[Federal Register Volume 66, Number 127 (Monday, July 2, 2001)]
[Rules and Regulations]
[Pages 34813-34819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16479]


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DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Part 24

[T.D. 01-46]
RIN 1515-AC64


Time Limitation for Requesting Refunds of Harbor Maintenance Fees

AGENCY: Customs Service, Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document amends the Customs Regulations to establish a 
one year time limit within which a refund request must be filed for 
overpayments of Harbor Maintenance Fees that were paid on a quarterly 
basis. The time limit will provide an efficient and reasonable final 
resolution of claims against Customs, including claims for refunds of 
export harbor maintenance fees that were held unconstitutional by the 
United States Supreme Court in 1998. Refund requests for harbor 
maintenance fee payments that are more than a year old must be filed by 
the effective date of this document.

EFFECTIVE DATE: December 31, 2001.

FOR FURTHER INFORMATION CONTACT: Deborah Thompson, Revenue Branch, 
National Finance Center (317) 298-1200 (ext. 4003).

SUPPLEMENTARY INFORMATION:   

Background

    The Harbor Maintenance Fee was created by the Water Resources 
Development Act of 1986 (Pub. L. 99-622; codified at 26 U.S.C. 4461 et 
seq.) (the Act) and is implemented by Sec. 24.24 of the Customs 
Regulations (19 CFR 24.24). Pursuant to the Act, the harbor maintenance 
fee became effective on April 1, 1987.
    Imposition of the fee is intended to require those who benefit from 
the maintenance of U.S. ports and harbors to share in the cost of that 
maintenance. The fee has been assessed on port use associated with 
imports, exports, imported merchandise admitted into a foreign trade 
zone, passengers, and movements of cargo between domestic ports. Since 
April of 1998, based on the U.S. Supreme Court's decision that harbor 
maintenance fees applied to exports of merchandise are unconstitutional 
(United States Shoe Corporation v. United States, 118 S. Ct. 1290, No. 
97-372 (March 31, 1998)), Customs has not collected export harbor 
maintenance fees. Currently, except for export shipments, the fee is 
assessed based on 0.125 percent of the value of commercial cargo loaded 
or unloaded at certain identified ports or, in the case of passengers, 
on the value of the actual charge paid for the transportation.

Notice of Proposed Rulemaking Published on December 15, 2000

    On December 15, 2000, Customs published a notice of proposed 
rulemaking (NPRM) in the Federal Register (65 FR 78430) proposing to 
amend Sec. 24.24(e)(4) of the Customs Regulations (19 CFR 24.24(e)) to 
require the filing of a refund request for harbor maintenance fees paid 
on a quarterly basis within one year of the date of payment of the fee, 
except for fees paid relative to imported merchandise admitted into a 
foreign trade zone and subsequently withdrawn from the zone under 19 
U.S.C. 1309, for which the refund request would have to be filed within 
one year of the date of withdrawal. The NPRM also proposed to amend 
Sec. 24.73 of the Customs

[[Page 34814]]

Regulations (19 CFR 24.73) to require the filing of general claims 
against Customs--those not otherwise provided for under the Customs 
laws--within one year of the act giving rise to the claim.
    The NPRM sets forth the bases for proposing these time limits, 
including the Court of Appeals for the Federal Circuit's (CAFC) 
acknowledgement of Customs authority to impose a time limit on the 
filing of harbor maintenance fee refund requests (Swisher 
International, Inc. v. United States, 205 F. 3d 1358 (No. 99-1277 
C.A.F.C. February 28, 2000), cert. denied). (In Swisher, the court held 
Customs denial of a request for a refund of export harbor maintenance 
fee payments to be a protestable decision under 19 U.S.C. 1514.)
    The notice pointed out that for harbor maintenance fee payments 
that are more than a year old, a refund request would be required to be 
received by Customs prior to the effective date of the final rule 
adopting the proposal.

Interim Regulation Published on March 28, 2001

    On March 28, 2001, Customs published an interim regulation in the 
Federal Register (66 FR 16854) (hereafter, Interim Regulation) amending 
Sec. 24.24(e)(4) of the Customs Regulations, the same section of the 
regulations amended in this final rule document. The Interim 
Regulation, effective on the date of publication, amended the 
regulations to provide a new procedure for requesting refunds of export 
harbor maintenance fees. (On April 27, 2001, a correction to the 
Interim Regulation was published in the Federal Register (66 FR 
21086).)
    The main features of the new procedure are that: (1) Most refund 
requests (those covering payments made on and after July 1, 1990) can 
be filed and processed without supporting documentation; and (2) 
exporters filing refund requests that require supporting documentation 
(covering payments made prior to July 1, 1990) will have an additional 
120 days to submit documents or additional documents from the date 
Customs initially denies a request for lack of or insufficient 
documentation.
    This final rule document incorporates the procedure set forth in 
the Interim Regulation. It is noted that pursuant to Customs 
consideration of the comments received in response to the NPRM (see 
discussion below), the effective date of the one year time limitation 
is 180 days from its date of publication in the Federal Register. This 
differs from the Interim Regulation's background discussion where it is 
stated that the effective date of the time limitation would be 30 days 
from date of publication.

