[Federal Register Volume 81, Number 117 (Friday, June 17, 2016)]
[Proposed Rules]
[Pages 39848-39865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14364]



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Vol. 81

Friday,

No. 117

June 17, 2016

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Parts 12





Seizure and Forfeiture Procedures; Proposed Rule

  Federal Register / Vol. 81, No. 117 / Friday, June 17, 2016 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 12

[Docket No. FWS-HQ-LE-2016-0067; FF09L00200-FX-LE12200900000]
RIN 1018-AC89


Seizure and Forfeiture Procedures

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) proposes to 
revise its seizure and forfeiture regulations. These regulations 
establish procedures relating to property seized or subject to 
administrative forfeiture under various laws enforced by the Service. 
This revision will set forth the procedures the Service uses for the 
seizure, bonded release, appraisement, administrative proceeding, 
petition for remission, and disposal of items subject to forfeiture 
under laws administered by the Service and will reflect the procedures 
required by the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) and 
those of U.S. Customs and Border Protection. This proposed rule will 
make these regulations easier to understand through the use of simpler 
language. This proposed revision will also more clearly explain the 
procedures used in administrative forfeiture proceedings, make the 
process more efficient, and make the Service's seizure and forfeiture 
procedures more uniform with those of other agencies subject to CAFRA.

DATES: We will consider comments received or postmarked on or before 
August 16, 2016.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking portal at: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-HQ-
LE-2016-0067.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-HQ-LE-2016-0067; Division of Policy, Performance, and 
Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275 
Leesburg Pike; Falls Church, VA 22041-3803.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information that you provide to us (see Public Comments in 
SUPPLEMENTARY INFORMATION below for more information).

FOR FURTHER INFORMATION CONTACT: Edward Grace, Deputy Assistant 
Director, U.S. Fish and Wildlife Service, Office of Law Enforcement, 
(703) 358-1949, fax (703) 358-1947.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We intend that any final action resulting from this proposed rule 
will be as accurate and effective as possible. The Service invites 
interested persons to submit written data, views, or arguments on all 
aspects of this proposed rule. Comments that will provide the most 
assistance to us in developing this rule will reference a specific 
portion of the proposed rule, explain the reason for any recommended 
change, and include data, information, or authority that supports that 
recommended change.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We will not accept 
comments you send by email or fax or that you send to an address not 
listed in ADDRESSES. We will not consider hand-delivered comments that 
we do not receive, or mailed comments that are not postmarked, by the 
date specified in DATES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including your personal identifying information--
will be posted on the Web site. If you provide personal identifying 
information in a hard-copy comment, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Office of Law Enforcement, MS: OLE; 5275 Leesburg 
Pike; Falls Church, VA 22041-3803.

Executive Summary

    We propose to revise our regulations regarding seizure and 
administrative forfeiture of property and the disposal of any property 
forfeited or abandoned to the United States (whether through 
administrative or judicial forfeiture) under various laws that the 
Service administers. The proposed regulations will set forth the 
procedures that we use for the seizure, bonded release, appraisement, 
administrative proceeding, petition for remission, and disposal of 
items subject to forfeiture and will reflect the procedures required by 
the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). This proposed 
rule will make the current regulations easier to understand through the 
use of simpler language and will also more clearly explain the 
procedures used in administrative forfeiture proceedings, make the 
process more efficient, and make the Service's seizure and forfeiture 
procedures more uniform with those of other agencies subject to CAFRA.
    The Service is not unique in its seizure and administrative 
forfeiture authority. In general, all property subject to forfeiture 
under Federal law may be forfeited administratively by the enforcing 
Federal agency provided that the statutory authority for the forfeiture 
incorporates the Customs laws of 19 U.S.C. 1602 et seq. and further 
provided the property is neither real property nor personal property 
having a value of more than $500,000 (except as noted in 19 U.S.C. 
1607(a)).
    Since the enactment of CAFRA in 2000, the Service has implemented 
the forfeiture procedures imposed by the law through the authority of 
the Act and through written guidance setting forth practices for the 
issuance of notice of nonjudicial civil forfeiture proceedings, the 
availability of administrative and judicial processes for contesting 
the proposed forfeiture, and applicable deadlines for utilizing these 
processes. We are now updating the regulations in part 12 of title 50 
of the Code of Federal Regulations (50 CFR part 12) to reflect these 
procedural changes.

Statutory Authority for Rulemaking

    The Service has enforcement and oversight responsibilities under 
Federal wildlife conservation laws and regulations. The regulations in 
50 CFR part 12 establish procedures relating to property seized or 
subject to administrative forfeiture as well as to the disposal of any 
property forfeited or abandoned to the United States under various laws 
enforced by the Service. Authority to seize and conduct administrative 
forfeiture and/or to dispose of property forfeited or abandoned to the 
United States whether through administrative or judicial forfeiture is 
granted under the following statutes:
     The Bald and Golden Eagle Protection Act, 16 U.S.C. 668 et 
seq. (BGEPA);
     the National Wildlife Refuge System Administration Act, 16 
U.S.C. 668dd-ee;
     the Migratory Bird Treaty Act, 16 U.S.C. 704, 706-707, 712 
(MBTA);

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     the Migratory Bird Hunting and Conservation Stamp Act, 16 
U.S.C. 718 et seq.;
     the Airborne Hunting Act, 16 U.S.C. 742j-1;
     the African Elephant Conservation Act, 16 U.S.C. 4201 et 
seq.;
     the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. 
(ESA);
     the Marine Mammal Protection Act of 1972, 16 U.S.C. 1375-
1377, 1382;
     the Lacey Act, 18 U.S.C. 42;
     the Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.;
     the Rhinoceros and Tiger Conservation Act, 16 U.S.C. 5301 
et seq.;
     the Antarctic Conservation Act, 16 U.S.C. 2401 et seq.;
     the Archeological Resources Protection Act, 16 U.S.C. 470 
et seq.;
     the Paleontological Resources Preservation Act, 16 U.S.C. 
470aaa et seq.; and
     the Native American Graves Protection and Repatriation 
Act, 16 U.S.C. 3001 et seq.

Purpose of Proposed Rulemaking

    CAFRA (Pub. L. 106-185) superimposes specific procedural 
requirements over the procedures in various forfeiture laws in 
existence prior to CAFRA's enactment. We are proposing a revision of 50 
CFR part 12 to reflect in one place the CAFRA procedural overlay and to 
make changes to increase the efficiency of the regulations, such as 
allowing the publication of notices through the internet and 
streamlining the process for claims and petitions for remission. The 
purposes of the civil forfeiture laws enforced by the Service are 
remedial, among other things because forfeiture removes unlawful 
wildlife from society and is based upon the unlawful use of that 
wildlife.

Section-by-Section Analysis

    The following parts of the preamble explain the proposed rule and 
present a discussion of the substantive issues of each section.

Proposed Changes to Subpart A of 50 CFR Part 12--General Provisions

    We are proposing to change the section titles in subpart A. 
Otherwise, proposed Sec. Sec.  12.1-12.6 are largely the same as 
current Sec. Sec.  12.1-12.6.

Section 12.1--What is the purpose of these regulations?

    The purpose of these proposed regulations is essentially unchanged 
from the purpose stated in the current Sec.  12.1.

Section 12.2--What is the scope of these regulations?

    The list of laws to which these regulations apply has been 
expanded. You can view this list in the corresponding section of the 
proposed regulations at the end of this document.

Section 12.3--What definitions do I need to know?

    We are proposing to remove the definitions of the following terms: 
``Attorney General,'' ``disposal,'' and ``domestic value,'' and add the 
word ``designee'' to the definition of ``Solicitor.'' We are also 
proposing to add definitions for the following terms: Abandon, 
administrative forfeiture, authorized officer, claim, contraband, 
declaration of forfeiture, detention, directed re-export, Director, 
interested party or parties, other property that is illegal to possess, 
petition for remission, property subject to administrative forfeiture, 
property subject to forfeiture, value, and we.
    Abandon: Abandon means to relinquish to the United States all legal 
right you have to own, claim, or possess property seized by the 
Service, and to forever give up any right, title, and interest you have 
in the property, and to waive any further rights or proceedings 
relative to the property other than whatever rights to seek relief 
expressly were reserved in the abandonment document you signed.
    Administrative forfeiture: Administrative forfeiture means the 
process by which property may be forfeited by a seizing agency rather 
than through a judicial proceeding. Administrative forfeiture has the 
same meaning as nonjudicial forfeiture, as that term is used in 18 
U.S.C. 983.
    Authorized officer: Authorized officer means a person or entity who 
is acting as an agent, trustee, partner, corporate officer, director, 
supervisory employee, or any other representative designated to act on 
behalf of a corporation, partnership, or individual asserting that they 
are an interested party.
    Claim: Claim means a written declaration regarding property for 
which the Service has proposed forfeiture that meets the statutory 
requirements of 18 U.S.C. 983(a)(2), including (1) timely submission, 
(2) containing required information regarding identification of the 
specific property being claimed, (3) stating the claimant's interest in 
the property, and (4) made under oath subject to penalty of perjury. A 
claim in effect causes a forfeiture proceeding begun administratively 
to be transferred by the Department of Justice to Federal court, since 
once a claim is filed seeking civil judicial forfeiture, the Service 
will forward the matter, through the Solicitor's Office, to the U.S. 
Department of Justice for filing as a civil judicial forfeiture action. 
Once a claim is referred, all administrative proceedings are 
terminated. See Von Neuman v. United States, 660 F.2d 1319, 1326 (9th 
Cir. 1981), cert. granted and judgment vacated on other grounds, 462 
U.S. 1101 (1983) (``Once a case is referred for judicial action, the 
administrative proceedings on a petition for remission must cease'' 
(citing 19 CFR 171.2)); see also 18 U.S.C. 983(a)(3); 19 U.S.C. 1608.
    Contraband: Contraband means any fish, wildlife, or plant that 
either (1) by its very nature is illegal to import, export, or possess; 
or (2) if not inherently illegal in nature, becomes illegal because it 
has been taken, possessed, imported, exported, acquired, transported, 
purchased, sold, or offered for sale or purchased contrary to law.
    A definition of ``contraband'' is included in these proposed 
regulations to address the contraband exemption to three of the 
procedures imposed by CAFRA on the civil forfeitures covered by these 
proposed part 12 regulations. These three procedures include certain 
types of seized property provisions contained in 18 U.S.C. 983(a)(1)(F) 
and 983(f) and the ``innocent owner defense'' of 18 U.S.C. 983(d). As 
discussed above, CAFRA sets forth the procedures used in all civil 
forfeitures under Federal law unless the particular forfeiture statute 
is specifically exempted in 18 U.S.C. 983(i)(2). United States v. 
144,774 Lbs. of Blue King Crab, 410 F. 3d 1131, 1134 (9th Cir. 2005). 
As such, CAFRA applies to the civil forfeitures covered by these 
proposed regulations.
    CAFRA includes, in 18 U.S.C. 983(f), a process for obtaining the 
release of certain types of seized property while a civil forfeiture 
action is pending. Contraband is one type of property that is 
specifically exempt from such releases (18 U.S.C. 983(f)(8)(A)). CAFRA 
also provides, in 18 U.S.C. 983(a)(1)(F), for the release and return of 
seized property in the event of a failure to send a required notice of 
seizure. Again, however, contraband is specifically exempt from these 
release provisions, as is other property that the person from whom the 
property was seized may not legally possess. Both of these CAFRA 
release provisions, including their contraband exemptions, are 
reflected in these proposed part 12 regulations, at proposed Sec. Sec.  
12.14 and 12.36.

