <E T="03">Reduction in payment of ODS.</E> ODS payable during the last year of any ODS agreement shall be reduced, as provided in paragraph (b) of this section, if on a cumulative basis for each quarter of the calendar year:</P>
            <P>(1) Less than 50 percent of the inbound gross freight revenue earned on the inbound leg of a service, or</P>
            <P>(2) Less than 50 percent of the outbound gross freight revenue earned on the outbound leg of a service, is earned from the carriage of competitive cargo. Any reduction required by this paragraph is in addition to any reduction in ODS payable for the preceding calendar year as required by paragraph (b) (3) of § 280.4.</P>
            <P>(b) <E T="03">Amount and method of required reduction—</E>(1) <E T="03">Quarterly voucher.</E> As required by paragraph (a) of this section, the amount payable on the ODS voucher for the last month of any quarter of the last calendar year is to be reduced by an amount determined by applying the table in paragraph (b)(3) of § 280.4 to the cumulative ODS payable.</P>
            <P>(2) <E T="03">Insufficient ODS payable—</E>(i) <E T="03">Vouchers for subsequent months.</E> If the total amount of reduction required to be made pursuant to (b)(3) of § 280.4 or paragraph (b)(1) of this section or both, is greater than the amount of ODS payable on the ODS vouchers for the last month of the 1st, 2nd, or 3rd quarter of the last calendar year, the operator shall carry an amount equal to this excess forward to one or more of the months subsequent to such quarter of the last calendar year as a reduction in the ODS payable on the ODS voucher for any such subsequent months.</P>
            <P>(ii) <E T="03">Voucher in the final quarter.</E> If the amount of reduction required by paragraph (b)(1) of this secton is greater than the amount of ODS payable on the ODS voucher for the last month of the final quarter of the last calendar year, the Maritime Administrator may apply an amount equal to this excess as a reduction of any outstanding ODS payable to the operator for the last calendar year or any preceding years.</P>
            <P>(c) <E T="03">Reporting requirements.</E> During the last year of the ODS agreement, the operator shall submit a report to the Secretary (two copies) and to the Region Director (one copy) for each quarter of the calendar year, providing for each such quarter on a cumulative basis for the calendar year, the information required by paragraph (a) of § 280.7. The reports required by this paragraph shall be submitted concurrently with the operator's vouchers for the 3rd, 6th, 9th and 12th months of the calendar year. Each report submitted pursuant to this paragraph is also subject to the other applicable requirements of § 280.7.<PRTPAGE P="101"/>
            </P>
            <P>(d) <E T="03">Cumulative quarterly accounting.</E> The calculations required under this section shall be made on the basis of the cumulative voyages terminated from the beginning of the calendar year through the reported quarterly period.</P>
            <P>(e) <E T="03">Special procedures.</E> Whenever the Maritime Administrator, Department of Transportation determines that the provisions of this section may fail at any time to protect the interests of the Maritime Administration, the Maritime Administrator may take any measures necessary to ensure against an overpayment of ODS or to ensure the prompt repayment of any such overpayment.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.10</SECTNO>
            <SUBJECT>Waiver.</SUBJECT>
            <P>The Board has the power to waive the requirements of any provision of this part for a specific period of time under special circumstances and for good cause shown.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 280.11</SECTNO>
            <SUBJECT>Example of calculation and sample report.</SUBJECT>
            <P>(a) <E T="03">Example of calculation.</E> The provisions of this part may be illustrated by the following example:
            </P>
            <EXTRACT>
              <P>Company A operates several vessels engaged in carrying cargo, passengers and mail from the west coast of the United States outbound to foreign ports in the Far East, cargo between the foreign ports in the Far East, and cargo from foreign ports in the Far East inbound to the west coast of the United States. Company A's operation on this service is subsidized under an ODS agreement made in accordance with § 280.3. Total annual subsidy payable for Company A's service is $1 million. In 1976 Company A's total gross revenue was $10 million, computed as follows:</P>
              <GPOTABLE CDEF="s50,10" COLS="2" OPTS="L0,6/7">
                <ROW>
                  <ENT I="31">Outbound gross freight revenue</ENT>
                  <ENT>$4,000,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="31">Inbound gross freight revenue</ENT>
                  <ENT>4,000,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="31">Wayport gross freight revenue</ENT>
                  <ENT>1,000,000</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="31">Miscellaneous gross revenue</ENT>
                  <ENT>1,000,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">Total gross revenue</ENT>
                  <ENT>10,000,000</ENT>
                </ROW>
              </GPOTABLE>
              <P>Of the $4 million outbound gross freight revenue $1,600,000, or 40 percent, was earned from carriage of competitive cargo. Of the $4 million inbound gross freight revenue $1,200,000, or 30 percent, was earned from carriage of competitive cargo. Accordingly, total ODS payable to Company A for voyages terminated during the calendar year 1976 is reduced by $240,000, from $1 million to $760,000, as follows:</P>
              <GPOTABLE CDEF="s50,10" COLS="2" OPTS="L2,6/7">
                <ROW>
                  <ENT I="28">
                    <E T="04">outbound leg of service</E>
                  </ENT>
                </ROW>
                <ROW RUL="s">
                  <ENT I="11"/>
                </ROW>
                <ROW>
                  <ENT I="01">ODS payable</ENT>
                  <ENT>$400,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="12">(Outbound freight revenue, $4 million, divided by total gross revenue, $10 million, times total ODS payable for service, $1 million.)</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Percent reduction of ODS payable</ENT>
                  <ENT>20%</ENT>
                </ROW>
                <ROW>
                  <ENT I="12">(40% carriage of competitive cargo requires 20% reduction in ODS payable.)</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Amount of reduction in ODS payable</ENT>
                  <ENT>$80,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="12">(20% of $400,000.)</ENT>
                </ROW>
                <ROW RUL="s">
                  <ENT I="11"/>
                </ROW>
                <ROW>
                  <ENT I="11"/>
                </ROW>
                <ROW>
                  <ENT I="28">
                    <E T="04">inbound leg of service</E>
                  </ENT>
                </ROW>
                <ROW RUL="s">
                  <ENT I="11"/>
                </ROW>
                <ROW>
                  <ENT I="01">ODS payable</ENT>
                  <ENT>$400,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="12">(Inbound freight revenue, $4 million, divided by total gross revenue, $10 million, times total ODS payable for service, $1 million.)</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Percent reduction of ODS payable</ENT>
                  <ENT>40%</ENT>
                </ROW>
                <ROW>
                  <ENT I="12">(30% carriage of competitive cargo requires 40% reduction in ODS payable.)</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Amount of reduction in ODS payable</ENT>
                  <ENT>$160,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Total amount of reduction in ODS payable</ENT>
                  <ENT>$240,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="12">($80,000 plus $160,000.)</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Total ODS payable for service in 1976 (after reduction)</ENT>
                  <ENT>$760,000</ENT>
                </ROW>
                <ROW RUL="02,s">
                  <ENT I="12">($1 million minus $240,000.)</ENT>
                </ROW>
              </GPOTABLE>
            </EXTRACT>
            <WIDE>
              <P>(b) <E T="03">Sample report.</E> Reports providing the information required by §§ 280.7 and 280.9 shall be made in the following form:</P>
            </WIDE>
            <GPOTABLE CDEF="s50,10,10,10,10,10,10" COLS="7" OPTS="L2">
              <TTITLE>MA—819 (company)</TTITLE>
              <TDESC>Report of Revenues Earned for ___ <SU>1</SU> Pursuant to 46 CFR Part 280</TDESC>
              <TDESC>Form Approval—OMB No. 41.R2954—15</TDESC>
              <BOXHD>
                <CHED H="1"/>
                <CHED H="1">Trade Route No.</CHED>
                <CHED H="2">Dollars</CHED>
                <CHED H="2">Percent</CHED>
                <CHED H="1">Trade Route No.</CHED>
                <CHED H="2">Dollars</CHED>
                <CHED H="2">Percent</CHED>
                <CHED H="1">Trade Route No.</CHED>
                <CHED H="2">Dollars</CHED>
                <CHED H="2">Percent</CHED>
              </BOXHD>
              <ROW>
                <ENT I="11">Outbound freight revenue:</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Military and Premium Rated Civilian</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="02">Competitive</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
              </ROW>
              <ROW RUL="n,d">
                <PRTPAGE P="102"/>
                <ENT I="03">Total Outbound Freight Revenue</ENT>
                <ENT/>
                <ENT>100</ENT>
                <ENT/>
                <ENT>100</ENT>
                <ENT/>
                <ENT>100</ENT>
              </ROW>
              <ROW>
                <ENT I="11">Inbound freight revenue:</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Military and premium rated civilian</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="03">Competitive</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
              </ROW>
              <ROW RUL="n,d">
                <ENT I="03">Total inbound freight revenue</ENT>
                <ENT/>
                <ENT>100</ENT>
                <ENT/>
                <ENT>100</ENT>
                <ENT/>
                <ENT>100</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Wayport freight revenue</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="01">Miscellaneous revenue</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="03">Total gross revenue</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT/>
              </ROW>
              <TNOTE>
                <SU>1</SU> Enter Calendar Year _ or Cumulative Quarterly Period Ending __ as applicable for the report being filed.</TNOTE>
            </GPOTABLE>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 281</EAR>
          <HD SOURCE="HED">PART 281—INFORMATION AND PROCEDURE REQUIRED UNDER LINER OPERATING-DIFFERENTIAL SUBSIDY AGREEMENTS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>281.1</SECTNO>
            <SUBJECT>Information and procedure required under liner operating-differential subsidy agreements.</SUBJECT>
            <SECTNO>281.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>281.3</SECTNO>
            <SUBJECT>Method of commencing and terminating voyages and of determining idle status.</SUBJECT>
            <SECTNO>281.4</SECTNO>
            <SUBJECT>Treatment of subsidy during idle status and off-hire period.</SUBJECT>
            <SECTNO>281.5</SECTNO>
            <SUBJECT>Right of Maritime Administrator to recover subsidy for any period of idleness.</SUBJECT>
            <SECTNO>281.6</SECTNO>
            <SUBJECT>Interpretation.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 204, 49 Stat. 1987, as amended; 46 U.S.C. 1114. Interpret or apply sec. 606, 49 Stat. 2004, as amended; 46 U.S.C. 1176.</P>
          </AUTH>
          <SECTION>
            <SECTNO>§ 281.1</SECTNO>
            <SUBJECT>Information and procedure required under liner operating-differential subsidy agreements.</SUBJECT>
            <P>In compliance with the terms of the operating-differential subsidy agreement, the following information shall be submitted to the Maritime Administration by each operator who is a party to any such agreement and operates liner type vessels pursuant to such agreement.</P>
            <P>(a) <E T="03">Sailing schedules, routes, etc.</E> (1) One copy of a list of sailings is required to be submitted not later than the 5th day of each month, listing each outbound sailing during the preceding month. Such list shall show for each such sailing: (i) Vessel name; (ii) voyage number; (iii) last continental U.S. port; (iv) sailing date; and (v) the service on which the sailing took place.</P>
            <P>(2) A “Final Report” in five copies shall be submitted not later than 15 days after the end of the month in which the voyage is terminated and shall show: (i) The time and ports at which the voyage commenced and terminated; (ii) the arrival and sailing dates of the vessel at and from each United States and foreign port, including ports of call for bunkering and/or mail only; (iii) explanation of any delay in excess of 2 days at a United States or foreign port; (iv) appropriate notation of official authorization for any deviations from the service described in the applicable contract.</P>

            <P>(3) The procedures outlined in paragraphs (a) (1) and (2) of this section shall be effective on the first of the month following publication in the <E T="04">Federal Register.</E>
            </P>
            <P>(4) The sailing schedules and lists of sailings specified in this paragraph shall be sent to the Division of Trade Studies, Office of Subsidy Administration, Maritime Administration, Washington, DC 20590.</P>
            <P>(b) <E T="03">Condition of vessels, inspection and repairs.</E> (1) In order that the Maritime Administration may have an opportunity to participate in the inspection of the vessels, the operator is required to give at least twenty-four hours' notice to the Maritime Administration as <PRTPAGE P="103"/>to the time and place of making inspections. In the event the Maritime Administration's representative is not available, the operator shall employ an independent surveyor, who shall be satisfactory to the Maritime Administration, and proceed with inspection, and a report thereof shall be made to the Maritime Administration on forms MA-55, MA-56, MA-57, and MA-58, sworn to by persons making the inspection.</P>
            <P>(2) The operator shall give due notice to the local office of the Division of Maintenance and Repair, at the port at which the vessel is to be available, of the port, date and time for the making of repairs or replacements in the United States.</P>
            <P>(3) In connection with further requirements, reference is made to General Order 20 (Part 271 of this chapter) and supplements thereto for more detailed instruction.</P>
            <P>(4) Vessel repairs are to be performed within the continental limits of the United States, except in emergency cases the necessity for which the operator should be prepared to justify upon audit.</P>
            <P>(c) <E T="03">Insurance.</E> (1) Immediately upon the binding of any insurance with respect to any vessel covered by the operator's subsidy agreement, there shall be submitted to the Division of Insurance Office of the Comptroller, Maritime Administration, Washington, DC 20590, for the Maritime Administration's approval, a signed copy of each cover note issued by the operator's brokers, which, to the extent applicable, shall set forth as to such vessel the amounts covered by hull, disbursements and other forms of total loss protection, as well as P and I insurance. Such cover notes shall include the rates, the amounts placed in the different markets, the companies interested, the policy numbers and the amount underwritten by each policy; also, there shall be shown the amount of the deductible average, if any. Upon request, policies shall be submitted to the Maritime Administration for examination and return.</P>
            <P>(2) The Maritime Administration shall be advised promptly of any cancellation, changes in terms, or companies interested, and of any lay-up periods which will permit of the collection of return premiums, and of any major casualty or total loss which may occur.</P>
            <P>(3) Insurance arranged in conformity with the requirements of applicable mortgages held by the United States will be deemed sufficient to comply with the requirements of the operator's operating-differential subsidy agreement.</P>
            <P>(4) The Maritime Administration furthermore, wishes to emphasize its desire that as much of the American Merchant Marine insurance coverage as is practicable be placed in the American insurance market. Therefore, when a renewal of policies or new insurance is under negotiation by an operator subject to the provisions of this order, it is urgently requested that particular attention be given to the Maritime Administration's desire as herein expressed with regard to markets in which such insurance may be placed, and that the Maritime Administration be notified in ample time to give consideration to the pertinent facts and circumstances of each case, so that prior to the attachment of such insurance, approval thereof or suggested changes may be indicated.</P>
            <P>(d) <E T="03">Inventories.</E> Twenty-four hours' notice shall be given to the Maritime Administration as to the time and place of inventorying classification-required spare parts, ship's spare equipment, fuel and stores as are customarily inventoried and the cost of which is charged to the voyage accounts. If, upon giving the above-required notice, the Maritime Administration's representatives are not present, the operator is to proceed with his inventory in the normal way. The operator may use his own inventory forms, one copy of which shall be sworn to by the persons taking the inventory and included in the voyage accounting.</P>
            <P>(e) <E T="03">Partial payments on account.</E> When partial payments are desired on account of operating-differential subsidy accruals, the operator should communicate with the Comptroller, Maritime Administration, Washington, DC 20590, who shall forward necessary instructions and forms to be used.</P>
            <P>(f) <E T="03">Current financial reports.</E> Each operator shall prepare current financial reports as specified in this paragraph <PRTPAGE P="104"/>and shall submit one copy each to the appropriate Region Director of the Maritime Administration and three copies each to the Director, Office of Financial Analysis, Maritime Administration, Washington, DC 20590, as follows:</P>
            <P>(1) <E T="03">Internal management reports.</E> Each month the operator shall submit copies of such portions of its internal management reports that provide an estimate of its current operating results.</P>
            <P>(2) <E T="03">Quarterly balance sheets.</E> The operator shall prepare balance sheets as of March 31, June 30, and September 30 of each calendar year in conformity with section 282.6(A) of the Uniform System of Accounts (Part 282 of this chapter) and shall submit each as soon as practicable but not later than 45 days after the end of the respective quarter.</P>
            <P>(3) <E T="03">Quarterly and cumulative income statements.</E> The operator shall prepare income statements for the quarterly periods January 1, to March 31, April 1 to June 30, and July 1 to September 30, and for cumulative periods from January 1 to the end of the second and third quarters of each calendar year in conformity with section 282.6(B) of the Uniform System of Accounts (Part 282 of this chapter) and shall submit each statement as soon as practicable but not later than 45 days after the end of the respective quarter.</P>
            <P>(4) <E T="03">Annual financial report.</E> The operator shall submit Maritime Administration Form 172 for each calendar year by March 31 of the succeeding year. If the operator is unable to submit Form 172 by March 31 of the succeeding year he shall, prior to such March 31, request an extension for the filing of Form 172 from the Director, Office of Financial Analysis and shall submit by such March 31:</P>
            <P>(i) A balance sheet for the year ending on December 31, in conformity with section 282.6(A) of the Uniform Systems of Accounts; and</P>
            <P>(ii) An income statement for the quarterly period October 1 to December 31 and an income statement for the year ending on December 31, in conformity with section 282.6(B) of the Uniform System of Accounts.</P>
            <P>(5) <E T="03">Vessel performance reports.</E> Vessel performance reports shall be prepared for the period January 1 to March 31 of each calendar year, and from January 1 to the end of each succeeding quarter of the calendar year, in the form provided in Exhibit A of paragraph (f)(7) of this section and consistent with the allocation bases provided in paragraph (f)(6) of this section and shall include:</P>
            <P>(i) A grand summary of all terminated voyage results for the reporting period including any idle status period occurring during the reporting period and any additional charges or credits from prior terminated periods;</P>
            <P>(ii) Summaries of each service by vessel type, as indicated in Exhibit (D) of paragraph (7) of this section, as of December 31 of each year;</P>
            <P>(iii) Individual reports by vessel for each idle status period occurring during any reporting period.</P>
            <FP>Vessel performance reports shall be submitted with the quarterly balance sheets and income statements required under paragraphs (f) (2) and (3) of this section and must be reconciled with voyage revenue and expense from all operations as reported in the income statement. “Depreciation Vessels” is an example of a reconciling item. Vessel performance reports which are properly prepared and filed will satisfy the reporting requirements for sub-schedules 3002 of the Maritime Administration Form 172.</FP>
            <P>(6) <E T="03">Allocation bases.</E> The allocation bases to be applied in preparation of vessel performance reports required by paragraph (f)(5) of this section are as follows:</P>
            <P>(i) <E T="03">Terminal expenses.</E> Terminal expenses defined by accounts 855 through 866 of the Uniform System of Accounts (section 282.3(E) of this chapter), including depreciation accounts, for each terminal shall be allocated between terminated and unterminated voyages on the basis of freight payable tons loaded and discharged on each vessel and voyage during the reporting period, except that in the case of terminals handling only one cargo carriage technology type (CCTT), which can be expressed in common units such as twenty-foot equivalent container units (TEU's) or the number of individual barges, such common unit may be used for allocating terminal expenses by vessel and voyage for each terminal, as <PRTPAGE P="105"/>shown in Exhibit B of paragraph (f)(7) of this section.</P>
            <P>(ii) <E T="03">Container/barge expense—</E>(A) <E T="03">Allocation of expense.</E> Container/barge expense defined by accounts 867 through 899 of the Uniform System of Accounts (section 282.3(F) of this chapter), including depreciation accounts, shall be segregated between container and barge cost pools. Accounts 879, 880, and 894 shall be allocated between container and barge cost pools on an allocation basis developed by the operator.</P>
            <P>(B) <E T="03">Allocation of cost pools.</E> Container and barge cost pools shall be allocated among vessels by voyage and idle status for each vessel in the same ratio that the total container or barge capacity of each vessel multiplied by vessel days bears to the total container or barge capacity of the operator's entire fleet multiplied by vessel days. Total container or barge capacity of a vessel means the total container or barge capacity of the vessel, expressed in TEU's for containers and single units for barges, multiplied by the total number of containers or barges acquired for each available container or barge slot on the vessel. Vessel days means the number of days in the period for which an allocation of cost pools is being made. Containers and barges purchased by an operator for utilization in a particular trade route shall be allocated by vessel capacity among the vessels in the trade route for which they were purchased. See Exhibit C of paragraph (f)(7) of this section.</P>
            <P>(iii) <E T="03">Administrative and general expenses.</E> Administrative and general expenses defined by accounts 901 through 979 of the Uniform System of Accounts (section 282.3(G) of this chapter) shall be allocated to terminated voyages for each vessel type by service or for each vessel by voyage, as required by paragraph (f)(5) of this section, based on the ratio that total terminated voyage operating expenses (accounts 701-773 of the Uniform System of Accounts) plus total terminated voyage operating revenue (accounts 601-624 of the Uniform System of Accounts) for each bears to the total terminated voyage operating expense plus total terminated voyage operating revenue for the period, except that account 945 (advertising passengers) will be allocated directly to passenger vessels based on passengers carried, account 955 (contributions to pools) may be allocated as an administrative and general expense or directly to vessel and voyage based on pool statements, and that portion of accounts 960 and 961 (interest expense) representing interest on vessels shall be allocated to vessels and voyages in the same ratio that depreciation is distributed among all vessels in the fleet. In addition to the above exceptions, significant interest expenses related to purchases of containers and barges should be charged directly to container and barge pools prior to allocation of the container and barge pools.</P>
            <P>(7) <E T="03">Exhibits</E>.
            </P>
            <EXTRACT>
              <P>A. Vessel performance report.<SU>1</SU>
                <FTREF/>
              </P>
            </EXTRACT>
            <FTNT>
              <P>
                <SU>1</SU> Exhibit A filed as part of the original document.</P>
            </FTNT>
            
            <EXTRACT>
              <P>B. Sample allocation of terminal expenses by vessel and voyage.</P>
              <P>C. Sample allocation of container/barge expenses by vessel and voyage.</P>
              <P>D. Examples of vessel types currently operated.</P>
            </EXTRACT>
            
            <P>(g) <E T="03">General.</E> All reports and other communications called for by the foregoing should be addressed to the Secretary, Maritime Administration, Washington, DC 20590.<PRTPAGE P="106"/>
            </P>
            <GPOTABLE CDEF="s100,r60,10,10,10,10,10,10,10,10" COLS="10" OPTS="L2">
              <TTITLE>Exhibit B—Sample Allocation of Terminal Expenses by Vessel and Voyage <SU>1</SU>
              </TTITLE>
              <BOXHD>
                <CHED H="1">Type of facility</CHED>
                <CHED H="1">Vessel</CHED>
                <CHED H="1">Total units loaded and discharged</CHED>
                <CHED H="2">Voyage</CHED>
                <CHED H="2">Total units <SU>2</SU>
                </CHED>
                <CHED H="1">Voyage status end of the period</CHED>
                <CHED H="2">Terminated</CHED>
                <CHED H="2">Unterminated</CHED>
                <CHED H="1">Ratio vessel/voyage to Total (percent)</CHED>
                <CHED H="1">Terminal cost by vessel/voyage</CHED>
                <CHED H="2">Totals</CHED>
                <CHED H="2">Terminated</CHED>
                <CHED H="2">Unterminated</CHED>
              </BOXHD>
              <ROW>
                <ENT I="01">Container yard</ENT>
                <ENT>Cont-1</ENT>
                <ENT>1</ENT>
                <ENT>500</ENT>
                <ENT>500</ENT>
                <ENT/>
                <ENT>31.7</ENT>
                <ENT>$326.51</ENT>
                <ENT>$326.51</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>LASH-2</ENT>
                <ENT>1</ENT>
                <ENT>359</ENT>
                <ENT/>
                <ENT>359</ENT>
                <ENT>22.7</ENT>
                <ENT>233.81</ENT>
                <ENT/>
                <ENT>$233.81</ENT>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>LASH-2</ENT>
                <ENT>2</ENT>
                <ENT>260</ENT>
                <ENT>260</ENT>
                <ENT/>
                <ENT>16.5</ENT>
                <ENT>169.95</ENT>
                <ENT>169.95</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>B/B-4</ENT>
                <ENT>1</ENT>
                <ENT>110</ENT>
                <ENT>110</ENT>
                <ENT/>
                <ENT>6.9</ENT>
                <ENT>71.07</ENT>
                <ENT>71.07</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>Cont-6</ENT>
                <ENT>1</ENT>
                <ENT>200</ENT>
                <ENT>200</ENT>
                <ENT/>
                <ENT>12.7</ENT>
                <ENT>130.81</ENT>
                <ENT>130.81</ENT>
                <ENT/>
              </ROW>
              <ROW RUL="n,d">
                <ENT I="22"/>
                <ENT>Cont-6</ENT>
                <ENT>2</ENT>
                <ENT>150</ENT>
                <ENT/>
                <ENT>150</ENT>
                <ENT>9.5</ENT>
                <ENT>97.85</ENT>
                <ENT/>
                <ENT>97.85</ENT>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="22"/>
                <ENT O="xl"/>
                <ENT O="xl"/>
                <ENT>(a) 1,579</ENT>
                <ENT>1,070</ENT>
                <ENT>509</ENT>
                <ENT>100.0</ENT>
                <ENT>1,030.00</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Container freight station/ break bulk</ENT>
                <ENT>LASH-2</ENT>
                <ENT>1</ENT>
                <ENT>17,002</ENT>
                <ENT>17,002</ENT>
                <ENT/>
                <ENT>22.8</ENT>
                <ENT>175.56</ENT>
                <ENT>175.56</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>LASH-2</ENT>
                <ENT>2</ENT>
                <ENT>11,002</ENT>
                <ENT/>
                <ENT>11,002</ENT>
                <ENT>14.8</ENT>
                <ENT>113.96</ENT>
                <ENT/>
                <ENT>113.96</ENT>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>RO/RO-3</ENT>
                <ENT>1</ENT>
                <ENT>30,525</ENT>
                <ENT>30,525</ENT>
                <ENT/>
                <ENT>41.0</ENT>
                <ENT>315.70</ENT>
                <ENT>315.70</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>B/B-4</ENT>
                <ENT>1</ENT>
                <ENT>1,000</ENT>
                <ENT>1,000</ENT>
                <ENT/>
                <ENT>1.3</ENT>
                <ENT>10.01</ENT>
                <ENT/>
                <ENT/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="22"/>
                <ENT>Bulk-5</ENT>
                <ENT>1</ENT>
                <ENT>15,000</ENT>
                <ENT>15,000</ENT>
                <ENT/>
                <ENT>20.1</ENT>
                <ENT>154.77</ENT>
                <ENT>154.77</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT O="xl"/>
                <ENT O="xl"/>
                <ENT>(b) 74,529</ENT>
                <ENT>63,527</ENT>
                <ENT>11,002</ENT>
                <ENT>100.0</ENT>
                <ENT>770.00</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Barge terminal</ENT>
                <ENT>LASH-2</ENT>
                <ENT>1</ENT>
                <ENT>37</ENT>
                <ENT>37</ENT>
                <ENT/>
                <ENT>68.5</ENT>
                <ENT>445.25</ENT>
                <ENT>445.25</ENT>
                <ENT/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="22"/>
                <ENT>LASH-2</ENT>
                <ENT>2</ENT>
                <ENT>17</ENT>
                <ENT/>
                <ENT>17</ENT>
                <ENT>31.5</ENT>
                <ENT>204.75</ENT>
                <ENT/>
                <ENT>204.75</ENT>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT O="xl"/>
                <ENT O="xl"/>
                <ENT>(c) 54</ENT>
                <ENT>37</ENT>
                <ENT>17</ENT>
                <ENT>100.0</ENT>
                <ENT>650.00</ENT>
              </ROW>
              <TNOTE>
                <SU>1</SU> This allocation procedure shall be applied for each terminal maintained by an operator.</TNOTE>
              <TNOTE>
                <SU>2</SU> (a) Units for container yard=twenty foot equivalent units (TEU's)</TNOTE>
              <TNOTE>(b) Units for container freight station and break bulk operation=freight payable tons (FPT's).</TNOTE>
              <TNOTE>(c) Units for barge terminal=number of barges unless barges differ in size. Barges of different capacity must be reduced to equivalent units.</TNOTE>
              <TNOTE>(d) Other terminal facilities (not illustrated) handling many or all cargo carriage technology types will allocate period costs on freight payable tons load and discharged during the period.</TNOTE>
            </GPOTABLE>
            <GPOTABLE CDEF="xls30,r100,10,10,10,10,10,10,10,10,10" COLS="11" OPTS="L2">
              <TTITLE>Exhibit C—Sample Allocation of Container/Barge Expenses by Vessel and Voyage</TTITLE>
              <TDESC>
                <E T="04">example</E>
              </TDESC>
              <BOXHD>
                <CHED H="1">(A)</CHED>
                <CHED H="2">Service</CHED>
                <CHED H="1">(B)</CHED>
                <CHED H="2">Vessel</CHED>
                <CHED H="1">(C)</CHED>
                <CHED H="2">Voyage</CHED>
                <CHED H="1">(D)</CHED>
                <CHED H="2">Vessel days in period</CHED>
                <CHED H="3">Terminated</CHED>
                <CHED H="3">Unterminated</CHED>
                <CHED H="1">(E)</CHED>
                <CHED H="2">Actual container capacity of vessel</CHED>
                <CHED H="1">(F)</CHED>
                <CHED H="2">Containers acquired for each slot</CHED>
                <CHED H="1">(G)</CHED>
                <CHED H="2">Total container capacity col. (E)×(F)</CHED>
                <CHED H="1">(H)</CHED>
                <CHED H="2">Allocation base col. (D)×(G)</CHED>
                <CHED H="1">(I)</CHED>
                <CHED H="2">Allocation percentages</CHED>
                <CHED H="1">(J)</CHED>
                <CHED H="2">Allocation of container pool</CHED>
              </BOXHD>
              <ROW>
                <ENT I="11"/>
                <ENT>
                  <E T="03">Calculations:</E>
                </ENT>
              </ROW>
              <ROW>
                <ENT I="01">A</ENT>
                <ENT>Container-1</ENT>
                <ENT>1</ENT>
                <ENT>90</ENT>
                <ENT/>
                <ENT>1,050</ENT>
                <ENT>2</ENT>
                <ENT>2,100</ENT>
                <ENT>189,000</ENT>
                <ENT>39.3</ENT>
                <ENT>$162,967</ENT>
              </ROW>
              <ROW>
                <ENT I="01">B</ENT>
                <ENT>LASH-2</ENT>
                <ENT>1</ENT>
                <ENT>60</ENT>
                <ENT/>
                <ENT>450</ENT>
                <ENT>4</ENT>
                <ENT>1,800</ENT>
                <ENT>108,000</ENT>
                <ENT>22.4</ENT>
                <ENT>92,887</ENT>
              </ROW>
              <ROW>
                <ENT I="01">C</ENT>
                <ENT>LASH-2</ENT>
                <ENT>2</ENT>
                <ENT/>
                <ENT>30</ENT>
                <ENT>450</ENT>
                <ENT>4</ENT>
                <ENT>1,800</ENT>
                <ENT>54,000</ENT>
                <ENT>11.2</ENT>
                <ENT>46,444</ENT>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>RO/RO-3</ENT>
                <ENT>1</ENT>
                <ENT>70</ENT>
                <ENT/>
                <ENT>350</ENT>
                <ENT>3</ENT>
                <ENT>1,050</ENT>
                <ENT>73,500</ENT>
                <ENT>15.3</ENT>
                <ENT>63,445</ENT>
              </ROW>
              <ROW>
                <ENT I="22"/>
                <ENT>RO/RO-3</ENT>
                <ENT>I.S.</ENT>
                <ENT>20</ENT>
                <ENT/>
                <ENT>350</ENT>
                <ENT>3</ENT>
                <ENT>1,050</ENT>
                <ENT>21,000</ENT>
                <ENT>4.3</ENT>
                <ENT>17,831</ENT>
              </ROW>
              <ROW RUL="n,n,s">
                <ENT I="22"/>
                <ENT>Break-Bulk-4</ENT>
                <ENT>1</ENT>
                <ENT/>
                <ENT>90</ENT>
                <ENT>100</ENT>
                <ENT>4</ENT>
                <ENT>400</ENT>
                <ENT>36,000</ENT>
                <ENT>7.5</ENT>
                <ENT>31,101</ENT>
              </ROW>
              <ROW>
                <PRTPAGE P="107"/>
                <ENT I="22"/>
                <ENT>Totals</ENT>
                <ENT/>
                <ENT>240</ENT>
                <ENT>120</ENT>
                <ENT/>
                <ENT/>
                <ENT/>
                <ENT>481,500</ENT>
                <ENT>100.0</ENT>
                <ENT>414,675</ENT>
              </ROW>
              <TNOTE>
                <E T="03">Assumptions:</E>
              </TNOTE>
              <TNOTE>Service A—One (1) Container vessel with an actual capacity of 1,050 containers with two (2) containers acquired for each container slot.</TNOTE>
              <TNOTE>Service B—One (1) LASH vessel with an actual capacity of 450 containers with four (4) containers purchased for each container slot.</TNOTE>
              <TNOTE>Service C—One (1) Roll on-roll off vessel with an actual capacity of 350 containers with three (3) containers acquired for each container slot.</TNOTE>
              <TNOTE>W—One (1) Break-bulk vessel with an actual capacity of 100 containers with four (4) containers acquired for each container slot.</TNOTE>
              <TNOTE>Total container pool costs for a ninety (90) day period equals $414,675.</TNOTE>
            </GPOTABLE>
            <PRTPAGE P="108"/>
            <GPOTABLE CDEF="xl50,xl50,xls35" COLS="3" OPTS="L0,6/7">
              <TTITLE>Exhibit D—Examples of Vessel Types Currently Operated</TTITLE>
              <ROW>
                <ENT I="11">C3-S-33a</ENT>
                <ENT>C4-S-49a</ENT>
                <ENT>C6-S-1gc</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C3-S-38a</ENT>
                <ENT>C4-S1-49a</ENT>
                <ENT>C6-S-1w</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C3-S-43a</ENT>
                <ENT>C4-S-57a</ENT>
                <ENT>C6-S-1x</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C3-S-46a</ENT>
                <ENT>C4-S-58a</ENT>
                <ENT>C6-S-1xa</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C3-S-46b</ENT>
                <ENT>C4-S-60a</ENT>
                <ENT>C6-S-6gc</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C3-S-73b</ENT>
                <ENT>C4-S-64a</ENT>
                <ENT>C6-S-85a</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C3-S-76a</ENT>
                <ENT>C4-S-64b</ENT>
                <ENT>C6-S-85b</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C4-S-1a<LI>C4-S-1l</LI>
                </ENT>
                <ENT>C4-S-65a<LI>C5-S-37e</LI>
                </ENT>
                <ENT>C7-S-68c, d, and e</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C4-S-1g</ENT>
                <ENT>C5-S-37f</ENT>
                <ENT>C8-S-81b</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C4-S-1sa</ENT>
                <ENT>C5-S-73b</ENT>
                <ENT>C8-S-82d</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C4-S-1t</ENT>
                <ENT>C5-S-75a</ENT>
                <ENT>C9-S-81d</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C4-S-1u</ENT>
                <ENT>C5-S-78a</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C4-S-19a</ENT>
                <ENT>C6-S-1ga</ENT>
              </ROW>
            </GPOTABLE>
            <APPRO>(Approved by the Office of Management and Budget under control number 2133-0009)</APPRO>
            
            <CITA>[G.O. 12, Rev., 14 FR 4785, Aug. 6, 1949, as amended by Supp. 2, Amdt. 1. 21 FR 328, Jan. 17, 1956; 33 FR 2944, Feb. 14, 1968; Supp. 3, Amdt. 3, 34 FR 13369, Aug. 19, 1969; 40 FR 7430, Feb. 20, 1975; 47 FR 25530, June 14, 1982]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 281.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>As used in §§ 281.2 through 281.6 of these regulations, except as otherwise indicated by the context;</P>
            <P>(a) The word <E T="03">operator</E> means an operator receiving operating-differential subsidy under title VI of the Merchant Marine Act, 1936, as amended (Act), for a voyage on an essential service as described in section 211(a) of the Act;</P>
            <P>(b) The term <E T="03">Maritime Administrator</E> means Maritime Administrator, Department of Transportation;</P>
            <P>(c) The term <E T="03">Region Director</E> means the Region Director of the Maritime Administration having jurisdiction over the port or ports involved;</P>
            <P>(d) The term <E T="03">idle status</E> means any period in port between or during voyages for which the vessel's normal crew complement is reduced by 10 percent or more and <E T="03">division of wages</E> is not paid for the missing men. The idle status period shall continue up to, but not including, the day that the vessel is remanned to the extent that the vessel's normal crew complement is restored to more than 90 percent or <E T="03">division of wages</E> is paid for the missing men, or the vessel is temporarily or permanently withdrawn from subsidized service;</P>
            <P>(e) <E T="03">Normal crew complement</E> means the basic crew complement which has been approved for operating-differential subsidy under the provisions of section 603 of the Act, or as established by collective bargaining or other agreement for the voyage involved, whichever is less.
            </P>
            <CITA>[G.O. 27, Rev. 2, 37 FR 18466, Sept. 12, 1972]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 281.3</SECTNO>
            <SUBJECT>Method of commencing and terminating voyages and of determining idle status.</SUBJECT>
            <P>(a) <E T="03">Voyage commencements.</E> Voyages shall commence as of 12:01 a.m. of the day that loading of cargo, stores, or fuel begins, or as of 12:01 a.m. of the day following the termination of the prior voyage or, in the event that an idle status period follows a voyage termination, as of 12:01 a.m. of the day following the day on hich such idle status period ends.</P>
            <P>(b) <E T="03">Voyage termination.</E> Voyages shall terminate at a U.S. port of call at midnight of the day of completion of paying off the crew from foreign articles, or the completion of final discharge of cargo or ballast at the last U.S. port of discharge, or the completion of voyage repairs, whichever event occurs last: <E T="03">Provided, however,</E> That if a vessel sails outward on a new voyage prior to midnight of the same day, the inward voyage shall terminate as of midnight of that day, and the outward voyage shall commence as of 12:01 a.m. of the succeeding day; and that where a portion of any particular voyage overlaps a portion of the next succeeding voyage and the quantity of inward cargo remaining aboard at the port at which major cargo activities for the outward voyage are begun does not, in the opinion of the operator, justify extension of the inward voyage beyond that port, the operator shall immediately request the Region Director for permission to treat the inward voyage as having terminated at midnight of the day specified in such request and shall advise the Region Director what cargo has been and is still to be discharged and loaded at each port of the inward voyage; and that where, in the opinion of the operator, voyages as a general practice should terminate at the home or terminal port rather than at the last port of discharge, or a voyage should terminate on the day prior to commencement of an idle status period, or on the day that the voyage would have terminated had strikes not interfered with normal operations, application for <PRTPAGE P="109"/>such terminations may be made to the Region Director, and in such cases the voyage termination date shall be as approved by the Region Director. The Region Director shall promptly advise the operator of his determination approving or disapproving any request filed under this paragraph (b), and the Region Director's decision as to such termination shall prevail, provided that all terminations shall be as f midnight of the day specified.</P>
            <P>(c) <E T="03">Idle status periods.</E> Idle status periods shall be identified separately, whether occurring during or between voyages, and, if occurring during a voyage shall be identified with the applicable voyage number. A separate accounting period shall be created to cover each idle status period, and all such periods shall be reported to the Region Director.</P>
            <P>(d) <E T="03">Excessive delays.</E> Whenever a vessel is delayed in port for a period of 10 days or more in excess of its normal period of operations in said port, the operator immediately shall report said circumstances, together with all pertinent facts, to the Region Director. The Region Director shall determine whether or not said delay was justified and if operating costs for said period were reduced to a minimum in accordance with sound commercial practice.
            </P>
            <CITA>[G.O. 27, Rev. 2, 37 FR 18466, Sept. 12, 1972]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 281.4</SECTNO>
            <SUBJECT>Treatment of subsidy during idle status and off-hire period.</SUBJECT>

            <P>During an idle status period, subsidy shall be payable only for such subsidizable items of expenses as are determined by the Maritime Administrator, after presentation by the operator of the facts relating to such idle status period, to be necessary for the maintenance, preservation, repair, or husbanding of the vessel during and under the circumstances involved; however, the Maritime Subsidy Board reserves the right to suspend at any time the payment of subsidy on idle vessels when, after consideration of the facts and circumstances regarding such period, it determines that an unreasonable period has elapsed or such idle period was not warranted: <E T="03">Provided,</E> That as to a chartered ship operated under a “Use Agreement”, operating-differential subsidy shall cease to accrue to the ship simultaneously with the time it goes “off hire” and subsidy shall not again accrue to said ship until it is reemployed in the subsidized service as determined in accordance with § 281.3. Nothing herein shall limit any other rights of the United States with respect to the payment or nonpayment of subsidy.
            </P>
            <CITA>[G.O. 27, Rev. 2, 37 FR 18466, Sept. 12, 1972]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 281.5</SECTNO>
            <SUBJECT>Right of Maritime Administrator to recover subsidy for any period of idleness.</SUBJECT>
            <P>The Maritime Administrator may, prior to payment of subsidy for any voucher period which includes a period of idleness, require the operator to establish to the satisfaction of the Maritime Administrator that such period of idleness could not have been prevented in whole or in part through efficient and economical operation. The Maritime Administrator may recover any payment of subsidy for any item of expense allocable to such period of idleness which in the opinion of the Maritime Administrator could have been avoided by efficient and economical operation.</P>
            <CITA>[G.O. 27, Rev. 2, 37 FR 18466, Sept. 12, 1972]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 281.6</SECTNO>
            <SUBJECT>Interpretation.</SUBJECT>
            <P>All questions of interpretation arising under the sections of this part shall be submitted to the Maritime Administrator for determination, whose decision thereon shall be final.</P>
            <CITA>[G.O. 27, Rev. 2, 37 FR 18466, Sept. 12, 1972]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 282</EAR>
          <HD SOURCE="HED">PART 282—OPERATING-DIFFERENTIAL SUBSIDY FOR LINER VESSELS ENGAGED IN ESSENTIAL SERVICES IN THE FOREIGN COMMERCE OF THE UNITED STATES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Introduction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>282.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>282.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>282.3</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Foreign-Flag Competition</HD>
              <SECTNO>282.10</SECTNO>

              <SUBJECT>Basis for determining foreign-flag competition.<PRTPAGE P="110"/>
              </SUBJECT>
              <SECTNO>282.11</SECTNO>
              <SUBJECT>Ranking of flags.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Calculation of Subsidy Rates</HD>
              <SECTNO>282.20</SECTNO>
              <SUBJECT>Amount of subsidy payable.</SUBJECT>
              <SECTNO>282.21</SECTNO>
              <SUBJECT>Wages of officers and crew.</SUBJECT>
              <SECTNO>282.22</SECTNO>
              <SUBJECT>Maintenance (upkeep) and repairs.</SUBJECT>
              <SECTNO>282.23</SECTNO>
              <SUBJECT>Hull and machinery insurance.</SUBJECT>
              <SECTNO>282.24</SECTNO>
              <SUBJECT>Protection and indemnity insurance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Subsidy Payment and Billing Procedures</HD>
              <SECTNO>282.30</SECTNO>
              <SUBJECT>Payment of subsidy.</SUBJECT>
              <SECTNO>282.31</SECTNO>
              <SUBJECT>Subsidy billing procedures.</SUBJECT>
              <SECTNO>282.32</SECTNO>
              <SUBJECT>Appeal procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Secs. 204(b), 603, 606 Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1114(b), 1173, 1176); 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>51 FR 34609, Sept. 30, 1986, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—Introduction</HD>
            <SECTION>
              <SECTNO>§ 282.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>This part prescribes regulations implementing Title VI of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1171-1176 and 1178-1181) governing operating-differential subsidy for liner vessels engaged in essential services in the foreign commerce of the United States.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§282.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>When used in this part:</P>
              <P>(a) <E T="03">Act</E> means the Merchant Marine Act, 1936, as amended (46 U.S.C. 1101-1294).</P>
              <P>(b) <E T="03">Board</E> means the Maritime Subsidy Board of the Maritime Administration (MARAD).</P>
              <P>(c) <E T="03">Contracting Officer</E> means the Associate Administrator for Maritime Aids.</P>
              <P>(d) <E T="03">Fiscal Period</E> means any annual period beginning on July 1 and ending on June 30.</P>
              <P>(e) <E T="03">Foreign-flag competition</E> means those foreign-flag vessels deemed by the Maritime Administrator to be competitive with the subsidized vessel.</P>
              <P>(f) <E T="03">Maritime Administrator</E> means the Maritime Administrator, Maritime Administration of the Department of Transportation.</P>
              <P>(g) <E T="03">Operating day</E> means any day or part of a day during which a subsidized vessel is operated in accordance with the terms and conditions of an operating-differential subsidy agreement.</P>
              <P>(h) <E T="03">Operating-differential subsidy (ODS)</E> means, except as the operator and the United States Government should agree upon a lesser amount, the excess of cost of subsidizable items of expense incurred in the operation under United States registry of a vessel over the estimated fair and reasonable cost of the same items of expense (excluding any increase in the cost of such items necessitated by features incorporated for national defense), if such vessel were operated under the registry of a foreign country whose vessels are substantial competitors of the vessel.</P>
              <P>(i) <E T="03">Operating-differential subsidy agreement (ODSA)</E> means the Agreement entered into by the operator and the United States Government for the payment of operating-differential subsidy.</P>
              <P>(j) <E T="03">ODS rate</E> means the method adopted by the Maritime Administrator for determining the amount of ODS that is to be paid for an item of subsidizable expense.</P>
              <P>(k) <E T="03">Operator</E> means any individual, partnership, corporation or association that contracts with the United States Government under Title VI of the Act to receive ODS.</P>
              <P>(l) <E T="03">Reduced crew period</E> means a period in port between or during voyages when the subsidized vessel's approved crew complement is reduced by 10 percent or more and division of wages (wages of an absent seaman are divided among the seamen who provide the absent seaman's work) is not paid for the missing men.</P>
              <P>(m) <E T="03">Region Director</E> means the Region Director of the Maritime Administration within whose region the principal office of the operator is located.</P>
              <P>(n) <E T="03">Subsidized service</E> means the operation of a vessel, other than in the coastal or intercoastal trade, in accordance with the terms and conditions of the ODSA.</P>
              <P>(o) <E T="03">Subsidized vessel</E> means a vessel covered by an ODSA.</P>
              <P>(p) <E T="03">U.S. foreign commerce</E> means the commerce or trade between the United States, its territories or possessions, or the District of Columbia, and a foreign country.</P>
              <P>(q) <E T="03">Vessel</E> means subsidized vessel, unless otherwise specified.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="111"/>
              <SECTNO>§ 282.3</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
              <P>In special circumstances and for good cause shown, the procedures prescribed in this part may be waived in writing, by mutual agreement of the parties, in keeping with the circumstances then present, so long as the procedures adopted are consistent with the Act and with the intent of these regulations.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Foreign-Flag Competition</HD>
            <SECTION>
              <SECTNO>§ 282.10</SECTNO>
              <SUBJECT>Basis for determining foreign-flag competition.</SUBJECT>
              <P>The foreign-flag competition shall form the basis for determining the cost disadvantage of operating the subsidized vessels in the essential service. The Maritime Administrator shall determine the foreign-flag competition from those countries that have carried a significant amount of cargo in the service by using the following procedures:</P>
              <P>(a) The primary source of information shall be commodity import/export data compiled by the Bureau of the Census. Cargo data shall be compiled in long tons. Trade publications which show advertised sailings shall be used to verify the liner services offered by foreign-flag operators.</P>
              <P>(b) The U.S. import/export data shall be compiled by reference to countries actually served by the subsidized operator, using the subsidized operator's own competition data for each country to eliminate the flags which are not substantial competitors with the subsidized vessels. An example of the weighting procedure follows:</P>
              <GPOTABLE CDEF="s25,9,6,6,15" COLS="5" OPTS="L2,i1">
                <TTITLE>Example</TTITLE>
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Country A</CHED>
                  <CHED H="1">Country B</CHED>
                  <CHED H="1">Country C</CHED>
                  <CHED H="1">Total</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="11">I. Determination of U.S.-Flag Weights:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">U.S. Subsidized Carrier</ENT>
                  <ENT>300</ENT>
                  <ENT>500</ENT>
                  <ENT>200</ENT>
                  <ENT>1,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Percent</ENT>
                  <ENT>30</ENT>
                  <ENT>50</ENT>
                  <ENT>20</ENT>
                  <ENT>100</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">II. Actual Foreign-Flag Carryings:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Flag 1</ENT>
                  <ENT>1,500</ENT>
                  <ENT>500</ENT>
                  <ENT>1,000</ENT>
                  <ENT>3,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Flag 2</ENT>
                  <ENT>4,000</ENT>
                  <ENT>6,000</ENT>
                  <ENT>0</ENT>
                  <ENT>10,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Flag 3</ENT>
                  <ENT>5,000</ENT>
                  <ENT>2,000</ENT>
                  <ENT>5,000</ENT>
                  <ENT>12,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">III. Adjusted Foreign-Flag Carrying (Actual Foreign × U.S. wts):</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Flag 1</ENT>
                  <ENT>450</ENT>
                  <ENT>250</ENT>
                  <ENT>200</ENT>
                  <ENT>900</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Flag 2</ENT>
                  <ENT>1,200</ENT>
                  <ENT>3,000</ENT>
                  <ENT>0</ENT>
                  <ENT>4,200</ENT>
                </ROW>
                <ROW RUL="n,n,n,s">
                  <ENT I="02">Flag 3</ENT>
                  <ENT>1,500</ENT>
                  <ENT>1,000</ENT>
                  <ENT>1,000</ENT>
                  <ENT>3,500</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>8,600</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">IV. Competition Computation:</ENT>
                  <ENT/>
                  <ENT O="oi0">Actual percent</ENT>
                  <ENT/>
                  <ENT O="oi0">Re-weight (percent)</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Flag 2</ENT>
                  <ENT>4200/8600</ENT>
                  <ENT>49.0</ENT>
                  <ENT/>
                  <ENT>55.0</ENT>
                </ROW>
                <ROW RUL="n,n,s,n,s">
                  <ENT I="02">Flag 3</ENT>
                  <ENT>3500/8600</ENT>
                  <ENT>41.0</ENT>
                  <ENT/>
                  <ENT>45.0</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT/>
                  <ENT>90.0</ENT>
                  <ENT/>
                  <ENT>100.0</ENT>
                </ROW>
              </GPOTABLE>
              <P>(c) The principal foreign flags shall be those countries whose cargo carrying would rank the flag among those carriers that aggregate at least 50 percent of the total foreign-flag carryings.</P>
              <P>(d) The total cargo carryings of each principal foreign flag shall be expressed as a percentage of total cargo carryings of all principal flags on the service. The resultant ratio shall be applied to the costs of that principal flag for determining its portion of the composite foreign cost, which shall be used for establishing the cost disadvantage of U.S. vessles in the service.</P>
              <P>(e) The determination of the principal competitors and competition weight factors shall be based upon the import/export data for the twelve months of the penultimate calendar year preceding January 1 of the subsidized year to allow several months to collect foreign cost data.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 282.11</SECTNO>
              <SUBJECT>Ranking of flags.</SUBJECT>

