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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.

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SOURCE: 50 FR 1860, Jan. 14, 1985, unless otherwise noted.

§ 258.1 Purpose.

These rules clarify procedures for the administration of section 7 of the Fishermen's Protective Act of 1967. Section 7 establishes a Fishermen's Guaranty Fund to reimburse owners and charterers of United States commercial fishing vessels for certain losses and costs caused by the seizure

and detention of their vessels by foreign countries under certain rights or claims not recognized by the United States.

§ 258.2 Definitions.

For the purpose of this part, the following terms mean

(a) Act. The Fishermen's Protective Act of 1967, as amended (22 U.S.C. 1977 et seq.).

(b) Capital equipment. Equipment or other property which is depreciated for income tax purposes.

(c) Citizen. Any person who is a United States citizen, any State, or any corporation, partnership, or association organized under the laws of any state which meets the requirements for documenting vessels in the U.S. coastwise trade.

(d) Depreciated replacement cost. The present replacement cost of capital equipment after being depreciated on a straightline basis over the equipment's depreciable life, which is standardized at ten years.

(e) Downtime. The time a vessel normally would be in port or transiting to and from the fishing grounds.

(f) Expendable items. Any property which is maintained in inventory or expensed for tax purposes.

(g) Fund. The Fishermen's Guaranty Fund established in the U.S. Treasury under section 7(c) of the Act (22 U.S.C. 1977(c)).

(h) IATTC. Inter-American Tropical Tuna Commission.

(i) Other direct charge. Any levy which is imposed in addition to, or in lieu of, any fine, license fee, registration fee, or other charge.

(j) Owner. The owner or charterer of a commercial fishing vessel.

(k) Secretary. The Secretary of Commerce or his designee.

(1) Seizure. Arrest and detention of a fishing vessel by a foreign country for allegedly illegal fishing.

(m) U.S. fishing vessel. Any private vessel documented or certificated under the laws of the United States as a commercial fishing vessel.

§ 258.3 Eligibility.

Any owner or charterer of a U.S. fishing vessel is eligible to apply for an agreement with the Secretary provid

ing for a guarantee in accordance with section 7(a) of the Act.

§ 258.4 Applications.

(a) Applicant. An eligible applicant for a guaranty agreement must

(1) Own or charter a U.S. fishing vessel, and;

(2) Submit with his application the fee specified in § 258.6 of this part.

(b) Application forms. Application forms may be obtained by writing to the Financial Services Division, National Marine Fisheries Services, Washington, D.C. 20235 or by calling (202) 634-4688.

(c) Where to apply. Applications must be submitted to the Financial Services Division, National Marine Fisheries Service, Washington, D.C. 20235.

(d) Application approval. Application approval will be by the Secretary's execution of the guaranty agreement.

(Approved by the Office of Management and Budget under control number 06480095)

§ 258.5 Guaranty agreement.

(a) Period in effect. Agreements are effective for a fiscal year beginning October 1 and ending on the next September 30. Applications submitted after October 1 are effective from the date the application was mailed (determined by the postmark) through September 30.

(b) Guaranty agreement transfer. A guaranty agreement may, with the Secretary's consent, be transferred when a vessel which is the subject of a guaranty agreement is transferred to a new owner if the transfer occurs during the agreement period.

(c) Guaranty agreement renewal. A guaranty agreement may be renewed for the next agreement year without resubmitting an application form if the appropriate fee for the next year is submitted before expiration of the existing agreement. Renewals are subject to the Secretary's approval.

(d) Provisions of the agreement. The agreement will provide for reimbursement for certain losses caused by foreign countries' seizure and detention of U.S. fishing vessels on the basis of

claims to jurisdiction which are not recognized by the United States, or on the basis of claims to jurisdiction recognized by the United States but exercised in a manner inconsistent with international law as recognized by the United States; or, in the case where a general claim of exclusive fishery management authority is recognized by the United States and a U.S. fishing vessel is seized on the basis of conditions and restrictions which:

(1) Are unrelated to fishery conservation and management;

(2) Fail to consider traditional practices of U.S. fishing vessels;

(3) Are more onerous than those applied to foreign fishing vessels by the United States in its Fishery Conservation Zone;

(4) Fail to allow U.S fishing vessels equitable access to fishery resources under the foreign countries' exclusive management authority.

