46 U.S.C. § 53707 — Findings related to obligors and opera-

Page 443 TITLE 46—SHIPPING § 53707 tons [(]as measured under chapter 143 of that title), or have an engine or engines capable of producing a total of more than 3,000 shaft horsepower, after such con- struction or rebuilding is completed. This prohibition shall not apply to vessels to be used in the menhaden fishery, in tuna purse seine fisheries outside the exclu- sive economic zone of the United States or the area of the South Pacific Regional Fisheries Treaty, in fish- eries that are under the jurisdiction of the North Pa- cific Fishery Management Council and managed under a fishery management plan issued under the Magnuson- Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), or in the Pacific whiting fishery that is under the jurisdiction of the Pacific Fishery Management Council and managed under a fishery management plan issued under that Act. Any fishing vessel operated in fisheries under the jurisdiction of the North Pacific Fishery Management Council and managed under a fishery management plan issued under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), or in the Pa- cific whiting fishery under the jurisdiction of the Pa- cific Fishery Management Council and managed under a fishery management plan issued under that Act, and that is replaced by a vessel that is constructed or re- built with a loan or loan guarantee provided by the Federal Government may not be used to harvest fish in any fishery under the jurisdiction of any regional fish- ery management council, other than a fishery under the jurisdiction of the North Pacific Fishery Manage- ment Council or the Pacific Fishery Management Council.’’ [Pub. L. 107–206, title I, § 1103, Aug. 2, 2002, 116 Stat. 884, which directed the amendment of title II of divi- sion C of Public Law 105–277 by substituting ‘‘of more than 750 gross registered tons (as measured under chap- ter 145 of title 46) or 1,900 gross registered tons as meas- ured under chapter 143 of that title)’’ for ‘‘of more than 750 gross registered tons’’, was executed to section 302(b)(2) of Pub. L. 104–297, set out above, as amended by section 212 of Pub. L. 105–277, to reflect the probable in- tent of Congress.] § 53707. Findings related to obligors and opera- tors (a) RESPONSIBLE OBLIGOR.—The Secretary or Administrator may not guarantee or make a commitment to guarantee an obligation under this chapter unless the Secretary or Adminis- trator finds that the obligor is responsible and has the ability, experience, financial resources, and other qualifications necessary for the ade- quate operation and maintenance of each vessel that will serve as security for the guarantee. (b) OPERATORS OF LINER VESSELS.—The Ad- ministrator may not guarantee or make a com- mitment to guarantee a loan for the construc- tion, reconstruction, or reconditioning of a liner vessel under this chapter unless the Chairman of the Federal Maritime Commission certifies that the operator of the vessel has not been found by the Commission to have committed, within the previous 5 years— (1) a violation of part A of subtitle IV of this title that involves unjust or unfair discrimina- tory treatment or undue or unreasonable prej- udice or disadvantage with respect to a United States shipper, ocean transportation inter- mediary, ocean common carrier, or port; or (2) a violation of part B of subtitle IV of this title. (c) OPERATORS OF FISHING VESSELS.—The Sec- retary may not guarantee or make a commit- ment to guarantee a loan for the construction, reconstruction, or reconditioning of a fishing vessel under this chapter if the operator of the vessel has been— (1) held liable, or the vessel has been held liable in rem, for a civil penalty under section 308 of the Magnuson-Stevens Fishery Con- servation and Management Act (16 U.S.C. 1858) and the operator has not paid the penalty; (2) found guilty of an offense under section 309 of the Magnuson-Stevens Fishery Con- servation and Management Act (16 U.S.C. 1859) and not paid the assessed fine or served the as- sessed sentence; (3) held liable for a civil or criminal penalty under section 105 of the Marine Mammal Pro- tection Act of 1972 (16 U.S.C. 1375) and not paid the assessed fine or served the assessed sen- tence; or (4) held liable for a civil penalty by the Coast Guard under this title or title 33 and not paid the assessed fine. (d) WAIVERS CONCERNING FINANCIAL CONDI- TION.