PART 158—RELIEF FROM DUTIES ON MERCHANDISE LOST, DAMAGED, ABANDONED, OR EXPORTED Authority: 19 U.S.C. 66, 1624, unless otherwise noted. Subpart C also issued under 19 U.S.C. 1563. Source: T.D. 72-258, 37 FR 20171, Sept. 27, 1972, unless otherwise noted. § 158.0 Scope. This part sets forth general rules for granting relief from duties on merchandise which is lost, damaged, abandoned, or exported. Subpart A—Lost or Missing Packages and Deficiencies in Contents of Packages § 158.1 Definition of “permitted” merchandise. For the purpose of this subpart, merchandise is “permitted” when Customs authorizes the carrier bringing the shipment to the port to make delivery to the consignee or the next carrier and: (a) These parties in interest, or their agents, make a joint determination of the quantities being delivered, or, (b) The carrier bringing the shipment to the port, at its option, independently declares the quantities available for delivery by filing with the port director, no later than the close of business on the next working day after a determination of quantities is made, a signed statement that: (1) An independent determination of quantities of merchandise available for delivery has been made, with the date of the determination shown; (2) At least 4 days have elapsed since the consignee or his agent was notified that Customs has authorized delivery; and, (3) The merchandise was and is available for delivery. § 158.2 Shortages in packages released under immediate delivery or entry. An importer may file an entry summary for consumption or an entry summary for warehouse for less than the invoiced and manifested number of packages in a shipment “permitted” and delivered to him or deposited in a bonded warehouse under the immediate delivery procedure in § 142.21 of this chapter, or under the entry documentation in § 142.3(a), if he files with the entry summary a Customs Form 5931 in triplicate. The Customs Form 5931 shall be completed by the importer with attached copies of the dock receipt or other documents evidencing nonreceipt of the lost or missing packages. [T.D. 85-159, 50 FR 38520, Sept. 23, 1985] § 158.3 Allowance for lost or missing packages included in an entry summary. Allowance shall be made in the assessment of duties for lost or missing packages of merchandise included in an entry summary whenever it is established to the satisfaction of the Center director before the liquidation of the entry summary becomes final that the merchandise claimed to be lost or missing was not “permitted.” A claim for such allowance shall be made on Customs Form 5931, in triplicate, executed by the importer and the importing carrier or bonded carrier, as appropriate. When the importing or bonded carrier refuses to execute the Customs Form 5931, a claim may be allowed if the importer properly executes the Customs Form 5931 and attaches copies of the dock receipt or other document evidencing nonreceipt of the lost or missing packages. [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by T.D. 79-221, 44 FR 46829, Aug. 9, 1979; CBP Dec. No. 16-26, 81 FR 93023, Dec. 20, 2016] § 158.4 Liability of carrier for lost or missing packages. Upon a joint determination or independent determination of quantity as set forth in § 158.1 (a) or (b) resulting in the merchandise being “permitted,” the carrier shall be responsible only for any discrepancy between the manifested quantity and the “permitted” quantity. In the case of an importing carrier, when there is a difference between the quantity shown on the inward foreign manifest and the quantity “permitted,” liquidated damages or duties shall be assessed under the provisions of the carrier's bond or under the provisions of section 448, Tariff Act of 1930, as amended (19 U.S.C. 1448), unless the carrier corrects his manifest (see § 4.12 of this chapter). In the case of a bonded carrier, liquidated damages for lost or missing merchandise shall be assessed in accordance with § 18.8 of this chapter. § 158.5 Deficiencies in contents of packages—general. An allowance shall be made in the assessment of duties for deficiencies in the contents of packages when, before the liquidation of the entry becomes final, the importer files: (a) In the case of a concealed shortage, a Customs Form 5931, in triplicate, executed by the importer alone, and the Center director is satisfied as to the validity of the claim; or, (b) In the case of an unconcealed shortage, a Customs Form 5931, in triplicate, executed by both the importer and the importing or bonded carrier, as appropriate. [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by CBP Dec. No. 16-26, 81 FR 93023, Dec. 20, 2016
] § 158.6 Deficiencies in contents of examination packages. Allowance for deficiency in the contents of any examination package reported to the port director by a Customs officer shall be made in the liquidation of the entry. No Customs officer except one making an examination contemplated by section 499, Tariff Act of 1930, as amended (19 U.S.C. 1499), shall report a supposed deficiency to the port director unless it is established to the satisfaction of the reporting officer that the merchandise was not imported. (Sec. 499, 46 Stat. 728, as amended; 19 U.S.C. 1499) § 158.7 Allowance for reduction or loss of merchandise by a natural force or by leakage. Merchandise subject to ad valorem, specific, or compound rates of duty found at the time of importation to be reduced or diminished by a natural force, such as evaporation, or by leakage, shall be appraised