[Federal Register Volume 64, Number 76 (Wednesday, April 21, 1999)]
[Proposed Rules]
[Pages 19508-19512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9946]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 64, No. 76 / Wednesday, April 21, 1999 /
Proposed Rules
[[Page 19508]]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 4 and 159
RIN 1515-AC30
Foreign Repairs to American Vessels
AGENCY: Customs Service, Department of the Treasury.
ACTION: Proposed rule.
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SUMMARY: This document proposes to revise the Customs Regulations
regarding the declaration, entry, assessment of duty and processing of
petitions for relief from duty for vessels of the United States which
undergo foreign shipyard operations. It is intended that the Customs
Regulations regarding this subject accurately reflect the amended
underlying statutory authority, as well as legal and policy
determinations made as a result of judicial decisions and
administrative enforcement experience.
DATES: Comments must be received on or before June 21, 1999.
ADDRESSES: Written comments may be addressed to and inspected at the
Regulations Branch, U.S. Customs Service, 1300 Pennsylvania Avenue,
NW., 3rd Floor, Washington, DC 20229.
FOR FURTHER INFORMATION CONTACT: Operational aspects: Glenn Seale,
Supervisory Customs Liquidator, 504-670-2137. Legal aspects: Larry L.
Burton, Office of Regulations and Rulings, 202-927-1287.
SUPPLEMENTARY INFORMATION:
Background
The genesis of the modern vessel repair statute, 19 U.S.C. 1466, is
found in the Act of July 18, 1866, Chapter 24, section 23 (14 Stat.
183). A 50 percent ad valorem duty was imposed on the foreign cost of
repairs to United States vessels documented to engage in the foreign or
coastwise trade on the northern, northeastern, and northwestern
frontiers (practically speaking, Great Lakes, Atlantic, and Pacific
Coast trade with Canada). The statute also provided for remission or
refund of duties where it was established by sufficient evidence that
the vessel had been compelled to seek foreign repairs due to a weather-
related or other casualty. The statute was recodified in the Revised
Statutes of the United States in 1874 (R.S. 3114 and 3115), but was
left largely unamended until the Act of September 21, 1922, at which
time the area of consideration for dutiable repairs was expanded to
include repairs to all vessels documented under U.S. law to engage in
the foreign or coastwise trade, as well as those intended to be so
employed.
The statute has undergone amendment several times since 1922 and
has been the subject of considerable judicial interpretation over the
years as well. Recently, however, the statute has been amended in
significant ways and a court case with broad impact on the
administration of the law has also been decided.
On August 20, 1990, the President signed into law the Customs and
Trade Act of 1990 (Pub. L. 101-382), section 484E of which amended the
vessel repair statute by adding a new subsection (h). Subsection (h),
which by its terms expired on December 31, 1992, included two elements.
These concerned the exclusion from vessel repair duty of Lighter Aboard
Ship (LASH) barges, and of spare parts and materials for use in vessel
repairs abroad which had previously been imported and duty paid at the
appropriate rate under the Harmonized Tariff Schedule of the United
States (HTSUS). Two years after the expiration of that legislation the
Congress enacted section 112 of Pub. L. 103-465 which became effective
on January 1, 1995. That provision permanently reenacted the previously
expired 19 U.S.C. 1466(h) (1) and (2), as discussed above, and also
added a new subsection (h)(3) which, as administered by Customs,
provides that vessel repair duties will be assessed at the applicable
HTSUS rate for spare parts which are necessarily installed on vessels
overseas prior to those spare parts ever having been entered into the
United States for entry and consumption, such as is necessary under the
(h)(2) provision.
The most basic issue to be determined in applying the vessel repair
statute to a factual situation is, of course, whether a repair has
taken place within the meaning of 19 U.S.C. 1466(a). Courts have ruled
extensively on the ``repair'' cost issue and the result is a
continually narrowing field of dutiable repair. One early case (United
States v. George Hall Coal Co., 134 F. 1003 (1905)), was the first to
find any of various types of expenses associated with repairs to be
classifiable as not subject to the assessment of vessel repair duties.
The case established that the expense of drydocking a vessel
(regardless of the underlying need to drydock) is not an element of
dutiable value in foreign repair costs. Drydocking is a major, but not
isolated, expense in general ship repair operations. Many other
associated expenses and services are necessary adjuncts to drydocking
and are logically inseparable from the drydocking rule. These include
such items as drydock block arrangement, sea water supply (for
firefighting equipment), hose hook-up and disconnection charges, fire
watch services, the services of a crane for drydocking-related
operations, the provision of compressed air, cleaning of the drydock
following repairs, among numerous others. These necessary services are
costly, are supplied at nearly each drydocking, and had until recently
been considered to be classifiable as duty-free.
