[Code of Federal Regulations]

[Title 19, Volume 1]

[Revised as of April 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 19CFR123.9]



[Page 653-655]

 

                        TITLE 19--CUSTOMS DUTIES

 

   CHAPTER I--BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF 

              HOMELAND SECURITY; DEPARTMENT OF THE TREASURY

 

PART 123_CUSTOMS RELATIONS WITH CANADA AND MEXICO--Table of Contents

 

                      Subpart A_General Provisions

 

Sec.  123.9  Explanation of a discrepancy in a manifest.



    (a) Provisions applicable--(1) Overages. If any merchandise 

(including sea stores or its equivalent) is found on board a vessel or 

vehicle arriving in the U.S. that is not listed on a manifest filed in 

accordance with Sec.  123.5 of this part, or after having been unladen 

from such vessel or vehicle, is found not to have been included or 

described in the manifest or does not agree therewith (an overage), the 

master, person in charge, or owner of the vessel or vehicle or any 

person directly or indirectly responsible for the discrepancy is subject 

to such penalties as are prescribed in section 584, Tariff Act of 1930, 

as amended (19 U.S.C. 1584), and any such merchandise belonging or 

consigned to the master, person in charge, or owner of the vehicle is 

subject to seizure and forfeiture.

    (2) Shortages. If merchandise is manifested but not found on board a 

vessel or vehicle arriving in the U.S. (a shortage), the master, person 

in charge, or owner of the vessel or vehicle or any person directly or 

indirectly responsible for the discrepancy is subject to such penalties 

as are prescribed in section 584, Tariff Act of 1930, as amended (19 

U.S.C. 1584).

    (3) Failure to file a manifest. The master or person in charge of a 

vessel or vehicle arriving in the U.S. or the U.S. Virgin Islands who 

fails to present a manifest to Customs is liable for civil penalties as 

are provided by law, and the conveyance used in connection with the 

failure to file is subject to seizure and forfeiture. A criminal 

conviction for intentional failure to file shall make the master or 

person in charge liable for criminal penalties, as provided by statute, 

and if any merchandise is found or determined to have



[[Page 654]]



been on board (other than sea stores or the equivalent for vehicles), 

the importation of which is prohibited, additional penalties may apply.

    (b) Report of discrepancies--(1) Discrepancies discovered by master, 

person in charge, owner, agent, or person directly or indirectly 

responsible. The master, person in charge, owner, or agent of the vessel 

or vehicle, or any person directly or indirectly responsible for any 

discrepancy between the merchandise and the manifest, shall report any 

discrepancy to the port director within 60 days after the date of 

arrival by completing a report for an overage or a declaration for a 

shortage. The overage report or shortage declaration may be made on the 

appropriate manifest form, as listed in Sec.  123.4, or on Customs Form 

5931, Discrepancy Report and Declaration. If no manifest has been filed, 

an original copy of the appropriate form, as listed in Sec.  123.4, 

should be used. In each case in which a manifest form is used, the form 

shall be marked or stamped ``Overage Report'' or ``Shortage 

Declaration'', as appropriate. The form used shall list the merchandise 

involved and state the reasons for the discrepancy.

    (2) Discrepancies discovered by Customs. The port director 

immediately shall advise the master, person in charge, owner, agent, or 

any person directly or indirectly responsible for the discrepancy 

between the merchandise and the manifest of any discrepancy discovered 

by Customs officers which has not been reported. The person so notified 

shall file an explanation of the discrepancy, as required by paragraph 

(b)(1) of this section, within 30 days of notification, or within 60 

days after arrival of the vessel or vehicle, whichever is later. The 

port director may notify the master, person in charge, owner, agent, or 

any person directly or indirectly responsible for the discrepancy by 

furnishing a copy of Customs Form 5931 to that person, or by any other 

appropriate written means. Use of Customs Form 5931 shall not preclude 

assessment of any penalty or liability to forfeiture otherwise incurred.

    (c) Statement on report of discrepancy required. The overage report 

or shortage declaration shall bear the following statement signed by the 

master of the vessel, the person in charge of the vehicle, the owner of 

the vessel or vehicle, an authorized agent, or the person directly or 

indirectly responsible for the discrepancy:



    I declare to the best of my knowledge and belief that the 

discrepancy described herein occurred for the reasons stated. I also 

certify that evidence to support a claim of nonimportation or proper 

disposition of merchandise will be retained in the carrier's files for a 

period of at least one year from the date of this report of discrepancy 

and will be made available to Customs upon demand.



    (d) Action on the discrepancy report. (1) In accordance with the 

proviso to 19 U.S.C. 1584, no penalty shall be incurred under that 

section if--

    (i) The manifest discrepancy relates only to a shortage;

    (ii) There is timely filing of the discrepancy report;

    (iii) There has been no loss of revenue;

    (iv) The port director is satisfied that the discrepancy resulted 

from clerical error or other mistake; and

    (v) In the case of a discrepancy not reported initially by the 

master, person in charge, owner, agent, or the person directly or 

indirectly responsible, the port director is satisfied that there is a 

valid reason for failure to file the discrepancy report.

    (2) If the criteria in paragraph (d)(1) of this section are not met, 

applicable penalties under 19 U.S.C. 1584 shall be assessed.

    (3) Any penalty or liability to forfeiture incurred under 19 U.S.C. 

1584 may be mitigated or remitted under section 618, Tariff Act of 1930, 

as amended (19 U.S.C. 1618).

    (e) Penalty assessment. For the purpose of assessing penalties under 

19 U.S.C. 1584, the value of the merchandise shall be determined as 

described in section 162.43 of this chapter.

    (f) Lack of knowledge does not relieve liability. The fact that the 

master of the vessel, the person in charge of the vehicle, or the owner 

of the vessel or vehicle had no knowledge of a discrepancy shall not 

relieve the master, the person in charge, or the owner from a penalty, 

or the vessel or vehicle from liability to forfeiture, incurred under 19 

U.S.C. 1584.



[[Page 655]]



    (g) Clerical error or other mistake defined. For the purpose of this 

section, the term ``clerical error or other mistake'' is defined as a 

non-negligent, inadvertent, or typographical mistake in the preparation, 

assembly, or submission of manifests. However, repeated similar manifest 

discrepancies by the same persons may be considered the result of 

negligence and not clerical error or other mistake.



[T.D. 80-236, 45 FR 64172, Sept. 29, 1980, as amended by T.D. 93-96, 58 

FR 67318, Dec. 21, 1993]