[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Notices]
[Pages 14790-14798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7410]


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DEPARTMENT OF THE TREASURY

Customs Service
[T.D. 99-29]


Guidelines for the Cancellation of Claims for Liquidated Damages 
and Mitigation of Penalties for Failure To Provide General Order 
Notifications or Failure To Take Possession of General Order 
Merchandise; Guidelines for Mitigation of Penalties for Delivery of 
Cargo Without Customs Authorization; Guidelines for Cancellation of 
Claims for Liquidated Damages for Failing To Deliver In-Bond 
Merchandise; Guidelines for Cancellation of Claims for Removal of 
Merchandise From Centralized Examination Stations, Container Freight 
Stations or Places of Examination

AGENCY: Customs Service, Department of the Treasury.

ACTION: General notice.

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SUMMARY: Under the Omnibus Trade and Competitiveness Act of 1988, the 
Secretary of the Treasury is required to publish guidelines for the 
cancellation of bond charges. In Treasury Decision 98-74 (T.D. 98-74), 
the Secretary published amendments to the Customs Regulations regarding 
the obligation of carriers and certain related parties to provide 
notice to Customs and to a bonded warehouse of the presence of 
merchandise or baggage that has remained at the place of arrival or 
unlading beyond the time period provided by regulation without entry 
having been completed. The notice to the bonded warehouse proprietor 
initiates his obligation to arrange for transportation and storage of 
the unentered merchandise or baggage at the risk and expense of the 
consignee. The new regulations provide for the assessment of penalties 
or liquidated damages for failure to provide the required notice to 
Customs or to a bonded warehouse proprietor of the presence of 
unentered merchandise or baggage and for liquidated damages against the 
warehouse operator who fails to take required possession of the 
merchandise or baggage for which notification has been received.
    This document publishes guidelines for the mitigation of penalties 
incurred by carriers for failing to provide appropriate notifications. 
It also publishes bond cancellation standards to be applied to claims 
for liquidated damages incurred by bonded carriers, custodians or 
warehouse operators who fail to comply with obligations to provide 
notification of the presence of unentered merchandise or to collect 
that merchandise about which notification has been received.
    In addition, this document publishes new mitigation guidelines for 
penalties assessed against carriers and other parties for the delivery 
of cargo from the place of unlading without Customs authorization or 
delivery of cargo without examination. Inasmuch as these penalties are 
very similar to claims for liquidated damages assessed against in-bond 
carriers for nondelivery, shortage or delivery directly to the 
consignee, the bond cancellation standards for 19 CFR 18.8 in-bond 
violations which were published in T.D. 94-38 are revised by this 
document to be consistent with guidelines for the mitigation of the 
penalties assessed for delivery of cargo without Customs authorization. 
Additionally, this document amends T.D. 94-38 to revise bond 
cancellation standards for claims for liquidated damages arising from 
breach of the Basic Custodial Bond when cargo is removed from a 
Centralized Examination Station (CES) without authorization and 
standards for claims arising from breach of the Basic Importation Bond 
when merchandise is

[[Page 14791]]

not delivered to or is not held at the place of examination. Finally, 
the document provides for bond cancellation standards for claims for 
liquidated damages arising from the removal of merchandise from a 
Container Freight Station (CFS) without authorization.

EFFECTIVE DATE: These guidelines will take effect upon March 26, 1999 
and shall be applicable to all cases which are currently open at the 
petition or supplemental petition stage. No second supplemental 
petitions will be accepted solely to gain the benefit of a less harsh 
guideline.

FOR FURTHER INFORMATION CONTACT: Jeremy Baskin, Penalties Branch, 
Office of Regulations and Rulings (202) 927-2344.

SUPPLEMENTARY INFORMATION:

Background

    Section 1904 of the Omnibus Trade and Competitiveness Act of 1988 
(Pub. L. 100-418) amended section 623 of the Tariff Act of 1930 (19 
U.S.C. 1623) by adding the following sentence at the end of section 
623(c) of the Tariff Act of 1930 (19 U.S.C. 1623(c)):

    ``In order to assure uniform, reasonable and equitable 
decisions, the Secretary of the Treasury shall publish guidelines 
establishing standards for setting the terms and conditions for 
cancellation of bonds or charges thereunder.''

