[Federal Register Volume 75, Number 55 (Tuesday, March 23, 2010)]
[Rules and Regulations]
[Pages 13676-13678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6387]
[[Page 13676]]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Parts 12 and 163
[USCBP-2008-0111; CBP Dec. 10-04]
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
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This document adopts as a final rule, interim amendments to
title 19 of the Code of Federal Regulations (``19 CFR'') which were
published in the Federal Register on January 16, 2009, as CBP Dec. 09-
01 to implement the prohibitions and conditions for importation of
Burmese and non-Burmese covered articles of jadeite, rubies, and
articles of jewelry containing jadeite or rubies.
DATES: Final rule effective April 22, 2010.
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:
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 (Burmese covered articles). Section 3A of the JADE Act also
regulates 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 (non-
Burmese covered articles). 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'')).
On January 16, 2009, U.S. Customs and Border Protection (``CBP'')
published CBP Dec. 09-01 in the Federal Register (74 FR 2844), setting
forth interim amendments to implement certain provisions of the JADE
Act and Presidential Proclamation 8294 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).
Although the interim regulations were promulgated without prior
public notice and comment procedures and took effect on January 16,
2009, CBP Dec. 09-01 provided for the submission of public comments
that would be considered before adopting the interim regulations as a
final rule. The prescribed public comment period closed on March 17,
2009.
Discussion of Comment Received in Response to CBP Dec. 09-01
One commenter responded to the solicitation of comments on the
interim regulations set forth in CBP Dec. 09-01. The commenter stated
that the interim final rule provided ``an excellent platform that
offers both very workable and realistic means to uphold the law as
written and to support the spirit of the law drafted by U.S.
Congress.'' The commenter offered a few suggestions. A description of
the commenter's suggestions and CBP's analysis are set forth below.
Comment
The commenter recommended that in order to support the importer
certification under Additional U.S. Note 4(a), Chapter 71, HTSUS,
importers be required, at their sole expense, to confirm the veracity
of their certification of non-Burmese covered articles by conducting
random spot checks utilizing lab testing by an independent gemological
laboratory accredited by CBP. The commenter also recommends requiring
the importer to maintain records showing a history of the auditing
process for a period of at least five years, and to make such records
available to CBP upon request.
CBP's Response
Requiring an importer to conduct lab testing on the merchandise to
be imported goes beyond the explicit statutory requirements and the
importer certification requirement of 19 CFR 12.151(d). Additional U.S.
Note 4(a), Chapter 71, HTSUS, provides that the presentation of an
entry for any good under heading 7103, 7113, or 7116 is deemed to be a
certification by the importer that any jadeite or rubies contained in
such good were not mined in or extracted from Burma. As such, the
presentation of an entry serves as the importer certification. If an
importer elects to test the imported gems to bolster the information
provided by the exporter, the results of the testing will serve to
reflect upon the importer's level of reasonable care used and will be
objective evidence that the goods were not mined in or extracted from
Burma. CBP concurs with the commenter regarding retaining the 5-year
record retention period in the final rule as set forth in Sec.
12.151(e) as well as the requirement in Sec. 12.151(f) that the
importer must provide, upon CBP's request, all documentation to support
the importer and exporter certifications.
Comment
The commenter recommended that only government-validated
certificates of origin from the country in which the jadeite or rubies
are mined or extracted be accepted as verifiable evidence, and that
protocols related to the issuance of the exporter's government-
validated certification guaranteeing non-Burmese origin should require
random spot testing by an independent gemological laboratory accredited
by CBP to verify non-Burmese origin.
CBP's Response
The commenter's recommendations with respect to foreign government
certification and validation of exporter certificates cannot be
enforced by CBP because no international arrangement, similar to the
Kimberley Process Certification Scheme for conflict diamonds, currently
exists for jadeite or rubies from Burma.
Comment
The commenter recommended that as a condition for export with the
intent of re-importation into the United States, CBP should require
that any Burmese covered article be detailed in such a way so as to
ensure the same article is the one considered for re-importation to
prevent circumvention of the JADE sanctions. Further, the commenter
recommended that for the re-importation of non-Burmese covered
[[Page 13677]]
articles, the original country of origin certificate be required,
including a statement detailing any transformation that may have
occurred.
