[Federal Register Volume 63, Number 208 (Wednesday, October 28, 1998)]
[Proposed Rules]
[Pages 57628-57636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28786]


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DEPARTMENT OF THE TREASURY

Customs Service


Guidelines for the Imposition and Mitigation of Penalties for 
Violations of 19 U.S.C. 1592

19 CFR Part 171

RIN 1515-AC08
AGENCY: U. S. Customs Service, Department of the Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes to revise Appendix B to Part 171 of the 
Customs Regulations, which sets forth the guidelines for remitting and

[[Page 57629]]

mitigating penalties relating to violations of section 592 of the 
Tariff Act of 1930, as amended. A violation of section 592 involves the 
entry or introduction or attempted entry or introduction of merchandise 
into the United States by fraud, gross negligence, or negligence. Many 
of the proposed changes to Appendix B reflect the Customs Modernization 
Act and its themes of ``informed compliance'' and ``shared 
responsibility.''

DATES: Comments must be received on or before December 28, 1998.

ADDRESSES: Comments (preferably in triplicate) may be submitted to and 
inspected at the Regulations Branch, Office of Regulations and Rulings, 
U.S. Customs Service, 1300 Pennsylvania Avenue, N.W., 3rd Floor, 
Washington, D.C. 20229.

FOR FURTHER INFORMATION CONTACT: Robert Pisani, Penalties Branch, (202) 
927-1203.

SUPPLEMENTARY INFORMATION:

Background

    On December 8, 1993, the President signed the North American Free 
Trade Agreement Implementation Act (Public Law 103-182). The Customs 
Modernization portion of this Act (Title VI), popularly known as the 
Customs Modernization Act or ``the Mod Act'', became effective when it 
was signed. The Mod Act emphasizes the themes of shared responsibility 
and informed compliance for Customs and the public.
    Consistent with the Mod Act, Customs has initiated a thorough 
examination and review of its procedures and processes relating to 
importer compliance with Customs laws, regulations, and policies. In 
this review, the agency has considered a number of innovative 
approaches to improving the service it provides the importing public as 
well as new approaches to encourage compliance and address incidents of 
non-compliance.
    With regard to compliance, Customs is dedicated to educating its 
personnel to improve agency selection of appropriate remedies to 
address incidents of non-compliance. In keeping with the Mod Act theme 
of informed compliance, Customs is also attempting to educate the 
importing public about its requirements, particularly in areas 
involving complex import transactions. A more informed public promotes 
an overall greater level of compliance than the threat of an occasional 
and often ineffective penalty. A significant aspect of this ``shared 
responsibility'' and ``informed compliance'' approach is reflected in 
the proposed revision of the guidelines for remitting and mitigating 
penalties relating to violations of Sec. 592 of the Tariff Act of 1930, 
as amended (19 U.S.C. 1592) (hereinafter referred to as Sec. 592). A 
violation of Sec. 592 involves the entry or introduction or attempted 
entry or introduction of merchandise into the United States by fraud, 
gross negligence, or negligence. The guidelines for remitting and 
mitigating penalties relating to violations of Sec. 592 appear as 
Appendix B to Part 171 of the Customs Regulations.
    The full text of the proposed revised guidelines appears at the end 
of this document. It is preceded by a summary of the more significant 
proposed revisions to the guidelines. Much of the proposed revision of 
the penalty guidelines consists of a reorganization of the content of 
the current guidelines into a new format that is intended to more 
clearly identify important provisions which are contained in the 
present text.

Summary of Proposed Guidelines

    After the introductory text, the proposed revised guidelines break 
current paragraph (A) into 2 paragraphs. Proposed paragraph (A) now 
discusses what constitutes Sec. 592 violations and proposed paragraph 
(B) discusses what is meant by materiality.
    Paragraph (A) now clarifies that placing merchandise in-bond is 
considered entering or introducing merchandise into the United States 
for purposes of Sec. 592. The paragraph also makes it clear that if one 
unintentionally transmits a clerical error to Customs electronically, 
and that clerical error is transmitted repetitively by the electronic 
system, Customs will not consider repetitions of the non-intentional 
electronic transmission of the initial clerical error as constituting a 
pattern, unless Customs has drawn the error to the party's attention.
    In the proposed new paragraph (B), defining materiality under 
Sec. 592, that definition is expanded by providing that a document, 
statement, act, or omission is material if it significantly impairs 
Customs ability to collect and report accurate trade statistics, 
deceives the public as to the source, origin or quality of the 
merchandise, or constitutes an unfair trade practice in violation of 
federal law.
    Proposed paragraph (C) now discusses the degrees of culpability 
under Sec. 592. The degrees of culpability are currently discussed in 
paragraph (B).
    A new paragraph (D) is proposed to be added to include terms used 
throughout the guidelines. Included in this paragraph are discussions 
of the terms: duty loss violations; non-duty loss violations; actual 
loss of duty; potential loss of duty; reasonable care; clerical error; 
and mistake of fact.
    The proposed guidelines contain a new paragraph (E) that is 
intended to track the administrative penalty process in chronological 
order. It is a revision of current paragraph (C). It begins with the 
case initiation and proceeds to describe the considerations pertinent 
to the decision to issue a pre-penalty notice and how the different 
types of violations can produce different proposed claim amounts 
depending upon the level of culpability and the presence of mitigating 
and/or aggravating factors. The proposed guidelines now contain express 
guidance regarding statute of limitations considerations and Customs 
policy regarding waivers when the issuance of pre-penalty and penalty 
notices are involved.
    Continuing in their chronological progression, the proposed 
guidelines next address steps to be taken when Customs decides whether 
to close a case or issue a penalty notice. Most of this material is 
presently contained in paragraph (C)(2) of the current guidelines. 
However, the proposed guidelines provide that penalty notices can 
indicate higher degrees of culpability and proposed penalty amounts 
than were contained in the original pre-penalty notice if less than 9 
months remain before the expiration of the statute of limitations, and 
a waiver of the statute has not been received. The current guidelines 
provide that such increased penalty notices would only be issued if 
less than 3 months remained.
    Paragraph (F) of the proposed guidelines covers the procedures that 
are to be followed and elements that Customs will consider as part of 
the case record for any mitigating and/or aggravating factors. The 
existing guidelines discuss mitigating factors in paragraph (F) and 
aggravating factors in paragraph (G). The new paragraph is arranged so 
the various types and degrees of violations are explained and 
respective mitigation considerations are explained. The paragraph also 
informs the reader who within Customs has the authority to cancel or 
remit penalty claims.
    Paragraph (F)(2)(f) provides a discussion of prior disclosure and 
the reduced penalties based upon the different levels of culpability 
for a valid prior disclosure. Prior disclosure is discussed in 
paragraph (E) of the existing guidelines.
    Paragraph (G) of the proposed guidelines discusses the factors that 
are considered by Customs in proposing a penalty or mitigating an 
assessed penalty claim. Among these factors are:

