50 C.F.R. § 12.34 – What are the standards for remission of forfeiture?

(a) A petition for remission must include evidence that either:
1. (1) The petitioner is an interested party or owner as defined in this part; or
2. (2) 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 and for granting a reconsideration of a denial of such a petition. Failure to provide information or documents or to submit to interviews, when requested by the Solicitor, may result in a denial of the petition.
(c) The Solicitor will consider relevant information that you submit, as well as other information available to the Solicitor relating to the matter. The Solicitor will review the basis for the seizure, and in the absence of evidence to the contrary, will presume a valid seizure.
(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 the petition and possible prosecution for filing of false statements.
(e) The Solicitor will consider the following principles, if applicable, when making a decision on a petition for remission:
1. (1) Remission is an equitable remedy and is discretionary with the Solicitor.
2. (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.
  1. (i) Mitigating factors that may be considered for the sole and limited purpose of remission of forfeiture include, but are not limited to, whether:
    1. (A) The facts demonstrate your honest and good-faith intent and effort to comply with the law;
    2. (B) You did not have the ability to prevent the violation;
    3. (C) No evidence exists that you have engaged in past conduct similar to the violation;
    4. (D) You have taken meaningful steps, including enforcement mechanisms (e.g., contractual or monetary), to prevent any violations; and
    5. (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.
  2. (ii) These factors are not intended to be all inclusive and do not constitute authority in and of themselves.
3. (3) The Solicitor will make all remission decisions with due consideration for the cumulative conservation impacts of the remission including, but not limited to, whether:
  1. (i) The species is listed in Appendix I, II, or III under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (See § 23.91 of this chapter);
  2. (ii) The species is listed in part 17 of this chapter as “threatened” or “endangered” under the Endangered Species Act (16 U.S.C. 1531 et seq.);
  3. (iii) The violation increased the regulatory burden on government agencies; or
  4. (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. (4) The Solicitor has the discretion to condition a 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 reexport to the exporter of record provided that the reexport benefits enforcement and administration of applicable wildlife laws. Any terms and conditions of remission will be in 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.
  1. (i) Shipment of any released property will be at your sole cost, and the risk of loss from such shipment will be your risk.
  2. (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. (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 has the sole discretion to 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 an agreement may be included in the written documentation of the terms and conditions of the parallel remission of forfeiture provided that:
  1. (i) The terms and conditions of the civil penalty settlement are clearly delineated as relating separately and solely to any civil penalty claims; and
  2. (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.