[Federal Register Volume 71, Number 44 (Tuesday, March 7, 2006)]
[Rules and Regulations]
[Pages 11304-11306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2070]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Part 10

[CBP Dec. 06-06; USCBP-2006-0012]
RIN 1505-AB64


Dominican Republic--Central America--United States Free Trade 
Agreement

AGENCY: Customs and Border Protection, Homeland Security; Treasury.

ACTION: Interim rule.

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SUMMARY: This document amends the Customs and Border Protection 
(``CBP'') regulations on an interim basis to set forth the conditions 
and requirements that apply for purposes of submitting requests to 
Customs and Border Protection for refunds of any excess customs duties 
paid with respect to entries of textile or apparel goods entitled to 
retroactive application of preferential tariff treatment under the 
Dominican Republic--Central America--United States Free Trade 
Agreement.

DATES: Effective Date: Interim rule effective on March 7, 2006; 
comments must be received by May 8, 2006.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2006-0012.
     Mail: Trade and Commercial Regulations Branch, Office of 
Regulations and Rulings, Bureau of Customs and Border Protection, 1300 
Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected during regular business days between the hours of 
9 a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch, 
Office of Regulations and Rulings, Bureau of Customs and Border 
Protection, 799 9th Street, NW., 5th Floor, Washington, DC. 
Arrangements to inspect submitted comments should be made in advance by 
calling Mr. Joseph Clark at (202) 572-8768.

FOR FURTHER INFORMATION CONTACT:
    Operational aspects: Robert Abels, Textile Operations, Office of 
Field Operations (202) 344-1959.
    Legal aspects: Cynthia Reese, Tariff Classification and Marking 
Branch, Office of Regulations and Rulings (202) 572-8812.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim rule. CBP also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this 
interim rule. Comments that will provide the most assistance to CBP in 
developing these procedures will reference a specific portion of the 
interim rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change. See ADDRESSES above for information on how to submit comments.

Background

    The Dominican Republic--Central America--United States Free Trade 
Agreement (``CAFTA-DR'' or ``Agreement'') was entered into by the 
governments of Costa Rica, the Dominican Republic, El Salvador, 
Guatemala, Honduras, Nicaragua, and the United States on August 5, 
2004. The U.S. Congress approved the CAFTA-DR in the Dominican 
Republic--Central America--United States Free Trade Agreement 
Implementation Act (the ``Act''), Public Law 109-53, 119 Stat. 462 (19 
U.S.C. 4001 et seq.).
    Section 205 of the Act implements Article 3.20 of the CAFTA-DR by 
providing for the retroactive application of the preferential tariff 
provisions of the Agreement with respect to qualifying textile or 
apparel goods of eligible CAFTA-DR countries that were entered on or 
after January 1, 2004, and before the date of entry into force of the 
Agreement for that country. Specifically, section 205(a) provides that, 
notwithstanding 19 U.S.C. 1514 or any other provision of law, an entry 
of a textile or apparel good: (1) Of a CAFTA-DR country that the United 
States Trade Representative has designated as an eligible country for 
purposes of section 205; (2) that would have qualified as an 
originating good under section 203 of the Act if the good had been 
entered after the date of entry into force of the Agreement for that 
country; (3) that was made on or after January 1, 2004, and before the 
date of the entry into force of the Agreement with respect to that 
country; and (4) for which customs duties were paid in excess of the 
applicable rate of duty for that good set out in Annex 3.3 of the 
Agreement, will be liquidated or reliquidated at the applicable rate of 
duty for that good set out in Annex 3.3 of the Agreement, and the 
Secretary of

[[Page 11305]]

the Treasury will refund any excess customs duties paid with respect to 
that entry.
    Section 205(b) of the Act provides that the United States Trade 
Representative will determine which CAFTA-DR countries are eligible 
countries for purposes of this section and will publish a list of those 
countries in the Federal Register.
    Section 205(c) of the Act provides that liquidation or 
reliquidation may be made under section 205(a) with respect to an entry 
of a textile or apparel good only if a request therefor is filed with 
CBP, within such period as CBP shall establish by regulation in 
consultation with the Secretary of the Treasury, that contains 
sufficient information to enable CBP: (1) To locate the entry or to 
reconstruct the entry if it cannot be located; and (2) to determine 
that the good satisfies the conditions set out in section 205(a).
    Section 205(d) states that, as used in section 205, the term 
``entry'' includes a withdrawal from warehouse for consumption.
    Pursuant to section 205(c) of the Act, CBP, in consultation with 
the Department of the Treasury, has determined that requests for 
refunds of any excess customs duties paid with respect to entries of 
textile or apparel goods of an eligible CAFTA-DR country must be filed 
with CBP by the later of December 31, 2006, or the date that is 90 days 
after the entry into force of the Agreement with respect to that 
country. As required by section 205(c) of the Act, CBP is amending the 
CBP regulations by adding a new Subpart J to Part 10 and new Sec.  
10.699 to set forth the time period within which requests for refunds 
must be submitted to CBP, as well as the other legal conditions and 
requirements that apply for purposes of requesting refunds pursuant to 
section 205 of the Act.
    It is noted that, in accordance with the recent decision of the 
U.S. Court of Appeals for the Federal Circuit in Orlando Foods Corp. v. 
United States, No. 04-1612 (Federal Cir. Sept. 14, 2005), new Sec.  
10.699 provides that any refund of excess customs duties made pursuant 
to that section will be accompanied by interest from the date of the 
affected entry.

