[Federal Register Volume 62, Number 50 (Friday, March 14, 1997)] [Proposed Rules] [Pages 12129-12133] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-6522] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Customs Service 19 CFR Part 146 RIN 1515-AC05 Weekly Entry Procedure for Foreign Trade Zones AGENCY: U.S. Customs Service, Treasury. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This document proposes to amend and expand the weekly entry procedure for foreign trade zones under certain circumstances to include merchandise involved in activities other than exclusively assembly-line type production operations. Under the proposed expanded procedure, weekly entries covering the estimated removals of merchandise for the weekly period and the associated entry summaries would have to be filed exclusively through the Automated Broker Interface. The expanded weekly procedure, which, as is presently the case, would remain an entirely optional procedure, would thus be conducted in a fully paperless environment. The expanded weekly procedure would reduce the number of entries from zones as well as automate and expedite the processing of such entries. The proposed expansion of the weekly procedure would allow zone users to not have to delay their operations pending the acceptance of an entry and Customs examination of the subject merchandise. 2 DATES: Comments must be received on or before April 14, 1997. ADDRESSES: Written comments (preferably in triplicate) may be addressed to the Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service, 1301 Constitution Avenue, N.W., Washington, D.C. 20229. Comments may be inspected at the Regulations Branch, Office of Regulations and Rulings, Franklin Court, 1099 14th Street, N.W., Suite 4000, Washington, D.C. FOR FURTHER INFORMATION CONTACT: Marsha Malbrough, Office of Field Operations, (202-927-0457). SUPPLEMENTARY INFORMATION: Background The Foreign Trade Zones Act of 1934, as amended (19 U.S.C. 81a-u) (the ``FTZA''), provides for the establishment and regulation of foreign trade zones. Foreign trade zones are secured areas to which foreign and domestic merchandise, except that prohibited by law, may be brought for the purposes enumerated in the FTZA without being subject to the Customs laws of the U.S. Foreign trade zones, by virtue of being exempt from the Customs laws, are intended to attract and promote international trade and commerce. Part 146, Customs Regulations (19 CFR part 146), sets forth the documentation and recordkeeping requirements governing the admission of merchandise into a zone, 3 its removal from the zone, and, among other things, its manipulation, manufacture, storage, destruction or exhibition, while in the zone. [[Page 12130]] The current weekly entry procedure for foreign trade zones, contained in Sec. 146.63(c)(1), Customs Regulations (19 CFR 146.63(c)(1)), has been in effect since May 12, 1986, having first been authorized in T.D. 86-16, 51 FR 5040. That weekly entry process has been limited to merchandise which is manufactured or changed into its final form just shortly (within 24 hours) before physical transfer from the zone. This procedure was believed to be especially necessary for assembly-line type manufacturing operations because in these circumstances there would otherwise be little time for examination of the merchandise and furnishing of entry documentation after the merchandise was in its final form but before its physical removal from the zone. Accordingly, under the weekly entry process, the assembly- line operation would not have to be delayed pending acceptance of an entry and Customs examination of the merchandise. Title VI of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), popularly known as the Customs Modernization Act, was enacted on December 8, 1993. Section 637 of the Customs Modernization Act, which amended 19 U.S.C. 1484 concerning the entry of merchandise generally, provides further statutory support for the weekly 4 entry procedure, in concert with section 3 of the FTZA (19 U.S.C. 81c(a)), which deals specifically with the entry of merchandise from zones. Since its inception, there have been no major problems associated with the use of weekly entry. Therefore, Customs is proposing to expand the use of the procedure by adding a weekly entry procedure to cover merchandise involved in activities other than manufacturing operations. Also, under the proposed amendment, the weekly entry under both the present procedure and the proposed expanded procedure would cover any seven-day consecutive period (i.e., the weekly period would not be limited to a calendar week). It is expected that the expanded weekly entry procedure would be available to zones (including subzones) having large quantities of different types of merchandise. A pilot program, implemented in September 1994, to test such an expanded weekly entry procedure at a selected number of zones/subzones has since been evaluated as a success. Under the proposed expanded procedure, weekly entries and entry summaries would have to be filed electronically through the Automated Broker Interface (ABI). Thus, the participant making entry would have to do so using ABI, or employ an ABI-qualified Customs broker for this purpose. Specifically, the port director would allow the person making entry to file an electronic entry containing the data required on Customs Form 3461 for the estimated removals of merchandise intended to occur during the related weekly period. The electronic entry would be filed prior to any transfers of merchandise from the zone, and an electronic entry summary containing the data required on Customs Form 7501 would be filed within 10 working days after the first day of the weekly period covered