CBP Issues Penalty Assessment and Mitigation Guidelines for Failure to Comply with Electronic APIS Manifest Requirements for Vessels and Aircraft

These guidelines are effective December 7, 2005, and provide for the assessment and mitigation of penalties for the failure to timely comply with CBP's electronic Advance Passenger Information System (APIS) manifest regulations, or for omitting or providing inaccurate or invalid electronic APIS manifest information, for passengers, crew, and/or non-crew members on board commercial aircraft and commercial vessels arriving in, or departing from, the U.S.

(See ITT's Online Archives or 04/08/05 news, 05040830 for BP summary of CBP final rule (CBP Dec. 05-12) containing these electronic APIS manifest regulations. See ITT's Online Archives or 01/04/02 news, 02010425 for BP summary of Customs' interim rule (TD 02-01) on these regulations.)

Highlights of APIS Penalty Assessment and Mitigation Guidelines

Penalties for electronic manifest violations by commercial aircraft arriving in, or departing from, the U.S.For electronic APIS manifest violations, the maximum civil monetary penalty is $5000 per passenger, crewmember, or all-cargo flight non-crewmember for each arrival or departure. In addition, an aircraft involved in the violation could be seized and forfeited in certain situations involving a lack of information or a lack of an international carrier's bond, etc.

Mitigation for non-C-TPAT vs. certified C-TPAT. The first violation for a non-C-TPAT member may be mitigated to an amount between $500 and $1500 for each $5000 penalty assessed. For a first violation for a certified C-TPAT member, the mitigation may be $250 or to a lesser amount (e.g. $200, $150, etc.) for each $5000 penalty assessed.

Subsequent violations of the same type, involving the same regulation, committed more than 30 days after the issuance of the notice of penalty for the first violation, which Is not remitted in full, may be mitigated to an amount between $500 and $2500 for each $5000 penalty assessed for non-C-TPAT members. For certified C-TPAT members, the mitigation may be to $250, or to a lesser amount (e.g. $200, $150, etc.) for each $5000 penalty assessed. However, there is no mitigation for subsequent violations for failing to transmit at all a required manifest to CBP, whether or not the violator is a certified C-TPAT member.

Penalties for electronic manifest violations by commercial vessels arriving in, or departing from, the U.S. For electronic APIS manifest violations, the civil monetary penalty is $5000 against the master of the vessel for the first violation, and $10,000 against the same master for each subsequent violation of the same type. For each arrival or departure, the penalty may not exceed these amounts. In addition, any conveyance used in connection with such violation is subject to seizure and forfeiture in certain situations involving a lack of information or a lack of an international carrier's bond, etc.

Mitigation for non-C-TPAT vs. certified C-TPAT. The first violation for a non-C-TPAT member may be mitigated to an amount between $1000 and $3500. For a first violation for a certified C-TPAT member, the mitigation may be to $500 or to a lesser amount (e.g. $400, $300, etc.).

Subsequent violations by the same master of the vessel are of the same regulation and involve the same type of violation within each regulation, are committed more than 30 days after the issuance of the notice of penalty for the first violation, which is not remitted in full. Mitigation may be to an amount between $3500 and $5000 for a non-C-TPAT member. For a certified C-TPAT member, the mitigation may be to $1750, or to a lesser amount (e.g. $1500, $1250, $1000, etc.) However, there is no mitigation for subsequent violations for failing to transmit at all a required manifest to CBP, whether or not the violator is a certified C-TPAT member.

Mitigating factors (vessels and aircraft). CBP lists the following mitigating factors:

• inexperienced in transmitting advance electronic manifest information
• a general good performance and low error rate with regards to electronic transmission of manifest information.
• demonstrated remedial action has been take to prevent future violations.

Aggravating factors (vessels and aircraft). CBP lists the following aggravating factors:

• lack of cooperation with CBP or CBP activity is impeded with regard to the case.
• there is a rising error rate, indicative of deteriorating performance in the transmission of manifest information.
• evidence of smuggling or attempt to introduce to introduction of passenger, crew member or non-crew member contrary to law. This may be considered an extraordinary aggravating factor.
• evidence of link to terrorist activity or organization. This may be considered an extraordinary aggravating factor.

(The CBP Bulletin and CBP sources state that these guidelines replace CBP's earlier, internal guidelines issued on February 22, 2002 and March 28, 2002 for the mitigation of penalties for violations of the APIS interim regulations (T.D. 02-01).)

CBP contact: Herminio M. Castro (202) 572-8700

CBP guidelines (CBP Dec. 05-41) available at http://www.cbp.gov/linkhandler/cgov/toolbox/legal/bulletins_decisions/bulletins_2005/vol39_12072005_no50/39genno50.ctt/39genno50.pdf