    In T.D. 94-38, dated April 11, 1994, the text of current guidelines 
for cancellation of claims for liquidated damages was published.
    In a document published as Treasury Decision 98-74 (T.D. 98-74) in 
the Federal Register (63 FR 51283) on September 25, 1998, Customs 
promulgated amendments to its regulations which implemented section 656 
of the North American Free Trade Agreement Implementation Act, Pub. L. 
103-182, 107 Stat. 2057, providing for penalties against the owner or 
master of any vessel or vehicle or the agent thereof for failure to 
notify Customs of any merchandise or baggage unladen for which entry is 
not made within the time period prescribed by law or regulation. The 
new regulations extend such liability to owners or pilots of aircraft 
or the agent thereof.
    The new regulations require the owner, master, operator or pilot, 
or the agent thereof, of the arriving carrier, or any subsequent in-
bond carrier or party who accepts custody under a Customs-authorized 
permit to transfer, to provide notice of the unentered merchandise or 
baggage to a bonded warehouse. The notice to the bonded warehouse 
proprietor initiates his obligation to arrange for transportation and 
storage of the unentered merchandise or baggage at the risk and expense 
of the consignee. The new regulations provide for penalties under 19 
U.S.C. 1448 or liquidated damages under the International Carrier Bond 
(19 CFR 113.64) against the owner, master, operator or pilot of any 
conveyance, or agent thereof, for failure to provide the required 
notice to Customs or to a bonded warehouse proprietor. The new 
regulations provide for the assessment of liquidated damages under the 
Basic Custodial Bond (19 CFR 113.63) against any subsequent in-bond 
carrier or other party who accepts custody of the merchandise or 
baggage under a Customs-authorized permit to transfer who fails to 
notify Customs and a bonded warehouse of the presence of such unentered 
merchandise or baggage. Finally, the new regulations provide for 
liquidated damages under the Basic Custodial Bond (19 CFR 113.63) 
against the warehouse operator who fails to take required possession of 
the merchandise or baggage after receipt of notification.
    This document publishes guidelines for the mitigation of those 
penalties incurred by carriers for failing to provide appropriate 
notifications. It also publishes bond cancellation standards to be 
applied to claims for liquidated damages incurred by arriving carriers, 
bonded carriers, custodians or warehouse operators who fail to comply 
with obligations to provide notification of the presence of unentered 
merchandise or to collect that merchandise about which notification has 
been received.
    In addition to new guidelines required for these G.O. notification 
and merchandise collection violations, this document publishes new 
mitigation guidelines for penalties established against carriers and 
other parties for violation of 19 U.S.C. 1595a(b) for facilitating an 
importation contrary to law, specifically 19 U.S.C. 1448 for delivery 
of merchandise from the place of unlading without Customs 
authorization, and 19 U.S.C. 1499 for delivery of cargo without a 
requested Customs examination. Customs has found that the current 
guidelines for mitigation of these penalties do not provide a 
sufficient deterrent for parties who violate these provisions of law.
    Additionally, these penalties are very similar to claims for 
liquidated damages assessed against in-bond carriers for failing to 
deliver, short delivery or delivery directly to the consignee of in-
bond merchandise. In Customs view, both types of violations should be 
mitigated or canceled under the same standards. Accordingly, the bond 
cancellation standards for 19 CFR 18.8 in-bond violations which were 
published in T.D. 94-38, Section III., are revised and replaced by this 
document to be consistent with guidelines for the mitigation of the 
penalties assessed for delivery of cargo without Customs authorization.
    This document also updates bond cancellation standards for claims 
for liquidated damages arising from breach of the Basic Custodial Bond 
when cargo is removed from a Centralized Examination Station (CES) 
without authorization. The bond cancellation standards for violations 
arising for removal of merchandise from a CES without authorization 
which were published in T.D. 94-38, Section XI., are revised and 
replaced by this document to be consistent with guidelines for the 
mitigation of the penalties assessed for delivery of cargo without 
Customs authorization.
    The bond cancellation standards articulated in T.D. 94-38 did not 
include standards for removal of merchandise from a Container Freight 
Station (CFS). This document publishes standards for the removal of 
merchandise from a CFS.
    Finally, this document updates bond cancellation standards for 
claims for liquidated damages arising from breach of the Basic 
Importation Bond when merchandise is not delivered to or is not held at 
the place of examination (19 CFR 113.62(f)). The cancellation standards 
which were published in T.D. 94-38, Section X., are revised and 
replaced by this document to be consistent with guidelines for the 
mitigation of the penalties assessed for delivery of cargo without 
Customs authorization.
    The text of the guidelines is set forth below.

    Dated: March 23, 1999.
Raymond W. Kelly,
Commissioner of Customs.

[[Page 14792]]

Guidelines for Cancellation of Claims for Liquidated Damages and 
Mitigation of Penalties for Failure To Provide General Order 
Notifications or Failure to Take Possession of General Order 
Merchandise; Guidelines for Mitigation of Penalties for Delivery of 
Cargo Without Customs Authorization; Guidelines for Cancellation of 
Claims for Liquidated Damages for Failing To Deliver In-Bond 
Merchandise; Guidelines for Cancellation of Claims for Removal of 
Merchandise from Centralized Examination Stations, Contained 
Freight Stations or Places of Examination

I. Penalties Against Carrier for Failure To Notify Customs of 
Presence of Unentered Merchandise

A. Assessment

    Any merchandise or baggage regularly landed but not covered by a 
permit for its release will be allowed to remain at the place of 
unlading until the fifteenth calendar day after landing. No later than 
20 calendar days after landing, the master, pilot, operator or owner of 
the conveyance or the agent thereof must notify Customs of any such 
merchandise or baggage for which entry has not been made. Such 
notification must be provided in writing or by any appropriate Customs-
authorized electronic data interchange system. Failure to provide such 
notification may result in assessment of a monetary penalty of up to 
$1,000 per bill of lading against the master, pilot, operator or owner 
of the conveyance or the agent thereof for violation of the provisions 
of title 19, United States Code, section 1448 (19 U.S.C. 1448). If the 
value of the merchandise on the bill is less than $1,000, the penalty 
will be equal to the value of such merchandise.

B. Mitigation

    1. If notification of the presence of unentered merchandise is 
provided outside the time period allowed by law or regulation, the 
penalty may be mitigated to an amount between 10 and 50 percent of the 
assessment, but not less than $100 or the value of the merchandise 
(whichever is lower), depending on the presence of aggravating or 
mitigating circumstances.
    2. If notification is not received, or if Customs discovers the 
presence of unentered merchandise after the time period for 
notification has expired, no mitigation will be afforded.

II. Claims for Liquidated Damages Assessed Against a Bonded Party 
for Failure To Notify Customs of the Presence of Unentered 
Merchandise

A. Assessment

    Any merchandise or baggage that is taken into custody from an 
arriving carrier by any party under a Customs-authorized permit to 
transfer or in-bond entry may remain in the custody of that party for 
15 calendar days after receipt under such permit to transfer or 15 
calendar days after arrival at the port of destination. No later than 
20 calendar days after receipt under the permit to transfer or 20 
calendar days after arrival under bond at the port of destination, the 
party must notify Customs of any such merchandise or baggage for which 
entry has not been made. Such notification must be provided in writing 
or by any appropriate Customs-authorized electronic data interchange 
system. If the party fails to notify Customs of the unentered 
merchandise or baggage in the allotted time, he may be liable for the 
payment of liquidated damages equal to $1,000 per bill of lading for 
which notification is not given for violation of the provisions of 19 
CFR 113.63(c)(4) and: 19 CFR 4.37(b), if original arrival is by vessel; 
19 CFR 122.50(b), if original arrival is by air; or 19 CFR 123.10(b), 
if original arrival is by land carrier.