[[Page 57630]]

an error by Customs that contributed to the violation; the extent of 
cooperation by the violator with the investigation by Customs into the 
alleged violation; whether or not the violator takes immediate steps to 
remedy the situation that caused the violation; and the prior record of 
the violator in its dealings with Customs. This paragraph combines the 
factors currently located in paragraphs (F) and (H) of the existing 
guidelines. It was felt that a separate paragraph was no longer 
necessary for ``extraordinary'' factors such as the ability of Customs 
to obtain personal jurisdiction over the violator, the violator's 
financial status, and whether Customs had actual knowledge of repeated 
violations but failed to inform the violator thus depriving him of the 
opportunity to take corrective action. All these factors are now 
contained in the one paragraph, but additional factors may be 
considered in appropriate circumstances.
    Paragraph (H) contains the factors that Customs believes are to be 
treated as aggravating factors when considering mitigation of proposed 
or assessed penalties. Most of these factors are currently contained in 
paragraph (G) of the existing guidelines. While the list of factors is 
not intended to be all-inclusive, two new factors have been added. They 
are: the discovery of evidence of a motive to evade a prohibition or 
restriction on the admissibility of merchandise, and failure to comply 
with a lawful demand for records or a Customs summons.
    Paragraph (I) of the proposed guidelines addresses offers in 
compromise (settlement offers). This is a new element not contained in 
the existing guidelines. The paragraph instructs parties who wish to 
submit a civil offer in compromise pursuant to 19 U.S.C. 1617 to follow 
procedures outlined in Sec. 161.5 of the Customs Regulations (19 CFR 
161.5). The paragraph summarizes what steps will be taken by both 
parties once such an offer has been made.
    Paragraph (J) of the proposed guidelines contains instructions to 
be followed in instances where Customs makes a demand for payment of 
actual loss of duties pursuant to Sec. 592(d). This is a subject not 
addressed in the existing guidelines. The paragraph provides that 
Customs will follow the procedures set forth in Sec. 162.79b of the 
Customs Regulations (19 CFR 162.79b) and states that no such demand 
will be issued unless the record establishes the presence of a 
violation of Sec. 592(a). The paragraph states that, absent statute of 
limitations problems, Customs will endeavor to issue Sec. 592(d) 
demands to concerned sureties and non-violator importers only after 
default by principals.
    Paragraph (K) of the proposed guidelines addresses violations of 
Sec. 592 by brokers. The existing guidelines discuss brokers in 
paragraph (I). The paragraph continues the present practice of applying 
the overall mitigation guidelines in instances of fraud or where the 
broker shares in the financial benefits of a violation. However, where 
there has been no fraud or sharing of the financial benefits, the 
proposal removes the dollar limitations contained in the present 
guidelines and instructs Customs to proceed against the broker under 19 
U.S.C. 1641.
    Paragraph (L) of the proposed guidelines covers arriving travelers 
and consists of a reordering of the current provisions of paragraph (J) 
of the present guidelines.
    Paragraph (M) of the proposed guidelines refers Customs officers to 
other Federal agencies for recommendations in instances where 
violations of laws administered by other agencies are discovered. These 
provisions are the same as those contained in paragraph (K) of the 
existing guidelines.

Comments

    Before adopting this proposal, consideration will be given to any 
written comments (preferably in triplicate) that are timely submitted 
to Customs. All such comments received from the public pursuant to this 
notice of proposed rulemaking will be available for public inspection 
in accordance with the Freedom of Information Act (5 U.S.C. 552), 
Sec. 1.4, Treasury Department Regulations (31 CFR 1.4), and 
Sec. 103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular 
business days between the hours of 9:00 a.m. and 4:30 p.m., at the 
Regulations Branch, 1300 Pennsylvania Avenue, NW, 3rd Floor, 
Washington, D.C.

Regulatory Flexibility Act

    Although comments have been solicited on this proposal, because the 
proposed amendment relates to rules of agency procedure and policy no 
notice of proposed rulemaking is required pursuant to 5 U.S.C. 553. For 
this reason the document is not subject to the provisions of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Executive Order 12866

    Because the document is not regulatory in nature, but merely serves 
to inform the public about certain agency procedures and practices, the 
proposed amendment does not meet the criteria for a ``significant 
regulatory action'' under E.O. 12866.
    Drafting Information: The principal author of this document was 
Peter T. Lynch, Regulations Branch, Office of Regulations and Rulings, 
U.S. Customs Service. However, personnel from other offices 
participated in its development.

