Full Title Name:  US - Department of the Interior; Fish and Wildlife Service; Disposal of Forfeited or Abandoned Property

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 12

Disposal of Forfeited or Abandoned Property

Monday, September 21, 1981

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

SUMMARY: The Service proposes regulations to dispose of property forfeited or abandoned to the United States under the provisions of 50 CFR Part 12. This property, which includes wildlife, plants, vehicles, vessels, aircraft, cargo, guns, nets, traps, and other equipment, would be separated into two types for disposal. All property, except wildlife and plants, would be disposed of under existing Service procedures, which are based on current Federal Property Management Regulations and Interior Property Management Regulations. Wildlife and plants, however, would be disposed of at the discretion of the Director by one of the following means: return to the wild, use by the Service or transfer to another government agency for official use, donation or loan, sale, or destruction.

This action would enable the Service to insure that wildlife and plants are disposed of in accordance with the conservation aims of the statute under which they were obtained while establishing an orderly, cost efficient disposal procedure. This procedure is needed both to eliminate unnecessary expense and overcrowding at government storage facilities and to provide a uniform means of satisfying the variety of possible uses of wildlife and plants which are ready for disposal.

DATE: Comments on this proposed rule must be received by October 21, 1981.

ADDRESSES: Comments may be mailed to Director (LE), Fish and Wildlife Service, P.O. Box 28006, Washington, D.C. 20005, or delivered weekdays to the Division of Law Enforcement, Fish and Wildlife Service, 3rd Floor, 1375 K Street, N.W., Washington, D.C. between 7:45 a.m. and 4:15 p.m. Comments should bear the identifying notation REG 12-02-3. All materials received may also be inspected weekdays during normal business hours at the Service's Division of Law Enforcement, 3rd Floor, 1375 K Street, N.W., Washington, D.C.

FOR FURTHER INFORMATION CONTACT:

John T. Webb, Branch of Investigations, Division of Law Enforcement, Fish and Wildlife Service, U.S. Department of the Interior, P.O. Box 28006, Washington, D.C. 20005, telephone: (202) 343-9242.

SUPPLEMENTARY INFORMATION:

Background

The U.S. Fish and Wildlife Service is responsible for enforcing a number of wildlife or plant protection laws. Generally, these laws provide for the forfeiture of wildlife, plants, or other property which is involved in a violation. For example, the Endangered Species Act of 1973 authorizes the forfeiture of unlawfully imported endangered wildlife, wildlife products, and plants ( 16 U.S.C. 1504(e)(4)(A)). In addition, some of the laws provide for the forfeiture of guns and equipment used in committing a violation (e.g., the Eagle Protection Act, 16 U.S.C. 668(b)) or for the forfeiture of the cargo of any vessel involved in taking wildlife illegally (e.g., the Marine Mammal Protection Act of 1972, 16 U.S.C. 1376(a)).

Wildlife parts, wildlife products, and plants forfeited under these laws have for the most part been stored at Service facilities throughout the Unites States. Until 1978, there was a patchwork of statutory authority providing for the disposition of forfeited property, usually requiring disposal under the excess and surplus property statutes administered by the General Services Administration (GSA). Property management regulations issued by GSA and the Department were the only rules regarding the methods of disposal. Because most of the property held by the Service was wildlife, almost all of the provisions of both the Federal Property Management Regulations (41 CFR Chapter 101) and Interior Property Management Regulations (41 CFR Chapter 114) were inappropriate for use by the Service. These provisions would have compelled the Service to transfer property to GSA for sale or to allocate property in excess of the Service's needs to other agencies where such action may have been in conflict with existing Service policy.

The Service authority for disposal, however, was consolidated and broadened in 1978 with passage of the Fish and Wildlife Improvement Act of 1978 (FWIA), which states, in relevant part:

(c) Disposal of Abandoned or Forfeited Property. Notwithstanding any other provision of law, all fish, wildlife, plants, or any other items abandoned or forfeited to the United States under any laws administered by the Secretary of the Interior or the Secretary of Commerce relating to fish, wildlife, or plants, shall be disposed of by either Secretary in such a manner as he deems appropriate (including, but not limited to, loan, gift, sale or destruction).

(16 U.S.C. 742l(c) (emphasis added))

The FWIA provides the Service with the authority and flexibility to dispose of forfeited or abandoned property, which now totals several million dollars, without following any existing GSA procedures or being restricted by limitations found in the statute under which the property was seized.