—The Secretary or Administrator shall pre- scribe regulations concerning circumstances under which waivers of, or exceptions to, other- wise applicable regulatory requirements con- cerning financial condition can be made. The regulations shall require that— (1) the economic soundness requirements in section 53708(a) of this title are met after the waiver of the financial condition requirement; and (2) if the Secretary or Administrator con- siders necessary, the waiver shall provide for the imposition of other requirements on the obligor designed to compensate for any signifi- cant increase in risk associated with the obli- gor’s failure to meet regulatory requirements applicable to financial condition. (Pub. L. 109–304, § 8(c), Oct. 6, 2006, 120 Stat. 1607; Pub. L. 109–163, div. C, title XXXV, § 3507(a)(1)(D), (b)(3)(B), (C), (c)(1), Jan. 6, 2006, 119 Stat. 3555, 3556; Pub. L. 110–181, div. C, title XXXV, § 3522(a)(3), (b), Jan. 28, 2008, 122 Stat. 597, 598.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 53707(a) ...... 46 App.:1274(b)(1). June 29, 1936, ch. 858, title XI, § 1104A(b)(1) [§ 1104A formerly § 1104], as added June 23, 1938, ch. 600, § 46, 52 Stat. 970; Aug. 4, 1939, ch. 417, § 14, 53 Stat. 1187; Sept. 28, 1950, ch. 1093, § 4, 64 Stat. 1078; Aug. 15, 1953, ch. 513, § 2, 67 Stat. 626; Sept. 3, 1954, ch. 1265, § 4, 68 Stat. 1269; Pub. L. 86–123, §§ 1(3), 2, July 31, 1959, 73 Stat. 269, 271; Pub. L. 86–127, § 1(3), (4), July 31, 1959, 73 Stat. 273; Pub. L. 86–518, § 1, June 12, 1960, 74 Stat. 216; Pub. L. 86–685, §§ 2, 3, Sept. 2, 1960, 74 Stat. 733; Pub. L. 90–341, June 15, 1968, 82 Stat. 180; Pub. L. 91–469, §§ 31, 32, Oct. 21, 1970, 84 Stat. 1035; restated Pub. L. 92–507, § 3, Oct. 19, 1972, 86 Stat. 911; Pub. L. 97–31, § 12(136), Aug. 6, 1981, 95 Stat. 166; § 1104 renumbered as § 1104A, Pub. L. 101–380, title IV, § 4115(f)(1), Aug. 18, 1990, 104 Stat. 521. 53707(b) ...... 46 App.:1273a(a). Pub. L. 105–258, title IV, § 401, Oct. 14, 1998, 112 Stat. 1916. Page 444 TITLE 46—SHIPPING § 53708 HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 53707(c) ...... 46 App.:1273a(b). 53707(d) ...... 46 App.:1274(d)(4). June 29, 1936, ch. 858, title XI, § 1104A(d)(4), as added Pub. L. 108–136, title XXXV, § 3522, Nov. 24, 2003, 117 Stat. 1800. Editorial Notes AMENDMENTS 2008—Pub. L. 110–181, § 3522(b), repealed Pub. L. 109–163, § 3507(a)(1)(D), (b)(3)(B), (C), (c)(1). See 2006 Amendment note below. Subsec. (a). Pub. L. 110–181, § 3522(a)(3)(A), incor- porated the substance of the amendment by Pub. L. 109–163, § 3507(a)(1)(D), into this section by inserting ‘‘or Administrator’’ after ‘‘Secretary’’ in two places. See 2006 Amendment note below and section 18(a) of Pub. L. 109–304, set out as a Legislative Purpose and Construc- tion note preceding section 101 of this title. Subsec. (b). Pub. L. 110–181, § 3522(a)(3)(B), incor- porated the substance of the amendment by Pub. L. 109–163, § 3507(c)(1), into this section by substituting ‘‘Administrator’’ for ‘‘Secretary of Transportation’’. See 2006 Amendment note below and section 18(a) of Pub. L. 109–304, set out as a Legislative Purpose and Construction note preceding section 101 of this title. Subsec. (c). Pub. L. 110–181, § 3522(a)(3)(C), struck out ‘‘of Commerce’’ after ‘‘The Secretary’’ in introductory provisions. Subsec. (d). Pub. L. 110–181, § 3522(a)(3)(A), (D), incor- porated the substance of the amendment by Pub. L. 109–163, § 3507(b)(3)(B), (C), into this section by inserting ‘‘or Administrator’’ after ‘‘Secretary’’ in introductory provisions and in par. (2) by inserting ‘‘if the Secretary or Administrator considers necessary,’’ before ‘‘the waiver’’ and substituting ‘‘any significant increase in’’ for ‘‘the increased’’. See 2006 Amendment note below and section 18(a) of Pub. L. 109–304, set out as a Legisla- tive Purpose and Construction note preceding section 101 of this title. 