[Federal Register Volume 63, Number 21 (Monday, February 2, 1998)]
[Proposed Rules]
[Pages 5329-5338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2250]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 10, 12, 18, 24, 111, 113, 114, 125, 134, 145, 162,
171, and 172
RIN 1515-AC01
Petitions for Relief; Seizures, Penalties, and Liquidated Damages
AGENCY: Customs Service, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes significant amendments to parts 171 and
172 of the Customs Regulations relating to the filing of petitions in
penalty, liquidated damages, and seizure cases. The proposed
regulations are briefer and are designed to allow more flexibility and
useful contact with Government officials in an effort to administer
cases in the most efficient way possible. These proposed regulations
promote a more customer-friendly atmosphere and eliminate needless or
redundant provisions. The affected parts are recrafted to include
petition processing in seizure and unsecured penalty cases under part
171 and liquidated damages and secured penalty petition processing
under part 172.
DATES: Comments must be received on or before April 3, 1998.
ADDRESSES: Comments (preferably in triplicate) may be submitted to the
Office of Regulations and Rulings, Regulations Branch, Ronald Reagan
Building, 1300 Pennsylvania Avenue, NW., Washington, D.C. 20229, and
inspected at the Regulations Branch, Ronald Reagan Building, Suite
3000, 1300 Pennsylvania Avenue, NW., Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Jeremy Baskin, Penalties Branch,
Office of Regulations and Rulings, 202-927-2344.
[[Page 5330]]
SUPPLEMENTARY INFORMATION:
Background
Under the provisions of sections 618 and 623 of the Tariff Act of
1930, as amended (19 U.S.C. 1618 and 1623), and sections 320 of title
46, United States Code App. (46 U.S.C.App. 320), and section 5321 of
title 31, United States Code (31 U.S.C. 5321), the Secretary of the
Treasury is empowered to remit forfeitures, mitigate penalties, or
cancel claims arising from violation of Customs bonds upon terms and
conditions that he deems appropriate. Under general rulemaking
authority as provided by sections 66 and 624 of the Tariff Act of 1930,
as amended (19 U.S.C. 66 and 1624), the Secretary is authorized to make
such regulations necessary to carry out the provisions of the Tariff
Act. Consistent with that authority, Parts 171 (relating to seizures
and penalties) and 172 (relating to liquidated damages) of the Customs
Regulations (19 CFR parts 171 and 172) were promulgated to provide for
the petitioning process in order to allow for the orderly remission of
forfeitures, mitigation of penalties, and cancellation of claims for
liquidated damages.
Customs is proposing significant amendments to Parts 171 and 172 of
the Customs Regulations relating to the filing of petitions in penalty,
liquidated damages, and seizure cases. The new regulations will be
briefer and will allow more flexibility and useful contact with
Government officials in an effort to administer cases in the most
efficient way possible. These regulations will promote a more customer-
friendly atmosphere and will eliminate needless or redundant
provisions.
The scope of Parts 171 and 172 has been changed. Inasmuch as
certain penalties are guaranteed by the conditions of the International
Carrier Bond, and, therefore involve surety participation, the
provisions of Part 172 will relate to all claims for liquidated damages
and penalties secured by a bond. This will mean that all claims against
surety will be handled in a consistent manner. Part 171 will relate to
unsecured fines and penalties and all seizure and forfeiture cases.
The proposed regulations anticipate that electronic filing of
petitions is an inevitability even though Customs does not currently
have, on a nationwide basis, the capabilities to accept petitions
electronically. Accordingly, the regulations reflect the acceptance of
electronic signatures and eliminate the requirement of duplicate copies
if an electronic petition is filed.
The proposed regulations require that petitions for relief must be
signed by the petitioner, his attorney-at-law or a Customs broker, but
will allow others, in certain non-commercial violations (such as
passenger/baggage violations), to file petitions on behalf of non-
English speaking claimants to property or other petitioners who have
some disability that may impede the ability to file a petition.
Instances have occurred where these petitions have been rejected
because they did not meet the signature requirements of the old
regulations. A strict reading of the current regulations would bar
Customs from considering those petitions. This position causes needless
delay in administrative processing of cases. The new proposed provision
will open the process in these situations and promote efficiency by
allowing, in non-commercial violations, a non-English speaking
petitioner or petitioner who has a disability which may impede his
ability to file a petition to enlist a family member or other
representative to file a petition on his behalf.
Under current regulation, Customs may limit the petitioning period
to 7 days in cases involving violations of 19 U.S.C. 1592 when the
running of the statute of limitations is imminent. Customs finds no
reason to limit the 7-day petitioning period option to just 1592 cases.
The proposed regulations extend the 7-day rule to all cases and clarify
that it is 7 working days, rather than calendar days.
The current regulatory section entitled ``Additional evidence
required with certain petitions'' is proposed to be eliminated as
unnecessary. The provisions of proposed new Sec. 171.2 indicate that
the claimant or petitioner must establish a petitionable interest in
seized property. How that proof is presented is not a subject that need
be controlled by regulation.
Oral presentations will continue to be afforded as a matter of
right in 1592 cases and only as a matter of discretion in other cases.
The proposed regulations simply remove the reference to cases commenced
subsequent to December 31, 1978. This provision has become obsolete
with the passage of time.
Title VI of the North American Free Trade Agreement Implementation
Act (known commonly as the Customs Modernization Act) (Pub.L. 103-182,
107 Stat. 2057) amended the provisions of 19 U.S.C. 1595a(c) to provide
for the seizure and forfeiture of stolen property. Implementing
regulations for this amendment were promulgated by Treasury Decision
96-2 (T.D. 96-2). This amendment has rendered Sec. 171.22(c) obsolete,
as those provisions of the new statute are applicable to any stolen
property, not only that stolen in Canada and brought into the United
States. Accordingly, it is proposed to no longer include that provision
in the regulations.
Mitigation guidelines for monetary penalties assessed pursuant to
19 U.S.C. 1592 are currently published as Appendix B to Part 171 of the
Regulations. Accordingly, the provisions of Sec. 171.23 of the current
regulations, making these guidelines available upon request, are
obsolete and it is proposed that this section be eliminated.
The offices of Regional Commissioner and District Director were
eliminated under Customs reorganization; therefore, all references to
those offices and delegations of authority to those individuals to
decide petitions and supplemental petitions for relief are obsolete.
