damaged or lost and what components were retrieved in what condition, etc.). (f) Affidavit of the owner. Each application shall also include an affidavit of the owner of the United States fishing vessel or fishing gear involved in the casualty. A single affidavit of the vessel master and owner may be submitted if the vessel master is also the owner of the property concerned. Each affidavit shall include:

(1) A complete inventory of all fishing gear owned by the applicant of a type similar to any fishing gear involved in the casualty for which a claim for compensation is being made. The inventory shall be current as of a date immediately preceding the casualty (the lost, damaged, or destroyed fishing gear must be included in the inventory). The age and remaining useful economic life of each unit of fishing gear in the inventory shall be specified.

(2) The date, place, and cost of acquisition of all fishing gear and components lost, damaged, or destroyed in the casualty. Purchase invoices other acceptable proof of ownership for such gear shall be submitted.

or

(g) Estimates. Each application shall include two estimates, from commercial sources, acceptable to the Chief, FSD, of the property lost, damaged, or destroyed and its repair cost if it is repairable.

(h) Witnesses. Each application shall include:

(1) The name, address, and telephone number of each known witness to the casualty; and

(2) An affidavit from any material witness to the casualty setting forth any material information possessed by such witness.

(i) Efforts to retrieve fishing gear. A full description of the actions taken to retrieve the fishing gear involved in the casualty must accompany the claim. The applicant is responsible for reporting any fishing gear retrieved to the Chief, FSD, whether before or after a decision is made on a claim.

(j) Other evidence. The Chief, FSD, may require an applicant to submit affidavits, information, explanations, or estimates in addition to those specified in this section.

(k) Filing fee. Each application shall include a check or money order made payable to the National Marine Fisheries Service for the filing fee. The filing fee is one percent (1%) of the replacement and/or repair (whichever is applicable) cost of the property lost, damaged, or destroyed (but in no event shall the filing fee exceed $1,000). The replacement and/or repair cost used to calculate the filing fee is the lower of the two estimates required by § 258.33(g) to be included in the application. The filing fee is non-refundable.

(1) Incomplete and abandoned applications. As soon as practicable after receipt of an incomplete or improperly completed application, the Chief, FSD, shall notify the applicant. The 60-day processing time, within which an Initial Determination shall be made under § 258.36, does not begin to run until an application is determined by the Chief, FSD, to be both proper and complete in all respects. If the applicant without good cause fails to correct a deficiency within 60 calendar days following the date of notification of the deficiency, the application shall be considered abandoned.

(1) Amendment of applications. An application may be amended any time after submission, but prior to the Initial Determination specified in §258.36. The Chief, FSD, shall make an Initial Determination on the application, as amended, within 60 days from the receipt of the amendment.

[44 FR 61547, Oct. 25, 1979; 45 FR 60913, Sept. 15, 1980, as amended at 45 FR 72667, Nov. 3, 1980]

§ 258.34 Burden of proof and presumptions.

(a) Burden of proof. The applicant has the burden to prove the cause of the casualty by a preponderance of the evidence. An applicant seeking compensation for a casualty to fishing gear has the burden to prove that the gear was deployed, and attempts to retrieve it were, in conformance with customary usage and practice and otherwise constituted the actions of an ordinarily prudent person.

(b) Presumptions. (1) Unobserved fishing gear casualties.

(i) Attributable to foreign vessels. (A) Upon the filing of an application for compensation for an unobserved fishing gear casualty, the Chief, FSD, shall compile available data concerning foreign vessel activity in the vicinity of the casualty between the date when the deployed gear was last seen in a sound state and the date upon which knowledge of the casualty was first gained.

(B) There is a presumption that an unobserved fishing gear casualty was attributable to a foreign vessel if the Chief, FSD, determines that the data compiled under paragraph (A) show that foreign vessel was in close proximity to the fishing gear, or a sufficient number of foreign vessels were in the general vicinity of the fishing gear, between the date when the deployed gear was last seen in a sound state and the date of its retrieval or attempted retrieval to enable a determination that it is reasonable to believe that the casualty could have been attributable to foreign vessels.

(ii) Attributable to acts of God. (A) The following procedure will be used in determining whether or not there is a presumption that an observed fishing gear casualty was attributable to an act of God:

(1) The Office of Oceanic and Atmospheric Services of the National Oceanic and Atmospheric Administration will compute the historical mean of weather and sea conditions for the general location, and during the season, of the casualty.

(2) The same office will determine the actual weather and sea conditions at the general location, and at the time, of the casualty.

(3) The same office will compare the actual weather and sea conditions with the historical mean.

(4) If the actual weather and sea conditions were in excess of one standard deviation above the historical mean for the area on the date of the casualty, there is a presumption that the casualty was attributable to an act of God.

(5) The Office of Oceanic and Atmospheric Services will also make a determination about the availability of weather and sea conditions forecasts, which may be a relevant factor in the

amount of compensation pursuant to the provisions of § 258.35(e) for otherwise qualified acts of God.

