There is an area of Brooklyn called Red Hook that historically, was one of New York City’s main waterfronts and ship servicing areas. Today it remains an area of activity more incidental to shipping, for example, warehousing, than that of berthing activity, though there is some, albeit, on a much smaller scale than before.
I was recently in Red Hook sitting on a small fishing pier that has a great view of the New York Harbor with all of its tugboats, container ships, and of course, Lady Liberty. While walking there, my friend and I passed a 40 ft. container sitting on a chassis, and being the “trade nerd” I am (as described by a commenter to a post I wrote last month), I began describing the differences in containers - the metal boxes cargo is transported in whether by steamship, train or truck – the nuances between them, e.g., refrigerated, insulated, etc., a 40 ft. versus a 20 ft. container, and containerization generally. I also shared other tidbits of information such as the concept of “free time,” which is a certain number of days following the arrival of a container for the purchaser/consignee of the shipment to unload the cargo and return the container to the carrier’s marine terminal.
This particular container had numerous structural deficiencies including small holes and lots of dents. Notably, the wheels of the chassis looked so old I wondered how they could be operable, which caused me to think that this container could be used for temporary storage and raised a host of warehouseman liability issues in my mind.
I described the risk to cargo during an ocean carriage situation if the moisture in a container became too high, citing examples I have dealt with in cargo claim cases, including that of rusty machinery and rotten mung beans.
As I pointed out the container number, my friend asked what some of the other words and numbers on the exterior of the container meant, and we went through what some of the terms meant, including “tare weight,” payload and cubic capacity. To see this information on some common cargo shipping container sizes, click here.
Questions/comments? Post below or email me at clark.deanna@gmail.com
Tuesday, August 24, 2010
Thursday, August 12, 2010
“Common Cultivars,” “Common Food Crops,” the Lacey Act and a Proposed Rule to Define These Terms
As amended, the Lacey Act now makes it unlawful to
1) Import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, taken in violation of any federal, state, tribal, or foreign law that protects plants (with some limited exceptions), and
2) Make or submit any false record, account, or label for, or any false identification of, any plant covered by the Act, and
3) Import certain plants and plant products without an import declaration.
I remember when the 2008 amendments to the Lacey Act first went into effect and the conversations that came up around importer compliance:
“Will a declaration be required for my importation of cotton t-shirts?”
“Is the enclosed paper packing that cushions my merchandise going to require a Lacey Act declaration upon importation?”
The importing community really did not know how to make heads or tails out of these new laws, in large part, because there was little to no regulatory guidance as to their application. Let me rewind and explain what the Lacey Act is.
The Lacey Act, circa 1900, is the oldest wildlife statute in the U.S. Its mandate is to combat the illegal trafficking of plants, fish and wildlife.
As detailed above (in bold), with the new amendments, beginning in 2008, it became illegal to do certain acts involving plants and plant products. Part of this mandate therefore, included a requirement to make an import declaration stating
1) the scientific name of the plant
2) the value of the importation, and
3) the name of country from which the plant was harvested.
Fortunately, there were exceptions to this requirement, namely, if your merchandise was considered either a (1) “Common Cultivar” or, (2) “Common Food Crop.”
The problem has been however, that there has been no definition to describe what these two terms actually mean. (An administrative law issue not unlike that discussed in my previous article dated August 5, 2010.)
The obvious dilemma for the importing community has been one involving the judgment call made in deciding whether a declaration was necessary or not. After all, determining what a plant is may be relatively simple, but how many folks have ever heard if the term “common cultivar?”
To (finally) address this problem, both the U.S. Dept. of Interior’s Fish and Wildlife Service, together with the U.S. Dept. of Agriculture’s Animal and Plant Health Inspection Service (APHIS) set forth a proposed definition last week for these terms.
The proposed definitions, found in the Federal Register notice 75 FR 46859, are as follows:
Common cultivar. A plant (except a tree) that:
(a) Has been developed through selective breeding or other means for specific morphological or physiological characteristics; and
(b) Is a species or hybrid that is cultivated on a commercial scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.
Common food crop. A plant that:
(a) Has been raised, grown, or cultivated for human or animal consumption, and
(b) Is a species or hybrid that is cultivated on a commercial scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.
If you would like to make comments on these proposed definitions, here is your chance to participate in the creation of administrative law. You may do so electronically at the Federal eRulemaking Portal or
send two copies by regular mail of your comment to Docket No. APHIS-2009-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, stating that your comment refers to Docket No. APHIS-2009-0018.
Questions/comments? Post below or email me at clark.deanna@gmail.com
1) Import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, taken in violation of any federal, state, tribal, or foreign law that protects plants (with some limited exceptions), and
2) Make or submit any false record, account, or label for, or any false identification of, any plant covered by the Act, and
3) Import certain plants and plant products without an import declaration.
I remember when the 2008 amendments to the Lacey Act first went into effect and the conversations that came up around importer compliance:
“Will a declaration be required for my importation of cotton t-shirts?”
