[Federal Register Volume 73, Number 243 (Wednesday, December 17, 2008)]
[Proposed Rules]
[Pages 76571-76573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29128]


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DEPARTMENT OF COMMERCE

International Trade Administration

15 CFR Part 301

[Docket No. 080102004-8005-01]
RIN 0625-AA75


Changes in Procedures for Florence Agreement Program

AGENCY: Import Administration, International Trade Administration 
(``ITA''), Department of Commerce.

ACTION: Proposed rule.

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SUMMARY: This action invites public comment on a proposal to amend the 
regulations that govern the duty-free entry of scientific instruments 
and apparatus into the United States by educational and nonprofit 
institutions. The amendments are being proposed for the purpose of 
making technical changes required by the passage of the Miscellaneous 
Trade and Technical Corrections Act of 2004, updating the regulations 
to comport with current Customs and Border Protection (``CBP'') 
practices and changes made in the Harmonized Tariff Schedule of the 
United States (``HTSUS'') and adding a Web site address for Statutory 
Import Programs Staff (``SIPS''). We also propose amending the 
regulations to reflect the new nomenclature changes made necessary by 
the transfer of the legacy Customs Service of the Department of the 
Treasury to the Department of Homeland Security (``DHS'').

DATES: Written comments must be received on or before January 16, 2009.

ADDRESSES: Address written comments to Jesse Cortes, Import Policy 
Analyst, Subsidies Enforcement Office, Room 3713, U.S. Department of 
Commerce, 14th and Constitution Ave., NW., Washington, DC 20230, or 
electronically via the Federal Government e.rulemaking portal, http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jesse Cortes, (202) 482-3986, same 
address as above.

SUPPLEMENTARY INFORMATION: The Departments of Commerce and Treasury 
(``the Departments'') and Customs and Border Protection are proposing 
to amend Part 301, Chapter III, Subtitle B of Title 15 of the Code of 
Federal Regulations relating to their responsibilities under the 
Educational, Scientific, and Cultural Materials Importation Act of 1966 
(the ``Act''; Public Law 89-651, as amended by Public Law 106-36; 80 
Stat. 897). The Act implements U.S. treaty obligations under Annex D of 
the Florence Agreement, relating to the import of scientific 
instruments and apparatus. Treaty signatories agreed to waive duties on 
such imports if there is no scientifically equivalent instrument being 
manufactured in the country of importation and the instrument is to be 
used by a nonprofit institution established for scientific research or 
educational purposes.

Proposed Amendments

    ITA proposes to amend language in 15 CFR 301.8(a)(4) because 
references to liquidation being suspended for a period of 180 days from 
the date of entry are not accurate and the reference to ``suspension'' 
is misleading. Under 15 CFR part 301, an applicant desiring duty-free 
entry of an instrument may make a claim with CBP at the time of entry 
of an instrument that the instrument is entitled to duty-free 
classification under subheading 9810.00.60, HTSUS. Currently, 15 CFR 
301.8(a)(4)) states that liquidation of the entry shall be suspended 
for a period of 180 days from the date of entry and that the applicant 
must file a properly stamped application form on or before the end of 
this suspension period or the entry will be liquidated without regard 
to 9810.00.60, HTSUS. We are proposing to amend 15 CFR 301.8(a)(4)) to 
delete any reference to the 180 day time period in its entirety. The 
current provision was promulgated in 1982 and does not reflect the 
subsequent amendments to 19 U.S.C. 1504. Under current law, CBP has up 
to one year to liquidate an entry before it is deemed liquidated by 
operation of law. See 19 U.S.C. 1504. After the enactment of 19 U.S.C. 
1504 in 1978, CBP generally liquidated entries within 90 days of entry. 
The 180-day period referenced in the regulations was an exception. 
Moreover, the use of the term ``suspension'' is misleading since the 
governing statute (subchapter III, chapter 98, HTSUS (19 U.S.C. 1202)) 
does not authorize a ``suspension'' of liquidation. While there is no 
statutory authority preventing CBP from liquidating the entry at any 
time during the one-year period after entry of the merchandise, see 
Peer Chain Co. vs. United States, 316 F. Supp. 2d 1357 (CIT 2004) CBP 
normally liquidates an entry 315-days after entry is filed. Importers 
should file a copy of the stamped application as soon as possible 
because CBP may liquidate the entry at any time.
    We also propose amending 15 CFR 301.8(c) to delete references to 
the protest period for entries as the referenced period is out-of-date 
due to the statutory amendments made by the Miscellaneous Trade and 
Technical Corrections Act of 2004, Public Law 108-429, Sec.  
2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. 1514(c)(3)).
    We further propose amending 15 CFR 301.3(b) to include the SIPS Web 
site address to let interested parties know that the application for 
duty-free entry of scientific instruments (Form ITA-338P) may be 
obtained from that Web site.
    The proposed rule would also amend 15 CFR 301.2(j) and (o) by 
removing the references to spectrometers. This change is proposed 
because Presidential Proclamation 7011 of June 30, 1997, made 
spectrometers free of duty. This proposed rule would also add language 
to 15 CFR 301.2(j) that describes an appropriate example of ancillary 
equipment.
    Finally, pursuant to section 403 of the Homeland Security Act of 
2002 (Pub. L. 107-296) (2002), the U.S. Customs Service was transferred 
from the Department of the Treasury to the Department of Homeland 
Security (``DHS''). Under the Reorganization Plan (Nov. 25, 2002), this 
transfer became effective as of March 1, 2003. The former Customs 
Service had been redesignated as the Bureau of Customs and Border 
Protection and pursuant to section 872(a)(2) of the Homeland Security 
Act (see 6 U.S.C. 452(a)(2)), DHS notified Congress on January 18, 
2007, that it was changing the name of the Bureau of Customs and Border 
Protection to ``U.S. Customs and Border Protection (CBP)'' effective 
March 31, 2007 (see 72 FR 20131, April 23, 2007). As a result of this 
reorganization, we propose amending 15 CFR 301 by replacing ``U.S. 
Customs Service'' and similar references throughout the regulations 
with its new designation, ``Customs and Border Protection'' or CBP. We 
note that we are retaining the ``Department of the Treasury'' wherever 
it occurs in the regulations for purposes of the Florence Agreement 
Program

