$1,000 shall be advertised for sale and sold at public auction at the earliest possible date. Within 24 hours after receipt of the appraiser's report the collector shall proceed to give notice by advertisement of the summary sale for such time as he considers reasonable. This notice shall be of sale only and not the notice of seizure and intention to forfeit and sell provided for in § 23.16. The proceeds of the sale shall be held subject to the claims of parties in interest in the same manner as the seized property would have been subject to such claims.

(Sec. 612, 46 Stat. 756; 19 U. S. C. 1612) [13 F. R. 8101, Dec. 18, 1948]

§ 23.19 Transfer of forfeited property to other districts for sale; destruction of forfeited property. (a) Pursuant to the provisions of section 611, Tariff Act of 1930, if the laws of a state in which

immediate sale, the proceeds thereof to be deposited with the court to await the final determination of the condemnation proceedings. Whether such sale be made by the collector or by order of the court, the proceeds thereof shall be held subject to claims of parties in interest to the same extent as the vessel, vehicle, merchandise, or baggage so sold would have been subject to such claim." (Tariff Act of 1930, sec. 612; 19 U. S. C. 1612)

"If the sale of any vessel, vehicle, merchandise, or baggage forfeited under the customs laws in the district in which seizure thereof was made be prohibited by the laws of the State in which such district is located, or if a sale may be made more advantageously in any other district, the Secretary of the Treasury may order such vessel, vehicle, merchandise, or baggage to be transferred for sale in any customs district in which the sale thereof may be permitted. Upon the request of the Secretary of the Treasury, any court may, in proceedings for the forfeiture of any vessel, vehicle, merchandise, or baggage under the customs laws, provide in its decree of forfeiture that the vessel, vehicle, merchandise, or baggage so forfeited, shall be delivered to the Secretary of the Treasury for disposition in accordance with the provisions of this section. If the Secretary of the Treasury is satisfied that the proceeds of any sale will not be sufficient to pay the costs thereof, he may order a destruction by the customs officers: Provided, That any merchandise forfeited under the customs laws, the sale or use of which is prohibited under any law of the United States or of any State, may, in the discretion of the Secretary of the Treasury, be destroyed, or remanufactured into an article that is not prohibited, the resulting article to be disposed of to the profit of the United States only." (Tariff Act of 1930, sec. 611; 19 U. S. C. 1611)

property is seized and forfeited prohibit the sale of such property, or if the Commissioner is of the opinion that the sale of forfeited property may be made more advantageously in another customs district, the property shall be moved to and sold in such other customs district as the Commissioner may direct provided it has been cleared for sale pursuant to the regulations of the General Services Administration applicable to the Bureau of Customs.

(b) If, after the summary forfeiture of property is completed, it appears that the proceeds of sale will not be sufficient to pay the costs of sale, the collector, with the consent of the Commissioner, may order the destruction of the property. Similarly, property forfeited under a decree of any court may be destroyed if it is provided in the decree of forfeiture that the property shall be delivered to the Secretary of the Treasury for disposition in accordance with section 611, Tariff Act of 1930.

(Sec. 611, 46 Stat. 755; 19 U. S. C. 1611) [13 F. R. 8101, Dec. 18, 1948, as amended by T. D. 53336, 18 F. R. 5425, Sept. 9, 1953]

§ 23.20 Disposition of proceeds of sale. (a) Expenses incurred by customs officers in connection with seizures and forfeitures shall be paid from the customs appropriation. In the event that the forfeiture property has been authorized for transfer to another Federal agency for official use, the receiving agency shall reimburse the customs appropriation for the costs incurred for moving and storing such property from the date of seizure to the date of delivery. If the property is cleared for sale, the customs appropriation shall be reimbursed from the proceeds of the sale for all expenses paid from such appropriation in connection with the seizure and forfeiture of such property.

