[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49966-49969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23436]
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DEPARTMENT OF STATE
22 CFR Part 33
[Public Notice 2425]
Fishermen's Protective Act Guaranty Fund Procedures
AGENCY: Department of State.
ACTION: Direct final rule.
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SUMMARY: The Department of State issues this direct final rule to
revise the administration of the Fishermen's Guaranty Fund under
section 7 of the Fishermen's Protective Act of 1967, as amended (the
Act). These revisions are made in partial fulfillment of the
Department's commitment that certain regulations would be modified or
eliminated as part of the President's Regulatory Reinvention
Initiative. The revisions are also need to reflect the recent
reauthorization of the Fishermen's Guaranty Fund, as well as amendments
related to fees charged for participation the Guaranty Fund, and to
reflect changes in the criteria for claims to be eligible for
compensation under the Act.
This revision provides a single set of guidelines for compensation.
EFFECTIVE DATE: This action is effective January 23, 1997, unless
notice is received on or before November 25, 1996 that adverse or
critical comments will be submitted. If the effective date is delayed,
timely notice will be published in the Federal Register.
ADDRESSES: Send comments to Bureau of Oceans and International
Environmental and Scientific Affairs, Office of Marine Conservation,
Room 7820, U.S. Department of State, Washington, DC 20520-7818.
FOR FURTHER INFORMATION CONTACT:
Stetson Tinkham, Office of Marine Conservation, (202) 647-3941.
SUPPLEMENTARY INFORMATION: Section 7 of the Act established the
Guaranty Fund, and Section 408 of Public Law 99-659, November 14, 1986,
transferred the administration of the Fund from the Department of
Commerce to the Department of State, effective October 1, 1986. The
Fishermen's Guaranty Fund regulations formerly appeared as Department
of Commerce regulations at 50 CFR Part 258.
The Guaranty Fund compensates U.S. fishing vessel owners who have
entered into guaranty agreements for certain losses caused by the
seizure and detention of their vessels by foreign countries. Losses
covered by the Guaranty Fund include: confiscation, spoilage, damage,
lost fishing time, and other incidental costs. Fees for these
agreements historically have paid about 60 percent of claims; about 40
percent of claims have been paid from direct appropriations. To
implement this rule, the Department of State does not intend to seek
annual direct appropriations, but will operate the Fund based on fees
collected from participants and on funds which remain available from
prior year balances. A separate fee notice will be published for each
fiscal year. This direct final rule clarifies the procedure for
submission of claims, the processing of guaranty agreement
applications, and the computations involved in adjudicating those
claims.
The Secretary of State also administers a separate program, the
Fishermen's Protective Fund, under Section 3 of the Act. Under the
Fishermen's Protective Fund, vessel owners may apply for reimbursement
of fines, license fees, registration fees, or any other direct charge
imposed by a foreign country to secure the release of a seized vessel.
Claims under the Protective Fund are paid from direct appropriations.
The publication of this Department of State direct final rule was
delayed pending reauthorization of the Fishermen's Guaranty Fund
program. Title IV of Public Law 104-43 amended and reauthorized the
program on November 3, 1995. Other legislative changes, such as the
change in the U.S. position on the international law respecting highly
migratory species, effective upon the President's signing of Public Law
101-627, and other measures in Public Law 104-43 dealing with high seas
fishing have been taken into account in this direct final rule.
The method of computing compensation of lost fishing time is
standardized. Depreciated replacement cost is made the standard
compensation basis for capital equipment other than vessels. The
standard compensation basis for vessels remains market value.
This rule will be open for public comment for a period of sixty
(60) days following publication. Unless adverse comment is received
within that period, the rule will become final thirty days after the
publication of a separate ``confirmation notice'' at the close of the
comment period. That confirmation notice will be accompanied by a
notice establishing the fee for participation in the Fishermen's
Guaranty Fund for FY 1997.
This action is not subject to Executive Order 12866 but has been
reviewed to ensure consistency with the overall policies and purposes
of that order. The action creates no unfunded mandates on State, local,
and tribal governments, or on the private sector, nor does it require
[[Page 49967]]
initial or a final regulatory flexibility analysis under the Regulatory
Flexibility Act.
The rule imposes no new collection of information requirements for
the purposes of the Paperwork Reduction Act. It continues existing
requirements which have been approved by the Office of Management and
Budget under Control Number 0648-0095.
This rule is being done as a direct final rule because the rule
involves changes to a program providing a claims benefit to certain
members of the public. These changes are designed to ease the process
of applying for these funds. We believe they will be non-controversial
and will not engender adverse comment. For these reasons, notice and
comment is not required under 5 U.S.C. 553(a)(2), and in any case that
good cause exists that notice and public procedures are unnecessary
under 5 U.S.C. 553(b)(3)(B). In order to provide some opportunity for
public input, however, we have chosen to use the direct final format
with a 60 day period for comment.
List of Subjects in 22 CFR Part 33
Administrative practice and procedure, Claims, Fisheries, Fishing
vessels, Penalties, Seizures and forfeitures.
