[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29711]


[[Page Unknown]]

[Federal Register: December 2, 1994]


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DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Part 141

[T.D. 94-95]
RIN 1515-AB39

 

Establishment of Conditional Release Period for Textiles and 
Textile Products

AGENCY: U.S. Customs Service, Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document amends the Customs Regulations to establish a 
conditional release period of 180 days on entries of textiles and 
textile products for the sole purpose of facilitating a determination 
as to whether the country of origin of the entered goods has been 
accurately represented to Customs. This amendment will permit Customs 
to issue Notices of Redelivery to importers of textiles and textile 
products within 30 days after the end of the conditional release period 
if investigation or information reveals that the merchandise was 
claimed to originate in a country where little or no manufacturing 
processes occurred in order to avoid quota or visa admissibility 
requirements. An importer who fails to redeliver the merchandise to 
Customs custody would be liable for liquidated damages under the terms 
of the Basic Importation and Entry Bond.

EFFECTIVE DATE: January 3, 1995.

FOR FURTHER INFORMATION CONTACT: Jeremy Baskin, Penalties Branch, 
Office of Regulations and Rulings, 202-482-6950.

SUPPLEMENTARY INFORMATION:

Background

    On March 30, 1994, Customs published a notice in the Federal 
Register (59 FR 14808) which proposed to amend Part 141 of the Customs 
Regulations (19 CFR Part 141) to provide for a conditional release 
period of 180 days on all textiles and textile products that are 
subject to the provisions of section 204, Agricultural Act of 1956, as 
amended (7 U.S.C. 1854). The notice referred to the significant 
enforcement problem regarding textiles and textile products that are 
imported into the United States in violation of quota restrictions or 
without the appropriate visa from the country of origin. The notice 
stated that this problem involves merchandise that is the product of a 
country to which stringent quotas or visa requirements apply and that 
is transshipped through a second country having less rigorous quota and 
visa standards, often in order to facilitate the making of a false 
claim, upon importation into the United States, that the merchandise is 
a product of the country through which it was transshipped and 
therefore subject to the more lenient quota and visa entry standards 
applicable to products of that country. The notice pointed out two 
principal obstacles to effective enforcement efforts in such cases: (1) 
While the penalty provisions of section 592 of the Tariff Act of 1930, 
as amended (19 U.S.C. 1592), are in principle available for assessment 
against any party who has committed fraud, gross negligence or 
negligence in connection with the entry of such transshipped 
merchandise, it is not always possible to establish the requisite 
culpability; and (2) the other alternative, namely the issuance of a 
Notice of Redelivery followed by the issuance of a claim for liquidated 
damages for a failure to redeliver, is often not available because in 
many cases the violation is discovered only after the close of the time 
period provided in the regulations for issuance of a Notice of 
Redelivery (for textiles and textile products and other merchandise for 
which a conditional release period is not specified in the regulations, 
issuance must be within 30 days of the release of the merchandise from 
Customs custody).
    In order to address these problems, Customs proposed to amend 
Sec. 141.113 of the Customs Regulations (19 CFR 141.113) by adding a 
new paragraph (b) to provide for a specific conditional release period 
of 180 days from the date of release for all textiles and textile 
products subject to section 204 of the Agricultural Act of 1956. Thus, 
under the terms of Sec. 113.62(d) of the Customs Regulations (19 CFR 
113.62(d)), Customs would then have up to 30 days from the end of the 
conditional release period to issue a Notice of Redelivery whenever it 
is determined that a textile or textile product is not entitled to 
admission into the commerce of the United States. Failure to redeliver 
merchandise within the time period specified in the Notice of 
Redelivery (generally 30 days from the date of the Notice) would result 
in the assessment of a claim for liquidated damages under the Basic 
Importation and Entry Bond as provided in Sec. 113.62(k) of the 
regulations. In addition, the notice set forth proposed conforming 
changes to Sec. 141.113 as a consequence of the addition of the 
proposed new paragraph (b). The notice invited the public to submit 
written comments on the proposals, and the public comment period closed 
on May 31, 1994.