Discussion of Comments

    Customs received 21 comments in response to the NPRM. The comments 
can be divided into five subject categories: (1) The proposed one-year 
filing requirement as applied to requests for refunds of export harbor 
maintenance fee payments made more than one year ago; (2) the 
applicability of the Regulatory Flexibility Act (5 U.S.C. 603 and 604) 
to the proposed amendment's one-year filing requirement as applied to 
export fee refund requests; (3) the documentary requirements; (4) the 
applicability of interest to refunds of export fees; and (5) requests 
for a public hearing/meeting.
    Most of the comments were provided on behalf of exporters concerned 
about filing requests for refunds of export harbor maintenance fees 
that were held unconstitutional in 1998 and are no longer required 
under the Customs Regulations. These exporters have a keen interest in 
Customs procedure for issuing refunds of these fees. The Interim 
Regulation's procedure for obtaining refunds of these fees addresses 
and, Customs believes, resolves satisfactorily the issues raised by the 
comments, as discussed below.
    Comments concerning the proposed amendment of Sec. 24.73 to impose 
a one year filing requirement relative to general claims against 
Customs are not discussed in this document, as Customs has decided to 
delay proceeding with that proposed amendment.

The One-Year Filing Requirement as Applied to Requests for Refunds of 
Export Fee Payments

    Comment: Eighteen of the 21 commenters objected to the proposed 
amendment's one-year filing requirement for refund requests of 
quarterly-paid harbor maintenance fees. Some commenters objected to 
imposition of any time limit, while most others objected to how Customs 
would apply the time limit to refund requests covering payments made 
more than one year ago.
    The various formulations of this objection can be summarized as a 
complaint that the time limit as applied to payments that are more than 
one year old--which includes all export harbor maintenance fee 
payments--does not provide exporters enough time to file claims, and to 
the extent that lack of time results in exporters being unable to file 
refund requests, it is unreasonable and unfair. At least one commenter 
pointed out how some exporters might have to review up to ten or eleven 
years of payments to Customs dating back to 1987, a formidible task, 
especially when records that old are often stored off-site. Many 
companies routinely and reasonably destroy records that old. One 
commenter contended that many companies have not been dilatory, but 
genuinely lack the resources necessary to stay on top of this matter. 
Some companies have been waiting for litigation to be resolved and then 
for Customs to issue instructions for a refund filing procedure. These 
companies, say the commenters, will need more time to prepare their 
requests for refund than the proposed time limit allows.
    Some commenters characterized this provision as a time limit that 
retroactively cuts off rightful claims contrary to the spirit and 
language of the Swisher decision. For this reason, some raised due 
process objections. Some raised equal protection objections on the 
grounds that equally situated exporters will be treated differently 
where some are able to file their claims timely (and are issued 
refunds) while others are not (and are not issued refunds). All of 
these commenters feel strongly that the fact that the export fees at 
issue were unconstitutional and thus wrongly collected weighs in favor 
of Customs exercise of leniency regarding a time limit. Some stated 
that for this reason (unconstitutionality/wrongful collection), Customs 
should be assisting exporters to obtain refunds, not impeding them.
    Many commenters believe that requiring refund requests for payments 
made more than a year ago by the effective date of the final rule would 
not be workable and would not be fair. (These comments indicate that 
most commenters contemplated a short period of delay between the 
publication date and the effective date. The usual delay period is 30 
days. At least two commenters contemplated that the effective date 
would be the date of publication.) Some commenters suggested that this 
short deadline will result in a flood of claims that will be an 
inconvenience and distraction for Customs, will require much time to 
process, and will result in a ``hurry up and wait'' situation.
    At least one commenter suggested that the effective date of the 
final rule should be delayed 60 days. Some commenters stated that there 
should not be a deadline for payments ruled unconstitutional. At least 
seven commenters recommended that, as applied to payments older than 
one year, filers should have one full year from the date of publication 
of the final

