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contains regulatory documents having general

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Rules and Regulations Federal Register

56093 

Vol. 77, No. 177 

Wednesday, September 12, 2012 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

21 CFR Part 1316 

DEPARTMENT OF JUSTICE 

28 CFR Parts 8 and 9 

[Docket No. OAG 127; AG Order No. 3343– 

2012] 

RIN 1105–AA74 

Consolidation of Seizure and 

Forfeiture Regulations 

AGENCY: Drug Enforcement 

Administration, Department of Justice. 

ACTION: Final rule. 

SUMMARY: Consistent with Executive 

Order 13563, by this rule the 

Department of Justice (the Department) 

revises, consolidates, and updates its 

regulations regarding the seizure, 

forfeiture, and remission of assets. The 

rule recognizes that as of 2002 the 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives (ATF) is now part of the 

Department, and consolidates the 

regulations governing the seizure and 

administrative forfeiture of property by 

ATF with those of the Drug Enforcement 

Administration (DEA) and the Federal 

Bureau of Investigation (FBI). The rule 

also conforms the seizure and forfeiture 

regulations of ATF, DEA, FBI, and the 

Department’s Criminal Division to 

address procedural changes necessitated 

by the Civil Asset Forfeiture Reform Act 

(CAFRA) of 2000. The rule allows ATF, 

DEA, and FBI to publish administrative 

forfeiture notices on an official Internet 

government Web site instead of in 

newspapers. Lastly, the rule updates the 

regulations to reflect current forfeiture 

practice and clarifies the existing 

regulations pertaining to the return of 

assets to victims through the remission 

process. 

DATES: Effective Date: This rule is 

effective October 12, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Beliue Risher, Editor, 1400 New York 

Avenue NW., Bond Building, 

Washington, DC 20530. Telephone: 

(202) 514–1263. 

SUPPLEMENTARY INFORMATION: On May 9, 

2011, the Department of Justice (the 

Department) published for public 

comment proposed regulations 

implementing the Civil Asset Forfeiture 

Reform Act of 2000 (CAFRA) (76 FR 

26660). Before the comment period 

closed on July 8, 2011, the Department 

received comments from only two 

commenters. The comments and the 

Department’s responses are discussed 

below in section III. 

I. Executive Summary 

This rule complies with the 

requirement under Section 6 of 

Executive Order 13563 (Jan. 18, 2011) to 

modify and streamline outmoded and 

burdensome regulations. First, this final 

rule recognizes that the Bureau of 

Alcohol, Tobacco, Firearms, and 

Explosives (ATF) is now part of the 

Department of Justice. On November 25, 

2002, the President signed into law the 

Homeland Security Act (HSA) of 2002, 

Public Law 107–296, 116 Stat. 2135. 

Section 1111 of the HSA established in 

the Department of Justice the ‘‘Bureau of 

Alcohol, Tobacco, Firearms, and 

Explosives’’ and generally transferred 

the law enforcement functions, and 

seizure and forfeiture authority, of the 

Bureau of Alcohol, Tobacco, and 

Firearms from the Department of the 

Treasury to the Department of Justice. 

This transfer became effective on 

January 24, 2003. By this rule, the 

Department consolidates its regulations 

governing the seizure and 

administrative forfeiture of property by 

ATF, DEA, and the FBI. Among other 

things, this rulemaking identifies the 

scope of these regulations, updates 

definitions, identifies the scope of 

authority available to each of those 

seizing agencies to seize property for 

forfeiture, and provides procedures 

governing practical issues regarding the 

seizure, custody, inventory, appraisal, 

settlement, and release of property 

subject to forfeiture. See §§ 8.1–8.7 of 

this rule. 

Second, the rule conforms the seizure 

and forfeiture regulations of ATF, DEA, 

FBI, and the Department’s Criminal 

Division to address procedural changes 

necessitated by the Civil Asset 

Forfeiture Reform Act (CAFRA) of 2000, 

Public Law 106–185, 114 Stat. 202. The 

rule also incorporates CAFRA’s 

innocent owner defense into the 

remission regulations. Where CAFRA is 

silent or ambiguous on a subject relating 

to administrative forfeiture procedure, 

the rule interprets CAFRA based on case 

law and agency expertise and 

experience. 

Third, the rule updates the 

regulations to conform to other 

authorities and current forfeiture 

practice. Thus, § 8.14 adds a provision 

to the Department’s regulations allowing 

for the pre-forfeiture disposition of 

seized property when the property is 

liable to perish, or to waste, or to be 

greatly reduced in value while being 

held for forfeiture, or when the expense 

of holding the property is or will be 

disproportionate to its value. Section 

8.11 clarifies that administrative and 

criminal judicial forfeiture proceedings 

are not mutually exclusive, and § 8.16 

affirms that the United States is not 

liable for attorney fees in any 

administrative forfeiture proceeding. 

Section 8.23 adds a provision defining 

the allowable redelegations of authority 

under the regulations. Section 8.9(a)(1) 

updates the forfeiture regulations by 

adding the option of publishing notice 

for administrative forfeitures on an 

official government Internet site instead 

of in a newspaper. 

Fourth, the rule amends the list of 

designated officials at 28 CFR part 9 

governing petitions for remission or 

mitigation of forfeiture, clarifies the 

existing regulations pertaining to 

victims, and makes remission available 

to third parties who reimburse victims 

under an indemnification agreement. 

II. Statement of Need 

Consistent with Executive Order 

13563, this rule is needed to ensure that 

the Department’s seizure and forfeiture 

regulations accurately reflect the current 

composition of the Department, the 

current state of the law, and current 

practices and procedures relating to the 

seizure, forfeiture, and remission of 

assets. Specifically, the rule is necessary 

to recognize ATF as part of the 

Department and to bring clarity to the 

regulatory framework by consolidating 

the ATF, DEA, and FBI regulations 

governing the seizure and 


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56094 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

administrative forfeiture of property. 

The rule is also needed to conform the 

regulations with the changes to seizure 

and forfeiture law included in CAFRA, 

which has rendered many of the 

existing regulations obsolete. Finally, 

this rule is necessary to reflect current 

forfeiture practice and to clarify the 

existing regulations pertaining to 

victims and the remission process. 

III. Discussion 

A. Consolidation of the Regulations 

Governing the Seizure and Forfeiture of 

Property by ATF, DEA, and FBI 

Consolidating the forfeiture 

regulations used by ATF (formerly 27 

CFR part 72), DEA (21 CFR part 1316, 

subparts E and F), and FBI (28 CFR part 

8 and 21 CFR part 1316, subparts E and 

F) will achieve greater consistency 

within the Department and will promote 

overall fairness by helping ensure that 

the administrative forfeiture process is 

governed by uniform procedures. 

The final rule removes 21 CFR part 

1316, subparts E and F and replaces 

them by adding an amended 28 CFR 

part 8 governing the seizure and 

forfeiture of property by each agency. 

Part 8 is divided into subparts A, B, and 

C. Subpart A contains generally 

applicable provisions for seizures and 

forfeitures by ATF, DEA, and FBI. 

Subpart B contains expedited 

procedures for property seized by DEA 

and FBI for violations involving 

personal use quantities of a controlled 

substance. Subpart C includes the 

permitted redelegations of authority 

under these regulations. 

However, this consolidation does not 

constitute the entirety of the 

Department’s forfeiture regulations. ATF 

continues to enforce and administer the 

provisions of the National Firearms Act 

(NFA), ch. 757, 48 Stat. 1236 (1934) 

(codified at 26 U.S.C. ch. 53). Pursuant 

to 18 U.S.C. 983(i)(2), Internal Revenue 

Code forfeitures, including NFA 

forfeitures, are not subject to CAFRA’s 

procedural requirements. NFA civil 

forfeiture procedure is governed, for the 

most part, by the Customs laws (19 

U.S.C. 1602–1618), including the notice 

and cost bond requirements. In 

addition, pursuant to the Customs laws, 

the Government’s initial burden of proof 

in an NFA civil forfeiture is to 

demonstrate probable cause to believe 

that the property is forfeitable. See 19 

U.S.C. 1615. Further, there is no 

innocent ownership defense to 

forfeiture under the NFA. However, 

NFA forfeitures are subject to CAFRA’s 

attorney fees requirement. 

B. CAFRA Procedural Changes 

Incorporated in the Final Rule 

The rule incorporates CAFRA’s 

modifications to the general rules for 

civil forfeiture proceedings, see 18 

U.S.C. 983, by making certain changes 

to the administrative forfeiture process, 

including the procedures relating to 

notice of seizure, filing of claims, 

hardship requests, and releases of 

property. 

Notice of seizure. Section 983(a)(1) 

establishes deadlines and procedures for 

sending personal written notices of 

seizures to parties with a potential 

interest in the property. These deadlines 

and procedures are in addition to, and 

in some respects different from, the 

deadlines and procedures under the 

Customs laws. The forfeiture procedures 

under Customs laws (19 U.S.C. 1602– 

1618), which are incorporated by 

reference ‘‘insofar as applicable’’ in 

forfeiture statutes enforced by the 

Department of Justice (e.g., 21 U.S.C. 

881(d)), require that ‘‘[w]ritten notice of 

seizure together with information on the 

applicable procedures shall be sent to 

each party who appears to have an 

interest in the seized article.’’ 19 U.S.C. 

1607(a). CAFRA, as codified at 18 U.S.C. 

983(a)(1), requires that notice be sent 

within 60 days of seizure, or within 90 

days of a seizure by a state or local 

agency, or within 60 days of 

establishing the interested party’s 

identity if it is not known at the time of 

seizure. CAFRA also provides that a 

supervisory official of the seizing 

agency may grant a single 30-day 

extension if certain conditions are 

satisfied and that extensions thereafter 

may only be granted by a court. Section 

8.9 of the rule incorporates these noticerelated provisions of CAFRA. 

Filing of administrative claims. 

Section 983(a)(2) of title 18 of the 

United States Code modifies the 

procedure for filing a claim to seized 

property and differs in several respects 

from Customs laws. Under the Customs 

laws applicable to Department of Justice 

forfeitures, a claimant to property 

subject to forfeiture has 20 days after the 

first published notice of seizure to 

contest the administrative forfeiture by 

filing with the seizing agency both a 

claim and a cost bond for $5,000 or 10 

percent of the property’s value, 

whichever is less, but not less than 

$250. See 19 U.S.C. 1608. Section 

983(a)(2) eliminates the cost bond 

requirement for forfeitures covered by 

CAFRA. Section 983(a)(2) also changes 

the deadlines for filing claims to contest 

the forfeiture. Persons not receiving a 

notice letter must file a claim within 30 

days after the date of the final published 

notice. Those who do receive a personal 

notice letter may file claims until the 

deadline provided in the letter, which 

must be at least 35 days after the date 

the letter was mailed. Section 983(a)(2) 

also adds provisions specifying the 

information required for a valid claim. 

It reflects the amendments to 18 U.S.C. 

983(a)(2)(C)(ii) in the Paul Coverdell 

National Forensic Sciences 

Improvement Act of 2000, Public Law 

106–561, 114 Stat. 2787, which 

retroactively deleted CAFRA’s original 

requirements that claimants provide 

with their claims documentary evidence 

supporting their interest in the seized 

property and state that their claims are 

not frivolous. Consequently, pursuant to 

section 21 of CAFRA (establishing 

CAFRA’s effective date), the amended 

section 983(a)(2)(C)(ii) applies to any 

forfeiture proceeding commenced on or 

after August 23, 2000. Section 8.10 of 

the rule incorporates these section 

983(a)(2) changes to the claim 

procedures for an administrative 

forfeiture. 

Release of seized property if forfeiture 

is not commenced. Section 8.13 of the 

rule provides procedures to implement 

18 U.S.C. 983(a)(3). Section 983(a)(3) 

requires the release of seized property 

pursuant to regulations promulgated by 

the Attorney General and prohibits the 

United States from pursuing further 

action for civil forfeiture if the United 

States does not institute judicial 

forfeiture proceedings against the 

property within 90 days after an 

administrative claim has been filed and 

no extension of time has been obtained 

from a court. 

Hardship request. Section 8.15 of the 

rule implements 18 U.S.C. 983(f), which 

provides procedures and criteria for the 

release of seized property (subject to 

certain exceptions) pending the 

completion of judicial forfeiture 

proceedings when a claimant’s request 

for such release establishes that 

continued government custody will 

cause substantial hardship that 

outweighs the risk that the property will 

not remain available for forfeiture. 

Expedited release of property. Subpart 

B (§§ 8.17 through 8.22) incorporates 

and amends, to the extent required by 

CAFRA, the pre-existing regulations for 

expedited forfeiture proceedings for 

certain property. The pre-existing 

regulations, 21 CFR part 1316, subpart 

F, provided expedited procedures for 

conveyances seized for drug-related 

offenses and property seized for 

violations involving personal use 

quantities of a controlled substance. By 

repealing 21 U.S.C. 888 (expedited 

procedures for seized conveyances), 

CAFRA eliminated the statutory basis 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56095 

for the expedited procedure regulations 

pertaining to drug-related conveyance 

seizures. Accordingly, §§ 8.17 through 

8.22 omit the 21 CFR part 1316, subpart 

F provisions applicable to drug-related 

conveyance seizures. The remaining 

provisions apply only where property is 

seized for administrative forfeiture 

involving controlled substances in 

personal use quantities. 

Remissions and mitigations. For 

consistency with CAFRA’s uniform 

innocent owner defense, 18 U.S.C. 

983(d), the rule incorporates the 

innocent owner provisions of sections 

983(d)(2)(A) and 983(d)(3)(A) in a new 

28 CFR 9.5(a)(l). 

Forfeitures affected by CAFRA and 

the final rule. CAFRA’s changes apply 

to civil forfeiture proceedings 

commenced on or after August 23, 2000, 

with the exception of civil forfeitures 

under the following statutes listed in 18 

U.S.C. 983(i): The Tariff Act of 1930 or 

any other provision of law codified in 

title 19; the Internal Revenue Code of 

1986; the Federal Food, Drug, and 

Cosmetic Act (21 U.S.C. 301 et seq.); the 

Trading with the Enemy Act (50 U.S.C. 

App. 1 et seq.) or the International 

Emergency Economic Powers Act (50 

U.S.C. 1701 et seq.); or section 1 of title 

VI of the Act of June 15, 1917 (22 U.S.C. 

401). The final rule similarly applies to 

all forfeitures administered by the 

Department with the exception of 

seizures and forfeitures under the 

statutes listed in 18 U.S.C. 983(i). The 

authority of seizing agencies to conduct 

administrative forfeitures derives from 

the procedural provisions of the 

Customs laws where those provisions 

are incorporated by reference in the 

substantive forfeiture statutes enforced 

by the agencies. 

C. Changes to the Previous Regulations 

Governing the Seizure and Forfeiture of 

Property by ATF, DEA, and FBI 

Pre-forfeiture disposition. The 

provision providing for the preforfeiture disposition of seized property, 

§ 8.14, implements the authority of 19 

U.S.C. 1612(b), which is one of the 

procedural Customs statutes 

incorporated by reference into the 

forfeiture statutes enforced by the 

Department. Section 1612(b) authorizes 

pre-forfeiture disposal of seized 

property, pursuant to regulations, when 

the property is liable to perish or to 

waste, or to be greatly reduced in value 

during its detention for forfeiture, or 

when the expense of keeping the 

property pending forfeiture is or will be 

disproportionate to the property’s value. 

The rule enables the Department to use 

the authority of section 1612(b) in 

appropriate cases. 

Internet publication. The rule updates 

the forfeiture regulations by adding, in 

§ 8.9(a)(1)(ii), a provision for the 

publication of administrative forfeiture 

notices on an official government 

Internet site instead of in newspapers. 

The statute governing the publication of 

notice in administrative forfeiture 

proceedings, 19 U.S.C. 1607, does not 

require a specific means of publication. 

Section 8.9(a)(1)(ii) will provide ATF, 

DEA, and FBI with the choice to use the 

official Internet government forfeiture 

site, currently www.forfeiture.gov, to 

publish notice of administrative 

forfeiture proceedings for no cost as an 

alternative to the newspaper publication 

provided for in § 8.9(a)(1)(i). This grant 

of authority to the agencies parallels a 

similar grant of authority in Rule 

G(4)(a)(iv)(C) of the Supplemental Rules 

for Admiralty or Maritime Claims and 

Asset Forfeiture Actions. 

Pursuant to Rule G(4)(a)(iv)(C), in all 

civil judicial forfeitures, the 

Government may give public notice 

through the Internet rather than in a 

newspaper. Section 8.9(a)(1)(ii) will 

permit the Department of Justice 

agencies to likewise use the official 

government Web site, currently 

www.forfeiture.gov, to provide notice in 

administrative forfeitures, a cost savings 

that is particularly important as the 

volume of administrative forfeitures is 

much greater than judicial forfeitures. 

There is strong statistical proof that 

Internet access is now available to the 

vast majority of United States residents. 

Internet access continues to grow, while 

newspaper circulation is declining, and 

in some markets, the option to publish 

in a traditional newspaper may not be 

available in the future. 

D. Regulations at 28 CFR Part 9 

Governing the Remission or Mitigation 

of Forfeitures 

The final rule includes modifications 

to the regulations governing the 

remission or mitigation of forfeiture at 

28 CFR part 9. Section 9.3(e)(2) is 

revised by listing DEA’s ‘‘Forfeiture 

Counsel’’ as the pertinent official in 

DEA forfeiture cases, by deleting 

references to ATF’s ‘‘Special Agent in 

Charge, Asset Forfeiture and Seized 

Property Branch,’’ and referring instead 

to ATF’s ‘‘Office of Chief Counsel, 

Forfeiture Counsel,’’ as the pertinent 

official in ATF forfeiture cases, and by 

updating the addresses for both DEA 

and ATF. Section 9.1 changes the 

designation of the official within ATF to 

whom authority to grant remission and 

mitigation has been delegated. 

Second, the definition of ‘‘victim’’ in 

§ 9.2 is modified to make remission 

available to qualified third parties who 

reimburse a victim pursuant to an 

indemnification agreement. In addition, 

§ 9.8 is modified to specify the 

procedures applicable to persons 

seeking remission as victims. 

E. Summary of the Impact of the 

Changes on the Public 

CAFRA enacted additional due 

process protections for property owners 

in federal civil forfeiture proceedings. 

Section 2(a) of CAFRA, codified at 18 

U.S.C. 983, requires prompt notification 

of administrative forfeiture proceedings. 

As a general rule, in any administrative 

forfeiture proceeding under a civil 

forfeiture statute, the Government must 

send written notice of the seizure and 

the Government’s intent to forfeit the 

property to all persons known to the 

Government who might have an interest 

in the property within 60 days of a 

seizure (or 90 days of a seizure made by 

state or local law enforcement 

authorities and transferred for federal 

forfeiture). 