Through Treasury Decision 95-78 (T.D. 95-78), Customs published an
Interim Rule which amended the regulations and authorized Fines,
Penalties, and Forfeitures Officers to decide petitions for relief and
certain designated Headquarters officials assigned to field locations
to decide supplemental and second supplemental petitions for relief in
certain cases (although this document proposes to eliminate second
supplemental petitions, as discussed later herein). Those changes are
reflected in this document.
Consistent with the reorganization and Customs policy of empowering
employees, the proposed regulations remove specific delegations of
mitigation authority from the body of regulatory text with the
intention of affording the Secretary of the Treasury and the
Commissioner of Customs the opportunity to delegate authority to decide
petitions and supplemental petitions to the field through delegation
orders, without the necessity of amending the regulations. A separate
document will be published in the Federal Register detailing the new
delegations.
The document proposes that the provisions of Part 111 be amended to
eliminate the requirement of Headquarters approval of broker penalty
cases assessed in excess of $10,000.
Novel or complex issues often arise concerning Customs policy with
regard to Customs actions or potential actions relating to seizures and
forfeitures, penalties (including penalty-based demands for duty),
liquidated damages or case assessment or mitigation in cases that are
otherwise within field jurisdiction because of the value of the
property or the amount of the penalty or claim for liquidated damages.
In those instances, Headquarters advice may need to be sought.
Accordingly, the
[[Page 5331]]
proposed regulations include a section in both Parts 171 and 172 to
allow any Customs officer or an alleged violator to initiate a request
for advice to be submitted to the Fines, Penalties, and Forfeitures
Officer for forwarding to the Chief, Penalties Branch, Office of
Regulations and Rulings. The Fines, Penalties, and Forfeitures Officer
will retain the authority to refuse to forward any request that fails
to raise a qualifying issue.
Under current policy, Customs officers are empowered to accept
petitions filed untimely in response to claims for liquidated damages.
Those petitions can be accepted at any time prior to determination that
a claim is eligible to be placed on a surety sanction list. The
proposed regulations will permit Customs to accept late petitions in
penalty cases as well, but, as articulated in guidelines published for
cancellation of bond charges (see T.D. 94-38), lateness in filing a
petition may be considered when considering remission or mitigation of
a claim and less generous relief, if otherwise merited, may be afforded
to the petitioner who files in an untimely manner.
The courts have consistently held that a claim for liquidated
damages is not a ``charge or exaction'' which is properly the subject
of a protest filed pursuant to the authority of 19 U.S.C. 1514. See
United States v. Toshoku America, Inc., 879 F.2d 815 (Fed.Cir. 1989);
Halperin Shipping Co., Inc. v. United States, 14 CIT 438, 742 F.Supp.
1163 (1990). In light of these decisions, the proposed regulations
indicate that claims for liquidated damages and decisions on petitions
are not properly the subject of a protest filed pursuant to 19 U.S.C.
1514.
In Trayco, Inc. v. United States, ---- Fed.Cir.(T) ------, 994 F.2d
832 (1993), the Court permitted a company that had petitioned for
relief, received a decision on the petition and, although unhappy with
the mitigation offered, paid that mitigated amount ``under protest'',
to file suit to recover the amount paid. The Court noted that as ``* *
* nothing in the statute or regulations gives notice that a party may
relinquish its rights to judicial review by paying a mitigated penalty
and filing a second supplemental petition, we decline to hold that
Trayco is estopped where it accompanied its payment with a statement
expressly reserving its rights to judicial review.'' See Id. at 839.
Customs proposes to amend the regulations to provide that any payment
made in compliance with a mitigation decision will act as an accord and
satisfaction whereby the paying party has elected to resolve the case
through the administrative process and has waived the right to sue for
a refund. This express statement will also be included in all
mitigation decisions offered to petitioners in order to provide full
disclosure as to their administrative or judicial rights. Customs will
not accept payments ``under protest.''
Additionally, in the proposed regulations, second supplemental
petitions are eliminated. Therefore, payment of a mitigated amount will
never be necessary to receive original or appellate administrative
review and a petitioner will not be required to later sue for a refund
of monies paid if he believes the underlying penalty was incorrectly
assessed or the claim improperly mitigated.
The proposed regulations include a provision whereby the deciding
Customs official reserves the right to require a waiver of the statute
of limitations executed by the claimants to the property or charged
party or parties as a condition precedent before accepting a
supplemental petition in any case where the statute will be available
as a defense to all or part of that case within one year from the date
of decision on the original petition for relief. Upon receipt of such a
waiver, any reduced time period for acceptance of a petition would not
be necessary. The proposed regulations remove a restriction on the
filing of supplemental petitions in broker penalty cases. Under current
Sec. 111.95, Customs Regulations, a final determination of $1,000 or
less in response to a petition for relief in a case involving
assessment of a penalty for violation of the provisions of 19 U.S.C.
1641 may not be the subject of a supplemental petition. There is no
basis to single out this particular violation as not being worthy of a
supplemental petition for relief. All parties should have the same
administrative rights.
It is noted that no changes are proposed to Subpart F, Part 171, of
the current regulations relating to expedited procedures promulgated as
a result of passage of the Anti-Drug Abuse Act of 1988 and applicable
to certain administrative forfeiture proceedings.
Sections 10.39(e) and (f) of the current regulations, relating to
the filing of petitions in cases involving breaches of the terms and
conditions of temporary importation bonds (TIBs), provide for different
standards of review if there has been a default with respect to all of
the articles entered under bond or if there has been a default with
respect to part, but not all, of the articles entered under bond. This
bifurcation is unnecessary. The proposed regulations combine the
provisions of Secs. 10.39(e) and (f) to provide a single standard for
review of TIB petitions without regard to whether all or part of the
merchandise entered under the TIB are in breach.
Current Sec. 162.48, Customs Regulations, relating to the
disposition of perishable and low-value property, permits Customs, by
the authority granted in section 612 of the Tariff Act of 1930, as
amended (19 U.S.C. 1612), to destroy summarily low-value seized
property (less than $1,000) when the costs of storing and maintaining
such property are disproportionate to its value. Customs would then
reimburse any successful petitioning claimant from the Forfeiture Fund.
The provisions of section 667 of the Customs Modernization Act remove
this $1,000 cap and permit the summary destruction of any seized
property, without regard to value, if the costs of maintaining such
property are disproportionate to its value. The proposed amendment is
consistent with this legislative change.
Finally, the provisions of Part 162 are proposed to be amended to
specifically empower Fines, Penalties, and Forfeitures Officers to
accept waivers of the statute of limitations with regard to actual or
potential violations arising in ports over which they have
jurisdiction. The Office of Regulations and Rulings would retain
authority to accept waivers in established actual cases over which it
has monetary jurisdiction and a petition for relief has been filed.