in its condition as imported, with an allowance made in the value, weight, quantity, or measure to the extent of the reduction or loss, except when forbidden by law or regulation. (R.S. 251, as amended, sec. 499, sec. 624, 46 Stat. 728, as amended, 759 (19 U.S.C. 66, 1499, 1624)) [T.D. 78-448, 43 FR 53713, Nov. 17, 1978] Subpart B—Damaged or Defective Merchandise § 158.11 Merchandise completely worthless at time of importation. (a) Nonperishable merchandise. (b) Perishable merchandise. (1) An application for such allowance shall be filed with the port director on Customs Form 4315, or its electronic equivalent, in duplicate, within 96 hours after the unlading of the merchandise and before any of the shipment involved has been removed from the pier (or other area permitted under § 142.2(b)(2) of this chapter) pursuant to the entry permit. (2) Should an application filed in accordance with paragraph (b)(1) of this section be withdrawn, the merchandise involved shall thereafter be released upon presentation of an appropriate permit. (3) Allowance in duty shall be made in the liquidation of the entry on such of the merchandise covered by the application as is found by the port director to be entirely without commercial value by reason of damage or deterioration. (Sec. 506, 46 Stat. 732, as amended; 19 U.S.C. 1506) [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by T.D. 76-220, 41 FR 33248, Aug. 9, 1976; CBP Dec. 15-14, 80 FR 61292, Oct. 13, 2015] § 158.12 Merchandise partially damaged at time of importation. (a) Allowance in value. (b) No allowance in specific duties. (Sec. 506, 46 Stat. 732, as amended; 19 U.S.C. 1506) [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by T.D. 89-1, 53 FR 51270, Dec. 21, 1988] § 158.13 Allowance for moisture and impurities. (a) Application by importer Petroleum and petroleum products. (2) Other products. (b) Allowance by Center director. [T.D. 90-78, 55 FR 40167, Oct. 2, 1990, as amended by CBP Dec. 15-14, 80 FR 61292, Oct. 13, 2015; CBP Dec. No. 16-26, 81 FR 93023, Dec. 20, 2016] § 158.14 Perishable merchandise condemned. (a) Application by importer. (b) Allowance in duties. (Sec. 506(2), 46 Stat. 732, as amended; 19 U.S.C. 1506(2)) Subpart C—Casualty, Loss, or Theft While in Customs Custody § 158.21 Allowance in duties for casualty, loss, or theft while in Customs custody. Section 563(a), Tariff Act of 1930, as amended (19 U.S.C. 1563(a)), provides for allowance in duties upon satisfactory proof of the loss or theft of any merchandise while in the public stores, or of the actual injury or destruction, in whole or in part, of any merchandise by accidental fire or other casualty, while in bonded warehouse, or in the public stores, or while in transportation under bond, or while in Customs custody although not in bond, or while within the limits of any port of entry and before having been landed under Customs supervision. Such allowance is subject to the conditions set forth in this subpart. § 158.21a Time period. An abatement or refund of duties shall be made in the case of injury to, or destruction of, merchandise in a bonded warehouse as a result of accidental fire or other casualty only if the fire or casualty occurs within 3 years from the date of importation. [T.D. 79-221, 44 FR 46829, Aug. 9, 1979] § 158.22 Not applicable when allowances made under other provisions. The procedures in this subpart do not apply in cases where allowances in duties are made under subpart A or subpart B of this part, or § 18.6 of this chapter. § 158.23 Filing of application and evidence by importer. Within 30 days from the date of his discovery of the loss, theft, injury, or destruction, the importer shall file an application in duplicate on Customs Form 4315, or its electronic equivalent and within 90 days from the date of discovery shall file any evidence required by § 158.26 or § 158.27. [ T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by CBP Dec. 15-14, 80 FR 61292, Oct. 13, 2015] § 158.24 Place of filing. The application and evidence shall be filed with the director of the port where the loss, theft, injury, or destruction occurred. In the case of total loss of merchandise by fire or other casualty while in transportation under bond, the application and evidence shall be filed with the director of the port at which the transportation entry was made. In the case of partial destruction of or injury to such merchandise, the application and evidence shall be filed with the director of the port of destination, except that if the merchandise is returned to the port at which the transportation entry was made, the application shall be filed at that port. § 158.25 Partial destruction or injury. In the case of partial destruction or injury, no application shall be entertained unless the port director shall have had an opportunity to examine the merchandise or the remainder thereof for the purpose of fixing the percentage of injury or destruction. Whether the duty involved is ad valorem, specific, or compound, the percentage of injury for the purpose of the allowance shall be determined by comparing the market value of comparable sound merchandise with the net salvage value of the injured merchandise computed on the basis of the market value of comparable injured merchandise, such comparison to be made as of the time and place of examination. § 158.26 Loss or theft in public stores. In the case of alleged loss or theft while the merchandise is in the public stores, there shall be filed a declaration of the importer, owner, or