(c) "Chief, FSD", means Chief, Financial Services Division, National Marine Fisheries Service.

(d) "Commercial shipping lane" means any area designated for commercial shipping traffic by vessel tracklines shown on pilot charts published by the U.S. Defense Mapping Agency Hydrographic Center or vessel traffic separation lanes as depicted on U.S. National Ocean Survey nautical charts.

(e) "Compensable period" means that period after the discovery of the casualty between the date of order and receipt of replacement gear, or the date repair begins and ends (whichever is appropriate), or such other period as the Chief, FSD, determines to be reasonable.

(f) "Fishery" means: one or more stocks of fish which can be treated as a unit for purposes of conservation, management, and utilization and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics.

(g) "Fishery Conservation Zone" means the fishery conservation zone established by section 101 of the Magnuson Fishery Conservation and Management Act of 1976, as amended.

(h) "Fishing" means:

(1) The commercial catching, taking, or harvesting of fish; and

(2) Any operations at sea in support of, or in preparation for, any activity described in paragraph (h)(1) of this section. Fishing does not include any scientific research activity conducted by a scientific research vessel.

(i) "Fishing gear" means any equipment or appurtenance which is:

(1) Used for, or of a type which is normally used for, fishing by a fishing vessel, whether or not attached to the vessel; and

(2) Not considered a part of the fishing vessel for the purpose of recovery under a commercial policy of full hull and machinery and protection and indemnity insurance.

(2) Aiding or assisting one or more vessels at sea in the performance of any activity relating to fishing including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing.

(k) "Foreign vessel” means a vessel other than a vessel of the United States, regardless of such vessel's trade or use.

(1) "Rebuttable presumption” means a presumption which may be overcome by additional evidence which may be available.

economic loss"

(m) "Resulting means the gross income that an eligible fishing vessel owner or operator will lose, as a direct result of the casualty with respect to which a claim is filed, (1) on the vessel trip during which the casualty was discovered; (2) if appropriate under § 258.36(a)(2), on the next vessel trip after that during which the casualty was discovered; and (3) on later vessel trips which would normally have been made at full operational capacity during the compensable period (as defined under paragraph (e) of this section) because of not being able to fish or having to fish at a reduced level of effort.

(n) "Trip ticket" means a receipt documenting the amount and value of fish sold from the catch of a fishing vessel.

(0) "United States fishery" means any fishery subject to the exclusive fishery management authority of the United States under the Magnuson Fishery Conservation and Management Act of 1976, as amended.

(p) "United States fishing vessel" means any fishing vessel which is a vessel of the United States.

(q) "Unobserved fishing gear casualty" means a fishing gear casualty which was not observed by the applicant or any other witness known to the applicant.

(r) "Vessel of the United States" means any vessel documented under the laws of the United States or registered under the laws of any State, regardless of such vessel's trade or use.

§ 258.32 Eligibility.

(a) Applicants. Only the owner or operator of a United States fishing

vessel or fishing gear is eligible for compensation under this subpart.

(b) Dates. Casualties occurring on or after December 22, 1980, are eligible for compensation under this subpart. Casualties occurring on or after January 1, 1979, and before December 22, 1980, are governed by program regulations published October 25, 1979, and subsequent amendments published before December 22, 1980. See Subpart B of this part for regulations governing casualties occurring before January 1, 1979.

(c) Casualty to fishing vessels. A casualty to a United States fishing vessel is eligible for compensation under this subpart if it occurred in a United States fishery and is attributable to any foreign vessel (or its crew or fishing gear).

(d) Casualty to fishing gear. A casualty to fishing gear is eligible for compensation under this subpart if it occurred in a United States fishery and is attributable to any other vessel (or its crew or fishing gear, even if such gear was not attached to the vessel), whether or not such vessel is a foreign vessel.

(e) Reporting requirement. A casualty to fixed fishing gear attributable to any other vessel is not eligible for compensation unless the claimant has met all mandatory reporting requirements regarding gear deployment set forth in any applicable Fishery Management Plan or other Federal regulation. Fishermen are encouraged to participate in voluntary gear reporting programs. A record of gear deployment broadcast to other vessels may be considered evidence of prudent care on the part of a fisherman to notify other vessels in a particular area of the presence of that fisherman's gear.

(f) Insurance. Compensation for property loss under this subpart will not be made for any part of a casualty which would have been recoverable under a commercial policy of full hull and machinery and protection and idemnity insurance, regardless of whether or not such insurance was in effect. The Fund will, however, compensate for United States fishing vessel casualties caused by foreign vessels (or their crew or fishing gear) to the extent of a reasonable deductible

under full hull and machinery and protection and indemnity insurances even if such insurances were not in effect. It will also compensate for economic loss resulting from fishing vessel casualties.

