[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2844-2847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-786]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Parts 12 and 163

[CBP Dec. 09-01; USCBP-2008-0111]
RIN 1505-AC06


Prohibitions and Conditions for Importation of Burmese and Non-
Burmese Covered Articles of Jadeite, Rubies, and Articles of Jewelry 
Containing Jadeite or Rubies

AGENCIES: Customs and Border Protection, Department of Homeland 
Security; Department of the Treasury.

ACTION: Interim final rule; solicitation of comments.

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SUMMARY: This document amends the U.S. Customs and Border Protection 
(CBP) regulations in title 19 of the Code of Federal Regulations (19 
CFR) in order to implement the provisions of the Tom Lantos Block 
Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (Pub. L. 
110-286) (the ``JADE Act'') and Presidential Proclamation 8294 of 
September 26, 2008, which includes new Additional U.S. Note 4 to 
Chapter 71 of the Harmonized Tariff Schedule of the United States 
(``HTSUS''). These amendments are made to implement certain provisions 
of the JADE Act and the Presidential Proclamation by prohibiting the 
importation of ``Burmese covered articles'' (jadeite, rubies, and 
articles of jewelry containing jadeite or rubies, mined or extracted 
from Burma), and by setting forth conditions for the importation of 
``non-Burmese covered articles'' (jadeite, rubies, and articles of 
jewelry containing jadeite or rubies, mined or extracted from a country 
other than Burma).

DATES: This interim final rule is effective January 16, 2009. Comments 
must be received on or before March 17, 2009.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2008-0111 .
     Mail: Trade and Commercial Regulations Branch, Regulations 
and Rulings, Office of International Trade, U. S. Customs and Border 
Protection, 799 9th Street, NW., (Mint Annex), Washington, DC 20229.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to 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 be inspected during regular business days between the hours of 9 
a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch, 
Regulations and Rulings, Office of International Trade, U.S. Customs 
and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. 
Arrangements to inspect submitted comments should be made in advance by 
calling Mr. Joseph Clark at (202) 325-0118.

FOR FURTHER INFORMATION CONTACT: Cathy Sauceda, Director, Import Safety 
and Interagency Requirements Division, Office of International Trade 
(202) 863-6556, or Brenda Brockman Smith, Executive Director, Trade 
Policy and Programs, Office of International Trade (202) 863-6406.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim final rule. CBP also invites comments that relate to the 
economic, environmental, or federalism effects that might result from 
this interim final rule. Comments that will provide the most assistance 
to CBP will reference a specific portion of the interim final rule, 
explain the reason for any recommended change, and include data, 
information, or authority that support such recommended change. See 
ADDRESSES above for information on how to submit comments.

Background

    On July 29, 2008, the President signed into law the Tom Lantos 
Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (Pub. 
L. 110-286) (the ``JADE Act''). Section 6 of the JADE Act amends the 
Burmese Freedom and Democracy Act of 2003 (Pub. L. 108-61) (as so 
amended, the ``BFDA'') by adding a new section 3A that prohibits the 
importation of jadeite and rubies mined or extracted from Burma, and 
articles of jewelry containing jadeite or rubies mined or extracted 
from Burma, and by regulating the importation of jadeite and rubies 
mined or extracted from a country other than Burma, and articles of 
jewelry containing jadeite or rubies mined or extracted from a country 
other than Burma. Presidential Proclamation 8294 of September 26, 2008 
implements the prohibitions and conditions of the JADE Act. (See Annex 
of Presidential Proclamation 8294 for Additional U.S. Note 4 to Chapter 
71, Harmonized Tariff Schedule of the United States (``HTSUS'')).

Burmese Covered Articles

    Section 3A(b)(1) of the BFDA, as implemented by Presidential 
Proclamation 8294, provides that ``Burmese covered articles'' are 
prohibited from importation into the United States. Burmese covered 
articles are defined in section 3A(a)(2) of the BFDA as jadeite or 
rubies mined or extracted from Burma, or articles of jewelry containing 
jadeite or rubies mined or extracted from Burma. Section 3A(a)(4) of 
the BFDA defines ``jadeite'' as any jadeite classifiable under heading 
7103 of the HTSUS; ``rubies'' as rubies classifiable under heading 7103 
of the HTSUS; and ``articles of jewelry containing jadeite or rubies'' 
as any article of jewelry classifiable under heading 7113 of the HTSUS 
that contains jadeite or rubies, or any article of jadeite or rubies 
classifiable under heading 7116 of the HTSUS. The prohibition on the 
importation of the Burmese covered articles will also be set forth in 
the regulations of the Office of Foreign Assets Control (OFAC) at 31 
CFR Part 537.

