[Federal Register Volume 64, Number 166 (Friday, August 27, 1999)]
[Proposed Rules]
[Pages 46872-46876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22201]
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DEPARTMENT OF COMMERCE
International Trade Administration
DEPARTMENT OF THE INTERIOR
Office of Insular Affairs
15 CFR Part 303
[Docket No. 990813222-9222-01]
RIN 0625-AA55
Extend Production Incentive Benefits to Jewelry Manufacturers in
the U.S. Insular Possessions
AGENCIES: Import Administration, International Trade Administration,
Department of Commerce; Office of Insular Affairs, Department of the
Interior.
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Departments propose to amend their regulations governing
duty-exemption allocations and duty-refund benefits for watch producers
in the United States insular possessions (the U.S. Virgin Islands,
Guam, American Samoa and the Commonwealth of the Northern Mariana
Islands) due to the enactment of Pub. L. 106-36. This law amends
additional U.S. notes to chapter 71 of the Harmonized Tariff Schedule
of the United States (``HTSUS'') to provide a duty-refund benefit for
any article of jewelry within heading 7113 which is the product of the
Virgin Islands, Guam, American Samoa or the Northern Mariana Islands in
accordance with the new provisions of the note in chapter 71 and
additional U.S. note 5 to chapter 91. The proposed rule would amend the
regulations by changing Title 15 CFR part 303 to include jewelry,
creating a Subpart A for the current insular watch and watch movement
regulations and a Subpart B for the new regulations pertaining to
jewelry duty-refund benefits authorized by Pub. L. 106-36.
DATES: Written comments must be received on or before September 27,
1999.
ADDRESSES: Address written comments to Faye Robinson, Program Manager,
Statutory Import Programs Staff, Room 4211, U.S. Department of
Commerce, Washington, DC 20230.
FOR FURTHER INFORMATION CONTACT: Faye Robinson, (202) 482-3526, same
address as above.
SUPPLEMENTARY INFORMATION: The insular possessions watch industry
provision in Sec. 110 of Pub. L. 97-446 (96 Stat. 2331) (1983), as
amended by Sec. 602 of Pub. L. 103-465 (108 Stat. 4991) (1994);
additional U.S. Note 5 to chapter 91 of the HTSUS, as amended by Pub.
L. 94-241 (90 Stat. 263) (1976) requires the Secretary of Commerce and
the Secretary of the Interior, acting jointly, to establish a limit on
the quantity of watches and watch movements which may be entered free
of duty during each calendar year. The law also requires the
Secretaries to establish the shares of this limited quantity which may
be entered from the Virgin Islands, Guam, American Samoa and the
Commonwealth of the Northern Mariana Islands (``CNMI''). After the
Departments have verified the data submitted on the annual application
(Form ITA-334P), the producers' duty-exemption allocations are
calculated from the territorial share in accordance with Section 303.14
of the regulations (15 CFR 303.14) and each producer is issued a duty-
exemption license. The law further requires the Secretaries to issue
duty-refund certificates to each territorial watch and watch movement
producer based on the company's duty-free shipments and creditable
wages paid during the previous calendar year.
Pub. L. 106-36 authorizes the issuance of a duty-refund certificate
to each territorial jewelry producer for any article of jewelry
provided for in heading 7113 of the HTSUS which is the product of any
such territory based on creditable wages paid and duty-free units
shipped into the United States during the previous calendar year.
Although the law specifically mentions the U.S. Virgin Islands, Guam
and American Samoa, the issuance of the duty-refund certificate would
also apply to the CNMI due to the Covenant to Establish a Commonwealth
of the Northern Mariana Islands in Political Union with the United
States of America (Pub. L. 94-241), which states that goods from the
CNMI are entitled to the same tariff treatment as imports from Guam.
