Internet Publication of Administrative Seizure and Forfeiture Notices, 6027-6033 [2013-01757]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• U.S. Customs and Border Protection

[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Rules and Regulations]
[Pages 6027-6033]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01757]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

19 CFR Part 162

[Docket No. USCBP-2011-0022; CBP Dec. 13-04]
RIN 1651-AA94


Internet Publication of Administrative Seizure and Forfeiture 
Notices

AGENCIES: U.S. Customs and Border Protection, Department of Homeland 
Security.

ACTION: Final rule.

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SUMMARY: This final rule adopts, with one change, a notice of proposed 
rulemaking (NPRM) published in the Federal Register on February 8, 
2012, that proposed to allow for publication of notices of seizure and 
intent to forfeit on an official U.S. Government forfeiture Web site. 
CBP anticipates that this rule's amendments will reduce administrative 
costs and improve the effectiveness of CBP's notice procedures as 
Internet publication will reach a broader range of the public and 
provide access to more parties who may have an interest in the seized 
property.

DATES: Final Rule effective February 28, 2013.

FOR FURTHER INFORMATION CONTACT: Dennis McKenzie, Director, Fines, 
Penalties and Forfeitures Division, Office of Field Operations, U.S. 
Customs and Border Protection, (202) 344-1808.

SUPPLEMENTARY INFORMATION:

Background

    On February 8, 2012, CBP published in the Federal Register (77 FR 
6527) a proposed rule to amend title 19 of the Code of Federal 
Regulations (19 CFR) regarding the manner by which CBP provides notice 
of intent to forfeit seized property appraised at more than $5,000 and 
seized property appraised at $5,000 or less. CBP proposed to utilize 
the Department of Justice (DOJ) forfeiture Web site, located at 
www.forfeiture.gov, to post seizure and forfeiture notices for property 
appraised in excess of $5,000 in value for 30 consecutive days, 
including seizures by the U.S. Border Patrol,\1\ where appropriate. The 
DOJ forfeiture Web site currently contains a list of pending notices of 
civil and criminal forfeiture actions in various district courts and 
Federal Government agencies. Under the proposed regulation, CBP would 
no longer be required to publish administrative seizure and forfeiture 
notices for three successive weeks in a newspaper circulated at the CBP 
port and in the judicial district where CBP seized the property. CBP 
would continue to provide direct written notice to all known parties-
in-interest of the seizure/forfeiture action and include the Web site 
posting address and the expected dates of publication in that notice.
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    \1\ Please note that the agency's formal designation is the U.S. 
Border Patrol (or USBP), while the CBP Headquarters element of the 
Border Patrol is known as the Office of Border Patrol (OBP). 
Officers of the USBP are commonly referred to as either Border 
Patrol agents or Border Patrol officers.
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    To retain flexibility in the process pertaining to the higher-
valued merchandise (appraised at more than $5,000), CBP proposed to 
retain the discretion, as circumstances warrant, to publish additional 
notice in a print medium for at least three successive weeks. For 
example, CBP would have the discretion to publish a notice of seizure 
and forfeiture in a newspaper in general circulation at the port and 
the judicial district nearest the seizure, or with wider or national 
circulation, when recommended by the pertinent U.S. Attorney's office 
or court of jurisdiction. Also, CBP would have the discretion to 
publish notice of seizure and forfeiture in a non-English language or 
other community newspaper to ensure reaching a particular community 
that may have a particular interest in or connection to the seizure. 
Similarly, CBP would have the discretion to publish notice of seizure 
and forfeiture in a trade or industry publication that serves a 
particular commercial community to ensure reaching a party when it is 
difficult to identify a vessel or other conveyance owner.
    Under the proposed rule, CBP also would publish seizure and 
forfeiture notices on the DOJ forfeiture Web site for 30 consecutive 
days for seized property appraised at $5,000 or less. This additional 
notice would not replace the current procedure of CBP posting notice at 
the customhouse nearest the place of seizure. However, the proposed 
amendment would specify that in situations where Border Patrol agents 
make the seizure, the posting would be at the appropriate Border Patrol 
sector office.

Benefits of Internet Posting

    As explained in the NPRM, CBP believes that using the Internet to 
publish CBP seizure and forfeiture notices will provide notice to a 
broader range of the public without the geographical limitations that 
exist under the current procedure's reliance solely on local print 
publications or customhouse postings. Under this final rule, Internet 
posting will be available

[[Page 6028]]

for a longer period of time (30 days) compared to the minimum statutory 
requirement of three weeks (21 days). This final rule provides CBP the 
discretion to publish notice in a print medium when CBP determines that 
additional outreach would be appropriate. In addition to these 
advantages, CBP expects that Internet publishing will provide savings 
to the Government.