Non-Burmese Covered Articles

    Sections 3A(c)(1) and (2) of the BFDA set forth the conditions for 
importation into the United States of ``non-Burmese covered articles,'' 
which are defined in section 3A(a)(3) of the BFDA as jadeite or rubies 
mined or extracted from a country other than Burma, or articles of 
jewelry containing jadeite or rubies mined or extracted from a country 
other than Burma.

[[Page 2845]]

    Presidential Proclamation 8294 requires that as a condition for the 
importation into the United States of any non-Burmese covered article, 
the importer and exporter of such article must meet the conditions set 
forth in section 3A(c)(1) of the BFDA. The Proclamation also modified 
the HTSUS by including Additional U.S. Note 4 to Chapter 71, HTSUS.

Certifications

    Additional U.S. Note 4(a), Chapter 71, HTSUS, provides that if an 
importer chooses to enter any good (or withdraws such good from 
warehouse for consumption) under heading 7103, 7113, or 7116, HTSUS, 
the presentation of this entry at the time of importation shall be 
deemed to be a certification by the importer that any jadeite or rubies 
contained in such good were not mined or extracted from Burma. As such, 
the entry of any such article under one of the three specified headings 
is considered to be the ``importer's certification.''
    Under section 3A(c)(1) of the BFDA, another condition for 
importation is that the exporter of the non-Burmese covered article has 
implemented measures that have substantially the same effect and 
achieve the same goals as the measures described in section 
3A(c)(2)(B)(i) through (iv) or their functional equivalent to prevent 
the trade in Burmese covered articles. To achieve this requirement, CBP 
is amending the regulations to require that, at the time of importation 
into the United States, the importer have in his possession a written 
certification from the exporter (``exporter's certification'') 
certifying that the jadeite or rubies were not mined or extracted from 
Burma, with verifiable evidence from the exporter that tracks the 
jadeite or rubies as follows: With respect to exportation from the 
country of jadeite or rubies in rough form, from mine to exportation; 
with respect to exportation from the country of finished jadeite or 
polished rubies, from mine to the place of final finishing; and with 
respect to exportation from the country of articles of jewelry 
containing jadeite or rubies, from mine to the place of final finishing 
of the article of jewelry.

Exceptions

    Sections 3A(d)(1) and (2) of the BFDA set forth the two instances 
in which the prohibitions and conditions of the JADE Act do not apply. 
These exceptions are as follows: (1) Jadeite, rubies, and articles of 
jewelry containing jadeite or rubies that are reimported into the 
United States after having been previously exported from the United 
States, including those that accompanied an individual outside the 
United States for personal use, if they are reimported into the United 
States by the same person who exported them, without having been 
advanced in value or improved in condition by any process or other 
means while outside the United States, and (2) jadeite or rubies mined 
or extracted from a country other than Burma, and articles of jewelry 
containing jadeite or rubies mined or extracted from a country other 
than Burma, that are imported by or on behalf of an individual for 
personal use and accompanying an individual upon entry into the United 
States.

Recordkeeping Requirements

    Under section 3A(c)(1) of the BFDA, a specific condition for 
importation of non-Burmese covered articles is that the importer of 
non-Burmese covered articles maintain for a period of not less than 5 
years from the date of entry of the non-Burmese covered article a full 
record of, in the form of reports or otherwise, complete information 
relating to any act or transaction related to the purchase, 
manufacture, or shipment of the non-Burmese covered article. The 
importer is further required to produce such information to the 
relevant United States authorities upon request. CBP, to comply with 
the statute, is requiring the importer to keep in its possession a 
certification from the exporter certifying that the jadeite or rubies 
were not mined or extracted from Burma, with verifiable evidence from 
the exporter that tracks the sourcing from mine to either exportation 
or place of final finishing. Because the importer of record must have 
in his possession at the time of entry a certification from the 
exporter (``exporter's certification'') and any underlying records 
supporting its certified entry of articles under heading 7103, 7113 or 
7116, HTSUS, that any such articles were not mined or extracted from 
Burma, CBP is amending its (a)(1)(A) list (found in the Appendix to 19 
CFR part 163). In this rulemaking, CBP is adding this new recordkeeping 
requirement in Section IV of the (a)(1)(A) list in the Appendix to 19 
CFR part 163.

Explanation of Amendments

    These amendments implement certain provisions of the JADE Act and 
the Presidential Proclamation with regard to the prohibition on 
importations of Burmese covered articles, and incorporate into the 
regulations the conditions for importation of non-Burmese covered 
articles. CBP is adding a new Sec.  12.151 to part 12 of title 19 of 
the Code of Federal Regulations (19 CFR) to reflect the new conditions 
as described above. CBP is also amending the Interim (a)(1)(A) list in 
the Appendix to part 163 of title 19 CFR to add to the list of 
documents that importers must retain for a period of 5 years the 
``exporter's certification'' as well as other supporting documentation 
in Section IV of the Appendix.