List of Subjects in 19 CFR Part 171

    Customs duties and inspection, Law enforcement, Penalties, Seizures 
and forfeitures.

Proposed Amendment to the Regulations

    It is proposed to amend Part 171 of the Customs Regulations (19 CFR 
part 171) as set forth below:

PART 171--FINES, PENALTIES, AND FORFEITURES

    1. The general authority citation for Part 171 continues to read as 
follows:

    Authority: 19 U.S.C. 66, 1592, 1618, 1624. The provisions of 
subpart C also issued under 22 U.S.C. 401; 46 U.S.C. App. 320 unless 
otherwise noted.

    2. It is proposed to revise Appendix B to Part 171 to read as 
follows:

Appendix B to Part 171--Customs Regulations, Guidelines for the 
Imposition and Mitigation of Penalties for Violations of 19 U.S.C. 
1592

    A monetary penalty incurred under section 592 of the Tariff Act of 
1930, as amended (19 U.S.C. 1592; hereinafter referred to as section 
592) may be remitted or mitigated under section 618 of the Tariff Act 
of 1930, as amended (19 U.S.C. 1618), if it is determined that there 
are mitigating circumstances to justify remission or mitigation. The 
guidelines below will be used by the Customs Service in arriving at a 
just and reasonable assessment and disposition of liabilities arising 
under section 592 within the stated limitations. It is intended that 
these guidelines shall be applied by Customs officers in pre-penalty 
proceedings and in determining the monetary penalty assessed in any 
penalty notice. The assessed penalty or penalty amount set forth in 
Customs administrative disposition determined in accordance with these 
guidelines does not limit the penalty amount which the Government may 
seek in bringing a civil enforcement action pursuant to section 592(e). 
It should be understood that any mitigated penalty is conditioned upon 
payment of any actual loss of duty as well as a release by the party 
that indicates that the mitigation

[[Page 57631]]

decision constitutes full accord and satisfaction. Further, mitigation 
decisions are not rulings within the meaning of part 177 of the Customs 
Regulations (19 CFR part 177). Lastly, these guidelines may supplement, 
and are not intended to preclude application of, any other special 
guidelines promulgated by Customs.

(A) Violations of Section 592

    Without regard to whether the United States is or may be deprived 
of all or a portion of any lawful duty thereby, a violation of section 
592 occurs when a person, through fraud, gross negligence, or 
negligence, enters, introduces, or attempts to enter or introduce any 
merchandise into the commerce of the United States by means of any 
document, written or oral statement, or act that is material and false, 
or any omission that is material; or when a person aids or abets any 
other person in the entry, introduction, or attempted entry or 
introduction of merchandise by such means. It should be noted that the 
language ``entry, introduction, or attempted entry or introduction'' 
encompasses placing merchandise in-bond (e.g., filing an immediate 
transportation application). There is no violation if the falsity or 
omission is due solely to clerical error or mistake of fact, unless the 
error or mistake is part of a pattern of negligent conduct. Also, the 
unintentional repetition by an electronic system of an initial clerical 
error generally shall not constitute a pattern of negligent conduct. 
Nevertheless, if Customs has drawn the party's attention to the 
unintentional repetition by an electronic system of an initial clerical 
error, subsequent failure to correct the error could constitute a 
violation of section 592. Also, the unintentional repetition of a 
clerical mistake over a significant period of time or involving many 
entries could indicate a pattern of negligent conduct and a failure to 
exercise reasonable care.

(B) Definition of Materiality Under Section 592.

    A document, statement, act, or omission is material if it had the 
potential to influence or was capable of influencing agency action 
including, but not limited to a Customs action regarding: (1) 
determination of the classification, appraisement, or admissibility of 
merchandise (e.g., whether merchandise is prohibited or restricted); 
(2) determination of an importer's liability for duty (including 
marking, antidumping, and/or countervailing duty); (3) collection and 
reporting of accurate trade statistics; (4) determination as to the 
source, origin, or quality of merchandise; (5) determination of whether 
an unfair trade practice has been committed under the anti-dumping or 
countervailing duty laws or a similar statute; (6) determination of 
whether an unfair act has been committed involving patent, trademark, 
or copyright infringement; or (7) the determination of whether any 
other unfair trade practice has been committed in violation of federal 
law.

(C) Degrees of Culpability Under Section 592

    The three degrees of culpability under section 592 for the purposes 
of administrative proceedings are:
    (1) Negligence. A violation is determined to be negligent if it 
results from an act or acts (of commission or omission) done through 
either the failure to exercise the degree of reasonable care and 
competence expected from a person in the same circumstances either: (a) 
in ascertaining the facts or in drawing inferences therefrom, in 
ascertaining the offender's obligations under the statute; or (b) in 
communicating information in a manner so that it may be understood by 
the recipient. As a general rule, a violation is negligent if it 
results from failure to exercise reasonable care and competence: (a) to 
ensure that statements made and information provided in connection with 
the importation of merchandise are complete and accurate; or (b) to 
perform any material act required by statute or regulation.
    (2) Gross Negligence. A violation is deemed to be grossly negligent 
if it results from an act or acts (of commission or omission) done with 
actual knowledge of or wanton disregard for the relevant facts and with 
indifference to or disregard for the offender's obligations under the 
statute.
    (3) Fraud. A violation is determined to be fraudulent if a material 
false statement, omission, or act in connection with the transaction 
was committed (or omitted) knowingly, i.e., was done voluntarily and 
intentionally, as established by clear and convincing evidence.

