mal motion. Oral argument upon a written motion, in which an answer has been filed, may be granted within the discretion of the Presiding Officer. Answers to a formal motion or pleading shall be filed and served in the same manner as the motion or pleading. § 257.11 Duties of Presiding Officer.

The Presiding Officer shall have the authority and duty to:

(a) Take or cause depositions to be taken.

(b) Rule upon proposed amendments or supplements to motions and pleadings. (c) Regulate the course of the hearings.

(d) Prescribe the order in which evidence shall be presented.

(e) Dispose of procedural requests or similar matters.

(f) Hear and initially rule upon all motions and petitions before him.

(g) Administer oaths and affirmations.

(h) Examine witnesses.

(i) Rule upon offers of proof and receive competent, relevant, material, reliable, and probative evidence.

(j) Exclude irrelevant, immaterial, incompetent, unreliable, repetitious or cumulative evidence.

(k) Exclude cross-examination which is primarily intended to elicit self-serving declarations in favor of the witness.

(1) Limit cross-examination to interrogatories which are required for a full and true disclosure of the facts in issue.

(m) Act upon petitions to intervene. (n) Act upon submissions of facts or arguments.

(0) Hear arguments at the close of testimony.

(p) Fix the time for filing briefs, motions and other documents to be filed in connection with hearings.

(q) Issue the initial decisions and dispose of any other pertinent matter that normally and properly arises in the course of proceedings.

All exhibits and responses to requests for evidence shall be numbered consecutively by the party submitting same and shall be filed with the Presiding Officer if filed during the hearing. If filed at some other time they should be filed in accordance with § 257.4 with one copy also being sent to each party to the hearing.

(b) Normally, the order of presentation at the hearing will be alphabetical in each of the following categories: (1) Applicant.

(2) Intervenors.

Rebuttal should be presented without any adjournment in the proceedings.

(c) Cross-examination shall be limited, subject to § 257.13(b), to the scope of the direct examination and to witnesses whose testimony is adverse to the party desiring to cross-examine. Only crossexamination which is necessary to test the truth and completeness of the direct testimony and exhibits will be permitted.

(d) A request for oral argument at the close of testimony will be granted or denied by the Presiding Officer in his discretion.

(e) Rulings of the Presiding Officer may not be appealed prior to, or during, the course of the hearings, except in extraordinary circumstances where prompt decision by the Secretary is necessary to prevent unusual delay or expense, in which instance the matter shall be referred forthwith to the Secretary by the Presiding Officer. Any appeal shall be filed within 10 days from the date of the close of the hearing. § 257.13

Evidence.

(a) In any proceedings under this part, all evidence which is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, shall be admissible. Irrelevant and immaterial or unduly repetitious evidence shall be excluded.

(b) Each party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence; and to conduct such crossexamination as may be required for a full and true disclosure of the facts.

(c) At any time during the hearing the Presiding Officer may call for the production of further relevant and material evidence, reports, studied and analyses upon any issue, and require such evidence to be presented by the party or parties concerned, either at the hearing or adjournment thereof. Such material shall be received subject to ap

propriate motions, cross-examination and/or rebuttal. If a witness refuses to testify or produce the evidence as requested, the Presiding Officer shall forthwith report such refusal to the Secretary. § 257.14 The record.

(a) The Director, Bureau of Commercial Fisheries, will designate an official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and briefs filed therewith, shall be filed with the Director, Bureau of Commercial Fisheries. Transcripts of testimony will be available in any proceeding under the regulations of this part, and will be supplied by the official reporter to the parties and to the public, except when required for good cause to be held confidential, at rates fixed by the contract between the United States of America and the reporter. If the reporter is an employee of the Department of the Interior, the rate will be fixed by the Director, Bureau of Commercial Fisheries.

(b) The transcript of testimony and exhibits, together with all papers and requests, including rulings and the initial decision filed in the proceeding, shall constitute the exclusive record for decision. The initial decision will be predicated on this same record, as will the final decision.

§ 257.15 Decisions.

(a) The Presiding Officer is delegated the authority to render initial decisions in all proceedings before him. The same officer who presides at the reception of evidence shall render the initial decision except when such officer becomes unavailable to the Department of the Interior. In such case, another Presiding Officer will be designated by the Secretary to render the intial decision. Briefs, or other documents, to be submitted after the hearing must be received not later than ten (10) days after the hearing unless otherwise extended by the Presiding Officer upon motion by a party. The initial decision shall be made within twenty (20) days after the hearing or the receipt of all briefs, whichever is later. If no appeals from the initial decision are received within ten (10) days of the date of the initial decision, it will become the final decision on the 20th day following the date of the initial decision. If an appeal is received, the appeal will be transmitted to the Secretary who will render the final

decision after considering the record and the appeal.

(b) All initial and final decisions shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon the material issues presented. A copy of each decision shall be served on the parties to the proceeding, and furnished to interested persons upon request.

