[Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)]
[Rules and Regulations]
[Pages 47808-47826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15373]
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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-BG73
Seizure and Forfeiture Procedures
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service, FWS, or we) is
revising 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 sets 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 reflects the procedures
required by the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) and
those of U.S. Customs and Border Protection. This rule makes these
regulations easier to understand using simpler language. This revision
more clearly explains the procedures used in administrative forfeiture
proceedings, makes the process more efficient, and makes the Service's
seizure and forfeiture procedures more uniform with those of other
agencies subject to CAFRA.
DATES: This rule is effective August 24, 2023.
ADDRESSES: Public comments and materials received on the proposed rule
are available on the internet at https://www.regulations.gov in Docket
No. FWS-HQ-LE-2016-0067.
FOR FURTHER INFORMATION CONTACT: Edward Grace, Assistant Director, U.S.
Fish and Wildlife Service, Office of Law Enforcement, (703) 358-1949,
fax (703) 358-1947. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point
of contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
We are revising 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. These regulations establish the procedures that we
use for the seizure, bonded release, appraisement, administrative
proceeding, petition for remission, and disposal of items subject to
forfeiture and reflect the procedures required by CAFRA. This rule
makes these regulations easier to understand using simpler language.
This revision also more clearly explains the procedures used in
administrative forfeiture proceedings, makes the process more
efficient, and makes the Service's seizure and forfeiture procedures
more uniform with those of other agencies subject to CAFRA.
The Service is not the only agency with seizure and administrative
forfeiture authority. In general, all property subject to forfeiture
under Federal law may be forfeited administratively by the enforcing
Federal agency if the statutory authority for the forfeiture
incorporates the Customs laws of 19 U.S.C. 1602 et seq., and if 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 Congress enacted CAFRA in 2000, the Service has implemented
that Act's requirements. For example, in written guidance that we
issued in 2014 on providing notice of seizures and proposed
forfeitures, we outlined administrative and judicial options to contest
seizures and proposed forfeitures and advised which statutory deadlines
apply (OLE Public Bulletin, Revision of Notice of Seizure and Proposed
Forfeiture Letter, September 23, 2014). 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.
We published a proposed rule on June 17, 2016, at 81 FR 39848. We
held a 60-day public comment period on the proposed rule. After the
comment period closed, we considered the comments, and we address them
below. Today, we are finalizing the rule largely as proposed, with some
minor 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.;
the National Wildlife Refuge System Administration Act, 16
U.S.C. 668dd et seq.;
the Migratory Bird Treaty Act, 16 U.S.C. 703 et seq.
(MBTA);
the Migratory Bird Hunting and Conservation Stamp Act, 16
U.S.C. 718 et seq.;
[[Page 47809]]
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. 1361
et seq.;
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.
470aa et seq.;
the Paleontological Resources Preservation Act, 16 U.S.C.
470aaa et seq.; and
the Native American Graves Protection and Repatriation
Act, 25 U.S.C. 3001 et seq.
We note that the Service implements other statutes that may be
enforced through the above-listed statutes. For example, importation in
violation of the Wild Bird Conservation Act, 16 U.S.C. 4901 et seq., is
also a violation of the Lacey Act Amendments of 1981. See 16 U.S.C.
4912(c).
Purpose of Rulemaking
CAFRA (Pub. L. 106-185; 18 U.S.C. 983) superimposes specific
procedural requirements over the procedures in various forfeiture laws
in existence prior to CAFRA's enactment. We are revising 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.
Summary of Comments and Responses
We reviewed and considered all substantive information we received
during the comment period on the proposed regulation revisions. We
received five comments, two of which were identical. Below we summarize
the substantive information in those public comments and our responses
that explain why we do or do not incorporate the changes suggested by
each commenter into this final rule. Comments supporting various
provisions of the rulemaking are not included below. As comments were
often similar or covered multiple topics, we grouped comments and
responses by topic areas.
Compliance With Federal Law
(1) Comment: Commenter stated that forfeiture has takings
implication under Executive Order 12630 (Governmental Actions and
Interference with Constitutionally Protected Property Rights; 53 FR
8859, March 18, 1988) and that exemptions alluded to by the Service
contradict the spirit of E.O. 12630.
FWS Response: Executive Order 12630 specifically exempts seizure
and forfeiture of property for violations of law. See E.O. 12630,
sections 2(a)(3) (excluding from the takings implications law
enforcement actions involving seizure, for violations of law, of
property for forfeiture or as evidence in criminal proceedings) and
2(c) (excluding actions, including proposed Federal regulations and
applications of Federal regulations to specific property, that are law
enforcement actions involving seizure, for violations of law, of
property for forfeiture or as evidence in criminal proceedings).
(2) Comment: Commenter stated that civil forfeiture is against
constitutional rights to due process.
FWS Response: The Federal Government may forfeit people's property
yet avoid violating their due process rights. There are two types of
due process: procedural due process and substantive due process.
Procedural due process concerns property owners' right to be notified
of a seizure and a violation, and their right to be heard, i.e., to
make their case. See United States v. James Daniel Good Real Property,
510 U.S. 43, 48 (1993). Substantive due process refers to the
requirement that laws and regulations must be related to a legitimate
government interest (as crime prevention) and may not contain
provisions that result in the unfair or arbitrary treatment of an
individual. Merriam-Webster.com Legal Dictionary, https://www.merriam-webster.com. Accessed March 7, 2023.
The final rule preserves property owners' procedural due process.
If we seize property, 50 CFR 12.11 requires us to send property owners
a notice of seizure and proposed forfeiture. Also, Sec. 12.12 requires
us to post public notice of seizure and proposed forfeiture. We wrote
these sections with the intent to give property owners reasonable
notice, as the law requires. Once a property owner receives a notice,
they have a meaningful opportunity to be heard either by filing a
petition for remission or by filing a claim, which removes the matter
to court and converts it to judicial forfeiture. By incorporating
notice and hearing into the rule, we have met the procedural due
process requirements.
In this context, substantive due process generally concerns
property owners' right to ownership in the property itself. If we seize
property, we have made the preliminary determination that it is
contraband. The United States Supreme Court has held that there are no
fundamental property rights in contraband. See One 1958 Plymouth Sedan
v. Pennsylvania, 380 U.S. 693 (1965). If we ultimately determine that
property is contraband and forfeit the property, we do not deprive the
property owner of their substantive due process right in the property.
(3) Comment: Commenter stated that no exemptions to CAFRA should be
made.
FWS Response: The proposed part 12 regulations do not provide an
exemption to CAFRA. They do, however, reflect certain exceptions that
are written into and are part of CAFRA itself. Three of these CAFRA-
mandated exceptions concern ``contraband'': first, the release of
property not properly noticed under 18 U.S.C. 983(a)(1)(F); second, the
release of certain types of seized property under section 983(f); and
third, the innocent owner defense in section 983(d). Two of these
CAFRA-mandated exceptions concern ``other property that is illegal to
possess'': the release of certain types of seized property provisions
contained in 18 U.S.C. 983(a)(1)(F) and the innocent owner defense of
18 U.S.C. 983(d). The part 12 regulations simply contain definitions of
the terms ``contraband'' and ``other property that is illegal to
possess'' that are used in these CAFRA-mandated exceptions.
(4) Comment: Commenter stated that FWS did not conduct a scoping
notice before the publication of the proposed rule.
FWS Response: The Service conducted a review for the proposed rule
in accordance with the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.; NEPA), the Council on Environmental
Quality (CEQ) NEPA regulations (40 CFR parts 1500-1508) and the
Department of the Interior NEPA regulations (43 CFR part 46), and 516
Departmental Manual Chapters 1-4 and 8. Under 40 CFR 1501.9, scoping is
required only for an environmental impact statement (EIS). The rule
does not amount to a major Federal action significantly affecting the
quality of the human environment; therefore, neither an EIS nor scoping
is required. This rule
[[Page 47810]]
is categorically excluded from further NEPA requirements under 43 CFR
46.210(i). This categorical exclusion addresses 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 and will later be subject to the NEPA process,
either collectively or case-by-case.