[[Page 34815]]

rule to file refund requests. Another commenter recommended that 
exporters should have eighteen months from the date of publication to 
file refund requests.
    Customs response: Customs believes that a one year filing 
requirement is reasonable. Customs statutory and regulatory provisions 
that impose time limits generally do not provide more than a year to 
take whatever action is required under the provision. In fact, similar 
or shorter time limits exist in other contexts, such as the requirement 
to file a protest under 19 U.S.C. 1514 within 90 days of a Customs 
decision regarding the amount of duties chargeable, the amount of a 
charge or exaction, or the liquidation of an entry. The protest 
procedure is the basic procedure for challenging a variety of Customs 
decisions and obtaining a refund of overpaid duties or charges. It is 
noteworthy that the applicable Customs law grants no more than 90 days 
to take this important action. The requirement to file a petition for 
reliquidation to correct a clerical error under 19 U.S.C. 1520(c)(1) 
within one year of the date of liquidation is another example. A third 
example is the one year filing requirement of 19 U.S.C. 1520(d) imposed 
on requests for reliquidation of an entry involving goods qualifying 
under NAFTA rules of origin. The matter of requesting a refund of 
overpaid harbor maintenance fees is no more important than the matters 
these provisions address.
    Generally, the process of obtaining refunds of harbor maintenance 
fees is well served by allowing up to one year to file the request/
claim. It balances Customs legitimate need for efficient and final 
resolution of claims with the legitimate interest of exporters seeking 
to reclaim fees that should not have been paid or were paid in excess 
of what was due. Moreover, the CAFC in Swisher explicitly stated that 
Customs is ``free to alter the regulation to impose a time limit.'' 
Thus, in imposing this one year time limit, Customs is simply acting on 
the Court's suggestion, in addition to seeking to bring more order and 
reasonable finality to the refund procedure.
    Regarding application of the time limit to export fee payments (or 
other quarterly harbor maintenance fee payments) that were made more 
than a year ago (as is the case with all export fee payments), Customs 
does not agree with the contention that it is unfair and unreasonable 
to require filing of the refund request by the effective date of the 
final rule.
    The notion that exporters will be confined to only a short period 
between publication of the final rule and its effective date to file 
refund requests is simply inaccurate. Customs notes that the regulation 
authorizing a refund request was promulgated in 1991. Thus, exporters 
have had 10 years to file refund requests. As far back as 1995 when the 
fee as applied to exports was initially found to be unconstitutional by 
the U.S. Court of International Trade (CIT) in U.S. Shoe Corp. v. 
United States, 19 CIT 1284, 907 F. Supp. 408 (CIT 1995), exporters were 
on notice of their ability to recover these fees. That was six years 
ago. The regulation authorizing refund requests had been effective for 
four years by that time. While the U.S. Shoe case was appealed and was 
not affirmed by the Supreme Court until its 1998 decision, exporters 
who paid export fees were on notice during that three year period that 
they may be entitled to a refund. Nothing prevented exporters from 
filing refund requests under the existing regulations at any time 
during that period and many exporters did so. Neither were exporters 
precluded from filing refund requests during the period following the 
Supreme Court's conclusive ruling in 1998, and many did so.
    Since February of 2000, when the court in Swisher stated that it 
had jurisdiction to review a refund request denial if properly 
protested within 90 days of the denial, over 130 exporters followed 
these procedures, making it clear that they were available to all 
exporters. In December of 2000, the NPRM gave exporters notice 
regarding the proposed change to the Customs regulations to impose a 
one year time limit within which to file a refund request. This was the 
fourth in a series of public actions (by the courts and Customs) over a 
five year period that served as notice to exporters that refunds of 
export harbor maintenance fees were obtainable. By the time the NPRM's 
proposed amendment is published as a final rule, exporters will have 
had another four to five months since publication of the NPRM to file 
timely refund requests.
    Nevertheless, while Customs believes that requiring the filing of 
export fee refund requests by the effective date of the final rule is 
not unfair or unreasonable, Customs acknowledges the validity of 
sentiments expressed by those commenters who believe that more time to 
file refund requests furthers the interest held by those who have not 
yet requested refunds on fees paid more than a year ago. Customs intent 
at the time it issued the NPRM and, indeed, at the time it issued the 
Interim Regulation (regarding the amended procedure for filing refund 
requests) was to make the one year time limitation effective on the 
usual effective date of a final rule, 30 days from the date of its 
publication in the Federal Register. Based on the commenters' concerns, 
Customs is delaying the effective date of this final rule document to 
the date that is 180 days after publication. This extends by 150 days 
the time within which refund requests for export fees (and other 
quarterly harbor maintenance fees) paid over a year ago can be filed, 
as compared to the 30 day effective period contemplated by Customs at 
the time the NPRM was published and as set forth in the background 
discussion of the Interim Regulation.
    With a delayed effective date of 180 days, exporters will have had 
approximately 12 months from the date of publication of the NPRM to 
file refund requests. As of the date of publication of this final rule 
document, over 2000 exporters have already filed refund requests since 
publication of the NPRM.
    Given all of the above considerations, including the extended 
delayed effective date, Customs believes that exporters have had, and 
still have, ample time to file a refund request.
    In regard to comments that the proposed amendment's time limit is 
retroactive, particularly with respect to payments made more than a 
year ago, Customs notes that an NPRM, by its very nature, is 
prospective, not retroactive. The amendments it proposes will become 
effective only upon later publication of a final rule which itself will 
become efffective prospectively (usually not until at least 30 days 
after its publication but, as above, 180 days for this final rule 
document). Customs therefore disagrees that the time limit at issue is 
retroactive. The fact that it does not retroactively cut off claims is 
evidenced by the more than 2000 exporters who have filed refund 
requests since the NPRM was published and by the additional numbers of 
exporters who surely will file timely refund requests after publication 
of this final rule document.
    As for the comment that some exporters were waiting to see events 
transpire before filing a refund request, Customs again notes that the 
procedure for filing refund requests has been provided for under the 
Customs Regulations for a decade. Any of these exporters could have 
filed refund requests at any time. Exporters who waited may have done 
so at their own peril, but they still will have time to file a timely 
refund request. Again, this final rule is not effective until 180 days 
after publication, and the procedure set forth

