(a) "Act" means the provisions of section 43 of Title 18, U.S. Code.

(b) "Authorized Official" means Enforcement Agents of the National Marine Fisheries Service.

(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—

(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 sei

zure.

(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.

8 246.5 Penalties.

Any person who knowingly violates or who, in the exercise of due care, should know that he is violating any provision of subsection (a) or (b) of the Act (see § 246.3) may be assessed a 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 through 246.16.

88 246.6-246.16 [Reserved]

§ 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.

(b) Act. The Fish and Wildlife Act of 1956, as amended (16 U.S.C. 742(c)).

(c) State. Any State, the territories and possessions of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.

(d) Citizen of the United States. Any individual who is a United States citizen by law, birth, or naturalization; any association, partnership, or corporation which meets the requirements of section 2 of the Shipping Act, 1916, for documenting vessels in the coastwise trade; or any State, agency of a State, or group of States.

(e) National of the United States. Any individual who is a United States national by law or birth or any association, partnership, or corporation which meets the requirements of section 2 of the Shipping Act, 1916, for documenting vessels in the coastwise trade (except that organization under the laws of American Samoa is permissible and individuals who are either nationals or citizens of the United States meet the Shipping Act requirements for the purpose of this Program).

(f) Commercial fishing vessel. Any waterborne craft documented under U.S. law or registered under State laws whose purpose is commercial fishing or assisting commercial fishing.

(g) Fund. The Fisheries Loan Fund authorized by 16 U.S.C. 742(c), as amended.

(h) Obligation. Any evidence of indebtedness.

(i) Obligor. Any owner or operator of a commercial fishing vessel who is primarily liable for payment of any obligation.

§ 250.3 Loan authorization and priority.

(a) Loans shall be made only for one of the following purposes:

(1) Assisting obligors to avoid default obligations financing the construction, reconstruction, reconditioning, or purchase of commercial fishing vessels of at least 5 net tons when those obligations are guaranteed by the Federal Government under the Fisheries Obligation Guarantee Program authorized by Title XI of the

Merchant Marine Act, 1936 (46 U.S.C. 1271 through 1280).

(2) Assisting obligors to avoid default on obligations financing the construction, reconstruction, reconditioning, or purchase of commercial fishing vessels of at least 5 net tons (i) when those obligations are not guaranteed under the Fisheries Obligation Guarantee Program, but; (ii) the vessels involved meet the use and documentation requirements, and the obligors meet the citizenship requirements, which would apply if the obligations had been guaranteed under the Fisheries Obligation Guarantee Program.

(3) Assisting the owners or operators of commercial fishing vessels of any size where there has been, or may be, a net operating loss.

(4) The first priority for loans is paragraph (a)(1) of this section. Any monies not needed for paragraph (a)(1) of this section will be used for paragraph (a)(2) of this section. Any monies not required for paragraph (a)(2) of this section will be used for paragraph (a)(3) of this section.

Subpart B-Application

§ 250.4 Eligibility.

An eligible applicant must be a citizen or national of the United States and must:

(a) Reside or conduct business in any State;

(b) Own or operate a commercial fishing vessel used for commercial fishing operations; and

(c) Demonstrate that he has substantial experience and proven ability in the management and financing of fishing operations and that the loan is likely to result in the continued viability of the commercial fishing operation. In making this determination, the Secretary shall consider, among other factors, economic conditions within any fishery, the negative financial effect these conditions may have had, and the uncertainty these conditions may cause over the longer term. (Approved by the Office of Management and Budget under control number 06480133)

[48 FR 23792, May 26, 1983, as amended at 48 FR 57302, Dec. 29, 1983]

§ 250.5 Other requirements.

(a) The applicant must demonstrate at the time of application that the loan applied for is not otherwise available at reasonable rates which permit continued operation. The loan applied for shall be deemed to be otherwise available at reasonable rates which permit continued operation unless an applicant can show:

(1) Proof of at least two refusals of the desired credit from the applicant's bank. This proof of refusal must be dated and state the amount of loan and terms requested.

