
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 107-20 Section 2202(a)]
[Document affected by Public Law 107-20 Section 2202(d)]
[CITE: 46USC12102]

 
                           TITLE 46--SHIPPING
 
                     Subtitle II--Vessels and Seamen
 
                    Part H--Identification of Vessels
 
                  CHAPTER 121--DOCUMENTATION OF VESSELS
 
Sec. 12102. Vessels eligible for documentation

    (a) A vessel of at least 5 net tons that is not registered under the 
laws of a foreign country is eligible for documentation if the vessel is 
owned by--
        (1) an individual who is a citizen of the United States;
        (2) an association, trust, joint venture, or other entity--
            (A) all of whose members are citizens of the United States; 
        and
            (B) that is capable of holding title to a vessel under the 
        laws of the United States or of a State;

        (3) a partnership whose general partners are citizens of the 
    United States, and the controlling interest in the partnership is 
    owned by citizens of the United States;
        (4) a corporation established under the laws of the United 
    States or of a State, whose chief executive officer, by whatever 
    title, and chairman of its board of directors are citizens of the 
    United States and no more of its directors are noncitizens than a 
    minority of the number necessary to constitute a quorum;
        (5) the United States Government; or
        (6) the government of a State.

    (b) A vessel is eligible for documentation only if it has been 
measured under part J of this subtitle. However, the Secretary of 
Transportation may issue a temporary certificate of documentation for a 
vessel before it is measured.
    (c)(1) A vessel owned by a corporation is not eligible for a fishery 
endorsement under section 12108 of this title unless the controlling 
interest (as measured by a majority of voting shares in that 
corporation) is owned by individuals who are citizens of the United 
States. However, if the corporation is owned in whole or in part by 
other United States corporations, the controlling interest in those 
corporations, in the aggregate, must be owned by individuals who are 
citizens of the United States.
    (2) The Secretary shall apply the restrictions on controlling 
interest in section 2(b) of the Shipping Act, 1916 (46 App. U.S.C. 
802(b)) when applying this subsection.
    (d)(1) For the issuance of a certificate of documentation with only 
a registry endorsement, subsection (a)(2)(A) of this section does not 
apply to a beneficiary of a trust that is qualified under paragraph (2) 
of this subsection if the vessel is subject to a charter to a citizen of 
the United States.
    (2)(A) Subject to subparagraph (B) of this paragraph, a trust is 
qualified under this paragraph with respect to a vessel only if--
        (i) each of the trustees is a citizen of the United States; and
        (ii) the application for documentation of the vessel includes 
    the affidavit of each trustee stating that the trustee is not aware 
    of any reason involving a beneficiary of the trust that is not a 
    citizen of the United States, or involving any other person that is 
    not a citizen of the United States, as a result of which the 
    beneficiary or other person would hold more than 25 percent of the 
    aggregate power to influence or limit the exercise of the authority 
    of the trustee with respect to matters involving any ownership or 
    operation of the vessel that may adversely affect the interests of 
    the United States.

    (B) If any person that is not a citizen of the United States has 
authority to direct or participate in directing a trustee for a trust in 
matters involving any ownership or operation of the vessel that may 
adversely affect the interests of the United States or in removing a 
trustee for a trust without cause, either directly or indirectly through 
the control of another person, the trust is not qualified under this 
paragraph unless the trust instrument provides that persons who are not 
citizens of the United States may not hold more than 25 percent of the 
aggregate authority to so direct or remove a trustee.
    (3) Paragraph (2) of this subsection shall not be considered to 
prohibit a person who is not a citizen of the United States from holding 
more than 25 percent of the beneficial interest in a trust.
    (4) If a person chartering a vessel from a trust that is qualified 
under paragraph (2) of this subsection is a citizen of the United States 
under section 2 of the Shipping Act, 1916 (46 App. U.S.C. 802), then the 
vessel is deemed to be owned by a citizen of the United States for 
purposes of that section and related laws, except for subtitle B of 
title VI of the Merchant Marine Act, 1936.

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

                       Amendment of Subsection (c)

        Pub. L. 105-277, div. C, title II, Secs. 202(a), 203(a), Oct. 
    21, 1998, 112 Stat. 2681-617, 2681-619, provided that, effective 
    Oct. 1, 2001, subsection (c) of this section is amended to read as 
    follows--

    (c)(1) A vessel owned by a corporation, partnership, association, 
trust, joint venture, limited liability company, limited liability 
partnership, or any other entity is not eligible for a fishery 
endorsement under section 12108 of this title unless at least 75 per 
centum of the interest in such entity, at each tier of ownership of such 
entity and in the aggregate, is owned and controlled by citizens of the 
United States.
    (2) The Secretary shall apply section 2(c) of the Shipping Act, 1916 
(46 App. U.S.C. 802(c)) in determining under this subsection whether at 
least 75 per centum of the interest in a corporation, partnership, 
association, trust, joint venture, limited liability company, limited 
liability partnership, or any other entity is owned and controlled by 
citizens of the United States. For the purposes of this subsection and 
of applying the restrictions on controlling interest in section 2(c) of 
such Act, the terms ``control'' or ``controlled''--

                               (A) shall include--

            (i) the right to direct the business of the entity which 
        owns the vessel;
            (ii) the right to limit the actions of or replace the chief 
        executive officer, a majority of the board of directors, any 
        general partner, or any person serving in a management capacity 
        of the entity which owns the vessel; or
            (iii) the right to direct the transfer, operation or manning 
        of a vessel with a fishery endorsement; and

          (B) shall not include the right to simply participate in the 
     activities under subparagraph (A), or the use by a mortgagee under 
         paragraph (4) of loan covenants approved by the Secretary.

