[Federal Register Volume 81, Number 117 (Friday, June 17, 2016)]
[Proposed Rules]
[Pages 39847-39865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14364]
[[Page 39847]]
Vol. 81
Friday,
No. 117
June 17, 2016
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 12
Seizure and Forfeiture Procedures; Proposed Rule
Federal Register / Vol. 81, No. 117 / Friday, June 17, 2016 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 12
[Docket No. FWS-HQ-LE-2016-0067; FF09L00200-FX-LE12200900000]
RIN 1018-AC89
Seizure and Forfeiture Procedures
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) proposes to
revise its seizure and forfeiture regulations. These regulations
establish procedures relating to property seized or subject to
administrative forfeiture under various laws enforced by the Service.
This revision will set forth the procedures the Service uses for the
seizure, bonded release, appraisement, administrative proceeding,
petition for remission, and disposal of items subject to forfeiture
under laws administered by the Service and will reflect the procedures
required by the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) and
those of U.S. Customs and Border Protection. This proposed rule will
make these regulations easier to understand through the use of simpler
language. This proposed revision will also more clearly explain the
procedures used in administrative forfeiture proceedings, make the
process more efficient, and make the Service's seizure and forfeiture
procedures more uniform with those of other agencies subject to CAFRA.
DATES: We will consider comments received or postmarked on or before
August 16, 2016.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking portal at: http://www.regulations.gov.
Follow the instructions for submitting comments on Docket No. FWS-HQ-
LE-2016-0067.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-HQ-LE-2016-0067; Division of Policy, Performance, and
Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275
Leesburg Pike; Falls Church, VA 22041-3803.
We will not accept email or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information that you provide to us (see Public Comments in
SUPPLEMENTARY INFORMATION below for more information).
FOR FURTHER INFORMATION CONTACT: Edward Grace, Deputy Assistant
Director, U.S. Fish and Wildlife Service, Office of Law Enforcement,
(703) 358-1949, fax (703) 358-1947.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposed rule
will be as accurate and effective as possible. The Service invites
interested persons to submit written data, views, or arguments on all
aspects of this proposed rule. Comments that will provide the most
assistance to us in developing this rule will reference a specific
portion of the proposed rule, explain the reason for any recommended
change, and include data, information, or authority that supports that
recommended change.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We will not accept
comments you send by email or fax or that you send to an address not
listed in ADDRESSES. We will not consider hand-delivered comments that
we do not receive, or mailed comments that are not postmarked, by the
date specified in DATES.
If you submit information via http://www.regulations.gov, your
entire submission--including your personal identifying information--
will be posted on the Web site. If you provide personal identifying
information in a hard-copy comment, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Office of Law Enforcement, MS: OLE; 5275 Leesburg
Pike; Falls Church, VA 22041-3803.
Executive Summary
We propose to revise our regulations regarding seizure and
administrative forfeiture of property and the disposal of any property
forfeited or abandoned to the United States (whether through
administrative or judicial forfeiture) under various laws that the
Service administers. The proposed regulations will set forth the
procedures that we use for the seizure, bonded release, appraisement,
administrative proceeding, petition for remission, and disposal of
items subject to forfeiture and will reflect the procedures required by
the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). This proposed
rule will make the current regulations easier to understand through the
use of simpler language and will also more clearly explain the
procedures used in administrative forfeiture proceedings, make the
process more efficient, and make the Service's seizure and forfeiture
procedures more uniform with those of other agencies subject to CAFRA.
The Service is not unique in its seizure and administrative
forfeiture authority. In general, all property subject to forfeiture
under Federal law may be forfeited administratively by the enforcing
Federal agency provided that the statutory authority for the forfeiture
incorporates the Customs laws of 19 U.S.C. 1602 et seq. and further
provided the property is neither real property nor personal property
having a value of more than $500,000 (except as noted in 19 U.S.C.
1607(a)).
Since the enactment of CAFRA in 2000, the Service has implemented
the forfeiture procedures imposed by the law through the authority of
the Act and through written guidance setting forth practices for the
issuance of notice of nonjudicial civil forfeiture proceedings, the
availability of administrative and judicial processes for contesting
the proposed forfeiture, and applicable deadlines for utilizing these
processes. We are now updating the regulations in part 12 of title 50
of the Code of Federal Regulations (50 CFR part 12) to reflect these
procedural changes.
Statutory Authority for Rulemaking
The Service has enforcement and oversight responsibilities under
Federal wildlife conservation laws and regulations. The regulations in
50 CFR part 12 establish procedures relating to property seized or
subject to administrative forfeiture as well as to the disposal of any
property forfeited or abandoned to the United States under various laws
enforced by the Service. Authority to seize and conduct administrative
forfeiture and/or to dispose of property forfeited or abandoned to the
United States whether through administrative or judicial forfeiture is
granted under the following statutes:
The Bald and Golden Eagle Protection Act, 16 U.S.C. 668 et
seq. (BGEPA);
the National Wildlife Refuge System Administration Act, 16
U.S.C. 668dd-ee;
the Migratory Bird Treaty Act, 16 U.S.C. 704, 706-707, 712
(MBTA);
[[Page 39849]]
the Migratory Bird Hunting and Conservation Stamp Act, 16
U.S.C. 718 et seq.;
the Airborne Hunting Act, 16 U.S.C. 742j-1;
the African Elephant Conservation Act, 16 U.S.C. 4201 et
seq.;
the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.
(ESA);
the Marine Mammal Protection Act of 1972, 16 U.S.C. 1375-
1377, 1382;
the Lacey Act, 18 U.S.C. 42;
the Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.;
the Rhinoceros and Tiger Conservation Act, 16 U.S.C. 5301
et seq.;
the Antarctic Conservation Act, 16 U.S.C. 2401 et seq.;
the Archeological Resources Protection Act, 16 U.S.C. 470
et seq.;
the Paleontological Resources Preservation Act, 16 U.S.C.
470aaa et seq.; and
the Native American Graves Protection and Repatriation
Act, 16 U.S.C. 3001 et seq.
Purpose of Proposed Rulemaking
CAFRA (Pub. L. 106-185) superimposes specific procedural
requirements over the procedures in various forfeiture laws in
existence prior to CAFRA's enactment. We are proposing a revision of 50
CFR part 12 to reflect in one place the CAFRA procedural overlay and to
make changes to increase the efficiency of the regulations, such as
allowing the publication of notices through the internet and
streamlining the process for claims and petitions for remission. The
purposes of the civil forfeiture laws enforced by the Service are
remedial, among other things because forfeiture removes unlawful
wildlife from society and is based upon the unlawful use of that
wildlife.
Section-by-Section Analysis
The following parts of the preamble explain the proposed rule and
present a discussion of the substantive issues of each section.
Proposed Changes to Subpart A of 50 CFR Part 12--General Provisions
We are proposing to change the section titles in subpart A.
Otherwise, proposed Sec. Sec. 12.1-12.6 are largely the same as
current Sec. Sec. 12.1-12.6.
Section 12.1--What is the purpose of these regulations?
The purpose of these proposed regulations is essentially unchanged
from the purpose stated in the current Sec. 12.1.
Section 12.2--What is the scope of these regulations?
The list of laws to which these regulations apply has been
expanded. You can view this list in the corresponding section of the
proposed regulations at the end of this document.
Section 12.3--What definitions do I need to know?
We are proposing to remove the definitions of the following terms:
``Attorney General,'' ``disposal,'' and ``domestic value,'' and add the
word ``designee'' to the definition of ``Solicitor.'' We are also
proposing to add definitions for the following terms: Abandon,
administrative forfeiture, authorized officer, claim, contraband,
declaration of forfeiture, detention, directed re-export, Director,
interested party or parties, other property that is illegal to possess,
petition for remission, property subject to administrative forfeiture,
property subject to forfeiture, value, and we.
Abandon: Abandon means to relinquish to the United States all legal
right you have to own, claim, or possess property seized by the
Service, and to forever give up any right, title, and interest you have
in the property, and to waive any further rights or proceedings
relative to the property other than whatever rights to seek relief
expressly were reserved in the abandonment document you signed.
Administrative forfeiture: Administrative forfeiture means the
process by which property may be forfeited by a seizing agency rather
than through a judicial proceeding. Administrative forfeiture has the
same meaning as nonjudicial forfeiture, as that term is used in 18
U.S.C. 983.
Authorized officer: Authorized officer means a person or entity who
is acting as an agent, trustee, partner, corporate officer, director,
supervisory employee, or any other representative designated to act on
behalf of a corporation, partnership, or individual asserting that they
are an interested party.
Claim: Claim means a written declaration regarding property for
which the Service has proposed forfeiture that meets the statutory
requirements of 18 U.S.C. 983(a)(2), including (1) timely submission,
(2) containing required information regarding identification of the
specific property being claimed, (3) stating the claimant's interest in
the property, and (4) made under oath subject to penalty of perjury. A
claim in effect causes a forfeiture proceeding begun administratively
to be transferred by the Department of Justice to Federal court, since
once a claim is filed seeking civil judicial forfeiture, the Service
will forward the matter, through the Solicitor's Office, to the U.S.
Department of Justice for filing as a civil judicial forfeiture action.
Once a claim is referred, all administrative proceedings are
terminated. See Von Neuman v. United States, 660 F.2d 1319, 1326 (9th
Cir. 1981), cert. granted and judgment vacated on other grounds, 462
U.S. 1101 (1983) (``Once a case is referred for judicial action, the
administrative proceedings on a petition for remission must cease''
(citing 19 CFR 171.2)); see also 18 U.S.C. 983(a)(3); 19 U.S.C. 1608.
Contraband: Contraband means any fish, wildlife, or plant that
either (1) by its very nature is illegal to import, export, or possess;
or (2) if not inherently illegal in nature, becomes illegal because it
has been taken, possessed, imported, exported, acquired, transported,
purchased, sold, or offered for sale or purchased contrary to law.
A definition of ``contraband'' is included in these proposed
regulations to address the contraband exemption to three of the
procedures imposed by CAFRA on the civil forfeitures covered by these
proposed part 12 regulations. These three procedures include certain
types of seized property provisions contained in 18 U.S.C. 983(a)(1)(F)
and 983(f) and the ``innocent owner defense'' of 18 U.S.C. 983(d). As
discussed above, CAFRA sets forth the procedures used in all civil
forfeitures under Federal law unless the particular forfeiture statute
is specifically exempted in 18 U.S.C. 983(i)(2). United States v.
144,774 Lbs. of Blue King Crab, 410 F. 3d 1131, 1134 (9th Cir. 2005).
As such, CAFRA applies to the civil forfeitures covered by these
proposed regulations.
CAFRA includes, in 18 U.S.C. 983(f), a process for obtaining the
release of certain types of seized property while a civil forfeiture
action is pending. Contraband is one type of property that is
specifically exempt from such releases (18 U.S.C. 983(f)(8)(A)). CAFRA
also provides, in 18 U.S.C. 983(a)(1)(F), for the release and return of
seized property in the event of a failure to send a required notice of
seizure. Again, however, contraband is specifically exempt from these
release provisions, as is other property that the person from whom the
property was seized may not legally possess. Both of these CAFRA
release provisions, including their contraband exemptions, are
reflected in these proposed part 12 regulations, at proposed Sec. Sec.
12.14 and 12.36.
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CAFRA's ``innocent owner defense'' also expressly excludes
``contraband,'' as well as ``other property that it is illegal to
possess'' (18 U.S.C. 983(d)(4)). The ``innocent owner defense,'' which
is reflected at proposed Sec. 12.33(c)(6), is an affirmative defense
to civil forfeiture in which the burden of proof rests with the
claimant to show the following: (1) If the claimant had an ownership
interest in the property at the time of the offense, the claimant
either had a lack of knowledge of the conduct giving rise to
forfeiture, or, upon learning of the conduct, did all that reasonably
could be expected under the circumstances to terminate such use of the
property; or (2) if the claimant acquires the property after the
conduct giving rise to the property, the claimant is a bona fide
purchaser for value who did not know or was reasonably without cause to
believe that the property was subject to forfeiture. Congress expressly
used two different phrases, separated by the word ``or'' to describe
the circumstances under which the ``innocent owner defense'' is
unavailable: ``no person may assert an ownership interest under this
subsection [18 U.S.C. 983(d)(4)] in contraband or other property that
it is illegal to possess.'' Each of these phrases is separate and
distinct from the other, and they mean two separate things. Blue King
Crab, 410 F. 3d at 1135; United States v. 1866.75 Board Feet and 11
Doors and Casings, 587 F. Supp. 2d 740, 751 (E.D.Va. 2008);
Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1207 (N.D.Ca.
