(c) "Director" means the Director of the National Marine Fisheries Service or his delegate.

(d) "Person" means any individual, firm, corporation, association, or partnership.

(e) "Respondent" means a person against whom an action is brought under the Act.

(f) "Secretary" means the Secretary of Commerce pursuant to Reorganization Plan No. 4 of 1970 (84 Stat. 2090) or his delegate.

(g) "State" means the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, and Guam.

(h) "Taken" means captured, killed, collected or otherwise possessed.

(i) "Wildlife" means any animal over which the Secretary of Commerce exercises jurisdiction, including, but not limited to, marine mammals of the order Cetacea or Pinipedia, other than walruses, any sea turtle of the families Cheloniidae and Dermochelidae, and any mollusk or crustacean or any part, egg or offspring thereof; the dead body or parts thereof; or any product thereof.

§ 246.3 Prohibitions.

Subsections (a) and (b) of the Act provide that:

(a) Any person who

(1) Delivers, carries, transports, or ships, by any means whatsoever, or causes to be delivered, carried, transported, or shipped for commercial or noncommercial purposes or sells or causes to be sold any wildlife taken, transported, or sold in any manner in violation of any Act of Congress or regulation issued thereunder, or

(2) Delivers, carries, transports, or ships, by any means whatever, or causes to be delivered, carried, transported, or shipped for commercial or noncommercial purposes or sells or causes to be sold in interstate or foreign commerce any wildlife, taken, transported, or sold in any manner in violation of any law or regulation of any State or foreign country.

(b) Any person who

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(1) Sells or causes to be sold any products manufactured, made, or processed from any wildlife taken, transported, or sold in any manner in violation of any Act of Congress or regulation issued thereunder, or

(2) Sells or causes to be sold in interstate or foreign commerce any products manufactured, made, or processed from any wildlife taken, transported, or sold in any manner in violation of any law or regulation of a State or a foreign country, or

(3) Having purchased or received wildlife imported from any foreign commerce or shipped, transported, or carried in interstate commerce, makes or causes to be made any false record, account, label, or identification thereof, or

(4) Receives, acquires, or purchases for commercial or noncommercial purposes any wildlife

(i) Taken, transported, or sold in violation of any law or regulation of any State or foreign country and delivered, carried, transported, or shipped by any means or method in interstate or foreign commerce, or

(ii) Taken, transported, or sold in violation of any Act of Congress or regulation issued thereunder * * shall be subject to the penalties prescribed

§ 246.4

Enforcement.

(a) Any authorized official or any officer of the customs is authorized to execute any warrant to search for and seize any wildlife, product, property, records, or item used or possessed in violation of the Act with respect to which a civil penalty under § 246.3 may be assessed.

(b) The Director shall notify the owner or consignee of any wildlife, product, property, or item so seized as soon as practicable following such seizure.

(c) Such wildlife, product, property, or item so seized shall be held by such authorized official until proceedings involving the imposition of a civil penalty are completed.

(d) In lieu of holding such wildlife, product, property, or item so seized, the Director may, in his sole discretion, permit such person to post a bond or other surety satisfactory to the Director.

civil penalty by the Director of not more than $5,000 for each violation. Each violation shall constitute a separate offense. Such person shall be given notice and opportunity for a hearing with respect to such violation. Such hearing shall follow the procedures set forth in §§ 246.6-246.16.

§ 246.6 Notice of proposed assessment; opportunity for hearing.

(a) Prior to the assessment of a civil penalty pursuant to § 246.5 a notice of proposed assessment issued by the Director shall be served personally or by registered or certified mail, return receipt requested, upon the respondent. The notice shall contain:

(1) A concise statement of the facts believed to show a violation;

(2) A specific reference to the provisions of the Act;

(3) The amount of penalty proposed to be assessed. The notice shall inform the respondent that he has 20 days from receipt of the notice in which to request a hearing or to waive it. The request or waiver shall be in writing and addressed to the Director, National Marine Fisheries Service U.S. Department of Commerce, Washington, D.C. 20235. The notice shall further inform the respondent that if he does not respond to the notice within the 20 days allowed, he shall be deemed to have waived his right to a hearing and and to have consented to the making of an assessment without a hearing.

(b) With his request for a hearing or with his written waiver of a hearing, the respondent may submit objections to the proposed assessment. He may deny the existence of the violation or ask that no penalty be assessed or that the amount be reduced. The respondent must set forth in full all facts supporting his denial of the alleged violation or his request for relief.

§ 246.7 Waiver of hearing; assessment of penalty.

(a) If a written waiver of a hearing is timely made, or if a hearing is deemed to have been waived as provided in §246.6(a), the Director shall proceed either to make an assessment of a civil penalty or to rescind the proposed assessment taking into consideration

such showing as may have been made by respondent pursuant to § 246.6(b). Such action shall become the final administrative decision of the Secretary when rendered and any civil penalty assessed shall be collected in accordance with § 246.16. Notice of such final decision shall be promptly sent to the respondent by registered or certified mail, return receipt requested.

(b) If, despite the waiver of a hearing, the Director believes that there are material facts at issue which cannot otherwise be satisfactorily resolved, he may refer the case to an administrative law judge as provided in $246.8.

Law Judge and agency representative; notice of hearing.

(a) If a written request for a hearing has been timely made, or the Director determines, pursuant to § 246.7(b), that a hearing should be held, the case shall be assigned to an administrative law judge appointed pursuant to 5 U.S.C. 3105. Written notice of the assignment shall promptly be given to the respondent by the Director, together with the name and address of the person who will present evidence on behalf of the Secretary at the hearing (the agency representative), and thereafter all pleadings and other documents shall be filed directly with the administrative law judge, with a copy served on the agency representative or the respondent as the case may be.

