Industry News

Clean Trucks Program

On February 18, 2009, the ports of Long Beach and Los Angeles will begin collecting a $35 per 20’ and $70 per 40’ container fee to support their clean-trucks program.  This is applicable for both import and export containers operating at the ports of Long Beach and Los Angeles.

The landmark Clean Trucks Program will dramatically modernize the port trucking industry and slash truck-related air pollution by 80 percent by 2012. The Clean Trucks Program is outlined in the San Pedro Bay Ports Clean Air Action Plan. Diesel-powered harbor short-haul (drayage) trucks are a major source of air pollution. The Clean Trucks Program calls for drayage truck owners to scrap and replace about 16,000 polluting trucks working at the ports, with the assistance of a port-sponsored grant or loan subsidy. The Port of Long Beach program includes truck concession requirements to identify ‘clean’ trucks, ensure reliable short-haul service, and improve air quality, security and safety.

• February 18, 2009: All pre-1989 trucks will be banned.

• January 1, 2010: 1989-1993 trucks will be banned from Port terminals along with unretrofitted 1994-2003 trucks.

• January 1, 2012: All trucks that do not meet the 2007 federal clean truck emission standard will be banned from Port terminals.

CPSC Grants One Year Stay of Testing and Certification Requirements for Certain Products

http://www.cpsc.gov/cpscpub/prerel/prhtml09/09115.html

http://demint.senate.gov/public/index.cfm?FuseAction=JimsJournal.Detail&Blog_ID=295d58b2-b6fe-c446-1432-24b6199424ed

Cancellation of Electronic Visa Information System (ELVIS) Requirements for Textiles and Textile Products Produces or Manufactured in the People?s Republic of China and Exported on or after January 1, 2009

Consumer Product Safety Improvement Act of 2008 (CPSIA) Takes Effect on 11/12/08

The CPSC's final rule eliminates the requirement for foreign manufacturers and private labelers of imported consumer goods to certify that they conform with applicable CPSC product safety standards. Only importers will be required to issue conformity certificates for imported goods.

In addition, the rule clarifies that certificates can be electronic and still satisfy the requirements that they (a) accompany the import shipment and (b) be furnished to distributors and retailers. This can be accomplished by placing on the product or with the shipment a unique identifier that can be accessed via the Internet or other electronic means. This change eliminates the concerns about confidentiality that had been raised by the proposed requirement that the foreign manufacturer issue the certificate.

The rule still allows testing of consumer products to be done by the foreign manufacturer, but in such cases only the importer's identifying information must be on the certificate of conformity. Importers who rely on foreign suppliers to perform testing should therefore make sure their purchase agreements contain language sufficiently ensuring the accuracy of such tests and protecting them from liability for failure to provide accurate test reports.

The final rule indicates that for the time being the CPSC will be focusing its attention more on the compliance of imported products with applicable safety standards than on compliance with the certificate of conformity requirements. While the CPSC has been inundated with questions regarding which safety standards apply to which products, it does not currently have the resources to respond. It is therefore critical that importers themselves determine which standards apply to their products and ensure that those standards are met, a task that is particularly complex due to the fact that new rules and standards are being issued on a regular basis. The CPSC also warns that after an initial period of adjustment any failure to abide by the certificate of conformity requirement will subject shipments to denial of entry and possible destruction.

CPSC Regulated Products Table: http://www.cpsc.gov/businfo/reg1.html

List of Labs: http://www.cpsc.gov/cgi-bin/labapplist.aspx

Ban of Lead Paint: http://www.cpsc.gov/BUSINFO/regsumleadpaint.pdf

Lead Paint FAQ 1: http://www.cpsc.gov/ABOUT/Cpsia/faq/101faq.html

Lead Paint FAQ 2: http://www.cpsc.gov/ABOUT/Cpsia/sec101FAQs2.pdf

First Sale Rule
"First Sale" is when a series of sales are involved - from the foreign factory to a middleman and then to the U.S. buyer. Under "first sale" the duty is based on the value of the first sale in the series where the goods are destined for the United States, which is typically lower than any subsequent sale. If the "first sale" was a "sale for exportation to the United States" then the first sale (plus certain additions) can be declared as the transaction value of the imported merchandise. U.S. CBP accepted first sale appraisement where (a) the transaction between the factory and the middleman is a "sale" of merchandise; (2) this sale is an arm's length transaction, and (3) the goods are clearly destined for export to the United States as a result of this sale.