Discussion of Comments

    CBP solicited public comments on the proposed rulemaking and ten 
commenters responded. The comments are set forth and discussed in this 
section.
    CBP notes that, at the request of representatives from the 
newspaper industry, DHS held a listening session on April 12, 2012. 
Newspaper industry representatives orally presented the substance of 
two written documents which are available in the docket for this rule 
under ``Supporting and Related Materials.'' One of the documents is a 
copy of a previously submitted comment (see Docket USCBP-2011-0022-
0012, dated April 9, 2012, which is discussed below).

Favorable Comments

    Most of the comments were supportive of the proposed amendments, 
citing several of the reasons that CBP set forth as the basis for the 
proposal: reduced cost to the government and the ability to reach more 
potentially interested persons. Also, these commenters identified, as 
advantages of the proposal, the following factors: the increased 
efficiency and wide availability of the Internet, enhanced government 
transparency, the shrinking newspaper market (fewer newspapers and 
newspaper consumers), the increasing costs associated with newspaper 
advertising, and CBP's flexibility to use newspaper advertising in 
appropriate circumstances. Two commenters pointed out how the proposed 
amendment serves the purposes of Executive Order (E.O.) 13576, entitled 
Delivering an Efficient, Effective, and Accountable Government, wherein 
the President encourages Federal Government agencies to cut waste, 
streamline structure and operations, and reinforce performance and 
management reform. These commenters suggested that the switch to 
Internet publishing would enhance government efficiency through use of 
technology and thereby improve customer service.

Unfavorable Comments or Recommendations To Improve the Regulation

    The following comments expressed objections to the proposed rule or 
made recommendations to improve the effectiveness of the proposed rule. 
A description of these comments, together with CBP's analyses, is set 
forth below.
    Comment: One commenter, agreeing that Internet posting is an 
effective replacement for newspaper advertising of seizure and 
forfeiture notices, recommended reducing the time period for posting 
notice to less than 30 days. Another commenter recommended increasing 
the posting time period to more than 30 days. The former commenter 
identified speeding up the process as a worthy goal, and the latter 
commenter favored providing more time so that unknown interested 
parties could learn of the seizure and act on the posted information.
    CBP Response: CBP believes that the proposed 30-day Internet post 
time strikes the right balance, as it provides adequate notice to the 
public and a reasonable time frame for responsibly resolving seizures 
and forfeitures with appropriate dispatch. Both are important concerns 
for CBP, interested parties, and the public. CBP notes that the 30-day 
posting time period is more than a week longer than the previous 
regulatory posting of three weeks for newspaper publication.
    Comment: One commenter, agreeing with the proposal's provision to 
allow CBP discretion to publish notice in a foreign language newspaper 
when appropriate in the circumstances, recommended that this 
publication option be included explicitly in the regulatory text.
    CBP Response: CBP believes that it is not necessary to include in 
the regulatory text the foreign language newspaper option or any of the 
alternative print publication options discussed in the preamble of the 
NPRM. CBP set forth these options as non-exclusive examples of 
circumstances that might warrant, at CBP's discretion, additional 
publication. As there may be other circumstances that recommend, on a 
case-by-case basis, other print publication options, CBP believes that 
the regulation need not be explicit in this respect.
    Comment: One commenter recommended that known parties-in-interest 
be notified prior to the 30-day Internet notice period so that they 
will have adequate time to consult the DOJ forfeiture Web site for 
information.
    CBP Response: Under the current regulation and practice, CBP sends 
a written seizure and forfeiture notice to known parties-in-interest in 
advance of the notice's publication in a newspaper. Under the amended 
regulation, CBP will continue to inform known parties-in-interest prior 
to a notice's publication on the Internet. The direct written notice to 
all known parties-in-interest provides these parties with the 
information they need to respond, including information about the 
seized merchandise and the place of seizure, alternative courses of 
action from which to choose, relevant information with which to make an 
informed decision, direction to the DOJ forfeiture Web site and the 
dates of publication of the notice on the Web site and, if print 
publication is appropriate, the name of the publication that will 
publish the notice and the dates of the print publication.
    Comment: Three commenters, including newspaper industry 
representatives, expressed concern that the absence of notice in a 
local newspaper would disadvantage people who would not know to consult 
a Federal Government Web site. (Other comments by the newspaper 
industry are discussed in more detail further below.) One of these 
commenters recommended, in regard to seizures of higher-valued 
merchandise, that CBP post the notice at the customhouse or the U.S. 
Border Patrol sector office as a measure to alleviate the absence of 
local newspaper notice.
    CBP Response: CBP does not believe that the change to Internet 
publishing will significantly disadvantage people living in the 
locality of the seizure (the port district and court jurisdiction 
nearest the place of seizure). In recent decades, the circulation of 
printed newspapers has continued to decline. Research by The Pew 
Research Center estimates that daily circulation of printed newspapers 
has declined 30%, from 62.3 million in 1990 to 43.4 million in 2010.\2\ 
Additionally, a significant rise in Internet usage has coincided with 
the decline in newspaper circulation. Since 2003, these trends have 
accelerated. Statistics from a Department of Commerce report on the 
subject 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.'' \3\ Internet use through libraries

