22 U.S.C. § 1980 — Compensation for loss or destruction of

Page 495 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 1980 1 See References in Text note below. respect to the United States’’ for ‘‘to which the United States is a signatory party’’. Subsec. (g)(5) to (7). Pub. L. 95–376, § 2(7)(C), added pars. (5) to (7). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States magistrate judges’’ substituted for ‘‘United States magistrates’’ in subsec. (f)(2) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Proce- dure. Previously ‘‘United States magistrates’’ sub- stituted for ‘‘United States commissioners’’ pursuant to Pub. L. 90–578. See chapter 43 (§ 631 et seq.) of Title 28. ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (f)(5) pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. § 1979. Fishermen’s Protective Fund There is created a Fishermen’s Protective Fund which shall be used by the Secretary of State to reimburse owners of vessels for amounts determined and certified by him under section 1973 of this title. The amount of any claim or portion thereof collected by the Sec- retary of State from any foreign country pursu- ant to section 1975(a) of this title shall be depos- ited in the fund and shall be available for the purpose of reimbursing vessel owners under sec- tion 1973 of this title; except that if a transfer to the fund was made pursuant to section 1975(b)(1) of this title with respect to any such claim, an amount from the fund equal to the amount so collected shall be covered into the Treasury as miscellaneous receipts. There is authorized to be appropriated to the fund (1) the sum of $3,000,000 to provide initial capital, and (2) such additional sums as may be necessary from time to time to supplement the fund in order to meet the re- quirements of the fund. (Aug. 27, 1954, ch. 1018, § 9, as added Pub. L. 92–569, § 5, Oct. 26, 1972, 86 Stat. 1183; amended Pub. L. 98–364, title III, § 302(c), July 17, 1984, 98 Stat. 444.) Editorial Notes AMENDMENTS 1984—Pub. L. 98–364 substituted ‘‘Secretary of State’’ for ‘‘Secretary of the Treasury’’ and ‘‘determined and certified by him’’ for ‘‘certified to him by the Secretary of State’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable with respect to seizure of vessels of the United States occurring on or after Oct. 26, 1972, except that reimbursements under section 1973 of this title may be made from the fund established by this section with respect to seizure of vessels occurring after Dec. 31, 1970 and before Oct. 26, 1972, if no reim- bursement was made before Oct. 26, 1972, see section 6 of Pub. L. 92–569, set out as an Effective Date of 1972 Amendment note under section 1972 of this title. § 1980. Compensation for loss or destruction of commercial fishing vessel or gear (a) Definitions For purposes of this section— (1) The terms ‘‘fishery’’, ‘‘fishery conserva- tion zone’’, ‘‘fishing’’, ‘‘fishing vessel’’, ‘‘Sec- retary’’, and ‘‘vessel of the United States’’ shall each have the same respective meaning as is given to such terms in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802).1 (2) The term ‘‘fishing gear’’ means any equipment or appurtenance which is necessary for the carrying out of fishing operations by a fishing vessel, whether or not such equipment or appurtenance is attached to such vessel. (3) The term ‘‘fund’’ means the Fishing Ves- sel and Gear Damage Compensation Fund es- tablished under subsection (f). (4) The term ‘‘resulting economic loss’’ means the gross income, as estimated by the Secretary, that a fishing vessel owner or oper- ator who is eligible for compensation under this section for damage to, loss of, or destruc- tion of, a fishing vessel or the fishing gear used with such vessel will lose by reason of not being able to engage in fishing, or having to reduce his fishing effort, during the period be- fore the vessel or gear, or both, are repaired or replaced and available for use. (b) Causes of loss or destruction Subject to the provisions of this section, the owner or operator (hereinafter referred to as the ‘‘vessel owner’’) of any fishing vessel which is a vessel of the United States is eligible for mone- tary compensation under this section for any damage to, loss of, or destruction of such vessel, or any fishing gear used with such vessel, or both, and for any resulting economic loss, if the damage, loss, or destruction— (1) in the case of such vessel— (A) occurs when such vessel is engaged in any fishery subject to the exclusive fishery management authority of the United States under the Magnuson-Stevens Fishery Con- servation and Management Act [16 U.S.C. 1801 et seq.], and (B) is attributable to any vessel (or its crew or fishing gear) other than a vessel of the United States; or (2) in the case of such fishing gear— (A) occurs when such fishing gear is being used for fishing in any fishery subject to such exclusive