[Federal Register Volume 77, Number 26 (Wednesday, February 8, 2012)]
[Proposed Rules]
[Pages 6527-6529]
From the Federal Register Online via the Government Publishing 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

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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]
BILLING CODE 9111-14-P