[[Page 6029]]

provides the most widespread availability of free 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.\4\ According to a study by the University of Washington, a 
third of Americans 14 years old and older, or about 77 million people, 
use public library computers.\5\
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    \2\ Pew Research Center, The State of the News Media 2011, at 8, 
available at https://www.stateofthe media.org/2011/newspapers-essay/data-page-6.
    \3\ U.S. Department of Commerce, National Telecommunications and 
Information Administration, Digital Nation--Expanding Internet Usage 
(Digital Nation), available at https://www.ntia.doc.gov/files/ntia/publications/ntia_internet_use_report_february_2011.pdf.
    \4\ John Carlo Bertot, et al., Libraries Connect Communities: 
Public Library Funding & Technology Access Study 2010-2011 
(Libraries Connect Communities), at 3, available at https://viewer.zmags.com/publication/857ea9fd.
    \5\ Samantha 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 https://impact.ischool.washington.edu/documents/OPP4ALL_FinalReport.pdf.
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    Thus, CBP believes that in those instances when Internet posting is 
the sole notice provided, it will be fully adequate to meet 
substantially the purpose for which administrative seizure and 
forfeiture notice is intended--to provide, to as many of the public at 
large as can reasonably be expected to be interested, access to 
important information regarding seizures and forfeitures of imported 
merchandise. In addition, Internet publishing provides the potential to 
reach unknown interested parties outside the local jurisdiction. Given 
the widespread use of the Internet in our mobile society, CBP believes 
that this expansion of the seizure and forfeiture notice's reach will 
enhance the process and yield positive results.
    Also, CBP retains the discretion to publish additional notice in 
print media, including local newspapers, in appropriate circumstances. 
Non-exclusive examples include when the U.S. Attorney's Office or the 
local court of jurisdiction recommends such publication or when 
publication in a foreign language paper or a trade or industry 
publication is deemed appropriate in a given situation. CBP is not 
precluded from using print media in other circumstances it deems 
appropriate to meet a legitimate public outreach purpose that justifies 
the expense. Further, the bulk of the cost attributable to additional 
print publication will derive from the highest profile cases (see 
``Economic Analysis'' section). This means that notice in most higher-
interest seizure/forfeiture cases will likely be published in both 
Internet and newspaper formats. Thus, collectively, these instances of 
additional print/newspaper publication in the exercise of CBP 
discretion will generally reduce the local impact, should there be any, 
of moving away from routine newspaper publication to routine Internet 
publication.
    In addition, the CBP Web site, which provides general information 
on seizures and forfeitures, among other things, will provide advance 
notice of the change to Internet publishing of seizure and forfeiture 
notices and include a link to the DOJ forfeiture Web site. A person who 
may not be aware of a government Web site specifically devoted to 
seizures and forfeitures may think of consulting the CBP Web site for 
information on this subject, as CBP is widely known as the government 
agency that administers and enforces laws pertaining to imported 
merchandise. CBP believes that much of the audience that has for many 
years consulted the legal notice section of local newspapers to view 
information on seizures and forfeitures is almost certainly aware of 
the CBP Web site.
    Also, while CBP is not adopting in this final rule the commenter's 
suggestion to post notice of specific higher-valued seizure/forfeiture 
cases at the appropriate customhouse or U.S. Border Patrol sector 
office, CBP will post information at these places, in a conspicuous 
place accessible to the public, to inform the local public of the DOJ 
forfeiture Web site and its listing of specific CBP seizure/forfeiture 
actions, regardless of the value of the seized merchandise. This will 
provide, in all CBP ports and U.S. Border Patrol sectors, a locally 
posted source of information relative to the higher-valued seizures, 
albeit without information specific to individual cases. This posting 
may additionally reduce the impact of reduced local newspaper 
publication of seizure and forfeiture notices. Language regarding the 
placement of this general notice at the customhouses and sector offices 
has been added to the regulatory text in this final rule.
    Further, after publication of this final rule, CBP intends to 
publish notice for five successive weeks in all newspapers it currently 
uses for publishing seizure and forfeiture notices in 42 CBP ports, and 
in newspapers local to 20 U.S. Border Patrol sector offices, to inform 
the readership of those newspapers that information regarding CBP 
seizures and forfeitures may be obtained through the DOJ forfeiture Web 
site on and after January 2, 2013.
    Finally, CBP expects that, on the whole, the amended regulation's 
``Internet plus'' procedure, as explained above, will be more efficient 
and productive than the print media-only procedure.