22 CFR part 33 is revised to read as follows:
PART 33--FISHERMEN'S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER
SECTION 7
Sec.
33.1 Purpose.
33.2 Definitions.
33.3 Eligibility.
33.4 Applications.
33.5 Guaranty Agreement.
33.6 Fees.
33.7 Conditions for claims.
33.8 Claim procedure.
33.9 Amount of award.
33.10 Payments.
33.11 Records.
33.12 Penalties.
Authority: 22 U.S.C. 1977.
Sec. 33.1 Purpose.
These rules clarify procedures for the administration of Section 7
of the Fishermen's Protective Act of 1967. Section 7 of the Act
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 claims to jurisdiction not
recognized by the United States.
Sec. 33.2 Definitions.
For the purpose of this part, the following terms mean:
Act. The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 et
seq.).
Capital equipment. Equipment or other property which may be
depreciated for income tax purposes.
Depreciated replacement costs. The present replacement cost of
capital equipment after being depreciated on a straight line basis over
the equipment's depreciable life, which is standardized at ten years.
Downtime. The time a vessel normally would be in port or transiting
to and from the fishing grounds.
Expendable items. Any property, excluding that which may be
depreciated for income tax purposes, which is maintained in inventory
or expensed for tax purposes.
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)).
Market value. The price property would command in a market, at the
time of property loss, assuming a seller willing to sell and buyer
willing to buy.
Other direct charge. Any levy which is imposed in addition to, or
in lieu of any fine, license fee, registration fee, or other charge.
Owner. The owner or charterer of a commercial fishing vessel.
Secretary. The Secretary of State or the designee of the Secretary
of State.
Seizure. Arrest of a fishing vessel by a foreign country for
allegedly illegal fishing.
U.S. fishing vessel. Any private vessel documented or certified
under the laws of the United States as a commercial fishing vessel.
Sec. 33.3 Eligibility.
Any owner or charterer of a U.S. fishing vessel is eligible to
apply for an agreement with the Secretary providing for a guarantee in
accordance with section 7 of the Act.
Sec. 33.4 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 Sec. 33.6
below.
(b) Applicaton forms. Application forms may be obtained by
contacting the Office of Marine Conservation, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 7820, U.S.
Department of State, Washington, DC 20520-7818; Telephone 202-647-3941.
(c) Where to apply. Applications must be submitted to the Director,
Office of marine Conservation, Bureau of Oceans and International
Environmental and Scientific Affairs, Room 7820, U.S. Department of
State, Washington, DC 20520-7818.
(d) Applicaton approval. Application approval will be by execution
of the guaranty agreement by the Secretary or by the Secretary's
designee.
Sec. 33.5 Guaranty agreements.
(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
and fee are mailed (determined by the postmark) through September 30.
(b) Guaranty agreement transfer. A guaranty agreement may, with the
Secretary's prior 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 by submitting an application form with the
appropriate fee for the next year in accordance with the Secretary's
annually published requirements regarding fees. 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. Recent
amendments to the Magnuson Fishery Conservation and Management Act (16
U.S.C. (1801 et seq.) assert U.S. jurisdiction over highly migratory
species of tuna in the U.S. exclusive economic zone (EEZ). Accordingly,
as a matter of international law, the United States now recognizes
other coastal states' claims to jurisdiction over tuna in their EEZ'S.
This change directly affect certification of claims filed under the
Fishermen's Protective Act. Participants are advised that this means
that the Department will no longer certify for payment claims resulting
from the seizure of a U.S. vessel while such vessel was fishing for
tuna within the exclusive economic zone of another country in violation
of that country's laws. Claims for detentions or seizures based on
other claims to jurisdiction 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
[[Page 49968]]
United states, may still be certified by the Department.
Sec. 33.6 Fees.
(a) General. Fees provide for administrative costs and payment of
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 September 30 of the following year.
(b) Amount and payment. The amount of each annual fee or adjusted
fee will be established by the Office Director of the Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs, 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 in such notices, agreement coverage will commence
with the postmarked date of the fee payment and application.
(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.
(d) Disposition. All fees will be deposited in the Fishermen's
Guaranty Fund. They will remain available without fiscal year
limitation to carry out section 7 of the Act. Claims will be paid from
fees and from appropriated funds, if any. Fees not required to pay
administrative costs or claims may be invested in U.S. obligations. All
earnings will be credited to the Fishermen's Guaranty Fund.
Sec. 33.7 Conditions for claims.
(a) Unless there is clear and convincing credible evidence that the
seizure did not meet the requirements of the Act, payment of claims
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.
(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; or
(ii) Loss or confiscation of the vessel or its equipment; and
(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 as a direct
result of the seizure and detention.
