Forfeiture Procedures Under the Endangered Species Act and the Lacey Act Amendments, 29659-29666 [2013-12048]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 78, Number 98 (Tuesday, May 21, 2013)]
[Proposed Rules]
[Pages 29659-29666]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12048]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 356

[Docket No. APHIS-2007-0086]
RIN 0579-AD50


Forfeiture Procedures Under the Endangered Species Act and the 
Lacey Act Amendments

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Animal and Plant Health Inspection Service is one of the 
agencies that administers the provisions of the Endangered Species Act 
of 1973, as amended (ESA), and the Lacey Act Amendments of 1981, as 
amended, that pertain to plants. We are proposing to update our 
regulations that set forth our forfeiture procedures with regard to 
plants or plant products seized under the authority of the ESA and the 
Lacey Act. The proposed changes would make our regulations conform to 
the requirements of the Civil Asset Forfeiture Reform Act of 2000, 
increase the monetary threshold of those cases proceeding through 
judicial forfeiture, provide for the assessment of storage costs of 
seized property, and make the regulations easier to understand.

DATES: We will consider all comments that we receive on or before July 
22, 2013.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Federal eRulemaking Portal: Go 
to https://www.regulations.gov/#!documentDetail;D=APHIS-2007-0086-0001.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2007-0086, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at https://www.regulations.gov/#!docketDetail;D=APHIS-2007-
0086 or in our reading room, which is located in Room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. John C. Veremis; National CITES 
Coordinator; PPQ, APHIS, 4700 River Road, Unit 52, Riverdale, MD 20737; 
(301) 851-2347.

SUPPLEMENTARY INFORMATION: 

Background

    The Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 
1531 et seq.), was passed to prevent the extinction of native and non-
native animals and plants by providing measures to help alleviate the 
loss of species and their habitats. With certain exceptions, the ESA 
prohibits activities with these protected species unless authorized by 
a permit from the U.S. Department of the Interior's Fish and Wildlife 
Service. The Convention on International Trade in Endangered Species of 
Wild Fauna and Flora (CITES, 27 U.S.T. 1087) is implemented in the 
United States through the ESA. CITES is a multinational agreement that 
entered into force on July 1, 1975, to prevent species of wild animals 
and plants from becoming endangered or extinct because of international 
trade. The CITES treaty is currently signed by 176 countries. It 
regulates international trade in specimens of wild animals and plants 
in order to protect against over-exploitation. Regulations implementing 
CITES for both wildlife and plants have been promulgated by the 
Division of Management Authority located within the U.S. Department of 
Interior, Fish and Wildlife Service. These regulations are found at 50 
CFR parts 13, 17, and 23. The Animal and Plant Health Inspection 
Service (APHIS) of the U.S. Department of Agriculture, as well as the 
Office of Law Enforcement of the U.S. Fish and Wildlife Service of the 
Department of Interior, enforces those regulations with regard to plant 
imports.
    Species regulated under CITES are listed in one of three appendices 
to CITES. Species listed in Appendix I are subject to the most 
restrictions and species listed in Appendix III are subject to the 
fewest. Depending upon the appendix in which the species is listed, its 
trade is controlled through the issuance of various permits or 
certificates by the exporting and/or importing countries' management 
authorities. When a CITES-regulated species is imported into the United 
States, it must be accompanied by the required permit or certificate. 
If it is not, the commodity is subject to seizure by, and forfeiture 
to, the U.S. Government. APHIS, as part of its enforcement work, 
initiates, with the assistance of other agencies, seizures at U.S. 
ports of entry, of plants and plant products imported in violation of 
CITES. APHIS initiates approximately 100 seizures each year for CITES-
regulated products imported without the proper CITES documentation. 
Wood, wood products, medicinal items, and live plants constitute the 
bulk of property that has been seized in the past. The seizures of 
these commodities are governed by the forfeiture regulations currently 
found in APHIS' regulations in 7 CFR part 356, which are the subject of 
this proposed rule.
    The current procedures in part 356 also apply to seizures by APHIS 
authorized by the Lacey Act Amendments of 1981, as amended (16 U.S.C. 
3371 et seq.) (Lacey Act). The Lacey Act is the United States' oldest 
wildlife protection statute. It was first enacted in 1900 and was 
significantly amended in 1981. The Lacey Act combats trafficking in 
``illegal'' wildlife, fish and plants. The Food, Conservation, and 
Energy Act of 2008, effective May 22, 2008, amended the Lacey Act by 
expanding its protection to a broader range of plants and plant 
products. The Lacey Act makes it unlawful to import, export, transport, 
sell, receive, acquire, or purchase in interstate or foreign commerce 
certain plants taken, possessed, transported or sold in violation of 
the laws of a U.S. State or any foreign law that protects plants. It 
also makes it unlawful to import, export, transport, sell, receive, 
acquire or purchase certain plants taken, possessed, transported or 
sold, in violation of the laws of the United States or an Indian tribe. 
The Lacey Act also makes it unlawful to make or submit any false 
record, account, or label for, or any false identification of, any 
plant that has been or is intended to be moved in interstate or foreign 
commerce. Additionally, certain plants and plant products must be 
accompanied at the time of importation with a declaration providing, in 
part, the scientific name of the plant and where the plant was 
harvested. The

[[Page 29660]]

