case can the additional period exceed 120 days.

(1) First method (this method must use annual catch divided by 365 days to calculate catch-per-day):

(i) Multiply days lost as a direct result of seizure and detention by average catch-per-day during last three calendar years,

(ii) Multiply amount in paragraph (a)(1)(i) of this section by market price, and

(iii) Divide by two to get the maximum compensable amount, or,

use

(2) Second method (always IATTC statistics for all calculations): (i) Subtract tonnage aboard at time of seizure from highest trip tonnage during last three calendar years,

(ii) Divide amount in paragraph (a)(2)(i) of this section by average catch-per-day during last three calendar years to get remaining fishing days required to fill vessel,

(iii) Subtract amount in paragraph (a)(2)(ii) of this section from number of days detained,

(iv) If amount in paragraph (a)(2)(iii) of this section is negative or zero, multiply number of days detained by average catch-per-day during last three calendar years (if not go on to paragraph (a)(2)(v) of this section),

(v) If amount in paragraph (a)(2)(iii) in this section is positive and is equal to or less than average downtime, multiply amount in paragraph (a)(2)(ii) of this section by average catch-per-day during last three calendar years (if not, go on to paragraph (a)(2)(vi) of this section),

(vi) If amount in paragraph (a)(2)(iii) in this section is positive and is greater than average downtime, subtract average downtime and multiply the sum of this amount and the amount in paragraph (a)(2)(ii) of this section by the average catch-per-day during last three calendar years (subtract additional downtime each time the sum computed in this manner exceeds average trip time during last three calendar years),

(vii) Multiply amount in paragraph (a)(2) (iv), (v), or (vi) of this section, whichever is applicable, by market price, and

(viii) Divide by two to get the maximum compensable amount.

(b) Value of catch loss by weight class and grade. Each seizure claim submitted must contain a copy of the catch landing receipt for the trip preceding the seizure. This document provides a detailed size and species mix and the price paid per weight class for each grade (e.g., standard grade yellowfin over 71⁄2 lbs @ $1,200/ton, and standard grade yellowfin under 71⁄2 lbs @ $1,100/ton, plus $30/ton for premium grade or less $60/ton for minimum grade). The Secretary will determine from the catch landing receipt an average by weight and grade class of the amount of catch on the trip prior to the seizure, apply this percentage to the average catch per day's fishing (IATTC's figure), and arrive at a figure relating to the approximate catch for each applicable species. The following method will be used:

(1) The relative percentage for each weight and grade class will be determined by dividing each weight and grade class by the sum of them all, and

(2) IATTC's catch rate will be multiplied by each weight and grade class percentage to arrive at an average for each weight and grade class. The average for each weight and grade class will be multiplied by the relative price per pound (for each class) to determine the value per weight and grade class.

(c) Stolen or confiscated property. Confiscation of property which the claimant was required to buy from the confiscator is reimbursable by the Department under Section 3 of the Act. Any other property confiscated is reimbursable from this Guaranty Fund. Confiscated property is divided into the following categories:

(1) Compensation for confiscation of vessels, where no buy-back has occurred, will be based on market value which will be determined by averaging estimates of market value obtained from as many vessel surveyors or brokers as the Secretary deems practicable;

(2) Compensation for capital equipment other than vessel, will be based on depreciated replacement cost;

30-075 0-89-6

(3) Compensation for expendable items and crew's belongings will be 50 percent of their replacement costs; and

(4) Compensation for confiscated catch will be for full value, based on the price-per-pound;

(d) Fuel expense. Compensation for fuel expenses will be based on the purchase price, the time required to run to and from the fishing grounds, the detention time in port, and the documented fuel consumption of the vessel.

(e) Insurance proceeds. No payments will be made from the Fund for losses covered by any policy of insurance or other provisions of law.

(f) Appeals. All determinations under this section are final and are not subject to arbitration or appeal.

§ 33.10 Payments.

