operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of any project constructed or administered through the American Commissioner, International Boundary Commission, United States and Mexico, if such claim does not exceed $1,000 and has been filed with the American Commissioner within 1 year after the damage is alleged to have occurred, and when in the opinion of the American Commissioner such claim is substantiated by a report of a board appointed by the said Commissioner.

This Act covers only claims for damages to lands or other private property and not claims for personal injuries. (Decision Comptroller General B36817, Sept. 28, 1943, unpublished.) To the extent that claims for damages to lands or other private property are based upon negligence, the provisions of this Act have been superseded by the Federal Tort Claims Act (26 Comp. Gen. 452, Decision B-61757, Jan. 6, 1947). Hence claims cognizable under the Act of June 19, 1939, are limited to claims for damages accruing after March 31, 1937; (a) for damages to lands or other private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of any project constructed or administered through the Commissioner; (b) where such claims do not exceed $1,000; and (c) which claims are not based upon the negligence of any officer or employee of the Government acting within the scope of his or her employment.

(22 U.S.C. 2658 and 3926)

[32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984]

§ 31.20 Exclusion.

Claims which are cognizable under the Federal Tort Claims Act are not cognizable under the Act of June 19, 1939.

§ 31.21 Limitations.

The claim will be considered by the Commissioner under this subpart unless filed with him or her within 1 year after the damage is alleged to have occurred.

(22 U.S.C. 2658 and 3926)

[32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984]

§ 31.22 Action by claimant.

The provisions of § 31.4 shall be applicable to claims for damages cognizable under this subpart, except those provisions relating to personal injury or death.

§ 31.23 Payment of claim.

Upon receipt of a claim by the Commissioner, the Commissioner will appoint a board to investigate the facts surrounding the claim and to make its report and recommendations to the Commission. The Commissioner will thereupon approve the claim in whole or in part, or disapprove the claim. If the claim is approved in whole or in part, and claimant accepts the settlement tendered by the Commissioner, the claimant will execute a release of his or her claim in the form prescribed by the Commissioner and will execute a voucher in the sum approved by the Commissioner. The file on the case, including the claim, the findings of the board, the approval of the Commissioner, the release, and the voucher, will thereupon be transmitted by the Commissioner through the Department to the General Accounting Office for settlement.

(22 U.S.C. 2658 and 3926)

[32 FR 4020, Mar. 14, 1967, as amended at 49 FR 16989, Apr. 23, 1984]

PART 32-STOLEN PROPERTY UNDER TREATY WITH MEXICO

Sec.

32.1 Mexican motor vehicles, trailers, airplanes, etc., in the United States. 32.2 American motor vehicles, trailers, airplanes, etc., in Mexico.

AUTHORITY: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.

§ 32.1 Mexican motor vehicles, trailers, airplanes, etc., in the United States. Whenever, in accordance with the provisions of Article I of the convention (50 Stat. 1334), the United Mexi

'Convention of October 6, 1936 between the United States and Mexico for the recovContinued

can States shall request the detention in the United States of America of alleged stolen or embezzled motor vehicles, trailers, airplanes, or the component parts of any of them, the request shall be accompanied by documents legally valid in the United Mexican States. The said documents shall be as follows: (a) The original or a certified copy of the sales or conditional sales contract and where registration of title is required by law the certificate of such registration of title; (b) the original or a certified copy of the official registration card; (c) not more than three affidavits identifying the claimant as the owner of the legal or equitable title, or both, to the property alleged to have been stolen or embezzled; (d) the original or a certified copy of any assignment of the property by the insured to the insurer pursuant to a contract of insurance in force at the time the theft or embezzlement was committed.

[22 FR 10795, Dec. 27, 1957]

§ 32.2 American motor vehicles, trailers, airplanes, etc., in Mexico.

