8 February 2012
Internet Publication of Administrative Seizure and Forfeiture
[Federal Register Volume 77, Number 26 (Wednesday, February 8, 2012)]
[Proposed Rules]
[Pages 6527-6529]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2842]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
19 CFR Part 162
[Docket No. USCBP-2011-0022]
RIN 1651-AA94
Internet Publication of Administrative Seizure and Forfeiture
Notices
AGENCIES: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This rule proposes to amend the U.S. Customs and Border
Protection (CBP) regulations to allow for publication of notices of
seizure and intent to forfeit on an official Government forfeiture Web
site. CBP anticipates that the changes proposed in this rule would
reduce administrative costs and improve the effectiveness of CBP's
notice procedures as Internet publication would reach a broader range
of the public and provide access to more parties who may have an
interest in the seized property.
DATES: Written comments must be received on or before April 9, 2012.
ADDRESSES: You may submit comments, identified by Docket Number USCBP-
2011-0022, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2011-0022.
Mail: Trade and Commercial Regulations Branch, Regulations
and Rulings, Office of International Trade, U.S. Customs and Border
Protection, 799 9th Street NW. (Mint Annex), Washington, DC 20229-1179.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected during regular business days between the hours of
9 a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch,
Regulations and Rulings, Office of International Trade, U.S. Customs
and Border Protection, 799 9th Street NW., 5th Floor, Washington, DC.
Arrangements to inspect submitted comments should be made in advance by
calling Mr. Joseph Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: Dennis McKenzie, Director, Fines,
Penalties and Forfeitures Division, Office of Field Operations, U.S.
Customs and Border Protection, (202) 344-1808.
SUPPLEMENTARY INFORMATION:
Background
General
U.S. Customs and Border Protection (CBP) has authority to seize
property violating certain laws enforced or administered by CBP or U.S.
Immigration and Customs Enforcement (ICE). Such seized property may be
forfeited and disposed of in a manner specified by applicable
provisions of law. Generally, these forfeiture statutes authorize the
government to take possession of and legally acquire title to the
seized property. Under the CBP forfeiture procedure, a party may assert
a claim to the seized property through judicial or administrative
proceedings.
Applicable Law and Regulations
Section 607 of the Tariff Act of 1930, as amended, authorizes CBP
to implement administrative forfeiture procedures under prescribed
circumstances. 19 U.S.C. 1607. The statute requires CBP to publish
notice of seizure and intent to forfeit for at least three successive
weeks, in such manner as the Secretary of the Treasury directs.\1\ CBP
is also required to issue written notice of the seizure and forfeiture
to each party who appears to have an interest in the seized property.
The written notice must contain information on the applicable
procedures.
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\1\ The Secretary of the Treasury has delegated this authority
to the Secretary of Homeland Security pursuant to Treasury
Department Order 100-16.
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CBP regulations set forth the current procedure that CBP must
follow when it seizes and gives notice of intent to forfeit property
under administrative forfeiture proceedings, as required under 19
U.S.C. 1607. 19 CFR 162.45. These procedures apply when CBP seizes: (1)
A prohibited importation; (2) a transporting conveyance if used to
import, export, transport or store a controlled substance or listed
chemical; (3) any monetary instrument within the meaning of 31 U.S.C.
5312(a)(3); or (4) any conveyance, merchandise, or baggage, the value
of which does not exceed $500,000 (19 CFR 162.45(a)).
CBP regulations provide two different methods to notify the public
of seized property based on the appraised value of the property. First,
for seized property appraised at more than $5,000, CBP must publish
administrative seizure and forfeiture notices for at least three
successive weeks in a newspaper circulated at the customs port and in
the judicial district where CBP seized the property. 19 CFR
162.45(b)(1). CBP also notifies all known parties-in-interest in
advance of the pending newspaper publication and the expected dates of
publication of the notice. For seized property appraised at $5,000 or
less, CBP accomplishes publication by posting a notice in a conspicuous
place accessible to the public at the customhouse nearest the place of
seizure. 19 CFR 162.45(b)(2). The notice shows the date of posting and
remains posted for at least three successive weeks.
