REG 46 CFR PART 283-2011 DIVIDEND POLICY FOR OPERATORS RECEIVING OPERATING-DIFFERENTIAL SUBSIDY.pdf

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1、125 Maritime Administration, DOT 283.2 (b) Appeals of administrative determina-tions(1) Policy. An operator who dis-agrees with the findings, interpreta-tions or decisions of the Contracting Officer with respect to the administra-tion of this part may submit an appeal from such findings, interpretat

2、ions or decisions as follows: (i) Appeals shall be made in writing to the Secretary, Maritime Subsidy Board, Maritime Administration, with-in 60 days following the date of the doc-ument notifying the operator of the ad-ministrative determination of the Con-tracting Officer. In the appeal to the Secr

3、etary, the operator shall indicate whether or not a hearing is desired. (ii) MARAD will notify the appellant in writing if a hearing is to be held and whether the operator is required to submit additional facts for consider-ation in connection with the appeal. (iii) When a decision has been ren-dere

4、d, the Board shall notify the appel-lant in writing. (2) Appeal to the Secretary of Transpor-tation. An operator who disagrees with the Board may appeal such findings and determinations by filing with the Secretary of Transportation, a written petition for review of the Boards ac-tion. The petition

5、shall be filed in ac-cordance with provisions of the Depart-ment of Transportation pertaining to Secretarial review. (3) Hearings. MARAD shall follow the Rules of Practice and Procedure (46 CFR part 201, subpart M) for hearings granted under 46 U.S.C. 1176 and 46 CFR 282.32. PART 283DIVIDEND POLICY

6、FOR OPERATORS RECEIVING OPER-ATING-DIFFERENTIAL SUBSIDY Sec. 283.1 Purpose. 283.2 Definitions. 283.3 Dividend policy criteria. 283.4 Alternate standards. 283.5 Notification and reporting require-ments. AUTHORITY: Sec. 204(b) Merchant Marine Act, 1936, as amended (46 U.S.C. 1114(b); Re-organization P

7、lans No. 21 of 1950 (64 Stat. 1273) and No. 7 of 1961 (75 Stat. 840), as amended by Pub. L. 91469 (84 Stat. 1026); Dept. of Commerce Organization Order 108 (38 FR 19707, July 23, 1973). SOURCE: 45 FR 37445, June 3, 1980, unless otherwise noted. 283.1 Purpose. (a) The rules of this part establish re-

8、quirements for the declaration and payment of cash dividends by operators receiving operating-differential subsidy (ODS) under Title VI of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1101 et seq.) (Act). This part shall be applicable immediately unless other-wise provided for in the operato

9、rs op-erating-differential subsidy agreement (ODSA). (b) One of the purposes of the Act is to foster the development and encour-age the maintenance of the United States Merchant Marine. Subsidized operators are required to maintain the financial ability to assure adequate and timely reinvestment in

10、the mer-chant marine. The policy contained herein takes into consideration the op-erators contractual obligations to con-struct and acquire vessels, retire debt obligations secured by ship mortgages and maintain adequate working cap-ital. However, this policy also takes into consideration the operat

11、ors need to attract new capital to the industry by paying dividends which are appro-priate in light of the operators earn-ings and long-range financial position. 283.2 Definitions. (a) Long-Term Debt means, as of any date, the total notes, bonds, deben-tures, equipment obligations and other evidence

12、 of indebtedness that would be included in Long-Term Debt in accord-ance with generally accepted account-ing principles, less the balance of es-crow fund deposits attributable to the principal of obligations guaranteed pursuant to Title XI of the Act, where deposits are required in accordance with 2

13、98.33. Capitalized Lease Obliga-tions shall be included, but deferred in-come taxes shall not be included. (b) Capitalized Lease Obligations means, as of any date, an amount (ex-cluding amounts already included in Long-Term Debt) equal to the sum of: (1) The present value of all capital leases, as d

14、efined and computed in ac-cordance with the Financial Account-ing Standards Board Statement No. 13, Accounting for Leases (FASB13), and VerDate Mar2010 16:34 Nov 01, 2011 Jkt 223200 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Q:4646V8.TXT ofr150 PsN: PC150Provided by IHSNot for ResaleNo reproduction or ne

15、tworking permitted without license from IHS-,-,-126 46 CFR Ch. II (10111 Edition) 283.2 (2) 12 of the minimum rentals (less op-erating components such as insurance, maintenance, property taxes, etc.) of all operating leases, as defined and in-cludable in footnotes to the financial statements in acco

