[Federal Register Volume 78, Number 38 (Tuesday, February 26, 2013)]
[Proposed Rules]
[Pages 12998-13002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04320]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Parts 142 and 143
[USCBP-2013-0009]
RIN 1515-AD96
Establishment of Due Process Procedures on License-Like Processes
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes to amend the U.S. Customs and Border
Protection (CBP) regulations to set forth due process procedures for
CBP to follow before suspending or revoking assigned entry filer codes,
immediate delivery privileges or remote location filing privileges.
These proposed changes will codify in the regulations due process
procedures consistent with the Administrative Procedure Act before CBP
takes actions on these programs depriving an importer of these
privileges.
DATES: Comments must be received on or before April 29, 2013.
ADDRESSES: You may submit comments, identified by USCBP 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-2013-0009.
Mail: Trade and Commercial Regulations Branch, Regulations
and Rulings, Office of International Trade, U.S. Customs and Border
Protection, 90 K Street NE. (10th Floor), Washington, DC 20229-1177.
Instructions: All submissions received must include the agency name
and USCBP 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,
Regulations and Rulings, Office of International Trade, Customs and
Border Protection, 90 K St. NE., 10th Floor, Washington, DC.
Arrangements to inspect submitted comments should be made in advance by
calling Joseph Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: For operational questions, Laurie
Dempsey, Trade Policy and Programs, Office of International Trade, Tel.
(202) 863-6509. For legal questions, Blake Harden, Trade and Finance,
Office of Chief Counsel, Tel. (202) 344-2972.
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
proposed rule. U.S. Customs and Border Protection (CBP) also invites
comments that relate to the economic, environmental, or federalism
effects that might result from this proposed rule. If appropriate to a
specific comment, the commenter should reference the specific portion
of the proposed rule, explain the reason for any recommended change,
and include data, information, or authority that support such
recommended change.
Background
When an agency acts to deprive a person of a property interest, the
Constitution of the United States requires procedures that
appropriately
[[Page 12999]]
balance three factors: the private interest affected by government
action; the risk of erroneous deprivation of such interest; and, the
government's interest, including the function involved and the burdens
the government would face in providing greater process. Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). An individual's expectation of
continued eligibility in a federal program is a ``property interest''
under the Due Process Clause. Mathews v. Eldridge. at 332. See also
Goldberg v. Kelly, 397 U.S. 254 (1970). In the matter of Lizarraga
Customs Broker v. Bureau of Customs and Border Protection, No. 08-
00400, slip op. 10-113 (Ct. Int'l Trade Oct. 4, 2010) (``Lizarraga''),
CBP suspended a broker's assigned entry-filer code without providing
notice of the proposed action. Lizarraga, at 5. CBP acknowledged that
brokers are entitled to the procedural protections of the
Administrative Procedure Act (APA) if their entry filer code is
deactivated. Lizarraga, at 16. As such, CBP has reviewed its current
regulations in title 19 of the Code of Federal Regulations (19 CFR)
which affords license-like programs and has determined that its
regulations should be amended to provide due process procedures
required by the APA if an importer's or broker's assigned entry filer
code is proposed to be suspended or revoked.
The APA (Section 558 of title 5 of the United States Code)
provides, in relevant part, that except in cases of willfulness or
those in which public health, interest, or safety requires otherwise,
the withdrawal, suspension, revocation, or annulment of a license is
lawful only if, before the institution of agency proceedings, the
licensee has been given--(1) Notice by the agency in writing of the
facts or conduct which may warrant the action; and (2) opportunity to
demonstrate or achieve compliance with all lawful requirements. 5
U.S.C. 558(c).
Since participation in CBP programs involving entry filer codes,
immediate delivery, and remote location filing all require the
satisfaction of certain eligibility requirements, they are akin to
licenses for the purpose of the APA. To comply with the due process
requirements, CBP proposes to amend 19 CFR parts 142 and 143 by adding
notice requirements and appeal procedures for the suspension or
revocation of an assigned entry filer code and for the discontinuance
of immediate delivery and remote location filing procedures before CBP
takes action on these programs depriving an importer or broker of these
privileges.
Entry Filer Code
An entry filer code is a unique three character (alphabetic,
numeric, or alpha numeric) number assigned by CBP to all licensed
brokers filing CBP consumption entries and all importers filing CBP
entries through the Automated Broker Interface (ABI) system. See 19 CFR
142.3a(b)(1) and 143.2(f). This assigned three digit code comprises the
beginning three characters of the entry number that a broker or
importer files for all of its CBP entries into the CBP database.
