[Federal Register: January 16, 2009 (Volume 74, Number 11)]
[Rules and Regulations]
[Page 2844-2847]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja09-14]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Parts 12 and 163
[CBP Dec. 09-01; USCBP-2008-0111]
RIN 1505-AC06
Prohibitions and Conditions for Importation of Burmese and Non-
Burmese Covered Articles of Jadeite, Rubies, and Articles of Jewelry
Containing Jadeite or Rubies
AGENCIES: Customs and Border Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Interim final rule; solicitation of comments.
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SUMMARY: This document amends the U.S. Customs and Border Protection
(CBP) regulations in title 19 of the Code of Federal Regulations (19
CFR) in order to implement the provisions of the Tom Lantos Block
Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (Pub. L.
110-286) (the ``JADE Act'') and Presidential Proclamation 8294 of
September 26, 2008, which includes new Additional U.S. Note 4 to
Chapter 71 of the Harmonized Tariff Schedule of the United States
(``HTSUS''). These amendments are made to implement certain provisions
of the JADE Act and the Presidential Proclamation by prohibiting the
importation of ``Burmese covered articles'' (jadeite, rubies, and
articles of jewelry containing jadeite or rubies, mined or extracted
from Burma), and by setting forth conditions for the importation of
``non-Burmese covered articles'' (jadeite, rubies, and articles of
jewelry containing jadeite or rubies, mined or extracted from a country
other than Burma).
DATES: This interim final rule is effective January 16, 2009. Comments
must be received on or before March 17, 2009.
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-2008-0111 .
Mail: Trade and Commercial Regulations Branch, Regulations
and Rulings, Office of International Trade, U. S. Customs and Border
Protection, 799 9th Street, 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 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, U.S. 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) 325-0118.
FOR FURTHER INFORMATION CONTACT: Cathy Sauceda, Director, Import Safety
and Interagency Requirements Division, Office of International Trade
(202) 863-6556, or Brenda Brockman Smith, Executive Director, Trade
Policy and Programs, Office of International Trade (202) 863-6406.
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 final rule. CBP also invites comments that relate to the
economic, environmental, or federalism effects that might result from
this interim final rule. Comments that will provide the most assistance
to CBP will reference a specific portion of the interim final 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
On July 29, 2008, the President signed into law the Tom Lantos
Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (Pub.
L. 110-286) (the ``JADE Act''). Section 6 of the JADE Act amends the
Burmese Freedom and Democracy Act of 2003 (Pub. L. 108-61) (as so
amended, the ``BFDA'') by adding a new section 3A that prohibits the
importation of jadeite and rubies mined or extracted from Burma, and
articles of jewelry containing jadeite or rubies mined or extracted
from Burma, and by regulating the importation of jadeite and rubies
mined or extracted from a country other than Burma, and articles of
jewelry containing jadeite or rubies mined or extracted from a country
other than Burma. Presidential Proclamation 8294 of September 26, 2008
implements the prohibitions and conditions of the JADE Act. (See Annex
of Presidential Proclamation 8294 for Additional U.S. Note 4 to Chapter
71, Harmonized Tariff Schedule of the United States (``HTSUS'')).
Burmese Covered Articles
Section 3A(b)(1) of the BFDA, as implemented by Presidential
Proclamation 8294, provides that ``Burmese covered articles'' are
prohibited from importation into the United States. Burmese covered
articles are defined in section 3A(a)(2) of the BFDA as jadeite or
rubies mined or extracted from Burma, or articles of jewelry containing
jadeite or rubies mined or extracted from Burma. Section 3A(a)(4) of
the BFDA defines ``jadeite'' as any jadeite classifiable under heading
7103 of the HTSUS; ``rubies'' as rubies classifiable under heading 7103
of the HTSUS; and ``articles of jewelry containing jadeite or rubies''
as any article of jewelry classifiable under heading 7113 of the HTSUS
that contains jadeite or rubies, or any article of jadeite or rubies
classifiable under heading 7116 of the HTSUS. The prohibition on the
importation of the Burmese covered articles will also be set forth in
the regulations of the Office of Foreign Assets Control (OFAC) at 31
CFR Part 537.
Non-Burmese Covered Articles
Sections 3A(c)(1) and (2) of the BFDA set forth the conditions for
importation into the United States of ``non-Burmese covered articles,''
which are defined in section 3A(a)(3) of the BFDA as jadeite or rubies
mined or extracted from a country other than Burma, or articles of
jewelry containing jadeite or rubies mined or extracted from a country
other than Burma.