Proposed Amendments
This notice of proposed rulemaking (NPRM) proposes to revise the
manner by which CBP provides notice of intent to forfeit seized
property appraised at more than $5,000 and seized property appraised at
$5,000 or less. First, this rule proposes that CBP (including the U.S.
Border Patrol where appropriate) would utilize the Department of
Justice (DOJ) forfeiture Web site, located at http://www.forfeiture.gov,
to post seizure and forfeiture notices for property
appraised in excess of $5,000 in value for 30 consecutive days. This
DOJ Web site currently contains a comprehensive list of pending notices
of
[[Page 6528]]
civil and criminal forfeiture actions in various district courts and
Federal Government agencies. Under this NPRM, CBP would no longer need
to publish administrative seizure and forfeiture notices for three
successive weeks in a newspaper circulated at the customs port and in
the judicial district where CBP seized the property. CBP would notify
all known parties-in-interest of the Web site posting and the expected
date of publication.
This NPRM also proposes that CBP will publish seizure and
forfeiture notices for seized property appraised at $5,000 or less on
the DOJ forfeiture Web site for 30 consecutive days. This additional
notice would not replace the current procedure of CBP posting notice at
the customhouse nearest the place of seizure. However, this rule
proposes to specify that in situations where U.S. Border Patrol agents
make the seizure, the posting will be at the appropriate U.S. Border
Patrol sector office.
CBP believes that the use of Internet publication for CBP seizure
and forfeiture notices would provide notice to a broader range of the
public without the geographical limitations that exist under the
current procedure's reliance solely on local print publications or
customhouse postings. In addition, the Internet posting would be
available for a longer period of time (30 days), compared to the
minimum statutory requirement of three weeks.
This NPRM proposes that CBP may publish, at its sole discretion and
as circumstances warrant, additional notice in a print medium for at
least three successive weeks. For example, CBP may publish a notice of
seizure and forfeiture in a newspaper in general circulation at the
port and the judicial district nearest the seizure, or with wider or
national circulation, when recommended by the pertinent U.S. Attorney's
office or court of jurisdiction. Additionally, CBP may decide to
publish notice of seizure and forfeiture in a non-English language or
other community newspaper to ensure reaching a particular community
that may have a particular interest in or connection to the seizure.
Similarly, CBP may elect to publish notice of seizure and forfeiture in
a trade or industry publication that serves a particular commercial
community to ensure reaching a party when it is difficult to identify a
vessel or other conveyance owner.
Economic Analysis
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
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, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866.
Accordingly, the rule has not been reviewed by the Office of Management
and Budget. However, CBP has prepared the following analysis to help
inform stakeholders of the potential impacts of this proposed rule.
This proposed rule would provide a less costly alternative for
publishing notices of seizure and forfeiture for seized property
appraised at more than $5,000 in value. The current regulation requires
CBP to publish such notices in a local newspaper for at least three
successive weeks. Historically, there have been some instances where
the cost of advertising exceeds the value of the seized property, and
these occurrences have increased as the cost of newspaper advertising
has increased.
Under this proposed rule, CBP would publish the great majority of
seizure and forfeiture notices for property valued at more than $5,000
(estimated at 90 percent) for 30 consecutive days solely by posting on
an existing government Web site. In some cases, either at CBP's sole
discretion based on the particular circumstances involved or where a
court or a U.S. Attorney instructs or recommends, CBP would publish
notice via both print (newspaper or other publication) and Internet
methods. CBP will use an existing DOJ Web site that lists government
forfeiture actions by various agencies. In 2010, CBP spent over $1
million advertising more than 6,000 lines of property. Under this rule,
CBP would advertise the vast majority of items using the DOJ Web site,
which would be virtually cost-free. CBP would advertise only a small
number of items both on the Internet and in a traditional newspaper or
other publication. Because these items will be the highest profile
items, CBP will likely advertise these items in large circulations or
national newspapers. Such advertising will make up a disproportionate
amount of the costs. We estimate that it will cost $300,000 to continue
to advertise these items in print. Therefore, we estimate that
advertising on the Internet instead of in print for most items will
save the government approximately $700,000 per year.