B. Mitigation

    1. If notification of the presence of unentered merchandise is 
provided outside the time period allowed by law or regulation, the 
claim for liquidated damages may be canceled upon payment of an amount 
between 10 and 50 percent of the assessment, depending on the presence 
of aggravating or mitigating circumstances.
    2. If notification is not received, or if Customs discovers the 
presence of unentered merchandise after the time period for 
notification has expired, no mitigation will be afforded.

III. Claims for Liquidated Damages Incurred by the Carrier or Other 
Party for Failure To Notify the Bonded Warehouse of the Presence of 
Unentered Merchandise

A. Assessment

    In addition to the notification to Customs, the carrier (or any 
other party to whom custody of the unentered merchandise has been 
transferred by a Customs authorized permit to transfer or in-bond 
entry) must provide notification of the presence of such unreleased and 
unentered merchandise or baggage to a bonded warehouse certified by the 
port director as qualified to receive general order merchandise. Such 
notification must be provided in writing or by any appropriate Customs-
authorized electronic data interchange system and must be provided 
within the 20-calendar day period. If the party to whom custody of the 
unentered merchandise or baggage has been transferred by a Customs-
authorized permit to transfer or in-bond entry fails to notify a 
Customs-approved bonded warehouse of such merchandise or baggage within 
the applicable 20-calendar-day period, he may be liable for the payment 
of liquidated damages of $1,000 per bill of lading for which 
notification is not given. Liability of the arriving carrier would be 
under the provisions of 19 CFR 113.64(b) and: 19 CFR 4.37(c) if the 
original arrival was by vessel; 19 CFR 122.50(c) if the original 
arrival was by air; or 19 CFR 123.10(c) if the original arrival was by 
land carrier. Liability of the party to whom custody has been 
transferred by a Customs-authorized permit to transfer or in-bond entry 
would be under the provisions of 19 CFR 113.63(b), 19 CFR 113.63(c) 
and: 19 CFR 4.37(c) if the original arrival was by vessel; 19 CFR 
122.50(c) if the original arrival was by air; or 19 CFR 123.10(c) if 
the original arrival was by land carrier.

B. Mitigation

    1. If notification of the presence of unentered merchandise is 
provided to the bonded warehouse outside the time period allowed by law 
or regulation, the claim for liquidated damages may be canceled upon 
payment of an amount between 10 and 50 percent of the assessment, 
depending on the presence of aggravating or mitigating circumstances.
    2. If notification is not received, or if Customs discovers the 
presence of unentered merchandise after the time period for 
notification has expired, no mitigation will be afforded.

IV. Claims for Liquidated Damages Against a Bonded Warehouse for 
Failure To Collect Unentered Merchandise for Which Notification Has 
Been Received

A. Assessment

    If the bonded warehouse operator fails to take possession of 
unentered and unreleased merchandise or baggage within five calendar 
days after receipt of notification of the presence of such merchandise 
or baggage under this section, he may be liable for the payment of 
liquidated damages of $1,000 per bill of lading remaining uncollected. 
Liability would be under

[[Page 14793]]

19 CFR 113.63(a)(1) and: 19 CFR 4.37(d) if the original arrival was by 
vessel; 19 CFR 122.50(d) if the original arrival was by air; or 19 CFR 
123.10(d) if the original arrival was by land carrier.

B. Mitigation

    1. If the bonded warehouse operator takes possession of unentered 
merchandise outside the time period allowed by law or regulation, the 
claim for liquidated damages may be canceled upon payment of an amount 
between 10 and 50 percent of the assessment, depending on the presence 
of aggravating or mitigating circumstances.
    2. If the bonded warehouse operator never takes possession of 
merchandise for which he has received appropriate notification, no 
mitigation will be afforded.

V. Delivery of Cargo Without Customs Authorization

A. Assessment

    Penalties for removal of merchandise from the place of unlading 
without authorization will be assessed under the provisions of 19 
U.S.C. 1595a(b) for violation of the provisions of 19 U.S.C. 1448 or 
penalties for delivery of merchandise without Customs examination will 
be assessed under the provisions of 19 U.S.C. 1595a(b) for violation of 
19 U.S.C. 1499.
    1. These penalties may be assessed against any party who is deemed 
to be responsible for the unauthorized removal or delivery.
    2. Penalties are assessed in an amount equal to the domestic value 
of the merchandise removed or delivered without authorization.
    3. Penalties of these types assessed against holders of 
international carrier bonds are secured by the terms and conditions of 
the bond up to the limit of the bond. Penalties may be collected in 
full from the violator. Collection from a surety is limited to the 
amount of the bond.
    4. Double penalties should not be assessed, i.e., while the same 
misdelivery may be without Customs authorization and may involve 
avoidance of examination, only one assessment equal to the value of the 
merchandise should be made. If multiple assessments from the same 
transaction occur, mitigation should reflect the policy that only a 
single penalty should have been assessed.