Lacey Act authorizes the seizure of plants and plant products that are 
traded contrary to the Lacey Act. The proposed forfeiture procedures 
described below would apply to these types of seizures when conducted 
by APHIS.
    Another statute bearing on our forfeiture regulations is the Civil 
Asset Forfeiture Reform Act of 2000 (CAFRA, 18 U.S.C. 983). CAFRA was 
enacted to provide a more just and uniform procedure for Federal civil 
forfeitures. Among other things, CAFRA enacted time requirements 
spanning from the point of seizure to the effective date of forfeiture. 
CAFRA also eliminated the requirement that a property owner post a bond 
in order to be able to file a claim.
    Because our forfeiture regulations in part 356 predate CAFRA, we 
are proposing to revise those regulations to bring them into conformity 
with CAFRA requirements. In addition, we are proposing to amend the 
requirements for determining the value of seized property, to increase 
the monetary threshold of those cases proceeding through judicial 
forfeiture, to provide for the assessment of storage costs of seized 
property, and to make the regulations easier to understand. A section-
by-section analysis of the proposed changes follows.

Definitions

    The existing regulations in part 356 do not include a section in 
which key terms used in the regulatory text are defined. In proposed 
Sec.  356.1, we would define the applicable terms used in the 
regulatory text of the proposed regulations. These proposed definitions 
would be in accordance with the way the terms are defined in our 
existing regulations.
    We would define the person and the program responsible for 
enforcing the proposed rule, namely the Administrator and Plant 
Protection and Quarantine. Specifically, we would define Administrator 
as the Administrator, Animal and Plant Health Inspection Service, U. S. 
Department of Agriculture, or any other person authorized to act for 
the Administrator. This proposed definition is consistent with the 
definition of Administrator that we employ elsewhere in the 
regulations. We would define Plant Protection and Quarantine (PPQ) as 
the Plant Protection and Quarantine program of the Animal and Plant 
Health Inspection Service, U.S. Department of Agriculture, or any 
agency delegated to act in its place.
    We would define the property that could be seized under the 
proposed rule. Property would be defined as any plant, plant product, 
equipment or means of transportation seized under the authority of the 
ESA or the Lacey Act.
    We would define the two types of forfeiture actions that could 
occur under the proposed regulations. We would define administrative 
forfeiture as a forfeiture action initiated by the Administrator. A 
judicial forfeiture would be defined as a forfeiture action initiated 
in a U.S. District Court.
    We would define the components of notices of proposed forfeiture 
and notices of seizure. Specifically, we would define notice of 
proposed forfeiture as a document alerting someone with an ownership 
interest in property valued at less than $15,000 of PPQ's initiation of 
an administrative forfeiture action. Notice of seizure would be defined 
as a document alerting an owner that PPQ has taken custody of certain 
property. The notice would set forth when and where the property was 
seized, a description of the property, the reason for seizure, and the 
determined value of the property.
    We would define the three written requests that may be filed to 
request the return of seized property, to request that the forfeiture 
cease or be mitigated, and to effectuate relinquishment of property. 
Claim would be defined as a written request to the Administrator for 
the return of property that is the subject of an administrative 
forfeiture action. The definition would further state that submittal of 
a claim in an administrative forfeiture action mandates that the matter 
proceed through judicial forfeiture. A petition for remission or 
mitigation of forfeiture would be defined as a written request to the 
Administrator that the proposed forfeiture not be completed, or in the 
alternative, be mitigated. Waiver of title would be defined as the 
divestiture of an owner's right, title, and interest in the property to 
the United States. If a waiver is signed, the United States becomes the 
owner of the property and the signatory is relinquishing all right, 
title and interest in the property. Signing a waiver of title would 
eliminate the need for administrative or judicial forfeiture 
proceedings, since, upon signature, the property would become that of 
the United States.

Scope of the Regulations

    Proposed Sec.  356.2 would outline the scope of the regulations. 
Specifically, the section would state that the regulations set forth 
the procedures relating to the forfeiture of any property that is 
seized by APHIS under the authority of the ESA and the Lacey Act by the 
Administrator and that is in PPQ's active or constructive custody. This 
proposed section is consistent with the corresponding section in the 
existing regulations.

Determination of Property Value

    Current Sec.  356.2, which pertains to appraisement of seized 
property, states that if the property may be lawfully sold in the 
United States, its value shall be determined by ascertaining the price 
at which the property or similar property in the ordinary course of 
trade is freely offered for sale at the time of appraisement, and at a 
principal market as close as possible to the place of appraisement. The 
section further states that if the property may not lawfully be sold in 
the United States, the value thereof shall be determined by other 
reasonable means.
    Under this proposed rule, Sec.  356.3 would provide for the manner 
in which the Administrator determines the value of seized property. To 
simplify and streamline our procedures, we are proposing that the value 
would be the amount shown on the import's associated invoice. We 
understand that by using this amount, we would likely undervalue the 
seized commodity. We have taken this factor into account in determining 
when a forfeiture should proceed administratively versus judicially. 
Judicial forfeiture would apply to property of greater value, i.e., 
$15,000 or higher. In the uncommon event that an invoice is 
unavailable, or if the invoice is determined by the Administrator not 
to represent a reasonable value, the value of the property would be 
determined by ascertaining the price at which similar property is 
offered for sale at or as near as possible to the time and place of 
seizure.