On December 29, 1994, the United States Court of Appeals for the
Federal Circuit decided the case of Texaco Marine Services, Inc., and
Texaco Refining and Marketing, Inc. v. United States, 44 F.3d 1539.
While this case was submitted on appeal regarding the dutiability of
specific foreign shipyard operations, the Court went much further by
considering the propriety of several long-standing court cases,
including the opinion in George Hall, supra. In so doing, a whole range
of charges are subjected to duty consideration which had been insulated
from such treatment since 1905.
The recent upheaval in terms of both statutory amendment and
judicial interpretation has resulted in the need to update the
regulatory provisions which implement the vessel repair statute. This
has led to the proposed revisions contained within this document, which
are presented in a more streamlined and simpler format, all in
conformance with the recent changes. Most significantly in this
connection, the proposed amendments
[[Page 19509]]
eliminate the Petition for Review process, currently the second of two
pre-protest appeals for relief from duty, and vest in the Vessel Repair
Units full authority to process and decide Applications for Relief
without restrictions as to the amount of potential duty refund or
remission.
Additionally, it is proposed that the Customs Regulations in part
159 be amended to recognize that vessel repair entries are not
considered to be subject to liquidation, and that any duties paid
pursuant to a vessel repair entry will henceforth be considered to be
charges or exactions within the meaning of subsection (a)(3) of section
514, Tariff Act of 1930, as amended (19 U.S.C. 1514), the statute under
which decisions of the Customs Service are protested. As such, duty
determinations on vessel repair entries will be protestable but will
not be subject to voluntary reliquidation or deemed liquidation
procedures. This distinction will serve to recognize elements which are
unique to the vessel repair entry process such as potential protracted
delays in supplying cost information due to difficulty in obtaining
proof of foreign expenses from shipyards in a timely fashion.
Comments
Before adopting this proposal, consideration will be given to any
written comments which 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)), on regular business days between the
hours of 9 a.m. and 4:30 p.m. at the Regulations Branch, U.S. Customs
Service, 1300 Pennsylvania Avenue, NW., 3rd Floor, Washington, D.C.
Regulatory Flexibility Act and Executive Order 12866
The proposed amendments would revise the Customs Regulations
concerning the declaration, entry, assessment of duty and processing of
petitions for relief from duty, for subject vessels under the vessel
repair statute. The proposed amendments are intended to accurately
reflect the existing statutory authority, as well as legal and policy
determinations made in this regard as the result of judicial decisions
and administrative enforcement experience. As such, pursuant to the
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), it
is certified that, if adopted, the proposed 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. Nor does this document meet the
criteria for a ``significant regulatory action'' as specified in E.O.
12866.
Paperwork Reduction Act
The collection of information contained in this notice of proposed
rulemaking has previously been reviewed and approved by the Office of
Management and Budget (OMB) under OMB control number 1515-0082. This
rule does not propose any substantive changes to the existing approved
information collection.
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.
Drafting Information. The principal author of this document was
Larry L. Burton, Office of Regulations and Rulings, U.S. Customs
Service. However, personnel from other offices participated in its
development.
List of Subjects
19 CFR Part 4
Customs duties and inspection, Declarations, Entry, Repairs,
Reporting and recordkeeping requirements, Vessels.
19 CFR Part 159
Customs duties and inspection, Entry procedures.
Proposed Amendments to the Regulations
It is proposed to amend parts 4 and 159, Customs Regulations (19
CFR parts 4 and 159), as set forth below.
PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES
1. The general authority citation for part 4, and the specific
authority citation for Sec. 4.14, would continue 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 4.14 also issued under 19 U.S.C. 1466, 1498;
* * * * *
2. It is proposed to revise Sec. 4.14 to read as follows:
Sec. 4.14 Equipment purchases by, and repairs to, American vessels.
(a) General provisions and applicability. Under section 466, Tariff
Act of 1930, as amended (19 U.S.C. 1466), purchases for or repairs made
to certain vessels while they are outside the United States, including
repairs made while those vessels are on the high seas, are subject to
declaration, entry and payment of ad valorem duty. These requirements
are effective upon the first arrival of affected vessels in the United
States or Puerto Rico. The vessels subject to these requirements
include those documented under U.S. law for the foreign or coastwise
trades, as well as those which, although not documented under U.S. law,
exhibit an intent to engage in those trades under Customs
interpretations. Duty is based on actual foreign cost. This includes
the original foreign purchase price of articles which have been
imported into the United States and are later sent abroad for use. For
the purposes of this section, expenditures made in American Samoa, the
Guantanamo Bay Naval Station, Guam, Puerto Rico, or the U.S. Virgin
Islands are considered to have been made in the United States, and are
not subject to declaration, entry or duty. Under separate provisions of
law, the cost of labor performed, and of parts and materials produced
and purchased in Israel are not subject to duty under the vessel repair
statute. Additionally, expenditures made in Canada or in Mexico are no
longer subject to any vessel repair duties. Even in the absence of any
liability for duty, it is still required that all repairs and
purchases, including those made in Canada, Mexico, and Israel, be
declared and entered.