(D) Discussion of Additional Terms

    (1) Duty Loss Violations. A section 592 duty loss violation 
involves those cases where there has been a loss of duty attributable 
to an alleged violation.
    (2) Non-duty Loss Violations. A section 592 non-duty loss violation 
involves cases where the record indicates that an alleged violation is 
principally attributable to evasion of a prohibition, restriction, or 
other non-duty related consideration involving the importation of the 
merchandise.
    (3) Actual Loss of Duties. An actual loss of duty occurs where 
there is a loss of duty including any marking, anti-dumping, or 
countervailing duties, or any tax and fee (e.g., merchandise processing 
and/or harbor maintenance fees) attributable to a liquidated Customs 
entry, and the merchandise covered by the entry has been entered or 
introduced (or attempted to be entered or introduced) in violation of 
section 592.
    (4) Potential Loss of Duties. A potential loss of duty occurs where 
an entry remains unliquidated and there is a loss of duty, including 
any marking, anti-dumping or countervailing duties or any tax and fee 
(e.g., merchandise processing and/or harbor maintenance fees) 
attributable to a violation of section 592, but the violation was 
discovered prior to liquidation. In addition, a potential loss of duty 
exists where Customs discovers the violation and corrects the entry to 
reflect liquidation at the proper classification and value. In other 
words, the potential loss in such cases equals the amount of duty, tax 
and fee that would have occurred had Customs not discovered the 
violation prior to liquidation and taken steps to correct the entry.
    (5) Total Loss of Duty. The total loss of duty is the sum of any 
actual and potential loss of duty attributable to alleged violations of 
section 592 in a particular case. Payment of any actual and/or 
potential loss of duty shall not affect or reduce the total loss of 
duty used for assessing penalties as set forth in these guidelines. The 
``multiples'' set forth below in paragraph (F)(2) involving assessment 
and disposition of cases shall utilize the ``total loss of duty'' 
amount in arriving at the appropriate assessment or disposition.
    (6) Reasonable Care. General Standard: Importers of record or their 
agents are required to exercise reasonable care in fulfilling their 
responsibilities involving entry of merchandise. These responsibilities 
include, but are not limited to: providing a classification and value 
for the merchandise; furnishing information sufficient to permit 
Customs to determine the final classification and valuation of 
merchandise; and taking measures that will lead to and assure the 
preparation of accurate documentation. Customs will consider an 
importer's failure to follow a binding Customs ruling a lack of 
reasonable care. In addition, unreasonable classification will be 
considered a lack of reasonable care (e.g., imported snow skis are 
classified as water skis). Failure

[[Page 57632]]

to exercise reasonable care in connection with the importation of 
merchandise may result in imposition of a section 592 penalty for 
fraud, gross negligence or negligence.
    (7) Clerical Error. A clerical error is an error in the 
preparation, assembly or submission of import documentation or 
information provided to Customs that results from a mistake in 
arithmetic or transcription that is not part of a pattern of 
negligence. The mere non-intentional repetition by an electronic system 
of an initial clerical error does not constitute a pattern of 
negligence. Nevertheless, as stated earlier, if Customs has drawn a 
party's attention to the non-intentional repetition by an electronic 
system of an initial clerical error, subsequent failure to correct the 
error could constitute a violation of section 592. Also, the 
unintentional repetition of a clerical mistake over a significant 
period of time or involving many entries could indicate a pattern of 
negligent conduct and a failure to exercise reasonable care.
    (8) Mistake of Fact. A mistake of fact is a false statement or 
omission that is based on a bona fide erroneous belief as to the facts, 
so long as the belief itself did not result from negligence in 
ascertaining the accuracy of the facts.

