PART 33—FISHERMEN'S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER SECTION 7 Authority: 22 U.S.C. 1977. Source: 61 FR 49967, Sept. 24, 1996, unless otherwise noted. § 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. § 33.2 Definitions. For the purpose of this part, the following terms mean: Act. et seq. Capital equipment. Depreciated replacement costs. Downtime. Expendable items. Fund. Market value. Other direct charge. Owner. Secretary. Seizure. U.S. fishing vessel. § 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. § 33.4 Applications. (a) Applicant. (1) Own or charter a U.S. fishing vessel; and (2) Submit with his application the fee specified in § 33.6 below. (b) Application forms. (c) Where to apply. (d) Application approval. § 33.5 Guaranty agreements. (a) Period in effect. (b) Guaranty agreement transfer. (c) Guaranty agreement renewal. (d) Provisions of the agreement. et seq. § 33.6 Fees. (a) General. (b) Amount and payment. Federal Register. (c) Adjustment and refund. (d) Disposition. § 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. § 33.8 Claim procedures. (a) Where and when to apply. (b) Contents of claim. (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. § 33.9 Amount of award. (a) Lost fishing time. (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. (c) Stolen or confiscated property. (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. (e) [Reserved] (f) Appeals. § 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 § 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. § 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. § 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.