“Is the enclosed paper packing that cushions my merchandise going to require a Lacey Act declaration upon importation?”
The importing community really did not know how to make heads or tails out of these new laws, in large part, because there was little to no regulatory guidance as to their application. Let me rewind and explain what the Lacey Act is.
The Lacey Act, circa 1900, is the oldest wildlife statute in the U.S. Its mandate is to combat the illegal trafficking of plants, fish and wildlife.
As detailed above (in bold), with the new amendments, beginning in 2008, it became illegal to do certain acts involving plants and plant products. Part of this mandate therefore, included a requirement to make an import declaration stating
1) the scientific name of the plant
2) the value of the importation, and
3) the name of country from which the plant was harvested.
Fortunately, there were exceptions to this requirement, namely, if your merchandise was considered either a (1) “Common Cultivar” or, (2) “Common Food Crop.”
The problem has been however, that there has been no definition to describe what these two terms actually mean. (An administrative law issue not unlike that discussed in my previous article dated August 5, 2010.)
The obvious dilemma for the importing community has been one involving the judgment call made in deciding whether a declaration was necessary or not. After all, determining what a plant is may be relatively simple, but how many folks have ever heard if the term “common cultivar?”
To (finally) address this problem, both the U.S. Dept. of Interior’s Fish and Wildlife Service, together with the U.S. Dept. of Agriculture’s Animal and Plant Health Inspection Service (APHIS) set forth a proposed definition last week for these terms.
The proposed definitions, found in the Federal Register notice 75 FR 46859, are as follows:
Common cultivar. A plant (except a tree) that:
(a) Has been developed through selective breeding or other means for specific morphological or physiological characteristics; and
(b) Is a species or hybrid that is cultivated on a commercial scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.
Common food crop. A plant that:
(a) Has been raised, grown, or cultivated for human or animal consumption, and
(b) Is a species or hybrid that is cultivated on a commercial scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.
If you would like to make comments on these proposed definitions, here is your chance to participate in the creation of administrative law. You may do so electronically at the Federal eRulemaking Portal or
send two copies by regular mail of your comment to Docket No. APHIS-2009-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, stating that your comment refers to Docket No. APHIS-2009-0018.
Questions/comments? Post below or email me at clark.deanna@gmail.com
Thursday, August 5, 2010
Consumer Safety Product Commission (CPSC) and Children's Products
Last week I received an inquiry from a self-described “rookie” apparel importer regarding the use of a bonded warehouse for certain importations. Along with the inquiry came links to a couple of websites that showcased the women’s wear (very cute btw) at issue.
I thought about the myriad of U.S. Customs issues raised by his inquiry alone, and since it dealt with apparel, my mind wandered over to the Flammable Fabrics Act (and Consumer Product Safety Commission (CPSC) oversight of compliance with that statute), and I wondered to what extent he was familiar with other government agency laws.
The relevance of this awareness as an importer, is that since U.S. Customs enforces U.S. laws at the border on behalf of other federal agencies, importers must be knowledgeable about - and in compliance with - these laws.
While there are numerous CPSC regulations covering many specific products, from baby bouncers and walkers, to felt-tip marking devices, to mattresses, there are certain CPSC rules that cover broad product categories, such as those regarding children’s products, including the regulation of lead paint, lead content, small parts, and children’s metal jewelry. Some currently applicable details behind each of these rules are as follows:
Lead paint on children’s products (16 CFR Part 1303)
Maximum Allowable Limit: 90 ppm
Must be Certified as Compliant if Product Made on/after This Date: 8/14/09
What Needs to be Tested: Any type of surface coating
Current Stay of Enforcement of Testing and Certification Requirement?
NO - SUBJECT TO ENFORCEMENT
Small parts (16 CFR Part 1501)
(only pertains to products intended for use by children under 3 y.o.)
Maximum Allowable Limit: n/a
Must be Certified as Compliant if Product Made on/after This Date: 2/15/09
What Needs to be Tested: Size of small components
Current Stay of Enforcement of Testing and Certification Requirement?
NO - SUBJECT TO ENFORCEMENT
Lead in metal components of children’s metal jewelry (CPSIA §101)
Maximum Allowable Limit: 300 ppm
Must be Certified as Compliant if Product Made on/after This Date: 8/14/09
What Needs to be Tested: Testing of accessible parts
Current Stay of Enforcement of Testing and Certification Requirement?
NO – SUBJECT TO ENFORCEMENT
Total lead content in metal children’s products and in non-metal children’s products (CPSIA §101)
Maximum Allowable Limit: 300 ppm [scheduled for reduction to 100 ppm on Aug. 14, 2011]
Must be Certified as Compliant if Product Made on/after This Date: Feb. 10, 2011
What Needs to be Tested: Testing of accessible components (RULE SUBJECT TO CHANGE)
Current Stay of Enforcement of Testing and Certification Requirement?