2009), aff'd, 646 F.3d 1240 (9th Cir. 2011). Consequently, these two
phrases are being separately defined in these proposed regulations.
Although the term ``contraband'' is not explicitly defined in
CAFRA, this phrase does have an ordinary, common meaning of ``[g]oods
that are unlawful to import, export, or possess,'' and can be of either
the ``per se'' (property whose possession is unlawful regardless of how
it is used) or ``derivative'' (property whose possession becomes
unlawful when it is used in an unlawful manner) variety. Black's Law
Dictionary 365 (9th ed. 2009). Consistent with this common meaning,
courts have concluded that ``contraband'' includes for purposes of the
CAFRA ``innocent owner defense'' property that either (1) by its very
nature is illegal to import, export, or possess, or (2) if not
inherently illegal in nature, becomes illegal through the manner or
circumstances by which it is used, possessed, or acquired. Conservation
Force, 677 F. Supp. 2d at 1208; United States v. Approximately 600
Sacks of Green Coffee Beans, 381 F. Supp. 2d 57 (D.P.R. 2005). This
approach to ``contraband'' is also consistent with cases decided before
the enactment in 2000 of CAFRA. See, e.g., United States v. Molt, 599
F. 2d 1217-18, fn. 1 (3d Cir. 1079) (Under the Lacey Act, unlawfully
taken foreign wildlife is a ``contraband article.''); United States v.
The Proceeds from the Sale of Approximately 15,538 Panulirus argus
Lobster Tails, 834 F. Supp. 385, 391 (S.D. Fla. 1993) (No innocent
owner defense available because ``the [defendant] lobster tails were
themselves contraband. . . .'') The definition of ``contraband''
included in these proposed regulations is consistent with the common
meaning and case law interpretation of that term.
Application of this definition will mean that petitioners and
claimants will not be able to assert the innocent owner defense if, for
example, their wildlife is imported without proper permits and so their
possession, and/or transport, sale, receipt, etc., violates Federal
law. While it is not illegal to import many types of wildlife into the
United States, a failure to present required permits will transform the
wildlife into contraband. Similarly, taking wildlife in violation of
State law and placing it in interstate commerce in violation of Federal
law may also transform that wildlife into contraband.
Such results are consistent with the majority of pre-CAFRA
authority, which held that a good faith defense was not available in
forfeiture proceedings based on violations of wildlife protection laws,
including the ESA. United States v. Fifty-Three (53) Eclectus Parrots,
685 F. 2d 1131 (9th Cir. 1982) (forfeiture under the Tariff Act of 1930
of birds imported in violation of foreign wildlife laws); United States
v. One Handbag of Crocodilus Species, 856 F. Supp. 128 (E.D.N.Y. 1994)
(forfeiture of wildlife products imported in violation of the
Convention on International Trade in Endangered Species (CITES) and the
ESA); United States v. Proceeds From the Sale of Approximately 15,538
Panulirus argus Lobster Tails, 834 F. Supp. 385 (S.D. Fla. 1993)
(forfeiture of wildlife imported in violation of the Lacey Act); United
States v. 1,000 Raw Skins of Caiman crocodilus yacare, No. CV-88-3476,
1991 U.S. Dist. LEXIS 3535 (E.D.N.Y. 1991) (forfeiture of wildlife
products imported in violation of CITES and the ESA and the Lacey Act);
Contra United States v. 3,210 Crusted Sides of Caiman crocodilus
yacare, 636 F. Supp. 1281 (S.D. Fla. 1986) (forfeiture of wildlife
products imported in violation of CITES and the ESA and the Lacey Act--
claimants unable to sustain burden of showing by preponderance of the
evidence that the elements of innocent owner defense existed, including
that they lacked involvement, knowledge, or did all that was reasonably
possible to prevent the proscribed use of their property).
The rationale for rejecting a good faith defense in the majority of
wildlife forfeiture cases was that the application of strict liability
in wildlife forfeiture actions is necessary to effect Congressional
intent. To permit an importer to recover the property because he or she
lacks culpability would lend support to the continued commercial
traffic of the forbidden wildlife. Additionally, a foreseeable
consequence would be to discourage diligent inquiry by the importer,
allowing him or her to plead ignorance in the face of an import
violation. Furthermore, it is not unreasonable to expect the importer
to protect his or her interest by placing the risk of noncompliance on
the supplier in negotiation of the sales agreement. 1,000 Raw Skins of
Caiman crocodilus yacare, 1991 U.S. Dist. LEXIS 3535 at *12, quoted in
One Handbag of Crocodilus Species, 856 F. Supp. at 134.
Declaration of forfeiture means a written declaration by the
Service or the Solicitor describing the property forfeited and stating
the date, time, place, and reason for forfeiture. The declaration will
also describe the date and manner in which notice of seizure and
proposed forfeiture was sent to the property owner. If notice was never
successfully sent, the declaration will describe efforts made to
deliver any notice of seizure and proposed forfeiture.
Detention: Detention means the holding for further investigation of
fish, wildlife, or plants and any associated property that is neither
released nor seized.
Directed re-export: Directed re-export means the prompt export at
the sole expense and risk to the importer or consignee of imported
shipments.
Directed re-export may be offered by the Service for shipments that
have been refused entry by the Service into the United States. If the
importer or consignee chooses not to re-export when offered by the
Service, then the shipment will not be cleared under 50 CFR part 14 for
entry into the United States, and the Service, at its sole discretion,
may or may not seize and initiate forfeiture proceedings. If forfeiture
proceedings are not initiated, the refused shipment may be subject to
Customs enforcement action. Directed re-export also may be offered by
the Solicitor under Sec. 12.34(e)(4) of this part for seized property
as a condition of the remission decision. Section 12.34(e)(4) further
clarifies that one of the options
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available when granting remission is to release the seized property for
the sole and limited purpose of directed re-export. The importation of
goods into the United States is not a fundamental right. See, e.g.,
Ganadera Indus., S.A. v. Block, 727 F. 2d 1156, 1160 (D.C. Cir. 1984).
As discussed below in the discussion of Sec. 12.34, Congress assumed
that forfeiture would be sought instead of civil penalty in most
illegal importation cases, and CITES encourages the use of forfeiture
rather than return to the State of export or re-export so that
specimens traded in violation of CITES do not enter into illegal trade.
Nevertheless, under some circumstances, the appropriate response might
be for the Service to allow re-export of wildlife imported in violation
of Federal wildlife laws instead of pursuing forfeiture. The Solicitor
and the Service have the discretion to consider directed re-export as
an option provided that re-export will benefit the enforcement and
administration of applicable wildlife laws.
Director: Director means the Director of the United States Fish and
Wildlife Service, Department of the Interior, or an authorized
representative (as defined in 50 CFR 10.12).
Interested party or parties: Interested party or parties means any
person(s) who appears to be a person having an interest in the seized
property under the criteria in Sec. 12.11(a), based on the facts known
to the seizing agency before a declaration of forfeiture is entered.
Other property that is illegal to possess: Other property that is
illegal to possess means any fish or wildlife or any plants that may
not be legally possessed or held due to extrinsic circumstances.
We include a definition of ``other property that is illegal to
possess'' in these proposed regulations to address two specific
exemptions from the procedures imposed by CAFRA on the civil
forfeitures covered by these proposed regulations: From the ``innocent
owner defense'' of 18 U.S.C. 983(d) and from the provisions of 18
U.S.C. 983(a)(1)(F) regarding the release of seized property in the
event of a failure to send a required notice of seizure. The phrase
``other property that is illegal to possess'' includes property that
becomes illegal to possess because of extrinsic circumstances. United
States v. 144,774 Lbs. of Blue King Crab, 410 F. 3d 1131, 1134 (9th
Cir. 2005). The seized property does not have to be in itself illegal;
rather, it is property that became illegal to possess owing to a
specific set of circumstances. Id. at 1136; United States v. 1866.75
Board Feet and 11 Doors and Casings, 587 F. Supp. 2d 740, 751 (E.D. Va.
2008); Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1207 (N.D.
Ca. 2009), aff'd, 646 F.3d 1240 (9th Cir. 2011).
Circumstances that would make property other than contraband
illegal to possess include taking, possessing, importing, exporting,
acquiring, transporting, purchasing, selling or offering for sale
wildlife contrary to law. In other words, the property becomes illegal
to possess through the manner or circumstances by which it is used,
possessed, or acquired. As a result, wildlife that may be possessed
legally in some circumstances becomes illegal to possess in others. For
example, as of the date of publication of these proposed regulations,
individuals may import into the United States without CITES documents
in personal baggage that is carried or checked on the same transport as
the traveler a quantity of no more than 125 grams per person of any
sturgeon (Acipenseriformes) caviar that is from a species of CITES
Appendix II sturgeon not separately listed under the ESA (in 50 CFR
part 17) as endangered or threatened. If, however, more than 125 grams
per person is so imported without a valid CITES document, then all of
the caviar becomes illegal to possess.
Petition for remission: Petition for remission means a request for
the Solicitor to exercise equitable discretion and to release the
property seized to you. Remission of forfeiture is committed to the
discretion of the Solicitor's Office. In the case of administrative
forfeiture, remission may be granted under the statutes authorizing
forfeiture remissions only where the Solicitor finds in response to a
petition the existence of ``such mitigating circumstances as to justify
the remission,'' and then only under such terms and conditions as are
deemed reasonable and just.
Property subject to administrative forfeiture: Federal
administrative forfeiture is the process by which a Federal agency
seeks forfeiture of property to the United States after the Federal
agency has seized the property under prescribed administrative
procedures. In general, all property subject to forfeiture under
Federal law may be forfeited administratively by the enforcing Federal
agency provided that the statutory authority for the forfeiture
incorporates the Customs laws of 19 U.S.C. 1602 et seq., to the extent
not inconsistent with the provisions of the incorporating wildlife laws
(identified in Sec. 12.2) pursuant to which forfeiture is sought and
further provided the property is neither real property nor personal
property having a value of more than $500,000 (except as noted in 19
U.S.C. 1607(a)).
Property subject to forfeiture: Property subject to forfeiture
means all property that Federal law authorizes to be forfeited to the
United States in any administrative forfeiture proceeding, in any civil
judicial forfeiture, or any criminal forfeiture proceeding.
Solicitor: Solicitor means the Solicitor of the United States
Department of the Interior or an authorized representative or designee.
Value: Value means the value of property as determined by the
Service. For property having a legal market in the United States, the
Service will use the reasonable declared value or the estimated market
value at the time and place of seizure, if such or similar property was
freely offered for sale between a willing seller and a willing buyer.
This proposed rule would make the Service responsible for
determining the value of the item seized, whether or not the item had a
declared value at the time of seizure. Declared value in papers filed
may sometimes understate the value to avoid Customs and Border
Protection (CBP) duties or overstate the value for insurance purposes.
Therefore, value will be determined based on either reasonable declared
value or estimated market value at the time and place of seizure.
We: We means the U.S. Fish and Wildlife Service.
Section 12.4--When and how must documents be filed or issued?
We propose to revise the language for the filing of documents as
follows:
Proposed paragraph (a) will state that, whenever this part requires
or allows you to file a document on or before a certain date, you are
responsible for submitting that document so as to reach the Government
office designated for receipt by the time specified. You may use the
U.S. Postal Service, a commercial carrier, or electronic or facsimile
transmission. We will consider the document filed on the date on which
the document is received by the Government office designated for
receipt. Acceptable evidence to establish the time of receipt by the
Government office includes any time/date stamp placed by that office on
the document, other documentary evidence of receipt maintained by that
office, or oral testimony or statements of Government personnel.
Proposed paragraph (b) will indicate that, whenever this part
requires or allows the Government to issue or file a document on or
before a certain date, the document will be considered to be
[[Page 39852]]
issued or filed on the date on which the document was placed in the
U.S. mail service, delivered to a commercial carrier, or sent by
facsimile transmission. Acceptable evidence to establish the time of
filing or issuance by the Government includes any time/date stamp
placed by that office on the document, other documentary evidence of
receipt maintained by that office, or oral testimony or statements of
Government personnel.
Section 12.5--How does the Service handle seizures made by other
agencies?
We propose to clarify how the Service handles seizures made by
other agencies.
Section 12.6--How does the Service release seized property under a
bond?
We propose to clarify how the Service releases seized property
under a bond. This bond requirement is distinct from the pre-CAFRA
requirement that a bond be posted with any claim seeking judicial
forfeiture. CAFRA eliminated 19 U.S.C. 1608's cost bond requirement. 18
U.S.C. 983(a)(2)(E).
