New Lacey Act Proposed Rules

In response to recent amendments to the Lacey Act, establishing definitions for the terms "common cultivar" and "common food crop" has been proposed. The amendments to the Act expanded its protections to a broader range of plant species, extented its reach to encompass products, including timber, that derive from illegally harvested plants, and require that importers submit a declaration at the time of importation for certain plants and plant products. Common cultivars and common food crops are among the categorical exemptions to the provisions of the Act. The Act does not define the terms "common cultivar" and "common food crop" but instead gives authority to the U.S. Department of Agriculture and the U.S. Department of the Interior to define these terms by regulation. The proposed definitions would specify which plants and plant products will be subject to the provisions of the Act, including the declaration requirement. Comments will be considered that are received on or before October 4, 2010. Please click, here, for more specific details.

WTO Rules Against US Ban on Chinese Poultry Products

China won the dispute with the US over a ban on its poultry imports after the World Trade Organization (WTO) ruled the American curbs on Chinese poultry were violating international trade laws, says a media report.

State newspaper, China Daily said in a report the US ban violated Sanitary and Phytosanitary Measures (SPS) Agreement, that mandates how governments can apply food safety, animal and plant health measures, as well as most-favored-nation treatment and general elimination of quantitative restrictions provided under the WTO framework.

As per WTO regulations US can appeal against the decision, but in case of it losing the appeal, the ruling will be considered as the final verdict.

The US move is not in line with the principles of the MFN treatment since the ban only targeted China, Zhang Liying, professor of international law at China University of Political Science and Law told the China Daily.

The majority of experts on the WTO panel handling the dispute ruled in favor of China, said the report in the China News Service. China had filed an appeal with the WTO in April 2009, to protest against a key clause in a US law, which prohibited Chinese exports of poultry.

It argued section 727 of the Omnibus Appropriations Act of 2009, signed into US law March 2009, violated the rules of the world trade body.

The law, which stipulated no government funds were to be made available for establishment or implementation of a rule allowing imports of poultry products from China - was deemed a de facto ban on Chinese poultry products.

According to Zhang, the US government has been annually revising the law for several years and even though the contentious 2009 law has ceased to exist, clarification is required if the WTO ruling will be binding on its successor, section 743 in Act 2010. "We think the US will not try to impose a similar ban in the next fiscal year, since it would be regarded as open defiance of the latest WTO ruling," a Chinese Ministry of Commerce official who received the WTO ruling order said.

The latest WTO report will force the US to comply with free trade rules and restrict its discriminatory actions against China, which is significant give the growing number of trade disputes between the world's two major traders, she said.

Cheng said the development had bolstered China's confidence in the multilateral trading system.

CPSC Proposes New Regulations on Testing, Certification and Labeling of Consumer Products

The Consumer Product Safety Commission has issued two proposed rules that provide further details on the testing, certification and labeling of consumer products, including children's products under the Consumer Product Safety Improvement Act. The proposed rules codify in regulatory form the enforcement policy the CPSC announced in 2009 regarding component testing and certification. The proposals are lengthy and complex and could have wide-ranging effects on the safety testing and certification of numerous consumer goods.

Among other things, the CPSC's proposed rules would:

- define the elements (including further guidelines on frequency of testing) of a reasonable testing program that can be used as the basis for a general conformity certificate certifying that a consumer product complies with all applicable rules, bans, standards, or regulations;

- establish the protocols and standards for ensuring that a children's product tested for compliance with a children's product safety rule is subject to testing periodically and when there has been a material change in the product's design or manufacturing process, including the sourcing of component parts;

- create a program enabling manufacturers to place a label on consumer products to show that they comply with certification requirements under a reasonable testing program for non-children's products or under compliance and continuing testing for children's products;

- provide relief from testing costs by, in certain circumstances, allowing the testing of component parts (a) to demonstrate the compliance of a finished product with applicable requirements, (b) to support a general conformity certificate for a children's product, (c) as part of a reasonable testing program, and (d) as part of the standards and protocols for continued testing of children's products; and

- specify when component part testing can be conducted by persons other than the manufacturer, such as the manufacturer or supplier of the component parts.

Comments on these two proposed rules are due by August 3. For more information on details and potential effects of these rules, please contact the following people:

Beth C. Ring New York, New York Tel: 212-883-1300 bring@strtrade.com

Edward Steiner Washington, D.C. Tel: 202-216-9307 esteiner@strtrade.com

Lauren V. Perez Miami, Florida Tel: 305-267-9200 lperez@strtrade.com

Sandler, Travis & Rosenberg, P.A.

