[Federal Register Volume 59, Number 179 (Friday, September 16, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-22865] [[Page Unknown]] [Federal Register: September 16, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Maritime Administration 46 CFR Part 298 [Docket No. R-150] RIN 2133-AB09 Obligation Guarantees AGENCY: Maritime Administration, Department of Transportation. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Maritime Administration (``MARAD'') is issuing this final rule which amends its regulations for Obligation Guarantees implementing Title XI of the Merchant Marine Act, 1936, as amended (``Act''). This rule will carry out the provisions of Subtitle D of Title XIII, Public Law 103-160, enacted on November 30, 1993. Subtitle D authorizes the Secretary of Transportation (``Secretary'') to guarantee obligations issued to finance (1) the construction, reconstruction, or reconditioning of eligible export vessels, and (2) advanced shipbuilding technology and modern shipbuilding technology of a general shipyard facility located in the United States. While Title XI of the Act is applicable to financing assistance for all types of vessel construction, that part of the Title XI program related to fishing vessels is administered by the National Oceanic and Atmospheric Administration of the Department of Commerce, (NOAA), pursuant to NOAA regulations, which appear at 50 CFR Part 253. Subtitle D of Title XIII directed the Secretary to prescribe interim regulations within 90 days after the date of enactment and a final rule within 270 days after enactment. MARAD published an interim final rule on March 31, 1994, and is now issuing this final rule that reflects its consideration of only those comments received that addressed the specific subject matter of the interim final rule. EFFECTIVE DATE: This final rule is effective September 16, 1994. FOR FURTHER INFORMATION CONTACT: Mitchell D. Lax, Director, Office of Ship Financing. Telephone 202-366-5744. SUPPLEMENTARY INFORMATION: Title XI of the Act, 46 App. U.S.C. 1271 et seq., authorizes the Secretary to provide guarantees of debt (``obligation guarantees'') issued for the purpose of financing or refinancing the construction, reconstruction or reconditioning of vessels built in United States shipyards. Applications for obligation guarantees are made to MARAD, which acts under authority delegated by the Secretary to the Maritime Administrator (``Administrator''). Prior to execution of a guarantee, MARAD must, among other things, make determinations of economic soundness of the project and the financial and operating capability of the applicant. Prior to amendment by Public Law 103-160, guarantees could be issued only for debt incurred by United States citizens for vessels to be operated under the U.S.-flag. Now, guarantees may be issued with respect to debt obligations for certain vessels flying foreign flags. The Title XI program enables owners of eligible vessels to obtain long-term financing on terms and conditions and at interest rates comparable to those available to large and financially strong corporations. Funds secured by the obligation guarantees that are used for financing a vessel are borrowed in the private sector. Public Law 103-160, the ``National Defense Authorization Act for Fiscal Year 1994'' (``Authorization Act''), was enacted on November 30, 1993. Subtitle D of Title XIII of the Authorization Act, the ``National Shipbuilding and Shipyard Conversion Act of 1993'' (``Shipbuilding Act''), establishes a National Shipbuilding Initiative (NSI) program to support the industrial base and national security objectives by assisting in the reestablishment of the United States shipbuilding industry as a self-sufficient internationally competitive industry. It adds new sections 1111 and 1112 to the Act. New section 1111 applies to vessels and provides that the Secretary may guarantee obligations for eligible export vessels in accordance with the same terms and conditions of Title XI as have been applicable to vessels documented under United States law. Alternatively, the Secretary may guarantee obligations in accordance with such other terms as the Secretary determines to be more favorable than the terms otherwise provided in Title XI and to be compatible with export credit terms offered by foreign governments for the sale of vessels built in foreign shipyards. Section 1111 also establishes an Interagency Council to ``obtain information on shipbuilding loan guarantees, on direct and indirect subsidies, and on other favorable treatment of shipyards provided by foreign governments to shipyards in competition with United States shipyards.'' New section 1112 applies to shipyards and provides that the Secretary may guarantee the payment of the principal of, and the interest on, obligations for advanced shipbuilding technology and modern shipbuilding technology of general shipyard facilities located in the United States. Hereinafter in the discussion of this rule, the use of initial capital letters in a term will indicate that it is a defined term in this Part 298. The Act presently provides a limitation of 75 percent or 87\1/2\ percent of the amount of Actual Cost which can be guaranteed, depending on the category of Vessel financed. However, in 1985 MARAD formalized the policy, begun in 1982, of issuing Guarantees of no more than 75 percent of the Actual Cost of a project in reaction to the growing number of defaults in several industry segments. As amended, the regulations now require a 25 percent equity contribution in every case. The Shipbuilding Act prohibits the Secretary from establishing any lesser percentage than set by statute that is intended to be applied uniformly to all Guarantees that are subject to the limitation. Subtitle D of Title XIII also makes conforming amendments to Title XI of the Act to reflect the new authority of the Secretary to issue Guarantees of debt Obligations used to finance Eligible Export Vessels and shipyard modernization and improvement, in the form of Advanced Shipbuilding Technology or Modern Shipbuilding Technology, abbreviated in this discussion as ``AST/MST'', and referred to at some places in the text as ``Advanced or Modern Shipbuilding Technology.'' It restricts the total value of all Guarantees for shipyard modernization and improvement to not more than 12\1/2\ percent of the funds available per year for loan Guarantees from funds transferred from the Secretary of Defense pursuant to section 108 of the National Defense Authorization Act for Fiscal Year 1994. As specifically authorized by the Shipbuilding Act that became effective on November 30, 1993, MARAD published conforming amendments to its Title XI regulations, as an interim final rule (59 FR 5123-33; March 31, 1994), effective on publication, to avoid delay in implementation of the new law that could adversely impact the NSI program. This interim final rule was intended to minimize transitional uncertainty, while allowing subsequent fine-tuning of these regulations based on the opportunity for considered evaluation of comments from interested parties before adopting a final rule. It was stated that whenever reference is made in the interim final regulations to forms prescribed by MARAD for applications or other filing requirements, the format of such forms in effect prior to the effective date of these regulations may be used pending revision and issuance of new forms to be approved by the Office of Management and Budget. To the extent necessary to reflect statutory requirements, any form submitted may be modified or supplemented to facilitate processing, but, until new forms have been approved, these regulations do not require more extensive paperwork or reporting requirements than exist under the present Title XI regulations. Exemptions provided herein should substantially lessen the aggregate reporting burden. Discussion of Rulemaking Text The discussion that follows summarizes the comments submitted to MARAD by 28 commenters on the interim final rule, notes where changes have been made to it and the rationale therefor and, where relevant, states why particular recommendations have not been adopted. In addition to soliciting comments on the interim final rule amendments to the Title XI regulations, MARAD requested public comment on two additional topics: (1) The issuance by the Secretary of a Letter of Interest prior to an applicant's submission of a complete application and the subsequent issuance, if any, of a Letter Commitment, and (2) the establishment of a deadline, such as 60 days, by which the Secretary would act on a Title XI application considered complete by the Secretary. Almost all commenters responded favorably to the proposal that the Secretary exercise discretion to issue a Letter of Interest prior to the applicant's submission of a complete application. Commenters noted that the procedure could be particularly useful if the shipbuilder could use the document as a marketing document to compete effectively against foreign yards that may be able to offer firm financing on the satisfaction of simple conditions. Some suggested that if MARAD were also to preapprove ship designs, Letters of Interest would be very effective indicators of MARAD's interest in a proposed financing. One commenter suggested that Letters of Interest could be used by applicants to forecast the cost of a transaction and the expertise that will be needed to complete a proposed transaction. Commenters proposed that requests for Letters of Interest should contain information about (1) the type and design of the Vessel to be financed and its intended trade, (2) the approximate cost of the Vessel and its proposed builder, (3) the amount of the requested Guarantee, (4) recent financial information on the prospective shipowner or bareboat charterer, (5) a description of the collateral to secure the Secretary's Guarantee, and (6) identification of the country in which the vessel would be owned and documented. A commenter recommended that there be no charge or fee for the issuance of a Letter of Interest, that the letter be issued prior to the filing of an application, and that the letter be issued within ten days of the request. Several commenters raised two concerns about Letters of Interest. First, they argued that requests for such Letters must be treated confidentially because a request for a Letter may come during the negotiating process and the requester shipyard would not want its competitors to be aware of the negotiations or potential prices. A second concern raised was that the formalization of a Letter of Interest procedure could slow down the expeditious approval by MARAD of loan guarantee applications by increasing the burden on MARAD or by effectively duplicating the formal application process. It was suggested by one commenter that MARAD could substitute preapplication meetings for the Letter of Interest. Additional concern was expressed that the conditions contained in a Letter of Interest should not be deemed by the agency to be binding if the applicant later demonstrates that it can meet alternative, but equivalent, conditions. Many commenters thought that the 60-day processing period for completed applications was reasonable, appropriate, and adequate. Some commenters suggested a shorter period of 30 days as conforming more closely to international commercial norms. Some shipyards were concerned that the 60-day turnaround is noncompetitive in the international market because a ``complete'' application may in itself take more than 60 days to draft. They suggested that guidelines would be necessary to define the procedures for submitting a complete application. Some suggested that for a pre-approved ship design, MARAD should be able to issue Letter Commitments within 30 days, and suggested that MARAD review its application requirements to ensure that it is not requiring burdensome information. One commenter suggested that a deadline for processing completed applications is an unnecessary requirement. MARAD Response: The discussion of the interim final rule stated that a separate Notice of Proposed Rulemaking (NPRM) would be published at a later date that would propose modifications to the Title XI regulations to improve administration of the entire Title XI program. Such modifications were not addressed in the interim rule because they were not required to implement the amendments made to Title XI resulting from enactment of the Shipbuilding Act. MARAD has determined that the two specific areas on which comments were solicited--the Letter of Interest and a deadline, such as 60 days, for processing a complete Title XI application--should be addressed in the NPRM because they apply to both the export and domestic programs. This will allow MARAD to deal with the issues at the same time. Commenters need not resubmit their views on Letters of Interest and the 60-day processing period in response to the new rulemaking. Meanwhile, MARAD will consider requests for Letters of Interest and will make every effort to finish its review of completed applications within 60 business days. Discussion of Regulations by Sections Note: Paragraph references are as designated or redesignated in the interim final rule. Section 298.2 Definitions (c) Advanced Shipbuilding Technology (``AST''). Some shipyards urged that the requirement that AST/MST be located at a ``general shipyard facility'' should not preclude the design, development and construction of ship-borne AST/MST or mobile marine equipment that incorporates such technology. MARAD Response: The statutory definition of a General Shipyard Facility includes a ``Vessel'' designed for the construction, repair, rehabilitation, refurbishment or rebuilding of any vessel. To the extent that such a Vessel incorporated the AST/MST, the regulations would not preclude their eligibility for a Guarantee. (e) Closing. Certain shipyard commenters requested that the definition of ``Closing'' be amended to clarify that a Mortgage is not issued at every closing and that a Mortgage may not be available for collateral that does not constitute realty. MARAD Response: MARAD believes that the current regulations are sufficiently clear. To constitute a ``Closing'' under MARAD's regulations, a Mortgage need not be required. (f) Depository. A number of commenters argue that it is unfair for MARAD to allow foreign Vessel owners and operators to use as a Depository foreign financial institutions that are not available to U.S. Vessel owners and operators that participate in the Title XI program. One commenter was in favor of allowing foreign institutions in foreign countries to act as Depositories for Eligible Export Vessels. One commenter stated that the Commonwealth of Puerto Rico should be specifically added to the definition of Depositories acceptable under the domestic program and another stated that it assumes the definition of Depository will not exclude foreign branches of U.S. banks. MARAD Response: When a Shipowner or charterer fails to maintain an agreed financial condition, Title XI documents require that it make certain payments from its net cash flow to the Depository as collateral for MARAD. MARAD agrees that, for reasons related to the enforceability of its collateral interests, there is insufficient reason to allow foreign Depositories for Eligible Export Vessels or Vessels in the domestic program. To clarify further the range of acceptable financial institutions allowed in the Eligible Export Vessel Program, MARAD has explicitly added financial institutions located in the Commonwealth of Puerto Rico, and, with the subsequent specific approval of MARAD, foreign branches of U.S. financial institutions as acceptable Depository institutions, to hold Vessel charter hire and Reserve Funds. (i) Eligible Export Vessel. A number of commenters stated that the definition of Eligible Export Vessels was too ``vague'' and should be clarified to include all vessel types within the scope of 298.2(bb), the definition of ``Vessel.'' MARAD Response: The regulations provide that an Eligible Export Vessel means a ``vessel'' with certain characteristics and they also provide a more comprehensive definition of ``Vessel.'' MARAD intended the term Eligible Export Vessel to include the definition of Vessel. The clarification sought by commenters is obtained by amending section 298.2(i) to read: ``Eligible Export Vessel means a Vessel ``constructed, reconstructed, or reconditioned in the United States for use in world-wide trade that will, upon delivery or redelivery, be placed under or continued to be documented under the laws of a country other than the United States.'' (k) General Shipyard Facility. Many shipyards requested a clarification of whether a General Shipyard Facility must be geographically contiguous or whether there may be various components of the facility in different locations if it can be shown that there is an economically feasible means to achieve increases in productivity, efficiency and quality. With respect to paragraph (k)(2), relating to a Vessel, floating drydock, or barge that constitutes a General Shipyard Facility and that must be ``built in the United States,'' one commenter requested clarification that the phrase ``built in the United States'' has the same meaning in this context as it does for Vessels. MARAD Response: The Shipbuilding Act does not explicitly address this question of geographic locations of a yard. There is no requirement that the components of a shipyard facility be geographically contiguous. A shipyard might have supply depots or machine shops several blocks away or farther from its main structures and these geographically separate buildings would, obviously, still be considered part of the yard. For purposes of shipyard modernization and improvement projects, the test that MARAD uses is whether the facilities at multiple locations, whether owned or leased, are part of the common enterprise, whether their activities are wholly or almost entirely devoted to the construction, repair, rehabilitation, refurbishment or rebuilding of any Vessel, and whether the shipyard applicant has management and control over the project and the personnel employed at each of the locations, whether owned or leased. The regulation is consistent with MARAD's position and, with this clarification, need not be amended. MARAD agrees that the legislative requirement that the floating shipyard facility be built in the United States is intended to meet the same standard as U.S.-flag Vessels built with Title XI. Accordingly, the definition of a Vessel, floating drydock, or barge that constitutes a General Shipyard Facility has been amended to require a showing, in the yard's application for a shipyard modernization Guarantee, that it meets the section 298.11(a) standards with respect to a Vessel deemed to be of U.S. construction. (q) Modern Shipbuilding Technology. Many shipyards commented that Title XI financing should be available to a shipyard for any item that will enhance the shipyard's competitiveness and capabilities even though such items do not constitute the ``best available proven technology, techniques and processes'' as ``Modern Shipbuilding Technology'' is defined. It was argued that an application for financing should not be rejected because, standing alone, it does not ``advance the state-of-the-art.'' MARAD Response: MARAD agrees that the intent of the statute and regulation is to allow flexibility in determining whether a project promotes the purpose of the Shipbuilding Act and whether it constitutes AST/MST. An application for a Guarantee should not be rejected merely because it does not ``advance the state-of-the-art'' or exceed the ``best available'' processes of shipyards around the world. It is MARAD's interpretation of the statutory term that it will be sufficient if a proposed project substantially advances the state-of-the-art or best available processes of an applicant shipyard and makes it more competitive internationally. The regulation has been rewritten to clarify MARAD's position. (r) Mortgage. Several commenters noted that the reference to 46 U.S.C. 31322 was confusing and recommended that it be changed to 46 U.S.C. 31301. Another commenter recommended that the rule should permit the use of valid security interests as a reasonable substitute when mortgages are not available. An additional commenter argued that MARAD should delete its reference to ``first mortgage'' as it relates to AST/ MST, arguing that MARAD would then retain its flexibility to allow co- financing with pari passu mortgages. Another commenter suggested that the use of the word ``enforceable'' before ``preferred mortgage'' was unnecessary. MARAD Response: The reference in section 298.2(r) has been amended to refer to section 298.2(x), Preferred Mortgage, which sets out in detail the requirements, among other things, for a foreign mortgage on an Eligible Export Vessel, relying on 46 U.S.C. 31301. The rule already provides in section 298.31 for the use of other security interests when Mortgages are unavailable or inappropriate. MARAD believes that it may have a first Mortgage and still enter into pari passu relationships. Such relationships are often the rule in co-financing arrangements. In any event, there is nothing in Part 298 that would preclude MARAD from accepting other security interests in addition to, or instead of, a Mortgage. The use of the word ``enforceable'' before Preferred Mortgage is surplus and has been removed, given the requirements regarding Mortgages in section 298.31(a). (w) Person. One commenter suggested that the definition of ``Person'' be expanded to include entities that are recognized under the laws and regulations of a relevant jurisdiction that might not fit neatly under MARAD's definition. No examples were offered. MARAD Response: MARAD believes that, in the absence of any examples of a deficiency in the definition, the existing definition of Person, which includes an ``individual'' and ``unincorporated organization,'' among many others, is sufficiently broad to encompass any applicant likely to apply, whether a U.S. or foreign entity. To ensure that the definition is completely clear, however, MARAD has added the phrase ``or other acceptable legal business entity,'' after the words ``unincorporated organization'' in paragraph (w). (x) Preferred Mortgage. With respect to a Preferred Mortgage, one commenter stated that the reference to 46 CFR 221.43 is incorrect and suggested that it should refer to section 221.31. MARAD Response: The reference to section 221.43 is incorrect, and it should be to 46 CFR 221.23(d). Furthermore, MARAD notes that the interim final rule inadvertently deleted former provision (s)(4)(vi). That provision has been restored in the final rule and is redesignated as paragraph (x)(1)(iv)(F). Also, paragraph(x)(3) has been amended to recognize that a Mortgage or other security interest on a foreign- documented Vessel can qualify as a Preferred Mortgage pursuant to 46 U.S.C. 31301(6)(B). Section 298.2(bb). Most commenters objected to the provision precluding U.S. citizens from owning Eligible Export Vessels. They viewed the provision as discriminating against U.S. citizens and giving unfair preferences to foreign owners. Almost all of those objecting argued that the prohibition against U.S. citizens owning Eligible Export Vessels went beyond the provisions of the statute and some argued that it was inconsistent with the intent of Congress to eliminate ``burdensome citizenship requirements.'' By contrast, one commenter contended that the prohibition of ownership by U.S. citizens was consistent with congressional intent. Some argued that the statute eliminated all citizenship requirements except for fishing vessels and oceanographic research or instruction or pollution treatment abatement or control vessels. Some commenters were concerned that MARAD's regulatory stance would limit the customer base and improperly restrict, rather than expand, the true scope of the Shipbuilding Act. One commenter asserted that the proscription of U.S. ownership could be easily evaded by imaginative corporate structuring and the use of charters. Finally, it was argued that MARAD should encourage U.S. ownership of Eligible Export Vessels as a matter of national security. MARAD Response: There is no statutory preclusion to U.S. companies participating in the Eligible Export Vessel program. The Vessels will be delivered in the United States from a U.S. shipyard to a buyer for operation in worldwide trade under the documentation of a country other than the United States, as the statute requires. A number of ``American'' companies are, in fact, multi-national companies, and regularly order Vessels from foreign shipyards. Congress intends American shipyards to enter into the international market, and no sound reason exists to preclude U.S. shipyards from competing for this portion of the international commercial business. Accordingly, MARAD has removed the prohibition on U.S. ownership from the definition of an Eligible Export Vessel. Section 298.3 Applications Certain shipyards were concerned about the disclosure provision in subsection (d), Confidential information, concerning the disclosure requirements of the Freedom of Information Act (``FOIA''), 5 U.S.C. 552, for two reasons: (1) That in international circles, financing applications are treated with strict confidence; and (2) the added expense of lawyers' fees for opposing a FOIA request render the Title XI programs non-competitive. MARAD Response: MARAD has no authority to amend the FOIA or the Administration's policy that it is to be liberally construed in favor of disclosure. On the other hand, while MARAD has not modified this section, it will continue to refuse to disclose information that is deemed by MARAD to be confidential, pursuant to legal authority interpreting the meaning of FOIA exemption (b)(4), because it would be likely to cause substantial harm to the competitive position of the person from whom it was obtained. MARAD is, of course, also bound by the Trade Secrets Act, 18 U.S.C. 1905, for unauthorized disclosures by Government officials of proprietary information that is exempt from disclosure under the FOIA, which, among other things, makes it a criminal act to release certain financial information such as a company's balance sheets, bids, or other proprietary information. With respect to paragraph (e), Priority, some shipyards expressed concern that it accords unjustified