[[Page 2845]]
Presidential Proclamation 8294 requires that as a condition for the
importation into the United States of any non-Burmese covered article,
the importer and exporter of such article must meet the conditions set
forth in section 3A(c)(1) of the BFDA. The Proclamation also modified
the HTSUS by including Additional U.S. Note 4 to Chapter 71, HTSUS.
Certifications
Additional U.S. Note 4(a), Chapter 71, HTSUS, provides that if an
importer chooses to enter any good (or withdraws such good from
warehouse for consumption) under heading 7103, 7113, or 7116, HTSUS,
the presentation of this entry at the time of importation shall be
deemed to be a certification by the importer that any jadeite or rubies
contained in such good were not mined or extracted from Burma. As such,
the entry of any such article under one of the three specified headings
is considered to be the ``importer's certification.''
Under section 3A(c)(1) of the BFDA, another condition for
importation is that the exporter of the non-Burmese covered article has
implemented measures that have substantially the same effect and
achieve the same goals as the measures described in section
3A(c)(2)(B)(i) through (iv) or their functional equivalent to prevent
the trade in Burmese covered articles. To achieve this requirement, CBP
is amending the regulations to require that, at the time of importation
into the United States, the importer have in his possession a written
certification from the exporter (``exporter's certification'')
certifying that the jadeite or rubies were not mined or extracted from
Burma, with verifiable evidence from the exporter that tracks the
jadeite or rubies as follows: With respect to exportation from the
country of jadeite or rubies in rough form, from mine to exportation;
with respect to exportation from the country of finished jadeite or
polished rubies, from mine to the place of final finishing; and with
respect to exportation from the country of articles of jewelry
containing jadeite or rubies, from mine to the place of final finishing
of the article of jewelry.
Exceptions
Sections 3A(d)(1) and (2) of the BFDA set forth the two instances
in which the prohibitions and conditions of the JADE Act do not apply.
These exceptions are as follows: (1) Jadeite, rubies, and articles of
jewelry containing jadeite or rubies that are reimported into the
United States after having been previously exported from the United
States, including those that accompanied an individual outside the
United States for personal use, if they are reimported into the United
States by the same person who exported them, without having been
advanced in value or improved in condition by any process or other
means while outside the United States, and (2) jadeite or rubies mined
or extracted from a country other than Burma, and articles of jewelry
containing jadeite or rubies mined or extracted from a country other
than Burma, that are imported by or on behalf of an individual for
personal use and accompanying an individual upon entry into the United
States.
Recordkeeping Requirements
Under section 3A(c)(1) of the BFDA, a specific condition for
importation of non-Burmese covered articles is that the importer of
non-Burmese covered articles maintain for a period of not less than 5
years from the date of entry of the non-Burmese covered article a full
record of, in the form of reports or otherwise, complete information
relating to any act or transaction related to the purchase,
manufacture, or shipment of the non-Burmese covered article. The
importer is further required to produce such information to the
relevant United States authorities upon request. CBP, to comply with
the statute, is requiring the importer to keep in its possession a
certification from the exporter certifying that the jadeite or rubies
were not mined or extracted from Burma, with verifiable evidence from
the exporter that tracks the sourcing from mine to either exportation
or place of final finishing. Because the importer of record must have
in his possession at the time of entry a certification from the
exporter (``exporter's certification'') and any underlying records
supporting its certified entry of articles under heading 7103, 7113 or
7116, HTSUS, that any such articles were not mined or extracted from
Burma, CBP is amending its (a)(1)(A) list (found in the Appendix to 19
CFR part 163). In this rulemaking, CBP is adding this new recordkeeping
requirement in Section IV of the (a)(1)(A) list in the Appendix to 19
CFR part 163.
Explanation of Amendments
These amendments implement certain provisions of the JADE Act and
the Presidential Proclamation with regard to the prohibition on
importations of Burmese covered articles, and incorporate into the
regulations the conditions for importation of non-Burmese covered
articles. CBP is adding a new Sec. 12.151 to part 12 of title 19 of
the Code of Federal Regulations (19 CFR) to reflect the new conditions
as described above. CBP is also amending the Interim (a)(1)(A) list in
the Appendix to part 163 of title 19 CFR to add to the list of
documents that importers must retain for a period of 5 years the
``exporter's certification'' as well as other supporting documentation
in Section IV of the Appendix.