Phase IV - Lacey Act Declaration Implementation Begins April 1, 2010

Pursuant to revisions of the Lacey Act, any person importing any plant or plant product must file a declaration upon importation that contains (1) the scientific name (i.e., genus and species) of the live plant or the plant from which the product was derived; (2) the plant species country of origin; and (3) a description of the value of the importation and quantity (including the unit of measure) of the plant/plant product. The declaration requirement is being overseen by the Animal and Plant Health Inspection Service (APHIS).

The declaration requirement has been implemented in a phased-in approach on a product specific basis. Phase IV will be implemented on April 1, 2010. The scope of goods encompassed by Phase IV has been significantly revised, resulting in the complete elimination of certain HTS chapters (e.g., Ch. 48), as well as the inclusion of additional chapters previously not covered by the declaration requirement. Phase IV, will now include the following HTSUS headings:

* Ch. 44 (Wood & Articles of Wood) -4421 (other articles of wood)

* Ch. 66 (Umbrellas, Walking Sticks, Riding Crops) -6602 (walking sticks, whips, crops)

* Ch. 82 (Tools, Implements) -8201 (hand tools)

* Ch. 92 (Musical Instruments) -9201 (pianos) -9202 (other stringed instruments)

* Ch. 93 (Arms & Ammunition) -9302 (revolvers & pistols) -9305.10.20 (parts & accessories for revolvers/pistols)

* Ch. 94 (Furniture, etc) -9401.69 (seats with wood frames)

* Ch. 95 (Toys, Games, & Sporting Equipment) -9504.20 (articles & accessories for billiards)

* Ch. 97 (Works of Art) -9703 (sculptures)

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

CPSC Requests Comments on Proposed Interpretive Rule for Children's Product Definition

On March 18, 2010 the Consumer Product Safety Commission (CPSC) issued a draft Federal Registar notice concerning its proposed interpretation of the term "children's product" as set forth in the Consumer Product Safety Improvement ACT of 2008. Comments on this propsal will be due 30 days after publication in Federal Register.

The notice elaborates on the children's product definition as set forth in the CPSIA which defines a children's product as a "consumer product designed or intended primarily for children 12 years of age or younger". In this notice, the CPSC states that term "designed or intended primarily" applies to those products designed and commonly recognized as intended for use by a population of consumers constituted by a significant portion of children 12 years old or younger.

The notice also expands on the factors listed in the CPSIA to be considered in making this determination and cites several examples:

(1) Manufacturer's Statement - this statement should be reasonable consistent with the expected use of patterns for a product. (2) Product Packaging, Display, Promotion or Advertising - for example, express or implied advertising that the product is not for use by ages 12 and younger, the physical location within the retail store. (3) Consumer Recognition - whether the product has childish features or characteristics of children's products (e.g., small size uncomfortable for adults, safety features not found on adult products, children's colors and decorative motifs, play value, cost of the product). (4) The Age Determination Guidelines - the CPSC considers those actions that children of certain ages can successfully perform when making determinations about the appropriate user groups for products.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

 

REMINDER: CPSC Extended Stay of Enforcement for Certain Standards

On December 17, 2009 the Consumer Product Safety Commission (CPSC) voted to extend the stay of enforcement on testing and certification for many standards. These requirements were originally scheduled to take effect February 10, 2010. Some of the more significant standards are noted below:

1. Flammability Requirements for Adult Wearing Apparel - certification requirements have been stayed until further notice 2. Total Lead Content in Children's Products - testing and certification requirements will not take effect until February 10, 2011. This pertains to lead content in the substrate of children's products (it does not affect the restictions on lead paint in children's products) 3. Testing and certification is stayed until 90 days after lab accreditation requirements are published with regard to the following children's product standards: Carpets and rugs, vinyl plastic film, children's wearing apparel flammabiltiy, children's sleepwear flammability, caps and toy guns, phthalates, ASTM F963 (the toy standard), clacker balls, baby walkers, bath seats, electronically operated toys, durable infant products, ATVs and mattresses.

Please note that the stay only applies to testing and certification. Products must still comply with all applicable standards.

Certification based on testing by an accredited 3rd party lab continues to be a requirement for children's products subject to the following standards: lead paint, small parts, metal jewelry and cribs and pacifiers. In addtion, as of 2/10/2010, testing and certification will be required for children's bike helmets, bunk beds, infant rattles and dive sticks.