CAFRA also changed the procedure 

for filing administrative claims. Section 

983(a)(2)(B) dictates that when the 

agency both publishes and sends notice 

of the seizure and its intent to forfeit the 

property, an owner who receives notice 

by mail has at least 35 days from the 

date of mailing, and if the personal 

notice is sent but not received, an owner 

has 30 days from the date of final 

publication of notice of the seizure, to 

file a claim with the agency. In addition, 

the notice provision in § 8.9(a)(1)(ii) was 

updated to allow the agencies to publish 

administrative forfeiture notices on the 

Internet instead of in newspapers, 

consistent with the procedure for civil 

judicial forfeitures under Rule 

G(4)(a)(iv)(C). 

The filing of a valid claim compels 

the agency to refer the matter to the U.S. 

Attorney. To preserve the option to seek 

civil judicial forfeiture, the U.S. 

Attorney must do one of the following 

within 90 days: (1) Commence a civil 

judicial forfeiture action against the 

seized property; (2) obtain an 

indictment alleging the property is 

subject to criminal forfeiture; (3) obtain 

a good cause extension of the deadline 

from the district court; or (4) return the 

property pending the filing of a 

complaint. If the Government fails to 

take any of these steps within the 

statutory deadline, it must promptly 

release the property and is barred from 

taking any further action to civilly 

forfeit the property in connection with 

the underlying offense. 

Prior to CAFRA, claims in an 

administrative forfeiture required an 

accompanying bond of either $5,000 or 

10 percent of the value of the seized 


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56096 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

property, whichever was lower. Section 

983(a)(2) eliminated the bond 

requirement, in forfeitures covered by 

CAFRA, to give the property owner 

greater access to federal court. However, 

to prevent frivolous claims, CAFRA 

requires the claimant to state the basis 

for his or her interest in the property in 

the claim under oath. 

Under CAFRA, claimants also have a 

right to petition for immediate release of 

seized property on grounds of hardship 

with a 30-day deadline on judicial 

resolution of such petitions. Section 

983(f)(7) provides that if the court grants 

a petition, it may also enter any order 

necessary to ensure that the value of the 

property is maintained during the 

pendency of the forfeiture action, 

including permitting inspection, 

photographing, and inventory of the 

property, fixing a bond pursuant to Rule 

E(5) of the Supplemental Rules for 

Certain Admiralty or Maritime Claims, 

or requiring the claimant to obtain or 

maintain insurance on the property. It 

also provides that the Government may 

place a lien or file a lis pendens on the 

property. 

It is important to note that CAFRA’s 

deadlines apply only to civil forfeiture 

actions initiated by commencement of 

an administrative proceeding under 

section 983(a) and do not apply to 

actions commenced solely as civil 

judicial forfeitures. However, the vast 

majority of civil forfeitures are handled 

administratively. 

CAFRA changed the procedures for 

the expedited release of conveyances 

and property seized for drug offenses to 

apply only where property is seized for 

administrative forfeiture involving 

personal use quantities of a controlled 

substance. 

Although CAFRA enacted a provision 

granting attorney fees to substantially 

prevailing parties in civil judicial 

forfeitures, the regulations make it clear 

that the United States is not liable for 

attorney fees or costs in administrative 

forfeiture proceedings, even if the 

matter is referred to the U.S. Attorney 

and the U.S. Attorney declines to 

initiate a judicial forfeiture on the 

property. See § 8.16. 

In addition to implementing these 

CAFRA reforms, the new regulations 

authorize the destruction, sale, or other 

disposition of seized property prior to 

forfeiture whenever it appears that the 

property is liable to perish or to waste, 

or to be greatly reduced in value during 

its detention for forfeiture, or that the 

expense of keeping the property is or 

will be disproportionate to its value. See 

§ 8.14. This disposition must be 

authorized by the appropriate official of 

the seizing agency. The regulations also 

specify that the seizing agency must 

promptly deposit any seized U.S. 

currency into the Seized Asset Deposit 

Fund pending forfeiture. See § 8.5. 

There is an exception for currency that 

must be retained because it has a 

significant, independent, tangible 

evidentiary purpose. See § 8.5(b). 

The final rule also changes some of 

the procedures relating to crime victims 

in 28 CFR part 9. The definition of 

victim is modified to make remission 

available to qualified third parties who 

reimburse a victim pursuant to an 

insurance or other indemnification 

agreement. See § 9.2(w). In addition, 

§ 9.8 is reorganized and a new 

paragraph (a) is added to specify the 

filing procedures applicable to persons 

seeking remission as victims. Section 

9.8(i) clarifies that the amount of 

compensation available to a particular 

victim may not exceed the victim’s 

share of the net proceeds of the 

forfeiture associated with the activity 

that caused the victim’s loss. In other 

words, a victim is not entitled to full 

compensation, but only the amount of 

compensation available from the 

forfeited property. In addition, the new 

rule makes the statutory innocent owner 

provisions at 18 U.S.C. 983(d)(2)(A) and 

(d)(3)(A) applicable to all owner and 

lienholder petitions for remission. 

IV. Public Comments 

The Department received two 

comments on the rule. One comment 

was a general statement of support for 

the rule. The other comment came from 

a group of four organizations 

representing numerous American 

newspapers (collectively, ‘‘Newspaper 

Group’’). The Newspaper Group 

objected to § 8.9 (‘‘Notice of 

administrative forfeiture’’), which 

consolidates seizure and forfeiture 

regulations for ATF, DEA, and FBI. 

Specifically, the Newspaper Group 

objected to § 8.9(a)(1), which permits 

the seizing agency to provide public 

notice of an administrative forfeiture 

proceeding by publishing notice either 

on an official government Internet site 

for at least 30 consecutive days, or once 

a week for at least three successive 

weeks in a newspaper of general 

circulation in the judicial district where 

the property was seized. The Newspaper 

Group maintained that ‘‘any Internet 

notice is an inadequate substitute for a 

printed, fixed newspaper notice’’ and 

therefore opposed authorizing agencies 

to publish notice of administrative 

forfeiture proceedings on an official 

government forfeiture Web site as an 

alternative to traditional newspaper 

publication. 

The Department has reviewed and 

considered the Newspaper Group’s 

comment and has decided not to make 

any changes to the proposed rule. The 

following is a summary of the 

Newspaper Group’s points and the 

Department’s response to each one. 

Comment: The overarching theme of 

the Newspaper Group’s comment is that 

giving the Department the option of 

publishing notice of administrative 

forfeiture proceedings on the Internet, as 

opposed to in newspapers, will 

disenfranchise property owners, 

particularly those who the Newspaper 

Group believes may not have ready 

Internet access. 

Response: The Newspaper Group’s 

comment makes passing mention of the 

fact that for several years the 

Department has been using the Internet 

to afford public notice of ‘‘other 

forfeiture notices from other federal 

agencies.’’ This is, however, a point 

worthy of emphasis at the outset. 

Civil judicial forfeitures have been 

governed, since December 1, 2006, by 

Rule G of the Supplemental Rule for 

Admiralty or Maritime Claims and Asset 

Forfeiture Actions, Federal Rule of Civil 

Procedure (‘‘Supplemental Rule G’’). 

Since its inception, Supplemental Rule 

G(4)(A)(iv)(C) has provided two 

alternative means of affording public 

notice of civil judicial forfeitures: (1) 

Publication once a week for three 

consecutive weeks in a newspaper of 

general circulation in the district in 

which the forfeiture action is filed or (2) 

posting notice of the forfeiture on an 

official government forfeiture Web site 

for at least 30 consecutive days. The 

official government Internet Web site for 

posting notices of civil judicial 

forfeitures, www.forfeiture.gov, became 

operational in December 2007. 

In criminal forfeiture cases, postconviction notices of forfeiture are 

published according to the provisions of 

Rule 32.2 of the Federal Rules of 

Criminal Procedure, in conjunction with 

section 853(n)(1) of title 21, United 

States Code. Rule 32.2 was amended 

effective December 1, 2009, to 

incorporate by reference the 

aforementioned notice provisions of 

Supplemental Rule G. See Fed. R. Crim. 

P. 32.2(b)(6)(C). Since then, criminal 

forfeiture notices also have been posted 

on www.forfeiture.gov, thereby 

providing free public access to notices 

of all judicial forfeitures, civil and 

criminal. The success of 

www.forfeiture.gov is confirmed by 

impressive levels of usage; from 2007 to 

July 2011, 72,007 individuals (based on 

unique IP addresses) visited the Web 

site, and the total number of visits was 

158,086. For nearly five years, therefore, 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56097 

1The Rules Enabling Act, 28 U.S.C. 2071–2077, 

authorizes the Supreme Court to prescribe general 

rules of practice and procedure for the federal 

courts. Under the Act, the Judicial Conference, a 

body of federal judges convened by the Chief Justice 

of the United States pursuant to 28 U.S.C. 331, must 

appoint a Standing Committee and may appoint 

advisory committees to recommend new and 

amended procedural rules. See 28 U.S.C. 2073(b). 

The Advisory Committees currently appointed 

consist of the Advisory Committees on the Rules of 

Appellate, Bankruptcy, Civil Procedure, Criminal 

Procedure, and Evidence. New and amended 

procedural rules recommended by the Advisory 

Committees are submitted through the Standing 

Committee to the United States Supreme Court and 

then from the Court to the Congress. See 28 U.S.C. 

2074(a). If the Congress does not act on the 

proposed procedural rules, they become effective 

on December 1 of the year in which they were 

submitted. Id. 

2See Report of Civil Rules Advisory Committee, 

3 (Dec. 16, 2003), available at http:// 

www.uscourts.gov/uscourts/RulesAndPolicies/ 

rules/Reports/CV12-2003.pdf. 

3See Report of Civil Rules Advisory Committee, 

92 (May 17, 2004), available at http:// 

www.uscourts.gov/uscourts/RulesAndPolicies/ 

rules/Reports/CV5-2004.pdf; see also Fed. R. Civ. P. 

Supp. R. G Advisory Committe’s Note. 

the Internet has served as an effective 

and cost-efficient means of providing 

public notice of thousands of federal 

civil and criminal judicial forfeiture 

proceedings. 

Comment: The Newspaper Group’s 

comment asserts that ‘‘[t]he point of 

public notice is to put information 

where people not necessarily looking for 

it are likely to find it.’’ 

Response: The Supreme Court has 

held that, in providing public notice of 

administrative forfeiture proceedings, 

due process requires only that ‘‘the 

Government’s effort be ‘reasonably 

calculated’ to apprise a party of the 

pendency of the action.’’ Dusenbery v. 

United States, 534 U.S. 161, 170 (2002) 

(quoting Mullane v. Central Hanover 

Bank & Trust Co., 339 U.S. 306, 315 

(1950)). Although Dusenbery involved 

direct notice of an administrative 

forfeiture, the same due process 

standard applies to published notice as 

well. See, e.g., United States v. Young, 

421 Fed. Appx. 229, 231, 2011 WL 

1206664 (3d Cir. Apr. 11, 2011). 

The statute governing notices of 

administrative forfeiture requires only 

that ‘‘notice of the seizure * * * and the 

intention to forfeit * * * be published 

for at least three consecutive weeks in 

such manner as the [Attorney General] 

may direct.’’ 19 U.S.C. 1607(a) 

(incorporated by reference and made 

applicable to the Attorney General in 

statutes such as 18 U.S.C. 981(d) and 21 

U.S.C. 881(d)). The statute does not 

require a specific means of publication. 

The means historically selected by the 

Attorney General required that notices 

of administrative forfeiture be published 

‘‘once a week for at least three 

successive weeks in a newspaper of 

general circulation in the judicial 

district in which the [proceeding] for 

forfeiture is brought.’’ See, e.g., 21 CFR 

1316.75(a). This was, throughout most 

of the 20th century, a standard 

‘‘reasonably calculated’’ to provide 

notice to interested parties, 

notwithstanding the fact that many 

interested parties might be far removed 

from the district in question, perhaps 

even in a foreign nation, and without 

ready access to American newspapers of 

general circulation. 

The Department believes that in the 

Internet era, continued adherence to 

newspaper noticing alone places a 

burden on persons desirous of receiving 

notice, including, but certainly not 

limited to: members of our Armed 

Forces serving in foreign lands; other 

persons residing in foreign countries; 

incarcerated persons or those confined 

long-term to health care facilities 

wherever located; or anyone with 

Internet access but far removed from 

outlets carrying up-to-date American 

newspapers of general circulation. By 

contrast, Internet publication will allow 

for continuous access to administrative 

forfeiture notices for at least 30 days on 

a Web site that may easily be found by, 

for example, using the term ‘‘United 

States forfeiture’’ on a search engine. 

Given the current state of technology, 

the Department believes that this 

practice is far more ‘‘reasonably 

calculated’’ to provide public notice of 

forfeiture proceedings to all interested 

persons, whatever their circumstances 

and wherever they might be located. 

Comment: The Newspaper Group’s 

comment assumes that notice of 

administrative forfeitures will be posted 

only on the Web site of the law 

enforcement agency that seized the 

subject property. Based on this 

assumption, the comment highlights the 

alleged deficiencies of using a seizing 

agency Web site for such purposes, and 

concludes that ‘‘[n]ewspapers are a 

better choice for public notice given 

their much broader reach.’’ 

Response: The assumption that the 

Department will publish notices of 

administrative forfeiture proceedings on 

seizing agency Web sites is incorrect. 

The rule authorizes notice on ‘‘an 

official internet government forfeiture 

site,’’ which mirrors the language that 

authorizes Internet notice under 

Supplemental Rule G, discussed supra. 

As with existing judicial forfeiture 

notices, administrative forfeiture notices 

will be posted on www.forfeiture.gov, 

the ‘‘official internet government 

forfeiture site’’ that is dedicated to 

providing notice of federal forfeiture 

proceedings. Therefore, the comment’s 

line of argument about the alleged 

superiority of newspapers over 

individual seizing agency Web sites is 

inapposite. Nonetheless, the Department 

believes the comparative advantages of 

the Internet as opposed to newspapers 

in providing public notice of forfeiture 

proceedings should be addressed more 

broadly. 

The Department, as noted, has had the 

option of publishing notice of civil 

judicial forfeitures through the Internet 

since Supplemental Rule G became 

effective in 2006. Supplemental Rule G 

was drafted by the Advisory Committee 

on Civil Rules (‘‘Committee’’), a group 

composed of federal and state judges, 

private and government attorneys, and 

law professors, that is responsible for 

considering and drafting amendments to 

the Federal Rules of Civil Procedure, 

including the Supplemental Rules.1

The Committee began work on 

Supplemental Rule G in 2003.2 Even 

then, the limitations of newspaper 

publication and the promise of Internet 

publication were readily apparent to the 

Committee. In the Advisory Committee 

Note to Rule G, the Committee observed: 

Newspaper publication is not a particularly 

effective means of notice for most potential 

claimants. Its traditional use is best defended 

by want of affordable alternatives. Paragraph 

[(4)(a)](iv)(C) [of Supplemental Rule G] 

contemplates a government-created internet 

forfeiture site that would provide a single 

easily identified means of notice. Such a site 

would allow much more direct access to 

notice as to any specific property than 

publication provides.3

Ultimately, the Committee’s proposed 

version of Supplemental Rule G(4)(a)(iv) 

authorizing use of the Internet for 

publishing public notice of civil judicial 

forfeiture proceedings, and the Advisory 

Committee Note pertaining thereto, 

were embodied verbatim in the official 

version that was approved by the 

Supreme Court and the Congress and 

became effective on December 1, 2006. 

In devising Supplemental Rule G, the 

Committee acknowledged that the 

Internet, by its nature, offers far greater 

access to forfeiture notices than 

newspapers. Once an Internet 

connection is established, every single 

user anywhere in the world, at any time 

of day, has the ability to access federal 

forfeiture notices online. The same 

cannot be said of notice published 

through a single newspaper, the reach of 

which is limited numerically to the 

amount of people who read a given 

edition and geographically by 

circulation limitations. Indeed, the 

statistic cited in the Newspaper Group’s 

comment that nearly 100 million adults 

read a newspaper on an average 


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56098 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

4U.S. Department of Commerce, Digital Nation— 

Expanding Internet Usage (Digital Nation), available 

at http://www.ntia.doc.gov/files/ntia/publications/ 

ntia_internet_use_report_february_2011.pdf. 

5 John Carlo Bertot, et al., Libraries Connect 

Communities: Public Library Funding & Technology 

Access Study 2010–2011 (Libraries Connect 

Communities), at 3, available at http:// 

viewer.zmags.com/publication/857ea9fd. 

6Samantha Becker, et al., Opportunity for All: 

How the American Public Benefits from Internet 

Access at U.S. Libraries (Opportunity for All), at 32, 

available at http://impact.ischool.washington.edu/ 

documents/OPP4ALL_FinalReport.pdf. 

7Pew Research Center, The State of the News 

Media 2011, at 8, available at http:// 

stateofthemedia.org/2011/newspapers-essay/datapage-6. 

weekday is irrelevant for present 

purposes, as it reflects the total 

readership of all newspapers combined, 

which is not the equivalent of 100 

million people having access to notices 

published through a single newspaper. 

Supplemental Rule G was also drafted 

against the backdrop of a dramatic rise 

in Internet usage coinciding with a 

precipitous decline in newspaper 

circulation. Since 2003, these trends 

have only accelerated. The most recent 

and comprehensive analysis of Internet 

penetration is Digital Nation— 

Expanding Internet Usage, published by 

the U.S. Department of Commerce, 

National Telecommunications & 

Information Administration, in February 

2011.4 Statistics from this report show 

that ‘‘an estimated 209 million 

Americans—about 72% of all adults and 

children aged three years and older— 

use the internet somewhere, whether at 

home, the workplace, schools, libraries, 

or a neighbor’s house.’’ Digital Nation at 

28 (emphasis omitted). This represents 

an increase from 68.4% (197.9 million) 

in 2009. Id. at 17. Internet use through 

libraries is particularly important, as it 

provides the most widespread 

availability of free and regular Internet 

access to the general public. The 

American Library Association’s Public 

Library Funds & Technology Access 

Study (2010–2011) reports that 99.3% of 

public libraries offer public access to 

computers and the Internet.5 According 

to a study by the University of 

Washington, a third of Americans 14 

and older, or about 77 million people, 

use public library computers.6

As Internet use has expanded, the 

circulation of printed newspapers has 

continued to decline. According to The 

State of the News Media 2011, a report 

issued by the Pew Research Center’s 

Project for Excellence in Journalism, 

daily circulation of U.S. newspapers has 

declined 30% in the last 10 years, from 

62.3 million in 1990 to 43.4 million in 

2010.7 This negative trend is reflected 

by national papers such as USA Today, 

which in just the past two years has 

seen its circulation decline by 460,000, 

and by big-city metro newspapers such 

as the Newark Star Ledger and the San 

Francisco Chronicle, each of which lost 

about a third of its daily circulation over 

the same period. Id. at 9. 