(b) If the forfeiture and sale of property is pursuant to court proceedings, or the imposition of a fine or penalty results from a prosecution instituted in a civil or criminal case under the customs laws, the sum recovered, after deducting all proper charges for marshal's fees, court costs, etc., is payable to the collector of customs. Upon receipt of such sum, the collector shall distribute it with

out delay in accordance with section 613, Tariff Act of 1930, as amended."

(Sec. 613, 46 Stat. 756, as amended; 19 U. S. C. 1618) [13 F. R. 8102, Dec. 18, 1948]

§ 23.21 Forfeiture by court decree; reports to United States attorneys. (a) When it is necessary to institute legal proceedings in order to forfeit seized

32 "

* If no application for such remission of restoration is made within three months after such sale, or if the application be denied by the Secretary of the Treasury or the Secretary of Commerce, the proceeds of sale shall be disposed of as follows:

"(1) For the payment of all proper expenses of the proceedings of forfeiture and sale, including expenses of seizure, maintaining the custody of the property, advertising and sale, and if condemned by a decree of a district court and a bond for such costs was not given, the costs as taxed by the court;

"(2) For the satisfaction of liens for freight, charges, and contributions in general average, notice of which has been filled with the collector according to law; and

"(3) The residue shall be deposited with the Treasurer of the United States as a customs or navigation fine." (Tariff Act of 1930, sec. 613, as amended; 19 U. S. C. 1613)

23 Judicial proceedings for the forfeiture of seized merchandise must be instituted within the judicial district in which the selzure was made.

Such proceedings for forfeiture under any law of the United States of a seizure made on the high seas may be prosecuted in any judicial district in which the property so seized is brought and proceedings instituted.

The trial of offenses in criminal cases takes place in the judicial district in which the crime was committed, but when the offense is begun in one district and completed in another, it may be tried in either district.

Offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular state or judicial district, are tried in the judicial district in which the offender is found, or into which he is first brought.

"No suit or action to recover any pecuniary penalty or forfeiture of property accruing under the customs laws shall be instituted unless such suit or action is commenced within five years after the time when the alleged offense was discovered: Provided, That the time of the absence from the United States of the person subject to such penalty or forfeiture, or of any concealment or absence of the property, shall not be reckoned within this period of limitation." (Tariff Act of 1930, sec. 621, as amended; 19 U. S. C. 1621)

"In all suits or actions brought for the forfeiture of any vessel, vehicle, merchandise, or baggage seized under the provisions of any law relating to the collection of duties on imports or tonnage, where tne property is claimed by any person, the burden of proof shall lie upon such claimant; and in all suits

268016-54-30

property, or to forfeit the value of property subject to forfeiture, or to prosecute by a civil or criminal action for any violation of the customs laws, the collector or the principal local officer of the Customs Agency Service shall furnish a report to the United States attorney,"

or actions brought for the recovery of the value of any vessel, vehicle, merchandise, or baggage, because of violation of any such law, the burden of proof shall be upon the defendant: Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged of by the court, subject to the following rules of proof:

"(1) The testimony or deposition of the officer of the customs who has boarded or required to come to a stop or seized a vessel or vehicle, or has arrested a person, shall be prima facie evidence of the place where the act in question occurred.

"(2) Marks, labels, brands, or stamps, indicative of foreign origin, upon or accompanying merchandise or containers of merchandise, shall be prima facie evidence of the foreign origin of such merchandise.

"(3) The fact that a vessel of any description is found, or discovered to have been, in the vicinity of any hovering vessel and under any circumstances indicating contact or communication therewith, whether by proceeding to or from such vessel, or by coming to in the vicinity of such vessel, or by delivering to or receiving from such vessel any merchandise, person, or communication, or by any other means effecting contact or communication therewith, shall be prima facie evidence that the vessel in question has visited such hovering vessel." (Tariff Act of 1930, sec. 615, as amended; 19 U. S. C. 1615)

"Upon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant or his agent; but if it appears that there was reasonable cause for the seizure, the court shall cause a proper certificate thereof to be entered and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution." (28 U. S. C. 2465)

"Execution shall not issue against a collector or other revenue officer on a final judgment in any proceeding against him for any of his acts, or for the recovery of any money exacted by or paid to him and subsequently paid into the Treasury, in performing his official duties, if the court certifies that: (1) probable cause existed; or

(2) the officer acted under the directions of the Secretary of the Treasury or other proper Government officer.