[[Page 34816]]

in the Interim Regulation is less burdensome than the procedure it 
replaced. The procedure set forth in the Interim Regulation provides a 
simpler process and more time to perfect a refund request than was made 
apparent in the NPRM. It provides that exporters filing for refunds of 
payments made on or after July 1, 1990, need only file a letter of 
request containing certain information, and those who are required to 
submit supporting documentation (proof of payment) with their requests 
for refund (relative to payments made prior to July 1, 1990) will have 
an additional 120-day period to file additional documentation if a 
timely filed request is denied for lack of or insufficient 
documentation.
    Based on the foregoing, Customs believes that the time limit as 
applied to payments made more than a year ago, as set forth in this 
final rule document, is fair, reasonable, and eminently capable of 
being complied with under the amended refund request procedure. Customs 
believes that the time limit makes the refund regulation more 
consistent with other Customs laws and regulations governing refunds, 
while still affording quarterly payors ample opportunity to file refund 
requests. In imposing this time limit that brings more order, 
efficiency, and measured finality to the process, Customs believes it 
is acting reasonably and responsibly in furtherance of its mission to 
administer the law.

Comments Regarding Applicability of the Regulatory Flexibility Act

    Comment: Three commenters asserted that the one-year filing 
requirement as proposed in the NPRM will have a significant impact on 
small business entities whose rightful claims may be cut off by the 
short deadline (relative to payments made more than a year ago). These 
commenters thus contended that Customs must perform an analysis under 
the Regulatory Flexibility Act (RFA).
    Customs response: The RFA (or Act) requires that an agency perform 
an analysis when that agency's regulatory action will have a 
significant economic impact on a substantial number of small entities. 
Customs does not believe that its action (in amending the regulations 
to impose a one year filing requirement and require, for payments that 
are more than one year old, the filing of requests by the effective 
date of this final rule document) will produce an impact that falls 
within the purview of the Act. More specifically, Customs believes that 
the potential impact complained of (failure to file a timely refund 
request by the effective date of this final rule) will not result from 
its action but from the inaction of exporters or others eligible to 
file for refunds.
    The potential impact complained of is capable of being avoided 
without significant inconvenience or difficulty. There is no reason why 
an exporter should be unable to file a refund request by what Customs 
believes is a reasonable deadline. Numerous refund requests have been 
filed already since publication of the NPRM on December 15, 2000, and 
many were filed even before the NPRM's publication. By the effective 
date of this final rule, exporters will have had at least twelve months 
to file a request for a refund since publication of the NPRM. This 
period is in addition to the one year exporters have had to file refund 
requests since the CAFC's decision in Swisher in February of 2000, the 
three years exporters have had to file requests since the Supreme 
Court's 1998 decision in U.S. Shoe, and the six years they have had to 
file requests since the initial holding of unconstitutionality by the 
CIT in its 1995 U.S. Shoe decision.
    Moreover, an exporter wishing to secure its claim under the instant 
time limit and the Interim Regulation's procedure need only file a 
letter of request prior to the effective date of this final rule, as 
prescribed under the Interim Regulation. Supporting documentation will 
not be required in most cases, and where it is required (for payments 
made prior to July 1, 1990), exporters will have an additional 120 days 
to produce that documentation after an initial claim is denied for lack 
of or insufficient documentation. For these reasons, Customs believes 
that an impact of the kind that triggers an analysis under the RFA will 
not result from its action in imposing the regulatory filing 
requirement at issue.