              <P>The operators under each principal foreign flag shall be ranked as predominant, secondary, etc., for the purpose of establishing the priority of costs which are representative of the <PRTPAGE P="112"/>flag. For liner cargo vessels, the ranking of operators shall be based on the long tons of cargo carried.</P>
              <P>(a) If the predominant operator is an agent, charterer or a joint venture in which the vessels are owned by two or more lines, under the name of such agent, charterer or joint venture, the predominant operator shall be the owner whose vessels carried the most cargo.</P>
              <P>(b) If cost experience cannot be obtained for the foreign-flag operators in the subsidized service, MARAD may use the costs of another service, following the same ranking of operators, if possible.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Calculation of Subsidy Rates</HD>
            <SECTION>
              <SECTNO>§ 282.20</SECTNO>
              <SUBJECT>Amount of subsidy payable.</SUBJECT>
              <P>(a) <E T="03">Daily Rates.</E> Daily ODS rates shall be used to quantify the amount of ODS payable. The daily ODS rate represents the cost differential between the subsidized vessel and its foreign-flag competition. A daily rate shall be calculated for each subsidized item of expense identified in the ODSA, and the total of all items is the daily amount of ODS payable for approved vessel operating days, excluding reduced crew periods.</P>
              <P>(b) <E T="03">Reduced Crew Periods.</E> For reduced crew periods, as defined in § 282.3 of this part, a man-day reduction amount, calculated separately for officers and unlicensed crew members, shall be used to reduce the daily wage ODS rate to conform to the complement remaining on the vessel. The man-day reduction amounts shall be determined by dividing the daily wage ODS for officers and unlicensed crew members by the number of subsidizable crew members in each category. For each day of a reduced crew period, the man-day amount shall be multiplied by the number of crew members missing for that day, and the resulting product shall be deducted from the daily ODS rate. The difference shall be the ODS payable for such day. (See illustration in Schedule D at § 282.31 of this part.)</P>
              <P>(c) <E T="03">Review of Rates.</E> Daily subsidy rates shall be reviewed every six months. For the item “wages of officers and crews,” the daily rate shall be calculated for fiscal periods July 1 through June 30, in accordance with provisions of the Act. During the period January through June, adjustments—paid as a lump sum or as a daily amount—shall be made to wage ODS so that the correct amount of ODS for the full fiscal period is received by the operator. For other subsidizable items of expense, the daily rate shall be calculated for calendar years.</P>
              <P>(d) <E T="03">Negative Rates.</E> When an ODS rate in any category is less than zero, indicating that the subsidized operator is at an advantage rather than a disadvantage in such category, the negative rate shall be deducted from positive rates in determining the daily ODS amount payable.</P>
              <P>(e) <E T="03">Operator Comments.</E> The operator shall have the opportunity to comment on each subsidy rate as calculated by the Maritime Administration. The operator and contracting officer shall make every effort to resolve disagreements that arise. In the event of a disagreement that cannot be resolved, comments received from the operator and the contracting officer's recommendation shall be presented to the Maritime Administrator for consideration in determining subsidy rates.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 282.21</SECTNO>
              <SUBJECT>Wages of officers and crew.</SUBJECT>
              <P>(a) <E T="03">Definitions.</E> When used in this part.</P>
              <P>(1) <E T="03">Base period.</E> The first base period under the wage index system, as provided in section 603 of the Act, is the period beginning July 1, 1970 and ending June 30, 1971. Thereafter, base period means any annual period beginning July 1 and ending June 30, with respect to which the Maritime Administrator establishes a base period cost. At intervals of not less than two years, nor more than four years, the Maritime Administrator shall establish a new base period. Base periods shall be announced by the Maritime Administrator prior to the December 31 date that would be included in the new base period.</P>
              <P>(2) <E T="03">Base period cost—</E>(i) <E T="03">Initial base period.</E> For the initial base period of subsidized service, the term <E T="03">base period cost</E> means the collective bargaining <PRTPAGE P="113"/>cost as of January 1 of that base period.</P>
              <P>(ii) <E T="03">Subsequent base periods.</E> For base periods subsequent to the initial base period, the term <E T="03">base period cost</E> means the averaged of the collective bargaining cost as of January 1 of such fiscal year, and the base period cost of the previous base period, indexed to January 1 of the new base period by an index compiled by the Bureau of Labor Statistics. This index shall consist of the average annual change in wages and benefits placed into effect for employees covered by collective bargaining agreements, with equal weight to be given to changes affecting employees in the transportation industry (excluding the off-shore maritime industry) and to changes affecting employees in private non-agricultural industries other than transportation. However, such base period cost shall not be less than a minimum, nor more than a maximum amount, determined as a percentage of the collective bargaining cost computed for January 1 of such base period in accordance with the following schedule:</P>
              <GPOTABLE CDEF="s50,8,8" COLS="3" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Minimum (percent)</CHED>
                  <CHED H="1">Maximum (percent)</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="11">Base period following a:</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">2-year cycle</ENT>
                  <ENT>97<FR>1/2</FR>
                  </ENT>
                  <ENT>102<FR>1/2</FR>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="03">3-year cycle</ENT>
                  <ENT>96<FR>1/4</FR>
                  </ENT>
                  <ENT>103<FR>3/4</FR>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="03">4-year cycle</ENT>
                  <ENT>95</ENT>
                  <ENT>105</ENT>
                </ROW>
              </GPOTABLE>
              <P>(3) <E T="03">Collective bargaining cost (CBC)</E> means the annual cost, calculated on the basis of the per diem rate of expense, as of January 1 of the annual fiscal periods July 1 through June 30, of all items of expense required by the operator through a collective bargaining or other agreement, covering the employment of the approved manning complement of the subsidized vessel, including payments required by law to assure old-age pensions, unemployment benefits or similar benefits, and taxes or other governmental assessments on crew payrolls.</P>
              <P>(4) <E T="03">Approved manning complement</E> means the complement approved by the Board for subsidy.</P>
              <P>(5) <E T="03">U.S. wage cost (WC)</E> means the annual cost, calculated on the basis of the per diem rate of expense as of January 1 of the annual fiscal periods July 1 through June 30, of all items of expense required of the operator through a collective bargaining or other agreement, covering the employment of the normal manning complement of the subsidized vessel, including payments required by law to assure old-age pensions, unemployment benefits or similar benefits, and taxes or other governmental assessments on crew payrolls.</P>
              <P>(6) <E T="03">Normal manning complement</E> means the crew complement established by a collective bargaining or other agreement with the officers and unlicensed crew of the vessel. In cases where the complement may vary in number, the lowest number shall be the normal manning complement. When ratings of different salaries are in the same job during the year, the base wages of the rating carried most of the time shall be used.</P>
              <P>(7) <E T="03">Subsidizable wage cost</E> means, (i) with respect to a base period, the base period cost, and (ii) in any fiscal period other than a base period, the most recent base period cost, increased or decreased by the change from January 1 of the base period to January 1 of the non-base period in the index described above. The subsidizable wage cost shall not be less than 90 percent nor greater than 110 percent of the collective bargaining cost as of January 1 of such period.</P>
              <P>(8) <E T="03">Unpredictably timed costs</E> are collective bargaining costs that are not regularly incurred. Examples of unpredictably timed costs are such costs as severance pay, shortfalls, special assessments, and war zone bonuses.</P>
              <P>(b) <E T="03">Method of calculating collective bargaining cost (CBC).</E> CBC shall be determined by pricing out, for the approved crew complement, the per diem total of fixed costs specified in the collective bargaining agreement and adding a per diem total of variable costs obtained from the cost experience of the subsidized vessel during the first nine months of the preceding calendar year.</P>
              <P>(1) <E T="03">Fixed Costs.</E> The per diem total of fixed costs shall include all costs that are stated in specific or determinable amounts per time period and, based on operating experience, do not vary. In cases where a monthly amount is specified in the agreement, the per diem amount shall be determined by dividing the monthly amount by 30. When a <PRTPAGE P="114"/>daily amount is specified it shall be used. Example of fixed costs are:</P>
              <P>(i) Base wages;</P>
              <P>(ii) Non-watch pay;</P>
              <P>(iii) Vacation pay (including contributions to vacation funds);</P>
              <P>(iv) Tool allowance;</P>
              <P>(v) Clothing and uniform allowances; and</P>
              <P>(vi) Per diem contributions for pension, training, welfare, unemployment, including unallocated contributions placed in escrow.</P>
              <P>(2) <E T="03">Variable costs.</E> Variable costs are regularly incurred employment costs which vary with ship operating experience. The per diem aggregate of variable costs as of January 1 shall be determined by applying a ratio to the per diem aggregate of base wage costs as of January 1, the numerator of which shall be the total of variable costs for the first nine months of the preceding calendar year and the denominator of which shall be the total of base wage costs for the first nine months of the preceding calendar year. Variable costs include but are not limited to:</P>
              <P>(i) Payroll taxes (including social security taxes);</P>
              <P>(ii) Overtime and penalty pay;</P>
              <P>(iii) Variable pension, training, welfare, unemployment, and vacation costs;</P>
              <P>(iv) Pay in lieu of time off;</P>
              <P>(v) Transportation and travel allowances;</P>
              <P>(vi) Payments to relief officers and crews;</P>
              <P>(vii) Wages and other expenses of USMMA cadets and extra messmen;</P>
              <P>(viii) Board and lodging allowances;</P>
              <P>(ix) Overlap in wages (a maximum of two days); and</P>
              <P>(x) Penalty cargo bonuses.</P>
              <P>(c) <E T="03">Method of calculating U.S. wage cost (WC)</E> Two different calculations of WC are necessary—a per diem amount for every ship type on the service and a per month amount for the predominant ship type (most voyages) on the service. The purpose of the per month calculation is to make a comparison with the monthly foreign wage costs. The relationship of WC to foreign costs for the predominant ship is applied to the per diem WC for other ship types in the service to estimate comparable foreign costs for them.</P>
              <P>(1) <E T="03">Calculation of per diem WC.</E> The per diem WC shall be calculated by the same method that applies to CBC, except that the normal manning complement shall be used.</P>
              <P>(2) <E T="03">Calculation of per month WC.</E> The costs and manning level used in this calculation shall be the same as those used for the per diem WC.</P>
              <P>(d) <E T="03">Data submission requirements.</E> For purposes of calculating CBC and WC the operator shall each year submit Form MA-790 and, as appropriate, current copies of all collective bargaining or other agreements, memoranda of understanding, and arbitration awards, which specify the fixed costs as of January 1. Schedule A of Form MA-790, which covers wage costs on voyages terminated during the first nine months of the previous calendar year, shall be submitted by January 1 of the subsidized year. Schedule B of Form MA-790—normal manning complement, rates of pay, and contributions in effect on January 1 of the current year—shall be submitted by January 31. Form MA-790, Schedules A and B, shall be submitted to the Director, Office of Ship Operating Costs, Maritime Administration, 400 Seventh Street, SW., Washington, DC 20590.</P>
              <P>(e) <E T="03">Example calculation.</E> The following is a sample of calculation of CBC and WC:</P>
              <GPOTABLE CDEF="s50,8,8" COLS="3" OPTS="L2,i1">
                <TTITLE>ABC Steamship Company</TTITLE>
                <TDESC>January 1, 1985, Collective Bargaining Costs (CBC) and U.S. Wage Cost (WC)</TDESC>
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Per diem</CHED>
                  <CHED H="2">WC</CHED>
                  <CHED H="2">CBC</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Crew complement</ENT>
                  <ENT>
                    <SU>1</SU> 35</ENT>
                  <ENT>
                    <SU>2</SU> 31</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Fixed costs as of January 1, 1985:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Base wages and non-watch pay</ENT>
                  <ENT>$1,789.79</ENT>
                  <ENT>$1,571.60</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Allowances (radio, telephone, clothing, etc.)</ENT>
                  <ENT>5.75</ENT>
                  <ENT>5.75</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Vacation pay</ENT>
                  <ENT>1,189.60</ENT>
                  <ENT>1,109.65</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="02">Pension, welfare, training, unemployment fund contributions</ENT>
                  <ENT>1,280.80</ENT>
                  <ENT>1,171.75</ENT>
                </ROW>
                <ROW>
                  <ENT I="04">Total fixed</ENT>
                  <ENT>$4,265.94</ENT>
                  <ENT>$3,858.75</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Variable costs as of January 1, 1985:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Variable cost factor (based on 1984 cost experience) (in percent)</ENT>
                  <ENT>104.69</ENT>
                  <ENT>104.69</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="04">Total variable costs (January 1, 1985, base wages × variable cost factor)</ENT>
                  <ENT>$1,873.73</ENT>
                  <ENT>$1,645.31</ENT>
                </ROW>
                <ROW>
                  <ENT I="04">Total wage costs as of January 1, 1985</ENT>
                  <ENT>$6,139.67</ENT>
                  <ENT>$5,504.06</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Normal manning complement.</TNOTE>
                <TNOTE>
                  <SU>2</SU> Approved manning complement.</TNOTE>
              </GPOTABLE>
              <PRTPAGE P="115"/>
              <P>(f) <E T="03">Method of calculating foreign wage costs.</E> The foreign wage cost (FC) of the principal foreign-flag competitors and the comparable WC of the subsidized vessel are matched as of January 1 of the last fiscal year preceding the subsidized fiscal year for purposes of determining the wage cost of the principal foreign flags. The following procedures are used:</P>
              <P>(1) <E T="03">Manning.</E> The foreign manning complement in number and nationality for the principal foreign-flag competitors shall be constructed for the subsidized vessel type using the manning scales and practices of the competitors as developed through an examination of alien crew manifests, payrolls, and other reliable information. The commonly used crew complement of the competitors shall be adjusted to fit the predominant vessel type, in recognition of differences in physical characteristics that would affect manning scales. Where the manning complement cannot be estimated with reasonable substantiation, it will be deemed to be identical with that of the subsidized vessel.</P>
              <P>(2) <E T="03">Method.</E> The method of calculating FC shall be the same as that used for WC, provided that it is possible to obtain foreign cost data on the same basis as wage cost data. Preference shall be given to pricing out for fixed costs and to cost experience for variable costs. Where applicable, foreign currencies shall be converted into U.S. currency equivalents by using the average of end-month exchange rates for the period July through June that includes the January 1 for which FC is calculated. The exchange rates shall be obtained from the publication, “International Financial Statistics,” published monthly by the International Monetary Fund. If exchange rates for particular foreign currencies are not available in this publication, they shall be obtained from the United States Department of the Treasury.</P>
              <P>(3) <E T="03">Foreign wage costs.</E> The per diem composite foreign wage cost is determined by multiplying the per diem WC for the U.S. ship type, calculated as of January 1 of the subsidized fiscal year, by the ratio of FC to WC, calculated as of January 1 of the last fiscal year preceding the subsidized fiscal year. The following is a sample calculation of the foreign cost percentage.</P>
              <GPOTABLE CDEF="s25,7,7,7,7,7,7,7,7" COLS="9" OPTS="L2,i1">
                <TTITLE>ABC Steamship Company, Inc., Trade Route 21—January 1, 1985—Foreign Wage Cost (FC)</TTITLE>
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">United States</CHED>
                  <CHED H="1">Belgium</CHED>
                  <CHED H="1">United States</CHED>
                  <CHED H="1">Germany</CHED>
                  <CHED H="1"/>
                  <CHED H="1">Netherlands</CHED>
                  <CHED H="1">United States</CHED>
                  <CHED H="1">Norway</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Crew Complement</ENT>
                  <ENT>35</ENT>
                  <ENT>35</ENT>
                  <ENT>35</ENT>
                  <ENT>23</ENT>
                  <ENT/>
                  <ENT>22</ENT>
                  <ENT>35</ENT>
                  <ENT>28</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Base Wages</ENT>
                  <ENT>
                    <E T="51">1</E> 53,687</ENT>
                  <ENT>
                    <E T="51">1</E> 24,779</ENT>
                  <ENT>
                    <E T="51">1</E> 53,687</ENT>
                  <ENT>
                    <E T="51">1</E> 25,192</ENT>
                  <ENT/>
                  <ENT>
                    <E T="51">1</E> 23,127</ENT>
                  <ENT>
                    <E T="51">1</E> 53,687</ENT>
                  <ENT>
                    <E T="51">1</E> 27,257</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Allowances</ENT>
                  <ENT>
                    <E T="51">1</E> 1,074</ENT>
                  <ENT>
                    <E T="51">1</E> 4,584</ENT>
                  <ENT>
                    <E T="51">1</E> 1,074</ENT>
                  <ENT>
                    <E T="51">1</E> 8,879</ENT>
                  <ENT/>
                  <ENT>
                    <E T="51">1</E> 3,097</ENT>
                  <ENT>
                    <E T="51">1</E> 1,074</ENT>
                  <ENT>
                    <SU>1</SU> 289</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Vacation Pay (leave)</ENT>
                  <ENT>
                    <E T="51">1</E> 35,681</ENT>
                  <ENT>
                    <E T="51">1</E> 13,009</ENT>
                  <ENT>
                    <E T="51">1</E> 35,681</ENT>
                  <ENT>
                    <E T="51">1</E> 9,912</ENT>
                  <ENT/>
                  <ENT>
                    <E T="51">1</E> 9,499</ENT>
                  <ENT>
                    <E T="51">1</E> 35,681</ENT>
                  <ENT>
                    <E T="51">1</E> 11,976</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Pension and Welfare</ENT>
                  <ENT>
                    <E T="51">1</E> 38,407</ENT>
                  <ENT>
                    <E T="51">1</E> 2,065</ENT>
                  <ENT>
                    <SU>1</SU> 38,407</ENT>
                  <ENT>
                    <E T="51">1</E> 124</ENT>
                  <ENT/>
                  <ENT>
                    <E T="51">1</E> 3,923</ENT>
                  <ENT>
                    <E T="51">3</E> 36,342</ENT>
                  <ENT>
                    <E T="51">1</E> 124</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Social Security</ENT>
                  <ENT>
                    <E T="51">2</E> 6,608</ENT>
                  <ENT>
                    <E T="51">2</E> 7,227</ENT>
                  <ENT>
                    <E T="51">1</E> 3,717</ENT>
                  <ENT>
                    <E T="51">1</E> 6,814</ENT>
                  <ENT/>
                  <ENT>
                    <E T="51">1</E> 4,584</ENT>
                  <ENT>
                    <E T="51">2</E> 6,608</ENT>
                  <ENT>
                    <E T="51">2</E> 10,118</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Overtime and other variable costs (not elsewhere included)</ENT>
                  <ENT>
                    <E T="51">2</E> 48,732</ENT>
                  <ENT>
                    <E T="51">2</E> 10,944</ENT>
                  <ENT>
                    <E T="51">2</E> 48,732</ENT>
                  <ENT>
                    <E T="51">2</E> 10,325</ENT>
                  <ENT/>
                  <ENT>
                    <E T="51">2</E> 7,021</ENT>
                  <ENT>
                    <E T="51">2</E> 48,732</ENT>
                  <ENT>
                    <E T="51">2</E> 12,389</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="01">Repatriation</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>
                    <SU>2</SU> 413</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Total wage costs</ENT>
                  <ENT>184,189</ENT>
                  <ENT>62,608</ENT>
                  <ENT>181,298</ENT>
                  <ENT>61,246</ENT>
                  <ENT/>
                  <ENT>51,251</ENT>
                  <ENT>182,124</ENT>
                  <ENT>62,566</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Unweighted Percentage FC to WC</ENT>
                  <ENT/>
                  <ENT>33.99%</ENT>
                  <ENT/>
                  <ENT>33.78%</ENT>
                  <ENT/>
                  <ENT>28.27%</ENT>
                  <ENT/>
                  <ENT>34.35%</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Competition Weight Factor</ENT>
                  <ENT/>
                  <ENT>22.1%</ENT>
                  <ENT/>
                  <ENT>19.6%</ENT>
                  <ENT/>
                  <ENT>19.1%</ENT>
                  <ENT/>
                  <ENT>39.2%</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Weighted Percentage</ENT>
                  <ENT/>
                  <ENT>7.51%</ENT>
                  <ENT/>
                  <ENT>6.62%</ENT>
                  <ENT/>
                  <ENT>5.40%</ENT>
                  <ENT/>
                  <ENT>13.47%</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Composite Weighted Percentage</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>33.00%</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                </ROW>
                <TNOTE>
                  <E T="51">1</E> Based on Jan. 1 priced out cost.</TNOTE>
                <TNOTE>
                  <E T="51">2</E> Based on cost experience.</TNOTE>
                <TNOTE>
                  <E T="51">3</E> Excludes training costs—foreign data not available.</TNOTE>
              </GPOTABLE>
              <P>(g) <E T="03">Determination of daily wage rate.</E> The foreign wage cost is deducted from subsidizable wage costs to determine the daily wage subsidy rate. Table 1 is an example calculation of a daily wage subsidy rate using the procedures described in this section.</P>
              <P>(h) <E T="03">Unpredictably timed costs (UTC)</E> are subsidized by calculating costs incurred during the previous six months and converting them into a daily rate or, in the alternative, a lump sum amount will be paid for special lump <PRTPAGE P="116"/>sum assessments or for per man-day increases to benefit plans which become effective during the six months following the establishment of the daily rate. In either case, the percentage subsidy rate—which is the differential percentage between the subsidizable wage cost and the foreign wage cost—is used to establish the amount of subsidy payable for UTC incurred.</P>
              <P>(1) UTC expenses such as severance pay and area bonuses are eligible for subsidy payment without obtaining prior approval and subsidy shall be paid as a lump sum amount.</P>

              <P>(2) Expenses such as shortfalls in benefit fund contributions, special assessments for benefit funds, and retroactive wage increases may be treated as UTC if the cost increase was not negotiated. Such costs must be approved as UTC by the Director, Office of Ship Operating Costs. To the extent such expenses qualify for UTC, the Director shall determine the appropriate method of paying subsidy—added to the per diem wage subsidy rate and/or as a lump sum amount treated separately.<PRTPAGE P="117"/>
              </P>
              <GPOTABLE CDEF="xs20,xs20,7,7,24,7,17,8,8,8,8,8,8" COLS="13" OPTS="L2,i1">
                <TTITLE>Table 1—ABC Steamship Co., Inc., Trade Route 21</TTITLE>
                <TDESC>[Calculation of wage subsidy rates*]</TDESC>
                <BOXHD>
                  <CHED H="1">(1)</CHED>
                  <CHED H="2">Base period</CHED>
                  <CHED H="1">(2)</CHED>
                  <CHED H="2">Interim period</CHED>
                  <CHED H="1">(3)</CHED>
                  <CHED H="2">U.S. wage cost</CHED>
                  <CHED H="1">(4)</CHED>
                  <CHED H="2">Collective bargaining cost</CHED>
                  <CHED H="1">(5)</CHED>
                  <CHED H="2">Application of BLS index to base period cost</CHED>
                  <CHED H="1">(6)</CHED>
                  <CHED H="2">Averaging in base periods (4)+(5)</CHED>
                  <CHED H="3">2</CHED>
                  <CHED H="1">(7)</CHED>
                  <CHED H="2">Appropriate limits</CHED>
                  <CHED H="1">(8)</CHED>
                  <CHED H="2">Base period cost</CHED>
                  <CHED H="1">(9)</CHED>
                  <CHED H="2">Subsidizable wage cost</CHED>
                  <CHED H="1">(10)</CHED>
                  <CHED H="2">Composite weighted percentage</CHED>
                  <CHED H="1">(11)</CHED>
                  <CHED H="2">Composite foreign wage cost</CHED>
                  <CHED H="1">(12)</CHED>
                  <CHED H="2">Wage subsidy daily rate</CHED>
                  <CHED H="1">(13)</CHED>
                  <CHED H="2">Wage subsidy percentage rate (12)+(9)</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">1981</ENT>
                  <ENT/>
                  <ENT>4,162.60</ENT>
                  <ENT>3,850.29</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>3,850.29</ENT>
                  <ENT>3,850.29</ENT>
                  <ENT>32.99</ENT>
                  <ENT>1,373.24</ENT>
                  <ENT>2,477.05</ENT>
                  <ENT>64.33</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>1982</ENT>
                  <ENT>4,578.24</ENT>
                  <ENT>4,230.15</ENT>
                  <ENT>3,850.29×1.0845=4,175.64</ENT>
                  <ENT/>
                  <ENT>.9×(4)=3,807.14<LI>1.1×(4)=4,653.17</LI>
                  </ENT>
                  <ENT/>
                  <ENT>4,175.64</ENT>
                  <ENT>32.98</ENT>
                  <ENT>1,509.90</ENT>
                  <ENT>2,665.74</ENT>
                  <ENT>63.84</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>1983</ENT>
                  <ENT>5,013.80</ENT>
                  <ENT>4,560.38</ENT>
                  <ENT>3,850.29×1.1816=4,549.50</ENT>
                  <ENT/>
                  <ENT>.9×(4)=4,104.34 <LI>1.1×(4)=5,016.42</LI>
                  </ENT>
                  <ENT/>
                  <ENT>4,549.50</ENT>
                  <ENT>36.15</ENT>
                  <ENT>1,812.49</ENT>
                  <ENT>2,737.01</ENT>
                  <ENT>60.16</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>1984</ENT>
                  <ENT>5,539.40</ENT>
                  <ENT>4,966.90</ENT>
                  <ENT>3,850.29×1.2992=5,002.30</ENT>
                  <ENT/>
                  <ENT>.9×(4)=4,470.21 <LI>1.1×(4)=5,463.59</LI>
                  </ENT>
                  <ENT/>
                  <ENT>5,002.30</ENT>
                  <ENT>34.77</ENT>
                  <ENT>1,926.05</ENT>
                  <ENT>3,076.25</ENT>
                  <ENT>61.50</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">1985</ENT>
                  <ENT/>
                  <ENT>6,139.57</ENT>
                  <ENT>5,504.06</ENT>
                  <ENT>3,850.29×1.4044=5,407.35</ENT>
                  <ENT>5,455.71</ENT>
                  <ENT>.95×(4)=5,228.86 <LI>1.05×(4)=5,779.26</LI>
                  </ENT>
                  <ENT>5,455.71</ENT>
                  <ENT>5,455.71</ENT>
                  <ENT>33.00</ENT>
                  <ENT>2,026.06</ENT>
                  <ENT>3,429.65</ENT>
                  <ENT>62.86</ENT>
                </ROW>
                <TNOTE>*This computation is based on a new vessel entering subsidized service in May 1981.</TNOTE>
              </GPOTABLE>
              <CITA TYPE="T">[51 FR 34609, Sept. 30, 1986, as amended at 54 FR 5088, Feb. 1, 1989]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="118"/>
              <SECTNO>§ 282.22</SECTNO>
              <SUBJECT>Maintenance (upkeep) and repairs.</SUBJECT>
              <P>(a) <E T="03">Basis for subsidy.</E> The fair and reasonable maintenance and repair costs not compensated by insurance, if eligible for subsidy under the ODSA and the regulations in 46 CFR part 272, shall be used for determining the daily amount of subsidy. The U.S.-foreign cost differential shall be determined from price estimates of representative items of maintenance and repair work and by using the repair practices of the foreign-flag competition.</P>
              <P>(b) <E T="03">U.S.-foreign cost differential.</E> MARAD shall use the following procedures for calculating the U.S.-foreign cost differential for M&amp;R.</P>
              <P>(1) <E T="03">Cost Survey.</E> MARAD shall select a sample of jobs which are representative of the various types of maintenance and repair work—drydocking and underwater repairs, machinery repairs, hull and deck repairs, electrical repairs, exterior painting and interior painting, etc. The jobs shall be described fully and combined into a standard set of specifications based on a particular type of vessel. The same specifications shall be used for obtaining all price estimates. MARAD shall request reliable and mutually acceptable ship repair cost experts to ascertain the U.S. and foreign M&amp;R prices. MARAD shall survey foreign countries during a three-year cycle. The survey year prices shall be adjusted in the years between surveys by price adjustments estimated by the ship repair cost experts.</P>
              <P>(2) <E T="03">Country cost differential.</E> A country cost differential shall be determined for each country where work was performed on the competitive vessels. The country cost differential shall be 100 percent minus the ratio of the estimated foreign price to the U.S. price estimate. The U.S. price estimate shall be representative of the coastal area included in the subsidized service (for example East Coast) or, if more than one coast is served, the coast where the company is home based. For example:
              </P>
              <GPOTABLE CDEF="s25,10,10" COLS="3" OPTS="L2,i1">
                <TTITLE>Determination of Country Cost Differential—Year—1985—U.S. East Coast—Foreign Country—United Kingdom</TTITLE>
                <BOXHD>
                  <CHED H="1">Repair category</CHED>
                  <CHED H="1">Foreign price</CHED>
                  <CHED H="1">U.S. price</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Drydocking &amp; Underwater Repairs</ENT>
                  <ENT>$49,598</ENT>
                  <ENT>$70,662</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Boiler Repairs</ENT>
                  <ENT>18,938</ENT>
                  <ENT>20,287</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Machinery Repairs</ENT>
                  <ENT>33,004</ENT>
                  <ENT>36,193</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Hull and Deck Repairs</ENT>
                  <ENT>16,729</ENT>
                  <ENT>20,853</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Electrical Repairs</ENT>
                  <ENT>11,868</ENT>
                  <ENT>11,117</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Exterior Painting</ENT>
                  <ENT>5,456</ENT>
                  <ENT>7,974</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="01">Interior Painting</ENT>
                  <ENT>681</ENT>
                  <ENT>1,162</ENT>
                </ROW>
                <ROW>
                  <ENT I="04">Estimate Totals</ENT>
                  <ENT>$136,274</ENT>
                  <ENT>$168,248</ENT>
                </ROW>
                <ROW EXPSTB="02">
                  <ENT I="11">Foreign/U.S. Price Ratio—81%</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Country Cost Differential (100-81)—19%.</ENT>
                </ROW>
              </GPOTABLE>
              <P>(3) <E T="03">Distribution of repairs.</E> The distribution of repairs refers to the countries where M&amp;R work was performed on the vessels of the foreign-flag competitor. When data on the repairing practices are obtained directly from the foreign competitor, they be used. If information about such practices is unavailable—or only partially available—data, published by the classification societies and Lloyd's Voyage Record, reporting the dates and localities of drydocking and completion of the various types of vessel surveys, shall be used for determining the geographical distribution of the unknown repairing practices. For diesel vessels, there are three basic types of surveys—drydocking, machinery, and hull. For steam vessels, there is a fourth survey—boiler—in addition to the other three surveys. Since these surveys may be performed in different countries, they are weighted in order to determine the distribution of repairs. The weighting factors shall be: drydocking—20 percent, machinery—40 percent (10 percent allocated to boiler survey on steam vessels), and hull—40 percent.</P>
              <P>(4) <E T="03">Proportionate cost differential.</E> A proportionate cost differential for each principal foreign-flag competitor shall be determined by multiplying the percentage distribution of repairs for each country where repair work was performed by the country cost differential for that country and by adding the resulting weighted percentages for all <PRTPAGE P="119"/>countries where repair work was performed.</P>
              <P>(5) <E T="03">U.S.-foreign cost differential.</E> The U.S.-foreign cost differential shall be determined by multiplying the proportionate cost differential for each principal foreign-flag competitor by the competition weight factor for that competitor, and by adding the resulting differentials for all principal foreign-flag competitors, as shown in the following example.</P>
              <GPOTABLE CDEF="s72,r36,5,7,7,6,7" COLS="7" OPTS="L2,i1">
                <TTITLE>ABC Steamship Company, Inc.—Trade Route—X—U.S.-Foreign Cost Differential for Maintenance (Upkeep) and Repairs Subsidy Rate—1985</TTITLE>
                <BOXHD>
                  <CHED H="1">Principal competitors</CHED>
                  <CHED H="1">(1) Distribution of repairs</CHED>
                  <CHED H="2">Country</CHED>
                  <CHED H="2">(Percent)</CHED>
                  <CHED H="1">(2) Country cost differential (percent)</CHED>
                  <CHED H="1">(3) Proportionate cost differential (1) × (2) (percent)</CHED>
                  <CHED H="1">(4) Competition weight factor (Percent)</CHED>
                  <CHED H="1">(5) Weighted differential (3) × (4) (Percent)</CHED>
                </BOXHD>
                <ROW EXPSTB="00">
                  <ENT I="01">Japan</ENT>
                  <ENT>Japan</ENT>
                  <ENT>85</ENT>
                  <ENT>36.21</ENT>
                  <ENT>30.78</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW RUL="n,n,s,n,s,n,n">
                  <ENT I="22"/>
                  <ENT>U.S</ENT>
                  <ENT>15</ENT>
                  <ENT>0</ENT>
                  <ENT>0</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW RUL="n,n,d,n,d,n,n">
                  <ENT I="22"/>
                  <ENT/>
                  <ENT>100</ENT>
                  <ENT/>
                  <ENT>30.78</ENT>
                  <ENT>23.4</ENT>
                  <ENT>7.20</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Norway</ENT>
                  <ENT>Norway</ENT>
                  <ENT>15</ENT>
                  <ENT>44.72</ENT>
                  <ENT>6.71</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>Netherlands</ENT>
                  <ENT>20</ENT>
                  <ENT>43.23</ENT>
                  <ENT>8.65</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>Japan</ENT>
                  <ENT>45</ENT>
                  <ENT>36.21</ENT>
                  <ENT>16.29</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW RUL="n,n,s,n,s,n,n">
                  <ENT I="22"/>
                  <ENT>U.S</ENT>
                  <ENT>20</ENT>
                  <ENT>0</ENT>
                  <ENT>0</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW RUL="n,n,d,n,d,n,n">
                  <ENT I="22"/>
                  <ENT/>
                  <ENT>100</ENT>
                  <ENT/>
                  <ENT>31.65</ENT>
                  <ENT>31.1</ENT>
                  <ENT>9.84</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">United Kingdom</ENT>
                  <ENT>U.K</ENT>
                  <ENT>80</ENT>
                  <ENT>19.00</ENT>
                  <ENT>15.20</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>Hong Kong</ENT>
                  <ENT>15</ENT>
                  <ENT>50.35</ENT>
                  <ENT>7.55</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW RUL="n,n,s,s,s">
                  <ENT I="22"/>
                  <ENT>U.S</ENT>
                  <ENT>5</ENT>
                  <ENT>0</ENT>
                  <ENT>0</ENT>
                  <ENT/>
                  <ENT/>
                </ROW>
                <ROW RUL="n,n,d,n,d,s,s">
                  <ENT I="22"/>
                  <ENT/>
                  <ENT>100</ENT>
                  <ENT/>
                  <ENT>22.75</ENT>
                  <ENT>45.5</ENT>
                  <ENT>10.35</ENT>
                </ROW>
                <ROW RUL="n,n,d,n,d">
                  <ENT I="01">U.S.-Foreign Cost Differential</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>27.39</ENT>
                </ROW>
              </GPOTABLE>
              <P>(c) <E T="03">Calculation.</E> The appropriate U.S.-foreign cost differential shall be applied to the subsidizable and audited maintenance and repair costs for the three-year period, discussed in paragraph (c)(1) of this section, to establish a relationship of the cost differentials between M&amp;R and wages. This relationship shall be used to establish the M&amp;R subsidy on a current basis by applying the percentage relationship to the per diem wage subsidy rate.</P>
              <P>(1) <E T="03">Historical period.</E> The relationship of calendar period M&amp;R subsidy to fiscal period wage subsidy shall be measured for the three-year period commencing five years prior to January 1 of the subsidized year. The M&amp;R subsidy and the wage subsidy shall be expressed as an amount per voyage day for purposes of establishing the relationship. This ratio shall be established for each subsidized service and applied to the per diem wage rate of each ship type in the service to factor a daily amount of subsidy for M&amp;R. The following is an example of the determination of the relationship and the daily amount of subsidy for M&amp;R.</P>
              <GPOTABLE CDEF="s48,12,12,12,12" COLS="5" OPTS="L2,lt,i1">
                <TTITLE>Determination of Daily Amount of Subsidy For M&amp;R</TTITLE>
                <BOXHD>
                  <CHED H="1">T.R. 98 item</CHED>
                  <CHED H="1">Calender Year 1980</CHED>
                  <CHED H="1">Calender Year 1981</CHED>
                  <CHED H="1">Calender Year 1982</CHED>
                  <CHED H="1">Total</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">M&amp;R C.Y. Expenses</ENT>
                  <ENT>$1,700,000</ENT>
                  <ENT>$2,000,000</ENT>
                  <ENT>$1,900,000</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Subsidy Rate</ENT>
                  <ENT>40.00%</ENT>
                  <ENT>44.00%</ENT>
                  <ENT>50.00%</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Subsidy</ENT>
                  <ENT>$680,000</ENT>
                  <ENT>$880,000</ENT>
                  <ENT>$950,000</ENT>
                  <ENT>$2,510,000</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Voyage Days</ENT>
                  <ENT>1,100</ENT>
                  <ENT>1,225</ENT>
                  <ENT>1,175</ENT>
                  <ENT>3,500</ENT>
                </ROW>
                <ROW EXPSTB="04">
                  <ENT I="21">Average Subsidy Per Voyage Day ($2,510,000÷3,500 days)=$717.14</ENT>
                </ROW>
                <ROW EXPSTB="00">
                  <ENT I="22"/>
                  <ENT O="oi0">Fiscal Year 1980</ENT>
                  <ENT O="oi0">Fiscal Year 1981</ENT>
                  <ENT O="oi0">Fiscal Year 1982</ENT>
                  <ENT O="oi0">Total</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Wages F.Y. Per Diem Rate</ENT>
                  <ENT>$7,700</ENT>
                  <ENT>$8,050</ENT>
                  <ENT>$8,200</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Voyage Days</ENT>
                  <ENT>1,180</ENT>
                  <ENT>1,230</ENT>
                  <ENT>1,060</ENT>
                  <ENT>3,470</ENT>
                </ROW>
                <ROW>
                  <PRTPAGE P="120"/>
                  <ENT I="01">Subsidy</ENT>
                  <ENT>$9,086,000</ENT>
                  <ENT>$9,901,500</ENT>
                  <ENT>$8,692,000</ENT>
                  <ENT>$27,679,500</ENT>
                </ROW>
                <ROW EXPSTB="04">
                  <ENT I="21">Average Subsidy Per Voyage Day ($27,679,500÷3,470 days)=$7,976.80</ENT>
                </ROW>
                <ROW>
                  <ENT I="21">Ratio M&amp;R ODS to Wage ODS $717.14÷$7,976.80=8.99%</ENT>
                </ROW>
              </GPOTABLE>
              <GPOTABLE CDEF="s48,16,15,17" COLS="4" OPTS="L2,ns">
                <BOXHD>
                  <CHED H="1">T.R. 98 ship type</CHED>
                  <CHED H="1">Daily wage ODS 1/1/85</CHED>
                  <CHED H="1">Ratio M&amp;R to wage ODS (percent)</CHED>
                  <CHED H="1">Daily M&amp;R ODS 1/1/85</CHED>
                </BOXHD>
                <ROW EXPSTB="00">
                  <ENT I="01">C4-A</ENT>
                  <ENT>$9,000</ENT>
                  <ENT>x 8.99</ENT>
                  <ENT>$809.10</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">C5-B</ENT>
                  <ENT>$9,300</ENT>
                  <ENT>x 8.99</ENT>
                  <ENT>$836.07</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">C6-C</ENT>
                  <ENT>$9,600</ENT>
                  <ENT>x 8.99</ENT>
                  <ENT>$863.04</ENT>
                </ROW>
              </GPOTABLE>
              <P>(2) <E T="03">Data submission requirement.</E> The operator is required to submit annually a certified statement of eligible and audited M&amp;R expenses, segregated by service, for the historical period referred to in paragraph (c)(1) of this section. The report shall be submitted to the Director, Office of Ship Operating Costs no later than January 1 of the subsidized year.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 282.23</SECTNO>
              <SUBJECT>Hull and machinery insurance.</SUBJECT>
              <P>(a) <E T="03">Subsidy items.</E> The fair and reasonable net premium costs (including stamp taxes) of hull and machinery, increased value, excess general average, salvage, and collision liability insurance against risks and liabilities covered under the tems and conditions of policies approved as to form and coverage by MARAD, less lay-up returns, shall be eligible for subsidy and used for determining the U.S.-foreign cost differential. Port risk premiums are eligible for subsidy but not for determining the U.S.-foreign cost differential.</P>
              <P>(b) <E T="03">U.S.-foreign cost differential.</E> A U.S.-foreign cost differential shall be calculated for each service. Due to the difficulty of comparing forms and costs of hull and machinery insurance coverages, the following assumptions shall be used for estimating the composite premium cost of the foreign-flag competitor.</P>
              <P>(1) <E T="03">Coverage.</E> The foreign competitive vessels have the same types and amounts of insurance coverages and deductible averages as the subsidized vessels.</P>
              <P>(2) <E T="03">Premium rate.</E> The foreign competitive vessels are insured in the British market and the rate for such vessels is the same as the British market rate for the subsidized vessels. If the operator carries all of its insurance in the American market, the American market rate shall be assumed to be the same as the British market rate.</P>
              <P>(3) <E T="03">Repairs.</E> Insurable repairs of the foreign competitive vessels are performed in the same countries and in the same distribution as non-insurable repairs, and the cost differential for such repairs shall be the same as the maintenance and repair percentage differential.</P>
              <P>(4) <E T="03">Particular average.</E> The percentage of particular average repair claims for the foreign competitive vessels is the same as the percentage of particular average repair claims for the subsidized vessels. The particular average portion of the premium cost for the subsidized vessels shall be determined as follows:</P>
              <P>(i) <E T="03">Percentage.</E> The particular average portion of the premium cost shall be determined by applying a percentage to the hull and machinery premium cost after deducting the estimated total loss premium. The percentage is based on insured claims experience. The percentage shall be determined by dividing the total of underwriter's absorptions for particular average domestic repair claims paid and estimated by the total of underwriter's absorptions for all claims paid and estimated (excluding total loss and constructive total loss claims) under the hull and machinery portion of the insurance coverage, except that such percentage shall not exceed eighty-five (85) percent. The percentage is based on the claims experience of the subsidized <PRTPAGE P="121"/>vessels for the five (5) calendar year period preceding the subsidized year. For subsidized operators that do not have five years of claims experience, the average percentage of particular average domestic repair claims for all similar subsidized vessels shall be used unless the operator can submit data to substantiate its own claims cost experience on similar vessels.</P>
              <P>(ii) <E T="03">Data submission requirement.</E> The operator shall submit the five year claims experience, invoices showing net premium costs and coverages for the subsidized year, and lay-up returns for the previous year to the Director, Office of Ship Operating Costs, not later than sixty (60) days after the cost of each calendar year.</P>
              <P>(c) <E T="03">Calculation.</E> In calculating the subsidized premium cost, the following steps shall be taken:</P>
              <P>(1) The particular average portion of the premium cost shall be adjusted in order to give effect to the repair cost differential for the foreign competitive vessels by applying the complement of the maintenance and repairs percentage cost differential (100 percent minus the differential) to the particular average portion of the premium cost. The adjusted particular average foreign premium cost shall be added to the net premium cost excluding the particular average portion to determine the composite foreign premium cost.</P>
              <P>(2) The foreign premium cost shall be substracted from the operator's total premium cost to determine the difference in dollars. The percentage differential is detemined by dividing the dollar difference by the operators' total premium cost. An example calculation is included in Table 2.</P>
              <P>(3) The net premium cost of the subsidized vessels shall be divided by the number of days in the calendar year and the resultant daily insurance cost shall be multiplied by the U.S.-foreign cost differential percentage applicable to the most recent year to determine the daily amount of subsidy for hull and machinery insurance.</P>
              <GPOTABLE CDEF="s48,13,13,13" COLS="4" OPTS="L2(0),6/7,i1">
                <TTITLE>Table 2—ABC Steamship Company, Inc.; Cargo vessels—Trade Route—X, U.S./Foreign Cost Differential for Hull and Machinery Insurance</TTITLE>
                <TDESC>[1985]</TDESC>
                <ROW EXPSTB="01">
                  <ENT I="11">1. <E T="03">COMPOSITE FOREIGN PREMIUM COST:</E>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="03">A. <E T="03">Hull and Machinery,</E> Total coverage</ENT>
                  <ENT>$92,741,996</ENT>
                </ROW>
                <ROW>
                  <ENT I="05">Average Premium Rate in British Market</ENT>
                  <ENT>1.00966%</ENT>
                </ROW>
                <ROW>
                  <ENT I="07">Premium Cost in British Market</ENT>
                  <ENT/>
                  <ENT>$936,379</ENT>
                </ROW>
                <ROW>
                  <ENT I="04">(Estimated Total Loss Payment $92,741,966<E T="61">@</E> .46500% <SU>1</SU>
                  </ENT>
                  <ENT>$431,250)</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">B. <E T="03">Increased Value,</E> Total Coverage</ENT>
                  <ENT>$1,083,325</ENT>
                </ROW>
                <ROW>
                  <ENT I="05">Average Premium Rate in British Market</ENT>
                  <ENT>.32550%</ENT>
                </ROW>
                <ROW EXPSTB="02">
                  <ENT I="07">Premium Cost in British Market</ENT>
                  <ENT>$3,526</ENT>
                </ROW>
                <ROW RUL="03,n,s">
                  <ENT I="03">C. <E T="03">Excess Liability,</E> Total Coverage</ENT>
                  <ENT>None</ENT>
                </ROW>
                <ROW>
                  <ENT I="03">D. <E T="03">Total Premium Cost if Insured 100% in British Market</E>
                  </ENT>
                  <ENT>$939,905</ENT>
                </ROW>
                <ROW>
                  <ENT I="13">E. <E T="03">Deduct Particular Average Portion:</E>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="07">$936,379 Less $431,250=$505,129×62% <SU>2</SU>
                  </ENT>
                  <ENT>313,180</ENT>
                </ROW>
                <ROW RUL="03,n,s">
                  <ENT I="03">F. <E T="03">Net Premium Cost Exclusive of Particular Average</E>
                  </ENT>
                  <ENT>$626,725</ENT>
                </ROW>
                <ROW EXPSTB="00">
                  <ENT I="22"/>
                  <ENT O="oi0">Trade Route</ENT>
                  <ENT>Trade Route</ENT>
                  <ENT O="oi0">Trade Route</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT O="oi0">No. X</ENT>
                  <ENT O="oi0">No. X</ENT>
                  <ENT O="oi0">No. X</ENT>
                </ROW>
                <ROW RUL="03,n,s">
                  <ENT I="22"/>
                  <ENT O="oi0">Line A</ENT>
                  <ENT O="oi0">Line B</ENT>
                  <ENT O="oi0">LIne C</ENT>
                </ROW>
                <ROW>
                  <ENT I="13">Particular Average Adjustment:</ENT>
                </ROW>
                <ROW>
                  <ENT I="05">P/A Portion of Premium Cost</ENT>
                  <ENT>$313,180</ENT>
                  <ENT>$313,180</ENT>
                  <ENT>$313,180</ENT>
                </ROW>
                <ROW RUL="03,n,s">
                  <ENT I="05">M &amp; R Subsidy Rate Complement <SU>3</SU>
                  </ENT>
                  <ENT>84.48%</ENT>
                  <ENT>86.63%</ENT>
                  <ENT>87.34%</ENT>
                </ROW>
                <ROW>
                  <ENT I="05">Adjusted P/A Foreign Premium Cost</ENT>
                  <ENT>$264,574</ENT>
                  <ENT>$271,308</ENT>
                  <ENT>$273,531</ENT>
                </ROW>
                <ROW RUL="03,n,s">
                  <ENT I="05">Add: Net Premium Cost (Excluding P/A)</ENT>
                  <ENT>$626,725</ENT>
                  <ENT>$626,725</ENT>
                  <ENT>$626,725</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">2. <E T="03">Composite Foreign Premium Cost</E>
                  </ENT>
                  <ENT>$891,299</ENT>
                  <ENT>$898,033</ENT>
                  <ENT>$900,256</ENT>
                </ROW>
                <ROW RUL="03,n,s">
                  <ENT I="01">3. <E T="03">TOTAL PREMIUM COST TO SUBSIDIZED OPERATORS</E>
                  </ENT>
                  <ENT>$1,068,998</ENT>
                  <ENT>$1,068,998</ENT>
                  <ENT>$1,068,998</ENT>
                </ROW>
                <ROW RUL="03,n,d">
                  <ENT I="01">4. DIFFERENTIAL IN DOLLARS <SU>4</SU>
                  </ENT>
                  <ENT>177.699</ENT>
                  <ENT>170,965</ENT>
                  <ENT>$168,742</ENT>
                </ROW>
                <ROW RUL="03,n,s">
                  <ENT I="01">5. <E T="03">COMPOSITE WEIGHTED DIFFERENTIAL</E>
                    <SU>5</SU>
                  </ENT>
                  <ENT>16.62%</ENT>
                  <ENT>15.99%</ENT>
                  <ENT>15.79%</ENT>
                </ROW>
                <ROW>
                  <PRTPAGE P="122"/>
                  <ENT I="01">6. <E T="03">U.S.—FOREIGN COST DIFFERENTIAL</E>
                  </ENT>
                  <ENT>16.62%</ENT>
                  <ENT>15.99%</ENT>
                  <ENT>15.79%</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Estimated gross total loss rate adjusted for broker's discounts, policy tax and other costs, as necessary.</TNOTE>
                <TNOTE>
                  <SU>2</SU> Percentage of particular average.</TNOTE>
                <TNOTE>
                  <SU>3</SU> 100% minus M&amp;R subsidy rate of the same calendar year.</TNOTE>
                <TNOTE>
                  <SU>4</SU> Line 3 less line 2.</TNOTE>
                <TNOTE>
                  <SU>5</SU> Line 4 divided by line 3.</TNOTE>
              </GPOTABLE>
            </SECTION>
            <SECTION>
              <SECTNO>§ 282.24</SECTNO>
              <SUBJECT>Protection and indemnity insurance.</SUBJECT>
              <P>(a) <E T="03">Subsidy items.</E> Items eligible for determination of subsidizable costs and the U.S.-foreign cost differential are:</P>
              <P>(1) <E T="03">Premiums.</E> The fair and reasonable net premium costs (including stamp taxes) of protection and indemnity, excess insurance, second seamen's insurance, “tovalop” or other forms of pollution insurance, bumbershoot (only that portion identified as applicable to P&amp;I insurance), cargo liability if excluded from the primary policy, supplemental calls against liabilities covered under the terms and conditions of policies approved as to form and coverage by MARAD, less lay-up return premiums, shall be eligible for subsidy and used for determining the U.S.-foreign cost differential.</P>
              <P>(2) <E T="03">Deductibles.</E> The fair and reasonable cost of crew claims paid by and pending with the operator under the deductible provision of the protection and indemnity insurance policy approved as to form and coverage by MARAD, to the extent that such cost would have been paid by the insurance underwriter under the terms of the policy, except for the fact that it did not exceed the deductible provision of the policy, shall be eligible for subsidy. For subsidy purposes, the deductible absorption shall not exceed $50,000 for each accident or occurrence, provided however, that benefits paid on unearned wages, if excluded from coverage under the protection and indemnity insurance policy, shall be eligible, notwithstanding that the deductible provisions of the policy may be exceeded.</P>
              <P>(b) <E T="03">Assumption made in calculation.</E> For purposes of determining subsidy for protection and indemnity insurance, it shall be assumed that the cost differential between the subsidized vessels and the foreign competitive vessels is limited to those portions of premium costs and deductible absorptions which are related to crew liability and that the cost of all other liabilities is the same for both the subsidized vessels and the foreign competitive vessels.</P>
              <P>(c) <E T="03">Calculation.</E> The following is the method of calculating the U.S.-foreign cost differential for premiums:</P>
              <P>(1) <E T="03">General.</E> A differential shall be calculated for each subsidized service of the vessel. Since the premium cost for all other liabilities is assumed to be the same for both the U.S. and foreign competitive vessels, the calculation of the differential for protection and indemnity insurance premiums is in effect based on the difference between U.S. and foreign premium costs for crew liabilities. Premium costs are determined in costs per gross registered ton (GRT).</P>
              <P>(2) <E T="03">Reporting Requirement.</E> The operator shall submit the total premium cost for the subsidized year, plus any supplemental calls and lay-up return premiums not previously reported, to the Director, Office of Ship Operating Costs, not later than 60 days after the beginning of such year. The data shall be supported by invoices from the insurance underwriter.</P>
              <P>(3) <E T="03">U.S. crew liability cost.</E> The crew liability portion of the total premium cost shall be determined by applying a percentage to the total premium cost based on five (5) years of claims experience for the five years commencing six years prior to January 1 of the subsidized year. The percentage shall be determined by dividing the total of underwriter's absorptions for crew claims, paid and estimated, by the total of underwriter's absorptions for all claims, paid and estimated. The crew claims portion shall be limited to <PRTPAGE P="123"/>eighty-five (85) percent unless the operator can substantiate a higher percentage as a result of having crew liability and all other liabilities insured with different underwriters. The operator shall submit the five-year claims experience not later than 60 days following the close of each calendar year.</P>
              <P>(4) <E T="03">All other liabilities cost—U.S. and foreign.</E> The all other liabilities portion of the U.S. premium cost shall be determined by subtracting the crew liability portion from the total premium cost. The same cost shall be used for the all other liabilities portion of the foreign-flag competitor's premium cost.</P>
              <P>(5) <E T="03">Foreign crew liability cost.</E> The crew liability cost of each principal foreign-flag competitor shall be used, if reliable cost data can be obtained. If such data cannot be obtained for a principal competitor, and it is determined that such competitor has a non-national crew, the crew liability cost for similar vessels registered under the flag of the crew's nationality may be used, at the Maritime Administrator's discretion, provided reliable cost data are obtained. If no reliable cost data are obtained for a competitor, the crew liability cost for that competitor shall be estimated by multiplying the subsidized operator's crew liability portion of the total premium cost by the ratio of that competitor's wage costs (FC) to the subsidized operator's wage costs (WC), as determined in the calculation of the wage differential.</P>
              <P>(6) <E T="03">U.S.-foreign cost differential.</E> The U.S.-foreign cost differential shall be the excess of the operator's total premium cost over the principal foreign-flag competitor's estimated total premium cost, expressed as a percentage, calculated in the following manner.</P>
              <GPOTABLE CDEF="s50,4.2,4.2,4.2,4.2" COLS="5" OPTS="L1,i1">
                <TTITLE>ABC Steamship Company, Inc., Trade Route X, Protection and Indemnity Insurance Premiums, 1985</TTITLE>
                <BOXHD>
                  <CHED H="1">Premium cost (per GRT)</CHED>
                  <CHED H="1">United States</CHED>
                  <CHED H="1">Greece</CHED>
                  <CHED H="1">Pakistan</CHED>
                  <CHED H="1">South Africa</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Crew liability</ENT>
                  <ENT>
                    <SU>1</SU> $3.98</ENT>
                  <ENT>
                    <SU>2</SU> $1.27</ENT>
                  <ENT>
                    <SU>3</SU> $0.45</ENT>
                  <ENT>
                    <SU>2</SU> 0.08</ENT>
                </ROW>
                <ROW RUL="n,s">
                  <ENT I="01">All other liability</ENT>
                  <ENT>$1.06</ENT>
                  <ENT>$1.06</ENT>
                  <ENT>$1.06</ENT>
                  <ENT>$1.06</ENT>
                </ROW>
                <ROW RUL="n,d">
                  <ENT I="04">Total costs</ENT>
                  <ENT>$5.04</ENT>
                  <ENT>$2.33</ENT>
                  <ENT>$1.51</ENT>
                  <ENT>$1.14</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Differential—Excess of U.S. cost over foreign cost</ENT>
                  <ENT>$2.71</ENT>
                  <ENT>$3.53</ENT>
                  <ENT>3.90</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Unweighted differential (percent)</ENT>
                  <ENT>53.77</ENT>
                  <ENT>70.04</ENT>
                  <ENT>77.38</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Competition weight factor (percent)</ENT>
                  <ENT/>
                  <ENT>24.3</ENT>
                  <ENT>24.9</ENT>
                  <ENT>50.8</ENT>
                </ROW>
                <ROW RUL="n,n,s">
                  <ENT I="01">Weighted differential (percent)</ENT>
                  <ENT/>
                  <ENT>13.07</ENT>
                  <ENT>17.44</ENT>
                  <ENT>39.31</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">U.S.-foreign cost differential (percent)</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>69.82</ENT>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Determined by applying 79.03 percent (based on 5-year claims experience) to total GRT premium rate of $5.04.</TNOTE>
                <TNOTE>
                  <SU>2</SU> Crew liability data obtained by Maritime Administration.</TNOTE>
                <TNOTE>
                  <SU>3</SU> The unweighted percentage of Pakistani to U.S. wage costs of 11.23% was applied to $3.98 to estimate the foreign cost.</TNOTE>
              </GPOTABLE>
              <P>(d) <E T="03">Daily Subsidy Rate.</E> The daily subsidy rate shall be calculated in the following manner:</P>
              <P>(1) <E T="03">Premiums.</E> The net premium costs per calendar day for the subsidized year shall be multiplied by the U.S.-foreign cost differential percentage determined for the most recent year. The product shall be the daily amount of subsidy for P&amp;I premiums.</P>
              <P>(2) <E T="03">Deductibles.</E> (i) The eligible illness and injury crew claims paid and pending for each calendar year of a three-year period commencing six years prior to January 1 of the subsidized year shall be recalculated, if necessary, to reflect the operator's current deductible levels. These expenses, after audit, shall be multiplied by the percentage wage differential, as determined in the calculation of wage subsidy for the appropriate fiscal period. The resulting calendar period P&amp;I deductible subsidy for the three-year period shall be divided by the voyage days for the period to arrive at an aggregate daily P&amp;I deductible subsidy. The aggregate fiscal period wage subsidy accrued in the service for the three-year period shall be divided by the voyage days for the period to arrive at an aggregate daily wage subsidy amount. The aggregate daily P&amp;I deductible subsidy for the <PRTPAGE P="124"/>three-year calendar period shall be divided by the aggregate daily wage subsidy for the three-year fiscal period. The resulting percentage shall be applied to the wage per diem calculated for each ship type in the service to derive the daily amount of subsidy for P&amp;I deductibles. As to pending claims previously recognized in the historical period, only the amount of changes in cost with respect to such claims shall be subsequently recognized. The following methodology shall be used to determine subsidy for P&amp;I deductibles.</P>
              <GPOTABLE CDEF="s48,12,12,12,12" COLS="5" OPTS="L2,lt,i1">
                <TTITLE>Determination of Daily Amount of Subsidy for P&amp;I Deductibles</TTITLE>
                <BOXHD>
                  <CHED H="1">T.R. 98 item</CHED>
                  <CHED H="1">Calendar year 1979</CHED>
                  <CHED H="1">Calendar year 1980</CHED>
                  <CHED H="1">Calendar year 1981</CHED>
                  <CHED H="1">Total</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">P&amp;I Deductible C.Y. Expenses</ENT>
                  <ENT>$1,680,000</ENT>
                  <ENT>$1,220,000</ENT>
                  <ENT>$1,400,000</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Diff. Foreign/U.S. Wage Cost</ENT>
                  <ENT>26.00%</ENT>
                  <ENT>23.00%</ENT>
                  <ENT>20.00%</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Subsidy</ENT>
                  <ENT>$436,800</ENT>
                  <ENT>$280,600</ENT>
                  <ENT>$280,000</ENT>
                  <ENT>$997,400</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Voyage Days</ENT>
                  <ENT>1,140</ENT>
                  <ENT>1,100</ENT>
                  <ENT>1,225</ENT>
                  <ENT>3,465</ENT>
                </ROW>
                <ROW EXPSTB="04">
                  <ENT I="21">Average Subsidy Per Voyage Day ($997,400÷3,465 days)=$287.85</ENT>
                </ROW>
                <ROW EXPSTB="00">
                  <ENT I="22"/>
                  <ENT O="oi0">Fiscal year 1979</ENT>
                  <ENT O="oi0">Fiscal year 1980</ENT>
                  <ENT O="oi0">Fisal year 1981</ENT>
                  <ENT O="oi0">Total</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Wages F.Y. Per Diem Rate</ENT>
                  <ENT>$7,660</ENT>
                  <ENT>$7,700</ENT>
                  <ENT>$8,050</ENT>
                  <ENT/>
                </ROW>
                <ROW>
                  <ENT I="01">Voyage Days</ENT>
                  <ENT>1,090</ENT>
                  <ENT>1,180</ENT>
                  <ENT>1,230</ENT>
                  <ENT>3,500</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Subsidy</ENT>
                  <ENT>$8,349,400</ENT>
                  <ENT>$9,086,000</ENT>
                  <ENT>$9,901,500</ENT>
                  <ENT>$27,336,900</ENT>
                </ROW>
                <ROW EXPSTB="04">
                  <ENT I="21">Average Subsidy Per Voyage Day ($27,336,900÷3,500 days)=$7,810.54</ENT>
                </ROW>
                <ROW>
                  <ENT I="21">Ratio P&amp;I Deductible ODS to Wage ODS $287.85÷$7,810.54=3.69%</ENT>
                </ROW>
              </GPOTABLE>
              <GPOTABLE CDEF="s48,15,15,15" COLS="4" OPTS="L2,ns">
                <BOXHD>
                  <CHED H="1">T.R. 98 ship type</CHED>
                  <CHED H="1">Daily wage ODS 1/1/85</CHED>
                  <CHED H="1">Ratio P&amp;I ded. to wage ODS (percent)</CHED>
                  <CHED H="1">Daily P&amp;I ded. ODS 1/1/85</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">C4-A</ENT>
                  <ENT>$9,000</ENT>
                  <ENT>×3.69</ENT>
                  <ENT>$332.10</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">C5-B</ENT>
                  <ENT>9,300</ENT>
                  <ENT>×3.69</ENT>
                  <ENT>343.17</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">C6-C</ENT>
                  <ENT>9,600</ENT>
                  <ENT>×3.69</ENT>
                  <ENT>354.24</ENT>
                </ROW>
              </GPOTABLE>
              <P>(ii) In cases where national insurance schemes cover crew claims costs in their entirety, resulting in no cost to the foreign competitor for deductible absorptions, the composite percentage differential for wages shall be adjusted by substituting a zero cost for such foreign competitor in the calculation of the differential. The adjustment of the wage percentage differential shall not be used for Japan, where operators incur minimal costs for deductible absorptions, rather than no costs. For Japan, the insurance related costs which are normally included in the calculation of Japanese wage costs shall be excluded in adjusting the wage percentage differential for this purpose.</P>
              <P>(3) <E T="03">Data submission requirement.</E> The operator is required to submit annually a certified statement of eligible and audited crew claims, as identified in paragraph (d)(2) of this section, for the historical period identified therein. The report shall be submitted to the Director, Office of Ship Operating Costs no later than January 1 of the subsidized year.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Subsidy Payment and Billing Procedures</HD>
            <SECTION>
              <SECTNO>§ 282.30</SECTNO>
              <SUBJECT>Payment of subsidy.</SUBJECT>
              <P>
                <E T="03">Submission of voucher.</E> At the close of each calendar month, the subsidized operator may submit a voucher, and include for payment in such voucher the amount of ODS accrued for the voyages terminated during the period.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 282.31</SECTNO>
              <SUBJECT>Subsidy billing procedures.</SUBJECT>
              <P>(a) <E T="03">Subsidy voucher—</E>(1) <E T="03">Form.</E> Requests for payment of ODS shall be submitted on a public voucher, Standard Forms 1034 and 1034A, which can be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington DC 20402.</P>
              <P>(2) <E T="03">Copies.</E> The operator shall submit the original and 3 copies of the voucher to the MARAD Region Director for payment. The original and 2 copies must be supported by schedules and an affidavit. The third copy is the payee's copy and need not be supported.</P>
              <P>(b) <E T="03">Schedules and affidavit.</E> (1) The following schedules shall be used for calculating the amount of ODS payable:<PRTPAGE P="125"/>
              </P>
              <HD SOURCE="HED1">Schedule A</HD>
              <WIDE>
                <RULE/>
                <SFP>(Company)</SFP>
                