B. Penalty Mitigation

    1. If the violator can show that the violation occurred solely as a 
result of Customs error, the penalty should be canceled.
    2. If the violator can show that the merchandise was never received 
or landed, the penalty should be mitigated without payment.
    3. If the merchandise which was removed without authorization or 
delivered without examination could have been the subject of an 
informal entry, the penalty may be mitigated upon payment of an amount 
equal to the duties, fees, taxes and charges that would have been due 
on the merchandise had entry been properly made plus an amount between 
$100 and $500, depending on the presence of aggravating or mitigating 
factors.
    4. If the violator comes forward and discloses the violation to 
Customs prior to Customs discovery of the violation, the penalty may be 
mitigated upon payment of an amount equal to the duties, fees, taxes 
and charges that would have been due on the merchandise had entry been 
properly made plus $50.
    5. If the merchandise which was removed without authorization was 
not designated for Customs examination and the violator can show that 
the merchandise was entered and duties, fees, taxes and charges paid 
thereon, the penalty may be mitigated upon payment of an amount between 
$250 and $2,000 depending on the presence of aggravating or mitigating 
factors.
    6. If the merchandise which was removed without authorization was 
not designated for Customs examination and the violator cannot show 
that the merchandise was entered and duties, fees, taxes and charges 
paid thereon, the penalty may be mitigated upon payment of an amount 
equal to the duties, fees, taxes and charges that would have been due 
on the merchandise had entry been properly made plus an amount between 
$300 and $2,500 depending on the presence of aggravating or mitigating 
factors.
    7. If the merchandise which was removed without authorization or 
delivered without examination was designated for Customs examination 
and the violator can show that the merchandise was entered and duties, 
fees, taxes and charges paid thereon, the penalty may be mitigated upon 
payment of an amount between $2,500 and $20,000 depending on the 
presence of aggravating or mitigating factors. In no case shall the 
mitigated amount be lower than any costs chargeable to the importer 
which are incident to such examination. Conversely, the mitigated 
amount can never exceed the value of the shipment.
    8. If the merchandise which was removed without authorization or 
delivered without examination was designated for Customs examination 
and the violator cannot show that the merchandise was entered and 
duties, fees, taxes and charges paid thereon, the penalty may be 
mitigated upon payment of an amount equal to the duties, fees, taxes 
and charges that would have been due on the merchandise had entry been 
properly made plus an amount between $3,000 and $25,000 depending on 
the presence of aggravating or mitigating factors. In no case shall the 
mitigated amount be lower than any costs chargeable to the importer 
which are incident to such Customs examination. Conversely, the 
mitigated amount can never exceed the value of the shipment.
    9. If the violator has a history of removal of merchandise from the 
place of unlading without Customs authorization or delivery without 
Customs examination or particularly aggravating circumstances exist 
with regard to a violation, the Fines, Penalties and Forfeitures 
Officer may mitigate the penalty upon payment of a higher amount than 
that authorized by these guidelines; however, the advice of 
Headquarters, Office of Regulations and Rulings, Penalties Branch will 
be sought to determine appropriate mitigation.
    10. Theft of merchandise from Customs custody. Merchandise which is 
stolen from the carrier prior to having been released by Customs shall 
be treated as having been delivered without Customs authorization. The 
carrier will be liable for penalties and mitigation will occur in 
accordance with these guidelines. It should also be noted that 
penalties under 19 USC 1595a(b) for violation of 19 USC 1448 or 1499 
(as well as criminal sanctions under 18 U.S.C. 549) may also be 
assessed against the individuals who steal the merchandise from Customs 
custody. In those instances, no mitigation will be afforded to the 
person or persons primarily responsible for the illegal act. Aiders and 
abettors may receive mitigation to 25-50 percent of the penalty, 
depending upon the degree of complicity.

C. Mitigating and Aggravating Factors

    1. Mitigating Factors
    a. Violator inexperienced in the handling of cargo.
    b. Violator has a general good performance and low error rate in 
the handling of cargo.
    c. Violator demonstrates remedial action has been taken to prevent 
future violations.
    2. Aggravating Factors
    a. Violator refuses to cooperate with Customs or acts to impede 
Customs activity with regard to the case.

[[Page 14794]]

    b. Violator has a rising error rate which is indicative of 
deteriorating performance in the handling of cargo.

D. Restricted or Prohibited Merchandise

    If Customs has reason to believe that the merchandise which was 
removed from the place of unlading without authorization or which was 
delivered without examination may have been restricted or prohibited 
from entry, that will be considered an extraordinary aggravating factor 
and will result in either no mitigation or mitigation at the high end 
of the mitigation range.

VI. Guidelines for Cancellation of Claims for Shortage, Irregular 
Delivery, Non-Delivery or Delivery Directly to the Consignee of In-
Bond Merchandise (19 CFR 18.8)

A. Assessment

    All claims for liquidated damages assessed for breach of the 
provisions of 19 CFR 18.8 for shortage, irregular delivery, nondelivery 
or delivery directly to the consignee of in-bond merchandise will be 
assessed for the value of the merchandise or three times the value of 
the merchandise if the merchandise is restricted or is alcoholic 
beverages.