priority to (1) ``naval and military auxiliary'' vessels, (2) Vessels seeking domestic Title XI financing (in that MARAD must review applications for financing for Eligible Export Vessels in light of those for domestic vessels), and (3) shipyards engaged in naval vessel construction as well as pilot programs for shipyard modernization and vessel construction. MARAD Response: As a matter of maritime policy, MARAD accords priority for ``naval and auxiliary'' Vessels only in the domestic Title XI program. As for any impact on domestic Vessels, MARAD is required by statute to review applications regarding Eligible Export Vessels in light of the same standards as apply to Vessels to be documented under U.S. law. See section 1103(g)(1) of the Act. Any relief in this regard must come from Congress. Regarding the priority for shipyards engaged in both naval construction and pilot programs for shipyard modernization, such priority reflects the intent of Congress in facilitating the conversion of shipyards that have previously engaged in naval construction to commercial activities. The Title XI legislation is part of the National Shipbuilding Initiative, which also includes a technology development program for innovative commercial ship design and production processes and technologies. MARAD intends to administer the Title XI program in a manner that achieves the purposes of the National Shipbuilding Initiative. In addition, the priority in paragraph (e) for General Shipyard Facilities that have engaged in naval vessel construction is mandated by section 1359(a)(3) of the Shipbuilding Act with respect to amounts appropriated by the Secretary of Defense and available for transfer to the Secretary of Transportation. Section 298.10 Citizenship This section sets forth the citizenship requirements for Title XI applicants and certain other parties that must establish U.S. citizenship prior to acquiring a legal or beneficial interest in a Vessel financed under Title XI of the Act. The exceptions to this requirement are Eligible Export Vessels and Eligible Shipyards. One commenter stated that Section 298.10 should be deleted because Title XI of the Act no longer contains a citizenship requirement. Another commenter stated that the intent of Congress was to eliminate the citizenship requirement for all vessels financed under Title XI, not just Eligible Export Vessels. One commenter stated that the citizenship requirement in the 1936 Act applies only to a ``fishing vessel or oceanographic research or instruction or pollution treatment, abatement or control vessel or Eligible Export Vessel.'' A commenter pointed out that the parenthetical phrase in new paragraph (e), Exemption, should exclude ``operators'' in order to exempt those entities from being required to prove U.S. citizenship. Another recommended deletion of this section because all U.S. citizenship requirements have been deleted for Title XI and stated that as long as U.S. Coast Guard requirements are satisfied, MARAD should impose no additional requirements on U.S. citizens that could result in discrimination and additional costs. MARAD Response: The position of MARAD is that Section 1101(b) of the Act (46 App. U.S.C. 1271(b)), which was not amended by the Shipbuilding Act, requires that Vessels, other than Eligible Export Vessels, be owned by citizens of the United States as defined by section 2 of the Shipping Act, 1916, as amended, 46 App. U.S.C. 802, (the ``Shipping Act''). There is no legal requirement that a shipyard be owned by a Section 2 U.S. citizen. Review of the Shipbuilding Act and Title XI does not support the commenter's suggestion that the citizenship requirement for Vessels only applies to ``fishing vessels or oceanographic research or instruction or pollution treatment, abatement or control vessel.'' Likewise, a review of the legislative history of the Shipbuilding Act reveals no statement to eliminate the citizenship requirement for all Vessels financed under Title XI. The statute explicitly requires Section 2 citizen ownership of such Vessels, other than Eligible Export Vessels. If a bareboat charterer or other operator desires possession and control of U.S.-flag Vessels, the Shipping Act requires that it be a U.S. citizen or obtain MARAD's prior approval to charter or operate the Vessel. Consistent with that requirement, it has always been MARAD's policy that Title XI Vessels may not be bareboat chartered to, or be operated by, non-U.S. citizens. There is no reason to change this position now. Accordingly, bareboat charterers and other ``operators'' of U.S. flag Vessels will remain subject to section 298.10(a). No amendment to paragraph (e) is warranted in view of MARAD's disposition of the citizenship issues. Section 298.11 Vessel Requirement Concerning paragraph (a), United States Construction, certain shipyards claimed that many component parts are manufactured abroad and are not available in the United States, and others pointed out that U.S. Coast Guard U.S-built requirements relate to vessels operating in the coastwise trade, which are the most restrictive of all. Accordingly, they recommended excepting Eligible Export Vessels from these requirements; or that foreign made components are excepted so long as they are ``physically joined'' in this country; or amendment of this section to permit use of foreign made components so long as they do not exceed 49 percent of the Vessel's weight. MARAD Response: Paragraph (a), United States Construction, has been amended to remove the requirements for fabrication in the United States of components of the hull and superstructure for Eligible Export Vessels. Corresponding changes in Secs. 298.13 and 298.21(c) will make it clear that even though foreign components of the hull and superstructure may be included for Eligible Export Vessels, these costs will not be eligible for Title XI loan Guarantees. The intent is to allow hull and superstructure components from worldwide sources so as to allow the maximum integration of foreign and U.S. shipyard production as U.S. shipyards may desire for economic and/or competitive reasons in order to penetrate the international commercial market, without financing the foreign components of the hull and superstructure. Nonetheless, consistent with MARAD's policy since 1986, raw and improved products, such as unshaped, unmolded and unpunched steel can be imported and used in the production of the hull and superstructure without being excluded from Actual Cost as they are not deemed to be ``components'' of the hull and superstructure. Paragraph (c), Class, condition, and operation, was amended in the interim final rule to allow Vessel classification by members of the International Association of Classification Societies (IACS) ``to be ISO-9000 certified'', rather than restricting classification authority to the American Bureau of Shipping (ABS). With respect to Vessel classification, all but one commenter favored allowing Vessel classification by all members of the IACS; the ABS stated that this amendment would be contrary to law at 46 U.S.C. 3316(b) and could place the government's security in serious jeopardy. One commenter stated that the statute only requires the ABS, and not other IACS members, to be ISO-9000 certified. Another commenter proposed that IACS members should be certified to the ``IACS-Quality System Certification Scheme (QSCS),'' rather than the ISO-9000 standard. As to compliance with laws and regulations, several commenters requested that the provision be clarified to state that Eligible Export Vessels need comply only with all applicable laws, rules and regulations of the country of registry, and treaties and conventions to which the country of registry is a party, or the laws of the ports it serves. MARAD Response: MARAD disagrees with the comment that MARAD is required to recognize solely the ABS as its agent in all matters related to Vessel classification. It is MARAD's position that it has the authority under section 1104A(b)(6) of the Act to set classification standards for Eligible Export Vessels without relying on the classification standards of ABS. Section 1104A(b)(6) of the Act specifically states that the guaranteed vessel ``shall be in class A-1, American Bureau of Shipping, or shall meet such other standards as may be acceptable to the Secretary * * *.'' There was nothing in the subsequent enactment of 46 U.S.C. 3316(b) that either explicitly or implicitly repealed MARAD's ``other standard'' authority. That phrase is not limited to a different ABS class than A-1, as ABS contends. For instance, ABS does not class all Vessels eligible for Title XI loan Guarantees. MARAD does not believe that the government's security will be in serious danger if the Vessel is not maintained in Class A-1 ABS, so long as it is classified by an IACS member in accordance with MARAD- approved standards. However, MARAD does not agree that the QSCS standard is more appropriate than the ISO 9000 standard. MARAD believes that the ISO 9000 series reflects a broader and more appropriate set of classification standards, and should be required. MARAD agrees essentially with the comments about the applicability of U.S. laws and regulations and has modified this provision accordingly to clarify that Eligible Export Vessels need not comply with all U.S. laws and regulations as to Vessel condition and operation, but must be constructed in accordance with the requirements of the International Maritime Organization that are in force at the time of the Vessel's delivery. Section 298.12 Applicant and Operator's Qualifications One commenter suggested that this section be expanded to include the concept that a shipyard may be the applicant for Guarantees for Eligible Export Vessels and may be the initial party to the documentation, with the ultimate purchaser assuming the obligations of the contracts as a party upon delivery of the Vessel. Another commenter stated that the information required with regard to the identity and ownership of the applicant by paragraphs (b)(1)(v) and (vi), which were not amended by the interim final rule, is primarily relevant to establishing citizenship and should not be required of applicants for Eligible Export Vessel Guarantees. A commenter stated that the content of this section does not recognize certain structures for corporate entities that exist only in foreign countries, e.g., a ``Gmbh'' under German law, and suggested that there be a separate section for foreign applicants. That commenter also stated that the required disclosure in paragraph (c)(4) of whether the applicant or a predecessor has been ``in default . . . with others'' during the past five years needs clarification and should be limited to a default with respect to a financial instrument that gave rise to a right of the non-defaulting party to receive accelerated payment. With respect to the information sought by MARAD in paragraph (c) concerning the applicant's structure, business applications, activities and management, a commenter remarked that the expense to the ``smaller'' applicant may be burdensome, particularly where legal and accounting services are required, which services are excluded from the project's Actual Cost, and that the Secretary's ``waiver authority'' in section 298.13 (``Modified requirements'' in paragraph (h)) should be amended to exempt such applicants for Guarantees for Eligible Export Vessels from having to provide such information. Another commenter stated that the information required by paragraph (f)(2) concerning all management personnel of an Eligible Shipyard applying for a Guarantee for AST/MST is too broad and should be limited to senior supervisory personnel of the shipyard. MARAD Response: A shipyard can be an applicant for a loan Guarantee under the existing regulations. The shipyard would, like all applicants, be required to demonstrate successfully that it meets the regulatory requirements for the program, i.e., that, among other things, it is creditworthy to be the Obligor for the guaranteed Obligations, has an economically sound use for the Vessel, and can offer sufficient collateral for the guaranteed Obligations. Building a ship solely on the speculative hope that it could be sold would not qualify. A shipyard, like any qualified Obligor, could transfer the Title XI obligation before or after delivery to a qualified purchaser with the consent of MARAD. No amendment to the regulation is necessary as such transfer is allowed as a matter of contract. Paragraph (b) prescribes the type of information an applicant is expected to provide about its identity and ownership, depending on the structure of the organization. The example (``Gmbh'') cited by the commenter is the term used to denote a German limited liability company, generally comparable to a U.S. corporation. Such a company would file under paragraph (b)(1) of the regulations. To accommodate all possible applicants, MARAD has added a new paragraph (b)(4) stating that MARAD will inform any entity that does not fit the other descriptions in paragraph (b) concerning the information it should submit about its identity and ownership. MARAD will consider the comments it has received with regard to information required by paragraph (b)(1)(v) and (b)(1)(vi), regarding