Proposed conforming amendments to Parts 10, 12, 18, 24, 111, 113,
114, 125, 134, 145, and 162 are also set forth in this document.
Comments
Before making a determination in this matter, Customs will consider
any written comments timely submitted. Comments 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)), during
regular business hours of 9:00 a.m. to 4:30 p.m. at the Regulations
Branch, Office of Regulations and Rulings, Ronald Reagan Building, 1300
Pennsylvania Avenue, NW., Washington, D.C.
Regulatory Flexibility and Executive Order 12866
Inasmuch as small business entities are rarely repeat violators of
Customs laws, and, therefore, will seldom need to avail themselves of
these regulatory provisions and file petitions for relief on a regular
basis, it is certified, pursuant to the provisions of the Regulatory
[[Page 5332]]
Flexibility Act (5 U.S.C. 601 et seq.), that the proposed amendments,
if adopted, will not have a significant economic impact on a
substantial number of small entities. Accordingly, the amendments are
not subject to the regulatory analysis requirements of 5 U.S.C. 603 and
604. The document does not meet the criteria for a ``significant
regulatory action'' under E.O. 12866.
List of Subjects
19 CFR Part 10
Alterations, Bonds, Customs duties and inspection, Exports,
Imports, Preference programs, Repairs, Reporting and recordkeeping
requirements, Trade agreements.
19 CFR Part 12
Bonds, Customs duties and inspection, Labeling, Marking, Prohibited
merchandise, Reporting and recordkeeping requirements, Restricted
merchandise, Seizure and forfeiture, Trade agreements.
19 CFR Part 18
Bonds, Customs duties and inspection, Penalties, Prohibited
merchandise, Reporting and recordkeeping requirements.
19 CFR Part 24
Accounting, Claims, Customs duties and inspection, Financial and
accounting procedures, Harbors, Reporting and recordkeeping
requirements, Trade agreements.
19 CFR Part 111
Administrative practice and procedure, Bonds, Brokers, Customs
duties and inspection, Imports, Licensing, Penalties, Reporting and
recordkeeping requirements.
19 CFR Part 113
Bonds, Customs duties and inspection, Exports, Foreign commerce and
trade statistics, Freight, Imports, Reporting and recordkeeping
requirements.
19 CFR Part 114
Carnets, Customs duties and inspection.
19 CFR Part 125
Bonds, Customs duties and inspection, Freight, Reporting and
recordkeeping requirements.
19 CFR Part 134
Country of origin, Customs duties and inspection, Imports,
Labeling, Marking, Packaging and containers, Reporting and
recordkeeping requirements.
19 CFR Part 145
Customs duties and inspection, Imports, Mail, Postal service,
Reporting and recordkeeping requirements.
19 CFR Part 162
Administrative practice and procedure, Customs duties and
inspection, Law enforcement, Penalties, Prohibited merchandise,
Reporting and recordkeeping requirements, Seizures and forfeitures.
19 CFR Part 171
Administrative practice and procedure, Customs duties and
inspection, Law enforcement, Penalties, seizures, and forfeitures.
19 CFR Part 172
Administrative practice and procedure, Customs duties and
inspection, Penalties.
Proposed Amendments to the Regulations
For the reasons stated above, it is proposed to amend parts 10, 12,
18, 24, 111, 113, 114, 125, 134, 145, 162, 171, and 172, Customs
Regulations (19 CFR parts 10, 12, 18, 24, 111, 113, 114, 125, 134, 145,
162, 171, and 172), as set forth below.
PART 10--ARTICLES CONDITIONALLY FREE, SUBJECT TO A REDUCED RATE,
ETC.
1. The general authority citation for part 10 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1321, 1481, 1484, 1498, 1508,
1623, 1624, 3314.
2. It is proposed to revise the introductory paragraph of
Sec. 10.39(e) to read as follows:
Sec. 10.39 Cancellation of bond charges.
* * * * *
(e) If there has been a default with respect to any or all of the
articles covered by the bond and a written petition for relief is filed
as provided in part 172 of this chapter, it shall be reviewed by the
Fines, Penalties, and Forfeitures Officer having jurisdiction in the
port where the entry was filed. If the Fines, Penalties, and
Forfeitures Officer is satisfied that the importation was properly
entered under Chapter 98, subchapter XIII, and that there was no intent
to defraud the revenue or delay the payment of duty, the Fines,
Penalties, and Forfeitures Officer may cancel the liability for the
payment of liquidated damages as follows:
* * * * *
3. It is proposed to amend Sec. 10.39 by removing paragraph (f) and
redesignating current paragraphs (g) and (h) respectively as paragraphs
(f) and (g).
PART 12--SPECIAL CLASSES OF MERCHANDISE
1. The general authority citation and relevant specific authority
citations for part 12 continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States (HTSUS)), 1624.
* * * * *
Sections 12.95 through 12.103 also issued under 15 U.S.C. 1241-
1245;
* * * * *
2. It is proposed to amend Sec. 12.102 by removing the number
``6O'' and adding in its place the number ``3O'.
PART 18--TRANSPORTATION IN BOND AND MERCHANDISE IN TRANSIT
1. The general authority citation and relevant specific authority
citations for part 18 continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States), 1551, 1552, 1553,
1624.
* * * * *
Section 18.8 also issued under 19 U.S.C. 1623;
* * * * *
2. It is proposed to revise Sec. 18.8(d) to read as follows:
Sec. 18.8 Liability for shortage, irregular delivery, or nondelivery;
penalties.
* * * * *
(d) In any case in which liquidated damages are imposed in
accordance with this section and the Fines, Penalties, and Forfeitures
Officer is satisfied by evidence submitted to him with a petition for
relief filed in accordance with the provisions of part 172 of this
chapter that any violation of the terms and conditions of the bond
occurred without any intent to evade any law or regulation, the Fines,
Penalties, and Forfeitures Officer, in accordance with delegated
authority, may cancel such claim upon the payment of any lesser amount
or without the payment of any amount as may be deemed appropriate under
the law and in view of the circumstances.
* * * * *
PART 24--CUSTOMS FINANCIAL AND ACCOUNTING PROCEDURE
1. The general authority citation and relevant specific authority
citations for part 24 continue to read as follows:
[[Page 5333]]
Authority: 5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General
Note 20, Harmonized Tariff Schedule of the United States), 1624; 31
U.S.C. 9701;
* * * * *
Section 24.24 also issued under 26 U.S.C. 4461, 4462;
* * * * *
2. It is proposed to amend the first sentence of Sec. 24.24(h)(3)
by removing the phrase ``published pursuant to the provisions of
Sec. 172.22(d)(1) of this chapter''.