(5) Comment: Commenter stated that the Service ``fails to include a
reference to animal welfare laws'' in proposed Sec. 12.70(c) and Sec.
12.65 (which discuss disposal and destruction of forfeited and
abandoned property).
FWS Response: We acknowledge that the Service must comply with all
laws applicable to the destruction and disposal of fish, wildlife, and
plants and any residue or wastes. Therefore, we are removing the
modifiers ``health, safety, and environmental protection'' and have
rewritten Sec. 12.70(c) as follows: The Service will comply with all
applicable laws regarding the destruction of the fish, wildlife, or
plants and regarding the disposal of any residue or wastes resulting
from the method of the destruction of the fish, wildlife, or plants.
Definitions
(6) Comment: Commenter stated that the definition of ``contraband''
is too broad and should not include noncommercial goods that become
unlawful to import due to harmless errors in the import process itself.
FWS Response: The definition of ``contraband'' in the proposed rule
reflects the ordinary, common meaning of that term and judicial
decisions that have construed the word ``contraband'' as used in CAFRA.
Neither this common usage nor case law distinguishes between commercial
and noncommercial goods. Several Federal wildlife protection laws apply
not only to commercial but also to noncommercial import/export,
transportation, use, and possession of wildlife and expressly provide
for the seizure and forfeiture of wildlife involved in violations
regardless of whether they occurred in connection with commercial
activities. See, e.g., 16 U.S.C. 1538(c) (unlawful for any person to
possess any specimens traded contrary to the provisions of the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES)) and section 1540(e) (``all'' fish or wildlife or
plants involved in violations of the Endangered Species Act and its
implementing regulations are subject to forfeiture to the United
States); 50 CFR part 23 (Federal regulations implementing the trade
protections for listed species provided through the CITES international
treaty). Violations involving noncommercial property can and do make
that property into contraband because of the manner or circumstances by
which the noncommercial property is used.
Indeed, this was the situation in Conservation Force v. Salazar,
677 F. Supp. 2d 1203, 1207 (N.D. Cal. 2009), aff'd, 646 F.3d 1240 (9th
Cir. 2011), where the District Court found that hunting trophies
imported for noncommercial purposes had become contraband because they
lacked valid CITES permits and so ``the manner in which plaintiffs
brought their trophies into the United States transformed the trophies
into contraband.'' As for the concern expressed by the commenter about
``harmless errors,'' this complaint was raised in the context of the
importation of hunting trophies. In those cases, the violations giving
rise to seizure typically are due to problems with required CITES
documents. Maintenance of the integrity of the CITES permitting system
is essential to the effectiveness of the entire system of wildlife
trade restrictions established by CITES. Unless the system of permits
and certificates used by CITES to enforce its trade restrictions is
enforced uniformly, protected wildlife may be overexploited through
international trade. See 50 CFR 23.1 and 23.4.
``Documentary violations are particularly troubling and significant
in the CITES framework, where signatory nations attempt to monitor and
conserve dwindling wildlife populations in an era of increased
international trade.'' Underwater Exotics, Ltd. v. Secretary of the
Interior, 1994 U.S. Dist. LEXIS 2262 (D.D.C. 1994). CITES parties are
directed by the treaty not to allow trade in CITES specimens except in
accordance with CITES (CITES article II(4)), to enforce CITES through
measures including ``confiscation'' of illegally traded specimens
(CITES article VIII(1)), and as noted above it is unlawful for any
person to possess any specimens traded contrary to the provisions of
CITES (16 U.S.C. 1538(c); 50 CFR 23.13). The CITES parties have agreed
that when specimens are exported or reexported in violation of CITES,
the seizure and confiscation of such specimens are generally preferable
to the definitive refusal of the import of the specimen. CITES
Resolution Conf. 17.8 (Rev. CoP19).
(7) Comment: Commenter stated that the definitions of
``contraband'' and ``other property that is illegal to possess'' are
overbroad, because they strip from ivory owners the CAFRA innocent
owner defense that otherwise would protect them from the documentation
requirements set under the African elephant section 4(d) rule.
FWS Response: We do not agree that the innocent owner defense would
apply to items determined to be contraband. Further, the requirements
of the African elephant 4(d) rule are not at issue in this rulemaking.
When enacting the innocent owner defense in CAFRA (at 18 U.S.C.
983(d)), Congress specifically chose to exclude ``contraband'' as well
as ``other property that it is illegal to possess.'' The proposed 50
CFR part 12 regulations simply apply this statutory decision made by
Congress, implementing the exclusions for ``contraband'' and ``other
property that it is illegal to possess'' set out in 18 U.S.C.
983(d)(4), and providing definitions reflecting the ordinary, common
meaning of these terms and judicial decisions that have construed their
use in CAFRA.
(8) Comment: Commenter takes the position that sport-hunted
trophies imported with paperwork errors should not be considered
contraband, and the innocent owner defense should apply. Commenter
stated that the conclusion on page 39850 of the proposed rule (in the
explanation of the definition of ``contraband'') that the innocent
owner defense does not apply is incorrect. Commenter describes United
States v. 144,774 Lbs. of Blue King Crab, 410 F. 3d 1131, 1134 (9th
Cir. 2005), cited on page 39850, as limited only to the second of the
two phrases ``contraband or other property illegal to possess'' used in
CAFRA to describe instances in which the innocent owner defense is
unavailable due to the commenter's conclusion that the crab at issue in
that case was illegally harvested and taken in violation of Russian law
and thus an intentional violation of the Lacey Act. Second, the
commenter stated that the defense's unavailability should be limited to
commercial cases, as in 144,774 Lbs. of Blue King Crab. Commenter also
stated that United States v. 1866.75 Bd. Ft. & 11 Doors & Casings, 587
F. Supp. 2d. 740, 750 (E.D. Va. 2008), does not apply because the
shipment in that case was imported without any CITES paperwork.
Commenter points to a definition of ``contraband'' found on page 39850
of the proposed rule (81 FR 39848, June 17, 2016): Courts have
concluded that contraband includes property that, if not inherently
illegal in nature, becomes illegal through the manner or circumstances
by which it is used, possessed, or acquired. Commenter also
[[Page 47811]]
states that hunting trophies are almost never illegally used,
possessed, or acquired, but instead have errors in their permitting
paperwork.
FWS Response: We cited United States v. 144,774 Lbs. of Blue King
Crab, 410 F. 3d 1131 (9th Cir. 2005), to support the statement directly
above the citation on page 39850 of the proposed rule (81 FR 39848,
June 17, 2016) regarding the effect of Congress using two different
phrases, separated by the word ``or'' to describe the circumstances
under which the innocent owner defense is unavailable. As we stated on
page 39850 and as the court did in 144,774 Lbs. of Blue King Crab, 410
F.3d at 1135, each of these phrases is separate and distinct from the
other, and they mean two separate things. 144,774 Lbs. of Blue King
Crab did not define the term ``contraband'' because the Ninth Circuit
was able to conclude that the property seized was covered by the
``other property illegal to possess'' portion of the two phrases.
Consistent with this express ruling of the Ninth Circuit (410 F.3d at
1135-36), the proposed regulations only cited (at page 38951) to
144,774 Lbs. of Blue King Crab as supporting the proposed definition of
``other property illegal to possess'' and not of the term
``contraband.''