Comments Concerning Documentary Requirements

    Comment: Many commenters objected to the requirement in the NPRM 
that a CF 349 be filed with requests for refunds. These commenters 
pointed out that Customs accepted other documents with fee payments 
before the regulations required use of the CF 349 sometime in 1991. 
Some stated that Customs accepted payments and issued refunds without 
CF 349s even after 1991. According to these commenters, these other 
documents include the Vessel Export Summary Sheet (with payment), 
cancelled checks (as proof of payment), and other documents (for both 
purposes) from time to time. These commenters urge Customs to amend the 
regulation to permit alternative documentation that reasonably 
establishes payment of the fee.
    One commenter recommended that Customs allow submission of 
reconstructed CF 349s. Many commenters stated that Customs should not 
make a determination on any refund request where the exporter has a 
FOIA request pending. Some suggested that the amended regulation should 
provide that an exporter can file a refund request within 60 days (or 
some other period of time) after its receipt of a FOIA response. Other 
commenters recommended that Customs delay a refund determination on a 
timely filed refund request until the exporter receives a response to 
the FOIA request and is given time to supplement the refund request 
with the documentation received.
    Customs response: These comments were received before the Interim 
Regulation was published simplifying the procedure for filing refund 
requests. The Interim Regulation was published because Customs agrees 
with the general tenor of these comments that there should exist a more 
expeditious and streamlined procedure for requesting an export harbor 
maintenance fee refund and because Customs understands the difficulty 
some exporters face in providing supporting documentation with the 
refund request. Under the Interim Regulation, an exporter requesting a 
refund of export fees need not provide supporting documentation, such 
as the CF 349 or the Export Vessel Movement Summary Sheet, for any 
quarter from July 1990 forward (through April of 1998 when collection 
of export fees ceased). Customs has relieved these exporters from this 
burden because Customs has retained documentation relative to payments 
made during this period. Since Customs possesses this documentation, 
exporters need not file it.
    In doing this (relieving exporters from the documentary 
requirement), Customs removed the 10-year-old regulatory requirement 
that refund requests include supporting documentation. Under the 
Interim Regulation procedure, if there is a dispute as to any quarter 
from July 1990 forward, the exporter must then submit supporting 
documentation for Customs review and consideration. This new procedure 
effectively addresses the concerns exporters raised about FOIA 
requests, as it eliminates any need to obtain supporting documentation 
through a FOIA request for payments made after July of 1990. Documents 
that might be obtained through a FOIA request are not necessary to 
obtain a refund. Customs will apply the new procedure to all

[[Page 34817]]

previously filed refund requests regardless of whether they included 
supporting documentation.
    With regard to the quarters preceding July of 1990, the Interim 
Regulation did not amend the 10-year-old refund request procedure 
because Customs has not retained copies of supporting documentation for 
payments made during this period. Thus, exporters must submit 
supporting documentation with refund requests for any quarter preceding 
July of 1990. The fact that Customs does not possess pre-July 1990 
documentation effectively eliminates any legitimate reason to link a 
FOIA request with a refund request; that is, since Customs does not 
possess and cannot provide copies of the supporting documentation 
requested, a FOIA request would be fruitless.
    Regarding the points made by some commenters concerning the 
documents, Customs acknowledges that the CF 349 was not required until 
1991. Prior to use of the CF 349, Customs required a certified Export 
Vessel Movement Summary Sheet or, if the exporter filed automated 
summary monthly Shippers Export Declarations, a letter containing the 
following information: The exporter's identification, its EIN, the 
appropriate Census Bureau reporting symbol, and the quarter involved. 
Since the Interim Regulation continues to provide that copies of 
supporting documentation must accompany refund requests for quarters 
preceding July of 1990, failure to submit this documentation will 
result in the denial of the refund request. However, under the Interim 
Regulation's procedure, an exporter, whose refund request (covering 
pre-July 1, 1990, payments) is denied for lack of or insufficient 
documentation, will have an additional 120 days from the date of denial 
to submit documentation or additional documentation to support its 
claim. Again, Customs believes that the procedure provided for in the 
Interim Regulation addresses and resolves the commenters concerns 
regarding documentation requirements and FOIA requests.

