00-12922. Summary Forfeiture of Controlled Substances

AGENCY:

Customs Service, Treasury.

ACTION:

Final rule.

SUMMARY:

This document amends the Customs Regulations to reflect an amendment to 21 U.S.C. 881 made by the Anti-Drug Abuse Act of 1986. The statutory amendment added Schedule II controlled substances to the Schedule I controlled substances already subject to summary forfeiture and destruction under subsection (f) of 21 U.S.C. 881. The amendment set forth in this document brings the Customs Regulations into conformance with the statute.

EFFECTIVE DATE:

May 23, 2000.

FOR FURTHER INFORMATION CONTACT:

Todd Schneider, Office of Regulations and Rulings (202-927-1694).

SUPPLEMENTARY INFORMATION:

Background

Subsection (a)(1) of 21 U.S.C. 881 provides that all controlled substances that have been manufactured, distributed, dispensed or acquired in violation of subchapter 1, chapter 13, title 21, United States Code, are subject to forfeiture to the United States and no property right shall exist in them. Subsection (f) of 21 U.S.C. 881 provides that all controlled substances in Schedule I and Schedule II will be deemed contraband, seized and summarily forfeited to the United States if they are possessed, transferred, sold or offered for sale in violation of the subchapter. Also, subsection (f) provides that all substances in Schedule I and Schedule II that are seized or come into the possession of the United States, the owners of which are unknown, will be deemed contraband and summarily forfeited to the United States.

Prior to 1986, 21 U.S.C. 881(f) applied only to Schedule I controlled substances. Section 1006(c)(1) of the Anti-Drug Abuse Act of 1986 (Pub. L. 99-570, 100 Stat. 3207, October 27, 1986) amended 21 U.S.C. 881(f) to include Schedule II controlled substances.

Section 162.45a of the Customs Regulations (19 CFR 162.45a), which implements the seizure and summary forfeiture procedure of 21 U.S.C. 881(f), does not reflect the current statute in that it only discusses Schedule I controlled substances (as defined in 21 U.S.C. 802(6) and 812). Accordingly, § 162.45a is amended in this document to include Schedule II controlled substances. This document also makes conforming changes to §§ 162.45(b) and 162.63.

Inapplicability of Public Notice and Comment and Delayed Effective Date Requirements

Pursuant to the provisions of 5 U.S.C. 553(b)(B), Customs has determined that notice and public procedures for this regulation are unnecessary. The regulatory change in this document conforms the Customs Regulations to the terms of a law that is already in effect. For the same reasons, pursuant to the provisions of 5 U.S.C. 553(d)(1) and (3), Customs finds that there is good cause for dispensing with a delayed effective date.

Executive Order 12866

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required for this rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

Drafting Information

The principal author of this document was Bill Conrad, Office of Regulations and Rulings, U.S. Customs Service.

List of Subjects in 19 CFR Part 162

• Administrative practice and procedure
• Drug traffic control
• Imports
• Inspection
• Law Enforcement
• Penalties
• Prohibited merchandise
• Seizures and forfeitures

Amendment to the Regulations

For the reasons stated in the preamble, part 162 of the Customs Regulations (19 CFR Part 162) is amended as set forth below.

PART 162—INSPECTION, SEARCH, AND SEIZURE

1. The authority citation for part 162 continues to read in part, and a new authority citation for § 162.45a is added to read, as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1592, 1593a, 1624.

* * * * *

Section 162.45a also issued under 21 U.S.C. 881;

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2. Section 162.45 is amended by revising the section heading, amending the first sentence of paragraph (b)(1), and revising paragraph (b)(2), to read as follows:

§ 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 $2,500, the notice will be published for at least three successive weeks in a newspaper circulated at the Customs port and in the judicial district where the property was seized. * * *

(2) In all other cases, except for Schedule I and Schedule II controlled substances (see § 162.45a), the notice will be published by posting it in the customhouse nearest the place of seizure. It will be posted in a conspicuous place that is accessible to the public, with the date of posting noted thereon, and will be kept posted for at least three successive weeks. Articles of small value of the same class or kind included in two or more seizures will be advertised as one unit.

* * * * *

3. The heading and text of section 162.45a is revised to read as follows:

§ 162.45a

Summary forfeiture of Schedule I and Schedule II controlled substances.

The Controlled Substances Act (84 Stat. 1242, 21 U.S.C. 801 et seq.) provides that all controlled substances in Schedule I and Schedule II (as defined in 21 U.S.C. 802(6) and 812) that are possessed, transferred, sold or offered for sale in violation of the Act will be deemed contraband, seized and summarily forfeited to the United States (21 U.S.C. 881(f)). The Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.) incorporates by reference this contraband forfeiture provision of 21 U.S.C. 881. See 21 U.S.C. 965. Accordingly, in the case of a seizure of Schedule I or Schedule II controlled substances, the Fines, Penalties, and Forfeitures Officer or his designee will contact the appropriate Drug Enforcement Administration official responsible for issuing permits authorizing the importation of such substances (see 21 CFR part 1312). If upon inquiry the Fines, Penalties, and Forfeitures Officer or his designee is notified that no permit for lawful importation has been issued, he will declare the seized substances contraband and forfeited pursuant to 21 U.S.C. 881(f). Inasmuch as such substances are Schedule I and Schedule II controlled substances, the notice procedures set forth in § 162.45 are inapplicable. When seized controlled substances are required as evidence in a court proceeding, they will be preserved to the extent and in the quantities necessary for that purpose.

4. Section 162.63 is revised to read as follows:

§ 162.63

Arrests and seizures.

Arrests and seizures under the Controlled Substances Act (84 Stat. 1242, 21 U.S.C. 801 et seq.), and the Controlled Substances Import and Export Act (84 Stat. 1285, 21 U.S.C. 951 et seq.), will be handled in the same manner as other Customs arrests and seizures. However, Schedule I and Schedule II controlled substances (as defined in 21 U.S.C. 802(6) and 812) imported contrary to law will be seized and forfeited in the manner provided in the Controlled Substances Act (21 U.S.C. 881(f)). See § 162.45a.

Raymond W. Kelly,

Commissioner of Customs.

Approved: March 24, 2000.

John P. Simpson,

Deputy Assistant Secretary of the Treasury.