Seizure and Forfeiture Procedures
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Federal Register › Vol. 60 › 60 FR 58468
Text
Part VII
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
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50 CFR Part 12
Seizure and Forfeiture Procedures; Proposed Rule
Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 12
RIN 1018-AC89
Seizure and Forfeiture Procedures
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to
revise its seizure and forfeiture procedures. These regulations will
establish procedures relating to property seized or subject to
administrative forfeiture under various laws enforced by the Service.
This amendment is intended to provide uniform guidance for the bonded
release, appraisement, administrative proceeding, petition for
remission, and disposal of items subject to forfeiture under laws
administered by the Service.
This amendment of the Service's seizure and forfeiture procedures
is also intended to more clearly explain the procedures used in
administrative forfeiture proceedings and to make the process more
efficient and provide for greater consistency of the Service's seizure
and forfeiture procedures with those of the U.S. Customs Service.
DATES: Comments must be submitted on or before January 26, 1996.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Director, u.S. Fish and Wildlife Service, P.O. Box 3247,
Arlington, Virginia 22203-3247. Comments and materials may be hand-
delivered to the U.S. Fish and Wildlife Service, Division of Law
Enforcement, 4401 N. Fairfax Drive, Room 500, Arlington, Virginia,
between the hours of 8:00 a.m. and 4:00 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Frank S. Shoemaker Jr., Special Agent
in Charge, Branch of Investigations, Division of Law Enforcement,
telephone (703) 358-1949.
ents and materials may be hand-
delivered to the U.S. Fish and Wildlife Service, Division of Law
Enforcement, 4401 N. Fairfax Drive, Room 500, Arlington, Virginia,
between the hours of 8:00 a.m. and 4:00 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Frank S. Shoemaker Jr., Special Agent
in Charge, Branch of Investigations, Division of Law Enforcement,
telephone (703) 358-1949.
SUPPLEMENTARY INFORMATION: The Fish and Wildlife Service (Service) has
oversight responsibilities under Federal wildlife conservation
statutory and regulatory authorities to provide uniform rules,
conditions, and procedures for the seizure and forfeiture of property.
The regulations in 50 CFR 12, establish procedures relating to property
seized or subject to forfeiture under various laws enforced by the
Service.
Forfeiture may be defined as ``the divestiture without compensation
of property used in a manner contrary to the laws of the sovereign''.
Forfeiture as a form of legal action has been enlarged by case law to
include the divestiture of property acquired in an illegal manner. The
mere fact, however, that property has been used or acquired illegally
will not automatically provide the government with the authority to
confiscate and condemn it. Property may be forfeited only when such
forfeiture is specifically authorized by statute. Federal
administrative forfeiture, as a particular class of forfeiture action,
is the process by which property may be forfeited to the United States
by the Federal agency that seized it in accordance with proscribed
administrative procedures. This class of forfeiture will, therefore,
take place in the absence of ordinary judicial procedure. For such non-
judicial divestiture to occur, it must be specifically permitted by
statute. The statutory language authorizing administrative forfeiture
has been codified within the Customs laws at Title 19, United States
Code Sec. 1602-21
in accordance with proscribed
administrative procedures. This class of forfeiture will, therefore,
take place in the absence of ordinary judicial procedure. For such non-
judicial divestiture to occur, it must be specifically permitted by
statute. The statutory language authorizing administrative forfeiture
has been codified within the Customs laws at Title 19, United States
Code Sec. 1602-21.
The Service, in accordance with its oversight responsibility is
proposing the following changes to 50 CFR 12, in order to update and
revise its procedures to provide greater uniformity with the procedures
used by the U.S. Customs Service. Section 12.2 entitled, Scope of
Regulations, sets forth the statutory authority under which the Service
is empowered to seize and administratively forfeit property. This
section is being updated to delete outdated references to legal
authorities and to include several additional legal authorities which
are administered by the Service. Specifically, changes have been made
to Section 12.2 to: eliminate the outdated reference to The Black Bass
Act which was incorporated into the Lacey Act in 1981; add the African
Elephant Conservation Act, 16 U.S.C. 4201 et seq; and add the Wild
Exotic Bird Conservation Act, 16 U.S.C. 4901 et seq. These statutes
which have been newly referenced in this section all contain
administrative forfeiture provisions.
Section 12.3, entitled Definitions, is being revised to include
within the existing definition of disposal at 12.3(a)(2), the
authorized disposal of seized wildlife items by transferring them to
the Fish and Wildlife Service National Forfeited and Abandoned Wildlife
Repository (National Repository).
Additional changes to Part 12.3 include the revision of the
definition of the word ``Solicitor.'' This definition is being revised
to include ``any person designated by the Solicitor to initiate and
prosecute a civil penalty or administrative forfeiture proceeding''
transferring them to
the Fish and Wildlife Service National Forfeited and Abandoned Wildlife
Repository (National Repository).
Additional changes to Part 12.3 include the revision of the
definition of the word ``Solicitor.'' This definition is being revised
to include ``any person designated by the Solicitor to initiate and
prosecute a civil penalty or administrative forfeiture proceeding''.
This change is intended to prevent any confusion by the public as to
who is authorized to act in forfeiture or civil penalty proceedings.
Section 12.5, entitled Seizure by other agencies, is being revised
to indicate the current titles of responsible Service officials, the
``Assistant Regional Director--Law Enforcement''. The Assistant
Regional Director--Law Enforcement being duly authorized to receive
property seized by other agencies under laws administered by the
Service. This change will be in keeping with the 1988 revision in 50
CFR Part 10.22 which references the Assistant Regional Director.
Section 12.6, entitled Bonded release, describes the process and
requirements for the Service's acceptance of a bond for the release of
seized property. The Service in the past has generally used this
procedure in special cases such as when live wildlife requires
specialized care or when property is liable to perish or become greatly
reduced in price or value in storage. Additional text has been added to
this section to require the monetary value of seized items to be
established as of the time and place of release. The rationale for such
a change is the Service's concern that in many importations of wildlife
or wildlife products, the actual value of items declared by the
importer are ordinarily understated. This undervaluation is often
associated with foreign invoice values made on Customs declarations
which do not realistically reflect actual domestic market values
as of the time and place of release. The rationale for such
a change is the Service's concern that in many importations of wildlife
or wildlife products, the actual value of items declared by the
importer are ordinarily understated. This undervaluation is often
associated with foreign invoice values made on Customs declarations
which do not realistically reflect actual domestic market values. When
the Service accepts a bond based solely upon foreign or declared value
and the goods are returned to the claimant, there can be an unintended
incentive for the claimant to sell the goods at the higher domestic
market value and forfeit the bond. The text of Section 12.6 has been
revised to allow the Service the discretion to specify in what form,
cash, check, or certified bank check, a bond may be posted. This change
is due in large part to the many comments received from Service
employees expressing concern about the difficulty encountered in the
liquidation of posted surety bonds or other security instruments, where
the bond has been forfeited by the claimant but the necessary
preconditions for the bonds liquidation have not been satisfied.
The requirements of the ``appraisement'' Section 12.12 have also
been revised. This section provides guidance for the determination of
value of both saleable and unsalable property seized by the Service.
Section 12.12 has been revised to provide the Service with an
additional method of determining the
laimant but the necessary
preconditions for the bonds liquidation have not been satisfied.
The requirements of the ``appraisement'' Section 12.12 have also
been revised. This section provides guidance for the determination of
value of both saleable and unsalable property seized by the Service.
Section 12.12 has been revised to provide the Service with an
additional method of determining the
market value of items, that can have no legitimate or lawful value
because they are in fact illegal to possess in virtually all
circumstances. This section has therefore been revised to allow for
``other reasonable means'' to be used when determining value of seized
property.
The appraisement section is also revised by the elimination of the
list of applicable statutes and by the addition of the statement; ``any
statute administered by the Service''. This change will eliminate the
redundant listing of laws administered by the Service. Similar changes
have been made to Sections 12.22, 12.23(a) and 12.24(a).
Several administrative changes have been made to Sec. 12.22,
entitled, Civil actions to obtain forfeiture. This section outlines the
Service's authority to initiate civil actions to obtain forfeiture of
property seized under any statutory authority administered by the
Service. Although this course of action is generally not preferred by
the Service, several statutes expressly require the initiation of civil
actions for the forfeiture of property. Section 12.22 has, therefore,
been revised to clarify that, ``For the purposes of section 3(a) of the
Lacey Act (16 U.S.C. 3372(a)), the importation of a marine mammal or
marine mammal product * * * the importation of a migratory bird * * *
or the importation of any species of wildlife pursuant to 18 U.S.C. 42,
is deemed to be a transportation of wildlife.'' This additional text is
added to facilitate forfeiture of wildlife without penalty assessment.