Comments by Newspaper Industry Representatives

    The most extensive comments expressing opposition to the proposed 
rule were submitted collectively by representatives of the newspaper 
industry.
    Initially, it is noted that, in their collective comments, the 
newspaper industry representatives (hereinafter referred to as the 
``newspaper industry'') acknowledged that publishing seizure and 
forfeiture notices through the Internet would be a positive development 
that would expand access to more people. The thrust of the newspaper 
industry's arguments is that Internet publication by itself does not 
provide adequate notice and should be employed only to supplement 
newspaper publication for maximum outreach, just as many newspapers 
have supplemented their print coverage with Internet publication. The 
specific newspaper industry comments are set forth and responded to in 
this subsection.
    Comment: The representatives of the newspaper industry stated that 
Internet notice is an inadequate substitute for a printed, fixed 
newspaper notice. They contended that government Internet Web sites do 
not have a strong readership and that notice published in a newspaper 
is more likely to be read than notice published on the DOJ forfeiture 
Web site. They argued that access to the Internet remains limited, with 
minority, poor, and senior communities particularly underrepresented as 
Internet users and the sick, infirm, and residents of rural areas also 
facing limited access. They contended that Internet publication 
presents due process concerns for courts, historians, researchers, and 
archivists, and that, unlike newspapers, Internet publications are 
difficult to preserve and maintain in updated fashion without 
sufficient continuous funding. They questioned the ability of DHS to 
ensure that CBP will be appropriated adequate resources to both 
maintain use of the DOJ forfeiture Web site and publish notices in a 
print medium in special circumstances. They pointed to a government-
wide initiative to eliminate agency Web sites for budget reasons. They 
also questioned the proposed rule's conclusion that use of the DOJ 
forfeiture Web site will be ``virtually cost-free'' and faulted the 
proposal's failure to consider the cost and resources CBP will need to 
update, verify, manage, and secure notice information on the DOJ 
forfeiture Web

[[Page 6030]]

site. They pointed out that government Web sites have been attacked and 
temporarily removed, presenting security and accessibility issues. The 
newspaper industry concluded by asserting that the proposed regulation 
leaves substantial doubt about the manner and method of providing 
notice and creates potential gaps in information that should be 
available to the public.
    CBP Response: Initially, CBP notes that any discussion regarding 
the effectiveness or reach of CBP's Internet forfeiture notice 
procedure must be informed by the fact that all known parties with an 
interest in the seized property will be notified directly in writing, 
with details of the seizure and forfeiture proceeding clearly 
explained. This notice will cover most of those, and most often all of 
those, who will or may be affected by the forfeiture action. Remaining 
persons the procedure targets for notice are those not known to have an 
interest or those so known but unable to be located. With CBP's access 
to import information, and the cooperation of known interested parties, 
instances when there will be unknown interested parties, or such 
parties who cannot be located, will be few.
    Regarding the newspaper industry's broad claim that Internet 
publication of forfeiture notices is inadequate, CBP disagrees. During 
the last decade, the Federal Government and many State governments have 
been continually gravitating toward more and more Internet publishing 
of important notices, announcements, and other information. In the 
Federal sphere, this trend is exemplified by the E-Government Act of 
2002 \6\ which generally requires and encourages Federal Government 
agencies to better manage and promote Internet and information 
technology use to bring about improvements in government operations and 
customer service. With this and other laws, Congress has demonstrated 
its interest in making government more efficient and effective through 
information technology. As discussed above, the growing trend in public 
sector Internet use was preceded by an explosion of Internet usage by 
private sector and other non-government entities over the last two 
decades. Thus, this expanding movement to Internet usage, inside and 
outside government, underscores the impressive success of the Internet 
as a medium that serves well the interests and purposes of its users. 
Contrary to the newspaper industry's expression of ``substantial 
doubt'' concerning Internet publication of notices, this expanding use 
of Internet publishing indicates widespread acceptance of the medium, 
including acceptance by Congress, as an effective communications tool 
for both public and private purposes.
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    \6\ Public Law 107-347, 116 Stat. 2899. The E-Government Act of 
2002 establishes in the Office of Management and Budget an Office of 
Electronic Government and imposes responsibilities on various high-
level government officials including heads of Federal Government 
agencies. The Act defines ``electronic Government'' as ``the use by 
the Government of web-based Internet applications and other 
information technologies, combined with processes that implement 
these technologies, to: (A) Enhance the access to and delivery of 
Government information and services to the public, other agencies, 
and other Government entities; or (B) bring about improvements in 
Government operations that may include effectiveness, efficiency, 
service quality, or transformation.'' 44 U.S.C. 3601(3). While the 
Act does not mandate Internet publication of CBP's or other 
agencies' seizure and forfeiture notices, it evidences the 
inexorable movement to broader Internet use by the Federal 
Government under Congressional direction.
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    More specifically, regarding increasing Internet use by Federal 
Government agencies and, particularly, Internet use in forfeiture 
actions taken under Federal law, CBP notes Rule G of the Supplemental 
Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions 
(the Supplemental Rules), a part of the Federal Rules of Civil 
Procedure, which became effective on December 1, 2006. The rule governs 
civil asset forfeiture actions in the Federal courts. Under Rule 
G(4)(a)(iv)(C) of the Supplemental Rules, the Federal Government may 
employ the option of providing public notice through the Internet 
rather than in a newspaper. This rule was adopted for criminal 
forfeiture cases as well.\7\ Thus, the use of Internet publishing for 
seizure and forfeiture notices has been adopted by the Federal courts. 
Significantly, the Advisory Committee on Civil Rules that drafted Rule 
G(4)(a)(iv)(C) acknowledged that the Internet, by its nature, provides 
far greater access to forfeiture notices than newspapers.\8\ In the 
Advisory Committee Note to Rule G, the Committee stated the following: 
\9\
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    \7\ According to the DOJ Web site, Rule 32.2(b)(6) of the 
Federal Rules of Criminal Procedure, which became effective on 
December 1, 2009, incorporated the forfeiture notice procedures of 
Rule G, including Internet publishing, for criminal judicial 
forfeitures.
    \8\ Under the Rules Enabling Act, 28 U.S.C. 2071-2077, the 
Supreme Court prescribes general rules of practice and procedure for 
the Federal Courts, and, pursuant to the Act's procedures, advisory 
committees may be appointed to recommend new and amended procedural 
rules.
    \9\ Report of Civil Rules Advisory Committee, 92 (May 17, 2004), 
available at https://www.uscourts.gov/uscourts/RulesAndPolicies/rules/reports/CV5-2004.pdf; see also Fed. R. Civ. P. Supp. R. G 
Advisory Committee's Note.

