50 CFR Part 296 — Fishermen's Contingency Fund

PART 296—FISHERMEN'S CONTINGENCY FUND Authority: Pub. L. 97-212 (43 U.S.C. 1841 et seq. Source: 47 FR 49600, Nov. 1, 1982, unless otherwise noted. § 296.1 Purpose. These regulations implement title IV of the Outer Continental Shelf Lands Act Amendments of 1978, as amended (title IV). Title IV establishes a Fishermen's Contingency Fund to compensate commercial fishermen for damage or loss caused by obstructions associated with oil and gas activities on the Outer Continental Shelf. § 296.2 Definitions. Area affected by Outer Continental Shelf activities (1) Includes any portion of a leased block, pipeline, easement, right of way, or other OCS oil and gas exploration, development, or production activity; or (2) Is otherwise associated (as determined by the Chief, Financial Services Division) with OCS oil and gas activities, such as, for example, expired lease areas, relinquished rights-of-way or easements, and areas used extensively by surface vessels supporting OCS oil and gas activities (areas landward of the OCS are included when such areas meet this criterion). Chief, FSD Citizen of the United States Commercial fisherman Commercial fishing vessel Easement Fish Fishing gear Fund Holder Lease Negligence or fault (1) Remain outside of any navigation safety zone established around oil and gas rigs and platforms by any responsible Federal agency; (2) Avoid obstructions recorded on nautical charts or in the Notice to Mariners or marked by a buoy or other surface marker (casualties occurring within a one-quarter mile radius of obstructions so recorded or marked are presumed to involve negligence or fault of the claimant); (3) Abide by established rules of the road; (4) Use proper care; or (5) Use due care and diligence to mitigate the damage or loss. Outer Continental Shelf Person Resulting Economic Loss Right-of-way Secretary [47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6322, Feb. 20, 1996] § 296.3 Fishermen's contingency fund. (a) General. (b) Payments into the fund. (1) Assessments to maintain the fund. (2) Billing and collections. (3) Annual assessment limits. (c) Moneys recovered through subrogation. (d) Investments of the fund. (e) Litigation. § 296.4 Claims eligible for compensation. (a) Claimants. (b) Damage or loss of fishing gear. (c) Exceptions. (1) If the damage or loss was caused by the negligence or fault of the claimant; (2) If the damage or loss occurred prior to September 18, 1978; (3) To the extent that damage or loss exceeds the replacement value of the fishing gear involved; (4) For any portion of the damage or loss which can be compensated by insurance; (5) If the claim is not filed within 90 calendar days of the date the claimant or the claimant's agent first became aware of the damage or loss (or such longer period as the Secretary may allow under unusual and extenuating circumstances); or (6) If the damage or loss was caused by an obstruction unrelated to OCS oil and gas exploration, development, or production activities. [47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985; 61 FR 6322, Feb. 20, 1996] § 296.5 Instructions for filing claims. (a) Fifteen-day report required to gain presumption of causation General. (2) When and how to file a fifteen-day report. (3) Contents of fifteen-day report. (i) The claimant's name and address; (ii) The name of the commercial fishing vessel involved; (iii) The location of the obstruction which caused the damage or loss; (iv) A description of the nature of the damage or loss; (v) The date such damage or loss was discovered; (vi) If the fifteen-day report is made after the vessel returns to port, the date on which the vessel first returned to port after discovering the damage. (b) Form of claim. (c) Who must file and when and where to file claims. (d) Aggregating claims. (e) Contents of claim. (1) The name, mailing address, telephone number, citizenship, and occupational status (for example, vessel owner, operator, or crew member) of each claimant; (2) The name and Coast Guard documentation number or State registration number of the commercial fishing vessel involved in the damage or loss; (3) The home port, type, and size of the vessel involved in the casualty; (4) A full statement of the circumstances of the damage or loss including: (i) The date when the casualty was first discovered by the claimant, (ii) The water depth (if known) and visibility at the time and location where the casualty occurred, (iii) The direction, speed, and activities of the claimant's vessel immediately before, during, and after the casualty (including a full description of both the deployment of any fishing gear which is the subject of the claim and all attempts at retrieval of the gear), (iv) The names and addresses of all witnesses to the casualty, (v) The location where the casualty occurred in Loran C coordinates or the next most accurate method of position fixing available to the claimant, (vi) A description of the item or obstruction (if sighted or recovered) which caused the casualty, and whether or not any surface markers were attached to or near the obstruction. Submit any available photographs of the item or obstruction. State reasons for believing the obstruction is associated with OCS oil and gas activities. (5) The amount claimed for property damage or loss and a full statement of the type and extent of damage or loss including: (i) An inventory of all components of fishing gear damaged or lost, (ii) The date, place, and cost of acquisition of all fishing gear damaged or lost and proof of its purchase (sales receipts, affidavits, or other evidence), (iii) One estimate from a commercial fishing gear repair or supply company of the present replacement or repair (whichever applies) cost of the damaged or lost fishing gear. If the gear will be repaired by the claimant himself, a detailed estimate by the claimant identifying the repair cost. (6) The amount claimed for economic loss and the basis for that amount with supporting documentation, as follows: (i) Trip tickets for the three vessel trips immediately before the trip during which the casualty was discovered and for the vessel trip immediately following the trip during which the casualty occurred. (ii) A statement of the amount of time involved on each of the vessel trips above (or if the casualty involves fixed gear, a statement of the number of gear units deployed on each of these trips). (iii) A statement of the amount of time lost from fishing because of the damage or loss and a full explanation of why this time period is reasonable. (iv) Documentation of the date replacement gear was ordered and received or the date gear repair began and ended. This documentation may consist of purchase