                <SFP>ODSA No. ___________</SFP>
                
                <SFP>ODS Accrued During Fiscal Year 198__</SFP>
                
                <SFP>ODS Payable for the Month of___________</SFP>
              </WIDE>
              <GPOTABLE CDEF="s72,xls36,xls36,xls36" COLS="4" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Current voucher</CHED>
                  <CHED H="1">Previous voucher</CHED>
                  <CHED H="1">Total</CHED>
                </BOXHD>
                <ROW RUL="n,s,n,n">
                  <ENT I="01">Total Accrued ODS (Sched. B)</ENT>
                  <ENT O="xl">$</ENT>
                  <ENT O="xl">$</ENT>
                  <ENT O="xl">$</ENT>
                </ROW>
                <ROW>
                  <ENT I="12">Less ODS Reductions:</ENT>
                </ROW>
                <ROW RUL="n,s,n,n">
                  <ENT I="03">DTR/Deviations (Sched. C)</ENT>
                  <ENT O="xl">$</ENT>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                </ROW>
                <ROW RUL="n,s,n,n">
                  <ENT I="03">Reduced Crew (Sched. D)</ENT>
                  <ENT O="xl">$</ENT>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                </ROW>
                <ROW RUL="n,d,d,s">
                  <ENT I="01">Net ODS Accrued</ENT>
                  <ENT O="xl">$</ENT>
                  <ENT O="xl">$</ENT>
                  <ENT O="xl">$</ENT>
                </ROW>
                <ROW RUL="n,n,n,s">
                  <ENT I="01">Less Previous Payments</ENT>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl">$</ENT>
                </ROW>
                <ROW RUL="n,n,n,d">
                  <ENT I="01">ODS Payable</ENT>
                  <ENT O="xl"/>
                  <ENT O="xl"/>
                  <ENT O="xl">$</ENT>
                </ROW>
              </GPOTABLE>
              <HD SOURCE="HED1">Schedule B</HD>
              <WIDE>
                <RULE/>
                <SFP>(Company)</SFP>
                
                <SFP>ODS Accrued for the Month of___________</SFP>
                
                <SFP>Trade Area ______________________</SFP>
              </WIDE>
              <GPOTABLE CDEF="s30,r12,r30,r30,r18,r30,r30" COLS="7" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1">Vessel name</CHED>
                  <CHED H="1">Voy. No.</CHED>
                  <CHED H="1">Voyage dates</CHED>
                  <CHED H="2">From</CHED>
                  <CHED H="2">To</CHED>
                  <CHED H="1">Voy. days <SU>1</SU>
                  </CHED>
                  <CHED H="1">Per diem rates <SU>1</SU>
                  </CHED>
                  <CHED H="1">Net subsidy</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <ROW RUL="n,n,n,n,s">
                  <ENT I="01">ODS payable for unpredictably timed expenses not included in daily amount (attach supporting information)</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>$</ENT>
                </ROW>
                <ROW RUL="n,n,n,n,d">
                  <ENT I="03">Total accrued subsidy (enter on Schedule A)</ENT>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT/>
                  <ENT>$</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                </ROW>
                <TNOTE>
                  <SU>1</SU> Place* next to applicable “Voy. days” or “Per diem rate” of vessel and voyage requiring reduction of ODS because of domestic trade operations or voyage deviations.</TNOTE>
              </GPOTABLE>
              <HD SOURCE="HED1">Schedule C</HD>
              <WIDE>
                <RULE/>
                <SFP>(Company)</SFP>
                
                <SFP>Domestic Trade and Voyage Deviation ODS Reductions</SFP>
                
                <SFP>Domestic Trade Reduction (DTR):</SFP>
              </WIDE>
              <PRTPAGE P="126"/>
              <GPOTABLE CDEF="s20,xs20,xs20,xs20,xs20,xs20,xs20,xs20,xs20" COLS="9" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1">Vessel name</CHED>
                  <CHED H="1">Voy. no.</CHED>
                  <CHED H="1">Gross voyage revenue</CHED>
                  <CHED H="1">Domestic revenue</CHED>
                  <CHED H="1">% of dom. to gross revenue</CHED>
                  <CHED H="1">Per diem rate</CHED>
                  <CHED H="1">Per diem reduction</CHED>
                  <CHED H="1">DTR days</CHED>
                  <CHED H="1">ODS reduction</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="22"/>
                  <ENT/>
                  <ENT>$</ENT>
                  <ENT>$</ENT>
                  <ENT O="xl">........%</ENT>
                  <ENT>$</ENT>
                  <ENT>$</ENT>
                  <ENT/>
                  <ENT>$</ENT>
                </ROW>
              </GPOTABLE>
              <CITA TYPE="W">Deviation Reduction:</CITA>
              <GPOTABLE CDEF="s48,xs48,xs48,xs48,xs48" COLS="5" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1">Vessel name</CHED>
                  <CHED H="1">Voy. no.</CHED>
                  <CHED H="1">Deviation days or % of day</CHED>
                  <CHED H="1">Per diem rate</CHED>
                  <CHED H="1">ODS reduction</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="22"/>
                  <ENT/>
                  <ENT/>
                  <ENT>$</ENT>
                  <ENT>$</ENT>
                </ROW>
                <TNOTE>(Enter total Reductions on Schedule A).</TNOTE>
              </GPOTABLE>
              <HD SOURCE="HED1">Schedule D</HD>
              <WIDE>
                <RULE/>
                <SFP>(Company)</SFP>
                
                <SFP>Reduced Crew Period</SFP>
              </WIDE>
              <GPOTABLE CDEF="s36,xs30,xs30,8,8,8,xls30,xls30" COLS="8" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1">Vessel</CHED>
                  <CHED H="1">Reduced crew dates</CHED>
                  <CHED H="2">From</CHED>
                  <CHED H="2">To</CHED>
                  <CHED H="1">No. of reduced crew days (a)</CHED>
                  <CHED H="1">No. of crew reduced</CHED>
                  <CHED H="1">Man-days</CHED>
                  <CHED H="1">Man-day amount</CHED>
                  <CHED H="1">Reduced crew reduction</CHED>
                </BOXHD>
                <ROW RUL="s">
                  <ENT I="01"/>
                  <ENT/>
                  <ENT/>
                  <ENT>×</ENT>
                  <ENT>=</ENT>
                  <ENT>×</ENT>
                  <ENT>$=</ENT>
                  <ENT>$</ENT>
                </ROW>
                <ROW RUL="s">
                  <ENT I="01"/>
                  <ENT/>
                  <ENT/>
                  <ENT>×</ENT>
                  <ENT>=</ENT>
                  <ENT>×</ENT>
                  <ENT>$=</ENT>
                  <ENT>$</ENT>
                </ROW>
                <ROW RUL="s">
                  <ENT I="01"/>
                  <ENT/>
                  <ENT/>
                  <ENT>×</ENT>
                  <ENT>=</ENT>
                  <ENT>×</ENT>
                  <ENT>$=</ENT>
                  <ENT>$</ENT>
                </ROW>
                <ROW RUL="s">
                  <ENT I="01"/>
                  <ENT/>
                  <ENT/>
                  <ENT>×</ENT>
                  <ENT>=</ENT>
                  <ENT>×</ENT>
                  <ENT>$=</ENT>
                  <ENT>$</ENT>
                </ROW>
                <ROW>
                  <ENT I="04">Total Reduced Crew Reduction (Enter on Schedule A)</ENT>
                </ROW>
                <TNOTE>(a) If licensed crew, indicate (a), (b) If unlicensed crew, include (b).</TNOTE>
              </GPOTABLE>
              <P>(2) A notorized affidavit as shown below shall be signed by an official of the subsidized operator who is familiar with the ODSA, these regulations, the operation of the subsidized vessel and the accounts, books, records, and disbursements of the subsidized operator relating to such operation:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Affidavit</HD>
                <FP SOURCE="FP-DASH">State of</FP>
                <FP SOURCE="FP-DASH">City of</FP>
                <FP SOURCE="FP-DASH">County/Parish of</FP>
                
                <P>I, ____, being duly sworn, depose and say, that I am (title) of the ____ (herein referred to as the “Operator”), and as such am familiar with (a) provisions of the Operating-Differential Subsidy Agreement, Contract No. ____, dated as of ____, as amended, to which the Operator is a party; and (b) the regulations governing the payment of operating-differential subsidy for liner vessels, PART 282, Title 46, CFR; and (c) the operation of the vessels covered by said Agreement and regulations; and (d) the accounts, books, records, and disbursements of the Operator relating to such operation.</P>

                <P>Referring to the public voucher dated ____, covering voyage days allowed for subsidy during the periods commencing ____ and ending ____, and attached, submitted by said Operator concurrent herewith for a payment on account in the sum of ____, under said Agreement, I further depose and say that, to the best of my knowledge and belief, the Operator has fully complied with the terms and conditions of said Agreement and regulations, applicable orders, rulings and provisions of the Merchant Marine Act, 1936, as amended, and is entitled, under the provisions of said Agreement and regulations, orders and rulings applicable thereof, to the amount of the payment on account requested; and further depose and say that the vessels named in the attached schedules were in authorized service for the vessel operating days on which the payment is requested and has not included in the calculation of the amount of subsidy claimed in the attached voucher any costs of a character that the Maritime Administration, or Secretary of Transportation acting by and through the Maritime Subsidy Board or any predecessor or successor, had advised the Operator to be ineligible to be so included, or <PRTPAGE P="127"/>any costs collectible from insurance, or from any other source.</P>
                <P>Payment by the Maritime Administration of all or part of the amount claimed herein shall not be construed as approval of the correctness of the amount stated to have been due, nor a waiver of any right of remedy the Maritime Administration, or Secretary of Transportation, acting by and through the Maritime Subsidy Board, or any predecessor or successor, may have under the terms of said Agreement, or otherwise.</P>

                <P>I further depose and say that this affidavit is made for and on behalf and at the direction of the Operator for the purpose of inducing the Maritime Administration to make a payment pursuant to the provisions of the aforesaid Operating-Differential Subsidy Agreement, as amended.
                </P>

                <P>Subscribed and sworn to before me, a Notary Public, in and for the aforesaid County and State, this ____ day of ____,
                </P>
                <FP SOURCE="FP-DASH">My commission expires</FP>
                <FP SOURCE="FP-DASH">Notary Public</FP>
                <P>(3) The subsidized operator shall furnish its own supply of supporting schedules and affidavit.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>§ 282.32</SECTNO>
              <SUBJECT>Appeal procedures.</SUBJECT>
              <P>(a) <E T="03">Appeals of annual or special audits.</E> An operator who disagrees with the findings, interpretations or decisions in connection with audit reports of the Office of the Inspector General and who cannot settle said differences by negotiation with the Contracting Officer may submit an appeal to the Maritime Administrator from such findings, interpretations or decisions in accordance with part 205 of this chapter.</P>
              <P>(b) <E T="03">Appeals of administrative determinations—</E>(1) <E T="03">Policy.</E> An operator who disagrees with the findings, interpretations or decisions of the Contracting Officer with respect to the administration of this part may submit an appeal from such findings, interpretations or decisions as follows:</P>
              <P>(i) Appeals shall be made in writing to the Secretary, Maritime Subsidy Board, Maritime Administration, within 60 days following the date of the document notifying the operator of the administrative determination of the Contracting Officer. In the appeal to the Secretary, the operator shall indicate whether or not a hearing is desired.</P>
              <P>(ii) MARAD will notify the appellant in writing if a hearing is to be held and whether the operator is required to submit additional facts for consideration in connection with the appeal.</P>
              <P>(iii) When a decision has been rendered, the Board shall notify the appellant in writing.</P>
              <P>(2) <E T="03">Appeal to the Secretary of Transportation.</E> An operator who disagrees with the Board may appeal such findings and determinations by filing with the Secretary of Transportation, a written petition for review of the Board's action. The petition shall be filed in accordance with provisions of the Department of Transportation pertaining to Secretarial review.</P>
              <P>(3) <E T="03">Hearings.</E> MARAD shall follow the Rules of Practice and Procedure (46 CFR part 201, subpart M) for hearings granted under 46 U.S.C. 1176 and 46 CFR 282.32.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 283</EAR>
          <HD SOURCE="HED">PART 283—DIVIDEND POLICY FOR OPERATORS RECEIVING OPERATING-DIFFERENTIAL SUBSIDY</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>283.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>283.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>283.3</SECTNO>
            <SUBJECT>Dividend policy criteria.</SUBJECT>
            <SECTNO>283.4</SECTNO>
            <SUBJECT>Alternate standards.</SUBJECT>
            <SECTNO>283.5</SECTNO>
            <SUBJECT>Notification and reporting requirements.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 204(b) Merchant Marine Act, 1936, as amended (46 U.S.C. 1114(b)); Reorganization Plans No. 21 of 1950 (64 Stat. 1273) and No. 7 of 1961 (75 Stat. 840), as amended by Pub. L. 91-469 (84 Stat. 1026); Dept. of Commerce Organization Order 10-8 (38 FR 19707, July 23, 1973).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>45 FR 37445, June 3, 1980, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 283.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <P>(a) The rules of this part establish requirements for the declaration and payment of cash dividends by operators receiving operating-differential subsidy (ODS) under Title VI of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1101 et seq.) (Act). This part shall be applicable immediately unless otherwise provided for in the operators' operating-differential subsidy agreement (ODSA).</P>

            <P>(b) One of the purposes of the Act is to foster the development and encourage the maintenance of the United States Merchant Marine. Subsidized operators are required to maintain the financial ability to assure adequate and timely reinvestment in the merchant marine. The policy contained <PRTPAGE P="128"/>herein takes into consideration the operators' contractual obligations to construct and acquire vessels, retire debt obligations secured by ship mortgages and maintain adequate working capital. However, this policy also takes into consideration the operators' need to attract new capital to the industry by paying dividends which are appropriate in light of the operators' earnings and long-range financial position.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 283.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>(a) <E T="03">Long-Term Debt</E> means, as of any date, the total notes, bonds, debentures, equipment obligations and other evidence of indebtedness that would be included in Long-Term Debt in accordance with generally accepted accounting principles, less the balance of escrow fund deposits attributable to the principal of obligations guaranteed pursuant to Title XI of the Act, where deposits are required in accordance with § 298.33. Capitalized Lease Obligations shall be included, but deferred income taxes shall not be included.</P>
            <P>(b) <E T="03">Capitalized Lease Obligations</E> means, as of any date, an amount (excluding amounts already included in Long-Term Debt) equal to the sum of: (1) The present value of all capital leases, as defined and computed in accordance with the Financial Accounting Standards Board Statement No. 13, Accounting for Leases (FASB-13), and (2) <FR>1/2</FR> of the minimum rentals (less operating components such as insurance, maintenance, property taxes, etc.) of all operating leases, as defined and includable in footnotes to the financial statements in accordance with FASB-13, for shipping property, i.e., vessels, containers, barges, terminals and other similar property.</P>
            <P>(c) <E T="03">Equity</E> (net worth) means, as of any date, the total of paid-in-capital stock, paid-in-capital, retained earnings and all other amounts that would be included in Equity in accordance with generally accepted accounting principles, but adjustable as follows. The net worth shall be reduced to the extent that the net worth computation includes any receivables from an affiliate of the company or any stockholder, director, officer, or employee (or any member of the employee's family) of the company, or of an affiliate of the company, other than (1) reasonable advances to affiliated agents required for the normal operation of the company's vessels, or (2) current receivables arising out of the ordinary course of business, and which are not outstanding for more than 120 days.</P>
            <P>(d) <E T="03">Floor net worth</E> means net worth computed as follows: The net worth requirement for existing operators shall be initially set at the greater of 90 percent of the operator's existing net worth or 50 percent of the operator's long-term debt contained in its audited financial statements for the year ended December 31, 1979. A new operator's net worth requirement shall initially be set at the greater of 90 percent of existing net worth or 50 percent of the original long-term debt issued with respect to the operator's vessel(s).</P>
            <P>(e) <E T="03">Adjusted floor net worth</E> means that the floor net worth requirement may be reduced with consent of the Maritime Administrator in an amount equivalent to amounts an operator could have paid in dividends under the previous policy set forth in this regulation prior to amendment in 1980, in the three years prior to the date of effectiveness of this policy, but chose not to pay out in dividends. The floor net worth requirement for both existing operators and new operators shall be further adjusted from time to time as follows:</P>
            <P>(1) The net worth requirement shall be increased by an amount equal to 50 percent of the original long-term debt to be issued with respect to new vessel construction (with respect to existing operators, new vessel construction contracts executed after December 31, 1979), and</P>
            <P>(2) the net worth requirements shall be decreased by an amount equal to 50 percent of the original long-term debt issued with respect to vessels which are removed from service or otherwise transferred or sold.</P>
            <P>(f) <E T="03">Working capital</E> means the difference between current assets and current liabilities, both determined in accordance with generally accepted accounting principles, adjusted as follows:</P>

            <P>(1) Current assets shall be reduced with respect to:<PRTPAGE P="129"/>
            </P>
            <P>(i) Amounts in any Title XI Reserve Fund, pursuant to 46 CFR 298.35(e) or Capital Construction Fund (CCF) Security Amount prescribed by 46 CFR 298.35(f), that is being maintained pursuant to an agreement covering a vessel owned or leased by the company, or in another similar fund required under any other mortgage, indenture or other agreement to which the company is a party;</P>

            <P>(ii) Any securities, obligations or evidences of indebtedness of an affiliate of the company or of any stockholder, director, officer or employee (or any member of the family of an employee of the company or of such affiliate), except: (<E T="03">a</E>) Reasonable advances to affiliated agents required for the normal current operation of the company's vessels, or (<E T="03">b</E>) receivables outstanding for not more than 120 days, arising out of the ordinary course of business.</P>
            <P>(2) Current assets shall be increased with respect to CCF accruals (but not actual deposits), if the operator has first met its prorated CCF minimum deposit schedule.</P>
            <P>(3) Current liabilities shall be increased by one-half of the annual payment of all charter hire and other lease obligations having a term of more than twelve months, other than charter hire and other lease obligations already included and reported as a current liability on the company's balance sheet.</P>
            <P>(4) Current liabilities shall be decreased by amounts on deposit in a CCF which are available for the payment of current liabilities.</P>
            <P>(g) <E T="03">Prior years' earnings</E> means the aggregate net income after tax for the three years immediately preceding the year in which the dividend is declared. An operator may include in prior years' earnings estimated net operating income after tax for the current fiscal year if such amount is based upon actual net operating income after tax for the first nine months of the current year. If an operator includes estimated current income in its prior years' earnings computation, it may also include earnings for only the immediately preceding two years, rather than three years, in the computation of prior years' earnings.</P>
            <P>(h) <E T="03">Funds available</E> shall mean the sum of:</P>
            <P>(1) Amounts on deposit in any fund established pursuant to the Act plus accrued deposits, unless already included in working capital, (including interest thereon), less accrued withdrawals from any such fund;</P>
            <P>(2) Gross book value, as shown on the operators' books of account, of subsidized vessels and related barges and containers, less accumulated depreciation;</P>
            <P>(3) Progress payments made on subsidized vessels and related barges and containers undergoing construction, reconstruction, or reconditioning;</P>
            <P>(4) Progress payments made on additional vessels and related barges and containers, if any, which the operator has agreed to construct or acquire pursuant to any contract entered into with the Maritime Administrator or the Maritime Subsidy Board (Board);</P>
            <P>(5) Balance of trade-in allowances pursuant to section 510 of the Act;</P>
            <P>(6) Capitalized Lease Obligations as defined in § 283.2(b); and</P>
            <P>(7) Working capital as defined in § 283.2(f).</P>
            <P>(i) <E T="03">Funds required</E> means the sum of:</P>
            <P>(1) 25 percent of the total cost to the operator of: (i) Subsidized vessels under construction, reconstruction or reconditioning, (ii) additional vessels under construction, reconstruction or reconditioning pursuant to any contract entered into between the operator and the Maritime Administrator or the Board, and (iii) barges and containers under construction or under contract to purchase, and to be used as part of the complement of such vessels;</P>

            <P>(2) 25 percent of the total cost to the operator, estimated at the time a cash dividend is to be declared, of: (i) Replacement of subsidized vessels required to be replaced under the current ODSA (which cost must be indicated whether or not the operator anticipates leasing replacement vessels), (ii) additional vessels which the operator has agreed to construct or acquire pursuant to any contract entered into with the Maritime Administrator or the Board, and (iii) barges and containers required as part of the complement of such vessels. In making this computation, the operator shall obtain the prior written agreement of the Maritime Subsidy Board as to number <PRTPAGE P="130"/>of replacement vessels, type and commercial characteristics, projected award date of construction contract, projected delivery dates, estimated total cost (current) and method used to determine such cost, intended area of operation, and identity of vessels to be replaced.</P>
            <P>(3) Capitalized Lease Obligations as defined in § 283.2(b), excluding that portion of any such amount payable within one year; and</P>
            <P>(4) Outstanding indebtedness on, or secured by, subsidized vessels and related barges and containers, or incurred in connection with the acquisition, construction or reconstruction of such vessels and related barges and containers.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 283.3</SECTNO>
            <SUBJECT>Dividend policy criteria.</SUBJECT>
            <P>(a) <E T="03">In general.</E> A subsidized operator may pay cash dividends at any time it desires up to the amount set forth in paragraph (b) of this section. Dividends may be paid pursuant to paragraph (c) of this section, as provided therein. The written approval of the Maritime Administrator shall be obtained prior to any declaration of dividends by the operator, if the payment of dividends does not meet the criteria of either paragraph (b) or (c) of this section. It is intended that dividend payments be permitted under the provisions of either paragraph (b) or (c), whichever allows payment of the greatest amount of dividends. Nothing in this part shall alter restrictions on the payment of dividends which may affect the operator under any other agreements with the Maritime Administrator.</P>
            <P>(b) <E T="03">40 percent dividend criteria</E>—If the operator is able to meet the criteria of this paragraph after declaration and payment of the proposed dividend, it may declare a dividend of up to 40 percent of prior years' earnings, less any dividends that were paid in such years, unless there is an operating loss in the fiscal year to the date of proposed payment of dividend, as well as operating losses in the immediately preceding two years. If in any of the years included in the prior years' earnings calculation dividends were paid under the 100 percent rule, those years' earnings and dividends may be excluded from the prior years' earnings calculation, and then only the earnings and dividends associated with the remaining years of the three year period may be used. This provision enables an operator to pay dividends under the 40 percent rule when in past years it has paid dividends under the 100 percent rule. The criteria which must be satisfied are as follows:</P>
            <P>(1) <E T="03">Working Capital</E>—Working Capital must equal or exceed one dollar.</P>
            <P>(2) <E T="03">Long-term Debt to Equity ratio</E>—Long-Term Debt must not exceed two times Equity. (The Maritime Administrator may modify this requirement during periods of vessel construction).</P>
            <P>(3) <E T="03">Net Worth Floor</E>—Net Worth must exceed the adjusted net worth floor as computed in § 283.2.</P>
            <P>(c) An operator may declare a dividend in an amount up to 100 percent of retained earnings, unless there is an operating loss in the fiscal year to the date of proposed payment of dividend, as well as operating losses in the immediately preceding two years, if the following criteria are satisfied:</P>
            <P>(1) <E T="03">Working Capital</E>—Working Capital must equal or exceed one dollar.</P>
            <P>(2) <E T="03">Long-Term Debt to Equity ratio</E>—Long-Term debt must not exceed Equity.</P>
            <P>(3) <E T="03">Net Worth Floor</E>—Net worth must exceed the Adjusted Net Worth floor as computed in § 283.2.</P>
            <P>(4) <E T="03">Funding for Replacement Vessels</E>—Funds available must exceed Funds Required, and the basis for Funds Required for replacement vessels must receive prior approval, as provided in § 283.2(i) herein.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 283.4</SECTNO>
            <SUBJECT>Alternate standards.</SUBJECT>

            <P>(a) The Maritime Administrator may waive or modify any of the financial terms or requirements otherwise applicable in part 283, upon determining that other factors exist which make alternate terms or requirements appropriate. An example of such a situation would involve an operator that: (1) Has no replacement obligation and (2) has a guarantee of charter hire or other guarantees sufficient to cover capital costs. In such cases, the Government's interest may be sufficiently protected although the operator cannot meet the <PRTPAGE P="131"/>standard part 283 requirements. Another example may be to include receivables otherwise excluded if they are properly guaranteed by an acceptable guarantor.</P>
            <P>(b) [Reserved]</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 283.5</SECTNO>
            <SUBJECT>Notification and reporting requirements.</SUBJECT>
            <P>(a) <E T="03">Notice</E>—The operator shall give written notice of a dividend declaration to the Maritime Administrator immediately upon such declaration.</P>
            <P>(b) <E T="03">Reports</E>—The operator shall submit a report as described below whenever it declares a dividend or applies for approval under § 283.3 to declare a dividend as of the approximate date of such declaration or request. Such statements shall include information no less current than 30 days. If no dividends are declared during the calendar year, the operator is not required to submit a statement.</P>
            <FP>If the Maritime Administration determines that the operator was, for any reason, not qualified to pay the dividend, then the operator shall, in writing, request the approval of the Maritime Administrator for any subsequent dividend declaration. If such approval is then granted, the operator may follow the requirements of this part 283 once again. The reports required by this section shall be prepared in accordance with the definitions set forth in § 283.2. A separate statement shall be submitted showing the adjustments made to working capital, long-term debt and net worth, and shall conform to the definitions of such items as contained herein. As appropriate, reports shall include the following:</FP>
            <P>(1) The ratio of debt to equity, floor net worth and prior years' earnings in the format set forth in Schedule A;</P>
            <P>(2) The excess of “funds available” over “funds required” in the format as set forth in Schedule B;</P>
            <P>(3) Working capital as set forth in Schedule C; and</P>
            <P>(4) Other applicable limitations prescribed in any agreements between the operator and the Maritime Administrator affecting the payment of dividends.</P>
            <P>(c) <E T="03">Officials to whom notices and reports are to be directed.</E> Operators shall submit, in triplicate, all notices, reports and requests prescribed in this part to the Secretary, Maritime Administration, Washington, DC 20590, with a copy of such notice or request to the appropriate Maritime Administration Region Director.</P>
            <GPOTABLE CDEF="s50,r50,6" COLS="3" OPTS="L0">
              <TTITLE>Schedule A—Ratio of Debt to Equity, Floor Net Worth, and Prior Years' Earnings</TTITLE>
              <ROW>
                <ENT I="28">Company ___</ENT>
              </ROW>
              <ROW>
                <ENT I="28">___, 19_</ENT>
              </ROW>
              <ROW EXPSTB="01">
                <ENT I="01">Long-term debt</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Retained earnings</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Equity</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Ratio of Long-Term Debt to Equity</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="01">Adjusted Floor Net Worth as computed in accordance with § 283.2</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Prior years' earnings as defined in § 283.2</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="01" O="xl"/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="01" O="xl"/>
              </ROW>
              <ROW EXPSTB="00">
                <ENT I="11" O="xl"/>
                <ENT A="01">(Signature of Chief Financial Officer or other authorized officer)</ENT>
              </ROW>
            </GPOTABLE>
            <GPOTABLE CDEF="s50,50,6" COLS="3" OPTS="L0,6/7">
              <TTITLE>Schedule B—Funds Available and Funds Required</TTITLE>
              <ROW>
                <ENT I="28">Company ___</ENT>
              </ROW>
              <ROW>
                <ENT I="28">___, 19_</ENT>
              </ROW>
              <ROW>
                <ENT I="28">I. FUNDS AVAILABLE</ENT>
              </ROW>
              <ROW>
                <ENT I="11">A. On deposit in statutory funds:</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Capital construction fund</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Construction reserve fund</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="02">Construction and escrow funds</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="02">Plus accrued deposits to funds (or less accrued withdrawals from funds)</ENT>
                <ENT/>
                <ENT>$........</ENT>
              </ROW>
              <ROW>
                <ENT I="11">B. Gross book value of vessels and related barges and containers employed in subsidized services:</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Subsidized vessels</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="02">Related barges</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="02">Related containers</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="02">Less accumulated depreciation</ENT>
                <ENT>(..........)</ENT>
                <ENT/>
              </ROW>
              <ROW EXPSTB="01">
                <ENT I="01">C. Progress payments made on subsidized vessels and related barges and containers undergoing construction, reconstruction or reconditioning</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="01">D. Progress payments made on additional vessels and related barges and containers agreed to be constructed or acquired</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="01">E. Balance of trade-in allowances (section 510 of the Act)</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="01">F. Capitalized Lease Obligations as defined in § 283.2(b)</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <ENT I="01">G. Net Working Capital (from Schedule D)</ENT>
                <ENT/>
              </ROW>
              <ROW>
                <PRTPAGE P="132"/>
                <ENT I="03">TOTAL FUNDS AVAILABLE</ENT>
                <ENT>$..........</ENT>
              </ROW>
            </GPOTABLE>
            <GPOTABLE CDEF="s10,xs36,xls36,xs36,1" COLS="5" OPTS="L0,6/7">
              <ROW EXPSTB="04">
                <ENT I="21">II. FUNDS REQUIRED</ENT>
              </ROW>
              <ROW>
                <ENT I="11">A. Cost of current commitments:</ENT>
              </ROW>
              <ROW>
                <ENT I="12">1. ODSA vessels under construction or reconstruction:</ENT>
              </ROW>
              <ROW EXPSTB="00">
                <ENT I="21">Number of vessels</ENT>
                <ENT O="oi0">Total cost</ENT>
                <ENT O="oi0">Less Government contributions</ENT>
                <ENT O="oi0">Cost to operator</ENT>
              </ROW>
              <ROW>
                <ENT I="01"/>
                <ENT>$</ENT>
                <ENT O="oi0">($................)</ENT>
                <ENT/>
              </ROW>
              <ROW EXPSTB="02">
                <ENT I="08">25% of cost to operator</ENT>
                <ENT/>
              </ROW>
              <ROW EXPSTB="04">
                <ENT I="12">2. Additional vessels under construction, reconstruction or reconditioning pursuant to a contract with the Assistant Secretary or the Board:</ENT>
              </ROW>
              <ROW EXPSTB="00">
                <ENT I="21">Number of vessels</ENT>
                <ENT O="oi0">Total cost</ENT>
                <ENT O="oi0">Less Government contributions</ENT>
                <ENT O="oi0">Cost to operator</ENT>
              </ROW>
              <ROW>
                <ENT I="01"/>
                <ENT>$</ENT>
                <ENT O="oi0">($................)</ENT>
                <ENT/>
              </ROW>
              <ROW EXPSTB="02">
                <ENT I="08">25% of cost to operator</ENT>
                <ENT/>
              </ROW>
              <ROW EXPSTB="04">
                <ENT I="12">3. Barges and containers under construction or contract to purchase:</ENT>
              </ROW>
              <ROW EXPSTB="01">
                <ENT I="11">Number of:</ENT>
                <ENT O="oi0">Cost to</ENT>
              </ROW>
              <ROW>
                <ENT I="11"/>
                <ENT O="oi0"> operator</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Barges</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Containers</ENT>
                <ENT>$</ENT>
                <ENT/>
              </ROW>
              <ROW EXPSTB="02">
                <ENT I="07">25% of Cost to Operator</ENT>
                <ENT/>
              </ROW>
              <ROW EXPSTB="04">
                <ENT I="11">B. Estimated cost of additional vessels (whether to be owned or leased):</ENT>
              </ROW>
              <ROW>
                <ENT I="12">1. Subsidized vessels to be replaced under ODSA:</ENT>
              </ROW>
              <ROW EXPSTB="00">
                <ENT I="21">Number of vessels</ENT>
                <ENT O="oi0">Total cost</ENT>
                <ENT O="oi0">Less Government contributions</ENT>
                <ENT O="oi0">Cost to operator</ENT>
              </ROW>
              <ROW>
                <ENT I="01"/>
                <ENT>$</ENT>
                <ENT O="oi0">($................)</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW EXPSTB="02">
                <ENT I="08">25% of cost to operator</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW EXPSTB="04">
                <ENT I="12">2. Additional vessels agreed to be constructed or acquired:</ENT>
              </ROW>
              <ROW EXPSTB="00">
                <ENT I="21">Number of vessels</ENT>
                <ENT O="oi0">Total cost</ENT>
                <ENT O="oi0">Less Government contributions</ENT>
                <ENT O="oi0">Cost to operator</ENT>
              </ROW>
              <ROW>
                <ENT I="01"/>
                <ENT>$</ENT>
                <ENT O="oi0">($................)</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW EXPSTB="02">
                <ENT I="08">25% of cost to operator</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW EXPSTB="04">
                <ENT I="12">3. Additional barges and containers required as the complement of vessels agreed to be constructed or acquired in items B1 and B2 above:</ENT>
              </ROW>
              <ROW EXPSTB="01">
                <ENT I="11">Number of:</ENT>
                <ENT O="oi0">Cost to</ENT>
              </ROW>
              <ROW>
                <ENT I="11"/>
                <ENT O="oi0"> operator</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Barges</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Containers</ENT>
                <ENT>$</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW EXPSTB="02">
                <ENT I="07">25% of Cost to Operator</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW>
                <ENT I="01">C. Outstanding indebtedness on, or secured by, subsidized vessels and related barges and containers, or incurred in connection with the acquisition, construction, or reconstruction of such vessels and related barges and containers</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW>
                <ENT I="01">D. The present value of Capitalized Lease Obligations as defined in § 283.2(b), excluding that portion of any such amount payable within one year</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW>
                <ENT I="03">TOTAL FUNDS REQUIRED</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW>
                <ENT I="01">III. EXCESS FUNDS (DEFICIENCY OF FUNDS)</ENT>
                <ENT>$</ENT>
              </ROW>
              <ROW>
                <ENT I="11"/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="11" O="xl"/>
              </ROW>
              <ROW EXPSTB="00">
                <ENT I="11" O="xl"/>
                <ENT A="01">(Signature of Chief Financial Officer or other authorized officer)</ENT>
              </ROW>
            </GPOTABLE>
            <GPOTABLE CDEF="s25,r25,6,6" COLS="4" OPTS="L0,6/7">
              <TTITLE>Schedule C—Determination of Working Capital (As Defined in 46 CFR 283.2)</TTITLE>
              <ROW>
                <ENT I="28">Company ___</ENT>
              </ROW>
              <ROW>
                <ENT I="28">___, 19___</ENT>
              </ROW>
              <ROW EXPSTB="01">
                <ENT I="11">A. CURRENT ASSETS:</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Cash and marketable securities</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Accounts receivable (current)</ENT>
                <ENT> ..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Other current assets (specify)</ENT>
                <ENT> ..........</ENT>
              </ROW>
              <ROW>
                <ENT I="03">Total</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Accrued deposits to CCF, (provided operator has met prorated deposit schedule)</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Other adjustments (specify)</ENT>
                <ENT> ..........</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="11">B. CURRENT LIABILITIES:</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Current liabilities</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Add one-half annual charter hire (if not included above)</ENT>
                <ENT> ..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Less current liabilities for which payment is available from CCF deposits</ENT>
                <ENT> ..........</ENT>
              </ROW>
              <ROW>
                <ENT I="02">Other adjustments (specify)</ENT>
                <ENT> ..........</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW>
                <ENT I="11">C. WORKING CAPITAL:</ENT>
              </ROW>
              <ROW EXPSTB="02" RUL="n,d">
                <ENT I="02">Current assets less current liabilities</ENT>
                <ENT>$..........</ENT>
              </ROW>
              <ROW EXPSTB="00">
                <ENT I="11"/>
              </ROW>
              <ROW RUL="n,s">
                <ENT I="11"/>
              </ROW>
              <ROW>
                <ENT I="11"/>
              </ROW>
              <ROW>
                <ENT I="11"/>
                <ENT A="02">(Signature of Chief Financial Officer or other authorized officer)</ENT>
              </ROW>
            </GPOTABLE>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 287</EAR>
          <HD SOURCE="HED">PART 287—ESTABLISHMENT OF CONSTRUCTION RESERVE FUNDS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>287.1</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>287.2</SECTNO>
            <SUBJECT>Scope of section 511 of the Act and the regulations in this part.</SUBJECT>
            <SECTNO>287.3</SECTNO>
            <SUBJECT>Requirements as to vessel operations.</SUBJECT>
            <SECTNO>287.4</SECTNO>
            <SUBJECT>Application to establish fund.</SUBJECT>
            <SECTNO>287.5</SECTNO>
            <SUBJECT>Tentative authorization to establish fund.</SUBJECT>
            <SECTNO>287.6</SECTNO>
            <SUBJECT>Establishment of fund.</SUBJECT>
            <SECTNO>287.7</SECTNO>
            <SUBJECT>Circumstances permitting reimbursement from a construction reserve fund.</SUBJECT>
            <SECTNO>287.8</SECTNO>
            <SUBJECT>Investment of funds in securities.</SUBJECT>
            <SECTNO>287.9</SECTNO>
            <SUBJECT>Valuation of securities in fund.</SUBJECT>
            <SECTNO>287.10</SECTNO>
            <SUBJECT>Withdrawals from fund.</SUBJECT>
            <SECTNO>287.11</SECTNO>
            <SUBJECT>Time deposits.</SUBJECT>
            <SECTNO>287.12</SECTNO>
            <SUBJECT>Election as to nonrecognition of gain.</SUBJECT>
            <SECTNO>287.13</SECTNO>
            <SUBJECT>Deposit of proceeds of sales or indemnities.</SUBJECT>
            <SECTNO>287.14</SECTNO>
            <SUBJECT>Deposit of earnings and receipts.</SUBJECT>
            <SECTNO>287.15</SECTNO>
            <SUBJECT>Time for making deposits.</SUBJECT>
            <SECTNO>287.16</SECTNO>
            <SUBJECT>Tax liability as to earnings deposited.</SUBJECT>
            <SECTNO>287.17</SECTNO>
            <SUBJECT>Basis of new vessel.</SUBJECT>
            <SECTNO>287.18</SECTNO>
            <SUBJECT>Allocation of gain for tax purposes.</SUBJECT>
            <SECTNO>287.19</SECTNO>
            <SUBJECT>Requirements as to new vessels.</SUBJECT>
            <SECTNO>287.20</SECTNO>
            <SUBJECT>Obligation of deposits.</SUBJECT>
            <SECTNO>287.21</SECTNO>
            <SUBJECT>Period for construction of certain vessels.</SUBJECT>
            <SECTNO>287.22</SECTNO>
            <SUBJECT>Time extensions for expenditure or obligation.</SUBJECT>
            <SECTNO>287.23</SECTNO>
            <SUBJECT>Noncompliance with requirements.</SUBJECT>
            <SECTNO>287.24</SECTNO>
            <SUBJECT>Extent of tax liability.</SUBJECT>
            <SECTNO>287.25</SECTNO>
            <SUBJECT>Assessment and collection of deficiencies.</SUBJECT>
            <SECTNO>287.26</SECTNO>
            <SUBJECT>Reports by taxpayers.</SUBJECT>
            <SECTNO>287.27</SECTNO>
            <SUBJECT>Controlled corporation.</SUBJECT>
            <SECTNO>287.28</SECTNO>
            <SUBJECT>Administrative jurisdiction.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <PRTPAGE P="133"/>
            <HD SOURCE="HED">Authority:</HD>
            <P>Secs. 204, 511, 49 Stat. 1987, as amended, 54 Stat. 1106, as amended; 46 U.S.C. 1114, 1161.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>General Order 38 (2d Rev.), 30 FR 7215, May 29, 1965; 30 FR 8162, June 25, 1965, unless otherwise noted.</P>
          </SOURCE>
          <EDNOTE>
            <HD SOURCE="HED">Editorial Note:</HD>
            <P>The regulations contained in this part were codified by the Internal Revenue Service in Treasury Decision 6820, 30 FR 6030, Apr. 29, 1965. For text see also 26 CFR part 2.</P>
          </EDNOTE>
          <SECTION>
            <SECTNO>§ 287.1</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>(a) As used in the regulations in this part, except as otherwise expressly provided—</P>
            <P>(1) <E T="03">Act</E> means the Merchant Marine Act, 1936, as amended (46 U.S.C., ch. 27).</P>
            <P>(2) <E T="03">Section</E> means one of the sections of the regulations in this part.</P>
            <P>(3) <E T="03">Administration</E> means the Maritime Administration of the Department of Transportation.</P>
            <P>(4) <E T="03">Citizen</E> means a person who, if an individual, was born or naturalized as a citizen of the United States or, if other than an individual, meets the requirements of section 905(c) of the Act and section 2 of the Shipping Act, 1916, as amended (46 U.S.C. 802).</P>
            <P>(5) <E T="03">Taxpayer</E> means a citizen who has established or seeks to establish a construction reserve fund under the provisions of section 511 of the Act and the regulations in this part, and may include a partnership.</P>
            <P>(6) <E T="03">Corporation</E> includes associations, joint-stock companies and insurance companies.</P>
            <P>(7) <E T="03">Stock</E> includes the shares in an association, joint-stock company, or insurance company.</P>
            <P>(8) <E T="03">Affiliate</E> or <E T="03">associate</E> means a person directly or indirectly controlling, controlled by, or under common control with, another person.</P>
            <P>(9) <E T="03">Control</E>, as used in paragraph (a)(8) of this section, means the possession of the power to direct in any manner the management and policies of a person, and the terms <E T="03">controlling</E> and <E T="03">controlled</E> shall have the meanings correlative to the foregoing.</P>
            <P>(10) <E T="03">Person</E> means an individual, a corporation, a partnership, an association, an estate, a trust, or a company.</P>
            <P>(11) <E T="03">Partnership</E> includes a syndicate, group, pool, joint venture, or other unincorporated organization.</P>
            <P>(12) <E T="03">Construction</E>, if so determined by the Administration, shall include reconstruction and reconditioning.</P>
            <P>(13) <E T="03">Reconstruction and reconditioning</E> shall include the reconstruction, reconditioning, or modernization of a vessel for exclusive use on the Great Lakes, including the Saint Lawrence River and Gulf, if the Administration determines that the objectives of the Act will be promoted by such reconstruction, reconditioning, or modernization, and, notwithstanding any other provisions of law, such vessel shall be deemed to be a <E T="03">new vessel</E> within the meaning of section 511 of the Act for such reconstruction, reconditioning, or modernization.</P>
            <P>(14) <E T="03">Purchase-money indebtedness</E> means any indebtedness, or evidence thereof, created as the result of the purchase of a vessel by the taxpayer.</P>
            <P>(15) <E T="03">Contract</E>, <E T="03">contract for the construction</E>, and <E T="03">construction contract</E> shall include, if so determined by the Administration, a contract for reconstruction or reconditioning and shall include, in the case of a taxpayer who constructs a new vessel in a shipyard owned by such taxpayer, an agreement, between such taxpayer and the Administration with respect to such construction, and containing provisions deemed necessary or advisable by the Administration to carry out the purposes and policy of section 511 of the Act.</P>
            <P>(b) Insofar as the computation and collection of taxes are concerned, other terms used in the regulations in this part, except as otherwise provided, have the same meaning as in the Internal Revenue Code and the regulations thereunder.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.2</SECTNO>
            <SUBJECT>Scope of section 511 of the Act and the regulations in this part.</SUBJECT>
            <P>(a) <E T="03">Applicability of regulations.</E> The regulations prescribed in this part—</P>
            <P>(1) Apply to gain realized from the sale or loss of vessels, earnings from the operation of vessels, and interest (or otherwise) with respect to amounts previously deposited in the construction reserve fund, for a taxable year beginning after December 31, 1964, and</P>