    (3) A fishery endorsement for a vessel that is chartered or leased 
to an individual who is not a citizen of the United States or to an 
entity that is not eligible to own a vessel with a fishery endorsement 
and used as a fishing vessel shall be invalid immediately upon such use.
    (4)(A) An individual or entity that is otherwise eligible to own a 
vessel with a fishery endorsement shall be ineligible by reason of an 
instrument or evidence of indebtedness, secured by a mortgage of the 
vessel to a trustee eligible to own a vessel with a fishery endorsement 
that is issued, assigned, transferred or held in trust for a person not 
eligible to own a vessel with a fishery endorsement, unless the 
Secretary determines that the issuance, assignment, transfer, or trust 
arrangement does not result in an impermissible transfer of control of 
the vessel and that the trustee--

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

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

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

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

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

    (B) A vessel with a fishery endorsement may be operated by a trustee 
only with the approval of the Secretary.
    (C) A right under a mortgage of a vessel with a fishery endorsement 
may be issued, assigned, or transferred to a person not eligible to be a 
mortgagee of that vessel under section 31322(a)(4) of this title only 
with the approval of the Secretary.
    (D) The issuance, assignment, or transfer of an instrument or 
evidence of indebtedness contrary to this paragraph is voidable by the 
Secretary.
    (5) The requirements of this subsection shall not apply to a vessel 
when it is engaged in fisheries in the exclusive economic zone under the 
authority of the Western Pacific Fishery Management Council established 
under section 302(a)(1)(H) of the Magnuson-Stevens Fishery Conservation 
and Management Act (16 U.S.C. 1852(a)(1)(H)) or to a purse seine vessel 
when it is engaged in tuna fishing in the Pacific Ocean outside the 
exclusive economic zone of the United States or pursuant to the South 
Pacific Regional Fisheries Treaty, provided that the owner of the vessel 
continues to comply with the eligibility requirements for a fishery 
endorsement under the federal law that was in effect on October 1, 1998. 
A fishery endorsement issued by the Secretary pursuant to this paragraph 
shall be valid for engaging only in fisheries in the exclusive economic 
zone under the authority of such Council, in such tuna fishing in the 
Pacific Ocean, or pursuant to such Treaty.
    (6) A vessel greater than 165 feet in registered length, of more 
than 750 gross registered tons, or that has an engine or engines capable 
of producing a total of more than 3,000 shaft horsepower is not eligible 
for a fishery endorsement under section 12108 of this title unless--

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

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

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

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

                      Historical and Revision Notes
------------------------------------------------------------------------
          Revised section                Source section (U.S. Code)
------------------------------------------------------------------------
12102.............................  46:65b
------------------------------------------------------------------------

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

                       References in Text

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


                               Amendments

    1998--Subsec. (a). Pub. L. 105-383, Sec. 401(a)(1), struck out ``or 
is not titled in a State'' after ``a foreign country'' in introductory 
provisions.
    Subsec. (a)(4). Pub. L. 105-383, Sec. 421, struck out ``president or 
other'' after ``a State, whose'' and inserted ``, by whatever title,'' 
after ``chief executive officer''.
    1996--Subsec. (d). Pub. L. 104-324 added subsec. (d).
    1989--Subsec. (a). Pub. L. 101-225, Sec. 301(a)(2)(A), inserted 
``that is'' before ``not'' and ``or is not titled in a State'' after 
``foreign country''.
    Subsecs. (b), (c). Pub. L. 101-225, Sec. 301(a)(2)(B)-(D), 
redesignated former subsec. (b), relating to eligibility of a vessel 
owned by a corporation for a fishery license, as (c), substituted 
``fishery endorsement'' for ``fishery license'' in par. (1), and struck 
out former subsec. (c) which provided that a vessel titled in a State 
was eligible for documentation only if the State certificate of title 
was surrendered.
    1988--Pub. L. 100-710 directed insertion of ``of Transportation'' 
after ``Secretary'' in subsec. (b), which was executed by making 
insertion in subsec. (b) relating to eligibility of a vessel for 
documentation after having been measured under part J, as probable 
intent of Congress, and added subsec. (c).
    Pub. L. 100-239, Sec. 7(a), directed that ``(a)'' be inserted before 
``A vessel'', which was not executed because of a similar amendment by 
Pub. L. 99-509, and added at end subsec. (b) relating to eligibility of 
a vessel owned by a corporation for a fishery license under section 
12108 of this title.
    1986--Pub. L. 99-509 designated existing provisions as subsec. (a) 
and added subsec. (b) relating to eligibility of a vessel for 
documentation after having been measured under part J.