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    CAFRA's ``innocent owner defense'' also expressly excludes 
``contraband,'' as well as ``other property that it is illegal to 
possess'' (18 U.S.C. 983(d)(4)). The ``innocent owner defense,'' which 
is reflected at proposed Sec.  12.33(c)(6), is an affirmative defense 
to civil forfeiture in which the burden of proof rests with the 
claimant to show the following: (1) If the claimant had an ownership 
interest in the property at the time of the offense, the claimant 
either had a lack of knowledge of the conduct giving rise to 
forfeiture, or, upon learning of the conduct, did all that reasonably 
could be expected under the circumstances to terminate such use of the 
property; or (2) if the claimant acquires the property after the 
conduct giving rise to the property, the claimant is a bona fide 
purchaser for value who did not know or was reasonably without cause to 
believe that the property was subject to forfeiture. Congress expressly 
used two different phrases, separated by the word ``or'' to describe 
the circumstances under which the ``innocent owner defense'' is 
unavailable: ``no person may assert an ownership interest under this 
subsection [18 U.S.C. 983(d)(4)] in contraband or other property that 
it is illegal to possess.'' Each of these phrases is separate and 
distinct from the other, and they mean two separate things. Blue King 
Crab, 410 F. 3d at 1135; United States v. 1866.75 Board Feet and 11 
Doors and Casings, 587 F. Supp. 2d 740, 751 (E.D.Va. 2008); 
Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1207 (N.D.Ca. 
2009), aff'd, 646 F.3d 1240 (9th Cir. 2011). Consequently, these two 
phrases are being separately defined in these proposed regulations.
    Although the term ``contraband'' is not explicitly defined in 
CAFRA, this phrase does have an ordinary, common meaning of ``[g]oods 
that are unlawful to import, export, or possess,'' and can be of either 
the ``per se'' (property whose possession is unlawful regardless of how 
it is used) or ``derivative'' (property whose possession becomes 
unlawful when it is used in an unlawful manner) variety. Black's Law 
Dictionary 365 (9th ed. 2009). Consistent with this common meaning, 
courts have concluded that ``contraband'' includes for purposes of the 
CAFRA ``innocent owner defense'' property that either (1) by its very 
nature is illegal to import, export, or possess, or (2) if not 
inherently illegal in nature, becomes illegal through the manner or 
circumstances by which it is used, possessed, or acquired. Conservation 
Force, 677 F. Supp. 2d at 1208; United States v. Approximately 600 
Sacks of Green Coffee Beans, 381 F. Supp. 2d 57 (D.P.R. 2005). This 
approach to ``contraband'' is also consistent with cases decided before 
the enactment in 2000 of CAFRA. See, e.g., United States v. Molt, 599 
F. 2d 1217-18, fn. 1 (3d Cir. 1079) (Under the Lacey Act, unlawfully 
taken foreign wildlife is a ``contraband article.''); United States v. 
The Proceeds from the Sale of Approximately 15,538 Panulirus argus 
Lobster Tails, 834 F. Supp. 385, 391 (S.D. Fla. 1993) (No innocent 
owner defense available because ``the [defendant] lobster tails were 
themselves contraband. . . .'') The definition of ``contraband'' 
included in these proposed regulations is consistent with the common 
meaning and case law interpretation of that term.
    Application of this definition will mean that petitioners and 
claimants will not be able to assert the innocent owner defense if, for 
example, their wildlife is imported without proper permits and so their 
possession, and/or transport, sale, receipt, etc., violates Federal 
law. While it is not illegal to import many types of wildlife into the 
United States, a failure to present required permits will transform the 
wildlife into contraband. Similarly, taking wildlife in violation of 
State law and placing it in interstate commerce in violation of Federal 
law may also transform that wildlife into contraband.
    Such results are consistent with the majority of pre-CAFRA 
authority, which held that a good faith defense was not available in 
forfeiture proceedings based on violations of wildlife protection laws, 
including the ESA. United States v. Fifty-Three (53) Eclectus Parrots, 
685 F. 2d 1131 (9th Cir. 1982) (forfeiture under the Tariff Act of 1930 
of birds imported in violation of foreign wildlife laws); United States 
v. One Handbag of Crocodilus Species, 856 F. Supp. 128 (E.D.N.Y. 1994) 
(forfeiture of wildlife products imported in violation of the 
Convention on International Trade in Endangered Species (CITES) and the 
ESA); United States v. Proceeds From the Sale of Approximately 15,538 
Panulirus argus Lobster Tails, 834 F. Supp. 385 (S.D. Fla. 1993) 
(forfeiture of wildlife imported in violation of the Lacey Act); United 
States v. 1,000 Raw Skins of Caiman crocodilus yacare, No. CV-88-3476, 
1991 U.S. Dist. LEXIS 3535 (E.D.N.Y. 1991) (forfeiture of wildlife 
products imported in violation of CITES and the ESA and the Lacey Act); 
Contra United States v. 3,210 Crusted Sides of Caiman crocodilus 
yacare, 636 F. Supp. 1281 (S.D. Fla. 1986) (forfeiture of wildlife 
products imported in violation of CITES and the ESA and the Lacey Act--
claimants unable to sustain burden of showing by preponderance of the 
evidence that the elements of innocent owner defense existed, including 
that they lacked involvement, knowledge, or did all that was reasonably 
possible to prevent the proscribed use of their property).
    The rationale for rejecting a good faith defense in the majority of 
wildlife forfeiture cases was that the application of strict liability 
in wildlife forfeiture actions is necessary to effect Congressional 
intent. To permit an importer to recover the property because he or she 
lacks culpability would lend support to the continued commercial 
traffic of the forbidden wildlife. Additionally, a foreseeable 
consequence would be to discourage diligent inquiry by the importer, 
allowing him or her to plead ignorance in the face of an import 
violation. Furthermore, it is not unreasonable to expect the importer 
to protect his or her interest by placing the risk of noncompliance on 
the supplier in negotiation of the sales agreement. 1,000 Raw Skins of 
Caiman crocodilus yacare, 1991 U.S. Dist. LEXIS 3535 at *12, quoted in 
One Handbag of Crocodilus Species, 856 F. Supp. at 134.
    Declaration of forfeiture means a written declaration by the 
Service or the Solicitor describing the property forfeited and stating 
the date, time, place, and reason for forfeiture. The declaration will 
also describe the date and manner in which notice of seizure and 
proposed forfeiture was sent to the property owner. If notice was never 
successfully sent, the declaration will describe efforts made to 
deliver any notice of seizure and proposed forfeiture.
    Detention: Detention means the holding for further investigation of 
fish, wildlife, or plants and any associated property that is neither 
released nor seized.
    Directed re-export: Directed re-export means the prompt export at 
the sole expense and risk to the importer or consignee of imported 
shipments.
    Directed re-export may be offered by the Service for shipments that 
have been refused entry by the Service into the United States. If the 
importer or consignee chooses not to re-export when offered by the 
Service, then the shipment will not be cleared under 50 CFR part 14 for 
entry into the United States, and the Service, at its sole discretion, 
may or may not seize and initiate forfeiture proceedings. If forfeiture 
proceedings are not initiated, the refused shipment may be subject to 
Customs enforcement action. Directed re-export also may be offered by 
the Solicitor under Sec.  12.34(e)(4) of this part for seized property 
as a condition of the remission decision. Section 12.34(e)(4) further 
clarifies that one of the options

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available when granting remission is to release the seized property for 
the sole and limited purpose of directed re-export. The importation of 
goods into the United States is not a fundamental right. See, e.g., 
Ganadera Indus., S.A. v. Block, 727 F. 2d 1156, 1160 (D.C. Cir. 1984). 
As discussed below in the discussion of Sec.  12.34, Congress assumed 
that forfeiture would be sought instead of civil penalty in most 
illegal importation cases, and CITES encourages the use of forfeiture 
rather than return to the State of export or re-export so that 
specimens traded in violation of CITES do not enter into illegal trade. 
Nevertheless, under some circumstances, the appropriate response might 
be for the Service to allow re-export of wildlife imported in violation 
of Federal wildlife laws instead of pursuing forfeiture. The Solicitor 
and the Service have the discretion to consider directed re-export as 
an option provided that re-export will benefit the enforcement and 
administration of applicable wildlife laws.
    Director: Director means the Director of the United States Fish and 
Wildlife Service, Department of the Interior, or an authorized 
representative (as defined in 50 CFR 10.12).
    Interested party or parties: Interested party or parties means any 
person(s) who appears to be a person having an interest in the seized 
property under the criteria in Sec.  12.11(a), based on the facts known 
to the seizing agency before a declaration of forfeiture is entered.
    Other property that is illegal to possess: Other property that is 
illegal to possess means any fish or wildlife or any plants that may 
not be legally possessed or held due to extrinsic circumstances.
    We include a definition of ``other property that is illegal to 
possess'' in these proposed regulations to address two specific 
exemptions from the procedures imposed by CAFRA on the civil 
forfeitures covered by these proposed regulations: From the ``innocent 
owner defense'' of 18 U.S.C. 983(d) and from the provisions of 18 
U.S.C. 983(a)(1)(F) regarding the release of seized property in the 
event of a failure to send a required notice of seizure. The phrase 
``other property that is illegal to possess'' includes property that 
becomes illegal to possess because of extrinsic circumstances. United 
States v. 144,774 Lbs. of Blue King Crab, 410 F. 3d 1131, 1134 (9th 
Cir. 2005). The seized property does not have to be in itself illegal; 
rather, it is property that became illegal to possess owing to a 
specific set of circumstances. Id. at 1136; United States v. 1866.75 
Board Feet and 11 Doors and Casings, 587 F. Supp. 2d 740, 751 (E.D. Va. 
2008); Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1207 (N.D. 
Ca. 2009), aff'd, 646 F.3d 1240 (9th Cir. 2011).
    Circumstances that would make property other than contraband 
illegal to possess include taking, possessing, importing, exporting, 
acquiring, transporting, purchasing, selling or offering for sale 
wildlife contrary to law. In other words, the property becomes illegal 
to possess through the manner or circumstances by which it is used, 
possessed, or acquired. As a result, wildlife that may be possessed 
legally in some circumstances becomes illegal to possess in others. For 
example, as of the date of publication of these proposed regulations, 
individuals may import into the United States without CITES documents 
in personal baggage that is carried or checked on the same transport as 
the traveler a quantity of no more than 125 grams per person of any 
sturgeon (Acipenseriformes) caviar that is from a species of CITES 
Appendix II sturgeon not separately listed under the ESA (in 50 CFR 
part 17) as endangered or threatened. If, however, more than 125 grams 
per person is so imported without a valid CITES document, then all of 
the caviar becomes illegal to possess.
    Petition for remission: Petition for remission means a request for 
the Solicitor to exercise equitable discretion and to release the 
property seized to you. Remission of forfeiture is committed to the 
discretion of the Solicitor's Office. In the case of administrative 
forfeiture, remission may be granted under the statutes authorizing 
forfeiture remissions only where the Solicitor finds in response to a 
petition the existence of ``such mitigating circumstances as to justify 
the remission,'' and then only under such terms and conditions as are 
deemed reasonable and just.
    Property subject to administrative forfeiture: Federal 
administrative forfeiture is the process by which a Federal agency 
seeks forfeiture of property to the United States after the Federal 
agency has seized the property under prescribed administrative 
procedures. In general, all property subject to forfeiture under 
Federal law may be forfeited administratively by the enforcing Federal 
agency provided that the statutory authority for the forfeiture 
incorporates the Customs laws of 19 U.S.C. 1602 et seq., to the extent 
not inconsistent with the provisions of the incorporating wildlife laws 
(identified in Sec.  12.2) pursuant to which forfeiture is sought and 
further provided the property is neither real property nor personal 
property having a value of more than $500,000 (except as noted in 19 
U.S.C. 1607(a)).
    Property subject to forfeiture: Property subject to forfeiture 
means all property that Federal law authorizes to be forfeited to the 
United States in any administrative forfeiture proceeding, in any civil 
judicial forfeiture, or any criminal forfeiture proceeding.
    Solicitor: Solicitor means the Solicitor of the United States 
Department of the Interior or an authorized representative or designee.
    Value: Value means the value of property as determined by the 
Service. For property having a legal market in the United States, the 
Service will use the reasonable declared value or the estimated market 
value at the time and place of seizure, if such or similar property was 
freely offered for sale between a willing seller and a willing buyer.
    This proposed rule would make the Service responsible for 
determining the value of the item seized, whether or not the item had a 
declared value at the time of seizure. Declared value in papers filed 
may sometimes understate the value to avoid Customs and Border 
Protection (CBP) duties or overstate the value for insurance purposes. 
Therefore, value will be determined based on either reasonable declared 
value or estimated market value at the time and place of seizure.
    We: We means the U.S. Fish and Wildlife Service.

Section 12.4--When and how must documents be filed or issued?

    We propose to revise the language for the filing of documents as 
follows:
    Proposed paragraph (a) will state that, whenever this part requires 
or allows you to file a document on or before a certain date, you are 
responsible for submitting that document so as to reach the Government 
office designated for receipt by the time specified. You may use the 
U.S. Postal Service, a commercial carrier, or electronic or facsimile 
transmission. We will consider the document filed on the date on which 
the document is received by the Government office designated for 
receipt. Acceptable evidence to establish the time of receipt by the 
Government office includes any time/date stamp placed by that office on 
the document, other documentary evidence of receipt maintained by that 
office, or oral testimony or statements of Government personnel.
    Proposed paragraph (b) will indicate that, whenever this part 
requires or allows the Government to issue or file a document on or 
before a certain date, the document will be considered to be

[[Page 39852]]

issued or filed on the date on which the document was placed in the 
U.S. mail service, delivered to a commercial carrier, or sent by 
facsimile transmission. Acceptable evidence to establish the time of 
filing or issuance by the Government includes any time/date stamp 
placed by that office on the document, other documentary evidence of 
receipt maintained by that office, or oral testimony or statements of 
Government personnel.

Section 12.5--How does the Service handle seizures made by other 
agencies?

    We propose to clarify how the Service handles seizures made by 
other agencies.

Section 12.6--How does the Service release seized property under a 
bond?

    We propose to clarify how the Service releases seized property 
under a bond. This bond requirement is distinct from the pre-CAFRA 
requirement that a bond be posted with any claim seeking judicial 
forfeiture. CAFRA eliminated 19 U.S.C. 1608's cost bond requirement. 18 
U.S.C. 983(a)(2)(E).

Proposed Changes to Subpart B of 50 CFR Part 12--Preliminary 
Requirements

    We are proposing to change the title of subpart B to ``Notification 
Requirements'' and also to change the section titles in the subpart and 
add sections. The Service is providing additional mechanisms for 
publication through electronic posting to the U.S. Fish and Wildlife 
Service Office of Law Enforcement Web site.

Section 12.11--How is personal notification of seizure and proposed 
forfeiture provided?