(b) Applicability to specific types of vessels.--(1) Fishing
vessels. As provided in Sec. 4.15, vessels documented under U.S. law
with a fishery endorsement are subject to vessel repair duties and must
file a declaration and entry, or their electronic equivalent, for
covered foreign expenditures upon their first post-expenditure arrival
in the United States. Undocumented American fishing vessels which are
repaired, or for which parts, nets or equipment are purchased outside
the U.S., must also file and pay duty.
(2) Government-owned or chartered vessels. Vessels normally subject
to the vessel repair statute because of documentation or intended use
are not excused from duty liability merely because they are either
owned or chartered by the U.S. Government.
(3) Vessels away continuously for two years or longer. Vessels
normally subject to the vessel repair statute, which remain
continuously outside the U.S. for two years or longer, are liable for
duty on any fish nets and netting purchased at any time during the
entire
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absence. Other than for nets and netting, such vessels are liable for
duty only on those expenditures which are made during the first six
months of a continuous absence of two years or more from the United
States. The single exception to this rule applies to vessels designed
and used primarily for transporting passengers and merchandise which
specifically depart the United States in order to obtain repairs or to
purchase equipment. These vessels remain fully liable for duty
regardless of the duration of their absence from the United States.
Even though some costs may not be dutiable, all repairs, materials,
parts and equipment-related expenditures must be declared and entered.
(c) Estimated duty deposit and bond requirements. Generally, the
person authorized to submit a vessel repair declaration and entry must
either deposit or transmit estimated duties or file a bond on Customs
Form 301 at the first United States port of arrival before the vessel
will be permitted to depart from that port. A bond of sufficient value
to cover all potential duty on the foreign repairs and purchases which
must be submitted at the port of arrival shall be forwarded by Customs
at that port to the appropriate VRU port of entry, as defined in
paragraph (g) of this section. The amount of the bond is within the
discretion of Customs at the port of arrival since claims for reduction
in duty liability are subject to the consideration of evidence by
Customs. Customs officials at the port of arrival may consult the
appropriate VRU port of entry or the staff of the Entry Procedures and
Carriers Branch in Customs Headquarters in setting sufficient bond
amounts. These duty, deposit, and bond requirements do not apply to
vessels which are owned or chartered by the United States Government
and are actually being operated by employees of an agency of the
Government. If operated by a private party for a Federal agency under
terms whereby the agency remains liable under the contract for payment
of the duty, there must be a deposit or a bond filed in an amount
adequate to cover the estimated duty.
(d) Declaration required. When a vessel subject to this section
first arrives in the United States following a foreign voyage, the
owner, master, or authorized agent must submit a vessel repair
declaration on Customs Form 226, a dual-use form used both for
declaration and entry purposes, or must transmit its electronic
equivalent. The declaration must be ready for presentation in the event
that a Customs officer boards the vessel. If no foreign repair-related
expenses were incurred, that fact must be reported either on the
declaration form or by approved electronic means. The Customs port of
arrival receiving either a positive or negative vessel repair
declaration or electronic equivalent shall immediately forward it to
the appropriate VRU port of entry.
(e) Entry required. The owner, master, or authorized representative
of the owner of any vessel subject to this section for which a positive
declaration has been filed must submit a vessel repair entry on Customs
Form 226 or transmit its electronic equivalent. The entry must show all
foreign voyage expenditures for equipment, parts of equipment, repair
parts, materials and labor. The entry submission must indicate whether
it provides a complete or incomplete account of covered expenditures.
The entry must be presented or electronically transmitted by the vessel
operator to the appropriate VRU port of entry as identified in
paragraph (g) of this section, so that it is received within ten
calendar days after arrival of the vessel. Duty refund or remission
claims should be made generally as part of the initial submission, and
evidence must later be provided to support those claims. Failure to
submit full supporting evidence of cost within stated time limits,
including any extensions granted under this section, is considered to
be a failure to enter.