ownership of capital shares, when preparing the subsequent rulemaking concerning the administration of the entire Title XI program. MARAD sees no reason to change the present wording of paragraph (c)(4) requiring business data for small firms. The proposal that MARAD limit the information it receives on defaults to defaults on financial instruments that give rise to accelerated payments is far too limited. MARAD collects this information in order to discover needed information about the applicant's creditworthiness and its business experience and status. Information about its defaults, such as defaults on overdue tax liability or even on technical security defaults, can give MARAD valuable information on which to make a decision. For similar reasons, MARAD rejects the suggestion that it amend paragraph (h) to exempt the ``smaller'' applicant from describing its structure, activities, and management. The requested information is necessary for making a proper evaluation and assessment of the applicant regardless of its financial and organizational size. MARAD does agree with the comment proposing that the information sought by paragraph (f)(2) concerning management personnel of an Eligible Shipyard is too broad. Accordingly, MARAD has amended the provision to limit the information to that concerning senior supervisory personnel in the yard. Section 298.13 Financial Requirements A commenter stated with respect to paragraph (a)(2)(i), which was not amended by the interim final rule, that the exclusion from the cost of the project (Actual Cost) of foreign equipment and services, unless a waiver is specifically granted, should be deleted, along with the section 298.32(a)(6) required provision in the documentation for use of articles, materials, and supplies of U.S. growth production or manufacture, because these are Buy American provisions that are obsolete (by virtue of a 1986 amendment to section 298.11(a)). With respect to Eligible Export Vessels, comments in behalf of U.S. shipyards cited many reasons militating against exclusion of non-U.S. components from Actual Cost, e.g., few U.S. suppliers have the approval of classification societies other than ABS, and obtaining an equivalent certificate could be expensive (i.e., a 5-10 percent differential), and could result in undesirable exceptions to the ship's class that would put the U.S. shipyard in an unfavorable position vis-a-vis its foreign competitors; foreign shipowners want local components for ease of replacement and repair; foreign shipowners and designers designate the use of specific components which the shipbuilder cannot reject; many advanced ship types require components that are not available from U.S. sources but are from foreign sources; and many components of AST/MST are not available on the U.S. market. Based on these assessments, it was recommended that MARAD delete the third sentence in paragraph (a)(2)(i), which requires the exclusion of all foreign-made components from Actual Cost, as well as an obsolete Buy American provision remaining in section 298.32(a)(6), which requires only articles, materials or supplies of U.S. growth or origin to be used in a Title XI Vessel. A commenter also objected to the requirement in paragraph (a)(2)(i) for the applicant to submit supporting data, suggesting that MARAD add a provision stating that where a contract is competitively bid, the applicant is not required to submit supporting data, such as the cost of materials or worker hours, regarding the contract price, since the competitive bidding process should satisfy MARAD that the contract price is fair and reasonable. It is asserted that many shipyards do not bid a contract on such a basis and the requirement to supply such information to MARAD adds unnecessary administrative costs to the shipyard. A commenter stated that paragraph (a)(3), Financing, should be harmonized with paragraph (g) with respect to the treatment of subordinated debt and equity since the latter provides that subordinated debt may be included in equity, while the former disallows its inclusion. MARAD Response: With respect to the export program, MARAD has determined that the requirements in the third sentence of paragraph (a)(2)(i) and the provisions of sections 298.32(a)(6) and 298.32(b)(5)(ii), relating to foreign equipment and materials, should be amended. These provisions were inadvertently left unamended in the regulations in 1986. With one important exception, foreign components will no longer be excluded from the Actual Cost of a Vessel. The exception is that foreign components of the hull and superstructure of any Vessel, including an Eligible Export Vessel, are excluded from Actual Cost; this will ensure that significant Vessel construction and reconstruction that is financed by the United States will be performed by U.S. yards. MARAD will still need to be apprised of the use of foreign components and will not exclude them from Actual Cost, recognizing that many components are not available in the U.S. market or are not available in a cost or delivery competitive basis. MARAD will allow the value of such foreign components in the hull and superstructure to be used as owner-furnished equipment in meeting the equity requirements of section 298.13(a)(3). MARAD declines to adopt the proposal that it not require applicants to submit supporting data, such as labor costs and worker hours, regarding a construction contract where the contract is competitively bid. Generally, shipyards must prepare backup data to assure against doing business at a loss. Hence, in virtually all circumstances, the supporting data are already available, which are all that MARAD is reviewing. Further, as guarantor, MARAD needs to make an independent determination that the costs reflected in the Obligations are fair and reasonable, and has a statutory responsibility to ensure that it is guaranteeing no more than the statutory limit of allowable costs. A competitively-bid contract may reduce the likelihood of MARAD's guaranteeing inflated contract prices, but MARAD does not regard that procedure as an adequate safeguard. Without conducting its own analysis of the cost of the project, MARAD would not be able to determine whether (1) it was impermissibly guaranteeing ``soft costs''; (2) subsequent changes and extras were fair and reasonable; or (3) the contract price exceeded the fair and reasonable cost of the Vessel, despite the competitive bidding process. With respect to the comment that paragraph (a)(3) should be harmonized with paragraph (g) with respect to the treatment of subordinated debt as equity, MARAD believes that the rule could be improved with the addition of language cross-referencing the two provisions. Accordingly, it has added directly after the word ``debt,'' in the penultimate sentence of paragraph (a)(3), a reference to the discretion of the Secretary, provided in paragraph (g) of this section, to allow subordinated debt as equity. With regard to Primary financial requirements at Closing in paragraph (d), a commenter for shipyard interests stated that the factors upon which the existing financial requirements for a project are based, and which are made applicable under the interim final rule to a General Shipyard Facility owning AST/MST, do not appear to apply to such technology, and suggests that there should be a separate concept demonstrating how use of modern shipbuilding practices will enhance the shipyard's competitiveness. That commenter was also troubled by the fact that financial requirements are generally required to be based on U.S. Generally Accepted Accounting Principles (GAAP), but that many potential applicants will not have GAAP-based accounts and that restatement to GAAP would be prohibitively expensive and time consuming. This includes the requirement to file MARAD Form MA-172. According to another commenter, since Actual Cost of a Title XI project, including AST/MST is made up of items that are usually capitalizable under GAAP, and costs of research and development must generally be expensed, in order to stimulate and encourage the development and construction of AST/MST MARAD should allow research and development costs to be included in Actual Cost. Another commenter representing shipyard interests argued that the requirement that a shipowner's equity be at least 50 percent of its long term debt, exclusive of Title XI debt, is unsatisfactory, adding that this standard will preclude many potential international shipowners from using U.S. shipyards, since in the international market, use of such factors as value of the collateral, possibly with some recourse, is the normal practice. Furthermore, it was argued that there are subsidies available through the European Union and the Australian government that tip the scales against Title XI financing. Accordingly, that commenter recommended that paragraph (d)(1)(ii) be amended to the effect that the Vessel will serve as the sole security for the Guarantees; that in a highly leveraged transaction, additional security should be considered; and that applicants with a well established market share and a solid trading and revenue profile be required to maintain equity of only 15 percent of total long term debt. Another commenter argued that MARAD's minimum working capital, net worth, debt to equity ratios, and other financial ratios are too conservative when applied to the construction of AST/MST, particularly in the first year when expenses are high. It was alleged that such severe financial restrictions will thwart the purpose of Congress in advancing and assisting the transition of U.S. shipyards to modern shipyard facilities. One commenter noted that use of the term ``Owner'' of technology in new paragraph (e)(3) may be limiting because the General Shipyard Facility may be a ``Lessee'' of that technology. Another commenter stated that MARAD should allow more flexibility in reviewing the financial strength of the applicant as MARAD's equity to debt test provides no flexibility for evaluating potential financial structures as is now used in the export market, particularly by U.S. aircraft manufacturers for exporting aircraft, nor would it appear to allow MARAD to review and approve a financing structure utilizing a foreign sales corporation. MARAD Response: MARAD is not persuaded by the suggestion that the primary financial requirements at Closing should not apply to a General Shipyard Facility because they do not apply to AST/MST owned by a General Shipyard Facility. These financial requirements are criteria used to measure how adequately a company is capitalized to undertake the business it intends to pursue. MARAD needs that information for AST/MST projects just as it needs the information for other Title XI projects to assure reasonable prospect of repayment of the underlying debt. Regarding the requirement for a restatement of accounts in GAAP format, modern financial analysis requires accurate and standardized information. Companies seeking loan Guarantees for multimillion dollar projects should be prepared to demonstrate their creditworthiness in a reliable and standard manner. Thus far, it has been MARAD's experience with the Eligible Export Vessel program that the requirement for GAAP accounting has not proved an undue burden on applicants. Accordingly, MARAD declines to adopt the suggestions that it deviate from its normal financial terms, such as debt to equity ratios or a minimum net worth test for Eligible Export Vessels or shipyards. MARAD believes that these traditional tests, set forth in paragraphs (d) and (e), are useful in determining the creditworthiness of an applicant to function in the marketplace and make its debt service payments. As appropriate, MARAD can modify the existing requirements as provided under paragraph (h), Modified Requirements. MARAD also is not convinced to adopt the suggestion that it allow research and development costs to be included in Actual Cost. The financing of ``soft costs,'' such as research and development costs, exceeds the financing of the specific project, which is all that is authorized to be financed. MARAD has not adopted the suggestion that the financed Vessel be treated as the sole security for a Guarantee because in some circumstances that collateral will be insufficient to secure the Government's interest. MARAD has a fiduciary responsibility to ensure that the Government has received sufficient security for its loan Guarantees. Too often, unfortunately, the proceeds of defaulted Vessels sold to recover MARAD's payments under its Guarantee have not been sufficient. On the other hand, the current regulations state that ``under normal circumstances'' a financed Vessel or shipyard technology will be adequate security for the Guarantee. The same regulations authorize the Secretary to require additional collateral if it is determined that the Mortgage ``is not sufficient to provide adequate security.'' See section 298.31(c). Section 298.14 Economic Soundness A commenter argued that the new requirement in the interim final rule in paragraph (a)(2)(i) for disclosure of the ``number, type, and buyer of Vessels'' for which AST/MST ``will be used'' is unduly strict since a shipyard may be modernizing to attract a market segment rather