    We propose to revise current Sec.  12.11 to include any interested 
party who has not signed an abandonment form. We also propose to 
clarify how the Service or the Solicitor provides personal notification 
of seizure and proposed forfeiture.
    The term ``interested party'' has been defined for purposes of 
notification. The timing of notice of seizure has been established as 
60 days unless otherwise allowed pursuant to 18 U.S.C. 983(a). Items 
detained for identification or investigation only, pursuant to legal 
authority, and items detained as evidence in an ongoing criminal 
investigation and for less than 30 days will not be considered seized 
for purposes of forfeiture. These proposed regulations include 
provisions for the grounds for extending notification deadlines, how an 
extension is obtained, the format for notification of seizure, the 
deadlines to petition for remission, and electronic posting of notices.

Section 12.12--How is public notification of seizure and proposed 
forfeiture provided?

    We propose to add this section to provide a mechanism for public 
posting of seized property both in the newspaper or where appropriate 
on an official government Web site.

Section 12.13--What does a declaration of forfeiture contain?

    This new provision describes the requirements for what a 
declaration of forfeiture must contain.

Section 12.14--What happens if the required notification of seizure and 
proposed forfeiture is not provided?

    We propose to clarify what happens if the Service or the Solicitor 
fails to provide the required notification of seizure and proposed 
forfeiture. This new section makes it clear that, where the owner is 
known and the property is not contraband or otherwise illegal to 
possess, the property must be returned if a timely notification of 
seizure and proposed forfeiture is not made, although the Service or 
the Solicitor may still seek to obtain a judicial forfeiture.

Proposed Changes to Subpart C of 50 CFR Part 12--Forfeiture Proceedings

    We are proposing to change various section titles in subpart C.

Section 12.31--What are the basic types of forfeiture proceedings?

    This new section provides an overview of this subpart.

Section 12.32--When may the Service or the Solicitor obtain 
administrative forfeiture of my property?

    This new section describes what the law requires in order to 
commence administrative forfeiture proceedings and the existing legal 
requirements for obtaining forfeiture.

Section 12.33--How do I file a petition for remission of forfeiture 
requesting the release of my property?

    This section is a rewrite of current Sec.  12.24(b) with some 
additions. We propose to clarify when a petition for remission of 
forfeiture may be filed. The administrative process for requesting the 
release of seized property (through a petition for remission) is 
different than and is an alternative to the judicial process (through a 
claim). Either the administrative option or the judicial option may be 
used provided that the applicable filing deadlines are met.
    Once an administrative forfeiture is commenced by the required 
provision of notice, you have the administrative option to file a 
petition for remission for the return of the seized property. A 
petition for remission asks the Solicitor to use equitable discretion 
in deciding whether to release the seized property pursuant to the 
petition. The Solicitor will render a decision on the petition pursuant 
to proposed Sec.  12.34.
    Alternatively, judicial relief may be sought by filing a claim, 
which causes the Government to pursue judicial forfeiture by filing a 
complaint for forfeiture in Federal court. Prior to 2014, the Service 
as a matter of administrative discretion (and not of statutory mandate) 
gave interested parties the opportunity to suspend or toll the time 
period available for filing a claim simply by filing a petition for 
remission seeking administrative relief. Under this practice, 
forfeiture proceedings were deemed to recommence in the event a 
petition for remission of forfeiture was denied, and the interested 
party was given the balance of time, if any, remaining to file a claim.
    This practice of suspending all forfeiture time periods pending the 
outcome of a petition for remission was changed in 2014, and these 
proposed regulations expressly reflect the current practice that 
interested parties must elect to proceed either administratively or 
judicially, but they may not use these remedies sequentially. The CAFRA 
deadlines for the filing of a claim after the Service or the Solicitor 
commences an administrative forfeiture proceeding are not suspended or 
tolled pending a decision on a petition for remission.
    This is because the administrative remedy for forfeiture (i.e., 
sought through a petition for remission) is distinct from the judicial 
remedy initiated through a claim; forfeiture statutes and regulations 
``provide alternative, not sequential, administrative and legal 
remedies for an administrative forfeiture.'' Conservation Force, 646 
F.3d at 1242. Accord, Malladi Drugs & Pharmaceuticals, Ltd. v. Tandy, 
552 F. 3d 885, 890 (D.C. Cir. 2009). If a party pursues the 
administrative path by filing a petition for remission, and the 
petition is denied, then the ``exclusive remedy'' for setting aside an 
administrative declaration of forfeiture is that provided in CAFRA, in 
18 U.S.C. 983(e), which is available only if the notice of forfeiture 
is not received. Put another way, in the event that an interested party 
receives proper notice of a proposed administrative forfeiture and 
chooses to pursue an administrative path, filing a petition for 
remission that is reviewed and denied, then that party

[[Page 39853]]

has ``waived the opportunity for judicial forfeiture proceedings.'' 
Conservation Force, 646 F.3d at 1242. Accord, Pert v. United States, 
487 Fed. Appx. 396 (9th Cir. 2012) and Phillips v. United States, 464 
Fed. Appx. 700 (9th Cir. 2011).
    The proposed regulation has been clarified to reflect that 
remissions are an equitable remedy. The burden is on the petitioner to 
establish grounds for remission. If the petitioner does not provide the 
information requested in considering the petition for remission, the 
remission petition may be denied without further consideration. During 
the remission consideration, a valid forfeiture is presumed.

Section 12.34--What are the standards for remission of forfeiture?

    We propose to clarify the standards for remission of forfeiture. 
Moreover, we propose to revise the requirements for remitting property 
that has been forfeited to more accurately reflect what the law 
requires in order for property to be remitted. Remission of forfeiture 
is discretionary; if the Solicitor ``finds the existence of such 
mitigating circumstances as to justify the remission or mitigation'' of 
the forfeiture or alleged forfeiture, the Solicitor ``may remit or 
mitigate the same upon such terms and conditions as he deems reasonable 
and just'' (19 U.S.C. 1618). Essentially, ``[u]nlike the claimant who 
files a claim [to initiate judicial forfeiture proceedings], a 
petitioner seeking remission or mitigation of forfeiture does not 
necessarily contest the legitimacy of forfeiture. In fact, under 
remission/mitigation procedures, forfeitability is presumed and the 
petitioner seeks relief from forfeiture on fairness grounds.'' Orallo 
v. United States, 887 F. Supp. 1367, 1370 (D. Haw. 1995). Thus, ``a 
petition for remission is a request for leniency, or an executive 
pardon, based upon the petitioner's representations of innocence or 
lack of knowledge of the underlying unlawful conduct.'' Id.
    Remissions should not be a routine disposition for forfeited items. 
Where items clearly have been acquired, imported, exported, 
transported, or possessed contrary to law, the Solicitor granting 
remission must clearly show both the mitigating circumstances that 
allow the item to be remitted and that the terms and conditions 
attached to return of the item will be reasonable and just. See, e.g., 
16 U.S.C. 1540(e)(5) and 19 U.S.C. 1618.
    Congress has limited the authority to grant remission to those 
factors set out in 19 U.S.C. 1618 (the remission provisions of the 
Customs laws) as those statutory provisions have been incorporated into 
the specific Federal wildlife conservation law under which nonjudicial 
civil forfeiture is pursued. For example, the ESA provides that the 
Customs laws provision regarding seizure and forfeiture (including 
remission) apply to seizures and forfeitures under the ESA only 
``insofar as such provisions of law are applicable and not inconsistent 
with the provisions'' of that Act (16 U.S.C. 1540(e)(5)). Similarly, 
the Lacey Act Amendments of 1981 incorporate the seizure and forfeiture 
(including remission) provisions of the Customs law with the caveat of 
``insofar as such provisions of law are applicable and not inconsistent 
with the provisions of'' that law (16 U.S.C. 3374(b)). Also by way of 
example, the Bald and Golden Eagle Protection Act provides that the 
Customs laws regarding seizure and forfeiture (including remission) 
apply ``insofar as such provisions of law are applicable and not 
inconsistent with the provisions of'' that Act (16 U.S.C. 668b(c)).
    As a consequence of these requirements for consistency with the 
incorporating Federal wildlife conservation law, any consideration of 
remission of forfeiture must not only take into account the factors in 
19 U.S.C. 1618 but also any other applicable Federal wildlife laws. 
This includes, as applicable, U.S. treaty obligations under CITES, 
restrictions on species listed under the ESA as endangered or 
threatened, and obligations under the Lacey Act Amendments of 1981 to 
provide support for other countries' conservation laws.

    Because of this provision, for example, Appendix I remissions are 
disfavored. CITES provides that ``[t]rade in specimens of these 
[Appendix I] species must be subject to particularly strict regulation 
in order not to endanger further their survival and must only be 
authorized in exceptional circumstances'' (CITES art. 2(1); see also 
CITES Res. Conf. 12.3 (Rev. CoP16) recognizing ``the need for Parties 
to be particularly vigilant regarding the issuance of permits and 
certificates for very valuable specimens of species included in 
Appendix I'').
    The CITES parties are directed to enforce the treaty through 
measures including ``confiscation'' of illegally traded specimens 
(CITES art. 8(1); see also CITES Res. Conf. 9.9 ``[T]he seizure and 
confiscation of such specimens are generally preferable to the 
definitive refusal of the import of the specimens . . . .''). Article 
XIV of CITES explicitly recognizes parties' rights to adopt stricter 
national measures to restrict or prohibit trade, taking, possession, or 
transport of any wildlife or plant species, including those listed in 
the CITES Appendices. CITES art. 14(1); see H.L. Justin Co. & Sons, 
Inc. v. Deukmejian, 702 F. 2d 758, 759 n. 2 (9th Cir. 1983) (holding 
that Article XIV showed that CITES did not bar stricter State law); see 
also 50 CFR 23.3 (noting that permit applicants must comply with 
restrictions over and above those imposed by CITES).
    The parties to CITES have observed ``that false and invalid permits 
and certificates are used more and more often for fraudulent purposes 
and that appropriate measures are needed to prevent such documents from 
being accepted'' (CITES Res. Conf. 12.3 (Rev. CoP16)). They recognized 
``the need for Parties to be particularly vigilant regarding the 
issuance of permits and certificates for'' specimens of Appendix I 
species such as leopard trophies. Id.; see also CITES Res. Conf. 11.3 
(Rev. CoP16) (urging parties ``to strictly verify the documents 
originating from [producing] countries''). And they considered ``that 
the retrospective issuance of permits and certificates has an 
increasingly negative impact on the possibilities for properly 
enforcing the Convention and leads to the creation of loopholes for 
illegal trade.'' Id.
    The parties accordingly recommended that: (1) ``Parties refuse to 
accept any permit or certificate that is invalid, including authentic 
documents that do not contain all the required information,'' Id. 
14(d); (2) that export permits ``may not be accepted to authorize 
export . . . except during [their] period of validity,'' Id. 2(g); (3) 
that importing countries ``not accept permits or certificates that were 
issued retrospectively,'' except in limited circumstances'' Id. 13(b); 
and that exporting countries neither ``issue CITES permits . . . 
retrospectively'' nor ``provide exporters . . . with declarations about 
the legality of exports . . . of specimens having left [the] country 
without the required CITES documents,'' Id. 13(a). The Resolutions 
adopted at the Conferences of the Parties to CITES are not inherently 
binding on the United States or other parties, but it is reasonable for 
Federal agencies to rely upon them when implementing CITES. See 
Castlewood Prods., L.L.C. v. Norton, 365 F. 3d 1076, 1084 (D.C. Cir. 
2004). The ESA implements CITES by making it unlawful ``to trade in any 
specimens contrary to the provisions of [CITES], or to possess any 
specimens traded contrary to the provisions of [CITES].'' Id. Sec.  
1538(c)(1). ``Congress implemented the CITES into U.S. law in the 
[ESA].

