4068 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Notices

their existing rights and interests and to

carry on their existing lawful business

in the United States in conformity with

past practice and on an equal footing

with U.S. Citizens.

To avoid these results, Congress

included a provision in the AFA to

ensure that the Act would not

contravene U.S. treaty obligations.

Section 213(g) provides in pertinent

part:

In the event that any provision of section

12102(c) or section 31322(a) of title 46,

United States Code, as amended by this Act,

is determined to be inconsistent with an

existing international agreement relating to

foreign investment to which the United

States is a party with respect to the owner or

mortgagee on October 1, 2001 of a vessel with

a fishery endorsement, such provision shall

not apply to that owner or mortgagee with

respect to such vessel to the extent of any

such inconsistency * * *.

Section 213(g) makes clear that its reach

is intended to extend to every ‘‘owner’’

or ‘‘mortgagee’’ holding an ownership or

mortgage interest on October 1, 2001,

when Sections 202, 203 and 204 of the

AFA become effective. Section 213(g)

provides explicitly that the exemption

does not apply to ‘‘subsequent owners

and mortgagees’’ who acquire their

interests after October 1, 2001 or ‘‘to the

owner [of the vessel] on October 1, 2001

if any ownership interest in that owner

is transferred to or otherwise acquired

by a foreign individual or entity after

such date (emphasis added).

Petitioners are ‘‘owners’’ and

‘‘mortgagees’’ who acquired their

interests in the Vessels prior to October

1, 2001, and who intend to continue to

hold those interests on and after October

1, 2001. The inconsistency between the

provisions of the AFA and MARAD’s

implementing regulations and the

requirements of the U.S.-Japan FCN is

demonstrated above. Accordingly,

under Section 213(g) of the Act, the

provisions of Sections 202, 203 and 204

‘‘shall not apply’’ to Petitioners ‘‘to the

extent of the inconsistency.’’

The exemption provided by Section

213(g) is not limited to existing property

rights, mortgage interests or investment

interests in existence on October 1,

2001, but rather applies to an ‘‘owner’’

or ‘‘mortgagee’’ on October 1, 2001 ‘‘to

the extent of the inconsistency’’

between the Act and the Treaty.

Petitioners qualify as ‘‘owners’’ and

‘‘mortgagees.’’ Petitioners are, therefore,

exempt from the requirements of the

AFA ‘‘to the extent of the

inconsistency’’ between the AFA and

the Treaty. As demonstrated above, the

‘‘inconsistency’’ between the AFA and

the Treaty is two-fold: (1) The Treaty

protects the existing ownership and

mortgage interests of Petitioners and the

Japanese Bank Lenders in the Vessels

and related contract rights, which the

AFA would prohibit or restrict; and (2)

the Treaty protects future transactions

between Alyeska, its Japanese

shareholders or the Japanese Bank

Lenders and the Vessel Owners, which

the AFA would prohibit or restrict,

including future loans, preferred

mortgages and other financing and

contractual arrangements, which

Petitioners may deem necessary or

appropriate to protect their existing

businesses and their existing interests in

the Vessels and the Vessel Owners.

Thus, Section 213(g) exempts

Petitioners from the restrictions and

limitations of Sections 202, 203 and 204

of the AFA and MARAD’s implementing

rules.

IV. Conclusion

For the reasons stated above, Sections

202, 203 and 204 of the AFA and 46

CFR Part 356 are inconsistent with the

U.S.-Japan FCN and therefore may not

be applied to Petitioners with: respect to

the Vessels or the Vessel Owners.

This concludes the analysis submitted

by Petitioner for consideration.

Dated: January 11, 2001.

By Order of the Maritime Administrator.

Joel Richard,

Secretary, Maritime Administration.

[FR Doc. 01–1357 Filed 1–16–01; 8:45 am]

BILLING CODE 4910–81–P

DEPARTMENT OF TRANSPORTATION

Maritime Administration

[Docket No. MARAD–2001–8665]

ARICA—Applicability of Ownership

and Control Requirements to Obtain a

Fishery Endorsement to the Vessel’s

Documentation

AGENCY: Maritime Administration,

Department of Transportation.

ACTION: Invitation for public comments

on a petition requesting MARAD to

issue a determination that the

ownership and control requirements

and the preferred mortgage

requirements of the American Fisheries

Act of 1998 and 46 CFR Part 356 are in

conflict with an international

investment agreement.

SUMMARY: The Maritime Administration

(‘‘MARAD’’) is soliciting public

comments on a petition from the owners

and mortgagees of the vessel ARICA—

Official Number 550139 (hereinafter the

‘‘Vessel’’). The petition requests that

MARAD issue a decision that the

American Fisheries Act of 1998 (‘‘AFA’’

or ‘‘Act’’), Division C, Title II, subtitle I,

Pub. L. 105–277, and the implementing

regulations at 46 CFR part 356 (65 FR

44860 (July 19, 2000)) are in conflict

with the Agreement Between the United

States of America and Denmark

Regarding Friendship, Commerce and

Navigation, 421 UNTS 105, TIAS:

4797,12 UST 908951 (1961) (‘‘Denmark

Treaty’’ or ‘‘FCN’’). The petition is

submitted pursuant to 46 CFR 356.53

and 213(g) of AFA, which provide that

the requirements of the AFA and the

implementing regulations will not apply

to the owners or mortgagees of a U.S.-

flag vessel documented with a fishery

endorsement to the extent that the

provisions of the AFA conflict with an

existing international agreement relating

to foreign investment to which the

United States is a party. This notice sets

forth the provisions of the international

agreement that the Petitioner alleges are

in conflict with the AFA and 46 CFR

part 356 and the arguments submitted

by the Petitioner in support of its

request. If MARAD determines that the

AFA and MARAD’s implementing

regulations conflict with the Denmark

Treaty, the requirements of 46 CFR Part

356 and the AFA will not apply to the

extent of the inconsistency.

Accordingly, interested parties are

invited to submit their views on this

petition and whether there is a conflict

between the Denmark Treaty and the

requirements of both the AFA and 46

CFR Part 356. In addition to receiving

the views of interested parties, MARAD

will consult with other Departments and

Agencies within the Federal

Government that have responsibility or

expertise related to the interpretation of

or application of international

investment agreements.

DATES: You should submit your

comments early enough to ensure that

Docket Management receives them not

later than February 16, 2001.

ADDRESSES: Comments should refer to

the docket number that appears at the

top of this document. Written comments

may be submitted by mail to the Docket

Clerk, U.S. DOT Dockets, Room PL–401,

Department of Transportation, 400 7th

St., SW, Washington, DC 20590–0001.