In addition to enhanced accessibility 

and reach, another factor in favor of 

publishing forfeiture notices through the 

Internet is cost. The Advisory 

Committee that drafted Supplemental 

Rule G advised in the note pertaining to 

subpart (4)(a) that, in choosing between 

newspapers and the Internet as the 

means for providing public notice, the 

Government ‘‘should choose * * * a 

method that is reasonably likely to reach 

potential claimants at a cost reasonable 

in the circumstances.’’ Fed. R. Civ. P. 

Supp. R. G Advisory Committee’s Note 

(2006) (emphasis added). Currently, 

according to the Department’s Justice 

Management Division, the Department 

pays between $10,000 and $12,000 per 

day in noticing costs to newspapers. 

Alternatively, publishing those same 

notices on www.forfeiture.gov, a fully 

operational Web site, would be of little 

to no additional cost to the Government. 

Comment: The Newspaper Group’s 

comment predicts that transitioning 

from newspapers to the Internet as a 

means of providing public notice of 

administrative forfeiture proceedings 

will disenfranchise the following 

groups: key stakeholders, fractional 

property stakeholders, the poor, rural 

residents, minorities, senior citizens, the 

disabled, and the ill. 

Response: The Department is 

sensitive to this concern but does not 

agree that using the Internet to provide 

public notice of administrative 

forfeiture proceedings will adversely 

affect these groups. 

Before addressing the substance of 

this particular comment, it is important 

to note two critical points to place the 

Department’s response in the 

appropriate context. First, the public 

notice authorized by § 8.9(a) will be in 

addition to the personal written direct 

notice that must be provided, generally 

by mail, directly to every person known 

to the Government who appears to have 

an interest in the property to be 

forfeited. See § 8.9(b); see also 19 U.S.C. 

1607(a). Thus, the relevant category of 

people in the groups identified in the 

comment is limited only to those 

individuals who have an interest in the 

seized property unknown to the 

Government, or to those who have an 

interest known to the Government, but 

for whom the Government lacks 

accurate contact information. Only these 

individuals will have to rely on public 

notice. All other owners—those with 

known interests and contact 

information—will receive personal 

written notice of the forfeiture 

proceedings. Second, the proposed 

regulation affords the Government the 

option of using the Internet to provide 

public notice of administrative 

forfeiture proceedings. If the 

Government has reason to anticipate 

that Internet publication may not be 

effective in a given case, it retains the 

option of simultaneously publishing 

notice in a newspaper. 

Key stakeholders 

Comment: The comment identifies 

prisoners and frequent travelers as ‘‘key 

stakeholders’’ whose interests allegedly 

would not be served by Internet notice, 

instead of newspaper notice, of 

administrative forfeiture proceedings. 

Response: Like anyone else, prisoners 

who are known by the Government to 

have an interest in any seized property 

are entitled to personal written notice 

from the Government of any federal 

forfeiture proceedings against the 

property. Moreover, if a prisoner’s 

interest in property subject to forfeiture 

is not known to the Government, there 

is nothing to guarantee under the 

current regulations that the prisoner 

will have access to the few newspapers 

of general circulation that publish 

forfeiture notices. The Newspaper 

Group’s comment acknowledges that 

prisoners lack access to newspapers, but 

maintains that news of the forfeiture 

could be provided to them through 

someone the prisoner knows who sees 

the notice in a local newspaper. The 

Department believes that it is unlikely 

that a significant number of prisoners 

currently receive forfeiture notices in 

this fashion, as it would require 

someone who knows of the prisoner’s 

interest in the property to come across 

a forfeiture notice of personal property 

in the correct newspaper of general 

circulation, to recognize, from both the 

property description and the date and 

place of seizure, that the notice pertains 

to the prisoner’s property, and then to 

convey this information to the prisoner. 

The Department does not believe that 

such a scenario will become 

significantly less likely to transpire if 

the notice of the forfeiture is published 

on the Internet. 

For similar reasons, the Department 

does not believe that a traveling 

property stakeholder will be 

disadvantaged by this change in 

noticing practice. The accessibility of 

general circulation U.S. newspapers is 

quite limited outside the United States, 

whereas Internet access to the Federal 

Government’s Internet forfeiture site is 

readily available in most parts of the 

world. If the Government is unaware of 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56099 

8See Rural Utilities Service, Satellite Awards, 

Broadband Initiatives Program, available at http:// 

www.rurdev.usda.gov/Publications/ 

BIPSatelliteFactSheet10-20-10.pdf. 

a stakeholder’s interest in property and 

thus does not provide personal written 

notice to the stakeholder, the most 

likely source for conveying news of the 

seizure to the stakeholder would be an 

associate of the stakeholder who knows 

of both the seizure and the stakeholder’s 

ownership interest. After being alerted 

of the seizure, it should be easier for the 

traveling stakeholder to find Internet 

access than to find and purchase the 

correct daily issue of a particular U.S. 

newspaper. 

Fractional property stakeholders 

Comment: The Newspaper Group’s 

comment asserts that the ‘‘rights of a coowner may not be clear to the seizing 

agency, and the malfeasance of the 

property holder may not be clear to 

minority owners, divorced spouses, 

unregistered lien holders and others 

who might not be reached by any 

personal notice.’’ 

Response: All persons, including 

fractional property stakeholders, whose 

interest in seized property is known to 

the Government, are entitled to personal 

notice of administrative forfeiture 

proceedings. In those cases in which a 

fractional property stakeholder is not 

known to the Government, the 

Newspaper Group contends that those 

individuals are more likely to learn of 

the forfeiture proceedings through 

newspaper rather than Internet notice. 

But even if such a contention could be 

verified, the Government is not required 

to provide the most effective notice, 

only one ‘‘reasonably calculated’’ to 

apprise a party of the pendency of the 

action. See Dusenbery, 534 U.S. at 170. 

The Poor 

Comment: The comment maintains 

that the proposed rule would require 

property stakeholders to have basic 

technical skills and access to a costly 

computer, thus adversely affecting the 

poor. 

Response: As previously noted, 

Internet access is widely available even 

for those who do not own a computer. 

Also, the statistics cited above suggest 

that finding the right newspaper on the 

specific dates a particular notice is 

published may be even more difficult 

and unlikely to provide greater access to 

the notice for such property 

stakeholders, regardless of whether they 

own a computer or possess the required 

technical skills. According to a 2010 

University of Washington study, those 

living below the poverty line had the 

highest use of library computers, with 

44% having reported using public 

library computers for Internet access 

during the previous year. Opportunity 

for All, supra n.6, at 2. Further, it seems 

unreasonable to assume that individuals 

too poor to own a computer will 

nonetheless have the resources to 

subscribe to, or purchase at retail, a 

newspaper of general circulation, such 

as The Wall Street Journal, until they 

obtain an issue containing the forfeiture 

notice for the property in which they 

have an interest. 

Comment: Newspapers may be 

written in time-honored basic news 

language, not legalese. 

Response: Forfeiture notices currently 

posted on www.forfeiture.gov use the 

same language as those in newspapers. 

Comment: Newspapers ‘‘may be 

written in Spanish or German or 

Swahili to address a specific nonEnglish-speaking community.’’ 

Response: Non-English newspapers 

are not newspapers of ‘‘general 

circulation’’ in the United States and 

thus cannot be used to publish forfeiture 

notices. 

Rural Areas 

Comment: Statistics show that ‘‘many 

rural areas use dial-up connections 

because broadband is unavailable.’’ 

Response: Dial-up, though it may be 

slower than other means of 

connectivity, still provides access to the 

Internet. Furthermore, the Digital 

Nation study cited previously notes that 

the ‘‘urban-rural gap in Internet use 

anywhere receded from 4.4 percentage 

points (69.3% versus 64.9%) in 2009, to 

3.6 percentage points (72.4% versus 

68.8%) in 2010.’’ See Digital Nation, 

supra n.4, at 17. There is reason to 

expect this trend to continue as rural 

areas lacking ‘‘meaningful internet 

service’’ should benefit from recent 

federal initiatives to expand broadband 

Internet access in rural areas, including 

over $3.5 billion in awards under the 

Broadband Initiatives Program (funded 

by the American Recovery and 

Reinvestment Act of 2009), as well as 

ongoing rural broadband loan programs 

administered by the U.S. Department of 

Agriculture’s Rural Utilities Service.8

Minorities, Senior Citizens, the 

Disabled, the Ill 

Comment: The Newspaper Group 

asserts that ‘‘[s]urvey after survey has 

shown that particular classes will be 

disenfranchised if notices are solely 

placed on internet sites because certain 

classes are less likely to have access to 

the internet.’’ 

Response: With respect to minorities, 

senior citizens, the disabled, and the ill, 

the same general themes apply: The 

Internet offers greater accessibility to 

public administrative forfeiture notices 

than newspapers of general circulation 

for such individuals and their associates 

and thus increases the likelihood that 

affected individuals in these groups will 

be notified of a seizure in which they 

have an interest. While average use of 

the Internet by these groups may be 

lower than it is by other groups, it does 

not follow that they will be 

‘‘disenfranchised’’ if administrative 

forfeiture notices are published only 

through the Internet, and the comment 

does not point to information that says 

otherwise. But even if the Newspaper 

Group’s conclusions could be verified, 

that would not alter the fact that the 

Government is not required to provide 

the most effective notice, only one 

‘‘reasonably calculated’’ to apprise a 

party of the pendency of the action. See 

Dusenbery, 534 U.S. at 170. 

Comment: According to the 

Newspaper Group’s comment, ‘‘libraries 

and community centers have limited 

budgets and can only purchase and 

maintain a limited number of 

computers,’’ and some even have ‘‘long 

lines and limited hours of operation.’’ 

Response: The Department 

acknowledges that libraries and 

community centers may have limited 

resources, but does not believe that the 

limitations of public Internet access are 

significant enough to warrant 

modification to the final rule. As noted 

previously, 99.3% of public libraries 

offer public access to computers and the 

Internet, enabling a large swath of the 

population to access online forfeiture 

notices. See Libraries Connect 

Communities, supra n.5, at 3. 

Comment: The Newspaper Group’s 

comment claims that government 

Internet posting of notice does not 

comport with a ‘‘long tradition’’ that 

public notice must include four 

elements: the notice must be published 

by an independent third party, the 

publication must be capable of being 

archived at a reasonable cost, the notice 

must be accessible, and the notice must 

be verifiable. 

Response: The comment does not 

reference any statutory or case law to 

support the proposition that public 

notice must include these four elements. 

The Department notes that the 

applicable requirements for notice are 

encompassed in the constitutional due 

process standard governing notice of 

forfeiture proceedings discussed earlier. 

The element referenced in the 

comment requiring that notice be 

published by an independent third 

party presumes that newspapers, being 

‘‘independent of the government,’’ 

provide the public with ‘‘an extra layer 


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56100 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

of confidence in the notice’’ than if the 

government published them itself. But 

this argument mistakes why newspapers 

were used in the past and the role they 

serve in the notice process. Newspapers 

were historically used to provide public 

notice because, until the Internet, there 

was no comparable alternative method 

that was ‘‘reasonably calculated’’ to 

apprise a party of the pendency of the 

forfeiture action. It had nothing to do 

with their status as an ‘‘independent 

and neutral third party.’’ In fact, for 

these purposes, there is nothing 

inherently beneficial about newspapers 

being independent from the 

Government given that they merely act 

as a vehicle for publishing notices 

prepared and provided by the seizing 

agencies. 

The comment suggests that records of 

Internet notices of federal forfeiture 

proceedings will be incomplete or 

inadequate, citing statistics about 

backlog and budget issues at the 

National Archives and Records 

Administration (‘‘NARA’’). The 

Department does not find this comment 

persuasive. As an initial matter, the 

statistics about NARA are irrelevant, as 

NARA is not charged with preserving 

forfeiture notices. Furthermore, all 

information concerning notices posted 

on www.forfeiture.gov is carefully 

maintained and archived, enabling the 

Government to provide appropriate 

verification of such information to 

courts as necessary. This verification, in 

the form of an affidavit to the court 

verifying the public notice that was 

given, has proven satisfactory to courts. 

The Department believes that this 

method for noticing judicial forfeitures 

will work as well with respect to public 

notices of administrative forfeitures 

posted on the same government Web 

site. Further, the process of providing 

legal verification of Internet notice is 

dramatically streamlined when it is the 

Government that can retrieve the 

required data from its own Web site, as 

opposed to seeking such verification 

from newspapers. Finally, the 

Department notes that this regulatory 

change should correspondingly decrease 

the burden on newspapers of having to 

provide such information. 

Comment: Many newspapers have 

adopted a marketing strategy that 

publishes an issue in print and the 

identical publication issue is then 

posted on the newspaper’s Internet site 

on a daily basis. The Government’s 

Internet sites will not be as user-friendly 

as the newspaper’s dual method of print 

and Internet notification. 

Response: The Department does not 

agree that posting forfeiture notices on 

newspaper Web sites is superior to 

posting them on www.forfeiture.gov. 

Online posting is not part of the 

Government’s contracts for publication 

of forfeiture notices, so newspapers are 

under no obligation to make them freely 

available to the public online. Moreover, 

some newspaper Web sites restrict 

access to the full online version of the 

newspaper to print subscribers or those 

who pay for full online access. A 

potential claimant searching for notice 

of seized property on such a Web site 

would either need a subscription to the 

newspaper that is publishing the 

forfeiture notice or have to pay a daily 

access fee. The potential claimant 

would then have to access the 

newspaper’s Web site, go into the full 

online edition, search for the forfeiture 

notice regarding his or her property, and 

select the exact issue in which the oncea-week notice concerning the property 

is published. The Department believes it 

is unrealistic to assume that such a 

process would provide more effective 

notice than a freely available Web site 

dedicated only to forfeiture notices that 

posts the desired notice, 24 hours a day, 

for at least 30 consecutive days, in a 

searchable database. 

Comment: The Newspaper Group’s 

comment challenges the Department to 

support its contention that ‘‘internet 

sites are more cost effective and reach 

more people.’’ 

Response: The Department believes it 

has demonstrated above how providing 

public notice through the Internet can— 

and indeed already does—reach more 

people, more easily, and more directly, 

than newspaper notice. Meanwhile, the 

cost savings of Internet notice are 

significant. As noted, the Department 

currently pays approximately $10,000– 

$12,000 a day, or between $3.5 and $4.5 

million a year, in noticing costs to 

newspapers. On the other hand, there is 

very little cost to the Government in 

adding public notices of administrative 

forfeiture proceedings to 

www.forfeiture.gov, an existing and fully 

operational Web site. Thus, the cost 

savings to the Government will be what 

the Department currently pays for 

publication of such forfeiture notices 

through newspapers. 

Regulatory Certifications 

Executive Order 12866 and Executive 

Order 13563—Regulatory Planning and 

Review 

This rule complies with the 

requirement under Section 6 of 

Executive Order 13563 to modify and 

streamline outmoded and burdensome 

regulations. Specifically, in terms of 

updates, the rule recognizes that as of 

2002 the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF) became 

part of the Department, and consolidates 

the regulations governing the seizure 

and administrative forfeiture of property 

by ATF with those of DEA and the FBI. 

In terms of burden, the rule would add 

the option of publishing notices for 

administrative forfeitures on an official 

government Internet site instead of in a 

newspaper, potentially saving over 

$10,000 per day. 

Further, this regulation has been 

drafted and reviewed in accordance 

with Executive Order 12866, section 

1(b), Principles of Regulation. The 

Department has determined that this 

rule is a ‘‘significant regulatory action’’ 

under Executive Order 12866, section 

3(f), and accordingly this rule has been 

reviewed by the Office of Management 

and Budget (OMB). The costs that this 

rule imposes (such as additional 

personnel and higher administrative 

overhead) fall upon the Department, not 

upon the general public. The benefits of 

this rule, however, are numerous. The 

rule increases the efficiency of 

forfeitures, requires that the agencies 

provide prompt due process and notice, 

requires that property be promptly 

returned to third parties if appropriate, 

eliminates the cost bond and its 

administrative burden, and requires 

more effective processing and handling 

of currency. Moreover, providing 

agencies with the option of publishing 

administrative forfeiture notices on the 

Government’s dedicated forfeiture Web 

site will save the $10,000 to $12,000 a 

day agencies currently spend providing 

notice through newspapers. Such notice 

will be available through the Internet at 

no cost to the general public. For the 

reasons explained in its response to 

comments, the Department maintains 

the benefits of publishing notices on the 

newspapers in all circumstances, in 

addition to the Internet, do not justify 

the costs. 

Executive Order 12630—Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

Executive Order 12630, section 2(a)(3) 

specifically exempts from the definition 

of ‘‘policies that have takings 

implications’’ the seizure and forfeiture 

of property for violations of law. 

Therefore, no actions were deemed 

necessary under the provisions of 

Executive Order 12630. 

Executive Order 12988—Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56101 

Executive Order 13132—Federalism 

This rule will not have substantial 

direct effects on the states, on the 

relationship between the Federal 

Government and the states, or on 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this rule does not 

have sufficient federalism implications 

to warrant the preparation of a 

Federalism Assessment. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act (5 

U.S.C. 605(b)), has reviewed this 

regulation, and by approving it certifies 

that it will not have a significant 

economic impact on a substantial 

number of small entities. Some owners 

of property subject to administrative or 

judicial forfeiture under laws enforced 

by ATF, DEA, FBI, and the Department’s 

Criminal Division may be small 

businesses as defined under the 

Regulatory Flexibility Act, and under 

size standards established by the Small 

Business Administration. Although the 

regulations affect every administrative 

forfeiture initiated by ATF, DEA, and 

FBI, and every remission or mitigation 

decision by the agencies or the 

Department’s Criminal Division, the 

rule will not change existing forfeiture 

laws. It will only revise and consolidate 

the seizure and forfeiture regulations of 

ATF, DEA, FBI, and the Criminal 

Division to conform to CAFRA, and to 

fill gaps and address ambiguities in 

CAFRA and other seizure and forfeiture 

laws. Accordingly, an initial regulatory 

flexibility analysis is not required. 

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, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100,000,000 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. 

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 $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995, Public Law 104–9, 44 U.S.C. 

3518. 

