APHIS Proposes Rewrite of Regs on Lacey Act and Endangered Species Act Forfeitures

Threshold for Federal Court Proceedings Raised to $15,000

The proposed rule would raise the threshold for threshold for judicial forfeiture to $15,000. Currently, seizures of property valued at $10,000 or more are referred to the U.S. Attorney’s office for U.S. District Court proceedings. Seizures under that amount are subject to administrative proceedings handled within APHIS. By raising the threshold to $15,000, APHIS said it would account for inflation and “allow for the most efficient use of the U.S. Attorney’s resources.”

APHIS is considering raising the threshold even more to make more seizures subject to administrative forfeiture proceedings. The agency is requesting comments on raising the threshold for judicial forfeiture up to $500,000.

Seized Property Valued Using Invoice Price

Proposed 7 CFR 356.3 would set out in greater detail how APHIS would value seized property. Under the proposed rule, APHIS would use the value on the invoice associated with the shipment. If the invoice is unavailable, or if APHIS determines the price on the invoice isn’t a “reasonable value,” then the agency would use the price “at which similar property is offered for sale at or as near as possible to the time and place of seizure.”

In its preamble, APHIS said using the invoice amount to value seized property would probably result in undervaluation. As a result, APHIS anticipates that more cases will fall below the proposed $15,000 threshold and be subject to administrative forfeiture proceedings.

Seizure Notices Posted at Port, Then Either Given to Owner or Mailed

Once property is seized, APHIS Plant Protection Quarantine (PPQ) would still provide a notice of seizure to the owner of the property. The notice would continue to include information on where the property was seized, a description of the property, the reason for the seizure, and the property’s value.

Posted for 35 days at port. Under the proposed regulations at 7 CFR 356.4, the notice of seizure would be posted at the port office of the seizing agency for 35 calendar days, instead of the current 21-day period.

Includes administrative forfeiture notice. If the seized property is valued at less than $15,000 and therefore subject to administrative forfeiture, notice of seizure would be accompanied (and possibly combined with) by a notice of proposed forfeiture. It would also come with a form providing for the filing of a claim (a written request to APHIS for the return of the seized property).

Seizure forms directly given or mailed. The proposed regulations would provide that the notice of seizure, as well as any associated documents such as a notice of administrative forfeiture, be given directly to the owner of the property if the owner is present. According to APHIS, this addition to the regulations would codify existing procedures.

If the owner of the property is not present, APHIS would mail the notice of seizure and any associated documents by certified or registered mail, return receipt requested, to the owner and to “any other persons having an interest in the property.” APHIS would be required to mail the forms within 60 days of the date of seizure.

Administrative Forfeiture Changes

As in the current regulations, if a claim is filed on seized property subject to an administrative forfeiture, the case would be referred to the U.S. Attorney to be tried in U.S. District Court. The proposed rule would eliminate the requirement that a $250 bond be posted in order to file a claim.

If no claim is filed, the proposed regulations would provide for forfeiture within 36 calendar days after the owner was handed or mailed the notice of seizure and proposed forfeiture. If the notice of seizure and proposed forfeiture isn’t received, as indicated by return of the notice sent by registered or certified mail, the property would be forfeited in 66 calendar days.

Waivers of Proceedings for Property up to $500,000

The proposal would allow for owners to avoid forfeiture proceedings by waiving their ownership of the property and voluntarily giving their property to the U.S. government. Currently, “waivers of forfeiture procedures” under Section 356.4(b) are limited to property valued at under $10,000 and subject to administrative forfeiture. The proposed rule would change the name to “waivers of title,” and allow owners of seized property to waive their ownership for property valued at under $500,000. “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,” APHIS said.

New Cost-Recovery Procedures for Storing Seized Merchandise

Currently, the APHIS forfeiture regulations don’t allow for the agency to recover costs associated with storage of seized property. The proposed rule would add new Section 356.9 to set out procedures for recovery of costs. “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,” APHIS said.

Responsible party. APHIS is proposing that if the property is seized and forfeited under the Endangered Species Act, the party responsible for payment would be any person whose act or omission was the basis for the seizure. If the property was seized because of a Lacey Act violation, the party responsible for payment would be any person convicted or assessed a civil penalty for the violation.

Itemized invoice. The proposed regulations would require APHIS to send the responsible party an itemized invoice for the amount of the expenses, and include instructions on how to pay.

Written objections. Recipients of invoices for costs associated with seizures would be allowed to file a written objection within 30 calendar days from the date the invoice was received.

(See the APHIS notice for more proposed changes, including a reorganization of the regulations, new provisions on disposal and computation of time, etc.)