Although the commenter argues that 144,774 Lbs. of Blue King Crab
should be read as being further limited to commercial cases, the
holding of the court did not depend on the shipment at issue being
commercial or illegally harvested as the comment suggests. Similarly,
we cited 1866.75 Bd. Ft. & 11 Doors & Casings, 587 F. Supp. 2d. 740,
750 (E.D. Va. 2008), as support for the statement regarding the effect
of Congress using two different phrases. The court in 1866.75 Bd. Ft.
likewise determined that the wood in that case was ``other property
illegal to possess,'' not contraband. The commenter's position that
hunting trophies are almost never illegally used, possessed, or
acquired, but instead may have errors in their permitting paperwork,
misinterprets how we are defining contraband. Property imported without
necessary, complete, error-free permits is illegally possessed. We
addressed this issue in detail in our response to Comment 6.
(9) Comment: Commenter expressed concern with a statement in the
proposed rule that the described approach to the innocent owner defense
is consistent with pre-CAFRA case law and authority because CAFRA was
meant to reform the errors and overreaching by government agencies.
FWS Response: Prior to the enactment of CAFRA, some but not all
civil forfeiture statutes contained an innocent owner defense. To
``provide such a defense for all federal civil forfeitures, to make
that defense uniform, and to ensure that it offers protection in all
appropriate cases,'' CAFRA requires an innocent owner defense now be
recognized in all civil forfeitures it covers. CAFRA, H.R. 106-192,
106th Cong., 1st Sess. at 15 (1999). The pre-CAFRA case law we
reference on page 39850 continues to be relevant because it shows the
rationale used over time by various Federal courts for rejecting a
good-faith defense in the majority of pre-2000 wildlife forfeiture
cases, including their recognition of the importance of strict
permitting requirements to restrict trade in protected species and of
the corresponding need to reject good-faith defenses if there is a
violation of wildlife protection laws.
(10) Comment: Commenter stated that directed reexport should not be
used as punishment for noncommercial trade when it is too late to
correct the error.
FWS Response: Directed reexport is a remedial action, not a
punishment. Refusal of clearance (resulting in return to the exporting
or reexporting country) instead of confiscation generally is disfavored
by the CITES Parties. For example, the CITES Parties have recommended
in CITES Resolution Conf. 17.8 (Rev. CoP19) that importing countries
``consider that the seizure and confiscation'' of the specimens
exported or reexported in violation of CITES to be ``generally
preferable to the definitive refusal of the import'' of such specimens.
Reexport creates a risk that specimens may reenter into illegal trade.
Consequently, the CITES Parties also have recommended that, when an
importing country refuses clearance of specimens, the exporting or
reexporting country should take measures necessary to ensure that the
specimens not reenter into illegal trade, including monitoring their
return to the exporting or reexporting country and providing for their
confiscation. CITES Resolution Conf. 17.8 (Rev. CoP19). Under some
circumstances, it may be appropriate for the Service to allow reexport
of wildlife imported in violation of Federal wildlife laws (and refused
clearance by the Service) instead of pursuing forfeiture. We note that
this course of action would not be allowed where the trade involved
commercial activity with an Appendix I species. We are guided by the
limited noncommercial purposes that the CITES Parties have provided for
disposal of Appendix I specimens in CITES Resolution Conf. 17.8 (Rev.
CoP19) and as provided in 50 CFR part 23.
(11) Comment: Commenter stated that value should not be determined
by FWS, and that market value or the cost of acquisition should govern.
FWS Response: A market value may not be available in all instances,
particularly those involving protected species that may not be legally
sold in the United States. Likewise, the cost of acquisition may not
reflect the actual value of the item (particularly for illegally
acquired items). The definition of value in the proposed regulation
takes these possibilities into account, providing that the Service will
use the reasonable declared value or the estimated market value if
there is a legal market for the property. For property that may not be
sold in the United States, the Service may use other reasonable means.
This approach to valuation is essentially the same as has been taken
since 1982 in existing 50 CFR 12.12.
Process
(12) Comment: Commenter stated that forfeiture should not be
permitted unless and until criminal adjudication of guilt by court, and
that property should be returned if no criminal charges are filed.
FWS Response: Congress has specifically authorized the use of
administrative and civil judicial forfeiture procedures to forfeit
property seized for violation of Federal law--not only by the Service
but also by a variety of other Federal enforcing agencies. In general,
all property subject to forfeiture under Federal law may be forfeited
administratively by the enforcing Federal agency except for real
property, personal property having a value of more than $500,000
(except as noted in 19 U.S.C. 1607(a)), and property forfeitable under
a statute that does not incorporate the Customs laws of 19 U.S.C. 1602
et seq. Seized property also may be forfeited to the United States
judicially, in civil and criminal judicial proceedings brought by the
U.S. Department of Justice (DOJ). The statutes identified in Sec. 12.2
grant the Service the 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.
Many of those statutes provide an administrative forfeiture remedy, and
the Service is complying by following the requirements set forth in
these statutes.
(13) Comment: Commenter stated that the proposed regulation's
handling of notice relieves the Service of any duty to provide actual
notice to accused violators of seizure by defining a
[[Page 47812]]
``Declaration of Forfeiture'' to include a ``description of efforts
made to deliver notice'' instead of proof of actual notice.
FWS Response: The commenter references proposed Sec. 12.13(b) for
those circumstances when service of notice has been attempted, but it
is effectively impossible. In that case, the declaration of forfeiture
will describe the efforts made to deliver the notice of seizure and
proposed forfeiture. However, the inclusion of that provision in Sec.
12.13(b) does not mean that the Service has relieved itself of any duty
to provide actual notice.
The proposed regulations at Sec. 12.11(a) provide that the Service
or the Solicitor will first send written notice of the seizure to each
interested party 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 the
permit or license application, unless the Service or the Solicitor has
actual notice of a different address. In addition, all seizures will be
published either for at least 3 successive weeks in a generally
circulated newspaper in the judicial district where the property was
seized or on the official government internet site for at least 30
consecutive days (Sec. 12.12(a)). As a last resort, a property owner
who does not receive a personal notice for any reason will have 30 days
from the last posting of the public notice to file a petition for
remission (Sec. 12.33(b)).
Finally, the notice provisions in part 12, subpart B, comply with
the Supreme Court's ruling in Jones v. Flowers, 547 U.S. 220 (2006).
Jones says that the government must take additional reasonable steps to
notify a property owner if a first attempt at notice fails, if it is
practicable to take additional steps. Id. at 225.
(14) Comment: Commenter questioned why the filing dates for the
claimant's filing and for the government's filing are different and why
the government gets the benefit of the ``mailbox rule,'' but the
claimant does not.
FWS Response: The ``mailbox'' rule referred to by the commenter is
a pre-CAFRA notion. The provisions for claimant's and the Government's
filings are different because of the notice and filing requirements set
by CAFRA. For example, 18 U.S.C. 983(a)(2)(B) provides that one of the
dates used to set the deadline for a claimant to file a claim should
run from the date the Government issues a notice of proposed
forfeiture, while 18 U.S.C. 983(a)(2)(A) and 983(a)(2)(B) require that
a claimant actually file a claim ``with the appropriate official'' by a
specified date. Consistent with these provisions, Sec. 12.4(a) of the
regulations specifies filings from claimants must be received by the
Service (and not mailed on or prior to) by specified dates. Several
courts have found that claims are considered to be filed in a civil
forfeiture action when received by the agency and not when mailed by
the claimant. See, e.g., Sandoval v. United States, 2001 WL 300729 at
*4 (S.D.N.Y. 2001).
(15) Comment: Commenter stated that the contents of the personal
written notice sent to interested parties following seizure should
contain a narrative statement of facts explaining the reason for the
seizure. Commenter further stated that a reference to what laws and/or
regulations were violated is not enough for a petitioner to respond to
a notice of seizure.