(c) The exceptions are that no payment will be made from the Fund
for a seizure which is:
(1) Covered by any other provision of law (for example, fines,
license fees, registration fees, or other direct charges payable under
section 3 of the Act);
(2) Made by a country at war with the United States;
(3) In accordance with any applicable convention or treaty, if that
treaty or convention was made with the 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 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);
(6) For which material requirements of the guaranty agreement, the
Act, or the program regulations have not been fully fulfilled; or
(7) In the view of the Department of State occurred because the
seized vessel was undermining or diminishing the effectiveness of
international conservation and management measures recognized by the
United States, or otherwise contributing to stock conservation problems
pending the establishment of such measures.
Sec. 33.8 Claim procedures.
(a) Where and when to apply. Claims must be submitted to the Office
Director, Office of Marine Conservation, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 7820, U.S.
Department of State, Washington, DC 20520-7818. Claims must be
submitted within ninety (90) days after the vessel's release. Requests
for extension of the filing deadline must be in writing and approved by
the Office Director, Office of Marine Conservation, Bureau of Oceans
and International Environmental and Scientific Affairs.
(b) Contents of claim. All material allegations of a claim must be
supported by documentary evidence. Foreign language documents must be
accompanied by an authenticated English translation. Claims must
include:
(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 Office Director, Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs;
(4) A detailed computation of lost income claimed, including:
(i) The date and time seized and released;
(ii) The number of miles and running 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-per-day'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; and
(vii) The price-per-pound for the catch on the first day the vessel
returns to port after the seizure and detention unless there is a pre-
negotiated price-per-pound with a processor, in which case the pre-
negotiated price must be documented; 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, except in cases of dispute over the facts of the
seizure where the claimant shall have the presumption that the seizure
was eligible unless there is clear and convincing credible evidence
that the seizure did not meet the eligibility standards of the Act.
Sec. 33.9 Amount of award.
(a) Lost fishing time. Compensation is limited to 50 percent of the
gross
[[Page 49969]]
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 as determined
by the Secretary, based on catch rates on comparable vessels in
comparable fisheries. The compensable period for cases of seizure and
detention not resulting in vessels confiscation is limited to the
elapsed time from seizure to the time after release when the vessel
could reasonably be expected to return to the point of seizure. The
compensable period in cases where the vessel is confiscated is limited
to the elapsed time from seizure through the date of confiscation, plus
an additional period to purchase a replacement vessel and return to the
point of seizure. In no case can the additional period exceed 120 days.
(1) Compensation for confiscation of vessels, where no buy-back has
occurred, will be based on market value which will be determined by
averaging estimates of market value obtained from as many vessel
surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than vessel, will be
based on depreciated replacement cost;
(3) Compensation for expendable items and crew's belongings will be
50 percent of their replacement costs; and
(4) Compensation for confiscated catch will be for full value,
based on the price-per-pound.
(b) 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.
(c) Stolen or confiscated property. If the claimant was required to
buy back confiscated property from the foreign country, the claimant
may apply for reimbursement of such charges 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 which will be determined by
averaging estimates of market value obtained from as many vessel
surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than a vessel, will be
based on depreciated replacement cost;
(3) Compensation for expendable items and crew's belongings 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.
(d) Insurance proceeds. No payments will be made from the Fund for
losses covered by any policy of insurance or other provisions of law.
(f) Appeals. All determinations under this section are final and
are not subject to arbitration or appeal.
Sec. 33.10 Payments.
The Office Director, Office of Marine Conservation, Bureau of
Oceans and International Environmental and Scientific Affairs, will pay
the claimant the amount calculated under Sec. 33.9. Payment will be
made as promptly as practicable, but may be delayed pending the
appropriation of sufficient funds, should fee collections not be
adequate to sustain the operation of the Fund. The Director shall
notify the claimant of the amount approved for payment as promptly as
practicable and the same shall thereafter constitute a valid, but non-
interest bearing obligation of the Government. Delays in payments are
not a direct consequence of seizure and detention and cannot therefore
be construed as increasing the compensable period for lost fishing
time. If there is a question about distribution of the proceeds of the
claim, the Director may request proof of interest from all parties, and
will settle this issue.
Sec. 33.11 Records.
The Office Director, Office of Marine Conservation, Bureau of
Oceans and International Environmental and Scientific Affairs will have
the right to inspect claimants' books and records as a precondition to
approving claims. All claims must contain written authorization of the
guaranteed party for any international, federal, state, or local
governmental Agencies to provide the Office Director, Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs any data or information pertinent to a claim.
Sec. 33.12 Penalties.
Persons who willfully make any false or misleading statement or
representation to obtain compensation from the Fund are subject to
criminal prosecution under 22 U.S.C. 1980(g). This provides penalties
up to $25,000 or imprisonment for up to one year, or both. Any evidence
of criminal conduct will be promptly forwarded to the United States
Department of Justice for action. Additionally, misrepresentation,
concealment, or fraud, or acts intentionally designed to result in
seizure, may void the guaranty agreement.
Dated: August 13, 1996.
Eileen Claussen,
Assistant Secretary for Oceans and International Environmental and
Scientific Affairs.
[FR Doc. 96-23436 Filed 9-23-96; 8:45 am]
BILLING CODE 4710-09-M