    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 [newspaper] 
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publication provides.

    With use of the Internet for publication of forfeiture notices 
firmly established by the Federal courts, DOJ amended its seizure and 
forfeiture regulations to, among other things, allow Internet 
publishing of forfeiture notices. The DOJ final rule (77 FR 56093; 
September 12, 2012), cited the Supplemental Rules' Internet publishing 
provision as a parallel to its amendment and submitted that publication 
of seizure and forfeiture notices through the DOJ forfeiture Web site 
provides the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the 
Drug Enforcement Administration, and the Federal Bureau of 
Investigation with an ``effective and cost-efficient means of providing 
public notice of thousands of federal civil and criminal judicial 
forfeiture proceedings'' (Id. at 56097). The DOJ reported impressive 
levels of usage by the public of the DOJ forfeiture Web site for the 
period the Web site has been publishing these notices (Id.). Also, the 
Centers for Medicare & Medicaid Services (CMS) within the Department of 
Health and Human Services (HHS) published a rule (76 FR 26342; May 6, 
2011) proposing to allow for Internet publishing, through State Web 
sites, of required public notices announcing changes in methods and 
standards for setting payment rates. The HHS proposed rule indicated 
that the States were consulted and convinced CMS that Internet 
publishing ``will reduce State costs and allow for a more efficient 
means to notify the public of changes to Medicaid payment methods and 
standards'' (Id. at 26352).\10\ (A final rule has not yet been 
published.)
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    \10\ While the notice provided for in the HHS-CMS proposed rule 
is not directly analogous to the CBP seizure/forfeiture notice, as 
the former process does not involve private property interests and a 
deadline that can be harmful to a potential claimant if missed, the 
move to Internet publishing by HHS-CMS supports the view that 
government publication by Internet posting is cost advantageous, 
generally effective, and capable of reaching a wide audience.
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    This pattern of government entities changing to Internet publishing 
is supportive of CBP's effort to likewise update its seizure and 
forfeiture notice regulations, as well as its rationale that the Agency 
can reduce costs while meeting its obligation under applicable law to 
provide effective notice to the public. In this regard, CBP notes that 
due process requires only that ``the Government's effort be `reasonably

[[Page 6031]]