ultimate consignee that he did not receive the merchandise and that to the best of his knowledge and belief it was lost or stolen as alleged in the application. If the alleged loss or theft consisted of only a part of an examination package and was discovered after the release of the package from Customs custody, the following evidence shall be submitted: (a) A declaration of each cartman, lighterman, or other carrier handling the package between the public stores and the place of delivery, setting forth the condition of the package at the time of receipt and delivery by him and whether or not there was an abstraction of the merchandise while the package was in his possession. (b) A declaration of the person who first received the package for the importer, owner, or ultimate consignee as to whether or not he examined the package at the time of receipt, and, if so, as to its condition at that time. (c) A declaration of the person who opened the package after release from Customs custody that the alleged missing merchandise was not found by him in the package or elsewhere. § 158.27 Accidental fire or other casualty. In the case of injury or destruction by accidental fire or other casualty, the following evidence shall be submitted: (a) A declaration of the master of the vessel, the conductor or driver of the vehicle, the proprietor of the warehouse, or other person (except a Customs officer) having charge of the merchandise at the time of casualty, stating: (1) The time, place, and nature of such casualty; (2) That the merchandise was on board the vessel or vehicle, in the warehouse, or otherwise in his charge, as the case may be, at the time of the casualty; and (3) That it was totally destroyed and there is no probability of recovering or saving any part thereof, or that it was injured as the result of the casualty. (b) The bill of lading, the entry summary (where appropriate) and the invoice covering the merchandise, or certified copies of the foregoing, unless such documents are already in the possession of the director of the port where the claim is filed. (c) A copy of the insurance appraiser's report, if any. [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by T.D. 79-221, 44 FR 46829, Aug. 9, 1979] § 158.28 Waiver of evidence. The port director may waive the production of any of the evidence required by this subpart if the validity of the claim is otherwise established to his satisfaction. § 158.29 Decision by port director. When the application and evidence have been received and examined by the port director, he shall determine whether the desired abatement or refund of duty shall be made and notify the importer of his decision. § 158.30 Review of port director's decision. (a) Filing of petition. (b) Decision by Commissioner. Subpart D—Destroyed, Abandoned, or Exported Merchandise § 158.41 Destruction of prohibited merchandise. Merchandise regularly entered or withdrawn for consumption in good faith and denied admission into the United States by any Government agency after its release from Customs custody, pursuant to a law or regulation in force on the date of entry or withdrawal for consumption, may be destroyed under Government supervision. In such case, the destroyed merchandise is exempt from duty and any duties collected thereon shall be refunded. In lieu of destruction, the merchandise may be exported under Customs supervision in accordance with § 158.45(c). (Sec. 558(a), 46 Stat. 744, as amended; 19 U.S.C. 1558(a)) § 158.42 Abandonment by importer within 30 days after entry. Allowance in duties for merchandise abandoned to the Government in accordance with section 506(1), Tariff Act of 1930, as amended (19 U.S.C. 1506(1)), shall be subject to the following conditions: (a) Minimum quantity to be abandoned. (b) Application within 30 days. (c) Delivery of merchandise. (d) Identification of merchandise. (e) Segregation and repacking. (Sec. 506, 46 Stat. 732, as amended; 19 U.S.C. 1506) § 158.43 Abandonment or destruction of merchandise in bond. Allowance in duties for merchandise entered under bond destroyed under section 557(c), Tariff Act of 1930, as amended (19 U.S.C. 1557(c)), or for merchandise in bonded warehouse abandoned to the Government under section 563(b), Tariff Act of 1930, as amended (19 U.S.C. 1563(b)), shall be subject to the following conditions: (a) Application by importer. (b) Concurrence of warehouse proprietor. (c) Abandonment Costs. (2) Time period. (d) Destruction Costs. (2) Time period. (e) Action by port director. (Secs. 557, 563, 46 Stat. 744, as amended, 746, as amended; 19 U.S.C. 1557, 1563) [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by T.D. 79-221, 44 FR 46829, Aug. 9, 1979] § 158.44 Disposition of abandoned merchandise. (a) General conditions. (b) Sale of merchandise. (c) Disposition of worthless merchandise. (Secs. 506(1), 563(b), 46 Stat. 732, as amended, 746, as amended; 19 U.S.C. 1506(1), 1563(b) R.S. 251, as amended, sec. 624, 46 Stat. 759 (19 U.S.C. 66, 1624)) [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by T.D. 77-12, 41 FR 56629, Dec. 29, 1976] § 158.45 Exportation of merchandise. (a) From continuous Customs custody. (b) After release from Customs custody. (c) Prohibited merchandise. (d) Not legally marked merchandise. (Sec. 558, 46 Stat. 744, as amended; 19 U.S.C. 1558; R.S. 251, as amended, sec. 624, 46 Stat. 759 (19 U.S.C. 66, 1624)) [T.D. 72-258, 37 FR 20171, Sept. 27, 1972, as amended by T.D. 83-212, 48 FR 46771, Oct. 14, 1983; T.D. 90-51, 55 FR 28191, July 10, 1990]