Under the Marine Mammal Protection Act (MMPA), 16 U.S.C
U.S.C. 3372(a)), the importation of a marine mammal or
marine mammal product * * * the importation of a migratory bird * * *
or the importation of any species of wildlife pursuant to 18 U.S.C. 42,
is deemed to be a transportation of wildlife.'' This additional text is
added to facilitate forfeiture of wildlife without penalty assessment.
Under the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et
seq., the Service is required to assess a civil penalty prior to the
initiation of forfeiture proceedings involving marine mammals or marine
mammal products. In instances of importations made by tourists entering
the United States, of marine mammal products in violation of the MMPA,
or migratory birds in violation of the Migratory Bird Treaty Act
(MBTA), the Service may simply seek forfeiture of the item without the
assessment of monetary fine. Products made from endangered species or
species protected under the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), and imported
contrary to the provisions of the Endangered Species Act (ESA), 16
U.S.C. 1531 et seq., are routinely forfeited under those provisions
with no prior assessment of a civil penalty. The legislative history of
the ESA indicates a Congressional intent to provide for simple
forfeiture in cases involving noncommercial tourist. The MMPA allows
the Service to accept voluntary abandonment of marine mammal products
in noncommercial cases involving tourists. If the importer will not
voluntarily abandon the item, however, the Service will then be forced
to seek assessment of a civil penalty in order to seek forfeiture.
In order to avoid penalty assessment for these items when not
warranted, and initiate administrative forfeiture, the Service
frequently uses the Lacey Act, 16 U.S.C. 3372(a). The Lacey Act does
not, however, require the prior assessment of a penalty as a
prerequisite to forfeiture
tem, however, the Service will then be forced
to seek assessment of a civil penalty in order to seek forfeiture.
In order to avoid penalty assessment for these items when not
warranted, and initiate administrative forfeiture, the Service
frequently uses the Lacey Act, 16 U.S.C. 3372(a). The Lacey Act does
not, however, require the prior assessment of a penalty as a
prerequisite to forfeiture. Therefore, in order for the Service to
remain consistent in cases involving innocent possession and
importation of marine mammal products and migratory bird parts, the
Service is revising Section 12.22 to clarify forfeiture under the Lacey
Act. For this reason the words ``importation is deemed to be a
transportation'' are being inserted at the end of Section 12.22. This
wording is similar to that used in the Wild Exotic Bird Conservation
Act (16 U.S.C. 4912(c)). The intent of these changes is to clarify for
the public the process used to forfeit items under the MMPA and the
MBTA, and enable the Service to treat similar violations in a similar
fashion.
The administrative forfeiture Section at 12.23 has also been
revised. This section is intended to: explain the process of
administrative forfeiture; describe what a Notice of Proposed
Forfeiture should contain; set a maximum value limit on property
subject to administrative forfeiture; and explain how and with whom
interested parties can file a claim and bond in order to stop the
forfeiture proceeding. In revision of this Section, the Service is
attempting to eliminate unnecessary paperwork, to minimize the number
of certified mailings and publications required, to clarify the
forfeiture process, and to bring the regulations up to date with
current Customs regulations.
Specific changes to 50 CFR 12.23(a) will raise the upper value
limit of property subject to administrative forfeiture from $100,000 to
$500,000 to bring Part 12 into uniformity with applicable Customs
requirements
o minimize the number
of certified mailings and publications required, to clarify the
forfeiture process, and to bring the regulations up to date with
current Customs regulations.
Specific changes to 50 CFR 12.23(a) will raise the upper value
limit of property subject to administrative forfeiture from $100,000 to
$500,000 to bring Part 12 into uniformity with applicable Customs
requirements. The Service is also adding the words ``or without regard
to the value of the wildlife, if the importation of the wildlife is
prohibited'', to the text of this section. This change is intended to
be consistent with current Customs regulations, and is to have the
effect of reducing the number of uncontested forfeitures that the
Solicitor will need to refer to the United States Department of
Justice. The basis for making this change is that under current
regulations, all forfeiture actions involving seized property valued at
over $100,000 were referred to the Department of Justice even when such
importations were specifically prohibited. The burden of preparing
forfeiture cases for presentation to the Department of Justice has been
substantial. The Service, therefore, is revising this section to reduce
the number of referrals in uncontested forfeiture cases.
Section 12.23(b)(1)(A), entitled, Publication is revised to adjust
the value of property to which the Service is required to provide
notice of forfeiture to the public by newspaper publication. The
Service is adjusting the stated value from $1000 to $2500 respectively.
This change will allow the Service to post notices of forfeiture at
Service enforcement offices, U.S. District courthouses, or U.S.
customhouses, for property valued up to $2500. This revision will bring
the Service into uniformity with current Customs regulations, reduce
the costs generally associated with publication and adjust this limit
for changes to the comparable value of money since the last revision of
this section
e to post notices of forfeiture at
Service enforcement offices, U.S. District courthouses, or U.S.
customhouses, for property valued up to $2500. This revision will bring
the Service into uniformity with current Customs regulations, reduce
the costs generally associated with publication and adjust this limit
for changes to the comparable value of money since the last revision of
this section.
Several other changes have been made to Section 12 in an effort to
bring the Service's requirements into uniformity with current Customs
regulations and to improve and clarify the notification process. The
Service will no longer require that a notice of proposed forfeiture be
made in the same form as a Federal Judicial complaint. The Service is
also adding additional text to the section stating that ``articles
included in two or more seizures may be advertised as one unit''. This
change will allow the Service to use ``one unit'' advertising and will
thereby reduce the number of advertisements needed to provide notice of
proposed forfeiture for items of relatively minimal value. This change
is expected to result in a significant cost saving for the Service in
both advertising expenses and in costs associated with the issuance of
multiple notices of proposed forfeiture.
Other changes to section 12.23(b)(1)(B) have been made to clarify
the process by which interested persons may file a petition for
remission of forfeiture. Section 12.23(b)(1)(B) has been revised to
state that a petition for remission shall be filed with the
``Solicitor's Office'', in accordance with ``and within the time limits
set forth in section 12.24.'' This change will assist the public in
knowing where, and within what time limits, they may file a petition.
Additional wording has also been added to this section to clarify the
forfeiture. Section 12.23(b)(1)(B) has been revised to
state that a petition for remission shall be filed with the
``Solicitor's Office'', in accordance with ``and within the time limits
set forth in section 12.24.'' This change will assist the public in
knowing where, and within what time limits, they may file a petition.
Additional wording has also been added to this section to clarify the
affects on claimants for the failure to file a timely claim with cost
bond.
The Service is also revising its procedures to provide a single
Notice of Proposed Forfeiture. Upon notice interested parties may
respond by filing a claim with cost bond and/or a petition for
remission within the required time limits. A potential claimant may,
therefore, either stop the forfeiture proceeding by filing a petition
or claim and bond, or allow the forfeiture to occur automatically by
not responding. It should be noted, that in most forfeiture actions
undertaken by the Service, the forfeitures are contested. The Service
for this reason is interested in abolishing the redundant ``Declaration
of Forfeiture'' notice currently required under section 12.23(c). The
Service is proposing to use a single Notice of Proposed Forfeiture
procedure which can result in automatic forfeiture if a claim or a
petition for remission have not been filed within the appropriate time.
In addition, as is the current practice, a Declaration of Forfeiture
would not be issued. The Service is revising the contents of the notice
of proposed forfeiture, as well as the text of the summary forfeiture
section as follows: ``The notice shall further provide that if the
claim and costs bond are not timely received, that all claimants are
deemed to admit the truth of the allegations of the notice and the
property is summarily forfeited to the United States''.
The Service is also making changes to Section 12.23(b)(2). This
section outlines the requirements of filing a claim and bond by persons
claiming rights to property seized by the Service
vide that if the
claim and costs bond are not timely received, that all claimants are
deemed to admit the truth of the allegations of the notice and the
property is summarily forfeited to the United States''.