Inapplicability of Prior Public Notice and Delayed Effective Date
This document incorporates into the regulations a provision setting
forth the conditions necessary for importation of non-Burmese covered
articles. This document further amends the Appendix to part 163 for the
list of records required for the entry of merchandise to implement the
statutory mandate contained in the JADE Act and Presidential
Proclamation 8294 of September 26, 2008 and inform the public of the
conditions necessary to comply with the statutory requirements. Because
this regulation merely implements statutory requirements, CBP has
determined, pursuant to the provisions of 5 U.S.C. 553(b)(B), that
prior public notice and comment procedures on this regulation are
impracticable and contrary to the public interest and that there is
good cause for this rule to become effective immediately upon
publication as the JADE Act is already in effect. For these reasons,
pursuant to the provisions of 5 U.S.C. 553(d)(3), CBP finds that there
is good cause for dispensing with a delayed effective date.
Executive Order 12866 and Regulatory Flexibility Act
This document does not meet the criteria for a ``significant
regulatory action'' as specified in Executive Order 12866 of September
30, 1993 (58 FR 51735, October 1993). In addition, because a notice of
proposed rulemaking is not required under 5 U.S.C. 553(b) 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 rule is
not subject to the regulatory analysis requirements or other
requirements of 5 U.S.C. 603 and 604.
Paperwork Reduction Act
The collections of information in this document are contained in
Sec. 12.151(d) (19 CFR 12.151(d)). This information is used by CBP to
fulfill its information collection obligations under section 3A(c)(1)
of the BFDA, as amended, and Additional U.S. Note 4, Chapter 71, HTSUS,
which requires that when an
[[Page 2846]]
importer of non-Burmese covered articles certifies on the entry summary
form, CBP Form 7501, that the articles entered under heading 7103, 7113
or 7116, HTSUS were not mined or extracted from Burma, the importer
must have in his possession a written certification from the exporter
that such articles were not mined or extracted from Burma and other
documentation to support such certification at the time of entry under
Sec. 12.151(d). The likely respondents are business organizations
including importers and brokers. An agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless it displays a valid control number assigned by OMB. This
collection of information falls under the approved collection OMB
Control No. 1651-0133.
Estimated annual reporting and/or recordkeeping burden: 74,005
hours.
Number of responses per respondent and/or recordkeeper: 20.
Estimated number of respondents and/or recordkeepers: 22,197.
Estimated annual total responses: 443,940.
Estimated time per response: 10 minutes (.1667 hours).
Comments on the collection of information should be sent to the
Office of Management and Budget, Attention: Desk Officer for the
Department of the Treasury, Office of Information and Regulatory
Affairs, Washington, DC 20503. A copy should also be sent to the Trade
and Commercial Regulations Branch, Regulations and Rulings, Office of
International Trade, Customs and Border Protection, 799 9th Street,
NW., (Mint Annex), Washington, DC 20229.
Signing Authority
This document is being issued in accordance with section 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/her delegate) to approve
regulations related to certain customs revenue functions.
List of Subjects
19 CFR Part 12
Customs duties and inspection, Economic sanctions, Entry of
merchandise, Foreign assets control, Imports, Licensing, Prohibited
Merchandise, Reporting and recordkeeping requirements, Restricted
merchandise, Sanctions.
19 CFR Part 163
Administrative practice and procedure, Customs duties and
inspection, Exports, Imports, Penalties, Reporting and recordkeeping
requirements.
Amendments to the Regulations
0
For the reasons set forth above, parts 12 and 163 of title 19 of the
Code of Federal Regulations (19 CFR parts 12 and 163) are amended as
set forth below:
PART 12--SPECIAL CLASSES OF MERCHANDISE
0
1. The general authority citation for part 12, CBP regulations,
continues to read, and a new specific authority citation for Sec.
12.151 is added to read, as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i),
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
Section 12.151 also issued under The Burmese Freedom and
Democracy Act of 2003 (Pub. L. 108-61) (the ``BFDA''), as amended by
the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts)
Act of 2008 (Pub. L. 110-286) (the ``JADE Act''); Presidential
Proclamation 8294, signed on September 26, 2008; Additional U.S.
Note 4 to Chapter 71, HTSUS.
* * * * *
0
2. In part 12, a new Sec. 12.151 is added to read as follows:
Sec. 12.151 Prohibitions and conditions on importations of jadeite,
rubies, and articles of jewelry containing jadeite or rubies.