[[Page 76572]]

because the Treasury Department did not delegate this function to the 
Secretary of Homeland Security (See Treasury Department Order No. 100-
16, set forth in the appendix to Part 0 of title 19 of the Code of 
Federal Regulations).
    As reflected in Sec.  10.114 of the CBP regulations (19 CFR 
10.114), the consolidated regulations of the Commerce and Treasury 
Departments relating to the entry of instruments and apparatus for 
educational and scientific institutions are contained in 15 CFR part 
301. With respect to the responsibility of the Department of the 
Treasury in issuing these joint regulations, this document is being 
issued under the authority of Sec.  0.1(a)(1) of the CBP Regulations 
(19 CFR 0.1(a)(1)). Accordingly, regulations for which the Secretary of 
the Treasury retains the sole authority to approve pursuant to 19 CFR 
0.1(a)(1) are signed by the Secretary of the Treasury (or his or her 
Treasury delegate), and by the Commissioner of CBP, who is signing this 
document as the delegate of the Secretary of the Department of Homeland 
Security.

Administrative Law Requirements

    Regulatory Flexibility Act. In accordance with the Regulatory 
Flexibility Act (``RFA''), 5 U.S.C. 601 et seq., the Chief Counsel for 
Regulation at the Department of Commerce has certified to the Chief 
Counsel for Advocacy, Small Business Administration, that the proposed 
rule, if promulgated as final, will not have a significant economic 
impact on a substantial number of small entities. The applicants for 
the duty-free entry of scientific instruments and apparatus are 
educational and non-profit institutions. The proposed rulemaking would 
make the necessary changes required by the passage of the Miscellaneous 
Trade and Technical Corrections Act of 2004, update the regulations to 
comport with current CBP practices and changes in the HTSUS, add a Web 
site address for SIPS and make necessary changes to reflect the new 
designations that were created when Customs became CBP. Adoption of 
this rule would implement the following changes: Extend the liquidation 
period and, therefore, the amount of time the applicant has to submit a 
properly stamped copy of the form ITA-338P to CBP before liquidation 
occurs; remove the outdated reference to a 90-day protest period; 
remove outdated references to spectrometers; add the SIPS Web site 
address to let interested parties know that the application for duty-
free entry of scientific instruments (Form ITA-338P) can be obtained 
from the SIPS Web site; and make the necessary changes to reflect the 
new nomenclature changes made necessary by the transfer of the legacy 
Customs Service of the Department of the Treasury to DHS and the 
subsequent enfolding of the U.S. Customs Service into the Bureau of 
Customs and Border Protection and then its subsequent name change by 
DHS to ``U.S. Customs and Border Protection'' on March 31, 2007. There 
would be no adverse economic impact from these proposed changes.
    This proposed rule also would not change reporting or recordkeeping 
requirements. The changes in the regulations will also not duplicate, 
overlap or conflict with other laws or regulations. Consequently, the 
changes are not expected to meet the RFA criteria of having a 
``significant'' economic effect on a ``substantial number'' of small 
entities, as stated in 5 U.S.C. 603 et seq. Therefore, a regulatory 
flexibility analysis was not prepared.
    Paperwork Reduction Act. This proposed rulemaking does not contain 
revised collection of information requirements subject to review and 
approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995. Collection activities are currently 
approved by the Office of Management and Budget under control number 
0625-0037.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information unless it 
displays a currently valid OMB control number.
    Executive Order 12866. It has been determined that the proposed 
rulemaking is not significant for purposes of Executive Order 12866.