by the electronic entry. Payment of applicable duties and taxes would likewise be scheduled for no later than 10 working days after the date of entry, using the Automated Clearinghouse (ACH) as prescribed in Sec. 24.25, Customs Regulations (19 CFR 24.25). The principal purpose of the proposed expanded weekly procedure, as conducted in a fully paperless environment, is to reduce the number of entries from zones and further expedite the processing of such entries, with the added benefit that zone users would not have to delay their operations pending the acceptance of an entry and Customs examination of the subject merchandise. Hence, while the expanded weekly entry procedure, like the current weekly manufacturing entry procedure, is a voluntary program, an integral component thereof, under the proposed amendment, would be the use of electronic entry filing. Indeed, electronic entry processing accords precisely with and fully effects the purpose of the program, as described. At the same time, however, zone users not wishing to use the expanded weekly entry may, of course, continue to operate in a zone, and, to this end, if desired, may file paper entries covering individual transfers of merchandise from the zone, inasmuch as electronic entry filing is also a voluntary program (see 19 U.S.C. 1411(b); 19 CFR 143.31). No retail trade or retail sales within the zone would be permitted through this procedure. Retail trade is prohibited in a zone except as provided in 19 U.S.C. 810(d) of the FTZA. The person with the right to make entry, who has established an importing history, and who is not delinquent or otherwise remiss in transactions with Customs, would make application to the port director at least 30 days before the expanded weekly entry procedure were to become effective. Each person seeking permission to use the expanded procedure under the proposed section 146.63(c)(2) would have to file an individual application therefor. The application would describe the merchandise to be handled or processed, the accounting and transportation controls exercised over the merchandise, and the kind of activity or operation it would undergo in the zone. The port director would evaluate the application based on the quality of the accounting and transportation controls exercised over the merchandise in the zone, the enforcement risk presented, the type of merchandise imported, Customs knowledge of the business conducted in the zone, and any local criteria developed by the port director. The port director would have to provide written notice of any special local criteria that would be used in evaluating the application. It is noted that filers eligible for weekly entry under Sec. 146.63(c)(1) would not be required to apply or reapply for participation in that program. To be approved for expanded weekly entry, the merchandise to be admitted to the zone, its handling or processing therein, and the shipments of such merchandise from the zone, would have to be fairly predictable, continuing and repetitive, and relatively fixed in variety by the type of merchandise and the nature of the business conducted at the site. In addition, the subject merchandise would have to have been preclassified or otherwise have been determined to be risk-free; it could not be restricted or sensitive or of a type which required Customs examination before or at the time of its admission to, or removal from, the zone. Quota-class merchandise would thus be excluded from the program. Also, the records with respect to the merchandise and its handling and/or processing in the zone, if not computerized, would have to be maintained in an organized and readily retrievable manner, and be capable of being accessed by Customs within a reasonable time after due notice. Additionally, in the case of a general-purpose zone with multiple users, the zone operator would, in writing, have to certify to the port director that he understands the requirements of the expanded weekly entry program, and agree to supervise and monitor the movement of merchandise thereunder. The operator would also have to expressly agree to maintain inventory records that accurately accounted for all transfers of merchandise from the zone related to the respective weekly entry of each person using the procedure therein. The zone operator's written acknowledgement of responsibilities in this regard would be required to be on file with the applicable port director [[Page 12131]] before any application to use the weekly entry procedure could be approved in relation to the zone. The port director, following his evaluation of the application, would notify the applicant, in writing, of his decision. If the application was denied, the port director would specify the reason for the denial in his reply, and would inform the applicant that such denial may be appealed to the port director for reconsideration. A request for reconsideration may, if denied, be appealed to the Assistant Commissioner, Office of Field Operations, Customs Headquarters. Such appeals must be made within 30 days of the date of the adverse decision being appealed. The port director's decision or the Assistant Commissioner's decision, as applicable, would be issued, in writing, within 30 days of the receipt of the appeal. The Assistant Commissioner's decision would constitute the final Customs determination concerning the application. If the application were approved, the port director could stay participation in the weekly entry program for a specified reasonable period, should examination of the merchandise or its documentation be needed for any reason. In addition, the port director could later propose to revoke the approval, if there were a subsequent failure to fulfill the