[Federal Register Volume 73, Number 33 (Tuesday, February 19, 2008)]
[Rules and Regulations]
[Pages 9010-9012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2965]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

8 CFR Part 274

19 CFR Part 162

[USCBP-2006-0122]
RIN 1651-AA58


Administrative Process for Seizures and Forfeitures Under the 
Immigration and Nationality Act and Other Authorities

AGENCY: Office of the Secretary, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends Department of Homeland Security 
regulations, to consolidate the procedures for administrative seizure 
and forfeiture process. The interim rule also permits earlier 
consideration of petitions for the remission of seized assets in cases 
that would otherwise be brought under the procedures in title 8 of the 
Code of Federal Regulations. The interim rule also makes technical and 
conforming changes to update the regulations.

DATES: This interim rule is effective February 19, 2008. Written 
comments must be submitted on or before April 21, 2008.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2006-0122.
     Mail: Border Security Regulations Branch, Office of 
Regulations and Rulings, U.S. Customs and Border Protection, 1300 
Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229.
    Instructions: All submissions received must include the agency name 
and document number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.
    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 on regular business days between the hours of 9 
a.m. and 4:30 p.m. at the Office of Regulations and Rulings, 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, U.S. Customs and Border 
Protection, at (202) 572-8768.

FOR FURTHER INFORMATION CONTACT: Jeremy Baskin, Office of Regulations 
and Rulings, U.S. Customs and Border Protection (202) 572-8700.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim rule. DHS also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this 
interim rule. Comments that will provide the most assistance to the 
Department of Homeland Security (DHS) in developing these procedures 
will reference a specific portion of the interim rule, explain the 
reason for any recommended change, and include data, information, and 
authority that support such recommended change.

Background

    On November 25, 2002, the President signed into law the Homeland 
Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (HSA). 
Accordingly, as of March 1, 2003, the former Immigration and 
Nationalization Service (INS) of the Department of Justice and the 
former U.S. Customs Service of the Department of the Treasury were 
transferred to DHS and reorganized to become U.S. Customs and Border 
Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and 
U.S. Citizenship and Immigration Services (USCIS).
    After passage of the HSA, both CBP and ICE retained authority to 
perform asset seizures and forfeitures under the provisions of 8 CFR 
part 274 and 19 CFR parts 162 and 171. DHS, for the purpose of improved 
efficiency, has consolidated the processing of asset forfeitures into 
CBP's operations. The regulations in Titles 8 and 19, however, 
currently provide two different procedures. This interim rule 
consolidates the procedures for administrative seizure and forfeiture 
process by altering the text of 8 CFR 274.1 to refer to 19 CFR parts 
162 and 171. This rule also makes technical conforming changes to 
update references from INS and U.S. Customs Service to CBP and ICE 
where applicable.

Interim Rule Changes

    Pursuant to the provisions of section 618 of the Tariff Act of 
1930, as amended (19 U.S.C. 1618), petitions for remission of 
forfeitures were accepted by the former U.S. Customs Service, and now 
accepted by CBP, prior to initiation of any administrative or judicial 
forfeiture process. Under the regulations adopted under section 274(b) 
of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 
1324(b) (INA)), the remission or mitigation of such forfeitures could 
occur only after completion of the forfeiture process. No statute, 
however, requires this restriction. Under this interim rule, the 
procedures previously used for immigration-related forfeitures will be 
eliminated and all asset forfeiture proceedings will be conducted under 
a consolidated procedure. This interim rule revises 8 CFR part 274 in 
its entirety to bring seizures and forfeitures effected under section 
274(b) of the INA, as amended, and other forfeiture authorities, into 
conformity with procedures under 19 CFR parts 162 and 171. This change 
permits CBP to entertain petitions for remission and return of seized 
property prior to completing the forfeiture process, whether the 
seizure was effected under the customs laws or the immigration laws, 
and whether the seizure was made by CBP or ICE.
    Accordingly, 8 CFR part 274 is amended to reference Title 19 
administrative seizure and forfeiture processes. This is the only 
significant difference between the provisions and DHS through this 
interim rule adopts the procedure that provides greater flexibility and 
is more favorable to petitioners for remission.