Proposed Changes to Subpart B of 50 CFR Part 12--Preliminary
Requirements
We are proposing to change the title of subpart B to ``Notification
Requirements'' and also to change the section titles in the subpart and
add sections. The Service is providing additional mechanisms for
publication through electronic posting to the U.S. Fish and Wildlife
Service Office of Law Enforcement Web site.
Section 12.11--How is personal notification of seizure and proposed
forfeiture provided?
We propose to revise current Sec. 12.11 to include any interested
party who has not signed an abandonment form. We also propose to
clarify how the Service or the Solicitor provides personal notification
of seizure and proposed forfeiture.
The term ``interested party'' has been defined for purposes of
notification. The timing of notice of seizure has been established as
60 days unless otherwise allowed pursuant to 18 U.S.C. 983(a). Items
detained for identification or investigation only, pursuant to legal
authority, and items detained as evidence in an ongoing criminal
investigation and for less than 30 days will not be considered seized
for purposes of forfeiture. These proposed regulations include
provisions for the grounds for extending notification deadlines, how an
extension is obtained, the format for notification of seizure, the
deadlines to petition for remission, and electronic posting of notices.
Section 12.12--How is public notification of seizure and proposed
forfeiture provided?
We propose to add this section to provide a mechanism for public
posting of seized property both in the newspaper or where appropriate
on an official government Web site.
Section 12.13--What does a declaration of forfeiture contain?
This new provision describes the requirements for what a
declaration of forfeiture must contain.
Section 12.14--What happens if the required notification of seizure and
proposed forfeiture is not provided?
We propose to clarify what happens if the Service or the Solicitor
fails to provide the required notification of seizure and proposed
forfeiture. This new section makes it clear that, where the owner is
known and the property is not contraband or otherwise illegal to
possess, the property must be returned if a timely notification of
seizure and proposed forfeiture is not made, although the Service or
the Solicitor may still seek to obtain a judicial forfeiture.
Proposed Changes to Subpart C of 50 CFR Part 12--Forfeiture Proceedings
We are proposing to change various section titles in subpart C.
Section 12.31--What are the basic types of forfeiture proceedings?
This new section provides an overview of this subpart.
Section 12.32--When may the Service or the Solicitor obtain
administrative forfeiture of my property?
This new section describes what the law requires in order to
commence administrative forfeiture proceedings and the existing legal
requirements for obtaining forfeiture.
Section 12.33--How do I file a petition for remission of forfeiture
requesting the release of my property?
This section is a rewrite of current Sec. 12.24(b) with some
additions. We propose to clarify when a petition for remission of
forfeiture may be filed. The administrative process for requesting the
release of seized property (through a petition for remission) is
different than and is an alternative to the judicial process (through a
claim). Either the administrative option or the judicial option may be
used provided that the applicable filing deadlines are met.
Once an administrative forfeiture is commenced by the required
provision of notice, you have the administrative option to file a
petition for remission for the return of the seized property. A
petition for remission asks the Solicitor to use equitable discretion
in deciding whether to release the seized property pursuant to the
petition. The Solicitor will render a decision on the petition pursuant
to proposed Sec. 12.34.
Alternatively, judicial relief may be sought by filing a claim,
which causes the Government to pursue judicial forfeiture by filing a
complaint for forfeiture in Federal court. Prior to 2014, the Service
as a matter of administrative discretion (and not of statutory mandate)
gave interested parties the opportunity to suspend or toll the time
period available for filing a claim simply by filing a petition for
remission seeking administrative relief. Under this practice,
forfeiture proceedings were deemed to recommence in the event a
petition for remission of forfeiture was denied, and the interested
party was given the balance of time, if any, remaining to file a claim.
This practice of suspending all forfeiture time periods pending the
outcome of a petition for remission was changed in 2014, and these
proposed regulations expressly reflect the current practice that
interested parties must elect to proceed either administratively or
judicially, but they may not use these remedies sequentially. The CAFRA
deadlines for the filing of a claim after the Service or the Solicitor
commences an administrative forfeiture proceeding are not suspended or
tolled pending a decision on a petition for remission.
This is because the administrative remedy for forfeiture (i.e.,
sought through a petition for remission) is distinct from the judicial
remedy initiated through a claim; forfeiture statutes and regulations
``provide alternative, not sequential, administrative and legal
remedies for an administrative forfeiture.'' Conservation Force, 646
F.3d at 1242. Accord, Malladi Drugs & Pharmaceuticals, Ltd. v. Tandy,
552 F. 3d 885, 890 (D.C. Cir. 2009). If a party pursues the
administrative path by filing a petition for remission, and the
petition is denied, then the ``exclusive remedy'' for setting aside an
administrative declaration of forfeiture is that provided in CAFRA, in
18 U.S.C. 983(e), which is available only if the notice of forfeiture
is not received. Put another way, in the event that an interested party
receives proper notice of a proposed administrative forfeiture and
chooses to pursue an administrative path, filing a petition for
remission that is reviewed and denied, then that party
[[Page 39853]]
has ``waived the opportunity for judicial forfeiture proceedings.''
Conservation Force, 646 F.3d at 1242. Accord, Pert v. United States,
487 Fed. Appx. 396 (9th Cir. 2012) and Phillips v. United States, 464
Fed. Appx. 700 (9th Cir. 2011).
The proposed regulation has been clarified to reflect that
remissions are an equitable remedy. The burden is on the petitioner to
establish grounds for remission. If the petitioner does not provide the
information requested in considering the petition for remission, the
remission petition may be denied without further consideration. During
the remission consideration, a valid forfeiture is presumed.
Section 12.34--What are the standards for remission of forfeiture?
We propose to clarify the standards for remission of forfeiture.
Moreover, we propose to revise the requirements for remitting property
that has been forfeited to more accurately reflect what the law
requires in order for property to be remitted. Remission of forfeiture
is discretionary; if the Solicitor ``finds the existence of such
mitigating circumstances as to justify the remission or mitigation'' of
the forfeiture or alleged forfeiture, the Solicitor ``may remit or
mitigate the same upon such terms and conditions as he deems reasonable
and just'' (19 U.S.C. 1618). Essentially, ``[u]nlike the claimant who
files a claim [to initiate judicial forfeiture proceedings], a
petitioner seeking remission or mitigation of forfeiture does not
necessarily contest the legitimacy of forfeiture. In fact, under
remission/mitigation procedures, forfeitability is presumed and the
petitioner seeks relief from forfeiture on fairness grounds.'' Orallo
v. United States, 887 F. Supp. 1367, 1370 (D. Haw. 1995). Thus, ``a
petition for remission is a request for leniency, or an executive
pardon, based upon the petitioner's representations of innocence or
lack of knowledge of the underlying unlawful conduct.'' Id.
Remissions should not be a routine disposition for forfeited items.
Where items clearly have been acquired, imported, exported,
transported, or possessed contrary to law, the Solicitor granting
remission must clearly show both the mitigating circumstances that
allow the item to be remitted and that the terms and conditions
attached to return of the item will be reasonable and just. See, e.g.,
16 U.S.C. 1540(e)(5) and 19 U.S.C. 1618.
Congress has limited the authority to grant remission to those
factors set out in 19 U.S.C. 1618 (the remission provisions of the
Customs laws) as those statutory provisions have been incorporated into
the specific Federal wildlife conservation law under which nonjudicial
civil forfeiture is pursued. For example, the ESA provides that the
Customs laws provision regarding seizure and forfeiture (including
remission) apply to seizures and forfeitures under the ESA only
``insofar as such provisions of law are applicable and not inconsistent
with the provisions'' of that Act (16 U.S.C. 1540(e)(5)). Similarly,
the Lacey Act Amendments of 1981 incorporate the seizure and forfeiture
(including remission) provisions of the Customs law with the caveat of
``insofar as such provisions of law are applicable and not inconsistent
with the provisions of'' that law (16 U.S.C. 3374(b)). Also by way of
example, the Bald and Golden Eagle Protection Act provides that the
Customs laws regarding seizure and forfeiture (including remission)
apply ``insofar as such provisions of law are applicable and not
inconsistent with the provisions of'' that Act (16 U.S.C. 668b(c)).
As a consequence of these requirements for consistency with the
incorporating Federal wildlife conservation law, any consideration of
remission of forfeiture must not only take into account the factors in
19 U.S.C. 1618 but also any other applicable Federal wildlife laws.
This includes, as applicable, U.S. treaty obligations under CITES,
restrictions on species listed under the ESA as endangered or
threatened, and obligations under the Lacey Act Amendments of 1981 to
provide support for other countries' conservation laws.
Because of this provision, for example, Appendix I remissions are
disfavored. CITES provides that ``[t]rade in specimens of these
[Appendix I] species must be subject to particularly strict regulation
in order not to endanger further their survival and must only be
authorized in exceptional circumstances'' (CITES art. 2(1); see also
CITES Res. Conf. 12.3 (Rev. CoP16) recognizing ``the need for Parties
to be particularly vigilant regarding the issuance of permits and
certificates for very valuable specimens of species included in
Appendix I'').
The CITES parties are directed to enforce the treaty through
measures including ``confiscation'' of illegally traded specimens
(CITES art. 8(1); see also CITES Res. Conf. 9.9 ``[T]he seizure and
confiscation of such specimens are generally preferable to the
definitive refusal of the import of the specimens . . . .''). Article
XIV of CITES explicitly recognizes parties' rights to adopt stricter
national measures to restrict or prohibit trade, taking, possession, or
transport of any wildlife or plant species, including those listed in
the CITES Appendices. CITES art. 14(1); see H.L. Justin Co. & Sons,
Inc. v. Deukmejian, 702 F. 2d 758, 759 n. 2 (9th Cir. 1983) (holding
that Article XIV showed that CITES did not bar stricter State law); see
also 50 CFR 23.3 (noting that permit applicants must comply with
restrictions over and above those imposed by CITES).
The parties to CITES have observed ``that false and invalid permits
and certificates are used more and more often for fraudulent purposes
and that appropriate measures are needed to prevent such documents from
being accepted'' (CITES Res. Conf. 12.3 (Rev. CoP16)). They recognized
``the need for Parties to be particularly vigilant regarding the
issuance of permits and certificates for'' specimens of Appendix I
species such as leopard trophies. Id.; see also CITES Res. Conf. 11.3
(Rev. CoP16) (urging parties ``to strictly verify the documents
originating from [producing] countries''). And they considered ``that
the retrospective issuance of permits and certificates has an
increasingly negative impact on the possibilities for properly
enforcing the Convention and leads to the creation of loopholes for
illegal trade.'' Id.
The parties accordingly recommended that: (1) ``Parties refuse to
accept any permit or certificate that is invalid, including authentic
documents that do not contain all the required information,'' Id.
14(d); (2) that export permits ``may not be accepted to authorize
export . . . except during [their] period of validity,'' Id. 2(g); (3)
that importing countries ``not accept permits or certificates that were
issued retrospectively,'' except in limited circumstances'' Id. 13(b);
and that exporting countries neither ``issue CITES permits . . .
retrospectively'' nor ``provide exporters . . . with declarations about
the legality of exports . . . of specimens having left [the] country
without the required CITES documents,'' Id. 13(a). The Resolutions
adopted at the Conferences of the Parties to CITES are not inherently
binding on the United States or other parties, but it is reasonable for
Federal agencies to rely upon them when implementing CITES. See
Castlewood Prods., L.L.C. v. Norton, 365 F. 3d 1076, 1084 (D.C. Cir.
2004). The ESA implements CITES by making it unlawful ``to trade in any
specimens contrary to the provisions of [CITES], or to possess any
specimens traded contrary to the provisions of [CITES].'' Id. Sec.
1538(c)(1). ``Congress implemented the CITES into U.S. law in the
[ESA].
[[Page 39854]]
The ESA makes it unlawful to `engage in any trade in any specimens,' or
`possess any specimens traded,' contrary to the provisions of the
[CITES] and authorizes the Secretary of the Interior to promulgate
regulations to enforce the ESA. 16 U.S.C. 1538(c)(1) and 1540(f). The
CITES regulates the trade of those endangered species of fish,
wildlife, and plants listed in its appendices. See CITES, art. II, 27
U.S.T. at 1092. The degree of trade regulation under CITES depends on
the appendix in which a specimen is listed.'' United States v. Norris,
452 F.3d 1275, 1278 (11th Cir. 2006).
The ESA also imposes a burden on the holder of a CITES permit to
affirmatively prove that it is valid. 16 U.S.C. 1539(g). Congress
acknowledged that forfeiture is an important tool in many illegal
importation cases. See H.R. Rep. No. 95-1625, at 21 (1978), reprinted
in 1978 U.S.C.C.A.N. 9453, 9476. CITES favors forfeiture as a remedy
for illegally traded articles, see art. 8(1)(b), and the parties
thereto have encouraged its use, see CITES Res. Conf. 9.9 (recognizing
``that the return by the importing Party to the State of export or re-
export of specimens that have been traded in violation of the
Convention may result later in such specimens being entered into
illegal trade unless measures are taken by the Parties concerned to
prevent this'' and, therefore, finding ``confiscation . . . generally
preferable''); 72 FR 48415; August 23, 2017 (``To ensure that specimens
traded in violation of CITES do not re-enter illegal trade, Parties are
urged to consider seizure of specimens, rather than refusal of entry of
the shipment''); cf. Austin v. United States, 509 U.S. 602, 621 (1993)
(``[W]e have recognized that the forfeiture of contraband itself may be
characterized as remedial because it removes dangerous or illegal items
from society.'')
