December 16, 2022
Volume XII, Number 350
December 16, 2022
– The Continued Importance of PPP Appeals by: Theodora McCormick and Robert Lufrano
– Jack Daniel’s vs.Bad Spaniels by: Jeanne Hamburg
– Rule 10b5-1 Amendments Adopted by the SEC by: Erin Reeves McGinnis
– Intellectual Property Law: Looking Forward to 2023 by: Dorothy R.Auth Ph.D.and Howard Wizenfeld
– 12 Days of CRM: Day 2 – The Origins of Bad Data [VIDEO] by: Christina R.Fritsch JD
– FTC Starts Long-Awaited Green Guides Review by: Food and Drug Law at Keller and Heckman
– Commissioner Uyeda Warns Of Looming Item 402 Letter Deficit, But…by: Keith Paul Bishop
December 15, 2022
– Festive NLRB Provides Holiday Gifts to Unions/Employees by: Robert E.Entin
– OCC Revises Policies and Procedures for Civil Money Penalties by: Moorari Shah and A.J.S.
Dhaliwal
– Battle Lines Drawn on Electric Vehicle Tax Credit Specifics by: William Ball
– Emerging Threats: Cyber Attacks and Side-Channel Evolution by: Iliana L.Peters and Colin H.Black
– Guide to Creating a Corrective Action Plan Template by: Dr.Nick Oberheiden
– Ten Environmental and Energy Issues to Watch in 2023 by: J.Michael Showalter and Amy Antoniolli
– S.D.N.Y.Voids ERISA Plan’s Arbitration Provision by: Joseph E Clark and Daniel B.
Wesson
– DHS Issues Guidance on Additional H-2B Temporary Nonagricultural…by: Jessica Feinstein
– 12 Days of CRM: Day 1 – How to Measure CRM Success by: Christina R.
Fritsch JD
– Staff Says Some Non-GAAP Financial Disclosures Are Beyond Redemptive…by: Keith Paul Bishop
– Full Speed Ahead: District Court Entitled to Explore Litigation…by: Amol Parikh
– Economically Motivated Adulteration in Honey by: Food and Drug Law at Keller and Heckman
– China Announces New Management Measures for Food-Related Products by: David J.Ettinger and Eric Gu
– Ratings Agencies Increase Focus on “Green Ratings” by: Jacob H.Hupart
– Applying Collateral Estoppel in IPRs by: Alexandra Cavazos, PhD
– The Ultimate Lawyer Time Off Checklist by: Kamron Sanders
– PTO Announces Cancer Moonshot Expedited Examination Pilot Program by: Bernard P.
Codd
– Do Law Firms Use HubSpot? by: CRM News and Updates, Lawmatics
– The State of ESG Reporting in Australia by: Clive Cachia and Adam Levine
December 14, 2022
– Certain Green Cards Getting 24-Month Extensions as USCIS Deals With…by: Michael H.Neifach
– Australia: Climate and Sustainability-Related Financial Disclosure…
by: Jim Bulling
– New Washington State Guidance A Reminder That More State Pay…by: Aaron Vance
– NLRB Unleashes New Damages Against Labor Law Violators by: Mark J.Neuberger
– Illinois Appellate Court Weighs in on Biometric Data Policies by: David M.Poell and Kari M.Rollins
– FTC Issues Green Guides Questionnaire by: Phyllis H.Marcus
– Webinar Recording: Navigating Today’s Privacy Compliance…by: Cynthia J.Larose
– US Executive Branch Update – December 14, 2022 by: Stacy A.
Swanson
– AML Bill Key to Busting Russian Oligarchs by: Stephen M.Kohn and Grace Schepis
– New York State Provides Protection for Use of Leaves of Absence by: Jonathan A.Wexler
– US Executive Branch Update – December 13, 2022 by: Stacy A.Swanson
– Looking Ahead to 2023: Pay Transparency Developments by: Allan S Bloom and Evandro C Gigante
– What Does 2023 Hold for California COVID-19 Supplemental Paid Sick…
by: Benjamin A.Tulis
– AND ANOTHER ONE! TCPA CLASS DISCOVERY LIMITED: Third Party Subpoena…by: Jenniffer Cabrera
– Speak Out Act Takes Effect, Enhanced Data Privacy Obligations for…by: George Carroll Whipple, III
– California Starts Mandating Employee Bereavement Leave in 2023 by: Paul R.Lynd
– GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory…by: Eric J.
