[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]]

=======================================================================
-----------------------------------------------------------------------

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