            <P>(2) Apply to the expenditure, obligation, or withdrawal, during a taxable year beginning after December 31, 1964, of any deposits of gain, earnings, and <PRTPAGE P="134"/>interest (or otherwise) of the character referred to in paragraph (a)(1) of this section without regard to the taxable year in which the deposits were made.</P>
            <P>(b) <E T="03">Nonrecognition and accumulation.</E> Section 511 of the Act provides, under conditions specified, for the nonrecognition, for income and excess-profits tax purposes, of the gain realized from the sale or indemnification for loss of certain vessels including certain vessels in the course of construction, or shares therein. It also permits the accumulation of the proceeds of such sales or indemnification and of certain earnings without liability under part I (section 531 and following), subchapter G, chapter 1 of the Internal Revenue Code of 1954, and the regulations thereunder (26 CFR 1.531 through 1.537-1 (Income Tax Regulations)).</P>
            <P>(c) <E T="03">Availability of benefits.</E> The benefits of section 511 of the Act are available to any citizen as defined in paragraph (a)(4) of § 287.1, who, during any taxable year owns, in whole or in part, a vessel or vessels within the scope of § 287.3. A citizen operating such a vessel or vessels owned by any other person or persons can derive no benefit from the provisions relating to the nonrecognition of gain from the sale or loss of such vessel or vessels so owned, but may establish a construction reserve fund in which he may deposit earnings from the operation of such vessel or vessels.</P>
            <P>(d) <E T="03">Applicability of section 511.</E> Section 511 of the Act applies only with respect to sales or losses of vessels within the scope of § 287.3 or in respect of earnings derived from the operation of such vessels. A loss to be within section 511 of the Act must be an actual or constructive total loss. Whether there is a total loss, actual or constructive, will be determined by the Administration.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.3</SECTNO>
            <SUBJECT>Requirements as to vessel operations.</SUBJECT>
            <P>Section 511 of the Act applies with respect to vessels operated in the foreign or domestic commerce of the United States or in the fisheries of the United States and vessels acquired or being constructed for the purpose of such operation. The foreign commerce of the United States includes commerce or trade between the United States (including the District of Columbia), the territories and possessions which are embraced within the coastwise laws, and a foreign country or other territories and possessions of the United States. The domestic commerce of the United States includes commerce or trade between ports of the United States and its territories and possessions, embraced within the coastwise laws and on inland rivers. The fisheries include the fisheries of the United States and its territories and possessions. Section 511 of the Act does not apply to vessels operated in the foreign commerce or fisheries of any country other than the United States.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.4</SECTNO>
            <SUBJECT>Application to establish fund.</SUBJECT>
            <P>(a) Any person claiming to be entitled to the benefits of section 511 of the Act may make application, in writing, to the Administration for permission to establish a construction reserve fund. The original application shall be executed and verified by the taxpayer, or if the taxpayer is a corporation, by one of its principal officers, in triplicate, and shall be accompanied by eight conformed copies when filed with the Administration.</P>
            <P>(b) Form of application:</P>
            <EXTRACT>
              <HD SOURCE="HD1">Application for Permission To Establish a Construction Reserve Fund Under Sec. 511, Merchant Marine Act, 1936, as Amended</HD>
              <P>The undersigned applicant, ___, hereby applies, under section 511, Merchant Marine Act, 1936, as amended, and the regulations prescribed by the Secretary of Transportation acting by and through the Maritime Administrator (hereinafter referred to as “Administrator”) (46 CFR Part 287) and the Secretary of the Treasury, Internal Revenue Service (26 CFR Part 2) for permission to establish a construction reserve fund to be used for the construction or acquisition of a new vessel or vessels as defined by subsection (a) of said section 511, and submits in support of its application the following information:</P>
              <P>A. <E T="03">Identity and nationality of applicant.</E>
              </P>
              <P>1. Exact name.</P>
              <P>2. Status (individual, partnership, corporation, etc.).</P>
              <P>3. Give the place of incorporation—whether under the laws of the United States, or of a State, Territory, District, or possession thereof.</P>
              <P>4. Address of principal executive offices.<PRTPAGE P="135"/>
              </P>
              <P>5. A statement, if applicant is an individual or a partnership, should be attached in the application in affidavit form, containing information that applicant is a citizen of the United States by virtue of birth in the United States, naturalization, etc.; give place and date of birth and/or naturalization; if derivative U.S. citizenship is alleged through naturalization of parent while a minor, the number, date and place of issue of the certificate of derivative citizenship of applicant should be cited together with any other pertinent details relative thereto.</P>
              <P>6. (a) The name, office, and nationality of each officer and director of the applicant owning shares of stock in the corporation should be submitted together with the number and class of capital shares owned.</P>
              <P>(b) In order that the U.S. citizenship status of a corporation applicant may be determined by the Administration, an affidavit as in accordance with Part 355 of this Chapter shall be furnished together with a current copy of the Articles or Certificate of Incorporation certified by the Secretary of the State where incorporated (or appropriate officer, if other than a State, as provided in “A.3” above), and a copy of the current By-Laws certified by the Secretary of the Corporation.</P>
              <P>7. The name, address and nationality of, and number and class of capital shares owned by, each person not named in answer to Item 6, owning of record, or beneficially if known, 5 percent or more of the outstanding capital shares of any class of the applicant. (The applicant shall be required, upon request, to furnish such additional data as may be deemed necessary to establish the U.S. citizenship of the applicant pursuant to section 2, Shipping Act, 1916, or section 905(c), Merchant Marine Act, 1936, as amended.)</P>
              <P>8. A brief statement of the general effect of each voting agreement, voting trust, or other arrangement whereby the voting rights in any shares of the applicant are owned, controlled or exercised, or whereby the control of the applicant is in any way held or exercised by any person not the holder of legal title to such shares. Give the name, address, nationality, and business of any such person, and, if not an individual, the form of organization.</P>
              <P>B. <E T="03">Business of the applicant and proposed use of the new vessel.</E>
              </P>
              <P>9. A brief description of (a) the shipping business, or (b) the fishing business, and (c) any other business activities of the applicant.</P>
              <P>10. If engaged in the domestic or foreign commerce of the United States, full details concerning the services, routes, or lines on which vessels owned or chartered by the applicant are or have been operated.</P>
              <P>11. If applicant is engaged in the fisheries of the United States, full details concerning the location of the fishing operations and the method employed.</P>
              <P>C. <E T="03">Proceeds to be deposited.</E>
              </P>
              <P>12. If applicant proposes to deposit the proceeds from the sale of a vessel, a description of the transaction from which the funds were obtained, including the name of the vessel sold, name of purchaser, selling price, date and terms of sale, consideration received by the applicant, amount and description of any mortgage or other lien on the vessel at the time of sale, whether such mortgage or lien was satisfied from the proceeds of sale, brief description of vessel as to size, speed, tonnage, etc., age of vessel at the time of sale, and value and accrued depreciation for income tax purposes at time of sale.</P>
              <P>13. If applicant proposes to deposit proceeds of indemnity from loss of a vessel, the name of the vessel, date and description of the loss, amount of indemnity and date received, name of underwriter, amount and description of any mortgage or other lien on the vessel at time of loss, whether such mortgage or lien was satisfied from the proceeds of the indemnity, age of vessel at time of loss, brief description of vessel as to size, speed, tonnage, etc., and value and accrued depreciation for income tax purposes at time of loss.</P>
              <P>14. If applicant proposes to deposit earnings from the operation of vessels, a statement of the amount of such earnings to be deposited, the period during which earned, and their source, including the vessels, services, routes, or lines involved.</P>
              <P>D. <E T="03">The new vessel.</E>
              </P>
              <P>15. Statement whether applicant proposes: (a) To have a new vessel built to specifications, or (b) to acquire a vessel already constructed or under construction. If the former, and a contract for construction has been entered into at the time of the making of this application, state the date said contract was entered into, the parties thereto, the terms thereof, and date of delivery thereunder. If the latter, give name of vessel, builder, from whom purchased, or to be purchased, date when construction commenced, and date when delivered, or if vessel is still under construction, anticipated date of delivery.</P>
              <P>16. The general characteristics of the proposed new vessel, including (a) principal dimensions; (b) gross, net and deadweight tonnage; (c) bale and grain capacities of all cargo holds; (d) capacities of all tanks, storage spaces, refrigerator cargo spaces and separately chilled cargo spaces; (e) number and classes of passenger accommodations; (f) type and power, and in case of steam machinery, the gauge pressure, total temperature, and vacuum expected of propulsive machinery; (g) kind of fuel to be burned; and (h) sustained sea speed at designed load draft.</P>

              <P>17. If the proposed new vessel is to operate in the domestic or foreign commerce of the <PRTPAGE P="136"/>United States, a statement of how it will meet the needs of the service, route or line for which it is intended, with emphasis on the following factors: (a) Cargo accommodations—cargo space and fittings and appliances for handling and stowing cargo; (b) passenger accommodations; (c) construction and design; and (d) accommodations for officers and crews.</P>
              <P>18. If the proposed new vessel is to be operated in the fisheries of the United States, a description of the vessel, and a statement of how the vessel will meet the needs of such operations.</P>
              <P>19. If the proposed new vessel is intended to replace a vessel or vessels requisitioned or purchased by the United States, a statement of how the proposed replacement vessel will meet the needs of the service, route, line, or use for which it is intended.</P>
              <P>20. If the proposed new vessel is less than 2,000 gross tons or of less speed than 12 knots, a description of the features which would make it desirable for use by the United States in case of war or national emergency.</P>
              <P>E. <E T="03">The construction reserve fund.</E>
              </P>
              <P>21. A description of the deposit or deposits which the applicant proposes to make in the construction reserve fund, including the amounts to be deposited in cash, notes, mortgages or other evidences of indebtedness, irrevocable commitments, or securities, giving reference to the source as described in items C-12, C-13, or C-14.</P>
              <P>22. Name and address of proposed depository or depositories for the construction reserve fund.</P>
              <P>F. <E T="03">Taxable year of applicant.</E>
              </P>
              <P>23. Whether applicant files its Federal income tax return on a calendar year or fiscal year basis and if on the latter, the beginning of its fiscal year.</P>
              <P>G. <E T="03">Exhibits to be furnished.</E>
              </P>
              <P>24. The following documents shall be filed as exhibits attached to the application:</P>
              <P>
                <E T="03">Exhibit I—</E> If available at the time this application is filed, an authenticated copy of any irrevocable commitment to finance the construction or acquisition of the new vessel proposed to be deposited in the construction reserve fund pursuant to the provisions of 46 CFR 287.13(d).</P>
              <P>
                <E T="03">Exhibit II—</E> If the applicant is a corporation, a copy of each contract or agreement presently in effect, referred to in answer to Item 8.</P>
              <P>H. <E T="03">Covenants of the applicant.</E>
              </P>
              <P>25. The applicant hereby agrees as follows:</P>
              <P>(a) That the construction reserve fund shall be subject to the provisions of section 511, Merchant Marine Act, 1936, as amended, to the regulations prescribed by the Administrator, and the Secretary of the Treasury with respect to the establishment, maintenance, expenditure, and use of such fund, and to such resolutions as may be adopted by the Administrator with respect to such fund;</P>
              <P>(b) That it will furnish copies of any contracts entered into for the construction or acquisition of new vessels which the Administrator may require;</P>
              <P>(c) That it will furnish hull plans and specifications, machinery plans and specifications, and data with respect to communication facilities if and to the extent required by the Administrator; and</P>

              <P>(d) If no contract for the construction of a new vessel as set forth in paragraph D, sub-division 15(a) hereof, has been entered into at the time of making of this application, it will, upon entering into said contract, furnish to the Administrator the date thereof, the parties thereto, the terms thereof and date of delivery thereunder. Name of applicant:
              </P>
              <FP SOURCE="FP-DASH">(Date)</FP>
              <FP SOURCE="FP-DASH">By</FP>
              <FP SOURCE="FRP">(Name, typed)</FP>
              <FP SOURCE="FP-DASH"/>
              <FP SOURCE="FRP">(Title)</FP>
              <FP SOURCE="FP-DASH"/>
              <FP SOURCE="FRP">(Signature)</FP>
              
              <FP>I, ___, certify that I am the ___ (Title of office) of ___ (Exact name of applicant) the applicant on whose behalf I am authorized to execute the foregoing application and agreements; that the applicant is a citizen of the United States, in accordance with the requirements of the Merchant Marine Act, 1936, as amended; that this application is made for the purpose of inducing the Secretary of Transportation, represented by the Maritime Administrator to grant to the applicant, pursuant to the provisions of section 511 of the Merchant Marine Act, 1936, as amended, and the regulations promulgated by the Secretary of the Treasury and the Maritime Administrator thereunder, with all of which I am familiar, permission to establish a construction reserve fund; that I have carefully examined the application and all documents submitted in connection therewith and, to the best of my knowledge, information and belief, the statements and representations contained in said application and related documents are full, complete, accurate, and true.</FP>
              
              <P>
                <E T="03">Date:</E>
              </P>
              <FP SOURCE="FP-DASH"/>
              <FP SOURCE="FRP">(Name)</FP>
              <FP SOURCE="FP-DASH"/>
              <FP SOURCE="FRP">(Title)</FP>
              <FP SOURCE="FP-DASH"/>
              <FP SOURCE="FRP">(Signature)</FP>
              
              <P>Attention: A false statement in this application is punishable by law (18 U.S.C. 1001).</P>
            </EXTRACT>
            <EXTRACT>
              <PRTPAGE P="137"/>
              <HD SOURCE="HD1">instructions as to preparation of application</HD>
              <P>1. Applications shall be prepared in the form provided according to the lettered items and serially numbered paragraphs. They must be signed and sworn to as provided. Eleven copies of the applications shall be filed with the Maritime Administrator, at least one copy of which shall be signed.</P>
              <P>2. Each application shall be complete. Items or part of items which are inapplicable may, however, be omitted. The information required by Article 25 need be furnished only as stated in that item. The applicant may incorporate by specific reference information previously furnished the Maritime Administrator provided that such information so incorporated shall have been furnished at least in triplicate.</P>
              <P>3. If any information called for by an applicable item is not furnished, and explanation of the omission shall be given. The applicant may furnish such relevant information as it may desire, in addition to that specified in the form.</P>
              <P>4. Any additional information called for by the Maritime Administrator from time to time shall be furnished as an amendment or amendments to the application. The original and 11 copies of each amendment shall be filed, shall refer to the application, and shall be identified as an amendment and dated. Without any specific request from the Maritime Administrator the applicant shall file from time to time as amendments any information necessary to keep the information contained therein or furnished in connection therewith current and correct while the application is pending.</P>
            </EXTRACT>
            
            <P>(c) <E T="03">Fee.</E> Each such application shall be accompanied by the sum of $225, which sum will be retained to recover the cost of processing the application.</P>
            <APPRO>(Approved by the Office of Management and Budget under control number 2133-0032)</APPRO>
            <CITA>[G.O. 38, 2d Rev., 30 FR 7215, May 29, 1965, as amended by Amdt. 1, 31 FR 3397, Mar. 4, 1966; 47 FR 25530, June 14, 1982]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.5</SECTNO>
            <SUBJECT>Tentative authorization to establish fund.</SUBJECT>
            <P>Where the time between the receipt by the Administration of the application for permission to establish a construction reserve fund and the date prior to which an amount received from the sale or loss of a vessel must be deposited to come within the scope of section 511 of the Act is insufficient to permit a determination of the eligibility of the applicant, the Administration may tentatively authorize the establishment of a construction reserve fund and the deposit of such amount therein. Such tentative authorization shall be subject to rescission by the Administration if subsequently it is determined that the applicant is not entitled to the benefits of section 511 of the Act, or has not complied with the statutory requirements. For example, a tentative authorization will be rescinded if the Administration ascertains that the applicant is not a citizen. Upon such determination, the fund shall be closed and all amounts on deposit therein shall be withdrawn.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.6</SECTNO>
            <SUBJECT>Establishment of fund.</SUBJECT>
            <P>(a) <E T="03">Authorization by the Administration.</E> If the application is approved by the Administration, the Administration will adopt Orders authorizing the establishment of a construction reserve fund with the depository or depositories designated by the taxpayer and approved by the Administration. The Orders will provide for joint control by the Administration and the taxpayer over such fund, will set forth the conditions governing the establishment and maintenance of the fund and the making of deposits therein and withdrawals therefrom, and will designate the representatives authorized to execute instruments of withdrawal on behalf of the Administration.</P>
            <P>(b) <E T="03">Resolution or agreement of the taxpayer.</E> A certified copy of the Orders of the Administration will be furnished the taxpayer. If the taxpayer is a corporation, it shall promptly adopt, through its board of directors, a resolution satisfactory in form and substance to the Administration, authorizing the establishment and maintenance of the fund in conformity with the action of the Administration. If the taxpayer is not a corporation, it shall promptly execute an agreement with the depository satisfactory in form and substance to the Administration to conform to the action of the Administration as set forth in the Orders. Certified copies of the Orders of the Administration and of the resolution of the taxpayer (if it is a corporation) will be furnished to the depository by the Administration and the taxpayer, respectively, for its guidance in maintaining the fund and honoring instruments of withdrawal. <PRTPAGE P="138"/>The taxpayer, if a corporation, shall also furnish the Administration with a certified copy of its resolution, or if not a corporation a duplicate original of its agreement with the depository.
            </P>
            <NOTE>
              <HD SOURCE="HED">Note:</HD>
              <P>The resolutions referred to in this section shall be retained 2 years after a final release or settlement agreement is completed between the Maritime Administration/Maritime Subsidy Board and the taxpayer.</P>
            </NOTE>
            
            <P>(c) <E T="03">Constructive action not recognized.</E> Constructive deposits, substitutions or withdrawals will not be recognized by the Administration in the establishment and maintenance of the fund.</P>
            <P>(d) <E T="03">Failure to make deposits as basis for termination of fund.</E> In the event no deposit is made into the fund for more than five years, any amounts remaining in the fund shall be removed from the fund at the discretion of the Administration and, if so removed, the fund shall be terminated. In the event of such termination, see § 287.23 for recognition of gain.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.7</SECTNO>
            <SUBJECT>Circumstances permitting reimbursement from a construction reserve fund.</SUBJECT>
            <P>(a) <E T="03">Payments prior to establishment of fund.</E> If, prior to the establishment of a construction reserve fund under the regulations in this part, a taxpayer has made necessary payments under a contract which satisfies the provisions of the regulations in this part and section 511 of the Act for the construction or acquisition of a new vessel, such taxpayer may, if subsequently authorized to establish a construction reserve fund under the regulations in this part, draw against such fund as reimbursement for the amount, if any, of other funds which, with the approval or ratification of the Administration, the taxpayer used for making such necessary payments prior to the establishment of the fund.</P>
            <P>(b) <E T="03">Payments subsequent to establishment of fund.</E> If, subsequent to the establishment of a construction reserve fund under the regulations in this part, the taxpayer has made necessary payments under a contract which satisfies the provisions of the regulations in this part and section 511 of the Act for the construction or acquisition of a new vessel, such taxpayer may draw against such fund as reimbursement for the amount, if any, of other funds which, with the approval or ratification of the Administration, the taxpayer had used for the purpose of making such necessary payments.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.8</SECTNO>
            <SUBJECT>Investment of funds in securities.</SUBJECT>
            <P>(a) <E T="03">Obligations of or guaranteed by the United States.</E> Interest-bearing direct obligations of the United States, or obligations fully guaranteed as to principal and interest by the United States may be deposited in the construction reserve fund in lieu of cash, may be purchased with cash on deposit in the fund, or may be substituted for securities or commitment to finance in the fund, subject to the provisions of paragraph (b) of this section.</P>
            <P>(b) <E T="03">Other securities.</E> In cases where the taxpayer desires to deposit any securities in the fund in lieu of cash other than those of or guaranteed by the United States or to purchase such other securities with cash on deposit in the fund, or to substitute such other securities for securities or commitment to finance in the fund, the taxpayer shall make written application to the Administration and shall not consummate the transaction until the written consent of the Administration shall have been received. The application shall describe the securities fully. Every approval by the Administration of such application shall be conditioned upon agreement by the taxpayer forthwith to dispose of such securities upon subsequent request by the Administration. Immediately upon the purchase of any securities for deposit in the fund, the taxpayer shall advise the Administration, giving the date of purchase, a description of the securities, and the price paid therefor (net, brokerage and other charges, and gross). Ordinarily, the Administration will not approve the deposit in the fund in lieu of cash, or the purchase with cash on deposit in the fund or the substitution for securities in the fund of securities not actively traded in on exchanges registered under the Securities Exchange Act of 1934 (15 U.S.C. Chapter 2B), or securities which are not legal for investment of trust funds. Whenever the Administration approves the <PRTPAGE P="139"/>substitution of other securities for securities in the fund, such substitution shall be effected only upon or after the deposit of the substituted securities into the fund.</P>
            <P>(c) <E T="03">Cash.</E> Cash may be substituted for amounts which are on deposit in the fund in any other form.</P>
            <P>(d) <E T="03">Devalued securities.</E> In the event the Administration determines that the market value at any date of any securities in the fund has decreased to a figure which is less than 90 percent of the market value at the time of deposit into the fund, then within 60 days after the taxpayer receives notice of such determination the taxpayer shall (except as otherwise provided in this paragraph) deposit into the fund cash or securities in an amount equal to the difference between the current market value of the devalued securities and the market value of such securities at the time of their original deposit. However, if any securities in the fund are valued at the time of their deposit at less than the market value of such securities at the time of their deposit the taxpayer shall be required to deposit only an amount equal to that portion of the difference between the current market value of the devalued securities and the market value of such securities at the time of their original deposit which bears the same ratio to such total difference as the amount at which the securities were valued at the time of their deposit bears to the market value at the time of such deposit.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.9</SECTNO>
            <SUBJECT>Valuation of securities in fund.</SUBJECT>
            <P>(a) <E T="03">Equipment values.</E> In cases where securities are deposited in the fund in lieu of cash, or are purchased with cash on deposit in the fund, or are substituted for securities in the fund, the value of such securities must not be less than the amount of cash in lieu of which they are so deposited or with which they are so purchased, or the value at the time of deposit of the securities for which they were so substituted. If the securities on deposit in the fund are replaced by cash from the general funds of the taxpayer, the amount of cash to be deposited in the fund in lieu thereof shall be not less than the amount at which such securities were valued at the time of their deposit in the fund.</P>
            <P>(b) <E T="03">Determination of value.</E> (1) For the purpose of determining the amount in the fund, the value of securities shall be their “market value” (which shall be the basis for determining value, unless otherwise agreed to by the administration) and shall be determined in the following manner:</P>
            <P>(i) In instances where no actual purchase is involved, such as the initial deposit of securities in the fund in lieu of cash, the last sales price thereof on the principal exchange on the day the deposit was made shall be deemed to be the “market value” thereof, or, if no such sales were made, the “market value” thereof will be determined by the Administration on such basis as it may deem to be fair and reasonable in each case.</P>

            <P>(ii) In instances where the purchase of securities with cash on deposit in the fund is involved, “market value” shall be the gross price paid (adjusted for accrued interest); <E T="03">Provided,</E> That if such securities are purchased otherwise than upon a registered exchange the price shall be within the range of transactions on the exchange on the date of such purchase, or, if there were no such transactions, then the “market value” thereof will be determined by the Administration on such basis as it may deem to be fair and reasonable in each case.</P>
            <P>(2) Purchase-money obligations secured by mortgages on vessels sold or irrevocable commitments to finance the construction or acquisition of new vessels which are deposited in the construction reserve fund as provided in § 287.13 ordinarily will be considered as equivalent to their face value.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.10</SECTNO>
            <SUBJECT>Withdrawals from fund.</SUBJECT>
            <P>(a) <E T="03">Withdrawals for obligations or liquidation.</E> (1) Checks, drafts, or other instruments of withdrawal to meet obligations under a contract for the construction or acquisition of new vessel or vessels or for the liquidation of existing or subsequently incurred purchase-money indebtedness, after having been executed by the taxpayer, shall be forwarded to the Administration in Washington, DC, with appropriate explanation of the purpose of the <PRTPAGE P="140"/>proposed withdrawal, including properly certified invoices or other supporting papers. Such instruments of withdrawal, if payable to the Administration, will be deposited by the Administration for collection, and the proceeds thereof, upon collection, will be credited to the appropriate contract with the Administration; but if drawn to the order of payees other than the Administration, after countersignature on behalf of the Administration, will ordinarily be forwarded to the payees.</P>
            <P>(2) An amount obligated under a contract for the construction or acquisition of a new vessel or vessels or for the liquidation of existing or subsequently incurred purchase-money indebtedness, whether the obligor has the entire or a partial interest therein within the scope of section 511 of the Act, may not, so long as the contract or indebtedness continues in full force and effect, be withdrawn except to meet payments due or to become due under such contract or for such liquidation.</P>
            <P>(b) <E T="03">Other withdrawals.</E> Checks, drafts, or other instruments of withdrawal executed by the taxpayer for purposes other than to meet obligations under a contract for the construction or acquisition of a new vessel or vessels or for the liquidation of existing or subsequently incurred purchase-money indebtedness, whether the taxpayer has the entire or a partial interest therein, shall be drawn by the taxpayer to its own order and forwarded to the Administration in Washington, DC, with appropriate explanation of the purpose of the proposed withdrawal. Such withdrawals may occur by reason of a determination by the Administration that the taxpayer is not entitled to the benefits of section 511 of the Act (see § 287.5), or that a particular deposit has been improperly made (see § 287.13), or by reason of the election of the taxpayer to make such withdrawals. Upon receipt of such checks, drafts, or other instruments of withdrawal, the Administration will give notice thereof to the Commissioner of Internal Revenue. The Commissioner will advise the Administration of the receipt of the notice and the date it was received. The Administration shall not countersign such checks, drafts, or other instruments of withdrawal or transmit them to the taxpayer until the expiration of 30 days from the date of receipt of the notice by the Commissioner, unless the Commissioner or such official of the Internal Revenue Service as he may designate for the purpose consents in writing to earlier countersignature by the Administration and transmittal to the taxpayer. Upon the expiration of such 30-day period, or prior thereto if the aforesaid consent of the Commissioner has been obtained, the Administration will countersign the check, draft, or other instrument of withdrawal and forward it to the taxpayer.</P>
            <P>(c) <E T="03">Inapplicability to certain transactions.</E> The provisions of this section shall not be applicable to transactions deemed to be withdrawals by reason of the sale of securities held in the fund for an amount less than the market value thereof at the time of their deposit (see § 287.23), nor to the cancellation of an irrevocable commitment deposited in the fund, upon proof satisfactory to the Administration that the terms of such commitment have been fully satisfied.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.11</SECTNO>
            <SUBJECT>Time deposits.</SUBJECT>
            <P>Deposits in the construction reserve fund not invested in securities may be placed in time deposits when, in the judgment of the taxpayer, it is desirable and feasible so to do. The taxpayer shall promptly advise the Administration of any time deposit arrangements made with the depository. The Administration reserves the right at any time to require the termination or modification of any such arrangements. With prior approval of the Administration a time deposit may be made in a depository other than the one with which the construction reserve fund is established.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.12</SECTNO>
            <SUBJECT>Election as to nonrecognition of gain.</SUBJECT>
            <P>(a) <E T="03">Election requirements.</E> As a prerequisite to the nonrecognition of gain on the sale or loss of a vessel (or of a part interest therein) for Federal income tax purposes, the taxpayer, after establishing a construction reserve fund, must make an election with respect to such vessel or interest in the manner set forth in this paragraph.<PRTPAGE P="141"/>
            </P>
            <P>(1) <E T="03">In general.</E> Except as provided in paragraph (a)(2) of this section, the election must be made in the taxpayer's Federal income tax return (or, in the case of a partnership, in the partnership return of income) for the taxable year in which the gain with respect to the sale or loss of the vessel is realized. The election as to the nonrecognition of gain shall be shown by a statement to that effect, submitted as a part of, and attached to, the return. The statement, which need not be on any prescribed form, shall set forth a computation of the amount of the realized gain, the identity of the vessel, the nature and extent of the taxpayer's interest therein, whether such vessel was sold or lost and the date of sale or loss, the full sale price or full amount of indemnity, and the amount and date of each payment thereof, the basis of tax purposes and any other data affecting the determination of the realized gain.</P>
            <P>(2) <E T="03">Certain Government payments.</E> In case a vessel is purchased or requisitioned by the United States, or is lost, in any taxable year and the taxpayer receives payment for the vessel so purchased or requisitioned, or receives from the United States indemnity on account of such loss, subsequent to the end of such taxable year, the taxpayer shall make his election by filing notice thereof with the Commissioner of Internal Revenue, Washington, DC, 20224, prior to the expiration of 60 days after receipt of the payment or indemnity. The taxpayer shall file a copy of the notice with the Secretary, Maritime Administration, Washington, DC, 20590. The form of the notice of election shall be prepared by the taxpayer and shall be substantially as follows:</P>
            <EXTRACT>
              <HD SOURCE="HD1">Election Relative to Nonrecognition of Gain Under Section 511(c)(2), Merchant Marine Act, 1936</HD>

              <P>Pursuant to the provisions of section 511(c)(2) of the Merchant Marine Act, 1936, as amended, notice is hereby given that the undersigned taxpayer elects that gain in respect of the sale to the United States, or indemnification received from the United States on account of the loss, of the vessel named below or share therein shall not be recognized. The circumstances involved in the computation of such gain are as follows:
              </P>
              <FP SOURCE="FP-DASH">Name and other identification of vessel</FP>
              
              <FP SOURCE="FP-DASH">Nature and extent of the taxpayer's interest in the vessel</FP>
              
              <FP SOURCE="FP-DASH">Nature of disposition, i.e., sale or loss</FP>
              
              <FP SOURCE="FP-DASH">Date of disposition</FP>
              
              <FP SOURCE="FP-DASH">Full sale price or full amount of indemnity received by taxpayer</FP>
              
              <FP SOURCE="FP-DASH">Amount and date of each payment of sale price or indemnity received by taxpayer</FP>
              
              <FP SOURCE="FP-DASH">Amount and date of each previous deposit of such payments in construction reserve fund</FP>
              
              <FP SOURCE="FP-DASH">Identification of each check or other instrument by which payment made to taxpayer</FP>
              
              <FP SOURCE="FP-DASH">Tax basis of taxpayer's interest in vessel</FP>
              
              <FP SOURCE="FP-DASH">Any other data affecting the determination of the realized gain</FP>
              
              <FP SOURCE="FP-DASH">Amount of gain (submit computation)</FP>
              
              <FP SOURCE="FP-DASH"/>
              <FP SOURCE="FRP">(Name of taxpayer)</FP>
              <FP SOURCE="FP-DASH">By</FP>
              <FP SOURCE="FP-DASH">(Date of execution)</FP>
            </EXTRACT>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.13</SECTNO>
            <SUBJECT>Deposit of proceeds of sales or indemnities.</SUBJECT>
            <P>(a) <E T="03">Manner of deposit.</E> The deposit required by section 511 of the Act must be made in a construction reserve fund established with a depository or depositories approved by the Administration and subject to the joint control of the Administration and the taxpayer. It is not necessary to establish a separate fund with respect to each vessel or share in a vessel sold or lost.</P>
            <P>(b) <E T="03">Amount of deposit.</E> With respect to any vessel sold or lost, or a share therein, the deposit must be in an amount equal to the “net proceeds” of the sale, or the “net indemnity” for the loss. By “net proceeds” and “net indemnity” is meant (1) the depositor's interest in the adjusted basis of the vessel plus (2) the amount of gain which would be recognized for tax purposes in the absence of section 511 of the Act. In determining “net proceeds”, the amount necessarily paid or incurred for brokers' commissions is to be deducted from the gross amount of the sales price. In the event the taxpayer is an affiliate or associate of the buyer, the amount of the sales price shall not exceed the fair market value <PRTPAGE P="142"/>of the vessel or vessels sold as determined by the Administration. In such case the taxpayer shall furnish evidence sufficient, in the opinion of the Administration, to establish that the sales price is not in excess of the fair market value. In determining “net indemnity”, the amount necessarily paid or incurred purely for collection, or rate of exchange discounts on the payment, of the indemnity is to be deducted from the gross amount of collectible indemnity. In case of the sale or loss of several vessels or share therein, a deposit of the “net proceeds” or “net indemnity” with respect to one or more of the vessels or shares is permissible. Where several vessels or shares are sold for a lump sum, the “net proceeds” allocated to each vessel or share shall be determined in accordance with any reasonable rule satisfactory to the Commissioner of Internal Revenue. The taxpayer must deposit the full amount of each payment (including cash, notes, or other evidences of indebtedness) as a single deposit in the construction reserve fund. A payment divided between two or more depositories will be regarded as a single deposit. Amounts received by the taxpayer prior to the date of consummation of the sale of the vessel shall be considered as having been received by the taxpayer at the time the sale is consummated.</P>
            <P>(c) <E T="03">Purchase-money obligations.</E> Where the proceeds from the sale of a vessel include purchase-money obligations, such obligations together with the entire collateral therefor, or, in the case of deposit of the proceeds of a share in the vessel, a proportionate part of the obligations and collateral as determined by the Administration, shall be deposited, with the remainder of the proceeds, in the construction reserve fund as a part of the “net proceeds”. The depository shall receive payment of all amounts due on such purchase-money obligations and such amounts shall be placed in the fund in substitution for the portion of the obligations paid. All installments of purchase-money obligations shall be paid directly into the fund by the obligor. In the event any such installment is not so deposited, the Administration, at any time after the due date, may require the taxpayer to deposit an amount equal to such installment. If the taxpayer so desires, he may deposit in the construction reserve fund cash or approved securities in an amount equal to the face value of any purchase-money obligations in lieu of depositing such obligations.</P>
            <P>(d) <E T="03">Vessel subject to mortgage at time of sale or loss.</E> Where a vessel is subject to a mortgage or other encumbrance at the time of its sale or loss and the taxpayer actually receives only an amount representing the equity therein or a share in such equity corresponding to his share in the vessel, he shall deposit in the construction reserve fund such amount and concurrently therewith other funds in an amount equal to the difference between the amount received and the “net proceeds” or “net indemnity”. Such other funds may be in the form of cash, or, subject to the approval of the Administration, (1) interest-bearing securities, or (2) an irrevocable and unconditional commitment to finance the construction or acquisition of a new vessel in whole or in part by an obligor approved by the Administration in an amount equal to the amount by which the “net proceeds” exceed the cash or securities deposited in the fund.</P>
            <P>(e) <E T="03">Unauthorized deposits.</E> A deposit which is not provided for by section 511 of the Act shall, without unreasonable delay, be withdrawn from the fund and tax liability will be determined as though such deposit had not been made. (See §§ 287.10 and 287.24.)</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.14</SECTNO>
            <SUBJECT>Deposit of earnings and receipts.</SUBJECT>
            <P>(a) <E T="03">Earnings.</E> A citizen may deposit all or any part of earnings derived from the operation, within the scope of § 287.3, of a vessel or vessels owned either by himself or any other person, if such earnings are intended for construction or acquisition of new vessels. Such earnings may include payments received by an owner, as compensation for use of his vessel, from other persons by whom it is so operated. Earnings from other sources may not be deposited. The earnings from operation of vessels which are eligible for deposit <PRTPAGE P="143"/>are the net earnings determined without regard to any deduction for depreciation, obsolescence, or amortization with respect to such vessels.</P>
            <P>(b) <E T="03">Receipts.</E> Receipts from deposited funds, in the form of interest or otherwise, may be deposited.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.15</SECTNO>
            <SUBJECT>Time for making deposits.</SUBJECT>
            <P>(a) <E T="03">Proceeds of sale or indemnification.</E> Deposits of amounts representing proceeds of the sale or indemnification for loss of a vessel or share therein must be made within 60 days after receipt by the taxpayer.</P>
            <P>(b) <E T="03">Earnings and receipts.</E> Earnings and receipts for the taxable year may be deposited at any time. (See § 287.14.)</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.16</SECTNO>
            <SUBJECT>Tax liability as to earnings deposited.</SUBJECT>
            <P>Deposit in the construction reserve fund of earnings from the operation of a vessel or vessels, or receipts, in the form of interest or otherwise, with respect to amounts previously deposited does not exempt the taxpayer from tax liability with respect thereto nor postpone the time such earnings or receipts are includible in gross income. Earnings and receipts deposited in a construction reserve fund established in accordance with the provisions of section 511 of the Act and the regulations in this part will be deemed to have been accumulated for the reasonable needs of the business within the meaning of part 1 (section 531 and following), subchapter G, chapter 1 of the Internal Revenue Code of 1954, so long as the requirements of section 511 of the Act and the regulations in this part are satisfied relative to the use of the fund in the construction, reconstruction, reconditioning, or acquisition of new vessels, or for the liquidation of purchase-money indebtedness on such vessels. For incurrence of tax liability due to noncompliance with the requirements of section 511 of the Act and the regulations in this part with respect to deposits in the construction reserve fund, see the provisions of § 287.23.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.17</SECTNO>
            <SUBJECT>Basis of new vessel.</SUBJECT>
            <P>The basis for determining gain or loss and for depreciation for the purpose of the Federal income tax with respect to a new vessel constructed, reconstructed, reconditioned, or acquired by the taxpayer, or with respect to which purchase-money indebtedness is liquidated as provided in section 511(g) of the Act, with funds deposited in the construction reserve fund, is reduced by the amount of the unrecognized gain represented in the funds allocated under the provisions of the regulations in this part to the cost of such vessel. (See § 287.18.)</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.18</SECTNO>
            <SUBJECT>Allocation of gain for tax purposes.</SUBJECT>
            <P>(a) <E T="03">General rules of allocation.</E> As provided in § 287.17, if amounts on deposit in a construction reserve fund are expended, obligated, or withdrawn for construction, reconstruction, reconditioning, or acquisition of new vessels, or for the liquidation of purchase-money indebtedness of such vessels, the portion thereof which represents gain shall be applied in reduction of the basis of such new vessels. The rules set forth below in this paragraph shall apply in allocating the unrecognized gain to the amounts so expended, obligated, or withdrawn:</P>
            <P>(1) If the “net proceeds” of a sale or “net indemnity” in respect of a loss are deposited in more than one deposit, the portion thereof representing unrecognized gain shall be considered as having been deposited first.</P>
            <P>(2) Amounts expended, obligated, or withdrawn from the construction reserve fund shall be applied against amounts deposited in the order of deposit.</P>
            <P>(3) If any deposit consists in part of gain not recognized under section 511(c) of the Act, then any expenditure, obligation, or withdrawal applied against such deposit shall be considered to consist of gain in the same proportion that the part of the deposit which constitutes gain bears to the total amount of the deposit.</P>
            <P>(b) <E T="03">Date of obligation.</E> The date funds are obligated under a contract for the construction, reconstruction, reconditioning, or acquisition of new vessels, or for the liquidation of purchase-money indebtedness on such vessels, rather than the date of payment from the fund, will determine the order of application against the deposits in the <PRTPAGE P="144"/>fund. When a contract for the construction, reconstruction, reconditioning, or acquisition of new vessels, or for the liquidation of purchase-money indebtedness on such vessels is entered into, amounts on deposit in the construction reserve fund will be deemed to be obligated to the extent of the amount of the taxpayer's liability under the contract. Deposits will be deemed to be so obligated in the order of deposit, each new contract obligating the earliest deposit not previously expended, obligated, or withdrawn. If the liability under the contract exceeds the amount in the construction reserve fund, the contract will be deemed to obligate, to the extent of that part of such excess not otherwise satisfied, the earliest deposit or deposits thereafter made.</P>
            <P>(c) <E T="03">Illustration.</E> The foregoing rules are illustrated in the following example:
            </P>
            <EXAMPLE>
              <HD SOURCE="HED">Example.</HD>
              <P>(1) A taxpayer who makes his returns on the calendar year basis sells a vessel in 1963 for $1,000,000, realizing a gain of $400,000. Payment of $100,000 is received in March 1963 when the contract is signed, and the balance of $900,000 is received in June 1963 on delivery of the vessel. The $1,000,000 is deposited in a construction reserve fund in July 1963. In December 1963, the taxpayer also deposits $150,000, representing earnings of that year. In 1964, he sells another vessel for $1,000,000, realizing a gain of $250,000. The sale price of $1,000,000 is received on delivery of the vessel in February 1964, and deposited in the construction reserve fund in March 1964. In September 1964, the taxpayer purchases for cash out of the construction reserve fund a new vessel for $1,750,000. To the cost of this vessel must be allocated the 1963 deposits of $1,150,000 and $600,000 of the March 1964 deposit. This leaves in the fund $400,000 of the March 1964 deposit. The amount of the unrecognized gain to be applied against the basis of the new vessel is $550,000, computed as follows: Gain of $400,000 represented in the 1963 deposits, plus the same proportion of the $250,000 gain represented in the March 1964 deposit ($1,000,000) which the amount ($600,000) allocated to the vessel is of the amount of the deposit, i.e., $400,000 plus 600,000/1,000,000 of $250,000 or $150,000, a total of $550,000. This reduces the basis of the new vessel to $1,200,000 ($1,750,000 less $550,000).</P>
              <P>(2) In 1965, the taxpayer sells a third vessel for $3,000,000, realizing a gain of $900,000. The $3,000,000 is received and deposited in the construction reserve fund in June 1965, making a total in the fund of $3,400,000. In December 1965, the taxpayer contracts for the construction of a second new vessel to cost a maximum of $3,200,000, thereby obligating that amount of the fund, and in June 1966, receives permission to withdraw the unobligated balance amounting to $200,000. To the cost of the second new vessel must be allocated the $400,000 balance of the March 1964 deposit and $2,800,000 of the June 1965 deposit. The unrecognized gain to be applied against the basis of such new vessel is that proportion of the gain represented in each deposit which the portion of the deposit allocated to the vessel bears to the amount of such deposit, i.e., 400,000/1,000,000 of $250,000, or $100,000 plus 2,800,000/3,000,000 of $900,000, or $840,000 making a total of $940,000. The $200,000 withdrawal is applied against the June 1965 deposit and the portion thereof which represents gain will be recognized as income for 1965, the year in which realized. The computation of the recognized gain is as follows: 200,000/3,000,000 of $900,000, or $60,000.</P>
            </EXAMPLE>
            
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.19</SECTNO>
            <SUBJECT>Requirements as to new vessels.</SUBJECT>
            <P>(a) <E T="03">Requirements.</E> For the purposes of section 511 of the Act and the regulations in this part, the new vessel must be—</P>
            <P>(1) Documented under the laws of the United States when it is acquired by the taxpayer, or the taxpayer must agree that when acquired it will be documented under the laws of the United States;</P>
            <P>(2)(i) Constructed in the United States after December 31, 1939, or (ii) its construction has been financed under Title V or Title VII of the Act, or (iii) its construction has been aided by a mortgage insured under Title XI of the Act; and</P>

            <P>(3) Either (i) of such type, size, and speed as the Administration determines to be suitable for use on the high seas or Great Lakes in carrying out the purposes of the Act, but of not less than 2,000 gross tons or of less speed than 12 knots, except that a particular vessel may be of lesser tonnage or speed if the Administration determines and certifies that the particular vessel is desirable for use by the United States in case of war or national emergency, or (ii) constructed to replace a vessel or vessels requisitioned or purchased by the United States, in which event it must be of such type, size, and speed as to constitute a suitable replacement for the vessel requisitioned or purchased, but if a vessel already <PRTPAGE P="145"/>built is acquired to replace a vessel or vessels requisitioned or purchased by the United States, such vessel must meet the requirements set forth in paragraph (a)(3)(i) of this section. Ordinarily, under paragraph (a)(3)(i) of this section, a vessel constructed more than five years before the date on which deposits in a construction reserve fund are to be expended or obligated for acquisition of such vessel will not be considered suitable for use in carrying out the purpose of the Act, except that the five-year age limitation provided above in this sentence shall not apply to a vessel to be reconstructed before being placed in operation by the taxpayer.</P>
            <P>(b) <E T="03">Time of construction.</E> A vessel will be deemed to be constructed after December 31, 1939, only if construction was commenced after that date. Subject to the provisions of this section, a new vessel may be newly built for the taxpayer, or may be acquired after it is built.</P>
            <P>(c) <E T="03">Replacement of vessels.</E> It is not necessary that vessels shall be replaced vessels for vessel. The new vessels may be more or less in number than the replaced vessels, provided the other requirements of this section are met.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.20</SECTNO>
            <SUBJECT>Obligation of deposits.</SUBJECT>
            <P>(a) <E T="03">Time for obligation.</E> Within three years from the date of any deposit in a construction reserve fund, unless extension is granted as provided in § 287.22, such deposit must be obligated under a contract for the construction or acquisition of a new vessel or vessels (or in the discretion of the Administration for a share therein), with not less than 12<FR>1/2</FR> percent of the construction or contract price of the entire vessel or vessels actually paid or irrevocably committed on account thereof or must be expended or obligated for the liquidation of existing or subsequently incurred purchase-money indebtedness to persons other than a parent company of, or a company affiliated or associated with, the mortgagor on a new vessel or vessels. Amounts on deposit in a construction reserve fund will be deemed to be obligated for expenditure when a binding contract of construction or acquisition has been entered into or when purchase-money indebtedness has been incurred and, if obligated under a contract of construction or acquisition, will be deemed to be irrevocably committed when due and payable in accordance with the terms of the contract of construction or acquisition.</P>
            <P>(b) <E T="03">Requirements for obligation.</E> Unless otherwise authorized by the Administration, contracts for the construction of new vessels must be for a fixed price, or provide for a base price that may be adjusted for changes in labor and material costs not exceeding 15 percent of the base price. The fixed or base price, as the case may be, shall be fair and reasonable as determined by the Maritime Administration. Any financial or other interests between the taxpayer and the contractor shall be disclosed to the Administration by the taxpayer. Plans and specifications for the new vessel or vessels must be approved by the Administration to the extent it deems necessary. A deposit in a construction reserve fund may be expended or obligated for expenditure for procurement under an acquisition or construction contract of a part interest in a new vessel or vessels only after obtaining the written consent of the Administration. The granting of such consent shall be entirely in the discretion of the Administration and it may impose such conditions with respect thereto as it may deem necessary or advisable for the purpose of carrying out the provisions of section 511 of the Act. Applications for such consent shall be executed in triplicate, and, together with eight conformed copies thereof, filed with the Administration.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.21</SECTNO>
            <SUBJECT>Period for construction of certain vessels.</SUBJECT>

            <P>A new vessel constructed otherwise than under the provisions of Title V of the Act, and not purchased from the Administration must, within six months from the date of the construction contract, or within the period of any extension, be completed to the extent of not less than 5 percent as estimated by the Administration and certified by it to the Secretary of the Treasury. In case of a contract covering more than one vessel it will be sufficient if one of the vessels is 5 percent completed within the six months' period from the date of the contract or <PRTPAGE P="146"/>within the period of any extension, and so certified. All construction must be completed with reasonable dispatch as determined by the Administration. If, for causes within the control of the taxpayer, the entire construction is not completed with reasonable dispatch, the Administration will so certify to the Secretary of the Treasury. For the effect of such certification, see § 287.23.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.22</SECTNO>
            <SUBJECT>Time extensions for expenditure or obligation.</SUBJECT>
            <P>(a) <E T="03">Extensions.</E> The Administration, upon application and a showing of proper circumstances, (1) may allow an extension of time within which deposits shall be expended or obligated, not to exceed one year, and upon a second application received before the expiration of the first extension, may allow an additional extension not to exceed one year, and (2) may allow an extension or extensions of time within which five percent of the construction shall have been completed as provided in § 287.21 not to exceed one year in the aggregate, and (3) may allow any other extensions that may be provided by amendment to the Act.</P>
            <P>(b) <E T="03">Application required.</E> A taxpayer seeking an extension of time shall make application therefor, and transmit it with an appropriate statement of the circumstances, including the reasons justifying the requested extension or extensions, and appropriate documents in substantiation of the statement, to the Administration. The Administration will notify the Commissioner of Internal Revenue of any extension granted. In case an application for extension is denied, the taxpayer will be liable for delay as though no application had been made.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.23</SECTNO>
            <SUBJECT>Noncompliance with requirements.</SUBJECT>
            <P>(a) <E T="03">Noncompliance.</E> The amount of the gain which is that portion of the construction reserve fund otherwise constituting taxable income under the law applicable to the taxable year in which such gain was realized shall be included in the taxpayer's gross income for such taxable year for income or excess-profits tax purposes, if:</P>
            <P>(1) A portion of such fund is withdrawn for purposes other than—</P>
            <P>(i) The construction, reconstruction, reconditioning, or acquisition of a new vessel; or</P>
            <P>(ii) The liquidation of existing or subsequently incurred purchase-money indebtedness to persons other than a parent company of, or a company affiliated or associated with, the mortgagor on a new vessel or vessels; or</P>
            <P>(2) The taxpayer fails to comply with the requirements of section 511 of the Act or the regulations in this part relating to the utilization of construction reserve funds in the construction, reconstruction, reconditioning, or acquisition of a new vessel, or the liquidation of purchase-money indebtedness on such a vessel.</P>
            <FP>If securities on deposit in a construction reserve fund are sold and the amount placed in the fund in lieu thereof is less than the value of the securities at the time of their deposit, the difference between such market value and the amount placed in the fund in lieu of the securities will be deemed to have been withdrawn. With respect to the substitution of new financing in the case of an irrevocable commitment, see paragraph (d) of § 287.13.</FP>
            <P>(b) <E T="03">Amount recognized.</E> In the event of noncompliance with the prescribed conditions relative to any contract for construction, reconstruction, reconditioning, or acquisition of new vessels, or for the liquidation of purchase-money indebtedness on such vessels, recognition will extend to the entire amount of the gain represented in that portion of the construction reserve fund obligated under such contract. Thus, if the Administration determines and certifies to the Secretary of the Treasury that for causes within the control of the taxpayer construction under a contract is not completed with reasonable dispatch, the entire amount of the gain represented in the portion of the construction reserve fund obligated under the contract will be recognized even though all other conditions have been satisfied. In case of noncompliance with the requirements of section 511 of the Act or the regulations in this part, see the provisions of § 287.18 as to the allocation of gain.<PRTPAGE P="147"/>
            </P>
            <P>(c) <E T="03">Unreasonable accumulation.</E> Noncompliance with the provisions of section 511 of the Act or the regulations in this part relative to the utilization of the deposited amounts may also, inasmuch as the provision of section 511(f) of the Act is then inapplicable, warrant an examination to ascertain whether such amounts constitute an unreasonable accumulation of earnings and profits within the meaning of part I (section 531 and following), subchapter G, chapter 1 of the Internal Revenue Code of 1954, or corresponding provisions of prior law. If amounts are deposited and the fund maintained in good faith for the purpose of construction, reconstruction, reconditioning, and acquisition of new vessels, or for the liquidation of purchase-money indebtedness on such vessels, such amounts will be deemed to have been accumulated for the reasonable needs of the business.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.24</SECTNO>
            <SUBJECT>Extent of tax liability.</SUBJECT>
            <P>(a) <E T="03">Declared value excess-profits tax.</E> Gain which is includible in gross income under § 287.23 shall be included in gross income for all income and excess-profits tax purposes, but not for the purposes of the declared value excess-profits tax and the capital stock tax as provided in section 511(i) of the Act. In lieu of any adjustment with respect to such declared value excess-profits tax, there is imposed for any taxable year ending on or before June 30, 1945, in which the gain is realized an additional tax of 1.1 percent of the amount of the gain. No additional capital stock tax liability is incurred.</P>
            <P>(b) <E T="03">Improper deposits.</E> In the case of deposits in the construction reserve fund of amounts derived from sources other than those specified in section 511 of the Act, or in the case of failure to deposit an amount equal to the “net proceeds” or “net indemnity” within the period prescribed in section 511(c) of the Act and § 287.15, the taxpayer obtains no suspension or postponement of any tax liability and the tax is collectible without regard to the provisions of section 511(c) of the Act.</P>
            <P>(c) <E T="03">Time for filing claim subsequent to election under section 511(c)(2).</E> If an election is made under section 511(c)(2) of the Act, and paragraph (a)(2) of § 287.12, and if computation or recomputation in accordance therewith is otherwise allowable but is prevented, on the date of filing of notice of such election, or within six months thereafter, by any statute of limitation, such computation or recomputation nevertheless shall be made notwithstanding such statute if a claim therefor is filed within six months after the date of making such election. If as the result of such computation or recomputation an overpayment is disclosed, a claim for refund on Form 843 should also be filed within such six months' period.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.25</SECTNO>
            <SUBJECT>Assessment and collection of deficiencies.</SUBJECT>
            <P>Any additional tax, including the 1.1 percent amount imposed by section 511(i) of the Act, due on account of withdrawal from a construction reserve fund, or failure to comply with section 511 of the Act or the regulations in this part, is collectible as a deficiency. Interest upon such deficiency will run from the date the withdrawal or noncompliance occurs. The amount of any deficiency, including interest and additions to the tax, determined as a result of such withdrawal or noncompliance, may be assessed, or a proceeding in court for the collection thereof may be begun without assessment, at any time and without regard to any period of limitations or any other provisions of law or rule of law, including the doctrine of res judicata.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.26</SECTNO>
            <SUBJECT>Reports by taxpayers.</SUBJECT>
            <P>(a) <E T="03">Information required.</E> With each income tax return filed for a taxable year during any part of which a construction reserve fund is in existence the taxpayer shall submit a statement setting forth a detailed analysis of such fund. The statement, which need not be on any prescribed form, shall include the following information with respect to the construction reserve fund:</P>
            <P>(1) The actual balance in the fund at the beginning and end of the taxable year;</P>
            <P>(2) The date, amount, and source of each deposit during the taxable year;</P>

