(4) The period during which the permit is valid, which period shall be subject to reimposition of the moratorium, or any closure of a season by the State of Alaska;

(5) Any requirements for reports or rights of inspection with respect to any activities carried out pursuant to the permit;

(6) The conditions of sale or other disposition of any parts or products including any marking requirements; and

(7) A reasonable fee covering the cost of issuance of such permit, including an appropriate apportionment of overhead and administrative expenses of the Department of Commerce. In no event will the cost be less than the fee for the comparable non-resident license or permit issued by the State of Alaska.

(Endangered Species Act of 1973, section 11(f), 87 Stat. 884, Pub. L. 93-205; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-1)

§ 217.2 Scope of regulations.

The various provisions of Parts 217 through 222 of this chapter are interrelated, and particular note should be taken that the parts must be construed with reference to each other. The regulations in Parts 217 through 222 apply only for fish or wildlife under the jurisdictional responsibilities of the Secretary of Commerce for the purpose of carrying out the Endangered Species Act of 1973 (see Part 222, § 222.23(a)). Endangered species of fish or wildlife other than those covered by these regulations are under the jurisdiction of the Secretary of the Interior. For rules and procedures relating to such species, see 50 CFR Parts 10 through 17.

§ 217.3 Other applicable laws.

No statute or regulation of any State shall be construed to relieve a person from the restrictions, conditions, and requirements contained in Parts 217 through 222 of this chapter. In addition, nothing in Parts 217 through 222 of this chapter, nor any permit issued under Parts 217 through 228 of this chapter, shall be construed to relieve a person from any other requirements imposed by a statute or regulation of any State or of the United States, including any applicable health, quarantine, agricultural, or customs laws or regulations, or other National Marine Fisheries Service enforced statutes or regulations.

§ 217.4 When regulations apply.

The regulations of Parts 217 through 222 of this chapter shall apply to all matters, including the processing of permits, arising after the effective date of such regulations, with the following exception:

(a) Civil penalty proceedings. Except as otherwise provided in § 218.25, the civil penalty assessment procedures contained in Parts 217 through 222 of this chapter shall apply only to any proceeding instituted by notice of violation dated subsequent to the effective date of these regulations, regardless of when the act or omission which

is the basis of a civil penalty proceeding occurred.

Subpart B-Definitions

§ 217.12 Definitions.

"Act" means the Endangered Species Act of 1973, as amended (Pub. L. 93-205).

"Assistant Administrator" means the Assistant Administrator for Fisheries of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, or his authorized representative.

"Commercial activity" means all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, That it does not include the exhibition of commodities by museums or similar cultural or historical organizations.

"Country of exportation" means the last country from which the animal was exported before importation into the United States.

"Country of origin” means the country where the animal was taken from the wild, or the country of natal origin of the animal.

"Fish or wildlife" means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.

"Foreign commerce" includes, among other things, any transaction (1) between persons within one foreign country, or (2) between persons in two or more foreign countries, or (3) between a person within the United States and a person in one or more foreign countries, or (4) between persons within the United States, where the fish or wildlife in question are moving in any country or countries outside the United States.

"Import" means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the tariff laws of the United States.

"Permit" or "Certificate of exemption" means any document so designated by the National Marine Fisheries Service and signed by an authorized official of the National Marine Fisheries Service, including any document which modifies, amends, extends or renews any permit or certificate of exemption.

"Person" means an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government.

"Possession" means the detention and control, or the manual or ideal custody of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Possession includes the act or state of possessing and that condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. Possession includes constructive possession which means not actual but assumed to exist, where one claims to hold by virtue of some title, without having actual custody.

"Pre-Act endangered species part" means any sperm whale oil, including derivatives and products thereof, which was lawfully held within the United States on December 28, 1973 in the course of a commercial activity; or any finished scrimshaw product, if such product or the raw material for such product was lawfully held within the United States on December 28, 1973, in the course of a commercial activity.

"Scrimshaw product" means any art form which involves the substantial etching or engraving of designs upon,

or the substantial carving of figures, patterns, or designs from any bone or tooth of any marine mammal of the order Cetacea. For purposes of this part, polishing or the adding of minor superficial markings does not constitute substantial etching, engraving or carving.

"Secretary" means the Secretary of Commerce or his authorized representative.

"State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pacific Islands.

"Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.

"Transportation" means to ship, convey, carry or transport by any means whatever, and deliver or receive for such shipment, conveyance, carriage, or transportation.

"United States" means the several States of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pacific Islands.

219.29

Destruction of items. 219.30 Food items. 219.31 Record-keeping.

AUTHORITY: Black Bass Act, 16 U.S.C. 851856; Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407; Endangered Species Act of 1973, 16 U.S.C. 1531-1543; Lacey Act, 18 U.S.C. 42-44, 3054, 3112; Fish and Wildlife Improvement Act of 1978, 16 U.S.C. 7427(c); Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971g; Fishery Conservation and Management Act of 1976, 16 U.S.C. 1801-1882; Northern Pacific Halibut Act of 1937, 16 U.S.C. 772-772j; North Pacific Fisheries Act of 1954, 16 U.S.C. 1021-1032; Sockeye Salmon or Pink Salmon Fishing Act of

1947, 16 U.S.C. 776-776f; Sponge Act, 16 U.S.C. 781-785; Tuna Conventions Act of 1950, 16 U.S.C. 951-961; Whaling Convention Act of 1949, 16 U.S.C. 916-9167; Fur Seal Act of 1966, 16 U.S.C. 1151-1187; Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. 1431-1434.

SOURCE: 46 FR 31648, June 17, 1981, unless otherwise noted.

Subpart A-Introduction

§ 219.1 Purpose of regulations.