than a specific buyer. Another commenter stated that satisfying the existing Title XI requirement in paragraph (b)(3) that the internal rate of return (IRR) analysis show a minimum return of 10 percent, based on the total project cost, would be difficult for the applicant to show in the case of the construction and development of new and innovative AST/MST facilities and equipment, and will discourage operators of General Shipyard Facilities from taking initial steps in the direction of greater productivity and efficiency. MARAD Response: MARAD recognizes that many shipyards may modernize to attract a market segment rather than a specific buyer, but MARAD believes that a shipyard's sound economic planning involves making reasonable business projections about the number and type of Vessels that can be reasonably sold and the number and types of potential buyers that can be expected to purchase them. Most businesses make such cost-benefit estimates and analyses of their business activities, especially before they commit substantial amounts of capital to expand their business. Additionally, MARAD does not believe that the IRR test will pose an insurmountable difficulty to shipyards since most shipyard projects would not be undertaken unless they were projected to have a minimum internal rate of return of 10 percent. Section 298.17 Evaluation of Applications One commenter suggested adding a fourth consideration for Eligible Export Vessels, in new paragraph (b) of the interim final rule, ``the export credit terms offered by foreign governments,'' while another commenter states that the new provision regarding factors considered in determining the applicant's equity requirements is not necessary as it is within the scope of the economic soundness finding in section 298.14, and should be deleted. MARAD Response: The list of items that the Secretary is required to consider in determining the amount of an applicant's equity was not intended to be exhaustive. MARAD will also consider all relevant factors, including the export credit terms offered by foreign governments, the convertibility of foreign currency, foreign sovereign guarantees, corporate parent guarantees, and other credit enhancements in determining the amount of applicant equity. It was deemed appropriate, however, to give notice to the public of some of the primary items MARAD would consider. Accordingly, MARAD has amended paragraph (b) to indicate that ``the Secretary shall consider, among other things, the following'' items. Section 298.18 Financing Advanced or Modern Shipbuilding Technology Two commenters argued that paragraph (a), Initial criteria, should be deleted as there is no requirement in the Shipbuilding Act that MARAD make a finding that the guaranteed financing will aid in the transition of U.S. shipyards, and encourage modernization or support increased productivity. A shipyard requested that there be included in paragraph (b) a definition of ``Technological Life'' of an asset when used to determine the duration of a Guarantee for AST/MST. MARAD Response: Although there is no requirement in the Act that the Guarantee of shipyard financing aid in the transition of those yards, encourage modernization, and support increased productivity, the Secretary is clearly authorized to impose such a requirement as a matter of policy. Section 1112(a) of the Act authorizes the Secretary, ``subject to the terms the Secretary shall prescribe,'' to Guarantee an Obligation for AST/MST. The Secretary has the authority to prescribe terms so long as they are reasonable and are consistent with the purposes of the Act. One major purpose of the Shipbuilding Act was to encourage yards in their efforts to make the transition to commercial activities. It is clear that the initial criteria of section 298.18(a) are reasonable and are consistent with the policies of the Act. MARAD is not yet able to include a definition of a ``technological life'' for a shipyard asset being financed. Although the request is understandable, MARAD will determine, on a case-by-case basis, what the technological life of financed assets is likely to be. In general, MARAD does not desire to have its Guarantees extend longer than the ``reasonable useful life'' of the collective assets which comprise this technology (the AST/MST). Section 298.19 Financing Export Vessels Paragraph (a), Transmittal to Secretary of Defense, requires the Secretary of Transportation to give the Secretary of Defense notice of receipt of an application. The Secretary of Defense may disapprove the loan Guarantee for reasons of national security. As to the requirement for review by the Secretary of Defense, one commenter urged that it should be clear that the Secretary of Defense can only disapprove the loan Guarantee based on national security interests and for no other reason. In addition, the commenter stated that the 30-day review period pursuant to which the Secretary has the right to exercise a veto is too long, given the need to streamline the approval process. Accordingly, the commenter recommended seven days. One commenter suggested that, to avoid confusion, the third reference to the Secretary in the second sentence of paragraph (a) should include the words ``of Defense.'' Paragraph (b), Determinations by the Secretary, sets forth the determinations that must be made in order to issue an Eligible Export Vessel loan Guarantee. Paragraph (b)(1) requires the Vessel to be of at least 5,000 gross tons if the loan Guarantee commitment cost is made available from funds transferred from the Secretary of Defense. Several commenters suggested that MARAD should make it clearer that Vessels under 5,000 gross tons are entitled to be financed as Eligible Export Vessels. In such instances, the loan Guarantee commitment cost would be charged against the appropriated funds provided by the Department of Transportation instead of the Department of Defense. However, one shipyard argued that all Eligible Export Vessel projects should be greater than 5,000 gross tons because the purpose of the statute is to facilitate conversion from defense to commercial activities. It asserted that to expend resources on relatively small Vessels, such as yachts and service boats, would not maximize U.S. shipyards' potential to compete in the commercial market. In addition, there would be the added practical difficulty of administering monies from two sources (Department of Defense and Department of Transportation) and the administrative overlay would be too expensive. Paragraph (b)(3) provides that Guarantees for Eligible Export Vessels shall not be approved unless the Secretary determines that the country to which the Vessel is to be exported, together with related institutions, is sufficiently creditworthy. Numerous commenters objected to the requirement that the Secretary make a determination as to the creditworthiness of the foreign country to which an Eligible Export Vessel is to be exported. They noted that the new statute does not contain such a requirement and that the regulation does not clarify what is meant by the country ``to which the Vessel is to be exported.'' The country could be the country of flag, the country where the owner and/or operator is located, or the countries where the Vessel could operate. Two commenters expressed concern that the creditworthiness requirement, if applied to the country of flag, would apply to flag-of- convenience countries where the Vessels will rarely call. One commenter specifically noted that Liberia and Panama, two of the largest Vessel registers, would be off limits pursuant to such a requirement. The commenter stated that a lender can accept a Mortgage and registration from a country with poor credit provided the overall project is sound. Some commenters argued that the creditworthiness of a foreign nation should not be a concern because the Secretary will have a security interest in vessels or other collateral. Another commenter suggested that where there is adequate security for the Guarantees, MARAD's only other legitimate interest should be whether the country of registry's legal structure provides for adequate enforcement of the Mortgage or other security. One commenter noted that this is a different loan program from those that would require some political or country risk analysis and the provisions for a review by the Secretary of Defense should be adequate to screen out deals that may involve entities from countries whose interests are hostile to the U.S. or who pose a threat to our national security. Another commenter noted that the regulation does not identify the issues or elements to be weighed by the Secretary in making a determination of ``creditworthiness'' nor do they state the standards against which such elements shall be measured. MARAD Response: The role of the Secretary of Defense is established by statute. See section 1104A(j)(1) of the Act. MARAD cannot alter the time period established by Congress for review by the Secretary of Defense or otherwise expand or contract that Secretary's authority. It is, of course, clear that the Secretary of Defense may only disapprove a loan Guarantee based on an assessment of ``the potential use of the Vessel in a manner that may cause harm to the United States national security interests.'' Id. MARAD concurs, however, with the comment that the third reference in the second sentence of paragraph (a) to the Secretary should include the words ``of Defense'' and has so modified that sentence in the final rule. MARAD concurs with the suggestion that it should clarify that vessels under 5,000 gross tons can be financed as Eligible Export Vessels with funds provided by appropriations to the Department of Transportation instead of funds provided by the Department of Defense. MARAD believes that it should exercise the broadest possible flexibility to assure that U.S. yards can be stimulated to engage in international commerce effectively. MARAD also believes that it may, in fact, be very reasonable to finance smaller, ``niche'' vessels, and is acting to preserve its authority to do so. Problems of administering the monies from two different sources are negligible. The objection of numerous commenters to the language of paragraph (b)(3) as it applies to the creditworthiness of ``the country to which the Vessel is to be exported'' is, in part, well taken. Some Vessel owners will document their Vessel under a flag of convenience that bears no commercial relationship to the country in which the shipowner or charterer has its principal place of business. Of course, MARAD, as mortgagee, is concerned about the enforceability of its security interests in the various jurisdictions involved in the business plan of the Vessel, including the enforceability of a mortgage under a flag of convenience. However, the country of the ship's documentation is not the issue here. The problems intended to be addressed by paragraph (b)(3) deal with the creditworthiness of the country in which the shipowner and its charterers have their chief executive offices and have located a substantial portion of their assets. It is in those places where MARAD will have to enforce deficiency judgments or pursue enforcement of Guarantees. Among other things, these problems of enforcement include (1) the convertibility and the stability of currency from the shipowner's or the applicable (bareboat or time) charterers' countries, (2) the likelihood of political violence, expropriation, and government sanctioned repudiation of contracts, (3) the ability to enforce contract rights in the juridical systems of the shipowner's and charterers' countries, (4) the likelihood that MARAD could enforce sovereign and corporate guarantees, (5) the existence of acceptable lien filing and bankruptcy systems, and (6) the stability of the banking systems. Accordingly, MARAD has revised paragraph (b)(3) to state that ``Such Guarantee shall not be approved unless the Secretary determines that the countries in which the shipowner, its charterers, guarantors, or other financial interests, if any, supporting the proposed transaction have their chief executive offices or have located a substantial portion of their assets, present an acceptable financial or legal risk to MARAD's collateral interests.'' Section 298.20 Term, Redemption and Interest Rates Several shipyards and other commenters proposed that the Secretary should make liberal use of the maximum 25-year duration for Guarantees in paragraph (a), and should disregard the provisions in the Organization for Economic Co-operation and Development's (OECD) Arrangement on Guidelines for Officially Supported Export Credits that preclude financing for more than 80 percent of the contract price of a Vessel and restrict financing to a maximum of eight and a half years at a minimum interest rate of 8 percent. Paragraph (c), Interest rate, was amended in the interim final rule to allow the Secretary discretion with respect to Guarantees for all transactions other than those for U.S.