[Federal Register Volume 77, Number 58 (Monday, March 26, 2012)]
[Proposed Rules]
[Pages 17364-17367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7105]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Part 12
[Docket No. USCBP-2012-0004]
RIN 1515-AD82
Inadmissibility of Consumer Products and Industrial Equipment
Noncompliant With Applicable Energy Conservation or Labeling Standards
AGENCIES: U.S. Customs and Border Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document proposes amendments to the Customs and Border
Protection (CBP) regulations to provide that if certain imports do not
comply with applicable energy conservation or labeling standards, CBP
will refuse admission when so notified by the Department of Energy
(DOE) or the Federal Trade Commission (FTC) and CBP may, upon a
recommendation from DOE or FTC, conditionally release the goods so that
they may be brought into compliance. Specifically, CBP will refuse
admission into the customs territory of the United States to consumer
products and industrial equipment deemed noncompliant with the Energy
Policy and Conservation Act of 1975 (EPCA) and its implementing
regulations, and for which CBP has received written notice from the DOE
or the FTC that identifies merchandise as noncompliant with applicable
EPCA requirements. In lieu of immediate refusal of admission, and upon
written or electronic notice by DOE or FTC, CBP may conditionally
release under bond to the importer such noncompliant products or
equipment for purposes of reconditioning, re-labeling, or other action
so as to bring the subject product or equipment into compliance with
applicable energy conservation and labeling admissibility standards. If
the subject import is not timely brought into compliance, CBP, at the
direction of DOE or FTC, will issue a refusal of admission notice to
the importer and
[[Page 17365]]
demand redelivery of the subject products to CBP custody. A failure to
comply with a demand for redelivery will result in the assessment of
liquidated damages. This proposed regulation, if adopted, will
implement the mandate of the EPCA, as amended, to preclude admission
into the United States of certain consumer products and industrial
equipment that do not meet applicable labeling or energy conservation
requirements.
DATES: Comments must be received on or before May 25, 2012.
ADDRESSES: You may submit comments, identified by USCBP docket number,
by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2012-0004.
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 20229-1179.
Instructions: All submissions received must include the agency name
and USCBP docket number for this rulemaking. All comments received will
be posted without change to http://www.regulations.gov, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also 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 Joseph Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: Mike Craig, Chief, Interagency
Requirements Branch, Trade Policy and Programs, Office of International
Trade, (202) 863-6558. Valarie M. Neuhart, Import Safety & Interagency
Requirements Division, Office of International Trade, (202) 863-6223.
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
proposed rule. Customs and Border Protection (CBP) also invites
comments that relate to the economic, environmental, or federalism
effects that might result from this proposed rule. If appropriate to a
specific comment, the commenter should reference the specific portion
of the proposed rule, explain the reason for any recommended change,
and include data, information, or authority that support such
recommended change.
Background
General
Title III, Part B of the Energy Policy and Conservation Act of 1975
(EPCA), Public Law 94-163 (42 U.S.C. 6291-6309), as amended,
established the Energy Conservation Program for Consumer Products Other
Than Automobiles, a program covering most major household appliances.
Similarly, Title III, Part C of the EPCA, (42 U.S.C. 6311-6317) as
amended, added by Public Law 95-619, Title IV, section 441(a),
established the Energy Conservation Program for Certain Industrial
Equipment, a program covering industrial equipment.
Section 6302(a) of title 42 of the United States Code (42 U.S.C.
6302(a)), and its implementing regulations, prescribe the specific
energy conservation and labeling standards applicable to manufacturers
and, in some instances, private labelers, distributors, and retailers.
Sections 6301 and 6316 of title 42 of the United States Code (42 U.S.C.
6301 and 6316) require the Secretary of the Treasury to issue
regulations refusing admission into the customs territory of the United
States to covered products or covered equipment offered for importation
in violation of 42 U.S.C. 6302. The statute also provides the Secretary
with the discretion to authorize the importation of covered products or
covered industrial equipment under such terms and conditions (including
the furnishing of a bond) that ensure that the merchandise will not
violate 42 U.S.C. 6302.
Proposed Regulation
Pursuant to 42 U.S.C. 6301, this document proposes to amend part 12
of title 19 of the Code of Federal Regulations (19 CFR Part 12) by
adding a new Sec. 12.50 which provides that CBP will refuse admission
into the customs territory of the United States to covered imports that
the Department of Energy (DOE) or the Federal Trade Commission (FTC)
has determined to be in violation of 42 U.S.C. 6302, upon receipt of
written or electronic notice from the DOE or FTC, as appropriate. The
notice will identify a named regulated party as being in violation of
42 U.S.C. 6302 and will describe the subject product or equipment in a
manner sufficient to enable CBP to identify the articles.
