TN/TF/W/192  
 
7 May 2013  
(13-2416)  Page: 1/4  
Negotiating Group on Trade Facilitation  Original: English  
 
  ARTICLE 6.2: PENALTY DISCIPLINES 
COMMUNICATION FROM THE UNITED STATES  
 
The following communication dated 6 May 2013 is being circulated at the request of the 
United States for consideration by the NGTF. 
 
 
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  TN/TF/W/192  
 
- 2 - ARTICLE 6.2: PENALTY DISCIPLINES  
Potential revisions 
 
Text as per Revision 15 Potentia l revisions Comments/suggestions 
1  ARTICLE 6.2:  PENALTY DISCIPLINES 2  ARTICLE 6.2:  PENALTY DISCIPLINES  
2.1 Each Member shall ensure that penalties 
for a breach of a customs law, regulation, or 
procedural requirement are imposed only on the 
person(s) responsible for the breach under its laws. 
 No change  
2.2 The penalty imposed shall depend on 
the facts and circumstances of the case, [such as, where applicable, the record of the person in 
its dealings with customs,] and shall be 
commensurate with the degree and severity of the breach. 
 2.2 The penalty imposed shall depend on 
the facts and circumstances of the case, [such 
as, where applicable, the record of the person in 
its dealings with customs,] and shall be 
commensurate with the degree and severity of 
the breach. 
 Some Members have expressed concern with 
the example included in this paragraph.  We are willing to delete that example of a specific 
fact or circumstance that could be considered 
when determining a penalty.  
Can Members agree with this deletion?  
[2.3 Each Member shall ensure that it  
maintains procedures to avoid conflicts of 
interest in the assessment and collection of penalties and duties.]  [No portion of the remuneration of a government official shall be 
calculated as a fixed portion or percentage of 
any penalties or duties assessed or collected.] [other than the rewards approved under the 
national legislation.]
1 
 No change  
                                               
1 This paragraph shall not prohibit a Member from adopting or ma intaining a remuneration system that redistributes penalties or duties collected by a Member to 
individual officials, based on each official’s record in foll owing the Member’s law, regulati ons and procedures, including proc edures to avoid conflicts of interest.  
  TN/TF/W/192  
 
- 3 - Text as per Revision 15 Potentia l revisions Comments/suggestions 
2.4 Each Member shall ensure that when a 
penalty is imposed for a breach of customs 
laws, regulations, or procedural requirements, an explanation in writing is provided to the 
person(s) upon whom the penalty is imposed 
specifying the nature of the breach and the basis for [determining] the penalty [amount].  No change  
[2.5 When a person voluntarily discloses to a 
Member's customs administration the 
circumstances of a breach of a customs law, regulation, or procedural requirement prior to 
the discovery of the breach by the customs 
administration, the Member shall, where appropriate, consider this fact as a potential mitigating factor when establishing a penalty for 
that person.  Where the disclosing person can 
correct the breach, a Member may require that the person correct it within a reasonable period 
of time, including paying, in addition to any 
penalty amount, any duties, taxes, and fees owed.] 
 [2.5 When a person voluntarily discloses to a 
Member's customs administration the 
circumstances of a breach of a customs law, regulation, or procedural requirement prior to 
the discovery of the breach by the customs 
administration, the Member shall is encouraged 
to, where appropriate, consider this fact as a 
potential mitigating factor when establishing a 
penalty for that person.  Where the disclosing 
person can correct the breach, a Member may require that the person correct it within a 
reasonable period of time, including paying, in 
addition to any penalty amount, any duties, taxes, and fees owed. ] 
 We have taken note that some Members have 
raised concerns with having a mandatory 
voluntary disclosure provision, where Customs would need to consider voluntary disclosure as 
a ‘potential’ mitigating factor.  The redraft 
changes this provision to a best endeavor provision. 
Can Members agree to remove the outer 
brackets around this paragraph now that 
is a best endeavor provision? 
 
[2.6 Each Member [shall] [is encouraged to] 
specify a fixed, finite period within which it may 
initiate penalty proceedings in connection with a 
breach of a customs law, regulation, or procedural requirement.] 
 No change    
  TN/TF/W/192  
 
- 4 - Text as per Revision 15 Potentia l revisions Comments/suggestions 
[2.7 For the purpose of Article 6.2, the term 
“penalties” shall mean civil penalties or those 
imposed administratively.]  No change  
[2.8 The provisions of this paragraph shall apply 
[,mutatis mutandis ,] to the penalties imposed 
by Members on traffi c in transit.]     
 No change  
 
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