Analysis of Comments

    Twenty-seven comments were received. Four of the commenters were 
entirely in favor of the proposed regulatory amendments as written and 
suggested no changes. Twenty-three commenters opposed the proposals. 
The comments in opposition are discussed below.
    Comment: All of the commenters opposing the proposed rule indicated 
that the proposed conditional release period of 180 days on all textile 
importations did not take into account the commercial reality of 
textile importation and distribution. Textile and apparel sales are 
subject to seasonal requirements and stylistic variables, and the 
commenters charged that it would be commercially untenable to maintain 
on hand seven months worth of inventory in order to be insulated from 
any liability for possible redelivery violations. Many of the 
commenters noted that they operate in a ``just in time'' environment so 
that as little inventory as possible remains on hand. It was generally 
agreed upon by the negative commenters that the proposed rule would 
impose a significant economic burden on the legitimate importer but 
that the nefarious importer would continue to operate without regard 
for any possible consequence.
    Customs response: Customs recognizes that some potential economic 
risk would result from the establishment of the 180-day conditional 
release period. As noted in the analysis of the following comment made 
with regard to the proposal, Customs acknowledges the potential 
economic hardship that might be caused by a sweeping regulation and, 
therefore, has drawn the conditions upon which redelivery can be based 
narrowly so as to affect as few entries as possible. In weighing the 
economic harm caused by illegally transshipped goods against the 
potential liability incurred by an importer because of the extension of 
the 30-day redelivery period, Customs believes that this objection to 
the proposed amendment does not constitute a sufficient basis for not 
proceeding with a final rule on this matter.
    Comment: All of the commenters opposed to the proposed regulation 
stated that it was overly broad, noting that the proposed text would 
apply a 180-day conditional release period to all textile and apparel 
entries on any issue of admissibility, including issues of 
classification, valuation or duty assessment. The following observation 
was typical of the comments submitted on this point: Although the 
release period modification was intended to address the assumed 
abundance of transshipment violations, importers may be exposed to 
liability merely for instances of classification/quota category 
disputes; Customs will therefore have the opportunity to penalize 
importers for matters independent of the intentions of the proposal.
    Customs response: Customs agrees that the sweep of the proposed 
regulation is too broad. Accordingly, the regulatory text in question, 
as set forth below, has been redrafted to establish a conditional 
release period of 180 days for textiles and textile products only for 
purposes of determining whether a transshipment violation has occurred. 
This narrowing of the scope of the regulation will serve to alleviate 
many of the concerns of risk raised by the commenters. The 180-day 
period would not be applicable to issues of classification, valuation 
or other issues of admissibility not related to a transshipment 
violation.
    Comment: Two commenters suggested that the proposed rule directly 
violates section 621 of the Customs Modernization (hereinafter the 
``Mod Act'') provisions contained in Title VI of the North American 
Free Trade Agreement Implementation Act (Public Law 103-182, 107 Stat. 
2057). These commenters asserted that under the Mod Act provisions and 
the intent of the Congress expressed therein, an importer is held to a 
standard of ``reasonable care'' in discharging those entry and related 
activities for which he is responsible. Failure to maintain that 
standard will result in assessment of penalties for violation of the 
provisions of 19 U.S.C. 1592. The commenters claimed that Customs, 
through liquidated damages assessment, is gutting the reasonable care 
concept and imposing a strict liability standard on a situation which 
Customs admits cannot be sanctioned through a 1592 action due to a 
failure of proof.
    Customs response: Customs does not agree with this analysis. By 
acting as importer of record, an importer or broker knowingly accepts 
the terms of the Basic Importation and Entry Bond. When a transshipment 
violation occurs, the importation of violative goods into the United 
States results. Compensation for that harm, which is the purpose of a 
liquidated damage claim, is not readily quantifiable and need not be 
based upon a finding of culpability.
    Liability under section 1592 is based upon a finding of culpability 
and is not limited to the importer of the goods. The penalty provisions 
reach importers, brokers, manufacturers, shippers, and the like, and 
may also include aiders and abettors of violations. These penalties 
serve to punish violators and deter future violative conduct but they 
do not serve to compensate the Government for harm. It is inapposite to 
impose standards of reasonable care promulgated by the Mod Act to a 
bond violation situation. Customs does not believe that the proposed 
regulation is in conflict with the Mod Act and therefore sees no reason 
to modify or withdraw the proposed rule based on this comment.
    Comment: Several commenters suggested that imposition of liquidated 
damages equal to three times the value of merchandise which is not 
redelivered serves to punish rather than compensate when the violation 
involves illegal transshipment of textile merchandise. These commenters 
noted that an importer could be found to be negligent and incur a 1592 
penalty but pay considerably less than a three-times-the-value-of-the-
merchandise claim assessed as liquidated damages.
    Customs response: Illegally transshipped textile merchandise, while 
prohibited in nature, does not cause a health or safety hazard to the 
general public. Accordingly, Customs agrees with the thrust of this 
comment and, therefore, the regulatory text as set forth below, has 
been redrafted to limit any liquidated damages assessment for 
transshipment violations to the value of the merchandise involved in 
the breach.