(See also 19 CFR 7.2(a)). The law provides that during the first two
years, beginning August 9, 1999 (45 days after the date of enactment),
jewelry that is assembled in the territories shall be treated as a
product of such territories. Thereafter, in order to be considered a
product of such territories, the jewelry must meet the
[[Page 46873]]
U.S. Custom Service substantial transformation requirements (the
jewelry must become a new and different article of commerce as a result
of production or manufacture performed in the territory). To receive
duty-free treatment, the jewelry must also satisfy the requirements of
General Note 3(a)(iv) of the HTSUS and applicable Customs Regulations
(19 CFR 7.3).
The law specifies, in addition, that watch producer benefits shall
not be diminished as a consequence of extending duty-refund benefits to
jewelry manufacturers. In the event that the aggregate amount of the
calculated duty refunds for both watches and jewelry exceeds the total
amount available under Pub. L. 97-446, as amended by Pub. L. 103-465,
the watch producers shall receive their calculated amounts; the jewelry
producers would then receive amounts proportionately reduced from the
remainder.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Chief Counsel for Regulation at the Department of Commerce
has certified to the Chief Counsel for Advocacy, Small Business
Administration, that the proposed rule, if promulgated as final, will
not have a significant economic impact on a substantial number of small
entities. This rulemaking will not affect the five watch companies
currently participating in the insular possessions watch program
because Pub. L. 106-36 does not allow watch producers' benefits to be
reduced as a consequence of extending benefits to jewelry
manufacturers. We expect up to five jewelry companies to set up
production facilities in the insular possessions in response to the
extension to them of existing incentives by Pub. L. 106-36. However, as
with watch producers, the duty refund benefit per company does not
apply to shipments exceeding 750,000 units of jewelry into the United
States per year. The last Census of Manufacturers statistics (1992)
indicate that there are 2,180 precious jewelry manufacturers located in
the U.S. employing 32,300 employees. Because the insular jewelry
industry would represent such a small percentage of the existing U.S.
industry and because there is a limit on the benefit extended to
insular jewelry producers, the proposed regulations will not have a
significant adverse impact on any small business entities. We expect a
positive impact in the form of new jobs in the small U.S. insular
economies.
Paperwork Reduction Act
This proposed rulemaking involves new collection-of-information
requirements subject to review and approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1995 which have
been submitted to OMB for approval. The extension of the insular watch
program to include the jewelry benefit will require the use of three of
the current forms, modified to accommodate jewelry. The public
reporting burden for these collection-of-information requirements
include the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. Form ITA-334P, the annual
application, would be completed once a year by each jewelry producer
and requires one burden hour. Form ITA-360P, the certificate of refund,
would also be used once a year and is completed by the Department of
Commerce and imposes no burden hours. Form ITA-361P, the request for
refund of duties, would normally used once or twice a year per jewelry
producer and takes about 10 minutes to complete. Public comment is
sought regarding: Whether the proposed collection-of-information
requirements are necessary for the proper performance of the functions
of the agency, including whether the information shall have practical
utility; the accuracy of the burden estimate; ways to enhance the
quality, utility, and clarity of the information to be collected; and
ways to minimize the burden of the collection of information, including
the use of automated collection techniques or other forms of
information technology. Send comments regarding any of these burden
estimates or any other aspect of the collection-of-information to U.S.
Department of Commerce (see Address above) and Office of Information
and Regulations Officer, Office of Management and Budget, Washington,
DC 20503 (Att: OMB Desk Officer).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information unless it
displays a currently valid OMB Control Number.
E.O. 12866
It has been determined that the proposed rulemaking is not
significant for purposes of Executive Order 12866.
List of Subjects in 15 CFR Part 303
Administrative practice and procedure, American Samoa, Customs
duties and inspection, Guam, Imports, Marketing quotas, Northern
Mariana Islands, Reporting and recordkeeping requirements, Virgin
Islands, Watches and jewelry.
For reasons set forth above, The Departments propose to amend 15
CFR Part 303 as follows:
PART 303--WATCHES, WATCH MOVEMENTS AND JEWELRY PROGRAM
1. The authority citation for 15 CFR part 303 is revised to read as
follows:
Authority: Pub. L. 97-446, 96 Stat. 2331 (19 U.S.C. 1202, note);
Pub. L. 103-465, 108 Stat. 4991; Pub. L. 94-241, 90 Stat. 263 (48
U.S.C. 1681, note); Pub. L. 106-36, 113 Stat. 127,167.