(f) Time limit for submitting evidence of cost. A complete vessel
repair entry must be supported by evidence showing the cost of each
item entered. If the entry is incomplete when submitted, evidence to
make it complete must be received by the appropriate VRU port of entry
within 90 calendar days from the date of vessel arrival. That evidence
must include either the final cost of repairs or, if the operator
submits acceptable evidence that final cost information is not yet
available, initial or interim cost estimates given prior to or after
the work was authorized by the operator. The proper VRU port of entry
may grant one 30-day extension of time to submit final cost evidence if
a satisfactory written explanation of the need for an extension is
received before the expiration of the original 90-day submission
period. All extensions will be issued in writing. Inadequate, vague, or
open-ended requests will not be granted. Questions as to whether an
extension should be granted may be referred to the Entry Procedures and
Carriers Branch in Customs Headquarters by the VRU ports of entry. Any
request for an extension beyond a 30-day grant issued by a VRU must be
submitted through that unit to the Entry Procedures and Carriers
Branch, Customs Headquarters. In the event that all cost evidence is
not furnished within the specified time limit, or is of doubtful
authenticity, the VRU may refer the matter to the Customs Office of
Investigations to begin procedures to obtain the needed evidence. That
office may also investigate the reason for a failure to file or for an
untimely submission. Unexplained or unjustified delays in providing
Customs with sufficient information to properly determine duty may
result in penalty action as specified in paragraph (j) of this section.
(g) Location and jurisdiction of vessel repair unit ports of entry.
Vessel Repair Units (VRUs) are considered to be the ports of entry for
vessel repair declarations and entries, and are located in New York,
New York; New Orleans, Louisiana; and San Francisco, California. The
New York unit processes vessel repair entries received from ports of
arrival on the Great Lakes and the Atlantic Coast of the United States,
north of, but not including, Norfolk, Virginia. The New Orleans unit
processes vessel repair entries received from ports of arrival on the
Atlantic Coast from Norfolk, Virginia, southward, and from all United
States ports of arrival on the Gulf of Mexico including ports in Puerto
Rico. The San Francisco unit processes vessel repair entries received
from all ports of entry on the Pacific Coast including those in Alaska
and Hawaii.
(h) Justifications for refund or remission of duty. Vessel repair
duties may be refunded or remitted. Refunds relate to claims made under
paragraph (a) of the vessel repair statute (19 U.S.C. 1466(a)), and
remissions relate to claims made under paragraphs (d), (e) and (h) of
the vessel repair statute (19 U.S.C. 1466(d), (e) and (h)).
(1) Refund of duty. Duty is refunded when it is determined that a
foreign shipyard operation or expenditure is not considered to be a
repair or purchase within the terms of the vessel repair statute, or as
determined under judicial or administrative interpretations.
(2) Remission of duty. Duty is remitted under paragraph (d) of the
vessel repair statute (19 U.S.C. 1466(d)) when it is determined that a
foreign shipyard operation or expenditure involves any of the
following:
(i) Stress of weather or other casualty. Duty will be remitted if
good and sufficient evidence supports a finding that the vessel, while
in the regular course of its voyage, was forced by stress of weather or
other casualty, while outside the United States, to purchase equipment
or make repairs
[[Page 19511]]
necessary to secure the safety and seaworthiness of the vessel in order
to enable it to reach its port of destination in the United States.
Only duty on the cost of the minimal repairs needed for safety and
seaworthiness is subject to remission. For the purposes of this
section, a ``casualty'' does not include any purchase or repair made
necessary by ordinary wear and tear, but does include the failure of a
part to function if it is proven that the specific part was repaired,
serviced, or replaced in the United States immediately before the start
of the voyage in question, and then failed within six months of that
date.
(ii) U.S. parts installed by regular crew or residents. Duty will
be remitted if equipment, parts of equipment, repair parts, or
materials used on a vessel were manufactured or produced domestically
and were purchased in the United States by the owner of the vessel. It
is also required under the statute that residents of the United States
or members of the regular crew of the vessel perform any necessary
labor in connection with such installation.
(iii) Dunnage. Duty will be remitted if any equipment, equipment
parts, materials, or labor were used for the purpose of providing
dunnage for the packing or shoring of cargo, for erecting temporary
bulkheads or other similar devices for the control of bulk cargo, or
for temporarily preparing tanks for carrying liquid cargoes.
(i) General procedures for seeking refund or remission.--(1)
Applications for relief. Vessel repair duty will not be refunded or
remitted unless an Application for Relief is filed with Customs; duty
will not be refunded or remitted based merely on a duty refund or
remission claim made at time of entry pursuant to paragraph (e) of this
section. An Application for Relief is not required to be presented in
any particular format, but if filed it must clearly present
justification for granting relief. An Application must also state that
all repair operations performed aboard a vessel during the one-year
period prior to the current submission have been declared and entered.