(E) Penalty Assessment

    (1) Case Initiation--Pre-penalty Notice.
    (a) Generally. As provided in section 162.77, Customs Regulations 
(19 CFR 162.77), if the appropriate Customs field officer has 
reasonable cause to believe that a violation of section 592 has 
occurred and determines that further proceedings are warranted, the 
Customs field officer shall issue to each person concerned a notice of 
intent to issue a claim for a monetary penalty (i.e., the ``pre-penalty 
notice''). In issuing such a pre-penalty notice, the Customs field 
officer shall make a tentative determination of the degree of 
culpability and the amount of the proposed claim. Payment of any actual 
and/or potential loss of duty shall not affect or reduce the total loss 
of duty used for assessing penalties as set forth in these guidelines. 
The ``multiples'' set forth in paragraphs (F)(2)(a)(i), (b)(i) and 
(c)(i) involving assessment and disposition of duty loss violation 
cases shall use the ``total loss of duty'' amount in arriving at the 
appropriate assessment or disposition. Further, where separate duty 
loss and non-duty loss violations occur on the same entry, it is within 
the Customs field officer's discretion to assess both duty loss and 
non-duty loss penalties, or only one of them. Where only one of the 
penalties is assessed, the Customs field officer has the discretion to 
select which penalty (duty loss or non-duty loss) shall be assessed. 
Also, where there is only one violation accompanied by an incidental or 
nominal loss of duties, the Customs field officer may assess a non-duty 
loss penalty where the incidental or nominal duty loss resulted from a 
separate non-duty loss violation. The Customs field officer shall 
propose a level of culpability in the pre-penalty notice that conforms 
to the level of culpability suggested by the evidence at the time of 
issuance. Moreover, the pre-penalty notice shall include a statement 
that it is Customs practice to base its actions on the earliest point 
in time that the statute of limitations may be asserted (i.e., the date 
of occurrence of the alleged violation) inasmuch as the final 
resolution of a case in court may be less than a finding of fraud. A 
pre-penalty notice that is issued to a party in a case where Customs 
determines a claimed prior disclosure is not valid--owing to the 
disclosing party's knowledge of the commencement of a formal 
investigation of a disclosed violation--shall include a copy of a 
written document that evidences the commencement of a formal 
investigation. In addition, a pre-penalty notice is not required if a 
violation involves a non-commercial importation or if the proposed 
claim does not exceed $1,000.
    (b) Pre-penalty Notice--Proposed Claim amount.
    (i) Fraud. In general, if a violation is determined to be the 
result of fraud, the proposed claim ordinarily will be assessed in an 
amount equal to the domestic value of the merchandise. Exceptions to 
assessing the penalty at the domestic value may be warranted in unusual 
circumstances such as a case where the domestic value of the 
merchandise is disproportionately high in comparison to the loss of 
duty attributable to an alleged violation (e.g., a total loss of duty 
of $10,000 involving 10 entries with a total domestic value of 
$2,000,000). Also, it is incumbent upon the appropriate Customs field 
officer to consider whether mitigating factors are present warranting a 
reduction in the customary domestic value assessment. In all 592 cases 
of this nature regardless of the dollar amount of the proposed claim, 
the Customs field officer shall obtain the approval of the Penalties 
Branch at Headquarters prior to issuance of a pre-penalty notice at an 
amount less than domestic value.
    (ii) Gross Negligence and Negligence. In determining the amount of 
the proposed claim in cases involving gross negligence and negligence, 
the appropriate Customs field officer shall take into account the 
gravity of the offense, the amount of loss of duty, the extent of 
wrongdoing, mitigating or aggravating factors, and other factors 
bearing upon the seriousness of a violation, but in no case shall the 
assessed penalty exceed the statutory ceilings prescribed in section 
592. In cases involving gross negligence and negligence, penalties 
equivalent to the ceilings stated in paragraphs (F)(2)(b) and (c) 
regarding disposition of cases may be appropriate in cases involving 
serious violations, e.g., violations involving a high loss of duty or 
significant evasion of import prohibitions or restrictions. A 
``serious'' violation need not result in a loss of duty. The violation 
may be serious because it affects the admissibility of merchandise or 
the enforcement of other laws, as in the case of quota evasions, false 
statements made to conceal the dumping of merchandise, or violations of 
exclusionary orders of the International Trade Commission.
    (c) Technical Violations. Violations where the loss of duty is 
nonexistent or minimal and/or that have an insignificant impact on 
enforcement of the laws of the United States may justify a proposed 
penalty in a fixed amount not related to the value of merchandise, but 
an amount believed sufficient to have a deterrent effect: e.g., 
violations involving the subsequent sale of merchandise or vehicles 
entered for personal use; violations involving failure to comply with 
declaration or entry requirements that do not change the admissibility 
or entry status of merchandise or its appraised value or 
classification; violations involving the illegal diversion to domestic 
use of instruments of international traffic; and local point-to-point 
traffic violations. Generally, a penalty in a fixed amount ranging from 
$1,000 to $2,000 is appropriate in cases where there are no prior 
violations of the same kind. However, fixed sums ranging from $2,000 to 
$10,000 may be appropriate in the case of multiple or repeated 
violations. Fixed sum penalty amounts are not subject to further 
mitigation and may not exceed the maximum amounts stated in section 592 
and in these guidelines.
    (d) Statute of Limitations Considerations--Waivers. Prior to 
issuance of any section 592 pre-penalty notice, the appropriate Customs 
field officer shall calculate the statute of limitations attributable 
to an alleged violation. Inasmuch as 592 cases are reviewed de novo by 
the Court of International Trade, the statute of limitations 
calculation in cases alleging fraud should assume a level of

[[Page 57633]]

culpability of gross negligence or negligence, i.e., ordinarily 
applying a shorter period of time for statute of limitations purposes. 
In accordance with section 162.78 of the Customs Regulations, if less 
than 1 year remains before the statute of limitations may be raised as 
a defense, a shortened response time may be specified in the notice--
but in no case, less than 7 business days from the date of mailing. In 
cases of shortened response times, the Customs field officer should 
notify alleged violators by telephone and use all reasonable means 
(e.g., facsimile transmission of a copy of the notice) to expedite 
receipt of the notice by the alleged violators. Also in such cases, the 
appropriate Customs field officer should advise the alleged violator 
that additional time to respond to the pre-penalty notice will be 
granted only if an acceptable waiver of the statute of limitations is 
submitted to Customs. With regard to waivers of the statute of 
limitations, it is Customs practice to request waivers concurrently 
both from all potential alleged violators and their sureties.
    (2) Closure of Case or Issuance of Penalty Notice.
    (a) Case Closure. The appropriate Customs field officer may find, 
after consideration of the record in the case, including any pre-
penalty response/oral presentation, that issuance of a penalty notice 
is not warranted. In such cases, the Customs field officer shall 
provide written notification to the alleged violator who received the 
subject pre-penalty notice that the case is closed.
    (b) Issuance of Penalty Notice. In the event that circumstances 
warrant issuance of a notice of penalty pursuant to section 162.79 of 
the Customs Regulations, the appropriate Customs field officer shall 
give consideration to all available evidence with respect to the 
existence of material false statements or omissions (including evidence 
presented by an alleged violator), the degree of culpability, the 
existence of a prior disclosure, the seriousness of the violation, and 
the existence of mitigating or aggravating factors. In cases involving 
fraud, the penalty notice shall be in the amount of the domestic value 
of the merchandise unless a lesser amount is warranted as described in 
paragraph (E)(1)(b)(i). In general, the degree of culpability or 
proposed penalty amount stated in a pre-penalty notice shall not be 
increased in the penalty notice. If, subsequent to the issuance of a 
pre-penalty notice and upon further review of the record, the 
appropriate Customs field officer determines that a higher degree of 
culpability exists, the original pre-penalty notice should be rescinded 
and a new pre-penalty notice issued that indicates the higher degree of 
culpability and increased proposed penalty amount. However, if less 
than 9 months remain before expiration of the statute of limitations, 
and a waiver of the statute of limitations has not been provided to 
Customs by the party named in the pre-penalty notice, the higher degree 
of culpability and higher penalty amount may be indicated in the notice 
of penalty without rescinding the earlier pre-penalty notice. In such 
cases, the Customs field officer shall consider whether a lower degree 
of culpability is appropriate or whether to change the information 
contained in the pre-penalty notice.
    (c) Statute of Limitations Considerations. Prior to issuance of any 
section 592 penalty notice, the appropriate Customs field officer again 
shall calculate the statute of limitations attributable to the alleged 
violation and request a waiver(s) of the statute, if necessary. In 
accordance with section 171.12 of the Customs Regulations, if less than 
180 days remain before the statute of limitations may be raised as a 
defense, a shortened response time may be specified in the notice--but 
in no case less than 7 business days from the date of mailing. In such 
cases, the Customs field officer should notify an alleged violator by 
telephone and use all reasonable means (e.g., facsimile transmission of 
a copy) to expedite receipt of the penalty notice by the alleged 
violator. Also, in such cases, the Customs field officer should advise 
an alleged violator that, if an acceptable waiver of the statute of 
limitations is provided, additional time to respond to the penalty 
notice may be granted.