CBP's Response
On CBP Form 4457, Certificate of Registration for Personal Effects
Taken Abroad, CBP collects information from the owner in advance of
departure concerning articles that will be re-imported into the United
States. In addition, on CBP Form 4455, Certificate of Registration, CBP
collects information about articles that are exported from the United
States via a carrier for alteration, repairs, use abroad, replacement,
or processing that will be re-imported into the United States and that
may be subject to duty for the cost or value of the alteration, repair,
or processing. Completion of this form is mandatory. Although CBP
cannot ensure that the item being re-imported is the actual item that
was exported unless the article has permanent identifying information
such as etched or engraved serial numbers, CBP will endeavor to use the
information contained on these forms to prevent the circumvention of
the JADE sanctions when a covered article is exported with the
intention of re-importation. As is the case with all CBP forms, the
importer is responsible for the truthfulness of the information
submitted on the form.
Comment
The commenter asserts that there is a risk that the personal-use
exemption will be used as a means to circumvent the prohibitions and
conditions for the importation of non-Burmese covered articles. The
commenter recommended increased scrutiny be placed on individuals
claiming a personal-use exemption and that random spot-testing be
conducted to verify the imported goods are in fact non-Burmese covered
articles.
CBP's Response
CBP appreciates the commenter's concerns and the underlying
rationale. Any Burmese covered articles or non-Burmese covered articles
that are imported into the United States in violation of any
prohibition of the JADE Act are subject to all applicable seizure and
forfeiture laws to the same extent as any other violation of the
customs laws.
Comment
The commenter stated that the reliance on a ``paper-only'' system
of verifiable controls without built-in safeguards such as random spot
lab testing to verify authenticity and accuracy of documentation is
susceptible to the risk for fraud.
CBP's Response
CBP acknowledges that until there is an international certification
scheme in place, the authenticity and accuracy of documentation in the
required ``system of verifiable controls'' is susceptible to fraud. CBP
will enforce the JADE Act through the use of an importer's and
exporter's certification and the other applicable customs laws.
Comment
The commenter recommended that importers should be required to
provide a written warranty to each buyer or ultimate consignee of non-
Burmese covered articles, affirming that an established system of
verified controls from the mine to the supplier is in place and that
officially validated certification has accompanied the articles at all
stages.
CBP's Response
The commenter's suggestion that the importer issue a written
warranty to the ultimate consumer goes beyond what is required by the
JADE Act. Accordingly, CBP cannot prescribe in this final rule such
entry requirements that are not mandated by the Act.
Conclusion
As indicated in the above discussion, CBP is unable to adopt the
commenter's suggestions given the current statutory scheme.
Accordingly, the interim rule published as CBP Dec. 09-01 is being
adopted as a final rule.
Executive Order 12866
CBP has determined that 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).
Regulatory Flexibility Act
CBP Dec. 09-01 was issued as an interim rule rather than a notice
of proposed rulemaking because CBP had determined that, pursuant to the
provisions of 5 U.S.C. 553(b)(B) of the Administrative Procedure Act,
prior public notice and comment procedures on the interim regulations
were impracticable and contrary to public interest, and that there was
good cause for the rule to become effective immediately upon
publication since the JADE Act is already in effect. Because no notice
of proposed rulemaking was required, the provisions of the Regulatory
Flexibility Act, as amended (5 U.S.C. 601 et seq.), do not apply to
this rulemaking. Accordingly, this final 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 final rule have previously
been reviewed and approved by the Office of Management and Budget in
accordance with the requirements of the Paperwork Reduction Act (44
U.S.C. 3507) under control number 1651-0133.
The collections of information in these regulations 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, required in connection with entry of non-Burmese covered
articles. The likely respondents are business organizations, including
importers and brokers.
The estimated average annual burden associated with the collection
of information in this final rule is 0.2 hours per respondent or record
keeper. Under the Paperwork Reduction Act, 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 OMB control number.
Signing Authority
This document is being issued in accordance with Sec. 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 CBP Regulations
0
Accordingly, the interim rule amending parts 12 and 163 of the CBP
regulations (19 CFR parts 12 and 163), which was published at 74 FR
2844 on January 16, 2009, is adopted as a final rule.
[[Page 13678]]
Approved: March 10, 2010.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
David V. Aguilar,
Acting Deputy Commissioner, U.S. Customs and Border Protection.
[FR Doc. 2010-6387 Filed 3-22-10; 8:45 am]
BILLING CODE 9111-14-P