The Service is also making changes to Section 12.23(b)(2). This
section outlines the requirements of filing a claim and bond by persons
claiming rights to property seized by the Service. This section has
been incorrectly interpreted by many individuals to pertain only to
``bonds'' as financial instruments. The Service, therefore, proposes to
revise this section by deleting the word ``bond'', and by replacing it
with the words ``non-refundable certified or bank check made payable to
Clerk, United States District Court.'' This new wording will also
clarify for the public the essential ``non-refundable'' nature of such
certified or bank check. A bond in generally required in order to
provide for the payment of costs, and is therefore nonrefundable. The
regulations will continue to require a bond in the amount of $5000 or
ten per centum of the value of the claimed property, whichever is less,
but not less than $250.
A second change to the text of subsection (B)(2) has been made to
clarify the regulation and explain the affects of filing a bond for
seized property. The addition of the words ``Such filing only stops the
summary forfeiture proceeding'', is intended to emphasize that the mere
filing of a bond will not ordinarily entitle the claimant or other
person to possession of the property. This additional text will also
provide conformity with current applicable Customs requirements.
The Service is revising Section 12.23(b)(4), entitled, Motion for
Stay, in order to clarify the intent of its requirements. In certain
instances forfeiture claimants, who are the subjects of ongoing
criminal investigations, or criminal charges, have attempted to use the
broad range of civil discovery to obtain information about the
Service's criminal investigation
cable Customs requirements.
The Service is revising Section 12.23(b)(4), entitled, Motion for
Stay, in order to clarify the intent of its requirements. In certain
instances forfeiture claimants, who are the subjects of ongoing
criminal investigations, or criminal charges, have attempted to use the
broad range of civil discovery to obtain information about the
Service's criminal investigation. Use of civil discovery in this
fashion has allowed individuals access to information they would not
otherwise be entitled to receive. A Motion for Stay is considered a
necessary addition to Part 12, however, in order to provide for
circumstances in which a claimant defending a forfeiture action might
be forced to make statements against their interest, which could
eventually be used against them if they were also charged criminally
for the same violation. In general, the United States Attorneys are
generally cognizant of this issue and such forfeiture actions are often
purposefully delayed pending resolution of the underlying criminal
case. Since the existing text of the regulation does not indicate that
a Motion for Stay is limited in the circumstances of its use,
claimant's attorneys have often filed, or sought to file, such motions.
Therefore, in order to more clearly explain the purpose of such
motions, the additional words, ``A Motion for Stay will be considered
only if the owners of the property are also charged with a criminal
violation based upon the same illegal act'', have been added to the
beginning of this section for clarification. The effect of this
revision is to reduce the number of inappropriate motions filed, and
ensure compliance with Rule 26 of the Federal Rules of Criminal
Procedure.
The existing text to Section 12.23(c) entitled, Summary Forfeiture,
has been substantially revised. This provision provided for the
issuance of a written declaration of forfeiture and specifies the
contents of such declarations. These requirements have been
substantially eliminated
of inappropriate motions filed, and
ensure compliance with Rule 26 of the Federal Rules of Criminal
Procedure.
The existing text to Section 12.23(c) entitled, Summary Forfeiture,
has been substantially revised. This provision provided for the
issuance of a written declaration of forfeiture and specifies the
contents of such declarations. These requirements have been
substantially eliminated. The proposed new text of this section is
intended to be consistent with the changes being made in Section
12.23(b)(1)(B) and is made on the same basis. The Service is thereby
eliminating the current practice of issuing a Service Declaration of
Forfeiture, in favor of ``automatic forfeiture'', when a claim and bond
have not been filed. To effect this change a new Section 12.23(c),
entitled, ``Institution of forfeiture proceedings before completion of
other administrative proceedings'', is being added to Part 12. This new
section will simply state that ``nothing in these regulations is
intended to prevent the institution of forfeiture proceedings before
completion of penalty assessment or remission procedures.'' The basis
for this change is that the Service has in the past sought civil
penalties prior to forfeiting wildlife products when, for example,
products were imported into the United States in violation of the
Endangered Species Act. Several judicial decisions have caused the
Service to revise its procedures in regards to the length of time the
Service may hold property prior to the initiation of forfeiture
proceedings, without incurring problems of a Due Process nature. The
Service in most cases will generally seek forfeiture before initiating
civil penalty proceedings, unless forfeiture proceedings have been
delayed or remitted through a filing of a petition or a claim and bond.
The Service, therefore, is seeking through this revision, a means of
providing for such cases where the institution of forfeiture
proceedings is made before the completion of other administrative
proceedings
ill generally seek forfeiture before initiating
civil penalty proceedings, unless forfeiture proceedings have been
delayed or remitted through a filing of a petition or a claim and bond.
The Service, therefore, is seeking through this revision, a means of
providing for such cases where the institution of forfeiture
proceedings is made before the completion of other administrative
proceedings. This change is also intended to conform with current
Customs procedures.
Section 12.24, entitled, Petition for Remission of Forfeiture, has
been revised by the Service. In addition to the elimination of certain
redundant statutory citations in paragraph (a), the Service is
proposing to modify paragraph 12.24(c). This paragraph currently
requires that a petition be signed by the petitioner or the petitioners
attorney at law. The Service proposes the addition of the word ``or
representative'' after ``attorney at law'' in order to avoid an
erroneous interpretation that a petitioner must act alone or through an
attorney. The effect of this change will therefore be to clarify for
the petitioner, that they may designate a representative, other than an
attorney, to act on their behalf.
Changes reflecting the new Disposal definition are proposed at
Sections 12.24 (b) and (e). Under paragraph (b), a petition for
remission must be received prior to disposal of the property. Paragraph
(e) will now require the Solicitor to determine if the property has
been disposed of prior to deciding whether or not to grant relief.
The addition of a new section under Subpart C to be designated
Section 12.26, and entitled, Summary Sale of Perishable and Other
Property, is being proposed by the Service. This section
remission must be received prior to disposal of the property. Paragraph
(e) will now require the Solicitor to determine if the property has
been disposed of prior to deciding whether or not to grant relief.
The addition of a new section under Subpart C to be designated
Section 12.26, and entitled, Summary Sale of Perishable and Other
Property, is being proposed by the Service. This section
will allow the Service to sell any live wildlife, plant, or other
seized property subject to forfeiture, when such item(s) have been
determined likely to perish, deteriorate, decay, or likely to waste,
provided that the item(s) seized can otherwise be lawfully sold. The
proceeds of such sale will then become the object of the subsequent
forfeiture action. The Service is proposing this new section for a
variety of reasons based upon its past experience with such live or
perishable seizures. Under the current disposal regulation at Section
12.33(c)(1), the Service cannot dispose or sell live or perishable
property until such property has been forfeited or abandoned. The
Service is currently required to petition a competent United States
District Court of competent jurisdiction to allow a summary sale of the
perishable items if they are not yet forfeited. This has resulted in
substantial delays which in practice defeat the intent of the desired
sale. These delays in the disposition of perishable items may also
cause substantial storage and handling problems while summary sale or
forfeiture is being sought. Attempting to place live wildlife in a
suitable facility to prevent the animals (or plants) perishing while
awaiting forfeiture has proven to be a difficult task, particularly
when dealing with more common species. This task is often made more
difficult because such placements may be only temporary in duration,
due to the possibility of remission of forfeiture
or
forfeiture is being sought. Attempting to place live wildlife in a
suitable facility to prevent the animals (or plants) perishing while
awaiting forfeiture has proven to be a difficult task, particularly
when dealing with more common species. This task is often made more
difficult because such placements may be only temporary in duration,
due to the possibility of remission of forfeiture. To risk live
wildlife perishing due to the lack of suitable placement while awaiting
forfeiture would be inconsistent with the mission of the Service.
In the past the Service has attempted to prioritize
administratively the destruction of abandoned property that was either
perishable, constituted a health hazard to employees, or posed a threat
of contamination to other more valuable seized property. This process
is made difficult and time consuming when the property has not be
forfeited or abandoned. The Service, therefore, is seeking a means by
which perishable items can be sold immediately with the forfeiture
action being directed against the proceeds of that sale. The addition
of this section under Subpart C will also provide for conformity with
Customs regulations, alleviate some of the burden placed upon law
enforcement personnel in storing perishable items or finding placement
for live wildlife, to minimize the risk of live and sometimes rare
wildlife perishing, and to minimize the need for Judicial involvement
in requests for summary sale.
