8257.15 Decisions.

(a) The Presiding Officer is delegated the authority to render initial decisions in all proceedings before him. The same officer who presides at the reception of evidence shall render the initial decision except when such officer becomes unavailable to the Department of the Interior. In such case, another Presiding Officer will be designated by the Secretary to render the initial decision. Briefs, or other documents, to be submitted after the hearing must be received not later than ten (10) days after the hearing unless otherwise extended by the Presiding Officer upon motion by a party. The initial decision shall be made within twenty (20) days after the hearing or the receipt of all briefs, whichever is later. If no appeals from the initial decision are received within ten (10) days of the date of the initial decision, it will become the final decision on the 20th day following the date of the initial decision. If an appeal is received, the appeal will be transmitted to the Secretary who will render the final decision after considering the record and the appeal.

(b) All initial and final decisions shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon the material issues presented. A copy of each decision shall be served on the parties to the proceeding, and furnished to interested persons upon request.

(c) Official notice may be taken of such matters as might be judicially noticed by the courts; or of technical or scientific facts within the general or specialized knowledge of the. Department of the Interior as an expert body; or of a document required to be filed with or published by a duly constituted Government body: Provided, That where a decision or part thereof rests on the official notice of a material fact not appearing in the evidence of the record, the fact of official notice shall be so stated in the decision and any party, on timely request, shall be afforded an opportunity to show the contrary.

(a) Secretary. The Secretary of Commerce or his authorized representative.

(b) Owner. The registered owner or owners of a commercial fishing vessel, or a bareboat charterer of a commercial fishing vessel.

(c) Act. The Fishermen's Protective Act of 1967 (22 U.S.C. 1971-1977, as amended).

(d) Fishermen's Guarantee Fund. The account established in the Treasury of the United States under the provision of section 7(c) of the Act.

(e) Commercial fishing vessel. A vessel licensed or enrolled and licensed as a fishing vessel of the United States (or registered under United States law, and entitled to be licensed or enrolled and licensed for the fisheries of the United States) and catching, transporting, or processing, fish and/or shellfish.

(f) Seized. Placed under arrest and detained by a foreign country for alleged illegal fishing.

[36 FR 11922, June 23, 1971, as amended at 38 FR 6283, Mar. 8, 1973; 46 FR 70469, Oct. 24, 1980]

§ 258.2 Purposes of Fishermen's Protective Fund.

The broad objective of the Fishermen's Protective Fund is to provide for reimbursement of losses and costs (other than fines, license fees, registration fees, and other direct costs which are reimbursable through the Secretary of State) incurred as a result of the seizure of a U.S. commercial fishing vessel by a foreign country on the basis of rights or claims in territorial waters or on the high seas which are not recognized by the United States.

§ 258.3 Eligibility.

Any owner of a commercial fishing vessel documented or certified in the United States is eligible to apply for an agreement with the Secretary providing for a guarantee in accordance with section 7(a) of the Act.

§ 258.4 Applications.

Any owner desiring to enter into an agreement with the Secretary under the authority of section 7(a) of the Act shall make application to the Na

tional Marine Fisheries Service, Attention: Chief, Division of Financial Assistance (F224), 1801 North Moore Street, Arlington, VA 22209, upon application form furnished by that Service. The application shall be accompanied by a fee in the amount prescribed in the paragraph immediately below. § 258.5 Fees.

(a) Fees must pay administrative costs and a minimum of 25 percent of estimated claim payments. Fees are based on prior and anticipated experience. Fees may be adjusted by amending this part. Fund experience requires the following higher fees:

(b) Fees paid by an applicant for Guarantee Agreements for the agreement year October 1, 1980, through September 30, 1981, shall be $4.00 per gross ton as listed on the vessel's document. Fractions of a ton shall not be included. Although fees are due on October 1, 1980, all parties holding Guarantee Agreements (by Amendments or otherwise) for the period terminating September 30, 1980, shall have until December 1, 1980 (midnight local time), to pay the fees established herein. Failure to do so by December 1, 1980, will result in non-extension of the previous year's Guarantee Agreement.

(c) No fees will be returned after a guarantee agreement is executed by the Secretary.

(d) A guarantee agreement may, with the Secretary's consent, be assigned to a new owner of a vessel if the vessel is transferred during the period in which the agreement is in force.

