Title 50—Wildlife and Fisheries--Volume 1
PART 296—FISHERMEN'S CONTINGENCY FUND
§ 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 means the area within a 3-mile radius of any casualty site which:
(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 means Chief, Financial Services Division, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; telephone: (301) 713-2396.
Citizen of the United States means 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.
Commercial fisherman means any citizen of the United States who owns, operates, or is employed on a commercial fishing vessel.
Commercial fishing vessel means any marine craft which is documented under the laws of the United States or, if under five net tons, registered under the laws of any State, and used for commercial fishing or activities directly related to commercial fishing.
Easement means a right of use or easement granted under 30 CFR 250.18.
Fish means all forms of marine animal and plant life other than marine mammals, birds, and highly migratory species.
Fishing gear means any commercial fishing vessel, and any equipment of such vessel.
Fund means the Fishermen's Contingency Fund established by title IV of the Outer Continental Shelf Lands Act Amendments of 1978.
Holder means the owner of record of each lease, prelease exploratory drilling permit, easement, or right-of-way or any agent or assignee of an owner.
Lease means any authority under section 8 or section 6 of the OCS Lands Act to develop and produce or explore for oil or gas.
Negligence or fault includes, but is not limited to, failure to:
(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 means all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in 43 U.S.C. section 1301, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control. Generally, but not in all cases, this includes all submerged lands lying seaward of the territorial sea (3 miles from a State's coastline, or 9 miles from the coast of Texas or Florida).
Person means an individual, partnership, corporation, association, public or private organization, government, or other entity.
Resulting Economic Loss means the gross income, as estimated by the Chief, FSD, that a claimant will lose because of not being able to fish, or having to reduce fishing effort, during the period before the damaged or lost fishing gear concerned is repaired or replaced and available for use. This period must be reasonable. This period begins on the date of the casualty and stops on the date the damage could reasonably have been remedied by repair or replacement.
Right-of-way means any right-of-way granted under section 5(e) of the OCS Lands Act or under 43 CFR 3340.0-5.
Secretary means the Secretary of Commerce or his designee.
§ 296.3   Fishermen's contingency fund.
(a) General. There is established in the Treasury of the United States the Fishermen's Contingency Fund. The Fund is available without fiscal year limitation as a revolving fund to carry out the purposes of title IV of the Outer Continental Shelf Lands Act Amendments of 1978, as amended.
(b) Payments into the fund. Each Holder of an exploration permit, lease, easement, or rights-of-way for the construction of a pipeline, or a prelease exploration drilling permit issued or maintained under the Outer Continental Shelf Lands Act, in effect on or after June 30, 1982, shall pay assessments to the Fund. All pipeline right-of-way and easements are to be included for assessment except those constructed and operated lines within the confines of a single lease or group of contiguous leases under unitized operation or single operator. Payments will not be required for geological or geophysical permits, other than prelease exploratory drilling permits issued under section 11 of the Outer Continental Shelf Lands Act (43 U.S.C. 1340).
(1) Assessments to maintain the fund. When the total amount in the Fund is less than the Chief, FSD, determines is needed to pay Fund claims and expenses, the Chief, FSD, will notify the Secretary of the Interior that additional assessments are needed.
(2) Billing and collections. The Secretary of the Interior will calculate the amounts to be paid by each Holder and shall notify each Holder of the dollar amount and the time and place for all payments. Each assessment shall be paid to the Secretary of the Interior no later than 45 days after the Secretary of the Interior sends notice of the assessment.
(3) Annual assessment limits. No Holder shall be required to pay in excess of $5,000 for any lease, permit, easement or right-of-way in any calendar year.
(c) Moneys recovered through subrogation. Any moneys recovered by the Secretary through the subrogation of a claimant's rights shall be deposited into the Fund.
(d) Investments of the fund. Excess sums in the Fund will be invested in obligations of, or guaranteed by, the United States. Revenue from such investments shall be deposited in the Fund.
(e) Litigation. The Fund may sue and be sued in its own name.
§ 296.4   Claims eligible for compensation.
(a) Claimants. Damage or loss eligible for Fund compensation must be suffered by a commercial fisherman.
(b) Damage or loss of fishing gear. Damage or loss is eligible for Fund compensation if it was caused by materials, equipment, tools, containers, or other items associated with OCS oil and gas exploration, development, or production activities. Damage or loss may be eligible for compensation even though it did not occur in OCS waters if the item causing the damage or loss was associated with oil and gas exploration, development, or production activities in OCS waters.
(c) Exceptions. Damage or loss is not eligible for Fund compensation:
(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.
§ 296.5   Instructions for filing claims.
(a) Fifteen-day report required to gain presumption of causation —(1) General. Damages or losses are presumed to be qualified for compensation if certain requirements are satisfied. One requirement is that a report must be made to NMFS within fifteen (15) days after the date on which the vessel first returns to a port after discovering the damage or loss. Filing of a fifteen-day report must be followed up by filing a detailed claim.
(2) When and how to file a fifteen-day report. To qualify for the presumption of causation, a fifteen-day report must be made to NMFS within fifteen days after the date on which the vessel first returns to a port after discovering the damage or loss. Satisfaction of the fifteen-day requirement is determined by the postmark, if the report is mailed; by the date of a call, if the report is telephoned or radiotelephoned; or, by the date of appearance, if the report is made in person. The fifteen-day report must be made to the Chief, Financial Services Division, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; telephone: (301) 713-2396.