Other Changes

    The provisions of current 19 CFR 162.21 reference the former U.S. 
Customs Service and U.S. Customs Officers. The interim rule updates 
these references to reflect U.S. Customs and Border Protection and CBP 
Officers as applicable.
    Currently, 19 CFR 162.22(d) references retention of vessels or 
vehicles pending penalty payment and specifically references section 
460 of the Tariff Act of 1930, as amended (19

[[Page 9011]]

U.S.C. 1460). Section 460 of the Tariff Act of 1930 was repealed by 
Public Law 99-570, title III, section 3115(b), Oct. 27, 1986, 100 Stat. 
3207-82. Accordingly, this interim rule removes 19 CFR 162.22(d) and 
redesignates paragraph (e) as paragraph (d).
    This rule also updates certain delegations of authority to reflect 
the current organizational structures. Title 19 CFR 162.92(d)(1) 
currently empowers the Customs Assistant Commissioner, Investigations, 
or his designee, to extend the period for sending notices for any 
seizure under the Civil Asset Forfeiture Reform Act of 2000, Public Law 
106-185, 114 Stat. 202, (CAFRA). Currently, the Assistant Commissioner, 
Investigations, is the official designated by CBP to grant time 
extensions for sending notices of seizure as authorized by 18 U.S.C. 
983(a)(1)(B). 67 FR 9188 (Feb. 28, 2002). Inasmuch as a reorganization 
plan under the HSA moved the investigative functions previously 
performed by Customs agents to ICE, DHS is changing the regulation to 
reflect this change in authority. In addition, an official within CBP 
must retain the authority for certain seizures effected by CBP officers 
or Border Patrol agents. Accordingly, this interim rule amends 19 CFR 
162.92(d)(1) to designate the Assistant Secretary of ICE, or his or her 
designee, and the Commissioner of CBP, or his or her designee, as the 
officials authorized to grant such an extension.

Administrative Procedure Act

    This rule is procedural in nature and does not alter the 
substantive rights of the affected parties. Therefore, this rule is 
exempt from the notice and comment rulemaking requirements under the 
Administrative Procedure Act (5 U.S.C. 553(b)(A)). In addition, the 
delayed effective date requirement of 5 U.S.C. 553(d) does not apply to 
this rule. DHS, however, is interested in public comments on this rule 
and will consider all timely comments in the preparation of a final 
rule.
    The interim rule may benefit entities whose property is seized 
under 8 CFR part 274. Under the interim regulations, entities whose 
property is seized under 8 CFR part 274 may take advantage of pre-
forfeiture administrative processing and request return of their 
property prior to the conclusion of forfeiture processing. Prior to 
this interim rule, owners of property seized under 8 CFR part 274 were 
required to wait for their petitions to be acted upon until after 
forfeiture processing was complete. There will be no increased costs to 
either private companies or individuals as a result of this interim 
rule. The interim rule may also yield cost savings for the government 
if seized items can leave government storage areas more quickly under 
the earlier petitioning provision.

Regulatory Requirements

Executive Order 12866

    This interim rule is not a significant regulatory action under 
Executive Order 12866.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of a 
proposed rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions) when the agency is 
required ``to publish a general notice of proposed rulemaking for any 
proposed rule.'' Because this rule is being issued as an interim rule, 
on the grounds set forth above, a regulatory flexibility analysis is 
not required under the RFA.

Paperwork Reduction Act

    DHS has determined that the collection of information required by 
this interim rule falls under the ``administrative exception'' to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). The 
``administrative exception,'' applies because any such collection is 
made during the conduct of administrative action taken by an agency 
against specific individuals or entities. 5 CFR 1320.4(a)(2).

List of Subjects

8 CFR Part 274

    Administrative practice and procedure, Seizures and forfeitures, 
Conveyances.