Section 12.33 is also revised by the addition of a new paragraph
vide for conformity with
Customs regulations, alleviate some of the burden placed upon law
enforcement personnel in storing perishable items or finding placement
for live wildlife, to minimize the risk of live and sometimes rare
wildlife perishing, and to minimize the need for Judicial involvement
in requests for summary sale.
Section 12.33 is also revised by the addition of a new paragraph
(e). This new paragraph will include, as an accepted method of disposal
of forfeited fish, wildlife or plants, the transfer of such wildlife
items to the Fish and Wildlife Service, National Forfeited and
Abandoned Wildlife Repository. The rationale for this change is to
provide a means for the seizing official to address all issues
surrounding remission, or return, of the seized item prior to disposal,
and for the seizing official or evidence custodian to address issues
concerning prior illegality, as outlined in Section 12.32, prior to
disposal. An example of a prior illegality is non-compliance with the
requirements of a Department of Agriculture quarantine regulation
affecting the importation of exotic birds. The Service in making this
change, is of the belief that such issues are best left to be addressed
by the seizing official. Changes relating to Disposal are also made at
Sections 12.24 (b) and (e), as well as in Section 12.33.
In addition to the administrative advantages of this proposed
change, as outlined in the prior discussion, the Service is seeking to
resolve problems involving requests for remission, and to examine goods
long after forfeiture has taken place. Under the current regulation at
section 12.24(b) a petition for remission can be filed at any point
prior to disposal. Since the National Repository is part of the
Service, items transferred there were considered to still be in the
possession of the Service and not ``disposed of''. This resulted in the
filing of numerous petitions and requests for examination long after
the items had been forfeited
he current regulation at
section 12.24(b) a petition for remission can be filed at any point
prior to disposal. Since the National Repository is part of the
Service, items transferred there were considered to still be in the
possession of the Service and not ``disposed of''. This resulted in the
filing of numerous petitions and requests for examination long after
the items had been forfeited. The Service believes that the proper time
for filing for remission, or dealing with other concerns of the owner,
is before items are transferred to the National Repository. The Customs
regulations establish a time limit, after which, if no petition for
remission or claim and bond are filed, the proceeds of the forfeiture
are dispersed. The Service has decided against proposing an arbitrary
time limit on the filing of petitions, and instead, decided to make the
National Repository a means of disposal in itself. This will alleviate
the unnecessary burden of tracking time limits on each forfeited item
of property, and ensure that all issues surrounding remission are
resolved by the seizing official. The majority of forfeited property
being handled by the Division of Law Enforcement is transferred to the
National Repository since it was the intent in its establishment to
make it the normal repository for such items.
Background
On Thursday, November 14, 1991, (56 FR 57873) the Service published
a Notice of Intent to Review 50 CFR Part 12 and requested that all
interested parties submit written comments. The Service received
comments from a total of 66 individuals and organizations.
Specifically, written comments were received from 36 individuals,
11 representatives of government agencies, 8 sportsman associations, 1
American Indian Tribe, 3 scientific associations, and 7 wildlife
management and conservation associations. Only 7 of the comments to a
Notice of Intent to Review Parts 12, 13, 14, 20, 21 and 22 pertained to
Part 12
total of 66 individuals and organizations.
Specifically, written comments were received from 36 individuals,
11 representatives of government agencies, 8 sportsman associations, 1
American Indian Tribe, 3 scientific associations, and 7 wildlife
management and conservation associations. Only 7 of the comments to a
Notice of Intent to Review Parts 12, 13, 14, 20, 21 and 22 pertained to
Part 12. The Service has carefully considered all comments received in
proposing these changes to Part 12. Public comments submitted in
response to the Notice of Intent to Review that were directed at Parts
13, 14, 20, 21 and 22 will be addressed as each individual Part is
proposed for revision.
Summary of Comments and Information Received
In general, the comments recommended that the Service provide in
its revision of Part 12 additional procedural safeguards in the
regulations governing ``Seizure and Forfeiture Procedures''. Additional
procedural safeguards were requested for the resolution of disputes in
cases involving the identification of specimens seized, for determining
when the forfeiture of an appearance bond or other security to the
Service is warranted in lieu of seizure, and to set out in the
regulations the ``specific notices'' and other required documentation
necessary in seizure and forfeiture procedures. Other comments
regarding this section ranged from requests to have the section
thoroughly reviewed, to the addition of lengthy text pertaining to the
detention of property.
Comments Pertaining to 50 CFR 12.6
Bonded Release
warranted in lieu of seizure, and to set out in the
regulations the ``specific notices'' and other required documentation
necessary in seizure and forfeiture procedures. Other comments
regarding this section ranged from requests to have the section
thoroughly reviewed, to the addition of lengthy text pertaining to the
detention of property.
Comments Pertaining to 50 CFR 12.6
Bonded Release
Several commenters suggested revising Part 12 to give the Service
greater flexibility to require and liquidate performance bonds for the
release of seized property. The Service's authority to accept bonded
release of wildlife is authorized by the Endangered Species Act. Bonded
release pertains to the discretionary release by the Service of
wildlife or wildlife products after an importer or owner has produced
cash, certified check, or other security to ensure the products return
and availability to the Service. Liquidation of the bond may occur if
the
conditions of the bond have not been satisfied. The Service recognizes
that there have been problems in the liquidation of corporate surety
bonds when the preconditions for their release have not been satisfied.
The Service has addressed this problem in this revision by specifying
within the applicable section, that a cash bond or certified bank check
can under certain circumstances be an option available for bonded
release.
One commenter noted that an important justification for the use of
bonded release was to ensure proper specialized care for scientific
specimens. Specialized care is often necessary to maintain scientific
specimens and is an important reason for using bonded release.
Situations requiring bonded release include cases where there is live
wildlife that the Service can not reasonably care for, or other cases
involving live falconry birds
fication for the use of
bonded release was to ensure proper specialized care for scientific
specimens. Specialized care is often necessary to maintain scientific
specimens and is an important reason for using bonded release.
Situations requiring bonded release include cases where there is live
wildlife that the Service can not reasonably care for, or other cases
involving live falconry birds.
One commenter expressed concern regarding live falconry birds and
requested that the Service ensure that such bird be bonded back to the
falconer's custody, because as the commenter termed, the falconer can
best care for such bird. The Service's regulations already provide for
this in Section 12.6(b).
One commenter representing a sportsman's organization expressed
concern about possible spoilage or death of wildlife specimens being
detained by the Service while taxonomic identification is taking place.
The commenter recommended bonded release as a remedy for this problem.
The Service agrees that such concerns when legitimate would be valid
grounds for the use of bonded release. When contemplating bonded
release of an item, several factors are considered by the Service.
Generally bonded release will not be allowed in situations where the
Service would not have reasonable assurance that the property released
is the same property to be returned for forfeiture or other proceeding.
In addition bonded release is only allowed when possession of the
property by the owner will not violate or frustrate the intended
purpose or policy of applicable law or regulation. The release of an
item under bond to an importer or owner, for example, is not allowed,
when the taxonomic identification of an item is still in question for
any release would be a bar to the necessary identification of the item.
The Service intends for the provisions governing the bonded release to
be narrowly construed
ustrate the intended
purpose or policy of applicable law or regulation. The release of an
item under bond to an importer or owner, for example, is not allowed,
when the taxonomic identification of an item is still in question for
any release would be a bar to the necessary identification of the item.
The Service intends for the provisions governing the bonded release to
be narrowly construed. The Service has made efforts to ensure that its
requirements for the possession of forfeitable property are adequate to
ensure safekeeping and in the best interest of compliance.
One commenter expressed concern over the Service's practice of
``detaining'' wildlife for identification. The commenter specifically
admonished the Service for detaining shipments, when accompanying
documentation reveals the correct taxon, and the movement of that
specimen in commerce would not be illegal. The commenter further
characterized such detention to a seizure without warrant. The Service
has carefully considered the views of the commenter and disagrees with
the prior characterization of the detention of shipments. Service
personnel are trained to check declarations and other required
documentation to determine when items being declared do not reflect
what is being imported or exported.