Notice Upon Seizure; Distribution of Forms

    Proposed Sec.  356.4 concerns the notice of seizure and the 
distribution of forms upon seizure. Some of the requirements contained 
in this section are incorporated from the existing regulations, but we 
are also proposing amendments to conform to current practice or to 
comply with CAFRA.
    Proposed paragraph (a) states the purpose of a notice of seizure, 
when it is to be completed, and the elements to be included. A notice 
of seizure would be completed by PPQ when the property is seized and 
would alert the property owner of the seizure. The notice would include 
information on when and where the property was seized, a description of 
the property, the reason for seizure, and the property's value. These 
provisions

[[Page 29661]]

are incorporated from the existing regulations.
    Proposed paragraph (b) provides that the notice be posted at the 
port office of the seizing agency for 35 calendar days. The existing 
regulations also provide for public posting of the notice; however, we 
are proposing to increase the duration of the posting from 21 to 35 
days. If the property is valued at less than $15,000, administrative 
forfeiture proceedings would be commenced, and a notice of proposed 
forfeiture would be posted with the notice of seizure. Under the 
existing regulations, administrative forfeiture applies to property 
valued at under $10,000. Property valued at $10,000 or more is subject 
to judicial forfeiture. We are proposing to raise the threshold for 
judicial forfeiture to $15,000 in order to account for inflation and to 
allow for the most cost-effective use of the U.S. Attorney's resources 
in pursuing judicial forfeiture cases. We welcome comment on raising 
the threshold for judicial forfeiture up to $500,000.
    Proposed paragraph (c) provides that if the owner of the property 
is present when property is seized for forfeiture, the owner would be 
given a copy of the notice of seizure; a form providing for a waiver of 
title; a form providing for the petition for remission or mitigation of 
forfeiture; and, if the property is valued at less than $15,000, a copy 
of the notice of proposed forfeiture and a form providing for the 
filing of a claim. This proposed paragraph would codify in the 
regulations procedures that are already being employed in the field.
    In the alternative, if the owner of the property is not present, 
proposed paragraph (d) would provide that all applicable notices and 
forms be sent by certified or registered mail, return receipt 
requested, to the owner and to any other persons having an interest in 
the property. The forms would be mailed not more than 60 calendar days 
after the date of seizure. The proposed 60-day notice of seizure is 
incorporated from CAFRA.

Waiver of Title

    Proposed Sec.  356.5 provides for a waiver of title. Under the 
existing regulations, such a waiver, referred to as a waiver of 
forfeiture, occurs when an owner voluntarily decides not to challenge 
the forfeiture of his or her property and instead to divest the 
property to the United States. The owner must sign a statement 
indicating that he or she is waiving his or her rights to any 
procedures relating to the forfeiture. Under this proposed rule, we 
would continue to allow for the waiver of forfeiture proceedings. We 
would use the term waiver of title, however, which we view as more 
precise than waiver of forfeiture. Provided that the value of the 
property does not exceed $500,000, in which case judicial forfeiture 
would be required, the owner of the seized property may waive his or 
her title to the property by submitting a waiver of title form to the 
port office of the seizing agency or to the Administrator. Once the 
form has been submitted, all right, title, and interest in the property 
would be forfeited to the United States, thus eliminating the need for 
any further action by the Administrator with regard to the forfeiture.

Judicial Forfeiture; Property Valued at $15,000 or Greater

    Proposed Sec.  356.6 would elevate the current monetary threshold 
for a case to be referred to a U.S. Attorney's Office for institution 
of judicial forfeiture in U.S. District Court. Currently, property 
having a retail value over $10,000 will proceed through judicial 
forfeiture. We propose that the value be increased to $15,000, as 
discussed above, in order to account for inflation and to allow for the 
most efficient use of the U.S. Attorney's resources. Also, as discussed 
earlier, appraisement of the value of the property would be based upon 
the readily accessible invoice price, which presumably would be below 
retail value. We anticipate that more cases will fall below the $15,000 
threshold and, consequently, be forfeited administratively. We welcome 
comment on raising the threshold for judicial forfeiture up to 
$500,000, which would likely result in even more cases being forfeited 
administratively.