PART 111--CUSTOMS BROKERS
1. The general authority citation for part 111 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1624, 1641.
2. It is proposed to amend Sec. 111.92 by removing the last
sentence.
3. It is proposed to revise Sec. 111.95 to read as follows:
Sec. 111.95 Supplemental petition for relief.
A decision of the Fines, Penalties, and Forfeitures Officer with
regard to any petition filed in accordance with part 171 of this
chapter may be the subject of a supplemental petition for relief. Any
supplemental petition also must be filed in accordance with the
provisions of part 171 of this chapter.
PART 113--CUSTOMS BONDS
1. The general authority citation and relevant specific authority
citation for part 113 continue to read as follows:
Authority: 19 U.S.C. 66, 1623, 1624.
Subpart E also issued under 19 U.S.C. 1484, 1551, 1565.
2. It is proposed to revise Sec. 113.46 to read as follows:
Sec. 113.46 Cancellation of bond charges resulting from failure to
produce documents.
Guidelines published by the Commissioner of Customs set forth
provisions relating to cancellation of bond charges resulting from
failure to produce documents.
3. It is proposed to amend Sec. 113.52 by removing the words ``and
172.22(c)'' from the parenthetical phrase contained therein.
4. It is proposed to amend Sec. 113.54(a) by removing ``172.31''
and adding in its place ``172.11(b)''.
PART 114--CARNETS
1. The general authority citation for part 114 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1623, 1624.
2. It is proposed to amend Sec. 114.34(c) by removing the final
non-parenthetical sentence and the final parenthetical sentence.
PART 125--CARTAGE AND LIGHTERAGE OF MERCHANDISE
1. The general authority citation and relevant specific authority
citation for part 125 continue to read as follows:
Authority: 19 U.S.C. 66, 1565, 1624.
* * * * *
Sections 125.41 and 125.42 also issued under 19 U.S.C. 1623.
2. It is proposed to revise Sec. 125.42 to read as follows:
Sec. 125.42 Cancellation of liability.
The Fines, Penalties, and Forfeitures Officer, in accordance with
delegated authority, may cancel liquidated damages incurred under the
bond of the foreign trade zone operator, containing the bond conditions
set forth in Sec. 113.73 of this chapter, or under the bond of the
cartman, lighterman, bonded carrier, bonded warehouse operator,
container station operator or centralized examination station operator
on Customs Form 301, containing the bond conditions set forth in
Sec. 113.63 of this chapter, upon the payment of such lesser amount, or
without the payment of any amount, as the Fines, Penalties, and
Forfeitures Officer may deem appropriate under the circumstances.
Application for cancellation of liquidated damages incurred shall be
made in accordance with the provisions of part 172 of this chapter.
PART 134--COUNTRY OF ORIGIN MARKING
1. The general authority citation for part 134 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States), 1304, 1624.
2. It is proposed to amend Sec. 134.54(a) by removing the phrase
``plus any estimated duty thereon as determined at the time of entry.''
3. It is proposed to amend Sec. 134.54(b) by removing the second
sentence.
PART 145--MAIL IMPORTATIONS
1. The general authority citation and relevant specific authority
citation for part 145 continue to read as follows:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1624.
Section 145.4 also issued under 18 U.S.C. 545, 19 U.S.C. 1618.
* * * * *
2. It is proposed to revise Sec. 145.4(b) to read as follows:
Sec. 145.4 Dutiable merchandise without declaration or invoice,
prohibited merchandise, and merchandise imported contrary to law.
* * * * *
(b) Mitigation of forfeiture. Any claimant incurring a forfeiture
of merchandise for violation of this section may file a petition for
relief pursuant to part 171 of this chapter. Mitigation of that
forfeiture may occur consistent with mitigation guidelines.
* * * * *
PART 162--RECORDKEEPING, INSPECTION, SEARCH AND SEIZURE
1. The general authority citation and relevant specific authority
citation for part 162 continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1624.
* * * * *
Section 162.48 also issued under 19 U.S.C. 1606, 1607, 1608,
1612, 1613b, 1618;
* * * * *
2. It is proposed to amend Sec. 162.48 by revising the heading to
read as follows:
Sec. 162.48 Disposition of perishable and other seized property.
3. It is proposed to amend paragraph (b) of Sec. 162.48 by removing
from the first sentence the phrase ``and such value is less than
$1,000,''.
4. It is proposed to amend Sec. 162.79b by removing the last
sentence.
5. It is proposed to amend subpart G, part 162 by adding a new
Sec. 162.81 to read as follows:
Sec. 162.81 Statute of limitation waivers.
Waivers of the statute of limitations in any matter relating to any
actual or potential penalty, seizure or claim for liquidated damages
may be accepted by any Fines, Penalties, and Forfeitures Officer except
that waivers of the statute of limitations submitted with regard to any
penalty, seizure or liquidated damages case in which a petition has
been filed and is under review by the Chief, Penalties Branch, Office
of Regulations and Rulings, or the Secretary of the Treasury or his
designee, shall be accepted by the Chief, Penalties Branch, Office of
Regulations and Rulings.
PART 171--FINES, PENALTIES, AND FORFEITURES
1. The 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.
Subpart F also issued under 19 U.S.C. 1595a, 1605, 1624; 21
U.S.C. 881 note.
[[Page 5334]]
2. It is proposed to revise Sec. 171.0 to read as follows:
Sec. 171.0 Scope.
This part contains provisions relating to petitions for relief from
fines, forfeitures, and certain penalties incurred, and petitions for
the restoration of proceeds from sale of seized and forfeited property.
This part does not relate to petitions on claims for liquidated damages
or penalties which are guaranteed by the conditions of the
International Carrier Bond (see Sec. 113.64 of this chapter).
3. It is proposed to revise subparts A through E of part 171 to
read as follows:
Subpart A--Application for Relief
Sec. 171.1 Petition for relief.
(a) To whom addressed. Petitions for the remission or mitigation of
a fine, penalty, or forfeiture incurred under any law administered by
Customs shall be addressed to the Fines, Penalties, and Forfeitures
Officer designated in the notice of claim.
(b) Signature. The petition for remission or mitigation shall be
signed by the petitioner, his attorney-at-law or a Customs broker. If
the petitioner is a corporation, the petition may be signed by an
officer or responsible supervisory official of the corporation, or a
representative of the corporation. Electronic signatures are
acceptable. In non-commercial violations, a non-English speaking
petitioner or petitioner who has a disability which may impede his
ability to file a petition may enlist a family member or other
representative to file a petition on his behalf. The deciding officer
may, in his or her discretion, require proof of representation before
consideration of any petition.