-flag Vessels owned by U.S. citizens. Two commenters objected to the requirement that interest rates for U.S. Vessels must be ``reasonable'' while there is no such requirement for non-U.S. Vessels. One of the commenters observed that while the intention of the legislation was to assist the shipbuilders, the specifics are offensive when foreign owners are granted preferences by the regulation. Another of the commenters stated that there is no statutory basis for Secretarial discretion with regard to interest rates for transactions other than for U.S. owned Vessels that is similar to the discretion that exists in section 298.39 of the interim regulations. That regulation is based on section 1111(a)(2) of the Act, as amended by the Shipbuilding Act, allowing the Secretary to meet export credit terms of foreign governments. Therefore, it was submitted that the provision granting discretion in setting interest rates should be eliminated. One commenter noted that the word ``rates'' appears to be missing after the words ``. . . taking into account the range of interest . . .''. The commenter suggested that, at the end of the paragraph, the words ``with respect to each application'' be deleted and the words ``. . . with respect to the Obligations to be guaranteed'' be substituted therefor. MARAD Response: In issuing loan Guarantees pursuant to section 1111(a), MARAD is not subject to the OECD guidelines. Among other reasons, the U.S. is not a party to the OECD Understanding On Export Credits For Ships and, further, Congress intended MARAD to issue its Eligible Export Vessel Guarantees according to the same terms and principles it applies in the domestic program. MARAD notes that an OECD agreement on shipbuilding subsidies was negotiated on July 17, 1994, and still must be ratified by all parties thereto. If and when this OECD agreement on shipbuilding subsidies goes into force, the terms of the Title XI program will be modified to conform. In the meantime, applicants shall be required to demonstrate their qualifications for the current loan Guarantee program, on the basis of their creditworthiness, the economic soundness of their proposed project and the value of the proposed collateral. MARAD agrees that there is an unnecessary appearance of unjustified preference in the way interest rates could be approved for the various programs and MARAD has removed in the final rule the last sentence of paragraph (c) as requested. MARAD has also inserted the word ``rates,'' after the words ``taking into account the range of interest,'' in that paragraph (c). Section 298.21 Limits Paragraph (a), Actual Cost basis, was amended in the interim final rule to include reference to AST/MST and to add new paragraphs (14) and (15) which, respectively, disallow payments for early equipment delivery or non-capitalizable pre-delivery expenses for such technology. Paragraph (b), Actual Cost items, sets forth the items which comprise Actual Cost. One commenter advised that the citations to the Act in paragraph (a) should be corrected to ``Section 1104A(b)(2) or 1104B(b)(2)'' and ``Section 1103(A)(a)(5)''. With regard to paragraph (b), Inclusion of owner furnished equipment in Actual Cost Determination, one commenter stated that it is appropriate to include as part of Actual Cost items the cost of owner supplied facilities that are part of AST/MST, such as land, buildings, drydocks, piers, etc., and the cost of upgrading, renovating, refurbishing, and relocating such facilities. The rationale is that such items play a role in construction of AST/MST that is as important as owner-furnished equipment in the construction of a vessel and that the value assigned to such items should be fair market value or a percentage thereof. Several shipyards commented that, to the extent that the regulations do not follow Cost Accounting Standard 404 relating to tangible capital assets constructed by a contractor for its own use, they should be amended to do so in order to permit the inclusion of indirect costs in the calculation of Actual Cost, i.e., general and administrative expense when in-house construction requires planning, supervisory, or other significant effort by officers or other personnel whose salaries are charged to G&A expenses. With respect to new paragraph (b)(14), some commenters urged that the concept of including payments for early delivery of a Vessel or AST/MST should be reconsidered since there is clear economic value in many cases for receiving early delivery, and speed in producing the end result should be encouraged and not discouraged. This is especially true when the need is considered for U.S. shipyards to accelerate their delivery schedules to compete more effectively with foreign yards. MARAD Response: The references in paragraph (a) will be corrected to read ``section 1104A(b)(2) or 1104B(b)(2)'' and ``section 1103A(a)(5),'' respectively. Extending the Guarantee to land, buildings, and other preexisting facilities is not accepted, as MARAD has limited resources to finance the AST/MST vessel projects. Moreover, as a general practice, MARAD has disallowed the inclusion of indirect costs in the calculation of Actual Cost. MARAD's appropriated funds are available for the direct costs of constructing the asset; the inclusion of indirect costs carries with it the potential for unjustified inflation of the Actual Cost to the detriment of the taxpayer and the program. MARAD has not financed the payment of premiums for early delivery of Vessels because these costs do not add to the value of the collateral and, in any event, the value of the premium should be recoverable by the shipowner as profit arising from its operations. Consistent with the amendments to sections 298.11(a), concerning U.S. construction, and 298.13(a)(2)(i) with respect to Actual Cost, MARAD has also adopted a specific, explicit exclusion of the cost of such foreign components of the hull and superstructure, and the cost of their foreign assembly, in a new paragraph (c)(16) of section 298.21. Section 298.23 Refinancing The section was amended in the interim final rule to provide that refinancing of Title XI debt only shall be permitted for AST/MST. One commenter noted that the refinancing limitation with respect to technology is not imposed by statute and that refinancing of recently incurred debt should be allowed. Several shipyards commented that the provision regarding technology is too restrictive because it would preclude the refinancing of a ``bridge loan'' incurred prior to the receipt of Title XI financing. MARAD Response: MARAD is of the opinion that it is not sound policy to use a Government Guarantee to refinance existing shipyard debt. As a matter of administrative discretion, MARAD has decided to use its limited funds for the development and use of new technology by U.S. shipyards not previously privately financed and for Vessel projects. On the other hand, the refinancing of Title XI debt at a lower interest rate benefits all participants, thereby reducing the government's exposure under the guaranteed obligations. To clarify, however, that the whole of section 298.23 applies to the refinancing of AST/MST, the final rule has been amended by inserting the words ``or Advanced or Modern Shipbuilding Technology'', where appropriate, in section 298.23. Section 298.31 Mortgage Paragraph (a), In general, was amended in the interim final rule to include a provision for evidence of the Secretary's security interest in AST/MST, which may be a form of security other than a Mortgage. That paragraph also requires, with respect to a foreign Mortgage for Eligible Export Vessels, that to ensure the validity and worldwide enforceability of such Mortgages, the Secretary will require the Obligor to obtain satisfactory legal opinions from foreign counsel. One commenter stated that it is not clear whether a security interest that is not a Mortgage can be used as satisfactory evidence for the Secretary. The commenter suggested that MARAD specifically provide for the use of security interests, in addition to Mortgages, in its program for Eligible Export Vessels. The commenter argued that MARAD should specifically allow this type of transaction and should not rely on the ``Exemptions'' provision in the regulations to permit other financing structures. Many commenters objected to the requirement for legal opinions as to the worldwide enforceability of Mortgages because, generally, no lawyer is able to give an opinion on the law with respect to any jurisdiction other than that in which the lawyer is admitted to practice. Furthermore, it was stated that there are some jurisdictions where Mortgages cannot be enforced as a practical matter. The commenters noted that this requirement adds an additional cost to a transaction that needs to be financially competitive with non-U.S. financing alternatives. Several commenters stated that in-house counsel should be permitted to render opinions and that such practice is commercially acceptable. One commenter noted that the focus should be on the country in which the Vessel is registered and the country where the owner has its principal place of business. Another commenter argued that the Secretary should be authorized to accept various types of collateral (i.e., land, buildings, equipment) or a collateral package (i.e., a combination of first and second Mortgages, assignments, etc.) for Title XI financing. One commenter questioned whether it would be practical for the Secretary to promulgate a standard mortgage for each country, because there are so many differences from country to country. Another commenter suggested that there are some countries where the Secretary may not, by law, be a mortgagee and proposed that the regulation be amended to permit the Secretary to appoint or designate an authorized and eligible mortgagee to act on the Secretary's behalf. The comment does not cite any examples. MARAD Response: The regulations provide that ``Under normal circumstances, a Guarantee shall not be endorsed on any Obligation until the Secretary receives satisfactory evidence of a security interest in one or more Vessels . . . .'' See section 298.31(a). The existing regulations also specifically provide that ``In the case where a Mortgage or a security interest on the financed assets may not be available or enforceable, the Secretary shall require alternative forms of security.'' Therefore, the existing regulations provide flexibility to accept collateral other than ship Mortgages and in unusual circumstances, for example, where a Mortgage is not available in a foreign jurisdiction for a delivered Vessel, MARAD could accept another type of security interest. No amendment to the regulation is necessary in this connection. The hallmark of a ship Mortgage is that, once foreclosed upon in admiralty court in an in rem proceeding, the admiralty order transferring possession free and clear of all liens is valid against the whole world. The reference in section (a) was to this type of ``worldwide enforceability.'' Understandably, there are countries which do not afford this comity and international recognition of judgments, particularly those countries which do not have admiralty courts. Taking into account the objections raised to the term ``worldwide enforceability'' and the potentially burdensome legal costs entailed in such an opinion, MARAD has amended this provision to require an enforceability opinion only (1) As to the country in which the vessel is documented, (2) the United States, and (3), in the case of dedicated service (over specified trade routes), the country or countries involved in this service, or if those destinations are too numerous in MARAD's opinion, then only in the Vessel's primary port of operation. After much deliberation, MARAD has decided not to accept the suggestion that legal opinions be issued by in-house counsel. It has long been a MARAD precondition for the issuance of a Guarantee that an applicant retain outside, independent legal counsel, who are acceptable to MARAD, to issue such a legal opinion to MARAD. Counsel are required to opine, among other things, that the documents comprising the guaranteed transaction have been duly authorized, executed, and delivered and constitute the valid, legally binding, and enforceable obligations of the Obligor and other Related Parties. We note that other government agencies, most notably the Overseas Private Investment Corporation and Export-Import Bank, when engaged in similar commercial transactions, require that the applicants pay for an attorney to advise the agency in addition to any that they may employ for themselves. With respect to the argument that the Secretary should be authorized to accept various types of collateral, including land and equipment, second mortgages, assignments, etc., MARAD notes that section 298.31(c) already states that if it is determined that a Mortgage on a financed Vessel or AST/MST is not sufficient, then the Secretary ``may require additional collateral, such as mortgage(s) on other . . . assets, special escrow funds, pledges of stock, charters, contracts, notes, letters of credit, accounts receivable, assignments, and guarantees.'' No amendment to the rule is necessary to preserve this discretion, which the Secretary has consistently exercised over the life of the Title XI program. In response to the query whether it would be practical for MARAD to promulgate a standard Mortgage for each country, it should be stated that MARAD has no intention of proposing a