[[Page 39854]]

The ESA makes it unlawful to `engage in any trade in any specimens,' or 
`possess any specimens traded,' contrary to the provisions of the 
[CITES] and authorizes the Secretary of the Interior to promulgate 
regulations to enforce the ESA. 16 U.S.C. 1538(c)(1) and 1540(f). The 
CITES regulates the trade of those endangered species of fish, 
wildlife, and plants listed in its appendices. See CITES, art. II, 27 
U.S.T. at 1092. The degree of trade regulation under CITES depends on 
the appendix in which a specimen is listed.'' United States v. Norris, 
452 F.3d 1275, 1278 (11th Cir. 2006).
    The ESA also imposes a burden on the holder of a CITES permit to 
affirmatively prove that it is valid. 16 U.S.C. 1539(g). Congress 
acknowledged that forfeiture is an important tool in many illegal 
importation cases. See H.R. Rep. No. 95-1625, at 21 (1978), reprinted 
in 1978 U.S.C.C.A.N. 9453, 9476. CITES favors forfeiture as a remedy 
for illegally traded articles, see art. 8(1)(b), and the parties 
thereto have encouraged its use, see CITES Res. Conf. 9.9 (recognizing 
``that the return by the importing Party to the State of export or re-
export of specimens that have been traded in violation of the 
Convention may result later in such specimens being entered into 
illegal trade unless measures are taken by the Parties concerned to 
prevent this'' and, therefore, finding ``confiscation . . . generally 
preferable''); 72 FR 48415; August 23, 2017 (``To ensure that specimens 
traded in violation of CITES do not re-enter illegal trade, Parties are 
urged to consider seizure of specimens, rather than refusal of entry of 
the shipment''); cf. Austin v. United States, 509 U.S. 602, 621 (1993) 
(``[W]e have recognized that the forfeiture of contraband itself may be 
characterized as remedial because it removes dangerous or illegal items 
from society.'')
    The need to maintain the integrity of the CITES permitting system 
must be considered when evaluating the equities presented in petitions 
and supplemental petitions for remission. Individuals play an important 
role in the CITES permitting system. Foreign exporters must include 
required CITES permits and certificates with their shipments to the 
United States. However, the U.S. importer bears personal responsibility 
for obtaining a valid permit before commencing an activity for which a 
permit is required by 50 CFR part 23 (except as provided under very 
specific situations) and assumes all liability and responsibility for 
the conduct of any activity conducted under the authority of such 
permits. 50 CFR 13.1(a), 13.50. Importantly, the U.S. importer 
initiates the import and, as a consequence, has the ability to exercise 
control over his or her foreign suppliers. Congress clearly intended 
that individual importers bear some penalty in the event that wildlife 
specimens were traded contrary to the provisions of CITES, by providing 
that, among other things, it is illegal for persons subject to the 
jurisdiction of the United States to possess any specimens traded 
contrary to the provisions of CITES and providing for forfeiture of 
``all'' wildlife possessed or imported in violation of ESA's 
prohibition on trade contrary to the provision of CITES. 16 U.S.C. 
1538(c), 1540(e)(4)(A).
    In all instances, remission of forfeiture of wildlife seized by the 
Service may be granted only if the Solicitor's Office finds in response 
to a petition the existence of ``such mitigating circumstances as to 
justify the remission'' and then only under such terms and conditions 
as are deemed ``reasonable and just.'' 19 U.S.C. 1618.
    Section 12.34(e) of these proposed regulations sets out a number of 
mitigating factors that may be considered in determining whether or not 
to grant remission. One of these factors is whether the petitioner has 
taken meaningful steps, including the use of contractual or monetary 
mechanisms, to prevent the violations that occurred. One of the 
relevant considerations in applying this factor to wildlife imports is 
whether the petitioner has undertaken diligent inquiry into the 
compliance capability and record of any foreign supplier. Rewarding 
ignorance of an import violation through remission could discourage the 
diligent inquiry that might have prevented the violation from 
occurring. Other considerations include whether the petitioner has 
attempted to protect his or her interest by placing the risk of 
noncompliance on the supplier in the negotiation of the sales or 
services agreement.
    Notably, the sole purpose of the Sec.  12.34(e) factors is for 
consideration of whether remission should be granted and not for any 
other use, such as application of the ``innocent owner defense'' under 
CAFRA. The factors stated are not intended to be all inclusive and do 
not constitute authority in and of themselves. In all instances, 
however, all remission decisions must be made with due consideration 
for the cumulative conservation impacts of the remission including 
whether the item is an Appendix I, II, or III species under CITES or is 
listed as threatened or endangered under the ESA, whether the violation 
increased the regulatory burden on government agencies, and whether 
remission may have an adverse effect on the integrity of any applicable 
permitting system or may provide an incentive to third parties to avoid 
meeting CITES requirements.
    Section 12.34(e) of these proposed regulations provides examples of 
the type of terms and conditions that may be set for remission. Again, 
these are examples only and are not intended to be all inclusive. In 
all instances, the terms and conditions imposed must be ``reasonable 
and just,'' as required by 19 U.S.C. 1618.
    Section 12.34(e) provides that the Solicitor, at his or her sole 
discretion, may determine to settle completely or partially at the same 
time as remission is granted any civil penalty claim against the 
property owner arising from the owner's violation of Federal wildlife 
conservation laws. Forfeiture proceedings are brought against the 
``guilty property'' itself, and as such are in the nature of an in rem 
proceeding, in which the property is the defendant and not the property 
owner. Importantly, forfeiture does not provide relief from potential 
liability for civil penalties that may be sought from the individuals 
or entities that actually violated the law. To expedite resolution of 
such potential civil liability, proposed Sec.  12.34(e) allows, at the 
sole discretion of the Solicitor, for complete or partial settlement of 
civil penalties provided certain conditions are met. Consistent with 
the purpose of expediting resolution, one of the conditions to civil 
penalty settlement is that the property owner agrees to waive any 
notice of violation and notice of assessment required by 50 CFR part 11 
and the opportunity for a hearing.

Section 12.35--How will the Solicitor notify me of its decision on my 
petition for remission?

    This is a new section derived from the current Sec.  12.24(g). We 
propose to clarify how decisions are made on petitions for remission. 
This new provision makes it clear that you should file a supplemental 
petition only where you have new evidence or evidence that has not 
previously been considered.

Section 12.36--How do I file a claim to get back my seized property?

    We propose to clarify the procedures for filing a claim to get back 
seized property. This proposed rule would also explicitly require that 
a claim include any documentary evidence relied on and that such claims 
are made under penalty of perjury.

[[Page 39855]]

Section 12.37--Can I get my property back while the claim is pending?

    This is a new provision allowing forfeited property to be retained 
while a claim is pending to avoid substantial hardship to the claimant 
provided that the requirements of 18 U.S.C. 983(f) are met.

Section 12.38--What happens if my property is subject to civil judicial 
actions to obtain forfeiture?

    We propose to clarify what happens if property is subject to civil 
actions to obtain forfeiture. This new section describes the process 
for seeking judicial forfeiture under the applicable laws.

Proposed Changes to Subpart D of 50 CFR Part 12--Disposal of Forfeited 
or Abandoned Property

    We are proposing to change the title of subpart D to ``Abandonment 
Procedures.''

Section 12.51--May I simply abandon my interest in the property?

    We propose to clarify how property can be abandoned.

Section 12.52--Can I file a petition for remission for my abandoned 
property?

    If you have agreed to abandon property, then your right to seek 
relief is limited to whatever process expressly was reserved in the 
abandonment document you signed. For example, the Fish and Wildlife 
Abandonment Form (Service Form 3-2096) or U.S. Customs and Border 
Protection forms used to abandon property may state that you are 
abandoning all claim to the property identified in the form and are 
waiving any further rights to proceedings relative to those articles 
other than the right to file a petition for administrative relief 
within a specified time period. Consequently, if you have so agreed to 
abandon your property, then you have no right to file a claim 
requesting judicial forfeiture, but are limited to seeking 
administrative relief within any time periods specified in the signed 
abandonment form.

Proposed Changes to Subpart E of 50 CFR Part 12--Restoration of 
Proceeds and Recovery of Storage Costs

    We are proposing to change the title of subpart E to ``Disposal of 
Forfeited or Abandoned Property.'' This proposed subpart is largely 
based on the regulations in current subpart D.

Section 12.61--What is the purpose of this subpart?

    The purpose of this subpart is to describe the proposed procedures 
the Service will follow for the disposal of forfeited or abandoned 
property. This purpose is unchanged from the current Sec.  12.30.

Section 12.62--How does the Service keep track of forfeited or 
abandoned property?

    This proposed section is only slightly changed from the current 
regulations at Sec.  12.31.

Section 12.63--When may the Service return live fish, wildlife, or 
plants to the wild?

    We propose to clarify when the Service may return live fish, 
wildlife, or plants to the wild. This section is basically unchanged 
from the current regulations at Sec.  12.34.

Section 12.64--How does forfeiture or abandonment affect the status of 
the property?

    This proposed section is intended to make it clear that, although 
the prior illegal status of the property ceases with forfeiture or 
abandonment, any subsequent owner of that property must comply with all 
applicable laws and regulations.

Section 12.65--How does the Service dispose of forfeited or abandoned 
property?

    We propose to clarify how the Service disposes of forfeited or 
abandoned property. This proposed rule makes provision for donation of 
forfeited and abandoned items used in traditional cultural practices to 
members of tribes. Eagle parts and feathers may be donated only to the 
National Eagle and Wildlife Property Repository for allocation through 
that established process.

Section 12.66--How does the Service dispose of seized injurious fish or 
wildlife?

    We propose to clarify how the Service disposes of seized injurious 
fish or wildlife. The section reiterates and clarifies the Service's 
authority to dispose of injurious wildlife and to recover costs 
associated with disposal. Specifically, this new section provides for 
re-export or destruction of injurious species.

Section 12.67--When may the Service donate forfeited or abandoned 
property?

    This section is largely unchanged from current Sec.  12.36, except, 
because of food safety concerns, the Service will no longer donate 
forfeited and abandoned wildlife for human consumption.

Section 12.68--When may the Service loan forfeited or abandoned 
property?

    We propose to clarify when the Service may loan forfeited or 
abandoned property. This section now also makes it clear that 
recipients may not sell loaned fish, wildlife, or plants or their 
offspring.

Section 12.69--When may the Service sell forfeited or abandoned 
property?

    We propose to clarify when the Service may sell forfeited or 
abandoned property. This section is largely unchanged from current 
regulations at Sec.  12.37.

Section 12.70--When may the Service destroy forfeited or abandoned 
property?

    We propose to clarify when the Service may destroy forfeited or 
abandoned property. This proposed section now makes specific provisions 
for destruction of forfeited and abandoned wildlife to happen only in 
compliance with applicable Federal health, safety, and environmental 
laws including disposal of any resulting waste.

Proposed Changes to Subpart F of 50 CFR Part 12--Return of Property

    We are proposing to change the title of subpart F to ``Recovery of 
Storage Costs and Return of Property.''

Section 12.81--When can the Service assess fees for costs incurred by 
the transfer, boarding, handling, or storage of property seized or 
forfeited?

    This proposed section is basically unchanged from the current 
regulations at Sec.  12.42.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written,

[[Page 39856]]

which sections or sentences are too long, the sections where you feel 
lists or tables would be useful, etc.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    The Department has determined that this proposed rule will not have 
a significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial 
regulatory flexibility analysis is not required. A Small Entity 
Compliance Guide is not required.
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, the agency must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (such as small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We have examined this proposed 
rule's potential effects on small entities as required by the 
Regulatory Flexibility Act. Most of the businesses that the Service 
will initiate administrative forfeiture proceedings against would be 
considered small businesses as defined under the Regulatory Flexibility 
Act. These businesses would be located in many different economic 
sectors but would generally fall within the size standards established 
by the Small Business Administration for small businesses.
    We have determined that this action will not have a significant 
economic impact on a substantial number of small entities because the 
purpose of this proposed rule is to make our regulations governing the 
seizure, bonded release, appraisement, administrative proceeding, 
petition for remission, and disposal of items subject to forfeiture 
under laws administered by the Service, consistent with CAFRA. Small 
businesses will actually have more freedom in contesting administrative 
forfeitures if this proposed rule is finalized because CAFRA waived the 
requirement to file a cash bond before filing a claim for property. 
Therefore, we are certifying that, if made final as proposed, this rule 
will not have a significant economic impact on a substantial number of 
small entities and a regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act as it will not have 
an annual effect on the economy of $100 million or more. Moreover, this 
proposed rule will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The changes to the regulations 
contained in this proposed rule will ensure that 50 CFR part 12 
complies with CAFRA, as well as clarifying what procedures are 
available to claim items potentially subject to forfeiture. Finally, 
this proposed rule does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises because foreign-based enterprises are subject to the same 
procedures as U.S.-based enterprises relating to property seized or 
subject to administrative forfeiture under various laws enforced by the 
Service.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), 
this proposed rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required.
    We are the lead agency for enforcing numerous conservation acts and 
executive orders, regulating wildlife trade through the declaration 
process, issuing permits to conduct activities affecting wildlife and 
their habitats, and carrying out U.S. obligations under CITES. No small 
government assistance or impact is expected as a result of this 
proposed rule. The changes to the regulations contained in this 
proposed rule will ensure that 50 CFR part 12 complies with CAFRA, as 
well as clarify what procedures are available to claim items 
potentially subject to forfeiture.
    This proposed rule will not produce a Federal requirement that may 
result in the combined expenditure by State, local, or tribal 
governments of $100 million or greater in any year, so it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. This proposed rule will not result in any combined expenditure by 
State, local, or tribal governments.

Executive Order 12630 (Takings)

    Under Executive Order 12630, this proposed rule does not have 
significant takings implications nor will it affect any 
constitutionally protected property rights. This proposed rule has no 
private property takings implications as defined in Executive Order 
12630 because the Executive Order specifically exempts seizure and 
forfeiture of property for violations of law.

Executive Order 13132 (Federalism)

    Under Executive Order 13132, this proposed rule does not have 
significant Federalism effects. A federalism summary impact statement 
is not required. This proposed rule will not have a substantial direct 
effect on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government because State 
wildlife agencies will forfeit items under their own applicable laws 
and regulations.