§ 258.6 Fees.

(a) General. Fees provide for administrative costs and at least one third of projected claims. Fees are set annually on the basis of past and anticipated claim experience. The annual agreement year for which fees are payable starts on October 1 and ends on the following September 30.

(b) Amount and payment. The amount of each annual fee or adjusted fee will be established by the Chief, Financial Services Divisions, by publication of a notice in the FEDERAL REGISTER. Each notice will establish the amount of the fee, when the fee is due, when the fee is payable, and any special conditions surrounding extension of prior agreements or execution of new agreements. Unless otherwise specified, agreement coverage will commence with the date of fee payment.

(c) Adjustment and refund. Fees may be adjusted at any time to reflect actual seizure and detention experience for which claims are anticipated. Failure to submit adjusted fees will result in agreement termination as of the date the adjusted fee is payable. No fees will be refunded after an agreement is executed by the Secretary.

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(a) Payment will be made when(1) A covered vessel is seized by a foreign country under conditions specified in the Act and the guaranty agreement; and

(2) The incident occurred during the period the guaranty agreement was in force for the vessel involved; unless there is clear and convincing credible evidence that the seizure did not meet the requirements of the Act.

(b) Payments will be made to the owner for

(1) All actual costs (except those covered by section 3 of the Act or reimbursable from some other source) incurred by the owner during the seizure or detention period as a direct result thereof, including:

(i) Damage to, or destruction of, the vessel or its equipment;

(ii) Loss or confiscation of the vessel or its equipment; or

(iii) Dockage fees or utilities.

(2) The market value of fish or shellfish caught before seizure of the vessel and confiscated or spoiled during the period of detention, and;

(3) Up to 50 percent of the vessel's gross income lost because of the seizure and detention.

(c) Exceptions. No payment will be made from the Guaranty Fund for a seizure which is:

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advice and consent of the Senate and was in force and effect for the United States and the seizing country at the time of the seizure;

(4) Which occurs before the guaranty agreement's effective date or after its termination;

(5) For which other possible sources of alternative reimbursement have not first been fully pursued (for example, the insurance coverage required by the agreement and valid claims under any law), or;

(6) For which material requirements of the guaranty agreement, the Act, or the program regulations have not been fully fulfilled.

§ 258.8 Claim procedure.

(a) Where and when to apply. Claims must be submitted to the National Marine Fisheries Service, Financial Services Division, Washington, DC 20235. They must be submitted within 90 days after the vessel's release. Requests for extension of the filing deadline must be in writing and approved by the Chief, Financial Services Division.

(b) Contents of claim. All material allegations of a claim must be supported by documentary evidence. Foreignlanguage documents must be accompanied by an authenticated English translation. Claims must include the following:

(1) The captain's sworn statement about the exact location and activity of the vessel when seized;

(2) Certified copies of charges, hearings, and findings by the government seizing the vessel;

(3) A detailed computation of all actual costs directly resulting from the seizure and detention, supported by receipts, affidavits, or other documentation acceptable to the Chief, Financial Services Division;

(4) A detailed computation of lost income claimed, including:

(i) The date and time seized and released,

(ii) The number of miles and steaming time from the point of seizure to the point of detention,

(iii) The total fishing time lost (explain in detail if lost fishing time claimed is any greater than the elapsed time from seizure to the time

required after release to return to the point of seizure),

(iv) The tonnage of catch on board at the time of seizure,

(v) The vessel's average catch-perday's fishing for the three calendar years preceding the seizure,

(vi) The vessel's average downtime between fishing trips for the three calendar years preceding the seizure,

(vii) The price-per-pound for the catch on the first day the vessel returns to port after the seizure and detention, and;

(5) Documentation for confiscated, damaged, destroyed, or stolen equipment, including

(i) The date and cost of acquisition, supported by invoices or other acceptable proof of ownership, and

(ii) An estimate from a commercial source of the replacement or repair cost.