2006—Pub. L. 109–163, § 3507(a)(1)(D), (b)(3)(B), (C), (c)(1), which directed the amendment of sections 1273a(a) and 1274(b)(1), (d)(4)(B) of the former Appendix to this title from which this section was derived in part, was repealed by Pub. L. 110–181, § 3522(b). See 2008 Amendment notes for subsecs. (a), (b), and (d) and His- torical and Revision notes above. § 53708. Findings related to economic soundness (a) BY ADMINISTRATOR.—The Administrator may not guarantee or make a commitment to guarantee an obligation under this chapter un- less the Administrator finds that the property or project for which the obligation will be exe- cuted will be economically sound. In making that finding, the Administrator shall consider— (1) the need in the particular segment of the maritime industry for new or additional ca- pacity, including any impact on existing equipment for which a guarantee under this chapter is in effect; (2) the market potential for employment of the vessel over the life of the guarantee; (3) projected revenues and expenses associ- ated with employment of the vessel; (4) any charter, contract of affreightment, transportation agreement, or similar agree- ment or undertaking relevant to the employ- ment of the vessel; (5) other relevant criteria; and (6) for inland waterways, the need for tech- nical improvements, including increased fuel efficiency or improved safety. (b) BY SECRETARY.—The Secretary may not guarantee or make a commitment to guarantee an obligation under this chapter unless the Sec- retary finds, at or prior to the time the commit- ment is made or the guarantee becomes effec- tive, that— (1) the property or project for which the ob- ligation will be executed will be economically sound; and (2) for a fishing vessel, the purpose of the fi- nancing or refinancing is consistent with— (A) the wise use of the fisheries resources and the development, advancement, manage- ment, conservation, and protection of the fisheries resources; or (B) the need for technical improvements, including increased fuel efficiency or im- proved safety. (c) USED FISHING VESSELS AND FACILITIES.— The Secretary may not guarantee or make a commitment to guarantee an obligation under this chapter for the purchase of a used fishing vessel or used fishery facility unless the vessel or facility will be— (1) reconstructed or reconditioned in the United States and will contribute to the devel- opment of the United States fishing industry; or (2) used— (A) in the harvesting of fish from an underused fishery; or (B) for a purpose described in the defini- tion of ‘‘fishery facility’’ in section 53701 of this title with respect to an underused fish- ery. (d) INDEPENDENT ANALYSIS.—The Secretary or Administrator may make a determination that aspects of an application under this chapter re- quire independent analysis to be conducted by third party experts due to risk factors associ- ated with markets, technology, or financial structures. A third party independent analysis conducted under this subsection shall be per- formed by a private sector expert in assessing such risk factors who is selected by the Sec- retary or Administrator. (e) ADDITIONAL EQUITY BECAUSE OF INCREASED RISKS.—Notwithstanding any other provision of this chapter, the Secretary or Administrator may make a determination that an application under this title requires additional equity be- cause of increased risk factors associated with markets, technology, or financial structures. (Pub. L. 109–304, § 8(c), Oct. 6, 2006, 120 Stat. 1608; Pub. L. 109–163, div. C, title XXXV, § 3507(a)(1)(D), (2)(D), (b)(3)(A), (4), Jan. 6, 2006, 119 Stat. 3555, 3556; Pub. L. 110–181, div. C, title XXXV, § 3522(a)(4), (b), Jan. 28, 2008, 122 Stat. 597, 598.)