(c) Form. The petition for remission or mitigation need not be in
any particular form. It shall set forth the following:
(1) A description of the property involved (if a seizure);
(2) The date and place of the violation or seizure;
(3) The facts and circumstances relied upon by the petitioner to
justify remission or mitigation; and
(4) If a seizure case, proof of a petitionable interest in the
seized property.
(d) False statement in petition. A false statement contained in a
petition may subject the petitioner to prosecution under the provisions
of 18 U.S.C. 1001.
Sec. 171.2 Filing a petition.
(a) Where filed. A petition for relief shall be filed with the
Fines, Penalties, and Forfeitures office whose address is given in the
notice.
(b) When filed. (1) Seizures. Petitions for relief from seizures
shall be filed within 30 days from the date of mailing of the notice of
seizure.
(2) Penalties. Petitions for relief from penalties shall be filed
within 60 days of the mailing of the notice of penalty incurred.
(c) Extensions. The Fines, Penalties, and Forfeitures Officer is
empowered to grant extensions of time to file petitions when the
circumstances so warrant.
(d) Number of copies. The petition shall be filed in duplicate
unless filed electronically.
(e) Exception for certain cases. If a penalty is assessed or a
seizure is made and fewer than 180 days remain from the date of penalty
notice or seizure before the statute of limitations may be asserted as
a defense, the Fines, Penalties, and Forfeitures Officer may specify in
the notice a reasonable period of time, but not less than 7 working
days, for the filing of a petition for relief. If a petition is not
filed within the time specified, the matter shall be transmitted
promptly to the appropriate Office of the Chief Counsel for referral to
the Department of Justice.
Sec. 171.3 Oral presentations seeking relief.
(a) For violation of section 592. If the penalty incurred is for a
violation of section 592, Tariff Act of 1930, as amended (19 U.S.C.
1592), the person named in the notice, in addition to filing a
petition, may make an oral presentation seeking relief in accordance
with this paragraph. For purposes of this paragraph, a proceeding
commences with the issuance of a prepenalty notice or, if no prepenalty
notice is issued, with the issuance of a notice of claim or a monetary
penalty.
(b) Other oral presentations. Oral presentations other than those
provided in paragraph (a) of this section may be allowed in the
discretion of any official of the Customs Service or Department of the
Treasury authorized to act on a petition or supplemental petition.
Subpart B--Actions on Petitions
Sec. 171.11 Petitions acted on by Fines, Penalties, and Forfeitures
Officer.
(a) Remission or mitigation authority. Upon receipt of a petition
for relief submitted pursuant to the provisions of section 618 of the
Tariff Act of 1930, as amended (19 U.S.C. 1618), or section 5321(c) of
title 31, United States Code (31 U.S.C. 5321(c)), or section 320 of
title 46, United States Code App. (46 U.S.C. App. 320), the Fines,
Penalties, and Forfeitures Officer is empowered to remit or mitigate on
such terms and conditions as, under law and in view of the
circumstances, he or she shall deem appropriate in accordance with
appropriate delegations of authority.
(b) When violation did not occur. Notwithstanding any other
delegation of authority, the Fines, Penalties, and Forfeitures Officer
is always empowered to cancel any claim when he or she definitely
determines that the act or omission forming the basis of any claim of
penalty or forfeiture did not occur.
(c) When violation is result of vessel in distress. The Fines,
Penalties, and Forfeitures Officer may remit without payment any
penalty which arises for violation of the coastwise laws if he or she
is satisfied that the violation occurred as a direct result of an
arrival of the transporting vessel in distress.
Sec. 171.12 Petitions referred to Customs Headquarters.
Upon receipt of a petition for relief filed pursuant to the
provisions of section 618 of the Tariff Act of 1930, as amended (19
U.S.C. 1618), section 5321(c) of title 31, United States Code (31
U.S.C. 5321(c)), or section 320 of title 46, United States Code App.
(46 U.S.C. App. 320), involving fines, penalties, and forfeitures which
are outside of his or her delegated authority, the Fines, Penalties,
and Forfeitures Officer shall refer that petition to the Chief,
Penalties Branch, Office of Regulations and Rulings, Customs
Headquarters, who is empowered to remit or mitigate on such terms and
conditions as, under law and in view of the circumstances, he or she
shall deem appropriate, unless there has been no delegation of
authority to act by the Secretary of the Treasury or his designee. In
those cases where there has been no delegation to act by the Secretary
or his designee, the Chief, Penalties Branch, shall forward the matter
to the Department with a recommendation.
Sec. 171.13 Limitations on consideration of petitions.
(a) Late petitions. Petitions filed after the expiration of the 30-
or 60-day petitioning period may be considered by the deciding official
if, in his or her discretion, the efficient administration of justice
would be met.
(b) Cases referred for institution of legal proceedings. No action
shall be taken on any petition after the case has been referred to the
Department of Justice for institution of legal proceedings. The
petition shall be forwarded to the Department of Justice.
(c) Conveyance awarded for official use. No petition for remission
of forfeiture of a seized conveyance which has been forfeited and
retained for
[[Page 5335]]
official use shall be considered unless it is filed before final
disposition of the property is made. This does not affect petitions for
restoration of proceeds of sale filed pursuant to the provisions of
section 613 of the Tariff Act of 1930, as amended (19 U.S.C. 1613).
Sec. 171.14 Headquarters advice.
The advice of the Director, International Trade Compliance
Division, Office of Regulations and Rulings, Customs Headquarters, may
be sought in any case, without regard to delegated authority to act on
a petition or offer, when a novel or complex issue concerning a ruling,
policy, or procedure is presented concerning a Customs action(s) or
potential Customs action(s) relating to seizures and forfeitures,
penalties (including penalty-based demands for duty), or mitigating or
remitting any claim. The request for advice may be initiated by the
alleged violator or any Customs officer, but must be submitted to the
Fines, Penalties, and Forfeitures Officer. The Fines, Penalties, and
Forfeitures Officer retains the authority to refuse to forward any
request that fails to raise a qualifying issue and to seek legal advice
from the appropriate Associate or Assistant Chief Counsel in such
cases.
Subpart C--Disposition of Petitions
Sec. 171.21 Written decisions.