16、rdance with FASB 13, for shipping property, i.e., vessels, containers, barges, terminals and other similar property. (c) Equity (net worth) means, as of any date, the total of paid-in-capital stock, paid-in-capital, retained earn-ings and all other amounts that would be included in Equity in accorda

17、nce with generally accepted accounting principles, but adjustable as follows. The net worth shall be reduced to the extent that the net worth computation includes any receivables from an affil-iate of the company or any stock-holder, director, officer, or employee (or any member of the employees fam

18、-ily) of the company, or of an affiliate of the company, other than (1) reason-able advances to affiliated agents re-quired for the normal operation of the companys vessels, or (2) current re-ceivables arising out of the ordinary course of business, and which are not outstanding for more than 120 da

19、ys. (d) Floor net worth means net worth computed as follows: The net worth re-quirement for existing operators shall be initially set at the greater of 90 per-cent of the operators existing net worth or 50 percent of the operators long-term debt contained in its audited financial statements for the

20、year ended December 31, 1979. A new operators net worth requirement shall initially be set at the greater of 90 percent of exist-ing net worth or 50 percent of the origi-nal long-term debt issued with respect to the operators vessel(s). (e) Adjusted floor net worth means that the floor net worth req

21、uirement may be reduced with consent of the Maritime Administrator in an amount equivalent to amounts an operator could have paid in dividends under the previous policy set forth in this regula-tion prior to amendment in 1980, in the three years prior to the date of effec-tiveness of this policy, bu

22、t chose not to pay out in dividends. The floor net worth requirement for both existing operators and new operators shall be further adjusted from time to time as follows: (1) The net worth requirement shall be increased by an amount equal to 50 percent of the original long-term debt to be issued wit

23、h respect to new vessel construction (with respect to existing operators, new vessel construction con-tracts executed after December 31, 1979), and (2) the net worth requirements shall be decreased by an amount equal to 50 percent of the original long-term debt issued with respect to vessels which a

24、re removed from service or otherwise transferred or sold. (f) Working capital means the dif-ference between current assets and cur-rent liabilities, both determined in ac-cordance with generally accepted ac-counting principles, adjusted as fol-lows: (1) Current assets shall be reduced with respect t

25、o: (i) Amounts in any Title XI Reserve Fund, pursuant to 46 CFR 298.35(e) or Capital Construction Fund (CCF) Secu-rity Amount prescribed by 46 CFR 298.35(f), that is being maintained pur-suant to an agreement covering a ves-sel owned or leased by the company, or in another similar fund required unde

26、r any other mortgage, indenture or other agreement to which the company is a party; (ii) Any securities, obligations or evi-dences of indebtedness of an affiliate of the company or of any stockholder, di-rector, officer or employee (or any member of the family of an employee of the company or of suc

27、h affiliate), ex-cept: (a) Reasonable advances to affili-ated agents required for the normal current operation of the companys vessels, or (b) receivables outstanding for not more than 120 days, arising out of the ordinary course of business. (2) Current assets shall be increased with respect to CCF

28、 accruals (but not actual deposits), if the operator has first met its prorated CCF minimum deposit schedule. (3) Current liabilities shall be in-creased by one-half of the annual pay-ment of all charter hire and other lease obligations having a term of more than twelve months, other than charter hi

29、re and other lease obligations already in-cluded and reported as a current liabil-ity on the companys balance sheet. VerDate Mar2010 16:34 Nov 01, 2011 Jkt 223200 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Q:4646V8.TXT ofr150 PsN: PC150Provided by IHSNot for ResaleNo reproduction or networking permitted

30、without license from IHS-,-,-127 Maritime Administration, DOT 283.3 (4) Current liabilities shall be de-creased by amounts on deposit in a CCF which are available for the pay-ment of current liabilities. (g) Prior years earnings means the ag-gregate net income after tax for the three years immediate

31、ly preceding the year in which the dividend is declared. An operator may include in prior years earnings estimated net oper-ating income after tax for the current fiscal year if such amount is based upon actual net operating income after tax for the first nine months of the current year. If an opera

32、tor includes estimated current income in its prior years earnings computation, it may also include earnings for only the im-mediately preceding two years, rather than three years, in the computation of prior years earnings. (h) Funds available shall mean the sum of: (1) Amounts on deposit in any fun

