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Forfeiture of Seized Plant and Animal Imports Subject of USDA Proposed Rule

Tuesday, May 21, 2013
Sandler, Travis & Rosenberg Trade Report

The Department of Agriculture’s Animal and Plant Health Inspection Service is proposing to update its regulations setting forth forfeiture procedures with regard to plants or plant products seized under the authority of the Endangered Species Act or the Lacey Act. APHIS states that the proposed changes would conform these regulations to the requirements of the Civil Asset Forfeiture Reform Act of 2000, increase the monetary threshold of cases proceeding through judicial forfeiture and provide for the assessment of storage costs of seized property. Comments on this proposed rule are due no later than July 22.

Species regulated under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, which is implemented through the ESA, must be accompanied by the required permit or certificate when imported into the U.S. If this requirement is not met, the commodity is subject to seizure by, and forfeiture to, the U.S. government. APHIS initiates approximately 100 seizures each year for such violations, and wood, wood products, medicinal items and live plants constitute the bulk of property that has been seized in the past.

The Lacey Act combats trafficking in illegal wildlife, fish and plants and was amended in 2008 to extend protection to a broader range of plants and plant products. Under this law, 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. Plants and plant products traded contrary to the law’s provisions may be seized.

The proposed rule would update the forfeiture regulations regarding ESA and Lacey Act violations as follows.

- Property that could be seized would be defined as any plant, plant product, equipment or means of transportation seized under the authority of the ESA or the Lacey Act.

- The threshold for judicial forfeiture would be raised from $10,000 to $15,000 and administrative forfeiture would apply to property valued below that amount. APHIS is accepting comments on raising this threshold to as much as $500,000. The value of seized property would be the amount shown on the import’s associated invoice.

- The required time period for public posting of a notice of seizure would be extended from 21 to 35 days.

- 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. If such notice is not received, the property would be forfeited in 66 days, or 31 calendar days after the notice of seizure is no longer required to be posted.

- If property is seized and forfeited under the ESA, 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 property is seized with regard to a violation of the Lacey Act, any person convicted or assessed a civil penalty therefor would be responsible for the cost of the storage, care and maintenance of the property at issue.

- Upon a waiver of title or upon forfeiture, seized property would be disposed of in a manner that is most convenient, appropriate and in accordance with the law. However, the person responsible for the violation that was the basis of the seizure could not benefit from the disposal (e.g., by repurchasing it at auction).

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