(b) The Director shall deliver to the administrative law judge a copy of the notice of proposed assessment, and response to the respondent thereto, and other materials deemed relevant to the case and shall furnish to the respondent a copy of any such materials not already in respondent's possession.

(c) The administrative law judge shall promptly cause to be served on the parties notice of the time and place of the hearing, which shall not be less than ten (10) days after service of the notice of hearing except in extraordinary circumstances.

§ 246.9 Failure to appear; official transcript; record for decision.

(a) If the respondent fails to appear at the hearing, he will be deemed to

have consented to a decision being rendered on the record made at the hearing.

(b) The Director shall provide the services of an official reporter who shall make the only official transcript of the proceedings. Copies of the official transcript may be obtained from the official reporter upon payment of the charges therefor.

(c) The transcript of testimony and exhibits, together with all papers and requests filed in the proceedings, shall constitute the exclusive record for decision.

§ 246.10 Duties and powers of the Administrative Law Judge.

(a) It shall be the duty of the administrative law judge to inquire fully into the facts as they relate to the matter before him. Upon assignment to him and before submission of the case, pursuant to § 246.12, to the Secretary, the administrative law judge shall have authority to:

(1) Rule on offers of proof and receive relevant evidence;

(2) Take or cause depositions to be taken whenever the ends of justice would be served thereby;

(3) Regulate the course of the hearing and, if appropriate, exclude from the hearings persons who engage in misconduct, and strike all testimony of witnesses refusing to answer any questions ruled to be proper which are related to such questions;

(4) Hold conferences for the settlement or simplification of the issues by consent of the parties or upon his own motion;

(5) Dispose of procedural requests, motions or similar matters and order hearings reopened prior to issuance of the administrative law judge's report and recommendations;

(6) Grant requests for appearance of witnesses or production of documents; (7) Limit lines of questioning or testimony which are immaterial, irrelevant, or unduly repetitious;

(8) Examine and cross-examine witnesses and introduce into the record documentary or other evidence;

(9) Request the parties at any time during the hearing to state their respective positions concerning any issue

in the case or theory in support thereof;

(10) Continue, at his discretion, the hearing from day-to-day, or adjourn it to a later date or to a different place;

(11) Take official notice of any matters not appearing in evidence in the record which are among the traditional matters of judicial notice; or of technical or scientific facts within the general or specialized knowledge of the Department of Commerce as an expert body; or of a document required to be filed with or published by a duly constituted Government body: Provided, That the parties shall be given notice, either during the hearing or by reference in the administrative law judge's decision, of the matters so noticed, and shall be given adequate opportunity to show the contrary;

(12) Prepare, serve, and submit his initial decision pursuant to § 246.14.

(13) Take any other action necessary and not prohibited by this section or the Act.

§ 246.11 Appearance of the respondent and the agency representative.

The respondent and the agency representative shall have the right to appear at such hearing in person, by counsel, or by other representative, to examine and cross-examine witnesses to the extent required for a full and true disclosure of the facts, to conduct oral argument at the close of testimony and to introduce into the record relevant documentary or other evidence, except that the participation of either party shall be limited to the extent prescribed by the administrative law judge.

grant an extension of such time for filing.

§ 246.14 Decisions.

(a) After the close of the hearing and the receipt of briefs, if any, the administrative law judge shall expeditiously prepare an initial decision. The initial decision shall contain findings of fact, conclusions, and the reasons or basis therefor, upon the material issues presented, and shall specifically find whether the respondent committed the violations alleged and, if so, the amount of the civil penalty to be assessed.

(b) The administrative law judge shall cause his initial decision to be served on the respondent and the agency representative within 20 days after the close of the hearing or the receipt of all briefs, whichever is later, and shall forthwith transfer the record in the case to the Secretary through the Director.

(c) Within 10 days of receipt of the initial decision of the administrative law judge, either the respondent or the agency representative may file with the Secretary by serving the Director, an appeal of the initial decision. If no appeal is received within such period, the initial decision shall become the final administrative decision of the Secretary. If an appeal is received within such period, the Secretary shall render a final decision after considering the record and the appeal. Notice of an appeal by either party shall be promptly given in writing to the other party and notice of the Secretary's final decision upon appeal shall be promptly given in writing to both parties.

§ 246.15 Remission, mitigation, or compromise.

For good cause shown, the Secretary may at any time remit, mitigate, or compromise the assessment of a civil penalty made under the provisions of these regulations.

§ 246.16 Payment of penalty.

The respondent shall have 30 days from receipt of the final assessment decision within which to pay the penalty assessed. Upon a failure to pay

the penalty, the Secretary may request the Attorney General to institute a civil action in the appropriate United States District Court to collect the penalty.

§ 246.17 Disposition of seized wildlife, products, property, or items.

(a) Upon the completion of proceeding involving a civil penalty, the Director may proceed in any court of competent jurisdiction against any wildlife, product, property, or item seized as a result of its use or possession in connection with a violation of the Act

to have such wildlife, product, property, or item forfeited to the Director.

(b) Any wildlife, product, property, or item forfeited to the Director may be disposed of in such manner as he deems appropriate.

(c) The Director shall return any wildlife, product, property or item seized or the monetary amount if a bond was posted to the owner or consignee if he does not begin an action to have such wildlife, product, property, or item in a court of competent jurisdiction within 30 days following the disposition of the civil penalty pursuant to § 246.7 or § 246.14, whichever is applicable.