Paperwork Reduction Act of 1995 

This final rule does not call for a 

‘‘collection of information’’ that requires 

approval by OMB under the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., because any information collected 

in connection with forfeiture 

proceedings would fall within the 

exceptions to the PRA listed in 44 

U.S.C. 3518(c) and 5 CFR 1320.4. 

The particular exception that applies 

to information collected in connection 

with a forfeiture action depends on the 

type of forfeiture proceeding that is 

occurring. Information collected in 

connection with an administrative 

forfeiture would fall within the section 

3518(c)(1)(B)(ii) exception for the 

collection of information during an 

‘‘administrative action * * * involving 

an agency against specific individuals or 

entities.’’ 

If a claim is properly filed in the 

administrative forfeiture, federal 

prosecutors must file a civil forfeiture 

complaint against the property, include 

it in a criminal indictment within the 

deadlines laid out by CAFRA, or return 

the property. Information collected in 

connection with a civil forfeiture would 

fall under the section 3518(c)(1)(B)(ii) 

exception for collection of information 

during ‘‘a civil action to which the 

United States * * * is a party.’’ 

Alternatively, if the prosecutors include 

the property in a criminal indictment, 

any collection of information would 

occur ‘‘during the conduct of a Federal 

criminal investigation * * * or during 

the disposition of a particular criminal 

matter’’ and would fall under the 

exception of section 3518(c)(1)(A). 

Thus, because a claim or petition filed 

in forfeiture proceedings would fall 

within one of the exceptions to the PRA, 

the final rule does not call for a 

collection of information under that 

statute and accordingly does not require 

the prior approval of OMB. 

List of Subjects 

21 CFR Part 1316 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Drug traffic 

control, Research, Seizures and 

forfeitures. 

28 CFR Part 8 

Administrative practice and 

procedure, Arms and munitions, 

Communications equipment, Copyright, 

Crime, Gambling, Infants and children, 

Motor vehicles, Prices, Seizures and 

forfeitures, Wiretapping and electronic 

surveillance. 

28 CFR Part 9 

Administrative practice and 

procedure, Crime, Seizures and 

forfeitures. 

Accordingly, for the reasons set forth 

in the preamble, under the authority of 

5 U.S.C. 301, Chapter II of Title 21 and 

Chapter I of Title 28 of the Code of 

Federal Regulations are amended as 

follows: 

TITLE 21—FOOD AND DRUGS 

PART 1316—ADMINISTRATIVE 

FUNCTIONS, PRACTICES, AND 

PROCEDURES 

Subparts E and F [Removed] 

■ 1. Remove 2l CFR part 1316, subparts 

E and F. 

TITLE 28—JUDICIAL 

ADMINISTRATION 

■ 2. Revise part 8 to read as follows: 

PART 8—FORFEITURE AUTHORITY 

FOR CERTAIN STATUTES 

Subpart A—Seizure and Forfeiture of 

Property 

Sec. 

8.1 Scope of regulations. 

8.2 Definitions. 

8.3 Seizing property subject to forfeiture. 

8.4 Inventory. 

8.5 Custody. 

8.6 Appraisal. 

8.7 Release before claim. 

8.8 Commencing the administrative 

forfeiture proceeding. 

8.9 Notice of administrative forfeiture. 

8.10 Claims. 

8.11 Interplay of administrative and 

criminal judicial forfeiture proceedings. 

8.12 Declaration of administrative 

forfeiture. 

8.13 Return of property pursuant to 18 

U.S.C. 983(a)(3)(B). 

8.14 Disposition of property before 

forfeiture. 

8.15 Requests for hardship release of seized 

property. 

8.16 Attorney fees and costs. 

Subpart B—Expedited Forfeiture 

Proceedings for Property Seizures Based 

on Violations Involving the Possession of 

Personal Use Quantities of a Controlled 

Substance 

8.17 Purpose and scope. 

8.18 Definitions. 

8.19 Petition for expedited release in an 

administrative forfeiture proceeding. 

8.20 Ruling on petition for expedited 

release in an administrative forfeiture. 

8.21 Posting of substitute monetary amount 

in an administrative forfeiture. 

8.22 Special notice provision. 


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Subpart C—Other Applicable Provisions 

8.23 Redelegation of authority. 

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 

1324(b); 18 U.S.C. 981, 983, 3051; 19 U.S.C. 

1606, 1607, 1608, 1610, 1612(b), 1613, 1618; 

21 U.S.C. 822, 871, 872, 880, 881, 883, 958, 

965; 28 U.S.C. 509, 510; Pub. L. 100–690, sec. 

6079, 102 Stat. 4181. 

Subpart A—Seizure and Forfeiture of 

Property 

§ 8.1 Scope of regulations. 

(a) This part applies to all forfeitures 

administered by the Department of 

Justice with the exception of seizures 

and forfeitures under the statutes listed 

in 18 U.S.C. 983(i)(2). The authority of 

seizing agencies to conduct 

administrative forfeitures derives from 

the procedural provisions of the 

Customs laws (19 U.S.C. 1602–1618) 

where those provisions are incorporated 

by reference in the substantive forfeiture 

statutes enforced by the agencies. 

(b) The regulations in this part will 

apply to all forfeiture actions 

commenced on or after October 12, 

2012. 

§ 8.2 Definitions. 

As used in this part, the following 

terms shall have the meanings specified: 

Administrative forfeiture means the 

process by which property may be 

forfeited by a seizing agency rather than 

through a judicial proceeding. 

Administrative forfeiture has the same 

meaning as nonjudicial forfeiture, as 

that term is used in 18 U.S.C. 983. 

Appraised value means the estimated 

market value of property at the time and 

place of seizure if such or similar 

property were freely offered for sale by 

a willing seller to a willing buyer. 

Appropriate official means, in the 

case of the Drug Enforcement 

Administration (DEA), the Forfeiture 

Counsel, DEA. In the case of the Bureau 

of Alcohol, Tobacco, Firearms, and 

Explosives (ATF), it means the 

Associate Chief Counsel, Office of Chief 

Counsel, ATF. In the case of the Federal 

Bureau of Investigation (FBI), it means 

the Unit Chief, Legal Forfeiture Unit, 

Office of the General Counsel, FBI, 

except as used in §§ 8.9(a)(2), 8.9(b)(2), 

8.10, and 8.15, where the term 

appropriate official means the office or 

official identified in the published 

notice or personal written notice in 

accordance with § 8.9. 

Civil forfeiture proceeding means a 

civil judicial forfeiture action as that 

term is used in 18 U.S.C. 983. 

Contraband means— 

(1) Any controlled substance, 

hazardous raw material, equipment or 

container, plants, or other property 

subject to summary forfeiture pursuant 

to sections 511(f) or (g) of the Controlled 

Substances Act (21 U.S.C. 881(f) or (g)); 

or 

(2) Any controlled substance 

imported into the United States, or 

exported out of the United States, in 

violation of law. 

Domestic value means the same as the 

term appraised value as defined in this 

section. 

Expense means all costs incurred to 

detain, inventory, safeguard, maintain, 

advertise, sell, or dispose of property 

seized, detained, or forfeited pursuant to 

any law. 

File or filed has the following 

meanings: 

(1) A claim or any other document 

submitted in an administrative 

forfeiture proceeding is not deemed 

filed until actually received by the 

appropriate official identified in the 

personal written notice and the 

published notice specified in § 8.9. It is 

not considered filed if it is received by 

any other office or official, such as a 

court, U.S. Attorney, seizing agent, local 

ATF or DEA office, or FBI Headquarters. 

In addition, a claim in an administrative 

forfeiture proceeding is not considered 

filed if received only by an electronic or 

facsimile transmission. 

(2) For purposes of computing the 

start of the 90-day period set forth in 18 

U.S.C. 983(a)(3), an administrative 

forfeiture claim is filed on the date 

when the claim is received by the 

designated appropriate official, even if 

the claim is received from an 

incarcerated pro se prisoner. 

Interested party means any person 

who reasonably appears to have an 

interest in the property based on the 

facts known to the seizing agency before 

a declaration of forfeiture is entered. 

Mail includes regular or certified U.S. 

mail and mail and package 

transportation and delivery services 

provided by other private or commercial 

interstate carriers. 

Nonjudicial forfeiture has the same 

meaning as administrative forfeiture as 

defined in this section. 

Person means an individual, 

partnership, corporation, joint business 

enterprise, estate, or other legal entity 

capable of owning property. 

Property subject to administrative 

forfeiture means any personal property 

of the kinds described in 19 U.S.C. 

1607(a). 

Property subject to forfeiture refers to 

all property that federal law authorizes 

to be forfeited to the United States of 

America in any administrative forfeiture 

proceeding, in any civil judicial 

forfeiture proceeding, or in any criminal 

forfeiture proceeding. 

Seizing agency refers to ATF, DEA, or 

FBI. 

§ 8.3 Seizing property subject to forfeiture. 

(a) Authority of seizing agents. All 

special agents of any seizing agency may 

seize assets under any federal statute 

over which the agency has investigative 

or forfeiture jurisdiction. 

(b) Turnover of assets seized by state 

and local agencies. 

(1) Property that is seized by a state 

or local law enforcement agency and 

transferred to a seizing agency for 

administrative or civil forfeiture may be 

adopted for administrative forfeiture 

without the issuance of any federal 

seizure warrant or other federal judicial 

process. 

(2) Where a state or local law 

enforcement agency maintains custody 

of property pursuant to process issued 

by a state or local judicial authority, and 

notifies a seizing agency of the 

impending release of such property, the 

seizing agency may seek and obtain a 

federal seizure warrant in anticipation 

of a state or local judicial authority 

releasing the asset from state process for 

purposes of federal seizure, and may 

execute such seizure warrant when the 

state or local law enforcement agency 

releases the property as allowed or 

directed by its judicial authority. 

§ 8.4 Inventory. 

The seizing agent shall prepare an 

inventory of any seized property. 

§ 8.5 Custody. 

(a) All property seized for forfeiture 

by ATF, DEA, or FBI shall be delivered 

to the custody of the U.S. Marshals 

Service (USMS), or a custodian 

approved by the USMS, as soon as 

practicable after seizure, unless it is 

retained as evidence by the seizing 

agency. 

(b) Seized U.S. currency (and, to the 

extent practicable, seized foreign 

currency and negotiable instruments) 

must be deposited promptly in the 

Seized Asset Deposit Fund pending 

forfeiture. Provisional exceptions to this 

requirement may be granted as follows: 

(1) If the seized currency has a value 

less than $5,000 and a supervisory 

official within a U.S. Attorney’s Office 

determines in writing that the currency 

is reasonably likely to serve a 

significant, independent, tangible 

evidentiary purpose, or that retention is 

necessary while the potential 

evidentiary significance of the currency 

is being determined by scientific testing 

or otherwise; or 

(2) If the seized currency has a value 

greater than $5,000 and the Chief of the 

Asset Forfeiture and Money Laundering 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56103 

Section (AFMLS), Criminal Division, 

determines in writing that the currency 

is reasonably likely to serve a 

significant, independent, tangible 

evidentiary purpose, or that retention is 

necessary while the potential 

evidentiary significance of the currency 

is being determined by scientific testing 

or otherwise. 

(c) Seized currency has a significant 

independent, tangible evidentiary 

purpose as those terms are used in 

§ 8.5(b)(1) and (b)(2) if, for example, it 

bears fingerprint evidence, is packaged 

in an incriminating fashion, or contains 

a traceable amount of narcotic residue 

or some other substance of evidentiary 

significance. If only a portion of the 

seized currency has evidentiary value, 

only that portion should be retained; the 

balance should be deposited. 

§ 8.6 Appraisal. 

The seizing agency or its designee 

shall determine the domestic value of 

seized property as soon as practicable 

following seizure. 

§ 8.7 Release before claim. 

(a) After seizure for forfeiture and 

prior to the filing of any claim, ATF’s 

Chief, Asset Forfeiture and Seized 

Property Branch, or designee, the 

appropriate DEA Special Agent in 

Charge, or designee, or the appropriate 

FBI Special Agent in Charge, or 

designee, whichever is applicable, is 

authorized to release property seized for 

forfeiture, provided: 

(1) The property is not contraband, 

evidence of a violation of law, or any 

property, the possession of which by the 

claimant, petitioner, or the person from 

whom it was seized is prohibited by 

state or federal law, and does not have 

a design or other characteristic that 

particularly suits it for use in illegal 

activities; and 

(2) The official designated in 

paragraph (a) of this section determines 

within 10 days of seizure that there is 

an innocent party with the right to 

immediate possession of the property or 

that the release would be in the best 

interest of justice or the Government. 

(b) Further, at any time after seizure 

and before any claim is referred, such 

seized property may be released if the 

appropriate official of the seizing agency 

determines that there is an innocent 

party with the right to immediate 

possession of the property or that the 

release would be in the best interest of 

justice or the Government. 

§ 8.8 Commencing the administrative 

forfeiture proceeding. 

An administrative forfeiture 

proceeding begins when notice is first 

published in accordance with § 8.9(a), 

or the first personal written notice is 

sent in accordance with § 8.9(b), 

whichever occurs first. 

§ 8.9 Notice of administrative forfeiture. 

(a) Notice by publication. (1) After 

seizing property subject to 

administrative forfeiture, the 

appropriate official of the seizing agency 

shall select from the following options 

a means of publication reasonably 

calculated to notify potential claimants 

of the seizure and intent to forfeit and 

sell or otherwise dispose of the 

property: 

(i) Publication once each week for at 

least three successive weeks in a 

newspaper generally circulated in the 

judicial district where the property was 

seized; or 

(ii) Posting a notice on an official 

internet government forfeiture site for at 

least 30 consecutive days. 

(2) The published notice shall: 

(i) Describe the seized property; 

(ii) State the date, statutory basis, and 

place of seizure; 

(iii) State the deadline for filing a 

claim when personal written notice has 

not been received, at least 30 days after 

the date of final publication of the 

notice of seizure; and 

(iv) State the identity of the 

appropriate official of the seizing agency 

and address where the claim must be 

filed. 

(b) Personal written notice. (1) 

Manner of providing notice. After 

seizing property subject to 

administrative forfeiture, the seizing 

agency, in addition to publishing notice, 

shall send personal written notice of the 

seizure to each interested party in a 

manner reasonably calculated to reach 

such parties. 

(2) Content of personal written notice. 

The personal written notice sent by the 

seizing agency shall: 

(i) State the date when the personal 

written notice is sent; 

(ii) State the deadline for filing a 

claim, at least 35 days after the personal 

written notice is sent; 

(iii) State the date, statutory basis, and 

place of seizure; 

(iv) State the identity of the 

appropriate official of the seizing agency 

and the address where the claim must 

be filed; and 

(v) Describe the seized property. 

(c) Timing of notice. (1) Date of 

personal notice. Personal written notice 

is sent on the date when the seizing 

agency causes it to be placed in the 

mail, delivered to a commercial carrier, 

or otherwise sent by means reasonably 

calculated to reach the interested party. 

The personal written notice required by 

§ 8.9(b) shall be sent as soon as 

practicable, and in no case more than 60 

days after the date of seizure (or 90 days 

after the date of seizure by a state or 

local law enforcement agency if the 

property was turned over to a federal 

law enforcement agency for the purpose 

of forfeiture under federal law). 

(2) Civil judicial forfeiture. If, before 

the time period for sending notice 

expires, the Government files a civil 

judicial forfeiture action against the 

seized property and provides notice of 

such action as required by law, personal 

notice of administrative forfeiture is not 

required under paragraph (c)(1) of this 

section. 

(3) Criminal indictment. If, before the 

time period for sending notice under 

paragraph (c)(1) of this section expires, 

no civil judicial forfeiture action is filed, 

but a criminal indictment or 

information is obtained containing an 

allegation that the property is subject to 

forfeiture, the seizing agency shall 

either: 

(i) Send timely personal written 

notice and continue the administrative 

forfeiture proceeding; or 

(ii) After consulting with the U.S. 

Attorney, terminate the administrative 

forfeiture proceeding and notify the 

custodian to return the property to the 

person having the right to immediate 

possession unless the U.S. Attorney 

takes the steps necessary to maintain 

custody of the property as provided in 

the applicable criminal forfeiture 

statute. 

(4) Subsequent federal seizure. If 

property is seized by a state or local law 

enforcement agency, but personal 

written notice is not sent to the person 

from whom the property is seized 

within the time period for providing 

notice under paragraph (c)(1) of this 

section, then any administrative 

forfeiture proceeding against the 

property may commence if: 

(i) The property is subsequently 

seized or restrained by the seizing 

agency pursuant to a federal seizure 

warrant or restraining order and the 

seizing agency sends notice as soon as 

practicable, and in no case more than 60 

days after the date of the federal seizure; 

or 

(ii) The owner of the property 

consents to forfeiture of the property. 

(5) Tolling. (i) In states or localities 

where orders are obtained from a state 

court authorizing the turnover of seized 

assets to a federal seizing agency, the 

period from the date an application or 

motion is presented to the state court for 

the turnover order through the date 

when such order is issued by the court 

shall not be included in the time period 


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56104 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

for providing notice under paragraph 

(c)(1) of this section. 

(ii) If property is detained at an 

international border or port of entry for 

the purpose of examination, testing, 

inspection, obtaining documentation, or 

other investigation relating to the 

importation of the property into, or the 

exportation of the property from, the 

United States, such period of detention 

shall not be included in the period 

described in paragraph (c)(1) of this 

section. In such cases, the 60-day period 

shall begin to run when the period of 

detention ends, if a seizing agency 

seizes the property for the purpose of 

forfeiture to the United States. 

(6) Identity of interested party. If a 

seizing agency determines the identity 

or interest of an interested party after 

the seizure or adoption of the property, 

but before entering a declaration of 

forfeiture, the agency shall send written 

notice to such interested party under 

paragraph (c)(1) of this section not later 

than 60 days after determining the 

identity of the interested party or the 

interested party’s interest. 

(7) Extending deadline for notice. The 

appropriate official of the seizing agency 

may extend the period for sending 

personal written notice under the 

regulations in this part in a particular 

case for a period not to exceed 30 days 

(which period may not be further 

extended except by a court pursuant to 

18 U.S.C. 983(a)(1)(C) and (D)), if the 

appropriate official determines, and 

states in writing, that there is reason to 

believe that notice may have an adverse 

result, including: Endangering the life or 

physical safety of an individual; flight 

from prosecution; destruction of or 

tampering with evidence; intimidation 

of potential witnesses; or otherwise 

seriously jeopardizing an investigation 

or unduly delaying a trial. 

(8) Certification. The appropriate 

official of the seizing agency shall 

provide the written certification 

required under 18 U.S.C. 983(a)(1)(C) 

when the Government requests it and 

the conditions described in section 

983(a)(1)(D) are present. 

