the notice of the liquidated damages incurred, as provided in § 172.1, or within such additional time as may have been granted, the district director of Customs, after required collection action, shall refer the claim promptly to the United States attorney.

(b) Absence from the United States. If it appears that the parties liable for liquidated damages are absent from the United States or during the 60-day period referred to in paragraph (a) of this section were absent for more than 30 days, the district director may withhold such referral for a reasonable time unless other action is expressly authorized by the Commissioner of Customs.

[T.D. 70-249, 35 FR 18267, Dec. 1, 1970, as amended by T.D. 79-160, 44 FR 31962, June 4, 1979]

Subpart B-Application for Relief

§ 172.11 Petition for relief.

(a) To whom addressed. Petitions for relief shall be addressed to the Commissioner of Customs.

(b) Form. A petition for relief need not be in any particular form. Such petition shall set forth the facts relied upon by the petitioner to justify cancellation of the claim for liquidated damages, and shall be signed by the petitioner, his attorney at law, or a customhouse broker representing the petitioner. If the petitioner is a corporation, the petition may be signed by an officer or responsible supervisory employee thereof, an attorney at law, or a customhouse broker representing the corporation.

[T.D. 70-249, 35 FR 18267, Dec. 1, 1970, as amended by T.D. 73-141, 38 FR 13556, May 23, 1973]

§ 172.12 Filing of petition for relief.

(a) Where filed. A petition for relief shall be filed with the district director of Customs for the district in which the liability for liquidated damage is incurred.

(b) When filed. A petition for relief shall be filed within 60 days from the date of mailing of the notice of the liability for liquidated damages incurred

unless an extension of such period has been granted by the district director.

(c) Number of copies. The petition for relief shall be filed in triplicate.

Subpart C-Action on Petitions

§ 172.21 Petitions acted on by district director of Customs.

The district director may cancel any claim for liquidated damages incurred on such terms and conditions as, under the law and in view of the circumstances, he shall deem appropriate when the claim is $50,000 or less.

[T.D. 73-308, 38 FR 30550, Nov. 6, 1973]

§ 172.22 Special cases acted on by district director of Customs.

(a) Nonproduction of documents in general. District directors are hereby authorized to treat any bond charge for the production of a missing document as satisfied upon payment by the principal or surety of the sum of $25 as liquidated damages for each missing declaration of the consignee or other document, except shippers' export declarations and special Customs and commercial invoices, not produced within the time prescribed by law or regulations or any lawful extension of such time.

(b) Nonproduction of Special Customs Invoices or commercial invoices. If a required Special Customs Invoice, Customs Form 5515, or a commercial invoice is not produced (1) on the date the entry or entry summary is filed. (2) within 6 months after the date the entry or entry summary is required to be filed, or (3) if the invoice is needed for statistical purposes, within 50 days after the date the entry or entry summary is required to be filed, then unless the production is waived under the provisions of § 141.92 of this chapter, the bond charge for the production thereof may be canceled by the district director upon the payment of $25 as liquidated damages, if:

(i) The party who made the entry submits an application for relief explaining in detail why the special Customs or commercial invoice could not be produced within the prescribed period; and

(ii) The district director of Customs is satisfied by such application or otherwise that the failure to produce the invoice within the prescribed period was due to causes wholly beyond the control of the party making the entry and not to any purpose of the foreign seller or shipper to withhold information required by law, regulation, or special instruction to be shown on the invoice.

(c) Nonproduction of free-entry or reduced-duty documents. When free entry or the application of a reduced rate of duty is dependent upon the production of a document which the importer fails to produce, or when a conditionally free or reduced duty provision claimed on entry is held to be inapplicable, the claim for free entry or reduced rate of duty shall be treated by the district director as abandoned upon the assessment and payment of duty and the bond (or, in the case of a term bond, the charge against the bond) given for the production of the free-entry or reducedduty document may be cancelled without the collection of liquidated damages.

(d) Failure to file timely entry summary after release under entry of immediate delivery permit. If a timely entry summary for merchangdise not subject to quota has not been filed after release under an entry or a special permit for immediately delivery, the district director may act upon an application for relief from liquidated damages assessed in accordance with §§ 142.15 or 142.27, respectively, of this chapter as follows:

(1) If he is satisfied that the delay was not deliberate, the district director may cancel such liquidated damages upon the payment of an appropriate sum which shall not exceed 10 percent of the duty assessed but not less than $25. In general, the district director shall not cancel a claim for liquidated damages upon payment of an amount in the lower range of his discretion if the entry is late by more than 3 working days. In determining the appropriate amount the district director shall take into consideration the following:

(i) The circumstances causing the delay;

(ii) The extent of the lateness; (iii) The amount of duty involved; and

(iv) The past record of the importer with respect to the timeliness of filing entries.