Troutman
– 401(k) Compliance Check #12: Don’t Borrow Trouble – Correcting…by: Belinda S.Morgan
– FDA Published Food Safety Culture Literature Review by: Food and Drug Law at Keller and Heckman
– Does a business have to provide a privacy notice directly to a…by: David A.Zetoony
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.
Department of State to Update Design on Nonimmigrant and…
by: Ashley K.Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.Troutman
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…
by: Paul V.Kelly
– U.S.Supreme Court Hears Oral Argument in Case Testing Limits of…by: Michelle E.
Phillips and Christopher M.Repole
– Damages in Pre-Certification Discovery are Premature, Discovery…by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…
by: Jason H.
Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– DOJ Settlement with Electronic Health Records Provider Highlights…by: Ty E.
Howard and Lane M.Webster
Congress Enacts Major Expansion of Capital Construction Fund, Creating New Opportunities for Marine Financing of Jones Act Vessels
The FY 2023 National Defense Authorization Act (NDAA) includes language that makes significant changes to the Capital Construction Fund (CCF), expanding the vessels eligible for CCF to include those engaged in the domestic or Jones Act trade.
This change opens the door for vessels engaged in this service to participate in the CCF program, creating options for financing ship construction, reconstruction, and acquisition.With limited exceptions, vessels operating in the domestic trade were not previously eligible for the CCF program.
CCF Program History
The CCF program was created to assist owners and operators of U.S.-flag vessels in accumulating the large amounts of capital necessary for the modernization and expansion of the U.S.
merchant marine.The program is designed to counterbalance the competitive advantage afforded to vessel operators who construct vessels in foreign jurisdictions with lower shipbuilding costs.The CCF encourages domestic “construction, reconstruction, or acquisition of vessels through the deferment of Federal income taxes on certain deposits of money or other property placed into a CCF.”1
Any vessel constructed, reconstructed, or acquired with funds withdrawn from a CCF account must be documented in the United States and operate within certain trades, which, prior to the NDAA, were the “United States foreign, Great Lakes, noncontiguous domestic, or short sea transportation trade.”2 The agency responsible for administering the CCF for all but fishing vessels is the Department of Transportation’s Maritime Administration (MARAD).MARAD has in recent years accepted in the CCF program offshore wind vessels, offshore support vessels, and crew transfer vessels as coming within the noncontiguous domestic trade category, as well as certain ferries in the short sea transportation trade.
The Department of Commerce’s National Oceanic and Atmospheric Administration administers the CCF program for fishing industry vessels.
Changes to The CCF Program
Under the changes implemented by the NDAA, vessels eligible for the CCF program include vessels engaged in the “foreign or domestic trade of the United States.”3 Under the governing statute, foreign trade also includes very limited areas “in domestic trade in which a vessel built with a construction-differential subsidy is allowed to operate under the first sentence of section 506 of the Merchant Marine Act, 1936.”4 While domestic trade is not defined in the statute,5 Congress’ intent is understood to extend the CCF program to vessels in the coastwise or Jones Act trade.Thus, the NDAA extends the CCF program to any vessel engaged in the “foreign or domestic trade of the United States” and not just the U.S.foreign, Great Lakes, noncontiguous domestic, and short sea transportation trades.
This change will significantly expand the vessels eligible for the CCF program to include U.S.-flag inland vessels and barges, towing vessels, and many others operating in or intending to operate in the Jones Act trade.The change also raises questions whether MARAD will apply the new amendment to vessels that have already been constructed, reconstructed, or acquired with CCF withdrawals and are subject to CCF agreements that provide for the payment of liquidated damages for use in the coastwise trade, as well as if MARAD will enforce those contractual provisions.
We acknowledge the contributions to this publication from our law clerk Brian J.
Hopkins.
FOOTNOTES
1 U.S.Dep’t of Transp.Mar.Admin., Capital Construction Fund, https://www.maritime.dot.gov/grants/capital-construction-fund.
2 46 U.S.C.
§ 53501(5)(A)(iii).
3 National Defense Authorization Act for Fiscal Year 2023, H.R.
7900, 117th Cong.§§ 3544, 3545 (emphasis added).
4 46 U.S.C.§ 53501(8).
5 See id.
§ 53501..