Executive Order 12988 (Civil Justice Reform)

    Under Executive Order 12988, the Office of the Solicitor has 
determined

[[Page 39857]]

that this proposed rule does not overly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order. The 
purpose of this proposed rule is to simplify and update our regulations 
regarding seizure and forfeiture of property. Specifically, this 
proposed rule has been reviewed to eliminate errors and ensure clarity, 
has been written to minimize lawsuits, provides a clear legal standard 
for affected actions, and specifies in clear language the effect on 
existing Federal law or regulation.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995, (44 U.S.C. 3501 et seq.). This rule 
would not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. We may 
not conduct or sponsor and you are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    This proposed rule has been analyzed under the criteria of the 
National Environmental Policy Act and 318 DM 2.2 (g) and 6.3 (D). This 
proposed rule does not amount to a major Federal action significantly 
affecting the quality of the human environment. An environmental impact 
statement/evaluation is not required. This proposed rule is 
categorically excluded from further National Environmental Policy Act 
requirements, under 43 CFR 46.210(d), (i). These categorical exclusions 
address policies, directives, regulations, and guidelines that are of 
an administrative, financial, legal, technical, or procedural nature; 
or whose environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis under NEPA.

Endangered Species Act

    Section 7 of the ESA, as amended (16 U.S.C. 1531 et seq.), provides 
that Federal agencies shall ``ensure that any action authorized, funded 
or carried out . . . is not likely to jeopardize the continued 
existence of any endangered species or threatened species or result in 
the destruction or adverse modification of (critical) habitat. . . .'' 
We found that no section 7 consultation under the ESA was required for 
this proposed rule.

Executive Order 13175 (Tribal Consultation) and 512 DM 2 (Government-
to-Government Relationship With Tribes)

    Under the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59 
FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated 
possible effects on federally recognized Indian tribes and have 
determined that there are no adverse effects. Individual tribal members 
are subject to the same procedures as other individuals relating to 
property seized or subject to administrative forfeiture under various 
laws enforced by the Service, except for proposed Sec.  12.65(a)(2), 
which is wholly beneficial to tribal members.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions that significantly 
affect energy supply, distribution, and use. Because this proposed rule 
applies only to U.S. Government administrative forfeiture procedures, 
it is not a significant regulatory action under Executive Order 12866 
and is not expected to significantly affect energy supplies, 
distribution, and use. Therefore, this action is not a significant 
energy action, and no Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 12

    Administrative practice and procedure, Exports, Fish, Imports, 
Plants, Seizures and forfeitures, Surety bonds, Transportation, 
Wildlife.

    For the reasons described above, we propose to revise part 12, 
subchapter B of Chapter I, title 50 of the Code of Federal Regulations 
as set forth below.

PART 12--SEIZURE AND FORFEITURE PROCEDURES

Subpart A--General Provisions
Sec.
12.1 What is the purpose of the regulations in this part?
12.2 What is the scope of the regulations in this part?
12.3 What definitions do I need to know?
12.4 When and how must documents be filed or issued?
12.5 How does the Service handle seizures made by other agencies?
12.6 How does the Service release seized property under a bond?
Subpart B--Notification Requirements
Sec.
12.11 How is personal notification of seizure and proposed 
forfeiture provided?
12.12 How is public notification of seizure and proposed forfeiture 
provided?
12.13 What does a declaration of forfeiture contain?
12.14 What happens if the required notification of seizure and 
proposed forfeiture is not provided?
Subpart C--Forfeiture Proceedings
Sec.
12.31 What are the basic types of forfeiture proceedings
12.32 When may the Service or the Solicitor obtain administrative 
forfeiture of my property?
12.33 How do I file a petition for remission of forfeiture 
requesting the release of my property?
12.34 What are the standards for remission of forfeiture?
12.35 How will the Solicitor notify me of its decision on my 
petition for remission?
12.36 How do I file a claim to get back my seized property?
12.37 Can I get my property back while the claim is pending?
12.38 What happens if my property is subject to civil judicial 
actions to obtain forfeiture?
Subpart D--Abandonment Procedures
Sec.
12.51 May I simply abandon my interest in the property?
12.52 Can I file a petition for remission for my abandoned property?
Subpart E--Disposal of Forfeited or Abandoned Property
Sec.
12.61 What is the purpose of this subpart?
12.62 How does the Service keep track of forfeited or abandoned 
property?
12.63 When may the Service return live fish, wildlife, or plants to 
the wild?
12.64 How does forfeiture or abandonment affect the status of the 
property?
12.65 How does the Service dispose of forfeited or abandoned 
property?
12.66 How does the Service dispose of seized injurious fish or 
wildlife?
12.67 When may the Service donate forfeited or abandoned property?
12.68 When may the Service loan forfeited or abandoned property?
12.69 When may the Service sell forfeited or abandoned property?
12.70 When may the Service destroy forfeited or abandoned property?
Subpart F--Recovery of Storage Costs and Return of Property
Sec.
12.81 When can the Service assess fees for costs incurred by the 
transfer, boarding, handling, or storage of property seized or 
forfeited?

    Authority: 16 U.S.C. 470, 470aaa et seq., 668-668b, 668dd(e)-
(f), 704, 706-707, 712, 718f-718g, 742j-l(d)-(f), 1375-1377, 1382, 
1540, 2401 et seq., 3001 et seq., 3371 et seq., 4201 et seq., 5301 
et seq., 7421; 18 U.S.C. 43, 44, 983, 985; 19 U.S.C. 1602-1624; 28 
U.S.C. 2465(b); 42 U.S.C. 1996; and E.O. 11987, 42 FR 26949.

[[Page 39858]]

Subpart A--General Provisions


Sec.  12.1  What is the purpose of the regulations in this part?

    These regulations provide procedures that govern the seizure and 
administrative forfeiture or abandonment of property, as well as the 
disposal of such property, and the recovery of costs associated with 
handling and storage of seized property under various laws enforced by 
the Service.


Sec.  12.2  What is the scope of the regulations in this part?

    (a) The regulations in this part apply to all property seized or 
subject to administrative forfeiture under any of the following laws:
    (1) The Bald and Golden Eagle Protection Act, 16 U.S.C. 668 et 
seq.;
    (2) The Airborne Hunting Act, 16 U.S.C. 742j-1;
    (3) The Endangered Species Act, 16 U.S.C. 1531 et seq.;
    (4) The Lacey Act, 18 U.S.C. 42;
    (5) The Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.;
    (6) The Rhinoceros and Tiger Conservation Act, 16 U.S.C. 5301 et 
seq.;
    (7) The Antarctic Conservation Act, 16 U.S.C. 2401 et seq.;
    (8) The Paleontological Resources Protection Act 16 U.S.C. 470aaa 
et seq.; and
    (9) The African Elephant Conservation Act, 16 U.S.C. 4201 et seq.
    (b) These regulations apply to the disposal of any property 
forfeited or abandoned to the United States under any of the following 
laws:
    (1) Any of the laws identified in paragraph (a) of this section;
    (2) The National Wildlife Refuge System Administration Act, 16 
U.S.C. 668dd-668ee;
    (3) The Migratory Bird Treaty Act, 16 U.S.C. 704, 706-707, 712 
(MBTA);
    (4) The Migratory Bird Hunting and Conservation Stamp Act, 16 
U.S.C. 718 et seq.;
    (5) The Marine Mammal Protection Act of 1972, 16 U.S.C. 1375-1377, 
1382;
    (6) The Archeological Resources Protection Act, 16 U.S.C. 470 et 
seq.;
    (7) The Native American Graves Protection and Repatriation Act, 16 
U.S.C. 3001 et seq.
    (c) This part applies to all forfeitures administered by the 
Service with the exception of seizures and forfeitures under the 
statutes listed under 18 U.S.C. 983(i). The authority under this part 
to conduct administrative forfeitures derives from the procedural 
provisions of the Customs and Border Protection laws (19 U.S.C. 1602-
1618) where those provisions are incorporated by reference in the 
substantive forfeiture statutes enforced by the Service.


Sec.  12.3  What definitions do I need to know?

    In addition to the definitions contained in parts 10, 14, 17, and 
23 of this chapter, as well as other applicable Federal laws and 
regulations, in this part:
    Abandon means to relinquish to the United States all legal right 
you have to own, claim, or possess property seized by the Service, and 
to forever give up any right, title, and interest in the property and 
waive any further rights or proceedings relative to the property other 
than whatever rights to seek relief expressly were reserved in the 
abandonment document you signed.
    Administrative forfeiture means the process by which property may 
be forfeited by a seizing agency rather than through a judicial 
proceeding. Administrative forfeiture has the same meaning as 
nonjudicial forfeiture, as that term is used in 18 U.S.C. 983.
    Authorized officer means a person or entity who is acting as an 
agent, trustee, partner, corporate officer, director, supervisory 
employee, or any other representative designated to act on behalf of a 
corporation, partnership, or individual asserting that they are an 
interested party.
    Claim means a written declaration regarding property for which the 
Service has proposed forfeiture, that meets the statutory requirements 
of 18 U.S.C. 983(a)(2), including:
    (1) Timely submission;
    (2) Containing required information regarding identification of the 
specific property being claimed;
    (3) Stating the claimant's interest in the property;
    (4) Requesting the initiation of judicial forfeiture proceedings; 
and
    (5) Made under oath subject to penalty of perjury.
    Contraband means any fish, wildlife, or plant that either:
    (1) Is inherently illegal to import, export, or possess; or
    (2) Has been taken, possessed, imported, exported, acquired, 
transported, purchased, sold, or offered for sale or purchase contrary 
to law.
    Declaration of forfeiture means a written declaration by the 
Service or the Solicitor describing the property forfeited and stating 
the date, time, place, and reason for forfeiture. The declaration will 
also describe the date and manner in which notice of seizure and 
proposed forfeiture was sent to the property owner. If notice was never 
successfully sent, the declaration will describe efforts made to 
deliver any notice of seizure and proposed forfeiture.
    Detention means the holding for further investigation of fish, 
wildlife, or plants and any associated property that is neither 
immediately released nor seized but is temporarily held by Service 
officers under 50 CFR part 14.
    Directed re-export means the prompt export at the expense of the 
importer or consignee of imported shipments that have been refused 
entry by the Service into the United States.
    Director means the Director of the United States Fish and Wildlife 
Service, Department of the Interior, or an authorized representative 
(as defined in 50 CFR 10.12).
    Interested party or parties means any person(s) who appears to be a 
person having an interest under the criteria in Sec.  12.11(a), based 
on the facts known to the seizing agency before a declaration of 
forfeiture is entered.
    Other property that is illegal to possess means any fish, wildlife, 
or plants that may not be legally possessed or held due to extrinsic 
circumstances.
    Petition for remission is a request in an administrative forfeiture 
proceeding for the Solicitor to exercise equitable discretion on behalf 
of the Department and to release the property seized. Remission of 
forfeiture is discretionary.
    Property subject to administrative forfeiture means any property of 
the kinds described in 19 U.S.C. 1607(a) to the extent not inconsistent 
with the provisions of the incorporating wildlife laws (identified in 
Sec.  12.2) pursuant to which forfeiture is sought.
    Property subject to forfeiture means all property that Federal law 
authorizes to be forfeited to the United States in any administrative 
forfeiture proceeding, or in any civil judicial forfeiture, or in any 
criminal forfeiture proceeding.
    Solicitor means the Solicitor of the U.S. Department of the 
Interior or an authorized representative or designee.
    Value means the value of property as determined by the Service. For 
property having a legal market in the United States, the Service will 
use the reasonable declared value or the estimated market value at the 
time and place of seizure, if such or similar property was freely 
offered for sale between a willing seller and a willing buyer. For 
property that may not be sold in the United States, the Service will 
use other reasonable means, including, but not limited to, the 
Service's knowledge of sale prices in illegal markets or the 
replacement cost.
    We means the U.S. Fish and Wildlife Service.

[[Page 39859]]

Sec.  12.4  When and how must documents be filed or issued?

    (a) Whenever this part requires or allows you to file a document on 
or before a certain date, you are responsible for submitting that 
document so as to reach the Government office designated for receipt by 
the time specified. You may use the U.S. Postal Service (USPS), a 
commercial carrier, or electronic or facsimile transmission. We will 
consider the document filed on the date on which the document is 
received by the Government office designated for receipt. Acceptable 
evidence to establish the time of receipt by the Government office 
includes any official USPS receipt, commercial carrier signature log, 
time/date stamp placed by the Government on the document, other 
documentary evidence of receipt maintained by that Government office, 
or oral testimony or statements of Government personnel.
    (b) Whenever this part requires or allows the Government to issue 
or file a document on or before a certain date, the document will be 
considered to be issued or filed on the date on which the document was 
placed in the USPS system, delivered to a commercial carrier, or sent 
by electronic or facsimile transmission. Acceptable evidence to 
establish the time of filing or issuance by the Government includes any 
official USPS sender's receipt, commercial carrier receipt log, and 
time/date stamp placed by the government office on the document, other 
documentary evidence of receipt maintained by that office, or oral 
testimony or statements of Government personnel.


Sec.  12.5  How does the Service handle seizures made by other 
agencies?