Description of the Proposed Regulations

Definitions

Three additional terms would be defined: abandonment, disposal, and forfeiture. These definitions provide a demarcation between seizure and disposal which should remove any uncertainty as to when the Service should begin disposal.

Disposal

Two types of property are identified in § 12.33 and a disposal procedure is set out for each. One type includes all forfeited or abandoned property, except wildlife and plants, which would be disposed of in accordance with current Federal Property Management Regulations (41 CFR Chapter 101) and Interior Property Management Regulations (41 CFR Chapter 114). Wildlife and plants, the other type, would be disposed of by the Director by one of the following means: return to the wild, use by the Service or transfer to another government agency for official use, donation or loan, sale, or destruction.

Each of the methods of disposing of wildlife and plants is discussed in more detail below. One premise underlies these methods which is stated in § 12.32. The effect of any prior illegality on the subsequent use of wildlife or plants is terminated once they are forfeited or abandoned to the U.S. Prohibitions which rely upon a prior unlawful act, such as the Endangered Species Act's prohibition on the possession of unlawfully taken endangered species, would not apply. Therefore, for example, wildlife that was seized and forfeited or abandoned because it was unlawfully taken would not be subject to prohibitions based on that fact alone (i.e., unlawful taking) upon disposal. Simply, forfeiture or abandonment eliminates the taint of any prior illegality.

Upon disposal, however, prohibitions, restrictions, conditions, or requirements imposed by law which apply to a particular species of wildlife or plant would remain in effect.

The order in which the disposal methods appear is the order the Service would follow generally in determining which method has priority. Return to the wild is the most favored and destruction, unless necessary, is the least favored. The other methods are not as sharply distinguished from each other.

1. Return to the wild (§ 12.34). Any live member of a native species of wildlife or plant would be returned to the wild if it is capable of surviving, unless it poses a threat to public health or safety if returned, in which case quarantine or destruction would be the only possible methods of disposal. Quarantine would have to be accomplished in conjunction with one of the other disposal methods identified, such as transfer to another government agency for official use. Any exotic species, a species not naturally occurring in the wild in the United States, would be available for return to the country of export (if known) in accordance with the requirements of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Article VIII.4(b) of CITES states in part that Where a living specimen is confiscated * * * the Management Authority [i.e., Service] shall, after consultation with the State of export, return the specimen to that State at the expense of that State * * *. The mechanism for returning wildlife or plants to the country of export is set out in § 12.35.

Executive Order 11987 (42 FR 26949) entitled Exotic Organisms also directs Executive agencies to restrict the introduction of exotic species into natural ecosystems of the United States.

2. Use by the Service or transfer to another government agency for official use (§ 12.35). Wildlife and plants would be used by the Service or other government agencies, including State and foreign agencies, for certain official purposes. This section describes those official uses. Items initially used by the Service for official purposes that are no longer of any use would be disposed of by one of the other methods. In addition to returning wildlife to the country of export for eventual return to the wild, the Service would be able to satisfy other obligations under CITES related to the return of confiscated specimens to the country of export, for purposes such as the enhancement of propagation or survival, or other scientific, educational, enforcement, or identification purposes.

3. Donation or loan (§ 12.36). The Service would donate or loan wildlife and plants for noncommercial scientific, educational, or public display purposes to any person who demonstrates the ability to provide adequate care and security for the item. A transfer document would be executed between the Director and the donee/borrower, subject to a number of stated conditions. A distinction is drawn between donation and a loan to indicate that a donation involves the transfer of title.

4. Sale (§ 12.37). One of the purposes of the FWIA was to allow the Service to make its own determinations consistent with existing law and policy as to the appropriate method of disposal for a particular species of wildlife or plant, instead of following GSA procedures for the allocation or sale of forfeited or abandoned property. One possible method of disposal identified by the FWIA is sale.

Recently, the Acting Associate Solicitor, Conservation and Wildlife, in an opinion dated March 10, 1981, on the subject Disposal of Forfeited Endangered and Threatened Species Parts interpreted the FWIA as providing the Service with the authority to dispose of any forfeited material by sale, including endangered species products.

The Service's proposal attempts to reach a balance which Congress sought when providing the Service with disposal authority. The Service proposes to sell wildlife or plants which otherwise are lawfully traded by private individuals in interstate commerce, unless existing policy recommends another method of disposal. Therefore, any demand for a particular item also may be met by existing, lawful trade apart from sale by the Service. The Service would not be selling any species for which it would be the only source.