B. Documents Filed Late or Merchandise Delivered Late

    1. Modified CF 5955A. Notices of liquidated damages incurred for 
documents filed late or merchandise delivered late this violation may 
be issued on a modified CF-5955A. If a modified form is issued, it 
shall specify two options from which the petitioner may choose to 
resolve the demand.
    a. Option 1. The bond principal or surety may pay a specified sum 
within 60 days and the case will be closed. By electing this option in 
lieu of petitioning, the principal or surety waives the right to file a 
petition. He may, however, file a supplemental petition, if he does so 
in accordance with the Customs Regulations and has some new fact or 
information which merits consideration in accordance with these 
guidelines.
    b. Option 2. The bond principal or surety may file a petition for 
relief. By filing a petition for relief, the petitioner will no longer 
be afforded the Option 1 mitigation amount. The Fines, Penalties and 
Forfeitures Officer will grant full relief when the petitioner 
demonstrates that the violation did not occur or that the violation 
occurred solely as a result of Customs error. If the petitioner fails 
to demonstrate that the violation did not occur or that the violation 
occurred solely as a result of Customs error, the Fines, Penalties and 
Forfeitures Officer may cancel the claim upon payment of an amount no 
less than $100 greater than the Option 1 amount.
    2. If merchandise is delivered untimely to the port of destination 
or exportation (not within 15 days if transported by air, 30 days if 
transported by vehicle, or 60 days if transported by vessel) but is 
otherwise intact, the Fines, Penalties and Forfeitures Officer may 
cancel the claim upon payment of an amount between $100 or $500, 
depending on the presence of aggravating or mitigating factors.
    3. If merchandise is delivered timely but the documentation is not 
filed with Customs within 2 days of arrival in the port of delivery, 
the Fines, Penalties and Forfeitures Officer may cancel the claim upon 
payment of an amount between $100 and $500, depending on the presence 
of aggravating or mitigating factors.
    4. If the bonded carrier consistently fails to deliver paperwork 
timely and Customs business is impeded by these repeated failures, the 
Fines, Penalties and Forfeitures Officer may cancel any claim upon 
payment of a higher amount than the guidelines generally permit. The 
advice of Headquarters, Office of Regulations and Rulings, Penalties 
Branch, may be sought to determine appropriate mitigation.

C. Failure To Deliver, Shortage or Delivery Directly to the Consignee

    1. If the in-bond carrier can show that the violation occurred 
solely as a result of Customs error, the claim for liquidated damages 
should be canceled without payment.
    2. If the in-bond carrier can show that the merchandise was never 
received or landed, the claim for liquidated damages should be canceled 
without payment.
    3. If the merchandise which was not delivered, delivered short or 
delivered directly to the consignee could have been the subject of an 
informal entry, the claim for liquidated damages may be canceled upon 
payment of an amount equal to the duties, fees, taxes and charges that 
would have been due on the merchandise had entry been properly made 
plus an amount between $100 and $500, depending on the presence of 
aggravating or mitigating factors.
    4. If the in-bond carrier comes forward and discloses the violation 
to Customs prior to Customs discovery of the violation, the claim for 
liquidated damages may be canceled upon payment of an amount equal to 
the duties, fees, taxes and charges that would have been due on the 
merchandise had entry been properly made, plus $50.
    5. If the merchandise which was not delivered, delivered short or 
delivered directly to the consignee was not designated for Customs 
examination and the in-bond carrier can show that the merchandise was 
entered and duties, fees, taxes and charges paid thereon, the claim for 
liquidated damages may be canceled upon payment of an amount between 
$250 and $2,000 depending on the presence of aggravating or mitigating 
factors.
    6. If the merchandise which was not delivered, delivered short or 
delivered directly to the consignee was not designated for Customs 
examination and the in-bond carrier cannot show that the merchandise 
was entered and duties, fees, taxes and charges paid thereon, the claim 
for liquidated damages may be canceled upon payment of an amount equal 
to the duties, fees, taxes and charges that would have been due on the 
merchandise had entry been properly made plus an amount between $300 
and $2,500 depending on the presence of aggravating or mitigating 
factors.
    7. If the merchandise which was not delivered, delivered short or 
delivered directly to the consignee was designated for Customs 
examination and the in-bond carrier can show that the merchandise was 
entered and duties, fees, taxes and charges paid thereon, the claim for 
liquidated damages may be canceled upon payment of an amount between 
$2,500 and $20,000 depending on the presence of aggravating or 
mitigating factors. In no case should the amount upon which the claim 
may be canceled be lower than any chargeable costs which are incident 
to such examination. Conversely, the amount upon which the claim may be 
canceled can never exceed the value of the claim for liquidated 
damages.
    8. If the merchandise which was not delivered, delivered short or 
delivered directly to the consignee was designated for Customs 
examination and the in-bond carrier cannot show that the merchandise 
was entered and duties, fees, taxes and charges paid thereon, the claim 
for liquidated damages may be canceled upon payment of an amount equal 
to the duties, fees, taxes and charges that would have been due on the 
merchandise had entry been properly made plus an amount between $3,000 
and $25,000 depending on the presence of aggravating or mitigating 
factors. In no case should the amount upon which the claim may be 
canceled be lower than any chargeable costs which are incident to such 
Customs

[[Page 14795]]

examination. Conversely, the amount upon which the claim may be 
canceled can never exceed the value of the claim for liquidated 
damages.
    9. If the in-bond carrier has a history of not delivering, 
delivering short or delivering directly to the consignee, or 
particularly aggravating circumstances exist with regard to a claim, 
the Fines, Penalties and Forfeitures Officer may cancel the claim for 
liquidated damages upon payment of a higher amount than that authorized 
by these guidelines; however, the advice of Headquarters, Office of 
Regulations and Rulings, Penalties Branch must be sought to determine 
appropriate mitigation.
    10. Theft of in-bond merchandise. In-bond merchandise which is 
stolen from the carrier prior to having been delivered to Customs at 
the port of destination or exportation will be treated as having been 
not been delivered. The carrier will be liable for liquidated damages 
and mitigation will occur in accordance with these guidelines. It 
should also be noted that penalties under 19 U.S.C. 1595a(b) for 
violation of 19 USC 1448 or 1499 (as well as criminal sanctions under 
18 U.S.C. 549) may also be assessed against the individuals who steal 
the merchandise from the bonded carrier. Claims assessed for theft of 
merchandise in those instances will be administered in accordance with 
guidelines articulated in Section V.B.10. above.