33、d established pursuant to the Act plus accrued deposits, unless already in-cluded in working capital, (including interest thereon), less accrued with-drawals from any such fund; (2) Gross book value, as shown on the operators books of account, of sub-sidized vessels and related barges and containers

34、, less accumulated deprecia-tion; (3) Progress payments made on sub-sidized vessels and related barges and containers undergoing construction, reconstruction, or reconditioning; (4) Progress payments made on addi-tional vessels and related barges and containers, if any, which the operator has agreed

35、 to construct or acquire pur-suant to any contract entered into with the Maritime Administrator or the Maritime Subsidy Board (Board); (5) Balance of trade-in allowances pursuant to section 510 of the Act; (6) Capitalized Lease Obligations as defined in 283.2(b); and (7) Working capital as defined i

36、n 283.2(f). (i) Funds required means the sum of: (1) 25 percent of the total cost to the operator of: (i) Subsidized vessels under construction, reconstruction or recon-ditioning, (ii) additional vessels under construction, reconstruction or recon-ditioning pursuant to any contract en-tered into bet

37、ween the operator and the Maritime Administrator or the Board, and (iii) barges and containers under construction or under contract to purchase, and to be used as part of the complement of such vessels; (2) 25 percent of the total cost to the operator, estimated at the time a cash dividend is to be

38、declared, of: (i) Re-placement of subsidized vessels re-quired to be replaced under the current ODSA (which cost must be indicated whether or not the operator antici-pates leasing replacement vessels), (ii) additional vessels which the operator has agreed to construct or acquire pur-suant to any con

39、tract entered into with the Maritime Administrator or the Board, and (iii) barges and con-tainers required as part of the com-plement of such vessels. In making this computation, the operator shall obtain the prior written agreement of the Maritime Subsidy Board as to number of replacement vessels,

40、type and com-mercial characteristics, projected award date of construction contract, projected delivery dates, estimated total cost (current) and method used to determine such cost, intended area of operation, and identity of vessels to be replaced. (3) Capitalized Lease Obligations as defined in 28

41、3.2(b), excluding that por-tion of any such amount payable with-in one year; and (4) Outstanding indebtedness on, or secured by, subsidized vessels and re-lated barges and containers, or in-curred in connection with the acquisi-tion, construction or reconstruction of such vessels and related barges

42、and containers. 283.3 Dividend policy criteria. (a) In general. A subsidized operator may pay cash dividends at any time it desires up to the amount set forth in paragraph (b) of this section. Dividends may be paid pursuant to paragraph (c) of this section, as provided therein. The written approval

43、of the Maritime Administrator shall be obtained prior to any declaration of dividends by the operator, if the payment of dividends does not meet the criteria of either paragraph (b) or (c) of this section. It is intended that dividend payments be VerDate Mar2010 16:34 Nov 01, 2011 Jkt 223200 PO 0000

44、0 Frm 00137 Fmt 8010 Sfmt 8010 Q:4646V8.TXT ofr150 PsN: PC150Provided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-128 46 CFR Ch. II (10111 Edition) 283.4 permitted under the provisions of ei-ther paragraph (b) or (c), whichever al-lows payment of the grea

45、test amount of dividends. Nothing in this part shall alter restrictions on the payment of dividends which may affect the oper-ator under any other agreements with the Maritime Administrator. (b) 40 percent dividend criteriaIf the operator is able to meet the criteria of this paragraph after declarat

46、ion and payment of the proposed dividend, it may declare a dividend of up to 40 per-cent of prior years earnings, less any dividends that were paid in such years, unless there is an operating loss in the fiscal year to the date of proposed pay-ment of dividend, as well as operating losses in the imm

47、ediately preceding two years. If in any of the years in-cluded in the prior years earnings cal-culation dividends were paid under the 100 percent rule, those years earnings and dividends may be excluded from the prior years earnings calculation, and then only the earnings and divi-dends associated w

48、ith the remaining years of the three year period may be used. This provision enables an oper-ator to pay dividends under the 40 per-cent rule when in past years it has paid dividends under the 100 percent rule. The criteria which must be satisfied are as follows: (1) Working CapitalWorking Capital m

49、ust equal or exceed one dollar. (2) Long-term Debt to Equity ratio Long-Term Debt must not exceed two times Equity. (The Maritime Adminis-trator may modify this requirement during periods of vessel construction). (3) Net Worth FloorNet Worth must exceed the adjusted net worth floor as computed in 283.2. (c) An operator may declare a divi-dend in an amount up to 100 percent of retained earnings, unless there is an operating loss in the fiscal year