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[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]
BILLING CODE 4410-19-P
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