(22 U.S.C. 1971-1980)

[45 FR 57723, Aug. 29, 1980, as amended at 45 FR 70470, Oct. 24, 1980]

§ 258.6 Insurance required.

In order to qualify for an agreement executed under this part, the vessel must be insured during the period of the agreement with hull and machinery insurance and protection and indemnity insurance in an amount and form satisfactory to the Secretary.

§ 258.7 Approval of application.

The approval of an application shall be evidenced by the execution of the

agreement by the Secretary and the agreement shall be in effect from the time of its effective date.

§ 258.8 Payment of claims.

(a) In case of a cost or loss resulting in a claim under an agreement, the claim shall be filed in duplicate with the Director, National Marine Fisheries Service, Attention: Chief, Division of Financial Assistance (F224), 1801 North Moore Street, Arlington, VA 22209. The Director will obtain verification of certain essential facts regarding the seizure from the Department of State. Payments shall be made as promptly as practicable but may at times be delayed pending appropriation of necessary funds.

(b) The burden of proving all damages shall be upon the guaranteed party.

(c) No payment shall be made on a claim caused by negligence of the Owner, captain or crew.

(d) No payment shall be made on a claim unless all fees due have been paid in full.

(e) Each claim filed shall contain an authorization to all International, Federal, State, or local government agencies to furnish the National Marine Fisheries Service with any data or information relating to the operation of the vessel involved in the claim which the Secretary deems necessary for adjudication of the claim,

(f) No claim shall be paid unless the vessel involved and covered by a guarantee agreement is properly documented as a vessel of the United States at the time of the seizure.

(g) No claim of any crew member who is not a citizen or an alien legally domiciled in the United States will be considered.

(h) In case of the loss or confiscation of a vessel or gear resulting in a claim, the value of the vessel or gear for the purpose of settling the claim shall be the market value as determined by the Secretary.

(i) The value used in determining claims involving the catch of the vessel will be that paid in the port and on the date of the first arrival of the vessel in the United States as determined by the Secretary. If the vessel does not return to a port of the United

United States which, except where modified to accommodate international boundaries, encompasses all waters from the seaward boundary of each of the coastal States to a line on which each point is 200 nautical miles from the baseline from which the territorial sea of the United States is measured, (2) all areas in which U.S. Continental Shelf fishery resources are found, and (3) the area representing the migratory range of any species of anadromous fish of the United States; except that such area shall not extent within any foreign nation's territorial sea or fishery conservation zone (or the equivalent) to the extent that such sea or zone is recognized by the United States.

(d) "Foreign vessel" means a vessel of a foreign nation, its crew, or fishing gear.

(e) "Secretary" means the Secretary of Commerce or his or her designated representative.

(f) "Loan" means a loan under section 10 of the Fishermen's Protective Act of 1967, as amended (22 U.S.C. 1980).

§ 258.22 Eligibility.

(a) Applicants. An applicant must be the owner or operator of a vessel which is used primarily for the commercial catching, processing, or transporting of fish or shellfish and which is either documented under the laws of the United States in the fisheries trade or certified or registered under the laws of any political subdivision of the United States.

(b) Loss, damage, or destruction. The applicant's vessel or its fishing gear must have been lost, damaged, or destroyed after July 1, 1976, as a result of the operation of a foreign vessel (or its crew or gear) in the Fishermen's Protective Zone. The total amount of such loss, damage, or destruction must exceed $2,000, as determined by the Secretary under § 258.26.

(c) Alternative claims. Any applicant who has made an alternate claim shall not be eligible for a loan if the Secretary determines that the alternative claim is substantially resolved at the time of the application or at the time of the loan. An alternative claim shall be regarded as substantially resolved

if, at the time of the application or loan, the alternative claim proceeding has resulted in compensation for the claimant (whether or not such compensation is less than the amount applied for under a loan application) or in a final denial of the claims.

(d) Insurance. An applicant's claim for such loss, damage, or destruction cannot be of such a nature as would ordinarily be covered under the collision clause, or other clauses, of a full hull and machinery policy of commercial insurance or under a full protection and indemnity of policy of commercial insurance.

§ 258.23 Applications.