criteria under which the initial approval had been obtained, or if it thereafter became routinely necessary to examine the merchandise or its documentation before or upon admission to, or removal from, the zone, should the merchandise have become restricted or sensitive or otherwise of a type which likewise routinely required Customs examination. A challenge to a proposed revocation of participation in the weekly entry program could be filed with the port director. An adverse decision by the port director could be appealed to the Assistant Commis-sioner, Field Operations, Customs Headquarters. The Assistant Commissioner's decision in this connection would constitute the final Customs determination concerning the challenge. It is also proposed to add a new paragraph (d) to Sec. 146.68 to provide for weekly reporting of transfers from a foreign trade zone to a class 9 warehouse (duty-free store), provided the zone grantee or operator is also the class 9 warehouse proprietor. The procedure is similar to the warehouse transfer procedure set out in Sec. 144.34 of the Customs Regulations (19 CFR 144.34). Comments Before adopting this proposal, consideration will be given to any written comments that are timely submitted to Customs. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552), Sec. 1.4, Treasury Department Regulations (31 CFR 1.4), and Sec. 103.11(b), Customs Regulations (19 CFR 103.11(b)), during regular business days between the hours of 9:00 a.m. and 4:30 p.m. at the Regulations Branch, Franklin Court, 1099 14th Street, N.W., Suite 4000, Washington, D.C. Regulatory Flexibility Act and Executive Order 12866 As explained in the preamble, the proposed rule is intended to expand electronic entry filing on a weekly basis in foreign trade zones, and thus reduce the number of entry filings from zones as well as automate and expedite the processing of such entries. As such, pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), it is hereby certified that the proposed amendments set forth in this document, if adopted, 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. Nor do the proposed amendments result in a ``significant regulatory action'' under E.O. 12866. Paperwork Reduction Act The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless the collection of information displays a valid control number. The collection of information in this document is in Sec. 146.63(c). This information is needed and will be used to enforce Customs entry procedures as required by law and to ensure the protection of the revenue. The likely respondents and/or recordkeepers are businesses. Estimated annual reporting and/or recordkeeping burden: 300 hours. Estimated average annual burden per respondent/recordkeeper: 30 minutes. Estimated number of respondents and/or recordkeepers: 600. Estimated annual frequency of responses: 1. Comments on the collection of information should be sent to the Office of Management and Budget, Attention: Desk Officer of the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, D.C. 20503. A copy should also be sent to the Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service, 1301 Constitution Avenue, N.W., Washington, D.C. 20229. Comments should be submitted within the same time frame as comments on the substance of the proposal. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of the information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or startup costs and costs of operations, maintenance, and purchase of services to provide information. List of Subjects in Part 146 Customs duties and inspection, Exports, Foreign trade zones, Imports, Reporting and recordkeeping requirements. Proposed Amendment It is proposed to amend part 146, Customs Regulations (19 CFR part 146), as set forth below. PART 146--FOREIGN TRADE ZONES 1. The authority citation for part 146 would continue to read as follows: Authority: 19 U.S.C. 66, 81a-u, 1202 (General Note 20, Harmonized Tariff Schedule of the United States), 1623, 1624. 2. It is proposed to amend Sec. 146.63 by revising paragraph (c) to read as set forth below: Sec. 146.63 Entry for consumption. * * * * * (c) Estimated activity--(1) Weekly manufacturing. When merchandise is manufactured or its physical condition as entered (exclusive of packing) is otherwise changed in a zone within 24 hours before physical transfer from the zone for consumption, the port director may allow the person making entry to file an entry on Customs Form 3461 for the estimated removals of merchandise during any consecutive 7-day period [[Page 12132]] (such period is thus not limited to being a calendar week). The Customs Form 3461 must be accompanied by a pro forma invoice or schedule showing the number of units of each type of merchandise to be removed during the weekly period and their zone and dutiable values. Merchandise 13 covered by an entry made under the provisions of this paragraph will be considered to be entered and may be removed only when the port director has accepted the entry on Customs Form 3461. If the actual removals will exceed the estimate for the week, the person making entry shall file an additional Customs Form 3461 to cover the additional units before their removal from the zone. Notwithstanding that a weekly entry may be allowed, all merchandise will be dutiable as provided in Sec. 146.65 of this subpart, with the time of entry being determined as provided in Sec. 141.68 of this chapter. When estimated removals exceed actual removals, that excess merchandise will not be considered to have been entered or constructively transferred from the zone. After acceptance of the weekly entry, and any additional entries required to be filed hereunder, individual transfers of merchandise covered by