(c) Non-qualifying casualties. (1) Unobserved fishing gear casualties which do not qualify for the presumptions of § 258.34(b) shall be judged upon the evidence made available by the claimant. If the presumptions in § 258.34(b) are not met because of the inability of the Chief, FSD, to collect the necessary information, the Chief, FSD, shall make a determination based upon the evidence made available by the claimant.

(d) Unobserved fishing gear casualty attributable to domestic vessels. There is no presumption for unobserved fishing gear casualties attributable to vessels of the United States.

(e) Observed casualties. The presumptions for unobserved fishing gear casualties shall not apply to observed fishing vessel or fishing gear casualties.

§ 258.35 Amount of compensation.

(a) General. The amount of compensation under this subpart is the amount of casualty under paragraph (b) of this section minus the sum of any deduction for the negligence of the applicant under paragraph (e) of this section and any insurance proceeds under paragraph (f) of this section.

(b) Amount of compensation. If the property concerned is determined by the Chief, FSD, to be repairable at a cost less than its depreciated replacement cost, the amount of the casualty is the repair cost. The amount of the casualty for property which is totally (actually or constructively) lost or destroyed is its depreciated replacement cost.

(c) Depreciated replacement cost. For purposes of this section the depreciated replacement cost is the present replacement cost of the property (at the time the claim is submitted) involved in the casualty, depreciated (on a straightline basis over the property's economically useful life) so as to exclude that portion of the replacement cost which represents the property's already used economically useful life. The present replacement cost is the

under

lower of the two submitted estimates required to be submitted §258.33(g).

(d) Economically useful life remaining. (1) If the age, condition, and value of individual units of fishing gear involved in the casualty cannot be established to the satisfaction of the Chief, FSD, the Chief, FSD, shall use the average remaining economically useful life for all units identified in the inventory required by § 258.33 in calculating the depreciated replacement cost.

(2) If the average remaining economically useful life of fishing gear involved in the casualty is less than the average remaining economically useful life of all the property in the inventory required by § 258.33, the average remaining economically useful life of the fishing gear in the casualty will be used as the basis for calculating the depreciated replacement cost.

Example No. 1

(i) Applicant claims to have lost 100 crab pots with various remaining economically useful lives averaging 2.5 years. The applicant's fishing gear inventory shows that the applicant owns 500 crab pots (including the 100 involved in the casualty) with various remaining economically useful lives averaging 3.5 years.

(ii) The replacement cost of the 100 pots involved in the casualty will be depreciated as if they each had a remaining economically useful life of 2.5 years.

(iii) If the present replacement cost of the pots is $500 each and they have an economically useful life when new of 5 years, the depreciated replacement cost of each pot will be $250 (or 50% of the replacement cost), since 2.5 years (or 50% of their new economically useful life) was regarded as remaining at the time of the casualty.

(iv) Thus, the compensation would be 100 pots at a depreciated replacement cost of $250 each, for a total of $25,000.

(3) If the average remaining economically useful life of the fishing gear involved in the casualty is more than the average remaining economically useful life of all the fishing gear in the inventory required by § 258.33,

the average remaining economically useful life of all the fishing gear in the inventory will be used as the basis for calculating the depreciated replacement cost.

Example No. 2

If the 100 lost crab pots described in example No. 1 under paragraph (d)(2) of this section, had an average remaining economically useful life of 4 years (instead of 2.5 years), then the 3.5year average remaining economically useful life of all the fishing gear in the inventory would be used as the basis for depreciating the cost of the replacement pots. Since 3.5 years is 70% of the new economically useful life (5 years) of the pots, the compensation would be $35,000 (70% of $500 equals $350 times 100 pots equals $35,000).

(e) Comparative negligence. In calculating the amount of compensation under this subpart, the amount of casualty under paragraph (b) of this section will be reduced proportionally to the extent that any negligence of the applicant (or the applicant's agents) contributed to the cause or extent of the casualty.

Example: If the applicant's total damages were $25,000 and 10 percent (10%) of the damages were the result of the applicant's negligence, the applicant would receive $22,500 in compensation. If the negligence of the applicant had caused 90% of the loss, $2,500 in compensation would be received.

(f) Insurance proceeds. For purposes of calculating the amount of compensation under this paragraph, the amount of compensation under paragraph (b) of this section will be reduced by the amount the applicant has, or reasonably would have, received from a commercial policy of full hull and machinery and protection and indemnity insurance, whether or not such insurance was in effect at the time the casualty occurred. Recovery will be allowed for a reasonable deductible as set forth in § 258.32(f).

§ 258.36 Initial determination.

(a) Time. Within 60 days of the receipt of a properly completed application, the Chief, FSD, shall make an

initial determination of the amount of any compensation to be paid the applicant.