Whenever, in accordance with the provisions of Article II of the convention (50 Stat. 1334), the United States of America shall request the detention in the United Mexican States of alleged stolen or embezzled motor vehicles, trailers, airplanes, or the component parts of any of them, the request shall be accompanied by documents legally valid in the United States of America. The said documents shall be as follows: (a) The original or a certified copy of the sales or conditional sales contract and where registration of title is required by law the certificate of such registration of title; (b) the original or a certified copy of the official registration card; (c) not more than three affidavits identifying the claimant as the owner of the legal or equitable title, or both, to the property alleged to have been stolen or embezzled; (d) the original or a certified copy of any assignment of the property by the insured to the insurer pursuant to a contract of insurance in force

ery and return of stolen or embezzled motor vehicles, etc.

ment's depreciable life, which is standardized at ten years.

(d) Downtime. The time a vessel normally would be in port or transiting to and from the fishing grounds.

(e) Expendable items. Any property, excluding that which may be depreciated for income tax purposes, which is maintained in inventory or expensed for tax purposes.

(f) 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)).

(g) IATTC. Inter-American Tropical Tuna Commission.

(h) 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.

(i) Other direct charge. Any levy which is imposed in addition to, or in lieu of any fine, license fee, registration fee, or other charge.

(j) Owner. The owner or charterer of a commercial fishing vessel.

(k) Secretary. The Secretary of State or his designee.

(1) Seizure. Arrest of a fishing vessel by a foreign country for allegedly illegal fishing.

(m) U.S. fishing vessel. Any private vessel documented or certified under the laws of the United States as a commercial 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(a) of the Act.

§ 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 § 33.6 of this part.

(b) Application forms. Application forms may be obtained by writing to the Office of Fisheries Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, Room 5806, Department of State, Washington, DC 20520 or by calling (202) 6472009.

(c) Where to apply. Applications must be submitted to the Office Director, Office of Fisheries Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, Room 5806, Department of State, Washington, DC 20520.

(d) Application approval. Application approval will be by the Secretary's execution of the guaranty agreement.

(Approved by the Office of Management and Budget under control number 06480095)

§ 33.5 Guaranty agreement.

(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 was 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 without resubmitting an application form if the appropriate fee for the next year is submitted 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; on the basis of claims to jurisdiction which are recognized by the United States, but exercised in a manner inconsistent with international law as recognized by the United States; or, in the case where a general claim of exclusive fishery management authority is recognized by the United States and a U.S. fishing vessel is seized on the

basis of conditions and restrictions which:

(1) Are unrelated to fishery conservation and management,

(2) Fail to consider traditional practices of U.S. fishing vessels,

(3) Are more onerous than those applied to foreign fishing vessels by the United States in its exclusive economic zone, or

(4) Fail to allow U.S. fishing vessels equitable access to fishery resources under the foreign countries' exclusive management authority.

§ 33.6 Fees.

(a) General. Fees provide for administrative costs and at least one third of the contribution by the U.S. Government, if any. 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 the following September 30.

(b)

Amount and payment. The amount of each annual fee or adjusted fee will be established by the Office Director of the Office of Fisheries Affairs, 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 extention of prior agreements or execution of new agreements. Unless otherwise specified in such notices, agreement coverage will commence with the date of fee payment.

(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 first from fees and then from appropriated funds. 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.

§ 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 because of the seizure and detention.

(c) Exceptions. 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, other direct charges payable under Section 3 of the Act),

or

(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 possible 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), or

(6) For which material requirements of the guaranty agreement, the Act, or the program regulations have not been fully fulfilled.

§ 33.8 Claim procedure.

(a) Where and when to apply. Claims must be submitted to the Office Director, Office of Fisheries Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, Room 5806, Department of State, Washington, D.C. 20520. They must be submitted within 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 Fisheries Affairs, 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 the following:

(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 Fisheries Affairs, 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-perday'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 statute. § 33.9

Amount of award.

(a) Lost fishing time. Compensation is limited to 50 percent of the gross 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. The compensable period for cases of seizure and detention not resulting in vessel 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