Administrative Forfeiture; Property Valued at Less Than $15,000

    Proposed Sec.  356.7 sets forth the administrative forfeiture 
procedure for property valued at less than $15,000.
    Proposed paragraph (a) relates to the notice of proposed 
forfeiture, which alerts any interested party that PPQ is initiating an 
administrative forfeiture action. Proposed paragraph (a)(1) states that 
the notice of seizure referred to in Sec.  356.4 shall be accompanied 
by a notice of proposed forfeiture but also indicates that the two 
notices may be consolidated into one document.
    Proposed paragraph (a)(2) indicates that the notice would have to 
include information on when and where the property was seized, a 
description of the seized property, including its value, and the reason 
for seizure. The notice would indicate that interested parties would 
have the option to file a petition for remission or mitigation of 
forfeiture. The notice also would provide that unless a claim is filed, 
the property will be forfeited to the United States. Lastly, the notice 
would indicate the time period allowed for filing a claim. If a claim 
were to be filed, the administrative forfeiture would cease and, 
instead, the matter would be referred for judicial forfeiture. The 
proposed requirements pertaining to the notice are incorporated from 
the existing regulations.
    Proposed Sec.  356.7(b) states that, in the absence of a claim, 
forfeiture would occur 36 calendar days after the owner was handed or 
mailed the notice of seizure and proposed forfeiture. In the event that 
the notice of seizure and proposed forfeiture was not received (as 
indicated by return of the notice sent by certified or registered 
mail), the property would be forfeited to the United States in 66 
calendar days, which is 31 calendar days after the date the notice of 
seizure is no longer required to be posted. These proposed timeframes 
stem from the time requirements to file a claim, as enacted by CAFRA. 
Once property is forfeited to the United States, the owner would no 
longer have any right or title to, or interest in, the property.
    Proposed Sec.  356.7(c)(1) states that although the administrative 
forfeiture is effective upon the conclusion of the time period 
specified in proposed paragraph (b) and that no other action would be 
required, PPQ nonetheless would complete a declaration of forfeiture. 
Proposed paragraphs (c)(2) and (c)(3) set forth the type of information 
that is to be included in the declaration and how (certified or 
registered mail) and to whom (the owner and any other persons known by 
the Administrator to have an interest in the property) the declaration 
is mailed. These proposed requirements closely parallel the ones 
pertaining to notices of seizure and forfeiture and are adapted from 
the existing regulations.
    Proposed Sec.  356.7(d) addresses how a claim may be filed to 
contest the forfeiture of property valued at less than $15,000. 
Proposed paragraph (d)(1) states that a document would be considered to 
be a claim only when it is clearly labeled with the word ``Claim,'' 
identifies the specific property being claimed, states the claimant's 
interest in the property, and is made under oath and subject to penalty 
of perjury. These proposed requirements would conform to CAFRA's 
description of what items shall be included in a claim. Proposed 
paragraph (d)(2) would state that the claim must be filed with the 
Administrator via the National CITES Coordinator located in Riverdale, 
MD. The claim would be considered

[[Page 29662]]

``filed'' when it is received by the National CITES Coordinator. It 
would have to be filed within 35 calendar days after the notice of 
seizure had either been personally handed or mailed to the owner. If 
the owner did not receive the notice of seizure, then the claim may be 
filed within 65 calendar days of seizure, which is 30 calendar days 
after the date the notice of seizure is no longer required to be 
posted. These proposed timeframes are in compliance with CAFRA. 
Proposed paragraph (d)(3) states that if a claim is filed, the 
administrative forfeiture is terminated, and the matter will be 
referred to the U.S. Attorney's Office for the district in which the 
property was seized for institution of judicial forfeiture in U.S. 
District Court. These procedures are incorporated from the existing 
regulations. To make the regulations compliant with CAFRA, however, the 
proposed paragraph would not include the existing requirement that a 
claimant post a bond in order to be eligible to contest a forfeiture.

Petition for Remission or Mitigation of Forfeiture

    Proposed Sec.  356.8 sets forth the procedures with regard to 
filing a petition for remission or mitigation of administrative 
forfeiture. The petition is a written request to the Administrator that 
the proposed forfeiture not be completed, or in the alternative, be 
mitigated.
    As in the corresponding section of the existing regulations, 
proposed paragraph (a) would provide that any person who has an 
interest in the property may file a petition for remission or 
mitigation of forfeiture. The proposed paragraph clarifies the 
procedures for submitting such a petition by providing an address. The 
petition is to be filed with the Administrator by submitting it to the 
National CITES Coordinator in Riverdale, MD. It is considered ``filed'' 
when it is received by the National CITES Coordinator.
    Proposed paragraph (b) describes the information required for a 
petition, namely that it be marked ``Petition for Remission or 
Mitigation of Forfeiture'' and contain a description of the property, 
when and where it was seized, evidence of the petitioner's interest in 
the property, and all facts and circumstances relied upon by the 
petitioners to justify remission or mitigation of forfeiture. These 
requirements are incorporated from the existing regulations.
    Proposed paragraph (c) states that the petition shall be signed by 
the petitioner or the petitioner's attorney under oath and upon penalty 
of perjury. If the petitioner is a business, the petition shall be 
signed by a partner, officer, or the petitioner's attorney under oath 
and upon penalty of perjury. These requirements are incorporated from 
the existing regulations.
    Proposed paragraph (d) provides that the Administrator would decide 
whether to grant relief. In making the decision, he or she would 
consider the petitioner's submission and any other available 
information relating to the matter. The Administrator also is 
authorized to take testimony. This paragraph is also incorporated from 
the existing regulations.
    Proposed paragraph (e) states that if the Administrator finds that 
there are mitigating circumstances justifying remission or mitigation, 
the Administrator may remit or mitigate with terms and conditions as he 
or she deems reasonable and just. However, remission or mitigation will 
not be granted if such action would frustrate the purposes of the act 
under which authority the property had been seized. As an example, 
remission or mitigation typically will not be granted with respect to 
plants that are without documentation required by CITES. This paragraph 
is also incorporated from the existing regulations, albeit with some 
minor editorial changes.
    Proposed paragraphs (f) through (h) provide that the Administrator 
shall notify the petitioner in writing whether the petition was granted 
or denied, and the reason for the decision. The notification would be 
sent by registered or certified mail, return receipt requested. If the 
petition is denied fully or in part, the petitioner may file a 
supplemental petition within 14 calendar days from the date the 
petitioner received the denial. The Administrator would notify the 
petitioner in writing as to whether the supplemental petition was 
granted or denied and would provide the reason for the decision. The 
Administrator's decision would be discretionary and unreviewable. If a 
petition is received within 30 calendar days of the initial posting of 
a notice of seizure, the applicable property would not be forfeited 
until the Administrator makes his or her initial determination on the 
petition. These procedures do not differ substantively from the ones in 
the existing regulations, except for the insertion of specified time 
periods and for the statement clarifying the point that the 
Administrator's decision is discretionary and unreviewable.
    Proposed paragraph (i) makes clear that submitting a petition for 
property valued at less than $15,000 does not trigger the matter's 
being referred for judicial forfeiture. In order for the administrative 
forfeiture to be terminated and the matter referred for judicial 
forfeiture, a claim must be filed in accordance with Sec.  356.7(d).