The need to maintain the integrity of the CITES permitting system
must be considered when evaluating the equities presented in petitions
and supplemental petitions for remission. Individuals play an important
role in the CITES permitting system. Foreign exporters must include
required CITES permits and certificates with their shipments to the
United States. However, the U.S. importer bears personal responsibility
for obtaining a valid permit before commencing an activity for which a
permit is required by 50 CFR part 23 (except as provided under very
specific situations) and assumes all liability and responsibility for
the conduct of any activity conducted under the authority of such
permits. 50 CFR 13.1(a), 13.50. Importantly, the U.S. importer
initiates the import and, as a consequence, has the ability to exercise
control over his or her foreign suppliers. Congress clearly intended
that individual importers bear some penalty in the event that wildlife
specimens were traded contrary to the provisions of CITES, by providing
that, among other things, it is illegal for persons subject to the
jurisdiction of the United States to possess any specimens traded
contrary to the provisions of CITES and providing for forfeiture of
``all'' wildlife possessed or imported in violation of ESA's
prohibition on trade contrary to the provision of CITES. 16 U.S.C.
1538(c), 1540(e)(4)(A).
In all instances, remission of forfeiture of wildlife seized by the
Service may be granted only if the Solicitor's Office finds in response
to a petition the existence of ``such mitigating circumstances as to
justify the remission'' and then only under such terms and conditions
as are deemed ``reasonable and just.'' 19 U.S.C. 1618.
Section 12.34(e) of these proposed regulations sets out a number of
mitigating factors that may be considered in determining whether or not
to grant remission. One of these factors is whether the petitioner has
taken meaningful steps, including the use of contractual or monetary
mechanisms, to prevent the violations that occurred. One of the
relevant considerations in applying this factor to wildlife imports is
whether the petitioner has undertaken diligent inquiry into the
compliance capability and record of any foreign supplier. Rewarding
ignorance of an import violation through remission could discourage the
diligent inquiry that might have prevented the violation from
occurring. Other considerations include whether the petitioner has
attempted to protect his or her interest by placing the risk of
noncompliance on the supplier in the negotiation of the sales or
services agreement.
Notably, the sole purpose of the Sec. 12.34(e) factors is for
consideration of whether remission should be granted and not for any
other use, such as application of the ``innocent owner defense'' under
CAFRA. The factors stated are not intended to be all inclusive and do
not constitute authority in and of themselves. In all instances,
however, all remission decisions must be made with due consideration
for the cumulative conservation impacts of the remission including
whether the item is an Appendix I, II, or III species under CITES or is
listed as threatened or endangered under the ESA, whether the violation
increased the regulatory burden on government agencies, and whether
remission may have an adverse effect on the integrity of any applicable
permitting system or may provide an incentive to third parties to avoid
meeting CITES requirements.
Section 12.34(e) of these proposed regulations provides examples of
the type of terms and conditions that may be set for remission. Again,
these are examples only and are not intended to be all inclusive. In
all instances, the terms and conditions imposed must be ``reasonable
and just,'' as required by 19 U.S.C. 1618.
Section 12.34(e) provides that the Solicitor, at his or her sole
discretion, may determine to settle completely or partially at the same
time as remission is granted any civil penalty claim against the
property owner arising from the owner's violation of Federal wildlife
conservation laws. Forfeiture proceedings are brought against the
``guilty property'' itself, and as such are in the nature of an in rem
proceeding, in which the property is the defendant and not the property
owner. Importantly, forfeiture does not provide relief from potential
liability for civil penalties that may be sought from the individuals
or entities that actually violated the law. To expedite resolution of
such potential civil liability, proposed Sec. 12.34(e) allows, at the
sole discretion of the Solicitor, for complete or partial settlement of
civil penalties provided certain conditions are met. Consistent with
the purpose of expediting resolution, one of the conditions to civil
penalty settlement is that the property owner agrees to waive any
notice of violation and notice of assessment required by 50 CFR part 11
and the opportunity for a hearing.
Section 12.35--How will the Solicitor notify me of its decision on my
petition for remission?
This is a new section derived from the current Sec. 12.24(g). We
propose to clarify how decisions are made on petitions for remission.
This new provision makes it clear that you should file a supplemental
petition only where you have new evidence or evidence that has not
previously been considered.
Section 12.36--How do I file a claim to get back my seized property?
We propose to clarify the procedures for filing a claim to get back
seized property. This proposed rule would also explicitly require that
a claim include any documentary evidence relied on and that such claims
are made under penalty of perjury.
[[Page 39855]]
Section 12.37--Can I get my property back while the claim is pending?
This is a new provision allowing forfeited property to be retained
while a claim is pending to avoid substantial hardship to the claimant
provided that the requirements of 18 U.S.C. 983(f) are met.
Section 12.38--What happens if my property is subject to civil judicial
actions to obtain forfeiture?
We propose to clarify what happens if property is subject to civil
actions to obtain forfeiture. This new section describes the process
for seeking judicial forfeiture under the applicable laws.
Proposed Changes to Subpart D of 50 CFR Part 12--Disposal of Forfeited
or Abandoned Property
We are proposing to change the title of subpart D to ``Abandonment
Procedures.''
Section 12.51--May I simply abandon my interest in the property?
We propose to clarify how property can be abandoned.
Section 12.52--Can I file a petition for remission for my abandoned
property?
If you have agreed to abandon property, then your right to seek
relief is limited to whatever process expressly was reserved in the
abandonment document you signed. For example, the Fish and Wildlife
Abandonment Form (Service Form 3-2096) or U.S. Customs and Border
Protection forms used to abandon property may state that you are
abandoning all claim to the property identified in the form and are
waiving any further rights to proceedings relative to those articles
other than the right to file a petition for administrative relief
within a specified time period. Consequently, if you have so agreed to
abandon your property, then you have no right to file a claim
requesting judicial forfeiture, but are limited to seeking
administrative relief within any time periods specified in the signed
abandonment form.
Proposed Changes to Subpart E of 50 CFR Part 12--Restoration of
Proceeds and Recovery of Storage Costs
We are proposing to change the title of subpart E to ``Disposal of
Forfeited or Abandoned Property.'' This proposed subpart is largely
based on the regulations in current subpart D.
Section 12.61--What is the purpose of this subpart?
The purpose of this subpart is to describe the proposed procedures
the Service will follow for the disposal of forfeited or abandoned
property. This purpose is unchanged from the current Sec. 12.30.
Section 12.62--How does the Service keep track of forfeited or
abandoned property?
This proposed section is only slightly changed from the current
regulations at Sec. 12.31.
Section 12.63--When may the Service return live fish, wildlife, or
plants to the wild?
We propose to clarify when the Service may return live fish,
wildlife, or plants to the wild. This section is basically unchanged
from the current regulations at Sec. 12.34.
Section 12.64--How does forfeiture or abandonment affect the status of
the property?
This proposed section is intended to make it clear that, although
the prior illegal status of the property ceases with forfeiture or
abandonment, any subsequent owner of that property must comply with all
applicable laws and regulations.
Section 12.65--How does the Service dispose of forfeited or abandoned
property?
We propose to clarify how the Service disposes of forfeited or
abandoned property. This proposed rule makes provision for donation of
forfeited and abandoned items used in traditional cultural practices to
members of tribes. Eagle parts and feathers may be donated only to the
National Eagle and Wildlife Property Repository for allocation through
that established process.
Section 12.66--How does the Service dispose of seized injurious fish or
wildlife?
We propose to clarify how the Service disposes of seized injurious
fish or wildlife. The section reiterates and clarifies the Service's
authority to dispose of injurious wildlife and to recover costs
associated with disposal. Specifically, this new section provides for
re-export or destruction of injurious species.
Section 12.67--When may the Service donate forfeited or abandoned
property?
This section is largely unchanged from current Sec. 12.36, except,
because of food safety concerns, the Service will no longer donate
forfeited and abandoned wildlife for human consumption.
Section 12.68--When may the Service loan forfeited or abandoned
property?
We propose to clarify when the Service may loan forfeited or
abandoned property. This section now also makes it clear that
recipients may not sell loaned fish, wildlife, or plants or their
offspring.
Section 12.69--When may the Service sell forfeited or abandoned
property?
We propose to clarify when the Service may sell forfeited or
abandoned property. This section is largely unchanged from current
regulations at Sec. 12.37.
Section 12.70--When may the Service destroy forfeited or abandoned
property?
We propose to clarify when the Service may destroy forfeited or
abandoned property. This proposed section now makes specific provisions
for destruction of forfeited and abandoned wildlife to happen only in
compliance with applicable Federal health, safety, and environmental
laws including disposal of any resulting waste.
Proposed Changes to Subpart F of 50 CFR Part 12--Return of Property
We are proposing to change the title of subpart F to ``Recovery of
Storage Costs and Return of Property.''
Section 12.81--When can the Service assess fees for costs incurred by
the transfer, boarding, handling, or storage of property seized or
forfeited?
This proposed section is basically unchanged from the current
regulations at Sec. 12.42.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written,
[[Page 39856]]
which sections or sentences are too long, the sections where you feel
lists or tables would be useful, etc.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Department has determined that this proposed rule will not have
a significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial
regulatory flexibility analysis is not required. A Small Entity
Compliance Guide is not required.
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking
for any proposed or final rule, the agency must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (such as small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. We have examined this proposed
rule's potential effects on small entities as required by the
Regulatory Flexibility Act. Most of the businesses that the Service
will initiate administrative forfeiture proceedings against would be
considered small businesses as defined under the Regulatory Flexibility
Act. These businesses would be located in many different economic
sectors but would generally fall within the size standards established
by the Small Business Administration for small businesses.
We have determined that this action will not have a significant
economic impact on a substantial number of small entities because the
purpose of this proposed rule is to make our regulations governing the
seizure, bonded release, appraisement, administrative proceeding,
petition for remission, and disposal of items subject to forfeiture
under laws administered by the Service, consistent with CAFRA. Small
businesses will actually have more freedom in contesting administrative
forfeitures if this proposed rule is finalized because CAFRA waived the
requirement to file a cash bond before filing a claim for property.
Therefore, we are certifying that, if made final as proposed, this rule
will not have a significant economic impact on a substantial number of
small entities and a regulatory flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act as it will not have
an annual effect on the economy of $100 million or more. Moreover, this
proposed rule will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. The changes to the regulations
contained in this proposed rule will ensure that 50 CFR part 12
complies with CAFRA, as well as clarifying what procedures are
available to claim items potentially subject to forfeiture. Finally,
this proposed rule does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises because foreign-based enterprises are subject to the same
procedures as U.S.-based enterprises relating to property seized or
subject to administrative forfeiture under various laws enforced by the
Service.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.),
this proposed rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required.
We are the lead agency for enforcing numerous conservation acts and
executive orders, regulating wildlife trade through the declaration
process, issuing permits to conduct activities affecting wildlife and
their habitats, and carrying out U.S. obligations under CITES. No small
government assistance or impact is expected as a result of this
proposed rule. The changes to the regulations contained in this
proposed rule will ensure that 50 CFR part 12 complies with CAFRA, as
well as clarify what procedures are available to claim items
potentially subject to forfeiture.
This proposed rule will not produce a Federal requirement that may
result in the combined expenditure by State, local, or tribal
governments of $100 million or greater in any year, so it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. This proposed rule will not result in any combined expenditure by
State, local, or tribal governments.
Executive Order 12630 (Takings)
Under Executive Order 12630, this proposed rule does not have
significant takings implications nor will it affect any
constitutionally protected property rights. This proposed rule has no
private property takings implications as defined in Executive Order
12630 because the Executive Order specifically exempts seizure and
forfeiture of property for violations of law.
Executive Order 13132 (Federalism)
Under Executive Order 13132, this proposed rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. This proposed rule will not have a substantial direct
effect on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government because State
wildlife agencies will forfeit items under their own applicable laws
and regulations.