The Service is authorized under the Endangered Species Act, the
Lacey Act, the Marine Mammal Protection Act, and the Wild Bird
Conservation Act, to detain for inspection and seize without warrant,
wildlife and wildlife products imported into or exported from the
United States contrary to these laws. The Service regards such
detentions as a ``refusal of clearance'' of the wildlife until certain
necessary matters pertaining to the import or export of the item are
satisfactorily resolved. Generally searches of persons or property will
ordinarily require as a standard, a showing of ``probable cause''
d wildlife products imported into or exported from the
United States contrary to these laws. The Service regards such
detentions as a ``refusal of clearance'' of the wildlife until certain
necessary matters pertaining to the import or export of the item are
satisfactorily resolved. Generally searches of persons or property will
ordinarily require as a standard, a showing of ``probable cause''. In
situations involving the international border or its functional
equivalent, however, probable cause is ordinarily not required to
detain and inspect when such activity is accomplished in a fashion
consistent with constitutional limitations and are made pursuant to
existing statutory authorities. The rationale for this special case
exemption to the usual constitutional restraints has been termed by the
Federal courts as the ``compelling'' interest of the United States in
maintaining control of its own borders. In general, the Service's
authority to conduct inspections and the authority to refuse clearance
of wildlife and wildlife items at designated ports or designated border
crossings are based upon a ``reasonable suspicion'' standard. This
standard is in keeping with the generally accepted practice used by all
federal agencies when conducting inspections at the international
border. The Service, therefore, is not required to show actual probable
cause, or to obtain a ``warrant'', to inspect shipment or refuse entry
thereof and detain wildlife products when such activities are done
consistent with its established authority at an International Border or
the functional equivalent thereof.
One commenter suggested that the Service should be responsible for
the identification of wildlife specimens entering the United States.
The Service has clearly stipulated in 50 CFR 14.53, that the burden of
proof for identification lies with the owner, importer or consignee of
the wildlife. The Service will identify wildlife in order to determine
if a violation of the law has occurred
ereof.
One commenter suggested that the Service should be responsible for
the identification of wildlife specimens entering the United States.
The Service has clearly stipulated in 50 CFR 14.53, that the burden of
proof for identification lies with the owner, importer or consignee of
the wildlife. The Service will identify wildlife in order to determine
if a violation of the law has occurred. The importer, owner, or
consignee of imported wildlife, or wildlife products, however, is
required to establish the identity of wildlife being imported to the
satisfaction of the Service.
One commenter expressed the opinion that in most cases documents
submitted by importers and exporters indicating the taxonomic identity
of the wildlife being imported or exported are correct. The Service has
found through experience that such information is unfortunately often
incorrect. Importers and exporters have in many instances submitted
paperwork incorrectly declaring the wildlife being shipped, and have
presented CITES permits which contained erroneous or false information.
Although a majority of such imports and exports of wildlife are done
correctly and in full compliance with the law, the Service occasionally
deals with persons who intentionally misrepresent wildlife and forge
documents or use falsified permits to circumvent the law. In order to
remain diligent for criminal activity and provide an effective
deterrent to such activity, the Service will not ordinarily accept
documentary evidence merely at face value. The Service pursuant to its
treaty obligation under CITES and a statutory obligation under the
Lacey Act, Endangered Species Act, etc. is required to maintain a level
of diligence in regards to the required documentation and, in such
capacity, question the validity of documents that may be false and
otherwise circumvent the purpose of the convention and domestic laws.
It is important to note, that the movement in commerce of a particular
wildlife specimen may in itself be illegal
the
Lacey Act, Endangered Species Act, etc. is required to maintain a level
of diligence in regards to the required documentation and, in such
capacity, question the validity of documents that may be false and
otherwise circumvent the purpose of the convention and domestic laws.
It is important to note, that the movement in commerce of a particular
wildlife specimen may in itself be illegal. The lawful movement of
wildlife in commerce is dependent upon its taxonomic identification.
The fact that an importer may, in good faith, believe his importations
of wildlife to be legal, and therefore lawful in commerce, does not
legitimize such importations. In order to carry out it's enforcement
function properly, the Service cannot automatically make assumptions as
to the status of wildlife shipments relative to the law. The Service
requires that
importers show, via Declaration, that a wildlife item(s) complies with
the law. The Service, therefore, in the exercise of due diligence will
routinely inspect such shipments to ensure compliance with applicable
law.
Comments pertaining to 50 CFR 12.11
Notification of seizure
One commenter representing an organization, expressed
dissatisfaction with the contents and procedures of the Service's
notification of seizure. The commenter noted that, in his experience,
the Service's Regions will differ on how the owner or consignee is
notified of a seizure. The commenter also noted that owners or
consignees are ``merely informed'' of seizures and the contemplation of
forfeiture or civil penalty proceedings, and are not informed of
procedures available to resolve the problem. The Service does not agree
with this characterization, and would direct members of the interested
public to Sections 12.11 and 12.23 of Title 50. Section 12.11 requires
that the owner or consignee is personally notified of a seizure. This
notice specifies the time, place, and reason for the seizure
civil penalty proceedings, and are not informed of
procedures available to resolve the problem. The Service does not agree
with this characterization, and would direct members of the interested
public to Sections 12.11 and 12.23 of Title 50. Section 12.11 requires
that the owner or consignee is personally notified of a seizure. This
notice specifies the time, place, and reason for the seizure. Section
12.23, which also requires a Notice of Proposed Forfeiture contain
specific reference to the provisions of the laws or regulations
allegedly violated, and also states that any person desiring to claim
the property must file a claim and bond. Service procedures for filing
a claim and bond, filing a motion for stay, and filing a petition for
remission, which allows the petitioner an opportunity to file a
statement of facts and circumstances.
Another commenter noted that in his opinion the Service has not
established procedures for resolution of ambiguities over species
identification and documentation. The commenter also noted that owners
or consignees of wildlife imports are not consulted regarding CITES
document verification. In response to this comment it is the Service's
policy that the importer, owner, or consignee of wildlife imports be
vested with the responsibility for making a proper declaration of the
wildlife to the Service upon importation. Any ambiguities arising from
the declaration would be grounds for refusal of clearance and/or
seizure of the item in question. Matters involving ambiguities in
documentation, e.g. the verification of CITES documents, are generally
internal to the workings of the CITES convention and may involve
official communique between the Government of the United States and
foreign governments through the State Department. The Service is not
obligated to consult with the owner or importer of wildlife items in
discussions with foreign governments, when official documents meant to
communicate information between governments are involved
ernal to the workings of the CITES convention and may involve
official communique between the Government of the United States and
foreign governments through the State Department. The Service is not
obligated to consult with the owner or importer of wildlife items in
discussions with foreign governments, when official documents meant to
communicate information between governments are involved.
One commenter expressed the concern about the adequacy of due
process and about any necessary involvement in administrative
proceedings prior to civil or criminal trial. The Service notes, in
response to the concerns expressed by the commenter, that 50 CFR Parts
11 and 12 contain specific procedures, which require the involvement of
the owner. Nothing contained in these regulations, however, will
restrict an individuals ability to produce evidence of any form in
their defense, or restrict their access to administrative or judicial
process. In the case of civil penalty assessment the violator
(respondent) may undertake informal discussion with the Director in
resolution of the proposed penalty, or in the case of proposed
forfeiture may produce a statement of all facts and circumstances as
authorized by Sec. 12.24. The Service, however, is bound by the
established procedures found in the Federal Rules of Criminal and Civil
Procedure, Titles 18 and 28 of the United States Code, respectively.
One commenter expressed concern about not being informed as to the
Service's determination of the identity of a species of wildlife whose
identity is in question. The Service procedures established at Section
12.23(B) requires the Service to describe the property, as well as the
specific laws or regulations violated. Rule 16 of the Federal Rules of
Criminal Procedure and Rule 26 of the Federal Rules of Civil Procedure
also require the release of this information to owners, importers, or
consignees of imported wildlife.
Comments Pertaining to 50 CFR 12.24
Petition for Remission of forfeiture
tion
12.23(B) requires the Service to describe the property, as well as the
specific laws or regulations violated. Rule 16 of the Federal Rules of
Criminal Procedure and Rule 26 of the Federal Rules of Civil Procedure
also require the release of this information to owners, importers, or
consignees of imported wildlife.
Comments Pertaining to 50 CFR 12.24
Petition for Remission of forfeiture
One commenter recommended revision of this section due to a
perceived dissatisfaction with the length of time the Service takes to
affect forfeiture after the seizure of a wildlife item. The commenter
also suggested that the Service should detain wildlife for a period of
time that is no longer than that allowed by the various Circuit Courts
of Appeal. The commenter also expressing the opinion that the Service
has ``egregiously'' violated reasonable time limits as a matter of
routine. The commenter further suggested that a remedy to the perceived
problem is to require the Solicitor's Office to issue an order to delay
any initiation of forfeiture proceedings, until after ``the proceeding
is finally disposed of by a written decision.'' The Service does not
agree with the view expressed by the commenter and does not believe
that the further delays that would be incurred by such additional
requirements in forfeiture proceedings, would contribute in any
meaningful way to the adequacy of the process.