(F) Administrative Penalty Disposition

    (1) Generally. It is the policy of the Department of the Treasury 
and the Customs Service to grant mitigation in appropriate 
circumstances. In certain cases, based upon criteria to be developed by 
Customs, mitigation may take an alternative form, whereby a violator 
may eliminate or reduce his or her section 592 penalty liability by 
taking action(s) to correct problems that caused the violation. In any 
case, in determining the administrative section 592 penalty 
disposition, the appropriate Customs field officer shall consider the 
entire case record--taking into account the presence of any mitigating 
or aggravating factors. All such factors should be set forth in the 
written administrative section 592 penalty decision. An administrative 
disposition is considered ``mitigated'' if the remission amount in the 
Customs decision is less than the amount stated as a penalty in the 
penalty notice. Once again, Customs emphasizes that any penalty 
liability which is mitigated is conditioned upon payment of any actual 
loss of duty in addition to that penalty. Finally, section 592 penalty 
dispositions in duty-loss and non-duty-loss cases will proceed in the 
manner set forth below.
    (2) Dispositions.
    (a) Fraudulent Violation. Penalty dispositions for a fraudulent 
violation shall be calculated as follows:
    (i) Duty Loss Violation. An amount ranging from a minimum of 5 
times the total loss of duty to a maximum of 8 times the total loss of 
duty--but in any such case the amount may not exceed the domestic value 
of the merchandise. A penalty disposition greater than 8 times the 
total loss of duty may be imposed in a case involving an egregious 
violation, or a public health and safety violation, or due to the 
presence of aggravating factors, but again, the amount may not exceed 
the domestic value of the merchandise.
    (ii) Non-Duty Loss Violation. An amount ranging from a minimum of 
50 percent of the dutiable value to a maximum of 80 percent of the 
dutiable value of the merchandise. A penalty disposition greater than 
80 percent of the dutiable value may be imposed in a case involving an 
egregious violation, or a public health and safety violation, or due to 
the presence of aggravating factors, but the amount may not exceed the 
domestic value of the merchandise.
    (b) Grossly Negligent Violation. Penalty dispositions for a grossly 
negligent violation shall be calculated as follows:
    (i) Duty Loss Violation. An amount ranging from a minimum of 2.5 
times the total loss of duty to a maximum of 4 times the total loss of 
duty--but in any such case, the amount may not exceed the domestic 
value of the merchandise.
    (ii) Non-Duty Loss Violation. An amount ranging from a minimum of 
25 percent of the dutiable value to a maximum of 40 percent of the 
dutiable value of the merchandise--but in any such case, the amount may 
not exceed the domestic value of the merchandise.
    (c) Negligent Violation. Penalty dispositions for a negligent 
violation shall be calculated as follows:
    (i) Duty Loss Violation. An amount ranging from a minimum of 0.5 
times the total loss of duty to a maximum of 2 times the total loss of 
duty, but, in any such case, the amount may not exceed the domestic 
value of the merchandise.
    (ii) Non-Duty Loss Violation. An amount ranging from a minimum of 5 
percent of the dutiable value to a

[[Page 57634]]

maximum of 20 percent of the dutiable value of the merchandise, but, in 
any such case, the amount may not exceed the domestic value of the 
merchandise.
    (d) Authority to Cancel Claim. Upon issuance of a penalty notice, 
Customs has set forth its formal monetary penalty claim. Except as 
provided under 19 CFR 171.31, in those section 592 cases within the 
administrative jurisdiction of the concerned Customs field office, the 
appropriate Customs field officer shall cancel any such formal claim 
whenever it is determined that an essential element of the alleged 
violation is not established by the agency record, including pre-
penalty and penalty responses provided by the alleged violator. Except 
as provided under 19 CFR 171.31, in those section 592 cases within 
Customs Headquarters jurisdiction, the appropriate Customs field 
officer shall cancel any such formal claim whenever it is determined 
that an essential element of the alleged violation is not established 
by the agency record, and such cancellation action precedes the date of 
the Customs field officer's receipt of the alleged violator's petition 
responding to the penalty notice. On and after the date of Customs 
receipt of the petition responding to the penalty notice, jurisdiction 
over the action rests with Customs Headquarters including the authority 
to cancel the claim.
    (e) Remission of Claim. If the Customs field officer believes that 
a claim for monetary penalty should be remitted for a reason not set 
forth in these guidelines, the Customs field officer should first seek 
approval from the Chief, Penalties Branch, Customs Service 
Headquarters.
    (f) Prior Disclosure Dispositions. It is the policy of the 
Department of the Treasury and the Customs Service to encourage the 
submission of valid prior disclosures that comport with the laws, 
regulations, and policies governing this provision of section 592. 
Customs will determine the validity of the prior disclosure including 
whether or not the prior disclosure sets forth all the required 
elements of a violation of section 592. A valid prior disclosure 
warrants the imposition of the reduced Customs civil penalties set 
forth below:
    (1) Fraudulent Violation. 
    (a) Duty Loss Violation. The claim for monetary penalty shall be 
equal to 100 percent of the total loss of duty (i.e., actual + 
potential) resulting from the violation.
    (b) Non-Duty Loss Violation. The claim for monetary penalty shall 
be equal to 10 percent of the dutiable value of the merchandise in 
question.
    (2) Gross Negligence and Negligence Violation.
    (a) Duty Loss Violation. The claim for monetary penalty shall be 
equal to the interest on the actual loss of duty computed from the date 
of liquidation to the date of the party's tender of the actual loss of 
duty resulting from the violation. Customs notes that there is no 
monetary penalty in these cases if the duty loss is potential in 
nature.
    (b) Non-Duty Loss Violation. There is no monetary penalty in such 
cases and any claim for monetary penalty which had been issued prior to 
the decision granting prior disclosure shall be remitted in full.