While refusal of admission will be the norm, there may be instances
where reconditioning, re-labeling, or other modification may bring an
import into compliance with applicable energy conservation or labeling
admissibility standards. Accordingly, this rule proposes a procedure to
allow CBP to conditionally release noncompliant imports to the importer
under a CBP basic importation and entry bond for purposes of bringing
the merchandise into conformity with the applicable standards, upon a
recommendation by the DOE or FTC. In any case involving conditional
release of a covered import under bond, the CBP port director always
retains the discretion to require additional security in any case where
he believes that acceptance of a continuous bond would hamper the
enforcement of the law. See 19 CFR 113.13(d). An initial conditional
release period of 30 days is proposed to be established by this
rulemaking.
If the DOE or FTC notifies CBP that the subject imports have been
brought into compliance with applicable energy conservation and
labeling admissibility standards before the conclusion of the 30-day
conditional release period, or any authorized extension thereof, CBP
may release the subject goods into the commerce and entry may be
completed.
If attempts at modification fail within the 30-day conditional
release period, or any authorized extension thereof, the DOE or FTC
will notify CBP of that fact, and CBP will issue a notice of refusal of
admission to the importer concurrent with a demand for redelivery under
the terms and conditions of the CBP bond. A failure to comply with the
demand for redelivery will result in the assessment of liquidated
damages equal to three times the value of the imports at issue.
Moreover, covered imports that are conditionally released will be under
the concurrent jurisdiction of DOE and/or FTC.
The proposed amendments are consistent with Sec. 429.5(b) of title
10 of the Code of Federal Regulations (10 CFR 429.5(b)), which is a DOE
regulation that further notifies the importing public that any covered
product or equipment offered for importation that does not meet the
applicable energy
[[Page 17366]]
conservation standards set forth in 42 U.S.C. 6291-6317 will be refused
admission into the customs territory of the United States under CBP
issued regulations.
Executive Order 12866
Executive Orders 13563 and 12866 direct agencies to assess costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has been designated a ``significant regulatory action''
although not economically significant, under section 3(f) of Executive
Order 12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget.
The Regulatory Flexibility Act
This section examines the impact of the rule on small entities as
required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement and Fairness Act
of 1996. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people).
The proposed rule, if finalized, will establish a procedure whereby
the DOE or the FTC will notify CBP of any imported article that is in
violation of 42 U.S.C 6302 and its implementing regulations. Upon
notification, CBP will refuse these articles admission into the
commerce of the United States. Upon a recommendation by the DOE or FTC,
however, CBP will conditionally release noncompliant imported articles
under a CBP basic importation and entry bond for the purpose of
bringing the merchandise into compliance with 42 U.S.C. 6302 and its
implementing regulations. This conditional release is valid for a
period of 30 days, but it may be extended by the DOE or FTC.
The DOE has identified only a small number of businesses importing
noncompliant articles, of which fewer than five were small entities.
When notified of their noncompliance, each of these businesses ceased
importation of these articles. Given the small number of small entities
identified by DOE as having been noncompliant and that the law
prohibiting the importation of these noncompliant articles within the
United States was enacted in 1975, CBP does not anticipate a
significant number of small entities attempting to import articles
which violate 42 U.S.C 6302 and its implementing regulations. If a
small entity does import an article in violation of 42 U.S.C 6302 and
its implementing regulations, the small entity can request the DOE or
the FTC allow CBP to grant the imported article a conditional release.
CBP believes that cost associated with this conditional release to be
negligible because this request is virtually costless to the small
entity and the importer is already required to maintain a CBP basic
importation and entry bond.
Accordingly, CBP does not believe this rule will have a significant
impact on a substantial number of small entities. CBP welcomes any
comments regarding this assessment. If CBP does not receive any
comments contradicting this finding, CBP will certify that this rule
will not have a significant economic impact on a substantial number of
small entities at the final rule stage.
Paperwork Reduction Act
As there is no collection of information proposed in this document,
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507)
are inapplicable.
Signing Authority
This proposed regulation is being issued in accordance with 19 CFR
0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or
that of his delegate) to approve regulations related to certain customs
revenue functions.