(a) Form. Applications for loan shall be submitted to the Financial Services Division, National Marine Fisheries Service, Washington, D.C. 20235, by the owner or operator of the vessel concerned. Each application must be in a form suitable to establish that the situation involved meets the eligibility criteria in § 258.22 and must include as attachments the affidavits and estimates referred to in this section.

was

(b) Affidavit of vessel master. Applications shall include an affidavit by the master of the applicant's vessel (or by different masters if more than one involved during any material period) fully describing the circumstances before, during, and after the incident resulting in loss, damage, or destruction which states, among other things:

(1) Time, date, and locational coordinates (longitude and latitude) of the incident;

(2) Actions of the foreign vessel alleged to have caused the loss, damage, or destruction, before, during, and after the incident (if such actions were observed);

(3) Actions of the applicant's vessel or crew before, during, and after the incident, including a full description of circumstances involving deployment and retrieval of fishing gear (for example: time, date, locational coordinates, and circumstances of the gear's retrieval, and all attempts at retrieval);

(4) Description of the size, type, flag, identifying number, color of house or

hull, or other identifying characteristics, including a photograph, if available, of the foreign vessel alleged to have caused the loss, damage, or destruction (if such vessel was observed);

(5) A full statement of the reasons for belief that the loss, damage, or destruction was caused by a foreign vessel rather than by: wind, weather, sea, or other natural conditions; defective gear; defective deployment (for example, means of fixing gear); defective retrieval (for example, means to have been used for relocating gear); or a domestic vessel;

(6) Names and statements of any material witnesses;

(7) Nature and extent of loss, damage, or destruction, including, if possible, photographs of the damage, even if taken after return to port; and

(8) Description of the property which was lost, damaged, or destroyed, including type, size, material of construction, number of units, and remaining economically useful life at the time of the incident.

(c) Affidavit of owner or operator. Applications shall include an affidavit from the owner or operator of the vessel or gear for which a claim is being made stating the date, cost, and place of acquisition of the property which was lost, damaged, or destroyed, as well as its age and remaining economically useful life when acquired, and shall attach, if available, a copy of the original invoice or bill of sale of the property concerned.

(d) Estimates. Applications shall inIclude three estimates from commercial sources, acceptable to the Secretary, setting forth the replacement cost of the property concerned as well as its repair cost, if repairable.

(e) Evidence of foreign vessels in the area. Applications shall include documentation from the U.S. Coast Guard or National Marine Fisheries Service indicating all foreign vessels known to have been in the vicinity of the incident at any time after deployment of the gear lost, damaged, or destroyed and before its retrieval or attempted retrieval.

(f) Other evidence. The Secretary may, in his or her discretion, require further affidavits, other evidence, or supplementary information.

(g) Application fee. Applications shall be accompanied by a fee in the form of a check or money order made payable to "National Marine Fisheries Service" in the amount of $50. This fee shall not be refunded.

(h) Time requirement. After October 1, 1978, applications must be postmarked not later than 60 calendar days after the date the claimed loss, damage, or destruction occurred.

(i) Abandoned applications. As soon as practicable after receipt of an incomplete or improperly executed application, the applicant shall be notified by the National Marine Fisheries Service of any deficiency in the application. If the applicant fails to supply the deficient information or otherwise fails to correct the deficiency within 60 calendar days following the date of notification, the application shall be considered abandoned.

§ 258.24 Approval of loan applications.

A loan may be made to the applicant, if the Secretary finds that:

(a) The eligibility requirements of §258.22 are met;

(b) The application satisfies the requirements of § 258.23; and

(c) The Secretary reasonably determines that the claimed loss, damage, or destruction was caused, or could reasonably have been caused, by the operation of a foreign vessel in the Fishermen's Protective Zone.

§ 258.25 Terms and conditions of loans.

(a) Loan amount. The amount of a loan will equal the extent of the loss, damage, or destruction involved as determined under § 258.26.

(b) Time period. The terms of a loan shall not exceed the economically useful life of the vessel or gear acquired or repaired with the proceeds of the loan, and may, at the discretion of the Secretary, be for a shorter period of time.

(c) Collateral. Collateral for the loan shall be required at the discretion of the Secretary and may include a secured interest in the vessel or gear acquired or repaired with the proceeds of the loan. All loans will be evidenced by a promissory note payable to the