The Office Director, Office of Fisheries Affairs, Bureau of Oceans and International Environmental and Scientific Affairs will pay the claimant the amount calculated under § 33.9. Payment will be made as promptly as practicable, but may be delayed pending the appropriation of sufficient funds. The Director shall notify the claimant of the amount approved for payment as promptly as practicable and the same shall thereafter constitute a valid, but non-interest bearing obligation of the Government. Delays in payments are not a direct consequence of seizure and detention and cannot therefore be construed as in

§ 40.1

The

Definitions.

following

definitions supplement definitions contained in the Immigration and Nationality Act (INA). As used in these regulations, the term: (a) "Accompanying" or "accompanied by" means not only an alien in the physical company of a principal alien but also an alien who is issued an immigrant visa within 4 months of either the date of issuance of a visa to, or the date of adjustment of status in the United States of, the principal alien, or the date on which the principal alien personally appears and registers before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child. An "accompanying" relative may not precede the principal alien to the United States.

(b) "Act" means the Immigration and Nationality Act (or INA), as amended.

(c) "Competent officer," as used in INA 101(a)(26), means a "consular officer" as defined in INA 101(a)(9).

(d) "Consular officer," as defined in INA 101(a)(9), includes commissioned consular officers and the Director of the Visa Office of the Department and such other officers as the Director may designate for the purpose of issuing nonimmigrant visas only, but does not include a consular agent, an attache or an assistant attache. The assignment by the Department of any Foreign Service Officer to a diplomatic or consular office abroad in a position administratively designated as requiring, solely, partially, or principally, the performance of consular functions, and the initiation of a request for a consular commission, constitutes designation of the officer as a "consular officer" within the meaning of INA 101(a)(9).

(e) "Department" means the Department of State of the United States of America.

means

a

area" (f) "Dependent colony or other component or dependent area overseas from the governing foreign state, natives of which are subject to the limitation prescribed by INA 202(c).

(g) "Documentarily qualified" means that the alien has reported that all the documents specified by the consular officer as sufficient to meet the requirements of INA 222(b) have been obtained, and that necessary clearance procedures of the consular office have been completed. This term shall be used only with respect to the alien's qualification to apply formally for an immigrant visa; it bears no connotation that the alien is eligible to receive a visa.

(h) "Entitled to immigrant classification" means that the alien:

(1) Is the beneficiary of an approved petition granting immediate relative or preference status;

(2) Has satisfied the consular officer as to entitlement to special immigrant status under INA 101(a)(27); or

(3) Has obtained an individual labor certification, or is within one of the professional or occupational groups

listed in Schedule A of the Department of Labor regulations, or is within one of the classes described in § 40.7(a)(14) (iii) and is therefore not within the purview of INA 212(a)(14).

(i) With respect to alternate chargeability pursuant to INA 202(b), the term "foreign state" is not restricted to those areas to which the numerical limitation prescribed by INA 202(a) applies but includes dependent areas, as defined in this section.

(j) “INA” means the Immigration and Nationality Act, as amended.

(k) "INS" means the Immigration and Naturalization Service.

(1) "Not subject to numerical limitation” means that the alien is entitled to immigrant status as an immediate relative within the meaning of INA 201(b), or as a special immigrant within the meaning of INA 101(a)(27), unless specifically subject to a limitation other than under INA 201(a).

(m) "Parent," "father," and "mother," as defined in INA 101(b) (2), are terms which are not changed in meaning if the child becomes 21 years of age or marries.

(n) “Port of entry” means a port or place designated by the Commissioner of Immigration and Naturalization at which an alien may apply to INS for admission into the United States.

(0) "Principal alien” means an alien from whom another alien derives a privilege or status under the law or regulations.

(p) "Regulation” means a rule which is established under the provisions of INA 104(a) and is duly published in the FEDERAL REGISTER.

(q)“Son” or “daughter” includes only a person who would have qualified as a "child" under INA 101(b)(1) if the person were under 21 and unmarried.