2. Amend the heading for part 303 to read as set forth above.
Subpart A--Watches and Watch Movements
3. Designate Secs. 303.1 through 303.14 as subpart A and add a
subpart heading as set forth above.
4. Add subpart B to read as follows:
Subpart B--Jewelry
Sec.
303.15 Purpose.
303.16 Definitions and forms.
303.17 Annual jewelry application.
303.18 Sale and transfer of business.
303.19 Issuance and use of production incentive certificate.
303.20 Duty refund.
303.21 Appeals.
Subpart B--Jewelry
Sec. 303.15 Purpose.
(a) This subpart implements the responsibilities of the Secretaries
of Commerce and the Interior (``the Secretaries'') under Pub. L. 106-
36, enacted 25 June 1999 which substantially amended Pub. L. 97-446,
enacted 12 January 1983, amended by Pub. L. 89-805, enacted 10 November
1966, amended by Pub. L. 94-88, enacted 8 August 1975, amended by Pub.
L. 94-241, enacted 24 March 1976, and amended by Pub. L. 103-465,
enacted 8 December 1994.
(b) The amended law provides for the issuance of certificates to
insular jewelry producers who have met the requirements of the laws and
regulations, entitling the holder (or any transferee) to obtain refunds
of duties on watches and watch movements and parts (except discrete
watch cases) imported into the customs territory of
[[Page 46874]]
the United States. The amounts of these certificates may not exceed
specified percentages of the producers' verified creditable wages in
the insular possessions (90% of wages paid for the production of the
first 300,000 duty-free units and declining percentages, established by
the Secretaries, of wages paid for incremental production up to 750,000
units by each producer) nor an aggregate annual amount for all
certificates exceeding $5,000,000 adjusted for growth by the ratio of
the previous year's gross national product to the gross national
product in 1982. However, the law specifies that watch producer
benefits are not to be diminished as a consequence of extending the
duty refund to jewelry manufacturers. In the event that the amount of
the calculated duty refunds for watches and jewelry exceeds the total
aggregate annual amount that is available, the watch producers shall
receive their calculated amounts and the jewelry producers would
receive amounts proportionately reduced from the remainder. Refund
requests are governed by regulations issued by the Department of the
Treasury (See 19 CFR 7.4).
(c) Section 2401(a) of Pub. L. 106-36 and additional U.S. note 5 to
chapter 91 of the HTSUS authorize the Secretaries to issue regulations
necessary to carry out their duties. The Secretaries may cancel or
restrict the certificate of any insular manufacturer found violating
the regulations.
Sec. 303.16 Definitions and forms.
(a) Definitions. For purposes of this subpart, unless the context
indicates otherwise:
(1) Act means Pub. L. 97-446, enacted 12 January 1983 (19 U.S.C.
1202), 96 Stat. 2329, as amended by Pub. L. 103-465, enacted on 8
December 1994, 108 Stat. 4991 and, as amended by Pub. L. 106-36,
enacted on 25 June 1999.
(2) Secretaries means the Secretary of Commerce and the Secretary
of Interior or their delegates, acting jointly.
(3) Director means the Director of the Statutory Import Programs
Staff, International Trade Administration, U.S. Department of Commerce.
(4) Sale or transfer of a business means the sale or transfer of
control, whether temporary or permanent, over a firm which is eligible
for a jewelry program duty-refund to any other firm, corporation,
partnership, person or other legal entity by any means whatsoever,
including, but not limited to, merger and transfer of stock, assets or
voting trusts.
(5) New firm means a jewelry producer who has requested in writing
to the Secretaries permission to participate in the program, has agreed
to abide by the laws and regulations of the program and has been
accepted by the Secretaries as a viable company that will make an
economic contribution to the territory. Also, the new firm must be an
entity which is completely separate from and not associated with, by
way of ownership or control, any other potential jewelry duty-refund
recipient (and only one watch duty-refund recipient) in any territory.