A valid Application is required to be supported by complete evidence as
detailed in this section. The deadline for receipt of an Application
and supporting evidence is 90 days from the date that the vessel first
arrived in the United States following foreign operations. Applications
must be addressed and submitted by the vessel operator to the
appropriate VRU port of entry and will be decided in that unit. The
VRUs may seek the advice of the Entry Procedures and Carriers Branch in
Customs Headquarters with regard to any specific item or issue which
has not been addressed by clear precedent. If no Application is filed
or if a submission which does not meet the minimal standards of an
Application for Relief is received, the duty amount will be determined
without regard to issues of refund or remission. Each Application for
Relief must include copies of:
(i) Itemized bills, receipts, and invoices for items shown in
paragraph (e) of this section. The cost of items for which refund or
remission is being sought must be segregated from the cost of the other
items listed in the vessel repair entry;
(ii) Photocopies of relevant parts of vessel logs, as well as of
any classification society reports which detail damage and remedies;
(iii) A certification by the senior officer with personal knowledge
of all relevant circumstances relating to casualty damage (time, place,
cause, and nature of damage);
(iv) A certification by the senior officer with personal knowledge
of all relevant circumstances relating to foreign repair expenditures
(time, place, and nature of purchases and work performed);
(v) A certification by the master that casualty-related
expenditures were the minimum necessary to ensure the safety and
seaworthiness of the vessel in reaching its United States port of
destination; and
(vi) Any permits or other documents filed with or issued by any
other United States Government Agency regarding the operation of the
vessel.
(2) Additional evidence. In addition, copies of any other evidence
and documents the applicant may wish to provide as evidentiary support
may be submitted. Elements of applications which are not supported by
required evidentiary elements will be considered fully dutiable. All
documents submitted must be certified by the master, owner, or
authorized corporate officer to be originals or copies of originals,
and if in a foreign language they must be accompanied by an English
translation, certified by the translator to be accurate. Upon receipt
of an Application for Relief by the VRU within the prescribed time
limits, a determination of duties owed will be made. After a decision
is made on an Application for Relief by a VRU, the Applicant will be
notified of the right to protest any perceived excessive charge or
exaction.
(3) Administrative protest. Following the determination of duty
owing on a vessel repair entry, a protest may be filed as the only and
final administrative appeal. The procedures and time limits applicable
to protests filed in connection with vessel repair entries are the same
as those provided in part 174 of this chapter.
(j) Penalties.--(1) Failure to report, enter, or pay duty. It is a
violation of the vessel repair statute if the owner or master of a
vessel subject to this section willfully or knowingly neglects or fails
to report, make entry, and pay duties as required; makes any false
statements regarding purchases or repairs described in this section
without reasonable cause to believe the truth of the statements; or
aids or procures any false statements regarding any material matter
without reasonable cause to believe the truth of the statement. If a
violation occurs, the vessel, its tackle, apparel, and furniture, or a
monetary amount up to their value as determined by Customs, is subject
to seizure and forfeiture and is recoverable from the owner (see
Sec. 162.72 of this chapter).
(2) False declaration. If any person required to file a vessel
repair declaration or entry under this section, knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any materially false, fictitious or fraudulent
statement or representation, or makes or uses any false writing or
document knowing the same to contain any materially false, fictitious
or fraudulent statement, that person shall be subject to the criminal
penalties provided for in 18 U.S.C. 1001.
PART 159--LIQUIDATION OF DUTIES
1. The authority citation for part 159 is revised to read as
follows:
Authority: 19 U.S.C. 66, 1500, 1504, 1624. Subpart C also issued
under 31 U.S.C. 5151.
Sections 159.4, 159.5, and 159.21 also issued under 19 U.S.C.
1315;
Section 159.6 also issued under 19 U.S.C. 1321, 1505;
Section 159.7 also issued under 19 U.S.C. 1557;
Section 159.22 also issued under 19 U.S.C. 1507;
Section 159.44 also issued under 15 U.S.C. 73, 74;
Section 159.46 also issued under 19 U.S.C. 1304;
Section 159.55 also issued under 19 U.S.C. 1558;
Section 159.57 also issued under 19 U.S.C. 1516.
Sec. 159.11 [Amended]
2. It is proposed to amend Sec. 159.11(b) by removing the phrase,
``vessel repair entries or''.
[[Page 19512]]
Approved: March 12, 1999.
Raymond W. Kelly,
Commissioner of Customs.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 99-9946 Filed 4-20-99; 8:45 am]
BILLING CODE 4820-02-P