You may also send comments

electronically via the Internet at http://

dms.dot.gov/submit/. All comments will

become part of this docket and will be

available for inspection and copying at

the above address between 10 a.m. and

5 p.m., E.T., Monday through Friday,

except Federal Holidays. An electronic

version of this document and all

documents entered into this docket are

available on the World Wide Web at

http://dms.dot.gov.

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Notices 4069

FOR FURTHER INFORMATION CONTACT: John

T. Marquez, Jr. of the Office of Chief

Counsel at (202) 366–5320. You may

send mail to John T. Marquez, Jr.,

Maritime Administration, Office of

Chief Counsel, Room 7228, MAR–222,

400 Seventh St., SW, Washington, DC,

20590–0001 or you may send e-mail to

John.Marquez@marad.dot.gov.

SUPPLEMENTARY INFORMATION:

Background

The AFA was enacted in 1998 to give

U.S. interests a priority in the harvest of

U.S.-fishery resources by increasing the

requirements for U.S. Citizen

ownership, control and financing of

U.S.-flag vessels documented with a

fishery endorsement. MARAD was

charged with promulgating

implementing regulations for fishing

vessels of 100 feet or greater in

registered length while the Coast Guard

retains responsibility for vessels under

100 feet.

Section 202 of the AFA, raises, with

some exceptions, the U.S.-Citizen

ownership and control standards for

U.S.-flag vessels that are documented

with a fishery endorsement and

operating in U.S.-waters. The ownership

and control standard was increased

from the controlling interest standard

(greater than 50%) of § 2(b) of Shipping

Act, 1916 (‘‘1916 Act’’), as amended, 46

App. U.S.C. 802(b), to the standard

contained in § 2(c) of the 1916 Act, 46

App. U.S.C. 802(c), which requires that

75 percent of the ownership and control

in a vessel owning entity be vested in

U.S. Citizens. In addition, section 204 of

the AFA repeals the ownership

grandfather ‘‘savings provision’’ in the

Anti-Reflagging Act of 1987, Pub. L.

100–239, § 7(b), 101 Stat 1778 (1988),

which permits foreign control of

companies owning certain fishing

vessels.

Section 202 of the AFA also

establishes new requirements to hold a

preferred mortgage on a vessel with a

fishery endorsement. State or federally

chartered financial institutions must

now comply with the controlling

interest standard of § 2(b) of the 1916

Act in order to hold a preferred

mortgage on a vessel with a fishery

endorsement. Entities other than state or

federally chartered financial institutions

must either meet the 75% ownership

and control requirements of § 2(c) of the

1916 Act or utilize an approved U.S.-

Citizen Trustee that meets the 75%

ownership and control requirements to

hold the preferred mortgage for the

benefit of the non-citizen lender.

Section 213(g) of the AFA provides

that if the new ownership and control

provisions or the mortgagee provisions

are determined to be inconsistent with

an existing international agreement

relating to foreign investment to which

the United States is a party, such

provisions of the AFA shall not apply to

the owner or mortgagee on October 1,

2001, with respect to the particular

vessel and to the extent of the

inconsistency. MARAD’s regulations at

46 CFR 356.53 set forth a process

wherein owners or mortgagees may

petition MARAD, with respect to a

specific vessel, for a determination that

the implementing regulations are in

conflict with an international

investment agreement. Petitions must be

noticed in the Federal Register with a

request for comments. The Chief

Counsel of MARAD, in consultation

with other Departments and Agencies

within the Federal Government that

have responsibility or expertise related

to the interpretation of or application of

international investment agreements,

will review the petitions and, absent

extenuating circumstances, render a

decision within 120 days of the receipt

of a fully completed petition.

The Petitioners

Arica Fishing Company Limited

Partnership (‘‘Arica Fishing Co.’’) is the

owner of the Vessel. Arica Fishing Co.

is owned by JOMM Enterprises, Inc, the

General Partner, and limited partners

Royal Greenland Inc.-USA, JZ, Ltd.,

Kenneth Morrison, and Robert F. Allen.

Royal Greenland Inc.-USA directly

owns 47% of Arica Fishing Co. and

indirectly owns an additional

percentage through its participation in

both JOMM Enterprises, Inc. and JZ,

Ltd.. Royal Greenland, Inc.-USA is a

Washington State Corporation that

holds an aggregate interest at all tiers of

the partnership ownership structure of

approximately 54%.

Royal Greenland, Inc.-USA is a

subsidiary of Royal Greenland Trading

ApS, a Danish company registered in

Denmark. In 1994, Royal Greenland

Trading ApS was approached to invest

in U.S. fishing operations on the West

coast of the United States. The following

year Royal Greenland agreed to make

these investments through a U.S.

subsidiary, Royal Greenland Inc.-USA.

Arica Fishing Co, Royal Greenland, Inc.-

USA, Royal Greenland Trading ApS,

JOMM Enterprises, Inc. and JZ, Ltd are

hereafter collectively referred to as the

‘‘Petitioner’’ or ‘‘Petitioners.’’

Requested Action

The Petitioners seek a determination

from MARAD under § 213(g) of the AFA

and 46 CFR 356.53 that they are exempt

from the U.S. citizen ownership and

control requirements of the AFA and 46

CFR part 356 on the grounds that the

requirements of the AFA and 46 CFR

part 356, as applied to Petitioners with

respect to the Vessel, conflict with U.S.

obligations under the Denmark Treaty.

Specifically, the Petitioners request that

MARAD determine that the ownership

and control restrictions do not apply to

Royal Greenland Trading ApS, its

wholly-owned subsidiary Royal

Greenland, Inc.-USA, or its equity

ownership in the Vessel, through its

ownership interest in Arica Fishing

Company Limited Partnership, JOMM

Enterprises, Inc., and JZ, Ltd.

Petitioner’s Description of the Conflict

Between the FCN Treaty and Both 46

CFR Part 356 and the AFA

MARAD’s regulations at 46 CFR

356.53(b)(3) require Petitioners to

submit a detailed description of how the

provisions of the international

investment agreement or treaty and the

implementing regulations are in

conflict. The entire text of the Denmark

Treaty is available on MARAD’s internet

site at http://www.marad.dot.gov. The

description submitted by the Petitioner

of the conflict between the Denmark

Treaty and both the AFA and MARAD’s

implementing regulations forms the

basis on which the Petitioner requests

that the Chief Counsel issue a ruling

that 46 CFR part 356 does not apply to

Petitioner with respect to the Vessel.

