AUTHORITY: Sec. 10, 74 Stat. 214, as amended; 46 U.S.C. 1410 (1964).

SOURCE: 31 FR 16050, Dec. 15, 1966, unless otherwise noted.

§ 257.1 Basis and purpose.

(a) The Act of June 12, 1960 (Pub. L. 86-516), as amended by the U.S. Fishing Fleet Improvement Act (Pub. L. 88-498) authorizes the Secretary of the Interior to pay a subsidy for the construction of fishing vessels in shipyards of the United States and requires that this be done only after Notice and Hearing.

(b) The purpose of this part is to establish rules of practice and procedure for the notice and hearing.

§ 257.2 Definitions.

Definitions shall be the same as in Part 256 of this subchapter.

§ 257.3 Scope of rules.

The regulations in this part govern the procedure in hearings subject to Part 256 of this subchapter. These hearings are subject to the Administrative Procedure Act (5 U.S.C. 1003, et seq.) and Practice Before The Department of the Interior (43 CFR Part 1). The regulations shall be construed to secure the just, speedy, and inexpensive determination of every proceeding with full protection for the rights of all parties therein.

§ 257.4 Mailing address.

Documents required to be filed in, and correspondence relating to, proceedings governed by the regulations in this part shall be addressed to the Director, Bureau of Commercial Fisheries, Department of the Interior, Washington, D.C. 20240.

§ 257.5 Authentication.

All rules, orders, determinations, and decisions of the Secretary shall be signed by the Secretary.

§ 257.6 Inspection of records.

The files and records of these hearings, except those held by the Secretary for good cause to be confidential, shall be open to inspection and copying as follows:

(a) All pleadings, motions, depositions, correspondence, exhibits, transcripts of testimony, exceptions, briefs, and decisions in any formal proceeding under this part may be inspected and copied in the office of the Chief, Branch of Loans and Grants, Bureau of Commercial Fisheries, Department of the Interior, Washington, D.C. 20240.

(b) Orders, rules, rulings, opinions, determinations, and decisions may be inspected in the office of the Chief, Branch of Loans and Grants, except those held by the Secretary for good cause to be confidential and not cited as precedents.

§ 257.7 Appearance and practice.

(a) A party may appear in person or by an officer, partner or regular employee of the party; by or with counsel or as otherwise permitted by 43 CFR Part 1 in any proceeding under the regulations in this part. A party may offer testimony, produce and examine witnesses, and be heard upon brief and at oral argument if oral argument is granted by the Presiding Officer. Attorneys at law who are admitted to practice before the Federal Courts or before the courts of any State or possession of the United States, may represent a party as counsel.

(b) Persons who appear at any hearing shall deliver a written notice of appearance to the official reporter, stating for whom the appearance is being made. The Presiding Officer may require a person making an appearance in a representative capacity to show his authority to act in such capacity. The written appearance shall be made a part of the record.

§ 257.8 Parties.

(a) The term "party" shall include any natural person, corporation, association, firm, partnership, trustee, receiver, cooperative, or government agency determined by the Presiding Officer as having an interest in the proceedings. A party making an application shall be designated as "applicant." A party whose petition for leave to intervene is granted shall be designated an "intervenor." Only a party as designated in this section may intro

duce evidence or examine witnesses at hearings.

(b) For an intervenor to prove an interest in the hearings he must show that there is a reason for belief that the operation of the vessel described in the application will cause economic injury or hardship to efficient vessel operators already operating in the fishery in which it is proposed that the vessel be operated.

§ 257.9 Forms, execution and service of documents.

(a) All papers to be filed under the regulations in this part shall be clear and legible; and shall be dated, signed in ink, contain the docket description and title of the proceeding and the title, if any, and the address of the signatory. Five copies of all papers are required to be filed. Documents filed shall be executed by (1) the person or persons filing same, (2) by an authorized officer thereof if it be a corporation or, (3) by an attorney or other person having authority with respect thereto.

(b) All documents, when filed, shall show that service has been made upon all parties to the proceeding. Such service shall be made by delivering one copy to each party in person or by mailing by first class mail, properly addressed with postage prepaid. When a party has appeared by attorney or other representative, service on such attorney or other representative will be deemed service upon the party. The date of service of document shall be the day when the matter served is deposited in the U.S. mail, shown by the postmark thereon, or is delivered in person, as the case may be.

(c) The original of every document filed under this part and required to be served upon all parties to a proceeding shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party to the proceeding. Certificates of service may be in substantially the following form:

I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by: (1) Mail

§ 257.10 Notice, pleadings, and replies.

(a) After acceptance of an application eligible on its face for construction subsidy or for the transfer of a vessel to a different fishery, the Director, Bureau of Commercial Fisheries, shall publish a notice of hearing in the FEDERAL REGISTER advising that a hearing will be held not less than 30 days after date of such publication and setting the time and place and providing details with respect to such hearing. Any person desiring to intervene and present evidence that the approval of the application will cause economic injury or hardship to efficient vessel operators must file, at least 10 days prior to the date set for the hearing (unless otherwise consented to by the Presiding Officer), a Petition of Intervention setting forth his interest. The hearing will be held in Washington, D.C., unless such a petition is received. If such a petition is received, the Presiding Officer may designate a different hearing site by telegraphic notice to the parties in the proceedings. If no petition to intervene is received, it will not be necessary for the applicant to appear at the hearing if he files all information in writing as required by the Presiding Officer.

(b) All petitions shall be in writing and shall state the petitioner's grounds of interest in the subject matter; the facts relied upon, the relief sought; and shall cite the authority upon which the petition rests. The petition shall be served upon all parties named therein or affected thereby. Answers to petitions must be filed within 5 days of the hearing date, unless otherwise consented to by the Presiding Officer.