the entry may be made from the zone. (2) Weekly expanded. Regarding merchandise not qualifying for weekly entry under paragraph (c)(1) of this section, the port director may, upon application, allow the person making entry of such merchandise to file an electronic entry containing the data required on Customs Form 3461 for the estimated removals of merchandise intended to occur during the related weekly period. Such weekly period may cover any consecutive 7-day period and is not limited to being a calendar week. The electronic data submitted must show the number of units of each type of merchandise to be removed during the weekly period and their dutiable values (see Sec. 143.36 of this chapter). Merchandise covered by an electronic entry made under the provisions of this paragraph will be considered to be entered and may be removed from the zone only when the port director has accepted the entry. If the actual removals will exceed the estimate for the week, the person making entry shall file an additional electronic entry to cover the additional units before their removal from the zone. An electronic entry summary containing the data required on Customs Form 7501 must be filed within 10 working days after the first day of the weekly period covered by the electronic entry. Both the weekly entry and the related entry summary must be filed electronically through the Automated Broker Interface, with payment of applicable duties and taxes being scheduled, through the Automated Clearinghouse, for no later than 10 working days after the date of entry (see subpart D, part 143, and Sec. 24.25 of this chapter). Under this weekly entry procedure, all merchandise will be dutiable as provided in Sec. 146.65 of this subpart, with the time of entry being determined as provided in Sec. 141.68 of this chapter. When estimated removals exceed actual removals, such excess merchandise will not be considered to have been entered or constructively transferred from the zone. (i) Application required; criteria. Each person seeking permission to make a weekly zone entry under paragraph (c)(2) of this section must file an individual application therefor. The person must have an established importing history 15 and must not be delinquent or otherwise remiss in transactions with Customs. The written application shall be filed with the port director at least 30 days before the applicant wishes to use the weekly expanded entry procedure. The application must state that weekly entries and entry summaries will be filed with Customs electronically using the Automated Broker Interface; describe the merchandise to be handled or processed citing the Harmonized Tariff Schedule of the United States classification (and providing to Customs changes thereto), describe the accounting and transportation controls exercised over the merchandise, and describe the kind of operation such merchandise will undergo in the zone. The port director will evaluate the application based on the quality of the accounting and transportation controls exercised over the merchandise, the enforcement risk presented, the type of merchandise imported, and Customs knowledge of the business conducted in the zone. The port director shall also consider in his evaluation of the application the following additional criteria: (A) The merchandise to be admitted to the zone, its handling or processing therein, and the shipments of such merchandise from the zone must be predictable, repetitive, and stable over the long term, and relatively fixed in variety by the type of merchandise and the nature of the business conducted at the site; (B) The subject merchandise must have been preclassified or otherwise have been determined to be risk-free; such merchandise may not be restricted or sensitive or of a type which requires Customs examination before or at the time of its admission to, or removal from, the zone; (C) Records with respect to the merchandise and its handling and/or processing in the zone, if not computerized, must be maintained in an organized and readily retrievable manner, and be capable of being produced within a reasonable time after due notice; and (D) Any other local criteria that the port director considers essential to the application process. (The port director must provide a written announcement of such criteria by a notice posted at the customhouse, or by any other written methods considered appropriate.) (ii) Application decision. The port director shall notify the applicant, in writing, of Customs decision on the application. If the application is denied, the port director shall specify the reason for the denial in his reply, together with what corrective action may be taken, and shall inform the applicant that such denial may be appealed in the manner prescribed in paragraph (c)(2)(v) of this section. The party may not reapply for participation in the weekly entry program until the reason for the denial is resolved. If the application is approved, the party may later apply to amend its application to add merchandise not previously covered therein, for inclusion in its weekly entry program. If a requested amendment is denied, the procedures set forth in this paragraph shall apply. (iii) Stay. If the application to participate in the weekly entry program is approved, the party's use of weekly entry for particular merchandise may thereafter be stayed, for a specified reasonable period, should the port director determine, for any reason, to examine the merchandise or its associated documentation prior to entry, for purposes of verification. A stay of the weekly entry procedure in this regard shall take effect on the date of the port director's letter notifying the party thereof and shall remain in effect for the