FWS Response: Due process requires only that notice of a seizure
and impending administrative forfeiture be ``reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.'' Lobzun v. United States, 422 F.3d 503, 507 (7th Cir.
2005) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
314). The Service's notice of seizure and proposed forfeiture provides
several pieces of information to the property owner. That information
includes the port at which the property was seized, a description of
the property and its value, citations to the regulations and laws
violated, and the date of seizure. The information in the notice that
the Service provides is sufficient for property owners to contest a
seizure. Moreover, property owners should have additional information
relevant to their shipments. A property owner may always contact the
Service to ask for more information.
Petition for Remission
(16) Comment: Commenter stated it is unconstitutional to require a
choice between filing a petition for remission or filing a claim.
FWS Response: While the commenter did not provide specific
authority for the claim of unconstitutionality, we note that the
comment was focused on due process concerns, which we addressed in
comments 2 and 15 above. Under CAFRA, an interested party may choose to
allow the forfeiture to proceed administratively or may compel the
Government to initiate a judicial forfeiture action by filing a claim
for the property. Moreover, several courts have considered due process
claims challenging CAFRA's provision of alternative and not sequential
remedies for administrative forfeiture and have upheld CAFRA's
provisions, as described below. Malladi Drugs & Pharmaceuticals, Ltd.
v. Tandy, 552 F.3d 885, 890 (D.C. Cir. 2009); Conservation Force v.
Salazar, 677 F. Supp. 2d 1203, 1208 (N.D. Cal. 2009), aff'd, 646 F.3d
1240 (9th Cir. 2011).
Finding that the administrative remedy for forfeiture (i.e., sought
through a petition for remission) is distinct from the judicial remedy
initiated through a claim, the Ninth Circuit concluded in Conservation
Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011), that applicable
forfeiture statutes and regulations ``provide alternative, not
sequential, administrative and legal remedies for an administrative
forfeiture.'' The Ninth Circuit further concluded that, if a party
pursues the administrative path, files 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), and which is available only if the notice of
forfeiture is not received. Put another way, if 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 has ``waived the
opportunity for judicial forfeiture proceedings.'' Id. The Ninth
Circuit has followed its decision in Conservation Force in at least
three subsequent opinions, United States v. Barnes, 647 Fed. Appx. 820,
(9th Cir. 2016), Pert v. United States, 487 Fed. Appx. 396 (9th Cir.
2012), and Phillips v. United States, 464 Fed. Appx. 700 (9th Cir.
2011). Other courts have reached the same conclusion. See, e.g., United
States v. Paulino, 2018 U.S. Dist. LEXIS 176893 (S.D.N.Y. Oct. 9,
2018); Martin v. Leonhart, 717 F. Supp. 2d 92 (D.D.C. 2010); Patterson
v. Haaland, 2022 U.S. Dist. LEXIS 176407 (D.D.C. Sept. 28, 2022).
(17) Comment: Commenter stated that the notice of seizure and
proposed forfeiture does not provide enough information to defend
against, and claims are cost-prohibitive.
FWS Response: As discussed above, the contents of the notice of
seizure and proposed forfeiture comply with the requirements of due
process. The option of pursuing a claim is specifically provided for by
statute, in CAFRA, as the judicial means of challenging a proposed
forfeiture.
[[Page 47813]]
(18) Comment: Solicitors are not independent reviewers and often
take the position that remission is to be granted too sparingly, even
in cases of harmless error.
FWS Response: The Office of the Solicitor is a stand-alone office
within the Department of the Interior and is separate and independent
from the seizing bureau, the Service. Moreover, there is no doctrine of
``harmless error'' in forfeiture law. For cases involving illegal
import of CITES species, CITES calls for strict enforcement, among
other things, disfavoring the issuance of retrospective CITES permits
(CITES Resolution Conf. 12.3 (Rev. CoP19)) and considering seizure and
confiscation of specimens exported or reexported in violation of CITES
to be generally preferable to refusal and reexport (CITES Resolution
Conf. 17.8 (Rev. CoP19)). Decisions on petitions for remission made by
the Solicitor's Office are equitable decisions based on the presumption
that the underlying seizure was valid, and remission is discretionary.
However, the Solicitor's Office will consider the factors listed in the
rule in Sec. 12.34 when making decisions, including whether there was
an honest and good-faith intent to comply with the law and whether
there are mitigating circumstances justifying remission.
(19) Comment: Commenter stated that the change to the practice of
allowing the administrative process (petition for remission) and the
judicial process (claim) for the return of seized property to proceed
sequentially is not legally enforceable because no notice was published
in the Federal Register.
FWS Response: Prior to October 7, 2014, the notice of seizure and
proposed forfeiture used by the Service in administrative forfeiture
proceedings advised interest holders that any petition for remission of
forfeiture that interest holders submitted constituted a voluntary
agreement that all forfeiture time periods would be suspended pending
the outcome of the petition for remission, and in the event that a
petition for remission was denied, the petitioner would be given the
balance of time (if any) remaining to file a claim if the petitioner so
chose. This opportunity to, in effect, suspend the period for filing a
claim was provided by the Service as a matter of administrative
discretion and not because of statutory mandate.
As discussed above in response to Comment 16, CAFRA itself provides
alternative and not sequential remedies for administrative forfeiture.
Effective October 7, 2014, the Service changed its notice letter to
remove the provisions for suspending the period for filing a claim.
This action was taken to address court decisions interpreting CAFRA,
including, for example, the Ninth Circuit's decision in Conservation
Force, 646 F.3d 1240 (9th Cir. 2011). The revision of the notice letter
is not a binding rule, and consequently was not published for public
notice and comment. Nevertheless, the Service did provide a written
notice to the wildlife import/export community regarding this change to
the notice letter. The notice was dated September 23, 2014, and was
distributed to a list of interested parties as well as published on the
FWS website on the Office of Law Enforcement's web page for Public
Bulletins and Alerts (and currently available at https://www.fws.gov/library/collections/ole-public-bulletins).
(20) Comment: Commenter stated that the holding in Conservation
Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011), is incorrect, and that
the citation of Malladi Drugs & Pharmaceuticals, Ltd. v. Tandy, 552 F.
3d 885 (D.C. Cir. 2009), for the premise that the administrative remedy
and the judicial remedy for the return of seized property are not
sequential is distinguishable.
FWS Response: The Service disagrees, for the reasons discussed
above.
(21) Comment: Commenter wrote that the statement in the proposed
rule that ``during the remission consideration, a valid seizure is
presumed'' is confusing and requested further clarification.
FWS Response: As stated further down on page 39853 (81 FR 39848,
June 17, 2016), the statement that ``during a remission consideration,
a valid seizure is presumed,'' means that forfeitability is presumed
and the petitioner seeks relief from forfeiture on fairness grounds. In
other words, ``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.''
Orallo v. United States, 887 F. Supp. 1367, 1370 (D. Haw. 1995). In
contrast, the proper route for someone who wants to contest the
legitimacy of the underlying forfeiture would be to file a judicial
claim. See id. Note that we changed Sec. 12.34(c) to reflect that the
Solicitor will review the basis for the seizure, but this is a separate
step from the remission consideration. See Summary of Changes from the
Proposed Rule, below.
(22) Comment: Commenter stated that the discussion of petitions for
remission being discretionary and retrospective CITES permits being
disfavored violates CAFRA's proportionality requirement.
FWS Response: Remission or mitigation of penalties, fines, and
forfeitures is discretionary. See 19 U.S.C. 1618. The text of CITES
requires the grant of CITES documents prior to international trade and
the presentation of valid CITES documents at the time of international
trade in CITES specimens (CITES articles III-VII). The resolutions
adopted by the Conference of the Parties to CITES have clearly stated
that retrospective permits should be issued and/or accepted only in
limited circumstances. See CITES Resolution Conf. 12.3 (Rev. CoP19).