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). This 
principle applies to direct notice and published notice procedures. 
United States v. Young, 421 Fed. Appx. 229, 231, 2011 WL 1206664 (3d 
Cir. Apr. 11, 2011). CBP believes that publication of forfeiture 
notices via the Internet, with its widespread and broad availability 
within and well beyond the limits of the local jurisdiction (site of 
the seizure), is clearly in compliance with this standard.\11\
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    \11\ CBP believes that the Internet's ability to provide access 
to public forfeiture notices is, in this Internet era, much less 
limiting than that of local print publishing which has long been 
held to meet standards of due process.
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    Regarding the newspaper industry's claim that certain segments of 
the public will be disenfranchised if notice is published through the 
Internet rather than a local newspaper, CBP is not convinced that the 
Internet would be less capable of providing access to forfeiture 
notices for minorities, senior citizens, the poor, rural residents, 
prison inmates, the ill and disabled in or outside of hospitals, etc., 
than would local newspapers. For any group of persons the newspaper 
industry claims will be disenfranchised, there is insufficient 
convincing evidence that Internet publication would be a disadvantage 
with respect to these groups as compared to newspaper publication. 
Moreover, the due process standard requires a means of notice 
reasonably calculated to apprise a party of the action; it does not 
require the most effective means of doing so, maximally tailored to 
each particular situation. It is reiterated that those targeted by 
notice through publication are unknown interested parties. CBP believes 
that Internet publication of forfeiture notices for this purpose 
constitutes a reasonable effort to provide notice to the general 
public, including the groups of society raised by the newspaper 
industry.
    Regarding the newspaper industry's comments about costs, CBP 
iterates that replacing newspaper publishing with Internet publishing 
will reduce its advertising costs. As noted in its proposal, CBP spent 
over $1 million in 2010 for advertising notices of seizure and 
forfeiture in newspapers. In contrast, providing notice through 
postings on the DOJ forfeiture Web site will cost CBP approximately 
$25,000 per year (see the ``Economic Analysis'' section). This 
comparatively minor annual expense justifies the (figurative) 
description ``virtually cost-free'' and, in any case, represents a very 
substantial cost reduction. However, upon reexamining its costs, CBP 
recognizes that there are additional one-time costs to modify 
government systems that CBP did not include in the proposal's economic 
analysis. CBP has amended the ``Economic Analysis'' section in this 
final rule to add $693,000 in up-front costs for the first year. CBP 
notes that, with these costs, CBP effectively (but not quite) breaks 
even in the first year the rule is in effect and experiences large 
savings each subsequent year.
    Regarding the newspaper industry's reservations about 
appropriations and funds to maintain CBP's notice publications through 
the DOJ forfeiture Web site and, at the same time, its publication of 
notices in newspapers in special circumstances, CBP is confident that 
funding will not be a concern, especially given the savings generated 
by the switch to Internet publishing. There is no basis for supposing 
that this cost savings will result in budget decisions that undermine 
CBP's important fundamental policies. Likewise, CBP is not concerned 
that a government-wide reduction in agency Web sites for budget 
purposes will result in the government closing down Web sites that are 
critical to its enforcement mission.
    Comment: The newspaper industry asserted that removing CBP seizure 
and forfeiture notices from newspapers would be against CBP's interest 
regarding the selling of seized and forfeited merchandise at auction. 
According to the newspaper industry, the published notices generate 
interest in the auction, and the absence of these notices would result 
in fewer bidders.
    CBP Response: The procedure for publication of seizure and 
forfeiture notices and the procedure for conducting auctions of 
forfeited merchandise are not connected functions. CBP does not publish 
seizure and forfeiture notices to generate interest in an auction that 
may or may not take place at a later time and place. (It is noted that 
the final resolution of the case may render an auction unnecessary.) 
The notice contains no information about the auction procedure.\12\ CBP 
is not concerned that its ability to auction seized and forfeited 
merchandise will be compromised and is confident that its auctions will 
continue to be conducted as successfully as in the past. The changes 
made in this document will have no effect on auction procedures or the 
advertising of auctions.
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    \12\ CBP's auctions of forfeited merchandise are handled by the 
Treasury Executive Office for Asset Forfeiture, an office of the 
Treasury Department that administers the Treasury Forfeiture Fund. 
Under applicable procedures, a contractor is hired to take care of 
the auction and all related advertising.
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    Comment: The newspaper industry asserted that Internet publication 
lacks four elements that ensure the validity of public notice. The 
publication must be: independently sourced, capable of being archived, 
accessible to the public, and verifiable. The newspaper industry claims 
that Internet publishing does not meet these elements to the 
disadvantage of the public.
    CBP Response: First, CBP notes that these elements are not legal 
standards that an agency is required to meet under applicable law and 
regulation. The newspaper industry did not cite to a law or regulation 
for its proposition. CBP disagrees that notice must be independently 
sourced (that is, from outside the government) to be effective and 
reliable. DOJ and the Federal Rules of Civil Procedure administered by 
the Federal courts are in accord. The CBP seizure and forfeiture 
notice, whether published in the newspaper (currently) or on the DOJ 
forfeiture Web site (as adopted in this final rule), describes the 
property seized and the details of the seizure (time, place, reason) 
and informs a prospective claimant of the procedural options available 
to resolve the matter, including taking no action or electing either 
judicial or administrative proceedings. As set forth previously, CBP is 
satisfied that the published notice meets the requirements of due 
process whether published in a newspaper or on the DOJ forfeiture Web 
site. Regarding the archiving of records pertaining to the seizure/
forfeiture action and the notice procedure, and verification of such 
records, CBP is confident that appropriate records will be maintained 
in accordance with applicable law, regulations, and procedures.\13\
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    \13\ All records relating to CBP's processing of forfeiture 
cases will be stored in an official system of records maintained by 
CBP that meets the requirements of Presidential Circular A-127 
(pursuant to the Federal Financial Management Improvement Act of 
1996).
---------------------------------------------------------------------------