(c) Burden of proof. The claimant has the burden of proving all aspects of the claim.

(Approved by the Office of Management and Budget under control number 06480095)

§ 258.9 Amount of award.

(a) Lost fishing time. Compensation is limited to 50 percent of the gross income lost as a direct result of the seizure and detention, based on the value of the average catch-per-day's fishing during the three most recent calendar years immediately preceding the seizure. Only the following two methods of computing lost fishing time compensation are acceptable. Claimants may use either method. Claimants for tuna vessel seizures must use IATTC's catch statistics.

(1) First method (this method must use annual catch divided by 365 days to calculate catch-per-day):

(i) Multiply days lost as a direct result of seizure and detention by average catch-per-day during last three calendar years,

(ii) Multiply amount in paragraph (a)(1)(i) of this section by market price, and

(iii) Divide by two to get the compensable amount, or;

(2) Second method (always use IATTC statistics for all calculations):

(i) Subtract tonnage aboard at time of seizure from highest trip tonnage during last three calendar years,

(ii) Divide amount in paragraph (a)(2)(i) of this section by average catch-per-day during last three calendar years to get remaining fishing days required to fill vessel,

(iii) Subtract amount in paragraph (a)(2)(ii) of this section from number of days detained,

(iv) If amount in paragraph (a)(2)(iii) of this section is negative or zero, multiply number of days detained by

average catch-per-day

during last three calendar years (if not, go on to (v)),

(v) If amount in paragraph (a)(2)(iii) of this section is positive and is equal to or less than average downtime, multiply amount in paragraph (a)(2)(ii) of this section by average catch-per-day during last three calendar years (if not, go on to paragraph (vi)),

(vi) If amount in paragraph (a)(2)(iii) of this section is positive and is greater than average downtime, subtract average downtime and multiply the sum of this amount and the amount in paragraph (a)(2)(ii) of this section by the average catch-per-day during last three calendar years (subtract additional downtime each time the sum computed in this manner exceeds average trip time during last three calendar years),

(vii) Multiply amount in paragraph (a)(2) (iv), (v), or (vi) of this section, whichever is applicable, by market price, and

(viii) Divide by two to get the compensable amount.

(b) Value of catch loss by weight class. Each seizure claim submitted must contain a copy of the catch landing receipt for the trip preceding the seizure. This document provides a detailed size and species mix of the catch and the price paid per weight class for each (e.g., yellowfin over 71⁄2 lbs. @ $1,200/ton and yellowfin under 71⁄2 lbs. @ $1,100/ton, etc.). The Secretary will determine from the catch landing receipt an average by weight class of the amount of catch on the trip prior to the seizure, apply this percentage to the average catch per day's fishing (IATTC's figure), and arrive at a

figure relating to the approximate catch for each applicable species. The following method will be used:

(1) The relative percentages for each weight class will be determined by dividing each weight class by the sum of them all, and;

(2) IATTC's catch rate will be multiplied by each weight class percentage to arrive at an average for each weight class. The average for each weight class will be multiplied by the relative price per pound (for each class) to determine the value per weight class.

(c) Stolen or confiscated property. Confiscation of property which the claimant was required to buy back from the confiscator is reimbursable by the State Department under section 3 of the Act. Any other property confiscated is reimbursable from this Guaranty Fund. Confiscated property is divided into the following categories:

(1) Compensation for confiscation of vessels, where no buy back has occurred, will be based on market value as determined by the Secretary;

(2) Compensation for capital equipment other than vessel, will be based on depreciated replacement cost.

(3) Compensation for expendable items will be 50 percent of their replacement cost; and

(4) Compensation for confiscated catch will be for full value, based on the price-per-pound on the first day the vessel returns to port after the detention.

(d) Fuel expense. Compensation for fuel expenses will be based on the purchase price, the time required to run to and from the fishing grounds, the detention time in port, and the documented fuel consumption of the vessel.

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