The Service acknowledges that some clarification of the terminology
of forfeiture is in order. Some confusion exists between the terms
detention, refusal of clearance, and seizure. The ``refusal of
clearance'' of wildlife is generally used by the Service to provide for
time to verify permits or obtain positive identification of the
wildlife in question. This process is in many ways analogous to
``investigatory detention'' which has been upheld by the courts as long
as the reason for detention and length of detention are not
unreasonable
fusal of clearance, and seizure. The ``refusal of
clearance'' of wildlife is generally used by the Service to provide for
time to verify permits or obtain positive identification of the
wildlife in question. This process is in many ways analogous to
``investigatory detention'' which has been upheld by the courts as long
as the reason for detention and length of detention are not
unreasonable. It is essential to the work of the Service, that wildlife
be properly identified to determine whether or not a violation of the
law has in fact occurred. The outcome of this identification may
eventually lead to an items forfeiture. Wildlife is, as a matter of
policy, to be held no longer than necessary to determine identity or
verify permits allowing entry. The Service, in carrying out this
responsibility, will routinely work with foreign governments to verify
permits and will often seek the advice of experts in various wildlife
fields of study. Specialists in these fields are not always readily
available, whether in the United States or abroad, and such permit
verification or wildlife identification may take additional time. The
Service, in such cases, will leave in effect a refusal of clearance of
wildlife for a period of time no longer than that which is reasonable
to ensure compliance with the law. Upon the completion of this process,
the wildlife in question, is either seized, released, abandoned by the
importer or owner, or re-exported.
The Service is of the view that the commenter may be confusing
``detention'' with the ``refusal of clearance'' of wildlife upon the
importation of such wildlife, as stated in Sec. 14.53. When the correct
identity of wildlife has not been established by the importer or owner,
or can not be established, the Service may refuse to clear the wildlife
for entry into the United States. Refusal will occur when there is
reasonable suspicion to believe that an item is not in compliance with
U.S. laws or regulations
ldlife upon the
importation of such wildlife, as stated in Sec. 14.53. When the correct
identity of wildlife has not been established by the importer or owner,
or can not be established, the Service may refuse to clear the wildlife
for entry into the United States. Refusal will occur when there is
reasonable suspicion to believe that an item is not in compliance with
U.S. laws or regulations. The Service is under no obligation to
identify or ``seize'' (take custody of an item) simply because it has
refused to allow the item into the United States. This may lead to
the perception that the item has been detained for a long period of
time because the importer cannot take possession, when, in many cases,
the item may be re-exported to the country of origin or abandoned. The
Service agrees, that refusal to clear wildlife with no reasonable
suspicion of wrongdoing, or when longer than necessary to ensure
compliance with the law, is unacceptable.
The conditions for the seizure of wildlife are distinctly different
from that of refusal of clearance and should be distinguished. In a
seizure scenario, the Service will take actual custody of the item in
question. The Service will generally seize wildlife in instances where
an importer is either unable to provide the required documents, is
unable to satisfy applicable Service requirements, or is in clear
violation of applicable law. Wildlife parts or products may, therefore,
be seized and held subject to eventual forfeiture. The Service has been
charged with the responsibility for wildlife law enforcement and to
thereby take such measures to detect the illegal importations and
exportations of wildlife items. In many cases items of wildlife are not
contraband ``per se'', and therefore, require additional identification
to establish legality. Exigent circumstances have generally been held
by the courts to exist at the border, where wildlife is being imported
or exported, because once such items are released they are often
unrecoverable
t the illegal importations and
exportations of wildlife items. In many cases items of wildlife are not
contraband ``per se'', and therefore, require additional identification
to establish legality. Exigent circumstances have generally been held
by the courts to exist at the border, where wildlife is being imported
or exported, because once such items are released they are often
unrecoverable. The importation of illegal wildlife into the U.S. is
subject to prosecution as a criminal felony violation under certain
conditions. The Service must balance its responsibilities in
conservation law enforcement against the rights of property owners to
fair and adequate legal process. The Service believes it can accomplish
its conservation role effectively without adversely affecting the
rights of individuals to fair and adequate process in law, and believes
its procedures are a reasonable approach to seizure and forfeiture.
Comments Pertaining to 50 CFR 12.33
Disposal
One commenter from a scientific organization expressed concern
about the Service's potential destruction of forfeited property that
might have scientific value. The commenter recommended that a record be
maintained of attempts to donate, sell, or transfer forfeited property
with scientific value prior to its destruction. The Service strongly
agrees with the concept of using scientific specimens rather than
destroying them. The Service is of the view that adequate safeguards
are already in place to ensure this does not occur, and refers the
public to 50 CFR 12.33(a) and 12.36(a). Section 12.33 stipulates that
the Director must attempt to dispose of any wildlife or plant by the
order in which the disposal methods appear in the regulation. This part
applies unless destruction is by court order. The options; return to
the wild; use by the Service or transfer to another government agency;
donation or loan; and Sale, all appear before destruction
CFR 12.33(a) and 12.36(a). Section 12.33 stipulates that
the Director must attempt to dispose of any wildlife or plant by the
order in which the disposal methods appear in the regulation. This part
applies unless destruction is by court order. The options; return to
the wild; use by the Service or transfer to another government agency;
donation or loan; and Sale, all appear before destruction. Section
12.36 specifically authorizes the donation or loan of wildlife and
plants for scientific purposes.
Comments Pertaining to 50 CFR 12.34
Return to the Wild
One commenter expressed concern about ``the release of plant or
wildlife species with broad or fragmented geographic ranges.'' The
commenter was concerned that such species should not be released
indiscriminately within the species range because of the possible
introduction of deleterious genes or pathogens. The Service understands
this concern and would note that this section includes the words
``released to * * * suitable habitat.'' Suitable habitat would include
areas where the possibility of introduction of pathogens or undesirable
genes would not occur. One of the legal authorities under which the
Service is authorized is Executive Order 11987, entitled, ``Exotic
Organisms.'' This Executive Order directs Federal agencies to restrict
the introduction of exotic species into natural ecosystems of the
Untied States. The intent of E.O. 11987 is clear and a species' return
to the wild in the U.S. should be limited to suitable historic range.
The service recommends consultation with biologists familiar with
species of concern, prior to the release of any live wildlife.
Comments Pertaining to 50 CFR 12.35
Use by the Service or Transfer to Another Government Agency for
Official Use
ems of the
Untied States. The intent of E.O. 11987 is clear and a species' return
to the wild in the U.S. should be limited to suitable historic range.
The service recommends consultation with biologists familiar with
species of concern, prior to the release of any live wildlife.
Comments Pertaining to 50 CFR 12.35
Use by the Service or Transfer to Another Government Agency for
Official Use
One commenter representing a scientific association recommended
that scientific research should be added as one of the options for the
use or transfer of forfeited property under this section. The commenter
suggested that research be given first priority for the use or transfer
of such property. The Service agrees that research is a legitimate use
for appropriate forfeited items. The Service believes that the option
to allow return to the wild of live forfeited specimens should,
however, remain the number one option under this section. The Service
believes that returning wildlife to the wild whenever possible is the
option most consistent with the mission of the Service. Research is
authorized under the current regulation as the number two option for
use or transfer of forfeited items. The scientific research option
appears as the number five option also, as ``other scientific
purpose.''
Comments Pertaining to 50 CFR 12.36
Donation or Loan
One organization recommended revision of this section to include
within its provisions, the ``conservation and captive propagation'' of
live forfeited wildlife. the Service supports the premise raised by the
commenter, but believes the present regulation adequately provides for
such purposes. The concept of ``conservation'', although not always
easily distinguished, nonetheless, underlies all of the Service's
efforts with regard to the donation or loan of forfeited items. The
Service, however, believes that it would be nearly impossible to list
all of the authorized purposes that any particular forfeited item could
be used for
ent regulation adequately provides for
such purposes. The concept of ``conservation'', although not always
easily distinguished, nonetheless, underlies all of the Service's
efforts with regard to the donation or loan of forfeited items. The
Service, however, believes that it would be nearly impossible to list
all of the authorized purposes that any particular forfeited item could
be used for. The donation or loan of such property, as a basic rule,
must be consistent with appropriate scientific, educational, or public
display purposes. When the captive propagation of live wildlife is
consistent with these purposes, and not for individual personal gain,
nothing in the revised regulation would preclude it as a legitimate use
for donated or loaned wildlife or plants.