Storage and Care; Recovery of Costs

    The existing regulations provide that seized property shall be 
stored and, if living maintained and cared for, in a place determined 
by the Administrator to be most appropriate and convenient with due 
regard to the expense involved. The regulations do not, however, 
provide for the recovery of these costs by APHIS. The cost of 
transporting, storing, caring for, maintaining, and disposing of seized 
property is staggering, and we are unable to continue to assume this 
financial burden.
    Proposed Sec.  356.9, therefore, would provide for the recovery of 
these costs. Proposed paragraph (a) provides that the Administrator 
determines where the seized property will be stored or maintained, as 
do the existing regulations. Proposed paragraph (b) stipulates who will 
be responsible for handling, maintenance, and storage costs associated 
with seized property. If the property is seized and forfeited under the 
ESA, by statute any person whose act or omission was the basis for the 
seizure would be responsible for the cost of the transfer, board, 
handling, or storage of such property. If the property is seized with 
regard to a violation of the Lacey Act, by statute any person convicted 
or assessed a civil penalty thereof, would be responsible for the cost 
of the storage, care, and maintenance of the property at issue in the 
violation. These regulations reflect those provisions. Proposed 
paragraph (c) states that APHIS shall send to the responsible party an 
itemized invoice for the amount of the expenses and include 
instructions on the time and manner of payment. Proposed paragraph (d) 
allows for the recipient of the invoice to file a written objection, 
provided it is filed within 30 calendar days of the date upon which the 
invoice is received. An objection is deemed ``filed'' when it is 
received by the National CITES Coordinator in Riverdale, MD. Finally, 
proposed paragraph (e) states that the Administrator will promptly 
review the objections and mail his or her final decision to the party 
who filed the objection. That decision would constitute the final 
administrative action on the matter.

[[Page 29663]]

Disposal of Property

    The existing regulations do not set forth requirements for disposal 
of seized property. Proposed Sec.  356.10 would contain such 
requirements. The section would provide that upon a waiver of title or 
upon forfeiture, the property would be disposed of in a manner that is 
most convenient, appropriate, and in accordance with law. Additionally, 
the person responsible for the violation that was the basis of the 
seizure would not benefit from the disposal. This proposed provision 
would prevent the violator from attempting to repurchase the property 
if the Government, after gaining title to the property, subsequently 
auctions it.

Computation of Time

    Lastly, proposed Sec.  356.11 makes clear that the references in 
part 356 to ``calendar days'' mean that Saturdays, Sundays, and Federal 
holidays are included in computing the time allowances for meeting the 
various time-sensitive requirements, such as for filing a claim, 
described above; however, if time requirements expire on a Saturday, 
Sunday, or Federal holiday, the time period is extended to the next 
business day. The requirements contained in this section are 
incorporated from the existing regulations.

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

    This proposed rule has been determined to be significant for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget.
    We have prepared an economic analysis for this rule. The economic 
analysis provides a cost-benefit analysis, as required by Executive 
Orders 12866 and 13563, which direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, and equity). Executive Order 13563 emphasizes the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility. The economic analysis 
also examines the potential economic effects of this rule on small 
entities, as required by the Regulatory Flexibility Act. The economic 
analysis is summarized below. Copies of the full analysis are available 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).
    This proposed rule would amend the forfeiture regulations in 7 CFR 
part 356. Among other things, the proposed rule would change the basis 
for appraising the value of seized property; increase the monetary 
threshold of seized items requiring judicial forfeiture from $10,000 to 
$15,000; provide for the assessment and recovery of the costs of 
transferring, storing, caring for and maintaining seized plants and 
plant products; and prohibit a violator from attempting to buy the 
unlawfully imported item if it is sold at auction by APHIS.
    Among the expected benefits of this proposed rule is that 
forfeiture provisions would be made easier to understand by importers 
and the general public than are the current ones. An example is the 
proposed streamlining of the appraisal process for seized property. 
Under this proposed rule, the value of the property would be that shown 
on the imported item's invoice, which is a much simpler formula for 
determining value than that specified under the current regulations.
    The increase in the threshold value for judicial forfeiture would 
allow for more efficient use of U.S. Attorney resources. We anticipate 
that more cases will proceed through administrative forfeiture, rather 
than judicial, as a result of this proposed change.
    This proposed rule would also relieve APHIS and U.S. taxpayers of 
the financial burden associated with the transfer, storage, care, and 
maintenance of seized property by requiring the person whose act or 
omission was the basis for the seizure to bear these costs.
    Costs of the proposed rule would be minimal. Because the threshold 
for a case proceeding through judicial forfeiture would be raised from 
$10,000 to $15,000, there would be more cases proceeding through 
administrative forfeiture. However, any additional demands on 
administrative resources are expected to be manageable, and would not 
represent a net increase in costs for the Federal Government. Costs 
incurred with regard to the transfer, storage, care, and maintenance 
costs of seized property would be appropriately directed from the 
Federal Government to persons responsible for violating the ESA or 
Lacey Act.
    It is clear that most entities covered by the proposed rule are 
considered small, as most importers are considered small. However, the 
only entities affected would be ones that violate the Endangered 
Species Act or the Lacey Act, such as by attempting to import illegal 
plants or submitting false records for plant or plant product imports. 
The majority of the imports are consistent with these Acts.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This proposed rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). The information collection or recordkeeping 
requirements included in the regulations that would be amended by this 
proposed rule have been approved by the Office of Management and Budget 
(OMB) under OMB control numbers 0579-0076 and 0579-0349.