The proportionality section of CAFRA, 18 U.S.C. 983(g), allows a
claimant to prove that a forfeiture is ``grossly disproportional by a
preponderance of the evidence at a hearing conducted by the court
without a jury.'' If the claimant meets the burden of proof and the
court finds that the forfeiture is grossly disproportional to the
offense, then the court shall reduce or eliminate the forfeiture ``to
avoid a violation of the Excessive Fines Clause of the Eighth Amendment
of the Constitution.'' Id. Thus, there are checks and balances in place
to avoid a constitutionally excessive forfeiture. However, the fact
that a petition for remission of forfeiture is denied or a
retrospective CITES permit is not accepted does not equate to an
automatic violation of CAFRA's proportionality requirement.
(23) Comment: Commenter inquired how the statement on page 39854
that 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 works with
Director's Order 212.
FWS Response: Director's Order 212 addresses using available legal
and regulatory authority to deny wildlife violators (i.e., those with
prior violations of Federal wildlife protection laws) from obtaining
Federal permits and licenses. Director's Order 212 says that the
Director can use any information available that is relevant to the
issue when considering a permit application under 50 CFR 13.21(d).
Under that provision, the Service has discretion to consider past
forfeitures that are relevant to the permit sought.
(24) Comment: Commenter stated that the requirement that a
supplemental petition for remission be based on new evidence or
evidence not previously considered would be more palatable if the
original notice contained an adequate factual narrative.
FWS Response: As discussed above, the notice in current use by the
Service as well as that required by the proposed
[[Page 47814]]
regulations meets the requirements of due process.
Claims
(25) Comment: Commenter stated that it is not possible to include
any documentary evidence relied upon when a claim is filed because the
Service does not provide factual narratives when issuing notices of
seizure and proposed forfeiture.
FWS Response: As discussed above, the Service's Notice of Seizure
and Proposed Forfeiture meets the requirements of due process and
complies with CAFRA. The Notice puts potential petitioners/claimants on
notice as to the date and time of seizure, the laws relied upon as a
basis for the seizure, and the options available to the petitioner/
claimant.
(26) Comment: Commenter said there is an issue with the statement
that 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 because it suggests
that the only way to challenge the legitimacy of a forfeiture is to go
to court, which is a burden on hunters/owners.
FWS Response: The judicial route is not the only means of pursuing
release of seized property. Either the administrative process (by
filing a petition for remission with the Solicitor's Office) or the
judicial process (by filing a claim with respect to the forfeiture,
which causes the proposed forfeiture to be referred to the U.S.
Attorney's Office for filing as a judicial forfeiture action) may be
used to pursue release. However, the commenter is correct in that these
two processes do provide different remedies: ``A petition for remission
`asks the agency for discretionary return of the property,' while a
claim `initiate[s] the judicial process to decide whether the property
should be forfeited.' '' Conservation Force v. Salazar, 646 F.3d 1240,
1242 (9th Cir. 2011) (quoting Malladi Drugs & Pharms., Ltd. v. Tandy,
552 F.3d 885, 889 (D.C. Cir. 2009)). Remission is an equitable remedy
and is discretionary. See 19 U.S.C. 1618. Importantly, the Solicitor
will follow the standards for remission in the rule at Sec. 12.34 and
consider the listed mitigating factors when deciding whether to return
seized items. Also, as noted above, we made a change to Sec. 12.34(c)
noting that the Solicitor will review the basis for the seizure. We
also explain this further below.
(27) Comment: Commenter stated that it is unlawful to require a
claimant to file a civil judicial action requesting return of property
pursuant to Federal Rules of Criminal Procedure (FRCP) Rule 41(g) when
a judicial forfeiture action is not pursued within the required time
period because CAFRA requires return of the property if a claim is not
filed within 90 days. Commenter noted that there is no contraband
exception to the 90-day requirement of subsection (a) of section 983 of
CAFRA.
FWS Response: These two comments addressed Sec. 12.38(b) and (c)
of the proposed regulations. As we acknowledge below in Summary of
Changes from the Proposed Rule, we removed those two paragraphs of
Sec. 12.38 for clarity and in response to the comments received.
Final Rule
This rule changes our procedures for seizure and forfeiture under
the laws we enforce, listed above. This rule conforms our procedures to
those in CAFRA, and it will clarify and better organize the provisions
in 50 CFR part 12. Here, we present a summary of the final rule's
provisions. In this summary, we do not attempt to capture every aspect
of the final rule's changes to part 12. For more detailed descriptions
of the changes and a section-by-section analysis, refer to the proposed
rule (81 FR 39848, June 17, 2016).
In general, in this rulemaking, we reorganized, renamed, and
removed some subparts and sections in 50 CFR part 12, as we proposed.
The subpart titles below are the same as in the final regulatory text.
Changes to Subpart A of 50 CFR Part 12--General Provisions
We expanded the list of laws to which the regulations apply, as
indicated above; removed, revised, and added definitions of key terms;
changed requirements for filing and issuing documents; clarified how we
handle seizures made by other agencies; and clarified how we release
seized property under a bond. Some, but not all, definitions of note
that we added or revised include ``contraband,'' ``directed reexport,''
``other property that is illegal to possess,'' ``petition for
remission,'' and ``value.'' We added ``contraband'' to address an
exemption to three CAFRA procedures--two regarding release, and one
regarding the innocent owner defense. We added ``directed reexport'' to
indicate explicitly that we may offer it for shipments that we refuse
to clear for entry into the United States. Further, we included a
definition of ``other property that is illegal to possess'' to
highlight that two CAFRA exemptions regarding release do not apply to
protected fish, wildlife, and plants, depending on circumstances, and
``petition for remission,'' as these regulations expand on the
procedures for such petitions. We also revised the definition of
``domestic value,'' changing the term to ``value,'' and explained how
we are responsible for assigning value to property seized, as well as
how we will do so for property seized with and without a legal market
value in the United States.
Changes to Subpart B of 50 CFR Part 12--Notification Requirements
We are changing subpart B to clarify and update notification
requirements and procedures in the case of seizure and proposed
forfeiture. Electronic posting on our website is now an additional
public notice method.
Changes to Subpart C of 50 CFR Part 12--Forfeiture Proceedings
We clarify that there is a judicial and an administrative
forfeiture option, the distinctions between them, and that they are
mutually exclusive. We explain the standard for administrative
forfeiture, how you will be notified of the Solicitor's decision on
your petition for remission, and when you should file a supplemental
petition. In this subpart, we also explain how to file a judicial claim
for return of your property and for conditional return of your property
while your claim is pending.
Changes to Subpart D of 50 CFR Part 12--Abandonment Procedures
We clarify how property can be abandoned and whether you can
request return of your abandoned property.
Changes to Subpart E of 50 CFR Part 12--Disposal of Forfeited or
Abandoned Property
We added clarifications to most sections, and several remain
largely the same as in the current regulations. We made more
substantive changes to some sections, including, but not limited to,
clarifying edits to indicate that forfeiture or abandonment ends the
prior illegal status of property, but that owners must still comply
with applicable laws. Other substantive changes include clarifying when
we may dispose of forfeited or abandoned property to include donation
to Tribes for traditional cultural practices, clarifying that we may
reexport or destroy injurious species and recover associated costs,
allowing donation of abandoned or forfeited property but not for human
consumption, explaining when we may loan abandoned or forfeited
property and that borrowers may not sell the property or its offspring,
and that destruction of forfeited or abandoned
[[Page 47815]]
wildlife must happen in accordance with applicable laws.
Changes to Subpart F of 50 CFR Part 12--Recovery of Storage Costs and
Return of Property
This subpart is largely unchanged from the prior version of the
subpart.