List of Subjects in 15 CFR Part 301

    Administrative practice and procedure, Customs duties and 
inspection, Educational facilities, Imports, Nonprofit organizations, 
Scientific equipment.

    For the reasons set forth in the preamble, 15 CFR part 301 is 
proposed to be amended as follows:

PART 301--[AMENDED]

    1. The authority citation for part 301 continues to read as 
follows:

    Authority: Sec. 6(c), Pub. L. 89-651, 80 Stat. 897, 899; Sec. 
2402, Pub. L. 106-36, 113 Stat. 127, 168.


Sec.  301.1  [Amended]

    2. Section 301.1 is amended by removing ``Secretary of the Treasury 
(U.S. Customs Service)'' in paragraph (c)(2) and adding ``Customs and 
Border Protection'' in its place.


Sec.  301.2  [Amended]

    3. Section 301.2 is amended as follows:
    a. Paragraph (b) is amended by removing ``Customs means the U.S. 
Customs Service and `The Commissioner' means Commissioner of the U.S. 
Customs Service'' and adding ``The Commissioner means Commissioner of 
Customs and Border Protection'' in its place;
    b. Paragraph (c) is amended by removing ``Customs Port'' and adding 
``CBP Port'' in its place;
    c. The third sentence of paragraph (j) is amended by removing 
``automatic sampling equipment sold for use with a variety of mass 
spectrometers'' and adding ``a vacuum evaporator sold for use with an 
electron microscope'' in its place;
    d. Paragraph (o) is amended by removing the words ``mass 
spectrometer'' and ``x-ray spectrometer.''.


Sec.  301.3  [Amended]

    4. Section 301.3 is amended as follows:
    a. The first sentence of paragraph (b) is amended by removing 
``20230, or'' and adding ``20230, the Web site at http://ia.ita.doc.gov/sips/index.html, or'' in its place;
    b. Paragraph (c) is amended by removing the words ``U.S. Customs 
Service, Department of the Treasury,'' and adding ``U.S. Customs and 
Border Protection'' in its place.
    5. Section 301.8 is amended as follows:
    a. Paragraph (a)(4) is revised to read as set forth below;
    b. The second sentence of paragraph (c) is amended by removing ``, 
within 90 days after notice of liquidation''.


Sec.  301.8  Instructions for entering instruments through U.S. Customs 
and Border Protection under subheading 9810.00.60, HTSUS.

* * * * *
    (a) * * *
    (4) If a claim for duty-free entry under subheading 9810.00.60, 
HTSUS is made but is not accompanied by a copy of the properly stamped 
form, a deposit of the estimated duty is required. Before the entry is 
liquidated, the applicant must file with the CBP Port a properly 
stamped copy of the application form. In the event that the CBP Port 
does not receive a copy of the properly stamped application form before 
liquidation, the instrument shall be classified and liquidated in the 
ordinary course,

[[Page 76573]]

without regard for subheading 9810.00.60, HTSUS.
* * * * *


Sec. Sec.  301.1, 301.2, 301.4, 301.5, 301.8, 301.9, 301.10  [Amended]

    6. In addition to the amendments set forth above, 15 CFR part 301 
is amended by removing ``U.S. Customs Service'', ``U.S. Customs'', or 
``Customs'' and adding ``Customs and Border Protection'' in its place 
in the following places:
    a. Second sentence in Sec.  301.1(d);
    b. Fourth sentence in Sec.  301.2(k);
    c. Section 301.4 heading, and first sentence of Sec.  301.4(a) 
introductory text;
    d. Second sentence in Sec.  301.5(d)(ii);
    e. Section 301.8 heading, Sec.  301.8(a)(3), (b) heading and first 
and second sentences, and (d) first and second sentences;
    f. Section 301.9(b) and Sec.  301.9(c); and
    g. Second sentence in Sec.  301.10(a).


Sec. Sec.  301.7, 301.8, 301.9  [Amended]

    7. In addition to the amendments set forth above, 15 CFR part 301 
is amended by removing ``Customs Port'' and adding ``CBP Port'' in its 
place in the following places:
    a. First sentence in Sec.  301.7(b);
    b. Third and fourth sentences of Sec.  301.8(a)(4); and
    c. Third sentence of Sec.  301.9(a).

David Spooner,
Assistant Secretary for Import Administration, Department of Commerce.
W. Ralph Basham,
Commissioner, Customs and Border Protection.
Timothy Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. E8-29128 Filed 12-16-08; 8:45 am]
BILLING CODE 3510-DS-P; 9111-14-P