§ 8.10 Claims. 

(a) Filing. In order to contest the 

forfeiture of seized property in federal 

court, any person asserting an interest in 

seized property subject to an 

administrative forfeiture proceeding 

under the regulations in this part must 

file a claim with the appropriate official, 

after the commencement of the 

administrative forfeiture proceeding as 

defined in § 8.8, and not later than the 

deadline set forth in a personal notice 

letter sent pursuant to § 8.9(b). If 

personal written notice is sent but not 

received, then the intended recipient 

must file a claim with the appropriate 

official not later than 30 days after the 

date of the final publication of the 

notice of seizure. 

(b) Contents of claim. A claim shall: 

(1) Identify the specific property being 

claimed; 

(2) Identify the claimant and state the 

claimant’s interest in the property; and 

(3) Be made under oath by the 

claimant, not counsel for the claimant, 

and recite that it is made under penalty 

of perjury, consistent with the 

requirements of 28 U.S.C. 1746. An 

acknowledgment, attestation, or 

certification by a notary public alone is 

insufficient. 

(c) Availability of claim forms. The 

claim need not be made in any 

particular form. However, each seizing 

agency conducting forfeitures under the 

regulations in this part must make claim 

forms generally available on request. 

Such forms shall be written in easily 

understandable language. A request for 

a claim form does not extend the 

deadline for filing a claim. Any person 

may obtain a claim form by requesting 

one in writing from the appropriate 

official. 

(d) Cost bond not required. Any 

person may file a claim under § 8.10(a) 

without posting bond, except in 

forfeitures under statutes listed in 18 

U.S.C. 983(i). 

(e) Referral of claim. Upon receipt of 

a claim that meets the requirements of 

§§ 8.10(a) and (b), the seizing agency 

shall return the property or shall 

suspend the administrative forfeiture 

proceeding and promptly transmit the 

claim, together with a description of the 

property and a complete statement of 

the facts and circumstances surrounding 

the seizure, to the appropriate U.S. 

Attorney for commencement of judicial 

forfeiture proceedings. Upon making the 

determination that the seized property 

will be released, the agency shall 

promptly notify the person with a right 

to immediate possession of the property, 

informing that person to contact the 

property custodian within a specified 

period for release of the property, and 

further informing that person that 

failure to contact the property custodian 

within the specified period for release of 

the property will result in abandonment 

of the property pursuant to applicable 

regulations. The seizing agency shall 

notify the property custodian of the 

identity of the person to whom the 

property should be released. The 

property custodian shall have the right 

to require presentation of proper 

identification or to take other steps to 

verify the identity of the person who 

seeks the release of property, or both. 

(f) Premature filing. If a claim is filed 

with the appropriate official after the 

seizure of property, but before the 

commencement of the administrative 

forfeiture proceeding as defined in § 8.8, 

the claim shall be deemed filed on the 

30th day after the commencement of the 

administrative forfeiture proceeding. If 

such claim meets the requirements of 

§ 8.10(b), the seizing agency shall 

suspend the administrative forfeiture 

proceedings and promptly transmit the 

claim, together with a description of the 

property and a complete statement of 

the facts and circumstances surrounding 

the seizure to the appropriate U.S. 

Attorney for commencement of judicial 

forfeiture proceedings. 

(g) Defective claims. If the seizing 

agency determines that an otherwise 

timely claim does not meet the 

requirements of § 8.10(b), the seizing 

agency may notify the claimant of this 

determination and allow the claimant a 

reasonable time to cure the defect(s) in 

the claim. If, within the time allowed by 

the seizing agency, the requirements of 

§ 8.10(b) are not met, the claim shall be 

void and the forfeiture proceedings shall 

proceed as if no claim had been 

submitted. If the claimant timely cures 

the deficiency, then the claim shall be 

deemed filed on the date when the 

appropriate official receives the cured 

claim. 

§ 8.11 Interplay of administrative and 

criminal judicial forfeiture proceedings. 

An administrative forfeiture 

proceeding pending against seized or 

restrained property does not bar the 

Government from alleging that the same 

property is forfeitable in a criminal case. 

Notwithstanding the fact that an 

allegation of forfeiture has been 

included in a criminal indictment or 

information, the property may be 

administratively forfeited in a parallel 

proceeding. 

§ 8.12 Declaration of administrative 

forfeiture. 

If the seizing agency commences a 

timely proceeding against property 

subject to administrative forfeiture, and 

no valid and timely claim is filed, the 

appropriate official of the seizing agency 

shall declare the property forfeited. The 

declaration of forfeiture shall have the 

same force and effect as a final decree 

and order of forfeiture in a federal 

judicial forfeiture proceeding. 

§ 8.13 Return of property pursuant to 18 

U.S.C. 983(a)(3)(B). 

(a) If, under 18 U.S.C. 983(a)(3), the 

United States is required to return 

seized property, the U.S. Attorney in 

charge of the matter shall immediately 

notify the appropriate seizing agency 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56105 

that the 90-day deadline was not met. 

Under this subsection, the United States 

is not required to return property for 

which it has an independent basis for 

continued custody, including but not 

limited to contraband or evidence of a 

violation of law. 

(b) Upon becoming aware that the 

seized property must be released, the 

agency shall promptly notify the person 

with a right to immediate possession of 

the property, informing that person to 

contact the property custodian within a 

specified period for release of the 

property, and further informing that 

person that failure to contact the 

property custodian within the specified 

period for release of the property may 

result in initiation of abandonment 

proceedings against the property 

pursuant to 41 CFR part 128–48. The 

seizing agency shall notify the property 

custodian of the identity of the person 

to whom the property should be 

released. 

(c) The property custodian shall have 

the right to require presentation of 

proper identification and to verify the 

identity of the person who seeks the 

release of property. 

§ 8.14 Disposition of property before 

forfeiture. 

(a) Whenever it appears to the seizing 

agency that any seized property is liable 

to perish or to waste, or to be greatly 

reduced in value during its detention for 

forfeiture, or that the expense of keeping 

the property is or will be 

disproportionate to its value, the 

appropriate official of the seizing agency 

may order destruction, sale, or other 

disposition of such property prior to 

forfeiture. In addition, the owner may 

obtain release of the property by posting 

a substitute monetary amount with the 

seizing agency to be held subject to 

forfeiture proceedings in place of the 

seized property to be released. Upon 

approval by the appropriate official of 

the seizing agency, the property will be 

released to the owner after the payment 

of an amount equal to the Government 

appraised value of the property if the 

property is not evidence of a violation 

of law, is not contraband, and has no 

design or other characteristics that 

particularly suit it for use in illegal 

activities. This payment must be in the 

form of a money order, an official bank 

check, or a cashier’s check made 

payable to the United States Marshals 

Service. A bond in the form of a 

cashier’s check or official bank check 

will be considered as paid once the 

check has been accepted for payment by 

the financial institution that issued the 

check. If a substitute amount is posted 

and the property is administratively 

forfeited, the seizing agency will forfeit 

the substitute amount in lieu of the 

property. The pre-forfeiture destruction, 

sale, or other disposition of seized 

property pursuant to this section shall 

not extinguish any person’s rights to the 

value of the property under applicable 

law. The authority vested in the 

appropriate official under this 

subsection may not be delegated. 

(b) The seizing agency shall 

commence forfeiture proceedings, 

regardless of the disposition of the 

property under § 8.14(a). A person with 

an interest in the property that was 

destroyed or otherwise disposed of 

under § 8.14(a) may file a claim to 

contest the forfeiture of the property or 

a petition for remission or mitigation of 

the forfeiture. No government agent or 

employee shall be liable for the 

destruction or other disposition of 

property made pursuant to § 8.14(a). 

The destruction or other disposition of 

the property pursuant to this section 

does not impair in rem jurisdiction. 

§ 8.15 Requests for hardship release of 

seized property. 

(a) Under certain circumstances a 

claimant may be entitled to immediate 

release of seized property on the basis 

of hardship. 

(b) Any person filing a request for 

hardship release must also file a claim 

to the seized property pursuant to § 8.10 

and as defined in 18 U.S.C. 983(a). 

(c) The timely filing of a valid claim 

pursuant to § 8.10 does not entitle 

claimant to possession of the seized 

property, but a claimant may request 

immediate release of the property while 

the forfeiture is pending, based on 

hardship. 

(d) A claimant seeking hardship 

release of property under 18 U.S.C. 

983(f) and the regulations in this part 

must file a written request with the 

appropriate official. The request must 

establish that: 

(1) The claimant has a possessory 

interest in the property; 

(2) The claimant has sufficient ties to 

the community to provide assurance 

that the property will be available at the 

time of trial; 

(3) The continued possession by the 

Government pending the final 

disposition of forfeiture proceedings 

will cause substantial hardship to the 

claimant, such as preventing the 

functioning of a business, preventing an 

individual from working, or leaving an 

individual homeless; 

(4) The claimant’s likely hardship 

from the continued possession by the 

Government of the seized property 

outweighs the risk that the property will 

be destroyed, damaged, lost, concealed, 

or transferred if it is returned to the 

claimant during the pendency of the 

proceeding; and 

(5) The seized property is not: 

(i) Contraband; 

(ii) Any property, the possession of 

which by the claimant, petitioner, or the 

person from whom it was seized is 

prohibited by state or federal law; 

(iii) Currency, or other monetary 

instrument, or electronic funds unless 

such currency or other monetary 

instrument or electronic funds 

constitutes the assets of a legitimate 

business that has been seized; 

(iv) Intended to be used as evidence 

of a violation of law; 

(v) By reason of design or other 

characteristic, particularly suited for use 

in illegal activities; or 

(vi) Likely to be used to commit 

additional criminal acts if returned to 

the claimant. 

(e) A hardship release request 

pursuant to this section shall be deemed 

to have been made on the date when it 

is received by the appropriate official as 

defined in § 8.2(c) or the date the claim 

was deemed filed under § 8.10(f). If the 

request is ruled on and denied by the 

appropriate official or the property has 

not been released within the 15-day 

time period, the claimant may file a 

petition in federal district court 

pursuant to 18 U.S.C. 983(f)(3). If a 

petition is filed in federal district court, 

the claimant must send a copy of the 

petition to the agency to which the 

hardship petition was originally 

submitted and to the U.S. Attorney in 

the judicial district in which the judicial 

petition was filed. 

(f) If a civil forfeiture complaint is 

filed on the property and the claimant 

files a claim with the court pursuant to 

18 U.S.C. 983(a)(4)(A) and Rule G(5) of 

the Supplemental Rules for Certain 

Admiralty and Maritime Claims, a 

hardship petition may be submitted to 

the individual identified in the public 

or personal notice of the civil judicial 

forfeiture action. 

§ 8.16 Attorney fees and costs. 

The United States is not liable for 

attorney fees or costs in any 

administrative forfeiture proceeding, 

including such proceedings in which a 

claim is filed, even if the matter is 

referred to the U.S. Attorney, and the 

U.S. Attorney declines to commence 

judicial forfeiture proceedings. 


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Subpart B—Expedited Forfeiture 

Proceedings for Property Seizures 

Based on Violations Involving the 

Possession of Personal Use Quantities 

of a Controlled Substance 

§ 8.17 Purpose and scope. 

(a) The following definitions, 

regulations, and criteria in this subpart 

are designed to establish and implement 

procedures required by section 6079 of 

the Anti-Drug Abuse Act of 1988, Public 

Law 100–690, 102 Stat. 4181. They are 

intended to supplement existing law 

and procedures relative to the forfeiture 

of property under the identified 

statutory authority. These regulations do 

not affect the existing legal and 

equitable rights and remedies of those 

with an interest in property seized for 

forfeiture, nor do these provisions 

relieve interested parties from their 

existing obligations and responsibilities 

in pursuing their interests through such 

courses of action. These regulations are 

intended to reflect the intent of 

Congress to minimize the adverse 

impact on those entitled to legal or 

equitable relief occasioned by the 

prolonged detention of property subject 

to forfeiture due to violations of law 

involving personal use quantities of 

controlled substances. The definition of 

personal use quantities of a controlled 

substance as contained herein is 

intended to distinguish between those 

small quantities that are generally 

considered to be possessed for personal 

consumption and not for further 

distribution, and those larger quantities 

generally considered to be intended for 

further distribution. 

(b) In this regard, for violations 

involving the possession of personal use 

quantities of a controlled substance, 

section 6079(b)(2) requires either that 

administrative forfeiture be completed 

within 21 days of the seizure of the 

property, or alternatively, that 

procedures be established that provide a 

means by which an individual entitled 

to relief may initiate an expedited 

administrative review of the legal and 

factual basis of the seizure for forfeiture. 

Should an individual request relief 

pursuant to these regulations and be 

entitled to the return of the seized 

property, such property shall be 

returned immediately following that 

determination, and in no event later 

than 20 days after the filing of a petition 

for expedited release by an owner, and 

the administrative forfeiture process 

shall cease. Should the individual not 

be entitled to the return of the seized 

property, however, the administrative 

forfeiture of that property shall proceed. 

The owner may, in any event, obtain 

release of property pending the 

administrative forfeiture by submitting 

to the agency making the determination 

property sufficient to preserve the 

Government’s vested interest for 

purposes of the administrative 

forfeiture. 

§ 8.18 Definitions. 

As used in this subpart, the following 

terms shall have the meanings specified: 

Commercial fishing industry vessel 

means a vessel that: 

(1) Commercially engages in the 

catching, taking, or harvesting of fish or 

an activity that can reasonably be 

expected to result in the catching, 

taking, or harvesting of fish; 

(2) Commercially prepares fish or fish 

products other than by gutting, 

decapitating, gilling, skinning, 

shucking, icing, freezing, or brine 

chilling; or 

(3) Commercially supplies, stores, 

refrigerates, or transports fish, fish 

products, or materials directly related to 

fishing or the preparation of fish to or 

from a fishing, fish processing, or fish 

tender vessel or fish processing facility. 

Controlled substance has the meaning 

given in 21 U.S.C. 802(6). 

Normal and customary manner means 

that inquiry suggested by particular 

facts and circumstances that would 

customarily be undertaken by a 

reasonably prudent individual in a like 

or similar situation. Actual knowledge 

of such facts and circumstances is 

unnecessary, and implied, imputed, or 

constructive knowledge is sufficient. An 

established norm, standard, or custom is 

persuasive but not conclusive or 

controlling in determining whether an 

owner acted in a normal and customary 

manner to ascertain how property 

would be used by another legally in 

possession of the property. The failure 

to act in a normal and customary 

manner as defined herein will result in 

the denial of a petition for expedited 

release of the property and is intended 

to have the desirable effect of inducing 

owners of the property to exercise 

greater care in transferring possession of 

their property. 

Owner means one having a legal and 

possessory interest in the property 

seized for forfeiture. Even though one 

may hold primary and direct title to the 

property seized, such person may not 

have sufficient actual beneficial interest 

in the property to support a petition as 

owner if the facts indicate that another 

person had dominion and control over 

the property. 

Personal use quantities means those 

amounts of controlled substances in 

possession in circumstances where 

there is no other evidence of an intent 

to distribute, or to facilitate the 

manufacturing, compounding, 

processing, delivering, importing, or 

exporting of any controlled substance. 

(1) Evidence that possession of 

quantities of a controlled substance is 

for other than personal use may include, 

for example: 

(i) Evidence, such as drug scales, drug 

distribution paraphernalia, drug 

records, drug packaging material, 

method of drug packaging, drug 

‘‘cutting’’ agents and other equipment, 

that indicates an intent to process, 

package or distribute a controlled 

substance; 

(ii) Information from reliable sources 

indicating possession of a controlled 

substance with intent to distribute; 

(iii) The arrest or conviction record of 

the person or persons in actual or 

constructive possession of the 

controlled substance for offenses under 

federal, state or local law that indicates 

an intent to distribute a controlled 

substance; 

(iv) Circumstances or reliable 

information indicating that the 

controlled substance is related to large 

amounts of cash or any amount of 

prerecorded government funds; 

(v) Circumstances or reliable 

information indicating that the 

controlled substance is a sample 

intended for distribution in anticipation 

of a transaction involving large 

quantities, or is part of a larger delivery; 

(vi) Statements by the possessor, or 

otherwise attributable to the possessor, 

including statements of conspirators, 

that indicate possession with intent to 

distribute; or 

(vii) The fact that the controlled 

substance was recovered from 

sweepings. 

(2) Possession of a controlled 

substance shall be presumed to be for 

personal use when there are no indicia 

of illicit drug trafficking or 

distribution—such as, but not limited 

to, the factors listed above—and the 

amounts do not exceed the following 

quantities: 

(i) One gram of a mixture or substance 

containing a detectable amount of 

heroin; 

(ii) One gram of a mixture or 

substance containing a detectable 

amount of— 

(A) Coca leaves, except coca leaves 

and extracts of coca leaves from which 

cocaine, ecgonine, and derivations of 

ecgonine or their salts have been 

removed; 

(B) Cocaine, its salts, optical and 

geometric isomers, and salts of isomers; 

(C) Ecgonine, its derivatives, their 

salts, isomers, and salts of isomers; or 

(D) Any compound, mixture, or 

preparation that contains any quantity 


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of any of the substances referred to in 

paragraphs (2)(ii)(A) through (2)(ii)(C) of 

this definition; 

(iii) 1/10th gram of a mixture or 

substance described in paragraph 

(e)(2)(ii) of this section which contains 

cocaine base; 

(iv) 1/10th gram of a mixture or 

substance containing a detectable 

amount of phencyclidine (PCP); 

(v) 500 micrograms of lysergic acid 

diethylamide (LSD); 

(vi) One ounce of a mixture or 

substance containing a detectable 

amount of marihuana; 

(vii) One gram of methamphetamine, 

its salts, isomers, and salts of its 

isomers, or one gram of a mixture or 

substance containing a detectable 

amount of methamphetamine, its salts, 

isomers, or salts of its isomers. 

(3) The possession of a narcotic, a 

depressant, a stimulant, a hallucinogen, 

or a cannabis-controlled substance will 

be considered in excess of personal use 

quantities if the dosage unit amount 

possessed provides the same or greater 

equivalent efficacy as the quantities 

described in paragraph (e)(2) of this 

section. 

Property means property subject to 

forfeiture under 21 U.S.C. 881(a) (4), (6), 

and (7); 19 U.S.C. 1595a; and 49 U.S.C. 

80303. 

Seizing agency means the federal 

agency that has seized the property or 

adopted the seizure of another agency 

and has the responsibility for 

administratively forfeiting the property; 

Statutory rights or defenses to the 

forfeiture means all legal and equitable 

rights and remedies available to a 

claimant of property seized for 

forfeiture. 