management authority, and (B) is attributable to any other vessel, whether or not such vessel is a vessel of the United States. For purposes of subparagraph (B), there shall be a rebuttable presumption that any damage, loss, or destruction of fishing gear is attrib- utable to another vessel. (c) Eligibility for compensation A vessel owner is not eligible for compensa- tion under this section with respect to fishing vessel or fishing gear damage, loss, or destruc- tion and resulting economic loss unless such owner— (1) makes application to the Secretary for compensation under this section within 90 days after the day on which the damage, loss, or destruction occurred or was first noticed by the owner; Page 496 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 1980 2 So in original. Probably should be ‘‘notes’’. (2) pays upon making such application a rea- sonable administrative fee which the Sec- retary shall deposit into the fund; (3) has, in such form as the Secretary shall prescribe by regulation, a current inventory or other evidence of possession of the fishery ves- sel or fishing gear concerned; (4) has complied with all applicable regula- tions, if any, relating to the marking of, and (if appropriate) the notification of the location of, the fishing gear concerned; and (5) is in compliance with such other regula- tions as may be prescribed by the Secretary to carry out this section. (d) Application for compensation; initial deter- mination of eligibility; amount of compensa- tion; review of initial determination; sub- rogation of United States upon payment (1) Application for compensation under this section shall be made in such form and manner, and include such documentation and other evi- dence relating to the cause and extent of the damage, loss, or destruction, and resulting eco- nomic loss, claimed, as the Secretary shall pre- scribe by regulation. The Secretary shall promptly, but not later than sixty days after re- ceipt of an application, consider, and issue an initial determination with respect to, the appli- cation. (2) The amount of compensation awarded to any vessel owner under this section shall be— (A) the depreciated replacement cost, or the repair cost, whichever cost is less, of the fish- ing vessel or the fishing gear concerned; and (B) 25 percent of any resulting economic loss. Any amount determined pursuant to subpara- graph (A) or (B) shall be reduced to the extent that evidence indicates that negligence by the vessel owner or operator contributed to the cause or the extent of the damage, loss, or de- struction and shall be further reduced by the amount of compensation, if any, that the vessel owner or operator has received or will receive with respect to the damage, loss, destruction, or resulting economic loss through insurance, pur- suant to any other provision of law, or other- wise. (3) The initial determination made by the Sec- retary under paragraph (1) with respect to any application shall— (A) if the application is disapproved, set forth the reasons therefor; or (B) if the application is approved, set forth the amount of compensation to which the ap- plicant is entitled and the basis on which such amount was determined. (4) Any vessel owner who is aggrieved by any decision of the Secretary contained in the ini- tial determination of the Secretary regarding such owner’s application may, within thirty days after the date of issue of the initial deter- mination, petition the Secretary for a review of the decision. If petition for review is not made to the Secretary within such thirty-day period regarding the initial determination, the initial determination shall be deemed to be the final determination on the application. Before under- taking any such review, the Secretary shall pro- vide to the vessel owner opportunity to submit additional written or oral evidence relating to the decision. After review the Secretary shall issue a final determination with respect to the application. (5) If compensation is awarded under the final determination on any application, the Secretary shall promptly pay from the fund to such owner the amount of compensation stated in the final determination. Upon the acceptance of such payment by the vessel owner, the United States shall be subrogated to all rights of the vessel owner with respect to which the payment is made. (e) Surcharge on foreign fishing vessels In addition to any fee imposed under section 204(b)(10) of the Magnuson-Stevens Fishery Con- servation and Management Act (16 U.S.C. 1824(b)(10)) with respect to any foreign fishing vessel for any year after 1978, the Secretary shall impose a surcharge in an amount not to exceed 20 percent of the amount of the fee im- posed under such section for such year. The fail- ure to pay any surcharge imposed under this subsection with respect to any foreign fishing vessel shall be treated by the Secretary as a fail- ure to pay the fee for