(2) If he is satisfied that the violation was incurred solely because of a delay in the return by Customs to the importer of documents necessary to make entry, the district director may cancel such liquidated damages without payment.

(3) If collection of an amount greater than that provided by this paragraph appears warranted the case shall be forwarded to the Commissioner of Customs for disposition.

(R.S. 251, as amended, sec. 623, 624, 46 Stat. 759, as amended (19 U.S.C. 66, 1623, 1624)) [T.D. 70-249, 35 FR 18267, Dec. 1, 1970, as amended by T.D. 75-229, 40 FR 43026, Sept. 18, 1975; T.D. 77-27, 42 FR 3162, Jan. 17, 1977; T.D. 79-221, 44 FR 46830, Aug. 9, 1979] § 172.23 Limitations on consideration of petitions.

No action looking to relief from the payment of full liquidated damages shall be taken on any petition, irrespective of the amount involved, if the claim has been referred to the U.S. attorney for collection as provided in § 172.2.

Subpart D-Disposition of Petitions

§ 172.31 Act or omission did not occur.

(a) Definite. If it is definitely determined that the act or omission forming the basis for a claim for liquidated damages did not in fact occur, the claim shall be cancelled by the district director. If the liquidated damages have already been paid, they shall be refunded by the regional commissioner of Customs, and an appropriate notation shall be made on Customs Form 5955-A, if the transaction has already been recorded thereon.

(b) Dependent upon a construction of law. When the determination of whether or not the claim was erroneously made depends upon a construction of law, the claim shall not be cancelled without the approval of the Commissioner of Customs, unless

there is in force a ruling decisive of the issue.

(c) Doubtful cases. Approval of the Commissioner of Customs shall be requested in all doubtful cases.

[T.D. 74-227, 39 FR 32023, Sept. 4, 1974]

§ 172.32 Limitation on time decision effective.

A decision to cancel a claim for liquidated damages on condition that a stated amount be paid shall be effective for not more than 60 days from the date of notice to the parties of such decision, unless the decision itself prescribes a different effective period or the decision is later amended to change the effective period. If payment of the stated amount is not made, or arrangements made for delayed payment or installment payments, or a supplemental petition filed, within the effective period, the full claim for liquidated damages shall be deemed applicable and, after required collection action, shall be promptly referred to the U.S. attorney unless other action has been directed by the Commissioner of Customs.

[T.D. 70-249, 35 FR 18267, Dec. 1, 1970, as amended by T.D. 79-160, 44 FR 31962, June 4, 1979]

§ 172.33 Supplemental petitions for relief.

(a) Time and place of filing. If the interested parties are not satisfied with a decision of the district director or the Commissioner of Customs, a supplemental petition may be filed with the district director of Customs by the interested parties. Such a petition shall be filed either:

(1) Within 60 days from the date of notice to the petitioner of the decision on the initial petition for relief if no effective period is prescribed in the decision: or

(2) Within the time prescribed in the decision on the initial petition for relief as the effective period of the decision.

(b) Consideration-(1) Decisions of the district director. Where the district director has authority to grant relief in accordance with the provisions of §§ 172.21 and 172.22, he may grant additional relief if he believes it is warranted. If there has been a spe

§ 173.1 Authority to review for error.

District directors, or in the New York Customs Region, the Regional Commissioner of Customs, have broad responsibility and authority to review transactions to ensure that the rate and amount of duty assessed on imported merchandise is correct and that the transaction is otherwise in accordance with the law. This authority extends to errors in the construction of a law and to errors adverse to the Government as well as the importer.

[T.D. 70–181, 35 FR 13429, Aug. 22, 1970, as amended by T.D. 79-221, 44 FR 46830, Aug. 9, 1979]

§ 173.2 Transactions which may be reviewed and corrected.

The district director may review transactions for correctness, and take appropriate action under his general authority to correct errors, including those in appraisement where appropriate, at the time of:

(a) Liquidation of an entry;

(b) Voluntary reliquidation completed within 90 days after liquidation;

(c) Voluntary correction of an exaction within 90 days after the exaction was made;

(d) Reliquidation made pursuant to a valid protest covering the particular merchandise as to which a change is in order; or

(e) Modification, pursuant to a valid protest, of a transaction or decision which is neither a liquidation or reliquidation.