(c) Official notice may be taken of such matters as might be judicially noticed by the courts; or of technical or scientific facts within the general or specialized knowledge of the Department of the Interior as an expert body; or of a document required to be filed with or published by a duly constituted Government body: Provided, That where a decision or part thereof rests on the official notice of a material fact not appearing in the evidence of the record. the fact of official notice shall be so stated in the decision and any party, on timely request, shall be afforded an opportunity to show the contrary.

(a) The fees are established to provide for payment of the administrative costs and at least one-third of the estimated claims to be paid from the fund. They are set on the basis of anticipated losses projected from prior experience. The fees may be adjusted from time to time by amendment to this part at any time, after appropriate notice, in order to meet the requirements of the Act.

(b) Fees to be paid by an applicant for guarantee agreements executed on or after July 1, 1972, and covering the period terminating on February 8, 1973,

unless extended, shall be as follows: For each vessel $60 plus $1.80 per gross ton as listed on the vessel's documents. Fractions of a ton are not included.

(c) No return of a fee or portion of a fee will be made after a guarantee agreement is executed by the Secretary. Failure to pay increased fees within 30 days of adjustment shall constitute a basis for termination of the guarantee agreement.

(d) A guarantee agreement may, with the consent of the Secretary, be assigned to a new owner of a vessel if the ownership of that vessel is transferred during the period in which the agreement on that vessel is in force.

[37 F.R. 13179, July 4, 1972]

§ 258.6 Insurance required.

In order to qualify for an agreement executed under this part, the vessel must be insured during the period of the agreement with hull and machinery insurance and protection and indemnity insurance in an amount and form satisfactory to the Secretary. § 258.7

Approval of application.

The approval of an application shall be evidenced by the execution of the agreement by the Secretary and the agreement shall be in effect from the time of its effective date.

§ 258.8 Payment of claims.

of

(a) In case of a cost or loss resulting in a claim under an agreement, the claim shall be filed in duplicate with the Director, National Marine Fisheries Service, Attention: Chief, Division Financial Assistance (F224), 1801 North Moore Street, Arlington, VA 22209. The Director will obtain verification of certain essential facts regarding the seizure from the Department of State. Payments shall be made as promptly as practicable but may at times be delayed pending appropriation of necessary funds.

(b) The burden of proving all damages shall be upon the guaranteed party.

(c) No payment shall be made on a claim caused by negligence of the Owner, captain or crew.

(d) No payment shall be made on a claim unless all fees due have been paid in full.

(e) Each claim filed shall contain an authorization to all International, Federal, State, or local government agencies to furnish the National Marine Fisheries Service with any data or information

relating to the operation of the vessel involved in the claim which the Secretary deems necessary for adjudication of the claim.

(f) No claim shall be paid unless the vessel involved and covered by a guarantee agreement is properly documented as a vessel of the United States at the time of the seizure.

(g) No claim of any crew member who is not a citizen or an alien legally domiciled in the United States will be considered.

(h) In case of the loss or confiscation of a vessel or gear resulting in a claim, the value of the vessel or gear for the purpose of settling the claim shall be the market value as determined by the Secretary.

(i) The value used in determining claims involving the catch of the vessel will be that paid in the port and on the date of the first arrival of the vessel in the United States as determined by the Secretary. If the vessel does not return to a port of the United States, the value used will be determined by the Secretary after consideration of the circumstances involved.

(j) Original documents or certified copies of receipts and other documents required as verification of losses must be provided.

(k) All assureds shall pursue any claim under commercial insurance covering identical loss or losses as the Secretary may determine to be necessary prior to application for payment under this part.

United States and earning a significant income from catching, processing, or transporting fish, shellfish, or other living marine resources for commercial purposes such as marketing or processing the catch;

(3) Have a program for the acquisition, construction, or reconstruction of one or more qualified vessels. Reconstruction shall mean a rebuilding of the hull or hull and engine of such magnitude that the actual cost is more than 30 percent of the replacement value of each vessel reconstructed.

(b) Content of application. Parties seeking an Interim Agreement may make application by letter providing the following information:

(1) Proof of U.S. citizenship;

(2) The first taxable year for which the Interim Agreement is to apply;

(3) The following information regarding each "eligible vessel" or “qualified vessel" owned or leased by an applicant for operation in the fisheries of the United States which is to be designated as an "agreement vessel" (i.e., to be incorporated in Schedule A of the Interim Agreement) for the purpose of making deposits into a Capital Construction Fund pursuant to section 607 of the Act: (i) Name of vessel,

(ii) Type of vessel (i.e., catching vessel, processing vessel, transporting vessel),

(iii) General characteristic (i.e., net tonnage, fish-carrying capacity, age, length, type of fishing gear),

(iv) Whether owned or leased and, if leased, the name of the owner, and a copy of the lease,