    (a) If an authorized employee or officer of another Federal or 
State or local law enforcement agency seized your fish, wildlife, or 
plants or other property under any of the laws listed in Sec.  12.2, 
the Service may request the delivery of the seized property to the 
appropriate Special Agent in Charge (SAC), Office of Law Enforcement, 
or to an authorized designee. The addresses for SACs are listed in 
Sec.  2.2 of this subchapter, and telephone numbers are listed in Sec.  
10.22 of this subchapter. The SAC or authorized designee will hold the 
seized fish, wildlife, or plants or other property subject to 
forfeiture and arrange for its proper handling and care. Forfeiture 
proceedings must be initiated by notice to the interested parties 
within 90 days of the date of seizure by the Federal, State, or local 
law enforcement agency.
    (b) If you use any U.S. Customs and Border Protection (CBP) form 
(forms may be amended or superseded) to voluntarily abandon any fish, 
wildlife, or plants or other property subject to forfeiture in lieu of 
Service Form 3-2096, Fish and Wildlife Abandonment Form, the Service 
may request that CBP transfer the property to the Service for final 
disposition.


Sec.  12.6  How does the Service release seized property under a bond?

    (a) When an administrative forfeiture is pending, the Service may 
at its discretion accept an appearance bond or other security from you 
in place of any property authorized for seizure by civil forfeiture 
under any Act listed in Sec.  12.2. If a judicial claim has been filed, 
then early release of property must be handled under the provisions of 
18 U.S.C. 983(f).
    (b) You may post an appearance bond or other security in place of 
seized property only if the Service, at its discretion, authorizes the 
acceptance of the bond or security and the following conditions are 
met:
    (1) You must complete Service Form 3-2095, Cash Bond for Release of 
Seized Property;
    (2) The Service may release your seized property only to you (the 
owner) or your designated representative; and
    (3) Your possession of the property may not violate or undermine 
the purpose or policy of any applicable law or regulation.

Subpart B--Notification Requirements


Sec.  12.11  How is personal notification of seizure and proposed 
forfeiture provided?

    An administrative forfeiture proceeding begins when notice is first 
published in accordance with Sec.  12.12, or the first personal written 
notice is sent in accordance with the regulations in this section, 
whichever occurs first.
    (a) Manner of providing notice. After seizing property subject to 
administrative forfeiture, the Service or the Solicitor, in addition to 
publishing notice of the seizure, will send personal written notice of 
the seizure to each interested party in a manner reasonably calculated 
to reach such parties. The notice of seizure and proposed forfeiture 
will not be sent to any person who signed an abandonment form. The 
notice of seizure and proposed forfeiture will be sent by U.S. 
registered or certified mail, express mail, or commercial carrier, all 
with proof of delivery and return receipt requested. The notice will be 
sent to an address that has been provided on shipping or other 
documents accompanying the property or on your permit or license 
application, unless the Service or the Solicitor has actual notice of a 
different address.
    (b) Content of personal written notice. The personal written notice 
sent by the Service or the Solicitor will contain the following 
information:
    (1) A description of the seized property;
    (2) The name, title, and business address to whom any petition for 
remission or claim for judicial proceedings must be filed, as well as a 
seizure tag number;
    (3) The date and place of seizure, and the estimated value of the 
property as determined under Sec.  12.3;
    (4) A reference to provisions of law or regulations under which the 
property is subject to forfeiture;
    (5) A statement that the Service or the Solicitor intends to 
proceed with administrative forfeiture proceedings;
    (6) The date when the personal written notice is sent;
    (7) The deadline for filing claims for judicial forfeiture 
proceedings, which is 35 days after the personal written notice is 
sent, as well as the deadline for filing petitions for remission; and
    (8) A statement that any interested party may file a claim or 
petition for remission by the deadline.
    (c) Date of personal notice. Personal written notice is sent on the 
date when the Service or the Solicitor places the notice in the mail, 
delivers it to a commercial carrier, or otherwise sends it by means 
reasonably calculated to reach the interested party.
    (d) Timing of notification. The Service or the Solicitor will 
notify you in writing of any seizure of your property as soon as 
practicable and not more than 60 days after the date of seizure. If 
property is detained at an international border or port of entry for 
the purpose of examination, testing, inspection, obtaining 
documentation, or other investigation relating to the importation or 
the exportation of the property, the 60-day period will begin to run 
when the period of detention ends, if the Service seizes the property 
for the purpose of forfeiture to the United States.
    (e) Exceptions to the 60-day notification requirement. The 
exceptions in 18 U.S.C. 983(a)(1), including but not limited to the 
exceptions listed in this paragraph (e), apply to the notice 
requirement under paragraph (d) of this section.
    (1) If the identity or interest of an interested party is 
determined after the seizure of the property but before entering a 
declaration of forfeiture, the Service or the Solicitor will send

[[Page 39860]]

written notice to such interested party under paragraph (a) of this 
section not more than 60 days after the date that the identity of the 
interested party or the interested party's interest is determined.
    (2) For the purposes of this section, we do not consider property 
that has been refused entry, held for identification, held for an 
investigation as evidence, or detained for less than 30 days under part 
14 of this chapter, to be seized.
    (3) If, before the time period for sending notice expires, the 
Government files a civil judicial forfeiture action against the seized 
property and provides notice of such action as required by law, 
personal notice of administrative forfeiture is not required under 
paragraph (a) of this section.
    (4) If, before the time period for sending notice expires, the 
Government does not file a civil judicial forfeiture action, but does 
obtain a criminal indictment containing an allegation that the property 
is subject to forfeiture, the Government shall either:
    (i) Send notice within the 60 days specified under paragraph (a) of 
this section and continue the nonjudicial civil forfeiture proceeding, 
or
    (ii) Terminate the nonjudicial civil forfeiture proceeding and take 
the steps necessary to preserve its right to maintain custody of the 
property as provided in the applicable criminal forfeiture statute.
    (f) Extensions to the 60-day notification requirement. The Director 
may extend the 60-day deadline for sending personal written notice 
under these regulations in a particular case one time, for a period not 
to exceed 30 days, unless further extended by a court, only if the 
Director determines that the notice may have an adverse result 
including endangering the life or physical safety of an individual, 
flight from prosecution, destruction of or tampering with evidence, 
intimidation of potential witnesses, or otherwise seriously 
jeopardizing an investigation or unduly delaying a trial.
    (g) Deadlines for filing a petition for remission. (1) You must 
file your petition for remission within 35 days from the date of the 
delivery of the notice of seizure and proposed forfeiture, if you or 
any interested party receives the notice of seizure and proposed 
forfeiture.
    (2) If you do not receive the notice of seizure and proposed 
forfeiture, the petition for remission that you file must be received 
not later than 30 days from the date of last posting of the public 
notice of the seizure of the property.


Sec.  12.12  How is public notification of seizure and proposed 
forfeiture provided?

    (a) After seizing property subject to administrative forfeiture, 
the Service will select from the following options a means of 
publication reasonably calculated to notify potential claimants of the 
seizure and the intent to forfeit and sell or otherwise dispose of the 
property:
    (1) Publication once each week for at least three successive weeks 
in a newspaper generally circulated in the judicial district where the 
property was seized; or
    (2) Posting a notice on the official government Internet site at 
http://www.fws.gov/fwsforfeiture/ for at least 30 consecutive days.
    (b) The published notice will:
    (1) Describe the seized property;
    (2) State the date, statutory basis, and place of seizure;
    (3) State the deadline for filing a claim when personal written 
notice has not been received, at least 30 days after the date of final 
publication of the notice of seizure; and
    (4) State the name, title, and business address to whom any 
petition for remission or claim for judicial proceedings must be filed.


Sec.  12.13  What does a declaration of forfeiture contain?

    (a) If the seizing agency commences a timely proceeding against 
property subject to administrative forfeiture, and either no valid and 
timely claim is filed or the seized property is not released in 
response to a petition or supplemental petition for remission, the 
Service or the Solicitor will declare the property forfeited to the 
United States for disposition according to law. The declaration of 
forfeiture will have the same force and effect as a final decree and 
order of forfeiture in a Federal judicial forfeiture proceeding.
    (b) The declaration of forfeiture will describe the property and 
state the date, time, place, and reason for the seizure of the 
property. The declaration of forfeiture will make reference to the 
notice of seizure and proposed forfeiture and describe the dates and 
manner in which the notice of seizure and proposed forfeiture was sent 
to you. If we have no proof of delivery to you of the notice of seizure 
and proposed forfeiture, the declaration of forfeiture will describe 
the efforts made to deliver the notice of seizure and proposed 
forfeiture to you.


Sec.  12.14  What happens if the required notification of seizure and 
proposed forfeiture is not provided?

    Under 18 U.S.C. 983(a)(1)(F), if the Service or the Solicitor does 
not send notice of a seizure of property in accordance with that 
section to the person from whom the property was seized, and no 
extension of time was granted, the Government is required to return the 
property to that person, unless the property is contraband or other 
property that is illegal to possess. Any return of property under this 
section does not prejudice the right of the Government to commence a 
forfeiture proceeding at a later time.

Subpart C--Forfeiture Proceedings


Sec.  12.31  What are the basic types of forfeiture proceedings?

    (a) Property seized for violations of the laws identified in Sec.  
12.2 and subject to forfeiture may be forfeited, depending upon the 
nature of the property and the law involved, through criminal 
forfeiture proceedings, civil judicial procedures, or civil nonjudicial 
(administrative) procedures.
    (b) The process used also may be determined in certain 
circumstances by the actions of an interested party. For example, a 
person claiming property seized in a nonjudicial (administrative) civil 
forfeiture proceeding under a civil forfeiture statute may choose to 
file a claim after the seizure rather than to pursue administrative 
relief through a petition for remission of forfeiture.
    (c) A claim that is timely and contains the information required by 
Sec.  12.36 will terminate the administrative proceeding and will cause 
the Service, through the Solicitor, to refer the claim to the U.S. 
Department of Justice with the request that a judicial forfeiture 
action be instituted in Federal court.


Sec.  12.32  When may the Service or the Solicitor obtain 
administrative forfeiture of my property?

    If your fish, wildlife, or plants or other property is subject to 
forfeiture under any Act listed in Sec.  12.2, and it is also property 
subject to administrative forfeiture, the Service or the Solicitor may 
initiate an administrative forfeiture proceeding of the property under 
the forfeiture procedures described in this subpart.


Sec.  12.33  How do I file a petition for remission of forfeiture 
requesting the release of my property?

    (a) If you are an interested party, you may file a petition for 
remission of forfeiture with the Service to return seized property that 
is subject to administrative forfeiture. Upon receiving the petition, 
the Service will refer the petition to the Solicitor to decide whether 
or not to grant relief.
    (b) Any petition for remission of forfeiture must be filed within 
the time

[[Page 39861]]

periods set out in the notice of seizure and proposed forfeiture issued 
under subpart B of this part.
    (c) Petitions for remission of forfeiture must be concise and 
logically presented to facilitate review by the Solicitor. Failure to 
substantially comply with any of the information required by this 
paragraph (c) may be grounds for dismissal of the petition for 
remission. The petition for remission of forfeiture must contain the 
following:
    (1) The name, address, and social security or other taxpayer 
identification number of the person claiming the interest in the seized 
property who is seeking remission.
    (2) The name of the seizing agency, the asset identifier number, 
and the date and place of seizure.
    (3) A complete description of the property.
    (4) A description of the petitioner's interest in the property as 
owner, lienholder, or otherwise, supported by original or certified 
bills of sale, contracts, deeds, mortgages, or other documentary 
evidence.
    (5) A statement containing all of the facts and circumstances you 
rely upon to justify the remission of the forfeiture. If you rely on an 
exemption or an exception to a prohibition under any Act listed in 
Sec.  12.2, you must demonstrate how that exemption or exception 
applies to your particular situation.
    (6) A statement containing all of the facts and circumstances you 
contend support any innocent owner's defense allowed by 18 U.S.C. 
983(d) that you are asserting. No person may assert an innocent owner's 
interest in property that is contraband or other property that is 
illegal to possess. A petitioner has the burden of proving by a 
preponderance of the evidence that the petitioner is an ``innocent 
owner'' as defined in 18 U.S.C. 983(d).
    (7) A statement that the information furnished is, to the best of 
your knowledge and belief, complete, true, and correct and that you 
recognize false statements may subject you to criminal penalties under 
18 U.S.C. 1001.
    (d) In addition to the contents of the petition for remission 
described in paragraph (c) of this section, upon request, the 
petitioner must also furnish the agency with an instrument executed by 
the titled or registered owner and any other known claimant of an 
interest in the party releasing its interest in such property.
    (e) A petition for remission of property subject to administrative 
forfeiture must be addressed to the appropriate office identified in 
the notice of forfeiture.
    (f) Your petition for remission must be signed by you or your 
lawyer. If a lawyer files on behalf of the petitioner, the petition 
must include a signed and sworn statement by the client-petitioner 
stating that:
    (1) The lawyer has the authority to represent you in the 
proceeding;
    (2) You have fully reviewed the petition; and
    (3) The petition is truthful and accurate in every respect to the 
best of your knowledge and belief.
    (g) If the petitioner is a corporation, the petition must be signed 
by an authorized officer, supervisory employee of the corporation, or a 
lawyer representing the corporation, and the corporate seal must be 
properly affixed to the signature.
    (h) In making a decision, the Solicitor will consider the 
information you submit, as well as any other available information 
relating to the matter. If you file a claim to the property, as 
described in Sec.  12.36, the administrative proceeding will be 
terminated and the Solicitor will no longer have the opportunity or 
authority to review or rule on the petition for remission of the 
property.


Sec.  12.34  What are the standards for remission of forfeiture?

