[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Proposed Rules]
[Pages 58468-58477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28153]



      

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Part VII





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 12



Seizure and Forfeiture Procedures; Proposed Rule

  Federal Register / Vol. 60, No. 227 / Monday, November 27, 1995 / 
Proposed Rules  

[[Page 58468]]


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.

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.
    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''. 
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. 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 

[[Page 58469]]
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. 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. 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. 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.
    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 

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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. 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. 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. 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. 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 

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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. 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 
(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. 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. 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

    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 

[[Page 58472]]
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.
    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. 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''. 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. 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 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 

[[Page 58473]]
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. 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.
    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

    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. 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. 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 

[[Page 58474]]
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. 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. 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

    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. 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. 

[[Page 58475]]
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

    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.
* * * * *
    (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.

    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.

    (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 

[[Page 58476]]
vehicles, the license, registration, motor, and serial numbers. The 
notice must state the time and place of seizure, as well as the reason 
therefor, and will specify the value of the property as determined 
under Sec. 12.12. The notice will contain a specific reference to the 
provisions of the laws or regulations alleged to be violated and under 
which the property is subject to forfeiture. The notice will state that 
any person desiring to claim the property must file a claim and a bond 
in accordance with paragraph (b)(2) of this section, and will state 
that if a proper claim and bond are not received by the proper office 
within the time prescribed by such paragraph, the property is summarily 
forfeited to the United States and will be disposed of according to 
law. The notice will advise interested persons of their right to file a 
petition for remission of forfeiture with the Solicitor's office, in 
accordance with and within 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) * * *
    (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.
* * * * *
    (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.
* * * * *
    (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.

    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:

[[Page 58477]]



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.
* * * * *
    (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