List of Subjects in 7 CFR Part 356

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Law enforcement, Plants (agriculture), 
Reporting and recordkeeping requirements, Seizures and forfeitures.


0
Accordingly, we propose to revise 7 CFR part 356 to read as follows:

PART 356--FORFEITURE PROCEDURES

Sec.
356.1 Definitions.
356.2 Property subject to forfeiture procedures.
356.3 Determination of property value.
356.4 Notice upon seizure; distribution of forms.
356.5 Waiver of title.
356.6 Judicial forfeiture; property valued at $15,000 or greater.
356.7 Administrative forfeiture; property valued at less than 
$15,000.
356.8 Petition for remission or mitigation of forfeiture.

[[Page 29664]]

356.9 Storage; recovery of costs.
356.10 Disposal of property.
356.11 Computation of time.

    Authority:  16 U.S.C. 1540(f); 16 U.S.C. 3374; 7 CFR 2.22, 2.80, 
and 371.3.


Sec.  356.1  Definitions.

    Administrative forfeiture. A forfeiture action initiated by the 
Administrator.
    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, U.S. Department of Agriculture, or any other person 
authorized to act for the Administrator.
    Claim. A written request to the Administrator for the return of 
property that is the subject of an administrative forfeiture action. 
Submittal of a claim in an administrative forfeiture action mandates 
that the matter proceed through judicial forfeiture.
    Judicial forfeiture. A forfeiture action initiated in a U.S. 
District Court.
    Notice of proposed forfeiture. A document alerting someone with an 
ownership interest in property valued at less than $15,000 that Plant 
Protection and Quarantine is initiating an administrative forfeiture 
action against that property.
    Notice of seizure. A document alerting someone with an ownership 
interest in property that Plant Protection and Quarantine has taken 
custody of that property. The notice sets forth when and where the 
property was seized, a description of the property, the reason for 
seizure, and the determined value of the property.
    Petition for remission or mitigation of forfeiture. A written 
request to the Administrator that the proposed forfeiture not be 
completed, or in the alternative, be mitigated.
    Plant Protection and Quarantine (PPQ). The Plant Protection and 
Quarantine program of the Animal and Plant Health Inspection Service, 
U.S. Department of Agriculture, or any agency delegated to act in its 
place.
    Property. Any plant, plant product, equipment, or means of 
transportation seized under the authority of the Endangered Species Act 
of 1973, as amended (16 U.S.C. 1531 et seq.), or the Lacey Act 
Amendments of 1981, as amended (16 U.S.C. 3371 et seq.).
    Waiver of title. The divestiture of an owner's right, title and 
interest in the property to the United States. If a waiver is signed, 
the United States becomes the owner of the property and the signatory 
relinquishes all right, title and interest in the property.


Sec.  356.2  Property subject to forfeiture procedures.

    This part sets forth the procedures relating to the forfeiture of 
any property seized by APHIS under the authority of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or the Lacey 
Act Amendments of 1981, as amended (16 U.S.C. 3371 et seq.), by the 
Administrator, and is in PPQ's actual or constructive custody.


Sec.  356.3  Determination of property value.

    Promptly following seizure of the property, the Administrator shall 
determine the value of the seized property. If an invoice of the 
property is available, the value is the amount as represented on the 
invoice. If an invoice is not available, or is determined by the 
Administrator not to represent a reasonable value, the value of the 
property shall be determined by ascertaining the price at which similar 
property is offered for sale at or as near as possible to the time and 
place of seizure.


Sec.  356.4  Notice upon seizure; distribution of forms.

    (a) A notice of seizure shall be completed when the property is 
seized. This notice alerts an owner that PPQ has taken custody of 
certain property. The notice sets forth the date, time, and place the 
property was seized; a description of the seized property, including 
any identifying information; the reason for seizure, including the 
provisions of the act, permit, certificate, or regulations allegedly 
violated and under which the property is subject to forfeiture; and the 
determined value of the property.
    (b) A notice of seizure shall be posted in a publicly accessible 
location at the port office of the seizing agency and shall remain 
displayed for a period of 35 calendar days. The date and time the 
notice is posted shall be indicated on the notice. If the property is 
valued at less than $15,000, a notice of proposed forfeiture shall be 
posted with the notice of seizure. The notice of seizure and notice of 
proposed forfeiture may be consolidated into one document.
    (c) If the owner of the property is present at seizure, the owner 
shall receive a copy of the notice of seizure. The owner also shall 
receive copies of forms providing for filing, at the owner's 
discretion, a waiver of title and a petition for remission or 
mitigation of forfeiture. If the property is valued at less than 
$15,000, the owner furthermore shall receive a copy of the notice of 
proposed forfeiture and a form providing for filing, at the owner's 
discretion, a claim.
    (d) If the owner of the property is not present at seizure, the 
notices and forms provided under paragraph (c) of this section shall be 
sent by certified or registered mail, return receipt requested, to the 
owner and to any other persons having an interest in the property, to 
their addresses last known to PPQ. The forms shall be mailed as soon as 
is practical and not more than 60 calendar days after the date of 
seizure.