    (a) A petition for remission must include evidence that the 
petitioner is either:
    (1) An interested party or owner as defined in this part; or
    (2) That the knowledge and responsibilities of the petitioner's 
representative, agent, or employee are ascribed to the petitioner where 
the representative, agent, or employee was acting in the course of his 
or her employment and in furtherance of the petitioner's business.
    (b) The petitioner has the burden of establishing the basis for 
granting a petition for remission of property, or a reconsideration of 
a denial of such a petition. Failure to provide information or 
documents and to submit to interviews, as requested, may result in a 
denial of the petition.
    (c) The Solicitor will presume a valid seizure and will not 
consider whether the evidence is sufficient to support the seizure in 
determining whether remission should be granted. The Solicitor will 
consider the information you submit, as well as any other available 
information relating to the matter.
    (d) Willful, materially false statements or information, made or 
furnished by the petitioner in support of a petition for remission or 
the reconsideration of a denial of any such petition, will be grounds 
for denial of such petition and possible prosecution for filing of 
false statements.
    (e) The provisions of the remission decision include the following:
    (1) Remission is an equitable remedy and is discretionary with the 
Solicitor.
    (2) The Solicitor may grant remission of property if the Solicitor 
determines that mitigating circumstances justify the remission and then 
only under such terms and conditions as are reasonable and just.
    (i) Mitigating factors that may be considered for the sole and 
limited purpose of remission of forfeiture include, but are not limited 
to, whether:
    (A) The facts demonstrate your honest and good faith intent and 
effort to comply with the law;
    (B) You did not have the ability to prevent the violation;
    (C) No evidence exists that you have engaged in past conduct 
similar to the violation;
    (D) You have taken meaningful steps including enforcement 
mechanisms (e.g., contractual or monetary) to prevent any violations; 
and
    (E) The return of the property combined with imposition of monetary 
and/or other conditions of mitigation in lieu of a complete forfeiture 
will promote the interest of justice.
    (ii) These factors are not intended to be all inclusive and do not 
constitute authority in and of themselves.
    (3) All remission decisions must be made with due consideration for 
the cumulative conservation impacts of the remission including whether:
    (i) The item is an Appendix I, II, or III species under the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES);
    (ii) The item is listed as threatened or endangered under the 
Endangered Species Act (ESA);
    (iii) The violation increased the regulatory burden on government 
agencies; or
    (iv) Remission may have an adverse effect on the integrity of any 
applicable permitting system or may provide an incentive to third 
parties to avoid meeting CITES requirements.
    (4) The Solicitor has the discretion to condition his or her grant 
of remission of the seized property, in whole or in part, on terms and 
conditions that are reasonable and just. The Solicitor further has the 
discretion to grant remission for the limited purpose of directed re-
export to the exporter of record provided that any such re-export 
benefits enforcement and administration of applicable wildlife laws. 
Any terms and conditions of remission will be in

[[Page 39862]]

writing and may include but are not limited to payment of those costs 
and expenses that the United States may, as a matter of applicable law, 
recover for the property.
    (i) Shipment of any released property will be at your sole cost, 
and the risk of loss from such shipment will be your risk.
    (ii) Property for which remission is granted will be released only 
after successful completion of all terms and conditions of remission, 
proper identification of the recipient of the property, and your 
execution of a property receipt provided by the Solicitor or the 
Service acknowledging receipt of the remitted property.
    (5) Any decision to grant remission is separate from and does not 
preclude or otherwise provide relief from civil enforcement against the 
person or persons who committed the violations associated with the 
seizure and proposed forfeiture of the property. To expedite the 
resolution of any civil penalties that may be brought against you under 
the ESA (16 U.S.C. 1531 et seq.), the Lacey Act Amendments of 1981 (16 
U.S.C. 3371 et seq.), or the Bald and Golden Eagle Protection Act (16 
U.S.C. 668 et seq.) in connection with violations involving any 
wildlife for which remission is to be granted, the Solicitor, at his or 
her sole discretion, may give you the opportunity to completely or 
partially settle the civil penalty claim at the same time that 
remission is granted by executing a written agreement setting forth the 
terms and conditions of the civil penalty settlement. Such agreement 
may be included in the written documentation of the terms and 
conditions of the parallel remission of forfeiture provided that:
    (i) The terms and conditions of civil penalty settlement are 
clearly delineated as relating separately and solely to any civil 
penalty claims; and
    (ii) The wildlife owner agrees in writing to waive any notice of 
violation and notice of assessment required by part 11 of this 
subchapter and the opportunity for a hearing as conditions of civil 
penalty settlement.


Sec.  12.35  How will the Solicitor notify me of its decision on my 
petition for remission?

    (a) The Solicitor will notify you in writing of any decision that 
is made to grant a petition for remission or to deny a petition for 
remission or to dismiss the petition for failure to provide the 
information required in this part or to timely file that petition. Any 
such notification will advise you of the reasons for the decision made 
and the options, if any, available to you for addressing the decision.
    (b) In the event that a petition for remission of forfeiture is 
denied, you may file a supplemental petition for reconsideration if you 
have information or evidence not previously considered that is material 
to the basis for the denial or new documentation clearly demonstrating 
that the denial was erroneous. Such supplemental petition must be 
received within 60 days from the date of the Solicitor's notification 
denying the original petition. Only one supplemental petition will be 
allowed. The Solicitor's decision on your petition for remission will 
be the decision for the Service.


Sec.  12.36  How do I file a claim to get back my seized property?

    (a) If you receive a notice of seizure and proposed forfeiture, you 
may file a claim to the property by the deadline stated in the notice 
of seizure and proposed forfeiture. This deadline will be 35 days after 
the notice is mailed.
    (b) If you did not receive a notice of seizure and proposed 
forfeiture, your claim must be received by the appropriate office not 
later than 30 days from the last date of final publication of the 
notice of the seizure of the property.
    (c) A claim does not have to be in any particular form, but your 
claim must be in writing, must identify the specific property being 
claimed, must state your interest in the specific property being 
claimed, and must be made under oath subject to penalty of perjury. We 
will make a claim form available to you upon request.
    (d) Your claim, by itself, will not entitle you or any other person 
to possession of the property. No bond is required to make a claim for 
judicial forfeiture proceedings. Rather, your claim will result in the 
Service referring the case, through the Solicitor, to the Department of 
Justice for civil judicial forfeiture. However, if you request 
possession of the property pending an administrative forfeiture 
decision under Sec.  12.6, you will be required to post a bond under 
Sec.  12.6 if your request is granted. This bond is only required to 
obtain interim possession of the property.
    (e) Your claim must be made under oath by you as the claimant and 
not by an attorney or agent.
    (f) If you are an individual claimant, you must sign the claim.
    (1) If the claimant is a corporation or a form of limited liability 
business entity organized under a State law, an authorized officer or 
supervisory employee of the entity must sign the claim.
    (2) If the claimant is a partnership or limited partnership, any 
general partner may sign the claim.
    (3) If the claimant is a trust, estate, or fiduciary entity, such 
as a person to whom property is entrusted, the chief officer authorized 
by the trust, estate, or fiduciary entity must sign the claim.


Sec.  12.37  Can I get my property back while the claim is pending?

    If you have filed a claim and you think that continued possession 
of the property by the United States during the forfeiture proceeding 
will cause you substantial hardship, you may request under 18 U.S.C. 
983(f) that the Service return the property to you pending the 
resolution of the judicial forfeiture proceeding. In considering 
whether to grant or deny your request, the Service will consider the 
factors set out in 18 U.S.C. 983(f). You must furnish evidence 
substantiating the hardship, and none of the conditions set forth in 18 
U.S.C. 983(f)(8) may apply; for example, the property may not be 
contraband.


Sec.  12.38  What happens if my property is subject to civil judicial 
actions to obtain forfeiture?

    (a) If a claim is filed in the forfeiture proceeding under Sec.  
12.36, the Solicitor will refer the case to the Department of Justice 
to include in a civil forfeiture complaint or in a criminal indictment.
    (b) If you file a claim (as defined in Sec.  12.3) for property 
that is contraband or other property that is illegal to possess (as 
defined in Sec.  12.3), and a judicial forfeiture action is not pursued 
within the required time period, the Solicitor will promptly notify you 
by letter that, if you are still interested in having the property 
returned, you must file a civil judicial action moving for return of 
the property under Rule 41(g) of the Federal Rules of Criminal 
Procedure (FRCP) in the district where the property was seized. The 
Service will also publish this notification to the general public as 
provided for in Sec.  12.12.
    (c) If a court determines, pursuant to FRCP 41(g), that any fish, 
wildlife, or plant is contraband or other property that is illegal to 
possess, the Director will dispose of it as provided in Sec. Sec.  
12.61-12.70. If no motion for return of property is filed as described 
in paragraph (b) of this section within 6 years of the date of 
publication by letter or public notice (whichever is later), the 
Director will deem the property abandoned and will dispose of it as 
provided in Sec. Sec.  12.61-12.70.

[[Page 39863]]

Subpart D--Abandonment Procedures


Sec.  12.51  May I simply abandon my interest in the property?

    You may voluntarily abandon your interest in property to the United 
States by signing a Service Form 3-2096, Fish and Wildlife Abandonment 
Form, or equivalent Federal, State, Tribal, or local form, or by signed 
letter to the Service or the Solicitor saying that you abandon all 
right, title, and interest you have in the property to the United 
States other than whatever right to seek relief (if any) was expressly 
reserved in the abandonment document you signed.


Sec.  12.52  Can I file a petition for remission for my abandoned 
property?

    You may file a petition for remission of abandoned property with 
the Service and seek the return of property you had voluntarily 
abandoned, within the time period described in subpart B. If you have 
agreed to abandon property, your right to seek relief is limited to 
whatever process expressly was reserved in the abandonment document you 
signed.

Subpart E--Disposal of Forfeited or Abandoned Property


Sec.  12.61  What is the purpose of this subpart?

    This subpart contains the provisions under which the Service will 
dispose of any property forfeited or abandoned to the United States.


Sec.  12.62  How does the Service keep track of forfeited or abandoned 
property?

    The Service must account in official records for all property 
forfeited or abandoned under this subpart. These records must include 
the following information:
    (a) A description of the property;
    (b) The date and place of the seizure of the property, if 
appropriate, the seizure tag number, and date of forfeiture or 
abandonment of the property;
    (c) The investigative case file number associated with the 
property;
    (d) The name of any person known to have or to have had an interest 
in the property;
    (e) The date, place, and manner of the disposal of the property;
    (f) The name of the official responsible for the disposal of the 
property; and
    (g) The value of the property.


Sec.  12.63  When may the Service return live fish, wildlife, or plants 
to the wild?

    (a) The Service may release any live member of a native species of 
fish, wildlife, or plant that is capable of surviving in the wild into 
suitable habitat within the historical range of the species in the 
United States, with the permission of the landowner and the State, 
unless that release poses an imminent danger to public health or 
safety, or presents a known threat of disease transmission to other 
fish, wildlife, or plants.
    (b) The Service may transplant any live member of a native species 
of plant that is capable of surviving into suitable habitat on Federal 
or other protected lands within the historical range of the species in 
the United States, with the permission of the appropriate land-
management agency.
    (c) The Service may not return to the wild any live member of an 
exotic, nonnative species of fish, wildlife (including injurious 
wildlife), or plant, within the United States, but may return the 
exotic fish, wildlife, or plant to one of the following countries for 
return to suitable habitat under the provisions of applicable laws, 
including CITES and the domestic laws of that country, if the returned 
species is capable of surviving:
    (1) The country of export, if known, after consultation with and at 
the expense of the country of export; or
    (2) A country that is within the historical range of the species 
and that is a party to CITES (Treaties and Other International Acts 
Series, TIAS 8249) after consultation with and at the expense of that 
country.


Sec.  12.64  How does forfeiture or abandonment affect the status of 
the property?

    (a) After property has been forfeited or abandoned, the prior 
illegal status of the property, due to violations of any Act listed in 
Sec.  12.2 that led to the forfeiture or abandonment of the property, 
is terminated. However, any subsequent holder or owner of the property 
must comply with all prohibitions, restrictions, conditions, or 
requirements that apply to a particular species of fish, wildlife, or 
plant under any Act listed in Sec.  12.2, or any State, including any 
applicable conservation, health, quarantine, agricultural, or Customs 
laws or regulations.
    (b) When releasing property under the provisions of this subpart, 
the Service will prescribe the conditions under which the property may 
be possessed and used and will reserve the right to resume possession 
of the property if it is possessed or used in violation of those 
conditions.


Sec.  12.65  How does the Service dispose of forfeited or abandoned 
property?

