B-244345, Jun 23, 1992, 71 Comp.Gen. 444

B-244345, Jun 23, 1992, 71 Comp.Gen. 444

APPROPRIATIONS/FINANCIAL MANAGEMENT - Appropriation Availability - Amount availability - Augmentation - User fees The Customs Service may not assess express air freight carriers its cost of providing daytime clearance services at the carriers' centralized hub facilities. The Customs and Trade Act of 1990, Pub.L. No. 101-302, envisions that such facilities will only be staffed on a reimbursable basis outside of normal business hours. 19 U.S.C. Sec. 58c(e)(6),(b)(9).

Customs Service Reimbursement For Clearance Of Express Air Shipments During Regular Business Hours:

The Commissioner of Customs asks whether the Customs Service may provide staff, on a reimbursable basis, to air freight carriers to perform clearance functions at the carriers' centralized hub facilities during regular business hours. We conclude that Customs may not seek reimbursement of its costs.

BACKGROUND

Customs personnel currently provide, during non-regular hours of operation (5:00 p.m. to 8:00 a.m.), expedited processing for express shipments by air freight carriers at centralized hub facilities located on the carriers' premises. Customs regulations define a hub as a "separate, unique, single purpose facility normally operating outside of Customs operating hours approved by the district director for entry filing, examination, and release of express consignment shipments." 19 C.F.R. Sec. 128.1 (d).

Under the Customs and Trade Act of 1990, Customs charges the carrier a fee for this service. The fee includes costs otherwise recoverable under 31 U.S.C. Sec. 9701 (the user charge statute), which permits agencies to collect the costs to the government of providing special services to identifiable beneficiaries, and an annual payment, constituting an entry fee, in an amount equal to costs assessed under section 9701. 19 U.S.C. Sec. 58c(b)(9)(A)(i). The carriers have asked Customs to provide dedicated expedited services, on a reimbursable basis, at each carrier's hub facilities during Customs' regular port hours from 8:00 a.m. to 5:00 p.m. Customs questions whether it has the authority to charge for informal entries submitted during regular port hours at a hub facility. Customs argues that the relevant statutes do not provide for any clearance fees for informal entries at hubs other than those set forth in 19 U.S.C. Sec. 58c(b)(9)(A).

DISCUSSION

Whether Customs can charge a fee for this service is governed by section 58c. /1/ Section 58c(a) provides that Customs shall charge and collect specified fees for a variety of Customs services. Section 58c(a)(10) provides specified fees for the processing of merchandise that is informally entered or released other than at a centralized hub facility, an express consignment carrier facility, and certain small airports or other facilities. With respect to the informal entry or release of merchandise at the excepted facilities, section 58c(a)(10) says to "see subsection (b)(9)."

Thus, subsection (a) does not authorize the collection of a fee for the service requested by the air freight carriers. Subsection (b)(9), however, does provide for the collection of fees for the processing of merchandise at centralized hub facilities. Subsection (b)(9) establishes a formula for calculating fees for servicing centralized hubs. However, it incorporates by reference the definition of "centralized hub facility" in Customs' regulations, that is, a facility "normally operating outside of Customs operating hours." 19 U.S.C. Sec. 58c(b)(9)(B)(i), incorporating by reference 19 C.F.R. Sec. 128.1(d) "as in effect on July 30, 1990." In so doing, subsection (b)(9) generally limits the authority to assess fees to the provision of clearance services outside of regular operating hours.

In addition to the provisions of subsection (a) and (b), section 58c(e)(6) further limits Customs authority to charge a fee for the requested service. Paragraph (6) prohibits Customs from charging fees for any "cargo inspection, clearance, or other customs activity, expense, or service," or for any customs personnel provided in connection with the arrival or departure of any commercial aircraft or its cargo, "during any period when fees are authorized under subsection (a) of this section." The effect of paragraph (6) is to limit Customs' ability to collect fees and other charges to those authorized by subsection (a) and (b).

See also 31 U.S.C. Sec. 9701(c)(2), which precludes agencies from assessing user charges when other law specifically prohibits the assessment of a fee.

Accordingly, the Customs Service may not assess express air freight carriers its cost of providing daytime clearance services at the carriers centralized hub facilities since, by virtue of subsections (a)(10), (b)(9), and (e)(6), Customs may only charge fees for services provided at centralized hub facilities outside normal operating hours. In order to permit the Customs Service to assess and collect fees during regular operating hours at centralized hub facilities, Congress should amend the Customs and Trade Act's definition of a centralized hub facility to eliminate the reference to Customs regulations "as in effect on July 30, 1990" and should specifically authorize the collection of fees at such facilities during regular operating hours.

/1/ There is no dispute that Customs has the authority to provide clearance services to air freight carriers at carrier facilities during regular operating hours if Customs determines, as a policy and programmatic matter, that it has the resources to carry out the service and that there is a need for the service. 19 U.S.C. Sec. 58c(e)(4)(A), (C); (5)(E).