D. Mitigating and Aggravating Factors

    1. Mitigating Factors
    a. Carrier inexperienced in the handling of in-bond cargo.
    b. Carrier has a general good performance and low error rate in the 
handling of in-bond cargo.
    c. Carrier demonstrates remedial action has been taken to prevent 
future claims.
    2. Aggravating Factors
    a. Carrier refuses to cooperate with Customs or acts to impede 
Customs activity with regard to the case.
    b. Carrier has a rising error rate which is indicative of 
deteriorating performance in the delivery of in-bond cargo.

E. Restricted or Prohibited Merchandise

    If Customs has reason to believe that the merchandise which was not 
delivered, delivered short or delivered directly to the consignee may 
have been restricted or prohibited from entry, that will be considered 
an extraordinary aggravating factor and will result in either no 
mitigation or mitigation at the high end of the mitigation range.

VII. Guidelines for Cancellation of Claims Arising From the Failure 
of a Centralized Examination Station (CES) Operator To Deliver 
Merchandise To or Retain Merchandise at the CES (19 CFR 151.15, 19 
CFR 113.63)

A. Assessment

    Merchandise not delivered to or retained at a Centralized 
Examination Station (CES) by the CES operator will be the subject of a 
claim for liquidated damages for violation of the provisions of 19 CFR 
151.15(b)(3) and 19 CFR 113.63(b)(2) equal to the value of the 
merchandise or three times the value of the merchandise if it is 
restricted or prohibited or is alcoholic beverages.

B. Mitigation of Claims Arising for Failure To Deliver Merchandise to 
the CES or Removal or Delivery of Merchandise From the CES Without 
Authorization

    1. If the CES operator can show that the violation occurred solely 
as a result of Customs error, the claim for liquidated damages should 
be canceled without payment.
    2. If the CES operator can show that the merchandise was never 
received or landed, the claim for liquidated damages should be canceled 
without payment.
    3. If the merchandise which was not delivered to the CES or removed 
or delivered from the CES without authorization could have been the 
subject of an informal entry, the claim for liquidated damages may be 
canceled upon payment of an amount equal to the duties, fees, taxes and 
charges that would have been due on the merchandise had entry been 
properly made plus an amount between $100 and $500, depending on the 
presence of aggravating or mitigating factors.
    4. If the CES operator comes forward and discloses the violation to 
Customs prior to Customs discovery of the violation, the claim for 
liquidated damages may be canceled upon payment of an amount equal to 
the duties, fees, taxes and charges that would have been due on the 
merchandise had entry been properly made, plus $50.
    5. By its very nature, merchandise not delivered to a CES or 
removed or delivered from a CES without authorization is designated for 
Customs examination. If the CES operator can show that the merchandise 
was entered and duties, fees, taxes and charges paid thereon, the claim 
for liquidated damages may be canceled upon payment of an amount 
between $2,500 and $20,000 depending on the presence of aggravating or 
mitigating factors. In no case shall the amount upon which the claim 
may be canceled be lower than any chargeable costs which are incident 
to such examination. Conversely, the amount upon which the claim may be 
canceled can never exceed the value of the claim for liquidated 
damages.
    6. If the merchandise was not delivered to a CES or was removed or 
delivered from a CES without authorization, and the CES operator cannot 
show that the merchandise was entered and duties, fees, taxes and 
charges paid thereon, the claim for liquidated damages may be canceled 
upon payment of an amount equal to the duties, fees, taxes and charges 
that would have been due on the merchandise had entry been properly 
made plus an amount between $3,000 and $25,000 depending on the 
presence of aggravating or mitigating factors. In no case should the 
amount upon which the claim may be canceled be lower than any 
chargeable costs which are incident to such Customs examination. 
Conversely, the amount upon which the claim may be canceled can never 
exceed the value of the claim for liquidated damages.
    7. If the CES operator has a history of receipting for merchandise 
which has not been delivered to the CES or allowing merchandise to be 
removed or delivered from the CES without authorization, or 
particularly aggravating circumstances exist with regard to a claim, 
the Fines, Penalties and Forfeitures Officer may cancel the claim for 
liquidated damages upon payment of a higher amount than that authorized 
by these guidelines; however, the advice of Headquarters, Office of 
Regulations and Rulings, Penalties Branch must be sought to determine 
appropriate mitigation.
    8. Theft of bonded merchandise. Merchandise which is stolen from 
the CES shall be treated as having been removed without authorization. 
The CES operator will be liable for liquidated damages and mitigation 
will occur in accordance with these guidelines. It should also be noted 
that penalties under 19 USC 1595a(b) for violation of 19 USC 1448 or 
1499 (as well as criminal sanctions under 18 U.S.C. 549) may also be 
assessed against the individuals who steal the merchandise from a CES. 
Claims for theft of merchandise in those instances will be administered 
in accordance with guidelines articulated in Section V.B.10. above.

C. Mitigating and Aggravating Factors

    1. Mitigating Factors

[[Page 14796]]

    a. CES operator is inexperienced in the handling of cargo.
    b. CES operator has a general good performance and low error rate 
in the handling of cargo.
    c. CES operator demonstrates remedial action has been taken to 
prevent future claims.
    2. Aggravating Factors
    a. CES operator refuses to cooperate with Customs or acts to impede 
Customs activity with regard to the case.
    b. CES operator has a rising error rate which is indicative of 
deteriorating performance in the handling and safekeeping of cargo.

D. Restricted or Prohibited Merchandise

    If Customs has reason to believe that the merchandise which was not 
delivered to a CES or was removed from the CES without authorization 
may have been restricted or prohibited from entry, that will be 
considered an extraordinary aggravating factor and will result in 
either no mitigation or mitigation at the high end of the mitigation 
range.