The Service proposes to prohibit disposal by sale of the following wildlife or plants: (1) migratory birds, (2) bald or golden eagles, and (3) CITES Appendix I specimens. Sale of migratory birds and bald or golden eagles would be prohibited because the Service believes that sale is inappropriate when possession and sale of these birds is highly regulated or prohibited by the Migratory Bird Treaty or Eagle Protection Acts in order to conserve them. Disposal of CITES Appendix I specimens was the subject of Resolution 3.14 entitled Disposal of Confiscated or Accumulated Specimens of Appendix I Species passed at the third meeting of the Conference of the Parties. That resolution recommended that Parties to the Convention dispose of Appendix I specimens without selling them. Other recommendations on the disposal of Appendix I specimens found in the resolution have generally been adopted in this proposal as well.

One category of wildlife would be disposed of by sale in very limited circumstances. Species of wildlife or plants listed as endangered or threatened in 50 CFR 17.11 under the ESA would only be sold if the species may be lawfully traded in interstate commerce. This provision would allow the sale of those few species whose entire population is not listed as endangered or threatened and certain threatened species when the species may be sold lawfully in interstate commerce.

By limiting the categories of wildlife and plants subject to sale, the Service believes that no pressure will be placed on those species which would be harmed by the Service's entry into the market. For those species not harmed by trade, where forfeiture or abandonment was obtained only as a deterrent, and where demand may be satisfied lawfully in interstate commerce, the Service believes that sale is proper.

5. Destruction (§ 12.38). Destruction is available only when no other method of disposal is appropriate. This eliminates costly storage of items not fit for any other means of disposal.

Determination of Effects of Rules

The Department of the Interior has determined that this is not a major rule under Executive Order 12291.

The Department has also certified that the rules will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act and 43 CFR Part 14. These determinations are discussed in more detail in a Determinations of Effects which has been prepared by the Service. A copy of that document may be obtained by contacting the person identified above under the caption For Further Information Contact.

National Environmental Policy Act

A draft environmental assessment has been prepared in conjunction with this proposal. It is on file in the Service's Division of Law Enforcement, 1375 K Street, N.W., Suite 300, Washington, D.C., and may be examined during regular business hours. Single copies also are available upon request by contacting the person identified above under the caption FOR FURTHER INFORMATION CONTACT. Comments on the draft environmental assessment should be mailed or delivered to the address given at the beginning of this proposal during the comment period on the proposed rule.

Public Comments Invited

The policy of the Department of the Interior is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Interested persons are invited to submit written comments regarding the proposed rule or the draft environmental assessment. These comments and any additional information received will be considered by the Department in adopting a final rule. Correspondence should be mailed or delivered to the address given at the beginning of this proposal.

Proposed Regulation Promulgation

PART 12--SEIZURE AND FORFEITURE PROCEDURES

For the reason set out in the preamble, Subchapter B, Chapter I of Title 50, Code of Federal Regulations is proposed to be amended as follows:

1. The authority citation for Part 12 is revised to read as follows:

Authority: Act of September 6, 1966, 5 U.S.C. 301; Eagle Protection Act, 16 U.S.C. 668-668b; National Wildlife Refuge System Administration Act, 16 U.S.C. 668dd(f); Migratory Bird Treaty Act, 16 U.S.C. 706-707, 712; Migratory Bird Hunting Stamp Act, 16 U.S.C. 718f; Airborne Hunting Act, 16 U.S.C. 742j-1(d)- (f); Black Bass Act, 16 U.S.C. 852d; Marine Mammal Protection Act, 16 U.S.C. 1375-1377, 1382; Endangered Species Act, 16 U.S.C. 1540; Lacey Act, 18 U.S.C. 43-44; Tariff Act of 1930, 19 U.S.C. 1602-1624; Fish and Wildlife Improvement Act of 1978, 16 U.S.C. 742l; Exotic Organisms, E.O. 11987, 42 FR 26949; American Indian Religious Freedom, 42 U.S.C. 1996.

2. The table of contents for Part 12 is amended by adding the following entry in sequence:

Subpart D--Disposal of Forfeited or Abandoned Property

12.30 Purpose.

12.31 Accountability.

12.32 Effect of prior illegality.

12.33 Disposal.

12.34 Return to the wild.

12.35 Use by the service or transfer to another government agency for official use.

12.36 Donation or loan.

12.37 Sale.

12.38 Destruction.

3. Amend § 12.3(a) by adding the following definitions in alphabetical order:

* * * * *

§ 12.3 Definitions.

