Prohibitions and Conditions for Importation of Burmese and Non-Burmese Covered Articles of Jadeite, Rubies, and Articles of Jewelry Containing Jadeite or Rubies, 2844-2847 [E9-786]
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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations
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W. Ralph Basham,
Commissioner, U.S. Customs and Border
Protection.
Approved: January 12, 2009.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. E9–848 Filed 1–15–09; 8:45 am]
BILLING CODE 9111–14–P
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 NonBurmese Covered Articles of Jadeite,
Rubies, and Articles of Jewelry
Containing Jadeite or Rubies
Customs and Border
Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Interim final rule; solicitation of
comments.
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AGENCIES:
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:
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• Federal eRulemaking Portal: https://
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 https://
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 https://
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.
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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.
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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations
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.
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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
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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 nonBurmese covered articles. CBP is adding
a new § 12.151 to part 12 of title 19 of
the Code of Federal Regulations (19
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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 § 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
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Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations
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 § 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
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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.
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Amendments to the Regulations
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:
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PART 12—SPECIAL CLASSES OF
MERCHANDISE
1. The general authority citation for
part 12, CBP regulations, continues to
read, and a new specific authority
citation for § 12.151 is added to read, as
follows:
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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;
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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.
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2. In part 12, a new § 12.151 is added
to read as follows:
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§ 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):
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(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
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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
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.
4. The Appendix to Part 163 is
amended by adding a new listing under
section IV in numerical order to read as
follows:
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Appendix to Part 163—Interim (a)(1)(A)
List.
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IV. * * *
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§ 12.151 Documentation supporting
importer’s certification on jadeite, rubies, or
articles of jewelry containing jadeite or
rubies, including an exporter’s certification.
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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
INTERNATIONAL TRADE
COMMISSION
19 CFR Part 207
Revised Procedures and Requests for
Information During Adequacy Phase of
Five-Year Reviews
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AGENCY: United States International
Trade Commission.
ACTION: Final rulemaking.
SUMMARY: The United States
International Trade Commission (‘‘the
Commission’’) amends its Rules of
Practice and Procedure to require that
responses to notices of institution of
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five-year reviews be filed within 30 days
of publication of the notice, as opposed
to the 50-day response period specified
in its current rules. It also provides
notice of its decision, which does not
require a change in its rules, to seek
additional information from interested
parties at the institution of five-year
reviews, and to seek information from
purchasers during the adequacy phase
of five-year reviews in certain
circumstances.
DATES: Effective Date: This regulation is
effective February 17, 2009.
Applicability Date: This regulation
and the other changes to Commission
procedures described in this notice will
be applicable to five-year reviews
instituted on or after March 1, 2009.
FOR FURTHER INFORMATION CONTACT:
Marc A. Bernstein, Office of General
Counsel, U.S. International Trade
Commission, telephone 202–205–3087,
or John Ascienzo, Office of
Investigations, U.S. International Trade
Commission, telephone 202–205–3175.
Hearing-impaired individuals can
obtain information on this matter by
contacting the Commission’s TDD
terminal at 202–205–1810. General
information concerning the Commission
may also be obtained by visiting its Web
site at https://www.usitc.gov.
SUPPLEMENTARY INFORMATION: On July
17, 2008, the Commission published a
notice of proposed rulemaking (NOPR)
in the Federal Register. 73 FR 40992
(July 17, 2008). In that notice the
Commission proposed two sets of
changes to the procedures it uses during
the adequacy phase of five-year reviews
that it conducts pursuant to 19 U.S.C.
1675(c). First, the Commission proposed
modifying the information it requests
interested parties furnish in their
responses to the notice of institution it
publishes pursuant to section 207.60(d)
of the Commission’s Rules of Practice
and Procedure, 19 CFR 207.60(d), and
proposed issuing short questionnaires to
purchasers in some circumstances. This
set of proposals did not require any
amendment to the Commission’s
regulations. The second proposal sought
to amend section 207.61(a) of the
Commission’s Rules of Practice and
Procedure to require that responses to
the notice of institution be filed within
30 days after its publication.
Although the Commission considers
these rules to be procedural rules that
are excepted from the notice and
comment requirements of 5 U.S.C.
553(b)(3)(A), the Commission invited
the public to comment on the proposed
rule amendment and the other proposed
changes to its procedures within 60
days of publication of the NOPR in the
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Federal Register. The Commission
received substantive comments from the
following: (1) The law firm of Wiley
Rein on behalf of the Steel
Manufacturers Ass’n (SMA); (2) the law
firm of Skadden, Arps, Slate, Meagher &
Flom (Skadden); (3) the law firm of
Kelley Drye & Warren (Kelley); and (4)
the law firm of Stewart and Stewart
(Stewart).
In adopting these changes to its rules
and procedures, the Commission has
fully considered the concerns expressed
in the comments with respect to the
potential burden on parties to reviews
and the usefulness of the additional
information sought by the Commission.
These comments, and the Commission’s
responses thereto, are discussed
comprehensively below. In light of the
comments, the Commission intends to
review its new information requests and
changes to its procedures once it has
had sufficient experience with them. In
particular, the Commission intends to
examine the changes’ utility and
relevance in attaining the desired
objectives, as well as the rate of
response by purchasers to the adequacy
phase questionnaires.
As required by the Regulatory
Flexibility Act, the Commission certifies
that the amendment to its regulation
will not have a significant impact on
small business entities.
Changes in Commission Data Collection
The Commission has decided to adopt
the changes in data collection proposed
in the NOPR. Accordingly, each notice
of institution the Commission issues
will contain the additional information
requests indicated in Appendix A to the
NOPR, and in those reviews in which
the Commission does not receive
responses to the notice of institution
from both domestic interested parties
and respondent interested parties, the
Commission will transmit brief
questionnaires to purchasers, in the
format indicated in Appendix B to the
NOPR, shortly after it receives responses
to the notice of institution. These
changes will become effective for
reviews instituted on or after March 1,
2009.
The commenters opposed both of the
Commission’s data collection proposals.
With respect to the proposal to seek
additional information in the notice of
institution, commenters questioned the
appropriateness of the Commission’s
stated objective of obtaining a more
complete record to better enable it to
decide whether to expedite a review.
Skadden contended that the
Commission should expedite reviews
whenever responses from an interested
party group are inadequate and that
E:\FR\FM\16JAR1.SGM
16JAR1
]]>Agencies
[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2844-2847]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-786]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://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 https://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 https://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