(c) Amendments or supplements to pleadings may be allowed or refused in the discretion of the Presiding Officer. The Presiding Officer may direct a party to state its case more fully and in more detail by way of amendment. If a response to an amended pleading is necessary, it may be filed and served

within the time set by the Presiding Officer. Amendments or supplements allowed prior to hearing will be served in the same manner as the original pleadings.

(d) All motions and requests for rulings shall state the relief sought, the authority relied upon and the facts alleged. If made before or after the hearing, such motions shall be in writing. If made at the hearing, motions may be stated orally: Provided, however, That the Presiding Officer may require such motion to be reduced to writing and filed and served in the same manner as a formal motion. Oral argument upon a written motion, in which an answer has been filed, may be granted within the discretion of the Presiding Officer. Answers to a formal motion or pleading shall be filed and served in the same manner as the motion or pleading.

§ 257.11 Duties of Presiding Officer.

The Presiding Officer shall have the authority and duty to:

(a) Take or cause depositions to be taken.

(b) Rule upon proposed amendments or supplements to motions and pleadings.

(c) Regulate the course of the hearings.

(d) Prescribe the order in which evidence shall be presented.

(e) Dispose of procedural requests or similar matters.

(f) Hear and initially rule upon all motions and petitions before him.

(g) Administer oaths and affirmations.

(h) Examine witnesses.

(i) Rule upon offers of proof and receive competent, relevant, material, reliable, and probative evidence.

(j) Exclude irrelevant, immaterial, incompetent, unreliable, repetitious or cumulative evidence.

(k) Exclude cross-examination which is primarily intended to elicit self-serving declarations in favor of the wit

ness.

(1) Limit cross-examination to interrogatories which are required for a full and true disclosure of the facts in issue.

(m) Act upon petitions to intervene.

(n) Act upon submission of facts or arguments.

(0) Hear arguments at the close of testimony.

(p) Fix the time for filing briefs, motions and other documents to be filed in connection with hearings.

(q) Issue the initial decisions and dispose of any other pertinent matter that normally and properly arises in the course of proceedings.

§ 257.12 Hearing procedure.

(a) Unless authorized by the Presiding Officer, witnesses will not be permitted to read prepared testimony into the record. The evidentiary record shall be limited to factual and expert opinion testimony. Arguments will not be received in evidence but should be presented in opening and/or closing statements or in briefs to the Presiding Officer. All exhibits and responses to requests for evidence shall be numbered consecutively by the party submitting same and shall be filed with the Presiding Officer if filed during the hearing. If filed at some other time they should be filed in accordance with § 257.4 with one copy also being sent to each party to the hearing.

(b) Normally, the order of presentation at the hearing will be alphabetical in each of the following categories: (1) Applicant.

(2) Intervenors.

Rebuttal should be presented without any adjournment in the proceedings.

(c) Cross-examination shall be limited, subject to § 257.13(b), to the scope of the direct examination and to witnesses whose testimony is adverse to the party desiring to cross-examine. Only cross-examination which is necessary to test the truth and completeness of the direct testimony and exhibits will be permitted.

(d) A request for oral argument at the close of testimony will be granted or denied by the Presiding Officer in his discretion.

(e) Rulings of the Presiding Officer may not be appealed prior to, or during, the course of the hearings, except in extraordinary circumstances where prompt decision by the Secretary is necessary to prevent unusual

delay or expense, in which instance the matter shall be referred forthwith to the Secretary by the Presiding Officer. Any appeal shall be filed within 10 days from the date of the close of the hearing.

§ 257.13 Evidence.

(a) In any proceedings under this part, all evidence which is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, shall be admissible. Irrelevant and immaterial or unduly repetitious evidence shall be excluded.

(b) Each party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence; and to conduct such cross-examination as may be required for a full and true disclosure of the facts.

(c) At any time during the hearing the Presiding Officer may call for the production of further relevant and material evidence, reports, studies and analyses upon any issue, and require such evidence to be presented by the party or parties concerned, either at the hearing or adjournment thereof. Such material shall be received subject to appropriate motions, cross-examination and/or rebuttal. If a witness refuses to testify or produce the evidence as requested, the Presiding Officer shall forthwith report such refusal to the Secretary.

§ 257.14 The record.

(a) The Director, Bureau of Commercial Fisheries, will designate an official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and briefs filed therewith, shall be filed with the Director, Bureau of Commercial Fisheries. Transcripts of testimony will be available in any proceeding under the regulations of this part, and will be supplied by the official reporter to the parties and to the public, except when required for good cause to be held confidential, at rates fixed by the contract between the United States of America and the reporter. If the reporter is an employee of the Department of the Interior, the rate will be fixed by the

Director, Bureau of Commercial Fisheries.

(b) The transcript of testimony and exhibits, together with all papers and requests, including rulings and the initial decision filed in the proceeding, shall constitute the exclusive record for decision. The initial decision will be predicated on this same record, as will the final decision.

§ 257.15 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,

§ 258.1 Definition of terms.

For the purpose of this part, the following terms shall be construed, respectively, to mean and to include:

(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 engaged in catching, or catching and 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]

§ 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 National 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) The fees are established to provide for payment of the administrative costs and a minimum of at least 25 percent of the estimated claims to be paid from the fund. They are set on the basis of anticipated losses and prior experience. In order to meet the requirements of the Act, the fees may be adjusted from time to time by amendment to this part at any time, after appropriate notice, to become consistent with claims greater or lesser than estimated.

(b) Fees to be paid by an applicant for guarantee agreements for the agreement year October 1, 1978, through September 30, 1979, shall be as follows: For each vessel $60, plus $1.62 per gross ton, as listed on the