(6) Jewelry producer means a company, located in one of the insular
territories (see paragraph (a)(8) of this section), that produces
jewelry provided for in heading 7113, HTSUS, which meets all the U.S.
Customs Service requirements for duty-free entry set forth in General
Note 3(a)(iv), HTSUS, and 19 CFR 7.3, and has maintained its
eligibility for duty refund benefits by complying with these
regulations.
(7) Unit of jewelry means a single article, pair (example:
earrings, cufflinks), subassembly or component which is contained in
HTSUS heading 7113.
(8) Territories, territorial and insular possessions refers to the
insular possessions of the United States (i.e., the U.S. Virgin
Islands, Guam, American Samoa and the Northern Mariana Islands).
(9) Creditable wages means all wages--up to the amount per person
of $38,650--paid to permanent residents of the territories employed in
the firm's manufacture of HTSUS heading 7113 articles of jewelry which
are a product of the insular possessions and have met the U.S. Customs
Service's criteria for duty-free entry into the United States, plus any
wages paid for the repair of non-insular HTSUS heading 7113 jewelry up
to an amount equal to 50 percent of the firm's total creditable wages.
Excluded, however, are wages paid for special services rendered to the
firm by accountants, lawyers, or other professional personnel plus any
wages paid for the assembly of dutiable jewelry or the repair of
dutiable jewelry to the extent that such wages exceed the percentage
set forth above. Wages paid to persons engaged in production of jewelry
that has entered the U.S. both duty-free and duty-paid may be credited
proportionately provided the firm maintains production and payroll
records adequate for the Departments' verification of the creditable
wages portion.
(10) Dutiable jewelry includes jewelry which does not meet the
requirements for duty-free entry under General Note 3(a)(iv), HTSUS,
and 19 CFR 7.3 , contains any material which is the product of any
country with respect to which Column 2 rates of duty apply or is
ineligible for duty-free treatment pursuant to other laws or
regulations.
(b) Forms--(1) ITA--334P. ``Annual Application for License to Enter
Watches and Watch Movements into the Customs Territory of the United
States.'' The Director shall issue instructions for jewelry
manufacturers on the completion of the relevant portions of the form.
The form must be completed annually by all jewelry producers desiring
to receive a duty refund.
(2) ITA--360P. ``Certificate of Entitlement to Secure the Refund of
Duties on Watches and Watch Movements.'' This document authorizes a
territorial jewelry producer to request the refund of duties on imports
of watches, watch movements and parts therefor, with certain
exceptions, up to a specified value. Certificates may be used to obtain
duty refunds only when presented with a properly executed Form ITA-
361P.
(3) ITA--361P. ``Request for Refund of Duties on Watches and Watch
Movements.'' This form must be completed to obtain the refund of duties
authorized by the Director through Form ITA-360P. After authentication
by the Department of Commerce, it may be used for the refund of duties
on items which were entered into the customs territory of the United
States during a specified time period. Copies of the appropriate
Customs entries must be provided with this form to establish a basis
for issuing the claimed amounts. The forms may also be used to transfer
all or part of the producer's entitlement to another party (see
Sec. 303.19(c)).
(The information collection requirements in paragraph (b)(1) were
approved by the Office of Management and Budget under control number
0625-0040. The information collection requirements in paragraphs (b)
(2) and (3) were approved under control number 0625-0134.)
Sec. 303. 17 Annual jewelry application
(a) Form ITA-334P shall be furnished to producers by January 1 and
must be completed and returned to the Director no later than January 31
of each calendar year.