Inapplicability of Notice and Delayed Effective Date Requirements

    Under the Administrative Procedure Act (``APA'') (5 U.S.C. 553), 
agencies generally are required to publish a notice of proposed 
rulemaking in the Federal Register that solicits public comment on the 
proposed regulatory amendments, consider public comments in deciding on 
the content of the final amendments, and publish the final amendments 
at least 30 days prior to their effective date. However, section 
553(a)(1) of the APA provides that the standard notice and comment 
procedures do not apply to an agency rulemaking to the extent that it 
involves a foreign affairs function of the United States. CBP has 
determined that this interim rule involves a foreign affairs function 
of the United States because it implements certain preferential tariff 
treatment provisions of the CAFTA-DR.
    In addition, section 553(b)(B) of the APA provides that notice and 
public procedure are not required when an agency for good cause finds 
them impracticable, unnecessary, or contrary to the public interest. 
CBP finds that providing notice and public procedure for these 
regulations would be impracticable, unnecessary, and contrary to the 
public interest because they set forth procedures that the public needs 
to know as soon as possible in order to claim the benefit of the 
retroactive tariff preference provisions of the Act.
    Finally, sections 553(d)(1) and (d)(3) of the APA exempt agencies 
from the requirement of publishing notice of final rules at least 30 
days prior to their effective date when a substantive rule grants or 
recognizes an exemption or relieves a restriction and when the agency 
finds that good cause exists for not meeting the advance publication 
requirement. For the reasons described above, CBP has determined that 
these regulations grant an exemption and relieve restrictions and that 
good cause exists for dispensing with a delayed effective date.

Executive Order 12866 and Regulatory Flexibility Act

    CBP has determined that this document is not a regulation or rule 
subject to the provisions of Executive Order 12866 of September 30, 
1993 (58 FR 51735, October 1993), because it pertains to a foreign 
affairs function of the United States and implements certain 
preferential tariff treatment provisions of an international agreement, 
as described above, and therefore is specifically exempted by section 
3(d)(2) of Executive Order 12866. Because a notice of proposed 
rulemaking is not required under section 553(b) of the APA for the 
reasons described above, CBP notes that the provisions of the 
Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.), do not 
apply to this rulemaking. Accordingly, CBP also notes that this interim 
rule is not subject to the regulatory analysis requirements or other 
requirements of 5 U.S.C. 603 and 604.

Paperwork Reduction Act

    These regulations are being issued without prior notice and public 
procedure pursuant to the APA, as described above. For this reason, the 
collection of information contained in these regulations has been 
reviewed and, pending receipt and evaluation of public comments, 
approved by the Office of Management and Budget in accordance with the 
requirements of the Paperwork Reduction Act (44 U.S.C. 3507) on 
February 22, 2006, under control number 1651-0125.
    The collection of information in these regulations is in Sec.  
10.699. This information is required in connection with requests for 
refunds of any excess customs duties paid with respect to entries of 
textile or apparel goods entitled to retroactive application of 
preferential tariff treatment under the CAFTA-DR and the Act and will 
be used by CBP to determine eligibility for such refunds under the 
CAFTA-DR and the Act. The likely respondents are business organizations 
including importers, exporters and manufacturers.
    Estimated total annual reporting burden: 4,000 hours.
    Estimated average annual burden per respondent: 96 minutes.
    Estimated number of respondents: 2,500.
    Estimated annual frequency of responses: 4.
    Comments concerning the collections of information and the accuracy 
of the estimated annual burden, and suggestions for reducing that 
burden, should be directed to the Office of Management and Budget, 
Attention: Desk Officer for the Department of Homeland Security, Office 
of Information and Regulatory Affairs, Washington, DC 20503. A copy 
should also be sent to the Trade and Commercial Regulations Branch, 
Office of Regulations and Rulings, Bureau of Customs and Border 
Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 
20229.

