(a) "Alternative claim" means any claim not made under this subpart which seeks compensation for the same loss, damage, or destruction of a fishing vessel or fishing gear as a claim under this subpart.

(b) "At fault" means negligence or willfulness, through action or inaction, causing the loss, damage, or destruction involved.

(c) "Fishermen's Protective Zone" means: (1) The area adjacent to the 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.

(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 was 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.

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

[43 FR 45870, Oct. 4, 1978, as amended at 48 FR 57302, Dec. 29, 1983]

§ 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 Secretary from the owner of such vessel or gear.

(d) Interest rate. The interest rate for loans will be 32 percentum per annum.

(e) Loan fees. A fee for granting the loan shall be charged and deducted from the proceeds of the loan. The amount of this fee shall be equal to the difference during the loan's first year between the loan's 31⁄2 percent interest rate and the approximate cost of Government borrowings of about a 7-year maturity.

(f) Payment. The Secretary may require that the proceeds of a loan be escrowed and subsequently paid directly to the supplier of goods or services in connection with the replacement or repair of vessels or gear after the Secretary's receipt of all properly executed loan documents and upon presentation of proper invoices and authorizations to pay. Payment may be made to loan recipients if circumstances warrant.

(g) Assignment. Loan recipients shall assign, or agree to assign, to the Secretary any rights they might have to recover moneys or damages from any person for the loss, damage, or destruction for which a loan is made.

(h) Repayment or cancellation. Loans shall be repaid or canceled in accordance with § 258.28.

(i) Collection efforts. Loan recipients shall agree to assist the Secretary's efforts under § 258.29.

(j) Other terms and conditions. Loans shall be subject to such other terms and conditions as the Secretary deems necessary and appropriate.

§ 258.26 Determination of amount of loss, damage, or destruction.

(a) Value of property. In the case of property which has been lost or destroyed, the Secretary shall determine the value of the loss or destruction by using the replacement cost of such property as if it had been the original acquisition cost of such property and by depreciating such replacement cost on a straight line basis over the economically useful life of such property. In the case of property which is capable of being repaired, the Secretary shall determine the value of damage in light of the estimates of repair submitted under § 258.23(d), but in no event shall damage determinations exceed the depreciated, present, replacement cost of the property concerned. Example: 100 lobster pots with a present replacement cost of $100 each were totally lost. Each pot had an economically useful life of 36 months and was 18 months old, leaving a remaining economically useful life of 18 months. The value of loss would be calculated as follows:

If the casualty were confined to property which could be repaired, the value of the casualty would be the actual cost of repair up to, but not exceeding, the depreciated, present, replacement cost of $5,000 as calculated above. If partial loss, damage, or destruction occurs, and the applicant is unable to determine which receipts of purchase pertain to the lost, damaged, or destroyed gear, the applicant must submit proof of purchase for all gear involved in the incident in order that an averaging method may be used to determine the depreciation. If the gear involved was purchased on several dates, the number of months between the first and last purchases will be divided in half and depreciation will

the

(a) Investigation. Following granting of each loan, the Secretary shall investigate the circumstances of the incident resulting in the loss, damage, or destruction concerned in an attempt to ascertain the facts required for a determination of whether or not the loan recipient was at fault for the loss, damage, or destruction.

(b) Factors to be considered. In making a determination of fault, the Secretary shall take into account:

(1) Evidence submitted with the application in accordance with § 258.23; (2) whether the loan recipitent, prior to the incident involved, reported the location of the fishing gear to the U.S. Coast Guard for broadcasting to foreign vessels in accordance with 50 CFR 611.11 (failure to do so will create a presumption that the loan recipient was at fault); and (3) such other matters as the Secretary may deem appropriate.

(c) Notification of preliminary determination. Upon completing the investigation, the Secretary shall make a preliminary determination of whether it is possible to ascertain who was at fault for the incident and, if so, whether the loan recipient was at fault and notify the loan recipient of these determinations.

(d) Review of record. The loan recipient may examine the complete record upon which the determinations of the Secretary are made under this section. (e) Comments. The loan recipient shall have 30 calendar days after the receipt of notification under paragraph (c) of this section to submit any comments, data, or other information concerning the preliminary determination of the Secretary. All timely com

ments, data, or other information shall be considered by the Secretary prior to making a final determination.

(f) Final determination. As soon as practicable after the termination of the period described in paragraph (e) of this section, the Secretary shall make a final determination of fault and shall notify the loan recipient of the determination.

§ 258.28 Loan repayment or cancellation.

Based upon the final determinations made under § 258.27 the Secretary shall:

(a) If it is determined that the loan recipient was not at fault, cancel repayment of the loan and refund any principal and interest payments made thereon;

(b) If it is determined that the loan recipient was at fault, require that the loan be repaid prior to its original term within a reasonable time as determined by the Secretary, taking into account its original duration and the percentage of fault attributable to the loan recipient; or

(c) If it cannot be determined whether or not the loan recipient was at fault, continue the loan according to its original terms.

8 258.29 Government served]

collection.

[Re

Subpart C-Compensation for Fishing Vessel or Fishing Gear Damage Attributable to Other Vessels in a U.S. Fishery

AUTHORITY: Pub. L. 95-376, Pub. L. 96-289, and Pub. L. 96-561; 92 Stat. 715, (22 U.S.C. 1980).

SOURCE: 46 FR 58805, Dec. 3, 1981, unless otherwise noted.

§ 258.30 Purpose and scope.

(a) This subpart contains the regulations for compensating the owners or operators of United States commercial fishing vessels or fishing gear for casualties occurring on or after December 22, 1980. Eligible vessel casualties are those which are attributable to any foreign vessel (or its crew or fishing gear). Eligible fishing gear casualties are those which are attributable to any other vessel (of its crew or fishing

gear), whether or not such vessel is a vessel of the United States.

(b) For regulations governing casualties occurring before January 1, 1979, see Subpart B.

§ 258.31 Definitions.

Unless the context otherwise requires, in this subpart:

(a) "Assistant Administrator" means the Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration.

means loss,

(b) "Casualty(ies)" damage, or destruction of fishing vessels which is attributable to foreign vessels (or their crew or fishing gear) or loss, damage, or destruction of fishing gear which is attributable to any other vessels (or their crew or fishing gear).

(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