(g) Penalties
(1) “Information” defined
For purposes of this subsection, the term “information” means any record, statement, declaration, document, or electronically stored or transmitted information or data referred to in subsection (a)(1)(A).
(2) Effects of failure to comply with demand
Except as provided in paragraph (4), if a person fails to comply with a lawful demand for information under subsection (a)(1)(A) the following provisions apply:
(A) If the failure to comply is a result of the willful failure of the person to maintain, store, or retrieve the demanded information, such person shall be subject to a penalty, for each release of merchandise, not to exceed $100,000, or an amount equal to 75 percent of the appraised value of the merchandise, whichever amount is less.
(B) If the failure to comply is a result of the negligence of the person in maintaining, storing, or retrieving the demanded information, such person shall be subject to a penalty, for each release of merchandise, not to exceed $10,000, or an amount equal to 40 percent of the appraised value of the merchandise, whichever amount is less.
(C)
In addition to any penalty imposed under subparagraph (A) or (B) regarding demanded information, if such information related to the eligibility of merchandise for a column 1 special rate of duty under title I, the entry of such merchandise—
(i) if unliquidated, shall be liquidated at the applicable column 1 general rate of duty; or
(ii) if liquidated within the 2-year period preceding the date of the demand, shall be reliquidated, notwithstanding the time limitation in section 1514 or 1520 of this title, at the applicable column 1 general rate of duty;
except that any liquidation or reliquidation under clause (i) or (ii) shall be at the applicable column 2 rate of duty if the Customs Service demonstrates that the merchandise should be dutiable at such rate.
(3) Avoidance of penalty
No penalty may be assessed under this subsection if the person can show—
(A) that the loss of the demanded information was the result of an act of God or other natural casualty or disaster beyond the fault of such person or an agent of the person;
(B) on the basis of other evidence satisfactory to the Customs Service, that the demand was substantially complied with; or
(C) the information demanded was presented to and retained by the Customs Service at the time of entry or submitted in response to an earlier demand.
(4) Penalties not exclusive
Any penalty imposed under this subsection shall be in addition to any other penalty provided by law except for—
(A) a penalty imposed under
section 1592 of this title for a material omission of the demanded information, or
(B) disciplinary action taken under
section 1641 of this title.
(5) Remission or mitigation
A penalty imposed under this section may be remitted or mitigated under section 1618 of this title.
(6) Customs summons
Nothing in this subsection shall limit or preclude the Customs Service from issuing, or seeking the enforcement of, a customs summons.
(7) Alternatives to penalties
(A) In general
(i) has been certified as a participant in the recordkeeping compliance program under subsection (f); and
(ii) is generally in compliance with the appropriate procedures and requirements of the program;
does not produce a demanded record or information for a specific release or provide the information by acceptable alternative means, the Customs Service, in the absence of willfulness or repeated violations, shall issue a written notice of the violation to the recordkeeper in lieu of a monetary penalty. Repeated violations by the recordkeeper may result in the issuance of penalties and removal of certification under the program until corrective action, satisfactory to the Customs Service, is taken.
(B) Contents of notice
A notice of violation issued under subparagraph (A) shall—
(i) state that the recordkeeper has violated the recordkeeping requirements;
(ii) indicate the record or information which was demanded; and
(iii) warn the recordkeeper that future failures to produce demanded records or information may result in the imposition of monetary penalties.
(C) Response to notice
Within a reasonable time after receiving written notice under subparagraph (A), the recordkeeper shall notify the Customs Service of the steps it has taken to prevent a recurrence of the violation.
(D) Regulations
The Secretary shall promulgate regulations to implement this paragraph. Such regulations may specify the time periods for compliance with a demand for information and provide guidelines which define repeated violations for purposes of this paragraph. Any penalty issued for a recordkeeping violation shall take into account the degree of compliance compared to the total number of importations, the nature of the demanded records and the recordkeeper’s cooperation.
References in Text
Title I, referred to in subsec. (g)(2)(C), means title I of act June 17, 1930, ch. 497, as amended, which contains the Harmonized Tariff Schedule of the United States and which is not set out in the Code. See notes preceding section 1202 of this title and Publication of Harmonized Tariff Schedule note set out under section 1202 of this title.
Prior Provisions
Provisions substantially the same, in most respects, as those in this section, were contained in act Oct. 3, 1913, ch. 16, § III, O, 38 Stat. 188, which substantially reenacted the provisions of Customs Administrative Act of June 10, 1890, ch. 407, § 16, 26 Stat. 138, as renumbered and reenacted without other change by the Payne-Aldrich Tariff Act of Aug. 5, 1909, ch. 6, § 28, 36 Stat. 100. Section III of the 1913 act was superseded and more closely assimilated to this section by act Sept. 21, 1922, ch. 356, title IV, § 508, 42 Stat. 968, and repealed by section 643 thereof. Section 508 of the 1922 act was superseded by section 509 of act June 17, 1930, comprising this section, and repealed by section 651(a)(1) of the 1930 act.
Prior provisions similar to those in this section and section 1510 of this title were made by R.S. §§ 2922–2924, repealed by section 29 of the Customs Administrative Act of 1890, 26 Stat. 141.
Amendments
2002—Subsec. (b)(6). Pub. L. 107–210 added par. (6).
1996—Subsec. (a)(2). Pub. L. 104–295, § 3(a)(1), substituted “(d)(1)(A)” for “(c)(1)(A)” in concluding provisions.