E. Failure To Maintain Records as Required by Regulation

    1. If a CES operator fails to maintain records as required by 
Customs, claims for liquidated damages not involving merchandise for 
violation of 19 CFR 113.63(a)(3) and 19 CFR 118.4 will result.
    2. If the breach resulted from clerical error, the claim may be 
canceled without payment.
    3. If the breach resulted from negligence, the claim may be 
canceled upon payment of an amount between $100 and $250 per default, 
depending on the presence of aggravating or mitigating factors.
    4. If the breach was intentional, no relief shall be granted.

VIII. Guidelines for Cancellation of Claims Arising From the 
Removal of Merchandise Without Authorization From a Container 
Freight Station (CFS) (19 CFR 113.63(b))

A. Assessment

    Merchandise not retained at a Container Freight Station (CFS) by 
the CFS operator shall be the subject of a claim for liquidated damages 
for violation of the provisions of 19 CFR 113.63(b)(2) equal to the 
value of the merchandise or three times the value of the merchandise if 
it is restricted or prohibited or is alcoholic beverages.

B. Mitigation of Claims Arising for Removal or Delivery of Merchandise 
From the CFS Without Authorization

    1. If the CFS operator can show that the violation occurred solely 
as a result of Customs error, the claim for liquidated damages should 
be canceled without payment.
    2. If the CFS operator can show that the merchandise was never 
received or landed, the claim for liquidated damages should be canceled 
without payment.
    3. If the merchandise which was removed or delivered from the CFS 
without authorization could have been the subject of an informal entry, 
the claim for liquidated damages may be canceled upon payment of an 
amount equal to the duties, fees, taxes and charges that would have 
been due on the merchandise had entry been properly made plus an amount 
between $100 and $500, depending on the presence of aggravating or 
mitigating factors.
    4. If the CFS operator comes forward and discloses the violation to 
Customs prior to discovery of the violation by Customs, the claim for 
liquidated damages may be canceled upon payment of an amount equal to 
the duties, fees, taxes and charges that would have been due on the 
merchandise had entry been properly made, plus $50.
    5. If the merchandise which was removed or delivered from the CFS 
without authorization was not designated for Customs examination and 
the CFS operator can show that the merchandise was entered and duties, 
fees, taxes and charges paid thereon, the claim for liquidated damages 
may be canceled upon payment of an amount between $250 and $2,000 
depending on the presence of aggravating or mitigating factors.
    6. If the merchandise which was removed or delivered from the CFS 
without authorization was not designated for Customs examination and 
the CFS operator cannot show that the merchandise was entered and 
duties, fees, taxes and charges paid thereon, the claim for liquidated 
damages may be canceled upon payment of an amount equal to the duties, 
fees, taxes and charges that would have been due on the merchandise had 
entry been properly made plus an amount between $300 and $2,500 
depending on the presence of aggravating or mitigating factors.
    7. If the merchandise removed or delivered from a CFS without 
authorization was designated for Customs examination and the CFS 
operator can show that the merchandise was entered and duties, fees, 
taxes and charges paid thereon, the claim for liquidated damages may be 
canceled upon payment of an amount between $2,500 and $20,000 depending 
on the presence of aggravating or mitigating factors. In no case should 
the amount upon which the claim may be canceled be lower than any 
chargeable costs which are incident to such examination. Conversely, 
the amount upon which the claim may be canceled can never exceed the 
value of the claim for liquidated damages.
    8. If the merchandise which was removed or delivered from a CFS 
without authorization and was designated for Customs examination and 
the CFS operator cannot show that the merchandise was entered and 
duties, fees, taxes and charges paid thereon, the claim for liquidated 
damages may be canceled upon payment of an amount equal to the duties, 
fees, taxes and charges that would have been due on the merchandise had 
entry been properly made plus an amount between $3,000 and $25,000 
depending on the presence of aggravating or mitigating factors. In no 
case should the amount upon which the claim may be canceled be lower 
than any chargeable costs which are incident to such Customs 
examination. Conversely, the amount upon which the claim may be 
canceled can never exceed the value of the claim for liquidated 
damages.
    9. If the CFS operator has a history of receipting for merchandise 
which has been removed or delivered from the CFS without authorization 
or allowing merchandise to be removed from the CFS without 
authorization, or particularly aggravating circumstances exist with 
regard to a claim, the Fines, Penalties and Forfeitures Officer may 
cancel the claim for liquidated damages upon payment of a higher amount 
than that authorized by these guidelines; however, the advice of 
Headquarters, Office of Regulations and Rulings, Penalties Branch must 
be sought to determine appropriate mitigation.
    10. Theft of merchandise from the CFS. Merchandise which is stolen 
from the CFS shall be treated as having been removed without 
authorization. The CFS operator will be liable for liquidated damages 
and mitigation will occur in accordance with these guidelines. It 
should also be noted that penalties under 19 USC 1595a(b) for violation 
of 19 USC 1448 or 1499 (as well as criminal sanctions under 18 U.S.C. 
549) may also be assessed against the individuals who steal the 
merchandise from a CFS. Claims for theft of merchandise in those 
instances will be administered in accordance with guidelines 
articulated in Section V.B.10. above.

[[Page 14797]]

C. Mitigating and Aggravating Factors

    1. Mitigating Factors
    a. CFS operator is inexperienced in the handling of cargo.
    b. CFS operator has a general good performance and a low error rate 
in the handling of cargo.
    c. CFS operator demonstrates remedial action has been taken to 
prevent future claims.
    2. Aggravating Factors
    a. CFS operator refuses to cooperate with Customs or acts to impede 
Customs activity with regard to the case.
    b. CFS operator has a rising error rate which is indicative of 
deteriorating performance in the handling and safekeeping of cargo.

D. Restricted or Prohibited Merchandise

    If Customs has reason to believe that the merchandise which was 
removed from the CFS without authorization may have been restricted or 
prohibited from entry, that will be considered an extraordinary 
aggravating factor and will result in either no mitigation or 
mitigation at the high end of the mitigation range.