§ 8.19 Petition for expedited release in an 

administrative forfeiture proceeding. 

(a) Where property is seized for 

administrative forfeiture involving 

controlled substances in personal use 

quantities the owner may petition the 

seizing agency for expedited release of 

the property. 

(b) Where property described in 

§ 8.19(a) is a commercial fishing 

industry vessel proceeding to or from a 

fishing area or intermediate port of call 

or actually engaged in fishing 

operations, which would be subject to 

seizure for administrative forfeiture for 

a violation of law involving controlled 

substances in personal use quantities, a 

summons to appear shall be issued in 

lieu of a physical seizure. The vessel 

shall report to the port designated in the 

summons. The seizing agency shall be 

authorized to effect administrative 

forfeiture as if the vessel had been 

physically seized. Upon answering the 

summons to appear on or prior to the 

last reporting date specified in the 

summons, the owner of the vessel may 

file a petition for expedited release 

pursuant to § 8.19(a), and the provisions 

of § 8.19(a) and other provisions in this 

section pertaining to a petition for 

expedited release shall apply as if the 

vessel had been physically seized. 

(c) The owner filing the petition for 

expedited release shall establish the 

following: 

(1) The owner has a valid, good faith 

interest in the seized property as owner 

or otherwise; 

(2) The owner reasonably attempted 

to ascertain the use of the property in a 

normal and customary manner; and 

(3) The owner did not know of or 

consent to the illegal use of the 

property, or in the event that the owner 

knew or should have known of the 

illegal use, the owner did what 

reasonably could be expected to prevent 

the violation. 

(d) In addition to those factors listed 

in § 8.19(c), if an owner can demonstrate 

that the owner has other statutory rights 

or defenses that would cause the owner 

to prevail on the issue of forfeiture, such 

factors shall also be considered in ruling 

on the petition for expedited release. 

(e) A petition for expedited release 

must be received by the appropriate 

seizing agency within 20 days from the 

date of the first publication of the notice 

of seizure in order to be considered by 

the seizing agency. The petition must be 

executed and sworn to by the owner and 

both the envelope and the request must 

be clearly marked ‘‘PETITION FOR 

EXPEDITED RELEASE.’’ Such petition 

shall be filed with the appropriate office 

or official identified in the personal 

written notice and the publication 

notice. 

(f) The petition shall include the 

following: 

(1) A complete description of the 

property, including identification 

numbers, if any, and the date and place 

of seizure; 

(2) The petitioner’s interest in the 

property, which shall be supported by 

title documentation, bills of sale, 

contracts, mortgages, or other 

satisfactory documentary evidence; and 

(3) A statement of the facts and 

circumstances, to be established by 

satisfactory proof, relied upon by the 

petitioner to justify expedited release of 

the seized property. 

§ 8.20 Ruling on petition for expedited 

release in an administrative forfeiture 

proceeding. 

(a) If a final administrative 

determination of the case, without 

regard to the provisions of this section, 

is made within 21 days of the seizure, 

the seizing agency need take no further 

action under this section on a petition 

for expedited release received pursuant 

to § 8.19(a). 

(b) If no such final administrative 

determination is made within 21 days of 

the seizure, the following procedure 

shall apply. The seizing agency shall, 

within 20 days after the receipt of the 

petition for expedited release, determine 

whether the petition filed by the owner 

has established the factors listed in 

§ 8.19(c) and: 

(1) If the seizing agency determines 

that those factors have been established, 

it shall terminate the administrative 

proceedings and return the property to 

the owner (or in the case of a 

commercial fishing industry vessel for 

which a summons has been issued shall 

dismiss the summons), except where it 

is evidence of a violation of law; or 

(2) If the seizing agency determines 

that those factors have not been 

established, the agency shall proceed 

with the administrative forfeiture. 

§ 8.21 Posting of substitute monetary 

amount in an administrative forfeiture 

proceeding. 

(a) Where property is seized for 

administrative forfeiture involving 

controlled substances in personal use 

quantities, the owner may obtain release 

of the property by posting a substitute 

monetary amount with the seizing 

agency to be held subject to forfeiture 

proceedings in place of the seized 

property to be released. The property 

will be released to the owner upon the 

payment of an amount equal to the 

government appraised value of the 

property if the property is not evidence 

of a violation of law and has no design 

or other characteristics that particularly 

suit it for use in illegal activities. This 

payment must be in the form of a 

traveler’s check, a money order, a 

cashier’s check, or an irrevocable letter 

of credit made payable to the seizing 

agency. A bond in the form of a 

cashier’s check will be considered as 

paid once the check has been accepted 

for payment by the financial institution 

which issued the check. 

(b) If a substitute amount is posted 

and the property is administratively 

forfeited, the seizing agency will forfeit 

the substitute amount in lieu of the 

property. 

§ 8.22 Special notice provision. 

At the time of seizure of property 

defined in § 8.18 for violations 

involving the possession of personal use 

quantities of a controlled substance, the 

seizing agency must provide written 

notice to the possessor of the property 


srobinson on DSK4SPTVN1PROD with RULES
56108 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

specifying the procedures for the filing 

of a petition for expedited release and 

for the posting of a substitute monetary 

bond as set forth in section 6079 of the 

Anti-Drug Abuse Act of 1988 and 

implementing regulations. 

Subpart C—Other Applicable 

Provisions 

§ 8.23 Redelegation of authority. 

(a) Redelegation of authority 

permitted. 

(1) The powers and responsibilities 

delegated to the DEA Forfeiture Counsel 

by the regulations in this part may be 

redelegated to attorneys working under 

the direct supervision of the DEA 

Forfeiture Counsel. 

(2) The powers and responsibilities 

delegated to the FBI Unit Chief, Legal 

Forfeiture Unit, by the regulations in 

this part may be redelegated to the 

attorneys working under the direct 

supervision of the FBI Unit Chief, Legal 

Forfeiture Unit. 

(3) The powers and responsibilities 

delegated to the Associate Chief 

Counsel, Office of Chief Counsel, ATF 

may be redelegated to the attorneys 

working under the direct supervision of 

the Associate Chief Counsel, Office of 

Chief Counsel, ATF. 

(b) Redelegation of authority not 

permitted. 

(1) The powers and responsibilities 

delegated to the DEA Forfeiture 

Counsel, the FBI Unit Chief, Legal 

Forfeiture Unit, and the ATF Associate 

Chief Counsel, Office of Chief Counsel 

to make decisions regarding the 

disposition of property before forfeiture 

pursuant to § 8.14 may not be 

redelegated. 

(2) The powers and responsibilities 

delegated to the DEA Forfeiture 

Counsel, the FBI Unit Chief, Legal 

Forfeiture Unit, and the ATF Associate 

Chief Counsel, Office of Chief Counsel 

to make decisions regarding the delay of 

notice of forfeiture pursuant to 

§§ 8.9(c)(7) and (8) and 18 U.S.C. 

983(a)(1)(B) and (C) may not be 

redelegated. 

■ 3. Revise part 9 to read as follows: 

PART 9—REGULATIONS GOVERNING 

THE REMISSION OR MITIGATION OF 

ADMINISTRATIVE, CIVIL, AND 

CRIMINAL FORFEITURES 

Sec. 

9.1 Purpose, authority, and scope. 

9.2 Definitions. 

9.3 Petitions in administrative forfeiture 

cases. 

9.4 Petitions in judicial forfeiture cases. 

9.5 Criteria governing administrative and 

judicial remission and mitigation. 

9.6 Special rules for specific petitioners. 

9.7 Terms and conditions of remission and 

mitigation. 

9.8 Remission procedures for victims. 

9.9 Miscellaneous provisions. 

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 

1324(b); 18 U.S.C. 981, 983, 3051; 19 U.S.C. 

1606, 1607, 1608, 1610, 1612(b), 1613, 1618; 

21 U.S.C. 822, 871, 872, 880, 881, 883, 958, 

965; 28 U.S.C. 509, 510; Pub. L. 100–690, sec. 

6079. 

§ 9.1 Purpose, authority, and scope. 

(a) Purpose. This part sets forth the 

procedures for agency officials to follow 

when considering remission or 

mitigation of administrative forfeitures 

under the jurisdiction of the agency, and 

civil judicial and criminal judicial 

forfeitures under the jurisdiction of the 

Department of Justice’s Criminal 

Division. The purpose of this part is to 

provide a basis for the partial or total 

remission of forfeiture for individuals 

who have an interest in the forfeited 

property but who did not participate in, 

or have knowledge of, the conduct that 

resulted in the property being subject to 

forfeiture and, where required, took all 

reasonable steps under the 

circumstances to ensure that such 

property would not be used, acquired, 

or disposed of contrary to law. 

Additionally, the regulations provide for 

partial or total mitigation of the 

forfeiture and imposition of alternative 

conditions in appropriate 

circumstances. 

(b) Authority to grant remission and 

mitigation. 

(1) Remission and mitigation 

functions in administrative forfeitures 

are performed by the agency seizing the 

property. Within the Federal Bureau of 

Investigation (FBI), authority to grant 

remission and mitigation is delegated to 

the Forfeiture Counsel, who is the Unit 

Chief, Legal Forfeiture Unit, Office of 

the General Counsel; within the Drug 

Enforcement Administration (DEA), 

authority to grant remission and 

mitigation is delegated to the Forfeiture 

Counsel, Office of Chief Counsel; and 

within the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF), 

authority to grant remission and 

mitigation is delegated to the Associate 

Chief Counsel, Office of Chief Counsel. 

(2) Remission and mitigation 

functions in judicial cases are 

performed by the Criminal Division of 

the Department of Justice. Within the 

Criminal Division, authority to grant 

remission and mitigation is delegated to 

the Chief, Asset Forfeiture and Money 

Laundering Section. 

(3) The powers and responsibilities 

delegated by this part may be 

redelegated to attorneys or managers 

working under the supervision of the 

designated officials. 

(c) Scope. This part governs any 

petition for remission filed with the 

Attorney General and supersedes any 

Department of Justice regulation 

governing petitions for remission, to the 

extent such regulation is inconsistent 

with this part. 

(d) The time periods and internal 

requirements established in this part are 

designed to guide the orderly 

administration of the remission and 

mitigation process and are not intended 

to create rights or entitlements in favor 

of individuals seeking remission or 

mitigation. This part applies to all 

forfeiture actions commenced on or after 

October 12, 2012. 

§ 9.2 Definitions. 

As used in this part: 

Administrative forfeiture means the 

process by which property may be 

forfeited by a seizing agency rather than 

through judicial proceedings. 

Administrative forfeiture has the same 

meaning as nonjudicial forfeiture, as 

that term is used in 18 U.S.C. 983. 

Appraised value means the estimated 

market value of property at the time and 

place of seizure if such or similar 

property were freely offered for sale 

between a willing seller and a willing 

buyer. 

Assets Forfeiture Fund means the 

Department of Justice Assets Forfeiture 

Fund or Department of the Treasury 

Forfeiture Fund, depending upon the 

identity of the seizing agency. 

Attorney General means the Attorney 

General of the United States or his or 

her designee. 

Beneficial owner means a person with 

actual use of, as well as an interest in, 

the property subject to forfeiture. 

Chief, Asset Forfeiture and Money 

Laundering Section, and Chief, refer to 

the Chief of the Asset Forfeiture and 

Money Laundering Section, Criminal 

Division, United States Department of 

Justice. 

General creditor means one whose 

claim or debt is not secured by a 

specific right to obtain satisfaction 

against the particular property subject to 

forfeiture. 

Judgment creditor means one who has 

obtained a judgment against the debtor 

but has not yet received full satisfaction 

of the judgment. 

Judicial forfeiture means either a civil 

or a criminal proceeding in a United 

States District Court that may result in 

a final judgment and order of forfeiture. 

Lienholder means a creditor whose 

claim or debt is secured by a specific 

right to obtain satisfaction against the 

particular property subject to forfeiture. 

A lien creditor qualifies as a lienholder 

if the lien: 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56109 

(1) Was established by operation of 

law or contract; 

(2) Was created as a result of an 

exchange of money, goods, or services; 

and 

(3) Is perfected against the specific 

property forfeited for which remission 

or mitigation is sought (e.g., a real estate 

mortgage; a mechanic’s lien). 

Net equity means the amount of a 

lienholder’s monetary interest in 

property subject to forfeiture. Net equity 

shall be computed by determining the 

amount of unpaid principal and unpaid 

interest at the time of seizure and by 

adding to that sum unpaid interest 

calculated from the date of seizure 

through the last full month prior to the 

date of the decision on the petition. 

Where a rate of interest is set forth in 

a security agreement, the rate of interest 

to be used in this computation will be 

the annual percentage rate so specified 

in the security agreement that is the 

basis of the lienholder’s interest. In this 

computation, however, there shall be no 

allowances for attorney fees, accelerated 

or enhanced interest charges, amounts 

set by contract as damages, unearned 

extended warranty fees, insurance, 

service contract charges incurred after 

the date of seizure, allowances for 

dealer’s reserve, or any other similar 

charges. 

Nonjudicial forfeiture has the same 

meaning as administrative forfeiture as 

defined in this section. 

Owner means the person in whom 

primary title is vested or whose interest 

is manifested by the actual and 

beneficial use of the property, even 

though the title is vested in another. A 

victim of an offense, as defined in this 

section, may also be an owner if he or 

she has a present legally cognizable 

ownership interest in the property 

forfeited. A nominal owner of property 

will not be treated as its true owner if 

he or she is not its beneficial owner. 

Person means an individual, 

partnership, corporation, joint business 

enterprise, estate, or other legal entity 

capable of owning property. 

Petition means a petition for 

remission or mitigation of forfeiture 

under the regulations in this part. This 

definition includes a petition for 

restoration of the proceeds of sale of 

forfeited property and a petition for the 

value of forfeited property placed into 

official use. 

Petitioner means the person applying 

for remission, mitigation, or restoration 

of the proceeds of sale, or for the 

appraised value of forfeited property, 

under this part. A petitioner may be an 

owner as defined in this section, a 

lienholder as defined in this section, or 

a victim as defined in this section, 

subject to the limitations of § 9.8. 

Property means real or personal 

property of any kind capable of being 

owned or possessed. 

Record means two or more arrests for 

related crimes, unless the arrestee was 

acquitted or the charges were dismissed 

for lack of evidence, a conviction for a 

related crime or completion of sentence 

within ten years of the acquisition of the 

property subject to forfeiture, or two 

convictions for a related crime at any 

time in the past. 

Related crime as used in this section 

and § 9.6(e) means any crime similar in 

nature to that which gives rise to the 

seizure of property for forfeiture. For 

example, where property is seized for a 

violation of the federal laws relating to 

drugs, a related crime would be any 

offense involving a violation of the 

federal laws relating to drugs or the laws 

of any state or political subdivision 

thereof relating to drugs. 

Related offense as used in § 9.8 

means: 

(1) Any predicate offense charged in 

a federal Racketeer Influenced and 

Corrupt Organizations Act (RICO) count 

for which forfeiture was ordered; or 

(2) An offense committed as part of 

the same scheme or design, or pursuant 

to the same conspiracy, as was involved 

in the offense for which forfeiture was 

ordered. 

Ruling official means any official to 

whom decision-making authority has 

been delegated pursuant to § 9.1(b). 

Seizing agency means the federal 

agency that seized the property or 

adopted the seizure of another agency 

for federal forfeiture. 

Victim means a person who has 

incurred a pecuniary loss as a direct 

result of the commission of the offense 

underlying a forfeiture. A drug user is 

not considered a victim of a drug 

trafficking offense under this definition. 

A victim does not include one who 

acquires a right to sue the perpetrator of 

the criminal offense for any loss by 

assignment, subrogation, inheritance, or 

otherwise from the actual victim, unless 

that person has acquired an actual 

ownership interest in the forfeited 

property; provided however, that if a 

victim has received compensation from 

insurance or any other source with 

respect to a pecuniary loss, remission 

may be granted to the third party who 

provided the compensation, up to the 

amount of the victim’s pecuniary loss as 

defined in § 9.8(c). 

Violator means the person whose use 

or acquisition of the property in 

violation of the law subjected such 

property to seizure for forfeiture. 

§ 9.3 Petitions in administrative forfeiture 

cases. 

(a) Notice of seizure. The notice of 

seizure and intent to forfeit the property 

shall advise any persons who may have 

a present ownership interest in the 

property to submit their petitions for 

remission or mitigation within 30 days 

of the date they receive the notice in 

order to facilitate processing. Petitions 

shall be considered any time after notice 

until the property has been forfeited, 

except in cases involving petitions to 

restore the proceeds from the sale of 

forfeited property. A notice of seizure 

shall include the title of the seizing 

agency, the ruling official, the mailing 

and street address of the official to 

whom petitions should be sent, and an 

asset identifier number. 

(b) Persons who may file. 

(1) A petition for remission or 

mitigation must be filed by a petitioner 

as defined in § 9.2 or as prescribed in 

§ 9.9(g) and (h). A person or person on 

their behalf may not file a petition if, 

after notice or knowledge of the fact that 

a warrant or process has been issued for 

his apprehension, in order to avoid 

criminal prosecution, the person: 

(i) Purposely leaves the jurisdiction of 

the United States; 

(ii) Declines to enter or reenter the 

United States to submit to its 

jurisdiction; or 

(iii) Otherwise evades the jurisdiction 

of the court in which a criminal matter 

is pending against the person. 

(2) Paragraph (b)(1) of this section 

applies to a petition filed by a 

corporation if any majority shareholder, 

or individual filing the claim on behalf 

of the corporation: 

(i) Purposely leaves the jurisdiction of 

the United States; 

(ii) Declines to enter or reenter the 

United States to submit to its 

jurisdiction; or 

(iii) Otherwise evades the jurisdiction 

of the court in which a criminal matter 

is pending against the person. 

(c) Contents of petition. 

(1) All petitions must include the 

following information in clear and 

concise terms: 

(i) The name, address, and social 

security or other taxpayer identification 

number of the person claiming an 

interest in the seized property who is 

seeking remission or mitigation; 

(ii) The name of the seizing agency, 

the asset identifier number, and the date 

and place of seizure; 

(iii) A complete description of the 

property, including make, model, and 

serial numbers, if any; and 

(iv) A description of the petitioner’s 

interest in the property as owner, 

lienholder, or otherwise, supported by 


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original or certified bills of sale, 

contracts, deeds, mortgages, or other 

documentary evidence. Such 

documentation includes evidence 

establishing the source of funds for 

seized currency or the source of funds 

used to purchase the seized asset. 

(2) Any factual recitation or 

documentation of any type in a petition 

must be supported by a declaration 

under penalty of perjury that meets the 

requirements of 28 U.S.C. 1746. 