(a) General. The importation into the United States of jadeite,
rubies, and articles of jewelry containing jadeite or rubies is
prohibited or conditioned as described in this section pursuant to the
Tom Lantos Block Burmese JADE Act of 2008 (Pub. L. 110-286). For
purposes of this section, the following definitions apply:
(1) Jadeite. ``Jadeite'' means any jadeite classifiable under
heading 7103 of the Harmonized Tariff Schedule of the United States
(HTSUS);
(2) Rubies. ``Rubies'' means any rubies classifiable under heading
7103 of the HTSUS;
(3) Articles of jewelry containing jadeite or rubies. ``Articles of
jewelry containing jadeite or rubies'' means any article of jewelry
classifiable under heading 7113 of the HTSUS that contains jadeite or
rubies, or any article of jadeite or rubies classifiable under heading
7116 of the HTSUS; and
(4) United States. ``United States'' means the 50 states, the
District of Columbia, and any commonwealth, territory, or possession of
the United States.
(b) Prohibited Articles. The following articles are prohibited from
importation into the United States (see 31 CFR Part 537):
(1) Jadeite mined or extracted from Burma;
(2) Rubies mined or extracted from Burma; and
(3) Articles of jewelry containing jadeite or rubies mined or
extracted from Burma.
(c) Regulated Articles. Jadeite, rubies, or articles of jewelry
containing jadeite or rubies may not be imported into the United States
unless the importer certifies (see paragraph (d) of this section) that
those jadeite or rubies were mined or extracted from a country other
than Burma and possesses the documents described in paragraph (e) of
this section.
(d) Certification of importer. Pursuant to Additional U.S. Note
4(a), Chapter 71, HTSUS, if an importer enters any good (or withdraws
any good from warehouse for consumption) under heading 7103, 7113, or
7116 of the HTSUS, the presentation of the entry serves as a
certification by the importer that any jadeite or rubies contained in
such good were not mined or extracted from Burma.
(e) Certification of exporter. If an importer enters (or withdraws
from warehouse for consumption) jadeite, rubies, or jewelry containing
jadeite or rubies:
(1) The importer must have in his possession a certification from
the exporter (exporter certification) certifying that the jadeite or
rubies were not mined or extracted from Burma, with verifiable evidence
from the exporter that tracks the jadeite or rubies: In rough form,
from mine to exportation; and for finished jadeite, polished rubies,
and articles of jewelry containing jadeite or rubies, to the place of
final finishing; and
(2) The importer must maintain, for a period of not less than 5
years from the date of entry of the good, a full record of, in the form
of reports or otherwise, complete information relating to any act or
transaction related to the purchase, manufacture, or shipment of the
good.
(f) Requirement to provide information. An importer who enters any
good (or withdraws any good from warehouse for consumption) under
heading 7103, 7113, or 7116 of the HTSUS must provide all documentation
to support the certifications described in paragraphs (d) and (e) of
this section to CBP upon request or be subject to recordkeeping
penalties under part 163 of the chapter.
(g) Inapplicability. This section does not apply to the following
articles:
(1) Jadeite, rubies, and articles of jewelry containing jadeite or
rubies that are reimported into the United States after having been
previously exported
[[Page 2847]]
from the United States, including those that accompanied an individual
outside the United States for personal use, if they are reimported into
the United States by the same person who exported them, without having
been advanced in value or improved in condition by any process or other
means while outside the United States; and
(2) Jadeite or rubies mined or extracted from a country other than
Burma, and articles of jewelry containing jadeite or rubies mined or
extracted from a country other than Burma that are imported by or on
behalf of an individual for personal use and accompanying an individual
upon entry into the United States.
PART 163--RECORDKEEPING
0
3. The general authority citation for Part 163, CBP regulations,
continues to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510,
1624.
0
4. The Appendix to Part 163 is amended by adding a new listing under
section IV in numerical order to read as follows:
Appendix to Part 163--Interim (a)(1)(A) List.
* * * * *
IV. * * *
Sec. 12.151 Documentation supporting importer's certification on
jadeite, rubies, or articles of jewelry containing jadeite or rubies,
including an exporter's certification.
* * * * *
Jayson P. Ahern,
Acting Commissioner, U.S. Customs and Border Protection.
Approved: January 12, 2009
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. E9-786 Filed 1-15-09; 8:45 am]
BILLING CODE 9111-14-P