If a petition for relief relates to a violation of sections 592 or
641, Tariff Act of 1930, as amended (19 U.S.C. 1592 or 19 U.S.C. 1641),
the petitioner shall be provided with a written statement setting forth
the decision on the matter and the findings of fact and conclusions of
law upon which the decision is based.
Sec. 171.22 Limitation on time decision effective.
A decision to mitigate a penalty or to remit a forfeiture upon
condition that a stated amount is paid shall be effective for not more
than 60 days from the date of notice to the petitioner of such decision
unless the decision itself prescribes a different effective period. If
payment of the stated amount or arrangements for such payment are not
made, or a supplemental petition is not filed in accordance with
regulation, the full penalty or claim for forfeiture shall be deemed
applicable and shall be enforced by promptly referring the matter,
after required collection action, if appropriate, to the appropriate
Office of the Chief Counsel for preparation for referral to the
Department of Justice unless other action has been directed by the
Commissioner of Customs.
Sec. 171.23 Decisions not protestable.
(a) Mitigation decision not subject to protest. Any decision to
remit a forfeiture or mitigate a penalty is not a protestable decision
as defined under the provisions of 19 U.S.C. 1514. Any payment made in
compliance with any decision to remit a forfeiture or mitigate a
penalty is not a charge or exaction and therefore is not a protestable
action as defined under the provisions of 19 U.S.C. 1514.
(b) Payment of mitigated amount as accord and satisfaction. Payment
of a mitigated amount in compliance with an administrative decision on
a petition or supplemental petition for relief shall be considered an
election of administrative proceedings and full disposition of the
case. Payment of a mitigated amount will act as an accord and
satisfaction of the Government claim. Payment of a mitigated amount
will never serve as a bar to filing a supplemental petition for relief.
Subpart D--Offers in Compromise
Sec. 171.31 Form of offers.
Offers in compromise submitted pursuant to the provisions of
section 617 of the Tariff Act of 1930, as amended (19 U.S.C. 1617),
must expressly state that they are being submitted in accordance with
the provisions of that section. The amount of the offer must be
deposited with Customs in accordance with the provisions of Sec. 161.5
of this chapter.
Sec. 171.32 Authority to accept offers.
The authority to accept offers in compromise, when recommended by
the General Counsel of the Treasury or his designee, resides with the
official having authority to decide a petition for relief.
Sec. 171.33 Acceptance of offers in compromise.
An offer in compromise shall be considered accepted only when the
offeror is so notified in writing. As a condition to accepting an offer
in compromise, the offeror may be required to enter into any collateral
agreement or to post any security which is deemed necessary for the
protection of the interest of the United States.
Subpart E--Restoration of Proceeds of Sale
Sec. 171.41 Application of provisions for petitions for relief.
The general provisions of subpart B of this part on filing and
content of petitions for relief apply to petitions for restoration of
proceeds of sale except insofar as modified by this subpart.
Sec. 171.42 Time limit for filing petition for restoration.
A petition for the restoration of proceeds of sale under section
613, Tariff Act of 1930, as amended (19 U.S.C. 1613) shall be filed
within 3 months after the date of the sale.
Sec. 171.43 Evidence required.
In addition to such other evidence as may be required under the
provisions of subpart B of this part, the petition for restoration of
proceeds of sale under section 613, Tariff Act of 1930, as amended (19
U.S.C. 1613), shall show the interest of the petitioner in the
property. The petition shall be supported by satisfactory proof that
the petitioner did not know of the seizure prior to the declaration or
decree of forfeiture and was in such circumstances as prevented him
from knowing of it.
Sec. 171.44 Forfeited property authorized for official use.
If forfeited property which is the subject of a claim under section
613, Tariff Act of 1930, as amended (19 U.S.C. 1613) has been
authorized for official use, retention or delivery shall be regarded as
the sale thereof for the purposes of section 613. The appropriation
available to the receiving agency for the purchase, hire, operation,
maintenance and repair of property of the kind so received is available
for the granting of relief to the claimant and for the satisfaction of
liens for freight, charges and contributions in general average that
may have been filed.
4. It is proposed to amend part 171 by adding a new subpart G to
read as follows:
Subpart G--Supplemental Petitions for Relief
Sec. 171.61 Time and place of filing.
If the petitioner is not satisfied with a decision of the deciding
official on an original petition for relief, a supplemental petition
may be filed with the Fines, Penalties, and Forfeitures Officer having
jurisdiction in the port where the violation occurred. Such
supplemental petition shall be filed within 60 days from the date of
notice to the petitioner of the decision from which further relief is
requested unless another time to file such a supplemental petition is
prescribed in the decision. A supplemental petition may be filed
whether or not the mitigated penalty or forfeiture remission amount
designated in the decision on the original petition is paid.
[[Page 5336]]
Sec. 171.62 Supplemental petition decision authority.
(a) Decisions of Fines, Penalties, and Forfeitures Officer.
Supplemental petitions filed on cases where the original decision was
made by the Fines, Penalties, and Forfeitures Officer shall be
initially reviewed by that official. The Fines, Penalties, and
Forfeitures Officer may choose to grant more relief and issue a
decision indicating same to the petitioner. If the petitioner is
dissatisfied with the further relief granted or if the Fines,
Penalties, and Forfeitures Officer decides to grant no further relief,
the supplemental petition shall be forwarded to a designated
Headquarters official assigned to a field location for review and
decision, except that supplemental petitions filed in cases involving
violations of 19 U.S.C. 1641 where the amount of the penalty assessed
exceeds $10,000 shall be forwarded to the Chief, Penalties Branch,
Office of Regulations and Rulings.
(b) Decisions of Customs Headquarters. Supplemental petitions filed
on cases where the original decision was made by the Chief, Penalties
Branch, Office of Regulations and Rulings, Customs Headquarters, shall
be forwarded to the Director, International Trade Compliance Division,
Customs Headquarters, for review and decision.
(c) Decisions of Treasury Department. Supplemental petitions filed
on cases where the original decision was made in the Treasury
Department, shall be referred to the Chief, Penalties Branch, Office of
Regulations and Rulings, Customs Headquarters, who shall forward the
supplemental petitions to the Department with a recommendation.
(d) Authority of Assistant Commissioner. Any authority given to any
Headquarters official by this part may also be exercised by the
Assistant Commissioner, Office of Regulations and Rulings, or his
designee.
Sec. 171.63 Appeals to the Secretary of the Treasury in certain 1592
cases.