(d) Releases. In addition to the 

contents of the petition for remission or 

mitigation set forth in paragraph (c) of 

this section, upon request of the agency, 

the petitioner shall also furnish the 

agency with an instrument executed by 

the titled or registered owner and any 

other known claimant of an interest in 

the property releasing interest in such 

property. 

(e) Filing petition with agency. 

(1) A petition for remission or 

mitigation subject to administrative 

forfeiture is to be sent to the official 

address provided in the notice of 

seizure and shall be sworn to by the 

petitioner or by the petitioner’s attorney 

upon information and belief, supported 

by the client’s sworn notice of 

representation pursuant to 28 U.S.C. 

1746, as set out in § 9.9(g). 

(2) If the notice of seizure does not 

provide an official address, the petition 

shall be addressed to the appropriate 

federal agency as follows: 

(i)(A) DEA: All submissions must be 

filed with the Forfeiture Counsel, Asset 

Forfeiture Section, Office of Chief 

Counsel, Drug Enforcement 

Administration, HQS Forfeiture 

Response, P.O. Box 1475, Quantico, 

Virginia 22134–1475. 

(B) Correspondence via private 

delivery must be filed with The 

Forfeiture Counsel, Asset Forfeiture 

Section (CCF), Office of Chief Counsel, 

Drug Enforcement Administration, 8701 

Morrissette Drive, Springfield, Virginia 

22152. 

(C) Submission by facsimile or other 

electronic means will not be accepted. 

(ii)(A) FBI: All submissions must be 

filed with the FBI Special Agent in 

Charge at the Field Office that seized the 

property. 

(B) Submission by facsimile or other 

electronic means will not be accepted. 

(iii)(A) ATF: All submissions must be 

filed with the Office of Chief Counsel, 

Attention: Forfeiture Counsel, 99 New 

York Avenue NE., Washington, DC 

20226. 

(B) Submission by facsimile or other 

electronic means will not be accepted. 

(f) Agency investigation. Upon receipt 

of a petition, the seizing agency shall 

investigate the merits of the petition and 

may prepare a written report containing 

the results of that investigation. This 

report shall be submitted to the ruling 

official for review and consideration. 

(g) Ruling. Upon receipt of the 

petition and the agency report, the 

ruling official for the seizing agency 

shall review the petition and the report, 

if any, and shall rule on the merits of 

the petition. No hearing shall be held. 

(h) Petitions granted. If the ruling 

official grants a remission or mitigation 

of the forfeiture, a copy of the decision 

shall be mailed to the petitioner or, if 

represented by an attorney, to the 

petitioner’s attorney. A copy shall also 

be sent to the United States Marshals 

Service (USMS) or other property 

custodian. The written decision shall 

include the terms and conditions, if any, 

upon which the remission or mitigation 

is granted and the procedures the 

petitioner must follow to obtain release 

of the property or the monetary interest 

therein. 

(i) Petitions denied. If the ruling 

official denies a petition, a copy of the 

decision shall be mailed to the 

petitioner or, if represented by an 

attorney, to the petitioner’s attorney of 

record. A copy of the decision shall also 

be sent to the USMS or other property 

custodian. The decision shall specify 

the reason that the petition was denied. 

The decision shall advise the petitioner 

that a request for reconsideration of the 

denial of the petition may be submitted 

to the ruling official in accordance with 

paragraph (j) of this section. 

(j) Request for reconsideration. 

(1) A request for reconsideration of 

the denial of the petition shall be 

considered if: 

(i) It is postmarked or received by the 

office of the ruling official within 10 

days from the receipt of the notice of 

denial of the petition by the petitioner; 

and 

(ii) The request is based on 

information or evidence not previously 

considered that is material to the basis 

for the denial or presents a basis clearly 

demonstrating that the denial was 

erroneous. 

(2) In no event shall a request for 

reconsideration be decided by the same 

ruling official who ruled on the original 

petition. 

(3) Only one request for 

reconsideration of a denial of a petition 

shall be considered. 

(k) Restoration of proceeds from sale. 

(1) A petition for restoration of the 

proceeds from the sale of forfeited 

property, or for the appraised value of 

forfeited property when the forfeited 

property has been retained by or 

delivered to a government agency for 

official use, may be submitted by an 

owner or lienholder in cases in which 

the petitioner: 

(i) Did not know of the seizure prior 

to the entry of a declaration of forfeiture; 

and 

(ii) Could not reasonably have known 

of the seizure prior to the entry of a 

declaration of forfeiture. 

(2) Such a petition shall be submitted 

pursuant to paragraphs (b) through (e) of 

this section within 90 days of the date 

the property is sold or otherwise 

disposed of. 

§ 9.4 Petitions in judicial forfeiture cases. 

(a) Notice of seizure. The notice of 

seizure and intent to forfeit the property 

shall advise any persons who may have 

a present ownership interest in the 

property to submit their petitions for 

remission or mitigation within 30 days 

of the date they receive the notice in 

order to facilitate processing. Petitions 

shall be considered any time after notice 

until such time as the forfeited property 

is placed in official use, sold, or 

otherwise disposed of according to law, 

except in cases involving petitions to 

restore property. A notice of seizure 

shall include the title of the ruling 

official and the mailing and street 

address of the official to whom petitions 

should be sent, the name of the agency 

seizing the property, an asset identifier 

number, and the district court docket 

number. 

(b) Persons who may file. A petition 

for remission or mitigation must be filed 

by a petitioner as defined in § 9.2 or as 

prescribed in § 9.9(g) and (h). 

(c) Contents of petition. 

(1) All petitions must include the 

following information in clear and 

concise terms: 

(i) The name, address, and social 

security or other taxpayer identification 

number of the person claiming an 

interest in the seized property who is 

seeking remission or mitigation; 

(ii) The name of the seizing agency, 

the asset identifier number, and the date 

and place of seizure; 

(iii) The district court docket number; 

(iv) A complete description of the 

property, including the address or legal 

description of real property, and make, 

model, and serial numbers of personal 

property, if any; and 

(v) A description of the petitioner’s 

interest in the property as owner, 

lienholder, or otherwise, supported by 

original or certified bills of sale, 

contracts, mortgages, deeds, or other 

documentary evidence. 

(2) Any factual recitation or 

documentation of any type in a petition 

must be supported by a declaration 

under penalty of perjury that meets the 

requirements of 28 U.S.C. 1746. 


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(d) Releases. In addition to the 

content of the petition for remission or 

mitigation set forth in paragraph (c) of 

this section, the petitioner, upon 

request, also shall furnish the agency 

with an instrument executed by the 

titled or registered owner and any other 

known claimant of an interest in the 

property releasing the interest in such 

property. 

(e) Filing petition with Department of 

Justice. A petition for remission or 

mitigation of a judicial forfeiture shall 

be addressed to the Attorney General; 

shall be sworn to by the petitioner or by 

the petitioner’s attorney upon 

information and belief, supported by the 

client’s sworn notice of representation 

pursuant to 28 U.S.C. 1746, as set forth 

in § 9.9(g); and shall be submitted to the 

U.S. Attorney for the district in which 

the judicial forfeiture proceedings are 

brought. 

(f) Agency investigation and 

recommendation; U.S. Attorney’s 

recommendation. Upon receipt of a 

petition, the U.S. Attorney shall direct 

the seizing agency to investigate the 

merits of the petition based on the 

information provided by the petitioner 

and the totality of the agency’s 

investigation of the underlying basis for 

forfeiture. The agency shall submit to 

the U.S. Attorney a report of its 

investigation and its recommendation 

on whether the petition should be 

granted or denied. Upon receipt of the 

agency’s report and recommendation, 

the U.S. Attorney shall forward to the 

Chief, Asset Forfeiture and Money 

Laundering Section, the petition, the 

seizing agency’s report and 

recommendation, and the U.S. 

Attorney’s recommendation on whether 

the petition should be granted or 

denied. 

(g) Ruling. The Chief shall rule on the 

petition. No hearing shall be held. The 

Chief shall not rule on any petition for 

remission if such remission was 

previously denied by the agency 

pursuant to § 9.3. 

(h) Petitions under Internal Revenue 

Service liquor laws. The Chief shall 

accept and consider petitions submitted 

in judicial forfeiture proceedings under 

the Internal Revenue Service liquor laws 

only prior to the time a decree of 

forfeiture is entered. Thereafter, the 

district court has exclusive jurisdiction. 

(i) Petitions granted. If the Chief 

grants a remission or mitigates the 

forfeiture, the Chief shall mail a copy of 

the decision to the petitioner (or, if 

represented by an attorney, to the 

petitioner’s attorney) and shall mail or 

transmit electronically a copy of the 

decision to the appropriate U.S. 

Attorney, the USMS or other property 

custodian, and the seizing agency. The 

written decision shall include the terms 

and conditions, if any, upon which the 

remission or mitigation is granted and 

the procedures the petitioner must 

follow to obtain release of the property 

or the monetary interest therein. The 

Chief shall advise the petitioner or the 

petitioner’s attorney to consult with the 

U.S. Attorney as to such terms and 

conditions. The U.S. Attorney shall 

confer with the seizing agency regarding 

the release and shall coordinate 

disposition of the property with that 

office and the USMS or other property 

custodian. 

(j) Petitions denied. If the Chief denies 

a petition, a copy of that decision shall 

be mailed to the petitioner (or, if 

represented by an attorney, to the 

petitioner’s attorney of record) and 

mailed or transmitted electronically to 

the appropriate U.S. Attorney, the 

USMS or other property custodian, and 

to the seizing agency. The decision shall 

specify the reason that the petition was 

denied. The decision shall advise the 

petitioner that a request for 

reconsideration of the denial of the 

petition may be submitted to the Chief 

at the address provided in the decision, 

in accordance with paragraph (k) of this 

section. 

(k) Request for reconsideration. 

(1) A request for reconsideration of 

the denial shall be considered if: 

(i) It is postmarked or received by the 

Asset Forfeiture and Money Laundering 

Section at the address contained in the 

decision denying the petition within 10 

days from the receipt of the notice of 

denial of the petition by the petitioner; 

(ii) A copy of the request is also 

received by the appropriate U.S. 

Attorney within 10 days of the receipt 

of the denial by the petitioner; and 

(iii) The request is based on 

information or evidence not previously 

considered that is material to the basis 

for the denial or presents a basis clearly 

demonstrating that the denial was 

erroneous. 

(2) In no event shall a request for 

reconsideration be decided by the ruling 

official who ruled on the original 

petition. 

(3) Only one request for 

reconsideration of a denial of a petition 

shall be considered. 

(4) Upon receipt of the request for 

reconsideration of the denial of a 

petition, disposition of the property will 

be delayed pending notice of the 

decision at the request of the Chief. If 

the request for reconsideration is not 

received within the prescribed period, 

the USMS or other property custodian 

may dispose of the property. 

(l) Restoration of proceeds from sale. 

(1) A petition for restoration of the 

proceeds from the sale of forfeited 

property, or for the appraised value of 

forfeited property when the forfeited 

property has been retained by or 

delivered to a government agency for 

official use, may be submitted by an 

owner or lienholder in cases in which 

the petitioner: 

(i) Did not know of the seizure prior 

to the entry of a final order of forfeiture; 

and 

(ii) Could not reasonably have known 

of the seizure prior to the entry of a final 

order of forfeiture. 

(2) Such a petition must be submitted 

pursuant to paragraphs (b) through (e) of 

this section within 90 days of the date 

the property was sold or otherwise 

disposed of. 

§ 9.5 Criteria governing administrative and 

judicial remission and mitigation. 

(a) Remission. 

(1) The ruling official shall not grant 

remission of a forfeiture unless the 

petitioner establishes that the petitioner 

has a valid, good faith, and legally 

cognizable interest in the seized 

property as owner or lienholder as 

defined in this part and is an innocent 

owner within the meaning of 18 U.S.C. 

983(d)(2)(A) or 983(d)(3)(A). 

(2) For purposes of paragraph (a)(1) of 

this section, the knowledge and 

responsibilities of a petitioner’s 

representative, agent, or employee are 

imputed to the petitioner where the 

representative, agent, or employee was 

acting in the course of his or her 

employment and in furtherance of the 

petitioner’s business. 

(3) The petitioner has the burden of 

establishing the basis for granting a 

petition for remission or mitigation of 

forfeited property, a restoration of 

proceeds of sale or appraised value of 

forfeited property, or a reconsideration 

of a denial of such a petition. Failure to 

provide information or documents and 

to submit to interviews, as requested, 

may result in a denial of the petition. 

(4) The ruling official shall presume a 

valid forfeiture and shall not consider 

whether the evidence is sufficient to 

support the forfeiture. 

(5) Willful, materially false statements 

or information made or furnished by the 

petitioner in support of a petition for 

remission or mitigation of forfeited 

property, the restoration of proceeds or 

appraised value of forfeited property, or 

the reconsideration of a denial of any 

such petition, shall be grounds for 

denial of such petition and possible 

prosecution for the filing of false 

statements. 

(b) Mitigation. 


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56112 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

(1) The ruling official may grant 

mitigation to a party not involved in the 

commission of the offense underlying 

forfeiture: 

(i) Where the petitioner has not met 

the minimum conditions for remission, 

but the ruling official finds that some 

relief should be granted to avoid 

extreme hardship, and that return of the 

property combined with imposition of 

monetary or other conditions of 

mitigation in lieu of a complete 

forfeiture will promote the interest of 

justice and will not diminish the 

deterrent effect of the law. Extenuating 

circumstances justifying such a finding 

include those circumstances that reduce 

the responsibility of the petitioner for 

knowledge of the illegal activity, 

knowledge of the criminal record of a 

user of the property, or failure to take 

reasonable steps to prevent the illegal 

use or acquisition by another for some 

reason, such as a reasonable fear of 

reprisal; or 

(ii) Where the minimum standards for 

remission have been satisfied but the 

overall circumstances are such that, in 

the opinion of the ruling official, 

complete relief is not warranted. 

(2) The ruling official may in his or 

her discretion grant mitigation to a party 

involved in the commission of the 

offense underlying the forfeiture where 

certain mitigating factors exist, 

including, but not limited to: the lack of 

a prior record or evidence of similar 

criminal conduct; if the violation does 

not include drug distribution, 

manufacturing, or importation, the fact 

that the violator has taken steps, such as 

drug treatment, to prevent further 

criminal conduct; the fact that the 

violation was minimal and was not part 

of a larger criminal scheme; the fact that 

the violator has cooperated with federal, 

state, or local investigations relating to 

the criminal conduct underlying the 

forfeiture; or the fact that complete 

forfeiture of an asset is not necessary to 

achieve the legitimate purposes of 

forfeiture. 

(3) Mitigation may take the form of a 

monetary condition or the imposition of 

other conditions relating to the 

continued use of the property, and the 

return of the property, in addition to the 

imposition of any other costs that would 

be chargeable as a condition to 

remission. This monetary condition is 

considered as an item of cost payable by 

the petitioner, and shall be deposited 

into the Assets Forfeiture Fund as an 

amount realized from forfeiture in 

accordance with the applicable statute. 

If the petitioner fails to accept the ruling 

official’s mitigation decision or any of 

its conditions, or fails to pay the 

monetary amount within 20 days of the 

receipt of the decision, the property 

shall be sold, and the monetary amount 

imposed and other costs chargeable as a 

condition to mitigation shall be 

subtracted from the proceeds of the sale 

before transmitting the remainder to the 

petitioner. 

§ 9.6 Special rules for specific petitioners. 

(a) General creditors. A general 

creditor may not be granted remission or 

mitigation of forfeiture unless he or she 

otherwise qualifies as petitioner under 

this part. 

(b) Rival claimants. If the beneficial 

owner of the forfeited property and the 

owner of a security interest in the same 

property each file a petition, and if both 

petitions are found to be meritorious, 

the claims of the beneficial owner shall 

take precedence. 

(c) Voluntary bailments. A petitioner 

who allows another to use his or her 

property without cost, and who is not in 

the business of lending money secured 

by property or of leasing or renting 

property for profit, shall be granted 

remission or mitigation of forfeiture in 

accordance with the provisions of § 9.5. 

(d) Lessors. A person engaged in the 

business of leasing or renting real or 

personal property on a long-term basis 

with the right to sublease shall not be 

entitled to remission or mitigation of a 

forfeiture of such property unless the 

lessor can demonstrate compliance with 

all the requirements of § 9.5. 

(e) Straw owners. A petition by any 

person who has acquired a property 

interest recognizable under this part, 

and who knew or had reason to believe 

that the interest was conveyed by the 

previous owner for the purpose of 

circumventing seizure, forfeiture, or the 

regulations in this part, shall be denied. 

A petition by a person who purchases 

or owns property for another who has a 

record for related crimes as defined in 

§ 9.2, or a petition by a lienholder who 

knows or has reason to believe that the 

purchaser or owner of record is not the 

real purchaser or owner, shall be denied 

unless both the purchaser of record and 

the real purchaser or owner meet the 

requirements of § 9.5. 

(f) Judgment creditors. 

(1) A judgment creditor will be 

recognized as a lienholder if: 

(i) The judgment was duly recorded 

before the seizure of the property for 

forfeiture; 

(ii) Under applicable state or local 

law, the judgment constitutes a valid 

lien on the property that attached to it 

before the seizure of the property for 

forfeiture; and 

(iii) The petitioner had no knowledge 

of the commission of any act or acts 

giving rise to the forfeiture at the time 

the judgment became a lien on the 

forfeited property. 

(2) A judgment creditor will not be 

recognized as a lienholder if the 

property in question is not property of 

which the judgment debtor is entitled to 

claim ownership under applicable state 

or local law (e.g., stolen property). A 

judgment creditor is entitled under this 

part to no more than the amount of the 

judgment, exclusive of any interest, 

costs, or other fees including attorney 

fees associated with the action that led 

to the judgment or its collection. 

(3) A judgment creditor’s lien must be 

registered in the district where the 

property is located if the judgment was 

obtained outside the district. 

§ 9.7 Terms and conditions of remission 

and mitigation. 

(a) Owners. 

(1) An owner’s interest in property 

that has been forfeited is represented by 

the property itself or by a monetary 

interest equivalent to that interest at the 

time of seizure. Whether the property or 

a monetary equivalent will be remitted 

to an owner shall be determined at the 

discretion of the ruling official. 

(2) If a civil judicial forfeiture action 

against the property is pending, release 

of the property must await an 

appropriate court order. 

(3) Where the Government sells or 

disposes of the property prior to the 

grant of the remission, the owner shall 

receive the proceeds of that sale, less 

any costs incurred by the Government 

in the sale. The ruling official, at his or 

her discretion, may waive the deduction 

of costs and expenses incident to the 

forfeiture. 