Subsec. (b)(3), (4). Pub. L. 104–295, § 3(a)(10), substituted “officer designated pursuant to regulations” for “appropriate regional commissioner”.
1993—Subsec. (a). Pub. L. 103–182, § 615(1)(A), substituted “, fees and taxes” for “and taxes” in two places in introductory provisions.
Subsec. (a)(1). Pub. L. 103–182, § 615(1)(B), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “examine, or cause to be examined, upon reasonable notice, any record, statement, declaration or other document, described in the notice with reasonable specificity, which may be relevant to such investigation or inquiry;”.
Subsec. (a)(2)(A). Pub. L. 103–182, § 615(1)(C), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “the person who imported, or knowingly caused to be imported, merchandise into the customs territory of the United States,”. See Construction of 1993 Amendment note below.
Subsec. (a)(2)(A)(ii). Pub. L. 103–182, § 205(b), amended generally cl. (ii), as amended by Pub. L. 103–182, § 615(1)(C). Prior to amendment, cl. (ii) read as follows: “exported merchandise, or knowingly caused merchandise to be exported, to Canada,”. See Construction of 1993 Amendment note below.
Subsec. (a)(2)(B), (C). Pub. L. 103–182, § 615(1)(C), amended subpars. (B) and (C) generally. Prior to amendment, subpars. (B) and (C) read as follows:
“(B) any officer, employee, or agent of such person,
“(C) any person having possession, custody, or care of records relating to such importation, or”.
Subsec. (a)(2)(D). Pub. L. 103–182, § 615(1)(D), substituted a semicolon for comma at end.
Subsecs. (b), (c). Pub. L. 103–182, § 615(2), (3), added subsec. (b) and redesignated former subsec. (b) as (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 103–182, § 615(2), redesignated subsec. (c) as (d).
Subsec. (d)(1)(A). Pub. L. 103–182, § 615(4)(A), substituted “those” for “statements, declarations, or documents” in introductory provisions.
Subsec. (d)(1)(C)(i). Pub. L. 103–182, § 615(4)(B), inserted “, unless such customhouse broker is the importer of record on an entry” after “broker”.
Subsec. (d)(2)(B). Pub. L. 103–182, § 615(4)(C), (D), substituted “the transactions described in section 1508 of this title” for “the import transactions”.
Subsec. (d)(4)(A). Pub. L. 103–182, § 615(4)(E), inserted “, fees,” after “duties”.
Subsec. (d)(4)(B). Pub. L. 103–182, § 615(4)(C), (D), substituted “the transactions described in section 1508 of this title” for “the import transactions”.
Subsecs. (e) to (g). Pub. L. 103–182, § 615(5), added subsecs. (e) to (g).
1986—Subsec. (a)(2). Pub. L. 99–570, § 3117(1), substituted “as defined in subsection (c)(1)(A)” for “required to be kept under section 1508 of this title” in concluding provisions.
Subsec. (c)(1)(A). Pub. L. 99–570, § 3117(2), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “The term ‘records’ includes statements, declarations, or documents required to be kept under section 1508 of this title.”
1978—Pub. L. 95–410 substituted subsec. (a) to (c) provisions for examination of books and witnesses for prior provisions for examination of importer and others, which authorized appropriate customs officers to issue citations for examination under oath of any owner, importer, consignee, agent, or other person upon any material matter or thing respecting any imported merchandise then under consideration or previously imported within one year, in ascertaining the classification or the value thereof or the rate or amount of duty and to require production of any letters, accounts, contracts, invoices, or other documents relating to the merchandise, and the reduction of the testimony to writing, required the testimony to be filed and preserved under Customs Court rules, and authorized consideration of the evidence in subsequent proceedings relating to the merchandise.
1970—Pub. L. 91–271 substituted “Appropriate customs officer” for “Collectors and appraisers”.
1948—Act June 25, 1948, struck out “and judges and divisions of the United States Customs Court” after “Collectors and appraisers” in first sentence.
Effective Date of 2002 Amendment
Amendment by Pub. L. 107–210 applicable to petitions for certification filed under part 2 or 3 of subchapter II of chapter 12 of this title on or after the date that is 90 days after Aug. 6, 2002, except as otherwise provided, see section 151 of Pub. L. 107–210, set out as a note preceding section 2271 of this title.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104–295 applicable as of Dec. 8, 1993, see section 3(b) of Pub. L. 104–295, set out as a note under section 1321 of this title.
Effective Date of 1993 Amendment
Amendment by section 205(b) of Pub. L. 103–182 effective on the date the North American Free Trade Agreement enters into force with respect to the United States [Jan. 1, 1994], see section 213(b) of Pub. L. 103–182, set out as an Effective Date note under section 3331 of this title.
Effective Date of 1970 Amendment
For effective date of amendment by Pub. L. 91–271, see section 203 of Pub. L. 91–271, set out as a note under section 1500 of this title.
Effective Date of 1948 Amendment
Act June 25, 1948, ch. 646, § 38, 62 Stat. 992, provided that the amendment made by that act is effective Sept. 1, 1948.
Construction of 1993 Amendment
Amendment by section 205(b) of Pub. L. 103–182 to be made after amendment by section 615 of Pub. L. 103–182 is executed, see section 212 of Pub. L. 103–182, set out as a note under section 58c of this title.
Transfer of Functions
For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Security, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended generally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6.