[Federal Register: February 19, 2008 (Volume 73, Number 33)]
[Rules and Regulations]
[Page 9010-9012]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19fe08-4]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 9111-14-P