The Petitioner’s description of how the

provisions of the Denmark Treaty are in

conflict with both the AFA and 46 CFR

Part 356 is as follows:

Summary of Argument

The ownership and control provisions of

the AFA are directly inconsistent with the

U.S-Denmark Treaty of Friendship,

Commerce and Navigation (the ‘‘Denmark

Treaty’’), an existing international agreement

relating to foreign investments to which the

United States is a party. The issue is relevant

because there is investment by Royal

Greenland Trading, a Danish company, in the

U.S. flag fishing vessel Arica that would be

directly impaired by the AFA. Specifically,

the AFA’s unambiguous, retroactive

discrimination against fishing companies

with foreign ownership interests, for the

benefit of super-majority U.S. owned fishing

companies—as applied to Danish investment

in such companies—is directly at odds with

the Denmark Treaty.

The purpose of the Denmark Treaty is to

encourage investment between the United

States and Denmark. The Treaty prohibits the

impairment of rights legally acquired by

Danish investors in U.S. enterprises. The

Denmark Treaty also explicitly accords

Danish investors national treatment—

treatment by the U.S. government as if such

investors were U.S. nationals, with respect to

their investments in the United States. Most

plainly, the Denmark Treaty explicitly

forbids interference with Danish investors’

4070 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Notices

14Walker, Modern Treaties of Friendship,

Commerce and Navigation, 42 Minn. L. Rev. 805

(1958). Herman Walker, Jr., the chief commentator

on the purpose of the Friendship, Commerce and

Navigation (‘‘FCN’’) treaties, served, at the time of

the drafting of the Treaty as Adviser on Commercial

Treaties at the State Department and was

responsible for formulation of the postwar form of

the FCN Treaty, negotiating several of the treaties

for the Untied States. See Sumitomo Shoji America

Inc. v. Avagliano et al., 457 U.S. 176, 182 (1982).

15Walker, Modern Treaties of Friendship,

Commerce and Navigation, 42 Minn. L. Rev. 817

(1958).

16 ‘‘National Treaties’’ is defined by Article XXII

of the Denmark Treaty as ‘‘treatment accorded

within the territories of a Party upon terms no less

favorable than the treatment accorded therein, in

like situations, to nationals, companies, products,

vessels or other objects, as the case maybe, of such

parties.’’ National treatment in to be accorded

automatically and without condition of reciprocity

(Sullivan Report at page 64; see, infra at p.5 fn. 19.)

Harold F. Lidner, Deputy Assistant Secretary of

State for Economic Affairs, testified before the

Senate during hearings on ratification of the

Denmark Treaty (among others) and corrected U.S.

Senator Sparkman at this hearing on his

misapprehension that ‘‘national treatment’’ meant

treatment of U.S. nationals in a foreign nation in the

same way foreign nations were treated in the United

States, clarifying that it meant, instead, treatment of

foreign nationals in the U.S. exactly as U.S. citizens

are treated. Hearing Subcommittee on Commercial

Treaties and Consular Conventions, at p. 7, 82nd

Cong. (May 9, 1952).

17 Vandevelde, Sustainable Liberalism and The

International Investment Regime, 19 Mich. J. Int’l L.

373 (1998).

18Spiess v. C. Itoh and Co. (Am.) Inc., 643 F.2d

353, 361 (5th Cir. 1981), vacated on other grounds,

457 U.S. 1128 (1982), quoting Walker, Treaties for

the Encouragement and Protection of Foreign

Investment: Present Untied States Practice 5 Am J.

Comp. L. 229 (1956).

19 Lemnitzer v. Philippine Airlines, 783 F. Supp.

1238 (N.D. Cal. 1991), quoting Spiess, supra at 361.

20Wickes v. Olympic Airways, 745 F.2d 363 (6th

Cir. 1984), quoting Walker, Modern Treaties of

Friendship Commerce and Navigation, 42 Minn. L.

Rev. 805, 806 (1958).

21Walker, Modern Treaties of Friendship,

Commerce and Navigation, 42 Minn. L. Rev. 805,

806 1958).

22Wickes v. Olympic Airways, 745 F.2d 363 (6th

Cir. 1984), quoting Walker, The Post-War

Commercial Treaty Program of the United States, 73

Pol. Sci. Q. 57, 59 (1957); See also, Waldek, Note,

Proposals for Limiting Foreign Investment Risk

Under the Exon-Florio Amendment, 42 Hastings L.J.

1175, 1235 (1991).

23See e.g., Zenith Radio Corp. v. Matsushita

Electric Industrial Co. Ltd., 494 F. Supp. 1263, 1266

(E.D. Pa. 1980).

24 McCulloch v. Sociedad Nacional de Marineros

de Honduras, 372 U.S. 10, 21 (1963).

25 Id. See also Sumitomo Shoii America, Inc. v.

Avagliano et. al., 457 U.S. 176 (1982).

26The conflict between the AFA and certain

international treaties has been recognized by one of

the principal authors of the Act. Senator Slade

Gorton (R–WA), one of the chief sponsors of the

final legislation, was quoted in the press shortly

after the Act passed questioning the validity of the

new ownership provisions in relation to these

investment treaties: ‘Another provision [of the

American Fisheries Act] requires vessels operating

in this fishery to have at least 75 percent U.S.

ownership three years after the law goes into effect,

but [Senator Slade] Gorton said this

‘‘Americanization’’ feature ‘‘may very well be found

invalid’’ under U.S. trade agreements if challenged

by foreign ownership interests. Marine Digest and

Transportation News at p. 29 November 1998)

(emphasis added).

27The Sullivan Report is an Article-by-Article

discussion of the standard draft treaty of

Friendship, Commerce and Navigation, based on

the record of negotiation, State Department

messages providing instructions, and internal

memoranda dealing with issues raised in the course

of negotiations, that was completed in November,

1973. The Sullivan Report states that the standard

FCN Treaty Preamble (designated ‘‘Proclamation’’

in the Denmark Treaty ‘‘does have legal effect, for

the courts rely on it at as a guide to interpretation

concerning the applicability of the operative

articles.’’ Sullivan Report at 62.

rights to manage enterprises which they have

established or acquired.

Therefore, under Section 213(g) of the Act,

the irreconcilable conflict between the

investment protection provisions of the

Denmark Treaty and the AFA’s retroactive

impairment of Royal Greenland Trading’s

investment rights requires Marad to grant this

petition to exempt from the U.S. citizen

ownership and control requirements of the

AFA Royal Greenland Trading’s equity

ownership in the Arica (through its

ownership interest in Arica Fishing Company

Limited Partnership, JOMM Enterprises, Inc.,

and JZ, Ltd.).

The U.S. Treaties of Friendship, Commerce

and Navigation Are a Class of International

Agreements Protecting Bilateral Investment

The Denmark Treaty was one of a group of

post-World War II treaties designed to create

open-door investment between the U.S. and

nearly twenty other countries. Unlike

previous agreements, these ‘‘Friendship,

Commerce and Navigation’’ treaties dealt

explicitly with corporate investment between

countries.