IX. Guidelines for Cancellation of Claims Arising From the Failure 
To Hold Merchandise at the Place of Examination (19 CFR 113.62(f))

A. Assessment

    The importer of record (or Customs broker if the broker is acting 
as importer of record) may seek and obtain permission from Customs to 
have merchandise examined at a place other than at a wharf or other 
place in the charge of a Customs officer. The importer obligates the 
provisions of its basic importation bond guaranteeing to deliver the 
merchandise to the place of examination and hold it there until 
examination occurs. If merchandise which is to be held at the place of 
examination or delivered to the place of examination as obligated by 
the importer of record under the terms and conditions of the basic 
importation bond is not so held or delivered, a claim for liquidated 
damages arises for violation of the provisions of 19 CFR 113.62(f) 
equal to the value of the merchandise or three times the value of the 
merchandise if it is restricted or prohibited or is alcoholic 
beverages.

B. Mitigation of Claims Arising for Failure To Hold Merchandise at or 
Deliver Merchandise to the Place of Examination Pursuant to the 
Provisions of the Basic Importation Bond

    1. If the importer of record can show that the violation occurred 
solely as a result of Customs error, the claim for liquidated damages 
should be canceled without payment.
    2. If the importer of record can show that the merchandise was 
never received or landed, the claim for liquidated damages should be 
canceled without payment.
    3. If the merchandise which was not held at or delivered to the 
place of examination could have been the subject of an informal entry, 
the claim for liquidated damages may be canceled upon payment of an 
amount equal to the duties, fees, taxes and charges that would have 
been due on the merchandise had entry been properly made plus an amount 
between $100 and $500, depending on the presence of aggravating or 
mitigating factors.
    4. By its very nature, merchandise not held at or delivered to the 
place of examination is considered to be designated for Customs 
examination. If the importer of record can show that the merchandise 
was entered and duties, fees, taxes and charges paid thereon, the claim 
for liquidated damages may be canceled upon payment of an amount 
between $2,500 and $20,000 depending on the presence of aggravating or 
mitigating factors. In no case should the amount upon which the claim 
may be canceled be lower than any chargeable costs which are incident 
to such examination. Conversely, the amount upon which the claim may be 
canceled can never exceed the value of the claim for liquidated 
damages.
    5. If the merchandise was not held at or delivered to the place of 
examination and the importer of record cannot show that the merchandise 
was entered and duties, fees, taxes and charges paid thereon, the claim 
for liquidated damages may be canceled upon payment of an amount equal 
to the duties, fees, taxes and charges that would have been due on the 
merchandise had entry been properly made plus an amount between $3,000 
and $25,000 depending on the presence of aggravating or mitigating 
factors. In no case should the amount upon which the claim may be 
canceled be lower than any chargeable costs which are incident to such 
Customs examination. Conversely, the amount upon which the claim may be 
canceled can never exceed the value of the claim for liquidated 
damages.
    6. If the importer of record has a history of not holding 
merchandise at or not delivering merchandise to the place of 
examination, or particularly aggravating circumstances exist with 
regard to a claim, the Fines, Penalties and Forfeitures Officer may 
cancel the claim for liquidated damages upon payment of a higher amount 
than that authorized by these guidelines; however, the advice of 
Headquarters, Office of Regulations and Rulings, Penalties Branch will 
be sought to determine appropriate mitigation.
    7. Theft of merchandise from the place of examination or while 
being delivered to the place of examination. Merchandise which is 
stolen from the custody of the importer of record at or on its way to 
the place of examination will be treated as having been removed without 
authorization. The importer of record will be liable for liquidated 
damages and mitigation will occur in accordance with these guidelines. 
It should also be noted that penalties under 19 USC 1595a(b) for 
violation of 19 USC 1448 or 1499 (as well as criminal sanctions under 
18 U.S.C. 549) may also be assessed against the individuals who steal 
the merchandise from the importer of record. Claims for theft of 
merchandise in those instances will be administered in accordance with 
guidelines articulated in Section V.B.10. above.

C. Mitigating and Aggravating Factors

    1. Mitigating Factors
    a. The importer of record is inexperienced in the handling of 
cargo.
    b. The importer of record has a general good performance and a low 
error rate in the delivery and safekeeping of cargo.
    c. The importer of record demonstrates remedial action has been 
taken to prevent future claims.
    2. Aggravating Factors
    a. The importer of record refuses to cooperate with Customs or acts 
to impede Customs activity with regard to the case.
    b. The importer of record has a rising error rate which is 
indicative of deteriorating performance in the delivery and safekeeping 
of cargo.

D. Restricted or Prohibited Merchandise

    If Customs has reason to believe that the merchandise which was not 
held at the place of examination or was not delivered to the place of 
examination may have been restricted or prohibited from entry, that 
will be considered an extraordinary aggravating factor and will result 
in either no mitigation or mitigation at the high end of the mitigation 
range.

E. Failure to Keep Customs Seal or Cording Intact

    The importer of record also agrees to keep any Customs seals or 
cording intact until the merchandise is examined. For a violation which 
involves the failure to keep any Customs seal or cording intact until 
the

[[Page 14798]]

merchandise is examined, the claim will be canceled upon payment of an 
amount between $100 and $500 if there is no evidence to indicate the 
merchandise in the sealed or corded shipment was tampered with. If 
there is evidence of tampering, the claim will be canceled upon payment 
of an amount equal to the value of any missing merchandise. Tampering 
with seals also may result in criminal sanctions under 18 U.S.C. 549.

[FR Doc. 99-7410 Filed 3-26-99; 8:45 am]
BILLING CODE 4820-02-P