(b) All data supplied are subject to verification by the
Secretaries and no duty refund shall be made to producers until the
Secretaries are satisfied that the data are accurate. To verify the
data, representatives of the Secretaries shall have access to relevant
company records including, but not limited to:
(1) Work sheets used to answer all questions on the application
form, as specified by the instructions;
[[Page 46875]]
(2) Original records from which such data are derived;
(3) Records pertaining to ownership and control of the company;
(4) Records pertaining to all duty-free and dutiable shipments of
HTSUS 7113 jewelry, including Customs entry documents;
(5) Records pertaining to corporate income taxes, gross receipts
taxes and excise taxes paid by each producer in the territories;
(6) Customs, bank, payroll, and production records;
(7) Records on purchases of components and sales of jewelry,
including proof of payment; and
(8) Any other records in the possession of the parent or affiliated
companies outside the territory pertaining to any aspect of the
producer's jewelry operations.
(c) Data verification shall be performed in the territories, unless
other arrangements satisfactory to the Departments are made in advance,
by the Secretaries' representatives by the end of February of each
calendar year. In the event a company cannot substantiate the data in
its application, the Secretaries shall determine which data will be
used.
(d) Records subject to the requirements of paragraph (b), of this
section, shall be retained for a period of two years following their
creation.
Sec. 303.18 Sale or transfer of business.
(a) The sale or transfer of a business together with its duty
refund entitlement shall be permitted with prior written notification
to the Departments. Such notification shall be accompanied by
certifications and representations, as appropriate, that:
(1) The transferee is neither directly nor indirectly affiliated
with any other territorial duty refund jewelry recipient in any
territory;
(2) The transferee will not modify the jewelry operations in a
manner that will significantly diminish its economic contributions to
the territory.
(b) At the request of the Departments, the transferee shall permit
representatives of the Departments to inspect whatever records are
necessary to establish to their satisfaction that the certifications
and representations contained in paragraph (a) of this section have
been or are being met.
(c) Any transferee who is either unwilling or unable to make the
certifications and representations specified in paragraph (a) of this
section shall secure the Departments' approval in advance of the sale
or transfer of the business. The request for approval shall specify
which of the certifications specified in paragraph (a) of this section
the firm is unable or unwilling to make, and give reasons why such fact
should not constitute a basis for the Departments' disapproval of the
sale or transfer.
Sec. 303.19 Issuance and use of production incentive certificates.
(a) Issuance of certificates. (1) Certificates of Entitlement, Form
ITA-360, shall be issued before March 1 of each year.
(2) Certificates shall not be issued to more than one jewelry
company in the territories owned or controlled by the same corporate
entity.
(b) Security and handling of certificates. (1) Certificate holders
are responsible for the security of the certificates. The certificates
shall be kept at the territorial address of the producer or at another
location having the advance approval of the Departments.
(2) All refund requests made pursuant to the certificates shall be
entered on the reverse side of the certificate.
(3) Certificates shall be returned by registered, certified or
express carrier mail to the Department of Commerce when:
(i) A refund is requested which exhausts the entitlement on the
face of the certificate,
(ii) The certificate expires, or
(iii) The Departments request their return with good cause.
(4) Certificate entitlements may be transferred according to the
procedures described in paragraph (c) of this section.
(c) The use and transfer of certificate entitlements. (1) Insular
producers issued a certificate may request a refund by executing a Form
ITA-361P (see Sec. 303.16(b)(3)) and the instructions on the form).
After authentication by the Department of Commerce, Form ITA-361P may
be used to obtain duty refunds on watch movements, watches, and parts
therefor. Duties on watch cases not containing a movement and on
articles containing any material which is the product of a country with
respect to which Column 2 rates of duty apply may not be refunded.
Articles for which duty refunds are claimed must have entered the
customs territory of the United States during the two-year period prior
to the issue date of the certificate or during the one-year period the
certificate remains valid. Copies of the appropriate Customs entries
must be provided with the refund request in order to establish a basis
for issuing the claimed amounts. Certification regarding drawback
claims and liquidated refunds relating to the presented entries is
required from the claimant on the form.
(2) Regulations issued by the U.S. Customs Service, U.S. Department
of the Treasury, govern the refund of duties under 19 CFR 7.4. If the
Departments receive information from the Customs Service that a
producer has made unauthorized use of any official form, they may
cancel the affected certificate.
(3) The territorial producer may transfer a portion of all of its
certificate entitlement to another party by entering in block C of Form
ITA-361P the name and address of the party.
