B-194069, APRIL 4, 1979

B-194069, APRIL 4, 1979

PRECIS-UNAVAILABLE

ROBERT E. CHASEN,

DEPARTMENT OF THE TREASURY:

THIS IS IN ANSWER TO A LETTER FROM MR. CALVIN J. DORN, DIRECTOR, ACCOUNTING DIVISION IN YOUR OFFICE OF ADMINISTRATION (REFERENCE FIS-4 12- A:A:O JAC) WHO, UNDER AUTHORITY DELEGATED BY YOU, REQUESTS THAT RELIEF BE GRANTED TO THE REGIONAL COMMISSIONER OF CUSTOMS, NEW YORK, FOR A SHORTAGE IN HIS ACCOUNT AMOUNTING TO $944.50.

THE RECORD ACCOMPANYING THE REQUEST INDICATES THAT ON MARCH 17, 1974, MR. MICHAEL CAMEL TENDERED A PERSONAL CHECK IN THE AMOUNT OF $955.40, DRAWN ON THE PHILADELPHIA NATIONAL BANK, FOR PAYMENT OF CUSTOMS PENALTIES ASSESSED FOR FAILING TO DECLARE MERCHANDISE ON HIS BAGGAGE DECLARATION AT THE JFK AIRPORT. THIS CHECK WAS SUBSEQUENTLY RETURNED BY THE PHILADELPHIA NATIONAL BANK DUE TO INSUFFICIENT FUNDS. A DEBIT VOUCHER WAS ISSUED IN THE AMOUNT OF $955.40 AND AN INVESTIGATION INITIATED TO LOCATE MR. CAMEL AND OBTAIN RESTITUTION.

ON JULY 17, 1974, MR. CAMEL WAS LOCATED AND ADVISED THAT RESTITUTION MUST BE MADE FOR THE DISHONORED CHECK. AT THAT TIME, MR. CAMEL STATED THAT HE WAS UNEMPLOYED AND THEREFORE REQUESTED AND RECEIVED A 3 MONTHS DELAY IN MAKING THE REQUIRED PAYMENT. IN OCTOBER 1974, MR. CAMEL ADVISED CUSTOMS OFFICIALS THAT HE WAS EMPLOYED, BUT WAS UNABLE TO MAKE RESTITUTION BECAUSE OF PRIOR COMMITMENTS. SUBSEQUENTLY, IN JANUARY 1975, ANOTHER ATTEMPT WAS MADE TO OBTAIN RESTITUTION, BUT MR. CAMEL COULD NOT BE LOCATED. FURTHER EFFORTS TO ASCERTAIN MR. CAMEL'S WHEREABOUTS PROVED UNAVAILING. WHILE A LOOKOUT WAS ESTABLISHED AT ALL CUSTOMS LOCATIONS, THE INVESTIGATION WAS TERMINATED AND THE CLAIM CLOSED AS UNCOLLECTABLE. IT IS THE APPARENT PRACTICE OF THE CUSTOMS SERVICE TO HOLD REGIONAL COMMISSIONERS RESPONSIBLE FOR COLLECTION ACCOUNTS, INCLUDING LOSSES IN THOSE ACCOUNTS DUE TO NON- PAYMENT OF CHECKS RECEIVED.

THE COLLECTION OF PAYMENT FOR CUSTOMS PENALTIES IN THE PRESENT CASE IS SUBJECT TO THE PROVISIONS OF TITLE 19 OF THE CODE OF FEDERAL REGULATIONS (C.F.R.), SECTION 24.1(B). THIS SUBSECTION PROVIDES IN PART THAT A CUSTOMS EMPLOYEE MAY ACCEPT A PERSONAL CHECK AT A PIER, TERMINAL, BRIDGE, AIRPORT, OR SIMILAR PLACE, SUBJECT TO CERTAIN IDENTIFICATION REQUIREMENTS SET FORTH IN SECTION 24.1(A). IF THE AMOUNT OF THE COLLECTION IS OVER $100, HE MUST ALSO OBTAIN THE APPROVAL OF THE CUSTOMS OFFICER IN CHARGE. THE CUSTOMS OFFICER IN CHARGE MUST THEN PERSONALLY VERIFY THE IDENTIFICATION DATA AND INDICATE HIS APPROVAL BY INITIALING THE COLLECTION VOUCHER BELOW THE SIGNATURE OF THE CUSTOMS EMPLOYEE WHO APPROVED THE RECEIPT OF THE CHECK. (SEE 19 C.F.R. 24.1(B)(2).). THE RECORD INDICATES THAT IN ACCEPTING MR. CAMEL'S CHECK, THE CUSTOMS OFFICIAL FAILED TO COMPLY WITH THESE PROVISIONS.

UNLIKE THE REQUIREMENTS OF SUBSECTION (A) OF SECTION 24.1 OF THE REGULATIONS WHICH APPARENTLY GOVERN COLLECTIONS OF COMMERCIAL IMPORTATIONS, THERE IS NO REQUIREMENT THAT CUSTOMS OFFICIALS VERIFY THE CREDIT STATUS OF THE INDIVIDUAL TENDERING THE PERSONAL CHECK. THE PRECAUTIONARY PROVISIONS OF SUBSECTION (B) ARE AIMED ONLY AT PROPER IDENTIFICATION OF THE INDIVIDUAL TENDERING A PERSONAL CHECK. SINCE MR. CAMEL WAS PROPERLY IDENTIFIED AND LOCATED ON JULY 17, 1974, THE UNCOLLECTABLE DEBIT IN QUESTION WAS NOT THE DIRECT RESULT OF THE CUSTOMS OFFICIAL'S FAILURE TO COMPLY WITH THE REGULATORY PROVISION.

YOU HAVE DETERMINED THAT THE SHORTAGE IN THE REGIONAL COMMISSIONER'S ACCOUNT RESULTING FROM THE NON-PAYMENT OF MR. CAMEL'S PERSONAL CHECK OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE REGIONAL COMMISSIONER OR ANY EMPLOYEE OF HIS OFFICE. THEREFORE, YOU REQUEST THAT THIS OFFICE RELIEVE THE REGIONAL COMMISSIONER FOR THE $944.50 SHORTAGE PURSUANT TO THE PROVISIONS OF 31 U.S.C. 82A-1 (1976). UNDER SECTION 82A-1 THIS OFFICE IS AUTHORIZED TO GRANT RELIEF TO AN ACCOUNTABLE OFFICER "CHARGED WITH THE RESPONSIBILITY ON ACCOUNT OF FISCAL LOSS OR DEFICIENCY OF GOVERNMENT FUNDS, VOUCHERS, RECORDS, CHECKS, SECURITIES, OR PAPERS IN HIS CHARGE: UPON OUR CONCURRENCE IN DETERMINATIONS BY THE AGENCY HEAD (OR HIS DESIGNEE):

" * * * (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THAT SUCH LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF SUCH OFFICER OR AGENT; AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. * * * "

WE FIND THAT THE LOSS IN THE PRESENT CASE WAS NOT THE DIRECT RESULT OF NEGLIGENCE ON THE PART OF THE REGIONAL COMMISSIONER OR HIS EMPLOYEES. ACCORDINGLY, WE CONCUR IN YOUR DETERMINATION AND GRANT THE RELIEF REQUESTED.