E9-28132. Electronic Payment and Refund of Quarterly Harbor Maintenance Fees

AGENCIES:

Customs and Border Protection, Department of Homeland Security; Department of the Treasury.

ACTION:

Final rule.

SUMMARY:

This document amends title 19 of the Code of Federal Regulations by prescribing an alternative procedure by which payers of the quarterly harbor maintenance fee (HMF) may submit payments or refund requests to Customs and Border Protection (CBP) electronically via an Internet account established by the payer and located at http://www.pay.gov. CBP will continue to accept quarterly HMF payments or refund requests via mail. These changes are intended to provide the trade with expanded electronic payment/refund options and to modernize and enhance CBP's port use fee collection efforts. This document also clarifies the regulations to reflect that both HMF supplemental payments and refund requests must be accompanied by the requisite CBP Form 350 (HMF Amended Quarterly Summary Report) and CBP Form 349 (HMF Quarterly Summary Report). This clarification is necessary to remove any ambiguity as to what forms are required in conjunction with such payments.

DATES:

Effective Date: December 24, 2009.

FOR FURTHER INFORMATION CONTACT:

Kim Cochenour, Office of Finance, Revenue Division, Collections, Refunds and Analysis Branch, [phone] or at [e-mail].

SUPPLEMENTARY INFORMATION:

Background

The harbor maintenance fee (HMF) was created by the Water Resources Development Act of 1986 (Pub. L. 99-622, 26 U.S.C. 4461 et seq.). The purpose of the fee is to require those who benefit from the maintenance of U.S. ports and harbors to share in the associated costs of such maintenance. The HMF 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.

The HMF implementing regulations are set forth in § 24.24 of title 19 of the Code of Federal Regulations (19 CFR 24.24).

On August 5, 2008, CBP published in the Federal Register (73 FR 45364) a proposal to amend title 19 of the Code of Federal Regulations (19 CFR) by prescribing an alternative procedure by which payers of the quarterly harbor maintenance fee (HMF) may submit their payments or refund requests to Customs and Border Protection (CBP) electronically via an Internet account established by the payer and located at http://www.pay.gov. CBP would also continue to accept quarterly HMF payments or refund requests via mail. The proposal also required that each HMF quarterly payment, whether paper or electronic, be accompanied by a CBP Form 349 (HMF Quarterly Summary Report). The proposed amendments were intended to provide the trade with an expanded electronic payment/refund option for quarterly HMFs and to modernize and enhance CBP's port use fee collection efforts.

CBP solicited public comment on the proposed amendments in the August 5, 2008, Federal Register document. CBP received no comments.

Conclusion

After further review of the matter, and in light of the fact that no comments were submitted in response to CBP's solicitation of public comment, CBP has determined to adopt as final, with minor technical changes and clarifications, the proposed rule published in the Federal Register (73 FR 45364) on August 5, 2008. Specifically, CBP is making technical changes to §§ 24.24(e)(2)(ii) and (h)(3) that replace references to “Customs” with the term “CBP” and, in the “For Further Information Contact” section of this document, is identifying a new CBP contact to whom questions regarding HMF may be directed. In addition, this document restructures the regulatory text in §§ 24.24(c)(8)(i), (e)(1)(ii), (e)(2)(iii), (e)(3)(ii), (e)(4)(iii), (e)(4)(iv)(A), and (g) to clarify CBP's preference that certain payments and refund requests be made electronically and, in the alternative, via mail to a CBP address located on Forms.CBP.gov. By removing references to a specific CBP address and referring to a Web site which is updated regularly, CBP will avoid having to amend these regulations in the event the mailing address is changed. Sections 24.24 (e)(1)(ii), (e)(2)(iii), (e)(3)(ii), and (e)(4)(iii) are also clarified to state that each CBP Form 349 or 350 that is mailed to CBP must be accompanied by a single payment. Lastly, CBP is of the view that a clarification of the proposed amendments to §§ 24.24(c)(8)(i) and (e)(4)(iii) in 73 FR 45364 is necessary to reflect that both CBP Form 350 and CBP Form 349 are required to be submitted to CBP with supplemental payments and refund requests. This clarification is necessary to remove any ambiguity as to what forms are required in conjunction with such payments and to reconcile the proposed new language with the existing text in paragraph (e)(4)(iii) which requires that both forms be submitted in such instances.

The Regulatory Flexibility Act and Executive Order 12866

Because these amendments implement an alternative procedure that provides an expanded electronic payment/refund option for quarterly HMF payments and do not require small entities to change their business practices, pursuant to the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., it is certified that, if adopted, the amendments will not have a significant economic impact on a substantial number of small entities. Further, these amendments do not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Paperwork Reduction Act

The collections of information in the current regulations have already been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned OMB control number 1651-0055 (harbor maintenance fee). This rule does not involve any material change to the existing approved information collection. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.