Conclusion

    Based on the foregoing analysis of the comments, and CBP's further 
consideration of the matter, CBP is adopting the proposed amendments as 
published in the Federal Register (77 FR 6527) on February 8, 2012 as 
final with a change to the regulatory text, as follows. CBP is adding 
to the regulation that the DOJ forfeiture Web site address will be 
posted in a conspicuous place available to the public at all 
customhouses and sector offices. This posting will not provide case-
specific

[[Page 6032]]

information relative to seizures/forfeitures, but will inform any local 
persons visiting the customhouse or sector office of a means by which 
one may learn of these actions, including case-specific information. 
CBP also makes some slight editorial changes to the regulatory text to 
enhance general readability.

Economic Analysis

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This final rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866. 
Accordingly, the rule has not been reviewed by the Office of Management 
and Budget. However, CBP has prepared the following analysis to help 
inform stakeholders of the potential impacts of this final rule's 
amendments.
    This final rule will provide a less costly alternative for 
publishing notices of seizure and forfeiture for seized property 
appraised at more than $5,000 in value. The current regulation requires 
CBP to publish such notices in a local newspaper for at least three 
successive weeks. Historically, there have been some instances where 
the cost of advertising exceeds the value of the seized property, and 
these occurrences have increased as the cost of newspaper advertising 
has increased.
    Under this rule, CBP will publish the great majority of seizure and 
forfeiture notices for property valued at more than $5,000 (estimated 
at 90 percent) for 30 consecutive days solely by posting on an existing 
U.S. Government Web site. In some cases, including at CBP's sole 
discretion based on the particular circumstances involved or where a 
court or a U.S. Attorney instructs or recommends, CBP will publish 
notice via both print (newspaper or other publication) and Internet 
methods. CBP will use an existing DOJ Web site that lists forfeiture 
actions by various Federal Government agencies at an approximate cost 
to CBP of $25,000 per year in system maintenance and contract costs. In 
addition, CBP and DOJ will need to spend a total of $693,000 in one-
time costs to modify their systems as a result of this rule.
    In 2010, CBP spent over $1 million advertising more than 6,000 
lines of property. Under this rule, CBP will advertise the vast 
majority of items using the DOJ forfeiture Web site. CBP will advertise 
a comparatively small number of items both on the Internet and in a 
traditional newspaper or other publication. Because these items will be 
the highest profile items, CBP will likely advertise these items in 
newspapers of large circulation or national newspapers. Such 
advertising will make up a disproportionate amount of the costs. CBP 
estimates that it will cost $300,000 to continue to advertise these 
items in print. Therefore, CBP estimates that advertising on the 
Internet instead of in print for most items will save approximately 
$700,000 per year in print advertising costs. The net effect of this 
change will be a loss to CBP of $18,000 ($700,000 savings-$693,000 one-
time system modification costs-$25,000 recurring costs) in the first 
year and a savings to CBP of $675,000 ($700,000 savings-$25,000 
recurring costs) in future years. Over a ten-year period of analysis, 
this final rule is estimated to save CBP over $4 million at a 7% 
discount rate.
    This rule also provides that CBP will publish seizure and 
forfeiture notices for seized property appraised at $5,000 or less on 
the DOJ forfeiture Web site for 30 consecutive days. This change will 
simply add low-cost Internet publication to the current requirement 
that CBP post notice at the customhouse or U.S. Border Patrol sector 
office, as provided in this rule for seized property appraised at 
$5,000 or less. This change will be virtually costless to the 
Government and will expand the reach of the seizure and forfeiture 
notice to the benefit of unknown parties-in-interest and the public.
    Finally, under this final rule, CBP will post general information 
at all customhouses and sector offices, in the conspicuous place that 
lower-valued seizure and forfeiture notices are posted for public 
viewing, to inform the public that seizure and forfeiture notices, 
regardless of the value of the merchandise, will be posted to the DOJ 
forfeiture Web site. This will be done at de minimis cost to CBP.