Conclusion

    Accordingly, for the above reasons, Customs has determined that the 
proposed regulatory changes should be adopted as a final rule, subject 
to the textual modifications to the proposed regulatory text as 
discussed in the above comment analysis and as set forth below.

Executive Order 12866

    This document does not meet the criteria for a ``significant 
regulatory action'' as specified in Executive Order 12866.

Regulatory Flexibility Act

    Pursuant to the provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), it is certified that the regulatory amendments 
will not have a significant economic impact on a substantial number of 
small entities. Establishment of a conditional release period for 
textiles and textile products, which is necessary for law enforcement 
purposes, will affect only the relatively small percentage of importers 
who import such merchandise contrary to law. Accordingly, the 
amendments are not subject to the regulatory analysis or other 
requirements of 5 U.S.C. 603 and 604.

List of Subjects in 19 CFR Part 141

    Bonds, Customs duties and inspection, Entry procedures, Imports, 
Release of merchandise.

Amendments to the Regulations

    Accordingly, for the reasons set forth above, Part 141, Customs 
Regulations (19 CFR Part 141), is amended as set forth below.

PART 141--ENTRY OF MERCHANDISE

    1. The authority citation for Part 141 continues to read in part as 
follows:

    Authority: 19 U.S.C. 66, 1448, 1484, 1624.
* * * * *
    Section 141.113 also issued under 19 U.S.C. 1499, 1623.
    2. Section 141.113 is amended by redesignating paragraphs (b) 
through (g) as (c) through (h), by adding the words ``or (b)'' after 
the words ``paragraph (a)'' in newly designated paragraph (c), and by 
adding a new paragraph (b) to read as follows:


Sec. 141.113   Recall of merchandise released from Customs custody.

* * * * *
    (b) Textiles and textile products. For purposes of determining 
whether the country of origin of textiles and textile products subject 
to the provisions of Sec. 12.130 of this chapter has been accurately 
represented to Customs, the release from Customs custody of any such 
textile or textile product shall be deemed conditional during the 180-
day period following the date of release. If the district director 
finds during the conditional release period that a textile or textile 
product is not entitled to admission into the commerce of the United 
States because the country of origin of the textile or textile product 
was not accurately represented to Customs, he shall promptly demand its 
return to Customs custody. Notwithstanding the provisions of paragraph 
(h) of this section and Sec. 113.62(k)(1) of this chapter, a failure to 
comply with a demand for return to Customs custody made under this 
paragraph shall result in the assessment of liquidated damages equal to 
the value of the merchandise involved.
* * * * *
Michael H. Lane,
Acting Commissioner of Customs.

    Approved: October 24, 1994.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 94-29711 Filed 12-01-94; 8:45 am]
BILLING CODE 4820-02-P