such vessel under such sec- tion 204(b)(10). (f) Fishing Vessel and Gear Damage Compensa- tion Fund; requirements, etc. (1) There is established in the Treasury of the United States the Fishing Vessel and Gear Dam- age Compensation Fund. The fund shall be avail- able without fiscal year limitation as a revolv- ing fund for the purposes of administering, and paying compensation awarded under, this sec- tion. (2) The fund shall consist of— (A) all sums recovered by the United States in the exercise of rights subrogated to it under subsection (d)(5); (B) all administrative fees collected under subsection (c)(2); (C) all surcharges collected under subsection (e); (D) revenues received from deposits or in- vestments made under the last sentence of this paragraph; and (E) any revenue acquired through the issuance of obligations under paragraph (3). Sums may be expended from the fund only to such extent and in such amounts as are provided in advance in appropriation Acts. Sums in the fund which are not currently needed for the pur- pose of paying such awards shall be kept on de- posit or invested in obligations of, or guaranteed by, the United States. (3) Whenever the amount in the fund is not sufficient to pay compensation under this sec- tion, the Secretary may issue, in an amount not to exceed $5,000,000, notes or other obligations to the Secretary of the Treasury, in such forms and denominations, bearing such maturities, and subject to such terms and conditions as the Sec- retary of the Treasury may prescribe. Such no- tices 2 or other obligations shall bear interest at a rate to be determined by the Secretary of the Page 497 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 1980 Treasury on the basis of the current average market yield on outstanding marketable obliga- tions of the United States of comparable matu- rities during the month preceding the issuance of such notices 2 or other obligations. Moneys obtained by the Secretary under this paragraph shall be deposited in the fund and redemptions of any such notices 2 or other obligations shall be made from the fund. The Secretary of the Treasury shall purchase any such notes or other obligations, and for such purpose he may use as a public debt transaction the proceeds from the sale of any securities issued under chapter 31 of title 31. The Secretary of the Treasury may sell any such notices 2 or other obligations at such times and prices and upon such terms and condi- tions as he shall determine. All purchases, re- demptions, and sales of such notes or other obli- gations by the Secretary of the Treasury shall be treated as public debt transactions of the United States. All borrowing authority con- tained herein shall be effective only to such ex- tent or in such amounts as are provided in ad- vance in appropriation Acts. (g) Penalty for false or misleading statements Any person who willfully makes any false or misleading statement or representation for the purpose of obtaining compensation under this section is guilty of a criminal offense and, upon conviction thereof, shall be punished by a fine of not more than $25,000, or by imprisonment for not more than one year, or both. (Aug. 27, 1954, ch. 1018, § 10, as added Pub. L. 95–194, § 2, Nov. 18, 1977, 91 Stat. 1413; amended Pub. L. 95–376, § 3(a), Sept. 18, 1978, 92 Stat. 715; Pub. L. 96–289, § 4(b), June 28, 1980, 94 Stat. 606; Pub. L. 96–561, title II, §§ 238(b), 241, Dec. 22, 1980, 94 Stat. 3300, 3301; Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41.) Editorial Notes REFERENCES IN TEXT Section 3 of the Magnuson-Stevens Fishery Conserva- tion and Management Act (16 U.S.C. 1802), referred to in subsec. (a)(1), contained a prior par. (8) defining ‘‘fish- ery conservation zone’’ which was repealed and a new par. defining ‘‘exclusive economic zone’’ was added by Pub. L. 99–659, title I, § 101(a), Nov. 14, 1986, 100 Stat. 3706. The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsec. (b)(1)(A), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, which is classi- fied principally to chapter 38 (§ 1801 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 16 and Tables. CODIFICATION In subsec. (f)(3), ‘‘chapter 31 of title 31’’ substituted for ‘‘the Second Liberty Bond Act’’ on authority of Pub. L. 97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted Title 31, Money and Fi- nance. AMENDMENTS 1996—Subsecs. (a)(1), (b)(1)(A), (e). Pub. L. 104–208 sub- stituted ‘‘Magnuson-Stevens Fishery’’ for ‘‘Magnuson Fishery’’. 