Executive Order 12988 (Civil Justice Reform)
Under Executive Order 12988, the Office of the Solicitor has
determined
[[Page 39857]]
that this proposed rule does not overly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order. The
purpose of this proposed rule is to simplify and update our regulations
regarding seizure and forfeiture of property. Specifically, this
proposed rule has been reviewed to eliminate errors and ensure clarity,
has been written to minimize lawsuits, provides a clear legal standard
for affected actions, and specifies in clear language the effect on
existing Federal law or regulation.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995, (44 U.S.C. 3501 et seq.). This rule
would not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. We may
not conduct or sponsor and you are not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
This proposed rule has been analyzed under the criteria of the
National Environmental Policy Act and 318 DM 2.2 (g) and 6.3 (D). This
proposed rule does not amount to a major Federal action significantly
affecting the quality of the human environment. An environmental impact
statement/evaluation is not required. This proposed rule is
categorically excluded from further National Environmental Policy Act
requirements, under 43 CFR 46.210(d), (i). These categorical exclusions
address policies, directives, regulations, and guidelines that are of
an administrative, financial, legal, technical, or procedural nature;
or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis under NEPA.
Endangered Species Act
Section 7 of the ESA, as amended (16 U.S.C. 1531 et seq.), provides
that Federal agencies shall ``ensure that any action authorized, funded
or carried out . . . is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of (critical) habitat. . . .''
We found that no section 7 consultation under the ESA was required for
this proposed rule.
Executive Order 13175 (Tribal Consultation) and 512 DM 2 (Government-
to-Government Relationship With Tribes)
Under the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated
possible effects on federally recognized Indian tribes and have
determined that there are no adverse effects. Individual tribal members
are subject to the same procedures as other individuals relating to
property seized or subject to administrative forfeiture under various
laws enforced by the Service, except for proposed Sec. 12.65(a)(2),
which is wholly beneficial to tribal members.
Executive Order 13211 (Energy Supply, Distribution, or Use)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions that significantly
affect energy supply, distribution, and use. Because this proposed rule
applies only to U.S. Government administrative forfeiture procedures,
it is not a significant regulatory action under Executive Order 12866
and is not expected to significantly affect energy supplies,
distribution, and use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 12
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Seizures and forfeitures, Surety bonds, Transportation,
Wildlife.
For the reasons described above, we propose to revise part 12,
subchapter B of Chapter I, title 50 of the Code of Federal Regulations
as set forth below.
PART 12--SEIZURE AND FORFEITURE PROCEDURES
Subpart A--General Provisions
Sec.
12.1 What is the purpose of the regulations in this part?
12.2 What is the scope of the regulations in this part?
12.3 What definitions do I need to know?
12.4 When and how must documents be filed or issued?
12.5 How does the Service handle seizures made by other agencies?
12.6 How does the Service release seized property under a bond?
Subpart B--Notification Requirements
Sec.
12.11 How is personal notification of seizure and proposed
forfeiture provided?
12.12 How is public notification of seizure and proposed forfeiture
provided?
12.13 What does a declaration of forfeiture contain?
12.14 What happens if the required notification of seizure and
proposed forfeiture is not provided?
Subpart C--Forfeiture Proceedings
Sec.
12.31 What are the basic types of forfeiture proceedings
12.32 When may the Service or the Solicitor obtain administrative
forfeiture of my property?
12.33 How do I file a petition for remission of forfeiture
requesting the release of my property?
12.34 What are the standards for remission of forfeiture?
12.35 How will the Solicitor notify me of its decision on my
petition for remission?
12.36 How do I file a claim to get back my seized property?
12.37 Can I get my property back while the claim is pending?
12.38 What happens if my property is subject to civil judicial
actions to obtain forfeiture?
Subpart D--Abandonment Procedures
Sec.
12.51 May I simply abandon my interest in the property?
12.52 Can I file a petition for remission for my abandoned property?
Subpart E--Disposal of Forfeited or Abandoned Property
Sec.
12.61 What is the purpose of this subpart?
12.62 How does the Service keep track of forfeited or abandoned
property?
12.63 When may the Service return live fish, wildlife, or plants to
the wild?
12.64 How does forfeiture or abandonment affect the status of the
property?
12.65 How does the Service dispose of forfeited or abandoned
property?
12.66 How does the Service dispose of seized injurious fish or
wildlife?
12.67 When may the Service donate forfeited or abandoned property?
12.68 When may the Service loan forfeited or abandoned property?
12.69 When may the Service sell forfeited or abandoned property?
12.70 When may the Service destroy forfeited or abandoned property?
Subpart F--Recovery of Storage Costs and Return of Property
Sec.
12.81 When can the Service assess fees for costs incurred by the
transfer, boarding, handling, or storage of property seized or
forfeited?
Authority: 16 U.S.C. 470, 470aaa et seq., 668-668b, 668dd(e)-
(f), 704, 706-707, 712, 718f-718g, 742j-l(d)-(f), 1375-1377, 1382,
1540, 2401 et seq., 3001 et seq., 3371 et seq., 4201 et seq., 5301
et seq., 7421; 18 U.S.C. 43, 44, 983, 985; 19 U.S.C. 1602-1624; 28
U.S.C. 2465(b); 42 U.S.C. 1996; and E.O. 11987, 42 FR 26949.
[[Page 39858]]
Subpart A--General Provisions
Sec. 12.1 What is the purpose of the regulations in this part?
These regulations provide procedures that govern the seizure and
administrative forfeiture or abandonment of property, as well as the
disposal of such property, and the recovery of costs associated with
handling and storage of seized property under various laws enforced by
the Service.
Sec. 12.2 What is the scope of the regulations in this part?
(a) The regulations in this part apply to all property seized or
subject to administrative forfeiture under any of the following laws:
(1) The Bald and Golden Eagle Protection Act, 16 U.S.C. 668 et
seq.;
(2) The Airborne Hunting Act, 16 U.S.C. 742j-1;
(3) The Endangered Species Act, 16 U.S.C. 1531 et seq.;
(4) The Lacey Act, 18 U.S.C. 42;
(5) The Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.;
(6) The Rhinoceros and Tiger Conservation Act, 16 U.S.C. 5301 et
seq.;
(7) The Antarctic Conservation Act, 16 U.S.C. 2401 et seq.;
(8) The Paleontological Resources Protection Act 16 U.S.C. 470aaa
et seq.; and
(9) The African Elephant Conservation Act, 16 U.S.C. 4201 et seq.
(b) These regulations apply to the disposal of any property
forfeited or abandoned to the United States under any of the following
laws:
(1) Any of the laws identified in paragraph (a) of this section;
(2) The National Wildlife Refuge System Administration Act, 16
U.S.C. 668dd-668ee;
(3) The Migratory Bird Treaty Act, 16 U.S.C. 704, 706-707, 712
(MBTA);
(4) The Migratory Bird Hunting and Conservation Stamp Act, 16
U.S.C. 718 et seq.;
(5) The Marine Mammal Protection Act of 1972, 16 U.S.C. 1375-1377,
1382;
(6) The Archeological Resources Protection Act, 16 U.S.C. 470 et
seq.;
(7) The Native American Graves Protection and Repatriation Act, 16
U.S.C. 3001 et seq.
(c) This part applies to all forfeitures administered by the
Service with the exception of seizures and forfeitures under the
statutes listed under 18 U.S.C. 983(i). The authority under this part
to conduct administrative forfeitures derives from the procedural
provisions of the Customs and Border Protection laws (19 U.S.C. 1602-
1618) where those provisions are incorporated by reference in the
substantive forfeiture statutes enforced by the Service.
Sec. 12.3 What definitions do I need to know?
In addition to the definitions contained in parts 10, 14, 17, and
23 of this chapter, as well as other applicable Federal laws and
regulations, in this part:
Abandon means to relinquish to the United States all legal right
you have to own, claim, or possess property seized by the Service, and
to forever give up any right, title, and interest in the property and
waive any further rights or proceedings relative to the property other
than whatever rights to seek relief expressly were reserved in the
abandonment document you signed.
Administrative forfeiture means the process by which property may
be forfeited by a seizing agency rather than through a judicial
proceeding. Administrative forfeiture has the same meaning as
nonjudicial forfeiture, as that term is used in 18 U.S.C. 983.
Authorized officer means a person or entity who is acting as an
agent, trustee, partner, corporate officer, director, supervisory
employee, or any other representative designated to act on behalf of a
corporation, partnership, or individual asserting that they are an
interested party.
Claim means a written declaration regarding property for which the
Service has proposed forfeiture, that meets the statutory requirements
of 18 U.S.C. 983(a)(2), including:
(1) Timely submission;
(2) Containing required information regarding identification of the
specific property being claimed;
(3) Stating the claimant's interest in the property;
(4) Requesting the initiation of judicial forfeiture proceedings;
and
(5) Made under oath subject to penalty of perjury.
Contraband means any fish, wildlife, or plant that either:
(1) Is inherently illegal to import, export, or possess; or
(2) Has been taken, possessed, imported, exported, acquired,
transported, purchased, sold, or offered for sale or purchase contrary
to law.
Declaration of forfeiture means a written declaration by the
Service or the Solicitor describing the property forfeited and stating
the date, time, place, and reason for forfeiture. The declaration will
also describe the date and manner in which notice of seizure and
proposed forfeiture was sent to the property owner. If notice was never
successfully sent, the declaration will describe efforts made to
deliver any notice of seizure and proposed forfeiture.
Detention means the holding for further investigation of fish,
wildlife, or plants and any associated property that is neither
immediately released nor seized but is temporarily held by Service
officers under 50 CFR part 14.
Directed re-export means the prompt export at the expense of the
importer or consignee of imported shipments that have been refused
entry by the Service into the United States.
Director means the Director of the United States Fish and Wildlife
Service, Department of the Interior, or an authorized representative
(as defined in 50 CFR 10.12).
Interested party or parties means any person(s) who appears to be a
person having an interest under the criteria in Sec. 12.11(a), based
on the facts known to the seizing agency before a declaration of
forfeiture is entered.
Other property that is illegal to possess means any fish, wildlife,
or plants that may not be legally possessed or held due to extrinsic
circumstances.
Petition for remission is a request in an administrative forfeiture
proceeding for the Solicitor to exercise equitable discretion on behalf
of the Department and to release the property seized. Remission of
forfeiture is discretionary.
Property subject to administrative forfeiture means any property of
the kinds described in 19 U.S.C. 1607(a) to the extent not inconsistent
with the provisions of the incorporating wildlife laws (identified in
Sec. 12.2) pursuant to which forfeiture is sought.
Property subject to forfeiture means all property that Federal law
authorizes to be forfeited to the United States in any administrative
forfeiture proceeding, or in any civil judicial forfeiture, or in any
criminal forfeiture proceeding.
Solicitor means the Solicitor of the U.S. Department of the
Interior or an authorized representative or designee.
Value means the value of property as determined by the Service. For
property having a legal market in the United States, the Service will
use the reasonable declared value or the estimated market value at the
time and place of seizure, if such or similar property was freely
offered for sale between a willing seller and a willing buyer. For
property that may not be sold in the United States, the Service will
use other reasonable means, including, but not limited to, the
Service's knowledge of sale prices in illegal markets or the
replacement cost.
We means the U.S. Fish and Wildlife Service.
[[Page 39859]]
Sec. 12.4 When and how must documents be filed or issued?
(a) Whenever this part requires or allows you to file a document on
or before a certain date, you are responsible for submitting that
document so as to reach the Government office designated for receipt by
the time specified. You may use the U.S. Postal Service (USPS), a
commercial carrier, or electronic or facsimile transmission. We will
consider the document filed on the date on which the document is
received by the Government office designated for receipt. Acceptable
evidence to establish the time of receipt by the Government office
includes any official USPS receipt, commercial carrier signature log,
time/date stamp placed by the Government on the document, other
documentary evidence of receipt maintained by that Government office,
or oral testimony or statements of Government personnel.
(b) Whenever this part requires or allows the Government to issue
or file a document on or before a certain date, the document will be
considered to be issued or filed on the date on which the document was
placed in the USPS system, delivered to a commercial carrier, or sent
by electronic or facsimile transmission. Acceptable evidence to
establish the time of filing or issuance by the Government includes any
official USPS sender's receipt, commercial carrier receipt log, and
time/date stamp placed by the government office on the document, other
documentary evidence of receipt maintained by that office, or oral
testimony or statements of Government personnel.
Sec. 12.5 How does the Service handle seizures made by other
agencies?
(a) If an authorized employee or officer of another Federal or
State or local law enforcement agency seized your fish, wildlife, or
plants or other property under any of the laws listed in Sec. 12.2,
the Service may request the delivery of the seized property to the
appropriate Special Agent in Charge (SAC), Office of Law Enforcement,
or to an authorized designee. The addresses for SACs are listed in
Sec. 2.2 of this subchapter, and telephone numbers are listed in Sec.
