[Federal Register Volume 77, Number 166 (Monday, August 27, 2012)]
[Rules and Regulations]
[Pages 51698-51699]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20923]
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DEPARTMENT OF JUSTICE
28 CFR Part 0
[AG Order No. 3342-2012]
Authorization To Seize Property Involved in Drug Offenses for
Administrative Forfeiture (2012R-9P)
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is amending its regulations to allow
the Director of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) to exercise, for a one-year period following the
effective date of this rule, the authority to seize and
administratively forfeit property involved in controlled substance
offenses. Many years of experience have demonstrated that forfeiting
the assets of criminals is an essential tool in combating criminal
activity and provides law enforcement with the capacity to dismantle
criminal organizations that would continue to function after the
conviction and incarceration of individual offenders. Moreover,
administrative forfeiture permits the expedient and effective use of
this crucial law enforcement tool.
DATES: This rule is effective February 25, 2013.
FOR FURTHER INFORMATION CONTACT: Denise Brown, Enforcement Programs and
Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S.
Department of Justice, 99 New York Avenue NE., Washington, DC 20226,
telephone: (202) 648-7105.
SUPPLEMENTARY INFORMATION:
Background
The Attorney General has delegated to ATF the authority to
investigate, seize, and forfeit property involved in a violation or
attempted violation within its investigative jurisdiction. See 28 CFR
0.130(b). ATF investigations focusing on violent crime frequently
involve complex criminal organizations with multiple criminal
enterprises and uncover drug-related offenses in addition to offenses
within ATF's primary jurisdiction, such as violations of the Gun
Control Act, 18 U.S.C. Chapter 44, or the Contraband Cigarette
Trafficking Act, 18 U.S.C. Chapter 114. In such investigations, ATF
does not currently have authority under 21 U.S.C. Chapter 13 to seize
for administrative forfeiture property involved in controlled substance
offenses. Instead, ATF generally refers such property to the Drug
Enforcement Administration (DEA), which is primarily responsible for
investigating violations of drug laws contained in title 21 of the
United States Code. DEA then initiates, processes, and concludes all
necessary forfeiture actions for the controlled-substance-related
property.
The Department of Justice believes that forfeiting the assets of
criminals is an essential tool in combating criminal activity and
provides law enforcement with the capacity to dismantle criminal
organizations that would continue to function after conviction and
incarceration. The Department further believes that administrative
forfeiture permits the expedient and effective use of this crucial law
enforcement tool.
An uncontested administrative forfeiture can be perfected in 60-90
days for minimal cost, including the statutorily required advertisement
and notice by registered mail. Conversely, the costs associated with
judicial forfeiture can amount to hundreds or thousands of dollars and
the judicial process generally can take anywhere from 6 months to
years. In the meantime, the government incurs additional costs if the
property requires storage or maintenance until a final order of
forfeiture can be obtained.
In recognition of the link between drug trafficking and many
criminal organizations, the Attorney General has authorized the Federal
Bureau of Investigation (FBI) to seize and forfeit property under 21
U.S.C. 881. See 28 CFR 0.85(a). This delegation of authority has
allowed the FBI to more effectively investigate and dismantle criminal
organizations.
ATF joined the Department of Justice in January 2003 pursuant to
the Homeland Security Act of 2002 (Pub. L. 107-296). One of the primary
missions of the ATF is to combat firearm-related violent crime. The
nexus between drug trafficking and firearm violence is well
established. The Attorney General, however, has not previously
delegated to ATF title 21 seizure and forfeiture authority. On review
of the current role and mission of ATF within the Department of
Justice, the Attorney General has decided to authorize a temporary
delegation of title 21 seizure and forfeiture authority to determine
whether such authority can enhance the effectiveness of ATF in the
investigation of violent crimes involving firearms. Consequently, by
this final rule the Attorney General is delegating administrative
seizure and forfeiture authority under 21 U.S.C. 881 to the ATF for a
trial period of one year. The language in this rule delegating
administrative forfeiture authority to ATF is modeled after the
language in the FBI authorization. ATF may continue to exercise this
delegated authority for all property in its possession on or before the
end of the one-year period, even if this delegation is not otherwise
extended.