Abandonment means a person's surrender of seized property to the Service by, but not limited to, refusing or otherwise avoiding delivery of mail concerning the seizure (as by giving a false name or address), failing for more than 180 days to make or maintain a claim to the property, failing to respond within 120 days of issuance of a notice from the Department concerning the seizure, unless the property is earlier forfeited, or quitclaiming to the United States any interest in the property.

Disposal includes, but is not limited to, remission, return to the wild, use by the Service or transfer to another government agency for official use, donation or loan, sale, or destruction.

Forfeiture means a person's surrender or relinquishment of any claim to seized property by written agreement, or extinguishment of any person's interest in, and transfer of title to seized property to the United States by court order or by order of the Secretary as authorized by law.

4. A new Subpart D is added to read as follows:

Subpart D--Disposal of Forfeited or Abandoned Property

§ 12.30 Purpose.

Upon forfeiture or abandonment of any property to the United States under this part the Director shall dispose of such property under the provisions of this Subpart D.

§ 12.31 Accountability.

All property disposed of under this subpart must be accounted for in official records. These records must include the following information:

(a) A description of the item.

(b) The date and place of the item's seizure (if any) and forfeiture or abandonment.

(c) The investigative case file number with which the item was associated.

(d) The name of any person known to have or to have had an interest in the item.

(e) The date, place, and manner of the item's disposition.

(f) Name of the official responsible for the disposal.

(g) Domestic value of the property.

§ 12.32 Effect of prior illegality.

The effect of any prior illegality on a subsequent holder of any wildlife or plant disposed of or subject to disposal is terminated upon forfeiture or abandonment, but the prohibitions, restrictions, conditions, or requirements which apply to a particular species of wildlife or plant under the laws or regulations of the United States or any State, including any applicable health, quarantine, agricultural, or Customs law or regulations remain in effect as to the conduct of such holder.

§ 12.33 Disposal.

(a) The Director shall dispose of any wildlife or plant forfeited or abandoned under the authority of this part, subject to the restrictions provided in this subpart, by one of the following means, unless the item is earlier remitted, the subject of a petition for remission of forfeiture under § 12.24 of this part, or disposed of by court order:

(a)(1) Return to the wild;

(a)(2) Use by the Service or transfer to another government agency for official use;

(a)(3) Donation or loan;

(a)(4) Sale; or

(a)(5) Destruction.

In the exercise of the disposal authority, the Director generally must dispose of any wildlife or plant in the order in which the disposal methods appear in this paragraph (a) of this section.

(b) The Director shall dispose of any property, except wildlife or plants, forfeited or abandoned under the authority of this part, including vehicles, vessels, aircraft, cargo, guns, nets, traps, and other equipment in accordance with current Federal Property Management Regulations (41 CFR Chapter 101) and Interior Property Management Regulations (41 CFR Chapter 114), unless the item is earlier remitted, the subject of a petition for remission of forfeiture under § 122.24 of this part, or disposed of by court order.

(c) The Director may not dispose of property until the time period for receiving a petition for remission under § 12.24 of this part has elapsed. In any case, however, from the date of forfeiture, the following time periods are in effect, unless the property is the subject of a petition for remission of forfeiture:

(c)(1) Perishable items may be disposed of immediately;

(c)(2) Live wildlife or plants may be disposed of in 30 days; and

(c)(3) Property, except perishable items or live wildlife or plants, may be disposed of in 60 days.

§ 12.34 Return to the wild.

(a) Any live member of a native species of wildlife may be released to the wild in suitable habitat within the United States with the permission of the landowner if it is capable of surviving, unless release poses an imminent danger to public health or safety.

(b) Any live member of a native species of plant may be transplanted in suitable habitat on Federal or other protected lands within the United States with the permission of the appropriate State agency if it is capable of surviving.

(c) Any live member of an exotic species of wildlife (including injurious wildlife) or plant may not be returned to the wild in the U.S., but may be returned to the country of export (if known) after consultation with and the expense of the country of export in accordance with the provisions of § 12.35 of this part.

§ 12.35 Use by the service or transfer to another government agency for official use.