Comments Pertaining to 50 CFR 12.51
Return Procedure
One organization commented on modification of this part to provide
for the return of seized property within 30 days. The Service agrees
that any unnecessary delay in the return of seized property is
unwarranted. In general in cases which require the return of seized
property, the Service has sought to ensure that the 30 day standard
mentioned by the commenter is satisfactorily met. Under the current
regulation the Service is required to promptly return property when the
reason for seizure is not sustainable, either criminally or civilly.
Required Determination
This rule was not subject to Office of Management and Budget (OMB)
review under Executive Order 12866. This proposed rule will not have a
significant effect on a substantial number of small entities under the
Regulatory Felexibility Act, 5 U.S.C. 601 et seq.
ired to promptly return property when the
reason for seizure is not sustainable, either criminally or civilly.
Required Determination
This rule was not subject to Office of Management and Budget (OMB)
review under Executive Order 12866. This proposed rule will not have a
significant effect on a substantial number of small entities under the
Regulatory Felexibility Act, 5 U.S.C. 601 et seq.
This action is not expected to have significant taking implications, as
per Executive Order 12630. This proposed rule does not contain any
additional information collection requirements, beyond those approved
under OMB approval Number 1018-0022, that would require the approval of
OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This
action does not contain any federalism impacts as described in
Executive Order 12612. These proposed changes in the regulations in
Part 12 are regulatory and enforcement actions which are covered by a
categorical exclusion from National Environmental Policy Act procedures
under Section 516 of the Department Manual. An Environmental Action
Memorandum is on file at the U.S. Fish and Wildlife Service Office in
Arlington, Virginia. The determination has been made pursuant to
section 7 of the Endangered Species Act that the proposed revision of
Part 12 will not effect federally listed species. These proposed
regulations meet the applicable standards provided in Sections 2(a) and
2(b)(2) of Executive Order 12778.
Author
The originators of this proposed rule are Law Enforcement Special
Agent John M. Neal and Special Agent Jerome S. Smith of the Division of
Law Enforcement, U.S. Fish and Wildlife Service, Arlington, Virginia.
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
tors of this proposed rule are Law Enforcement Special
Agent John M. Neal and Special Agent Jerome S. Smith of the Division of
Law Enforcement, U.S. Fish and Wildlife Service, Arlington, Virginia.
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 set out in the preamble, Title 50, Chapter I,
Subchapter B of the Code of Federal Regulations is proposed to be
amended as set forth below:
PART 12--SEIZURE AND FORFEITURE PROCEDURES [AMENDED]
1. The authority citation for Part 12 is revised to read as
follows:
Authority: 16 U.S.C. 4222-4241; 4901-4916; 18 U.S.C. 42
2. Section 12.2 is amended by revising paragraphs (f) and (i), and
adding a paragraph (k), to read as follows:
Sec. 12.2 Scope of regulations.
* * * * *
(f) The African Elephant Conservation Act, 16 U.S.C. 4201 et seq.;
* * * * *
(i) The Lacey Act, 18 U.S.C. 42;
* * * * *
(k) The Wild Exotic Bird Conservation Act, 16 U.S.C. 4901 et seq.
3. Section 12.3 is amended by revising paragraphs (a)(2) and (a)(4)
to read as follows:
Sec. 12.3 Definitions.
(a) * * *
(2) ``Disposal'' includes, but is not limited to, remission, return
to the wild, use by the Service or transfer to another government
agency for official use, donation or loan, sale, or destruction; and
forfeited and/or abandoned wildlife transferred to the Fish and
Wildlife National Forfeited and Abandoned Wildlife Repository.
* * * * *
to read as follows:
Sec. 12.3 Definitions.
(a) * * *
(2) ``Disposal'' includes, but is not limited to, remission, return
to the wild, use by the Service or transfer to another government
agency for official use, donation or loan, sale, or destruction; and
forfeited and/or abandoned wildlife transferred to the Fish and
Wildlife National Forfeited and Abandoned Wildlife Repository.
* * * * *
(4) ``Solicitor'' means the Solicitor of the Department of the
Interior and any person designated by the Solicitor to initiate and
prosecute a civil penalty or administrative forfeiture proceeding.
* * * * *
Sec. 12.5 [Amended]
4. Section 12.5 is amended by removing the words ``Special Agent in
Charge'', and by adding in their place ``Assistant Regional Director--
Law Enforcement.''
5. Section 12.6 is amended by revising paragraph (a) to read as
follows:
Sec. 12.6 Bonded release.
(a) Subject to the conditions set forth in paragraphs (b) and (c)
of this section, and to such additional conditions as may be
appropriate, the Service, in its discretion, may accept, cash, check,
or certified bank check or other security (including, but not limited
to, payment of the value as of the time and place of release) in place
of any property seized under the African Elephant Conservation Act, 16
U.S.C. 4201 et seq., Endangered Species Act, 16 U.S.C. 1531 et seq.;
Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.; Lacey Act, 18
U.S.C. 42, and 16 U.S.C. 3371 et seq.; Airborne Hunting Act, 16 U.S.C.
742j-1; Eagle Protection Act, 16 U.S.C. 668 et seq.; or Wild Exotic
Bird Conservation Act, 16 U.S.C. 4901 et seq.
* * * * *
6. Section 12.12 is revised to read as follows:
Sec. 12.12 Appraisement.
1 et seq., Endangered Species Act, 16 U.S.C. 1531 et seq.;
Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.; Lacey Act, 18
U.S.C. 42, and 16 U.S.C. 3371 et seq.; Airborne Hunting Act, 16 U.S.C.
742j-1; Eagle Protection Act, 16 U.S.C. 668 et seq.; or Wild Exotic
Bird Conservation Act, 16 U.S.C. 4901 et seq.
* * * * *
6. Section 12.12 is revised to read as follows:
Sec. 12.12 Appraisement.
The Service shall determine the value of any property seized under
any statute administered by the Service. If the seized property may
lawfully be sold in the United States, its domestic value shall be
determined in accordance with Sec. 12.3. If the seized property may not
lawfully be sold in the United States, its value may be determined by
other reasonable means.
7. Section 12.22 is revised to read as follows:
Sec. 12.22 Civil actions to obtain forfeiture.
The Solicitor may request the Attorney General of the United States
to file a civil action to obtain forfeiture of any property subject to
forfeiture under any statute administered by the Service. If the
Solicitor intends to assess a civil penalty, no forfeiture action under
the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., may be
initiated until such civil penalty has been assessed; the
administrative action to obtain forfeiture must be commenced within 30
days after such assessment. For the purposes of Section (3)(a) of the
Lacey Act (16 U.S.C. 3372(a)), the importation of a marine mammal or a
marine mammal product, as defined in 16 U.S.C. 1362, the importation of
a migratory bird, part, nest, or egg, as regulated pursuant to 16
U.S.C. 703 et seq., or the importation of any species of wildlife, as
regulated pursuant to 18 U.S.C. 42, is deemed to be a transportation of
wildlife.
8. Section 12.23 is amended by revising paragraphs (a), (b)(1)(A),
(b)(1)(B), and (b)(2), (b)(4) introductory text, paragraphs (b)(4)(ii),
and (c) to read as follows:
Sec. 12.23 Administrative forfeiture proceedings.
regulated pursuant to 16
U.S.C. 703 et seq., or the importation of any species of wildlife, as
regulated pursuant to 18 U.S.C. 42, is deemed to be a transportation of
wildlife.
8. Section 12.23 is amended by revising paragraphs (a), (b)(1)(A),
(b)(1)(B), and (b)(2), (b)(4) introductory text, paragraphs (b)(4)(ii),
and (c) to read as follows:
Sec. 12.23 Administrative forfeiture proceedings.
(a) When authorized. The Solicitor may obtain forfeiture of
property under any authorizing statute administered by the Service in
accordance with this section when the property is determined under
12.12 to have a value of not greater than $500,000, or, without regard
to the value of the wildlife, when the wildlife being imported is
determined to be prohibited.