"When such certificate has been issued, the amount of the judgment shall be paid out of the proper appropriation by the Treasury." (28 U. S. C. 2006)

Page 441

in accordance with the provisions of section 603, Tariff Act of 1930, as amended."

(b) When the appraised value of seized property exceeds $1,000 and neither an application to the Bureau for relief nor an offer to pay the domestic value thereof, as provided for in § 23.14, made within a reasonable time, the collector shall report the facts to the United States attorney for the judicial district in which the seizure was made.35

(c) If the appraised value of seized property is less than $1,000 and the claimant gives a bond on customs Form 4615, as provided for in § 23.13, within the statutory period, the collector shall likewise report the case to the United States attorney.

(Secs. 603, 610, 46 Stat. 754, as amended, 755; 19 U. S. C. 1603, 1610) [13 F. R. 8102, Dec. 18, 1948]

§ 23.22 Bonding of seized property; petition to the court. When a claimant desires to file a bond for the release of seized property which is the subject of a court proceeding" he shall be re.ferred to the United States attorney. [18 F. R. 8102, Dec. 18, 1948]

34 "Whenever a seizure of merchandise for violation of the customs laws is made, or a violation of the customs laws is discovered, and legal proceedings by the United States attorney in connection with such seizure or discovery are required, it shall be the duty of the collector or the principal local officer of the Customs Agency Service to report such seizure or violation to the United States attorney for the district in which such violation has occurred, or in which such seizure was made, and to include in such report a statement of all the facts and circumstances of the case within his knowledge, with the names of the witnesses and a citation to the statute or statutes believed to have been violated, and on which reliance may be had for forfeiture or conviction." (Tariff Act of 1930, sec. 603, as amended; 19 U. S. C. 1603)

35 "If the value returned by the appraiser or any vessel, vehicle, merchandise, or baggage so seized is greater than $1,000, the collector shall transmit a report of the case, with the names of available witnesses, to the United States attorney for the district in which the seizure was made for the institution of the proper proceedings for the condemnation of such property." (Tariff Act of 1930, sec. 610; 19 U. S. C. 1610)

38 "Notwithstanding any provisions of law relating to the return on bond of any vessel or vehicle seized for the violation of any law of the United States the court having jurisdiction of the subject matter, may, in its discretion and upon good cause shown by the

§ 23.23 Fines, penalties, and forfei tures; remission of. (a) Every offender under the customs or navigation laws shall be advised of any fine or penalty incurred by him as well as any liability to forfeiture. Whenever possible, customs officers shall inform each interested person of his right to apply for relief under section 618, Tariff Act of 1930," or any other applicable statute authorizing mitigation or remission of penalties.

(b) In the case of smuggling of articles of small value, demand shall be made for an immediate deposit on account of the penalty incurred in an amount equivalent to the domestic value of the articles whether or not a petition for relief is filed. Such demand need not be made in connection with any liability incurred by the master of a vessel

United States, refuse to order such return of any such vessel or vehicle to the claimant thereof. (Internal Revenue Code, sec. 3173 (d); 26 U. S. C. 3173 (d))

The bond prescribed by this section is a substitute for and in lieu of the property released, and the Government, if forfeiture is decreed, is entitled to recover the penal sum of the bond. See U. S. v. Two Trunks, Fed. Cas. 16592.

37 "Whenever any person interested in any vessel, vehicle, merchandise, or baggage seized under the provisions of this Act, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury if under the customs laws, and with the Secretary of Commerce if under the navigation laws, before the sale of such vessel, vehicle, merchandise, or baggage a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury, or the Secretary of Commerce, if he finds that such fine, penalty, or forfeiture, was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto. In order to enable him to ascertain the facts, the Secretary of the Treasury may issue a commission to any customs agent, collector, judge of the United States Customs Court, or nothing in this section shall be construed United States commissioner, to take testimony upon such petition: Provided, That to deprive any person of an award of compensation made before the filing of such petition." (Tariff Act of 1930, sec. 618; 19 U. S. C. 1618)

under the provisions of section 453, Tariff Act of 1930.