Please see the CPSC Stay Chart for your reference

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

 

Ban Begins in January for Model Year 1994 - 2003 Trucks

Starting January 1st 2010, Licensed Motor Carriers (LMCs) and Independent Owner Operators (IOOs) that service terminals at the Ports of Long Beach / Los Angeles and operate port drayage trucks equipped with engine Model Years 1994 to 2003 must have a level 3 verified diesel emission control system (VDECS) that also achieves a minimum 25% reduction in NOx emissions installed on the truck in order to gain entry. Trucks with engine Model Years 1994 to 2003 without a VDECS will not be permitted into the ports' terminals.

Under the ports' clean trucks programs:

(1) Trucks equipped with engine Model Years 1993 and older are banned from the ports terminals beginning January 1, 2010. (2) Trucks equipped with engine Model Years 1994 to 2003 must be retrofitted with a CARB or U.S. EPA approved level 3 VDECS that also achieves a minimum 25% reduction in NOx emissions. Retrofitted trucks will continue to have access until January 1, 2012. (3) Trucks equipped with engine Model Years 1994 to 2003 NOT retrofitted with a VDECS will not be permitted entry into port terminals. (4) Trucks equipped with engine Model Years 2004 to 2006 will continue to have access to port terminals until January 1, 2012.

It is the responsibility of every truck owner to confirm that their truck is equipped with a CARB or U.S. EPA approved VDECS. Owners of trucks equipped with engine Model Years 1994 to 2003 equipped with VDECS must visit the Temporary Access Center (TAC) to verify that their trucks is equipped with CARB or U.S. EPA approved technology and achieves the minimal emission reductions of a level 3 VDECS and a minimum 25 percent reduction in NOx emissions. The Temporary Access Center is located at 3593 New Dock Street (Pier S Avenue and New Dock Street), Terminal Island, San Pedro, CA 90731.

Trucks equipped with engine Model Years 1994 to 2003 without an 'approved' VDECS will be turned away on January 1, 2010.

Los Angeles Customs Borkers & Freight Forwarders Association

Lacey Act - Phase III Begins October 1, 2009

Phase III of the Lacey Act is scheduled to begin October 1, 2009 thru March 31, 2010. It is important to understand that if you are importing the below HTS Chapters, Electronic Declaration is required:

4411: Fiber wood of wood / 4412: Plywood, veneered panels / 4413: Densified wood / 4414: Wooden frames / 4415: Packing, cases, boxes, crates, vats, tubs / 4416: Casks, barrels, vats, tubs / 4419: Tableware and kitchenware of wood / 4420: Wood marquetry, caskets, statuettes

Also various items in Chapter 47: Mechanical and chemical wood pulp and comination beef

The Electronic Declaration is affixed as a sub-module of our 7501 but the importer is responsible for supplying you the following data in order to complete the Electronic Declaration. The declaration must contain among other things:

the scientific name of the plant / value of the importation / quantity of the plant / name of the country from where the plant was harvested (this is at time different than the Country of Origin)

Updated Information: Consumer Product Safety Improvement Act (CPSIA)

On August 14, 2009 the newest changes under the Consumer Products Safety Improvement Act (CPSIA) became effective. They are: 1. Lead paint ban applicable to paint and similar surface coatings, toys, and other articles intented for use by children 12 yrs of age or younger, as well as furniture articles for consumer use (both adult and children). The lead paint ban has been lowered to 90 parts per million (ppm). 2. Lead substrate limit - reduced to 300 ppm for any accessible part pf children's products. 3. Tracking labels are required on children's products manufactured on or after August 14, 2009. 4. Civil penalties - increased to $100,000 for each violation and a maximim of $15,000,000 for a related series of violations.

Please note that the reduced limits on lead content and lead paint apply retroactively to ban the sale of any product containing amounts over the new limits on or after August 14, 2009.

Analysis of Tracking Label Requirement

The CPSC issued a policy statement and FAQs on the tracking label requirements in Section 103(a) of the Consumer Product Safety Improvement Act (CPSIA). The purpose of the tracking label, which is required on children's products, that is consumer products primarily intended for children 12 years of age or younger, is to assist in isolating products that may present a safety concern. The additional specificity contained in the tracking label described below could help the manufacturer narrow the scope of a recall if one is needed and help retailers more readily identify products that need to be removed from inventory. For more detailed information, please, click HERE.

Meeks, Sheppard, Leo & Pillsbury

UPDATE: CPSC Proposed Rule - "Durable Infant or Toddler Products"

On June 29, 2009 the Consumer Product Safety Commission (CPSC) issued a notice of proposed rulemaking (NPR) concerning certain requirements for manufacturers of durable infant or toddler products (i.e., products intended for use, or that may be reasonably expected to be used, by childeren under the age of 5 years). The proposed rule would create new requirements that manufacturers (including importers) of "durable infant or toddler products" must follow to enable consumers to register these products so that a consumer can be notified if such a product is the subject of a recall or safety alert.