            <P>(3) If any deposit referred to in paragraph (a)(2) of this section consists of <PRTPAGE P="148"/>proceeds from the sale, or indemnification of loss, of a vessel or share thereof, the amounts of the unrecognized gain;</P>
            <P>(4) The date, amount, and purpose of each expenditure or withdrawal from the fund; and</P>
            <P>(5) The date and amount of each contract, under which deposited funds are deemed to be obligated during the taxable year, for the construction, reconstruction, reconditioning, or acquisition of new vessels, or for the liquidation of purchase-money indebtedness on such vessels, and the identification of such vessels.</P>
            <P>(b) <E T="03">Records required.</E> Taxpayers shall keep such records and make such additional reports as the Commissioner of Internal Revenue or the Administration may require.
            </P>
            <NOTE>
              <HD SOURCE="HED">Note:</HD>
              <P>The records referred to in this section shall be retained for a period of six months beyond the termination or closing out of the reserve fund.</P>
            </NOTE>
            
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.27</SECTNO>
            <SUBJECT>Controlled corporation.</SUBJECT>
            <P>For the purpose of section 511 of the Act and the regulations in this part a new vessel is considered as constructed, reconstructed, reconditioned, or acquired by the taxpayer if constructed, reconstructed, reconditioned, or acquired by a corporation at a time when the taxpayer owns not less than 95 percent of the total number of shares of each class of stock of the corporation.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 287.28</SECTNO>
            <SUBJECT>Administrative jurisdiction.</SUBJECT>
            <P>Sections 287.3 to 287.11, inclusive, §§ 287.13 to 187.15, inclusive, and §§ 287.19 to 287.22, inclusive, deal primarily with matters under the jurisdiction of the Administration. Sections 287.12, 287.16 to 287.18, inclusive, and §§ 287.23 to 287.27, inclusive, deal primarily with matters under the jurisdiction of the Commissioner of Internal Revenue. Generally, matters relating to the establishment, maintenance, expenditure, and use of construction reserve funds and the construction, reconstruction, reconditioning, or acquisition of new vessels are under the jurisdiction of the Administration; and matters relating to the determination, assessment, and collection of taxes are under the jurisdiction of the Commissioner of Internal Revenue. Correspondence should be addressed to the particular authority having jurisdiction in the matter.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 289</EAR>
          <HD SOURCE="HED">PART 289—INSURANCE OF CONSTRUCTION-DIFFERENTIAL SUBSIDY VESSELS, OPERATING-DIFFERENTIAL SUBSIDY VESSELS AND OF VESSELS SOLD OR ADJUSTED UNDER THE MERCHANT SHIP SALES ACT 1946</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>289.1</SECTNO>
            <SUBJECT>Definition.</SUBJECT>
            <SECTNO>289.2</SECTNO>
            <SUBJECT>Vessels included.</SUBJECT>
            <SECTNO>289.3</SECTNO>
            <SUBJECT>Provision in subsidy agreements and mortgages.</SUBJECT>
            <SECTNO>289.4</SECTNO>
            <SUBJECT>Insurance by owners.</SUBJECT>
            <SECTNO>289.5</SECTNO>
            <SUBJECT>Insurance by the United States.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Sec. 204, 49 Stat. 1987, as amended; 46 U.S.C. 1114. Interpret or apply sec. 12, 60 Stat. 49, as amended; 50 U.S.C. App. 1745.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>General Order 67 Rev., 18 FR 230, Jan. 10, 1953, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 289.1</SECTNO>
            <SUBJECT>Definition.</SUBJECT>

            <P>For the purpose of this part, when reference is made to the phrase <E T="03">interest of the United States</E>, it shall mean:</P>
            <P>(a) As to vessels constructed or sold with construction-differential subsidy and/or national defense feature allowance under Title V or VII of the Merchant Marine Act, 1936, as amended, the value of the construction-differential subsidy allowance, plus the allowance for national defense features;</P>
            <P>(b) As to vessels constructed or sold under Title V or VII of the Merchant Marine Act of 1936, as amended, and adjusted in price pursuant to section 9 of the Merchant Ship Sales Act of 1946, the difference between the pre-war domestic cost and the statutory sales price as defined in the Merchant Ship Sales Act of 1946.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 289.2</SECTNO>
            <SUBJECT>Vessels included.</SUBJECT>
            <P>Vessels subject to the provisions of this part are:</P>

            <P>(a) All vessels which may in the future be constructed or sold with construction-differential subsidy allow-ances and/or national defense features allowance under Title V or VII of the Merchant Marine Act 1936, as amended.<PRTPAGE P="149"/>
            </P>
            <P>(b) All vessels which have previously been constructed or sold with construction-differential subsidy allow-ances and national defense features allowances under Title V or VII of the Merchant Marine Act, 1936, as amended;</P>
            <P>(c) All vessels which have previously been constructed with construction-differential subsidy allowances or national defense features allowance under Title V or VII of the Merchant Marine Act of 1936, as amended, and later adjusted in price pursuant to section 9 of the Merchant Ship Sales Act of 1946;</P>
            <P>(d) All vessels which are subsidized under operating-differential subsidy agreements.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 289.3</SECTNO>
            <SUBJECT>Provision in subsidy agreements and mortgages.</SUBJECT>
            <P>(a) All construction-differential subsidy agreements and mortgages relative to vessels covered in § 289.2(a) shall provide, wherever possible, that the Maritime Administrator may, in his discretion, require the owner to insure, with commercial underwriters, the interest of the United States.</P>
            <P>(b) All future construction-differential subsidy agreements and future operating subsidy agreements shall require that owners insure vessels covered in § 289.2 (a) and (d) in amounts acceptable to the Maritime Administration.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 289.4</SECTNO>
            <SUBJECT>Insurance by owners.</SUBJECT>
            <P>Owners of vessels covered in § 289.2 will not be required to arrange commercial insurance to cover the interest of the United States, exclusive of its mortgage interest, but the United States reserves the right to require, whenever the contracts so provide, that this be done at some future date, should it deem it necessary.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 289.5</SECTNO>
            <SUBJECT>Insurance by the United States.</SUBJECT>
            <P>The United States will self-insure its interest, exclusive of mortgage interest, as defined in § 289.1.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 295</EAR>
          <HD SOURCE="HED">PART 295—MARITIME SECURITY PROGRAM (MSP)</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Introduction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>295.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>295.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>295.3</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Establishment of MSP Fleet and Eligibility</HD>
              <SECTNO>295.10</SECTNO>
              <SUBJECT>Eligibility requirements.</SUBJECT>
              <SECTNO>295.11</SECTNO>
              <SUBJECT>Applications.</SUBJECT>
              <SECTNO>295.12</SECTNO>
              <SUBJECT>Priority for awarding agreements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Maritime Security Program Operating Agreements</HD>
              <SECTNO>295.20</SECTNO>
              <SUBJECT>General conditions.</SUBJECT>
              <SECTNO>295.21</SECTNO>
              <SUBJECT>MSP assistance conditions.</SUBJECT>
              <SECTNO>295.22</SECTNO>
              <SUBJECT>Commencement and termination of operations.</SUBJECT>
              <SECTNO>295.23</SECTNO>
              <SUBJECT>Reporting requirements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Payment and Billing Procedures</HD>
              <SECTNO>295.30</SECTNO>
              <SUBJECT>Payment.</SUBJECT>
              <SECTNO>295.31</SECTNO>
              <SUBJECT>Criteria for payment.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Appeals Procedures</HD>
              <SECTNO>295.40</SECTNO>
              <SUBJECT>Administrative determinations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>46 App. U.S.C. 1171 <E T="03">et seq.;</E> 46 App. U.S.C. 1114 (b), 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>62 FR 37737, July 15, 1997, unless otherwise noted..</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—Introduction</HD>
            <SECTION>
              <SECTNO>§ 295.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>This part prescribes regulations implementing the provisions of subtitle B (Maritime Security Fleet Program) of title VI of the Merchant Marine Act, 1936, as amended, governing Maritime Security Program payments for vessels operating in the foreign trade or mixed foreign and domestic commerce of the United States allowed under a registry endorsement issued under 46 U.S.C. 12105.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 295.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For the purposes of this part:</P>
              <P>(a) <E T="03">Act,</E> means the Merchant Marine Act, 1936, as amended by the Maritime Security Act of 1996 (MSA)(46 App. U.S.C. 1101 <E T="03">et seq.</E>).</P>
              <P>(b) <E T="03">Administrator,</E> means the Maritime Administrator, U.S. Maritime Administration (MARAD), U.S. Department of Transportation, who is authorized to administer the MSA.</P>
              <P>(c) <E T="03">Agreement Vessel,</E> means a vessel covered by a MSP Operating Agreement.<PRTPAGE P="150"/>
              </P>
              <P>(d) <E T="03">Applicant,</E> means an applicant for a MSP Operating Agreement.</P>
              <P>(e) <E T="03">Bulk Cargo,</E> means cargo that is loaded and carried in bulk without mark or count.</P>
              <P>(f) <E T="03">Chapter 121,</E> means the vessel documentation provisions of chapter 121 of title 46, United States Code.</P>
              <P>(g) <E T="03">Citizen of the United States,</E> means an individual or a corporation, partnership or association as determined under section 2 of the Shipping Act, 1916, as amended (46 App. U.S.C. 802).</P>
              <P>(h) <E T="03">Contracting Officer,</E> means the Associate Administrator for National Security, MARAD.</P>
              <P>(i) <E T="03">Contractor,</E> means the owner or operator of a vessel that enters into a MSP Operating Agreement for the vessel with MARAD pursuant to § 295.20 of this part.</P>
              <P>(j) <E T="03">DOD,</E> means the U.S. Department of Defense.</P>
              <P>(k) <E T="03">Domestic Trade,</E> means trade between two or more ports and/or points in the United States.</P>
              <P>(l) <E T="03">Eligible Vessel,</E> means a vessel that meets the requirements of § 295.10(b) of this part.</P>
              <P>(m) <E T="03">Emergency Preparedness Program Agreement,</E> means the agreement, required by section 653 of the act, between a Contractor and the Secretary of Transportation (acting through MARAD) to make certain commercial transportation resources available during time of war or national emergency.</P>
              <P>(n) <E T="03">Enrollment,</E> means the entry into a MSP Operating Agreement with the MARAD to operate a vessel(s) in the MSP Fleet in accordance with § 295.20 of this part.</P>
              <P>(o) <E T="03">Fiscal Year,</E> means any annual period beginning on October 1 and ending on September 30.</P>
              <P>(p) <E T="03">LASH Vessel,</E> means a lighter aboard ship vessel.</P>
              <P>(q) <E T="03">Militarily Useful,</E> is defined according to DOD Joint Strategic Planning Capabilities Plan (JSCAP) guidance as follows:</P>
              <P>(1) <E T="03">U.S. Sources</E>—All active and inactive ocean-going ships (and certain other specially selected vessels) within the following types and criteria from United States sources with a minimum speed of 12 knots.</P>
              <P>(2) <E T="03">Dry Cargo</E>—All dry cargo ships, including integrated tug/barges (ITBs) with a minimum capacity of 6,000 tons (DWT) capable of carrying, without significant modification, any of the following cargoes: unit equipment, ammunition, or sustaining supplies.</P>
              <P>(r) <E T="03">MSP Fleet,</E> means the fleet of vessels operating under MSP Operating Agreements.</P>
              <P>(s) <E T="03">MSP Operating Agreement,</E> means the MSP Operating Agreement, providing for MSP payments entered into by a Contractor and MARAD.</P>
              <P>(t) <E T="03">MSP Payments,</E> means the payments made for the operation of U.S.-flag vessels in the foreign trade or mixed foreign and domestic trade of the United States allowed under a registry endorsement issued under 46 U.S.C. 12105, to maintain intermodal shipping capability and to meet national defense and security requirements in accordance with the terms and conditions of the MSP Operating Agreement.</P>
              <P>(u) <E T="03">Ocean Common Carrier,</E> means a carrier that meets the requirements of the MSA, section 654(3).</P>
              <P>(v) <E T="03">ODS,</E> means Operating-Differential Subsidy provided by Subtitle A, Title VI, of the Act.</P>
              <P>(w) <E T="03">Operating Day,</E> means any day during which a vessel is operated in accordance with the terms and conditions of the MSP Operating Agreement.</P>
              <P>(x) <E T="03">Related party,</E> means:</P>
              <P>(1) a holding company, subsidiary, affiliate, or associate of a contractor who is a party to an operating agreement under Subtitle B, Title VI, of the Act; and</P>
              <P>(2) an officer, director, agent, or other executive of a contractor or of a person referred to in paragraph (x)(1) of this section.</P>
              <P>(y) <E T="03">Roll-on/Roll-off Vessel,</E> means a vessel that has ramps allowing cargo to be loaded and discharged by means of wheeled vehicles so that cranes are not required.</P>
              <P>(z) <E T="03">Secretary,</E> means the Secretary of Transportation.</P>
              <P>(aa) <E T="03">United States Documented Vessel,</E> means a vessel documented under Chapter 121 of Title 46, United States Code.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="151"/>
              <SECTNO>§ 295.3</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
              <P>In special circumstances, and for good cause shown, the procedures prescribed in this part may be waived in writing by the Maritime Administration, by mutual agreement of the Maritime Administration and the Contractor, so long as the procedures adopted are consistent with the Act and with the objectives of these regulations.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Establishment of MSP Fleet and Eligibility</HD>
            <SECTION>
              <SECTNO>§ 295.10</SECTNO>
              <SUBJECT>Eligibility requirements.</SUBJECT>
              <P>(a) <E T="03">Applicant.</E> Any person may apply to MARAD for Enrollment of Eligible Vessels in MSP Operating Agreements for inclusion in the MSP Fleet pursuant to the provisions of subtitle B, title VI, of the act. Applications shall be addressed to the Secretary, Maritime Administration, 400 Seventh Street, S.W., Washington, D.C. 20590.</P>
              <P>(b) <E T="03">Eligible Vessel.</E> A vessel eligible for enrollment in a MSP Operating Agreement shall be self-propelled and meet the following requirements:</P>
              <P>(1) <E T="03">Vessel Type</E>—(i) <E T="03">Liner Vessel.</E> The vessel shall be operated by a person as an Ocean Common Carrier.</P>
              <P>(ii) <E T="03">Specialty vessel.</E> Whether in commercial service, on charter to the DOD, or in other employment, the vessel shall be either:</P>
              <P>(A) a Roll-on/Roll-off vessel with a carrying capacity of at least 80,000 square feet or 500 twenty-foot equivalent units; or</P>
              <P>(B) a LASH vessel with a barge capacity of at least 75 barges; or</P>
              <P>(iii) <E T="03">Other vessel.</E> Any other type of vessel that is determined by the MARAD to be suitable for use by the United States for national defense or military purposes in time of war or national emergency; and</P>
              <P>(2) <E T="03">Vessel Requirements</E>—(i) <E T="03">U.S. Documentation.</E> Except as provided in paragraph (b)(2)(iv) of this section, the vessel is a U.S.-documented vessel; and</P>
              <P>(ii) <E T="03">Age.</E> Except as provided in paragraph (b)(2)(iii), on the date a MSP Operating Agreement covering the vessel is first entered into is:</P>
              <P>(A) a LASH Vessel that is 25 years of age or less; or</P>
              <P>(B) any other type of vessel that is 15 years of age or less.</P>
              <P>(iii) <E T="03">Waiver Authority.</E> In accordance with section 651(b)(2) of the act, MARAD is authorized to waive the application of paragraph (b)(2)(ii) of this section if MARAD, in consultation with the Secretary of Defense, determines that the waiver is in the national interest.</P>
              <P>(iv) <E T="03">Intent to document U.S.</E> Although the vessel may not be a U.S.-documented vessel, it shall be considered an Eligible Vessel if the vessel meets the criteria for documentation under 46 U.S.C. chapter 121, the vessel owner has demonstrated an intent to have the vessel documented under 46 U.S.C. chapter 121, and the vessel will be less than 10 years of age on the date of that documentation; and</P>
              <P>(3) <E T="03">MARAD's determination.</E> MARAD determines that the vessel is necessary to maintain a United States presence in international commercial shipping and the applicant possesses the ability, experience, resources and other qualifications necessary to execute the obligations of the MSP Operating Agreement, or MARAD, after consultation with the Secretary of Defense, determines that the vessel is militarily useful for meeting the sealift needs of the United States.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 295.11</SECTNO>
              <SUBJECT>Applications.</SUBJECT>
              <P>(a) <E T="03">Action by MARAD</E>—(1) <E T="03">Time Deadlines.</E> Not later than 30 days after the enactment of the Maritime Security Act of 1996, Pub. L. 104-239, MARAD shall accept applications for Enrollment of vessels in the MSP Fleet. Within 90 days after receipt of a completed application, MARAD shall enter into a MSP Operating Agreement with the applicant or provide in writing the reason for denial of that application.</P>
              <P>(2) <E T="03">Closure of Applications.</E> Applications for MSP Operating Agreements shall be made only at such time as, and in response to, publication of invitations to apply by MARAD in the <E T="04">Federal Register.</E> After the Administrator has fully allocated authorized contracting authority through the award of the maximum number of vessels allowed under § 295.30(a), MARAD will not accept any applications for award of new Operating Agreements <PRTPAGE P="152"/>until additional contracting authority becomes available, or existing contracting authority reverts back to MARAD.</P>
              <P>(3) <E T="03">Reflagging for Eligible vessels.</E> Except as provided in paragraph (a)(4) of this section, an applicant may remove a vessel from U.S. registry without MARAD approval if an application for a MSP Operating Agreement has been filed for that vessel, the applicant is qualified, and it has been determined by MARAD to be eligible under MSA section 651(b)(1) under a priority for which sufficient funds are available and the Administrator has not awarded an Operating Agreement for the vessel within 90 days of that application.</P>
              <P>(4) <E T="03">Reflagging ODS and MSC chartered vessels.</E> Vessels eligible under MSA section 651(b)(1) which are also subject to ODS contracts or on charter to MSC, and for which applications have been denied pursuant to § 295.11(a)(1) of this part, may be removed from U.S. registry only after those agreements have expired and only after the age requirement in section 9(e)(3) of the Shipping Act, 1916 (46 App. U.S.C. 808) has been met.</P>
              <P>(b) <E T="03">Action by the Applicant.</E> Applicants for MSP Payments shall submit information on the following:</P>
              <P>(1) <E T="03">Intermodal network.</E> A statement describing its operating and transportation assets, including vessels, container stocks, trucks, railcars, terminal facilities, and systems used to link such assets together;</P>
              <P>(2) <E T="03">Diversity of trading patterns.</E> A list of countries and trade routes serviced along with the types and volumes of cargo carried;</P>
              <P>(3) <E T="03">Vessel construction date;</E>
              </P>
              <P>(4) <E T="03">Vessel type and size;</E> and</P>
              <P>(5) <E T="03">Military Utility.</E> An assessment of the value of the vessel to DOD sealift requirements.</P>
              <APPRO>(Approved by the Office of Management and Budget under Control Number 2133-0525)</APPRO>
            </SECTION>
            <SECTION>
              <SECTNO>§ 295.12</SECTNO>
              <SUBJECT>Priority for awarding agreements.</SUBJECT>
              <P>Subject to the availability of appropriations, MARAD shall enter into individual MSP Operating Agreements for Eligible Vessels according to the following priorities:</P>
              <P>(a) <E T="03">First priority requirements.</E> First priority shall be accorded to any Eligible Vessel meeting the following requirements:</P>
              <P>(1) <E T="03">U.S. citizen ownership.</E> Vessels owned and operated by persons who are Citizens of the United States as defined in § 295.2; or</P>
              <P>(2) <E T="03">Other corporations.</E> Vessels less than 10 years of age and owned and operated by a corporation that is:</P>
              <P>(i) eligible to document a vessel under 46 U.S.C. chapter 121; and</P>
              <P>(ii) affiliated with a corporation operating or managing for the Secretary of Defense other vessels documented under 46 U.S.C. chapter 121, or chartering other vessels to the Secretary of Defense.</P>
              <P>(3) <E T="03">Limitation on number of vessels.</E> Limitation on the total number of Eligible Vessels awarded under paragraph (a) of this section shall be:</P>
              <P>(i) For any U.S. citizen under paragraph (a)(1), the number of vessels may not exceed the sum of:</P>
              <P>(A) the number of U.S.-flag documented vessels that the Contractor or a related party operated in the foreign commerce of the United States on May 17, 1995, except mixed coastwise and foreign commerce; and</P>
              <P>(B) the number of U.S.-flag documented vessels the person chartered to the Secretary of Defense on that date; and</P>
              <P>(ii) For any corporation under paragraph (a)(2) of this section, not more than five Eligible Vessels.</P>
              <P>(4) <E T="03">Related party.</E> For the purpose of this section a related party with respect to a person shall be treated as the person.</P>
              <P>(b) <E T="03">Second priority requirements.</E> To the extent that appropriated funds are available after applying the first priority in paragraph (a) of this section, the MARAD shall enter into individual MSP Operating Agreements for Eligible Vessels owned and operated by a person who is:</P>
              <P>(1) <E T="03">U.S. citizen.</E> A Citizen of the United States, as defined in § 295.2(g), that has not been awarded a MSP Operating Agreement under the priority in paragraph (a) of this section, or</P>
              <P>(2) <E T="03">Other.</E> A person (individual or entity) eligible to document a vessel <PRTPAGE P="153"/>under 46 U.S.C. chapter 121, and affiliated with a person or corporation operating or managing other U.S.-documented vessels for the Secretary of Defense or chartering other vessels to the Secretary of Defense.</P>
              <P>(c) <E T="03">Third priority.</E> To the extent that appropriated funds are available after applying the first and second priority, any other Eligible Vessel.</P>
              <P>(d) <E T="03">Number of MSP Operating Agreements Awarded.</E> If appropriated funds are not sufficient to award agreements to all vessels within a priority set forth herein, MARAD shall award to each eligible applicant in that priority a number of Operating Agreements that bears approximately the same ratio to the total number of Operating Agreements requested under that priority, and for which timely applications have been made, as the amount of appropriations available for MSP Operating Agreements for Eligible Vessels in the priority bears to the amount of appropriations necessary for MSP Operating Agreements for all Eligible Vessels in the priority.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Maritime Security Program Operating Agreements</HD>
            <SECTION>
              <SECTNO>§ 295.20</SECTNO>
              <SUBJECT>General conditions.</SUBJECT>
              <P>(a) <E T="03">Approval.</E> MARAD may approve applications to enter into a MSP Operating Agreement and make MSP Payments with respect to vessels that are determined to be necessary to maintain a United States presence in international commercial shipping or those that are deemed, after consultation with the Secretary of Defense, to be militarily useful for meeting the sealift needs of the United States in national emergencies.</P>
              <P>(b) <E T="03">Effective date</E>—(1) <E T="03">General Rule.</E> Unless otherwise provided in the contract, the effective date of a MSP Operating Agreement is the date when executed by the Contractor and MARAD.</P>
              <P>(2) <E T="03">Exceptions.</E> In the case of an Eligible Vessel to be included in a MSP Operating Agreement that is subject to an ODS contract under subtitle A, title VI, of the act or on charter to the U.S. Government, other than a charter under the provisions of an Emergency Preparedness Program Agreement provided by section 653 of the act, unless an earlier date is requested by the applicant, the effective date for a MSP Operating Agreement shall be:</P>
              <P>(i) The expiration or termination date of the ODS contract or Government charter covering the vessel, respectively, or</P>
              <P>(ii) Any earlier date on which the vessel is withdrawn from that contract or charter.</P>
              <P>(c) <E T="03">Replacement Vessels.</E> MARAD may approve the replacement of an Eligible Vessel in a MSP Operating Agreement provided the replacement vessel is eligible under § 295.10.</P>
              <P>(d) <E T="03">Notice to shipbuilders.</E> The Contractor agrees that no later than 30 days after soliciting any offer or bid for the construction of any vessel in a foreign shipyard, and before entering into any contract for construction of a vessel in a foreign shipyard, the Contractor shall provide notice of its intent to enter into such a contract (for vessels being considered for U.S.-flag registry) to MARAD. Within 10 business days after the receipt of such notification, MARAD shall issue a notice in the <E T="04">Federal Register</E> of the Contractor's intent. The Contractor is prohibited from entering into any such contract until 10 business days after the date of publication of such notice.</P>
              <P>(e) <E T="03">Early termination.</E> A MSP Operating Agreement shall terminate on a date specified by the Contractor if the Contractor notifies MARAD not later than 60 days before the effective date of the proposed termination, that the Contractor intends to terminate the Agreement. The Contractor shall be bound by the provisions relating to vessel documentation and national security commitments to the extent and for the period contained in section 652(m) of the Act.</P>
              <P>(f) <E T="03">Non-renewal for lack of funds.</E> If, by the first day of a fiscal year, insufficient funds have been appropriated under section 655 of the act for that fiscal year, MARAD shall notify the Congress that MSP Operating Agreements for which insufficient funds are available will be terminated on the 60th day of that fiscal year if sufficient funds are not appropriated or otherwise made available by that date. If only partial funding is appropriated by the 60th day <PRTPAGE P="154"/>of such fiscal year, then MSP Operating Agreements for which funds are not available shall be terminated using the pro rata distribution method used to award MSP Operating Agreements set forth in § 295.12(d). With respect to each terminated agreement the Contractor shall be released from any further obligation under the agreement, and the Contractor may transfer and register the applicable vessel under a foreign registry deemed acceptable by MARAD. In the event that no funds are appropriated, then all MSP Operating Agreements shall be terminated and each Contractor shall be released from its obligations under the agreement. Final payments under the terminated agreements shall be made in accordance with § 295.30. To the extent that funds are appropriated in a subsequent fiscal year, existing operating agreements may be renewed if mutually acceptable to the Administrator and the Contractor and the MSP vessel remains eligible.</P>
              <P>(g) <E T="03">Operation under a Continuing Resolution.</E> In the event a Continuing Resolution (CR) is in place that does not provide sufficient appropriations to fully meet obligations under MSP Operating Agreements, a Contractor may request termination of the agreement in accordance with paragraph (f), herein, and § 295.30.</P>
              <P>(h) <E T="03">Requisition authority.</E> To the extent section 902 of the act is applicable to any vessel transferred foreign under this section, the vessel shall remain available to be requisitioned by the Maritime Administration under that provision of law.</P>
              <P>(i) <E T="03">Transfer of Operating Agreements.</E> A Contractor subject to an Agreement may transfer that Agreement (including all rights and obligations thereunder) to any person eligible to enter into an Agreement under the same priority established in section 652(i)(1)(A) of the act as the Contractor, provided that:</P>
              <P>(1) The Contractor gives notice of any such transfer to the Maritime Administrator by filing a completed application;</P>
              <P>(2) The transfer is not disapproved in writing by the Maritime Administrator within 90 days of the notification; and</P>
              <P>(3) the vessel to be covered by the Agreement after transfer is the same vessel originally covered by the Agreement or is an eligible vessel under section 651(b) of the act and is the same type, and comparable to, the vessel originally covered by the Agreement.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 295.21</SECTNO>
              <SUBJECT>MSP assistance conditions.</SUBJECT>
              <P>(a) <E T="03">Term of MSP Operating Agreement.</E> MSP Operating Agreements shall be effective for a period of not more than one fiscal year, and unless otherwise specified in the Agreement, shall be renewable, subject to the availability of appropriations or amounts otherwise made available, for each subsequent fiscal year through the end of FY 2005. In the event appropriations are enacted after October 1 with respect to any subsequent fiscal year, October 1 shall be considered the effective date of the renewed agreement, provided sufficient funds are made available and subject to the Contractor's rights for early termination pursuant to section 652(m) of the act.</P>
              <P>(b) <E T="03">Terms under a Continuing Resolution (CR).</E> In the event funds are available under a CR, the terms and conditions of the MSP Operating Agreements shall be in force provided sufficient funds are available to fully meet obligations under MSP Operating Agreements, and only for the period stipulated in the applicable CR. If funds are not appropriated at sufficient levels for any portion of a fiscal year, the terms and conditions of any applicable MSP Operating Agreement may be voided and the Contractor may request termination of the MSP Operating Agreement in accordance with § 295.20(f).</P>
              <P>(c) <E T="03">National security requirements.</E> Each MSP Operating Agreement shall require the owner or operator of an Eligible Vessel included in that agreement to enter into an Emergency Preparedness Program Agreement pursuant to section 653 of the act.</P>
              <P>(d) <E T="03">Vessel operating requirements.</E> The MSP Operating Agreement shall require that during the period an Eligible Vessel is included in that Agreement, the Eligible Vessel shall:</P>
              <P>(1) <E T="03">Documentation.</E> Be documented as a U.S.-flag vessel under 46 U.S.C. chapter 121; and<PRTPAGE P="155"/>
              </P>
              <P>(2) <E T="03">Operation.</E> Be operated exclusively in the U.S.-foreign trade or in mixed foreign and domestic trade allowed under a registry endorsement issued under 46 U.S.C. 12105, and shall not otherwise be operated in the coastwise trade of the United States.</P>
              <P>(e) <E T="03">Limitations.</E> Limitations on Contractors with respect to the operation of foreign-flag vessels shall be in accordance with section 804 of the act, as amended. The operation of vessels, other than Agreement Vessels, in the noncontiguous trades shall be limited in accordance with service levels and conditions permitted in section 656 of the act.</P>
              <P>(f) <E T="03">Non-Contiguous Domestic Trade.</E> [Reserved]</P>
              <P>(g) <E T="03">Obligation of the U.S. Government.</E> The amounts payable as MSP Payments under a MSP Operating Agreement shall constitute a contractual obligation of the United States Government to the extent of available appropriations.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 295.22</SECTNO>
              <SUBJECT>Commencement and termination of operations.</SUBJECT>
              <P>(a) <E T="03">Time frames.</E> A Contractor that has been awarded a MSP Operating Agreement shall commence operations of the Eligible Vessel, under the applicable agreement or a subsequently renewed agreement, within the time frame specified as follows:</P>
              <P>(1) <E T="03">Existing vessel.</E> Within one year after the initial effective date of the MSP Operating Agreement in the case of a vessel in existence on that date and after notification to MARAD within 30 days of the Contractor's intent; or</P>
              <P>(2) <E T="03">New building.</E> Within 30 months after the initial effective date of the MSP Operating Agreement in the case of a vessel to be constructed after that date.</P>
              <P>(b) <E T="03">Unused authority.</E> In the event of a termination of unused authority pursuant to paragraph (a) of this section, such authority shall revert to MARAD.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 295.23</SECTNO>
              <SUBJECT>Reporting requirements.</SUBJECT>
              <P>The Contractor shall submit to the Director, Office of Financial Approvals, Maritime Administration, 400 Seventh St., SW., Washington, DC 20590, one of the following reports, including management footnotes where necessary to make a fair financial presentation:</P>
              <P>(a) <E T="03">Form MA-172.</E> Not later than 120 days after the close of the Contractor's semiannual accounting period, a Form MA-172 on a semiannual basis, in accordance with 46 CFR 232.6; or</P>
              <P>(b) <E T="03">Financial Statement.</E> Not later than 120 days after the close of the Contractor's annual accounting period, an audited annual financial statement in accordance with 46 CFR 232.6 and the most recent vessel operating cost data submitted as part of its Emergency Preparedness Agreement.</P>
              <APPRO>(Approved by the Office of Management and Budget under Control Number 2133-0525.)</APPRO>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Payment and Billing Procedures</HD>
            <SECTION>
              <SECTNO>§ 295.30</SECTNO>
              <SUBJECT>Payment.</SUBJECT>
              <P>(a) <E T="03">Amount payable.</E> A MSP Operating Agreement shall provide, subject to the availability of appropriations and to the extent the agreement is in effect, for each Agreement Vessel, an annual payment of $2,100,000 for each fiscal year. This amount shall be paid in equal monthly installments at the end of each month. The annual amount payable shall not be reduced except as provided in paragraph (b) of this section and § 295.31(a)(3).</P>
              <P>(b) <E T="03">Reductions in amount payable.</E> (1) The annual amount otherwise payable under a MSP Operating Agreement shall be reduced on a pro rata basis for each day less than 320 in a fiscal year that an Agreement Vessel is not operated exclusively in the U.S.-foreign trade or in mixed foreign and domestic trade allowed under a registry endorsement issued under 46 U.S.C. 12105. Days during which the vessel is drydocked or undergoing survey, inspection, or repair shall be considered to be days during which the vessel is operated, provided the total of such days within a fiscal year does not exceed 30 days, unless prior to the expiration of a vessel's 30 day period, approval is obtained from MARAD for an extension of the 30 day provision.</P>

              <P>(2) There shall be no payment for any day that a MSP Agreement Vessel is engaged in transporting more than 7,500 tons (using the U.S. English <PRTPAGE P="156"/>standard of short tons, which converts to 6,696.75 long tons, or 6,803.85 metric tons) of civilian bulk preference cargoes pursuant to section 901(a), 901(b), or 901b of the act, provided that it is bulk cargo.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 295.31</SECTNO>
              <SUBJECT>Criteria for payment</SUBJECT>
              <P>(a) <E T="03">Submission of voucher.</E> For contractors operating under more than one MSP Operating Agreement, the contractor may submit a single monthly voucher applicable to all its agreements. Each voucher submission shall include a certification that the vessel(s) for which payment is requested were operated in accordance with § 295.21(d) and applicable MSP Operating Agreements with MARAD, and consideration shall be given to reductions in amounts payable as set forth in § 295.30. All submissions shall be forwarded to the Director, Office of Accounting, MAR-330 Room 7325, Maritime Administration, 400 Seventh Street, SW., Washington, DC 20590. Payments shall be paid and processed under the terms and conditions of the Prompt Payment Act, 31 U.S.C. 3901.</P>
              <P>(1) Payments shall be made per vessel, in equal monthly installments, of $175,000.</P>

              <P>(2) To the extent that reductions under § 295.30(b) are known, such reductions shall be applied at the time of the current billing. The daily reduction amounts shall be based on the annual amounts in 295.30(a) of this part divided by 365 days (366 days in leap years) and rounded to the nearest cent. Daily reduction amounts shall be applied as follows:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">FY 1997—$5,753.42</FP>
                <FP SOURCE="FP-1">FY 1998—$5,753.42</FP>
                <FP SOURCE="FP-1">FY 1999—$5,753.42</FP>
                <FP SOURCE="FP-1">FY 2000—$5,737.70</FP>
                <FP SOURCE="FP-1">FY 2001—$5,753.42</FP>
                <FP SOURCE="FP-1">FY 2002—$5,753.42</FP>
                <FP SOURCE="FP-1">FY 2003—$5,753.42</FP>
                <FP SOURCE="FP-1">FY 2004—$5,737.70</FP>
                <FP SOURCE="FP-1">FY 2005—$5,753.42</FP>
              </EXTRACT>
              
              <P>(3) In the event a monthly payment is for a period less than a complete month, that month's payment shall be calculated by multiplying the appropriate daily rate in § 295.31(a)(2) by the actual number of days the Eligible Vessel operated in accordance with § 295.21.</P>
              <P>(4) MARAD may require, for good cause, that a portion of the funds payable under this section be withheld if the provisions of § 295.21(d) have not been met.</P>
              <P>(5) Amounts owed to MARAD for reductions applicable to a prior billing period shall be electronically transferred using MARAD's prescribed format, or a check may be forwarded to the Maritime Administration, P.O. Box 845133, Dallas, Texas 75284-5133, or the amount owed can be credited to MARAD by offsetting amounts payable in future billing periods.</P>
              <P>(b) [Reserved]</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Appeals Procedures</HD>
            <SECTION>
              <SECTNO>§ 295.40</SECTNO>
              <SUBJECT>Administrative determinations.</SUBJECT>
              <P>(a) <E T="03">Policy.</E> A Contractor who disagrees with the findings, interpretations or decisions of the Contracting Officer with respect to the administration of this part may submit an appeal to the Maritime Administrator. Such appeals shall be made in writing to the Maritime Administrator, within 60 days following the date of the document notifying the Contractor of the administrative determination of the Contracting Officer. Such an appeal should be addressed to the Maritime Administrator, Att.: MSP Contract Appeals, Maritime Administration, 400 Seventh St., S.W. Washington, D.C. 20590.</P>
              <P>(b) <E T="03">Process.</E> The Maritime Administrator may require the person making the request to furnish additional information, or proof of factual allegations, and may order any proceeding appropriate in the circumstances. The decision of the Maritime Administrator shall be final.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="157"/>
        <HD SOURCE="HED">SUBCHAPTER D—VESSEL FINANCING ASSISTANCE</HD>
        <PART>
          <EAR>Pt. 298</EAR>
          <HD SOURCE="HED">PART 298—OBLIGATION GUARANTEES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Introduction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>298.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>298.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>298.3</SECTNO>
              <SUBJECT>Applications.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Eligibility</HD>
              <SECTNO>298.10</SECTNO>
              <SUBJECT>Citizenship.</SUBJECT>
              <SECTNO>298.11</SECTNO>
              <SUBJECT>Vessel requirements.</SUBJECT>
              <SECTNO>298.12</SECTNO>
              <SUBJECT>Applicant and operator's qualifications.</SUBJECT>
              <SECTNO>298.13</SECTNO>
              <SUBJECT>Financial requirements.</SUBJECT>
              <SECTNO>298.14</SECTNO>
              <SUBJECT>Economic soundness.</SUBJECT>
              <SECTNO>298.15</SECTNO>
              <SUBJECT>Investigation fee.</SUBJECT>
              <SECTNO>298.16</SECTNO>
              <SUBJECT>Substitution of participants.</SUBJECT>
              <SECTNO>298.17</SECTNO>
              <SUBJECT>Evaluation of applications.</SUBJECT>
              <SECTNO>298.18</SECTNO>
              <SUBJECT>Financing Shipyard Projects.</SUBJECT>
              <SECTNO>298.19</SECTNO>
              <SUBJECT>Financing Eligible Export Vessels.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Guarantees</HD>
              <SECTNO>298.20</SECTNO>
              <SUBJECT>Term, redemptions, and interest rate.</SUBJECT>
              <SECTNO>298.21</SECTNO>
              <SUBJECT>Limits.</SUBJECT>
              <SECTNO>298.22</SECTNO>
              <SUBJECT>Amortization of Obligations.</SUBJECT>
              <SECTNO>298.23</SECTNO>
              <SUBJECT>Refinancing.</SUBJECT>
              <SECTNO>298.24</SECTNO>
              <SUBJECT>Financing a Vessel more than a year after delivery.</SUBJECT>
              <SECTNO>298.25</SECTNO>
              <SUBJECT>Excess interest or other consideration.</SUBJECT>
              <SECTNO>298.26</SECTNO>
              <SUBJECT>Lease payments.</SUBJECT>
              <SECTNO>298.27</SECTNO>
              <SUBJECT>Advances.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Documentation</HD>
              <SECTNO>298.30</SECTNO>
              <SUBJECT>Nature and content of Obligations.</SUBJECT>
              <SECTNO>298.31</SECTNO>
              <SUBJECT>Mortgage.</SUBJECT>
              <SECTNO>298.32</SECTNO>
              <SUBJECT>Required provisions in documentation.</SUBJECT>
              <SECTNO>298.33</SECTNO>
              <SUBJECT>Escrow fund.</SUBJECT>
              <SECTNO>298.34</SECTNO>
              <SUBJECT>Construction fund.</SUBJECT>
              <SECTNO>298.35</SECTNO>
              <SUBJECT>Title XI Reserve Fund and Financial Agreement.</SUBJECT>
              <SECTNO>298.36</SECTNO>
              <SUBJECT>Guarantee Fee.</SUBJECT>
              <SECTNO>298.37</SECTNO>
              <SUBJECT>Examination and audit.</SUBJECT>
              <SECTNO>298.38</SECTNO>
              <SUBJECT>Partnership agreements and limited liability company agreements.</SUBJECT>
              <SECTNO>298.39</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Defaults and Remedies, Reporting Requirements, Applicability of Regulations.</HD>
              <SECTNO>298.40</SECTNO>
              <SUBJECT>Defaults.</SUBJECT>
              <SECTNO>298.41</SECTNO>
              <SUBJECT>Remedies after default.</SUBJECT>
              <SECTNO>298.42</SECTNO>
              <SUBJECT>Reporting requirements—financial statements.</SUBJECT>
              <SECTNO>298.43</SECTNO>
              <SUBJECT>Applicability of the regulations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart F—Administration [Reserved]</RESERVED>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>46 App. U.S.C. 1114(b), 1271 <E T="03">et seq.</E>; 49 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>65 FR 45152, July 20, 2000, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—Introduction</HD>
            <SECTION>
              <SECTNO>§ 298.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>

              <P>This part prescribes regulations implementing Title XI of the Merchant Marine Act, 1936, as amended, governing Federal ship financing assistance (46 App. U.S.C. 1271 <E T="03">et seq.</E>). This part uses “you” and “we” throughout. You and your refer to the applicant for Title XI financing assistance unless we note or imply otherwise. We, us, and our refer to the Maritime Administration, the Secretary of the Maritime Administration, or the Secretary of Transportation, as applicable.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For the purpose of this part:</P>
              <P>
                <E T="03">Act</E> means the Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1101 through 1294).</P>
              <P>
                <E T="03">Actual Cost of a Vessel or Shipyard Project</E> means, as of any specified date, the aggregate, as determined by us, of all amounts paid by or for the account of the Obligor on or before that date and all amounts which the Obligor is then obligated to pay from time to time thereafter, for the construction, reconstruction or reconditioning of such Vessel or Shipyard Project.</P>
              <P>
                <E T="03">Advanced Shipbuilding Technology</E> means:</P>
              <P>(1) Numerically controlled machine tools, robots, automated process control equipment, computerized flexible manufacturing systems, associated computer software, and other technology for improving shipbuilding and related industrial production which advance the state-of-the-art; and</P>

              <P>(2) Novel techniques and processes designed to improve shipbuilding quality, productivity, and practice, and to <PRTPAGE P="158"/>promote sustainable development, including engineering design, quality assurance, concurrent engineering, continuous process production technology, energy efficiency, waste minimization, design for recyclability or parts reuse, inventory management, upgraded worker skills, and communications with customers and suppliers; and</P>
              <P>(3) Other elements contributing to a shipyard's efficiency or productivity assisting it to more effectively operate in the shipbuilding industry.</P>
              <P>
                <E T="03">Citizen of the United States</E> means a person who, if an individual, is a Citizen of the United States by birth, naturalization or as otherwise authorized by law or, if other than an individual, meets the requirements of Section 2 of the Shipping Act, 1916, as amended (46 App. U.S.C. 802), as further described at 46 CFR 221.3(c).</P>
              <P>
                <E T="03">Closing</E> means a meeting of various participants or their representatives in a Title XI financing, at which a commitment to issue Guarantees is executed, or at which all or part of the Obligations are authenticated and issued and the proceeds are made available for a purpose set forth in section 1104(a) of the Act, or at which a Vessel is delivered and a Mortgage is executed as security to us or a Shipyard Project is completed and a Mortgage or other security is executed to us.</P>
              <P>
                <E T="03">Commitment Closing</E> means a meeting of various participants or their representatives in a Title XI financing at which a commitment to issue Guarantees is executed and the forms of the Obligations and the related Title XI documents are also either agreed upon or executed.</P>
              <P>
                <E T="03">Depository</E> means a bank or other financial institution organized and doing business under the laws of the United States, any State or territory thereof, the District of Columbia or the Commonwealth of Puerto Rico that is authorized under such laws to exercise corporate trust powers, is a member of the Federal Deposit Insurance Corporation, and accepts deposits for purposes of implementing the program authorized by Title XI of the Act; but in the case of an Eligible Export Vessel can also mean, with our specific approval of foreign branches, but not the foreign subsidiaries, of such United States financial institutions.</P>
              <P>
                <E T="03">Depreciated Actual Cost of a Vessel or Shipyard Project</E> means the Actual Cost of the Vessel or Shipyard Project, as defined in this section (less a residual value of 2<FR>1/2</FR> percent of United States shipyard construction cost or, in the case of Shipyard Project, a residual value as appropriate), depreciated on a straightline basis over the useful life of the Vessel or Shipyard Project as determined by us, not to exceed twenty-five years from the date the Vessel or Shipyard Project was delivered by the shipbuilder or manufacturer or, if the Vessel or Shipyard Project has been reconstructed or reconditioned, the Actual Cost of the Vessel or Shipyard Project depreciated on a straightline basis from the date the Vessel or Shipyard Project was delivered by the shipbuilder or manufacturer to the date of such reconstruction or reconditioning, on the basis of the original useful life of the Vessel or Shipyard Project, and from the date of said reconstruction or reconditioning on a straightline basis and on the basis of a useful life of the Vessel or Shipyard Project determined by us, plus all amounts paid or obligated to be paid for the reconstruction or reconditioning, depreciated on a straightline basis and on the basis of a useful life of the Vessel or Shipyard Project determined by us.</P>
              <P>
                <E T="03">Documentation</E> means all or part of the agreements relating to an entire Title XI financing which must be furnished to us, irrespective of whether we are a party to each agreement.</P>
              <P>
                <E T="03">Eligible Export Vessel</E> means a Vessel constructed, reconstructed, or reconditioned in the United States for use in world-wide trade which will, upon delivery or redelivery, be placed under or continued to be documented under the laws of a country other than the United States.</P>
              <P>
                <E T="03">Eligible Shipyard</E> means a private shipyard located in the United States.</P>
              <P>
                <E T="03">General Shipyard Facility</E> means:</P>

              <P>(1) For operations on land, any structure or appurtenance thereto designed for the construction, repair, rehabilitation, refurbishment, or rebuilding of any Vessel, including graving docks, building ways, ship lifts, wharves and pier cranes; the land necessary for any <PRTPAGE P="159"/>structures or appurtenances; and equipment necessary for the performance of any function referred to in this definition; and</P>
              <P>(2) For operations other than on land, any Vessel, floating drydock, or barge constructed in the United States, within the meaning of § 298.11(a), and used for, or a type that is usually used for, activities referred to in paragraph (1) of this definition.</P>
              <P>
                <E T="03">Guarantee</E> means the contractual commitment of the United States of America, represented by us, endorsed on each Obligation, to make payment to the Obligee or an agent, upon demand, of the unpaid interest on, and the unpaid balance of the principal of such Obligation, including interest accruing between the date of default and the date of payment.</P>
              <P>
                <E T="03">Guarantee Fee</E> means the fee payable to us in consideration for the issuance of the Guarantees.</P>
              <P>
                <E T="03">Indenture Trustee</E> means a bank with corporate trust powers, or a trust company, with a capital and surplus of at least $25,000,000, which is located in and organized and doing business under the laws of the United States, any State or territory thereof, the District of Columbia or the Commonwealth of Puerto Rico, which has duties under the terms of a Trust Indenture, entered into with the Obligor, providing for the issuance and registration of the ownership and transfer of Obligations, the disbursement of funds held in trust by the Indenture Trustee for the redemption and payment of interest and principal with respect to Obligations, demands by the Indenture Trustee for payment under the Guarantees in the event of default and the remittance of payments received to the Obligees. Pursuant to our specific authorization, the Indenture Trustee may also authenticate the Guarantees.</P>
              <P>
                <E T="03">Letter Commitment</E> means a letter from us to you, setting forth specific determinations made by us with respect to your proposed project, as required by the Act and regulations of this part, and stating our commitment to execute Guarantees, subject to compliance by you with any conditions specified therein.</P>
              <P>
                <E T="03">Maritime Administration</E> means the agency created within the Department of Transportation by Reorganization Plan No. 21 of 1950 (64 Stat. 1273), amended by Reorganization Plan No. 7 of 1961 (75 Stat. 840), as amended by Public Law 91-469 (84 Stat. 1036).</P>
              <P>
                <E T="03">Modern Shipbuilding Technology</E> means a technology to be introduced into the shipyard that is comprised of the best available proven technology, techniques, and processes appropriate to advancing the state-of-the-art of the applicant shipyard, or exceeds the best available processes of American shipbuilding, and that will enhance its productivity and make it more competitive internationally.</P>
              <P>
                <E T="03">Mortgage</E> means a first Preferred Mortgage on any Vessel or a first mortgage with respect to a Shipyard Project.</P>
              <P>
                <E T="03">Obligation</E> means any note, bond, debenture, or other evidence of indebtedness, as defined in section 1101(c) of the Act, issued for one of the purposes specified in section 1104(a) of the Act.</P>
              <P>
                <E T="03">Obligee</E> means the holder of an Obligation.</P>
              <P>
                <E T="03">Obligor</E> means any party primarily liable for payment of principal of or interest on any Obligation.</P>
              <P>
                <E T="03">Paying Agent</E> means any Person appointed by the Obligor to pay the principal of or interest on the Obligations on behalf of the Obligor.</P>
              <P>
                <E T="03">Person</E> means any individual, estate, foundation, corporation, partnership, limited partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other acceptable legal business entity, government, or any agency or political subdivision thereof.</P>
              <P>
                <E T="03">Preferred Mortgage</E> means:</P>
              <P>(1) In the case of a mortgage on a Vessel documented under United States law, whenever made, a mortgage that—</P>
              <P>(i) Includes the whole of a Vessel;</P>
              <P>(ii) Is filed in substantial compliance with 46 U.S.C. 31321;</P>