10.22 of this subchapter. The SAC or authorized designee will hold the
seized fish, wildlife, or plants or other property subject to
forfeiture and arrange for its proper handling and care. Forfeiture
proceedings must be initiated by notice to the interested parties
within 90 days of the date of seizure by the Federal, State, or local
law enforcement agency.
(b) If you use any U.S. Customs and Border Protection (CBP) form
(forms may be amended or superseded) to voluntarily abandon any fish,
wildlife, or plants or other property subject to forfeiture in lieu of
Service Form 3-2096, Fish and Wildlife Abandonment Form, the Service
may request that CBP transfer the property to the Service for final
disposition.
Sec. 12.6 How does the Service release seized property under a bond?
(a) When an administrative forfeiture is pending, the Service may
at its discretion accept an appearance bond or other security from you
in place of any property authorized for seizure by civil forfeiture
under any Act listed in Sec. 12.2. If a judicial claim has been filed,
then early release of property must be handled under the provisions of
18 U.S.C. 983(f).
(b) You may post an appearance bond or other security in place of
seized property only if the Service, at its discretion, authorizes the
acceptance of the bond or security and the following conditions are
met:
(1) You must complete Service Form 3-2095, Cash Bond for Release of
Seized Property;
(2) The Service may release your seized property only to you (the
owner) or your designated representative; and
(3) Your possession of the property may not violate or undermine
the purpose or policy of any applicable law or regulation.
Subpart B--Notification Requirements
Sec. 12.11 How is personal notification of seizure and proposed
forfeiture provided?
An administrative forfeiture proceeding begins when notice is first
published in accordance with Sec. 12.12, or the first personal written
notice is sent in accordance with the regulations in this section,
whichever occurs first.
(a) Manner of providing notice. After seizing property subject to
administrative forfeiture, the Service or the Solicitor, in addition to
publishing notice of the seizure, will send personal written notice of
the seizure to each interested party in a manner reasonably calculated
to reach such parties. The notice of seizure and proposed forfeiture
will not be sent to any person who signed an abandonment form. The
notice of seizure and proposed forfeiture will be sent by U.S.
registered or certified mail, express mail, or commercial carrier, all
with proof of delivery and return receipt requested. The notice will be
sent to an address that has been provided on shipping or other
documents accompanying the property or on your permit or license
application, unless the Service or the Solicitor has actual notice of a
different address.
(b) Content of personal written notice. The personal written notice
sent by the Service or the Solicitor will contain the following
information:
(1) A description of the seized property;
(2) The name, title, and business address to whom any petition for
remission or claim for judicial proceedings must be filed, as well as a
seizure tag number;
(3) The date and place of seizure, and the estimated value of the
property as determined under Sec. 12.3;
(4) A reference to provisions of law or regulations under which the
property is subject to forfeiture;
(5) A statement that the Service or the Solicitor intends to
proceed with administrative forfeiture proceedings;
(6) The date when the personal written notice is sent;
(7) The deadline for filing claims for judicial forfeiture
proceedings, which is 35 days after the personal written notice is
sent, as well as the deadline for filing petitions for remission; and
(8) A statement that any interested party may file a claim or
petition for remission by the deadline.
(c) Date of personal notice. Personal written notice is sent on the
date when the Service or the Solicitor places the notice in the mail,
delivers it to a commercial carrier, or otherwise sends it by means
reasonably calculated to reach the interested party.
(d) Timing of notification. The Service or the Solicitor will
notify you in writing of any seizure of your property as soon as
practicable and not more than 60 days after the date of seizure. If
property is detained at an international border or port of entry for
the purpose of examination, testing, inspection, obtaining
documentation, or other investigation relating to the importation or
the exportation of the property, the 60-day period will begin to run
when the period of detention ends, if the Service seizes the property
for the purpose of forfeiture to the United States.
(e) Exceptions to the 60-day notification requirement. The
exceptions in 18 U.S.C. 983(a)(1), including but not limited to the
exceptions listed in this paragraph (e), apply to the notice
requirement under paragraph (d) of this section.
(1) If the identity or interest of an interested party is
determined after the seizure of the property but before entering a
declaration of forfeiture, the Service or the Solicitor will send
[[Page 39860]]
written notice to such interested party under paragraph (a) of this
section not more than 60 days after the date that the identity of the
interested party or the interested party's interest is determined.
(2) For the purposes of this section, we do not consider property
that has been refused entry, held for identification, held for an
investigation as evidence, or detained for less than 30 days under part
14 of this chapter, to be seized.
(3) If, before the time period for sending notice expires, the
Government files a civil judicial forfeiture action against the seized
property and provides notice of such action as required by law,
personal notice of administrative forfeiture is not required under
paragraph (a) of this section.
(4) If, before the time period for sending notice expires, the
Government does not file a civil judicial forfeiture action, but does
obtain a criminal indictment containing an allegation that the property
is subject to forfeiture, the Government shall either:
(i) Send notice within the 60 days specified under paragraph (a) of
this section and continue the nonjudicial civil forfeiture proceeding,
or
(ii) Terminate the nonjudicial civil forfeiture proceeding and take
the steps necessary to preserve its right to maintain custody of the
property as provided in the applicable criminal forfeiture statute.
(f) Extensions to the 60-day notification requirement. The Director
may extend the 60-day deadline for sending personal written notice
under these regulations in a particular case one time, for a period not
to exceed 30 days, unless further extended by a court, only if the
Director determines that the notice may have an adverse result
including endangering the life or physical safety of an individual,
flight from prosecution, destruction of or tampering with evidence,
intimidation of potential witnesses, or otherwise seriously
jeopardizing an investigation or unduly delaying a trial.
(g) Deadlines for filing a petition for remission. (1) You must
file your petition for remission within 35 days from the date of the
delivery of the notice of seizure and proposed forfeiture, if you or
any interested party receives the notice of seizure and proposed
forfeiture.
(2) If you do not receive the notice of seizure and proposed
forfeiture, the petition for remission that you file must be received
not later than 30 days from the date of last posting of the public
notice of the seizure of the property.
Sec. 12.12 How is public notification of seizure and proposed
forfeiture provided?
(a) After seizing property subject to administrative forfeiture,
the Service will select from the following options a means of
publication reasonably calculated to notify potential claimants of the
seizure and the intent to forfeit and sell or otherwise dispose of the
property:
(1) Publication once each week for at least three successive weeks
in a newspaper generally circulated in the judicial district where the
property was seized; or
(2) Posting a notice on the official government Internet site at
http://www.fws.gov/fwsforfeiture/ for at least 30 consecutive days.
(b) The published notice will:
(1) Describe the seized property;
(2) State the date, statutory basis, and place of seizure;
(3) State the deadline for filing a claim when personal written
notice has not been received, at least 30 days after the date of final
publication of the notice of seizure; and
(4) State the name, title, and business address to whom any
petition for remission or claim for judicial proceedings must be filed.
Sec. 12.13 What does a declaration of forfeiture contain?
(a) If the seizing agency commences a timely proceeding against
property subject to administrative forfeiture, and either no valid and
timely claim is filed or the seized property is not released in
response to a petition or supplemental petition for remission, the
Service or the Solicitor will declare the property forfeited to the
United States for disposition according to law. The declaration of
forfeiture will have the same force and effect as a final decree and
order of forfeiture in a Federal judicial forfeiture proceeding.
(b) The declaration of forfeiture will describe the property and
state the date, time, place, and reason for the seizure of the
property. The declaration of forfeiture will make reference to the
notice of seizure and proposed forfeiture and describe the dates and
manner in which the notice of seizure and proposed forfeiture was sent
to you. If we have no proof of delivery to you of the notice of seizure
and proposed forfeiture, the declaration of forfeiture will describe
the efforts made to deliver the notice of seizure and proposed
forfeiture to you.
Sec. 12.14 What happens if the required notification of seizure and
proposed forfeiture is not provided?
Under 18 U.S.C. 983(a)(1)(F), if the Service or the Solicitor does
not send notice of a seizure of property in accordance with that
section to the person from whom the property was seized, and no
extension of time was granted, the Government is required to return the
property to that person, unless the property is contraband or other
property that is illegal to possess. Any return of property under this
section does not prejudice the right of the Government to commence a
forfeiture proceeding at a later time.
Subpart C--Forfeiture Proceedings
Sec. 12.31 What are the basic types of forfeiture proceedings?
(a) Property seized for violations of the laws identified in Sec.
12.2 and subject to forfeiture may be forfeited, depending upon the
nature of the property and the law involved, through criminal
forfeiture proceedings, civil judicial procedures, or civil nonjudicial
(administrative) procedures.
(b) The process used also may be determined in certain
circumstances by the actions of an interested party. For example, a
person claiming property seized in a nonjudicial (administrative) civil
forfeiture proceeding under a civil forfeiture statute may choose to
file a claim after the seizure rather than to pursue administrative
relief through a petition for remission of forfeiture.
(c) A claim that is timely and contains the information required by
Sec. 12.36 will terminate the administrative proceeding and will cause
the Service, through the Solicitor, to refer the claim to the U.S.
Department of Justice with the request that a judicial forfeiture
action be instituted in Federal court.
Sec. 12.32 When may the Service or the Solicitor obtain
administrative forfeiture of my property?
If your fish, wildlife, or plants or other property is subject to
forfeiture under any Act listed in Sec. 12.2, and it is also property
subject to administrative forfeiture, the Service or the Solicitor may
initiate an administrative forfeiture proceeding of the property under
the forfeiture procedures described in this subpart.
Sec. 12.33 How do I file a petition for remission of forfeiture
requesting the release of my property?
(a) If you are an interested party, you may file a petition for
remission of forfeiture with the Service to return seized property that
is subject to administrative forfeiture. Upon receiving the petition,
the Service will refer the petition to the Solicitor to decide whether
or not to grant relief.
(b) Any petition for remission of forfeiture must be filed within
the time
[[Page 39861]]
periods set out in the notice of seizure and proposed forfeiture issued
under subpart B of this part.
(c) Petitions for remission of forfeiture must be concise and
logically presented to facilitate review by the Solicitor. Failure to
substantially comply with any of the information required by this
paragraph (c) may be grounds for dismissal of the petition for
remission. The petition for remission of forfeiture must contain the
following:
(1) The name, address, and social security or other taxpayer
identification number of the person claiming the interest in the seized
property who is seeking remission.
(2) The name of the seizing agency, the asset identifier number,
and the date and place of seizure.
(3) A complete description of the property.
(4) A description of the petitioner's interest in the property as
owner, lienholder, or otherwise, supported by original or certified
bills of sale, contracts, deeds, mortgages, or other documentary
evidence.
(5) A statement containing all of the facts and circumstances you
rely upon to justify the remission of the forfeiture. If you rely on an
exemption or an exception to a prohibition under any Act listed in
Sec. 12.2, you must demonstrate how that exemption or exception
applies to your particular situation.
(6) A statement containing all of the facts and circumstances you
contend support any innocent owner's defense allowed by 18 U.S.C.
983(d) that you are asserting. No person may assert an innocent owner's
interest in property that is contraband or other property that is
illegal to possess. A petitioner has the burden of proving by a
preponderance of the evidence that the petitioner is an ``innocent
owner'' as defined in 18 U.S.C. 983(d).
(7) A statement that the information furnished is, to the best of
your knowledge and belief, complete, true, and correct and that you
recognize false statements may subject you to criminal penalties under
18 U.S.C. 1001.
(d) In addition to the contents of the petition for remission
described in paragraph (c) of this section, upon request, the
petitioner must also furnish the agency with an instrument executed by
the titled or registered owner and any other known claimant of an
interest in the party releasing its interest in such property.
(e) A petition for remission of property subject to administrative
forfeiture must be addressed to the appropriate office identified in
the notice of forfeiture.
(f) Your petition for remission must be signed by you or your
lawyer. If a lawyer files on behalf of the petitioner, the petition
must include a signed and sworn statement by the client-petitioner
stating that:
(1) The lawyer has the authority to represent you in the
proceeding;
(2) You have fully reviewed the petition; and
(3) The petition is truthful and accurate in every respect to the
best of your knowledge and belief.
(g) If the petitioner is a corporation, the petition must be signed
by an authorized officer, supervisory employee of the corporation, or a
lawyer representing the corporation, and the corporate seal must be
properly affixed to the signature.
(h) In making a decision, the Solicitor will consider the
information you submit, as well as any other available information
relating to the matter. If you file a claim to the property, as
described in Sec. 12.36, the administrative proceeding will be
terminated and the Solicitor will no longer have the opportunity or
authority to review or rule on the petition for remission of the
property.