    (a) The Service will dispose of any fish, wildlife, or plant 
forfeited or abandoned by one of the following means, unless the item 
is the subject of a petition for remission of forfeiture under Sec.  
12.33 or disposed of by court order (items will be disposed of in order 
of priority listed below):
    (1) Return to the wild, as described in Sec.  12.63(a);
    (2) Transfer for use by the Service, transfer to the National Eagle 
and Wildlife Property Repository or to a tribe, where the item is 
credibly identified as an object of cultural patrimony, or transfer to 
another government agency for official use;
    (3) Donation or loan;
    (4) Sale; or
    (5) Destruction.
    (b) The Service may use forfeited or abandoned fish, wildlife, or 
plants or transfer them to another government agency, including foreign 
government agencies, for official use including, but not limited to, 
one or more of the following purposes:
    (1) Training government officials to perform their official duties;
    (2) Identifying protected fish, wildlife, or plants, including 
forensic identification or research;
    (3) Educating the public concerning the conservation of fish, 
wildlife, or plants;
    (4) Conducting law enforcement operations in performance of 
official duties;
    (5) Enhancing the propagation or survival of a species or other 
scientific purposes;
    (6) Presenting as evidence in a legal proceeding involving the 
fish, wildlife, or plants; or
    (7) Returning the live fish, wildlife, or plants to the wild under 
Sec.  12.63.
    (c) The Service must document each transfer and the terms of each 
transfer.
    (d) The government agency, including foreign government agencies, 
receiving the fish, wildlife, or plants may be required to pay all of 
the costs of care, storage, and transportation in connection with the 
transfer of the fish, wildlife, or plants, from the date of seizure, 
refused entry, or detention, to the date of delivery.
    (e) The Service must dispose of forfeited or abandoned property, 
other than fish, wildlife, or plants, including vehicles, vessels, 
aircraft, cargo, guns, nets, traps, and other equipment, as allowed 
under current Federal property management regulations.
    (f) When disposing of property, the Service must follow the 
following guidelines:
    (1) The Service may dispose of any live fish, wildlife, or plant 
immediately upon order of forfeiture or abandonment of the property, if 
the Service determines that the property is likely to

[[Page 39864]]

perish, deteriorate, decay, waste, or greatly decrease in value if 
maintained by the Service, or if the expense of maintaining that 
property is disproportionate to its value; or
    (2) The Service may dispose of all other property no sooner than 30 
days after an order of forfeiture or abandonment of the property.
    (g) If the property is the subject of a pending petition for 
remission of forfeiture under Sec.  12.35, the Service may not dispose 
of the property until the Solicitor or the Attorney General, pursuant 
to 28 CFR part 9, makes a final decision regarding whether or not 
relief will be granted.


Sec.  12.66  How does the Service dispose of seized injurious fish or 
wildlife?

    (a) The Service will order immediate re-export or destruction of 
any seized injurious fish or wildlife imported or transported in 
violation of our injurious species regulations in part 16 of this 
subchapter.
    (b) The importer, exporter, or transporter will be responsible for 
all costs associated with the re-export or destruction of any seized 
injurious fish or wildlife imported, exported, or transported in 
violation of our injurious species regulations in part 16 of this 
subchapter.
    (c) Any live or dead specimen, part, or product of any fish or 
wildlife species listed as injurious under part 16 of this subchapter 
will be disposed of in a manner that minimizes, to the greatest extent 
practicable, the possibility that additional specimens will be imported 
or transported in violation of our injurious species regulations in 
part 16 of this subchapter.


Sec.  12.67  When may the Service donate forfeited or abandoned 
property?

    (a) The Service may donate forfeited or abandoned fish, wildlife, 
or plants, for scientific, educational, or public display purposes. The 
donation may be made to any person, government agency (including 
foreign government agencies) or public organization, as defined in 
Sec.  10.12 of this chapter. The donee must have the demonstrated 
ability to provide adequate care and security for the fish, wildlife, 
or plants.
    (b) A transfer document between the Service and the person, 
government agency (foreign or domestic), or public organization 
receiving the fish, wildlife, or plants, must be completed before any 
donation of fish, wildlife, or plants takes place. Form SF-123, 
Transfer Order Surplus Personal Property, should be used for transfers 
with agencies or persons outside of the Department of the Interior, and 
Form DI-104, Transfer of Property, should be used for transfers with 
agencies within the Department of the Interior. The donation is subject 
to the following conditions:
    (1) The recipient must state on the transfer document the purpose 
for which the fish, wildlife, or plants will be used.
    (2) Any attempt by the recipient to use the donation for any 
purpose other than that specifically stated on the transfer document 
entitles the Service to immediately repossess the fish, wildlife, or 
plants.
    (3) The recipient may be required to pay all of the costs 
associated with the transfer of the fish, wildlife, or plants, 
including the costs of care, storage, transportation, and return to the 
Service, if applicable.
    (4) The recipient may not sell the fish, wildlife, or plants, or 
their offspring.
    (5) The recipient may be required to show the Form SF-123, DI-104, 
or any other transfer document that was received.
    (6) The recipient is subject to the prohibitions, restrictions, 
conditions, or requirements that may apply to a particular species of 
fish, wildlife, or plant imposed by the laws or regulations of the 
United States or any State, including any applicable health, 
quarantine, agricultural, or Customs laws or regulations.
    (7) Any attempt to retransfer a donation without the prior 
authorization of the Service entitles the Service to immediately 
repossess the fish, wildlife, or plants.
    (8) If the transfer document identifies a time period during which 
the recipient of a donation may not retransfer the donation without 
prior approval of the Service, and an attempt to do so during this 
period is made by the recipient, the Service will be entitled to 
immediately repossess the fish, wildlife, or plants.
    (9) At all reasonable times, upon prior notice, the recipient must 
provide authorized Service officers access to the location where the 
donation is kept for the purposes of inspecting the donation, and all 
associated records pertaining to the donation.
    (10) Any donation is subject to the conditions specified in the 
transfer document, including, without limitation, any time periods, and 
any violation of these specific conditions entitles the Service to 
immediately repossess the fish, wildlife, or plants.
    (c) The Service will not donate live fish, wildlife, or plants for 
human consumption.


Sec.  12.68  When may the Service loan forfeited or abandoned property?

    (a) The Service may loan forfeited or abandoned property, fish, 
wildlife, or plants, for scientific, educational, or public display 
purposes to any person, government agency, including foreign government 
agencies, or public organization, as defined in Sec.  10.12 of this 
subchapter, that demonstrates the ability to provide adequate care and 
security for the fish, wildlife, or plants.
    (b) A transfer document between the Service and the person, 
government agency, including foreign government agencies, or public 
organization receiving the fish, wildlife, or plants must be completed 
before any loan of fish, wildlife, or plants takes place. Form SF-123, 
Transfer Order Surplus Personal Property, should be used for transfers 
with agencies or persons outside of the Department, and Form DI-104, 
Transfer of Property, should be used for transfers with agencies within 
the Department. The loan is subject to the following conditions:
    (1) The recipient must state on the transfer document the purpose 
for which the fish, wildlife, or plants will be used.
    (2) Any attempt by the recipient to use the loan for any purpose 
other than that specifically stated on the transfer document entitles 
the Service to immediately repossess the fish, wildlife, or plants.
    (3) The recipient may be required to pay all of the costs 
associated with the transfer of the fish, wildlife, or plants, 
including the costs of care, storage, transportation, and return to the 
Service, if applicable.
    (4) The recipient may not sell the fish, wildlife, or plants, or 
their offspring.
    (5) The recipient may be subject to a periodic accounting of the 
care and use of the loaned fish, wildlife, or plants.
    (6) The recipient is subject to the prohibitions, restrictions, 
conditions, or requirements that may apply to a particular species of 
fish, wildlife, or plant imposed by the laws or regulations of the 
United States or any State, including any applicable health, 
quarantine, agricultural, or Customs laws or regulations.
    (7) Any attempt to retransfer a loan without the prior 
authorization of the Service entitles the Service to immediately 
repossess the fish, wildlife, or plants.
    (8) If the transfer document identifies a time period during which 
the recipient of a loan may not retransfer the loan without prior 
approval of the Service and an attempt to do so during this period is 
made by the recipient, the

[[Page 39865]]

Service will be entitled to immediately repossess the fish, wildlife, 
or plants.
    (9) At all reasonable times, upon prior notice, the recipient must 
provide authorized Service officers access to the location where the 
loan is kept for the purposes of inspecting the loan, and all 
associated records pertaining to the loan.
    (10) Any loan is subject to the conditions specified in the 
transfer document, including, without limitation, any time periods, and 
any violation of these specific conditions entitles the Service to 
immediately repossess the fish, wildlife, or plants.
    (11) Any loan is in effect for an indefinite period of time unless 
the transfer document specifies a date for returning the loan to the 
Service.
    (12) Any loan remains the property of the United States, and the 
Service may demand the return of the loan at any time, and the 
recipient cannot prevent that return.


Sec.  12.69  When may the Service sell forfeited or abandoned property?

    (a) The Service may sell, or offer for sale, forfeited or abandoned 
fish, wildlife, or plants, except any species, which at the time of 
sale or offer for sale, is:
    (1) Listed in part 10 of this subchapter as a migratory bird 
protected by the Migratory Bird Treaty Act (16 U.S.C. 704, 706-707, 712 
et seq.);
    (2) Protected under the Bald and Golden Eagle Protection Act (16 
U.S.C. 668 et seq.);
    (3) Listed as ``Appendix I'' or ``Appendix II with an annotation'' 
under the Convention on International Trade in Endangered Species (See 
Sec.  23.91 of this chapter.);
    (4) Listed in part 17 of this chapter as ``endangered'' or 
``threatened'' under the Endangered Species Act (16 U.S.C. 1531 et 
seq.);
    (5) Protected under the Marine Mammal Protection Act of 1972 (16 
U.S.C. 1375-1377, 1382);
    (6) Regulated as an injurious species under our injurious species 
regulations in part 16 of this chapter;
    (7) The African elephant (Loxodonta africana or Loxodonta 
cyclotis); or
    (8) Any fish, wildlife, or plant that is prohibited for export by 
the country of origin of the species.
    (b) If the Service chooses to dispose of fish, wildlife, or plants 
by sale, we must do so under current Federal property management 
regulations or Customs laws and regulations, except that the Service 
may sell any fish, wildlife, or plants immediately to the highest 
bidder above the set minimum bid, if the Service determines that the 
fish, wildlife, or plants are likely to perish, deteriorate, decay, 
waste, or greatly decrease in value by keeping, or that the expense of 
keeping the fish, wildlife, or plants is disproportionate to their 
value.
    (c) The Service may transport fish, wildlife, or plants that may 
not be possessed lawfully by purchasers under the laws of the State 
where the fish, wildlife, or plants are held to a State where 
possession of the fish, wildlife, or plants is lawful and the fish, 
wildlife, or plants may be sold.
    (d) Fish, wildlife, or plants purchased at sale are subject to the 
prohibitions, restrictions, conditions, or requirements that apply to a 
particular species of fish, wildlife or plant imposed by the laws or 
regulations of the United States or any State, including any applicable 
conservation, health, quarantine, agricultural, or Customs laws or 
regulations.


Sec.  12.70  When may the Service destroy forfeited or abandoned 
property?

    (a) The Service may destroy fish, wildlife, or plants under the 
provisions set forth in Sec. Sec.  12.65 and 12.66.
    (b) The Service official who performs the destruction of fish, 
wildlife, or plants and a witness must certify the completion of the 
destruction, the method of the destruction, the date of the 
destruction, and the type and quantity of fish, wildlife, or plants 
destroyed.
    (c) The Service will comply with all Federal health, safety, and 
environmental protection laws applicable to the method of the 
destruction of the fish, wildlife, or plants and to the disposal of any 
residue or wastes resulting from the method of the destruction of the 
fish, wildlife, or plants.

Subpart F--Recovery of Storage Costs and Return of Property


Sec.  12.81  When can the Service assess fees for costs incurred by the 
transfer, boarding, handling, or storage of property seized or 
forfeited?

    (a) If any fish, wildlife, plant, or item of evidence is seized or 
forfeited under the ESA (16 U.S.C. 1531 et seq.), you or any person 
whose act or omission was the basis for the seizure will be charged a 
reasonable fee for expenses to the United States connected with the 
transfer, boarding, handling, or storage of the seized or forfeited 
property. If any fish, wildlife, or plant is seized in connection with 
a violation of the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et 
seq.), you or any person convicted or assessed a civil penalty for this 
violation will be assessed a reasonable fee for expenses of the United 
States connected with the storage, care, and maintenance of the 
property.
    (1) Within a reasonable time after seizure or forfeiture, the 
Service may send by registered mail, certified mail, or private 
courier, return receipt requested, a bill for this fee. The bill will 
contain an itemized statement of the applicable costs, together with 
instructions on the time and manner of payment.
    (2) You must make payment under terms of the bill. If you fail to 
pay, you may be subject to collection proceedings under the Federal 
Claim Collection Act, 31 U.S.C. 3711 et seq., as well as the Federal 
Debt Collection Act, 31 U.S.C. 3701 et seq., and the possible refusal 
of clearance of future shipments, and disqualification from receiving 
or exercising the privileges of any Service permit.
    (b) If you object to the costs described in the bill, you may, 
within 30 days of the date on which you received the bill, file written 
objections with the Special Agent in Charge (SAC) for the U.S. Fish and 
Wildlife Service Office of Law Enforcement in the region in which the 
seizure occurred. Upon receipt of the written objections, the SAC will 
promptly review them and, within 30 days, deliver in writing a final 
decision. In all cases, the SAC's decision will constitute final 
administrative action on the matter.

    Dated: June 2, 2016.
Karen Hyun,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-14364 Filed 6-16-16; 8:45 am]
 BILLING CODE 4333-15-P