Signing Authority

This document is being issued in accordance with 19 CFR 0.1(a)(1).

List of Subjects in 19 CFR Part 24

• Accounting
• Claims
• Customs duties and inspection
• Exports
• Imports
• Interest
• Reporting and recordkeeping requirements
• Taxes
• User fees
• Wages

Amendments to the Regulations

For the reasons set forth in the preamble, part 24 of title 19 of the CFR (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 3(i), Harmonized Tariff Schedule of the United States), 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).

* * * * *

2. In § 24.24:

a. The introductory text to paragraph (c)(8) is amended by removing the words “the U.S. Customs Service” and adding in their place the term “CBP”;

b. Paragraph (c)(8)(i) is revised;

c. Paragraph (c)(8)(ii) is amended by: removing the word “shall” each place it appears and adding in its place the word “must”; and removing the word “Customs” and adding in its place the term “CBP”;

d. The introductory text to paragraph (d)(3) is amended by removing the word “shall” and adding in its place the word “will”;

e. Paragraph (e)(1)(ii) is revised;

f. Paragraph (e)(2)(i) is amended: in the second sentence, by removing the words “U.S. Customs” and adding in their place the term “CBP”; and in the third sentence, by removing the word “shall” and adding in its place the word “will”;

g. Paragraph (e)(2)(ii) is amended: in the first sentence, by removing the word “shall” and adding in its place the word “must” and by removing the word “Customs” and adding in its place the term “CBP”; in the second sentence, by removing the language “U.S. Customs Entry Summary Form (Customs” and adding in its place “CBP Entry Summary Form (CBP”; in the third sentence, by removing the word “shall” and adding in its place the word “must”; and in the fourth sentence, by removing the word “shall” and adding in its place the word “must” and by removing the word “Customs” and adding in its place the term “CBP”.

h. Paragraph (e)(2)(iii) is revised;

i. Paragraph (e)(3)(ii) is revised;

j. Paragraph (e)(4)(i) is amended by removing the fourth and fifth sentences;

k. Paragraph (e)(4)(ii) is amended by removing the word “Customs” each place it appears and adding in its place the term “CBP”;

l. Paragraph (e)(4)(iii) is amended by: removing the word “Customs” each place it appears and adding in its place the term “CBP”; and adding three new sentences after the last sentence;

m. The introductory text to paragraph (e)(4)(iv) is amended by removing the word “Customs” and adding in its place the term “CBP”;

n. Paragraph (e)(4)(iv)(A) is amended by adding two new sentences after the last sentence;

o. Paragraphs (e)(4)(iv)(B)( 1), (2), and (3) are amended by removing the word “Customs” each place it appears and adding in its place the term “CBP”;

p. Paragraph (e)(4)(iv)(B)( 4) is amended by: removing the word “Customs” and adding in its place the term “CBP”; and removing the number “90” each place it appears and adding in its place the number “180”;

q. Paragraph (e)(4)(iv)(B)( 5) is amended: in the second sentence, by removing the words “by Customs” and adding in their place the words “by CBP”, and by removing the words “and Customs” and adding in their place the words “and CBP's”; and in the fourth and fifth sentences, by removing the word “Customs” each place it appears and adding in its place the term “CBP”;

r. Paragraph (e)(4)(iv)(C) is amended by removing the word “Customs” each place it appears and adding in its place the term “CBP”;

s. Paragraph (g) is amended: in the first, second, and fifth sentences, by removing the word “shall” each place it appears and adding in its place the word “must”, and by removing the word “Customs” each place it appears and adding in its place the term “CBP”; and by revising the third and fourth sentences;

t. Paragraph (h)(1) is amended by removing the word “shall” each place it appears and adding in its place the word “will”;

u. Paragraph (h)(2) is amended by removing the word “shall” each place it appears and adding in its place the word “must”; and

v. Paragraph (h)(3) is amended by: removing the word “shall” each place it appears and adding in its place the word “will”; and removing the word “Customs” and adding in its place the term “CBP”.

The revisions and additions read as follows:

§ 24.24

Harbor maintenance fee.