In order to file electronically, an importer or broker must have an
active entry filer code and be approved to use the ABI system. The ABI
is a module of CBP's automated systems that permits qualified
participants to electronically file required import data with CBP. See
19 CFR 143.1.
Current CBP regulations provide that the Assistant Commissioner,
Office of International Trade, or his designee may refuse to allow use
of an assigned entry filer code if it is misused by the importer or
broker. See 19 CFR 142.3a(d).
In this document, CBP is proposing to amend the CBP regulations by
limiting its ability to invalidate an entry filer code in order to
provide due process protections to approved ABI entry filers with
regard to the suspension or revocation of entry filer codes. More
specifically, this document proposes to revise Sec. 142.3a(d) of title
19 of the CFR to provide notice requirements and appeal procedures for
suspending or revoking an entry filer code.
CBP proposes to add new subsection (1) to paragraph (d) in Sec.
142.3a to provide that, in the event a port director finds that an
assigned entry filer code has been misused by the importer or broker,
CBP will provide the importer or broker with written notice proposing
the suspension or revocation of the entry filer code, including a
description of the facts or conduct warranting the action. The importer
or broker will have the opportunity to appeal the port director's
decision in writing within 10 calendar days of receiving the written
notice. Within 30 working days after receiving a timely filed appeal,
the Assistant Commissioner, Office of International Trade, or his
designee, will issue a decision in writing on the proposed action. If
the importer or broker does not timely appeal the written notice, the
notice proposing the suspension or revocation of the entry filer code
becomes CBP's final decision as of the date that the appeal period
expires. This section provides that the importer or broker may continue
to use the entry filer code during the appeal period and that the entry
filer code will not be suspended or revoked unless the appeal process
has been concluded with a decision adverse to the importer or broker.
CBP also proposes to add Sec. 142.3a(d)(2) to title 19 of the CFR
to allow the port director to immediately suspend an entry filer code
upon written notice to the importer or broker in the case of
willfulness or in those cases in which public health, interest, or
safety so requires. The written notice provided to the importer or
broker will contain a description of the facts or conduct warranting
the immediate action. The importer or broker will be offered the
opportunity to appeal the port director's decision within 10 calendar
days of receiving the written notice providing for immediate
discontinuance. Within 15 working days after receiving a timely filed
appeal from the importer or broker, the Assistant Commissioner, Office
of International Trade, or his designee, will issue a decision in
writing on the discontinuance. If no timely appeal is received, the
notice becomes the final decision of CBP as of the date that the appeal
period expires. This section provides that the entry filer code remains
suspended or revoked unless the appeal is resolved in favor of the
importer or broker.
CBP also proposes to amend the procedures for discontinuing
immediate delivery and remote location filing privileges.
Immediate Delivery
Section 448(b) of the Tariff Act of 1930, as amended, authorizes
the Secretary of the Treasury to promulgate regulations allowing the
issuance of special permits for delivery, prior to formal entry, of
perishable articles and other articles for which immediate delivery is
necessary. 19 U.S.C. 1448(b).
Accordingly, under certain circumstances merchandise may be
released under a special permit for immediate delivery. See 19 CFR
142.21. In most respects, the procedures for immediate delivery are
similar to filing an entry. The same CBP Form 3461 is used as the
release document; however, the filer will designate the CBP Form 3461
as a special permit instead of as an entry. A CBP Form 7501 entry/entry
summary with estimated duties attached must generally be filed within
10 working days of release. Immediate delivery is allowed, at the
discretion of the port director, in the following circumstances: land
shipments from Canada and Mexico; shipments of fresh fruits and
vegetables from Canada and
[[Page 13000]]
Mexico, which are transported to the importer's warehouse at the port
of arrival for examination, resulting in entry being made only on those
portions with commercial value; shipments of certain quota class
merchandise; shipments of articles for a trade fair; U.S. government
shipments; split shipments for which an election for incremental
release has been made; and other shipments when authorized by CBP
Headquarters.
Currently, the port director has the authority to discontinue
immediate delivery privileges under certain circumstances. See 19 CFR
142.25. In this document, CBP proposes to amend 19 CFR 142.25 to
provide due process protections to the importing public with regard to
the discontinuance of immediate delivery privileges.
Specifically, CBP proposes to add Sec. 142.25(c)(1) to title 19 of
the CFR to require CBP to provide the importer with written notice
proposing the discontinuation of the immediate delivery privileges,
including a description of the facts or conduct warranting the action.