The purpose of the FCN treaties in the

post-war period was to provide a stable

environment for private international

investment.14 The FCN treaties sought

‘‘national treatment,’’ 15 and were intended to

create an ‘‘open door’’ for foreign

investment.16 After the war, the United

States ‘‘took the lead in developing [a liberal]

international investment regime, and began

to negotiate a series of Friendship, Commerce

and Navigation treaties, a major purpose of

which was to protect U.S. investment

abroad.’’ 17

Federal courts recognized the FCN treaties

as ‘‘the medium through which the U.S. and

other nations could provide for the rights of

each country’s citizens, their property and

their interests, in the territories of the

other.’’ 18 The treaties were the means by

which nationals of each country could

‘‘manage their investment in the host

country.’’ 19

These FCN treaties ‘‘define the treatment

each country owes the nationals of the other;

their rights to engage in business and other

activities within the boundaries of the

former; and the respect due them, their

property and their enterprises.’’ 20 Foreign

investment issues were a centerpiece of the

Treaties’ purpose:

‘‘[The FCN treaties] preoccupation with

[national treatment issues] has been

especially responsive to the contemporary

need for a code of private foreign investment;

and their adaptability for use as a vehicle in

the forwarding of an investment aim follows

from their historical concern with

establishment matters.’’ 21

The FCN Treaties reached after World War

II, had:

‘‘a new consideration * * * which lent

special impetus to the program following

World War II, [that consideration] was the

need for encouraging and protecting foreign

investment, responsively to the increasing

investment interests of American business

abroad and to the position the United States

has now reached as principal reservoir of

investment capital in a world which has

become acutely ‘‘economic development’’

conscious.’’ 22

It is also important to note that the FCN

Treaties, including the Denmark Treaty, are

self-executing treaties, that is, they are

binding domestic law of their own accord,

without the need for implementing

legislation.23 Such treaties are the supreme

law of the land, and even federal statutes

‘‘ought never to be construed to violate the

law of nations if any other possible

construction remains.’’ 24 Only when

Congress clearly intends to depart from the

obligations of a treaty will inconsistent

federal legislation govern.25

The U.S.-Denmark Treaty of Friendship,

Commerce and Navigation Protects Danish

Investment in U.S. Companies and is Clearly

Inconsistent with the American Fisheries

Act

The Denmark Treaty contains 26 Articles,

several of which contemplate, and expressly

prohibit, retroactive limitations on foreign

investment in U.S. companies, such as those

imposed by the AFA.26

A. Proclamation: Encouraging International

Investment

The first provision of the Denmark Treaty,

entitled ‘‘A Proclamation,’’ contains broad

language relevant to an understanding of the

subsequent Treaty Articles relating to

bilateral investment. The Proclamation states:

‘‘The United States of America and the

Kingdom of Denmark, desirous of

strengthening the bonds of peace and

friendship traditionally existing between

them and of encouraging closer economic

and cultural relations between their people,

and being cognizant of the contributions

which may be made toward these ends by

arrangements encouraging mutually

beneficial investments, promoting mutually

advantageous commercial intercourse and

otherwise establishing mutual rights and

privileges, have resolved to conclude a

Treaty of Friendship, Commerce and

Navigation, based in general upon the

principles of national and of most-favorednation treatment unconditionally accorded

***’’ (emphasis added).

By emphasizing the importance of

international investments, the Proclamation

provides the Denmark Treaty’s context for

interpreting its investment protection

provisions.27 In entering into this Treaty, the

United States recognized, and accepted as

‘‘consideration,’’ the advantages provided by

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Notices 4071

28Harold F. Linder, Deputy Assistant Secretary of

State for Economic Affairs, testified before the

Senate during hearings on ratification of the

Denmark Treaty (among others) as follows: ‘‘...

These treaties are not one-sided. They are drawn up

in mutual terms, in keeping with their character as

freely negotiated instruments between sovereign

equals. Rights assured to Americans in foreign

countries are assured in equivalent measure to

foreigners in this country. Hearing, Subcommittee

on Commercial Treaties and Consular Conventions,

May 9, 1952 at p. 6

29Sullivan Report at 64. Although the Denmark

Treaty requires investment protection without the

requirement of reciprocity, it may be useful to note

that a review of the Jones Study, infra p. 7 at fn.

23 shows no incidents of State Department conflicts

with Denmark under the Denmark Treaty).

30The Minutes of interpretation appended to the

Denmark Treaty state: ‘‘The word ‘‘commercial’’ as

used in Article VII, paragraph 1 and Article VIII

paragraph 1, does not extend to the fields of

navigation and aviation. The word ‘‘commercial’’

‘‘relates primarily but not exclusively to the buying

and selling of goods and activities incidental

thereto.’’ Royal Greenland Inc. -USA is chiefly

concerned with the sale of fishery products and

activities incidental thereto. It is also important to

note that the term ‘‘navigation’’ does not include

commercial fishing. First, the Danish Treaty

mentions ‘‘national fisheries,’’ and ‘‘inland

navigation’’ as separate, independent activities

under paragraph 3, Article XIX. ‘‘Navigation’’ is

generally defined as ‘‘the act of sailing a vessel on

water.’’ Black’s Law Dictionary, 7th ed. West

Publishing, 1999. Finally, it may be important to

note that in the Denmark Treaty, the word

navigation is represented by the Danish word

‘‘sofort,’’ which means transportation activity on

sea and would not include fishing or fish

processing. Had fishing or fish Processing been

intended, the appropriate word would have been

‘‘fiskrei.’’

31This provision as well as others found in

Article VII of the standard draft treaty examined by

the Sullivan Report, is considered ‘‘the heart of the

treaty.’’ Sullivan Report at 124.

32See, e.g. State Department opposition to H.R.

12275 (expanding the definition of fisheries to

include processing activities) as contrary to U.S.-

Japan FCN treaty; processing activities under the

FCN are entitled even to prospective national

treatment, Aug. 17, 1964. Jones Study at 80 (citation

infra at p. 7 fn 29).

33Alternatively, Royal Greenland USA would be

forced to sell its direct investment in the Arica

Fishing Company, L.P., which would have the same

impact on its parent company, Royal Greenland

Trading.

34S. 1221, 105th Cong. (preamble) (1997).

35See supra at p. 3, fn. 9.