                    Effective Date of 1998 Amendment

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


                    Effective Date of 1989 Amendment

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


                    Effective Date of 1988 Amendment

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


                  Regulations; Enforcement of Standard

    Pub. L. 105-277, div. C, title II, Sec. 203(b)-(e), Oct. 21, 1998, 
112 Stat. 2681-619, provided that:
    ``(b) Regulations.--Final regulations to implement this subtitle 
[subtitle I (Secs. 201-204) of title II of div. C of Pub. L. 105-277, 
amending this section and sections 12122 and 31322 of this title, 
enacting provisions set out as notes under this section and section 2101 
of this title, and repealing provisions set out as a note under this 
section] shall be published in the Federal Register by April 1, 2000. 
Letter rulings and other interim interpretations about the effect of 
this subtitle and amendments made by this subtitle on specific vessels 
may not be issued prior to the publication of such final regulations. 
The regulations to implement this subtitle shall prohibit impermissible 
transfers of ownership or control, specify any transactions which 
require prior approval of an implementing agency, identify transactions 
which do not require prior agency approval, and to the extent 
practicable, minimize disruptions to the commercial fishing industry, to 
the traditional financing arrangements of such industry, and to the 
opportunity to form fishery cooperatives.
    ``(c) Vessels Measuring 100 Feet and Greater.--(1) The Administrator 
of the Maritime Administration shall administer section 12102(c) of 
title 46, United States Code, as amended by this subtitle, with respect 
to vessels 100 feet or greater in registered length. The owner of each 
such vessel shall file a statement of citizenship setting forth all 
relevant facts regarding vessel ownership and control with the 
Administrator of the Maritime Administration on an annual basis to 
demonstrate compliance with such section. Regulations to implement this 
subsection shall conform to the extent practicable with the regulations 
establishing the form of citizenship affidavit set forth in part 355 of 
title 46, Code of Federal Regulations, as in effect on September 25, 
1997, except that the form of the statement under this paragraph shall 
be written in a manner to allow the owner of each such vessel to satisfy 
any annual renewal requirements for a certificate of documentation for 
such vessel and to comply with this subsection and section 12102(c) of 
title 46, United States Code, as amended by this Act, and shall not be 
required to be notarized.
    ``(2) After October 1, 2001, transfers of ownership and control of 
vessels subject to section 12102(c) of title 46, United States Code, as 
amended by this Act, which are 100 feet or greater in registered length, 
shall be rigorously scrutinized for violations of such section, with 
particular attention given to leases, charters, mortgages, financing, 
and similar arrangements, to the control of persons not eligible to own 
a vessel with a fishery endorsement under section 12102(c) of title 46, 
United States Code, as amended by this Act, over the management, sales, 
financing, or other operations of an entity, and to contracts involving 
the purchase over extended periods of time of all, or substantially all, 
of the living marine resources harvested by a fishing vessel.
    ``(d) Vessels Measuring Less Than 100 Feet.--The Secretary of 
Transportation shall establish such requirements as are reasonable and 
necessary to demonstrate compliance with section 12102(c) of title 46, 
United States Code, as amended by this Act, with respect to vessels 
measuring less than 100 feet in registered length, and shall seek to 
minimize the administrative burden on individuals who own and operate 
such vessels.
    ``(e) Endorsements Revoked.--The Secretary of Transportation shall 
revoke the fishery endorsement of any vessel subject to section 12102(c) 
of title 46, United States Code, as amended by this Act, whose owner 
does not comply with such section.''


   Inapplicability of Subsection (c)(6) to Certain Menhaden Fisheries

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


         Application of Section to Fishing Vessels in California

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


                     Applicability of Subsection (b)

    Section 7(b) of Pub. L. 100-239 provided that: ``Section 12102(b) of 
title 46, United States Code (as enacted by subsection (a) of this 
section) applies to vessels issued a fishery license after July 28, 
1987. However, that section does not apply if before that date the 
vessel--
        ``(1) was documented under chapter 121 of title 46 and operating 
    as a fishing, fish processing, or fish tender vessel in the 
    navigable waters of the United States or the Exclusive Economic 
    Zone; or
        ``(2) was contracted for purchase for use as a fishing, fish 
    tender, or fish processing vessel in the navigable waters of the 
    United States or the Exclusive Economic Zone, if the purchase is 
    shown by the contract or similarly reliable evidence acceptable to 
    the Secretary to have been made for the purpose of using the vessel 
    in the fisheries.''
    [Pub. L. 105-277, div. C, title II, Sec. 204, Oct. 21, 1998, 112 
Stat. 2681-620, provided that, effective Oct. 1, 2001, section 7(b) of 
Pub. L. 100-239, set out above, is repealed.]


Temporary Restriction on Documentation of Foreign-Built Fish Processing 
                                 Vessels

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

                  Section Referred to in Other Sections

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