standard foreign mortgage. MARAD may, however, over time compile a list of jurisdictions that have satisfactory mortgage laws. Finally, with respect to jurisdictions where the Secretary may not, as a matter of law, be a mortgagee, MARAD will not issue a loan Guarantee, unless some other acceptable form of security can be provided. Section 298.32 Required Provisions in Documentation Paragraph (a)(1) was amended in the interim final rule to provide for the furnishing of satisfactory insurance or a performance bond by the manufacturer of AST/MST. Several shipyards commented that a performance bond is not necessary where the manufacture of AST/MST is concerned because the manufacturers are merely suppliers of goods and services. The proscription against work done outside the shipyard contained in paragraph (a)(5) was not within the scope of the interim final rule, but several shipyards have requested that MARAD amend the provision to remove the prohibition against the use of Title XI proceeds for payment of work done outside the shipyard unless the Secretary consents in writing to such use. It was suggested that such language is probably unintentionally too restrictive and should be modified by adding, ``except for customary and usual subcontractor or supplier off-site prefabrication or fabrication of components where considered appropriate for cost or risk containment purposes.'' Several shipyards have requested that MARAD amend paragraph (a)(6), which requires that materials and supplies of the United States be used, to delete this remnant of the former ``Buy American'' requirement in section 298.11, which was amended in 1986. With respect to paragraph (b)(4), which prescribes covenants by shipowners, including citizenship requirements that were amended in the interim final rule to exclude Eligible Export Vessels from compliance, one commenter suggested that the word ``registry'' is confusing in that while the term is common for documentation of foreign vessels in foreign countries, it is a confusing term when used for documentation of a vessel under the laws of the United States. The commenter suggested substituting for the term ``registry'', the term ``documentation'', to correct the confusion. In addition, another commenter suggested that ``compliance with the provisions of 46 U.S.C. 31301-31343'', is inappropriate with regard to Eligible Export Vessels and reference to them should be stricken. MARAD received several comments by shipyards about paragraph (b)(8) that requires the Obligor to maintain insurance on Title XI assets, suggesting the regulation be amended to allow shipyards to self-insure if those shipyards can demonstrate their financial well-being to the satisfaction of the Secretary. Paragraph (b)(9) requires covenants for Eligible Export Vessels to maintain additional types of insurance as may be required against such risks as those of a political, financial, or economic nature, to reflect any risk of the foreign country associated with the shipowner. One commenter expressed concern that compliance with this regulation may be impossible because the Vessel may be purchased by one foreign national, sold to another foreign national, and flagged yet in another country. MARAD Response: MARAD believes that paragraph (a)(1) is written with sufficient qualifications to ensure that, in a proper case, MARAD will not require a performance bond. In the case of mere suppliers of goods that need not be specially constructed to meet the shipyard's specifications, a performance bond would not be required. Accordingly, MARAD has not found it necessary to amend the regulation further to achieve this result. With respect to paragraph (a)(5), concerning the constraints on work done outside the shipyard, the commenters misapprehend MARAD's practice. MARAD merely needs to be aware of offsite prefabrication or fabrication practices; MARAD does not discourage that practice. The requirement for written approval has not posed a problem for other projects and it is not anticipated to pose a problem. The Buy American issue concerning paragraphs (a)(6) and (b)(5)(ii) were addressed earlier in the discussion concerning section 298.13. Accordingly, those provisions have been amended. As to paragraph (b)(4), MARAD agrees with the commenter who suggested that Eligible Export Vessels should not be required to comply with the provisions of 46 U.S.C. 31301-31343, Commercial Instruments and Maritime Liens. Instead, the regulation has been amended to state that the Obligor shall covenant with the Secretary that the Mortgage on its Eligible Export Vessel shall comply with the definition of a ``preferred mortgage'' under 46 U.S.C. 31301(6)(B), to wit, it 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. In addition, paragraph (b)(4) has been modified to state the requirement for ``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'', instead of ``registry'' of the Vessel. Insurance of the Title XI assets is a critical and essential part of the Title XI program. Self-insurance by shipyards as to its collateral is considered by MARAD to be unduly risky. Finally, MARAD does not agree that compliance with the provisions of section (b)(9) on certain insurance for Eligible Export Vessels is ``impossible.'' In domestic Title XI projects, such insurance has been procured. The requirement is not invalidated by the possibility of subsequent transfer of the Vessel because such transfer requires MARAD's prior consent. MARAD's consent will not be given unless the proposed purchaser agrees, among other things, to obtain the required insurance. Section 298.34 Construction Fund Paragraph (b) was amended to include disbursements from the construction fund prior to delivery of the AST/MST. Several shipyards have suggested that in the international market place, the shipowner may, at its own risk, contract with the shipyard for construction prior to obtaining the loan or loan Guarantee, and pay for the initial stages of construction with the required 12.5 percent equity (87.5 percent Guarantee) or the 25 percent equity contribution (75 percent Guarantee) at that time. Thereafter, once the Secretary has authorized its commitment, such equity expenditures would be credited as the equity contribution. Thus, it was proposed that section 298.34 should be amended to authorize such interpretation of equity contribution. MARAD Response: The proposed practice is consistent with those that MARAD follows under the regulation as drafted, and no additional amendments in this respect are necessary. Section 298.35 Reserve Fund and Financial Agreement Several shipyard commenters have stated that there is a need for clarification of the calculation to determine the amount of required deposits into the Reserve Fund because existing regulations do not provide a shipyard with enough facts to make an informed decision with respect to the total cost of Title XI financing. In addition, the Reserve Fund deposit requirements, as written, do not address how net operating revenue will be determined in conjunction with the shipyards' AST/MST assets. MARAD Response: MARAD agrees and has amended Section 298.35 to provide for a simple calculation of net income deposits into the shipyard's Title XI Reserve Fund. Such calculation will be set at 2 percent of net cash flow, as defined by GAAP, and as shown on its audited financial statements. Section 298.36 Annual Guarantee Fee Several shipyard commenters have suggested that MARAD waive the Guarantee Fee if the interest provided for under Title XI is greater than that provided for overseas under OECD financing in order to meet international competitiveness. MARAD Response: The Secretary has no authority to waive the statutorily-required Guarantee Fee. On the other hand, MARAD has authority to match export credit terms offered by foreign governments if those offered are more favorable than under Title XI. To date, MARAD has not had occasion to exercise that authority. Section 298.39 Exemptions Several shipyards have suggested that MARAD needs to codify specific guidelines for exemptions from its regulations, and the following standards should be added to allow greater flexibility: MARAD (1) Should waive Guarantee and investigation fees where foreign shipyards do not charge fees, or allow the applicant to include such in its actual costs; (2) extend the life of the Guarantee beyond 25 years; (3) authorize the inclusion of legal and accounting costs in Actual Cost; (4) and finance more than 87.5 percent of the Actual Cost. In addition, it was stated that the phrase ``not required by law'' in the first paragraph of the section is ambiguous since the statute specifically authorizes waiver of statutory requirements, and it should be deleted for this reason. Commenters further suggested that MARAD should have the flexibility to provide for waivers when, in the judgment of MARAD, a waiver (1) Is required to provide effective assistance to U.S. shipyards in competing in the global market; (2) is not inconsistent with law; and (3) will not unduly affect the financial interests of the United States, given the objectives of the program. MARAD Response: MARAD declines to adopt these proposals as unnecessarily diluting the force and effect of the regulation. The exemptions are not intended to address MARAD authority under section 1111(a) of the Act to provide more favorable terms than specified by Title XI in order to be compatible with export credit terms offered by foreign governments. Any exercise of such authority will be on a case- by-case-basis. Section 298.42 Reporting Requirements--Financial Statements Several shipyards have suggested that since they are wholly owned subsidiaries and are included in the general audit of the parent corporation, MARAD should accept such audits because independent audits could be too costly to conduct for the shipyards. MARAD Response: The regulation already preserves the discretion of MARAD to allow the submission of consolidated audits in an appropriate case and no amendment of the regulation is necessary to accommodate the commenter's request. Rulemaking Analyses and Notices Executive Order 12886 (Regulatory Planning and Review) and Other Requirements of Law This rulemaking has been reviewed under Executive Order 12866, and it has been determined that it is a significant regulatory action since it is likely to result in a rule that may have an annual effect on the economy of $100 million or more. It has also been determined to be a significant rule under the Department's Regulatory Policies and Procedures. Final Regulatory Assessments have been prepared and are available in the docket for inspection or copying where indicated under ADDRESSES. In summary, the Final Regulatory Assessments finds that the cost of the Title XI program over the first two years is $144 million, resulting in an average annual cost of $72.0 million. Assuming that there is demand for maximum guarantees and guarantees will range from 70 percent to 87\1/2\ percent of actual cost of the vessel and shipyard modernization and improvement projects, the value of the vessels, capital goods and other assets produced over the first two years of the program will be about $1.85 billion. Further, it is estimated that new Title XI guarantees could generate 19,440 worker years of employment for U.S. shipyard workers, which translates into employment for 9,720 workers over a period of two years. This rulemaking document has been reviewed by the Office of Management and Budget under Executive Order 12866, ``Regulatory Planning and Review.'' Federalism MARAD has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 12612 and has determined that these regulations do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Regulatory Flexibility Act MARAD certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Environmental Assessment MARAD has considered the environmental impact of this rulemaking and has concluded that an environmental impact statement is not required under the National Environmental Policy Act of 1969. Paperwork Reduction Act This rulemaking contains reporting requirements that have previously been approved by the Office of Management and Budget (Approval No. 2133-0018). List of Subjects in 46 CFR Part 298 Loan programs--transportation, Maritime carriers, and Mortgages. Accordingly, the interim final rule amending 46 CFR Part 298, which was published at 59 FR 15123-15133 on March 31, 1994, is adopted as a final rule, with the following changes: PART 298--[AMENDED] 1. The authority citation for part 298 continues to read as follows. Authority: 46 App. U.S.C. 1114(b), 1271 et seq.; 49 CFR 1.66 Sec. 298.2 [Amended] 2. Section 298.2 is amended as follows: a. By amending paragraph (i), Eligible Export Vessel, to capitalize the first letter of ``vessel'' in the definition. b. By amending paragraph (w), Person, to add the words ``or other acceptable legal business entity'' after the words ``unincorporated organization''. c. By amending paragraph (bb), Vessel, at the end of the paragraph, by removing the words ``may not be owned by citizens of the United States nor documented under the laws of the United States.'', and adding the words ``shall not be documented under the laws of the United States.''