(a) Wildlife and plants may be used by the Service or transferred to another government agency (including foreign agencies) for one or more of the following official purposes:

(a)(1) Training government officials to perform their official duties;

(a)(2) Identification of protected wildlife or plants, including forensic identification or research;

(a)(3) Public education concerning the conservation of wildlife or plants;

(a)(4) Law enforcement operations conducted by government officers in performance of official duties;

(a)(5) Scientific purposes or for the enhancement of propagation or survival;

(a)(6) Evidence in a legal proceeding involving the wildlife or plant; or

(a)(7) Return to the wild in accordance with § 12.34 of this part.

(b) Each transfer and the terms of the transfer must be documented.

(c) The agency receiving the wildlife or plants may be required to bear all costs of care, storage, and transportation in connection with the transfer.

§ 12.36 Donation or loan.

(a) Except as otherwise provided in this section, wildlife and plants may be donated or loaned for noncommercial scientific, educational, or public display purposes to any person who demonstrates the ability to provide adequate care and security for the item.

(b) Any donation or loan may be made only after execution of a transfer document between the Director and the donee/borrower, which is subject to the following conditions:

(b)(1) The purpose for which the wildlife or plants are to be used must be stated on the transfer document;

(b)(2) Any attempt by the donee/borrower to use the donation or loan for any other purpose except that stated on the transfer document entitles the Director to immediate repossession of the wildlife or plants;

(b)(3) The donee/borrower must pay all costs associated with the transfer, including the costs of care, storage, transportation, and return to the Service (if applicable):

(b)(4) The donee/borrower may be required to account periodically for the donation or loan;

(b)(5) The donee/borrower is not relieved from the prohibitions, restrictions, conditions, or requirements which may apply to a particular species of 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.

(b)(6) Any attempt by a donee to retransfer the donation during the time period specified in the transfer document within which the donee may not retransfer the donation without the prior authorization of the Director entitles the Director to immediate repossession of the wildlife or plants;

(b)(7) Any attempt by a borrower to retransfer the loan without the prior authorization of the Director entitles the Director to immediate repossession of the wildlife or plants;

(b)(8) Subject to applicable limitations of law, duly authorized Service officers at all reasonable times shall, upon notice, be afforded access to the place where the donation or loan is kept and an opportunity to inspect it;

(b)(9) Any donation is subject to conditions specified in the transfer document, the violation of which causes the property to revert to the United States;

(b)(10) Any loan is for an indefinite period of time unless a date on which the loan must be returned to the Service is stated on the transfer document; and

(b)(11) Any loan remains the property of the United States, and the Director may demand its return at any time.

(c) Wildlife and plants may be donated to individual American Indians for the practice of traditional American Indian religions. Any donation of the parts of bald or golden eagles may only be made to individual American Indians authorized by permit issued in accordance with § 22.22 of this title to possess such items.

(d) Edible wildlife, fit for human consumption, may be donated to a non- profit, tax-exempt charitable organization for use as food, but not for barter or sale.

§ 12.37 Sale.

(a) Wildlife and plants may be sold or offered for sale, except any species which at the time it is to be sold or offered for sale falls into one of the following categories:

(a)(1) Listed in § 10.13 of this title as a migratory bird protected by the Migratory Bird Treaty Act (16 U.S.C. 703-712);

(a)(2) Protected under the Eagle Protection Act (16 U.S.C. 668-668d);

(a)(3) Listed in § 23.33 of this title as Appendix I under the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and

(a)(4) Listed in § 17.11 of this title as endangered or threatened under the Endangered Species Act of 1973 (16 U.S.C. 1533), unless the species may be lawfully traded in interstate commerce.

(b) Wildlife and plants must be sold in accordance with current Federal Property Management Regulations (41 CFR Chapter 101) and Interior Property Management Regulations (41 CFR Chapter 114).

(c) Wildlife or plants which may not be possessed lawfully by purchasers under the laws of the State where held may be moved to a State where possession is lawful and may be sold.

(d) Wildlife or plants purchased at sale are subject to the prohibitions, restrictions, conditions, or requirements which apply to a particular species of 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, except as provided by § 12.33 of this part.

§ 12.38 Destruction.

(a) Wildlife or plants not otherwise disposed of must be destroyed.

(b) When wildlife or plants are destroyed, the fact, manner, and date of destruction and the type and quantity of wildlife or plants destroyed must be certified by the official actually destroying the items.

Dated: August 19, 1981.

G. Ray Arnett,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 81-27392 Filed 9-18-81; 8:45 am]

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