Signing Authority

    This document is being issued in accordance with Sec.  0.1(a)(1) of 
the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of 
the Secretary of the Treasury (or his delegate) to approve regulations 
related to certain CBP revenue functions.

List of Subjects in 19 CFR Part 10

    Customs duties and inspection, Entry, Imports, Preference Programs, 
Reporting

[[Page 11306]]

and recordkeeping requirements, Trade agreements.

Amendments to the Regulations

0
Accordingly, chapter I of title 19, Code of Federal Regulations (19 CFR 
chapter I), is amended as set forth below.

PART 10--ARTICLES CONDITIONALLY FREE, SUBJECT TO A REDUCED RATE, 
ETC.

0
1. The general authority citation for part 10 continues, and the 
specific authority for new Subpart J is added, to read as follows:

    Authority: 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized 
Tariff Schedule of the United States), 1321, 1481, 1484, 1498, 1508, 
1623, 1624, 3314;
* * * * *
    Section 10.699 also issued under Pub. L. 109-53, 119 Stat. 462.


0
2. Part 10, CBP regulations, is amended by adding a new Subpart J to 
read as follows:

Subpart J--Dominican Republic--Central America--United States Free 
Trade Agreement

Retroactive Preferential Tariff Treatment for Textile and Apparel Goods


Sec.  10.699  Refunds of Excess Customs Duties

    (a) Applicability. The Dominican Republic-Central America-United 
States Free Trade Agreement (CAFTA-DR or Agreement) was entered into by 
the governments of Costa Rica, the Dominican Republic, El Salvador, 
Guatemala, Honduras, Nicaragua, and the United States on August 5, 
2004. The Congress approved the CAFTA-DR in the Dominican Republic--
Central America--United States Free Trade Agreement Implementation Act 
(the Act), Public Law 109-53, 119 Stat. 462 (19 U.S.C. 4001 et seq.). 
Section 205 of the Act provides for the retroactive application of the 
Agreement and payment of refunds for any excess duties paid with 
respect to entries of textile and apparel goods of eligible CAFTA-DR 
countries that meet certain conditions and requirements. Those 
conditions and requirements are set forth in paragraphs (b) and (c) of 
this section.
    (b) General. Notwithstanding 19 U.S.C. 1514 or any other provision 
of law, and subject to paragraph (c) of this section, a textile or 
apparel good of an eligible CAFTA-DR country that was entered or 
withdrawn from warehouse for consumption on or after January 1, 2004, 
and before the date of the entry into force of the Agreement with 
respect to that country will be liquidated or reliquidated at the 
applicable rate of duty for that good set out in the Schedule of the 
United States to Annex 3.3 of the Agreement, and CBP will refund any 
excess customs duties paid with respect to such entry, with interest 
accrued from the date of entry, provided:
    (1) The good would have qualified as an originating good under 
Sec.  203 of the Act if the good had been entered after the date of 
entry into force of the Agreement for that country; and
    (2) Customs duties in excess of the applicable rate of duty for 
that good set out in the Schedule of the United States to Annex 3.3 of 
the Agreement were paid.
    (c) Request for liquidation or reliquidation. Liquidation or 
reliquidation may be made under paragraph (b) of this section with 
respect to an entry of a textile or apparel good of an eligible CAFTA-
DR country only if a request for liquidation or reliquidation is filed 
with the CBP port where the entry was originally filed by the later of 
December 31, 2006, or the date that is 90 days after the date of the 
entry into force of the Agreement for that country, and the request 
contains sufficient information to enable CBP:
    (1) To locate the entry or to reconstruct the entry if it cannot be 
located; and
    (2) To determine that the good satisfies the conditions set forth 
in paragraph (b) of this section.
    (d) Definitions. For purposes of this section:
    (1) ``Eligible CAFTA-DR country'' means a country that the United 
States Trade Representative has determined, by notice published in the 
Federal Register, to be an eligible country for purposes of section 205 
of the Act; and
    (2) ``Textile or apparel good'' means a good listed in the Annex to 
the Agreement on Textiles and Clothing referred to in section 101(d)(4) 
of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(4)), other than 
a good listed in Annex 3.29 of the Agreement.

Deborah J. Spero,
Acting Commissioner of Customs and Border Protection.

    Approved: February 28, 2006.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 06-2070 Filed 3-6-06; 8:45 am]
BILLING CODE 9111-14-P