36The State Department’s position on this and

other FCN issues are reviewed in the ‘‘Jones Study,’’

prepared by Ronny E. Jones for the U.S. State

Department, and is a compilation of post-World

War II State Department positions on FCN Treaties

through 1981. See e.g. State Department position re:

Letter to A. Papa (U.S. Attorney General’s office)

from F.R. Brown (Legislative Counsel of 11th

Legislature of Guam), Sept. 27, 1971, Jones Study

at 76. See also, State Department position

concluding under the French FCN Treaty that

control and national treatment provisions ‘‘bar new

discriminatory limitations from being applied to

established or authorized operations and rights of

a protected foreign company’’ (differentiating from

permissible prospective limitations on ownership),

Jones Study at 54; State Department position

opposing Korean government’s restricting foreign

majority ownership of companies in certain

industries, October, 1972, Jones Study at 86; State

Department position opposing Thai government’s

restrictions on majority ownership of companies in

some industries. 1972 Jones Study at 104–106.

foreign investment in this country and

protection of U.S. investments abroad.28 The

national treatment benefits of the Danish

Treaty are ‘‘to be accorded automatically and

without condition of reciprocity.’’ 29

B. Article VIII: Managing Commercial

Enterprises

Paragraph 1 of Article VIII of the Denmark

Treaty states that nationals of each signatory

Nation shall be permitted to:

‘‘constitute companies for engaging in

commercial,30 manufacturing, processing

[and] financial * * * activities, and to

control and manage enterprises which they

have been permitted to establish or acquire 31

* * * for the foregoing and other purposes.’’

(emphasis added).

Royal Greenland Trading owns Royal

Greenland Inc.-USA, a U.S. entity owning

interests through a variety of entities in the

fishing vessel Arica. There is no question that

Royal Greenland Inc.-USA engages in

commercial activities directly or through

related entities: the sale of fish harvested by

the fishing vessel Arica, and the fish

processing undertaken aboard the vessel

Arica.32 Royal Greenland Inc.-USA is also

directly engaged in financial activities: e.g.,

the investment of funds in the U.S. fishing

industry.

The AFA would force Royal Greenland

Trading to divest itself of its current

ownership and control of Royal Greenland,

Inc.—USA, requiring the sale of 75% of that

company’s equity in order for it to be able to

maintain its investment in Arica Fishing

Company Limited Partnership.33 Forced

divestiture is facially inconsistent with the

control and management protections required

by Article VIII of the Denmark Treaty, above.

The clear conflict between Article VII.1 of

the Denmark Treaty and the AFA can be seen

from the stated purpose of the original bill

that was eventually enacted as the AFA:

‘‘to prevent foreign ownership and control of

United States flag vessels employed in the

fisheries in the navigable waters and

exclusive economic zone of the United States

***’’ (emphasis added).34

One additional point regarding Paragraph 1

of Article VIII is worthy of note. Article VIII

states that it protects the control only of

enterprises which a Danish entity has ‘‘been

permitted to establish or acquire.’’ That is,

only retroactive limitations, such as the one

here at issue, are forbidden.

2. Paragraph 2: National Treatment

Paragraph 2 of Article VIII states:

‘‘Companies, controlled by nationals and

companies of either Party and constituted

under the applicable laws and regulations

within the territories of the other Party for

engaging in the activities listed in paragraph

1 of the present Article, shall be accorded

national treatment therein with respect to

such activities.’’ (emphasis added).

Under the definition of national

treatment,35 paragraph 2 of Article VIII

requires that duly constituted companies

controlled by Danish entities shall be treated

precisely as if they were U.S. investors. Such

an obligation can hardly be met by requiring

the transfer of ownership and control of a

company from Danish investors to U.S.

investors.

The U.S. State Department has repeatedly

recognized this interpretation of Article VIII.

For example, in 1971, the State Department

opposed legislation in Guam requiring that

50% of the voting stock of corporations doing

business in Guam be owned by U.S. citizens.

The State Department took the position that

such legislation was inconsistent with Article

VII of the Japan FCN Treaty, which, (as do

Articles VII and VIII of the Denmark Treaty),

establishes a right to national treatment of

non-U.S. companies and nationals engaged in

business activity.36

In sum, the provisions of the AFA

requiring retroactive divestment of Danish

ownership of a business entity in the United

States are facially inconsistent with both

paragraphs of Article VIII of the Denmark

Treaty that explicitly protect foreign

investors engaged in the control of U.S.

companies.

C. Article VI, Paragraph 4: Impairment of

Interest in Supplied Capital Is Prohibited

Paragraph 4 of Article VI of the Denmark

Treaty prohibits:

‘‘unreasonable or discriminatory measures

that would impair the legally acquired rights

or interests within its territories of nationals

and companies of the other Party in the

enterprises which they have established, or in

the capital, skills, arts or technology which

they have supplied.’’ (emphasis added).

The explicit purpose and effect of the AFA

is to discriminate against foreign nationals

and companies. The Act’s ownership

provisions require divestment of substantial

equity in U.S. fishing vessels and the loss of

future profits from the enterprise. On their

face, these provisions directly ‘‘impair the

legally acquired interests’’ of Danish

investors both ‘‘in the enterprises which they

have established,’’ and ‘‘in their capital

* * * which they have supplied.’’

It is clear from the expressed purposes of

the FCN treaties, and from this provision in

particular, that their central goal was to

encourage capital investment between treaty

signatories by protecting potential investors

from the fear that government action would

retroactively impair equity ownership rights

in that investment. It was only in this context

of mutually understood and guaranteed

investment rights that open invitations to

foreign capital to develop the U.S. fishing

fleet could be, and was, successful.

Thus, the retroactive forced divestment of

owned equity imposed on Danish investors

by the AFA directly violates Article VI of the

Denmark Treaty, and as such is inconsistent

with the Treaty as contemplated under

Section 213(g) of the Act.

D. Article VII: National Treatment Required

Paragraph 1 of Article VII of the Denmark

Treaty states:

‘‘Nationals and companies of either party

shall be accorded * * * national treatment

with respect to engaging in all types of

commercial * * * [and] * * * financial

activities.’’

4072 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Notices

37 ‘‘Nationals and companies of either Party shall

be accorded national treatment within the

territories of the other Party with respect to

acquiring * * * and with respect to owning

movable property of all kinds . . . subject to the

right of such other Party to limit or prohibit, in a

manner that does not impair rights and privileges

secured by Article VIII, paragraph 1, [See

discussion at pp. 58 supra] or by other provisions

of the present treaty, alien ownership of particular

materials that are dangerous from the standpoint of

public safety and alien ownership of interests in

enterprises carrying on particular types of

activities.’’ (emphasis added).

38 ‘‘The term ‘‘discriminatory’’ as used in this

context would comprehend denials of either

national or most-favored-nation treatment, or both

. . . the intent is to protect against retroactive

impairment of vested rights if the acquisition of

such rights was lawful ***’’ (emphasis added).