Final Rule
This rule amends the regulations in 28 CFR part 0 to authorize the
Director of ATF to exercise, for a period of one year from the
effective date of this final rule, the authority to seize, forfeit, and
remit or mitigate the forfeiture of property in accordance with 21
U.S.C. 881.
Forfeiting the assets of criminals is an essential tool in
combating criminal activity and provides law enforcement with the
capacity to dismantle criminal organizations that otherwise would
continue to function after conviction and incarceration of individual
participants. The Attorney General has decided to adopt a one-year
delegation of administrative seizure and forfeiture authority to permit
ATF to make expedient and effective use of this crucial law enforcement
tool in the investigation of organizations and
[[Page 51699]]
individuals involved in firearm violence associated with drug
trafficking. After considering the effectiveness of this delegation
over the course of the one-year period, the Attorney General may elect
to make the delegation of authority to the ATF permanent in a
subsequent rulemaking.
Administrative Procedure Act (APA)
Notice and comment rulemaking is not required for this final rule.
Under the APA, ``rules of agency organization, procedure or practice,''
5 U.S.C. 553(b)(A), that do not ``affect[] individual rights and
obligations,'' Morton v. Ruiz, 415 U.S. 199, 232 (1974), are exempt
from the general notice and comment requirements of section 553 of
title 5 of the United States Code. See JEM Broad. Co. v. FCC, 22 F.3d
320, 326 (D.C. Cir. 1994) (section 553(b)(A) applies to ``agency
actions that do not themselves alter the rights or interests of
parties, although [they] may alter the manner in which the parties
present themselves or their viewpoints to the agency'') (quoting
Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980) (internal
quotation marks omitted)). The revisions to the regulations in 28 CFR
part 0 are purely a matter of agency organization, procedure, and
practice that will not affect individual rights and obligations. This
rule does not expand the government's ability as a matter of law to
effectuate forfeitures; it simply authorizes the Director of ATF to
effectuate such forfeitures. Internal delegations of authority such as
in this final rule are ``rules of agency organization, procedure, or
practice under the APA''.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it,
certifies that it will not have a significant economic impact on a
substantial number of small entities because it pertains to personnel
and administrative matters affecting the Department. Further, a
Regulatory Flexibility Analysis is not required for this final rule
because the Department was not required to publish a general notice of
proposed rulemaking for this matter.
Executive Order 12866 and Executive Order 13563
This rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and with Executive Order 13563,
``Improving Regulation and Regulatory Review.,'' This rule is limited
to agency organization, management, or personnel matters as described
by Executive Order 12866, section 3(d)(3) and, therefore, is not a
``regulation'' or ``rule'' as defined by that Executive Order.
Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, ``Civil Justice
Reform.''
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, ``Federalism,'' the Department has determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are necessary
under the provisions of the Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1501 et seq.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 804. This rule will not result in an annual effect on the
economy of $100 million or more; a major increase in costs or prices;
or significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
Congressional Review Act
This action pertains to agency management, personnel, and
organization and does not substantially affect the rights or
obligations of non-agency parties. Accordingly, it is not a rule for
purposes of the reporting requirement of 5 U.S.C. 801.
List of Subjects in 28 CFR Part 0
Authority delegations (Government agencies), Government employees,
Organization and functions (Government agencies), Privacy, Reporting
and recordkeeping requirements, Whistleblowing.
Authority and Issuance
Accordingly, by virtue of the authority vested in me as Attorney
General, including 5 U.S.C. 301 and 28 U.S.C. 509, 510, and for the
reasons set forth in the preamble, part 0 of title 28 of the Code of
Federal Regulations is amended as follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for 28 CFR Part 0 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
0
2. Section 0.130 is amended by designating paragraph (b) as paragraph
(b)(1) and by adding new paragraph (b)(2) to read as follows:
Sec. 0.130 General functions.
* * * * *
(b)(1) * * *
(2) Seize, forfeit, and remit or mitigate the forfeiture of
property in accordance with 21 U.S.C. 881 and applicable Department of
Justice regulations. This authority is effective during the 12-month
period beginning on February 25, 2013 and ending on February 25, 2014,
except that it may continue to be exercised after February 25, 2014
with respect to any property in the Bureau's possession on or before
that date.
* * * * *
Dated: August 21, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-20923 Filed 8-24-12; 8:45 am]
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