Sec.  356.5  Waiver of title.

    (a) A waiver of title is the divestiture of an owner's rights, 
title, and interest in the property to the United States. Provided the 
value of the property does not exceed $500,000, the owner of any seized 
property may waive title by completing and signing a waiver of title 
form provided to the owner at the time of seizure. The form shall be 
submitted to the port office of the seizing agency or to the 
Administrator by submitting it to the National CITES Coordinator, PPQ, 
APHIS, 4700 River Road Unit 52, Riverdale, MD 20737.
    (b) Upon submittal of the waiver of title to the port office or to 
the Administrator, all right, title, and interest in the property by 
the owner of the property is fully and finally forfeited to the United 
States. By submitting the waiver of title, the owner also waives and 
relinquishes all rights to judicial review of the seizure and 
forfeiture and any further rights or proceedings relative to the 
property. Once property is thus forfeited to the United States, no 
other right, title, or interest of the owner shall exist therein, and 
no further notice or declaration by the Administrator shall be 
required.


Sec.  356.6  Judicial forfeiture; property valued at $15,000 or 
greater.

    Promptly following the seizure of any property appraised at a value 
of $15,000 or greater, the matter will be referred to the U.S. 
Attorney's Office for the district in which the property was seized for 
institution of judicial forfeiture proceedings in U.S. District Court.


Sec.  356.7  Administrative forfeiture; property valued at less than 
$15,000.

    (a) Notice of proposed forfeiture. (1) For property valued at less 
than $15,000, the notice of seizure shall also be accompanied by a 
notice of proposed forfeiture, which notifies any interested party that 
PPQ is initiating the administrative forfeiture process. The notice of 
seizure and notice of proposed forfeiture may be consolidated into one 
document.
    (2) The notice of proposed forfeiture shall set forth the date, 
time, and place the property was seized; a description of the seized 
property, including any identification information; the reason for 
seizure, including the provisions of the act, permit, certificate, or 
regulations

[[Page 29665]]

allegedly violated and under which the property is subject to 
forfeiture; the determined value of the property; the option for 
interested parties to file a petition for remission or mitigation of 
forfeiture; and a notice providing that the property will be forfeited 
to the United States unless a claim is filed. The notice shall also set 
forth the time period during which a claim must be filed and shall 
indicate that if a claim is filed, the matter will be adjudicated in 
U.S. District Court.
    (b) Forfeiture. If a claim is not filed in accordance with 
paragraph (d) of this section, the property is forfeited to the United 
States 36 calendar days after the owner either was handed in person or 
mailed the notice of seizure and proposed forfeiture. In the event that 
the notice of seizure and proposed forfeiture was not received, as 
evidenced by return receipt, the property will be forfeited to the 
United States 31 calendar days after the date the notice of seizure is 
no longer required to be posted at the port office (i.e., 66 calendar 
days after seizure). Once property is forfeited to the United States, 
the owner no longer retains any right or title to, or interest in, the 
property.
    (c) Declaration of forfeiture. (1) Administrative forfeiture is 
effective upon the conclusion of the time period specified in paragraph 
(b) of this section. No other action is required to effectuate 
forfeiture. Within a reasonable time after forfeiture, PPQ shall 
complete a declaration of forfeiture.
    (2) The declaration of forfeiture shall be sent by certified or 
registered mail, return receipt requested, to the owner and to any 
other persons having an interest in the property known to the 
Administrator, to their addresses last known to PPQ.
    (3) The declaration of forfeiture shall include the date, time, and 
place the property was seized; a description of the seized property, 
including any identification information; the reason for seizure, 
including the provisions of the act, permit, certificate, or 
regulations violated and under which the property was forfeited; and 
the duration and place the notice of proposed forfeiture was posted and 
to whom and the manner in which service was effectuated. The 
declaration also shall state that no claim was received and, therefore, 
through default, the allegations contained in the notice of proposed 
forfeiture are admitted as true. The declaration shall conclude with an 
order providing that the property is condemned and forfeited to the 
United States and that no other right, title, or interest exists 
therein.
    (d) Claim. (1) An owner may contest the forfeiture of property 
valued at less than $15,000 by filing a claim, which is a written 
request for the return of property. A claim shall be labeled a 
``Claim'' and identify the specific property being claimed, state the 
claimant's interest in the property, and be made under oath and subject 
to penalty of perjury.
    (2) A claim shall be filed with the Administrator by submitting it 
to the National CITES Coordinator, PPQ, APHIS, 4700 River Road Unit 52, 
Riverdale, MD 20737. The claim is deemed filed when it is received by 
the National CITES Coordinator. It shall be filed within 35 calendar 
days after the notice of seizure was either personally handed or mailed 
to the owner. If the owner did not receive the notice of seizure, then 
the claim may be filed no later than 30 calendar days after the date 
the notice of seizure is no longer required to be posted (i.e., 65 
calendar days after seizure).
    (3) If a claim is filed, the administrative forfeiture is 
terminated, and the matter will be referred to the U.S. Attorney's 
Office for the district in which the property was seized for 
institution of judicial forfeiture in U.S. District Court.