(g) Commercial shipping lanes. No casualty incurred in a commercial shipping lane caused by a vessel transiting such lane is eligible for compensation under this subpart.

§ 258.33 Applications.

(a) Who may apply. Applications under this subpart shall be submitted by the owner or operator whose United States fishing vessel or fishing gear suffered the casualty and the resulting economic loss for which compensation is sought.

(b) Where to apply. Applications shall be submitted to the Financial Services Division, National Marine Fisheries Service, Washington, DC 20235.

(c) Time requirement. After June 30, 1980, applications must be submitted to the Financial Services Division within 90 calendar days of the date the owner or operator became aware of the casualty. Applications sent by mail must be postmarked during that 90-day period. Applications made later than 90 days are not eligible. The 90day filing requirement is satisfied by the filing of an improperly completed or incomplete application.

(d) Contents. (1) Applications may be submitted on forms provided by the Financial Services Division when such forms are available. Until such forms are available, applications shall include the information required by paragraphs (d) through (1) of this section.

(2) Each application shall be signed by the applicant and shall state the applicant is the owner or operator of the United States fishing vessel or fishing gear involved in the casualty.

(3) Each application shall include as attachments the affidavits and supporting documentation required by this section. For the purposes of this section, an affidavit is a written statement sworn to or affirmed before a notary public or other official empowered to administer oaths.

(e) Affidavit of vessel master. Each application shall include an affidavit of the master of the United States fishing vessel which suffered, or whose fishing gear suffered, the casualty and the resulting economic loss for which compensation is sought. If more than one master was involved at any material time before, during, or after the casualty, the application shall include an affidavit from each master. The affidavit shall set forth a full statement of all facts and circumstances before, during, and after the incident resulting in the casualty and the resulting economic loss for which compensation is sought, including:

(1) A full description of the nature of the fishing operations engaged in prior to the casualty. The description of casualties to fixed fishing gear shall ordinarily include a diagram and accompanying explanation showing the various components of the gear involved in the casualty and how they were arranged while operating.

Example. The description for a casualty to fixed fishing gear should explain:

(i) How the gear was fixed, anchored, or otherwise prevented from drifting and with what size, weight, type, construction material, and number of anchors or other means of fixation;

(ii) How many pots, traps, or other units of gear of what size, weight, type, and construction material were fixed to the gear; how they were fixed; and at what intervals; (iii) How the gear was buoyed with what size, shape, type, and construction material buoys, and how many buoys were used at what intervals on the gear set;

(iv) What size, weight, type, grade, and construction material lines, ropes, or cables were used;

(v) What provisions were made to ensure the gear could be seen by other vessels;

(vi) What provisions were made to ensure the gear could be located and retrieved;

(vii) At what depth the gear operated, its length, and what area it covered;

(viii) What weather or sea conditions the gear was designed to withstand; and

(ix) Any other relevant details of the casualty.

(2) A full description of the nature and extent of loss, damage, or destruction involved in the casualty, including photographs of the damage where possible.

(3) The time, date, and location (in latitude and longitude coordinates or

Loran C readings) of the incident resulting in the casualty.

(4) If the casualty was not observed at the time it happened, include:

(i) The time, date, and location when the gear was first deployed;

(ii) The time, date, and location when the gear was last observed to be in a sound state (if different from the time and date of its deployment);

(iii) The time, date, and location when the casualty first became known; and

(iv) A full statement (to the best of applicant's knowledge) of the weather and sea conditions which existed during the period after deployment and before first knowledge of the casualty.

(5) If the casualty was observed, a full description of the vessel which caused the casualty (for instance, the vessel's size, type, flag, name, number, color of house or hull, and other identifying characteristics) and a full description of such vessel's and/or its crew's action before, during, and after the casualty.

(6) A full description of the actions of the applicant's fishing vessel and its crew before, during, and after the casualty, including all circumstances involving deployment of any fishing gear involved in the casualty and locating and retrieving it, or all attempts at locating and retrieving it.

(7) A full statement of the reasons for believing the casualty was caused by another vessel (or its crew or gear) rather than by weather and sea conditions or by other ineligible causes (for example, defective deployment, defective retrieval, or other circumstances which constitute normal operating contingencies);

(8) A full inventory of all property involved in the casualty, including: the number of all components lost, damaged, or destroyed; their size, type, grade and construction material; their age; their useful economic life; whether the damage was total or repairable (and, if a combination of both, what components were totally 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 fish

ing 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 the date of the casualty and must include the lost, damaged, or destroyed fishing gear. 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 or other acceptable proof of ownership for such gear shall be submitted.

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

(h) Documentation of resulting economic loss. Each application shall include proper and complete documentation of all facts necessary to substantiate the resulting economic loss as defined in § 258.31(m).