The CPSC is proposing the rule to comply with section 104(d) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), which requires the CPSC to adopt rules that require manufacturers of durable infant or toddle products to:

Provide with each product a postage-paid consumer registration form

Keep records of consumers who register such products with the manufacturer

Permanently place for manufacturer name and contact information, model name, number, and the date of the manufacturer on each such product

While the statute requires the CPSC to implement a final rule by August 14 2009, the CPSC is required to go through the rulemaking process of notice and comment. In addition, the NPR states that the CPSC believes that it is unlikely for there to be sufficient time for manufactures to put a registration program in place. Thus, CPSC is soliciting comments through September 14 2009. After analysis of the comments, the CPSC will publish the final rule. CPSC proposes that the final rule will be effective 180 days after the date of publication in the Federal Register.

According to the CPSC, the statute's definition of "durable infant or toddle products" has some uncertainty. The CPSIA broadly defines the term as "a durable product intened for the use, or that may be reasonably expected to be used, by children under the age of 5 years" and provides specific examples. However, the examples are not exclusive and products that are not listed may also be "durable infant or toddle products" under the CPSIA. The CPSC specifically requests comments on whether the final rule should contain a definitive listing of products requiring registration cards and other comments that could help to clarify which products are covered by the registration card requirement when the final rule is published.

David M. Murphy (GDLSK)

ISF Liquidated Damages Guidelines

US Urges Increased Export to China

US Secretary of Commerce Gary Locke said on Wednesday that the government would help US companies sell their products to China in a bid to reduce America's trade deficit with the country. There are many US companies that make excellent products, goods and services needed very much by the Chinese people, Locke said in an interview with Xinhua. He added that the US government helps those companies sell their products to China would not only create job opportunities for American people but also help to raise the standard of living for people in China as well as the rest of the world. When asked about whether the US restrictions on selling high tech products to China are part of the reason China could not buy more from the United States, Locke defended the US position by saying it is not really the reason to cause the US trade deficit.

He said people in America, especially in California, grow great food and agricultural commodities. If China can buy more US agricultural commodities, it will help reduce US trade deficit. Speaking of trade protectionism, Locke said all countries should avoid protectionism because trade is the key to helping the United States recover from economic recession.

Locke, 59, was the first Chinese American governor in the United States. He served as Washington State Governor between 1997 and 2005. Locke said that as secretary of commerce, his department is ready to work with Chinese officials on trade issues, including intellectual property protection. He also planned to visit China this fall on behalf of US President Barack Obama.

"The US-China relationship is the most important bilateral relationship of our time. We depend on each other economically as well as politically on a whole host of issues," Locke said.

Lacey Act Becomes a Mandatory Regulation On May 1, 2009

As you may know the Federal Government as part of the 2008 Farm Act developed the "Lacey Act" which makes it "unlawful to import, export, transport, sell receive, acquire or purchase in interstate or foreign commerce any plant, with some limited exceptions, taken or traded in violation of the laws of the United States, a U.S. state or a foreign country".

On May 1st, 2009 the USDA (United States Department of Agriculture) in conjunction with APHIS (Animal and Plant Health Inspection Service) will make the Lacey Act a mandatory regulation for compliance for commodities listed in the Phase 1 implementation. The commodities covered in this Phase 1 are as follows:

HTS Code: 4401 - Fuel wood

HTS Code: 4403 - Wood in the rough

HTS Code: 4404 - Hoopwood, poles, posts and stakes

HTS Code: 4406 - Railway and Tramway sleepers

HTS Code: 4407 - Wood sawn or chipped lengthwise

HTS Code: 4408 - Sheets for veneering

HTS Code: 4409 - Wood continuously shaped

HTS Code: 4417 - Tools, tool handles, broom handles

HTS Code: 4418 - Builder joinery

We urge you to use the link below to familiarize yourself completely with these regulations and what information will be required from your suppliers or vendors in order to become fully compliant. http://apps.cbp.gov/csms/viewmssg.asp?Recid=17527&page=&srch_argv=&srchtype=&btype=&sortby=&sby=

In addition, below is a link to the Plant and Plant Product Declaration Form (PPQ Form 505): http://www.aphis.usda.gov/plant_health/lacey_act/downloads/declarationform.pdf

In the coming months additional Phases of this regulation will be implemented. These phases will broaden the scope of the commodities affected by the Lacey Act. East-West Associates will provide you additional notifications as this new regulation further evolves.