Sullivan Report at 115.

39This Article ‘‘provides a basis for making

representation against actions detrimental to [a

signatory’s] interests that may not be covered by

any specific legal rule in the treaty, as, for example,

a measure that is superficially nondiscriminatory

but is so framed as to harm only some [signatory’s]

interest * * *. the construction leading to a just or

equitable result is to be preferred.’’ Sullivan Report

at 67. See also, Webster’s New Universal

Unabridged Dictionary, Barnes and Noble Books,

1996, ‘‘Equitable: Characterized by equity or

fairness; just and right; fair; reasonable: equitable

treatment of all citizens’’; Black’s Law Dictionary,

7th ed. West Publishing, 1999, ‘‘Equitable: just;

conformable to principles of justice and right.’’

40The rule of just compensation covers partial

takings. In such cases, the compensation should be

a full approximation of the amount by which the

taking impaired the value of the property.’’ Sullivan

Report at 117.

41At the very least, paragraph 3 of Article VI

requires application of a standard similar to that

under the 5th Amendment to the United States

Constitution. Paragraph 5 of Article VI requires that

Danish citizens ‘‘shall in no case be accorded * * *

less than national treatment * * * with respect to

the matters set forth’’ in paragraph 3. No federal

court would permit the government to force a sale

of assets by a U.S. citizen, thus denying that citizen

any use of that property in the future, without

requiring just compensation. Further, the Danish

Protocol 2 appended to the Denmark Treaty

requires that the provision of Article VI for payment

of just compensation shall extend to interests held

directly or indirectly by nationals and companies of

either party.

42 ‘‘The intent of this requirement [that provision

is made for the determination and payment of

compensation] is to afford protection against ex

post facto proceedings that could work to the

disadvantage of the person whose property is

taken.’’ Sullivan Report at 119.

43Even with respect to the forced sale of

‘‘materials dangerous from the standpoint of public

safety,’’ permitted under Article IX of the Treaty,

the Danish Treaty requires that ‘‘a term of at least

five years shall be allowed in which to effect such

disposition.’’ Subparagraph b, Paragraph 4, Article

IX.

44 In order to be documented under the U.S. flag,

for example, a vessel must be owned by a U.S.

citizen corporation, partnership or other entity.

There is no limitation on the citizenship of the

investment for the basic documentation. 42 U.S.C.

12102(a). Should the vessel be used in specific

trades, such as coastwise or fisheries, there may be

limitation on the citizenship of the investors. 46

U.S.C. 12106; 12108. It is significant to note that at

the time the Denmark Treaty was signed there was

no such limitation on fishing vessels. It was not

until 1988 that a prospective limitation was

imposed on the citizenship of the investors in an

entity owning a vessel with a fisheries

endorsement. See, The Commercial Fishing

Industry Vessel Anti-Reflating Act of 1987; Section

7(b) of Public Law 100–239.

As set forth above, the AFA directly affects

Danish nationals and their companies that

are ‘‘engaging in * * * commercial and

other business activities.’’ Royal Greenland

Trading engages in commercial and financial

investment activities through a subsidiary,

Royal Greenland Inc.-USA. The Denmark

Treaty requires that Royal Greenland

Trading’s commercial and investment

activities be accorded national treatment, and

as demonstrated above, the AFA’s explicit

discrimination against non-U.S. citizens

violates this national treatment provision

when applied to Danish investment.

Paragraph 2 of Article VII also requires

most-favored-nation treatment with respect

to ‘‘organizing, participating in and operating

companies of [the United States].’’ Mostfavored-nation treatment is defined by

Article XXII of the Denmark Treaty as

‘‘treatment accorded * * * upon terms no

less favorable than the treatment accorded

therein, in like situations, to nationals,

companies, products, vessels or other objects,

as the case may be, of any third country.

Thus, it is important to note that if nationals

of any other country are afforded protection

under section 213(g) of the Act failure to

provide the same protection to Danish

nationals would also be inconsistent with

Article VII.

E. Article IX: Protection of Movable Property

Article IX of the Denmark Treaty explicitly

applies the protections afforded by the rest of

the Treaty, and in particular those

protections secured by Articles VII and VIII,

to the purchase, ownership and disposition

of property.

Paragraph 4 of Article IX sets out the only

conditions under which nationals and

companies of either party may be required to

dispose of property they have acquired.37

Subparagraph a, Paragraph 4 of Article IX

permits such a requirement for movable

property so long as such a requirement

conforms to Article VIII, paragraph 1 and all

other provisions of the Denmark Treaty. As

set forth above and below, the retroactive

equity divestment requirements of the AFA

do not conform with Article VIII and the

other provisions of the Denmark Treaty.

Article IX of the Denmark Treaty, in effect,

repeats that ownership of movable property

may not be subject to forced retroactive

divestiture.38

F. Article I: Equitable Treatment Required

for Danish Interests

Article I of the Denmark Treaty states:

‘‘Each Party shall at all times accord

equitable treatment to the persons, property,

enterprises and other interests of nationals

and companies of the other Party.’’

This Article was intended to provide a fail

safe mechanism in the Treaty to ensure that

fair and equitable treatment be afforded to

nationals of both countries.39 The forced

divestiture of investments and/or sale of

assets cannot be viewed as equitable

treatment under any logical reading of Article

I. Nevertheless, if this Article has any

meaning whatsoever, at the very least, it

cannot mean forcing a sale of valuable assets,

such as the equity interest in a fishing

company.

G. Article VI, Paragraph 3: Taking of

Property Requires Just Compensation

Paragraph 3 of Article VI of the Denmark

Treaty requires that the U.S. government

cannot take property belonging to Danish

nationals:

‘‘without the prompt payment of just

compensation. Such compensation shall be

in an effectively realizable form and shall

represent the full equivalent of the property

taken; and adequate provision shall have

been made at or prior to the time of taking

for the determination and payment thereof

*** ’’

There is no practical difference between

forcing a sale of property to the U.S.

government and forcing such a sale to

American nationals.40 Thus, to the extent

that a forced sale of property (1) diminishes

the value of the asset for the company by

virtue of the AFA’s passage; or (2) results in

a below-market sale of assets, the AFA

violates Article VI,41 as it makes no provision

for compensation of Danish investors.42 43

H. Article XIX: Vessels Flying the U.S. Flag

are Deemed U.S. Vessels For Purposes of

Access to U.S. Fisheries

Paragraph 4 of Article XIX of the Denmark

Treaty states:

‘‘each Party may reserve exclusive rights and

privileges to its own vessels with respect to

* * *. national fisheries.’’ (emphasis added).