Sec. 12.34 What are the standards for remission of forfeiture?
(a) A petition for remission must include evidence that the
petitioner is either:
(1) An interested party or owner as defined in this part; or
(2) That the knowledge and responsibilities of the petitioner's
representative, agent, or employee are ascribed to the petitioner where
the representative, agent, or employee was acting in the course of his
or her employment and in furtherance of the petitioner's business.
(b) The petitioner has the burden of establishing the basis for
granting a petition for remission of property, or a reconsideration of
a denial of such a petition. Failure to provide information or
documents and to submit to interviews, as requested, may result in a
denial of the petition.
(c) The Solicitor will presume a valid seizure and will not
consider whether the evidence is sufficient to support the seizure in
determining whether remission should be granted. The Solicitor will
consider the information you submit, as well as any other available
information relating to the matter.
(d) Willful, materially false statements or information, made or
furnished by the petitioner in support of a petition for remission or
the reconsideration of a denial of any such petition, will be grounds
for denial of such petition and possible prosecution for filing of
false statements.
(e) The provisions of the remission decision include the following:
(1) Remission is an equitable remedy and is discretionary with the
Solicitor.
(2) The Solicitor may grant remission of property if the Solicitor
determines that mitigating circumstances justify the remission and then
only under such terms and conditions as are reasonable and just.
(i) Mitigating factors that may be considered for the sole and
limited purpose of remission of forfeiture include, but are not limited
to, whether:
(A) The facts demonstrate your honest and good faith intent and
effort to comply with the law;
(B) You did not have the ability to prevent the violation;
(C) No evidence exists that you have engaged in past conduct
similar to the violation;
(D) You have taken meaningful steps including enforcement
mechanisms (e.g., contractual or monetary) to prevent any violations;
and
(E) The return of the property combined with imposition of monetary
and/or other conditions of mitigation in lieu of a complete forfeiture
will promote the interest of justice.
(ii) These factors are not intended to be all inclusive and do not
constitute authority in and of themselves.
(3) All remission decisions must be made with due consideration for
the cumulative conservation impacts of the remission including whether:
(i) The item is an Appendix I, II, or III species under the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES);
(ii) The item is listed as threatened or endangered under the
Endangered Species Act (ESA);
(iii) The violation increased the regulatory burden on government
agencies; or
(iv) Remission may have an adverse effect on the integrity of any
applicable permitting system or may provide an incentive to third
parties to avoid meeting CITES requirements.
(4) The Solicitor has the discretion to condition his or her grant
of remission of the seized property, in whole or in part, on terms and
conditions that are reasonable and just. The Solicitor further has the
discretion to grant remission for the limited purpose of directed re-
export to the exporter of record provided that any such re-export
benefits enforcement and administration of applicable wildlife laws.
Any terms and conditions of remission will be in
[[Page 39862]]
writing and may include but are not limited to payment of those costs
and expenses that the United States may, as a matter of applicable law,
recover for the property.
(i) Shipment of any released property will be at your sole cost,
and the risk of loss from such shipment will be your risk.
(ii) Property for which remission is granted will be released only
after successful completion of all terms and conditions of remission,
proper identification of the recipient of the property, and your
execution of a property receipt provided by the Solicitor or the
Service acknowledging receipt of the remitted property.
(5) Any decision to grant remission is separate from and does not
preclude or otherwise provide relief from civil enforcement against the
person or persons who committed the violations associated with the
seizure and proposed forfeiture of the property. To expedite the
resolution of any civil penalties that may be brought against you under
the ESA (16 U.S.C. 1531 et seq.), the Lacey Act Amendments of 1981 (16
U.S.C. 3371 et seq.), or the Bald and Golden Eagle Protection Act (16
U.S.C. 668 et seq.) in connection with violations involving any
wildlife for which remission is to be granted, the Solicitor, at his or
her sole discretion, may give you the opportunity to completely or
partially settle the civil penalty claim at the same time that
remission is granted by executing a written agreement setting forth the
terms and conditions of the civil penalty settlement. Such agreement
may be included in the written documentation of the terms and
conditions of the parallel remission of forfeiture provided that:
(i) The terms and conditions of civil penalty settlement are
clearly delineated as relating separately and solely to any civil
penalty claims; and
(ii) The wildlife owner agrees in writing to waive any notice of
violation and notice of assessment required by part 11 of this
subchapter and the opportunity for a hearing as conditions of civil
penalty settlement.
Sec. 12.35 How will the Solicitor notify me of its decision on my
petition for remission?
(a) The Solicitor will notify you in writing of any decision that
is made to grant a petition for remission or to deny a petition for
remission or to dismiss the petition for failure to provide the
information required in this part or to timely file that petition. Any
such notification will advise you of the reasons for the decision made
and the options, if any, available to you for addressing the decision.
(b) In the event that a petition for remission of forfeiture is
denied, you may file a supplemental petition for reconsideration if you
have information or evidence not previously considered that is material
to the basis for the denial or new documentation clearly demonstrating
that the denial was erroneous. Such supplemental petition must be
received within 60 days from the date of the Solicitor's notification
denying the original petition. Only one supplemental petition will be
allowed. The Solicitor's decision on your petition for remission will
be the decision for the Service.
Sec. 12.36 How do I file a claim to get back my seized property?
(a) If you receive a notice of seizure and proposed forfeiture, you
may file a claim to the property by the deadline stated in the notice
of seizure and proposed forfeiture. This deadline will be 35 days after
the notice is mailed.
(b) If you did not receive a notice of seizure and proposed
forfeiture, your claim must be received by the appropriate office not
later than 30 days from the last date of final publication of the
notice of the seizure of the property.
(c) A claim does not have to be in any particular form, but your
claim must be in writing, must identify the specific property being
claimed, must state your interest in the specific property being
claimed, and must be made under oath subject to penalty of perjury. We
will make a claim form available to you upon request.
(d) Your claim, by itself, will not entitle you or any other person
to possession of the property. No bond is required to make a claim for
judicial forfeiture proceedings. Rather, your claim will result in the
Service referring the case, through the Solicitor, to the Department of
Justice for civil judicial forfeiture. However, if you request
possession of the property pending an administrative forfeiture
decision under Sec. 12.6, you will be required to post a bond under
Sec. 12.6 if your request is granted. This bond is only required to
obtain interim possession of the property.
(e) Your claim must be made under oath by you as the claimant and
not by an attorney or agent.
(f) If you are an individual claimant, you must sign the claim.
(1) If the claimant is a corporation or a form of limited liability
business entity organized under a State law, an authorized officer or
supervisory employee of the entity must sign the claim.
(2) If the claimant is a partnership or limited partnership, any
general partner may sign the claim.
(3) If the claimant is a trust, estate, or fiduciary entity, such
as a person to whom property is entrusted, the chief officer authorized
by the trust, estate, or fiduciary entity must sign the claim.
Sec. 12.37 Can I get my property back while the claim is pending?
If you have filed a claim and you think that continued possession
of the property by the United States during the forfeiture proceeding
will cause you substantial hardship, you may request under 18 U.S.C.
983(f) that the Service return the property to you pending the
resolution of the judicial forfeiture proceeding. In considering
whether to grant or deny your request, the Service will consider the
factors set out in 18 U.S.C. 983(f). You must furnish evidence
substantiating the hardship, and none of the conditions set forth in 18
U.S.C. 983(f)(8) may apply; for example, the property may not be
contraband.
Sec. 12.38 What happens if my property is subject to civil judicial
actions to obtain forfeiture?
(a) If a claim is filed in the forfeiture proceeding under Sec.
12.36, the Solicitor will refer the case to the Department of Justice
to include in a civil forfeiture complaint or in a criminal indictment.
(b) If you file a claim (as defined in Sec. 12.3) for property
that is contraband or other property that is illegal to possess (as
defined in Sec. 12.3), and a judicial forfeiture action is not pursued
within the required time period, the Solicitor will promptly notify you
by letter that, if you are still interested in having the property
returned, you must file a civil judicial action moving for return of
the property under Rule 41(g) of the Federal Rules of Criminal
Procedure (FRCP) in the district where the property was seized. The
Service will also publish this notification to the general public as
provided for in Sec. 12.12.
(c) If a court determines, pursuant to FRCP 41(g), that any fish,
wildlife, or plant is contraband or other property that is illegal to
possess, the Director will dispose of it as provided in Sec. Sec.
12.61-12.70. If no motion for return of property is filed as described
in paragraph (b) of this section within 6 years of the date of
publication by letter or public notice (whichever is later), the
Director will deem the property abandoned and will dispose of it as
provided in Sec. Sec. 12.61-12.70.
[[Page 39863]]
Subpart D--Abandonment Procedures
Sec. 12.51 May I simply abandon my interest in the property?
You may voluntarily abandon your interest in property to the United
States by signing a Service Form 3-2096, Fish and Wildlife Abandonment
Form, or equivalent Federal, State, Tribal, or local form, or by signed
letter to the Service or the Solicitor saying that you abandon all
right, title, and interest you have in the property to the United
States other than whatever right to seek relief (if any) was expressly
reserved in the abandonment document you signed.
Sec. 12.52 Can I file a petition for remission for my abandoned
property?
You may file a petition for remission of abandoned property with
the Service and seek the return of property you had voluntarily
abandoned, within the time period described in subpart B. If you have
agreed to abandon property, your right to seek relief is limited to
whatever process expressly was reserved in the abandonment document you
signed.
Subpart E--Disposal of Forfeited or Abandoned Property
Sec. 12.61 What is the purpose of this subpart?
This subpart contains the provisions under which the Service will
dispose of any property forfeited or abandoned to the United States.
Sec. 12.62 How does the Service keep track of forfeited or abandoned
property?
The Service must account in official records for all property
forfeited or abandoned under this subpart. These records must include
the following information:
(a) A description of the property;
(b) The date and place of the seizure of the property, if
appropriate, the seizure tag number, and date of forfeiture or
abandonment of the property;
(c) The investigative case file number associated with the
property;
(d) The name of any person known to have or to have had an interest
in the property;
(e) The date, place, and manner of the disposal of the property;
(f) The name of the official responsible for the disposal of the
property; and
(g) The value of the property.
Sec. 12.63 When may the Service return live fish, wildlife, or plants
to the wild?
(a) The Service may release any live member of a native species of
fish, wildlife, or plant that is capable of surviving in the wild into
suitable habitat within the historical range of the species in the
United States, with the permission of the landowner and the State,
unless that release poses an imminent danger to public health or
safety, or presents a known threat of disease transmission to other
fish, wildlife, or plants.
(b) The Service may transplant any live member of a native species
of plant that is capable of surviving into suitable habitat on Federal
or other protected lands within the historical range of the species in
the United States, with the permission of the appropriate land-
management agency.
(c) The Service may not return to the wild any live member of an
exotic, nonnative species of fish, wildlife (including injurious
wildlife), or plant, within the United States, but may return the
exotic fish, wildlife, or plant to one of the following countries for
return to suitable habitat under the provisions of applicable laws,
including CITES and the domestic laws of that country, if the returned
species is capable of surviving:
(1) The country of export, if known, after consultation with and at
the expense of the country of export; or
(2) A country that is within the historical range of the species
and that is a party to CITES (Treaties and Other International Acts
Series, TIAS 8249) after consultation with and at the expense of that
country.
Sec. 12.64 How does forfeiture or abandonment affect the status of
the property?
(a) After property has been forfeited or abandoned, the prior
illegal status of the property, due to violations of any Act listed in
Sec. 12.2 that led to the forfeiture or abandonment of the property,
is terminated. However, any subsequent holder or owner of the property
must comply with all prohibitions, restrictions, conditions, or
requirements that apply to a particular species of fish, wildlife, or
plant under any Act listed in Sec. 12.2, or any State, including any
applicable conservation, health, quarantine, agricultural, or Customs
laws or regulations.
(b) When releasing property under the provisions of this subpart,
the Service will prescribe the conditions under which the property may
be possessed and used and will reserve the right to resume possession
of the property if it is possessed or used in violation of those
conditions.
Sec. 12.65 How does the Service dispose of forfeited or abandoned
property?
(a) The Service will dispose of any fish, wildlife, or plant
forfeited or abandoned by one of the following means, unless the item
is the subject of a petition for remission of forfeiture under Sec.
12.33 or disposed of by court order (items will be disposed of in order
of priority listed below):
(1) Return to the wild, as described in Sec. 12.63(a);
(2) Transfer for use by the Service, transfer to the National Eagle
and Wildlife Property Repository or to a tribe, where the item is
credibly identified as an object of cultural patrimony, or transfer to
another government agency for official use;
(3) Donation or loan;
(4) Sale; or
(5) Destruction.