(3) Contents of fifteen-day report. Each fifteen-day report must include the following information:
(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. Claims must be in writing. Claims may be submitted on NOAA form 88-164. This form may be obtained from any NMFS regional office or from the Chief, FSD. Although claimants are not required to use this claim form, it will probably be to their benefit to do so.
(c) Who must file and when and where to file claims. All claimants (including those who filed 15-day reports to gain the presumption of causation) must submit a claim application to the Chief, Financial Services Division, within 90 calendar days of the date the claimant or the claimant's agent first became aware of the damage or loss. The Chief, FSD, may allow a longer period for filing claims if, in his discretion, unusual and extenuating circumstances justify a longer period. The term “filed” means delivered in person, or mailed (as determined by the date of the postmark) to the Chief, Financial Services Division, National Marine Fisheries Service, 1825 Connecticut Avenue, NW., Washington, DC 20235. The Chief, FSD, suggests that mailed claims be sent by registered or certified mail, return receipt requested, so the claimant will have a record that the claim was received by the Chief, FSD.
(d) Aggregating claims. If more than one commercial fisherman suffers loss or damage from the same incident (for example, when several members of the crew lost income due to loss of fishing time), all claims should be submitted on their behalf by the owner or operator of the commercial fishing vessel involved.
(e) Contents of claim. Each claim must be signed by the claimant and must accurately and completely provide the following information:
(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.).
§ 296.6   NMFS processing of claims.
(a) Action by NMFS. Upon receipt of a claim, the Chief, FSD, will:
(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. Upon receipt of an abstract of a claim, the Interior Department will immediately:
(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. (1) Each person notified by the Interior Department will, within thirty days after receipt of the notice, advise the Chief, FSD, and the Interior Department whether he admits or denies responsibility for the damages claimed.
(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. The Chief, FSD, may reject any claim that does not meet the filing requirements. The Chief, FSD, will give a claimant whose claim is rejected written notice of the reasons for rejection within 30 days after the date on which the claim was filed. If the claimant does not refile an acceptable claim within 30 days after the date of this written notice, the claimant is not eligible for Fund compensation unless there are extenuating circumstances.
(e) Proceedings —(1) Location. Any required proceeding will be conducted within such United States judicial district as may be mutually agreeable to the claimant and the Assistant Administrator, NMFS, or his designee, or if no agreement can be reached, within the United States judicial district in which the claimant's home port is located.
(2) Powers. For purposes of any proceeding, the Assistant Administrator, NMFS, or his designee, shall have the power to administer oaths and subpoena witnesses and the production of books, records, and other evidence relative to the issues involved.
(3) Amendments to claims. A claimant may amend the claim at any time before the Chief, FSD, issues an initial determination.
(4) Criminal penalty for fraudulent claims. Any person who files a fraudulent claim is subject to prosecution under 18 U.S.C. sections 287 and 1001, each of which, upon conviction, imposes a penalty of not more than a $10,000 fine and 5 years' imprisonment, or both.
§ 296.7   Burden of proof and presumption of causation.
(a) Burden of proof. The claimant has the burden to establish, by a preponderance of the evidence, all facts necessary to qualify his claim, including:
(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. Notwithstanding the above, damages or losses are presumed to be caused by items associated with oil and gas exploration, development, or production activities on the OCS if the claimant establishes that:
(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. Damage or loss occurring within a one-quarter mile radius of obstructions recorded on charts or in a Notice to Mariners, or properly marked, is presumed to involve the recorded or marked obstruction.
§ 296.8   Amount of award.
(a) Actual damages. The award for damaged fishing gear will be the lesser of the gear's repair cost or replacement cost. The award for lost fishing gear will be the gear's replacement cost.
(b) Consequential damages. An award may also include compensation for any damage or loss (except personal injury) that is incurred as a consequence of the fishing gear damage or loss.
(c) Resulting economic loss. An award may also include 50 percent of the resulting economic loss from damage to or loss of fishing vessels and gear.
(d) Attorney, CPA, consultant fees. An award may also include compensation for reasonable fees paid by the claimant to an attorney, CPA, or other consultant for the preparation or prosecution of a claim.
(e) Negligence of claimant. (1) An award will be reduced to the extent that the loss or damage was caused by the negligence or fault of the claimant. (For example, a claimant who sustained $10,000 in damages and whose negligence or fault was found to be responsible for 40% of the damage would receive $6,000 in compensation. If the same claimant were responsible for 99% of the negligence or fault that caused the damage, the claimant would receive $100 in compensation).
(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. An award will be reduced by the amount the claimant has, or reasonably would have, received under a commercial policy of full hull and machinery and protection and indemnity insurance, whether or not such insurance was in effect at the time the casualty occurred.
§ 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. Any person who is notified by the Interior Department and fails to respond or denies responsibility for the damages claimed will pay the costs of the proceedings if such person is subsequently found to be responsible for the damage claimed.
(b) By the claimant. Any claimant who files a claim will pay the cost of the proceedings if such person is subsequently found to be responsible for the damage claimed.
(c) By person denying responsibility for damage and the claimant. If more than one party is found to have responsibility for the damage claimed, then the cost of the proceedings will be apportioned between them.
§ 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]
§ 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.
§ 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.