East-West Associates, Inc. is ready to assist you with these filings and aid you in the importation of these products. During an initial period commencing immediately East-West Logistics, Inc. will offer you these services at no charge. As always our goal is to help you navigate the myriad of government regulations and make the importation of goods from anywhere in the world a much easier experience. Please contact Dan Percival or Irene Mac if you have additional questions regarding the Lacey Act.

High Spike in Rate of CBP Exams in L.A. / Long Beach

Customs and Border Protection has increased the rate of exams that they are designating nationwide over last year. CBP has let the trade know to expect more exams; both non-intrusive and full devan exams. However, in the last month the increase in the exam rates in the Customs Port of Los Angeles/Long Beach took a very high spike. Many of our members and their customers have asked why the rate of all kinds of exams was so high in Los Angeles and not in other ports. Members of the LACBFFA approached the Port Director and the Director of Field Operations.

After reviewing the exam statistics, the Los Angeles Field Office told the LACBFFA that rate of exams had increased much higher than anticipated. We were assured that changes would be put in place for a moderate increase from last year that will reflect increased exam rates that will be comparable to the rest of the country. The changes have already been put in place for the Port of Los Angeles/Long Beach. Please notify the LACBFFA Customs Committee if you are still experiencing difficulties for new shipments.

Mark Dawson, Seaport CBP Committee

Wood Composite Products - New Regulations

The California Air Resources (CARB) has adopted the Airborne Toxic Control Measure (ACTM) to reduce formaldehyde emissions from composite wood products and finished goods sold to California. The new regulations will be implemented in a two phase approach over 3 years, beginning January 1, 2009. Emissions testing by a CARB Third Part Cetifier will be required so all Importers of composite wood products that used Hardwood Plywood, Particleboard, or Medium Density Fiberboard are subject to these new regulations. Importers should contact The California Air Resources main contacts for these new regulations, for emission standards, CARB Approved Third Party Certifiers, labeling and recordkeeping responsibilities and or all questions concerning these new regulations. The contacts at CARB are:

Lynn Baker: 916-324-6997 and Jeffrey William PHD: 916-327-0647 or www.arb.ca.gov

Lacey Act Update

We highly suggest, advising your clients or new clients, of any plant or plant products that they must provide the following information in order to file the upcoming Electronic Declaration for the Lacey Act which is not in effect yet, but was supposed to be finalized for April 1st yet it hasn't been confirmed.

Data required for Electronic Declaration:

Where the plant was harvested

Genus and species of the plant

The value and quantity of the importation

Note: Each species must be identified.

Please click HERE for more detailed information regarding the Lacey Act.

Prohibited Import Alert: Fresh Paprika

Per USDA, fresh paprika of the Genus family "Capsicum" is prohibited to import from China into USA. Imports of dried paprika are still allowed with no USDA Import Permit required.

Asian Imports Point To 'Bottoming Out' Of World Trade Slump

Growth in imports posted by major Asian trading nations in February may be a sign that a world trade slump is "bottoming out," the World Trade Organization (WTO) said Monday. Following successive months of decline in import data for China, Singapore, Taiwan and Vietnam turned positive in February noted the WTO. "While this is only a single month of data, and should therefore be interpreted cautiously, it could be evidence of slowing decline and perhaps a 'bottoming out' of negative trade growth trends," said a WTO report.

World Trade Organization

USDA Issues Final Rule Pursuant to The Farm Bill

The United States Department of Agriculture (USDA) has issued a ?Final Rule? setting forth additional mandatory country of origin labeling (COOL) requirements on commodities covered by the Agricultural Marketing Act of 1946, as amended by The Farm Security and Rural Investment Act of 2002, the 2002 Supplemental Appropriations Act, and the Food, Conservation and Energy Act of 2008.[1] Commodities covered by the Final Rule include: certain cut and ground meats; fish and shellfish; perishable agricultural goods; macadamia nuts; pecans; ginseng; and peanuts. The labeling requirements become effective March 16, 2009... READ MORE

No Quota Visa From China Confirmed Starting January 1, 2009

The Committee for the Implementation of Textile Agreements (CITA) has issued a directive to Customs and Border Protection (CBP) cancelling the Electronic Visa Information System (ELVIS) requirements for goods exported from China on or after January 1, 2009. For goods exported from China prior to January 1, 2009, ELVIS and quota requirements remain in effect until further notice, regardless of the date of entry into the United States. This action is consistent with China?s accession to the World Trade Organization, and with the terms of the bilateral agreement on textiles and apparel between the Governments of the United States and the People?s Republic of China, signed on November 8, 2005.... READ MORE

Trade Policy and Programs Office of International Trade