Inapplicability of Prior Public Notice and Delayed Effective Date

    This document incorporates into the regulations a provision setting 
forth the conditions necessary for importation of non-Burmese covered 
articles. This document further amends the Appendix to part 163 for the 
list of records required for the entry of merchandise to implement the 
statutory mandate contained in the JADE Act and Presidential 
Proclamation 8294 of September 26, 2008 and inform the public of the 
conditions necessary to comply with the statutory requirements. Because 
this regulation merely implements statutory requirements, CBP has 
determined, pursuant to the provisions of 5 U.S.C. 553(b)(B), that 
prior public notice and comment procedures on this regulation are 
impracticable and contrary to the public interest and that there is 
good cause for this rule to become effective immediately upon 
publication as the JADE Act is already in effect. For these reasons, 
pursuant to the provisions of 5 U.S.C. 553(d)(3), CBP finds that there 
is good cause for dispensing with a delayed effective date.

Executive Order 12866 and Regulatory Flexibility Act

    This document does not meet the criteria for a ``significant 
regulatory action'' as specified in Executive Order 12866 of September 
30, 1993 (58 FR 51735, October 1993). In addition, because a notice of 
proposed rulemaking is not required under 5 U.S.C. 553(b) for the 
reasons described above, CBP notes that the provisions of the 
Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.), do not 
apply to this rulemaking. Accordingly, CBP also notes that this rule is 
not subject to the regulatory analysis requirements or other 
requirements of 5 U.S.C. 603 and 604.

Paperwork Reduction Act

    The collections of information in this document are contained in 
Sec.  12.151(d) (19 CFR 12.151(d)). This information is used by CBP to 
fulfill its information collection obligations under section 3A(c)(1) 
of the BFDA, as amended, and Additional U.S. Note 4, Chapter 71, HTSUS, 
which requires that when an

[[Page 2846]]

importer of non-Burmese covered articles certifies on the entry summary 
form, CBP Form 7501, that the articles entered under heading 7103, 7113 
or 7116, HTSUS were not mined or extracted from Burma, the importer 
must have in his possession a written certification from the exporter 
that such articles were not mined or extracted from Burma and other 
documentation to support such certification at the time of entry under 
Sec.  12.151(d). The likely respondents are business organizations 
including importers and brokers. An agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a valid control number assigned by OMB. This 
collection of information falls under the approved collection OMB 
Control No. 1651-0133.
    Estimated annual reporting and/or recordkeeping burden: 74,005 
hours.
    Number of responses per respondent and/or recordkeeper: 20.
    Estimated number of respondents and/or recordkeepers: 22,197.
    Estimated annual total responses: 443,940.
    Estimated time per response: 10 minutes (.1667 hours).
    Comments on the collection of information should be sent to the 
Office of Management and Budget, Attention: Desk Officer for the 
Department of the Treasury, Office of Information and Regulatory 
Affairs, Washington, DC 20503. A copy should also be sent to the Trade 
and Commercial Regulations Branch, Regulations and Rulings, Office of 
International Trade, Customs and Border Protection, 799 9th Street, 
NW., (Mint Annex), Washington, DC 20229.

Signing Authority

    This document is being issued in accordance with section 0.1(a)(1) 
of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority 
of the Secretary of the Treasury (or his/her delegate) to approve 
regulations related to certain customs revenue functions.

List of Subjects

19 CFR Part 12

    Customs duties and inspection, Economic sanctions, Entry of 
merchandise, Foreign assets control, Imports, Licensing, Prohibited 
Merchandise, Reporting and recordkeeping requirements, Restricted 
merchandise, Sanctions.

19 CFR Part 163

    Administrative practice and procedure, Customs duties and 
inspection, Exports, Imports, Penalties, Reporting and recordkeeping 
requirements.

Amendments to the Regulations

0
For the reasons set forth above, parts 12 and 163 of title 19 of the 
Code of Federal Regulations (19 CFR parts 12 and 163) are amended as 
set forth below:

PART 12--SPECIAL CLASSES OF MERCHANDISE

0
1. The general authority citation for part 12, CBP regulations, 
continues to read, and a new specific authority citation for Sec.  
12.151 is added to read, as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), 
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
    Section 12.151 also issued under The Burmese Freedom and 
Democracy Act of 2003 (Pub. L. 108-61) (the ``BFDA''), as amended by 
the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) 
Act of 2008 (Pub. L. 110-286) (the ``JADE Act''); Presidential 
Proclamation 8294, signed on September 26, 2008; Additional U.S. 
Note 4 to Chapter 71, HTSUS.
* * * * *

0
2. In part 12, a new Sec.  12.151 is added to read as follows:


Sec.  12.151  Prohibitions and conditions on importations of jadeite, 
rubies, and articles of jewelry containing jadeite or rubies.