1980—Subsec. (a)(1). Pub. L. 96–561, § 238(b), sub- stituted ‘‘Magnuson Fishery Conservation and Manage- ment Act’’ for ‘‘Fishery Conservation and Management Act of 1976’’. Subsec. (a)(4). Pub. L. 96–561, § 241(1), added par. (4). Subsec. (b). Pub. L. 96–561, §§ 238(b), 241(2), inserted in provision preceding par. (1) ‘‘and for any resulting eco- nomic loss’’ after ‘‘or both,’’ substituted ‘‘Magnuson Fishery Conservation and Management Act’’ for ‘‘Fish- ery Conservation and Management Act of 1976’’, struck out provision in par. (2)(B) permitting compensation in the case of fishing gear lost, damaged, or destroyed by an act of God, and inserted provision following par. (2)(B) establishing for purposes of subpar. (B) a rebut- table presumption that any damage, loss, or destruc- tion of fishing gear is attributable to another vessel. Subsec. (c). Pub. L. 96–561, § 241(3), inserted in provi- sion preceding par. (1) ‘‘and resulting economic loss’’ after ‘‘destruction’’. Pub. L. 96–289 substituted ‘‘90’’ for ‘‘sixty’’ in par. (1). Subsec. (d). Pub. L. 96–561, § 241(4), inserted in par. (1) ‘‘, and resulting economic loss,’’ after ‘‘destruction’’ and in par. (2) included within the amount of compensa- tion awarded to any vessel owner 25 percent of any re- sulting economic loss. Subsec. (e). Pub. L. 96–561, § 238(b), substituted ‘‘Mag- nuson Fishery Conservation and Management Act’’ for ‘‘Fishery Conservation and Management Act of 1976’’. 1978—Subsec. (a). Pub. L. 95–376 substituted provi- sions defining ‘‘fishery’’, ‘‘fishing conservation zone’’, ‘‘fishing’’, ‘‘fishing vessel’’, ‘‘Secretary’’, ‘‘vessel of the United States’’, ‘‘fishing gear’’ and ‘‘fund’’ for provi- sions authorizing the Secretary to make a loan to an owner or operator whose commercial fishing vessel or its fishing gear was lost, damaged or destroyed by any vessel of a foreign nation. Subsec. (b). Pub. L. 95–376 substituted provisions set- ting forth the causes of the damage, loss, or destruc- tion of the vessel or its gear for which compensation is payable for provisions authorizing the Secretary to conduct an investigation of each incident of loss, dam- age or destruction for which the owner received a loan and allowing for repayment or cancellation of such loan depending on fault or nonfault of owner. Subsec. (c). Pub. L. 95–376 substituted provisions set- ting forth the administrative provisions for making a claim for compensation for provisions directing the Secretary, with the assistance of the Attorney General, the Secretary of State, and the claimant, to take ap- propriate action to collect on any rights assigned to him, and directing how any sums recovered shall be dis- pensed. Subsec. (d). Pub. L. 95–376 substituted provisions set- ting forth the form, manner and documentation of the application, the amount of compensation payable, pro- cedure for review of the initial determination of eligi- bility and prompt payment upon finding of such eligi- bility for provisions defining ‘‘Secretary’’ as the ‘‘Sec- retary of Commerce’’. Subsec. (e). Pub. L. 95–376 substituted provisions au- thorizing the imposition of a maximum 20 per cent sur- charge in addition to any fee imposed under section 1824(b)(10) of title 16 for provisions authorizing the Sec- retary to establish by regulation fees to recover the cost of administering this section. Subsecs. (f), (g). Pub. L. 95–376 added subsecs. (f) and (g). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that the amendment made by that section is effective 15 days after Oct. 11, 1996. EFFECTIVE DATE OF 1980 AMENDMENT Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat. 3300, provided that the amendment made by that sec- tion is effective 15 days after Dec. 22, 1980. EFFECTIVE DATE OF 1978 AMENDMENT Pub. L. 95–376, § 3(b), Sept. 18, 1978, 92 Stat. 718, pro- vided that: ‘‘The amendment made by subsection (a) Page 498 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 1980a [amending this section] shall take effect January 1, 1979.’’ SAVINGS PROVISION Pub. L. 95–376, § 3(c), Sept. 18, 1978, 92 Stat. 718, pro- vided that: ‘‘Nothing in the amendment made by sub- section (a) [amending this section] shall be construed as affecting in any manner or to any extent any loan made under section 10 of the Fishermen’s Protective Act of 1967 (as in effect before January 1, 1979) [this sec- tion], and, for purposes of the consideration by the Sec- retary of Commerce of any application for a loan under such section which was filed, but not acted on, before January 1, 1979, the amendment made by subsection (a) shall not be deemed to have been enacted.’’ COMPENSATION FOR CERTAIN FISHING VESSEL AND GEAR DAMAGE; APPLICATION Pub. L. 96–561, title II, § 240(a), (b)(1), Dec. 22, 1980, 94 Stat. 3300, 3301, provided that: ‘‘(a) IN GENERAL.