* * * * *

(c) * * *

(8) * * *

(i) The donated cargo is required to be certified as intended for use in humanitarian or development assistance overseas by CBP. Subsequent to payment of the fee, a refund request may be made by electronically submitting to CBP the Harbor Maintenance Fee Amended Quarterly Summary Report (CBP Form 350), as well as the Harbor Maintenance Fee Quarterly Summary Report (CBP Form 349) for the quarter covering the payment to which the refund request relates, using the Automated Clearinghouse (ACH) via an Internet account established by the payer and located at http://www.pay.gov. In the alternative, the requisite forms may be mailed to the Office of Finance, Revenue Division, Customs and Border Protection, using the current address posted at Forms.CBP.gov. Upon request by CBP, the party requesting the refund must also submit to CBP, via mail, any supporting documentation deemed necessary by CBP to certify that the entity donating the cargo is a nonprofit organization or cooperative and that the cargo was intended for humanitarian or development assistance overseas (including contiguous countries). A description of the cargo listed in the shipping documents and a brief summary of the intended use of the goods, if such use in not reflected in the documents, are acceptable evidence for certification purposes. Approved HMF refund payments will be made via ACH to those payers who are enrolled in the ACH refund program; all others will receive HMF refund payments via mail. * * *

* * * * *

(e) * * *

(1) * * *

(ii) Fee payment. The shipper whose name appears on the Vessel Operation Report must pay all accumulated fees for which he is liable on a quarterly basis in accordance with paragraph (f) of this section by submitting to CBP a Harbor Maintenance Fee Quarterly Summary Report, CBP Form 349. The CBP Form 349 must either be submitted electronically to CBP using the Automated Clearinghouse (ACH) via an Internet account established by the payer and located at http://www.pay.gov or, alternatively, mailed with a single check or money order payable to U.S. Customs and Border Protection to the Office of Finance, Revenue Division, Customs and Border Protection, using the current address posted at Forms.CBP.gov.

(2) * * *

(iii) Foreign Trade Zones. In cases where imported cargo is unloaded from a commercial vessel at a port within the definition of this section and admitted into a foreign trade zone, the applicant for admission (the person or corporation responsible for bringing merchandise into the zone) who becomes liable for the fee at the time of unloading pursuant to paragraph (e)(3)(i) of this section, must pay all fees for which he is liable on a quarterly basis in accordance with paragraph (f) of this section by submitting to CBP a Harbor Maintenance Fee Quarterly Summary Report, CBP Form 349. The CBP Form 349 must either be submitted electronically to CBP using the Automated Clearinghouse (ACH) via an Internet account established by the payer and located at http://www.pay.gov or, alternatively, mailed with a single check or money order payable to U.S. Customs and Border Protection to the Office of Finance, Revenue Division, Customs and Border Protection, using the current address posted at Forms.CBP.gov. Fees must be paid for all shipments unloaded and admitted to the zone, or in the case of direct deliveries under §§ 146.39 and 146.40 of this chapter, unloaded and received in the zone under the bond of the foreign trade zone operator.

(3) * * *

(ii) Fee payment. The operator of the passenger-carrying vessel must pay the accumulated fees for which he is liable on a quarterly basis in accordance with paragraph (f) of this section by submitting to CBP a Harbor Maintenance Fee Quarterly Summary Report, CBP Form 349. The CBP Form 349 must either be submitted electronically to CBP using the Automated Clearinghouse (ACH) via an Internet account established by the payer and located at http://www.pay.gov or, alternatively, mailed with a single check or money order payable to U.S. Customs and Border Protection to the Office of Finance, Revenue Division, Customs and Border Protection, using the current address posted at Forms.CBP.gov.

(4) * * *

(iii) * * * Supplemental payments and HMF refund requests, accompanied by the requisite CBP Forms 350 and 349 and, if applicable, supporting documentation, must be submitted electronically to CBP using the Automated Clearinghouse (ACH) via an Internet account established by the payer and located at http://www.pay.gov or, alternatively, mailed to the Office of Finance, Revenue Division, Customs and Border Protection, using the current address posted at Forms.CBP.gov. If a supplemental payment is mailed, a single check or money order payable to U.S. Customs and Border Protection must be attached to each CBP Form 350. Approved HMF refund payments will be made via ACH to those payers who are enrolled in the ACH refund program; all others will receive HMF refund payments via mail.

(iv) * * *

(A) * * * Refund requests must either be submitted electronically to CBP using the Automated Clearinghouse (ACH) via an Internet account established by the payer and located at http://www.pay.gov or, alternatively, mailed to the Office of Finance, Revenue Division, Customs and Border Protection, using the current address posted at Forms.CBP.gov. Approved HMF refund payments will be made using the ACH to those payers who are enrolled in the ACH refund program; all others will receive HMF refund payments via mail.

* * * * *

(g) * * * The affected parties must advise the Director, Revenue Division, U.S. Customs and Border Protection, at the current address posted at Forms.CBP.gov, of the name, address, email and telephone number of a responsible officer who is able to verify any records required to be maintained under this paragraph. The Director, Revenue Division, must be promptly notified of any changes in the identifying information submitted. * * *

* * * * *

Jayson P. Ahern,

Acting Commissioner, U.S. Customs and Border Protection.

Approved: November 19, 2009.

Timothy E. Skud,

Deputy Assistant Secretary of the Treasury.