Regulatory Flexibility Act

    This section examines the impact of the final rule on small 
entities as required by the Regulatory Flexibility Act (5 U.S.C. 603), 
as amended by the Small Business Regulatory Enforcement and Fairness 
Act of 1996. A small entity may be a small business (defined as any 
independently owned and operated business not dominant in its field 
that qualifies as a small business per the Small Business Act); a small 
not-for-profit organization; or a small governmental jurisdiction 
(locality with fewer than 50,000 people).
    This final rule moves most notices of seizure and forfeiture valued 
at more than $5,000 from local print media to a Federal Government 
forfeiture Web site. It also allows CBP to post notices of seizures and 
forfeitures valued at $5,000 or less on the forfeiture Web site in 
addition to posting at the customhouse nearest the place of seizure or 
the appropriate Border Patrol sector office. This rule does not impose 
any requirements on the general public or small businesses. As provided 
under the current procedure, CBP will continue to contact, in writing, 
any small business that is a known party-in-interest. Because this rule 
imposes no direct costs on small entities, we believe that this rule 
does not have a significant economic impact on a substantial number of 
small entities. Consequently, DHS certifies this rule does not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose an unfunded mandate under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$100 million or more (adjusted for inflation), in the aggregate, to any 
of the following: State, local, or Native American Tribal governments, 
or the private sector.

Executive Order 13132

    In accordance with the principles and criteria contained in 
Executive Order 13132 (Federalism), this final rule has no substantial 
effect on the States, the current Federal-State relationship, or on the 
current distribution of power and responsibilities among local 
officials.

Signing Authority

    This document is being issued in accordance with 19 CFR 0.1(b)(1).

List of Subjects in 19 CFR Part 162

    Administrative practice and procedure, Law enforcement, Seizures 
and forfeitures.

Amendment to CBP Regulations

    For the reasons set forth above, part 162 of title 19 of the Code 
of Federal Regulations (19 CFR part 162), is amended as set forth 
below.

[[Page 6033]]

PART 162--INSPECTION, SEARCH, AND SEIZURE

0
1. The general authority citation for part 162 and the specific 
authority citation for Sec.  162.45 continue to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1592, 1593a, 1624; 6 
U.S.C. 101; 8 U.S.C. 1324(b).
* * * * *
    Section 162.45 also issued under 19 U.S.C. 1607, 1608;
* * * * *


0
2. In Sec.  162.45, paragraphs (b)(1) and (b)(2) are revised to read as 
follows:


Sec.  162.45  Summary forfeiture; Property other than Schedule I and 
Schedule II controlled substances; Notice of seizure and sale.

* * * * *
    (b) Publication. (1) If the appraised value of any property in one 
seizure from one person, other than Schedule I and Schedule II 
controlled substances (as defined in 21 U.S.C. 802(6) and 812), exceeds 
$5,000, the notice will be published by its posting on an official 
Government forfeiture Web site for at least 30 consecutive days. 
Information pertaining to the Government forfeiture Web site will be 
posted in a conspicuous place that is accessible to the public at all 
customhouses and all sector offices of the U.S. Border Patrol. In CBP's 
sole discretion, and as circumstances warrant, additional publication 
for at least three successive weeks in a print medium may be provided. 
All known parties-in-interest will be notified in writing of the 
Government Web site address and the date of Internet publication (and 
pertinent information regarding print publication, when appropriate).
    (2) In all other cases, except for Schedule I and Schedule II 
controlled substances (see Sec.  162.45a), the notice will be published 
by its posting on an official Government forfeiture Web site for at 
least 30 consecutive days and by its posting for at least three 
successive weeks in a conspicuous place that is accessible to the 
public at the customhouse located nearest the place of seizure or the 
appropriate sector office of the U.S. Border Patrol. All known parties-
in-interest will be notified in writing of the Government Web site 
address and the date of Internet publication (and pertinent information 
regarding print publication, when appropriate). The posting at the 
customhouse or sector office will contain the date of on-site posting. 
Articles of small value of the same class or kind included in two or 
more seizures will be advertised as one unit.
* * * * *

    Dated: January 23, 2013.
Janet Napolitano,
Secretary.
[FR Doc. 2013-01757 Filed 1-28-13; 8:45 am]
BILLING CODE 9111-14-P