(b) The Service may use forfeited or abandoned fish, wildlife, or
plants or transfer them to another government agency, including foreign
government agencies, for official use including, but not limited to,
one or more of the following purposes:
(1) Training government officials to perform their official duties;
(2) Identifying protected fish, wildlife, or plants, including
forensic identification or research;
(3) Educating the public concerning the conservation of fish,
wildlife, or plants;
(4) Conducting law enforcement operations in performance of
official duties;
(5) Enhancing the propagation or survival of a species or other
scientific purposes;
(6) Presenting as evidence in a legal proceeding involving the
fish, wildlife, or plants; or
(7) Returning the live fish, wildlife, or plants to the wild under
Sec. 12.63.
(c) The Service must document each transfer and the terms of each
transfer.
(d) The government agency, including foreign government agencies,
receiving the fish, wildlife, or plants may be required to pay all of
the costs of care, storage, and transportation in connection with the
transfer of the fish, wildlife, or plants, from the date of seizure,
refused entry, or detention, to the date of delivery.
(e) The Service must dispose of forfeited or abandoned property,
other than fish, wildlife, or plants, including vehicles, vessels,
aircraft, cargo, guns, nets, traps, and other equipment, as allowed
under current Federal property management regulations.
(f) When disposing of property, the Service must follow the
following guidelines:
(1) The Service may dispose of any live fish, wildlife, or plant
immediately upon order of forfeiture or abandonment of the property, if
the Service determines that the property is likely to
[[Page 39864]]
perish, deteriorate, decay, waste, or greatly decrease in value if
maintained by the Service, or if the expense of maintaining that
property is disproportionate to its value; or
(2) The Service may dispose of all other property no sooner than 30
days after an order of forfeiture or abandonment of the property.
(g) If the property is the subject of a pending petition for
remission of forfeiture under Sec. 12.35, the Service may not dispose
of the property until the Solicitor or the Attorney General, pursuant
to 28 CFR part 9, makes a final decision regarding whether or not
relief will be granted.
Sec. 12.66 How does the Service dispose of seized injurious fish or
wildlife?
(a) The Service will order immediate re-export or destruction of
any seized injurious fish or wildlife imported or transported in
violation of our injurious species regulations in part 16 of this
subchapter.
(b) The importer, exporter, or transporter will be responsible for
all costs associated with the re-export or destruction of any seized
injurious fish or wildlife imported, exported, or transported in
violation of our injurious species regulations in part 16 of this
subchapter.
(c) Any live or dead specimen, part, or product of any fish or
wildlife species listed as injurious under part 16 of this subchapter
will be disposed of in a manner that minimizes, to the greatest extent
practicable, the possibility that additional specimens will be imported
or transported in violation of our injurious species regulations in
part 16 of this subchapter.
Sec. 12.67 When may the Service donate forfeited or abandoned
property?
(a) The Service may donate forfeited or abandoned fish, wildlife,
or plants, for scientific, educational, or public display purposes. The
donation may be made to any person, government agency (including
foreign government agencies) or public organization, as defined in
Sec. 10.12 of this chapter. The donee must have the demonstrated
ability to provide adequate care and security for the fish, wildlife,
or plants.
(b) A transfer document between the Service and the person,
government agency (foreign or domestic), or public organization
receiving the fish, wildlife, or plants, must be completed before any
donation of fish, wildlife, or plants takes place. Form SF-123,
Transfer Order Surplus Personal Property, should be used for transfers
with agencies or persons outside of the Department of the Interior, and
Form DI-104, Transfer of Property, should be used for transfers with
agencies within the Department of the Interior. The donation is subject
to the following conditions:
(1) The recipient must state on the transfer document the purpose
for which the fish, wildlife, or plants will be used.
(2) Any attempt by the recipient to use the donation for any
purpose other than that specifically stated on the transfer document
entitles the Service to immediately repossess the fish, wildlife, or
plants.
(3) The recipient may be required to pay all of the costs
associated with the transfer of the fish, wildlife, or plants,
including the costs of care, storage, transportation, and return to the
Service, if applicable.
(4) The recipient may not sell the fish, wildlife, or plants, or
their offspring.
(5) The recipient may be required to show the Form SF-123, DI-104,
or any other transfer document that was received.
(6) The recipient is subject to the prohibitions, restrictions,
conditions, or requirements that may apply to a particular species of
fish, wildlife, or plant imposed by the laws or regulations of the
United States or any State, including any applicable health,
quarantine, agricultural, or Customs laws or regulations.
(7) Any attempt to retransfer a donation without the prior
authorization of the Service entitles the Service to immediately
repossess the fish, wildlife, or plants.
(8) If the transfer document identifies a time period during which
the recipient of a donation may not retransfer the donation without
prior approval of the Service, and an attempt to do so during this
period is made by the recipient, the Service will be entitled to
immediately repossess the fish, wildlife, or plants.
(9) At all reasonable times, upon prior notice, the recipient must
provide authorized Service officers access to the location where the
donation is kept for the purposes of inspecting the donation, and all
associated records pertaining to the donation.
(10) Any donation is subject to the conditions specified in the
transfer document, including, without limitation, any time periods, and
any violation of these specific conditions entitles the Service to
immediately repossess the fish, wildlife, or plants.
(c) The Service will not donate live fish, wildlife, or plants for
human consumption.
Sec. 12.68 When may the Service loan forfeited or abandoned property?
(a) The Service may loan forfeited or abandoned property, fish,
wildlife, or plants, for scientific, educational, or public display
purposes to any person, government agency, including foreign government
agencies, or public organization, as defined in Sec. 10.12 of this
subchapter, that demonstrates the ability to provide adequate care and
security for the fish, wildlife, or plants.
(b) A transfer document between the Service and the person,
government agency, including foreign government agencies, or public
organization receiving the fish, wildlife, or plants must be completed
before any loan of fish, wildlife, or plants takes place. Form SF-123,
Transfer Order Surplus Personal Property, should be used for transfers
with agencies or persons outside of the Department, and Form DI-104,
Transfer of Property, should be used for transfers with agencies within
the Department. The loan is subject to the following conditions:
(1) The recipient must state on the transfer document the purpose
for which the fish, wildlife, or plants will be used.
(2) Any attempt by the recipient to use the loan for any purpose
other than that specifically stated on the transfer document entitles
the Service to immediately repossess the fish, wildlife, or plants.
(3) The recipient may be required to pay all of the costs
associated with the transfer of the fish, wildlife, or plants,
including the costs of care, storage, transportation, and return to the
Service, if applicable.
(4) The recipient may not sell the fish, wildlife, or plants, or
their offspring.
(5) The recipient may be subject to a periodic accounting of the
care and use of the loaned fish, wildlife, or plants.
(6) The recipient is subject to the prohibitions, restrictions,
conditions, or requirements that may apply to a particular species of
fish, wildlife, or plant imposed by the laws or regulations of the
United States or any State, including any applicable health,
quarantine, agricultural, or Customs laws or regulations.
(7) Any attempt to retransfer a loan without the prior
authorization of the Service entitles the Service to immediately
repossess the fish, wildlife, or plants.
(8) If the transfer document identifies a time period during which
the recipient of a loan may not retransfer the loan without prior
approval of the Service and an attempt to do so during this period is
made by the recipient, the
[[Page 39865]]
Service will be entitled to immediately repossess the fish, wildlife,
or plants.
(9) At all reasonable times, upon prior notice, the recipient must
provide authorized Service officers access to the location where the
loan is kept for the purposes of inspecting the loan, and all
associated records pertaining to the loan.
(10) Any loan is subject to the conditions specified in the
transfer document, including, without limitation, any time periods, and
any violation of these specific conditions entitles the Service to
immediately repossess the fish, wildlife, or plants.
(11) Any loan is in effect for an indefinite period of time unless
the transfer document specifies a date for returning the loan to the
Service.
(12) Any loan remains the property of the United States, and the
Service may demand the return of the loan at any time, and the
recipient cannot prevent that return.
Sec. 12.69 When may the Service sell forfeited or abandoned property?
(a) The Service may sell, or offer for sale, forfeited or abandoned
fish, wildlife, or plants, except any species, which at the time of
sale or offer for sale, is:
(1) Listed in part 10 of this subchapter as a migratory bird
protected by the Migratory Bird Treaty Act (16 U.S.C. 704, 706-707, 712
et seq.);
(2) Protected under the Bald and Golden Eagle Protection Act (16
U.S.C. 668 et seq.);
(3) Listed as ``Appendix I'' or ``Appendix II with an annotation''
under the Convention on International Trade in Endangered Species (See
Sec. 23.91 of this chapter.);
(4) Listed in part 17 of this chapter as ``endangered'' or
``threatened'' under the Endangered Species Act (16 U.S.C. 1531 et
seq.);
(5) Protected under the Marine Mammal Protection Act of 1972 (16
U.S.C. 1375-1377, 1382);
(6) Regulated as an injurious species under our injurious species
regulations in part 16 of this chapter;
(7) The African elephant (Loxodonta africana or Loxodonta
cyclotis); or
(8) Any fish, wildlife, or plant that is prohibited for export by
the country of origin of the species.
(b) If the Service chooses to dispose of fish, wildlife, or plants
by sale, we must do so under current Federal property management
regulations or Customs laws and regulations, except that the Service
may sell any fish, wildlife, or plants immediately to the highest
bidder above the set minimum bid, if the Service determines that the
fish, wildlife, or plants are likely to perish, deteriorate, decay,
waste, or greatly decrease in value by keeping, or that the expense of
keeping the fish, wildlife, or plants is disproportionate to their
value.
(c) The Service may transport fish, wildlife, or plants that may
not be possessed lawfully by purchasers under the laws of the State
where the fish, wildlife, or plants are held to a State where
possession of the fish, wildlife, or plants is lawful and the fish,
wildlife, or plants may be sold.
(d) Fish, wildlife, or plants purchased at sale are subject to the
prohibitions, restrictions, conditions, or requirements that apply to a
particular species of fish, wildlife or plant imposed by the laws or
regulations of the United States or any State, including any applicable
conservation, health, quarantine, agricultural, or Customs laws or
regulations.
Sec. 12.70 When may the Service destroy forfeited or abandoned
property?
(a) The Service may destroy fish, wildlife, or plants under the
provisions set forth in Sec. Sec. 12.65 and 12.66.
(b) The Service official who performs the destruction of fish,
wildlife, or plants and a witness must certify the completion of the
destruction, the method of the destruction, the date of the
destruction, and the type and quantity of fish, wildlife, or plants
destroyed.
(c) The Service will comply with all Federal health, safety, and
environmental protection laws applicable to the method of the
destruction of the fish, wildlife, or plants and to the disposal of any
residue or wastes resulting from the method of the destruction of the
fish, wildlife, or plants.
Subpart F--Recovery of Storage Costs and Return of Property
Sec. 12.81 When can the Service assess fees for costs incurred by the
transfer, boarding, handling, or storage of property seized or
forfeited?
(a) If any fish, wildlife, plant, or item of evidence is seized or
forfeited under the ESA (16 U.S.C. 1531 et seq.), you or any person
whose act or omission was the basis for the seizure will be charged a
reasonable fee for expenses to the United States connected with the
transfer, boarding, handling, or storage of the seized or forfeited
property. If any fish, wildlife, or plant is seized in connection with
a violation of the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et
seq.), you or any person convicted or assessed a civil penalty for this
violation will be assessed a reasonable fee for expenses of the United
States connected with the storage, care, and maintenance of the
property.
(1) Within a reasonable time after seizure or forfeiture, the
Service may send by registered mail, certified mail, or private
courier, return receipt requested, a bill for this fee. The bill will
contain an itemized statement of the applicable costs, together with
instructions on the time and manner of payment.
(2) You must make payment under terms of the bill. If you fail to
pay, you may be subject to collection proceedings under the Federal
Claim Collection Act, 31 U.S.C. 3711 et seq., as well as the Federal
Debt Collection Act, 31 U.S.C. 3701 et seq., and the possible refusal
of clearance of future shipments, and disqualification from receiving
or exercising the privileges of any Service permit.
(b) If you object to the costs described in the bill, you may,
within 30 days of the date on which you received the bill, file written
objections with the Special Agent in Charge (SAC) for the U.S. Fish and
Wildlife Service Office of Law Enforcement in the region in which the
seizure occurred. Upon receipt of the written objections, the SAC will
promptly review them and, within 30 days, deliver in writing a final
decision. In all cases, the SAC's decision will constitute final
administrative action on the matter.
Dated: June 2, 2016.
Karen Hyun,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-14364 Filed 6-16-16; 8:45 am]
BILLING CODE 4333-15-P