Summary of Changes From the Proposed Rule
We are making some minor changes from the proposed rule. The
following paragraphs include descriptions of these changes that go
beyond small grammatical changes to the regulatory text.
First, we removed the phrase ``seized by the Service'' in the
definition of ``abandon'' in Sec. 12.3, so the clause now reads:
Abandon means to relinquish to the United States all legal right you
have to own, claim, or possess property. . . . We made this change to
clarify that voluntary abandonment is authorized. We added the phrase
``or any other entity'' in the definition of ``authorized officer'' to
define the term more broadly. We also added the word ``bred'' to the
definition of ``contraband'' in Sec. 12.3, due to the passage of the
Big Cat Public Safety Act on December 20, 2022, 117 Public Law 243, 136
Stat. 2336, which, among other prohibitions, makes it unlawful to breed
any prohibited wildlife species as defined in that Act. Next, we are
changing ``sent'' to ``delivered'' in the definition of ``declaration
of forfeiture'' in Sec. 12.3. Specifically, the clause will now read:
if notice was never successfully delivered. That change aligns the
clause logically with the remainder of the sentence, as we use the word
``deliver'' later in the sentence. We also removed the phrase ``under
the criteria in Sec. 12.11(a)'' in the definition of ``interested
party'' in Sec. 12.3, and we replaced the phrase with ``in property.''
Section 12.11(a), which is a notice provision, does not overtly state
criteria that we use to identify interested parties, but it does
describe ways the Service often identifies them. For example, we may
infer that a person is an interested party based on their name and
address appearing on shipping documents or on their permit or license
application and send them a notice of seizure and proposed forfeiture.
Thus, we made this change for clarity.
Next, we moved Sec. 12.11(g)(1)-(2) to Sec. 12.33(b) because the
provisions concern deadlines for filing petitions for remission, not
personal notification of seizure and forfeiture, so the heading of
Sec. 12.33 is a better fit.
We changed the heading of Sec. 12.13 to ``How is a declaration of
forfeiture issued?'' to better reflect the substance of the section.
The previous heading implied that the section was only about the
contents of the declaration of forfeiture.
We removed the requirement to provide a social security number or
taxpayer identification number in a petition for remission. This
requirement was in proposed Sec. 12.33(c)(1). We do not need this
information to manage or dispose of petitions. We also reworded Sec.
12.33(d) and Sec. 12.34(a) for clarity.
We revised Sec. 12.34(b) to clarify that the petitioner carries
the burden of proof for both initial petitions for remission and for
supplemental petitions. Next, we address changes we are making to Sec.
12.34(c): The first is a minor wording change regarding the scope of
the information that the Solicitor will review. The proposed rule said
that the Solicitor would consider any other available information
relating to the matter, which arguably could unduly burden the
Solicitor's Office with extensive independent investigating and fact-
finding. We removed the word ``any,'' which is a reasonable choice
given the extent of some of the cases that come before the Solicitor's
Office that can involve many parties and several foreign countries.
Moreover, the burden should be on the petitioner to bring the
information to the Solicitor, as stated elsewhere in that section. We
also qualified the type of information that the Solicitor will consider
from the petitioner as ``relevant'' information; the Solicitor will not
consider irrelevant information. Further, we clarified that the
Solicitor will consider other information that is available to the
Solicitor. Finally, we removed the first sentence of proposed Sec.
12.33(h), which is inconsistent with these changes to Sec. 12.34(c).
Second, we changed Sec. 12.34(c) to reflect that a petitioner may
submit relevant evidence showing that a seizure was invalid, and the
Solicitor will consider that information. However, if nothing suggests
the seizure was invalid or unlawful, the Solicitor will presume the
seizure was valid. The first sentence of proposed Sec. 12.34(c) stated
that the Solicitor will presume that a seizure is valid and will not
consider whether the evidence supports the seizure when considering a
petition for remission. Our intent in drafting that sentence was to
emphasize that remission is about equity, and that the standard for
making a decision on the petition is based in equitable principles. We
capture those principles in Sec. 12.34(e). We also explain this issue
in more detail in the proposed rule (81 FR 39848, June 17, 2016) at
pages 39853-39854.
We made this change in the final rule because seizure and
forfeiture must follow from a violation of the underlying law, whether
it be the Endangered Species Act, the Lacey Act, or another law we
enforce, and we need to follow the proper procedures in seizing and
forfeiting the property. In first reviewing the seizure for validity,
the Solicitor makes the determination that forfeiture should proceed.
The Solicitor will confirm the existence of a violation and whether
proper procedures were followed, among other things. Then the Solicitor
will review the petition for remission, applying the equitable
principles in Sec. 12.34(e). We also amended the introductory language
of Sec. 12.34(e) for clarity.
This change provides property owners and petitioners with greater
clarity on how we process petitions for remission. Specifically, they
will understand that the Solicitor will review the underlying seizure
before considering the petition. Relatedly, they will understand the
value of submitting any evidence they have that questions the validity
of the seizure.
Next, we added the phrase ``but not limited to'' to Sec.
12.34(e)(3) to clarify that the Solicitor may consider cumulative
conservation impacts other than the ones listed in Sec. 12.34(e)(3).
Next, we removed proposed Sec. 12.38(b) and (c) to better align
Sec. 12.38 with CAFRA requirements. If we seize property and send the
owner a notice under Sec. 12.11, one option for the owner is to file a
claim under Sec. 12.36. Filing a claim causes the Solicitor to refer
the matter to DOJ. Under CAFRA, DOJ has 90 days to file a complaint for
forfeiture, return the property, obtain a criminal indictment that
includes a claim against the property, or otherwise comply with any
applicable criminal forfeiture statute if DOJ chooses to hold the
property. The property must be returned to the owner if DOJ does not do
one of those things when 90 days have passed since the owner filed a
claim.
Under proposed Sec. 12.38(b), the Solicitor would send the owner a
letter if 90 days had passed since the claim was filed and DOJ had not
acted. We proposed that the letter would inform the owner that the 90
days had expired and state that, to have the property returned, the
owner needed to file a motion under FRCP 41(g) in the district where
the property was seized. We also proposed to publish a public notice,
as in Sec. 12.12, with the same information as the letter.
In proposed Sec. 12.38(c), we stated that the disposal provisions
in proposed Sec. Sec. 12.61-12.70 would apply if a court determined
that seized property was
[[Page 47816]]
contraband or property illegal to possess under FRCP 41(g). We also
stated that we would apply the disposal provisions if the owner did not
file a motion for return of the property within 6 years of the
Solicitor's letter and public notice.
We agree with the commenter who noted that CAFRA requires the
government to release property to its owner if DOJ does not act after
90 days of the owner filing a claim, as explained above. CAFRA does not
add any requirements beyond the expiration of the 90 days. It does not
require agency counsel to send the owner a letter notifying the owner
that the 90 days have expired or post a public notice, nor does it
require the owner to file a motion under FRCP 41(g) for the government
to return the owner's property. Therefore, those requirements in
proposed Sec. 12.38(b) are inconsistent with CAFRA, and we will not
finalize proposed Sec. 12.38(b).
Proposed Sec. 12.38(c) followed proposed Sec. 12.38(b) by stating
how we would dispose of property if a court upheld the forfeiture of
the owner's property under FRCP 41(g) or if the owner did not respond
to the Solicitor's letter or public notice under proposed Sec.
12.38(b). Because we are not finalizing proposed Sec. 12.38(b), we are
likewise not finalizing Sec. 12.38(c).