This provision allows the U.S. and

Denmark to reserve exclusive rights and

privileges to ‘‘its own vessels’’ operating in

the fisheries of their respective countries.

The national identity of a vessel is

determined by the country in which the

vessel is documented, i.e. by the flag that it

flies. The national identity of a vessel is not

determined by the nationality of the investor

in the owning entity.44

The Arica is a U.S. vessel documented

under the laws of the United States. The U.S.

entity owning this U.S. flag vessel—like

General Motors, Ford Motor Company and

Coca-Cola—has foreign investors. The

purpose of this provision in the Treaty was

to allow the United States and Denmark the

opportunity to restrict fisheries to vessels

each country could control. That control,

historically, has always been through the flag

of the vessel, subjecting the vessel to our

environmental, labor and tax laws—not to

Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Notices 4073

45 ‘‘Greenland first came under Danish rule in

1380. In the revision of the Danish Constitution in

1953, Greenland became part of the Kingdom and

acquired the representation of two members in the

Danish Folketing * * * Greenland is part of the

Kingdom of Denmark, and the Danish Government

remains responsible for foreign affairs, defense and

justice.’’ The Europa World Year Book 1999, Europe

Publications Ltd. (1999); Volume I at pp 1203–04.

46See Exhibit A and discussion accompanying

supra at p.2 fn. 6.

47Sullivan Report at 308.

48Sullivan Report at 318–20.

allow the foreign investment capital to be

taken.

This issue is further clarified by Paragraph

2 of Article XIX, which states explicitly:

‘‘Vessels under the flag of either Party

* * * shall be deemed to be vessels of that

Party * * *’’

Thus, the United States has the full

authority to reserve exclusive rights and

privileges to the U.S. flag vessel Arica, ever

since Royal Greenland Trading made its first

investment in the Vessel. What the United

States has not had the right to do under the

Denmark Treaty is to take away that

investment once it was made. Article XIX

does not permit the United States to reserve

rights or privileges under the Denmark Treaty

for some of ‘‘its vessels’’ (those with supermajority U.S. investment) as against others of

‘‘its vessels’’ (those that include some Danish

investment). On the contrary, it guarantees

U.S. fishing vessels with Danish investment

equal access to U.S. fisheries.

I. Article XXI: Restrictions on the Rights of

‘‘Third Country’’ Nationals Are Not

Applicable to the Danish Citizens of

Greenland

Greenland is a legal territory of Denmark,

not an independent country.45 Residents of

Greenland are Danish citizens. The Danish

Constitution of 1953 covers all parts of

Denmark, including Greenland. Subsequent

to this constitution, Greenland was

administered as a department directly under

the central Danish government authority. In

1978, a parliamentary statute established

Greenlandic ‘‘home-rule’’ effective May 1,

1979 for some internal legal areas. However,

Greenland remains a legal part of the

sovereign nation, Denmark, and is subject to

Danish statutes, such as the ‘‘Companies

Act.’’

As stated earlier,46 Royal Greenland

Trading, the Danish company with

investment in Arica Fishing Company

Limited Partnership, is owned by investors in

the Territory of Greenland. Article XXI,

Paragraph 1(d) of the Denmark Treaty denies:

‘‘to any company in the ownership or

direction of which nationals of any third

country or countries have directly or

indirectly a controlling interest, the

advantages of the present Treaty, except with

respect to recognition of juridical status and

with respect to access to courts.’’ (emphasis

added).

This reservation is a provision to permit

piercing the corporate veil when nationals of

non-signatories seek to ‘‘obtain rights under

the treaty through the device of obtaining and

exercising interests in companies of the

treaty partner * * * Absent such a provision,

such corporate interests could take

advantage of the definition of ‘‘companies’’

[in the Treaty], which establishes place of

incorporation as the sole test of the

nationality of a corporation.47 (emphasis

added).

Greenland is not a ‘‘third country’’ within

the meaning of this provision. Greenland is

a territory of Denmark, dependent upon it for

foreign policy determinations. It is also

facially evident that no ‘‘device’’ to gain the

benefits of the Treaty has taken place. The

ownership arrangements for Royal Greenland

Inc.-USA were completed long before

enactment of the AFA. The duly constituted

Danish company Royal Greenland Trading

has the right to expect the protection afforded

all incorporated Danish companies under the

Denmark Treaty.

J. Article XXIII: Restriction on the Denmark

Treaty’s Application to Greenland Does Not

Apply to Greenlandic Investment in a Duly

Constituted Danish Company

Article XXIII of the Denmark Treaty states:

‘‘The territories to which the present

Treaty extends shall comprise all areas of

land and water under the sovereignty or

authority of each of the Parties, other than

Greenland, the Panama Canal Zone and trust

Territory of the Pacific. ’’

As set forth above, Royal Greenland

Trading is a duly incorporated Danish

company, subject to Danish government

authority and chartered by the Danish

Crown. Royal Greenland Trading is located at

Langerak 15, 9220 Aalborg, Denmark.

Overall, Royal Greenland Trading’s affiliated

companies have several hundred employees

in Denmark. Article XXII, Paragraph 3 states:

‘‘* * * Companies constituted under the

applicable laws and regulations within the

territories of either Party shall be deemed

companies thereof and shall have their

juridical status recognized within the

territories of the other ‘party.’ ’’

Thus, the Denmark Treaty is absolutely

explicit that:

‘‘the place of charter or incorporation [i]s the

sole fact determining the nationality of the

company. This test is in contrast to the socalled ‘seat’ test favored in some European

countries where the location of the real

center of management of the company or the

place or places where its principal activities

are carried on are looked to as determining

its nationality, even though its incorporation

may be in another country. Under the test of

place of incorporation, there is no specific

requirement of a substantial de facto contact

of the company with the chartering country

other than the issuance of the charter * * *

Adoption of the single test of place of

incorporation was based in part on the

practical consideration that it makes the

nationality of a company simple and easy to

determine.’’ 48 (emphasis added).

The only exception to this ‘‘place of charter

or incorporation’’ rule, is that set forth in

Article XXI of the Denmark Treaty discussed

in Section I above. As discussed, Danish

citizen investors residing in Greenland do

not fall within the narrow exception for third

country nationals seeking by device to take

advantage of another nation’s favorable trade

relations. Therefore, Royal Greenland

Trading must be afforded the protections for

Danish companies under the Denmark

Treaty.

In addition, it is important to recognize

that Article XXIII was not intended to

preclude protection for the Danish nationals

of Greenland and their companies, to which

Danish law applies. It appears clear that this

exception was intended to protect areas

having special territorial, commonwealth or

merely military relationships with their

home countries, such as the Panama Canal

Zone and the U.S. Trust Territory of the

Pacific Islands. Such policy rationales are not

applicable to investments by the Danish

citizens of Greenland in their host country.