This NPRM also proposes that CBP will publish seizure and
forfeiture notices for seized property appraised at $5,000 or less on
the DOJ forfeiture Web site for 30 consecutive days. This proposed
change would simply add low-cost Internet publication to the current
requirement that CBP post notice at the customhouse (or U.S. Border
Patrol sector office, as proposed in this rule) for seized property
appraised at $5,000 or less. This change would be virtually costless to
the government and would expand the reach of the seizure and forfeiture
notice to the benefit of unknown parties-in-interest and the public.
Regulatory Flexibility Act
This section examines the impact of the rule on small entities as
required by the Regulatory Flexibility Act (5 U.S.C. 603), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996.
A small entity may be a small business (defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act); a small not-for-profit
organization; or a small governmental jurisdiction (locality with fewer
than 50,000 people).
This rule would move most notices of seizure and forfeiture valued
at more than $5,000 from local print media to a national Web site. It
would also allow CBP to post notices of seizures and forfeitures valued
at $5,000 or less on the Web in addition to posting at the customhouse
nearest the place of seizure or the appropriate sector office of the
U.S. Border Patrol. This rule would not impose any requirements on the
general public or small businesses. As provided under the current
procedure, CBP would continue to contact any small business that is a
known party-in-interest. Because this rule imposes no direct costs on
small entities, we believe that this rule will not have a significant
economic impact on a substantial number of small entities.
Consequently, DHS certifies this rule will not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This notice of proposed rulemaking will not impose an unfunded
mandate under the Unfunded Mandates Reform Act of 1995. It will not
result in costs of $100 million or more, in the
[[Page 6529]]
aggregate, to any of the following: State, local, or Native American
Tribal governments, or the private sector.
Executive Order 13132
In accordance with the principles and criteria contained in
Executive Order 13132 (Federalism), this notice of proposed rulemaking
will have no substantial effect on the States, the current Federal-
State relationship, or on the current distribution of power and
responsibilities among local officials.
Signing Authority
This document is being issued in accordance with 19 CFR 0.1(b)(1).
List of Subjects in 19 CFR Part 162
Administrative practice and procedure, Law enforcement, Seizures
and forfeitures.
Proposed Amendment to CBP Regulations
For the reasons set forth above, Part 162 of title 19 of the Code
of Federal Regulations (19 CFR part 162), is proposed to be amended as
set forth below:
PART 162--INSPECTION, SEARCH, AND SEIZURE
1. The general authority citation for part 162 and the specific
authority citation for Sec. 162.45 continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1592, 1593a, 1624; 6
U.S.C. 101; 8 U.S.C. 1324(b).
* * * * *
Section 162.45 also issued under 19 U.S.C. 1607, 1608;
* * * * *
2. In Sec. 162.45, paragraphs (b)(1) and (2) are revised to read
as follows:
Sec. 162.45 Summary forfeiture; Property other than Schedule I and
Schedule II controlled substances; Notice of seizure and sale.
* * * * *
(b) Publication. (1) If the appraised value of any property in one
seizure from one person, other than Schedule I and Schedule II
controlled substances (as defined in 21 U.S.C. 802(6) and 812), exceeds
$5,000, the notice will be published by its posting on an official
Government forfeiture Web site for at least 30 consecutive days. In
CBP's sole discretion, and as circumstances warrant, additional
publication for at least three successive weeks in a print medium may
be provided. All known parties-in-interest will be notified of the
pending location and date of publication.
(2) In all other cases, except for Schedule I and Schedule II
controlled substances (see Sec. 162.45a), the notice will be published
by its posting on an official Government forfeiture Web site for at
least 30 consecutive days and by its posting for at least three
successive weeks in a conspicuous place that is accessible to the
public at the customhouse located nearest the place of seizure or the
appropriate sector office of the U.S. Border Patrol. All known parties-
in-interest will be notified of the pending location and date of
publication. The posting at the customhouse or sector office will
contain the date of posting. Articles of small value of the same class
or kind included in two or more seizures will be advertised as one
unit.
* * * * *
Dated: February 2, 2012.
Janet Napolitano,
Secretary.
[FR Doc. 2012-2842 Filed 2-7-12; 8:45 am]
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