(c) Except as provided for in § 23.21 (b), if the person liable for any violation of the customs or navigation laws fails to petition for relief or pay the penalty within 60 days from the date of mailing of the notice of violation as provided for in paragraph (a) of this section, the case shall be referred immediately to the United States attorney for appropriate action, unless it appears that the person liable for the penalty is absent from the United States or during the said period was absent for more than 30 days, in which event the collector may withhold such action for a further reasonable time, or unless other action is expressly authorized by the Bureau. When a penalty is mitigated or a forfeiture remitted upon condition that a stated amount be paid, and the mitigated penalty or stated amount is not paid or a supplemental petition filed within 60 days from the date a notice of the settlement is mailed to the petitioner, the matter shall be referred immediately to the United States attorney for appropriate attention, unless other action has been directed by the Bureau.

(d) No action looking to the remission or mitigation of a fine, penalty, or forfeiture shall be taken on any petition, irrespective of the amount involved, if the case has been referred to the Department of Justice for the institution of legal proceedings.

(e) In the case of vessels or vehicles awarded for official use, a petition shall not be considered unless filled before final disposition of the property is made.

(Sec. 618, 46 Stat. 757; 19 U. S. C. 1618) [13 F. R. 8103, Dec. 18, 1948, as amended by T. D. 52925, 17 F. R. 1517, Feb. 19, 1952]

§ 23.24 Petitions for the remission or mitigation of fines, penalties, and forfeitures, and restoration of proceeds of sale. (a) Any petition for the remission or mitigation of a fine, penalty, or forfeiture incurred under the customs or navigation laws or for the restoration of the proceeds of a sale of property forfeited under the customs laws shall be addressed to the Commissioner of Customs, signed by the petitioner, and filed with the collector of customs of the district in which the property was seized or the fine or penalty imposed. It shall be filed in duplicate or in triplicate, as required by the collector, and shall set forth a description of the property involved;

the date and place of violation or seizure; and the facts relied upon by the petitioner to justify the remission or mitigation. In addition, when the petition is for relief from forfeiture or for the restoration of the proceeds of a sale, it shall show the interest of the petitioner in the property and in appropriate cases shall be supported by bills of sale, contracts, mortgages, or other satisfactory documentary evidence. If the property was in the possession of another person who was responsible for the act which caused the fine, penalty, or forfeiture, evidence shall be produced as to the manner in which the property came into the possession of such other person. Evidence of any investigation made by the petitioner prior to parting with the property shall also be produced, or the reason for the lack of such investigation given.

(b) A petitioner holding a chattel mortgage or conditional sale contract covering seized property shall submit with his petition evidence showing whether, prior to extending credit, he made a thorough investigation of the moral character and financial responsibility of the mortgagor or purchaser of the property and, if so, whether such investigation showed that the mortgagor or purchaser was a good credit risk or disclosed any facts indicating a probability that the property would be used in violation of law.

(c) When the petition is for the restoration of the proceeds of sale under section 613, Tariff Act of 1930, as amended," it shall be filled within 3 months after the date of sale and 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 it.

38 "Any person claiming any vessel, vehicle, merchandise, or baggage, or any interest therein, which has been forfeited and sold under the provisions of this Act, may at any time within three months after the date of sale apply to the Secretary of the Treasury if the forfeiture and sale was under the customs laws, or to the Secretary of Commerce if the forfeiture and sale was under the navigation laws, for a remission of the forfetiture and restoration of the proceeds of such sale, or such part thereof as may be claimed by him. Upon the production of satisfactory proof that the applicant did not know of the seizure prior to the declaration or condemnation of forfeiture, and was in such circumstances as prevented him from knowing of the

(d) If forfeited property the subject of a claim under such section 613 has been authorized for official use, retention or delivery shall be regarded as the sale thereof for the purposes of the abovementioned section, and 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."