The importer will have the opportunity to appeal the port director's
decision in writing within 10 calendar days of receiving the written
notice. Within 30 working days after receiving a timely filed appeal
from the importer, the Assistant Commissioner, Office of International
Trade, or his designee, will issue a decision in writing on the
proposed action. If the importer does not timely appeal the written
notice, the notice proposing the discontinuation of the immediate
delivery privilege becomes the final decision of CBP as of the date
that the appeal period expires. This section provides that in the case
of a proposed discontinuance, the importer may continue to use
immediate delivery during the appeal period and immediate delivery
privileges will not be discontinued unless the appeal process has been
concluded with a decision adverse to the importer or broker.
CBP also proposes to add Sec. 142.25(c)(2) to title 19 of the CFR
to allow the port director to immediately discontinue immediate
delivery privileges upon written notice to the importer in the case of
willfulness or those in which public health, interest, or safety so
requires. The written notice provided to the importer will contain a
description of the facts or conduct warranting the immediate action.
The importer will be offered the opportunity to appeal the port
director's decision within 10 calendar days of receiving the written
notice providing for immediate discontinuance. Within 15 working days
after receiving a timely filed appeal from the importer, the Assistant
Commissioner, Office of International Trade, or his designee, will
issue a decision in writing on the discontinuance. If no timely appeal
is received, the notice becomes the final decision of CBP as of the
date that the appeal period expires. This section provides that in the
case of an immediate discontinuance, immediate delivery privileges
remain discontinued unless the appeal is resolved in favor of the
importer or broker.
Remote Location Filing
Remote location filing is an elective method of making entry by
which a customs broker with a national permit electronically transmits
all data associated with an entry that CBP can process in a completely
electronic data interchange, filed from a location other than where the
goods are being entered. See 19 CFR 143.42(a). Importers filing on
their own behalf may file electronically in any port, subject to ABI
filing requirements. See 19 CFR 143.42(a). A remote filing is accepted
at CBP locations within the customs territory of the United States that
are staffed with CBP personnel who have been trained in remote location
filing procedures and who have operational experience with the
Electronic Invoice Program (EIP). See 19 CFR 143.42(b).
Section 1414(a)(2) of title 19 of the U.S. Code sets forth the
requirements for a program participant to file from a remote location.
Program participant is defined as any party entitled to enter
merchandise under 19 U.S.C. 1484(a)(2)(B). See 19 U.S.C. 1414(d)(2).
The eligibility criteria for remote location filing are further
described at 19 CFR 143.43. To be eligible for remote location filing,
an importer of record or licensed customs broker must be: (1)
Operational on the ABI; (2) operational on the EIP prior to applying
for remote location filing; and (3) operational on the Automated
Clearinghouse (ACH) (or any other CBP-approved method of electronic
payment), for purposes of directing the electronic payment of duties,
taxes and fees, 30 days before transmitting a remote location filing
entry. See 19 CFR 143.43(a). In addition, a licensed customs broker
must hold a valid national permit. See 19 CFR 143.43(b); see also 19
CFR 111.19(f). Finally, a remote location filing entry must be secured
with a continuous bond. See 19 CFR 143.43(c).
Currently, so long as a remote location filer meets all of the
compliance requirements and operational standards for remote location
filing and adheres to all applicable laws and regulations, it qualifies
for filing from a remote location. See 19 U.S.C. 1414(a)(3). In this
document, CBP proposes to amend 19 CFR Part 143 to provide the criteria
under which a port director will discontinue remote location filing
privileges. CBP also proposes to amend the regulations to provide due
process protections to the importing public with regard to the
discontinuation of remote location filing privileges.
Specifically, this document proposes to amend subpart E of Part 143
of 19 CFR by adding a new Sec. 143.46, entitled Discontinuance of RLF
privileges. CBP proposes to add Sec. 143.46(a) to 19 CFR to allow CBP
to discontinue remote location filing privileges if the filer no longer
meets the eligibility criteria set forth in 19 CFR 143.43, or fails to
file all additional information required by CBP pursuant to 19 CFR
143.45. Two additional proposed paragraphs will provide procedures for
the discontinuance of remote location filing privileges.
CBP proposes to add Sec. 143.46(b)(1) to 19 CFR to require CBP to
provide the remote location filer with written notice proposing the
discontinuance of the remote location filing privileges, including a
description of the facts or conduct warranting the action. The remote
location filer will have the opportunity to appeal the port director's
decision in writing within 10 calendar days of receiving the written
notice. Within 30 working days after receiving a timely filed appeal
from the remote location filer, the Assistant Commissioner, Office of
International Trade, or his designee, will issue a decision in writing
on the proposed action. If an appeal is not timely received, the notice
proposing the discontinuance of the remote location filing privilege
becomes the final decision of CBP as of the date that the appeal period
expires. This section provides that in the case of a proposed
discontinuance, the remote location filer may continue to file remotely
during the appeal period and remote location filing privileges will not
be discontinued unless the appeal process has been concluded with a
decision adverse to the filer.