(4) Where the owner does not comply 

with the conditions imposed upon 

release of the property by the ruling 

official, the property shall be sold. 

Following the sale, the proceeds shall be 

used to pay all costs of the forfeiture 

and disposition of the property, in 

addition to any monetary conditions 

imposed. The remaining balance shall 

be paid to the owner. 

(b) Lienholders. 

(1) When the forfeited property is to 

be retained for official use or transferred 

to a state or local law enforcement 

agency or foreign government pursuant 

to law, and remission or mitigation has 

been granted to a lienholder, the 

recipient of the property shall assure 

that: 

(i) In the case of remission, the lien is 

satisfied as determined through the 

petition process; or 

(ii) In the case of mitigation, an 

amount equal to the net equity, less any 

monetary conditions imposed, is paid to 

the lienholder prior to the release of the 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56113 

property to the recipient agency or 

foreign government. 

(2) When the forfeited property is not 

retained for official use or transferred to 

another agency or foreign government 

pursuant to law, the lienholder shall be 

notified by the ruling official of the right 

to select either of the following 

alternatives: 

(i) Return of property. The lienholder 

may obtain possession of the property 

after paying the United States, through 

the ruling official, the costs and 

expenses incident to the forfeiture, the 

amount, if any, by which the appraised 

value of the property exceeds the 

lienholder’s net equity in the property, 

and any amount specified in the ruling 

official’s decision as a condition to 

remit the property. The ruling official, at 

his or her discretion, may waive costs 

and expenses incident to the forfeiture. 

The ruling official shall forward a copy 

of the decision, a memorandum of 

disposition, and the original releases to 

the USMS or other property custodian 

who shall thereafter release the property 

to the lienholder; or 

(ii) Sale of property and payment to 

lienholder. Subject to § 9.9(a), upon sale 

of the property, the lienholder may 

receive the payment of a monetary 

amount up to the sum of the 

lienholder’s net equity, less the 

expenses and costs incident to the 

forfeiture and sale of the property, and 

any other monetary conditions imposed. 

The ruling official, at his or her 

discretion, may waive costs and 

expenses incident to the forfeiture. 

(3) If the lienholder does not notify 

the ruling official of the selection of one 

of the two options set forth in paragraph 

(b)(2) of this section within 20 days of 

the receipt of notification, the ruling 

official shall direct the USMS or other 

property custodian to sell the property 

and pay the lienholder an amount up to 

the net equity, less the costs and 

expenses incurred incident to the 

forfeiture and sale, and any monetary 

conditions imposed. In the event a 

lienholder subsequently receives a 

payment of any kind on the debt owed 

for which he or she received payment as 

a result of the granting of remission or 

mitigation, the lienholder shall 

reimburse the Assets Forfeiture Fund to 

the extent of the payment received. 

(4) Where the lienholder does not 

comply with the conditions imposed 

upon the release of the property, the 

property shall be sold after forfeiture. 

From the proceeds of the sale, all costs 

incident to the forfeiture and sale shall 

first be deducted, and the balance up to 

the net equity, less any monetary 

conditions, shall be paid to the 

lienholder. 

§ 9.8 Remission procedures for victims. 

This section applies to victims of an 

offense underlying the forfeiture of 

property, or of a related offense, who do 

not have a present ownership interest in 

the forfeited property (or, in the case of 

multiple victims of an offense, who do 

not have a present ownership interest in 

the forfeited property that is clearly 

superior to that of other petitioner 

victims). This section applies only with 

respect to property forfeited pursuant to 

statutes that explicitly authorize 

restoration or remission of forfeited 

property to victims. A victim requesting 

remission under this section may 

concurrently request remission as an 

owner, pursuant to the regulations set 

forth in §§ 9.3, 9.4, and 9.7. The claims 

of victims granted remission as both an 

owner and victim shall, like claims of 

other owners, have priority over the 

claims of any non-owner victims whose 

claims are recognized under this 

section. 

(a) Remission procedure for victims. 

(1) Where to file. Persons seeking 

remission as victims shall file petitions 

for remission with the appropriate 

deciding official as described in 

§§ 9.3(e) (administrative forfeiture) or 

9.4(e) (judicial forfeiture). 

(2) Time of decision. The deciding 

official or his designee as described in 

§ 9.1(b) may consider petitions filed by 

persons claiming eligibility for 

remission as victims at any time prior to 

the disposal of the forfeited property in 

accordance with law. 

(3) Request for reconsideration. 

Persons denied remission under this 

section may request reconsideration of 

the denial, in accordance with §§ 9.3(j) 

(administrative forfeiture) or 9.4(k) 

(judicial forfeiture). 

(b) Qualification to file. A victim, as 

defined in § 9.2, may be granted 

remission, if in addition to complying 

with the other applicable provisions of 

§ 9.8, the victim satisfactorily 

demonstrates that: 

(1) A pecuniary loss of a specific 

amount has been directly caused by the 

criminal offense, or related offense, that 

was the underlying basis for the 

forfeiture, and that the loss is supported 

by documentary evidence including 

invoices and receipts; 

(2) The pecuniary loss is the direct 

result of the illegal acts and is not the 

result of otherwise lawful acts that were 

committed in the course of a criminal 

offense; 

(3) The victim did not knowingly 

contribute to, participate in, benefit 

from, or act in a willfully blind manner 

towards the commission of the offense, 

or related offense, that was the 

underlying basis of the forfeiture; 

(4) The victim has not in fact been 

compensated for the wrongful loss of 

the property by the perpetrator or 

others; and 

(5) The victim does not have recourse 

reasonably available to other assets from 

which to obtain compensation for the 

wrongful loss of the property. 

(c) Pecuniary loss. The amount of the 

pecuniary loss suffered by a victim for 

which remission may be granted is 

limited to the fair market value of the 

property of which the victim was 

deprived as of the date of the occurrence 

of the loss. No allowance shall be made 

for interest forgone or for collateral 

expenses incurred to recover lost 

property or to seek other recompense. 

(d) Torts. A tort associated with illegal 

activity that formed the basis for the 

forfeiture shall not be a basis for 

remission, unless it constitutes the 

illegal activity itself, nor shall remission 

be granted for physical injuries to a 

petitioner or for damage to a petitioner’s 

property. 

(e) Denial of petition. In the exercise 

of his or her discretion, the ruling 

official may decline to grant remission 

where: 

(1) There is substantial difficulty in 

calculating the pecuniary loss incurred 

by the victim or victims; 

(2) The amount of the remission, if 

granted, would be small compared with 

the amount of expenses incurred by the 

Government in determining whether to 

grant remission; or 

(3) The total number of victims is 

large and the monetary amount of the 

remission so small as to make its 

granting impractical. 

(f) Pro rata basis. In granting 

remission to multiple victims pursuant 

to this section, the ruling official should 

generally grant remission on a pro rata 

basis to recognized victims when 

petitions cannot be granted in full due 

to the limited value of the forfeited 

property. However, the ruling official 

may consider the following factors, 

among others, in establishing 

appropriate priorities in individual 

cases: 

(1) The specificity and reliability of 

the evidence establishing a loss; 

(2) The fact that a particular victim is 

suffering an extreme financial hardship; 

(3) The fact that a particular victim 

has cooperated with the Government in 

the investigation related to the forfeiture 

or to a related prosecution or civil 

action; and 

(4) In the case of petitions filed by 

multiple victims of related offenses, the 

fact that a particular victim is a victim 

of the offense underlying the forfeiture. 

(g) Reimbursement. Any petitioner 

granted remission pursuant to this part 


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56114 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

shall reimburse the Assets Forfeiture 

Fund for the amount received to the 

extent the individual later receives 

compensation for the loss of the 

property from any other source. The 

petitioner shall surrender the 

reimbursement upon payment from any 

secondary source. 

(h) Claims of financial institution 

regulatory agencies. In cases involving 

property forfeitable under 18 U.S.C. 

981(a)(1)(C) or (a)(1)(D), the ruling 

official may decline to grant a petition 

filed by a petitioner in whole or in part 

due to the lack of sufficient forfeitable 

funds to satisfy both the petition and 

claims of the financial institution 

regulatory agencies pursuant to 18 

U.S.C. 981(e)(3) or (7). Generally, claims 

of financial institution regulatory 

agencies pursuant to 18 U.S.C. 981(e)(3) 

or (7) shall take priority over claims of 

victims. 

(i) Amount of remission. Consistent 

with the Assets Forfeiture Fund statute 

(28 U.S.C. 524(c)), the amount of 

remission shall not exceed the victim’s 

share of the net proceeds of the 

forfeitures associated with the activity 

that caused the victim’s loss. The 

calculation of net proceeds includes, but 

is not limited to, the deduction of 

allowable government expenses and 

valid third-party claims. 

§ 9.9 Miscellaneous provisions. 

(a) Priority of payment. Except where 

otherwise provided in this part, costs 

incurred by the USMS and other 

agencies participating in the forfeiture 

that were incident to the forfeiture, sale, 

or other disposition of the property shall 

be deducted from the amount available 

for remission or mitigation. Such costs 

include, but are not limited to, court 

costs, storage costs, brokerage and other 

sales-related costs, the amount of any 

liens and associated costs paid by the 

Government on the property, costs 

incurred in paying the ordinary and 

necessary expenses of a business seized 

for forfeiture, awards for information as 

authorized by statute, expenses of 

trustees or other assistants pursuant to 

paragraph (c) of this section, 

investigative or prosecutive costs 

specially incurred incident to the 

particular forfeiture, and costs incurred 

incident to the processing of the 

petition(s) for remission or mitigation. 

The remaining balance shall be 

available for remission or mitigation. 

The ruling official shall direct the 

distribution of the remaining balance in 

the following order of priority, except 

that the ruling official may exercise 

discretion in determining the priority 

between petitioners belonging to classes 

described in paragraphs (a)(3) and (4) of 

this section in exceptional 

circumstances: 

(1) Owners; 

(2) Lienholders; 

(3) Federal financial institution 

regulatory agencies (pursuant to 

paragraph (e) of this section), not 

constituting owners or lienholders; and 

(4) Victims not constituting owners or 

lienholders (pursuant to § 9.8). 

(b) Sale or disposition of property 

prior to ruling. If forfeited property has 

been sold or otherwise disposed of prior 

to a ruling, the ruling official may grant 

relief in the form of a monetary amount. 

The amount realized by the sale of the 

property is presumed to be the value of 

the property. Monetary relief shall not 

be greater than the appraised value of 

the property at the time of seizure and 

shall not exceed the amount realized 

from the sale or other disposition. The 

proceeds of the sale shall be distributed 

as follows: 

(1) Payment of the Government’s 

expenses incurred incident to the 

forfeiture and sale, including court costs 

and storage charges, if any; 

(2) Payment to the petitioner of an 

amount up to his or her interest in the 

property; 

(3) Payment to the Assets Forfeiture 

Fund of all other costs and expenses 

incident to the forfeiture; 

(4) In the case of victims, payment of 

any amount up to the amount of his or 

her loss; and 

(5) Payment of the balance remaining, 

if any, to the Assets Forfeiture Fund. 

(c) Trustees and other assistants. In 

the exercise of his or her discretion, the 

ruling official, with the approval of the 

Asset Forfeiture and Money Laundering 

Section, may use the services of a 

trustee, other government official, or 

appointed contractors to notify potential 

petitioners, process petitions, and make 

recommendations to the ruling official 

on the distribution of property to 

petitioners. The expense for such 

assistance shall be paid out of the 

forfeited funds. 

(d) Other agencies of the United 

States. Where another agency of the 

United States is entitled to remission or 

mitigation of forfeited assets because of 

an interest that is recognizable under 

this part or is eligible for such transfer 

pursuant to 18 U.S.C. 981(e)(6), such 

agency shall request the transfer in 

writing, in addition to complying with 

any applicable provisions of §§ 9.3 

through 9.5. The decision to make such 

transfer shall be made in writing by the 

ruling official. 

(e) Financial institution regulatory 

agencies. A ruling official may direct the 

transfer of property under 18 U.S.C. 

981(e) to certain federal financial 

institution regulatory agencies or an 

entity acting on their behalf, upon 

receipt of a written request, in lieu of 

ruling on a petition for remission or 

mitigation. 

(f) Transfers to foreign governments. 

A ruling official may decline to grant 

remission to any petitioner other than 

an owner or lienholder so that forfeited 

assets may be transferred to a foreign 

government pursuant to 18 U.S.C. 

981(i)(1), 19 U.S.C. 1616a(c)(2), or 21 

U.S.C. 881(e)(1)(E). 

(g) Filing by attorneys. 

(1) A petition for remission or 

mitigation may be filed by a petitioner 

or by his or her attorney or legal 

guardian. If an attorney files on behalf 

of the petitioner, the petition must 

include a signed and sworn statement 

by the client-petitioner stating that: 

(i) The attorney has the authority to 

represent the petitioner in this 

proceeding; 

(ii) The petitioner has fully reviewed 

the petition; and 

(iii) The petition is truthful and 

accurate in every respect. 

(2) Verbal notification of 

representation is not acceptable. 

Responses and notification of rulings 

shall not be sent to an attorney claiming 

to represent a petitioner unless a written 

notice of representation is filed. No 

extensions of time shall be granted due 

to delays in submission of the notice of 

representation. 

(h) Consolidated petitions. At the 

discretion of the ruling official in 

individual cases, a petition may be filed 

by one petitioner on behalf of other 

petitioners, provided the petitions are 

based on similar underlying facts, and 

the petitioner who files the petition has 

written authority to do so on behalf of 

the other petitioners. This authority 

must be either expressed in documents 

giving the petitioner the authority to file 

petitions for remission, or reasonably 

implied from documents giving the 

petitioner express authority to file 

claims or lawsuits related to the course 

of conduct in question on behalf of 

these petitioners. An insurer or an 

administrator of an employee benefit 

plan, for example, which itself has 

standing to file a petition as a ‘‘victim’’ 

within the meaning of § 9.2, may also 

file a petition on behalf of its insured or 

plan beneficiaries for any claims they 

may have based on co-payments made 

to the perpetrator of the offense 

underlying the forfeiture or the 

perpetrator of a ‘‘related offense’’ within 

the meaning of § 9.2, if the authority to 

file claims or lawsuits is contained in 

the document or documents establishing 

the plan. Where such a petition is filed, 

any amounts granted as a remission 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56115 

must be transferred to the other 

petitioners, not the party filing the 

petition; although, in his or her 

discretion, the ruling official may use 

the actual petitioner as an intermediary 

for transferring the amounts authorized 

as a remission to the other petitioners. 

Dated: August 23, 2012. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2012–21943 Filed 9–11–12; 8:45 am] 

BILLING CODE 4410–09– 4410–02; 4410–FY; 4410–14; P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2012–0815] 

Drawbridge Operation Regulations; 

Fort Point Channel, Boston, MA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander, First Coast 

Guard District, has issued a temporary 

deviation from the regulation governing 

the operation of the Northern Avenue 

Bridge, mile 0.1, across the Fort Point 

Channel, at Boston, Massachusetts. 

Under this temporary deviation a sixhour advance notice for bridge opening 

shall be required at the bridge to 

facilitate bridge repairs. 

DATES: This deviation is effective from 

11 p.m. on September 16, 2012 through 

9 a.m. on September 20, 2012. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2012– 

0815 and are available online at 

www.regulations.gov, inserting USCG– 

2012–0815 in the ‘‘Keyword’’ and then 

clicking ‘‘Search’’. They are also 

available for inspection or copying at 

the Docket Management Facility (M–30), 

U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Mr. John McDonald 

john.w.mcdonald@uscg.mil, Project 

Officer, First Coast Guard District, 

telephone (617) 223–8364. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: The 

Northern Avenue Bridge, across the Fort 

Point Channel, mile 0.1, has a vertical 

clearance in the closed position of 7 feet 

at mean high water and 17 feet at mean 

low water. The existing drawbridge 

operation regulations are listed at 33 

CFR 117.599. 

The waterway has seasonal 

recreational vessels of various sizes. 

The owner of the bridge, the City of 

Boston, requested a temporary deviation 

to facilitate the replacement of deck 

support. The bridge cannot open while 

the stringers are unsecured. A six-hour 

advance notice for bridge openings was 

requested to allow sufficient time to 

safely open the bridge. 

Under this temporary deviation the 

Northern Avenue Bridge, mile 0.1, 

across the Fort Point Channel may 

require a six-hour advance notice for 

bridge openings between 11 p.m. and 9 

a.m. from September 16, 2012 through 

September 20, 2012. Vessels that can 

pass under the bridge without a bridge 

opening may do so at all times. There 

are no alternate routes available for 

navigation. The bridge cannot open for 

an emergency while any steel remains 

unsecured. 

In accordance with 33 CFR 117.35(e), 

the bridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: August 31, 2012. 

Gary Kassof, 

Bridge Program Manager, First Coast Guard 

District. 

[FR Doc. 2012–22485 Filed 9–11–12; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2012–0818] 

RIN 1625–AA00 

Safety Zone for Fireworks Display, 

Potomac River, National Harbor 

Access Channel; Oxon Hill, MD 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a safety zone upon 

specified waters of the Potomac River. 

This action is necessary to provide for 

the safety of life on navigable waters 

during a fireworks display launched 

from a floating platform located within 

the National Harbor Access Channel at 

Oxon Hill in Prince Georges County, 

Maryland. This safety zone is intended 

to protect the maritime public in a 

portion of the Potomac River. 

DATES: This rule is effective from 8:30 

p.m. on September 12, 2012, through 11 

p.m. on September 13, 2012. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket USCG– 

2012–0818. To view documents 

mentioned in this preamble as being 

available in the docket, go to http:// 

www.regulations.gov, type the docket 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Mr. Ronald L. Houck, Sector 

Baltimore Waterways Management 

Division, U.S. Coast Guard; telephone 

410–576–2674, email 

Ronald.L.Houck@uscg.mil. If you have 

questions on viewing or submitting 

material to the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone (202) 366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of Proposed Rulemaking 

A. Regulatory History and Information 

The Coast Guard is issuing this 

temporary final rule without prior 

notice and opportunity to comment 

pursuant to authority under section 4(a) 

of the Administrative Procedure Act 

(APA) (5 U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

Notice of Proposed Rulemaking (NPRM) 

with respect to this rule because 

publishing an NPRM would be 

impracticable. The Coast Guard received 

the information about the event on 

August 6, 2012; delaying the effective 

date by first publishing an NPRM would 

be contrary to the safety zone’s intended 

objectives as well as to the public 

interest because immediate action is 


srobinson on DSK4SPTVN1PROD with RULES