(1) In support of any claim for economic loss sutained on the vessel trip during which the casualty was discovered, the claimant shall submit:

(i) Copies of trip tickets (or other suitable documentation of gross income) for the three vessel trips immediately before that during which the casualty was discovered or, if these are not available, documentation of gross income for three other vessel trips nearest in time to that during which the casualty was discovered;

(ii) A statement of the number of gear units (traps, longlines, pots, gillnets, etc.) hauled on each of the three vessel trips; or if the casualty involves mobile gear, a statement of fishing time involved on each of the three vessel trips; and

(iii) If available, documentation (such as copies of relevant pages from the vessel's log book) supporting the statement of the number of gear units hauled or time involved on each of the three vessel trips.

(2) In support of any claim for resulting economic loss sustained on the next vessel trip after that on which the casualty was discovered, the applicant shall submit:

(i) A copy of a trip ticket (or other suitable documentation of gross income) for the vessel trip; and

(ii) A statement of the number of operable gear units in the applicant's total inventory.

(3) To establish the compensable period for resulting economic loss sustained following the next vessel trip after that during which the casualty was discovered, the claimant shall submit documentation establishing

the date of order of the replacement gear and the date of its receipt, or the date repair began and ended (whichever is appropriate). Appropriate documentation may consist of purchase orders, bills of lading, or statements from commercial repair or supply

sources.

(4) In support of any claim for resulting economic loss sustained during the compensable period, the applicant shall submit:

(i) If fishing is continued at a reduced level, copies of trip tickets (or other suitable documentation of gross income) for vessel trips made during the compensable period, along with a statement of the number of gear units (traps, longlines, pots, gillnets, etc.) deployed and hauled during each trip, and any available documentation (such as copies of relevant pages from the vessel's log book) supporting the statement of the number of gear units deployed and hauled during each trip;

(ii) If fishing is discontinued because of the casualty, copies of trip tickets (or other suitable documentation of gross income) for vessel trips made the previous year during the period corresponding to the compensable period, along with a statement of the number of gear units (traps, longlines, pots, gillnets, etc.) deployed during each trip and the number hauled during each trip, and any available documen

tation (such as copies of relevant pages from the vessel's log book) supporting the statement of the number of gear units deployed and hauled during each trip.

(i) 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 material information possessed by such witness.

(j) 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 retrieved before or after a decision is made on a claim.

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

(1) Filing fee. Each application for each casualty shall include a check or money order made payable to the National Marine Fisheries Service for a filing fee of $75. The filing fee is nonrefundable, except when the claim is withdrawn because the applicant has received or will receive compensation from another source.

(m) Incomplete and abandoned applications. All applications for compensation for property loss or for resulting economic loss under this subpart must be filed within 90 days after the date of discovery of the casualty. When necessary, however, additional time, as determined reasonable by the Chief, FSD, will be allowed to enable applicants to submit information and documentation required for the computation of resulting economic loss. As soon as practicable after receipt of an incomplete or improperly completed application, the Chief, FSD, shall so notify the applicant.

(1) If the application is incomplete or improperly completed with regard to the claim for compensation for actual loss, damage, or destruction, the Chief, FSD, shall notify the applicant, and the applicant shall have 60

calendar days following the date of notification to correct the deficiency. If the applicant without good cause fails to correct the deficiency within such 60-day period, the application will be considered abandoned.

(2) If the application is incomplete or improperly completed with regard to the claim for compensation for resulting economic loss, the Chief, FSD, may grant the applicant additional time as is deemed reasonable to correct the deficiency. If the applicant without good cause fails to correct the deficiency of the claim for resulting economic loss within the additional time allowed, the application will be considered abandoned.

(3) If a claim is considered abandoned because of the failure of the applicant to correct a deficiency after notice from the Chief, FSD, the claim shall not be eligible for compensation under this subpart.

(4) An application may be amended at any time before issuance of the initial determination specified in § 258.37. The Chief, FSD, will then make an initial determination on the application, as amended.

(Approved by the Office of Management and Budget under control number 06480094)

[46 FR 58805, Dec. 3, 1981, as amended at 48 FR 57302, Dec. 29, 1983]

§ 258.34 Rebuttable presumption of causation and proof of casualty.

(a) Proof of casualty. An applicant seeking compensation for a fishing vessel or gear casualty must submit evidence:

(1) That a casualty actually occurred; evidence of the occurrence may consist of affidavits of material witnesses (affidavits should be submitted by the vessel's Master and its crew);

(2) Of ownership of the vessel or gear involved in the casualty; evidence of gear ownership may consist of receipts, itemized income tax statements, cancelled checks, or affidavits of sellers; and

(3) That the gear involved in the casualty was deployed in conformity with customary usage and practice.