. d. By revising paragraphs (f), (k), (q), (r) and (x) to read as follows: Sec. 298.2 Definitions. * * * * * (f) Depository 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 the specific approval of the Secretary, foreign branches, but not the foreign subsidiaries, of such United States financial institutions. * * * * * (k) General Shipyard Facility means: (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 structures or appurtenances; and equipment necessary for the performance of any function referred to in this paragraph; and (2) For operations other than on land, any Vessel, floating drydock, or barge built in the United States, within the meaning of Sec. 298.11(a), and used for, or a type that is usually used for, activities referred to in paragraph (k)(1) of this section. * * * * * (q) Modern Shipbuilding Technology 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. (r) Mortgage means a first Preferred Mortgage on any Vessel or a first mortgage with respect to Advanced Shipbuilding Technology or with respect to Modern Shipbuilding Technology. * * * * * (x) Preferred Mortgage means: (1) In the case of a mortgage on a Vessel documented under United States law, whenever made, a mortgage that-- (i) Includes the whole of a Vessel; (ii) Is filed in substantial compliance with 46 U.S.C. 31321; (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 (iv) Has as the mortgagee-- (A) A State; (B) The United States Government; (C) A Federally insured depository institution, unless disapproved by the Secretary for that Vessel; (D) An individual who is a citizen of the United States; (E) A Person qualifying as a citizen of the United States pursuant to a provision of 46 App. U.S.C. 802; or (F) A Person approved by the Secretary pursuant to regulations at 46 CFR 221.23(d); and (2) In the case of a mortgage on an Eligible Export Vessel, whenever made, a mortgage that-- (i) Constitutes a mortgage that is established as security on an Eligible Export Vessel under the laws of a foreign country; (ii) Was executed under the laws of that foreign country and under which laws the ownership of the Vessel is documented; (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; (iv) Otherwise satisfies the requirements of 46 U.S.C. 31301(6)(B) to constitute a Preferred Mortgage; and (v) Has the Secretary as the mortgagee, or such other mortgagee as is permitted by the applicable foreign law and approved by the Secretary. * * * * * 3. Section 298.3 is amended by revising the third sentence of the introductory text in paragraph (e) to read as follows: Sec. 298.3 Applications. * * * * * (e) Priority. * * * In regard to shipyards, priority will be given to applications from General Shipyard Facilities that have engaged in naval Vessel construction and that have pilot projects for shipyard modernization and Vessel construction, with respect only to funds appropriated to the Secretary of Defense, pursuant to provision of section 1359(a) of Pub. L. 103-160, 107 Stat. 1547. * * * * * * * * 4. Section 298.11 is amended by revising paragraphs (a) and (c) to read as follows: Sec. 298.11 Vessel requirements. * * * * * (a) United States Construction. A Vessel financed by an Obligation Guarantee is considered to be of United States construction if: (1) With respect to a U.S.-documented Vessel: (i) It is built in a shipyard or shipyards of the United States within the meaning of section 505 of the Act; (ii) All components of the hull and superstructure are fabricated in the United States; and (iii) It is assembled in a shipyard geographically located within the United States. (2) With respect to Eligible Export Vessels, the Vessel is assembled in a shipyard geographically located within the United States. * * * * * (c) Class condition and operation. The Vessel shall 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 the American Bureau of Shipping (ABS), or other such standards as may be approved by the Secretary, or 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) with appropriate certificates required at delivery, so long as the home country of that ICAS member accords equal reciprocity, as determined by the Secretary, to United States classification societies. A Vessel, except an Eligible Export Vessel, shall comply with all applicable laws, rules, and regulations as to 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 successor agencies, and 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. An Eligible Export Vessel shall 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 shall 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. An Eligible Export Vessel shall be constructed in accordance with the requirements of the International Maritime Organization. * * * * * 5. Section 298.12, is amended as follows: a. By amending paragraph (f)(2), with respect to demonstrating operating ability, by removing the words ``all management personnel,'' and inserting in their place the words ``all senior supervisory personnel in the shipyard''; and b. By adding a new paragraph (b)(4) to read as follows Sec. 298.12 Applicant and operator's qualifications. * * * * * (b) Operator's qualifications. * * * * * * * * (4) Other entities. For any entity that does not fit the descriptions in paragraphs (b)(1) through (b)(3) of this section, MARAD will specify the information that the entity shall submit regarding its identity and ownership. * * * * * 6. Section 298.13, Financial requirements is amended as follows: a. In paragraph (a)(2), Cost of the project, by revising the third sentence of paragraph (a)(2)(i) and adding a new sentence immediately thereafter to read: Sec. 298.13 Financial requirements. (a) * * * (2) * * * (i) * * * Each item of foreign components and services shall be excluded from Actual Cost, unless a waiver is specifically granted for the item, which waiver shall not be granted for foreign components of the hull and superstructure. Although excluded from Actual Cost, foreign components can be regarded as owner-furnished equipment that may be used in satisfying the applicant's equity requirements imposed by paragraph (a)(3) of this section. * * * * * b. In paragraph (a)(3), Financing, in the penultimate sentence, by adding after the word ``debt'' and before the period, the words ``, except to the extent allowed by paragraph (g) of this section''. Sec. 298.17 [Amended] 7. Section 298.17, Evaluation of applications, is amended in the introductory text of paragraph (b) after the words the ``Secretary shall consider'' and before the words ``the following'' by adding the words ``, among other things,''. Sec. 298.18 [Amended] 8. Section 298.18, Financing Advanced or Modern Shipbuilding Technology, paragraph (b), Other conditions, is amended in paragraph (b)(1) by removing the words ``technological life of the assets being financed,'' and inserting in their place the words ``reasonable economic useful life of the collective assets which comprise this technology,''. Sec. 298.19 [Amended] 9. Section 298.19, Financing Export Vessels, is amended as follows: a. In paragraph (a), Transmittal to Secretary of Defense, by adding in the second sentence, after the word ``assessment of the Secretary'' and in the fourth sentence, after the word ``authority of the Secretary'' respectively, the words ``of Defense''; b. In paragraph (b), Determination by the Secretary, by revising the second sentence of paragraph (b)(3) to read, ``Such Guarantee shall not be approved unless the Secretary determines 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 MARAD's collateral interests.''; and c. In paragraph (b)(1), by adding a sentence at the end to read, ``Vessels of less than 5,000 gross tons can receive Guarantees with funds appropriated to the Department of Transportation.''. 10. Section 298.20 is amended by revising paragraph (c) to read as follows: Sec. 298.20 Term, redemption and interest rate. * * * * * (c) Interest rate. The interest rate of each Obligation must be determined by the Secretary to be reasonable, taking into account the range of interest rates prevailing in the private market for similar loans and the risks assumed by the Secretary. Sec. 298.21 [Amended] 11. Section 298.21 is amended as follows: a. In paragraph (a), Actual Cost basis, by removing the citations to ``section 1104(b)(2) of the Act'' in the second sentence, and ``section 1104(a)(4) of the Act'' in the fourth sentence, and by inserting in their places, respectively, the citations to ``section 1104A(b)(2) or section 1104B(b)(2) of the Act,'' and ``section 1103A(a)(5) of the Act''; and b. In paragraph (c), by removing the words ``and'' at the end of paragraphs (c)(13) and (c)(14), by removing the period at the end of paragraph (c)(15) and adding in its place ``; and'', and by adding a new paragraph (c)(16) to read as follows: Sec. 298.21 Limits. * * * * * (c) Items excludable from Actual Cost. * * * * * * * * (16) The cost of foreign components and then assembly when comprising any part of the hull and superstructure of a Vessel. * * * * * Sec. 298.23 [Amended] 12. Section 298.23, Refinancing, is amended by inserting after the words ``Vessels'', ``Vessel'' and ``Vessel(s)'', respectively, each place where they appear, the words ``or Advanced or Modern Shipbuilding Technology'' and by removing the word ``vessels'' in the second sentence and adding the words ``Vessels or Advanced or Modern Shipbuilding Technology''. 13. Section 298.31 is amended by amending paragraph (a) as follows: a. After the heading, ``In general'', designate the existing first two sentences as paragraph (a)(1) and the third, fourth, fifth, and sixth sentences as paragraphs (a)(2), (a)(3), (a)(4) and (a)(5), respectively. b. Revise newly designated paragraph (a)(2) to read as follows: Sec. 298.31 Mortgage. (a) * * * (2) In order to ensure that the Secretary's Mortgages or other security interests are valid and enforceable, the Secretary shall require that the Obligor obtain legal opinions, in form and substance satisfactory to the Secretary, from independent, outside legal counsel satisfactory to the Secretary, including foreign independent outside legal Counsel with respect to Eligible Export Vessels, which opinions shall state, among other things, that the Mortgage or other security interest(s) are valid and enforceable: (i) In the country in which the Vessel is documented (or, in the case of a security interest, in jurisdictions acceptable to the Secretary); (ii) In the United States; and (iii) For vessels operating on specified trade routes, in the country or countries involved in this service, unless the Secretary determines that those destinations are too numerous, in which case, the Secretary will instead require an opinion of foreign validity and enforceability in the Vessel's primary port of operation. * * * * * 14. Section 298.32 is amended by revising paragraphs (a)(6), (b)(4) and (b)(5) to read as follows: Sec. 298.32 Required provisions in documentation. (a) Performance under shipyard and related contracts * * * * * * * * (6) Requiring that all components of the hull and superstructure of a U.S.-documented Vessel be fabricated, and that all components of the hull and superstructure of an Eligible Export Vessel shall be assembled in the United States. If obligations will not be issued during the period of construction of a Vessel, shipyard-related contracts shall generally include the provisions specified in paragraphs (a)(2) and (a)(3) of this section and this paragraph (a)(6). (b) Assignments and general covenants from Obligor to Secretary. * * * * * * * * (4) Covenants relating to the annual 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 Advanced or Modern Shipbuilding Technology projects; warranty of Vessel or Advanced or Modern Shipbuilding Technology 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. (5) Covenants to keep records of construction costs paid by or for the Obligor's account and to furnish the Secretary with a detailed statement of those costs, distinguishing between: (i) Items paid or obligated to be paid, attested to by independent certified public accountants unless otherwise verified by the Secretary; and (ii) Costs of American and foreign materials (including services) in the hull and superstructure. * * * * * 15. Section 298.35, Reserve Fund and Financial Agreement, is amended as follows: a. The fifth sentence of paragraph (d) introductory text, Title XI Reserve Fund Net Income, of this section is revised to read ``In the case of Advanced or Modern Shipbuilding Technology, 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 the Secretary, in lieu of any other computation of Reserve Fund Net Income specified herein for Vessels.''; and b. A new paragraph (e)(5) is added to read as follows: Sec. 298.35 Reserve Fund and Financial Agreement. * * * * * (e) Deposits. * * * * * * * * (5) In the case of Advanced or Modern Shipbuilding Technology, unless the shipyard as of the close of its accounting year was subject to and in compliance with the primary financial requirements, 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. * * * * * Dated: September 12, 1994. By order of the Maritime Administrator. Joel C. Richard, Acting Secretary, Maritime Administration. [FR Doc. 94-22865 Filed 9-14-94; 10:12 am] BILLING CODE 4910-81-P