period specified in that letter, or such earlier date as the port director notifies the party in writing that the reason for the stay has been satisfied. After the stay is lifted, the entry of such merchandise under the weekly entry program may resume. (iv) Proposed revocation of approval. The port director may propose to revoke the approval given under this section, if there is a failure to sustain the criteria in paragraph (c)(2)(i) of this section, or if it thereafter becomes routinely necessary to examine the merchandise or documentation before or upon [[Page 12133]] admission to, or removal from, the zone, because the merchandise has become restricted or sensitive or otherwise of a type which likewise requires examination. The port director shall notify the appropriate party, in writing, specifying in detail the reason for the proposed revocation, and shall inform the party of its right to challenge the proposed revocation action as prescribed in paragraph (c)(2)(v) of this section. (v) Appeal of denial or challenge to proposed revocation. An appeal of a denial of an application under this section, or challenge to the proposed revocation of an approval to use the weekly entry procedure under this section, may be made to the port director issuing the denial or proposed revocation and must be filed within 30 days of the date of the denial or proposed revocation. A denial of an appeal or challenge made to the port director may itself be appealed to the Assistant Commissioner, Office of Field Operations, Customs Headquarters, and must be filed within 30 days of the denial date of the initial appeal or challenge. The 30-day period for filing an appeal or challenge with the port director or with the Assistant Commissioner, Field Operations, as applicable, may be extended for good cause, upon written request by the party for such extension filed with the port director or, in the case of appeals or challenges directed to the Assistant Commissioner, Field Operations, with the Assistant Commissioner or other Customs officer designated by him, within the 30-day period. The port director's decision or the Assistant Commissioner's decision, as applicable, shall be issued, in writing, within 30 working days of the receipt of the appeal or challenge, unless extended with due notification to the party. The Assistant Commissioner's decision shall constitute the final Customs determination concerning the application or challenge. (vi) General-purpose zones--(A) Operator responsibilities. In the case of a general-purpose zone with 18a multiple users, not only is paragraph (c)(2)(ii) of this section applicable, but also the zone operator must, in writing, certify to the port director that he understands the requirements of the 19 weekly entry program under paragraph (c)(2) of this section, and agree to supervise and monitor the movement of merchandise thereunder (see Sec. 146.4 of this part). The operator must also expressly agree to maintain inventory records that accurately account for all transfers of merchandise from the zone related to the respective weekly entry of each person using the procedure therein as provided for in Secs. 146.4 and 146.21 of this part. The zone operator's written acknowledgement of responsibilities in this regard must be on file with the applicable port director before any application to use the weekly expanded entry procedure may be approved in relation to the zone (see paragraph (c)(2)(i) of this section). (B) Bond coverage; operator; person making entry. The operator's responsibilities under the weekly entry procedure are covered under the Foreign Trade Zone Operator's Bond (see Sec. 113.73 of this chapter). The responsibilities of the person making entry are covered under such party's basic importation and entry bond (see Sec. 113.62 of this chapter). * * * * * 3. It is proposed to amend Sec. 146.68 by adding a new paragraph (d) to read as follows: Sec. 146.68 Transfer for transportation or exportation; estimated production. * * * * * (d) Weekly entry for class 9 warehouse (duty-free store). (1) Requirements for transfer. Merchandise that 20 qualifies for entry into a class 9 warehouse (duty-free store) pursuant to Sec. 19.36(e) of this chapter, and subject also to Sec. 146.64 of this subpart, may be transferred from a zone for that purpose under a weekly entry procedure, provided: (i) The zone operator or grantee is the same party, or shares common ownership with, the class 9 warehouse proprietor (hereinafter called ``the party''); and (ii) The party utilizes a Customs approved centralized inventory control system that shows the location of all the zone and warehoused merchandise at all times, including merchandise in transit. (2) Procedure. The following weekly entry procedure is to be utilized for qualifying merchandise: (i) The party shall file electronically a weekly entry permit to enter the merchandise with the port director on Customs Form 7501 for the estimated removal during any consecutive 7-day period, along with a pro forma invoice or schedule pursuant to Sec. 146.63(c)(1) of this subpart. (ii) Upon acceptance of the permit by the port director, the party may effect transfers of the merchandise from the zone to the warehouse during the 7-day period. (iii) Both an amended warehouse entry and warehouse withdrawal for immediate exportation, covering the 21 merchandise actually removed from the zone to the warehouse during the period covered by the permit, will be filed by the close of the second business day following the end of the period. Approved: February 7, 1997. George J. Weise, Commissioner of Customs, Deputy Assistant John P. Simpson, Secretary of the Treasury. [FR Doc. 97-6522 Filed 3-13-97; 8:45 am] BILLING CODE 4820-02-P