Comments Regarding Payment of Interest on Export Harbor Maintenance Fee 
Refunds

    Comment: Three commenters urged Customs to apply interest to export 
harbor maintenance fee refunds. One commenter stated that the court in 
Swisher ordered that Customs pay interest on refunds issued under the 
court-imposed procedure (applicable to only those who filed complaints 
with the court). This commenter contended that Customs administrative 
procedure should be consistent with the court's intentions and provide 
for the payment of interest.
    Customs response: Customs disagrees with the commenters who called 
for the payment of interest on administrative refunds of export harbor 
maintenance fee payments. The CAFC ruled in International Business 
Machines Corp. v. United States, 205 F. 3d 1367 (Fed. Cir. 2000) 
(hereafter, IBM), a test case designated to resolve all export fee 
interest issues, that exporters are not entitled to interest on the 
refund of these fees. The court opined that there is no statutory 
waiver of sovereign immunity which would allow the United States to pay 
interest on adminstrative refunds. IBM attempted to appeal this ruling 
to the United States Supreme Court, but the Supreme Court refused to 
hear the case (IBM v. United States, cert. denied, 69 U.S.L.W. 3259 
(Feb. 20, 2001)).
    In the meantime, several exporters have filed lawsuits in the CIT 
arguing that interest should be paid on adminstrative refunds of export 
fees on grounds they claim were not considered by the CAFC in IBM. 
Unless there is a final ruling awarding interest in these lawsuits, or 
in any test case designated by the CIT to resolve this issue, Customs 
will abide by the ruling in IBM that bars the payment of interest on 
adminstrative refunds of export fees.
    In addition, it should be noted that, as in Swisher, post-judgment 
interest is paid in lawsuits where a request for export fee refunds was 
denied by Customs, a protest was filed and denied, and a lawsuit was 
commenced under 28 U.S.C. 1581(a). However, this payment of post-
judgment interest, which is statutorily mandated, does not apply to 
adminstrative refunds of export fees.
    Comment: Six commenters stated that Customs should hold a public 
hearing or meeting on the proposed amendment. These commenters alleged 
that the short deadline for filing refund requests for payments that 
are more than a year old will have a significant and harmful impact on 
small business entities. Thus, a public meeting or hearing would be 
appropriate to consider applicability of the provisions of the RFA and 
to discuss the time limit proposed and its effect on the capability of 
exporters to meet the deadline and submit required documentation.
    Customs response: Customs believes that a public hearing or meeting 
is not necessary because the issues raised in the comments as reasons 
for the meeting have been addressed and resolved by Customs since 
publication of the NPRM. More specifically, Customs believes that the 
following provisions, which were not included in the NPRM, will 
satisfactorily resolve the commenters' concerns: (1) This final rule 
document's delayed effective date, which will extend the date by which 
refund requests for payments made more than a year ago must be filed to 
180 days from the date of publication in the Federal Register (as 
opposed to 30 days after publication, as indicated in the Interim 
Regulation); (2) the Interim Regulation's provision that exporters need 
not file supporting documentation with refund requests for payments 
made on and after July 1, 1990; and (3) the Interim Regulation's 
provision of an additional 120 days for filing supporting documentation 
where supporting documentation is required.
    As these provisions change the circumstances contemplated by the 
commenters who suggested a public meeting, and since Customs believes 
they put to rest the commenters' concerns, Customs believes that a 
public meeting is not necessary.

Conclusion

    After analysis of the comments and further review and consideration 
of the matter, Customs has determined to adopt as final the amendment 
proposed in the NPRM published in the Federal Register (65 FR 78430) on 
December 15, 2000, setting forth in Sec. 24.24(e)(4) the one year time 
limitation on requesting refunds of quarterly-paid harbor maintenance 
fees. It is noted that because Customs has issued the Interim 
Regulation that amended Sec. 24.24(e)(4) to simplify the procedures for 
requesting refunds of export harbor maintenance fees, after publication 
of the NPRM, the structure of Sec. 24.24(e)(4) is revised from how it 
is set forth in the NPRM to reflect the substance of the Interim 
Regulation.
    Customs notes that the text of the amended regulation does not 
explicitly set forth that refund requests for export fee payments that 
were made more than a year ago must be filed by the effective date of 
this final rule document. It only sets forth the one-year-from-payment 
filing requirement (with the aforementioned exception for foreign trade 
zone withdrawals). Customs therefore emphasizes that export fee refund 
requests for payments made more than a year ago that are not filed on 
or before the effective date of this final rule will be rejected as 
untimely. After a reasonable time, the regulation will be amended to 
delete the provision concerning refunds of export harbor maintenance 
fees, as these fees are no longer collected by Customs (and haven't 
been since April of 1998).
    Regarding the other proposed changes in the NPRM, the technical 
change