A petitioner filing a supplemental petition pursuant to this
subpart from a decision of the Chief, Penalties Branch, Office of
Regulations and Rulings, with respect to any liability assessed under
19 U.S.C. 1592 may request that the petition be accepted as an appeal
to the Secretary of the Treasury. The Secretary or his designee will
accept for decision any such supplemental petition when in his
discretion he determines that such petition raises a question of fact,
law or policy of such importance as to require a decision by the
Secretary. If the Secretary or his designee declines to accept an
appeal for decision, the petitioner will be so informed. In such a
case, a decision will be issued thereon by the Director, International
Trade Compliance Division.
Sec. 171.64 Waiver of statute of limitations.
The deciding official always reserves the right to require a waiver
of the statute of limitations executed by the claimants to the property
or charged party or parties as a condition precedent before accepting a
petition for relief or a supplemental petition in any case where the
statute will be available as a defense to all or part of that case
within one year from the date of decision on the original petition for
relief.
PART 172--CLAIMS FOR LIQUIDATED DAMAGES; PENALTIES SECURED BY BONDS
1. The authority citation for Part 172 is revised to read as
follows:
Authority: 19 U.S.C. 66, 1618, 1623, 1624.
PART 172--[REVISED]
2. It is proposed to revise part 172 to read as follows:
PART 172--CLAIMS FOR LIQUIDATED DAMAGES; PENALTIES SECURED BY BONDS
Sec. 172.0 Scope.
This part contains provisions relating to petitions for relief from
claims for liquidated damages arising under any Customs bond and
penalties incurred which are secured by the conditions of the
International Carrier Bond (See Sec. 113.64 of this chapter). This part
does not relate to petitions on unsecured fines or penalties or
seizures and forfeitures, nor does it relate to petitions for the
restoration of proceeds of sale pursuant to 19 U.S.C. 1613.
Subpart A--Notice of Claim and Application for Relief
Sec. 172.1 Notice of liquidated damages or penalty incurred and right
to petition for relief.
(a) Notice of liquidated damages or penalty incurred. When there is
a failure to meet the conditions of any bond posted with Customs or
when a violation occurs which results in assessment of a penalty which
is secured by a Customs bond, the principal shall be notified in
writing of any liability for liquidated damages or penalty incurred and
a demand shall be made for payment. The sureties on such bond shall
also be notified in writing of any such liability at the same time.
(b) Notice of right to petition for relief. The notice shall inform
the principal that application may be made for relief from payment of
liquidated damages or penalty.
Sec. 172.2 Petition for relief.
(a) To whom addressed. Petitions for the cancellation of any claim
for liquidated damages or remission or mitigation of a fine or penalty
secured by a Customs bond incurred under any law or regulation
administered by Customs shall be addressed to the Fines, Penalties, and
Forfeitures Officer designated in the notice of claim.
(b) Signature. The petition for remission or mitigation shall be
signed by the petitioner, his attorney-at-law or a Customs broker. If
the petitioner is a corporation, the petition may be signed by an
officer or responsible supervisory official of the corporation, or a
representative of the corporation. Electronic signatures are
acceptable. The deciding officer may, in his or her discretion, require
proof of representation before consideration of any petition.
(c) Form. The petition for cancellation, remission or mitigation
need not be in any particular form. It shall set forth the following:
(1) The date and place of the violation; and
(2) The facts and circumstances relied upon by the petitioner to
justify cancellation, remission or mitigation.
(d) False statement in petition. A false statement contained in a
petition may subject the petitioner to prosecution under the provisions
of 18 U.S.C. 1001.
Sec. 172.3 Filing a petition.
(a) Where filed. A petition for relief shall be filed by the bond
principal with the Fines, Penalties, and Forfeitures office whose
address is given in the notice.
(b) When filed. Petitions for relief shall be filed within 60 days
from the date of mailing to the bond principal the notice of claim for
liquidated damages or penalty secured by a bond.
(c) Extensions. The Fines, Penalties, and Forfeitures Officer is
empowered to grant extensions of time to file petitions when the
circumstances so warrant.
(d) Number of copies. The petition shall be filed in duplicate
unless filed electronically.
(e) Exception for certain cases. If a penalty or claim for
liquidated damages is assessed and fewer than 180 days remain from the
date of penalty or liquidated damages notice before the statute of
limitations may be asserted as a defense, the Fines, Penalties, and
Forfeitures Officer may specify in the notice a reasonable period of
time, but not less than 7 working days, for the
[[Page 5337]]
filing of a petition for relief. If a petition is not filed within the
time specified, the matter shall be transmitted promptly to the
appropriate Office of the Chief Counsel for referral to the Department
of Justice.
172.4 Demand on surety.
If the principal fails to file a petition for relief or fails to
comply in the prescribed time with a decision to mitigate a penalty or
cancel a claim for liquidated damages issued with regard to a petition
for relief, Customs shall make a demand for payment on surety. Surety
will then have 60 days from the date of the demand to file a petition
for relief.
Subpart B--Actions on Petitions
Sec. 172.11 Petitions acted on by Fines, Penalties, and Forfeitures
Officer.
(a) Mitigation or cancellation authority. Upon receipt of a
petition for relief submitted pursuant to the provisions of section 618
or 623 of the Tariff Act of 1930, as amended (19 U.S.C. 1618 or 19
U.S.C. 1623), or section 320 of title 46, United States Code App. (46
U.S.C. App. 320), the Fines, Penalties, and Forfeitures Officer,
notwithstanding any other regulation, is empowered to mitigate any
penalty or cancel any claim for liquidated damages on such terms and
conditions as, under law and in view of the circumstances, he or she
shall deem appropriate in accordance with appropriate delegations of
authority.
(b) When violation did not occur. Notwithstanding any other
delegation of authority, the Fines, Penalties, and Forfeitures Officer
is always empowered to cancel any case without payment of a mitigated
or cancellation amount when he or she definitely determines that the
act or omission forming the basis of any claim of penalty or claim for
liquidated damages did not occur.
Sec. 172.12 Petitions acted on at Customs Headquarters.
Upon receipt of a petition for relief filed pursuant to the
provisions of section 618 or 623 of the Tariff Act of 1930, as amended
(19 U.S.C. 1618 or 19 U.S.C. 1623), or section 320 of title 46, United
States Code App. (46 U.S.C. App. 320), involving fines, penalties, and
claims for liquidated damages which are outside of his or her
jurisdiction, the Fines, Penalties, and Forfeitures Officer shall refer
that petition to the Chief, Penalties Branch, Office of Regulations and
Rulings, Customs Headquarters, who is empowered, notwithstanding any
other regulation, to mitigate penalties or cancel bond claims on such
terms and conditions as, under law and in view of the circumstances, he
or she shall deem appropriate.