              <P>(iii) Covers a documented Vessel or a Vessel for which an application for documentation has been filed that is in substantial compliance with the requirements of 46 U.S.C. Ch. 121 and the regulations prescribed under that Chapter by the United States Coast Guard; and<PRTPAGE P="160"/>
              </P>
              <P>(iv) Is otherwise in compliance with the provisions of Chapter 313 of Title 46 of the U.S. Code.; and</P>
              <P>(2) In the case of a mortgage on an Eligible Export Vessel, whenever made, a mortgage that—</P>
              <P>(i) Constitutes a mortgage that is established as security on an Eligible Export Vessel under the laws of a foreign country;</P>
              <P>(ii) Was executed under the laws of that foreign country and under which laws the ownership of the Vessel is documented;</P>
              <P>(iii) Is registered under the laws of that foreign country in a public register at the port of registry of the Vessel or at a central office;</P>
              <P>(iv) Otherwise satisfies the requirements of 46 U.S.C. 31301(6)(B) to constitute a Preferred Mortgage; and</P>
              <P>(v) Has us as the mortgagee, or such other mortgagee as is permitted by the applicable foreign law and approved by us.</P>
              <P>
                <E T="03">Related Party</E> means as that term is defined by generally accepted accounting principles outlined in paragraph 24 of Statement of Financial Accounting Standards No. 57, Related Party Disclosures.</P>
              <P>
                <E T="03">Secretary</E> means the Secretary of Transportation, acting by and through the Maritime Administrator, Department of Transportation, the Maritime Administrator or any official of the Maritime Administration to whom is duly delegated the authority, from time to time, to perform the functions of the Secretary of Transportation or the Maritime Administrator, Department of Transportation.</P>
              <P>
                <E T="03">Secretary's Note</E> means a promissory note from the Obligor to the Secretary in an amount equal to the aggregate amount of the Obligations, which is issued simultaneously with the Guarantees.</P>
              <P>
                <E T="03">Security Agreement</E> means the primary contract between the Obligor and the Secretary, providing for the transfer to the Secretary by the Obligor of all right, title and interest of the Obligor in certain described property (including rights under contracts in existence or to be entered into), and containing other provisions relating to representations and responsibilities of the Obligor to the Secretary as security for the issuance of Guarantees.</P>
              <P>
                <E T="03">Shipyard Project</E> means Advanced Shipbuilding Technology and Modern Shipbuilding Technology or both unless otherwise specified.</P>
              <P>
                <E T="03">Vessel</E> means all types of vessels, whether in existence or under construction, including passenger, cargo and combination passenger-cargo carrying vessels, tankers, towboats, barges and dredges which are or will be documented under the laws of the United States, floating drydocks which have a capacity of at least thirty-five thousand or more lifting tons and a beam of one hundred and twenty-five feet or more between the wing walls and oceanographic research or instruction or pollution treatment, abatement or control vessels, which are owned by citizens of the United States; except that an Eligible Export Vessel will not be documented under the laws of the United States.</P>
              <EFFDNOTP>
                <HD SOURCE="HED">Effective Date Note:</HD>
                <P>At 67 FR 61282, Sept. 30, 2002, § 298.2 was amended in the definition of Depository by removing all words after “Depository means” and adding in their place “the U.S. Department of Treasury, acting in its capacity under Section 1109 of the Act.”, effective Oct. 30, 2002.</P>
              </EFFDNOTP>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.3</SECTNO>
              <SUBJECT>Applications.</SUBJECT>
              <P>(a)<E T="03"> Process and certification.</E> When you apply for a commitment to execute Guarantees, you must:</P>
              <P>(1) Complete Form MA 163 and send it to the Secretary, Maritime Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590.</P>
              <P>(2) Certify the application in the manner that Form MA 163 prescribes.</P>
              <P>(b) <E T="03">Required information.</E> You must include all required information on Form MA 163 or in attached exhibits and schedules submitted with the application. You must also include the following regarding the Vessel or Vessels, if applicable:</P>
              <P>(1) Any demise charters,</P>
              <P>(2) Time charters in excess of six months,</P>
              <P>(3) Contracts of affreightment,</P>
              <P>(4) Drilling contracts, and/or</P>
              <P>(5) Other contractual arrangements.<PRTPAGE P="161"/>
              </P>
              <P>(c)<E T="03"> Declaration of Lobbying form.</E> You must also file the Declaration of Lobbying form as required by 31 U.S.C. 1352 with the initial application as part of the formal submission.</P>
              <P>(d)<E T="03"> Attachments.</E> Each exhibit, schedule, and attachment must contain a statement, on the first page clearly identifying the document as an attachment to the application. You must state on each attachment the:</P>
              <P>(1) Name of the applicant; and</P>
              <P>(2) Date of the application.</P>
              <P>(e)<E T="03"> Amendment.</E> You must mark “Amendment,” on any amendment of data contained in the application. Each first page must contain a statement clearly identifying the document as an amendment to your application and must include the:</P>
              <P>(1) Name of the applicant;</P>
              <P>(2) Date of application; and</P>
              <P>(3) Certification required on Form MA 163.</P>
              <P>(f) <E T="03">Application time schedule.</E> You must submit each application to us at least four (4) months prior to the anticipated date by which you require a Letter Commitment.</P>
              <P>(1) We may consider applications with less than four (4) months notice, prior to the anticipated date by which you require a Letter Commitment, if you submit written documentation to us that extenuating circumstances exist.</P>
              <P>(2) During the first fifteen (15) calendar days after you submit your application, we will preliminarily review your application for adequacy and completeness.</P>
              <P>(i) If we find that your application is incomplete, or if we require additional data, we will notify you promptly in writing, and you will have fifteen (15) calendar days, from the date of each request for additional information, to correct deficiencies.</P>
              <P>(ii) If you have not corrected the deficiencies or have not made substantial progress toward correcting them, within the 15 calendar days, then we may terminate the processing of your application without prejudice.</P>
              <P>(3) Once we consider your Title XI application complete, we will act on the application within a period of 60 calendar days, unless for good cause, we find it necessary to extend the 60 day period.</P>
              <P>(4) If you do not complete your application and we do not act upon your application within four (4) months from the submission date, unless we extend the time period, we will notify you in writing that processing of the application is terminated and that you may reapply at a later date.</P>
              <P>(i) If we terminate your application without prejudice, we will not require you to pay a new filing fee for a later application for a similar project that you file within one year of the termination date.</P>
              <P>(ii) If you submit an application for a substantially different project, you must pay a new filing fee. We will determine whether the application is substantially different on a case-by-case basis.</P>
              <P>(5) If we issue you a Letter Commitment, you must submit two (2) sets of the Closing documentation to us for review at least six (6) weeks prior to the anticipated Closing. The six weeks time period will give us time to complete an adequate review of the documentation. You must use our standard form of documentation.</P>
              <P>(g) <E T="03">Degrees of risk.</E> When processing applications, we will consider the different degrees of risk involved with different applications.</P>
              <P>(h) <E T="03">Additional assurances.</E> Before we approve your application, we may require additional assurances if you are not a well established firm with strong financial qualifications and strong market shares seeking financing guarantees for replacement vessels in an established market in which projected demand exceeds supply. The additional assurances may include:</P>
              <P>(1) Firm charter commitments;</P>
              <P>(2) Parent company guarantees;</P>
              <P>(3) Greater equity participation;</P>
              <P>(4) Private financing participation;</P>
              <P>(5) Security interest on other property; and</P>
              <P>(6) Similar arrangements to any of these additional assurances.</P>
              <P>(i) <E T="03">Filing Fee.</E> When you submit your application, you must include a $5,000 filing fee, which will be non-refundable, irrespective of whether we issue a Letter Commitment. However, the $5,000 <PRTPAGE P="162"/>filing fee is credited toward the investigation fee described in § 298.15(b).</P>
              <P>(j) <E T="03">Confidential Information.</E> (1) If we receive a request for release of your information, we will notify you. If you believe that your application, including attachments, contains information you consider to be trade secrets or commercial or financial information and privileged or confidential, or otherwise exempt from disclosure under the Freedom of Information Act (FOIA) (5 U.S.C. 552), you may assert a claim of confidentiality. When submitting your application, you should mark “Confidential” on the pages that you consider confidential. The same requirement applies to any amendment to the application.</P>
              <P>(2) <E T="03">FOIA requests.</E> We will apply the procedures contained in the Department of Transportation's regulations at 49 CFR 7.17 regarding FOIA requests for information that the submitter has designated as confidential. We will consider your claim of confidentiality at the time someone requests the information under FOIA.</P>
              <P>(3) <E T="03">Statement of objections.</E> If we receive a request for release of your information, we will notify you. We will give you a reasonable period of time to give us a written, detailed statement explaining your objections to our release of the information. We will not give you notice if:</P>
              <P>(i) We determine that we should not disclose the information;</P>
              <P>(ii) The information has been lawfully published or made available to the public; or</P>
              <P>(iii) Law (other than 5 U.S.C. 552) requires us to disclose the information.</P>
              <P>(4) <E T="03">Our notification of intent to disclose.</E> If your objections to release of the information do not persuade us, we will notify you of our intent to disclose in a reasonable number of days before we intend to disclose the information. The written notice will include:</P>
              <P>(i) A statement explaining our reasons for not accepting the submitter's disclosure objections;</P>
              <P>(ii) A description of the business information that we will disclose; and</P>
              <P>(iii) A specific disclosure date.</P>
              <P>(k) <E T="03">Priority.</E> We will give priority for processing applications to:</P>
              <P>(1) Vessels capable of serving as a United States naval and military auxiliary in time of war or national emergency,</P>
              <P>(2) Requests for financing construction of equipment or vessels less than one year old as opposed to the refinancing of existing equipment or vessels that are one year old or older,</P>
              <P>(3) Any applications involving the purchase of vessels currently financed under Title XI if the purpose is to process the assumption of the obligations,</P>
              <P>(4) Applications from those willing to take guarantees for less than the normal term for that class of vessel.</P>
              <P>(5) <E T="03">Eligible Export Vessels.</E> We may issue a commitment to guarantee Obligations for an Eligible Export Vessel if we determine, in our sole discretion, that the issuance of a commitment to guarantee Obligations for an Eligible Export Vessel will not cause us to deny an economically sound application to issue a commitment to guarantee Obligations for vessels documented under the laws of the United States operating in the domestic or foreign commerce of the United States, after considering:</P>
              <P>(i) The status of pending applications for commitments to guarantee obligations for vessels documented under the laws of the United States and operating or to be operated in the domestic or foreign commerce of the United States;</P>
              <P>(ii) The economic soundness of the applications referred to in paragraph (k)(5)(i) of this section; and</P>
              <P>(iii) The amount of guarantee authority available.</P>
              <APPRO>(Unless indicated otherwise in this part 298, information collection requirements have been approved by the Office of Management and Budget under control number 2133-0018.)</APPRO>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Eligibility</HD>
            <SECTION>
              <SECTNO>§ 298.10</SECTNO>
              <SUBJECT>Citizenship.</SUBJECT>
              <P>(a) <E T="03">Applicability.</E> Before you receive a legal or beneficial interest in a Vessel financed under Title XI of the Act which is operating in or will be operated in the U.S. coastwise trade, you and any other Person, (including the shipowner and any bareboat charterer), must establish your United States citizenship, within the definition of <PRTPAGE P="163"/>“Citizen of the United States” in § 298.2.</P>
              <P>(b) <E T="03">Prior to Letter Commitment.</E> Before we issue the Letter Commitment, you and any Person identified in paragraph (a) of this section, who is required to establish United States citizenship must establish United States citizenship in the form and manner stated in 46 CFR part 355.</P>
              <P>(c) <E T="03">Commitment Closing.</E> (1) Within 10 days before every Commitment Closing, unless we waive this requirement for good cause, you and all Persons identified with the project who have previously established United States citizenship in accordance with paragraphs (a) and (b) of this section, must submit pro forma Supplemental Affidavits of Citizenship which we have approved for Closing as to form and substance, and</P>
              <P>(2) On the date of the Closing, three (3) executed copies of Supplemental Affidavits of Citizenship that:</P>
              <P>(i) Show evidence of the continuing United States citizenship of the Persons in paragraph (a) of this section; and</P>
              <P>(ii) Bear the date of the Closing.</P>
              <P>(d) <E T="03">Additional information.</E> If we request additional material essential to clarify or support evidence of U.S. citizenship, you, the Obligor, or any Person identified in paragraph (a) of this section must submit the additional information.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 2133-0012.)</APPRO>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.11</SECTNO>
              <SUBJECT>Vessel requirements.</SUBJECT>
              <P>When you apply for a Guarantee, the Vessel for which you intend to receive financing for construction, reconstruction, or reconditioning must meet the following criteria:</P>
              <P>(a) <E T="03">United States Construction.</E> A Vessel, including an Eligible Export Vessel, financed by an Obligation Guarantee must be constructed in the United States. United States construction means that the Vessel is assembled in a shipyard geographically located within the United States.</P>
              <P>(1) A U.S.-flag Vessel must meet the applicable United States Coast Guard requirements.</P>
              <P>(2) An Eligible Export Vessel must be constructed in accordance with the requirements of the International Maritime Organization and must meet the applicable:</P>
              <P>(i) Laws, rules, and regulations of its country of documentation,</P>
              <P>(ii) Treaties, conventions on international agreements to which that country is a signatory, and</P>
              <P>(iii) Laws of the ports it serves.</P>
              <P>(b) <E T="03">Actual Cost.</E> We must approve your estimated Actual Cost for the construction, reconstruction, or reconditioning of a Vessel as a condition for issuance of the Letter Commitment. The estimated cost of the Vessel may include escalation for the anticipated construction period of the Vessel. We may contact the shipyard directly and may require you to have the shipyard that has contracted to build the Vessel to submit additional technical data, backup cost details, and other evidence if we have insufficient data.</P>
              <P>(c) <E T="03">Class, condition, and operation.</E> The Vessel must be constructed, maintained, and operated so as to meet the highest classification, certification, rating, and inspection standards for vessels of the same age and type imposed by:</P>
              <P>(1) The American Bureau of Shipping (ABS), or</P>
              <P>(2) Another classification society that also meets the inspection standards of the United States Coast Guard with respect to the documentation of U.S.-flag vessels, or</P>
              <P>(3) In the case of an Eligible Export Vessel, such standards as may be imposed by a member of the International Association of Classification Societies (IACS), classification societies to be ISO 9000 series registered or Quality Systems Certificate Scheme qualified IACS members who have been recognized by the United States Coast Guard as meeting acceptable standards with such recognition including, at a minimum, that the society meets the requirements of IMO Resolution A.739(18) with appropriate certificates required at delivery, so long as the home country of the IACS member accords equal reciprocity, as determined by us, to United States classification societies.</P>

              <P>(4) Except in the case of an Eligible Export Vessel, the Vessel must be in compliance with all applicable laws, rules, and regulations as to condition <PRTPAGE P="164"/>and operation, including, but not limited to, those administered by the:</P>
              <P>(i) United States Coast Guard,</P>
              <P>(ii) Environmental Protection Agency,</P>
              <P>(iii) Federal Communications Commission,</P>
              <P>(iv) Public Health Service, or</P>
              <P>(v) Their respective successor agencies, and</P>
              <P>(vi) All applicable treaties and conventions to which the United States is a signatory, including, but not limited to, the International Convention for Safety of Life at Sea.</P>
              <P>(d) <E T="03">Documentation.</E> (1) An Eligible Export Vessel must be documented in a country that is party to the International Convention for Safety of Life at Sea, or other treaty, convention, or international agreement governing vessel inspection to which the United States is a signatory, and must comply with the applicable laws, rules, and regulations of its country of documentation, all applicable treaties, conventions on international agreements to which that country is a signatory, and the laws of the ports it serves.</P>
              <P>(2) All other Eligible Vessels must be documented under U.S. registry.</P>
              <P>(e) <E T="03">Reconstruction or reconditioning.</E> Repairs necessary for the Vessel to meet the classification standards approved by us, or any regulatory body, or for previous inadequate maintenance and repair, will not constitute reconstruction or reconditioning within the meaning of this paragraph.</P>
              <P>(f) <E T="03">Condition survey.</E> If your application involves a reconstructed or reconditioned Vessel, you must make the Vessel available at a time and place acceptable to us so that we may conduct a condition survey. You must:</P>
              <P>(1) Pay the cost of the condition survey.</P>
              <P>(2) Ensure that the scope and extent of the condition survey will not be less effective than that required by the last ABS special survey completed (if the Vessel is classified), next due or overdue, whichever date is nearest in accordance with the Vessel's age.</P>
              <P>(3) Ensure that the Vessel meets the standard of the survey necessary for retention of class (if the Vessel is classified), and</P>
              <P>(4) Ensure that the operating records of the Vessel reflect normal operation of the Vessel's main propulsion and other machinery and equipment, consistent with accepted commercial experience and practice.</P>
              <P>(g) <E T="03">Metric Usage.</E> Our preferred system of measurement and weights for Vessels and Shipyard Projects is the metric system.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.12</SECTNO>
              <SUBJECT>Applicant and operator's qualifications.</SUBJECT>
              <P>(a) <E T="03">Operator's qualifications.</E> We will not issue a Letter Commitment without a prior determination that you, the bareboat charterer, or other Person identified in the application as the operator of the Vessel(s) or Shipyard Project, possesses the necessary experience, ability and other qualifications to properly operate and maintain the Vessel(s) or Shipyard Project which serve as security for the Guarantees. You must also comply with all requirements of this part.</P>
              <P>(b) <E T="03">Identity and ownership of applicant.</E> In order for us to assess the likelihood that the project will be successful, we need information about you and the proposed project. To permit this assessment, you must provide the following information in your application for Title XI guarantees:</P>
              <P>(1) <E T="03">Incorporated companies.</E> If you or any bareboat charterer is an incorporated company, you must submit the following identifying information:</P>
              <P>(i) Name of company, place and date of incorporation, and tax identification number, or if appropriate, international identification number of the company;</P>
              <P>(ii) Address of principal place of business; and</P>
              <P>(iii) Certified copy of certificate of incorporation and bylaws.</P>
              <P>(2) <E T="03">Partnerships, limited partnerships, limited liability companies, joint ventures, associations, unincorporated companies.</E> If you or any bareboat charterer is a partnership, limited partnership, limited liability company, joint venture, association, or unincorporated company, you must submit the following identifying information:<PRTPAGE P="165"/>
              </P>
              <P>(i) Name of entity, place and date of formation, and tax identification number, or if appropriate, international identification number of entity;</P>
              <P>(ii) Address of principal place of business; and</P>
              <P>(iii) Certified copy of certificate of formation, partnership agreement or other documentation forming the entity.</P>
              <P>(3) <E T="03">Other entities.</E> For any entity that does not fit the descriptions in paragraphs (b)(1) and (b)(2) of this section, we will specify the information that the entity must submit regarding its identity and ownership.</P>
              <P>(4) You and any bareboat charterer must provide a brief statement of the general effect of each voting agreement, voting trust or other arrangement whereby the voting rights of any interest in you or the bareboat charterer are controlled or exercised by any person who is not the holder of legal title to such interest.</P>
              <P>(5) You and any bareboat charterer must provide the following information regarding the entity's officers, directors, partners or members:</P>
              <P>(i) Name and address;</P>
              <P>(ii) Office or position; and</P>
              <P>(iii) Nationality and interest owned (for example, shares owned and whether voting or non-voting).</P>
              <P>(c) <E T="03">Business and affiliations of applicants.</E> You must include:</P>
              <P>(1) A brief description of your principal business activities during the past five years.</P>
              <P>(2) A list of all business entities that directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with you.</P>
              <P>(3) The nature of the business transacted by each listed entity and the relationship between these entities. This information may be presented in the form of a chart.</P>
              <P>(4) Whether any of the affiliated entities have previously applied for or received Title XI assistance.</P>
              <P>(5) A statement indicating whether the applicant, any predecessor or affiliated entity has been in bankruptcy or reorganization under any insolvency or reorganization proceeding and if so, give details.</P>
              <P>(6) A statement indicating whether the applicant or any predecessor or affiliated entity is now, or during the past five years has been, in default under any agreement or undertaking with others or with the United States of America, or is currently delinquent on any Federal debt, and if so, provide explanatory information.</P>
              <P>(7) A list of your banking references:</P>
              <P>(i) Principal bank(s) or lending institutions(s)—name and address;</P>
              <P>(ii) Nature of relationship; and</P>
              <P>(iii) Individual references—name(s), telephone and fax number of banking officer(s).</P>
              <P>(d) <E T="03">Management of applicant.</E> You must include:</P>
              <P>(1) A brief description of the principal business activities during the past five years of each officer, director, partner or member you listed in paragraph (b)(5) of this section and if these persons (have) act(ed) as executive officers in other entities, indicate the names of these entities and whether such entities have defaulted on any U.S. Government debt, and</P>
              <P>(2) The name and address of each organization engaged in business activities which have a direct financial relationship to those carried on or to be carried on by you with which any person listed in paragraph (d)(1) of this section has any present business connection, the name of each such person and, briefly, the nature of such connection.</P>
              <P>(e) <E T="03">Applicant's property and activity.</E> You must provide:</P>
              <P>(1) A brief description of the general character and location of the principal assets employed in your business and those of your affiliate, other than vessels. Describe financial encumbrances, if any;</P>
              <P>(2) A general description of the vessels currently owned and/or operated by you or your affiliates and a description of the areas of operation; and,</P>

              <P>(3) In the case of an Eligible Shipyard which is an applicant for a guarantee for a Shipyard Project, a brief description of the general character (that is, the number of building ways, launch method, drydocks and size) and location (that is, water depth, length of riverfront) of the principal properties <PRTPAGE P="166"/>of the applicant employed in its business. You must also describe any financial encumbrances.</P>
              <P>(f) <E T="03">Operating ability</E>. (1) You must submit a detailed statement showing your ability to successfully operate the financed Vessel(s).</P>
              <P>(2) If a company other than you will operate the Vessel(s), then the information in paragraph (f)(1) of this section must be provided for the operating company together with a copy of the operating agreement.</P>
              <P>(3) You must submit a copy of any management agreement(s) between you and any related or unrelated organization(s) which will affect the management of the Title XI Vessel or shipyard.</P>
              <P>(4) In the case of an Eligible Shipyard, which is an applicant for a guarantee for a Shipyard Project, a detailed statement must be submitted showing your ability to successfully operate the Shipyard Project and construct/reconstruct Vessels, including name, education, background of, and licenses held by, all senior supervisory personnel concerned with the physical operation of the Shipyard Project.</P>
              <P>(5) Where an operator has an historical performance record, we will consider this record in evaluating your operating ability. For newly formed entities, we will evaluate the performance of affiliates and/or companies associated with the principals (where the principals have a significant degree of control) in determining your operating ability. However, unless the affiliates or principals have an obligation with respect to the debt, we will not consider historical performance in evaluating your creditworthiness.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.13</SECTNO>
              <SUBJECT>Financial requirements.</SUBJECT>
              <P>(a) <E T="03">In general</E>. To be eligible for guarantees, you and/or your parent organization (when applicable), and any other participants in the project having a significant financial or contractual relationship with you must submit information, respectively, on their financial condition. You must submit this information at the time of the application. You must supplement this information if we require it in subsequent requests. You must submit information satisfactory to us to show that financial resources are available to support the Title XI project.</P>
              <P>(b) <E T="03">Cost of the project</E>. You must submit the following cost information with respect to the project:</P>
              <P>(1) <E T="03">Vessel financing Guarantees</E>. A detailed statement of the estimated Actual Cost of construction, reconstruction, or reconditioning of the Vessel(s) including those items which would normally be capitalized as Vessel construction costs. Net interest during construction is the total estimated construction period interest on non-equity funds less estimated earnings from the escrow fund, if such fund is to be established prior to Vessel(s) delivery.</P>
              <P>(2) <E T="03">Foreign components</E>. (i) You must exclude each item of foreign components and services from Actual Cost, unless we specifically grant a waiver for the item. We will not grant a waiver for major foreign components of the hull and superstructure.</P>
              <P>(ii) In deciding whether to grant a waiver for foreign components and services, we will consider your certification, to be reviewed by us, stating that:</P>
              <P>(A) A foreign item or service is not available in the United States on a timely or price-competitive basis, or</P>
              <P>(B) The domestic item or service is not of sufficient quality.</P>
              <P>(iii) Although excluded from Actual Cost, foreign components of the hull and superstructure can be regarded as owner-furnished equipment that may be used in satisfying your equity requirements imposed by paragraph (f) of this section.</P>
              <P>(3) <E T="03">Costs incurred by written contracts</E>. If any of the costs have been incurred by written contracts such as shipyard contract, management or operating agreement, you should forward signed copies with the application. We may require you to have the contracting shipyard submit back-up cost details and technical data. You must submit this information in the format given in the Title XI application procedures.</P>
              <P>(4) <E T="03">Shipyard Project</E>. In the case of Shipyard Project, a detailed statement of the actual cost of such technology, including those items which would normally be capitalizable. If you incurred <PRTPAGE P="167"/>any of the costs through written contracts, you should forward signed copies of the contract with the application. We may require you to have manufacturers submit back-up cost details and technical data. You must submit this information in the format given in the Title XI application procedures.</P>
              <P>(5) <E T="03">Shore facilities, cargo containers, etc</E>. A detailed statement showing the actual cost of any shore facilities, cargo containers, etc., required to be purchased in conjunction with the project.</P>
              <P>(6) <E T="03">Additional project costs</E>. A detailed statement showing any other costs associated with the project which were not included in paragraphs (b)(1) through (5) of this section, such as:</P>
              <P>(i) Legal and accounting fees;</P>
              <P>(ii) Printing costs;</P>
              <P>(iii) Vessel insurance;</P>
              <P>(iv) Underwriting fees;</P>
              <P>(v) Fee to a Related Party; and</P>
              <P>(vi) Other fees.</P>
              <P>(7) <E T="03">Request for Actual Cost Approval and Reimbursement</E>. If the project involves refinancing, you must also submit the exhibit entitled Request for Actual Cost Approval and Reimbursement, its summary sheet and supplemental schedules at the time of filing the application.</P>
              <P>(c) <E T="03">Financing</E>. (1) You must:</P>
              <P>(i) Describe, in detail, how the costs of the project (sums referred to in paragraph (b) of this section) will be funded and the timing of such funding.</P>
              <P>(ii) Include any vessel trade-ins, related or third party financings, etc.</P>
              <P>(iii) Provide the proposed terms and conditions of all private funding, from both equity and debt sources and clearly identify all parties involved.</P>
              <P>(iv) Obtain our approval of the terms and conditions for co-financing (involving a blend of Title XI and private financing for the debt portion), including the ability of the co-financiers to exercise their rights against collateral shared with us for any transaction.</P>
              <P>(v) Demonstrate with financial statements that at least 12<FR>1/2</FR> percent, or 25 percent as applicable, of the construction or reconstruction costs of the Vessel(s) or the cost of the Shipyard Project will be in the form of equity and not additional debt, except to the extent allowed by paragraph (h) of this section.</P>
              <P>(vi) Disclose all of the Vessel(s), Shipyard Project financing in the format given in the Title XI application procedures.</P>
              <P>(2) <E T="03">Financial Information</E>. You must provide us with financial statements, prepared in accordance with U.S. generally accepted accounting principles (GAAP), and include notes that explain the basis for arriving at the figures except that for Eligible Export Vessels, your financial statements must be in accordance with GAAP if formed in the U.S., or reconciled to GAAP if formed in a foreign country unless a satisfactory justification is provided explaining the inability to reconcile. The financial statements must include the following:</P>
              <P>(i) The most recent financial statements for you, your parent company and other significant participants, as applicable (year end or intermediate), and the three most recent audited statements with details of all existing debt. If you are a new entity and are to be funded from or guaranteed by external source(s), you must provide such statements for such source(s);</P>
              <P>(ii) Your pro forma balance sheet and that of any guarantor (if applicable) as of the estimated date of execution of the Guarantees reflecting the assumption of the Title XI Obligations, including the current liability; and</P>
              <P>(iii) Your pro forma balance sheets and that of the guarantor (if applicable) for five years after the Closing.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 2133-0005.)</APPRO>
              
              <P>(d) <E T="03">Financial definitions</E>. For the purpose of this section and §§ 298.35 and 298.42 of this part:</P>
              <P>(1) “Company” means any Person subject to financial requirements imposed under paragraph (f) of this section and in § 298.35, as well as the reporting requirements imposed by § 298.42.</P>
              <P>(2) “Working Capital” means the excess, if any, of current assets over current liabilities, both determined in accordance with GAAP and adjusted as follows:</P>

              <P>(i) In determining current assets you must exclude:<PRTPAGE P="168"/>
              </P>
              <P>(A) Any securities, obligations or evidence of indebtedness of a Related Party or of any stockholder, director, officer or employee (or any member of his family) of the Company or of such Related Party, except advances to agents required for the normal current operation of the Company's vessels and current receivables arising out of the ordinary course of business and not outstanding for more than 60 days; and</P>
              <P>(B) An amount equal to any excess of unterminated voyage revenue over unterminated voyage expenses.</P>
              <P>(ii) In determining current liabilities, you must deduct any excess of unterminated voyage expenses over unterminated voyage revenue and add one half of all annual charter hire and other lease obligations (having a term of more than six months) due and payable within the succeeding fiscal year, other than charter hire and such other lease obligations already included and reported as a current liability on the Company's balance sheet.</P>
              <P>(3) “Equity” or “net worth” means, as of any date, (the total of paid-in-capital stock, paid-in surplus, earned surplus and appropriated surplus,) and all other amounts that would be included in net worth in accordance with GAAP, but does not include:</P>
              <P>(i) Any receivables from any stockholder, director, Officer or employee (or their family) of the Company or from any Related Party (other than current receivables arising out of the ordinary course of business and not outstanding for more than 60 days), and</P>
              <P>(ii) Any increment resulting from the reappraisal of assets.</P>
              <P>(4) “Long-Term Debt” means, as of any date, the total notes, bonds, debentures, equipment obligations and other evidence of indebtedness that would be included in long term debt in accordance with GAAP. You must include any guarantee or other liability for the debt of any other Person not otherwise included on the balance sheet.</P>
              <P>(5) “Capitalizable Cost” means the aggregate of the Actual Cost of the Vessel or Shipyard Project and those other items which customarily would be capitalized as Vessel costs or Shipyard Project costs under GAAP.</P>
              <P>(6) “Depreciated Capitalizable Cost” means the Capitalizable Cost of a Vessel or Shipyard Project, depreciated on a straightline basis over the same useful life as determined by us for Actual Cost, and depreciated as required by § 298.21(g).</P>
              <P>(e) <E T="03">Applicability.</E> The financial resources must be adequate to meet the Equity requirements in the project and Working Capital requirements, as set forth in paragraph (f) of this section.</P>
              <P>(1) The various financial requirements shall be met by the owner of the Vessel or Vessels or Shipyard Project to be security to us for the Guarantees, except that if the owner is not the operator, the overall financial requirements will be allocated among the owner, the operator and other parties as determined by us.</P>
              <P>(2) The Company must satisfy the applicable financial requirements, in addition to any other financial requirements already imposed or which may be imposed upon it in connection with other Vessels financed under the Title XI program or in connection with other Shipyard Project financed under the Title XI program.</P>
              <P>(3) A determination as to whether the Company has satisfied all financial requirements shall be based on the assumption that the projected financing has been completed. Accordingly, you must submit:</P>
              <P>(i) A pro forma balance sheet at the time of the application, reflecting any adjustment made pursuant to paragraph (f)(1)(i) of this section, and</P>
              <P>(ii) A revised pro forma balance sheet, reflecting the completion of the projected financing, at least five business days before the first Closing at which the Obligations are issued.</P>
              <P>(f) <E T="03">Financial requirements at Closing.</E> Financial requirements can apply to one or more Companies, and are determined as follows:</P>
              <P>(1) Owner as operator. Where the owner is to be the Vessel operator, minimum requirements at Closing usually are as follows:</P>

              <P>(i) Working Capital. The Company's Working Capital shall not be less than one dollar. This Working Capital requirement is based on the premise that the Company engages in a service-type activity with only normal vessel inventory. If Working Capital includes other inventory, in addition to such normal <PRTPAGE P="169"/>Vessel inventory, we may adjust the requirement as appropriate. Also, if we determine that the Company's Working Capital includes amounts receivable that it reasonably could not expect to collect within one year, we may make adjustments to the Working Capital requirements.</P>
              <P>(ii) Long-Term Debt. The Company's Long-Term Debt must not be greater than twice its Equity.</P>
              <P>(iii) Equity (net worth). The Company's Equity must be:</P>
              <P>(A) The greater of:</P>
              <P>
                <E T="03">(1)</E> 50 percent of its Long-Term Debt; or</P>
              <P>
                <E T="03">(2)</E> 90 percent of its Equity as shown on the last audited balance sheet, dated not earlier than six months before the date of issuance of the Letter Commitment; or</P>
              <P>(B) Such other amount as may be specied by us.</P>
              <P>(2) Lessee or charterer as operator. Where a lessee or charterer is to be the Vessel operator, minimum requirements at Closing usually are as follows:</P>
              <P>(i) Working Capital. The operator's Working Capital requirement will be the same as that which would have otherwise been imposed on the owner as operator under paragraph (f)(1)(i) of this section and based on the same premise stated in that paragraph.</P>
              <P>(ii) Long-Term Debt. The operator's Long-Term Debt will be the same as that which would have otherwise been imposed on the owner as operator under paragraph (f)(1)(ii) of this section.</P>
              <P>(iii) Equity (net worth). The operator's equity requirement will be the same as that which would have otherwise been imposed on the owner as operator under paragraph (f)(1)(iii) of this section.</P>
              <P>(iv) The owner's Equity shall at least be equal to the difference between the Capitalizable Cost or Depreciated Capitalizable Cost of the Vessel (whichever is applicable) and the total amount of the Guarantees.</P>
              <P>(3) Owner as General Shipyard Facility. Where the owner of Shipyard Project is a General Shipyard Facility, minimum requirements at Closing will be the same as those set forth in paragraph (f)(1) of this section for an owner as operator.</P>
              <P>(g) <E T="03">Adjustments to financial requirements at Closing.</E> If the owner, although not operating a Vessel, assumes any of the operating responsibilities, we may adjust the respective Working Capital and Equity requirements of the owner and operator, otherwise applicable under paragraph (f) of this section, by increasing the requirements of the owner and decreasing those of the operator by the same amount.</P>
              <P>(h) <E T="03">Subordinated debt considered to be Equity.</E> With our consent, part of the Equity requirements applicable under paragraphs (c) and (f) of this section may be satisfied by debt, fully subordinated as to the payment of principal and interest on the Secretary's Note and any claims secured as provided for in the Security Agreement or the Mortgage. Repayment of subordinated debt may be made only from funds available for payment of dividends or for other distributions, in accordance with requirements of the Title XI Reserve Fund and Financial Agreement (described in § 298.35). Such subordinated debt shall not be secured by any interest in property that is security for Guarantees under Title XI, unless the Obligor and the lender enter into a written agreement, satisfactory to us, providing, among other things, that if any Title XI financing or advance by us to the Obligor shall occur in the future, such security interest of the lender shall become subordinated to any indebtedness to us incurred by the Obligor and to any security interest obtained by us in that property or other property, with respect to the subsequent indebtedness.</P>
              <P>(i) <E T="03">Modified requirements.</E> We may waive or modify the financial terms or requirements otherwise applicable under this section and §§ 298.35 and 298.42, upon determining that there is adequate security for the Guarantees. We may impose similar financial requirements on any Person providing other security for the Guarantees.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.14</SECTNO>
              <SUBJECT>Economic soundness.</SUBJECT>
              <P>(a) <E T="03">Economic Evaluation.</E> We shall not issue a Letter Commitment for guarantees unless we find that the proposed project, regarding the Vessel(s) or <PRTPAGE P="170"/>Shipyard Project for which you seek Title XI financing or refinancing, will be economically sound. The economic soundness and your ability to repay the Obligations will be the primary basis for our approval of a Letter Commitment. We will consider the value of the collateral for which we will issue the Obligations as only a secondary consideration in determining your ability to repay the Obligations.</P>
              <P>(b) <E T="03">Basic feasibility factors.</E> In making the economic soundness findings, we shall consider all relevant factors, including, but not limited to:</P>
              <P>(1) The need in the particular segment of the maritime industry for new or additional capacity, including any impact on existing equipment for which a guarantee under this title is in effect;</P>
              <P>(2) The market potential for the employment of the Vessel or utilization of the Shipyard Project of a General Shipyard Facility over the life of the guarantee;</P>
              <P>(3) Projected revenues and expenses associated with employment of the Vessel or utilization of the Shipyard Project of a General Shipyard Facility;</P>
              <P>(4) Any charters, contracts of affreightment, transportation agreements, or similar agreements or undertakings relevant to the employment of the Vessel or utilization of the Shipyard Project of a General Shipyard Facility;</P>
              <P>(5) For inland waterways, the need for technical improvements including but not limited to increased fuel efficiency, or improved safety; and</P>
              <P>(6) Other relevant criteria.</P>
              <P>(c) <E T="03">Project Feasibility.</E> To demonstrate the economic feasibility of the project over the Guarantee period, you must submit the following information:</P>
              <P>(1) <E T="03">Purpose.</E> A detailed purpose for the obligations to be guaranteed.</P>
              <P>(2) <E T="03">Necessary exhibits.</E> Necessary exhibits to support your project feasibility as supplements to the application.</P>
              <P>(3) <E T="03">Relevant market information.</E> Information regarding the relevant market including a written narrative of the market (or potential market) for the project including full details on the following, as applicable:</P>
              <P>(i) Nature and amount of cargo/passengers available for carriage and your projected share (provide also the number of units; that is containers, trailers, etc.);</P>
              <P>(ii) Services or routes in which the Vessel(s) will be employed, including an itinerary of ports served, with the arrival and departure times, sea time, port time, hours working or idle in port, off hire days and reserve or contingency time, proposed number of annual sailings and number of annual working days for the Vessel(s) or, with respect to Shipyard Project, how the equipment will be employed;</P>
              <P>(iii) Suitability of the Vessel(s) or Shipyard Project for their anticipated use;</P>
              <P>(iv) Significant factors influencing your expectations for the future market for the Vessel(s) or Shipyard Project, for example, competition, government regulations, alternative uses, and charter rates; and</P>
              <P>(v) Particulars of any charters, contracts of affreightment, transportation agreements, etc. You should supplement the narrative by providing copies of any marketing studies and/or supporting information (for instance, existing or proposed charters, contracts of affreightment, transportation agreements, and letters of intent from prospective customers).</P>
              <P>(vi) The potential for purchasing existing equipment of a reasonable condition and age from another source, including information regarding:</P>
              <P>(A) Market assessment concerning the availability and cost of existing equipment that may be an alternative to new construction or the new Shipyard Project;</P>
              <P>(B) The cost of modification, reconditioning, or reconstruction of existing equipment to make it suitable for intended use; and</P>
              <P>(C) Descriptions of any bids or offers which you had made to purchase existing equipment, especially Vessels which currently are financed with Title XI Obligations including date of offer, Vessels, and amount of offer.</P>
              <P>(4) <E T="03">Revenues.</E> A detailed statement of the revenues expected to be earned from the project based upon the information in paragraph (c) of this section. <PRTPAGE P="171"/>Vessel revenue projections shall include shipping/hire rates for current market conditions or market conditions expected to exist at the time of Vessel delivery taking into account seasonal or temporary fluctuations. The revenues shall be based on a realistic estimate of the Vessel(s) or the new Shipyard Project utilization rate and at a breakeven rate for the project. A justification for the utilization rate shall be supplied and should indicate the number of days per year allowed for maintenance, drydocking, inspection, etc.</P>
              <P>(5) <E T="03">Expenses for Vessel financing.</E> For applications for Vessel financing, a detailed statement of estimated Vessel expenses including the following (where applicable):</P>
              <P>(i) Estimated Vessel daily operating expenses, including wages, insurance, maintenance and repair, fuel, etc. and a detailed projection of anticipated costs associated with long term maintenance of the Vessel(s) such as drydocking and major mid-life overhauls, with a time frame for these events over the period of the Guarantee;</P>
              <P>(ii) If applicable, a detailed breakdown of those expenses associated with the Vessel(s) voyage, such as port fees, agency fees and canal fees that are assessed as a result of the voyage; and</P>
              <P>(iii) A detailed breakdown of annual capital costs and administrative expenses, segregated as to:</P>
              <P>(A) Interest on debt;</P>
              <P>(B) Principal amortization; and</P>
              <P>(C) Salaries and other administrative expenses (indicate basis of allocation).</P>
              <P>(6) <E T="03">Expenses for a Shipyard Project.</E> For applications for a Shipyard Project, a statement of estimated expenses related to the Shipyard Project, including the following (where applicable):</P>
              <P>(i) A detailed breakdown of estimated daily operating expenses for the shipyard, such as wages, including staffing, and segregated as to straight-time, overtime and fringe benefits; utility costs; costs of stores, supplies, and equipment; maintenance and repair cost; insurance costs; and, other expenses (indicate items included); and</P>
              <P>(ii) A detailed breakdown of annual capital costs and administrative expenses, segregated as to:</P>
              <P>(A) Interest on debt;</P>
              <P>(B) Principal amortization; and</P>
              <P>(C) Salaries and other administrative expenses (indicate basis of allocation).</P>
              <P>(7) <E T="03">Forecast of Operations.</E> Utilizing the revenues and expenses provided in paragraphs (c)(4),(5) and (6) of this section, you shall provide a forecast of operating cash flow, as defined in paragraph (d)(4) of this section, for the Title XI project for the first full year of operations and the next four years. The cash flow statements should be footnoted to explain the assumptions used.</P>
              <P>(d) <E T="03">Objective Criteria.</E> We must make a finding of economic soundness as to each project based on an assessment of the entire project. In order for the project to receive approval, we must determine that a project meets the following criteria:</P>
              <P>(1) The projected long-term demand (equal to length of time that you request financing) for the particular Vessel(s) or new Shipyard Project to be financed must exceed the supply of similar vessels or new shipyard project in the applicable markets. We will determine the supply of similar vessels and similar shipyard projects based on:</P>
              <P>(i) Existing equipment,</P>
              <P>(ii) Similar vessels or new shipyard project under construction, and</P>
              <P>(iii) The projected need for new equipment in that particular segment of the maritime industry.</P>
              <P>(2) We will base our determination of the project's economic soundness on the following:</P>
              <P>(i) Conformity of your projections with our supply and demand analyses;</P>
              <P>(ii) Availability of charters, letters of intent, outstanding contractual commitments, contracts of affreightment, transportation agreements or similar agreements or undertakings; and</P>
              <P>(iii) Your existing market share compared with the market share necessary to meet projected revenues.</P>

              <P>(3) In cases where market conditions are temporarily inadequate for you to service the Obligation indebtedness at the time of Vessel delivery, or completion of the Shipyard Project, we may approve your application only if you have sufficient outside sources of cash flow to service your indebtedness during this temporary period.<PRTPAGE P="172"/>
              </P>
              <P>(4) With respect to the asset for which Obligations are to be issued, the operating cash flow to Obligation debt service ratio over the term of the Guarantee must be in excess of 1:1. Operating cash flow means revenues less operating and capital expenses including taxes paid but exclusive of interest, accrued taxes, depreciation and amortization for the Title XI asset. Debt service means interest plus principal.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.15</SECTNO>
              <SUBJECT>Investigation fee.</SUBJECT>
              <P>(a) <E T="03">In general.</E> Before we issue a Letter Commitment, you shall pay us an investigation fee. The Letter Commitment will state the fee which is based on the formula in paragraph (b) of this section.</P>
              <P>(1) The investigation fee covers the cost of the investigation of the project described in the application and the participants in the project, the appraisal of properties offered as security, Vessel inspection during construction, reconstruction, or reconditioning (where applicable) and other administrative expenses.</P>
              <P>(2) If, for any reason, we disapprove the application, you shall pay one-half of the investigation fees.</P>
              <P>(b) <E T="03">Base Fee.</E> (1) The investigation fee shall be one-half (<FR>1/2</FR>) of one percent on Obligations to be issued up to and including $10,000,000, plus</P>
              <P>(2) One-eighth (<FR>1/8</FR>) of one percent on all Obligations to be issued in excess of $10,000,000.</P>
              <P>(c) <E T="03">Credit for filing fee.</E> You will receive credit for the $5,000 filing fee that you paid upon filing the original application (described in § 298.3) towards the investigation fee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.16</SECTNO>
              <SUBJECT>Substitution of participants.</SUBJECT>
              <P>(a) You may request our permission to substitute participants to a Mortgage and/or Security Agreement in a financing that is receiving assistance authorized by Title XI of the Act.</P>
              <P>(b) A non-refundable fee of $3,000 is due, payable at the time of the request. The fee defrays all costs of processing and reviewing a joint application by a mortgagor and/or Obligor and a proposed transferee of a Vessel or Shipyard Project, which is security for Title XI debt, if the proposed transferee is to assume the Mortgage and/or the Security Agreement.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.17</SECTNO>
              <SUBJECT>Evaluation of applications.</SUBJECT>
              <P>(a) In evaluating project applications, we shall also consider whether the application provides for:</P>
              <P>(1) The capability of the Vessel(s) serving as a naval and military auxiliary in time of war or national emergency.</P>
              <P>(2) The financing of the Vessel(s) within one year after delivery.</P>
              <P>(3) The acquisition of Vessel(s) currently financed under Title XI by assumption of the total obligation(s).</P>
              <P>(4) The Guarantees extend for less than the normal term for that class of vessel.</P>
              <P>(5) In the case of an Eligible Shipyard, the capability of the shipyard to engage in naval vessel construction in time of war or national emergency.</P>
              <P>(6) In the case of Shipyard Project, the Guarantees extend for less than the technological life of the asset.</P>
              <P>(b) In determining the amount of equity which you must provide, we will consider, among other things, the following:</P>
              <P>(1) Your financial strength;</P>
              <P>(2) Adequacy of collateral; and</P>
              <P>(3) The term of the Guarantees.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.18</SECTNO>
              <SUBJECT>Financing Shipyard Projects.</SUBJECT>
              <P>(a) <E T="03">Initial criteria.</E> We may issue Guarantees to finance a Shipyard Project at a General Shipyard Facility. We may approve such Guarantees after we consider whether the Guarantees will result in shipyard modernization and support increased productivity.</P>
              <P>(b) <E T="03">Detailed statement.</E> You must provide a detailed statement, with the Guarantee application, which will provide the basis for our consideration.</P>
              <P>(c) <E T="03">Required conditions.</E> We shall approve your application for loan guarantees under this section if we determine the following:</P>
              <P>(1) The term for such Guarantees will not exceed the reasonable economic useful life of the collective assets which comprise this Shipyard Project;</P>
              <P>(2) There is sufficient collateral to secure the Guarantee; and</P>

              <P>(3) Your application will not prevent us from guaranteeing debt for a Shipyard Project that, in our sole opinion, <PRTPAGE P="173"/>will serve a more desirable use of appropriated funds. In making this determination, we will consider:</P>
              <P>(i) The types of vessels which will be built by the shipyard,</P>
              <P>(ii) The productivity increases which will be achieved,</P>
              <P>(iii) The geographic location of the shipyard,</P>
              <P>(iv) The long-term viability of the shipyard,</P>
              <P>(v) The soundness of the financial transaction,</P>
              <P>(vi) Any financial impact on other Title XI transactions, and</P>
              <P>(vii) The furtherance of the goals of the Shipbuilding Act.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.19</SECTNO>
              <SUBJECT>Financing Eligible Export Vessels.</SUBJECT>
              <P>(a) <E T="03">Notification to Secretary of Defense.</E> (1) We will provide prompt notice of our receipt of an application for a loan Guarantee for an Eligible Export Vessel to the Secretary of Defense.</P>
              <P>(2) During the 30-day period, beginning on the date on which the Secretary of Defense receives such notice, the Secretary of Defense may disapprove the loan guarantee if the Secretary of Defense makes an assessment that the Vessel's potential use may cause harm to United States national security interests.</P>
              <P>(3) The Secretary of Defense may not disapprove a loan Guarantee under this section solely on the basis of the type of vessel to be constructed with the loan Guarantee. The authority of the Secretary of Defense to disapprove a loan Guarantee under this section may not be delegated to any official other than a civilian officer of the Department of Defense appointed by the President, by and with the advice and consent of the Senate. We will not approve a loan guarantee disapproved by the Secretary of Defense.</P>
              <P>(b) <E T="03">Vessel eligibility.</E> We may not approve a Guarantee for an Eligible Export Vessel unless:</P>
              <P>(1) We find that the construction, reconstruction, or reconditioning of the Vessel will aid in the transition of United States shipyards to commercial activities or will preserve shipbuilding assets that would be essential in time of war or national emergency;</P>
              <P>(2) The owner of the Vessel agrees with us that the Vessel shall not be transferred to any country designated by the Secretary of Defense as a country whose interests are hostile to the interests of the United States; and</P>
              <P>(3) We determine that the countries in which the shipowner, its charterers, guarantors, or other financial interests supporting the transaction, if any, have their chief executive offices or have located a substantial portion of their assets, present an acceptable financial or legal risk to our collateral interests. Our determination will be based on confidential risk assessments provided by the Inter-Agency Country Risk Assessment System and will take into account any other factors related to the loan guarantee transaction that we deem pertinent.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Guarantees</HD>
            <SECTION>
              <SECTNO>§ 298.20</SECTNO>
              <SUBJECT>Term, redemptions, and interest rate.</SUBJECT>
              <P>(a) <E T="03">In general.</E> The maturity date of the Obligations must be satisfactory to us and must not exceed the anticipated physical and economic life of the Vessel or Vessels or Shipyard Project, and may be less than but no more than:</P>
              <P>(1) Twenty-five years from the date of delivery from the shipbuilder of a single new Vessel which is to be security for Guarantees;</P>
              <P>(2) Twenty-five years from the date of delivery from the shipyard of the last of multiple Vessels which are to be security for the Guarantees but that the amount of the Guarantees will relate to the amount of the depreciated actual cost of the multiple Vessels as of the Closing;</P>
              <P>(3) The later of twenty-five years from the date of original delivery of a reconstructed, or reconditioned Vessel which is to be security for the Guarantees, or at the expiration of the remaining useful life of the Vessel, as we determine; or</P>
              <P>(4) The technological life of the Shipyard Project.</P>
              <P>(b) <E T="03">Required redemptions.</E> Where multiple Vessels or multiple Shipyard Project assets are to be used as security for the Guarantees, as set forth in paragraph (a) of this section, we may require payments of principal prior to <PRTPAGE P="174"/>maturity (redemptions) regarding all related Obligations, as we may deem necessary to maintain adequate security for the Guarantees.</P>
              <P>(c) <E T="03">Interest rate.</E> We will make a determination as to the reasonableness of the interest rate of each Obligation, taking into account the range of interest rates prevailing in the private market for similar loans and the risks that we assume.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 298.21</SECTNO>
              <SUBJECT>Limits.</SUBJECT>
              <P>(a) <E T="03">Actual Cost basis.</E> We will issue a guarantee on an amount of the Obligation satisfactory to us based on the economic soundness of the transaction. The Obligation amount may be less than but not more than 75 percent or 87<FR>1/2</FR> percent, whichever is applicable, under the provisions of section 1104A(b)(2) or section 1104B(b)(2) of the Act of the Actual Cost of the Vessel or Vessels or Shipyard Project asset(s).</P>
              <P>(1) If minimum horsepower of the main engine is a requirement for Guarantees up to 87<FR>1/2</FR> percent of the Actual Cost, the standard for the horsepower will be continuous rated horsepower.</P>
              <P>(2) Where we refinance existing debt, the amount of new Obligations we issue for the existing debt may not exceed the lesser of:</P>
              <P>(i) The amount of outstanding debt being refinanced (whether or not receiving assistance under Title XI); or</P>
              <P>(ii) Seventy-five or 87<FR>1/2</FR> percent, whichever is applicable, of the Depreciated Actual Cost of the Vessel or Shipyard Project with respect to which the new Obligations are being issued.</P>
              <P>(b) <E T="03">Actual Cost items.</E> Actual Cost is comprised essentially of those items which would customarily be capitalized as Vessel or Shipyard Project construction costs such as designing, engineering, constructing (including performance bond premiums that we approve), inspecting, outfitting and equipping.</P>

              <P>(1) Cost items include those items usually specified in Vessel or Shipyard Project construction contracts, <E T="03">e.g.,</E> changes and extras, cost of owner furnished equipment, shoreside spare parts and commitment fees and interest on the Obligations or other borrowings incurred during the construction period (excluding interest paid on subordinated debt considered to be Equity), and less income realized from investment of Escrow Fund deposits during the construction period.</P>
              <P>(2) Commissions (which represent a portion of the total shipyard contract price) may be included in the foreign equipment and services amount of the Actual Cost of an export project, provided:</P>
              <P>(i) A majority of the work done by the parties receiving the commissions is in the form of design and engineering work, and</P>
              <P>(ii) The commissions represent a small amount of the total contract price.</P>
              <P>(3) You may include Guarantee Fees determined in accordance with the provisions of section 1104(e) of the Act as an item of Actual Cost.</P>
              <P>(4) In approving an item of Actual Cost, we will consider all pertinent factors.</P>
              <P>(c) <E T="03">Items excludible from Actual Cost.</E> Actual Cost shall not include any other costs such as the following:</P>
              <P>(1) Legal fees or expenses;</P>
              <P>(2) Accounting fees or expenses;</P>
              <P>(3) Commitment fees or interest other than those specifically allowed;</P>
              <P>(4) Fees, commissions or charges for granting or arranging for financing;</P>
              <P>(5) Fees or charges for preparing, printing and filing an application for Title XI Guarantees and supporting documents, for services rendered to obtain approval of the application and for preparing, printing and processing documents relating to the application for Guarantees;</P>
              <P>(6) Underwriting or trustee's fees;</P>
              <P>(7) Foreign, federal, state or local taxes, user fees, or other governmental charges;</P>
              <P>(8) Investigation fee determined in accordance with section 1104(f) of the Act and § 298.15;</P>
              <P>(9) Predelivery Vessel operating expenses, Vessel insurance premiums and other items which may not be properly capitalized by the owner as costs of the Vessel under GAAP;</P>
              <P>(10) The cost of the condition survey required by § 298.11(f) and all work necessary to meet the standards set forth in that paragraph;</P>

