[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2412-2414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1327]



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DEPARTMENT OF THE TREASURY

Customs Service

19 CFR PART 4

[T.D. 96-11]
RIN 1515-AB37


Preliminary Vessel Entry and Permits to Lade and Unlade

AGENCY: U.S. Customs Service, Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document amends the Customs Regulations regarding the 
preliminary entry of vessels arriving in ports of the United States and 
the granting of permits for the lading and unlading of merchandise from 
those vessels. The Customs Regulations regarding this subject are being 
amended to accurately reflect recent changes to the underlying 
statutory authority, enacted as part of the Customs Modernization Act.

EFFECTIVE DATE: February 26, 1996.

FOR FURTHER INFORMATION CONTACT: William Scopa, Office of Field 
Operations, 202-927-3112 (operational matters), or Larry L. Burton, 
202-482-6940 (legal matters).

SUPPLEMENTARY INFORMATION:

Background

    On December 8, 1993, amendments to certain Customs and navigation 
laws became effective as the result of the President signing Pub. L. 
103-182, Title VI of which is popularly known as 2 the Customs 
Modernization Act (the Act). Sections 653 and 656 of the Act 
significantly amended the statutes governing the entry and the lading 
and unlading of vessels in the United States. These operations are 
governed, respectively, by sections 434 and 448 of the Tariff Act of 
1930, as amended (19 U.S.C. 1434 and 1448).
    Prior to these amendments, the entry of vessels of the United 
States and vessels of foreign countries had been 

[[Page 2413]]
governed by separate statutes (19 U.S.C. 1434 and 1435), neither of 
which included elements concerning preliminary vessel entry or the 
boarding of vessels. The Act repealed section 1435 and amended section 
1434 to provide for the entry of American and foreign-documented 
vessels under the same statute. Additionally, the amended section 1434 
now provides authority for the promulgation of regulations regarding 
preliminary vessel entry, and while neither mandating boarding for all 
vessels nor specifying that optional boarding must be accomplished at 
any particular stage of the vessel entry process, the amended law does 
require that a sufficient number of vessels be boarded to ensure 
compliance with the laws enforced by the Customs Service.
    Section 1448 had previously linked the granting of preliminary 
vessel entry to a mandatory boarding requirement and the physical 
presentation of manifest documents to the Customs boarding officer. The 
amended section 1448 no longer contains provisions regarding 
preliminary vessel entry, vessel boarding, or manifest presentation, 
matters which are now provided for in other statutes. Section 1448 now 
states that Customs may electronically issue permits to lade or unlade 
merchandise, pursuant to an authorized data interchange system.
    The regulations which implement the statutory authority for the 
granting of preliminary vessel entry and the issuance of permits to 
lade and unlade merchandise are contained in sections 4.8 and 4.30 of 
the Customs Regulations (19 CFR 4.8 and 4.30). These provisions still 
contain mandatory boarding and physical document presentation 
requirements, and of course do not include any reference to an 
electronic permit issuance option.
    On March 18, 1994, a document was published in the Federal Register 
(59 FR 12878) soliciting comments regarding a proposal to amend 
sections 4.8 and 4.30 of the Customs Regulations (19 CFR 4.8 and 4.30), 
in order to properly implement the amended statutory authority. This 
document considers the comments received and amends the cited sections 
of the Customs Regulations.