Next, we are making a minor change to Sec. 12.51, which addresses
voluntary abandonment of seized property. The revised language
clarifies that a property owner who wants to voluntarily abandon seized
property may use a form other than the Service's Form 3-2096 or may
write a letter, as long as the form or letter provides substantially
the same information as the Service form. The previous language was
less clear in terms of what an alternative form or letter needed to
contain. Also, this revision will standardize the information that
property owners must provide to abandon their property. We will treat
all abandonments the same in this regard, which is fairer. It also
ensures that we have the same information about each abandonment.
Next, we amended Sec. 12.63(c) to clarify that there may be a
variety of options regarding costs associated with returning
confiscated specimens to the wild in countries with suitable habitat
and in accordance with applicable law, such as requiring the violator
or others, as provided by law, to meet the costs. CITES contemplates
these options in Resolution Conf. 17.8 (Rev. CoP19), paragraph 5. We
also amended Sec. 12.63(c) for better flow and clarity.
Next, we streamlined language related to the applicable law in
Sec. Sec. 12.64(a), 12.67(b)(6), 12.68(b)(6), and 12.69(d) that speaks
to duties of subsequent holders of abandoned or seized property.
Specifically, the provisions note that subsequent holders of the
property must follow applicable Federal, State, Tribal, and foreign
laws and regulations. We deleted the phrase ``or any applicable
conservation, health, quarantine, agricultural, or Customs laws or
regulations'' because those applicable laws are covered by the revised
text. We also noted that the Service may donate or loan property in
Sec. Sec. 12.67 and 12.68, respectively, when consistent with
applicable law.
In addition to the revisions clarifying the applicable laws in
Sec. Sec. 12.67 and 12.68, we added ``or their offspring'' to
Sec. Sec. 12.67(b) and 12.68(b) to clarify that any offspring bred
from live specimens donated or loaned by the Service is subject to all
of the same requirements, consistent with the definition of ``fish or
wildlife'' in 50 CFR 10.12.
We deleted Sec. 12.67(b)(8), which concerned the re-transfer of
donated property without the Service's prior authorization, because
Sec. 12.67(b)(7) already requires prior authorization for any
subsequent transfers. We deleted the similarly worded clause in the
next section, Sec. 12.68(b)(8), which concerned the re-transfer of
loaned property, for the same reason.
Next, we changed the reference to the genus of African elephants in
Sec. 12.69(a) to make it more general. Our proposed rule included both
Loxodonta africana and Loxodonta cyclotis under the entry for African
elephant in Sec. 12.69(a)(7). However, we did not mean to imply that
the species Loxodonta africana had been reclassified under the ESA or
CITES. We note that the Service has been petitioned to reclassify the
African elephant as endangered and to recognize two species of African
elephants and classify them both as endangered under the ESA. Review of
those petitions, through a process separate from this rulemaking, is
ongoing. Accordingly, we are finalizing with the more general text
``Loxodonta species'' to account for any future changes in taxonomy of
the African elephant that might occur. We also added three statutes to
Sec. 12.69(a) limiting when the Service can sell forfeited or
abandoned property: the Wild Bird Conservation Act, the Rhinoceros and
Tiger Conservation Act, and the Big Cat Public Safety Act, because
these statutes limit the commercialization of the species they protect.
Here we address the change we are making to Sec. 12.70(c). We
proposed to require ourselves to ``comply with all Federal health,
safety, and environmental protection laws'' when destroying fish,
wildlife, or plants or disposing of wastes or residues from
destruction, as applicable. A commenter noted that we did not reference
animal welfare laws and require ourselves to comply with them in
disposing of and destroying animals. The commenter mentioned the Animal
Welfare Act, 7 U.S.C. 2131 et seq. We acknowledge the commenter's
concern, and we are revising the text at Sec. 12.70(c) to require
ourselves to comply with all laws applicable to destruction of fish,
wildlife, and plants and disposal of residue or wastes. This language
includes but is not limited to the Animal Welfare Act.
Lastly, we inadvertently proposed to remove current Sec. 12.51,
Return Procedure, from part 12. Current Sec. 12.51 explains how
property owners can get their property back from the Service if their
petition for remission or claim is successful. Specifically, in
repealing and replacing all of part 12, we neglected to bring current
Sec. 12.51 forward into the proposed rule, and by doing so, we
proposed to remove it from part 12. Instead, we want to retain the
substance of current Sec. 12.51. Therefore, we are redesignating
current Sec. 12.51 as Sec. 12.82 and including it in the final rule.
We are also retitling it: How will my property be returned if my
petition or claim is successful? We also made two minor wording
changes: We changed ``bailee'' to ``custodian'' to use a more modern
term, and we indicated that either the Solicitor or the Service may
provide a property receipt for signature.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 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.
E.O. 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
[[Page 47817]]
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 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.). Neither a
regulatory flexibility analysis nor a small entity compliance guide is
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 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 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 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. The
changes we made to the proposed rule are minor and do not change the
economic impact analysis or the impact on small entities. Therefore, we
are certifying that this rule will not have a significant economic
impact on a substantial number of small entities and that a regulatory
flexibility analysis is not required.
Congressional Review Act
This rule is not a major rule under 5 U.S.C. 804(2), the
Congressional Review Act, as it will not have an annual effect on the
economy of $100 million or more. Moreover, this 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 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.
Finally, this 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 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 rule.
The changes to the regulations contained in this 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 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 rule will not
result in any combined expenditure by State, local, or Tribal
governments.
Executive Order 12630 (Takings)
Under Executive Order 12630, this rule does not have significant
takings implications, nor will it affect any constitutionally protected
property rights. This 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 rule does not have significant
federalism effects. A federalism summary impact statement is not
required. This 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 that this 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 rule is to simplify and update our regulations
regarding seizure and forfeiture of property. Specifically, this 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 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.). 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
The Service has conducted a NEPA review in accordance with NEPA,
the CEQ NEPA regulations (40 CFR parts 1500-1508) and the Department of
the Interior NEPA regulations (43 CFR part 46), and the 516
Departmental Manual Chapters 1-4 and 8. This rule does not amount to a
major Federal action significantly affecting the quality of the human
environment. An environmental
[[Page 47818]]
impact statement is not required. This rule is categorically excluded
from further NEPA requirements under 43 CFR 46.210(i). This categorical
exclusion addresses 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 and will later be subject to the NEPA process, either
collectively or case-by-case. We have also determined that the rule
does not involve any of the extraordinary circumstances listed in 43
CFR 46.215 that would require further 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.'' This
rule changes our administrative and seizure and forfeiture procedures
and more closely aligns them with CAFRA. It is strictly administrative
in nature and has no effect on endangered or threatened species. As a
result, no section 7 consultation is required for this 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 this
rule and have determined that there are no substantial direct effects
on federally recognized Native American Tribes or on the government-to-
government relationship between the Federal Government and Native
American Tribes. Therefore, consultation under the Department's Tribal
consultation policy is not required. This rule changes aspects of our
seizure and forfeiture procedures, but it is strictly administrative in
nature and will not affect how we enforce the underlying laws
protecting fish, wildlife, and plants. For this reason, it also will
not be more or less protective of Tribal trust resources. Further,
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 Sec.
12.65(a)(2), which is wholly beneficial to Tribal members. Under that
provision, we may transfer forfeited wildlife to a Tribe.
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 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.
Regulation Promulgation
For the reasons described above, we revise part 12, subchapter B of
Chapter I, title 50 of the Code of Federal Regulations to read as
follows:
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
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 How is a declaration of forfeiture issued?
12.14 What happens if the required notification of seizure and
proposed forfeiture is not provided?
Subpart C--Forfeiture Proceedings
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 the 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
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
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
12.81 When can the Service assess fees for costs incurred by the
transfer, boarding, handling, or storage of property seized or
forfeited?
12.82 How will my property be returned if my petition or claim is
successful?