orders, bills of lading, or statements from sellers or repairers. (7) The amount claimed for other consequential loss or costs (including fees for claim preparation, etc.) with suitable documentation of the amounts claimed (such as invoices, receipts, etc.). [47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985; 53 FR 24645, June 29, 1988; 61 FR 6322, Feb. 20, 1996] § 296.6 NMFS processing of claims. (a) Action by NMFS. (1) Send an abstract of the claim to the Secretary of the Interior; (2) Send the reported location of any obstruction which was not recovered and retained to the National Ocean Survey, which will inform the Defense Mapping Agency Hydrographic/Topographic Center. (b) Actions by the Interior Department. (1) Plot the casualty site, and advise NMFS whether the site is in an area affected by OCS activities; (2) make reasonable efforts to notify all persons known to have engaged in activities associated with OCS energy activity in the vicinity where the damage or loss occurred. (c) Responses to notice of claim. (2) Each person notified by the Interior Department who fails to give timely and proper advice of admission or denial of responsibility shall be presumed to deny responsibility for the damages claimed. (3) If any person admits responsibility, the Chief, FSD, will initiate action to recover from that party any sums paid or to be paid for the claimed damages. (4) Any person referred to in this section, including lessees or permittees or their contractors or subcontractors, may submit evidence about any claim to the Chief, FSD. (d) Failure to meet filing requirements. (e) Proceedings Location. (2) Powers. (3) Amendments to claims. (4) Criminal penalty for fraudulent claims. [47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6322, Feb. 20, 1996] § 296.7 Burden of proof and presumption of causation. (a) Burden of proof. (1) The identity or nature of the item which caused the damage or loss; and (2) That the item is associated with oil and gas exploration, development, or production activities on the Outer Continental Shelf. (b) Presumption of causation. (1) The claimant's commercial fishing vessel was being used for commercial fishing and was located in an area affected by OCS oil and gas exploration, development, or production activities; (2) A report on the location of the obstruction which caused such damage or loss, and the nature of such damage or loss, was made within fifteen days after the date on which the vessel first returned to a port after discovering such damage; (3) There was no record on the most recent nautical charts issued by the National Ocean Survey, NOAA, or in any weekly Notice to Mariners issued by the Defense Mapping Agency Hydrographic/Topographic Center, in effect at least 15 days before the date the damage or loss occurred, then an obstruction existed in the immediate vicinity where the damage or loss occurred. In the case of damages caused by a pipeline, the presumption will be available regardless of whether the pipeline was recorded on charts or in the Notice to Mariners; and (4) There was no proper surface marker or lighted buoy attached, or closely anchored, to such obstruction. (c) Geographic exclusion from presumption of causation. § 296.8 Amount of award. (a) Actual damages. (b) Consequential damages. (c) Resulting economic loss. (d) Attorney, CPA, consultant fees. (e) Negligence of claimant. (2) Negligence of the owner or operator of the fishing vessel or gear will reduce crewmember awards to the same extent that it reduces an award to the vessel's owner or operator. (f) Insurance proceeds. [47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985] § 296.9 Initial determination. The Chief, FSD will make an initial determination on a claim within 60 days after the day on which the claim is accepted for filing. The initial determination will state: (a) If the claim is disapproved, the reason for disapproval, or (b) If the claim is approved, the amount of compensation and the basis on which the amount was determined. § 296.10 Agency review. (a) Within 30 days after the Chief, FDS, issues an initial determination, the claimant, or any other interested person who submitted evidence relating to the initial determination, may ask the Assistant Administrator, NMFS, or his designee, for a review of the initial determination. (b) The petitioner may submit written or oral evidence within 30 days of filing the petition for review. § 296.11 Final determination. (a) If a petition for review of an initial determination is filed within 30 days after the date the Chief, FSD, issues an initial determination, the Assistant Administrator, NMFS, or his designee will conduct a review of the initial determination, and will issue a final determination no later than 60 days after receipt of the request for review of the initial determination. (b) If a petition for review of an initial determination is not filed within 30 days after the day on which the Chief, FSD, issues an initial determination, the initial determination will become a final determination. § 296.12 Payment of costs. (a) By person denying responsibility for damage. (b) By the claimant. (c) By person denying responsibility for damage and the claimant. § 296.13 Payment of award for claim. (a) Upon an initial determination, the Chief, Financial Services Division, shall immediately disburse the claim awarded if the claimant signed as part of his/her application a statement agreeing to repay all or any part of the award if the award should for any reason be subsequently reduced. (b) [Reserved] [61 FR 6322, Feb. 20, 1996] § 296.14 Subrogation. (a) The claim application will contain a subrogation statement signed by the claimant as a condition of payment of the claim which: (1) Assigns to the Fund the claimant's rights against third parties; and (2) Provides that the claimant will assist the Fund in any reasonable way to pursue those rights. (b) Collection of subrogated rights. If a reasonable chance of successful collection exists, NMFS will refer any subrogated rights to the Justice Department for collection. (c) Any moneys recovered through subrogation shall be deposited into the Fund. [47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6323, Feb. 20, 1996] § 296.15 Judicial review. Any claimant or other person who is aggrieved by a final determination may, no later than 30 days after the determination, seek judicial review of the determination in the United States District Court for such judicial district as may be mutually agreeable to the parties concerned or, if no agreement can be reached, in the United States District Court for the judicial district in which the claimant's home port is located.

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