Sec. 172.13 Limitations on consideration of petitions.
(a) Late petitions. Petitions filed after the expiration of the 60-
day petitioning period may be considered by the deciding official if,
in his or her discretion, the efficient administration of justice would
be met.
(b) Cases referred for institution of legal proceedings. No action
shall be taken on any petition if the civil liability has been referred
to the Department of Justice for institution of legal proceedings. The
petition shall be forwarded to the Department of Justice.
(c) Delinquent sureties. No action shall be taken on any petition
from a principal or surety if received after the issuance to surety of
a notice to show cause pursuant to the provisions of Sec. 113.38(c)(3)
of this chapter.
Sec. 172.14 Headquarters advice.
The advice of the Director, International Trade Compliance
Division, Office of Regulations and Rulings, Customs Headquarters, may
be sought in any case, without regard to jurisdictional amount, when a
novel or complex issue concerning a ruling, policy, or procedure is
presented concerning a Customs action(s) or potential Customs action(s)
relating to penalties secured by bonds (including penalty-based demands
for duty), claims for liquidated damages or mitigating any claim. The
request for advice may be initiated by the bond principal, surety or
any Customs officer, but must be submitted to the Fines, Penalties, and
Forfeitures Officer. The Fines, Penalties, and Forfeitures Officer
retains the authority to refuse to forward any request that fails to
raise a qualifying issue and to seek legal advice from the appropriate
Associate or Assistant Chief Counsel in such cases.
Subpart C--Disposition of Petitions
Sec. 172.21 Limitation on time decision effective.
A decision to mitigate a penalty or to cancel a claim for
liquidated damages upon condition that a stated amount is paid shall be
effective for not more than 60 days from the date of notice to the
petitioner of such decision unless the decision itself prescribes a
different effective period. If payment of the stated amount is not made
or a petition or a supplemental petition is not filed in accordance
with regulation, the full penalty or claim for liquidated damages shall
be deemed applicable and shall be enforced by promptly transmitting the
matter, after required collection action, if appropriate, to the
appropriate office of the Chief Counsel for preparation for referral to
the Department of Justice unless other action has been directed by the
Commissioner of Customs. Any such case may also be the basis for a
sanction action commenced in accordance with regulations in this
Chapter.
Sec. 172.22 Decisions not protestable.
(a) Mitigation decision not subject to protest. Any decision to
remit or mitigate a penalty or cancel a claim for liquidated damages
upon payment of a lesser amount is not a protestable decision as
defined under the provisions of 19 U.S.C. 1514. Any payment made in
compliance with any decision to remit or mitigate a penalty or cancel a
claim for liquidated damages upon payment of a lesser amount is not a
charge or exaction and therefore is not a protestable action as defined
under the provisions of 19 U.S.C. 1514.
(b) Payment of mitigated or cancellation amount as accord and
satisfaction. Payment of a mitigated or cancellation amount in
compliance with an administrative decision on a petition or
supplemental petition for relief shall be considered an election of
administrative proceedings and full disposition of the case. Payment of
a mitigated or cancellation amount will act as an accord and
satisfaction of the Government claim. Payment of a mitigated or
cancellation amount will never serve as a bar to filing a supplemental
petition for relief.
Subpart D--Offers in Compromise
Sec. 172.31 Form of offers.
Offers in compromise submitted pursuant to the provisions of
section 617 of the Tariff Act of 1930, as amended (19 U.S.C. 1617),
must expressly state that they are being submitted in accordance with
the provisions of that section. The amount of the offer must be
deposited with Customs in accordance with the provisions of Sec. 161.5
of this chapter.
Sec. 172.32 Authority to accept offers.
The authority to accept offers in compromise, when recommended by
the General Counsel of the Treasury or his designee, resides with the
official having authority to decide a petition for relief, except that
offers in compromise submitted with regard to penalties secured by a
bond or claims for liquidated damages which are the subject of a letter
to show cause issued to a surety in anticipation of possible sanction
action authorized under the provisions of part 113 of this chapter
[[Page 5338]]
shall be accepted by the designated Headquarters official who issued
the show cause letter.
Sec. 172.33 Acceptance of offers in compromise.
An offer in compromise shall be considered accepted only when the
offeror is so notified in writing. As a condition to accepting an offer
in compromise, the offeror may be required to enter into any collateral
agreement or to post any security which is deemed necessary for the
protection of the interest of the United States.
Subpart E--Supplemental Petitions for Relief
Sec. 172.41 Time and place of filing.
If the petitioner is not satisfied with a decision of the deciding
official on an original petition for relief, a supplemental petition
may be filed with the Fines, Penalties, and Forfeitures Officer having
jurisdiction in the port where the violation occurred. Such
supplemental petition shall be filed within 60 days from the date of
notice to the petitioner of the decision from which further relief is
requested unless another time to file such a supplemental petition is
prescribed in the decision. A supplemental petition may be filed
whether or not the mitigated amount designated in the decision on the
original petition is paid.
Sec. 172.42 Supplemental petition decision authority.
(a) Decisions of Fines, Penalties, and Forfeitures Officer.
Supplemental petitions filed on cases where the original decision was
made by the Fines, Penalties, and Forfeitures Officer, shall be
initially reviewed by that official. The Fines, Penalties, and
Forfeitures Officer may choose to grant more relief and issue a
decision indicating same to the petitioner. If the petitioner is
dissatisfied with the further relief granted or if the Fines,
Penalties, and Forfeitures Officers decides to grant no further relief,
the supplemental petition shall be forwarded to a designated
Headquarters official assigned to a field location for review and
decision.
(b) Decisions of Customs Headquarters. Supplemental petitions filed
on cases where the original decision was made by the Chief, Penalties
Branch, Office of Regulations and Rulings, Customs Headquarters, shall
be forwarded to the Director, International Trade Compliance Division,
for review and decision.
(c) Authority of Assistant Commissioner. Any authority given to any
Headquarters official by this part may also be exercised by the
Assistant Commissioner, Office of Regulations and Rulings, or his
designee.
Sec. 172.43 Waiver of statute of limitations.
The deciding official always reserves the right to require a waiver
of the statute of limitations executed by the charged party or parties
as a condition precedent before accepting a supplemental petition in
any case where the statute will be available as a defense to all or
part of that case within one year from the date of decision on the
original petition for relief.
Samuel H. Banks,
Acting Commissioner of Customs.
Approved: January 13, 1998.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 98-2250 Filed 1-30-98; 8:45 am]
BILLING CODE 4820-02-P