(G) Mitigating Factors

    The following factors shall be considered in mitigation of the 
proposed or assessed penalty claim or the amount of the administrative 
penalty decision, provided that the case record sufficiently 
establishes their existence. The list is not all-inclusive.
    (1) Contributory Customs Error. This factor includes misleading or 
erroneous advice given by a Customs official in writing to the alleged 
violator only if it appears that the alleged violator reasonably relied 
upon the information and the alleged violator fully and accurately 
informed Customs of all relevant facts. The concept of comparative 
negligence may be utilized in determining the weight to be assigned to 
this factor. If it is determined that the Customs error was the sole 
cause of the violation, the proposed or assessed penalty claim shall be 
canceled. If the Customs error contributed to the violation, but the 
violator also is culpable, the Customs error shall be considered as a 
mitigating factor.
    (2) Cooperation with the Investigation. To obtain the benefits of 
this factor, the violator must exhibit extraordinary cooperation beyond 
that expected from a person under investigation for a Customs 
violation. Some examples of the cooperation contemplated include 
assisting Customs officers to an unusual degree in auditing the books 
and records of the violator (e.g., incurring extraordinary expenses in 
providing computer runs solely for submission to Customs to assist the 
agency in cases involving an unusually large number of entries and/or 
complex issues). Another example consists of assisting Customs in 
obtaining additional information relating to the subject violation or 
other violations. Merely providing the books and records of the 
violator should not be considered cooperation justifying mitigation 
inasmuch as Customs has the right to examine an importer's books and 
records pursuant to 19 U.S.C. 1508-1509.
    (3) Immediate Remedial Action. This factor includes the payment of 
the actual loss of duty prior to the issuance of a penalty notice and 
within 30 days after Customs notifies the alleged violator of the 
actual loss of duties attributable to the alleged violation. In 
appropriate cases, where the violator provides evidence that 
immediately after learning of the violation, substantial remedial 
action was taken to correct organizational or procedural defects, 
immediate remedial action may be granted as a mitigating factor. 
Customs encourages immediate remedial action to ensure against future 
incidents of non-compliance.
    (4) Prior Good Record. Prior good record is a factor only if the 
alleged violator is able to demonstrate a consistent pattern of 
importations without violation of section 592, or any other statute 
prohibiting false or fraudulent importation practices. This factor will 
not be considered in alleged fraudulent violations of section 592.
    (5) Inability to Pay the Customs Penalty. The party claiming the 
existence of this factor must present documentary evidence in support 
thereof, including copies of income tax returns for the previous 3 
years, and an audited financial statement for the most recent fiscal 
quarter. In certain cases, Customs may waive the production of an 
audited financial statement or may request alternative or additional 
financial data in order to facilitate an analysis of a claim of 
inability to pay (e.g., examination of the financial records of a 
foreign entity related to the U.S. company claiming inability to pay).
    (6) Customs Knowledge. Additional relief in non-fraud cases (which 
also are not the subject of a criminal investigation) will be granted 
if it is determined that Customs had actual knowledge of a violation 
and, without justification, failed to inform the violator so that it 
could have taken earlier corrective action. In such cases, if a penalty 
is to be assessed involving repeated violations of the same kind, the 
maximum penalty amount for violations occurring after the date on which 
actual knowledge was obtained by Customs will be limited to two times 
the loss of duty in duty-loss cases or twenty percent of the dutiable 
value in non-duty-loss cases if the continuing violations were the 
result of gross negligence, or the lesser of one time the loss of duty 
in duty-loss cases or ten percent of dutiable value in non-duty-loss 
cases if the violations were the result of negligence. This factor 
shall not be applicable when a substantial

[[Page 57635]]

delay in the investigation is attributable to the alleged violator.

(H) Aggravating Factors

    Certain factors may be determined to be aggravating factors in 
calculating the amount of the proposed or assessed penalty claim or the 
amount of the administrative penalty decision. The presence of one or 
more aggravating factors may not be used to raise the level of 
culpability attributable to the alleged violations, but may be utilized 
to offset the presence of mitigating factors. The following factors 
shall be considered ``aggravating factors,'' provided that the case 
record sufficiently establishes their existence. The list is not 
exclusive.
    (1) Obstructing an investigation or audit,
    (2) Withholding evidence,
    (3) Providing misleading information concerning the violation,
    (4) Prior substantive violations of section 592 for which a final 
administrative finding of culpability has been made,
    (5) Textile imports that have been the subject of illegal 
transshipment, whether or not the merchandise bears false country of 
origin markings,
    (6) Evidence of a motive to evade a prohibition or restriction on 
the admissibility of the merchandise (e.g., evading a quota 
restriction),
    (7) Failure to comply with a lawful demand for records or a Customs 
summons.