§ 173.3 Voluntary reliquidation.

(a) Authority to reliquidate. The district director within 90 days from the date notice of the original liquidation is given to the importer, consignee, or agent, may reliquidate on his own initiative a liquidation or a reliquidation to correct errors in appraisement, classification, or any other element entering into the liquidation or reliquidation, including errors based on misconstruction of applicable law. A voluntary reliquidation may be made even though a protest has been filed, and whether the error is discovered by the district director or is brought to his attention by an interested party.

(b) Notice of reliquidation. Notice of a voluntary reliquidation shall be given in accordance with the requirements for giving notice of the original liquidation.

(Sec. 501, 46 Stat. 730, as amended; 19 U.S.C. 1501)

§ 173.4 Correction of clerical error, mistake of fact, or inadvertence.

(a) Authority to review and correct. Even though a valid protest was not filed, the district director, upon timely application, may correct pursuant to section 520(c)(1), Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1), a clerical error, mistake of fact, or other inadvertence meeting the requirements of paragraph (b) of this section, by reliquidation or other appropriate

action.

(b) Transactions which may be corrected. Correction pursuant to section 520(c)(1), Tariff Act of 1930, as amended, (19 U.S.C. 1520(c)(1), may be made in any entry, liquidation, or other Customs transaction if the clerical error, mistake of fact, or other inadvertence:

(1) Does not amount to an error in the construction of a law;

(2) Is adverse to the importer; and (3) Is manifest from the record or established by documentary evidence.

(c) Limitation on time for application. A clerical error, mistake of fact, or other inadvertence meeting the requirements of paragraph (b) of this section shall be brought to the attention of the district director at the port of entry, or in the New York Customs Region, the Regional Commissioner of Customs, within 1 year after the date of liquidation or execution.

(d) "Liquidation" includes reliquidation. "Liquidation" when used in section 520(c)(1), Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)), and in this section, includes reliquidation of an entry.

(Sec. 520, 46 Stat. 739, as amended; 19 U.S.C. 1520)

[T.D. 70-181, 35 FR 13429, Aug. 22, 1970, as amended by T.D. 79-221, 44 FR 46830, Aug. 9, 1979]

§ 173.5 Review of entry covering household or personal effects.

An error in the liquidation of an entry covering household or personal effects may be corrected by the district director even though a timely protest was not filed if an application for refund is filed with the district director within 1 year after the date of the entry and no waiver of compliance with applicable regulations is involved other than a waiver which the district director has authority to grant. Where the district director has no authority to grant the waiver, the application shall be referred to the Commissioner of Customs.

(Sec. 520, 46 Stat. 739, as amended; 19 U.S.C. 1520)

Sec.

174.26 Review of protests after application for further review.

174.27 Disposition after further review. 174.28 Consideration of additional argu

ments.

174.29 Allowance or denial of protests. 174.30 Notice of denial of protest.

174.31 Judicial review of denial of protest. 174.32 Publication.

AUTHORITY: R.S. 251, as amended, sec. 624. 46 Stat. 759; 19 U.S.C. 66, 1624. Subpart B also issued under sec. 514, 46 Stat. 736. as amended; 19 U.S.C. 1514. Subpart C also issued under sec. 515, 46 Stat. 736. as amended; 19 U.S.C. 1515.

SOURCE: T.D. 70-181, 35 FR, 13429, Aug. 22, 1970, unless otherwise noted.

§ 174.0 Scope.

This part deals with the administrative review of decisions of the district director, including the requirements for the filing of protests against such decisions, amendment of protests, review and accelerated disposition, and provisions dealing with further administrative review.

Subpart A-General Provisions

§ 174.1 Definitions.

When used in this part, the following terms shall have the meaning indicated:

(a) District director. "District director" means the district director of Customs at a headquarters port other than the port of New York, N.Y., and the regional commissioner of Customs for Customs Region II at the port of New York, N.Y.

(b) Further review. "Further review" means review of the decision which is the subject of the protest by Customs officers on a level higher than the district, and in Region II by Customs officers who did not participate directly in the decision which is the subject of the protest.

174.21 Time for review of protests. 174.22 Accelerated disposition of protests. 174.23 Further review of protests. 174.24 Criteria for further review. 174.25 Application for further review.

§ 174.2 Applicability of provisions.

(a) In general. The provisions of this part shall be applicable to protests against decisions involving:

(1) Articles excluded from entry or entered or withdrawn from warehouse for consumption on or after October 1. 1970;