              <P>(11) The cost to the Shipowner of a Vessel which is to be reconstructed, or <PRTPAGE P="175"/>reconditioned, <E T="03">e.g.,</E> cost of acquisition or repair work;</P>
              <P>(12) Generally, any amount payable to the shipyard for early delivery of the Vessel;</P>
              <P>(13) Generally, any amount payable to the manufacturer of the Shipyard Project for early delivery of the equipment to the General Shipyard Facility;</P>
              <P>(14) Predelivery Shipyard Project expenses which may not be properly capitalized by the General Shipyard Facility as costs of the Shipyard Project under GAAP; and</P>
              <P>(15) The cost of major foreign components and other foreign components for which there is no waiver and their assembly when comprising any part of the hull and superstructure of a Vessel.</P>
              <P>(d) <E T="03">Substantiation of Actual Cost.</E> (1) Before we make distribution from the Escrow Fund or Construction Fund (described in §§ 298.33 and 298.34), and prior to our final Actual Cost determination for each Vessel or Shipyard Project, you must submit to us documents substantiating all claimed costs eligible under paragraph (b) of this section or, alternatively, appropriate certification of such costs by an agent who has received our approval.</P>
              <P>(2) These documents may include, but need not be limited to, copies of invoices, change orders, subcontracts, and where we require, statements from independent certified or independent licensed public accountants that the costs for which you seek payment or reimbursement were actually paid or are payable for the construction of a Vessel or Shipyard Project.</P>
              <P>(3) You must summarize, index and arrange these documents according to cost categories by following the directions contained in our forms.</P>
              <P>(e) <E T="03">Escalation as part of Actual Cost.</E> Escalation clauses in construction contracts shall be subject to our approval. After a review of the base contract price and the escalation clauses, we shall, in order to estimate the Actual Cost amount to be stated in the Letter Commitment, add to the approved base contract price the amount of estimated escalation as approved by us. We must subsequently approve the amount of escalation cost you claimed as a component of Actual Cost.</P>
              <P>(f) <E T="03">Monies received in respect of construction.</E> (1) If you or any Person acting on your behalf, from time to time receives moneys due for construction of a Vessel or Shipyard Project (described in the Security Agreement) from the shipbuilder, guarantors, sureties or other Persons, you shall give us written notice of such fact.</P>
              <P>(2) As long as we have not paid the Guarantees, you or other recipient shall promptly deposit these moneys in a Depository with a written notice that the Depository shall hold such moneys on deposit until it receives written instructions from us as to their disposition.</P>
              <P>(3) We will determine the extent to which Actual Cost is to be reduced by these moneys.</P>
              <P>(4) In no event shall Actual Cost be reduced with respect to payments by the shipyard to a Vessel or Shipyard Project owner of liquidated damages for late delivery of the Vessel or Shipyard Project .</P>
              <P>(5) If we have paid the Guarantees, you or other recipient must promptly pay these moneys, including any liquidated damages, to us for deposit into the Maritime Guaranteed Loans account.</P>
              <P>(g) <E T="03">Depreciated Actual Cost.</E> After a Vessel or Shipyard Project has been delivered or redelivered (in the case of reconstruction or reconditioning), the limitation on the amount of Guarantees will be 75 or 87<FR>1/2</FR> percent, whichever is applicable, of the Depreciated Actual Cost of the Vessel or Shipyard Project.</P>
              <EFFDNOTP>
                <HD SOURCE="HED">Effective Date Note:</HD>
                <P>At 67 FR 61282, Sept. 30, 2002, § 298.21 was amended by revising paragraph (f)(2), effective Oct. 30, 2002. For the convenience of the user the revised text follows:</P>
                <REVTXT>
                  <SECTION>
                    <SECTNO>§ 298.21</SECTNO>
                    <SUBJECT>Limits.</SUBJECT>
                    <STARS/>
                    <P>(f) * * *</P>
                    <P>(2) As long as we have not paid the Guarantees, you or other recipient shall promptly deposit these moneys with us to be held by the Depository in accordance with the Depository Agreement.<STARS/>
                    </P>
                  </SECTION>
                  <SECTION>
                    <PRTPAGE P="176"/>
                    <SECTNO>§ 298.22</SECTNO>
                    <SUBJECT>Amortization of Obligations.</SUBJECT>
                    <P>(a) Generally, after delivery or completion of Shipyard Project, and until maturity of the Obligations, provisions of the Trust Indenture or other part of the Documentation require you to make periodic payment of principal and interest on the Obligations.</P>
                    <P>(b) Usually, the payment of principal (amortization) shall be made semi-annually, but in no event, less frequently than on an annual basis, and in either case the amortization shall be in equal payments of principal (level principal), unless we consent to the periodic payment of a constant aggregate amount, comprised of both interest and principal components which are variable in amount (level payment). No other proposed method of amortization will be allowed which would reduce the amount of periodic amortization below that determined under the level principal or level payment basis at any time prior to maturity of the Obligations, except where:</P>
                    <P>(1) You can demonstrate to our satisfaction that there will be adequate funds to discharge the Obligations at maturity;</P>
                    <P>(2) You establish a fund acceptable to us in which you deposit an equal annual amount necessary to redeem the outstanding Obligations at maturity; or</P>
                    <P>(3) With regard to Eligible Export Vessels, in accordance with such other terms as we determine to be more favorable and to be compatible with export credit terms offered by foreign governments for the sale of vessels built in foreign shipyards.</P>
                    <EFFDNOTP>
                      <HD SOURCE="HED">Effective Date Note:</HD>
                      <P>At 67 FR 61282, Sept. 30, 2002, § 298.22 was amended by revising paragraph (b)(2), effective Oct. 30, 2002. For the convenience of the user the revised text follows:</P>
                      <REVTXT>
                        <SECTION>
                          <SECTNO>§ 298.22</SECTNO>
                          <SUBJECT>Amortization of Obligations.</SUBJECT>
                          <STARS/>
                          <P>(b) * * *</P>
                          <P>(2) You establish a fund with the Depository in which you deposit an equal annual amount necessary to redeem the outstanding Obligations at maturity; or<STARS/>
                          </P>
                        </SECTION>
                        <SECTION>
                          <SECTNO>§ 298.23</SECTNO>
                          <SUBJECT>Refinancing.</SUBJECT>
                          <P>(a) We may approve guarantees of Obligations to be secured by one or more Vessels or a Shipyard Project issued to refinance existing Title XI debt for either Vessels or for Shipyard Project and existing non-Title XI debt, so long as the existing debt has been previously issued for one of the purposes set forth in sections 1104(a)(1) through (4) of the Act. Section 1104 (a) (1) of the Act requires that, if the existing indebtedness was incurred more than one year after the delivery or redelivery of the related Vessel or Shipyard Project, the proceeds of such Obligations will be applied to the construction, reconstruction or reconditioning of other Vessels or Shipyard Project or as provided in § 298.24.</P>
                          <P>(b) We shall require any security lien on the Vessel(s) or Shipyard Project to be discharged immediately before we place a Mortgage or other security interest on any of the above assets. You must satisfy all necessary eligibility requirements as set forth in subpart B of this part, including economic soundness.</P>
                        </SECTION>
                        <SECTION>
                          <SECTNO>§ 298.24</SECTNO>
                          <SUBJECT>Financing a Vessel more than a year after delivery.</SUBJECT>
                          <P>(a) We may approve Guarantees for a Vessel which has been delivered (or redelivered in the case of reconstruction or reconditioning of a Vessel) more than one year prior to the issuance of the Guarantees only if:</P>
                          <P>(1) The issuance of the Guarantees would otherwise satisfy the requirements of the Act and the regulations in this part, and</P>
                          <P>(2) The proceeds of the Obligation financing such existing Vessel are used to finance:</P>
                          <P>(i) The construction, reconstruction, or reconditioning of a different Vessel within one year of that Vessel's delivery or redelivery, as the case may be, or</P>

                          <P>(ii) Facilities or equipment pertaining to marine operations. Such facilities or equipment must be of a specialized nature, used principally for servicing vessels and in handling waterborne cargo in the close proximity of the berthing area, excluding over-the-road equipment (other than chassis and containers), permanent or <PRTPAGE P="177"/>semipermanent structures and real estate, as well as new or less than one year old.</P>
                          <P>(b) At the Closing of Guarantees covered by this section, you must deposit the proceeds of the Obligation into an Escrow Fund established to pay for the cost unless you demonstrate to our satisfaction that all such costs have been paid.</P>
                        </SECTION>
                        <SECTION>
                          <SECTNO>§ 298.25</SECTNO>
                          <SUBJECT>Excess interest or other consideration.</SUBJECT>
                          <P>We shall not execute Guarantees if any agreement in the Documentation directly or indirectly provides for:</P>
                          <P>(a) The payment to an Obligee of interest, or other compensation for services which have not been performed, in a manner that such compensation or payment is being provided as interest in excess of the rate approved by us; or</P>
                          <P>(b) Grants of security to an Obligee in addition to the Guarantees.</P>
                        </SECTION>
                        <SECTION>
                          <SECTNO>§ 298.26</SECTNO>
                          <SUBJECT>Lease payments.</SUBJECT>
                          <P>You must obtain our approval of the amount and conditions of lease or charter hire payments if the payment of principal and interest on Obligations would be dependent, in any way, upon the lease or charter hire payments for a Vessel or Shipyard Project.</P>
                        </SECTION>
                        <SECTION>
                          <SECTNO>§ 298.27</SECTNO>
                          <SUBJECT>Advances.</SUBJECT>
                          <P>(a) <E T="03">In general.</E> (1) In accordance with section 207 and Title XI of the Act, we have the discretion to make or commit to make an advance or payment of funds to, or on behalf of the owner, or operator or directly to any other person or entity for items, including, but not limited to:</P>
                          <P>(i) Principal,</P>
                          <P>(ii) Interest,</P>
                          <P>(iii) Insurance, and</P>
                          <P>(iv) Other vessel-related expenses or fees.</P>
                          <P>(2) We will make advances or payments only to protect, preserve or improve the collateral held as our security for Title XI debt.</P>
                          <P>(3) When requesting an advance, you must demonstrate that:</P>
                          <P>(i) Your problems are short term (less than two years) by using market and cash flow analysis and other projections.</P>
                          <P>(ii) An advance(s), would assist you over temporary difficulties; and</P>
                          <P>(iii) There is adequate collateral for the advance.</P>
                          <P>(b) <E T="03">Filing requirements.</E> (1) You shall apply for an advance or other payment as early as is reasonably possible.</P>
                          <P>(2) <E T="03">Principal and interest payments.</E> We must receive a request for an advance for principal and interest payments at least 30 days before the initial payment date.</P>
                          <P>(3) <E T="03">Insurance payments.</E> We must receive a request for an advance of insurance payments at least 30 days before a renewal or termination date.</P>
                          <P>(4) <E T="03">Extenuating circumstances.</E> We may consider requests for assistance with less notice, upon written documentation of extenuating circumstances.</P>
                          <P>(5) <E T="03">Supporting data.</E> Any requests for assistance must be accompanied by supporting data regarding:</P>
                          <P>(i) Need for the advance,</P>
                          <P>(ii) Financial assistance you sought from other sources,</P>
                          <P>(iii) The measures that you are taking and have taken to alleviate the situation,</P>
                          <P>(iv) Financial projections,</P>
                          <P>(v) Proposed term of the repayment,</P>
                          <P>(vi) Current and projected market conditions,</P>
                          <P>(vii) Information on other available collateral,</P>
                          <P>(viii) Liens and other creditor information, and</P>
                          <P>(ix) Any other information which we may request.</P>
                        </SECTION>
                        <SUBPART>
                          <HD SOURCE="HED">Subpart D—Documentation</HD>
                          <SECTION>
                            <SECTNO>§ 298.30</SECTNO>
                            <SUBJECT>Nature and content of Obligations.</SUBJECT>
                            <P>(a) <E T="03">Single page.</E> An Obligation, in the form of a note, bond of any type, or other debt instrument, when engraved, printed or lithographed on a single sheet of paper must include on its face the:</P>
                            <P>(1) Name of the Obligor,</P>
                            <P>(2) Principal sum,</P>
                            <P>(3) Rate of interest,</P>
                            <P>(4) Date of maturity, and</P>
                            <P>(5) Guarantee of the United States, authenticated by the Indenture Trustee, if any.</P>
                            <P>(b) <E T="03">Several pages.</E> If the Obligation is typewritten, printed or reproduced by <PRTPAGE P="178"/>other means on several pages of paper, the Guarantee of the United States and the authentication certificate of the Indenture Trustee, if any, may appear at the end of the typewritten Obligation.</P>
                            <P>(c) <E T="03">Rights and responsibilities.</E> The instrument which is evidence of indebtedness shall also contain all information necessary to apprise the Obligees of their rights and responsibilities including, but not limited to:</P>
                            <P>(1) Time and manner for payment of principal and interest,</P>
                            <P>(2) Redemptions,</P>
                            <P>(3) Default procedure, and</P>
                            <P>(4) Notification (in case of registered Obligations) of sale or other transfer of the instruments.</P>
                          </SECTION>
                          <SECTION>
                            <SECTNO>§ 298.31</SECTNO>
                            <SUBJECT>Mortgage.</SUBJECT>
                            <P>(a) <E T="03">In general.</E> Under normal circumstances, a Guarantee shall not be endorsed on any Obligation until we receive satisfactory evidence that we hold a Mortgage in one or more Vessels or a Mortgage or other security interest in the Shipyard Project. During construction of a new Vessel or any Shipyard Project, a security interest may be perfected by a filing under the Uniform Commercial Code.</P>
                            <P>(b) <E T="03">Ensuring validity of security interest.</E> In order to ensure that our Mortgages or other security interests are valid and enforceable, we shall require that the Obligor obtain legal opinions, in form and substance satisfactory to us, from independent, outside legal counsel satisfactory to us, including foreign independent outside legal Counsel for Eligible Export Vessels, which opinions shall state, among other things, that the Mortgage or other security interest(s) are valid and enforceable:</P>
                            <P>(1) In the country in which the Vessel is documented (or, in the case of a security interest, in jurisdictions acceptable to us);</P>
                            <P>(2) In the United States; and</P>
                            <P>(3) For vessels operating on specified trade routes, in the country or countries involved in this service, unless we determine that those destinations are too numerous, in which case, we will instead require an opinion of foreign validity and enforceability in the Vessel's primary port of operation.</P>
                            <P>(c) <E T="03">Alternative forms of security.</E> In the case where a Mortgage or security interest on the financed assets may not be available or enforceable, we will require alternative forms of security.</P>
                            <P>(d) <E T="03">Mortgage in our favor.</E> The Security Agreement shall provide that upon delivery of a new Vessel or upon final completion of the Shipyard Project, or at the time Guarantees are issued with respect to an existing Vessel or the Shipyard Project, a Mortgage on the Vessel and a Mortgage or other security interest on the Shipyard Project will be executed in our favor, unless we determine that a Mortgage or a security interest is not available or enforceable in accordance with paragraph (c) of this section.</P>
                            <P>(e) <E T="03">Filing.</E> You must file the Mortgage with the United States Coast Guard's National Vessel Documentation Center. You must file the Mortgage for an Eligible Export Vessel with the proper foreign authorities. For assets of a General Shipyard Facility, you must file a Mortgage and security interest with the proper authorities within the appropriate state for recording. After you have recorded the Mortgage, you must deliver to us the Mortgage and evidence of the filing of the security interest.</P>
                            <P>(f) <E T="03">Mortgage secured by multiple Vessels.</E> (1) When two or more Vessels are to be security for Guarantees, the Security Agreement may provide that one Mortgage relating to all the Vessels (Fleet Mortgage) shall be executed, perfected and delivered to us by the Obligor.</P>
                            <P>(2) If the Fleet Mortgage relates to undelivered Vessels, the Fleet Mortgage will be executed upon delivery of the first vessel. At the time of each subsequent Vessel delivery, the Obligor shall execute a supplement to the Fleet Mortgage which makes that Vessel subject to our Mortgage lien.</P>

                            <P>(3) The Fleet Mortgage shall provide that payment by the Obligor of the entire amount of Obligations covered or to be covered by Guarantees shall be required to discharge the Fleet Mortgage, regardless of the amount of the Secretary's Note or Notes issued and outstanding at the time of execution and delivery of the Fleet Mortgage or <PRTPAGE P="179"/>the number of Vessels covered by the Fleet Mortgage.</P>
                            <P>(4) The discharge date of the Fleet Mortgage shall be the maturity date of the Secretary's Note. We may require, as authorized by section 1104(c)(2) of the Act, such payments of principal prior to maturity (redemptions), regarding all related Obligations, as deemed necessary to maintain adequate security for the Guarantees.</P>
                            <P>(5) Each Fleet Mortgage shall provide that in the event of constructive total loss, requisition of title or sale of any Vessel covered by the Fleet Mortgage, indebtedness represented by the Obligations shall be paid, unless we otherwise determine that there remains adequate security for the Guarantees, and the Vessel shall be discharged from the Mortgage lien.</P>
                            <P>(g) Adequacy of collateral. (1) Under normal circumstances, a First Preferred Mortgage on the Vessel(s) or Shipyard Project will be adequate security for the Guarantees.</P>
                            <P>(2) If, however, we determine that the Mortgage on the Vessel(s) or Shipyard Project is not sufficient to provide adequate security, as a condition to approving the Letter Commitment or processing the application, we may require additional collateral, such as a mortgage(s) on other vessel(s) or Shipyard Project or on other assets, special escrow funds, pledges of stock, charters, contracts, notes, letters of credit, accounts receivable assignments, and guarantees.</P>
                          </SECTION>
                          <SECTION>
                            <SECTNO>§ 298.32</SECTNO>
                            <SUBJECT>Required provisions in documentation.</SUBJECT>
                            <P>(a) Performance under shipyard and related contracts. Generally, shipyard and related contracts must contain provisions for:</P>
                            <P>(1) Furnishing by the shipyard or contractor of the Shipyard Project of satisfactory insurance and a satisfactory performance bond where Obligations are issued during the construction period, except that if the shipyard or contractor of the Shipyard Project demonstrates to our satisfaction that it has sufficient financial resources and operational capacity to complete the project, posting of a bond will not be required;</P>
                            <P>(2) Allowing access to the Vessel or Shipyard Project, as well as all related work projects being performed by the contractor and subcontractors, to our representative, at all reasonable times, to inspect performance of the work and to observe trials and other tests for the purpose of determining that the Vessel or Shipyard Project is being constructed, reconstructed, or reconditioned in accordance with contract plans and specifications approved by us;</P>
                            <P>(3) Submitting to us, upon request, one set of shipyard plans, in form and substance satisfactory to us, for the Vessel or Shipyard Project as built;</P>
                            <P>(4) Making periodic payments for the work in accordance with an agreed schedule, submitted by the shipyard or contractor, as appropriate, in a form acceptable to us, based on percentage of completion, after such percentage and satisfactory performance are certified by the Obligor, shipyard or contractor, as appropriate, and our representative as to each payment;</P>
                            <P>(5) Prohibiting the use of proceeds from the sale of Obligations for the payment of work performed outside the shipyard, unless we consent in writing to such use; and</P>
                            <P>(6) Requiring that all components of the hull and superstructure of a U.S.-documented Vessel and an Eligible Export Vessel shall be assembled in the United States.</P>
                            <P>(7) If Obligation will not be issued during the construction period of the Vessel and Shipyard Project, requiring that shipyard-related contracts shall generally include the provisions specified in paragraphs (a)(2), (a)(3) and (a)(6) of this section.</P>
                            <P>(b) <E T="03">Assignments and general covenants from Obligor to us.</E> The Obligor shall assign rights and shall covenant with us, as we require, including, but not limited to, the following:</P>

                            <P>(1) Assignment of all or part of the right, title and interest under the construction contract and related contracts, except those rights expressly reserved therein by the Obligor relating to such things as patent infringement and liquidated damages;<PRTPAGE P="180"/>
                            </P>
                            <P>(2) Assignment of rights to receive all moneys which from time to time become due regarding Vessel or Shipyard Project construction;</P>
                            <P>(3) Assignment, where applicable, of all or a part of the bareboat charter, time charter, contracts of affreightment or other agreements relating to the use of the Vessel or Shipyard Project and all hire payable to the Obligor, and delivery to us of required consents by appropriate parties to any such assignments;</P>
                            <P>(4) Covenants relating to the filing of satisfactory evidence of continuing United States citizenship, in accordance with 46 CFR part 355, with the exception of Eligible Export Vessels and shipyards with Shipyard Projects; warranty of Vessel or Shipyard Project title free from all liens other than those specifically excepted; maintaining United States documentation of the Vessel or documentation under the laws of a country other than the United States with regard to an Eligible Export Vessel; compliance with the provisions of 46 U.S.C. 31301-31343, except that Eligible Export Vessels shall comply with the definition of a “preferred mortgage” in 46 U.S.C. 31301(6)(B), requiring, among other things, that the Mortgage shall comply with the mortgage laws of the foreign country where the Vessel is documented and shall have been registered under those laws in a public register; Notice of Mortgage, payment of all taxes (except if being contested in good faith); annual financial statements audited by independent certified or independent licensed public accountant.</P>
                            <P>(5) Covenants to keep records of construction costs paid by or for the Obligor's account and to furnish us with a detailed statement of those costs, distinguishing between:</P>
                            <P>(i) Items paid or obligated to be paid, attested to by independent certified public accountants unless otherwise verified by us; and</P>
                            <P>(ii) Costs of American and foreign materials (including services) in the hull and superstructure.</P>
                            <P>(6) Covenants to maintain Marine and War Risk Hull and Machinery insurance on the Vessel or Eligible Export Vessel in an amount equal to 110% of the outstanding Obligations or up to the full commercial value of the Vessel or Eligible Export Vessel, whichever is greater; Marine and War Risk Protection and Indemnity insurance; Interim War Risk Binders for Hull and Machinery, and Protection and Indemnity coverages underwritten by us as authorized by Title XII of the Act; and such additional insurance as may be required by us. All insurance required to be maintained shall be placed with the United States Government and American and/or British (and/or other foreign, if permitted by us by prior written notice) insurance companies, underwriters' associations or underwriting funds approved by us through marine insurance brokers and/or underwriting agents approved by us. All insurance required to be maintained shall be placed under the latest (at the time of issue) forms of American Institute of Marine Underwriters policies approved by us and/or under such other forms of policies which we may approve in writing and/or policies issued by or for us insuring the Vessel or Eligible Export Vessel against the usual risks provided for under such forms, including such amounts of increase value or other forms of “that total loss only” insurance permitted by the Hull and Machinery insurance policies;</P>
                            <P>(7) Collateralize other debt due to us under other Title XI financings;</P>
                            <P>(8) Covenants to maintain shipyard insurance on the Shipyard Project in an amount equal to 110% of the outstanding Obligations or up to the full commercial value of the Shipyard Project, whichever is greater, and such additional insurance as may be required by us; and</P>

                            <P>(9) Covenants to maintain additional types of insurance as may be required by us with respect to Eligible Export Vessels, <E T="03">i.e.</E> political risk insurance, to cover such items as the political, financial, and/or economic risk in a foreign country.</P>
                          </SECTION>
                          <SECTION>
                            <SECTNO>§ 298.33</SECTNO>
                            <SUBJECT>Escrow fund.</SUBJECT>
                            <P>(a) <E T="03">Escrow Fund Deposits.</E> At the time of the sale of the Obligations, the Obligor shall deposit with us in an escrow fund (the “Escrow Fund”) all of the proceeds of that sale unless the Obligor is entitled to withdraw funds under <PRTPAGE P="181"/>paragraph (b) of this section. The Obligor must also deposit into the Escrow Fund on the Closing date an amount equal to six months interest at the rate borne by the Obligations, unless we find the existence of adequate consideration or accept other consideration in lieu of the interest deposit.</P>
                            <P>(b) <E T="03">Escrow Fund Withdrawals.</E> You, as Obligor, may make a written request for us to disburse funds from the Escrow Fund. Within a reasonable time thereafter, we shall disburse directly to the Indenture Trustee, any Paying Agent for such Obligations, or any other Person entitled to payment any amount which you are obligated to pay or have paid, on account of the items and amounts or any other item approved by us, provided that we are satisfied with the accuracy and completeness of the information contained in the following submissions:</P>
                            <P>(1) A responsible officer of the Obligor shall deliver an officer's certificate, in form and substance satisfactory to us, stating that:</P>
                            <P>(i) There is no default under the construction contract or the Security Agreement;</P>
                            <P>(ii) There have been no occurrences which have or would adversely and materially affect the condition of the Vessel, its hull or any of its component parts, or the Shipyard Project;</P>
                            <P>(iii) The amounts of the request are in accordance with the construction contract including the approved disbursement schedule and each item in these amounts is properly included in ourapproved estimate of Actual Cost;</P>
                            <P>(iv) With respect to the request, once the contractor is paid there will be no liens or encumbrances on the applicable Vessel, its hull or component parts, or the Shipyard Project for which the withdrawal is being requested except for those already approved by us; and</P>
                            <P>(v) If the Vessel or Shipyard Project has already been delivered or completed, it is in class, if required, and is being maintained in the highest and best condition. The Obligor must also attach an officer's certificate of the shipyard and other general contractors, in form and substance satisfactory to us, stating that there are no liens or encumbrances as provided in paragraph (b)(1)(iv) of this section and attaching the invoices and receipts supporting each proposed withdrawal to our satisfaction.</P>
                            <P>(2) No payment or reimbursement under this section shall be made:</P>
                            <P>(i) To any Person until the Construction Fund, if any, has been exhausted,</P>
                            <P>(ii) To any Person until the total amount paid by or for the account of the Obligor from sources other than the proceeds of such Obligations equals at least 12<FR>1/2</FR> percent or 25 percent as applicable, of the Actual Cost of the Vessel or Shipyard Project is made;</P>
                            <P>(iii) To the Obligor which would have the effect of reducing the total amounts paid by the Obligor pursuant to paragraph (b)(2)(ii) of this section; or</P>
                            <P>(iv) To any Person on account of items, amounts or increases representing changes and extras or owner furnished equipment, if any, unless such items, amounts and increases shall have been previously approved by us; provided, however, that when the amount guaranteed by us equals 75 percent or less of the Actual Cost and the Obligor demonstrates to our satisfaction the ability to pay in the remaining 25 percent, or more, then after the initial 12<FR>1/2</FR> percent of Actual Cost has been paid by or on behalf of the Obligor for such Vessel or completed Shipyard Project and up to 37<FR>1/2</FR> percent of Actual Cost has been withdrawn from the Escrow Fund for such Vessel or Shipyard Project, the Obligor must pay the remaining Obligor's equity of at least 12<FR>1/2</FR> percent (as determined by us) before additional monies can be withdrawn from the Escrow Fund relating to such Vessel or Shipyard Project.</P>
                            <P>(3) We will not be required to make any disbursement except out of the cash available in the Escrow Fund. If any sale or payment on maturity results in a loss in the principal amount of the Escrow Fund invested in securities so sold or matured, the requested disbursement from the Escrow Fund shall be reduced by an amount equal to such loss, and the Obligor must pay to any Person entitled thereto, the balance of the requested disbursement from the Obligor's funds other than the proceeds of such Obligations.</P>

                            <P>(4) If we assume the Obligor's rights and duties under the Obligations or we <PRTPAGE P="182"/>pay the Guarantees, all amounts in the Escrow Fund (including realized income which has not yet been paid to the Obligor), shall be paid to us and be credited against any amounts due or to become due to us under the Security Agreement and the Secretary's Note.</P>
                            <P>(5) Other rights and duties with respect to withdrawals from the Escrow Fund shall be set out in the closing documentation in form and substance satisfactory to us.</P>
                            <P>(c) <E T="03">Investment and liquidation of the Escrow Fund</E>. We may invest the Escrow Fund in obligations of the United States. We will deposit amounts in the Escrow Fund into an account with the U.S. Treasury Department and upon agreement with the Obligor, shall deliver to the U.S. Treasury Department instructions for the investment, reinvestment and liquidation of the Escrow Fund. We will have no liability to the Obligor for acting in accordance with such instructions.</P>
                            <P>(d) <E T="03">Income on the Escrow Fund</E>. Unless there is an existing default, any income realized on the Escrow Fund shall be paid to the Obligor upon our receipt of such income.</P>
                            <P>(e) <E T="03">Termination date of the Escrow Fund</E>. The Escrow Fund shall terminate 90 days after the delivery date of the last Vessel or Shipyard Project covered by the Security Agreement (the “Termination Date”). In the event that on such date the payment of the full amount of the aggregate Actual Cost of all of the Vessels or Shipyard Project has not been made or the amounts with respect to such Actual Cost are not then due and payable, then we and the Obligor by written agreement shall extend the Termination Date for such period as we and the Obligor shall determine is sufficient to allow for such contingencies. Any amounts remaining in the Escrow Fund on the Termination Date which are in excess of 87<FR>1/2</FR> percent or 75 percent of Actual Cost, as the case may be, shall be applied to retire a pro rata portion of the Obligations.</P>
                            <EFFDNOTP>
                              <HD SOURCE="HED">Effective Date Note:</HD>
                              <P>At 67 FR 61282, Sept. 30, 2002, § 298.33 was amended in paragraph (a), by removing the word “us” and adding the words “the Depository” in its place, and by removing paragraph (b)(2)(i) and redesignating paragraphs (b)(2) (ii) through (iv) as paragraphs (b)(2) (i) through (iii), effective Oct. 30, 2002.</P>
                            </EFFDNOTP>
                          </SECTION>
                          <SECTION>
                            <SECTNO>§ 298.34</SECTNO>
                            <SUBJECT>Construction fund.</SUBJECT>
                            <P>(a) <E T="03">Circumstances requiring deposits</E>. (1) When the Security Agreement provides for the establishment of an Escrow Fund, the Obligor shall also make Construction Fund deposits when the Obligor:</P>
                            <P>(i) Submits a claim to the agency that it has previously paid for items of Actual Cost and</P>
                            <P>(ii) Is seeking reimbursement at the Closing.</P>
                            <P>(2) The Obligor shall make the Construction Fund deposits as follows:</P>
                            <P>(i) At the time of the sale of the Obligations, the Obligor shall deposit with the Depository cash equal to the principal amount of the Obligations issued at such time less the sum of the aggregate principal amount then required to be in the Escrow Fund, and</P>
                            <P>(ii) The amount in excess of 12<FR>1/2</FR> or 25 percent of Actual Cost or Depreciated Actual Cost, as applicable (whichever is payable under § 298.33(b) which we determine has been paid by or for the account of the Obligor.</P>
                            <P>(b) <E T="03">Security interest and control</E>. We must have a security interest in and control over the Construction Fund and its proceeds.</P>
                            <P>(c) <E T="03">Balance of the proceeds</E>. The Obligor will retain the balance of the proceeds, if any, from the sale of the Obligations, after depositing the amounts required to be deposited in the Escrow Fund and/or the Construction Fund.</P>
                            <P>(d) <E T="03">Withdrawals and redeposits</E>. We shall, subject to the satisfaction of any applicable conditions contained in the Security Agreement, periodically approve disbursements from the Construction Fund under the same procedures and conditions as from the Escrow Fund in § 298.33(b), except the request for withdrawal will not be subject to § 298.33(b)(2)(i) and (e). The administration of the Construction Fund shall also be subject to the terms and conditions of § 298.33.</P>
                            <EFFDNOTP>
                              <HD SOURCE="HED">Effective Date Note:</HD>
                              <P>At 67 FR 61282, Sept. 30, 2002,§ 298.34 was removed and reserved, effective Oct. 30, 2002.</P>
                            </EFFDNOTP>
                          </SECTION>
                          <SECTION>
                            <PRTPAGE P="183"/>
                            <SECTNO>§ 298.35</SECTNO>
                            <SUBJECT>Title XI Reserve Fund and Financial Agreement.</SUBJECT>
                            <P>(a) <E T="03">Purpose</E>. In order to provide us with further security and to ensure payment of the interest and principal due on the Obligations, we will require the Company to enter into a Title XI Reserve Fund and Financial Agreement (Agreement) at the first Closing at which the Company issues Obligations. We may waive or modify provisions of the Agreement based on our evaluation of the aggregate security for the Guarantees.</P>
                            <P>(b) <E T="03">Financial covenants</E>. There will be two sets of covenants. One set of covenants will be imposed regardless of the Company's financial condition (primary covenants). The other set of covenants will be imposed only if the Company does not meet specific financial conditions (supplemental covenants). The primary and supplemental covenants are to be set forth in the Agreement. Covenants shall be imposed on the Company as follows:</P>
                            <P>(1) <E T="03">Primary covenants</E>. So long as Guarantees are in effect the Company shall not, without our prior written consent:</P>
                            <P>(i) Make any distribution of earnings, except as may be permitted as follows:</P>
                            <P>(A) From retained earnings in an amount specified in paragraph (b)(1)(i)(C) of this section, provided that, in the fiscal year in which the distribution of earnings is made there is no operating loss to the date of such payment of such distribution of earnings, and there was no operating loss in the immediately preceding three fiscal years, or there was a one-year operating loss during the immediately preceding three fiscal years, but such loss was not in the immediately preceding fiscal year, and there was positive net income for the three year period;</P>
                            <P>(B) If distributions of earnings may not be made under paragraph (b)(1)(i)(A) of this section, a distribution can be made in an amount equal to the total operating net income for the immediately preceding three fiscal year period, provided that:</P>
                            <P>(<E T="03">1</E>) There were no two successive years of operating losses;</P>
                            <P>(<E T="03">2</E>) There is no operating loss to the date of such distribution in the fiscal year in which such distribution is made; and</P>
                            <P>(<E T="03">3</E>) The distribution of earnings made would not exceed an amount specified in paragraph (b)(1)(i)(C) of this section;</P>
                            <P>(C) Distributions of earnings may be made from earnings of prior years in an aggregate amount equal to 40 percent of the Company's total net income after tax for each of the prior years, less any distributions that were made in such years; or the aggregate of the Company's total net income after tax for such prior years, provided that, after making such distribution, the Company's Long-Term Debt does not exceed its Net Worth. In computing net income for purposes of this paragraph (b)(1)(i)(C), extraordinary gains, such as gains from the sale of assets, will be excluded;</P>
                            <P>(ii) Enter into any service, management or operating agreement for the operation of the Vessel or the Shipyard Project (excluding husbanding type agreements), or appoint or designate a managing or operating agent for the operation of the Vessel or the Shipyard Project (excluding husbanding agents) unless approved by us;</P>
                            <P>(iii) Sell, mortgage, transfer, or demise charter the Vessel or the Shipyard Project or any assets to any non-Related Party except as permitted in paragraph (b)(1)(vii) of this section or sell, mortgage, transfer, or demise charter the Vessel or any assets to a Related Party, unless such transaction is at a fair market value as determined by an independent appraiser acceptable to us, and is a total cash transaction;</P>
                            <P>(iv) Enter into any agreement for both sale and leaseback of the same assets so sold unless the proceeds from such sale are at least equal to the fair market value of the property sold;</P>
                            <P>(v) Guarantee, or otherwise become liable for the obligations of any other Person, except with respect to any undertakings as to the fees and expenses of the Indenture Trustee, except endorsement for deposit of checks and other negotiable instruments acquired in the ordinary course of business and except as otherwise permitted in this section;</P>

                            <P>(vi) Directly or indirectly embark on any new enterprise or business activity <PRTPAGE P="184"/>not directly connected with the business of shipping or other activity in which the Company is actively engaged;</P>

                            <P>(vii) Enter into any merger or consolidation or convey, sell, demise charter, or otherwise transfer, or dispose of any portion of its properties or assets (any and all of which acts are encompassed within the words “sale” or “sold” as used in this section), provided that, the Company will not be deemed to have sold such properties or assets if the net book value of the aggregate of all the assets sold by the Company during any period of 12 consecutive calendar months does not exceed ten percent of the total net book value of all of the Company's assets; the Company retains the proceeds of the sale of assets for use in accordance with the Company's regular business activities; and the sale is not otherwise prohibited by paragraph (b)(1)(iii) of this section. The Company may not consummate such sale without our prior written consent if the Company has not, prior to the time of such sale, submitted to us, as required, its most recently audited financial statements referred to in § 298.42(a) and any attempt to consummate a sale absent such approval will be null and void <E T="03">ab initio.</E>
                            </P>
                            <P>(2) <E T="03">Supplemental Covenants which may become applicable</E>. Unless, after giving effect to such transaction or transactions, during any fiscal year of the Company, the Company's Working Capital is equal to at least one dollar, the Company's Long-Term Debt does not exceed two times the Company's Net Worth and the Company's Net Worth is at least the amount specified by us, the Company shall not, without our prior written consent:</P>
                            <P>(i) Withdraw any capital;</P>
                            <P>(ii) Redeem any share capital or convert any of the same into debt;</P>
                            <P>(iii) Pay any dividend (except dividends payable in capital stock of the Company);</P>
                            <P>(iv) Make any loan or advance (except advances to cover current expenses of the Company), either directly or indirectly, to any stockholder, director, officer, or employee of the Company, or to any other Related Party;</P>
                            <P>(v) Make any investments in the securities of any Related Party;</P>
                            <P>(vi) Prepay in whole or in part any indebtedness to any stockholder, director, officer, or employee of the Company, or to any Related Party, which has a stated maturity of more than one year from such date;</P>
                            <P>(vii) Increase any direct employee compensation (as defined in this paragraph) paid to any employee in excess of $100,000 per annum; nor increase any direct employee compensation which is already in excess of $100,000 per annum; nor initially employ or re-employ any person at a direct employee compensation rate in excess of $100,000 per annum; provided, however, that beginning with January 1, 2000 the $100,000 limit may be increased annually based on the previous years' closing Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics. For the purpose of this paragraph, the term “direct employee compensation” is the total amount of any wage, salary, bonus commission, or other form of direct payment to any employee from all companies with guarantees under the Act as reported to the Internal Revenue Service for any fiscal year.</P>
                            <P>(viii) Acquire any fixed assets other than those required for the maintenance of the Company's existing assets, including normal maintenance and operation of any vessel or vessels owned or chartered by the Company;</P>
                            <P>(ix) Either enter into or become liable (directly or indirectly) under charters and leases (having a term of six months or more) for the payment of charter hire and rent on all such charters and leases which have annual payments aggregating in excess of an amount specified by us;</P>
                            <P>(x) Pay any indebtedness subordinated to the Obligations or to any other Title XI obligations;</P>
                            <P>(xi) Create, assume, incur, or in any manner become liable for any indebtedness, except current liabilities, or short term loans, incurred or assumed in the ordinary course of business as such business presently exists;</P>

                            <P>(xii) Make any investment whether by acquisition of stock or indebtedness, or by loan, advance, transfer of property, capital contribution, guarantee of <PRTPAGE P="185"/>indebtedness or otherwise, in any Person, other than obligations of the United States, bank deposits or investments in securities of the character permitted for monies in the Title XI Reserve Fund; and,</P>
                            <P>(xiii) Create, assume, permit or suffer to exist or continue any mortgage, lien, charge or encumbrance upon, or pledge of, or subject to the prior payment of any indebtedness, any of its property or assets, real or personal, tangible or intangible, whether now owned or thereafter acquired, or own or acquire, or agree to acquire, title to any property of any kind subject to or upon a chattel mortgage or conditional sales agreement or other title retention agreement, except loans, mortgages and indebtedness guaranteed by us under Title XI of the Act or related to the construction of a vessel approved for Title XI by us, and liens incurred in the ordinary course of business as such business presently exists.</P>
                            <P>(c) <E T="03">Title XI Reserve Fund Net Income.</E> The Agreement shall provide that within 105 days after the end of its accounting year, the Company will compute its net income attributable to the operation of the Vessel(s) that were constructed, reconstructed, reconditioned or refinanced with Title XI financing assistance (Title XI Reserve Fund Net Income). The computation utilizes a ratio expressed as a percentage, and applies this percentage to the Company's total net income after taxes. The numerator of the ratio is be the total original capitalized cost of all Company Vessels (whether leased or owned) which were constructed, reconstructed, reconditioned or refinanced with the assistance of Guarantees. The denominator shall be the total original capitalized cost of all the Company's fixed assets. In the case of Shipyard Project, the Agreement shall provide that within 105 days after the end of its accounting year, the Company shall submit its audited financial statements showing its net cash flow in a manner acceptable to us, in lieu of any other computation of Reserve Fund Net Income specified in this section for Vessels. The net income after taxes, computed in accordance with GAAP, will be adjusted as follows:</P>
                            <P>(1) The depreciation expense applicable to the accounting year shall be added back.</P>
                            <P>(2) There shall be subtracted:</P>
                            <P>(i) An amount equal to the principal amount of debt required to be paid or redeemed, and actually paid or redeemed by the Company (other than from the Title XI Reserve Fund) during the year; and</P>
                            <P>(ii) The principal amount of Obligations retired or paid (as defined in the Security Agreement), prepaid or redeemed, in excess of the required redemptions or payments which may be used by the Company as a credit against future required redemptions or other required payments with respect to the Obligations.</P>
                            <P>(d) <E T="03">Deposits.</E> Unless the Company, as of the close of its accounting year, was subject to and in compliance with the financial requirements set forth in paragraph (b)(2) of this section, the Company shall make one or more deposits to a special joint depository account with us (the Title XI Reserve Fund) to be established pursuant to an agreement in writing (Depository Agreement) at the time the first deposit is required to be made. The amount of deposit as to any year, or period less than a full year, where applicable, will be determined as follows:</P>
                            <P>(1) Fifty percent of the Title XI Reserve Fund Net Income, less an amount equal to 10% of the Company's total original equity investment in the Vessel or Vessels, (if the Company is the owner of the assets), will be deposited into the Title XI Reserve Fund.</P>
                            <P>(2) In the case of Shipyard Project, the shipyard shall make a deposit at two percent of its net cash flow, as defined by GAAP, and as shown on its audited financial statements.</P>
                            <P>(3) Any additional amounts that may be required pursuant to the Security Agreement or any other agreement in the documentation to which the Company is a party.</P>

                            <P>(4) Any additional amounts that may be required, pursuant to provisions of the Security Agreement or any other agreement in the documentation to which the Company is a party.<PRTPAGE P="186"/>
                            </P>
                            <P>(5) Irrespective of the Company's deposit requirement, as stated in paragraphs (d) (1) through (4) of this section, the Company will not be required to make any deposits into the Title XI Reserve Fund if any of the following events will have occurred:</P>
                            <P>(i) The Company will have discharged the Obligations and related Secretary's Note and will have paid other sums secured under the Security Agreement and Preferred Mortgage;</P>
                            <P>(ii) All Guarantees with respect to outstanding Obligations will have terminated pursuant to the provisions of the Security Agreements, other than by reason of payment of the Guarantees; or</P>
                            <P>(iii) The amount in the Title XI Reserve Fund, (including any securities at market value), is equal to, or in excess of 50 percent of the principal amount of outstanding Obligations.</P>
                            <P>(e) <E T="03">Fund in lieu of Title XI Reserve Fund.</E> If the Company has established a Capital Construction Fund (CCF), pursuant to section 607 of the Act, whether interim or permanent, at any time when a deposit would otherwise be required to be made into the Title XI Reserve Fund, and the Company elects to make such deposits to the CCF, the Company must enter into an agreement, satisfactory to us, providing that all such deposits of assets therein will be security (CCF Security Amount) to the United States in lieu of the Title XI Reserve Fund. The deposit requirements of the Title XI Reserve Fund and Financial Agreement will be deemed satisfied by deposits of equal amounts in the CCF, and withdrawal of the CCF Security Amount will be subject to our prior written consent. If, for any reason, the CCF terminates prior to the payment of the Obligations, the Secretary's Note and all other amounts due under or secured by the Security Agreement or Mortgage, the CCF Security Amount will be deposited or redeposited in the Title XI Reserve Fund.</P>
                            <EFFDNOTP>
                              <HD SOURCE="HED">Effective Date Note:</HD>
                              <P>At 67 FR 61282, Sept. 30, 2002,§ 298.35 was amended by revising paragraph (d) introductory text, effective Oct. 30, 2002. For the convenience of the user, the revised text follows:</P>
                              <REVTXT>
                                <SECTION>
                                  <SECTNO>§ 298.35</SECTNO>
                                  <SUBJECT>Title XI Reserve Fund and Financial Agreement.</SUBJECT>
                                  <STARS/>
                                  <P>(d) <E T="03">Deposits</E>. Unless the Company, as of the close of its accounting year, was subject to and in compliance with the financial requirements set forth in paragraph (b)(2) of this section, the Company shall make one or more deposits to us to be held by the Depository (the Title XI Reserve Fund), as further provided for in the Depository Agreement. The amount of deposit as to any year, or period less than a full year, where applicable, will be determined as follows:<STARS/>
                                  </P>
                                </SECTION>
                                <SECTION>
                                  <SECTNO>§ 298.36</SECTNO>
                                  <SUBJECT>Guarantee Fee.</SUBJECT>
                                  <P>(a) <E T="03">Rates in general.</E> (1) For annual periods, beginning with the date of the Security Agreement and prior to the delivery date of a Vessel or Shipyard Project, we shall charge a Guarantee Fee set at a rate of not less than <FR>1/4</FR> of 1 percent and not more than <FR>1/2</FR> of 1 percent of the excess of the average principal amount of the Obligations estimated to be outstanding during the annual periods covered by said Guarantee Fee over the average principal amount, if any, on deposit in the Escrow Fund during said annual period (Average Principal Amount of Obligations Outstanding).</P>
                                  <P>(2) For annual periods beginning with the delivery date of a Vessel or Shipyard Project, the Guarantee Fee shall be set at an annual rate of not less than <FR>1/2</FR> of 1 percent and not more than 1 percent of the Average Principal Amount of Obligations Outstanding during the annual periods covered by the Guarantee Fee. You will be responsible for payment of the Guarantee Fee.</P>
                                  <P>(b) <E T="03">Rate calculation.</E> (1) The Guarantee Fee rate generally shall vary inversely with the ratio of Equity to Long-Term Debt (Variable Rate) of the Person who we consider to be the primary source of credit in the transaction (Credit Source), for example,</P>
                                  <P>(i) The long term time charterer (where the charter hire represents the source of payment of interest and principal with respect to the Obligations),</P>
                                  <P>(ii) The guarantor of the Obligations,</P>
                                  <P>(iii) The Obligor, or</P>

                                  <P>(iv) The bareboat charterer.<PRTPAGE P="187"/>
                                  </P>
                                  <P>(2) Where the Variable Rate is used, we may make such adjustments to the computation of Equity and Long-Term Debt considered necessary to reflect more accurately the financial condition of the Credit Source.</P>
                                  <P>(3) We shall base our determination of Equity and Long-Term Debt on information contained in forms or statements on file with us prior to the date on which the Guarantee Fee is to be paid.</P>
                                  <P>(4) With our consent, you may include in Equity and exclude from Long-Term Debt, any subordinated indebtedness representing loans from any credit source.</P>
                                  <P>(5) We may establish a fixed rate or other method of calculation of the Guarantee Fee, upon an evaluation of the aggregate security for the Guarantees.</P>
                                  <P>(c) <E T="03">Variable Rate prior to Vessel or Shipyard Project.</E> For annual periods beginning prior to the delivery date of a Vessel or Shipyard Project being constructed, reconstructed, or reconditioned, the Guarantee Fee shall be determined as follows:</P>
                                  <P>(1) If the Equity is less than 15 percent of the Long-Term Debt, the Guarantee Fee rate shall be <FR>1/2</FR> of 1 percent of the Average Principal Amount of Obligations Outstanding during the annual period covered by the Guarantee Fee.</P>
                                  <P>(2) If the Equity is at least 15 percent of the Long-Term Debt, but less than the Long-Term Debt, the Guarantee Fee rate shall be <FR>3/8</FR> of 1 percent of the Average Principal Amount of Obligations Outstanding during the annual period covered by the Guarantee Fee.</P>
                                  <P>(3) If the Equity is equal to or exceeds the Long-Term Debt, the Guarantee Fee rate shall be <FR>1/4</FR> of 1 percent of the Average Principal Amount of Obligations Outstanding during the annual period covered by the Guarantee Fee.</P>
                                  <P>(d) <E T="03">Variable Rate after Vessel or Shipyard Project delivery or completion.</E> For annual periods beginning on or after the Vessel or Shipyard Project delivery date, the Guarantee Fee shall be determined as follows:</P>
                                  <P>(1) If the Equity is less than 15 percent of the Long-Term Debt, the Guarantee Fee rate shall be 1 percent of the Average Principal Amount of Obligations Outstanding during the annual period covered by the Guarantee Fee.</P>
                                  <P>(2) If the Equity is at least 15 percent of the Long-Term Debt but less than 60 percent of the Long-Term Debt, the Guarantee Fee rate shall be <FR>3/4</FR> of 1 percent of the Average Principal Amount of Obligations Outstanding during the annual period covered by the Guarantee Fee.</P>
                                  <P>(3) If the Equity is at least 60 percent of the Long-Term Debt, but less than the Long-Term Debt, the Guarantee Fee rate shall be <FR>5/8</FR> of 1 percent of the Average Principal Amount of Obligations outstanding during the annual period covered by the Guarantee Fee.</P>
                                  <P>(4) If the Equity is equal to or exceeds the Long-Term Debt, the Guarantee Fee rate shall be <FR>1/2</FR> of 1 percent of the Average Principal Amount of Obligations outstanding during the annual period covered by the Guarantee Fee.</P>
                                  <P>(e) <E T="03">Payment of Guarantee Fee.</E> (1) The Guarantee Fee covering the full period of the stated maturity of the Obligations commencing with the date of the Security Agreement shall be paid to us concurrently with the execution and delivery of said Agreement. The project's entire Guarantee Fee payment shall be made by you to us in an amount equal to the sum of the present value of the separate products obtained by applying the pertinent pre or post delivery Guarantee Fee rate or rates to the projected amount of the Average Principal Amount of Obligations Outstanding for each year of the stated maturity of the Obligations. In calculating the present value used in determining the amount of the Guarantee Fee to be paid, we shall use a discount rate based on information contained in the President's most recently submitted budget.</P>
                                  <P>(2) The Guarantee Fee may be included in Actual Cost, is eligible to be financed, and is non-refundable.</P>
                                  <P>(f) <E T="03">Proration of Guarantee Fee.</E> The Guarantee Fee shall be prorated where a Vessel delivery is scheduled to occur during the annual period with respect to which payment of said Guarantee Fee is being made, as follows:</P>