The regulations in this part provide rules and procedures for the seizure, holding, bonding, abandonment, and forfeiture of wildlife and other property, which under certain laws enforced by the National Marine Fisheries Service are subject to seizure and forfeit

ure.

§ 219.2 Scope of regulations.

The regulations in this part apply to fish, wildlife, or any other items (referred to as "items" hereinafter) which have been forfeited or abandoned to the United States under the following laws and regulations issued thereunder:

(a) Endangered Species Act of 1973, 16 U.S.C. 1531-1543;

(b) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407;

(c) Black Bass Act, 16 U.S.C. 851856;

(d) Lacey Act, 16 U.S.C. 42-44, 3054, 3112;

(e) Fishery Conservation and Management Act of 1976, 16 U.S.C. 18011882;

(f) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971g;

(g) Northern Pacific Halibut Act of 1937, 16 U.S.C. 772-772j;

(h) North Pacific Fisheries Act of 1954, 16 U.S.C. 1021-1032;

(i) Sockeye Salmon or Pink Salmon Fishing Act of 1947, 16 U.S.C. 776776f;

(j) Sponge Act, 16 U.S.C. 781-785; (k) Tuna Conventions Act of 1950, 16 U.S.C. 951-961;

(1) Whaling Convention Act of 1949, 16 U.S.C. 916-9167;

(m) Fur Seal Act of 1966, 16 U.S.C. 1151-1187;

(n) Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. 1431-1434.

The regulations in this part are in addition to, and not in contradiction of, any special rules which may provide for the sale of fish and perishable items seized under various of these laws.

Subpart B-[Reserved]

Subpart C-Disposal of Forfeited or Abandoned Items

§ 219.20 Delivery to Administrator.

Upon forfeiture of any fish, wildlife, parts or products thereof, or other property to the United States, or the abandonment or waiver of any claim to any such property, it shall be delivered to the Administrator, or his or her designee, for storage or disposal according to the provisions of this subpart.

§ 219.21 Definitions.

For the purpose of this Subpart C:

(a) "Abandon" means an owner's surrender of a seized item to NOAA by, but not limited to, expressly waiving any claim to the item, refusing or otherwise avoiding delivery of mail concerning the seizure (as by giving a false name or address), or failing for more than 180 days to make or maintain a claim to the item. An item will be declared finally abandoned, without recourse, upon a finding of abandonment, as defined here.

(b) "Disposal" includes, but is not limited to, loan, gift, sale or destruction of an item, except that no marine mammal or endangered species item may be sold.

(c) "Forfeiture" includes, but is not limited to, surrender or relinquishment of any claim to an item by written agreement, or otherwise; or extinguishment of any claim to, and transfer of title to an item to the Government by court order or by order of the NOAA Administrator (or designee) under a statute.

(d) "Waiver of any claim" includes, but is not limited to, failing to respond within 120 days of issuance of a Gov

ernment Notice concerning the seizure; or voluntarily relinquishing any interest in an item by written agreement, or otherwise. An item will be declared finally abandoned, without recourse, upon a finding of waiver, as defined here.

§ 219.22 Purposes of disposal.

Disposal procedures may be used to alleviate overcrowding of evidence storage facilities, and to avoid the accumulation of seized items where disposal is not otherwise accomplished by court order, as well as to address the needs of governmental agencies and other institutions and organizations for such items for scientific, educational, and public display purposes. In no case shall items be used for personal purposes, either by loan recipients or government personnel.

§ 219.23 Disposal of evidence.

Items that are evidence shall be disposed of only after authorization by the NOAA Office of General Counsel. Disposal approval usually will not be given until the case involving the evidence is closed, except that perishable items may be authorized for disposal

sooner.

§ 219.24 Loans to institutions.

Items approved for disposal may be loaned to institutions or organizations requesting such items for scientific, educational, or public display purposes. Items will be loaned only after execution of a loan agreement which provides, among other things, that the loaned items will be used only for noncommercial scientific, educational, or public display purposes, and that they will remain the property of the United States government, which may demand their return at any time. Parties requesting the loan of an item must demonstrate the ability to provide adequate care and security for the item. Loans may be made to responsible agencies of foreign governments in accordance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

§ 219.25 Loans to individuals.

Items generally will not be loaned to individuals not affiliated with an institution or organization unless it is clear that the items will be used in a noncommercial manner, and for scientific, educational, or public display purposes which are in the public interest.

§ 219.26 Selection of loan recipients.

of

Recipients of items will be chosen so as to assure a wide distribution of the items throughout the scientific, educational, public display and museum communities. Other branches NMFS, NOAA, the Department of Commerce, and other governmental agencies will have the right of first refusal of any item offered for disposal. The Administrator, or his or her designee, may solicit applications, by publication of a notice in the FEDERAL REGISTER, from qualified persons, institutions, and organizations who are interested in obtaining the property being offered. Such notice will contain a statement as to the availability of specific items for which transferees are being sought, and instructions on how and where to make application. Applications will be granted in the following order: other offices of NMFS, NOAA, and the Department of Commerce; U.S. Fish and Wildlife Service; other Federal agencies; other governmental agencies; scientific, educational, or other public or private institutions; and private individuals.

§ 219.27 Loan agreement.

Items will be transferred pursuant to a loan agreement executed by the Administrator, or his or her designee, and the borrower. Any attempt on the part of the borrower to retransfer an item, even to another institution for related purposes, will violate and invalidate the loan agreement, and entitle the United States to immediate repossession of the item, unless the prior approval of the Administrator, or his or her designee, has been obtained pursuant to § 219.28. Violation of the loan agreement may also subject the violator to the penalties provided by the laws governing possession and transfer of the item.