List of Subjects in 19 CFR Part 12
Customs duties and inspection, Electronic products, Entry of
merchandise, Imports, Prohibited merchandise, Reporting and
recordkeeping requirements, Restricted merchandise, Seizure and
forfeiture.
Proposed Amendments to the CBP Regulations
For the reasons stated above, it is proposed to amend part 12 of
title 19 of the Code of Federal Regulations (19 CFR Part 12) as set
forth below.
PART 12--SPECIAL CLASSES OF MERCHANDISE
1. The general authority citation for part 12 continues to read as
follows and the specific authority citation 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 12.50 also issued under 42 U.S.C. 6301;
* * * * *
2. A new center heading and new Sec. 12.50 are added to read as
follows:
Consumer Products and Industrial Equipment Subject to Energy
Conservation or Labeling Standards
Sec. 12.50 Consumer products and industrial equipment subject to
energy conservation or labeling standards.
(a) Definitions. For purposes of this section, the following terms
have the meanings indicated:
Covered import. The term ``covered import'' means a consumer
product or industrial equipment that is classified by the Department of
Energy as covered by an applicable energy conservation standard, or by
the Federal Trade Commission as covered by an applicable energy
labeling standard, pursuant to the Energy Policy and Conservation Act
of 1975, as amended (42 U.S.C. 6291- 6317), and that is imported or
attempted to be imported.
DOE. The term ``DOE'' means the Department of Energy.
Energy conservation standard. The term ``energy conservation
standard'' means any standard meeting the definitions of that term in
42 U.S.C. 6291(6) or 42 U.S.C. 6311(18).
FTC. The term ``FTC'' means the Federal Trade Commission.
Noncompliant covered import. The term ``noncompliant covered
import'' means a covered import that the Department of Energy (DOE) or
the Federal Trade Commission (FTC) has determined to be in violation of
42 U.S.C. 6302.
(b) CBP action. If a covered import does not comply with applicable
energy conservation or labeling admissibility standards, the DOE or FTC
may direct CBP to either refuse admission of the covered import
pursuant to paragraph (c) of this section or recommend conditional
release of the covered import to be brought into compliance pursuant to
paragraph (d) of this section.
(c) Refusal of admission. CBP will refuse admission into the
customs territory of the United States to any noncompliant covered
import upon receipt of written or electronic notice from the DOE (see
also 10 CFR 429.5) or FTC that identifies the importer of the
noncompliant covered import and describes the subject import in a
manner
[[Page 17367]]
sufficient to enable CBP to identify the article.
(d) Conditional release. In lieu of immediate refusal of admission
into the customs territory of the United States, CBP, upon a
recommendation from the DOE or FTC, may permit the release of a
noncompliant covered import to the importer of record for purposes of
reconditioning, re-labeling, or other modification. The release from
CBP custody of any such covered import will be deemed conditional and
subject to the bond conditions set forth in Sec. 113.62 of this
Chapter. Note: Conditionally released covered imports will also be
subject to the jurisdiction of DOE and/or FTC.
(1) Duration. Unless extended in accordance with paragraph (d)(2)
of this section, the conditional release period will terminate upon the
earliest occurring of the following events:
(i) The date that CBP issues a notice of refusal of admission
pursuant to paragraph (c) of this section;
(ii) The date that the DOE or FTC issues a notice to CBP stating
that the covered import is in compliance and may proceed; or
(iii) At the conclusion of the 30-day period following the date of
release.
(2) Extension. The conditional release period may be extended if
both CBP and the importer of record receive, within the initial 30-day
conditional release period or any subsequent authorized extension
thereof, a written or electronic notice from the DOE or FTC stating the
reason for and anticipated length of the extension.
(3) Issuance of a redelivery notice and demand for redelivery. If
the noncompliant covered import is not timely brought into compliance,
and if so directed by DOE or FTC, CBP will issue a refusal of admission
notice to the importer pursuant to paragraph (c) of this section and,
in addition, CBP will demand the redelivery of the specified covered
product to CBP custody. The demand for redelivery may be made
concurrently with the notice of refusal of admission.
(4) Liquidated damages. A failure to comply with a demand for
redelivery made under this paragraph (d) will result in the assessment
of liquidated damages equal to three times the value of the covered
product. Value as used in this provision means value as determined
under 19 U.S.C. 1401a.
Approved: March 20, 2012.
David V. Aguilar,
Acting Commissioner, U.S. Customs and Border Protection.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2012-7105 Filed 3-23-12; 8:45 am]
BILLING CODE 9111-14-P