[[Page 34818]]

proposed to Sec. 24.24(e)(2)(ii) is adopted as proposed. As mentioned 
in the comment discussion, Customs has determined not to proceed at 
this time with the proposed amendment to Sec. 24.73 imposing a one year 
filing requirement on general claims.

Paperwork Reduction Act

    The collection of information contained in this regulation has 
previously been reviewed and approved by the Office of Management and 
Budget (OMB) under OMB control number 1515-0158. This rule does not 
include any changes to the existing approved information collection.

Regulatory Flexibility Act

    Insofar as this amendment to the regulations merely adds a 
reasonable time limit within which to file for an already provided for 
Customs procedure under an existing regulation, pursuant to the 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), it 
is certified that this amendment will not have a significant economic 
impact on a substantial number of small entities. Accordingly, the 
amendment is 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 Bill Conrad, Office of 
Regulations and Rulings, U.S. Customs Service. However, personnel from 
other offices contributed in its development.

List of Subjects in 19 CFR Part 24

    Accounting, Claims, Customs duties and inspection, Fees, Financial 
and accounting procedures, Harbors, Imports, Reporting and 
recordkeeping requirements, Taxes, User fees.

Amendments to the Regulations

    For the reasons stated in the preamble, Part 24 of the Customs 
Regulations (19 CFR Part 24) is amended as follows:

PART 24--CUSTOMS FINANCIAL AND ACCOUNTING PROCEDURE

    1. The authority citation for part 24 continues to read in part as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General 
Note 22, Harmonized Tariff Schedule of the United States), 1505, 
1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701.
* * * * *

    2. Section 24.24 is amended by revising the heading of paragraph 
(e), removing in paragraph (e)(2)(ii) the reference to ``(e)(3)(iii)'' 
and adding in its place ``(e)(2)(iii)'', and revising paragraph (e)(4) 
to read as follows:


Sec. 24.24  Harbor maintenance fee.

* * * * *
    (e) Collections, supplemental payments, and refunds-- * * *
    (4) Refunds and supplemental payments--(i) General. To make 
supplemental payments or seek refunds of harbor maintenance fees paid 
relative to the unloading of imported cargo, the procedures applicable 
to supplemental payments or refunds of ordinary duties must be 
followed. To seek refunds of quarterly-paid harbor maintenance fees 
pertaining to export movements, the procedures set forth in paragraph 
(e)(4)(iv) of this section must be followed. To make supplemental 
payments on any quarterly-paid harbor maintenance fee or seek refunds 
of quarterly-paid harbor maintenance fees pertaining to other than 
export movements, the procedures set forth in paragraph (e)(4)(iii) 
must be followed. The address to mail supplemental payments of 
quarterly-paid harbor maintenance fees is: U.S. Customs Service, P.O. 
Box 70915, Chicago, Illinois 60673-0915. The address to mail requests 
for refunds of quarterly-paid harbor maintenance fees is: U.S. Customs 
Service, HMT Refunds, 6026 Lakeside Blvd., Indianapolis, IN, 46278.
    (ii) Time limit for refund requests. A refund request must be 
received by Customs within one year of the date the fee for which the 
refund is sought was paid to Customs or, in the case of fees paid 
relative to imported merchandise admitted into a foreign trade zone and 
subsequently withdrawn from the zone under 19 U.S.C. 1309, within one 
year of the date of withdrawal from the zone.
    (iii) For fees paid on other than export movements. If a 
supplemental payment is made for any quarterly-paid harbor maintenance 
fee or a refund is requested relative to quarterly fee payments 
previously made regarding the loading or unloading of domestic cargo, 
the unloading of cargo destined for admission into a foreign trade 
zone, or the boarding or disembarking of passengers, the refund request 
or supplemental payment must be accompanied by a Harbor Maintenance Fee 
Amended Quarterly Summary Report, Customs Form 350, along with a copy 
of the Harbor Maintenance Fee Quarterly Summary Report, Customs Form 
349, for the quarter(s) covering the payment to which the refund 
request or supplemental payment relates. A request for a refund must 
specify the grounds for the refund.
    (iv) For fees paid on export movements. Customs will process refund 
requests relative to fee payments previously made regarding the loading 
of cargo for export as follows:
    (A) For export fee payments made prior to July 1, 1990, the 
exporter (the name that appears on the SED or equivalent documentation 
authorized under 15 CFR 30.39(b)) or its agent must submit a letter of 
request for a refund specifying the grounds for the refund and 
identifying the specific payments made. The letter must be accompanied 
by proof of payment then required under the regulations relative to 
each payment claimed. Proof of payment can be either a copy of the 
Export Vessel Movement Summary Sheet or, where an Automated Summary 
Monthly Shipper's Export Declaration was filed, a letter containing the 
exporter's identification, its employer identification number (EIN), 
the Census Bureau reporting symbol, and the quarter for which the 
payment was made. Upon receiving a letter of request for a refund, 
Customs will evaluate the supporting documentation submitted and issue 
the refund to the exporter or its agent if warranted. If the request 
lacks documentation or the documentation submitted is insufficient, the 
exporter's refund request will be denied, in which case the exporter 
will have an additional 120 days from the date of denial to submit 
documentation or additional documentation. If the documentation 
submitted during the 120 day period is insufficient, Customs will deny 
the request.
    (B) For export fee payments made on or after July 1, 1990, the 
exporter or its agent must submit a letter of request for a refund 
specifying the grounds for the refund, identifying the quarters for 
which a refund is sought, and containing the following additional 
information: The exporter's name, address, and employer identification 
number (EIN); the name and EIN of any freight forwarder or other agent 
that made export fee payments on the exporter's behalf; and a name, 
telephone number, and facsimile number of a contact person. If a refund 
request is filed by a freight forwarder or other agent on the 
exporter's behalf, the request must include a properly executed power 
of attorney and/or a letter signed by the exporter authorizing the 
representation. Refund requests for payments made on or after July 1, 
1990, need not be accompanied by supporting documentation. Upon receipt 
of the letter of request, Customs will search its