    (a) General. The importation into the United States of jadeite, 
rubies, and articles of jewelry containing jadeite or rubies is 
prohibited or conditioned as described in this section pursuant to the 
Tom Lantos Block Burmese JADE Act of 2008 (Pub. L. 110-286). For 
purposes of this section, the following definitions apply:
    (1) Jadeite. ``Jadeite'' means any jadeite classifiable under 
heading 7103 of the Harmonized Tariff Schedule of the United States 
(HTSUS);
    (2) Rubies. ``Rubies'' means any rubies classifiable under heading 
7103 of the HTSUS;
    (3) Articles of jewelry containing jadeite or rubies. ``Articles of 
jewelry containing jadeite or rubies'' means any article of jewelry 
classifiable under heading 7113 of the HTSUS that contains jadeite or 
rubies, or any article of jadeite or rubies classifiable under heading 
7116 of the HTSUS; and
    (4) United States. ``United States'' means the 50 states, the 
District of Columbia, and any commonwealth, territory, or possession of 
the United States.
    (b) Prohibited Articles. The following articles are prohibited from 
importation into the United States (see 31 CFR Part 537):
    (1) Jadeite mined or extracted from Burma;
    (2) Rubies mined or extracted from Burma; and
    (3) Articles of jewelry containing jadeite or rubies mined or 
extracted from Burma.
    (c) Regulated Articles. Jadeite, rubies, or articles of jewelry 
containing jadeite or rubies may not be imported into the United States 
unless the importer certifies (see paragraph (d) of this section) that 
those jadeite or rubies were mined or extracted from a country other 
than Burma and possesses the documents described in paragraph (e) of 
this section.
    (d) Certification of importer. Pursuant to Additional U.S. Note 
4(a), Chapter 71, HTSUS, if an importer enters any good (or withdraws 
any good from warehouse for consumption) under heading 7103, 7113, or 
7116 of the HTSUS, the presentation of the entry serves as a 
certification by the importer that any jadeite or rubies contained in 
such good were not mined or extracted from Burma.
    (e) Certification of exporter. If an importer enters (or withdraws 
from warehouse for consumption) jadeite, rubies, or jewelry containing 
jadeite or rubies:
    (1) The importer must have in his possession a certification from 
the exporter (exporter certification) certifying that the jadeite or 
rubies were not mined or extracted from Burma, with verifiable evidence 
from the exporter that tracks the jadeite or rubies: In rough form, 
from mine to exportation; and for finished jadeite, polished rubies, 
and articles of jewelry containing jadeite or rubies, to the place of 
final finishing; and
    (2) The importer must maintain, for a period of not less than 5 
years from the date of entry of the good, a full record of, in the form 
of reports or otherwise, complete information relating to any act or 
transaction related to the purchase, manufacture, or shipment of the 
good.
    (f) Requirement to provide information. An importer who enters any 
good (or withdraws any good from warehouse for consumption) under 
heading 7103, 7113, or 7116 of the HTSUS must provide all documentation 
to support the certifications described in paragraphs (d) and (e) of 
this section to CBP upon request or be subject to recordkeeping 
penalties under part 163 of the chapter.
    (g) Inapplicability. This section does not apply to the following 
articles:
    (1) Jadeite, rubies, and articles of jewelry containing jadeite or 
rubies that are reimported into the United States after having been 
previously exported

[[Page 2847]]

from the United States, including those that accompanied an individual 
outside the United States for personal use, if they are reimported into 
the United States by the same person who exported them, without having 
been advanced in value or improved in condition by any process or other 
means while outside the United States; and
    (2) Jadeite or rubies mined or extracted from a country other than 
Burma, and articles of jewelry containing jadeite or rubies mined or 
extracted from a country other than Burma that are imported by or on 
behalf of an individual for personal use and accompanying an individual 
upon entry into the United States.

PART 163--RECORDKEEPING

0
3. The general authority citation for Part 163, CBP regulations, 
continues to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 
1624.


0
4. The Appendix to Part 163 is amended by adding a new listing under 
section IV in numerical order to read as follows:

Appendix to Part 163--Interim (a)(1)(A) List.

* * * * *
    IV. * * *


Sec.  12.151  Documentation supporting importer's certification on 
jadeite, rubies, or articles of jewelry containing jadeite or rubies, 
including an exporter's certification.

* * * * *

Jayson P. Ahern,
Acting Commissioner, U.S. Customs and Border Protection.
    Approved: January 12, 2009
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. E9-786 Filed 1-15-09; 8:45 am]
BILLING CODE 9111-14-P