19 CFR Part 162

    Administrative practice and procedure, Customs duties and 
inspection, Law enforcement, Penalties, Prohibited merchandise, 
Reporting and recordkeeping requirements, Seizures and forfeitures.

Amendments to Title 8 of the Code of Federal Regulations

0
For the reasons stated above, 8 CFR part 274 is amended as set forth 
below.

PART 274--SEIZURE AND FORFEITURE OF CONVEYANCES

0
1. The authority citation for part 274 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1324(b); 18 U.S.C. 983, 19 U.S.C. 66, 
1600, 1618, 1619, 1624; 22 U.S.C. 401; 31 U.S.C. 5321; 49 U.S.C. 
80304.


0
2. Section 274.1 is revised to read as follows:


Sec.  274.1  Seizure and forfeiture authority.

    Any officer of Customs and Border Protection or Immigration and 
Customs Enforcement may seize and forfeit any property that has been or 
is being used in the commission of a violation of any statutory 
authority involving the unlawful introduction of aliens, contraband or 
proceeds of such introduction, pursuant to, but not limited to, section 
274(a) of the Act (8 U.S.C. 1324(a)). All seizures and forfeitures in 
such cases will be administered in accordance with 19 CFR parts 162 and 
171.


0
3. Section 274.2 is revised to read as follows:


Sec.  274.2  Delegation of authority.

    All powers provided to Fines, Penalties and Forfeitures Officers in 
19 CFR parts 162 and 171 are provided to the Chief, Office of Border 
Patrol or his designees, for purposes of administering seizures and 
forfeitures made by Border Patrol Officers.


0
4. Sections 274.3 through 274.20 are removed.

Amendments to Title 19 of the Code of Federal Regulations

0
For the reasons set forth above, 19 CFR part 162 is amended as set 
forth below.

PART 162--INSPECTION, SEARCH, AND SEIZURE

0
1. The general authority citation for part 162 and specific authority 
citation for Sec.  162.22 is revised, and the specific authority 
citations for Sec. Sec.  162.21 and 162.91 through 162.96 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 162.21 also issued under 19 U.S.C. 482, 1581, 1582, 
1602;
    Section 162.22 also issued under 18 U.S.C. 546; 19 U.S.C. 1459, 
1594, 1595a, 1701, 1703-1708;
* * * * *
    Sections 162.91 through 162.96 also issued under 18 U.S.C. 983.


Sec.  162.21  [Amended]

0
2. Section 162.21(a) is amended by removing the phrase ``the Customs 
Service'' and replacing it with the

[[Page 9012]]

phrase ``Customs and Border Protection or Immigration and Customs 
Enforcement''.


Sec.  162.22  [Amended]

0
3. In section 162.22:
0
a. The last sentence of paragraph (a) is amended by removing the period 
at the end of the last sentence and adding the phrase ``and section 
274(b)(1) of the Immigration and Nationality Act (8 U.S.C. 
1324(b)(1)).''
0
b. Paragraph (d) is removed and current paragraph (e) is redesignated 
as paragraph (d).


Sec.  162.91  [Amended]

0
4. The first sentence of section 162.91 is amended by removing the term 
``Customs'' and replacing it with the term ``Customs and Border 
Protection or Immigration and Customs Enforcement''.


Sec.  162.92  [Amended]

0
5. In section 162.92:
0
a. The heading of paragraph (d) is amended by removing the phrase ``by 
Customs''.
0
b. Paragraph (d)(1) is amended by removing the phrase ``Assistant 
Commissioner, Investigations, or his designee'' and replacing it with 
the term ``Assistant Secretary, Immigration and Customs Enforcement or 
the Commissioner of Customs and Border Protection for cases within 
their respective agencies, or their successors or designees''.

    Date: January 28, 2008.
Michael Chertoff,
Secretary.
[FR Doc. E8-2965 Filed 2-15-08; 8:45 am]
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