Discussion of Comments

    Thirty comments were received in response to the proposal. There 
were thirteen comments received from vessel operators, nine from vessel 
agents, six from vessel and import trade groups, one from a customs 
broker, and one from a labor union. Of the thirty comments received, 
twenty-eight of them expressed enthusiastic and unqualified support for 
the published proposal. A discussion of the remaining comments follows.
    Comment: One commenter stated that while the inclusion of elements 
concerning the electronic transmission of information was both welcome 
and necessary, our proposal was ``vague'' in this regard. It is stated 
that if the authorized electronic system contemplated by Customs is one 
which will be used with the Automated Commercial System (ACS), that 
fact should have been made clear and guidelines should have been 
published. The question of compliance by Customs with 19 U.S.C. 1412, 
as enacted by section 631 of the Customs Modernization Act, was also 
raised. The newly enacted section provides, in its entirety, that with 
regard to the National Customs Automation Program (the Program):
    The goals of the Program are to ensure that all regulations and 
rulings that are administered or enforced by the Customs Service are 
administered and enforced in a manner that--
    (1) is uniform and consistent;
    (2) is as minimally intrusive upon the normal flow of business 
activity as practicable; and
    (3) improves compliance.
    The commenter goes on to urge that if Customs is contemplating 
revised requirements for the submission of information electronically, 
that existing legal considerations concerning electronic commercial 
document transactions be taken into account.
    Response: The quoted statutory language merely recites the goals of 
the automation program when that program is eventually devised and 
published. The amendments presented in this document do not implement 
an automation program; they are simply intended to authorize the 
voluntary utilization of such a system, once implemented, in 
transacting operations under sections 4.8 and 4.30 of the regulations.
    Further, Customs will implement regulations concerning how 
electronic transmission of documents and information may be 
accomplished only after a thorough investigation and with a full 
appreciation of all legal and practical considerations. The process 
will, as always, invite public participation.
    Comment: One commenter correctly states that section 434, Tariff 
Act of 1930 (as amended by section 653 of the Customs Modernization 
Act) 19 U.S.C. 1434, places an affirmative obligation upon Customs to 
board a sufficient number of vessels during the preliminary entry 
process to ensure compliance with various provisions of law. The 
commenter then goes on to rely upon language in the legislative history 
relating to section 653 in an effort to fix the number of vessels to be 
boarded. It is urged that the number of vessels boarded be published in 
the Federal Register, and that the regulations themselves state that 
the number of vessel boardings may not be decreased.
    Response: The commenter does not suggest that the amended statute 
is in any way ambiguous, and neither does Customs believe it to be. 
With statutory authority clear on its face, there is no need to seek 
clarification in the history of the law. The statute, in setting forth 
that Customs shall board a sufficient number of vessels to ensure 
compliance with the laws it administers, merely reinforces the 
underlying current prevalent throughout the Customs Modernization Act. 
That common theme is the vesting in Customs of broad discretion to 
promulgate regulations and install procedures. There is no question 
that Customs will continue to board vessels for the purpose of 
enforcing the laws of the United States. Effectively ensuring 
enforcement of U.S. laws can best be realized by boarding vessels when 
circumstances suggest that a Customs presence is warranted, to include 
random boardings. Boarding quotas will not further the ends of the 
statute as reflected in its plain words.

Conclusion

    After careful consideration of all comments received as well as 
further review of the matter, it has been determined that the 
amendments should be adopted as proposed.

Regulatory Flexibility Act

    Pursuant to the provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), it is certified that the amendments will not have 
a significant economic impact on a substantial number of small 
entities. Accordingly, they are not subject to the regulatory analysis 
or other requirements of 5 U.S.C. 603 and 604.

Executive Order 12866

    This document does not meet the criteria for a ``significant 
regulatory action'' as specified in E.O. 12866.

Drafting Information

    The principal author of this document was Larry L. Burton, Carrier 
Rulings Branch, U.S. Customs Service. However, personnel from other 
Customs offices participated in its development. 

[[Page 2414]]


List of Subjects in 19 CFR Part 4

    Customs duties and inspection, Reporting and recordkeeping 
requirements, Vessels.

Amendments to the Regulations

    Part 4, Customs Regulations (19 CFR Part 4), is amended as set 
forth below.

PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES

    1. The general authority citation for Part 4, Customs Regulations 
(19 CFR Part 4) and specific authority citation for section 4.8 
continue, and the specific authority citation for section 4.30 is 
revised, to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624; 
46 U.S.C. App. 3, 91;
* * * * *
    Section 4.8 also issued under 19 U.S.C. 1448, 1486;
* * * * *
    Section 4.30 also issued under 19 U.S.C. 288, 1446, 1448, 1450-
1454, 1490;
* * * * *
    2. Section 4.8 is revised to read as follows:


Sec. 4.8  Preliminary entry.

    Preliminary entry allows a U.S. or foreign vessel arriving under 
circumstances which require it to formally enter, to discharge cargo, 
passengers, or baggage prior to making formal entry. The granting of 
preliminary entry may be accomplished electronically pursuant to an 
authorized electronic data interchange system, or by other means of 
communication approved by the Customs Service. Preliminary entry must 
be made in compliance with Sec. 4.30 of this part. The granting of 
preliminary vessel entry by the Customs Service may be conditioned upon 
the presentation of a completed Customs Form 1300 (Master's Certificate 
on Preliminary Entry) to Customs during discretionary vessel boarding, 
or upon the filing with Customs of a Customs Form 1300 or its 
equivalent by electronic or other means in instances where vessels are 
not boarded.
    3. Section 4.30 (a) is amended by removing the period at the end 
and adding the words ``or electronically pursuant to an authorized 
electronic data interchange system or other means of communication 
approved by the Customs Service.''
    4. Section 4.30(b) is amended by adding after the phrase ``Customs 
Form 3171,'' the words `` or electronically pursuant to an authorized 
electronic data interchange system or other means of communication 
approved by the Customs Service,''.
George J. Weise,
Commissioner of Customs.

    Approved: November 24, 1995.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-1327 Filed 1-25-96; 8:45 am]
BILLING CODE 4820-02-P