                                  <P>(1) Undelivered Vessel. If the Guarantee Fee relates to an undelivered <PRTPAGE P="188"/>Vessel, the predelivery rate is applicable to the Average Principal Amount of Obligations Outstanding for the period from the date of the Security Agreement to the delivery date, and the delivered Vessel rate is applicable for the balance of the annual period in which the delivery occurs.</P>
                                  <P>(2) Multiple Vessels. If the Guarantee Fee relates to more than one Vessel, the amount of outstanding Obligations will be allocated to each Vessel in the manner prescribed in § 298.33(d), and an amount shall be determined for each Vessel by using the rate that is applicable under paragraph (c) or (d) of this section. The Guarantee Fee shall be the aggregate of the amounts calculated for each Vessel.</P>
                                </SECTION>
                                <SECTION>
                                  <SECTNO>§ 298.37</SECTNO>
                                  <SUBJECT>Examination and audit.</SUBJECT>
                                  <P>(a)(1) We shall have the right to examine and audit the books, records (including original logs, cargo manifests and similar records) and books of account, which pertain directly to the project, of the Obligor, bareboat charterer, time charterer or any other Person who has an agreement with respect to control of, or a financial interest in, a Vessel or Shipyard Project, as well as records of a Related Party and domestic agents connected with such Persons, and shall have full, free and complete access to these items at all reasonable times.</P>
                                  <P>(2) We shall have the right to full, free and complete access, at all reasonable times, to each Vessel or Shipyard Project for which Guarantees are in force.</P>
                                  <P>(3) When a Vessel is in port or undergoing repairs, we may make photostatic or other copies of any books, records and other relevant documents or papers being examined or audited.</P>
                                  <P>(b) The Person in control of the premises where we conduct the examination or audit must furnish, without charge, adequate office space and other facilities that we reasonably require in performing the examination, audit or inspection.</P>
                                </SECTION>
                                <SECTION>
                                  <SECTNO>§ 298.38</SECTNO>
                                  <SUBJECT>Partnership agreements and limited liability company agreements.</SUBJECT>
                                  <P>Partnership and limited liability company agreements must be in form and substance satisfactory to us prior to any Guarantee Closing, especially relating, but not limited to:</P>
                                  <P>(a) Duration of the entity;</P>
                                  <P>(b) Adequate partnership or limited liability company funding requirements and mechanisms;</P>
                                  <P>(c) Dissolution of the entity and withdrawal of a general partner or member;</P>
                                  <P>(d) The termination, amendment, or other modification of the entity without our prior written consent; and</P>
                                  <P>(e) Distribution of funds or ownership interest.</P>
                                </SECTION>
                                <SECTION>
                                  <SECTNO>§ 298.39</SECTNO>
                                  <SUBJECT>Exemptions.</SUBJECT>
                                  <P>We may exempt an applicant from any requirement of this part, unless required by statute or other regulations, in exceptional cases, on written findings that:</P>
                                  <P>(a) The case materially involves factors not considered in the promulgation of this part;</P>
                                  <P>(b)(1) A national emergency makes it necessary to approve the exemption, or</P>
                                  <P>(2) The exemption will substantially relieve the financial liability of the United States;</P>
                                  <P>(c) The exemption will not substantially impact effective regulation of the Title XI program, consistent with the objectives of this part;</P>
                                  <P>(d) The exemption will not be unjustly discriminatory; and</P>
                                  <P>(e) For Eligible Export Vessels, such exemption would assist in creating financing terms that would be compatible with export credit terms for the sale of vessels built in shipyards other than those in the United States.</P>
                                </SECTION>
                                <SUBPART>
                                  <HD SOURCE="HED">Subpart E—Defaults and Remedies, Reporting Requirements, Applicability of Regulations</HD>
                                  <SECTION>
                                    <SECTNO>§ 298.40</SECTNO>
                                    <SUBJECT>Defaults.</SUBJECT>
                                    <P>(a) <E T="03">In General.</E> Provisions concerning the existence and declaration of a default and demand for payment of the Obligations (described in paragraphs (b) and (c) of this section) shall be included in the Security Agreement and in other parts of the Documentation.<PRTPAGE P="189"/>
                                    </P>
                                    <P>(b) <E T="03">Principal and interest Payment Default.</E> Unless we have assumed the Obligor's rights and duties under the Obligation and agreements and have made any payments in default under terms in the Obligation or related agreements, the following procedures regarding principal and interest payment default shall apply:</P>
                                    <P>(1) No demand shall be made for payment under the Guarantees unless the default shall have continued for 30 days (Payment Default).</P>
                                    <P>(2) After the expiration of said 30-day period, demand for payment of all amounts due under the Guarantees must be made no later than 60 days afterward.</P>
                                    <P>(3) After demand for payment is made by or on behalf of the Obligees, we shall make payment under the Guarantees, except if we determine that a Payment Default has not occurred or that such Payment Default has been remedied prior to demand being made.</P>
                                    <P>(c) <E T="03">Security Default.</E> If a default occurs under the Security Agreement which is other than a Payment Default (Security Default), section 1105(b) of the Act allows us, in our sole discretion, to declare such default a Security Default, and we may notify the Obligee or agent of the Obligee of such Security Default, stating that demand for payment under the Guarantees must be made no later than 60 days after the date of such notification.</P>
                                    <P>(d) <E T="03">Payment of Guarantees.</E> If we receive notice of demand for payment of the Guarantees, we shall, no later than 30 days after the date of such demand (provided that we shall not have, upon such terms as may be provided in the Obligations or related agreements, prior to that demand, assumed the Obligor's rights and duties under the Obligation and agreements and shall have made any payments in default), make payment to the Obligees, Indenture Trustee or any other agent of the unpaid principal amount of Obligations and unpaid interest accrued and accruing thereon up to, but not including, the date of payment.</P>
                                  </SECTION>
                                  <SECTION>
                                    <SECTNO>§ 298.41</SECTNO>
                                    <SUBJECT>Remedies after default.</SUBJECT>
                                    <P>(a) <E T="03">In general.</E> The Security Agreement or other parts of the Documentation shall include provisions governing remedies after a default, which relate to our rights and duties, the rights and duties of the Obligor, and other appropriate Persons.</P>
                                    <P>(b) <E T="03">Action by the Secretary.</E> (1) We may take the Vessel or Shipyard Project and hold, lease, charter, operate or use the Vessel or Shipyard Project, accounting only for the net profits to the Obligor after a default has occurred and is continuing and before making payment required under the Guarantees.</P>
                                    <P>(2) After making payment required under the Guarantees, we may initiate or otherwise participate in legal proceedings of every type, or take any other action considered appropriate, to protect rights and interests granted to us under:</P>
                                    <P>(i) Sections 1105(c), 1105(e) and 1108(b) of the Act,</P>
                                    <P>(ii) The Security Agreement,</P>
                                    <P>(iii) Other applicable provisions of law, and</P>
                                    <P>(iv) The Documentation.</P>
                                    <P>(c) <E T="03">Security proceeds to Secretary.</E> Our interest in proceeds realized from the disposition of or collection regarding the security granted to us in consideration for the Guarantees (except all proceeds from the sale, requisition, charter or other disposition of property purchased by us at a foreclosure or other public sale, which proceeds shall belong to and vest exclusively in us ), shall be an amount equal to, but not in excess of, the sum of (in order of priority of application of the proceeds):</P>
                                    <P>(1) All moneys due and unpaid and secured by the Mortgage or Security Agreement;</P>
                                    <P>(2) All advances, including interest thereon, by us, under the Security Agreement and all our reasonable charges and expenses;</P>
                                    <P>(3) The accrued and unpaid interest on the Secretary's Note;</P>
                                    <P>(4) The accrued and unpaid balance of the principal of the Secretary's Note; and</P>
                                    <P>(5) To the extent of any collaterization by the Obligor of other debt due to us from the Obligor under other Title XI financings, such other Title XI debt.</P>
                                    <P>(d) <E T="03">Security proceeds to Obligor.</E> You shall be entitled to the proceeds from <PRTPAGE P="190"/>the sale or other disposition of security, described in paragraph (c) of this section, if and to the extent that the proceeds realized are in excess of the amounts described in paragraphs (c)(1) through (5) of this section.</P>
                                  </SECTION>
                                  <SECTION>
                                    <SECTNO>§ 298.42</SECTNO>
                                    <SUBJECT>Reporting requirements—financial statements.</SUBJECT>
                                    <P>(a) <E T="03">In general.</E> The financial statements of the Company shall be audited at least annually, in accordance with generally accepted auditing standards, by independent certified public accountants licensed to practice by the regulatory authority of a State or other political subdivision of the United States or, licensed public accountants licensed to practice by the regulatory authority or other political subdivision of the United States on or before December 31, 1970.</P>
                                    <P>(b) <E T="03">Eligible Export Vessels.</E> In the case of Eligible Export Vessels, the accounts of the Company shall be audited at least annually, and unless otherwise agreed to by us, we shall require that the financial statements be in accordance with generally accepted accounting principles, by accountants as described in paragraph (a) of this section or by independent public accountants licensed to practice by the regulatory authority or other political subdivision of a foreign country, provided such accountants are satisfactory to us. The accountants performing such audits may be the regular auditors of the Company.</P>
                                    <P>(c) <E T="03">Reports of Company and other Persons.</E> Except as we require otherwise, the Company must file a semiannual financial report and an annual financial report, prepared in accordance with generally accepted accounting principles, with us as specified in the Documentation. You must include:</P>
                                    <P>(1) The balance sheet and a statement of paid-in-capital and retained earnings at the close of the required reporting period,</P>
                                    <P>(2) A statement of income for the period, and</P>
                                    <P>(3) Any other statement that we consider necessary to accurately reflect the Company's financial condition and the results of its operations.</P>
                                    <P>(d) <E T="03">Required form.</E> We will specify in a letter to the Company the form required for reporting and the number of copies that you must submit</P>
                                    <P>(e) <E T="03">Other Persons.</E> We may after providing the Company notice, also require the Company to submit financial statements of any other Person, directly or indirectly participating in the project, if the financial condition of that Person affects our security for the Guarantees.</P>
                                    <P>(f) <E T="03">Timeliness.</E> The required financial report for the annual period will be due within 105 days after the close of each fiscal year of the Company, commencing with the first fiscal year ending after the date of the Security Agreement. The required semiannual report will be due within 105 days after each semiannual period, commencing with the first semiannual period ending after the date of the Security Agreement.</P>
                                    <P>(g) <E T="03">Public accountant's report.</E> The annual report will be accompanied by the public accountant's report based on an audit of the company's financial statements. We may require an audit by the public accountants of the financial statements contained in the company's semiannual report. We also may require certification of the semiannual report by the accountants. Where independent certification is not required, a responsible corporate officer will attach a certification that such report is based on the accounting records and, to the best of that officer's knowledge and belief, is accurate and complete.</P>
                                    <P>(h) <E T="03">Leveraged lease financing.</E> If the method of financing involved is a leveraged lease financing, or a trust is the owner of the Vessels, we may modify the requirements for annual and semiannual accounting reports of the Obligor accordingly.</P>
                                    <P>(i) <E T="03">Letter of confirmation.</E> The Company must furnish, along with its financial report, a letter of confirmation issued by its insurance underwriter(s) or broker(s) that the Company has paid premiums on insurance applicable to the preservation, protection and operation of the asset, which information must state the term for which the insurance is in force.</P>
                                  </SECTION>
                                  <SECTION>
                                    <PRTPAGE P="191"/>
                                    <SECTNO>§ 298.43</SECTNO>
                                    <SUBJECT>Applicability of the regulations.</SUBJECT>
                                    <P>(a) The regulations in this part are effective August 21, 2000, and apply to all applications made, Letter Commitments, Commitments to Guarantee Obligations or Guarantees issued or entered into on or after August 21, 2000, under section 1104(a) of the Merchant Marine Act, 1936, as amended.</P>
                                    <P>(b) The regulations in this part do not apply to any applications made, Letter Commitments, Commitments to Guarantee Obligations, or Guarantees issued under those regulations in effect before August 21, 2000. See 46 CFR, parts 200 to 499, edition revised as of October 1, 1996 and 46 CFR, parts 200 to 499, edition revised as of October 1, 1999 for regulations that apply to applications made, Letter Commitments, Commitments to Guarantee Obligations, or Guarantees issued before August 21, 2000.</P>
                                  </SECTION>
                                </SUBPART>
                                <SUBPART>
                                  <RESERVED>Subpart F—Administration [Reserved]</RESERVED>
                                </SUBPART>
                              </REVTXT>
                            </EFFDNOTP>
                          </SECTION>
                        </SUBPART>
                      </REVTXT>
                    </EFFDNOTP>
                  </SECTION>
                </REVTXT>
              </EFFDNOTP>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP>
        <RESERVED>SUBCHAPTER E [RESERVED]</RESERVED>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="192"/>
        <HD SOURCE="HED">SUBCHAPTER F—POSITION REPORTING SYSTEM</HD>
        <PART>
          <EAR>Pt. 307</EAR>
          <HD SOURCE="HED">PART 307—ESTABLISHMENT OF MANDATORY POSITION REPORTING SYSTEM FOR VESSELS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>307.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>307.3</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>307.5</SECTNO>
            <SUBJECT>Provisions of general applicability.</SUBJECT>
            <SECTNO>307.7</SECTNO>
            <SUBJECT>Information required in report.</SUBJECT>
            <SECTNO>307.9</SECTNO>
            <SUBJECT>When to report.</SUBJECT>
            <SECTNO>307.11</SECTNO>
            <SUBJECT>Report changes.</SUBJECT>
            <SECTNO>307.13</SECTNO>
            <SUBJECT>Where to report.</SUBJECT>
            <SECTNO>307.15</SECTNO>
            <SUBJECT>Release of information from reports.</SUBJECT>
            <SECTNO>307.17</SECTNO>
            <SUBJECT>Distress messages and hostile action reports.</SUBJECT>
            <SECTNO>307.19</SECTNO>
            <SUBJECT>Penalties.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Secs. 204(b), 212(A), 1203(a), Merchant Marine Act, 1936, as amended (46 U.S.C. 1114(b), 1122(a), 1283)); Pub. L. 97-31; 46 CFR 1.66.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>51 FR 18329, May 19, 1986, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 307.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <P>This part establishes that operators of U.S.-flag oceangoing vessels in U.S. foreign trade and certain foreign-flag vessels as described in 46 U.S.C. 1283 must report on their locations according to the provisions of this regulation to enhance the safety of vessel operations at sea and provide a contingency for events of national emergency.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.3</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>As used in this part:</P>
            <P>(a) <E T="03">Administrator</E> means the Maritime Administrator of the Department of Transportation.</P>
            <P>(b) <E T="03">MARAD</E> means the Maritime Administration, Department of Transportation.</P>
            <P>(c) <E T="03">Coast Guard</E> means the United States Coast Guard, Department of Transportation.</P>
            <P>(d) <E T="03">AMVER</E> means the Automated Mutual-Assistance Vessel Rescue System operated by the U.S. Coast Guard as it applies to U.S.-flag ships and certain non-U.S.-flag ships in U.S. foreign commerce under this regulation.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.5</SECTNO>
            <SUBJECT>Provisions of general applicability.</SUBJECT>
            <P>(a) The following operators must comply with the reporting requirements contained in this part:</P>
            <P>(1) Operators of United States-flag vessels of one thousand gross tons or more, operating in the foreign commerce of the United States.</P>

            <P>(2) Operators of foreign-flag vessels of one thousand gross tons, or more, for which an Interim War Risk Insurance Binder has been issued under the provisions of Title XII, Merchant Marine Act, 1936, as amended (46 U.S.C. 1281 <E T="03">et seq.</E>).</P>
            <P>(b) Operators of other merchant vessels may choose to submit reports and have voyage information forwarded to MARAD, when approved by the Coast Guard and MARAD. Information voluntarily provided by them will be released by Coast Guard only for safety purposes or to satisfy certain advance notification requirements of 33 CFR part 160. Requests should be addressed to the Maritime Administration, 400 Seventh Street, SW., Washington, DC 20590, Attn: MAR-742.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.7</SECTNO>
            <SUBJECT>Information required in report.</SUBJECT>
            <P>(a) <E T="03">Types of Reports.</E> Reports on vessel departure, arrival, position and deviation are required under this part. Sailing plans are optional, and may be sent prior to departure, or may be combined with departure reports.</P>
            <P>(b) <E T="03">Report Content.</E> Content of each type of required report are specified below. Note that the word “MAREP” must be included in the text of each message if MARAD is to receive the information.</P>
            <P>(1) <E T="03">Sailing Plan Report.</E> Sailing plan reports, though optional, must contain the following:</P>
            <P>(i) Vessel name,</P>
            <P>(ii) International Radio Call Sign,</P>
            <P>(iii) Intended time of departure,</P>
            <P>(iv) Port of departure and latitude/longitude,</P>
            <P>(v) Port of destination and latitude/longitude,<PRTPAGE P="193"/>
            </P>
            <P>(vi) Estimated time of arrival,</P>
            <P>(vii) Route information, and</P>
            <P>(viii) The keyword “MAREP”.</P>
            <FP>If optional remarks are included, they must follow at the end of the text.</FP>
            <P>(2) <E T="03">Departure Report.</E> Departure reports must contain the following:</P>
            <P>(i) Vessel name,</P>
            <P>(ii) International Radio Call Sign,</P>
            <P>(iii) Time of departure,</P>
            <P>(iv) Port of departure,</P>
            <P>(v) Latitude and longitude, and</P>
            <P>(vi) The keyword “MAREP”.</P>
            <FP>If optional remarks are included, they must follow at the end of the text.</FP>
            <P>(3) <E T="03">Position Report.</E> Position reports must contain the following:</P>
            <P>(i) Vessel name,</P>
            <P>(ii) International Radio Call Sign,</P>
            <P>(iii) Time at reported position,</P>
            <P>(iv) Latitude and longitude, and</P>
            <P>(v) The keyword “MAREP”.</P>
            <FP>If optional remarks are included, they must follow at the end of the text.</FP>
            <P>(4) <E T="03">Deviation Report.</E> Deviation reports are necessary to report sailing plan changes or other changes and must contain the following:</P>
            <P>(i) Vessel name,</P>
            <P>(ii) International Radio Call Sign,</P>
            <P>(iii) The changes to prior reports, and</P>
            <P>(iv) The keyword “MAREP”.</P>
            <FP>If optional remarks are included, they must follow at the end of the text.</FP>
            <P>(5) <E T="03">Arrival Report.</E> Arrival reports must contain the following:</P>
            <P>(i) Vessel name,</P>
            <P>(ii) International Radio Call Sign,</P>
            <P>(iii) Port name,</P>
            <P>(iv) Latitude and longitude,</P>
            <P>(v) Time of arrival, and</P>
            <P>(vi) The keyword “MAREP”.</P>
            <FP>If optional remarks are included, they must follow at the end of the text.</FP>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.9</SECTNO>
            <SUBJECT>When to report.</SUBJECT>
            <P>(a) Operators required to report under this regulation shall send reports during the Radio Officer's normal duty hours.</P>
            <P>(b) Operators shall send reports as follows:</P>
            <P>(1) Departure Reports must be sent as soon as practicable upon leaving the Port of Departure.</P>
            <P>(2) Position Reports must be sent within twenty-four hours of departure, and subsequently, no less frequently that every forty-eight hours until arrival.</P>
            <P>(3) Arrival Reports must be sent immediately prior to or upon arrival at the Port of Destination.</P>
            <P>(4) Deviation Reports may be sent at the discretion of the vessel operator. Reports may be sent more frequently than the above schedule, as, for example, in heavy weather or under other adverse conditions.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.11</SECTNO>
            <SUBJECT>Report changes.</SUBJECT>
            <P>The Administrator, through MARAD advisory or special warning, may direct changes in reporting frequency and specify particular information to be included in the comments section of AMVER messages.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.13</SECTNO>
            <SUBJECT>Where to report.</SUBJECT>
            <P>To ensure that no charge is applied, all AMVER reports must be passed through specified radio stations. Those stations which currently accept AMVER reports and apply no coastal station, ship station, or landline charge are listed in each issue of the “AMVER Bulletin” publication, together with respective International Radio Call Sign, location, frequency bands, and hours of operation. The “AMVER Bulletin” is available from AMVER Maritime Relations Office, U.S. Coast Guard, Battery Park Building, New York, NY 10004. Although AMVER reports may be sent through other stations, the Coast Guard cannot reimburse the sender for any charges applied.</P>
            <CITA>[51 FR 18329, May 19, 1986, as amended at 65 FR 47678, Aug. 3, 2000]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.15</SECTNO>
            <SUBJECT>Release of information from reports.</SUBJECT>
            <P>(a) The information collected under these instructions will be released to recognized search-and-rescue authorities, to make advance notice to the U.S. Coast Guard of arrival in U.S. ports as required by certain sections of 33 CFR. The information collected will also be forwarded to the MARAD.</P>

            <P>(b) AMVER reports will remain voluntary for foreign ships unless otherwise directed by their governments, and will be kept strictly confidential by the U.S. Coast Guard. Information <PRTPAGE P="194"/>collected from such foreign ships will not be forwarded to MARAD.</P>
            <P>(c) any information provided in the remarks line will be stored in AMVER's automatic data processing system for later review. However, no immediate action will be taken, nor will the information be routinely passed to other organizations. The remarks line cannot be used as a substitute for sending information to other search-and-rescue authorities or organizations. However, AMVER will, at the request of other SAR authorities, forward remarks line information to the requesting agencies.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.17</SECTNO>
            <SUBJECT>Distress messages and hostile action reports.</SUBJECT>
            <P>(a) AWVER reports shall not replace distress messages and hostile action reports prescribed by Chapter 5, Defense Mapping Agency (DMA) Publication 117.</P>
            <P>(b) Vessel owners or operators subject to this part shall summarize distress messages or hostile action reports in the comments sections of AMVER reports.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 307.19</SECTNO>
            <SUBJECT>Penalties.</SUBJECT>
            <P>The owner or operator of a vessel in the waterborne foreign commerce of the United States is subject to a penalty of $50 for each day of failure to file an AMVER report required by this part. Such penalty shall constitute a lien upon the vessel, and such vessel may be libeled in the district court of the United States in which the vessel may be found.</P>
          </SECTION>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="195"/>
        <HD SOURCE="HED">SUBCHAPTER G—EMERGENCY OPERATIONS</HD>
        <PART>
          <EAR>Pt. 308</EAR>
          <HD SOURCE="HED">PART 308—WAR RISK INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>308.1</SECTNO>
              <SUBJECT>Eligibility for vessel insurance.</SUBJECT>
              <SECTNO>308.2</SECTNO>
              <SUBJECT>Requirements for eligible vessels.</SUBJECT>
              <SECTNO>308.3</SECTNO>
              <SUBJECT>Applications for insurance; warranties; supporting documents; payment of binder fees.</SUBJECT>
              <SECTNO>308.4</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>308.5</SECTNO>
              <SUBJECT>Voluntary contract of commitment.</SUBJECT>
              <SECTNO>308.6</SECTNO>
              <SUBJECT>Period of interim binders, updating application information and new applications.</SUBJECT>
              <SECTNO>308.7</SECTNO>
              <SUBJECT>Premiums and payment thereof.</SUBJECT>
              <SECTNO>308.8</SECTNO>
              <SUBJECT>War risk insurance underwriting agency agreement.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—War Risk Hull and Disbursements Insurance</HD>
              <SECTNO>308.100</SECTNO>
              <SUBJECT>Insured amount.</SUBJECT>
              <SECTNO>308.101</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>308.102</SECTNO>
              <SUBJECT>Issuance of interim binder; terms and conditions; fees.</SUBJECT>
              <SECTNO>308.103</SECTNO>
              <SUBJECT>Insured amounts under interim binder.</SUBJECT>
              <SECTNO>308.104</SECTNO>
              <SUBJECT>Additional war risk insurance.</SUBJECT>
              <SECTNO>308.105</SECTNO>
              <SUBJECT>Reporting casualties and filing claims.</SUBJECT>
              <SECTNO>308.106</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>308.107</SECTNO>
              <SUBJECT>War risk hull insurance policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—War Risk Protection and Indemnity Insurance</HD>
              <SECTNO>308.200</SECTNO>
              <SUBJECT>Insured amount—application.</SUBJECT>
              <SECTNO>308.201</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>308.202</SECTNO>
              <SUBJECT>Issuance of interim binder; terms and conditions.</SUBJECT>
              <SECTNO>308.203</SECTNO>
              <SUBJECT>Amount insured under interim binder.</SUBJECT>
              <SECTNO>308.204</SECTNO>
              <SUBJECT>Additional war risk protection and indemnity insurance.</SUBJECT>
              <SECTNO>308.205</SECTNO>
              <SUBJECT>Reporting casualties and filing claims.</SUBJECT>
              <SECTNO>308.206</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>308.207</SECTNO>
              <SUBJECT>War risk protection and indemnity insurance policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Second Seamen's War Risk Insurance</HD>
              <SECTNO>308.300</SECTNO>
              <SUBJECT>Insured amount—application.</SUBJECT>
              <SECTNO>308.301</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>308.302</SECTNO>
              <SUBJECT>Issuance of interim binder; terms and conditions.</SUBJECT>
              <SECTNO>308.303</SECTNO>
              <SUBJECT>Amounts insured under interim binder.</SUBJECT>
              <SECTNO>308.304</SECTNO>
              <SUBJECT>Reporting casualties and filing claims.</SUBJECT>
              <SECTNO>308.305</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>308.306</SECTNO>
              <SUBJECT>Second Seamen's War Risk Policy, Form MA-242.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—War Risk Builder's Risk Insurance</HD>
              <SECTNO>308.400</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>308.401</SECTNO>
              <SUBJECT>Eligibility for insurance.</SUBJECT>
              <SECTNO>308.402</SECTNO>
              <SUBJECT>Insurance during vessel construction period.</SUBJECT>
              <SECTNO>308.403</SECTNO>
              <SUBJECT>Insured amounts.</SUBJECT>
              <SECTNO>308.404</SECTNO>
              <SUBJECT>Application for insurance.</SUBJECT>
              <SECTNO>308.405</SECTNO>
              <SUBJECT>Form of application.</SUBJECT>
              <SECTNO>308.406</SECTNO>
              <SUBJECT>Issuance of policies; terms and conditions.</SUBJECT>
              <SECTNO>308.407</SECTNO>
              <SUBJECT>Premiums and payment.</SUBJECT>
              <SECTNO>308.408</SECTNO>
              <SUBJECT>Right of Maritime Administrator to change rate of premium.</SUBJECT>
              <SECTNO>308.409</SECTNO>
              <SUBJECT>Standard form of War Risk Builder's Risk Insurance Policy, Form MA-283.</SUBJECT>
              <SECTNO>308.410</SECTNO>
              <SUBJECT>Reporting casualties and filing claims.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart F—War Risk Cargo Insurance</HD>
              <SUBJGRP>
                <HD SOURCE="HED">I—Introduction</HD>
                <SECTNO>308.500</SECTNO>
                <SUBJECT>Authority.</SUBJECT>
                <SECTNO>308.501</SECTNO>
                <SUBJECT>Cargoes on which coverage is available.</SUBJECT>
                <SECTNO>308.502</SECTNO>
                <SUBJECT>Additional insurance.</SUBJECT>
                <SECTNO>308.503</SECTNO>
                <SUBJECT>Rate schedules.</SUBJECT>
                <SECTNO>308.504</SECTNO>
                <SUBJECT>Definition of territories and possessions.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">II—Open Policy War Risk Cargo Insurance</HD>
                <SECTNO>308.505</SECTNO>
                <SUBJECT>General.</SUBJECT>
                <SECTNO>308.506</SECTNO>
                <SUBJECT>Application for an Open Cargo Policy.</SUBJECT>
                <SECTNO>308.507</SECTNO>
                <SUBJECT>Security for payment of premiums.</SUBJECT>
                <SECTNO>308.508</SECTNO>
                <SUBJECT>Issuance of an Open Cargo Policy.</SUBJECT>
                <SECTNO>308.509</SECTNO>
                <SUBJECT>Collateral deposit fund.</SUBJECT>
                <SECTNO>308.510</SECTNO>
                <SUBJECT>Surety bond.</SUBJECT>
                <SECTNO>308.511</SECTNO>
                <SUBJECT>Cancellation of Open Cargo Policy.</SUBJECT>
                <SECTNO>308.512</SECTNO>
                <SUBJECT>Declaration of shipments under Open Cargo Policy.</SUBJECT>
                <SECTNO>308.513</SECTNO>
                <SUBJECT>Payment of premiums and fees.</SUBJECT>
                <SECTNO>308.514</SECTNO>
                <SUBJECT>Return premium.</SUBJECT>
                <SECTNO>308.515</SECTNO>
                <SUBJECT>Payment in event of loss.</SUBJECT>
                <SECTNO>308.516</SECTNO>
                <SUBJECT>Failure to comply with Clause 21.</SUBJECT>
                <SECTNO>308.517</SECTNO>
                <SUBJECT>Open Cargo Policy, Form MA-300.</SUBJECT>
                <SECTNO>308.518</SECTNO>
                <SUBJECT>Standard optional endorsement No. 1, Form MA-300-A.</SUBJECT>
                <SECTNO>308.519</SECTNO>
                <SUBJECT>Standard optional endorsement No. 2, Form MA-300-B.</SUBJECT>
                <SECTNO>308.520</SECTNO>
                <SUBJECT>Standard optional endorsement No. 3, Form MA-300-C.</SUBJECT>
                <SECTNO>308.521</SECTNO>
                <SUBJECT>Application for Open Cargo Policy, Form MA-301.</SUBJECT>
                <SECTNO>308.522</SECTNO>
                <SUBJECT>Collateral deposit fund, letter of transmittal, Form MA-302.</SUBJECT>
                <SECTNO>308.523</SECTNO>

                <SUBJECT>Application for revision of Open Cargo Policy, Form MA-303.<PRTPAGE P="196"/>
                </SUBJECT>
                <SECTNO>308.524</SECTNO>
                <SUBJECT>Application for cancellation of Open Cargo Policy, Form MA-304.</SUBJECT>
                <SECTNO>308.525</SECTNO>
                <SUBJECT>Application for decrease in amount of cash collateral fund, Form MA-305.</SUBJECT>
                <SECTNO>308.526</SECTNO>
                <SUBJECT>Certificate for repayment of decrease of collateral deposit fund, Form MA-306.</SUBJECT>
                <SECTNO>308.527</SECTNO>
                <SUBJECT>Application for return premium, Form MA-307.</SUBJECT>
                <SECTNO>308.528</SECTNO>
                <SUBJECT>Surety Bond A, Form MA-308.</SUBJECT>
                <SECTNO>308.529</SECTNO>
                <SUBJECT>Surety Bond B, Form MA-309.</SUBJECT>
                <SECTNO>308.530</SECTNO>
                <SUBJECT>Letter requesting increase or decrease in amount of surety bond, Form MA-310.</SUBJECT>
                <SECTNO>308.531</SECTNO>
                <SUBJECT>Endorsement of surety bond increasing or decreasing amount of coverage, Form MA-311.</SUBJECT>
                <SECTNO>308.532</SECTNO>
                <SUBJECT>Release of surety bond, Form MA-312.</SUBJECT>
                <SECTNO>308.533</SECTNO>
                <SUBJECT>Closing report, Form MA-313.</SUBJECT>
                <SECTNO>308.534</SECTNO>
                <SUBJECT>Certificate to be attached to closing report, Form MA-313-A.</SUBJECT>
                <SECTNO>308.535</SECTNO>
                <SUBJECT>Certificate to be attached to final closing report, Form MA-313-B.</SUBJECT>
                <SECTNO>308.536</SECTNO>
                <SUBJECT>Declaration where failure to comply with Clause 21 was inadvertent, Form MA-314.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">III—Facultative War Risk Cargo Insurance</HD>
                <SECTNO>308.538</SECTNO>
                <SUBJECT>General.</SUBJECT>
                <SECTNO>308.539</SECTNO>
                <SUBJECT>Application.</SUBJECT>
                <SECTNO>308.540</SECTNO>
                <SUBJECT>Premiums.</SUBJECT>
                <SECTNO>308.541</SECTNO>
                <SUBJECT>Issuance.</SUBJECT>
                <SECTNO>308.542</SECTNO>
                <SUBJECT>Warranty re thirty-day shipments.</SUBJECT>
                <SECTNO>308.543</SECTNO>
                <SUBJECT>Cancellation.</SUBJECT>
                <SECTNO>308.544</SECTNO>
                <SUBJECT>Facultative binder, Form MA-315.</SUBJECT>
                <SECTNO>308.545</SECTNO>
                <SUBJECT>Facultative cargo policy, Form MA-316.</SUBJECT>
                <SECTNO>308.546</SECTNO>
                <SUBJECT>Standard optional endorsement No. 1-A, Form MA-316-A.</SUBJECT>
                <SECTNO>308.547</SECTNO>
                <SUBJECT>Application for return premium, Form MA-317.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">IV—General</HD>
                <SECTNO>308.548</SECTNO>
                <SUBJECT>Standard form of underwriting agency agreement for cargo, Form MA-318.</SUBJECT>
                <SECTNO>308.549</SECTNO>
                <SUBJECT>Application for appointment of Cargo Underwriting Agent, Form MA-319.</SUBJECT>
                <SECTNO>308.550</SECTNO>
                <SUBJECT>Certificate, Form MA-320.</SUBJECT>
                <SECTNO>308.551</SECTNO>
                <SUBJECT>War risk insurance clearing agency agreement for cargo, Form MA-321.</SUBJECT>
                <SECTNO>308.552</SECTNO>
                <SUBJECT>Effective date.</SUBJECT>
              </SUBJGRP>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart G—Records Retention</HD>
              <SECTNO>308.600</SECTNO>
              <SUBJECT>Records retention requirement.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Secs. 204, 1202, 1203, 1209, Merchant Marine Act of 1936, as amended (46 App. U.S.C. 1114, 1282, 1283, 1289; 49 CFR 1.66).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 1131, Jan. 16, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 308.1</SECTNO>
              <SUBJECT>Eligibility for vessel insurance.</SUBJECT>
              <P>Any vessel within one of the following categories shall be eligible for insurance, but shall remain eligible only while meeting the qualifications criteria in one of said categories. An eligible vessel is not insured unless and until an application is submitted as required in subpart B, C, or D of this part 308 and the Maritime Administrator, Department of Transportation, (Maritime Administrator) Maritime Administration (MARAD), approves said application.</P>
              <P>(a) A vessel registered, enrolled, or licensed under the laws of the United States of America (United States); any undocumented vessel owned or chartered by or made available to the United States or any department or agency thereof; any tug or barge or other watercraft (documented under the laws of the United States, or undocumented) owned by a citizen of the United States and used in essential water transportation; and United States citizen-owned watercraft used in the fishing trade or industry, except when used exclusively in or for sport fishing.</P>
              <P>(b) Any vessel, other than a vessel described in paragraph (a) of this section determined by the Maritime Administrator to be engaged in the national defense or the national economy of the United States and subject to an unqualified Contract of Commitment with the United States in a form required by the Maritime Administrator, and which is:</P>
              <P>(1) Owned by a United States corporation, or a foreign corporation in which a majority of the stock is owned and controlled by a citizen or citizens of the United States, whether direct or through intervening corporations, foreign or domestic. Where such intervening corporations are foreign, the ultimate majority ownership and control of the stock of such corporations must be vested in a citizen or citizens of the United States as defined in section 1201(d), Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1281(d));</P>

              <P>(2) Owned by a foreign corporation which is not directly or beneficially owned by a citizen or citizens of the <PRTPAGE P="197"/>United States, but which vessel is under a long-term charter or other long-term contract covering the use of the vessel on terms deemed by the Maritime Administrator to subject the vessel to United States control in the event of an emergency. The charterer of such vessel must be either a citizen or citizens of the United States or a foreign corporation in which a majority of the stock is owned and controlled by a citizen or citizens of the United States, whether direct or indirect through intervening corporations, foreign or domestic. Where such intervening corporations are foreign, ultimate majority ownership and control of the stock of such corporations must be vested in a citizen or citizens of the United States, as defined in 46 App. U.S.C. 1281(d).</P>
              <P>(c) Any other vessel, at the sole discretion of the Maritime Administrator, but only while engaged in a service which has been determined by the Maritime Administrator to be in the interest of the national defense or the national economy of the United States. Vessels in this category are not eligible for war risk insurance interim binders.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.2</SECTNO>
              <SUBJECT>Requirements for eligible vessels.</SUBJECT>
              <P>(a) <E T="03">Restrictions—foreign-flag vessels.</E> Interim insurance is available on any vessel described in § 308.1 (a) and (b) of this part, provided application for interim insurance is submitted as required in subparts B, C, or D of this part 308, and the Maritime Administrator approves said application: Provided, That only vessels of Panamanian, Honduran, Bahamian, Republic of the Marshall Islands or Liberian registry not more than 20 years old will be considered eligible under § 308.1 (b) of this part for interim insurance, subject at all times to the determination specified in paragraph (b) of this section.</P>
              <P>(b) <E T="03">Special rules—foreign-flag vessels.</E> For the purpose of providing interim insurance on vessels described in § 308.1(b), the Maritime Administrator shall consider the characteristics, employment, and general management of the vessel. The Maritime Administrator formally determines that the following vessels are engaged in a service in the interest of the national defense or the national economy of the United States and qualify for an interim binder:</P>
              <P>(1) Vessels substantially engaged in the foreign commerce of the United States or which would be required in the event of war or national emergency;</P>
              <P>(2) Tankers of not less than 2,000 deadweight tons;</P>
              <P>(3) Dry cargo vessels, including containerships, breakbulk, and dry bulk vessels;</P>
              <P>(4) Heavy lift vessels;</P>
              <P>(5) Refrigerated vessels and other classes of ships in short supply in the United States-flag fleet;</P>
              <P>(6) Passenger vessels; and</P>
              <P>(7) Other vessels with special capabilities, as determined by the Maritime Administrator.</P>
              <P>(c) <E T="03">Vessel Position Reports.</E> All vessels for which war risk insurance interim binders have been issued shall file a Vessel Position Report. The purpose of this report is to inform cognizant U.S. agencies of vessel arrivals, departures and at-sea locations. Failure to make required regular reports will cause MARAD to issue a one-time notice of default. If failure to report continues, MARAD shall cancel the interim binder for the subject vessel and any insurance attaching thereunder. MARAD will issue reporting instructions and formats with the binders.</P>
              <P>(d) <E T="03">Notice of change in status of vessel after binder issued.</E> Any breach of the warranty prescribed hereunder as to vessels in all categories with respect to Department of Commerce Transportation Orders T-1 and T-2 (44 CFR Parts 401, 402 and 403), as well as the additional warranties as to vessels in categories (b)(1) and (b)(2) of this section, with respect to maintenance of eligibility for insurance and availability of the insured vessels to the U.S. Government in time of emergency, shall terminate the binders and any insurance attaching thereunder. In the event of the sale, demise charter, requisition, confiscation, change of flag, total loss, or any other change in status which, by the terms of the binder causes the binder to terminate, prompt notice shall be given in writing to the American War Risk Agency, 14 Wall Street, New York, NY 10005.<PRTPAGE P="198"/>
              </P>
              <P>(e) <E T="03">Nature of change in status of other vessels.</E> It is the intention of the parties that any breach of the warranty as to operation in the approved service of vessels described in § 308.1(c) shall terminate the insurance. In the event of the sale, demise charter, requisition, confiscation, change of flag, total loss, any other change in status or change in operation of the vessel in the approved service prompt notice shall be given to the American War Risk Agency, 14 Wall Street, New York, NY 10005.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.3</SECTNO>
              <SUBJECT>Applications for insurance; warranties; supporting documents; payment of binder fees.</SUBJECT>
              <P>(a) <E T="03">Application, binder forms.</E> A single application for War Risk Insurance shall be filed on Form MA-528, specifying the types of insurance coverages for which the applicant is applying. A single application may be submitted for several vessels, if the application identifies each vessel to be insured and the coverage(s) required, by completing appendices A and B to that form. An interim binder for war risk insurance coverage, of the types described in subparts B, C and D of this part, shall be on Form MA-942, which may be obtained from the American War Risk Agency or from the Office of Subsidy and Insurance.</P>
              <P>(b) <E T="03">Warranties</E>—(1) <E T="03">In general.</E> Applications for war risk hull and protection and indemnity insurance in any eligible category of this Part 308 shall include a warranty that, at all times during the effective period of the binder and any insurance attaching thereunder, the insured vessel, regardless of its nation of registry, will comply with Department of Commerce Transportation Orders T-1 and T-2 (44 CFR parts 401, 402, and 403), or any modifications thereof so long as they remain in force and that the vessel will not be chartered, unless in accordance with the provisions of § 221.11 and 221.13 of this chapter, which requirement is applicable to any charter in existence at the time the applicant applies for insurance.</P>
              <P>(2) <E T="03">Vessels described in § 308.1(a).</E> Applications for war risk insurance on a vessel described in § 308.1(a) shall contain the warranty that at, and from the date of issuance of the interim binder, and for and during the term of any insurance attaching thereunder, such vessel will remain eligible within its category.</P>
              <P>(3) <E T="03">Vessels described in § 308.1(b).</E> Applications for war risk insurance on a vessel described in § 308.1(b) shall contain the warranties that at all times the vessel will remain eligible within its applicable category; that the vessel will be made available for use by the United States pursuant to the signed Contract of Commitment submitted with the insurance applications, as required by the Maritime Administration; that the vessel will remain in the approved service; and that no controlling interest in the vessel shall be transferred by a subsequent sale or long-term charter, except on the condition that the successor in interest agrees to be bound by the terms of the applicant's Contract of Commitment. All instruments transferring any controlling interest in the vessel, including long-term charter or merger agreements, shall be submitted to the Maritime Administration for prior approval.</P>
              <P>(4) <E T="03">Vessels described in § 308.1(c).</E> Applications for war risk insurance on a vessel described in § 308.1(c) shall contain warranties that the vessel will remain in the approved service and that any change in flag or service will be reported in advance to the Maritime Administration for a new determination as to whether the vessel's service is in the interest of the national defense or the national economy of the United States. Vessels in this category are not eligible for war risk insurance interim binders.</P>
              <P>(5) <E T="03">Vessel locator filing requirements.</E> Applications for insurance on vessels in all categories, except tugs and barges and vessels used exclusively in the fishing trade or industry, described in § 308.1(a), shall contain a warranty that at all times the vessel will file reports as required under the U.S. Merchant Vessel Locator Filing System (USMER) as prescribed in § 308.2(c) of this section.</P>
              <P>(c) <E T="03">Filing applications for insurance.</E> All applications for insurance on a vessel shall be made to the American War Risk Agency, 14 Wall Street, New York, New York 10005, underwriting <PRTPAGE P="199"/>agent for the Maritime Administration.</P>
              <P>(d) <E T="03">Required submissions with</E>—(1) <E T="03">In general.</E> An application for insurance on a vessel described in § 308.1(b) shall be accompanied by:</P>
              <P>(i) A contract of commitment, in the form prescribed in § 308.5 of this part. In the event the vessel is determined to be ineligible under the terms of this part 308, the applicant will be so advised and the executed contract of commitment and any official foreign government action or approval will be returned to the applicant by the Maritime Administration.</P>
              <P>(ii) An executed agreement contained in the application for insurance that any charter or other contract covering the use of the vessel during the period of the binder or any insurance attaching thereunder shall be subject to termination or suspension without notice in the event the United States requires the use of the vessel under the voluntary contract of commitment submitted by the applicant.</P>
              <P>(2) <E T="03">Certification of citizenship.</E> An application for insurance on such a vessel shall be supported by execution of the citizenship certification, in the format set out in appendix C to Form MA-528, as described in paragraph (a) of this section. That certification shall be required to establish the U.S. citizenship of the majority ownership and control of the vessel-owning corporation, whether that ownership is direct or through intervening corporations.</P>
              <P>(3) <E T="03">Existing long-term charters.</E> An application for a vessel in this category which is at the time of application under long-term charter or other long-term contract, either to the applicant or from the applicant to a third party, shall be jointly submitted by the owner and the charterer, and in addition to the other materials required under this paragraph, shall be accompanied by a copy of the long-term contract covering the use of the vessel and all addenda thereto, certified to be full and complete copies (except as to rate of hire or freight) and a completed appendix C to Form MA-528, establishing the U.S. citizenship of the majority of the shareholders and control of the charterer. The charterer shall also furnish to MARAD a certified copy of any amendment to such charter which may be issued subsequent to the issuance of any binder of insurance under this Part 308.</P>
              <P>(4) <E T="03">Foreign government action or approval.</E> An application for a vessel in this category also shall be accompanied by a certified copy of the evidence of any official action or approval required by the government of the country of registry as a prerequisite to the execution of a contract of commitment with the United States.</P>
              <P>(5) <E T="03">Additional materials.</E> With respect to a vessel in this category, the applicant shall submit the following additional materials:</P>
              <P>(i) A statement describing the service in which the vessel is engaged, including a listing of the vessel's voyages and ports of call during the immediately preceding six (6) month period, indicating the tonnage and type of cargo carried on such voyages and the reasons why such service should be deemed to be in the interest of the national defense or the national economy of the United States;</P>
              <P>(ii) Material demonstrating the management and financial capabilities of the applicant; and</P>
              <P>(iii) In the case of a new vessel or a vessel which has not for the six (6) months immediately prior to the date of the application been engaged in the foreign commerce of the United States, a statement, signed by a responsible company official, certifying the extent to which the vessel will be engaged in the foreign commerce of the United States for the six (6) months immediately following the issuance of any interim binder of insurance under this part 308.</P>
              <P>(e) <E T="03">Requests for changes in binders.</E> All requests for changes in binders and inquiries relative to the insurance after the interim binders have been issued shall be directed to the American War Risk Agency, 14 Wall Street, New York, NY 10005.</P>
              <P>(f) <E T="03">Fees.</E> A check payable in U.S. funds to the “Maritime Administration, Department of Transportation” for the total amount of all binder fees payable by such applicant shall accompany each application. Binder fees are not returnable.<PRTPAGE P="200"/>
              </P>
              <P>(g) <E T="03">Availability of Application Forms.</E> Form MA-528 may be obtained from either the American War Risk Agency (Underwriting Agent), at the address in paragraph (e) of this section, or the Maritime Administration, Attention: Director, Office of Subsidy and Insurance, 400 Seventh Street, SW., Washington, DC 20590.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 2133-0011)</APPRO>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.4</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.5</SECTNO>
              <SUBJECT>Voluntary contract of commitment.</SUBJECT>
              <P>Applications for insurance on vessels described in § 308.1(b) shall be accompanied by a contract of commitment, in triplicate originals, executed by the owner (or by the owner and the charterer where required by § 308.3). Contracts of commitment to make the vessel available to the United States during any period in which vessels may be requisitioned under section 902 of the Act (46 App. U.S.C. 1242) shall be submitted on standard contract form which may be obtained from the American War Risk Agency or MARAD. The effective date of the contract of commitment will be the effective date of the binder and will be inserted in the contract of commitment by MARAD.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.6</SECTNO>
              <SUBJECT>Period of interim binders, updating application information and new applications.</SUBJECT>
              <P>(a) All existing interim binders remain in full force and effect without the necessity of re-application or the payment of additional fees so long as the Secretary of Transportation's authority to provide such insurance has been extended and is continuous.</P>
              <P>(b) Assureds under interim binders are required to notify the American War Risk Agency annually, by June 30th, of any change in the information provided in their original binder applications including, but not limited to, change of address, vessel name or vessel characteristics.</P>
              <P>(c) New applications for interim binders on U.S.-flag vessels, with necessary attachments (as specified in S 308.3), as well as checks for the binder fees prescribed made payable to “Maritime Administration, Department of Transportation,” shall be filed with the American War Risk Agency, 14 Wall Street, New York, New York 10005. All interim binders on U.S.-flag vessels shall become effective as of the date of determination of eligibility by the Maritime Administration.</P>
              <P>(d) New applications for interim binders on U.S. citizen-owned or controlled foreign-flag vessels, with necessary attachments (as specified in § 308.3), as well as checks for the binder fees prescribed made payable to “Maritime Administration, Department of Transportation,” shall be filed for review in accordance with eligibility requirements specified in § 308.2, and mailed to the American War Risk Agency, 14 Wall Street, New York, New York 10005. All interim binders on foreign-flag vessels will become effective on the date the owner's contract of commitment is executed by the Maritime Administration.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 2133-0011)</APPRO>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.7</SECTNO>
              <SUBJECT>Premiums and payment thereof.</SUBJECT>
              <P>Rate to be fixed promptly upon the happening of the event causing the American Institute Hull War Risks and Strikes Clauses dated December 1, 1977 (including Automatic Termination and Cancellation Provisions) for attachment to American Institute Hull Clauses dated June 2, 1977 of any war risk policies to become operative and premium shall be payable within ten days after receipt of notice of the amount thereof by the assured. Premiums shall be paid to the Underwriting Agent that issued the binders by check payable to the order of “Maritime Administration, Department of Transportation.” In the event that it is subsequently determined that insurance under interim binders did not attach, premiums paid will be refunded by the Maritime Administrator.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.8</SECTNO>
              <SUBJECT>War risk insurance underwriting agency agreement.</SUBJECT>

              <P>Standard form MA-355 of underwriting agency agreement applicable shall be executed by the Maritime Administrator and domestic insurance <PRTPAGE P="201"/>companies or groups of domestic insurance companies authorized to do a marine insurance business in any States of the United States, appointing such companies or groups of companies as Underwriting Agents to issue binders and policies covering hull, protection and indemnity, and Second Seamen's war risk insurance under subparts B, C, and D of this part. It shall contain provisions including, but not limited to the appointment of the agent, duties of the agent, books and records, compensation, standard of performance, indemnification effective date, amendment and termination, and nondiscrimination.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—War Risk Hull and Disbursements Insurance</HD>
            <SECTION>
              <SECTNO>§ 308.100</SECTNO>
              <SUBJECT>Insured amount.</SUBJECT>
              <P>An applicant for war risk hull insurance shall state the amount of insurance desired but any payment of claim for damage to or actual or constructive total loss of the vessel insured shall be made as provided in § 308.103(a). An applicant desiring disbursements insurance may at his option obtain such additional insurance but any claim for loss of disbursements as a consequence of the actual or constructive total loss of the vessel insured shall be made as provided in § 308.103(c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.101</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.102</SECTNO>
              <SUBJECT>Issuance of interim binder; terms and conditions; fees.</SUBJECT>
              <P>Upon acceptance of an application, an interim binder in the form set forth in § 308.106, will be issued and there shall be deemed to be incorporated therein by references all the terms, conditions, and warranties contained in the application for war risk hull and disbursements insurance and the standard war risk hull insurance policy (set forth in § 308.107), to the same extent as if such application and policy were made a part of the binder. The binder fee (not refundable) for U.S.-flag vessels shall be $25 per application for vessels under 500 gross tons; $100 per application for vessels 500 gross tons or over; and $100 per LASH or similar type barge application. The binder fee (not refundable) for foreign-flag vessels shall be $50 per application for vessels under 500 gross tons; $200 per application for vessels 500 tons or over; and $200 per LASH or similar type barge application. All fees are payable in U.S. funds by check to order of the “Maritime Administration, Department of Transportation.”</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 308.103</SECTNO>
              <SUBJECT>Insured amounts under interim binder.</SUBJECT>
              <P>(a) <E T="03">Valuation.</E> The valuation in the policy for damage to, or actual or constructive total loss of the vessel insured shall be a stated valuation (exclusive of National Defense features paid for by the Government) determined by the Secretary of Transportation which shall not exceed the amount that would be payable if the vessel had been requisitioned for title under section 902(a) of the Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1242(a)) at the time of the attachment of the insurance under said policy: Provided, however, That in the case of a construction subsidized vessel, for the period of insurance prior to requisition for title or use, the valuation so determined shall be reduced by such proportion as the amount of construction subsidy paid with respect to the vessel bears to the entire construction cost and capital improvements thereof (excluding the cost of national defense features), and for the period of insurance after requisition for use the valuation so determined shall not exceed the amount which would be payable under 46 App. U.S.C. 1242(a) in the case of requisition for title or use: Provided, further, that the insured shall have the right within sixty days after the attachment of the insurance under said policy, or within sixty days after determination of such valuation by the Secretary of Transportation, whichever is later, to reject such valuation, and shall pay, at the rate provided for in said policy, premiums upon such asserted valuation as the insured shall specify at the time of rejection, but such asserted valuation shall not operate to the prejudice of the Government in any subsequent action on the policy. In the event of the actual or constructive total loss of the vessel, if the insured has not rejected such valuation the amount of any claim therefor <PRTPAGE P="202"/>which is adjusted, compromised, settled, adjudged, or paid shall not exceed such stated amount, but if the insured has so rejected such valuation, the insured shall be paid as a tentative advance only, 75 per centum of such valuation so determined by the Secretary of Transportation and shall be entitled to sue the United States in a court having jurisdiction of such claims to recover such valuation as would be equal to the just compensation which such court determines would have been payable if the vessel had been requisitioned for title under 46 App. U.S.C. 1242(a) at the time of the attachment of the insurance under said policy: Provided, however, That in the case of a construction-subsidized vessel, the valuation determined by the court as such just compensation for any period of insurance prior to actual requisition for title or use of the vessel shall be reduced by such proportion as the amount of construction subsidy paid with respect to the vessel bears to the entire construction cost and capital improvements thereof (excluding the cost of national defense features), and for any period of insurance after actual requisition for use, the valuation determined by the court shall be the amount which would have been payable under 46 App. U.S.C. 1212 in the case of requisition for title: And provided further, that in the event of an election by the insured to reject the stated valuation fixed by the Secretary of Transportation and to sue in the courts, the amount of the judgment will be payable without regard to any limitations provided by statute, although the excess of any amounts advanced on account of just compensation that is over the amount of the court judgment shall be required to be refunded by the insured. In the event of such court determination, premiums under the policy