(b) Contents. An initial determination shall state:

(1) If the application is disapproved, the reasons therefor; or

(2) If the application is approved, the amount of compensation and the basis upon which the amount was determined.

(c) Notice. The initial determination, along with the subrogation agreement (where applicable) provided for in §258.38, shall be mailed to the applicant.

§ 258.37 Final determination.

(a) Final determination. Unless appealed under paragraph (b) of this section, the initial determination of the Chief, FSD, shall become final 30 days after its issuance under § 258.36.

(b) Appeal. Any applicant may, within 30 days after the date of issuance of an initial determination under § 258.36, file with the Assistant Administrator at 3300 Whitehaven Street, Washington, D.C. 20235 a written request for review of the initial determination.

(c) Additional evidence. The applicant may submit to the Assistant Administrator written data relating to the initial determination no later than 30 calendar days after the filing of a petition under paragraph (b) of this section.

(d) Appellate determination. The Assistant Administrator shall issue a final determination on an appealed application within 60 days of the submission of any written data by the applicant under paragraph (c) of this section. A copy of the final determination shall be mailed to the applicant.

§ 258.38 Subrogation.

(a) After approval of an applicant's claim, but before compensation is disbursed, the applicant shall (when applicable to the cause to which the causalty was attributed) execute a subrogation agreement in a form satisfactory to the Chief, FSD, which:

(1) Assigns to the United States all rights which the applicant may have to proceed against any party who may be liable for damages with respect to

any part of a casualty for which compensation is being made hereunder, and

(2) Gives, as a condition of continuing to retain the compensation, the applicant's undertaking to assist the Chief, FSD, in any reasonable way to pursue collection of the subrogated rights.

§ 258.39 Payments.

(a) Amount. The Chief, FSD, shall compensate the applicant in the amount calculated under § 258.35 minus the approval fee as determined according to paragraph (b) of this section. Payment shall be made to the applicant upon receipt (where required) of a properly executed subrogation agreement under § 258.38.

(b) Approval fee. The approval fee is 4 percent (4%) of the amount of compensation calculated under § 258.35, but in no case shall the sum of the approval fee and the filing fee under §258.33(k) exceed $1,000.

§ 259.1 Execution of agreements and deposits made in a Capital Construction Fund.

In the case of a taxable year of a taxpayer beginning after December 31, 1969, and before January 1, 1972, the rules governing the execution of agreements and deposits under such agreements shall be as follows:

(a) A capital construction fund agreement executed and entered into by the taxpayer on or prior to the due date, with extensions, for the filing of his Federal income tax return for such taxable year or years will be deemed to be effective on the date of the execution of such agreement or as of the close of business of the last regular business day of each such taxable year or years to which such deposit relates, whichever day is earlier.

(b) Notwithstanding the provisions of paragraph (a) of this section, where: (1) For taxable years beginning after December 31, 1969, and prior to January 1, 1971, an application for a capital construction fund agreement is filed by a taxpayer prior to January 1, 1972, and a capital construction fund agreement is executed and entered into by the taxpayer prior to March 1, 1972, and (2) for taxable years beginning after December 31, 1970, and prior to January 1, 1972, an application for a capital construction fund agreement is filed by a taxpayer prior to January 1, 1973, and a capital construction fund agreement is executed

and entered into by the taxpayer prior to March 1, 0973 (or, if earlier, 60 days after the publication of final joint regulations under section 607 of the Merchant Marine Act, 1936, as amended); then such a capital construction fund agreement will be deemed to be effective as of the close of business of the last regular business day of each such taxable year or years to which such deposit related.

(c) (1) Deposits made in a capital construction fund pursuant to such an agreement within 60 days after the date of execution of the agreement, or on or prior to the due date, with extensions, for the filing of his Federal income tax return for such taxable year or years, whichever date shall be later, shall be deemed to have been made on the date of the actual deposit or as of the close of business of the last regular business day of each such taxable year or years to which such deposit relates, whichever day is earli

er.

(2) Notwithstanding

paragraph (c)(1) of this section, for taxable years beginning after December 31, 1970, and ending prior to January 1, 1972, deposits made later than the last date permitted under paragraph (c)(1) of this section but on or before January 9, 1973, in a capital construction fund pursuant to an agreement with the Secretary of Commerce, acting by and through the Administrator of the National Oceanic and Atmospheric Administration, shall be deemed to have been made on the date of the actual deposit or as of the close of business of the last regular business day of such taxable year, whichever is earlier.

(d) Nothing in this section shall alter the rules and regulations governing the timing of deposits with respect to existing capital and special reserve funds or with respect to the treatment of deposits for any taxable year or years other than a taxable year or years beginning after December 31, 1969, and before January 1, 1972.1

'The phrase "existing capital and special reserve funds" does not refer to the Capital Construction Fund program but rather to funds established with the Maritime Administration prior to the amendment of the Continued