—If— ‘‘(1) any owner or operator of a fishing vessel who suffered, after September 17, 1978, and before the date of the enactment of this title [Dec. 22, 1980], damage to, or loss or destruction of, such vessel or fishing gear used with such vessel, but did not apply for com- pensation therefor under section 10 of the Fisher- men’s Protective Act of 1967 (22 U.S.C. 1980) within the 60-day period prescribed in subsection (c)(1) of such section; or ‘‘(2) any commercial fisherman who suffered, after September 17, 1978, and before the date of the enact- ment of this title, damages compensable under title IV of the Outer Continental Shelf Lands Act of 1978 (43 U.S.C. 1841 et seq.), but who did not timely file a claim therefor within the 60-day period prescribed in section 405(a) of such Act [43 U.S.C. 1845(a)]; such owner or operator may make application for com- pensation with respect to such damage, loss or destruc- tion under such section 10 [this section], and such com- mercial fisherman may file a claim for, compensation for such damages under such title IV [43 U.S.C. 1841 et seq.], to the Secretary of Commerce, within the 60-day period beginning on the date of the enactment of this title [Dec. 22, 1980]. ‘‘(b) SPECIAL PROVISIONS.—(1) Notwithstanding any other provision of law— ‘‘(A) any application or filing timely made under subsection (a) shall be treated by the Secretary of Commerce as an application timely made under such section 10(c)(1) [subsec. (c)(1) of this section], or as a filing timely made under such section 405(a) [43 U.S.C. 1845(a)], as the case may be, with respect to the damage, loss, or destruction claimed; and ‘‘(B) any claim for fishing gear loss that was pend- ing on June 1, 1980, before the United States-Union of Soviet Socialist Republics Fisheries Claims Board or the American-Spanish Fisheries Board shall be treat- ed by the Secretary of Commerce as a timely applica- tion made, on the date of the enactment of this title [Dec. 22, 1980], under such section 10(c)(1) [subsec. (c)(1) of this section] for compensation for such loss.’’ TIMELY APPLICATIONS FOR COMPENSATION Pub. L. 96–289, § 4(a), June 28, 1980, 94 Stat. 605, pro- vided that: ‘‘Notwithstanding the provisions of section 10(c)(1) of the Fishermens Protective Act of 1967 (22 U.S.C. 1980) [subsec. (c)(1) of this section] applications for compensation under such Act [this chapter], filed within 90 days after the date of enactment of this sub- section [June 28, 1980] shall be deemed to be timely filed.’’ § 1980a. Reimbursement of owner for fee paid to navigate foreign waters if fee inconsistent with international law (a) Reimbursable fees In any case on or after June 15, 1994, in which a vessel of the United States exercising its right of passage is charged a fee by the government of a foreign country to engage in transit passage between points in the United States (including a point in the exclusive economic zone or in an area over which jurisdiction is in dispute), and such fee is regarded by the United States as being inconsistent with international law, the Secretary of State shall, subject to the avail- ability of appropriated funds, reimburse the ves- sel owner for the amount of any such fee paid under protest. (b) Documentation In seeking such reimbursement, the vessel owner shall provide, together with such other information as the Secretary of State may re- quire— (1) a copy of the receipt for payment; (2) an affidavit attesting that the owner or the owner’s agent paid the fee under protest; and (3) a copy of the vessel’s certificate of docu- mentation. (c) Timeliness Requests for reimbursement shall be made to the Secretary of State within 120 days after the date of payment of the fee, or within 90 days after November 3, 1995, whichever is later. (d) Funding; appropriations Such funds as may be necessary to meet the requirements of this section may be made avail- able from the unobligated balance of previously appropriated funds remaining in the Fisher- men’s Protective Fund established under section 1979 of this title. To the extent that requests for reimbursement under this section exceed such funds, there are authorized to be appropriated such sums as may be needed for reimbursements authorized under subsection (a), which shall be deposited in the Fishermen’s Protective Fund established under section 1979 of this title. (e) Claim against foreign government The Secretary of State shall take such action as the Secretary deems appropriate to make and collect claims against the foreign country im- posing such fee for any amounts reimbursed under this section. (f) ‘‘Owner’’ defined For purposes of this section, the term ‘‘owner’’ includes any charterer of a vessel of the United States. (Aug. 27, 1954, ch. 1018, § 11, as added Pub. L. 104–43, title IV, § 402(a), Nov. 3, 1995, 109 Stat. 389.) Statutory Notes and Related Subsidiaries CONGRESSIONAL FINDINGS Pub. L. 104–43, title IV, § 401, Nov. 3, 1995, 109 Stat. 388, provided that: ‘‘The Congress finds that— ‘‘(1) customary international law and the United Nations Convention on the Law of the Sea guarantee the right of passage, including innocent passage, to vessels through the waters commonly referred to as the ‘Inside Passage’ off the Pacific Coast of Canada; ‘‘(2) in 1994 Canada required all commercial fishing vessels of the United States to pay 1,500 Canadian dollars to obtain a ‘license which authorizes transit’ through the Inside Passage;