CBP also proposes to add Sec. 143.46(b)(2) to 19 CFR to allow the
port director to immediately discontinue remote location filing
privileges upon written notice to the remote location filer in the case
of willfulness or those in which public health, interest, or safety so
requires. The written notice provided to the remote location filer will
contain a description of the facts or conduct warranting the immediate
action. The remote location filer will be offered the
[[Page 13001]]
opportunity to appeal the port director's decision within 10 calendar
days of receiving the written notice providing for immediate
discontinuance. Within 15 working days after receiving a timely filed
appeal from the remote location filer, the Assistant Commissioner,
Office of International Trade, or his designee, will issue a decision
in writing on the discontinuance. If no timely appeal is received, the
notice becomes the final decision of CBP as of the date that the appeal
period expires. This section provides that in the case of an immediate
discontinuance, remote location filing privileges remain discontinued
unless the appeal is resolved in favor of the remote location filer.
Executive Order 12866
This rule is not a significant regulatory action under Executive
Order 12866, as supplemented by Executive Order 13563, and has not been
reviewed by the Office of Management and Budget (OMB) under that order.
Regulatory Flexibility Act
This section examines the impact of the rule on small entities as
required by the Regulatory Flexibility Act (5 U.S.C. 603), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996.
A small entity may be a small business (defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act); a small not-for-profit
organization; or a small governmental jurisdiction (locality with fewer
than 50,000 people).
As stated above, CBP exercises its authority to suspend or revoke
entry filer codes, immediate delivery privileges, or remote location
filing privileges fewer than ten times a year for each type of
authority. It is unknown how many of the affected parties, primarily
customs brokers, are small businesses, but the number will be very
small. In addition, the impact to these parties is expected to be low
(cost to prepare and submit the appeal to CBP) and beneficial
(establishment of due process). CBP will certify, therefore, that this
rule will not have a significant impact on a substantial number of
small entities if it does not receive any comments to the contrary.
Paperwork Reduction Act
As the collection of information proposed in this document applies
to fewer than ten respondents annually, the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507) do not apply.
Signing Authority
This proposed regulation is being issued in accordance with 19 CFR
0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or
that of his delegate) to approve regulations related to certain customs
revenue functions.
List of Subjects
19 CFR Part 142
Canada, Customs duties and inspection, Mexico, Reporting and
recordkeeping requirements.
19 CFR Part 143
Customs duties and inspection, Reporting and recordkeeping
requirements.
Proposed Amendments to the CBP Regulations
For the reasons set forth in the preamble, parts 142 and 143 of
title 19 of the CFR (19 CFR parts 142 and 143) are proposed to be
amended as set forth below.
PART 142--ENTRY PROCESS
0
1. The authority citation for part 142 continues to read as follows:
Authority: 19 U.S.C. 66, 1448, 1484, 1624.
0
2. Section 142.3a is amended by revising paragraph (d) to read as
follows:
Sec. 142.3a. Entry numbers.
* * * * *
(d) Suspension or revocation of the entry filer code.
(1) Proposed suspension or revocation. If the port director finds
that an assigned entry filer code has been misused by the importer or
broker, the importer or broker will be provided with written notice
proposing the suspension or revocation of the entry filer code along
with a description of the facts or conduct warranting the action. Any
notice to suspend or revoke a filer code will also specify that
participation in Remote Location Filing would also be suspended or
revoked pursuant to Sec. 143.46. The importer or broker will be
offered the opportunity to appeal the port director's decision in
writing within 10 calendar days of receipt of the written notice. The
Assistant Commissioner, Office of International Trade, or his designee,
will issue a decision in writing on the proposed action within 30
working days after receiving a timely filed appeal. If no timely appeal
is received, the proposed notice becomes the final decision of the
Agency as of the date that the appeal period expires. A proposed
suspension or revocation of an importer's or broker's entry filer code
will not take effect unless the appeal process under this paragraph has
been concluded with a decision adverse to the importer or broker.
(2) Immediate suspension or revocation. In the case of willfulness
or those in which public health, interest, or safety so requires, the
port director may immediately suspend or revoke an entry filer code
upon written notice to the importer or broker. The notice will contain
a description of the facts or conduct warranting the immediate action.