(4) After a Form ITA-361P transferring a certificate entitlement to
a party other than the certificate holder has been authenticated by the
Department of Commerce, the form may be exchanged for any consideration
satisfactory to the two parties. In all cases, authenticated forms
shall be transmitted to the certificate holder or its authorized
custodian for disposition (see paragraph (b) of this section).
(5) All disputes concerning the use of an authenticated Form ITA-
361P shall be referred to the Departments for resolution. Any party
named on an authenticated Form ITA-361P shall be considered an
``interested party'' within the meaning of Sec. 303.21 of this part.
Sec. 303.20 Duty refund.
(a) Territorial jewelry producers are entitled to duty refund
certificates only for jewelry that they produce which is provided for
in heading 7113, HTSUS, is a product of a territory and otherwise meets
the requirements for duty-free entry under General Note 3 (a)(iv),
HTSUS, and 19 CFR 7.3.
(1) An article of jewelry is considered to be a product of a
territory if:
(i) The article is wholly the growth or product of the territory;
or
(ii) The article became a new and different article of commerce as
a result of production or manufacture performed in the territories.
(2) Two-year exception. Any article of jewelry provided for in
heading 7113, HTSUS, entered or withdrawn from warehouse for
consumption during the two-year period beginning August 9, 1999, that
is assembled in a territory shall be considered a product of the
insular possessions. At the expiration of the two-year period, only
jewelry which satisfies either of the criteria set forth in paragraph
(a)(1) of this section shall be considered a product of an insular
possession.
(b) Calculation of the value of production incentive certificates.
(1) The value of each producer's certificate shall equal the producer's
average creditable wages per unit shipped free
[[Page 46876]]
of duty into the United States multiplied by the sum of:
(i) The number of units shipped up to 300,000 units times a factor
of 90%; plus
(ii) Incremental units shipped up to 450,000 units times a factor
of 85%; plus
(iii) Incremental units shipped up to 600,000 times a factor of
80%; plus
(iv) Incremental shipments up to 750,000 units times a factor of
75%.
(2) The Departments may make adjustments for these data in the
manner set forth in Sec. 303.17(c).
Sec. 303.21 Appeals.
(a) Any official decision or action relating to the issuance or use
of production incentive certificates may be appealed to the Secretaries
by any interested party. Such appeals must be received within 30 days
of the date on which the decision was made or the action taken in
accordance with the procedures set forth in paragraph (b) of this
section. Interested parties may petition for the issuance of a rule, or
amendment or repeal of a rule issued by the Secretaries. Interested
parties may also petition for relief from the application of any rule
on the basis of hardship or extraordinary circumstances resulting in
the inability of the petitioner to comply with the rule.
(b) Petitions shall bear the name and post office address of the
petitioner and the name and address of the principal attorney or
authorized representative (if any) for the party concerned. They shall
be addressed to the Secretaries and filed in one original and two
copies with the U.S. Department of Commerce, Import Administration,
International Trade Administration, Washington, DC 20230, Attention:
Statutory Import Programs Staff. Petitions shall contain the following:
(1) A reference to the decision, action or rule which is the
subject of the petition;
(2) A short statement of the interest of the petitioner;
(3) A statement of the facts as seen by the petitioner;
(4) The petitioner's argument as to the points of law, policy or
fact. In cases where policy error is contended, the alleged error
together with the policy the submitting party advocates as the correct
one should be described in full;
(5) A conclusion specifying the action that the petitioner believes
the Secretaries should take.
(c) The Secretaries may at their discretion schedule a hearing and
invite the participation of other interested parties.
(d) The Secretaries shall communicate their decision, which shall
be final, to the petitioner by registered, certified or express mail.
Robert LaRussa,
Assistant Secretary for Import Administration, Department of Commerce.
Ferdinand Aranza,
Acting Director, Office of Insular Affairs, Department of the Interior.
[FR Doc. 99-22201 Filed 8-26-99; 8:45 am]
BILLING CODE 3510-DS-P and 4310-93-P