(v) Date and place of construction, (vi) If reconstructed, date of redelivery and place of reconstruction,

(vii) Date last documented under the laws of the United States for operation in the fisheries of the United States,

(viii) Fishery of operation (which in this section means each species or group of species of fish, shellfish, or other living marine resources which each vessel catches, processes, or transports for commercial purposes such as marketing or processing the catch),

(ix) Area of operation (which in this section means the general geographic areas in which each vessel will catch, process, or transport for commercial purposes each species or group of species of fish, shellfish, or other living marine resources);

(4) The general objectives to be achieved by the accumulation of assets in

a Capital Construction Fund (to be incorporated in Schedule B of the Interim Agreement) including, the Parties best estimate of, the anticipated number, type, general characteristics, costs, and the amount of indebtedness to be paid, for vessels already, or to be, constructed, acquired, or reconstructed, and the anticipated fishery and area of operation of such vessels.

(5) A financial statement (indicating the nature of all costs of operation and sources of vessel income) for the past 4 years of each agreement vessel's operation or, if not owned or leased for at least such period, then for such lesser period as the vessel has been owned or leased.

(6) Subparagraphs (4) and (5) of this paragraph appear to involve commercial and financial information normally considered privileged or confidential and not customarily made public by a businessman. A specific written request must accompany the application if the Applicant wishes this information to be withheld from disclosure. The Administrator, National Oceanic and Atmospheric Administration, will endeavor to respect such request.

(7) The name and address of each depository in which the assets of a Capital Construction Fund will be deposited.

(c) Sufficiency of application. The sufficiency of any application shall be determined by the Administrator, National Oceanic and Atmospheric Administration, or his delegate.

(d) Filing. Letters of application must be signed and submitted to the National Marine Fisheries Service, Financial Assistance Division, 1801 North Moore Street, Arlington, VA 22209.

APPENDIX-INTERIM CAPITAL CONSTRUCTION FUND AGREEMENT

This Interim Capital Construction Fund Agreement (the "Agreement"), made on 197, by and between the Secretary of Commerce (the "Secretary") and (the "Party"), a citizen of the

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United States. Witnesseth: Whereas:

1. The Party has applied for establishment of an Interim Capital Construction Fund (the "Interim Fund") under section 607 of the Merchant Marine Act, 1936, for the purpose of providing replacement, additional, or reconstructed vessels for operation in the fisheries of the United States;

2. The Secretary after appropriate findings and determinations has authorized the award of an Interim Capital Construction Fund

Agreement to the Party upon the terms and conditions set forth in this Agreement and subject to the provisions of the Merchant Marine Act, 1936, as amended from time to time (the "Act"), and to such rules and regulations as the Secretary of Commerce or his delegate shall from time to time prescribe, either alone or jointly with the Secretary of the Treasury, as necessary to carry out the powers, duties, and functions vested in them by the Act (the "Rules and Regulations”).

Now, therefore, in consideration of the premises, it is hereby agreed:

I. Establishment of Interim Fund. An Interim Fund is hereby established for the purposes set forth in Article III. During the term of this Agreement deposits into and withdrawals from the Interim Fund shall be made only in accordance with the provisions, conditions and requirements of the Act, this Agreement, and the Rules and Regulations. II. Term of the Agreement. This Agreement shall terminate:

A. Upon failure of the Party to make application for a permanent Capital Construction Fund Agreement (the "Permanent Agreement") within sixty (60) days after notice in the FEDERAL REGISTER that the final form of such Permanent Agreement and form of application, if any, have been adopted by the Secretary.

B. Upon denial by the Secretary of a timely-filed application for a Permanent Agreement.

C. By mutual consent.

D. Upon failure to execute a Permanent Agreement within ninety (90) days after tender by the Secretary of such Agreement for execution by the Party.

E. At the option of the Secretary, upon a determination pursuant to subsection (f) (2) of section 607 of the Act that a Party has failed to fulfill a substantial obligation under this Agreement, or if the Party has made any material misrepresentation in connection with this Agreement.

F. Upon the execution by the Secretary and the Party of a Permanent Agreement. In the case of terminations occasioned by the events described in sections (A), (B), (C), (D), and (E) above, the provisions of the Internal Revenue Code of 1954 shall apply as though this Agreement had not been executed.

If this Agreement is terminated by virtue of the execution of a permanent agreement under (F) above, no interval shall be deemed to occur between the Interim and Permanent Agreement. The assets then on deposit in the Interim Fund, to the extent found necessary and appropriate by the Secretary for carrying out the program set forth in the Permanent Agreement, shall be transferred to the corresponding accounts in the Permanent Fund under the Permanent Agreement.

III. Purposes of the Interim Fund. The Interim Fund established by this Agreement shall be for the purposes of providing for qualified withdrawals during the terrn of this Agreement (1) to provide for the replace