(I) Offers in Compromise (``Settlement Offers'')

    Parties who wish to submit a civil offer in compromise pursuant to 
title 19, United States Code, section 1617 (also known as a 
``settlement offer'' ) in connection with any section 592 claim or 
potential section 592 claim should follow the procedures outlined in 
section 161.5 of the Customs Regulations (19 CFR 161.5). Settlement 
offers do not involve ``mitigation'' of a claim or potential claim, but 
rather ``compromise'' an action or potential action where Customs 
evaluation of potential litigation risks, or the alleged violator's 
financial position, justifies such a disposition. In any case where a 
portion of the offered amount represents a tender of unpaid duties, the 
offeror may designate the amount attributable to such duties in the 
written offer; otherwise the Customs letter of acceptance will so 
designate any such duty amount. The offered amount should be deposited 
at the Customs field office responsible for handling the section 592 
claim or potential section 592 claim. The offered amount will be held 
in a suspense account pending acceptance or rejection of the offer in 
compromise. In the event the offer is rejected, the concerned Customs 
field office shall promptly initiate a refund of the money deposited in 
the suspense account to the offeror.

(J) Section 592(d) Demands

    Section 592(d) demands for actual losses of duty ordinarily are 
issued in connection with a penalty action, or as a separate demand 
without an associated penalty action. In either case, information must 
be present establishing a violation of section 592(a). In those cases 
where the appropriate Customs field officer determines that issuance of 
a penalty under section 592 is not warranted (notwithstanding the 
presence of information establishing a violation of section 592(a)), 
but that circumstances do warrant issuance of a demand for payment of 
an actual loss of duty pursuant to section 592(d), the Customs field 
officer shall follow the procedures set forth in section 162.79b of the 
Customs Regulations (19 CFR 162.79b). Except in cases where less than 
one year remains before the statute of limitations may be raised as a 
defense, information copies of all section 592(d) demands should be 
sent to all concerned sureties and the importer of record if such party 
is not an alleged violator. Also, except in cases where less than one 
year remains before the statute of limitations may be raised as a 
defense, Customs will endeavor to issue all section 592(d) demands to 
concerned sureties and non-violator importers of record only after 
default by principals.

(K) Customs Brokers

    If a customs broker commits a section 592 violation and the 
violation involves fraud, or the broker committed a grossly negligent 
or negligent violation and shared in the benefits of the violation to 
an extent over and above customary brokerage fees, the customs broker 
shall be subject to these guidelines. However, if the customs broker 
commits either a grossly negligent or negligent violation of section 
592 (without sharing in the benefits of the violation as described 
above), the concerned Customs field officer shall proceed against the 
customs broker pursuant to the remedies provided under 19 U.S.C. 1641.

(L) Arriving Travelers

    (1) Liability. Except as set forth below, proposed and assessed 
penalties for violations by an arriving traveler must be determined in 
accordance with these guidelines.
    (2) Limitations on Liability on Non-commercial Violations. In the 
absence of a referral for criminal prosecution, monetary penalties 
assessed in the case of an alleged first-offense, non-commercial, 
fraudulent violation by an arriving traveler will generally be limited 
as follows:
    (a) Fraud--Duty-loss Violation. An amount ranging from a minimum of 
three times the loss of duty to a maximum of five times the loss of 
duty, provided the loss of duty is also paid;
    (b) Fraud--Non-duty Loss Violation. An amount ranging from a 
minimum of 30 percent of the dutiable value of the merchandise to a 
maximum of 50 percent of its dutiable value;
    (c) Gross Negligence--Duty Loss Violation. An amount ranging from a 
minimum of 1.5 times the loss of duty to a maximum of 2.5 times the 
loss of duty provided the loss of duty is also paid;
    (d) Gross Negligence--Non-duty Loss Violation. An amount ranging 
from a minimum of 15 percent of the dutiable value of the merchandise 
to a maximum of 25 percent of its dutiable value;
    (e) Negligence--Duty Loss Violation. An amount ranging from a 
minimum of .25 times the loss of duty to a maximum of 1.25 times the 
loss of duty provided that the loss of duty is also paid;
    (f) Negligence--Non-duty Loss Violation. An amount ranging from a 
minimum of 2.5 percent of the dutiable value of the merchandise to a 
maximum of 12.5 percent of its dutiable value;
    (g) Special Assessments/Dispositions. No penalty action shall be 
initiated against an arriving traveller if the violation is not 
fraudulent or commercial, the loss of duty is $100.00 or less, and 
there are no other concurrent or prior violations of section 592 or 
other statutes prohibiting false or fraudulent importation practices. 
However, all lawful duties shall be collected. Also, no penalty cases 
shall be initiated against an arriving traveler if the violation is not 
fraudulent or commercial, there are no other concurrent or prior 
violations of section 592, and a penalty is not believed necessary to 
deter future violations or to serve a law enforcement purpose.

(M) Violations of Laws Administered by Other Federal Agencies

    Violations of laws administered by other federal agencies (such as 
the Food and Drug Administration, Consumer Product Safety Commission, 
Foreign Assets Control, Agriculture, Fish and Wildlife) should be 
referred to the appropriate agency for its recommendation. Such 
recommendation, if promptly tendered, will be given due consideration, 
and may be followed provided the

[[Page 57636]]

recommendation would not result in a disposition inconsistent with 
these guidelines.
Samuel H. Banks,
Acting Commissioner of Customs.

    Approved: August 3, 1998.
Dennis M. O'Connell.
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 98-28786 Filed 10-27-98; 8:45 am]
BILLING CODE 4820-02-P