The importer or broker will be offered the opportunity to appeal the
port director's decision within 10 calendar days of receipt of the
written notice providing for immediate suspension or revocation. The
immediate suspension or revocation will remain in effect during the
appeal period. The Assistant Commissioner, Office of International
Trade, or his designee, will issue a decision in writing on the
suspension or revocation within 15 working days after receiving a
timely filed appeal from the importer or broker. If no timely appeal is
received, the notice becomes the final decision of the Agency as of the
date that the appeal period expires.
* * * * *
0
3. Section 142.25 is amended by adding a new paragraph (c) to read as
follows:
Sec. 142.25. Discontinuance of immediate delivery privileges.
* * * * *
(c) Procedures for discontinuance of immediate delivery privileges.
(1) Proposed discontinuance. If the port director finds that there
is a basis for the discontinuance of immediate delivery privileges, the
importer will be provided with written notice proposing the
discontinuance with a description of the facts or conduct warranting
the action. The importer will be offered the opportunity to appeal the
port director's decision in writing within 10 calendar days of receipt
of the written notice. The Assistant Commissioner, Office of
International Trade, or his designee, will issue a decision in writing
on the proposed action within 30 working days after receiving a timely
filed appeal from the importer. If no timely appeal is received, the
proposed notice becomes the final decision of the Agency as of the date
that the appeal period expires. A proposed discontinuance of an
importer's immediate delivery privileges will not take effect unless
the appeal process under this paragraph has been concluded with a
decision adverse to the importer.
[[Page 13002]]
(2) Immediate discontinuance. In the case of willfulness or those
in which public health, interest, or safety so requires, the port
director may immediately discontinue immediate delivery privileges upon
written notice to the importer. The notice will contain a description
of the facts or conduct warranting the immediate action. The importer
will be offered the opportunity to appeal the port director's decision
within 10 calendar days of receipt of the written notice providing for
immediate discontinuance. The immediate discontinuance will remain in
effect during the appeal period. The Assistant Commissioner, Office of
International Trade, or his designee, will issue a decision in writing
on the discontinuance within 15 working days after receiving a timely
filed appeal from the importer. If no timely appeal is received, the
notice becomes the final decision of the Agency as of the date that the
appeal period expires.
PART 143--SPECIAL ENTRY PROCEDURES
0
4. The authority citation for part 143 continues to read as follows:
Authority: 19 U.S.C. 66, 1414, 1481, 1484, 1498, 1624, 1641.
0
5. Add new Sec. 143.46 to read as follows:
Sec. 143.46. Discontinuance of RLF privileges.
(a) Authority of the port director. The port director will
discontinue RLF privileges if the RLF filer:
(1) No longer meets the eligibility criteria set forth in Sec.
143.43,
(2) Fails to file all additional information required by CBP
pursuant to Sec. 143.45; or
(3) Fails to adhere to all applicable laws and regulations.
(b) Procedures for discontinuance of RLF privileges.
(1) Proposed discontinuance. If the port director finds that there
is a basis for the discontinuance of RLF privileges, the RLF filer will
be provided with written notice proposing the discontinuance with a
description of the facts or conduct warranting the action. The notice
will also specify whether the RLF filer's participation in the
Automated Broker Interface (ABI) is being suspended or revoked pursuant
to Sec. 143.6 or Sec. 143.7. The RLF filer will be offered the
opportunity to appeal the port director's decision in writing within 10
calendar days of receipt of the written notice. The Assistant
Commissioner, Office of International Trade, or his designee, will
issue a decision in writing on the proposed action within 30 working
days after receiving a timely filed appeal from the RLF filer. If no
timely appeal is received, the proposed notice becomes the final
decision of the Agency as of the date that the appeal period expires. A
proposed discontinuance of a filer's RLF privileges will not take
effect unless the appeal process under this paragraph has been
concluded with a decision adverse to the RLF filer.
(2) Immediate discontinuance. In the case of willfulness or those
in which public health, interest, or safety so requires, the port
director may immediately discontinue RLF privileges upon written notice
to the RLF filer. The notice will contain a description of the facts or
conduct warranting the immediate action. The RLF filer will be offered
the opportunity to appeal the port director's decision within 10
calendar days of receipt of the written notice providing for immediate
discontinuance. The immediate discontinuance will remain in effect
during the appeal period. The Assistant Commissioner, Office of
International Trade, or his designee, will issue a decision in writing
on the discontinuance within 15 working days after receiving a timely
filed appeal from the RLF filer. If no timely appeal is received, the
notice becomes the final decision of the Agency as of the date that the
appeal period expires.
David V. Aguilar,
Deputy Commissioner, U.S. Customs and Border Protection.
Approved: February 20, 2013.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2013-04320 Filed 2-25-13; 8:45 am]
BILLING CODE 9111-14-P