Authority: 16 U.S.C. 470aa et seq., 470aaa et seq., 668 et seq.,
668dd et seq., 703 et seq., 718a et seq., 742j-l, 1361 et seq., 1531
et seq., 2401 et seq., 3371 et seq., 4201 et seq., and 5301 et seq.;
18 U.S.C. 42 and 981 et seq.; 19 U.S.C. 1602-1624; 28 U.S.C. 2465;
42 U.S.C. 1996; and E.O. 13751, 81 FR 88609, amending E.O. 13112, 64
FR 6183.
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.
[[Page 47819]]
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 et seq.;
(3) The Migratory Bird Treaty Act, 16 U.S.C. 703 et seq. (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. 1361 et
seq.;
(6) The Archeological Resources Protection Act, 16 U.S.C. 470aa et
seq.; and
(7) The Native American Graves Protection and Repatriation Act, 25
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 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 an
individual, corporation, partnership, or any other entity asserting
that they are an interested party.
Claim means a written declaration regarding property for which the
Service has proposed forfeiture and 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, bred, 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 delivered, 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 reexport 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 U.S. 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 in property 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 plant 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.
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
[[Page 47820]]
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
plant 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 you file a judicial claim, 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
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.
[[Page 47821]]
(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 will either:
(i) Send notice within the 60 days specified under paragraph (a) of
this section and continue the administrative civil forfeiture
proceeding; or
(ii) Terminate the administrative 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.
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 Service's intent to forfeit and sell or otherwise
dispose of the property:
(1) Publication once each week for at least 3 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, which must be 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 How is a declaration of forfeiture issued?
(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 refer 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
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 an 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, plant 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
to grant relief.
(b) 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. If you do not receive the notice of
seizure and proposed forfeiture, we must receive the petition for
remission that you file not later than 30 days from the date of last
posting of the public notice of the seizure of the property.
(c) Petitions for remission of forfeiture must be concise and
logically presented to facilitate review by the Solicitor. The
Solicitor may dismiss a petition for remission that fails to
substantially comply with any of the information required by this
paragraph (c). The petition for remission of forfeiture must contain
the following:
(1) The name and address 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.
[[Page 47822]]
(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
use 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 instruments executed by
each known party with an interest in the property releasing that
interest.
(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) 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 either:
(1) The petitioner is an interested party or owner as defined in
this part; or
(2) 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 and for granting a
reconsideration of a denial of such a petition. Failure to provide
information or documents or to submit to interviews, when requested by
the Solicitor, may result in a denial of the petition.
(c) The Solicitor will consider relevant information that you
submit, as well as other information available to the Solicitor
relating to the matter. The Solicitor will review the basis for the
seizure, and in the absence of evidence to the contrary, will presume a
valid seizure.
(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 the petition and possible prosecution for filing of false
statements.
(e) The Solicitor will consider the following principles, if
applicable, when making a decision on a petition for remission:
(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) The Solicitor will make all remission decisions with due
consideration for the cumulative conservation impacts of the remission
including, but not limited to, whether:
(i) The species is listed in Appendix I, II, or III under the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES) (See Sec. 23.91 of this chapter);
(ii) The species is listed in part 17 of this chapter as
``threatened'' or ``endangered'' under the Endangered Species Act (16
U.S.C. 1531 et seq.);
(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 a 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
reexport to the exporter of record provided that the reexport benefits
enforcement and administration of applicable wildlife laws. Any terms
and conditions of remission will be in 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
[[Page 47823]]
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 has the sole discretion to
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 an 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 the 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 the decision on my
petition for remission?
(a) The Solicitor will notify you in writing of any decision to
grant or 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. The 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 the Solicitor denies your petition for
remission of forfeiture, 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. A
supplemental petition must be received within 60 days from the date of
the Solicitor's notification denying the original petition. You may
file only one supplemental petition. 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, identify the specific property being
claimed, state your interest in the specific property being claimed,
and 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 determining
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 that none of the conditions set forth
in 18 U.S.C. 983(f)(8) 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?
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.
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 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 containing substantially the
same information as Form 3-2096.
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 Sec. 12.33. 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, and, if
appropriate, the seizure tag number, and the 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.
[[Page 47824]]
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)(1) 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. The Service may return
such live member that is capable of surviving in the wild to one of the
following countries for return to suitable habitat:
(i) The country of export, if known, after consultation with that
country; or
(ii) 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 that country.
(2) Any return of fish, wildlife, or plants under paragraph (c)(1)
of this section must comply with applicable laws, including CITES and
the domestic laws of that country.
(3) We may require that the return of fish, wildlife, or plants
under paragraph (c)(1) of this section be at the expense of that
country, the transporter, the violator, or others as provided by law.
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 other applicable
Federal, State, Tribal, or foreign law or regulation.
(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; transfer 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) A government agency, including a foreign government agency,
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 these
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 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 relief will
be granted.
Sec. 12.66 How does the Service dispose of seized injurious fish or
wildlife?
(a) The Service will order immediate reexport 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 reexport 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,
when consistent with applicable law. 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 subchapter. The
donee must have the demonstrated ability to provide adequate care and
security for the fish, wildlife, or plants.
[[Page 47825]]
(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 transfer document must state 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 or their offspring.
(3) The recipient may be required to pay all of the costs
associated with the transfer of the fish, wildlife, or plants, or their
offspring, 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 Federal, State, Tribal, or foreign
law or regulation.
(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, or their offspring.
(8) 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.
(9) 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, or their
offspring.
(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, when consistent with applicable law. The loan may be made to
any person, government agency (including foreign government agencies)
or public organization, as defined in Sec. 10.12 of this subchapter.
The recipient 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
loan of fish, wildlife, or plant 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 loan is subject to
the following conditions:
(1) The transfer document must state 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 or
their offspring.
(3) The recipient may be required to pay all of the costs
associated with the transfer of the fish, wildlife, or plants, or their
offspring, 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, or their
offspring.
(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 Federal, State, Tribal, or foreign
law or regulation.
(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, or their offspring.
(8) 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.
(9) 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, or their
offspring.
(10) 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.
(11) 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. 703 et seq.);
(2) Protected under the Bald and Golden Eagle Protection Act (16
U.S.C. 668 et seq.);
(3) Listed in Appendix I, or in Appendix II with an annotation
(limiting commercial use of specimens of the species or where specimens
of the species are treated as if listed in Appendix I), under the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES) (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. 1361 et seq.);
(6) Regulated as an injurious species under our injurious species
regulations in part 16 of this chapter;
(7) The African elephant (Loxodonta species);
(8) Protected under the Wild Bird Conservation Act, (16 U.S.C. 4901
et seq.); or
(9) Protected under the Rhinoceros and Tiger Conservation Act (16
U.S.C. 5301 et seq.);
(10) Protected under the Big Cat Public Safety Act (16 U.S.C.
3371(h), 3372(e), 117 Public Law 243, 136 Stat. 2336); or
(11) 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
[[Page 47826]]
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 Federal,
State, or Tribal or foreign law or regulation.
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 applicable laws regarding the
destruction of the fish, wildlife, or plants and regarding 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 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.
Sec. 12.82 How will my property be returned if my petition or claim
is successful?
If, at the conclusion of the appropriate proceedings, seized
property is to be returned to the owner or consignee, the Solicitor or
Service will issue a letter or other document authorizing its return.
This letter or other document will be delivered personally or sent by
registered or certified mail, return receipt requested, and will
identify the owner or consignee, the seized property, and, if
appropriate, the custodian of the seized property. It will also provide
that, upon presentation of the letter or other document and proper
identification, and the signing of a receipt provided by the Solicitor
or the Service, the seized property is authorized to be released,
provided it is properly marked in accordance with applicable State or
Federal requirements.
Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-15373 Filed 7-24-23; 8:45 am]
BILLING CODE 4333-15-P