(r) "Western Hemisphere" means North America (including Central America), South America and the islands immediately adjacent thereto including the places named in INA 101(b)(5).

[52 FR 42592, Nov. 5, 1987; 53 FR 9172, Mar. 21, 1988]

§ 40.2 Documentation of nationals.

(a) Nationals of the United States. A national of the United States shall not

A visa can be refused only upon a ground specifically set out in the law or implementing regulations. The term "reason to believe," as used in INA 221(g), shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in INA and as implemented by the regulations. Consideration shall be given to any evidence submitted indicating that the ground for a prior refusal of a visa may no longer exist. The burden of proof is upon the applicant to establish eligibility to receive a visa under INA 212 or any other provision of law or regulation.

§ 40.7 Grounds of ineligibility.

(a) Aliens ineligible under INA 212(a). Determinations relating to in

eligibility of aliens under INA 212(a) shall be governed by the following:

(1)-(6) Medical grounds of ineligibility-(i) Decision on eligibility based on findings of medical doctor. A finding of a panel physician designated by the post in whose jurisdiction the examination is performed pursuant to INA 212(a)(1) through (6), shall be binding on the consular officer, except that the officer may refer a panel physician finding in an individual case to USPHS for review.

(ii) Waivers of ineligibility for certain immigrants. The provisions of INA 212(g) shall apply to an immigrant alien ineligible under INA 212(a)(1) or (3) or afflicted with tuberculosis in any form who is the spouse, unmarried son or daughter, the minor unmarried lawfully adopted child, or the parent of a U.S. citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa.

(7) Physical defect affecting alien's ability to earn a living. A consular officer may issue a visa to an alien who is within the purview of INA 212(a)(7) upon receipt of a notice from INS of the giving of a bond or undertaking in accordance with INA 213 and INA 221(g)(3), if the consular officer is satisfied that the giving of such bond or undertaking removes the likelihood that the alien might become a public charge within the meaning of INA 212(a)(15) and the alien is otherwise eligible to receive a visa.

(8) Pauper, professional beggar, or vagrant. The provisions of INA 212(a)(8) shall apply only in the case of an alien who is at the time of visa application a pauper, professional beggar, or vagrant.

(9) Crime involving moral turpitude-(i) Acts must constitute a crime under criminal law of jurisdiction where they occurred. Before a finding of ineligibility under INA 212(a)(9) may be made because of an admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, it must first be established that the acts constitute a crime under the criminal law of the jurisdiction where they occurred. A determination that a crime involves moral turpitude shall be

based upon the moral standards generally prevailing in the United States.

(ii) Conviction for crime committed when under age 18. An alien shall not be ineligible to receive a visa under INA 212(a)(9) by reason of any offense committed prior to the alien's fifteenth birthday. Nor shall an alien be ineligible to receive a visa under INA 212(a)(9) by reason of any offense committed between the alien's fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code. An alien tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, shall be subject to the provisions of INA 212(a)(9) regardless of whether at that time juvenile courts existed within the jurisdiction of the convictions.

(iii) Two or more crimes committed while under age 18. An alien convicted of a crime involving moral turpitude or admitting the commission of acts which constitute the essential elements of such a crime and who has committed an additional crime involving moral turpitude is ineligible under INA 212(a)(9), even though the crimes were committed while the alien was under the age of 18 years.

(iv) Waiver of ineligibility—INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(9) but has the requisite family relationship to seek the benefits of INA 212(h), the consular officer shall advise the alien of the procedure for applying to INS for relief under that section. A visa may not be issued to the alien until the consular officer has received notification from INS of the approval of the alien's application under INA 212(h).

(v) Conviction in absentia. A conviction in absentia of a crime involving moral turpitude does not constitute a conviction within the meaning of INA 212(a)(9).

(vi) Effect of pardon by appropriate U.S. authorities/foreign States. An alien shall not be considered ineligible under INA 212(a)(9) by reason of a conviction of a crime involving moral