(Secs. 613, 618, 46 Stat. 756, as amended, 757, secs. 305, 306, 49 Stat. 880; 19 U. S. C. 1613, 1618, 40 U. S. C. 304), 304k) [13 F. R. 8103, Dec. 18, 1948, as amended by T. D. 53268, 18 F. R. 3095, May 29, 1953]

same, and that such forfeiture was incurred without any willful negligence or intention to defraud on the part of the applicant, the Secretary of the Treasury or the Secretary of Commerce may order the proceeds of the sale. or any part thereof, restored to the applicant, after deducting the cost of seizure and of sale, the duties, if any, accruing on the merchandise or baggage, and any sum due on a lien for freight, charges, or contribution in general average that may have been filed. (Tariff Act of 1930, sec. 613, as amended; 19 U. S. C. 1613)

39 "The appropriation available to any agency for the purchase, hire, operation, maintenance, and repair of property of any kind shall be available for the payment of expenses of operation, maintenance, and repair of property of the same kind received by it under any provision of sections 304g to 3041 of this title for official use; for the payment of any lien recognized and allowed pursuant to law, and for the payment of all moneys found to be due any person upon the duly authorized remission or mitigation of any forfeiture; and for reimbursement of other agencies as hereafter provided. The costs of hauling, transporting, towing, and storage of such property shall be paid by the agency which has seized such property or to which it has been abandoned; and, if such property is later delivered to another agency or official under section 304g, 304h, or 3041 of this title, the latter shall make reimbursement for all such costs incurred prior to the date of delivery to it of such property." (40 U. S. C. 3041)

"Retention or delivery of forfeited or abandoned property under sections 304g to 3041 of this title shall be regarded as the sale thereof for the purpose of laws providing for informer's fees or remission or mitigation of any forfeiture. Any property so acquired when no longer needed for official use shall be disposed of in the same manner as other surplus property." (40 U. S. C. 304k)

§ 23.25 Remission, mitigation, or cancellation by collectors. (a) Fines, penalties, and forfeitures incurred under any law administered by the Bureau of Customs may be mitigated or remitted by the collector of customs concerned in the following cases on such terms and conditions as, under the law and in view of the circumstances, he shall deem appropriate:

(1) Fines and other pecuniary penalties aggregating less than $100 in respect of any one offense.

(2) Penalties incurred under section 439 or 440, Tariff Act of 1930, for failure to transmit or deliver copies of manifests or corrections thereof to comptrollers of customs.

(3) Penalties of $500 each imposed under the Air Commerce Act of 1926, as amended, for failure to manifest merchandise or for landing merchandise without a permit (see § 6.13 (a) of this chapter), provided the value of the merchandise does not exceed $100.

(4) When imported merchandise or the value thereof has become subject to forfeiture and the duty is $100 or less, or the merchandise is nondutiable and valued at $500 or less.

(5) When other merchandise or property has become subject to forfeiture and is valued at $500 or less.

(b) When the collector is satisfied that a failure to obtain advance permission to land an aircraft elsewhere than at an airport of entry, or a failure to furnish advance notice of the intended arrival of an aircraft, was due to circumstances entirely beyond the control of the violator, and there are no other violations of the customs aircraft regulations, the penalty of $500 imposed for each such offense under the Air Commerce Act of 1926, as amended, is hereby remitted. If any such failure, although not due to circumstances entirely beyond the control of the violator, occurred without intent to violate the law, the penalty incurred for faiure to obtain advance permission to land elsewhere than at an airport of entry is hereby mitigated to $10 if advance notice of intended arrival was given; the penalty incurred for failure to give advance notice of arrival, when arrival is made at a designated airport of entry, is hereby mitigated to $25; and the total penalties incurred for failure to obtain advance permission to land elsewhere than at a designated airport of entry and to fur