Sec.  356.8  Petition for remission or mitigation of forfeiture.

    (a) Once a notice of seizure has been issued for property valued at 
$15,000 or less, any person who has an interest in the property may 
file a petition for remission or mitigation of forfeiture. A petition 
shall be filed with the Administrator by submitting it to the National 
CITES Coordinator, PPQ, APHIS, 4700 River Road Unit 52, Riverdale, MD 
20737. The petition is deemed filed when it is received by the National 
CITES Coordinator.
    (b) A petition shall be labeled a ``Petition for Remission or 
Mitigation of Forfeiture'' and contain the following information:
    (1) A description of the property;
    (2) The time, date, and place of seizure;
    (3) Evidence of the petitioner's interest in the property, such as 
contracts, bills of sale, invoices, security interests, certificates of 
title; and
    (4) A statement of all facts and circumstances relied upon by the 
petitioners to justify remission or mitigation of forfeiture.
    (c) The petition shall be signed by the petitioner or the 
petitioner's attorney under oath and upon penalty of perjury. If the 
petitioner is a business, the petition shall be signed by a partner, 
officer, or petitioner's attorney under oath and upon penalty of 
perjury.
    (d) Upon receiving the petition, the Administrator shall decide 
whether to grant relief. In making his or her decision, the 
Administrator shall consider the information submitted by the 
petitioner, as well as any other available information relating to the 
matter, and may require that testimony be taken.
    (e) If the Administrator finds that there are mitigating 
circumstances justifying remission or mitigation, the Administrator may 
remit or mitigate with terms and conditions as he or she deems 
reasonable and just. However, remission or mitigation will not be 
granted if such action would frustrate the purposes of the act under 
which authority the property had been seized. As an example, this 
section typically would not allow for remission or mitigation with 
respect to plants that are without documentation required by the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora.
    (f) The Administrator shall notify the petitioner in writing as to 
whether the petition was granted or denied and shall state the reason 
for the decision. The notification shall be sent by registered or 
certified mail, return receipt requested.
    (g) If the petition is denied fully or in part, the petitioner may 
file a supplemental petition, but a supplemental petition will not be 
considered unless it is received within 14 calendar days from the date 
on which the petitioner received the denial. The Administrator shall 
notify the petitioner in writing as to whether the supplemental 
petition was granted or denied and shall state the reason for the 
decision. The Administrator's decision is discretionary and 
unreviewable.
    (h) If a petition is received within 30 calendar days of the 
initial posting of a notice of seizure, no property will be forfeited 
until the Administrator makes his or her initial determination on the 
petition.
    (i) If a petition is submitted for property valued at less than 
$15,000, the matter will not be referred for judicial forfeiture; in 
order for that to occur, a claim must be filed in accordance with Sec.  
356.7(d).


Sec.  356.9  Storage and care; recovery of costs.

    (a) Seized property shall be stored in a place that, in the opinion 
of the Administrator, is most convenient and

[[Page 29666]]

appropriate, with due regard to the expense involved.
    (b) If any property is seized and forfeited under the Endangered 
Species Act, 16 U.S.C. 1531 et seq., any person whose act or omission 
was the basis for the seizure shall be assessed the amount of the 
expenses incurred in connection with the transfer, board, handling 
(including care and maintenance of live plants), or storage of such 
property. If any property is seized with regard to a violation of the 
Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq., any person 
convicted or assessed a civil penalty under the Lacey Act shall be 
assessed the amount of the expenses incurred in connection with the 
storage, care, and maintenance of the property at issue in the 
violation.
    (c) Within a reasonable time after forfeiture, APHIS shall send to 
such person by registered or certified mail, return receipt requested, 
an invoice for the amount of the expenses. The invoice shall contain an 
itemized statement of the applicable expenses, together with 
instructions on the time and manner of payment. Payment shall be made 
in accordance with the invoice.
    (d) The recipient of any assessment of expenses under this section 
who has an objection to the reasonableness of the expenses described in 
the invoice may file, within 30 calendar days of the date upon which 
the invoice is received, written objections with the Administrator by 
submitting it to the National CITES Coordinator, PPQ, APHIS, 4700 River 
Road Unit 52 Riverdale, MD 20737. An objection is deemed filed when it 
is received by the National CITES Coordinator.
    (e) The Administrator will promptly review the objections and mail 
his or her final decision to the party who filed the objection. The 
Administrator's decision shall constitute the final administrative 
action on the matter.


Sec.  356.10  Disposal of property.

    Upon a waiver of title or upon forfeiture of property to the United 
States under this part, such property shall be disposed of in a manner 
that is most convenient, appropriate, and in accordance with law. The 
person responsible for the violation that was the basis of the seizure 
shall not receive financial or other gain from the disposal.


Sec.  356.11  Computation of time.

    Saturdays, Sundays, and Federal holidays shall be included in 
computing the time allowed for in this part, provided that, when such 
time expires on a Saturday, Sunday, or Federal holiday, such period 
shall be extended to include the next following business day.

    Done in Washington, DC, this 14th day of May 2013.
Max Holtzman,
Acting Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2013-12048 Filed 5-20-13; 8:45 am]
BILLING CODE 3410-34-P