USDA-APHIS Lacey Act

On October 8, 2008, APHIS, the Animal and Plant Health Inspection Service of the US Department of Agriculture issued a Notice of Implementation of the Lacey Act Requirements (73 FR 58925) announcing a phase-in period associated with the declaration requirements for importation of goods that are plants, or contain plant or wood materials. The notice provides that for approximately the first five months of implementation, submission of paper declarations will be voluntary. Once an electronic filing system is up and running, compliance will be mandatory, with a phased-in product schedule discussed below.

APHIS is accepting comments on the plan up until December 8, 2008.

Background

In May of this year, Congress passed a provision in the Farm Bill that amended the Lacey Act (the Act that combats trafficking in ‘‘illegal’’ wildlife, fish, and plants) which makes it unlawful for any person to import or export certain plant or wood products taken from a foreign country.

The legislation re-defines "plant" to mean any wild member of the plant kingdom, including roots, seed, parts and products thereof, and including trees from either natural or planted forest stands.

There are exceptions for:

• common cultivars, except trees and common food crops (including roots, seed, parts or products thereof),
• scientific specimens of plant genetic material to be used only for laboratory or field research and
• any plant that is to remain planted or to be planted or replanted.

The exceptions do not apply if the plant is listed in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, as an endangered or threatened species under the Endangered Species Act of 1973, or pursuant to any state law that provides for the conservation of indigenous species that are threatened with extinction.

Import Declaration Requirements

Under the amended Lacey Act, beginning December 15, 2008, importers are supposed to submit a declaration for the subject plants and plant products. The declaration is to specify:

• The scientific name of any plant (including the genus and species) contained in the importation,
• A description of the value and quantity (including the unit of measure) of the importation and
• The name of the country from which the plant was taken.

Clarification of Declaration Requirements

In its notice of PRM, APHIS states that all declarations will have to comply with the following requirements:

• If the plant species used to produce the imported plant product varies and that species is unknown, the declaration must contain the name of each plant species that may have been used to produce the plant product.
• If the plant species used to produce the imported plant product is commonly taken from more than one country and the country from which the plant was taken and used to produce the plant product is unknown, the declaration must contain the name of each country from which the plant may have been taken.
• If a paper or paperboard plant product includes recycled plant product, the declaration must contain the average percent recycled content without regard for the species or country of origin of the recycled plant product, in addition to the information for the non-recycled plant content otherwise required.

Scope Of Coverage

All covered plants and plant products will require an import declaration. The scope of products that will require a declaration under the Lacey Act is broad, and includes certain live plants, plant parts, lumber, wood pulp, paper and paperboard, and products containing certain plant material or products, such as, furniture, tools, umbrellas, sporting goods, printed matter, musical instruments, products manufactured from plant-based resins, and textiles.

Declarations, however, need not be filed for plants or plant material used exclusively as packaging material to support, protect or carry another item, unless the packaging material itself is the item being imported.

Implementation Schedule & Voluntary Submission

CBP is currently developing an electronic reporting system that will collect the required data and it anticipates completing the electronic system by April 1, 2009.

APHIS states that it intends to begin enforcement of the declaration requirements upon completion of the electronic system. In the meantime, from December 15, 2008, to April 1, 2009, or as soon thereafter as the electronic system is available, APHIS will make a paper declaration form available for voluntary submission

APHIS will publish a notice in the Federal Register announcing the availability of the paper form and soliciting comments from the public (as well as affected agencies).

On April 1, 2009, enforcement is to begin with Harmonized Tariff Schedule (HTS) Chapters Ch. 44 (wood & articles of wood) and Ch. 6 (live trees, plants, bulbs, cut flowers, ornamental foliage, etc.).

On July 1, 2009, other chapters, such as: Ch. 47 (wood pulp), Ch. 48 (paper & articles of), Ch. 92 (musical instruments), and Ch. 94 (furniture) would follow.

Then, by September 30, 2009, and based on experience with the implementation of the electronic system for declaration data collection, USDA plans to phase in enforcement of the declaration requirements for additional chapters, including (but not limited to):

• Ch. 12 (oil seeds, misc. grain, seed, fruit, plant, etc.),
• Ch. 13 (gums, lacs, resins, vegetable saps, extracts, etc.),
• Ch. 14 (vegetable plaiting materials and products not elsewhere specified or included),
• Ch. 45 (cork and articles of),
• Ch. 46 (basket ware and wickerwork),
• Ch. 66 (umbrellas, walking sticks, riding crops),
• Ch. 82 (tools),
• Ch. 93 (guns),
• Ch. 95 (toys, games and sporting equipment),
• Ch. 96 (brooms, pencils, and buttons), and
• Ch. 97 (works of art).