(2) That the desired credit is otherwise unavailable on reasonable terms from sources other than banks, as from:

(i) The disposal at a fair price of assets not required by the applicants in the conduct of his business or not reasonably necessary to its potential growth, (ii) use of personal credit and/ or resources of the owner, partners, management, affiliates, or principal stockholders of the applicant, or (iii) from other known sources of credit.

(b) Bank refusals to advance credit I will not be considered the full test of credit unavailability where there is reason to believe that credit is otherwise available on reasonable terms from sources other than banks. Nevertheless, in the case of an application by an obligor whose obligation is guaranteed under the Fisheries Obligation Guarantee Program, proof of the refusal of the obligor's bank and at least one other source to extend further credit on behalf of the obligor may constitute proof that the credit applied for is not otherwise available on reasonable terms.

§ 250.6 Application processing and procedures.

(a) Applicants for loans under § 250.3(a)(1) may apply at any time (the Fund will, however, expire on September 30, 1983). Applicants for loans under § 250.3(a)(2) may apply only during such open seasons as the Secretary provides by further notice. In the event monies become available under § 250.3(a)(3), open seasons will be established by further notice. Available monies for all purposes may be

regionally apportioned and maximum loan amounts will be established by further notice. Restrictive application criteria will be established by further notice for loan applications under § 250.3(a)(2).

(b) Forms. Applicants must file an application, furnished by the National Marine Fisheries Service, with the Regional Branch of the National Marine Fisheries Service's Financial Services Division in the Region in which the applicant conducts his business. The Regional Offices' addresses follow:

(1) Northeast Region. (Maine, Massachusetts, Rhode Island, Connecticut, New Hampshire, New York, New Jersey, Delaware, Maryland, Virginia, and the Great Lakes States): Financial Services Branch, National Marine Fisheries Service, Post Office Building, Box 1109, Gloucester, Massachusetts 01930, (617) 281-3600.

(2) Southeast Region. (North Carolina, South Carolina, Georgia, Flordia, Alabama, Mississippi, Louisiana, Texas, Puerto Rico, Virgin Islands): Financial Services Branch, National Marine Fisheries Service, 9450 Koger Boulevard, Duval Building, St. Petersburg, Flordia 33702, (813) 893-3148.

(3) Southwest Region. (California, Hawaii, American Samoa, Guam, Trust Territory of Pacific Islands): Financial Services Branch, National Marine Fisheries Service, 300 South Ferry Street, Terminal Island, California 90731, (213) 548-2478.

(4) Northwest Region. (Washington, Oregon, Alaska): Financial Services Branch, National Marine Fisheries Service, 7600 Sandpoint Way, NE (BIN C15700) Seattle, Washington 98115, (206) 446-6118.

(c) Processing of applications. If the application is materially complete and the applicant is eligible, the Regional Financial Services Branch will accept the application and assign it a case number. Applications under

§ 250.3(a)(2) will be considered in the order of their submission. Applications received after available monies are exhausted will not be considered. The Regional Financial Services Branch will evaluate applications being considered for funding. After a decision is made, the Regional Financial Services Branch will inform the applicant.

Subpart C-Loans

§ 250.7 Approval.

(a) The Secretary will approve the loan by a loan authorization letter covering the terms and conditions of the loan.

(b) Loan documents will be furnished by the Secretary. Applicants whose applications are not approved will be notified by a letter from the Financial Services Branch.

§ 250.8 Amount of loan and other restrictions.

Loan amounts may be limited from time to time in order to prevent exhaustion of available loan monies and to assure that monies will be used effectively. The amount any one borrower, or related borrowers, may borrow will be restricted. Only principals may apply. Restrictions regarding length of fisheries experience and other factors will be established by further notice. Loan amount limitations and other requirements will be effected by instructions from the Chief, Financial Services Division, National Marine Fisheries Service, Washington, D.C.