V. Conclusion: Royal Greenland Trading is

Entitled to an Exemption Under Section

213(g) of the American Fisheries Act

Because the Act’s Retroactive Ownership

and Control Provisions are Inconsistent With

the Denmark Treaty.

The Danish Treaty clearly contemplates the

very category of investment restrictions here

at issue. It is important to recognize that

should the United States or Denmark have

wished to exclude investment in the fishing

industry vessels of one party on behalf of the

nationals or companies of the other, they

could easily have done so. For example,

Article XIV of the Treaty relates to

prohibitions and restrictions on imports.

Paragraph 4 of Article XIV explicitly

excludes from the protections of the Article

‘‘advantages accorded * * * products of

[each country’s] national fisheries.’’

Similarly, Paragraph 4 of Article XIX reserves

exclusive rights and privileges to each

signatory’s own vessels with respect to

national fisheries. The Treaty simply does

not permit forced divestment of investment—

or a prohibition on management of that

investment—in U.S. companies operating in

the national fisheries.

The overlapping, self-reinforcing

investment protections provided by the

several Articles analyzed in this petition

were clearly intended to prohibit the category

of coerced retroactive investment divestiture

required by the AFA. The Treaty’s explicit

agreement as to a national’s right to control

interests in companies they have established

in each Treaty partner’s territory, its

requirement for the highest possible degree of

investment protection—national treatment,

and its prohibition of the impairment of

equity rights gained by supplied capital, are

all, singly and in the aggregate, at odds with

the AFA’s ownership provisions.

If the investment of Royal Greenland

Trading is not protected, the implications

would be significant and the economic

climate fostered by the Treaty damaged.

Forcing the sale of Danish nationals’ assets in

the industry they helped to create would

likely make more far reaching free trade

agreements difficult. The United States has

long been a champion worldwide of free

market investment, often decrying other

governments’ actions in restricting their

import markets, currencies and venture

capital opportunities. To interpret the Treaty

4074 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Notices

1Pursuant to an agreement with The Custom

Company, Inc., C & C will acquire the right to

operate the lines for the purpose of shuttling cars

solely on Centerpoint’s property.

2On January 8, 2001, a petition to stay the

effective date of the exemption was filed by Joseph

C. Szabo, on behalf of United Transportation UnionIllinois Legislative Board. The petition for stay was

denied in C & C Railroad, Inc.—Operation

Exemption—Centerpoint Properties, L.L.C., STB

Finance Docket No. 33990 (STB served Jan. 8,

2001).

so as to permit enforced, retroactive loss of

assets, and the expulsion of Danish nationals

overseeing their own investments from their

corporate positions may seriously weaken the

standing of the U.S. to continue in its

leadership role.

Marad should therefore grant Royal

Greenland Trading’s petition pursuant to

Section 213(g) of the AFA and 46 C.F.R.

356.53 promulgated thereunder, and rule that

the citizen ownership and control restrictions

in the Act and those portions of 46 C.F.R.

Part 356 that implement those restrictions do

not apply to Royal Greenland Trading ApS

(or its wholly-owned subsidiary) with respect

to its ownership equity in the vessel Arica

(O.N. 550139), through its ownership interest

in Arica Fishing Company Limited

Partnership, JOMM Enterprises, Inc., and JZ,

Ltd.

This concludes the analysis submitted

by Petitioner for consideration.

Dated: January 11, 2001.

By Order of the Maritime Administrator.

Joel Richard,

Secretary, Maritime Administration.

[FR Doc. 01–1358 Filed 1–16–01; 8:45 am]

BILLING CODE 4910–81–P

DEPARTMENT OF TRANSPORTATION

Maritime Administration

Marine Transportation System National

Advisory Council

ACTION: National Advisory Council

Public Meeting.

SUMMARY: The Notice of Marine

Transportation System National

Advisory Council Public Meeting which

was published in the January 12, 2001

issue of the Federal Register contains an

error. The meeting, scheduled for

Friday, February 2, 2001, will begin at

8:30 a.m., not 9:00 a.m., as originally

stated.

FOR FURTHER INFORMATION CONTACT:

Raymond Barberesi, (202) 366–4357;

Maritime Administration, MAR 830,

Room 7201, 400 Seventh St., SW.,

Washington, DC 20590;

Raymond.Barberesi@marad.dot.gov.

(Authority: 5 U.S.C. App 2, Sec. 9(a)(2); 41

CFR 101–6. 1005; DOT Order 1120.3B)

Dated: January 11, 2001.

Murray A. Bloom,

Acting Secretary, Maritime Administration.

[FR Doc. 01–1415 Filed 1–16–01; 8:45 am]

BILLING CODE 4910–81–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33990]

C & C Railroad, Inc.—Operation

Exemption—Centerpoint Properties,

L.L.C.

C & C Railroad, Inc. (C & C), a

noncarrier, has filed a verified notice of

exemption under 49 CFR 1150.31 to

acquire the operating authority on eight

rail lines (lines) owned by Centerpoint

Properties, L.L.C. (Centerpoint), and

leased to The Custom Companies, Inc.

(previously Custom Cartage, Inc.). The

lines total about 1.71 miles and they

connect with track located in the Union

Pacific Global Two Intermodal Yard,

near Union Pacific milepost 3.0. The

lines are located in an office,

warehouse, and dock facility at 317

West Lake Street in Northlake, IL.1

The transaction is expected to be

consummated on the effective date of

the exemption. The earliest the

exemption can be consummated is

January 9, 2001, the effective date of the

exemption (7 days after the exemption

was filed).2

If the verified notice contains false or

misleading information, the exemption

is void ab initio. Petitions to reopen the

proceeding to revoke the exemption

under 49 U.S.C. 10502(d) may be filed

at any time. The filing of a petition to

revoke will not automatically stay the

transaction.

An original and 10 copies of all

pleadings, referring to STB Finance

Docket No. 33990, must be filed with

the Surface Transportation Board, Office

of the Secretary, Case Control Unit, 1925

K Street, NW., Washington, DC 20423–

0001. In addition, a copy of each

pleading must be served on Michael A.

Abramson, Esq., 120 S. Riverside Plaza,

Suite 1200, Chicago, IL 60606.

Board decisions and notices are

available on our website at

‘‘WWW.STB.DOT.GOV.’’

Decided: January 9, 2001.

Vernon A. Williams,

Secretary.

[FR Doc. 01–1331 Filed 1–16–01; 8:45 am]

BILLING CODE 4915–00–P