(b) Procedure--
(1) * * *
(A) Publication. The notice will be published once a week for at
least three successive weeks in a newspaper of general circulation in
the locality where the property was seized. If the value of the seized
Property as determined under Sec. 12.12 does not exceed $2500, the
notice may be published by posting, instead of newspaper publication,
for at least three successive weeks in a conspicuous place accessible
to the public at the Service's enforcement office, the U.S. District
Court or the U.S. Customhouse nearest the place of seizure.
(B) Contents. Articles included in two or more seizures may be
advertised as one unit. The notice must describe the property,
including, in the case of motor
hin the time limits set forth in Sec. 12.24.
Such petition for remission may be filed in lieu of, or in addition to,
the aforementioned claim and bond. The notice will further provide that
if the claim and costs bond are not timely received, that all potential
claimants are deemed to admit the truth of the allegations of the
notice and the property is summarily forfeited to the United States.
(2) Filing a claim and bond. Upon issuance of the Notice of
Proposed Forfeiture, any person claiming the seized property may file
with the Solicitor's office indicated in the notice, a claim to the
property and a non-refundable certified or bank check made payable to
Clerk, United States District Court in the penal sum of $5,000, or ten
per centum of the value of the claimed property, whichever is lower,
but not less than $250. Any claim and bond must be received in such
office within 30 days after the date of first publication or posting of
the notice of proposed forfeiture. The claim will state the claimant's
interest in the property. There will be endorsed on the bond a list or
schedule in substantially the following form which must be signed by
the claimant in the presence of the witnesses to the bond, and attested
by the witnesses:
List or schedule containing a particular description of seized
article, claim for which is covered by the within bond, to wit:
----------------------------------------------------------------------
----------------------------------------------------------------------
The foregoing list is correct.
Claimant:--------------------------------------------------------------
Attest:----------------------------------------------------------------
[Note: The claim and bond referred to in this paragraph will not
entitle the claimant or any other person to possession of the
property. Such filing only stops the summary forfeiture proceeding.]
(3) * * *
---------
The foregoing list is correct.
Claimant:--------------------------------------------------------------
Attest:----------------------------------------------------------------
[Note: The claim and bond referred to in this paragraph will not
entitle the claimant or any other person to possession of the
property. Such filing only stops the summary forfeiture proceeding.]
(3) * * *
(4) Motion for stay. A Motion for Stay will be considered only if
the owners of the property are also charged with a criminal violation
based upon the same illegal act. Upon issuance of the notice of
proposed forfeiture, any person claiming the seized property may file
with the Solicitor's regional or field office indicated in the notice a
motion to stay administrative forfeiture proceedings. Any motion for
stay must be filed within 30 days after the date of first publication
or posting of the Notice of Proposed Forfeiture. Each motion must
contain:
(i) * * *
(ii) The claimant's offer to pay, in advance, all reasonable costs
anticipated to be incurred in the storage, care, and maintenance of the
seized property for which administrative forfeiture is sought. Where a
stay of administrative forfeiture proceedings would not injure or
impair the rights of any third parties, and where the claimant has
agreed to pay in advance, anticipated, reasonable storage costs
associated with the granting of a stay, the Solicitor may, in his
discretion, grant the motion for stay and specify reasonable and
prudent conditions therefor, including but not limited to the duration
of the stay, a description of the factors that would automatically
terminate the stay, and any requirement for a bond (including amount)
to secure the payment of storage and other maintenance costs.
* * * * *
the granting of a stay, the Solicitor may, in his
discretion, grant the motion for stay and specify reasonable and
prudent conditions therefor, including but not limited to the duration
of the stay, a description of the factors that would automatically
terminate the stay, and any requirement for a bond (including amount)
to secure the payment of storage and other maintenance costs.
* * * * *
(c) Institution of forfeiture proceedings before completion of
other administrative proceedings. Nothing in these regulations is
intended to prevent the institution of forfeiture proceedings before
completion of penalty assessment or remission procedures.
9. Section 12.24 is amended by revising paragraphs (a), (b)
introductory text, (c), and (e) to read as follows:
Sec. 12.24 Petition for remission of forfeiture.
(a) Any person who has an interest in any property utilized in
unlawful taking and subject to forfeiture under statutes cited in
section 12.2 of this Part or any person, who has incurred or is alleged
to have incurred, a forfeiture of any such property, may file with the
Solicitor or, when forfeiture proceedings have been brought in United
States District Court, the Attorney General of the United States, a
petition for remission of forfeiture.
(b) A petition filed with the Solicitor need not be in any
particular form, but it must be received before disposal (See section
12.3) of the property has occurred and must contain the following: * *
*
(c) The petition must be signed by the petitioner or the
petitioner's attorney at law or representative. If the petitioner is a
corporation, the petition must be signed by an authorized officer,
supervisory employee, or attorney at law, and the corporate seal must
be properly affixed to the signature.
* * * * *
section
12.3) of the property has occurred and must contain the following: * *
*
(c) The petition must be signed by the petitioner or the
petitioner's attorney at law or representative. If the petitioner is a
corporation, the petition must be signed by an authorized officer,
supervisory employee, or attorney at law, and the corporate seal must
be properly affixed to the signature.
* * * * *
(e) Upon receiving the petition, the Solicitor shall first decide
if disposal of the property has occurred, then, if disposal has not
occurred, whether or not to grant relief. In making a decision, the
Solicitor shall consider the information submitted by the petitioner,
as well as any other available information relating to the matter.
* * * * *
10. Section 12.25 is revised to read as follows:
Sec. 12.25 Transfers in settlement of civil penalty claims.
At the discretion of the Solicitor, an owner of wildlife or plants
who may be liable for civil penalty under statutes cited in Section
12.2 of this Part, may be given an opportunity to completely or
partially settle the civil penalty claim by transferring to the United
States all right, title, and interest in any wildlife or plants that
are subject to forfeiture. Such transfer may be accomplished by the
owner's execution and return of a United States Customs Form 4607 or a
similar compromise transfer of property instrument provided by the
Service.
11. Section 12.26 is added to Subpart C to read as follows:
Sec. 12.26 Summary sale of perishable and other property.
all right, title, and interest in any wildlife or plants that
are subject to forfeiture. Such transfer may be accomplished by the
owner's execution and return of a United States Customs Form 4607 or a
similar compromise transfer of property instrument provided by the
Service.
11. Section 12.26 is added to Subpart C to read as follows:
Sec. 12.26 Summary sale of perishable and other property.
Any live wildlife or plant or other seized property which the
Director has determined is liable to perish, deteriorate, decay, waste,
or is perishable and which can lawfully be sold, shall be advertised
for sale and sold at public auction at the earliest possible date. The
Director shall proceed to give notice by advertisement of the summary
sale for such time as he considers reasonable. This notice shall be of
sale only and not notice of seizure and intent to forfeit. The proceeds
of the sale shall be held subject to the claims of parties in interest
in the same manner as the seized property would have been subject to
such claims.
12. Section 12.33 is amended by revising paragraph (a) introductory
text and by adding paragraph (e) to read as follows:
Sec. 12.33 Disposal.
(a) The Director shall dispose of any wildlife or plant forfeited
or abandoned under the authority of this part, subject to the
restrictions provided in this subpart, by one of the following means,
unless the item is the subject of a petition for remission of
forfeiture under 12.24 of this part, or disposed of by court order:
* * * * *
(3) Transfer to the Fish and Wildlife Service National Forfeited
and Abandoned Wildlife Repository.
* * * * *
nt forfeited
or abandoned under the authority of this part, subject to the
restrictions provided in this subpart, by one of the following means,
unless the item is the subject of a petition for remission of
forfeiture under 12.24 of this part, or disposed of by court order:
* * * * *
(3) Transfer to the Fish and Wildlife Service National Forfeited
and Abandoned Wildlife Repository.
* * * * *
(e) All forfeited and abandoned wildlife or plants which are
transferred to the Fish and Wildlife Service National Forfeited and
Abandoned Wildlife Repository shall be deemed disposed property for the
purposes of this section.
Dated: April 13, 1995.
George T. Frampton, Jr.
Assistant Secretary for Fish and Wildlife and Parks.
Editorial Note: This document was received at the Office of the
Federal Register on November 9, 1995.
[FR Doc. 95-28153 Filed 11-24-95; 8:45 am]
BILLING CODE 4310-55-M
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.