[[Page 34819]]

records for export fee payments made by or on behalf of the requesting 
exporter during the quarters identified in the letter of request. 
Customs will then mail to the exporter or its agent a ``Harbor 
Maintenance Fee Refund Report and Certification'' (Report/
Certification) containing the results of the search and a statement of 
the amount of refunds owed to the exporter, if any. If the exporter 
agrees with the information in the Report/Certification, the exporter 
must sign the Report/Certification and submit it to Customs with a 
letter containing an address for mailing the refund. The Report/
Certification must be signed by an officer of the company duly 
authorized to bind the company, or an agent (such as a broker or 
freight forwarder) authorized to sign the document under a properly 
executed power of attorney or a letter signed by an authorized officer 
of the company. Upon receipt of the signed Report/Certification, 
Customs will issue the refund. If the exporter disagrees with the 
information in the Report/Certification, the exporter must submit a 
letter explaining its claim along with proof of payment, either a copy 
of a Harbor Maintenance Fee Quarterly Summary Report, Customs Form 349, 
for the quarter(s) covering the refund requested or, if applicable, a 
copy of an Export Vessel Movement Summary Sheet or, where an Automated 
Summary Monthly Shipper's Export Declaration was filed, a letter 
containing the exporter's identification, its employer identification 
number (EIN), the Census Bureau reporting symbol, and the quarter for 
which the payment was made. Upon receiving the letter and 
documentation, Customs will conduct a second review and will either 
confirm the exporter's claim and mail a revised Report/Certification to 
the exporter or its agent, or notify the exporter or its agent that 
confirmation cannot be made. In the latter instance, the Report/
Certification will not be revised. Upon receipt of a properly signed 
Report/Certification (initial or revised), Customs will issue the 
refund. The signed Report/Certification received by Customs constitutes 
the exporter's agreement that Customs payment of the refund amount 
determined to be owed in the Report/Certification is in full accord and 
satisfaction of all export fee refund claims. The signed Report/
Certification also represents the exporter's release, waiver, and 
abandonment of all claims against the Government, its officers, agents, 
and assigns for costs, attorney fees, expenses, compensatory damages, 
and exemplary damages. Upon receipt of the signed Report/Certification, 
Customs releases, waives, and abandons all claims other than fraud 
against the exporter, its officers, agents, or employees arising out of 
all export fee payments.
* * * * *

Charles W. Winwood,
Acting Commissioner of Customs.
    Approved: May 18, 2001.
Timothy E. Skud,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 01-16479 Filed 6-29-01; 8:45 am]
BILLING CODE 4820-02-P