Prohibitions and Conditions for Importation of Burmese and Non-Burmese Covered Articles of Jadeite, Rubies, and Articles of Jewelry Containing Jadeite or Rubies, 13676-13678 [2010-6387]
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13676
Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Rules and Regulations
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 NonBurmese 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.
wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
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 nonBurmese 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
VerDate Nov<24>2008
11:33 Mar 22, 2010
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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.
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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 § 12.151(e) as well as the
requirement in § 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 reimportation of non-Burmese covered
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Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Rules and Regulations
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 reimported 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 reimportation. 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.
wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
CBP’s Response
CBP appreciates the commenter’s
concerns and the underlying rationale.
Any Burmese covered articles or nonBurmese 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
VerDate Nov<24>2008
11:33 Mar 22, 2010
Jkt 220001
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.
13677
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 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.
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
§ 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.
Conclusion
Signing Authority
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.
This document is being issued in
accordance with § 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.
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
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
PO 00000
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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
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.
■
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13678
Federal Register / Vol. 75, No. 55 / Tuesday, March 23, 2010 / Rules and Regulations
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
PART 3—PRODUCT JURISDICTION
1. The authority citation for 21 CFR
part 3 continues to read as follows:
■
Authority: 21 U.S.C. 321, 351, 353, 355,
360, 360c–360f, 360h–360j, 360gg–360ss,
360bbb–2, 371(a), 379e, 381, 394; 42 U.S.C.
216, 262, 264.
§ 3.6
[Amended]
2. Section 3.6 is amended by
removing ‘‘(HFG–3), Food and Drug
Administration, 15800 Crabbs Branch
Way, suite 200, Rockville, MD 20855,
301–427–1934’’and by adding in its
place ‘‘Food and Drug Administration,
10903 New Hampshire Ave., Bldg. 32,
rm. 5129, Silver Spring, MD 20993–
0002, 301–796–8930,’’.
■
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 3
[Docket No. FDA–2010–N–0010]
Dated: March 17, 2010.
Leslie Kux,
Acting Assistant Commissioner for Policy.
Product Jurisdiction; Change of
Address and Telephone Number;
Technical Amendment
AGENCY:
[FR Doc. 2010–6246 Filed 3–22–10; 8:45 am]
Food and Drug Administration,
BILLING CODE 4160–01–S
HHS.
ACTION: Final rule; technical
amendment.
DEPARTMENT OF JUSTICE
wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
SUMMARY: The Food and Drug
Administration (FDA) is amending its
regulations to reflect a change in the
address and telephone number for the
Office of Combination Products (OCP).
This action is editorial in nature and is
intended to improve the accuracy of the
agency’s regulations.
DATES: Effective Date: April 19, 2010.
FOR FURTHER INFORMATION CONTACT: John
Barlow Weiner, Office of Combination
Products, Food and Drug
Administration, 10903 New Hampshire
Ave., Bldg. 32, rm. 5130, Silver Spring,
MD 20993–0002, 301–796–8930. To
confirm that this change of address and
telephone number has occurred, please
see our Web site at www.fda.gov/
CombinationProducts/default.htm.
SUPPLEMENTARY INFORMATION: FDA is
amending its regulations in 21 CFR part
3 to reflect a change in the address and
telephone number for OCP. Publication
of this document constitutes final action
on this change under the Administrative
Procedure Act (5 U.S.C. 553). Notice
and public procedures are unnecessary
because FDA is merely updating
nonsubstantive content.
List of Subjects in 21 CFR Part 3
Administrative practice and
procedure, Biologics, Combination
products, Drugs, Medical devices.
■ Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 3 is
amended as follows:
VerDate Nov<24>2008
11:33 Mar 22, 2010
Jkt 220001
Drug Enforcement Administration
21 CFR Part 1308
[Docket No. DEA–329F]
RIN 1117–AB23
Schedules of Controlled Substances;
Table of Excluded Nonnarcotic
Products: Nasal Decongestant Inhalers
Manufactured by Classic
Pharmaceuticals, LLC
AGENCY: Drug Enforcement
Administration (DEA), Department of
Justice.
ACTION: Final rule.
SUMMARY: Under this Final Rule, the
Drug Enforcement Administration
(DEA) is updating the Table of Excluded
Nonnarcotic Products found in 21 CFR
1308.22 to include the Nasal
Decongestant Inhaler/Vapor Inhaler
(containing 50 mg Levmetamfetamine)
manufactured by Classic
Pharmaceuticals, LLC and marketed
under various private labels (to include
the ‘‘Premier Value’’ and ‘‘Kroger’’
labels). This nonnarcotic drug product,
which may be lawfully sold over the
counter without a prescription under
the Federal Food, Drug, and Cosmetic
Act, is excluded from provisions of the
Controlled Substances Act (CSA)
pursuant to 21 U.S.C. 811(g)(1).
DATES: This rulemaking shall become
effective on March 23, 2010.
FOR FURTHER INFORMATION CONTACT:
Christine A. Sannerud, PhD, Chief, Drug
PO 00000
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and Chemical Evaluation Section, Office
of Diversion Control, Drug Enforcement
Administration, 8701 Morrissette Drive,
Springfield, VA 22152; telephone: (202)
307–7183.
SUPPLEMENTARY INFORMATION: On August
28, 2009, the DEA published an interim
rule with request for comments [74 FR
44281]. This interim rule updated the
Table of Excluded Nonnarcotic Products
found in 21 CFR 1308.22 to include the
Nasal Decongestant Inhaler/Vapor
Inhaler (containing 50 mg
Levmetamfetamine) manufactured by
Classic Pharmaceuticals, LLC and
marketed under various private labels
(to include the ‘‘Premier Value’’ and
‘‘Kroger’’ labels). This nonnarcotic drug
product, which may be lawfully sold
over the counter without a prescription
under the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301 et seq.), is
excluded from provisions of the
Controlled Substances Act (CSA)
pursuant to 21 U.S.C. 811(g)(1).
Comments Received
DEA did not receive any comments to
its interim rule published August 28,
2009, regarding this exemption.
Therefore, DEA is issuing this
rulemaking to finalize the interim rule
without change.
Background
The CSA, specifically 21 U.S.C.
811(g)(1), states that the Attorney
General shall by regulation exclude any
nonnarcotic drug which contains a
controlled substance from the
application of the CSA, if such drug
may, under the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301 et seq.), be
lawfully sold over the counter without
a prescription. This authority has been
delegated to the Administrator of DEA
and redelegated to the Deputy Assistant
Administrator of the Office of Diversion
Control pursuant to 28 CFR 0.100 and
title 28, part 0, appendix to subpart R,
7(g), respectively.
Such exclusions apply only to
nonnarcotic products and are only
granted following suitable application to
the DEA per the provisions of 21 CFR
1308.21. The current Table of Excluded
Nonnarcotic Products found in 21 CFR
1308.22 lists those products that have
been granted excluded status.
Pursuant to the application process of
21 CFR 1308.21, DEA received
application for exclusion from Classic
Pharmaceuticals, LLC, the manufacturer
of a Nasal Decongestant Inhaler/Vapor
Inhaler which contains the schedule II
controlled substance
Levmetamfetamine. This inhaler is sold
over the counter under various private
labels (such as the ‘‘Premier Value’’ label
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]]>Agencies
[Federal Register Volume 75, Number 55 (Tuesday, March 23, 2010)]
[Rules and Regulations]
[Pages 13676-13678]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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