YES – THROUGH FEB. 9, 2011
One oddball aspect to administrative law, i.e., where a federal agency promulgates (i.e., creates) regulations interpreting a statute (law), is that in order to get a final regulation, the proposed rule must undergo a “notice and comment” period. As these new children’s product rules came out of a 2008 law – the Consumer Product Safety Improvement Act of 2008 (CPSIA) – the creation of regulations is still ongoing, causing confusion in the trade community as to what ought to be followed.
For example, the CPSC is in the process of coming up with an “interpretive rule” on the meaning of the term “children’s product.” In other words, compliance is being sought across products for which no finalized definition exists, which begs the question – how can importers know how to be compliant? And how does U.S. Customs actually know what to enforce?
Lastly, if it weren’t confusing enough, the rules keep changing as we await a final rule. For example, this last category of each section above, “Stay of Enforcement of Testing and Certification Requirement” refers to the following.
There is a “stay” with regards to lead content in children’s metal consumer products (with the exception of metal jewelry) and non-metal consumer products. This means that while children’s products must be in compliance with CPSC lead content rules, the enforcement against non-compliance with the lead content rule for children’s consumer products is not currently in effect because it is “stayed.”
To keep track of CPSIA updates, click here.
Questions/comments? Post below or email me at clark.deanna@gmail.com
Citations:
74 FR 68593, (12/28/09).
“The Commission plans to keep the stay in effect for total lead content in metal children’s products and in nonmetal children’s products tested pursuant to CPSC–CH–E1001–08, Standard Operating Procedure for Determining Total Lead (Pb) in Children’s Metal Products or CPSC–CH– E1002–08, Standard Operating Procedure for Determining Total Lead (Pb) in Non-Metal Children’s Products, (section 101 of the CPSIA) until February 10, 2011. With regard to lead content, the Commission has determined that testing of children’s products for lead content by a recognized third party testing laboratory and certification based upon that testing should begin on products manufactured after February 10, 2011 to allow component testing to form the basis for certifications for lead content and permit the staff to complete an interpretative rule on the meaning of the term ‘‘children’s product.’’ 74 FR 68588, pg. 68591 (12/28/09).
I thought about the myriad of U.S. Customs issues raised by his inquiry alone, and since it dealt with apparel, my mind wandered over to the Flammable Fabrics Act (and Consumer Product Safety Commission (CPSC) oversight of compliance with that statute), and I wondered to what extent he was familiar with other government agency laws.
The relevance of this awareness as an importer, is that since U.S. Customs enforces U.S. laws at the border on behalf of other federal agencies, importers must be knowledgeable about - and in compliance with - these laws.
While there are numerous CPSC regulations covering many specific products, from baby bouncers and walkers, to felt-tip marking devices, to mattresses, there are certain CPSC rules that cover broad product categories, such as those regarding children’s products, including the regulation of lead paint, lead content, small parts, and children’s metal jewelry. Some currently applicable details behind each of these rules are as follows:
Lead paint on children’s products (16 CFR Part 1303)
Maximum Allowable Limit: 90 ppm
Must be Certified as Compliant if Product Made on/after This Date: 8/14/09
What Needs to be Tested: Any type of surface coating
Current Stay of Enforcement of Testing and Certification Requirement?
NO - SUBJECT TO ENFORCEMENT
Small parts (16 CFR Part 1501)
(only pertains to products intended for use by children under 3 y.o.)
Maximum Allowable Limit: n/a
Must be Certified as Compliant if Product Made on/after This Date: 2/15/09
What Needs to be Tested: Size of small components
Current Stay of Enforcement of Testing and Certification Requirement?
NO - SUBJECT TO ENFORCEMENT
Lead in metal components of children’s metal jewelry (CPSIA §101)
Maximum Allowable Limit: 300 ppm
Must be Certified as Compliant if Product Made on/after This Date: 8/14/09
What Needs to be Tested: Testing of accessible parts
Current Stay of Enforcement of Testing and Certification Requirement?
NO – SUBJECT TO ENFORCEMENT
Total lead content in metal children’s products and in non-metal children’s products (CPSIA §101)
Maximum Allowable Limit: 300 ppm [scheduled for reduction to 100 ppm on Aug. 14, 2011]
Must be Certified as Compliant if Product Made on/after This Date: Feb. 10, 2011
What Needs to be Tested: Testing of accessible components (RULE SUBJECT TO CHANGE)
Current Stay of Enforcement of Testing and Certification Requirement?
YES – THROUGH FEB. 9, 2011
One oddball aspect to administrative law, i.e., where a federal agency promulgates (i.e., creates) regulations interpreting a statute (law), is that in order to get a final regulation, the proposed rule must undergo a “notice and comment” period. As these new children’s product rules came out of a 2008 law – the Consumer Product Safety Improvement Act of 2008 (CPSIA) – the creation of regulations is still ongoing, causing confusion in the trade community as to what ought to be followed.
For example, the CPSC is in the process of coming up with an “interpretive rule” on the meaning of the term “children’s product.” In other words, compliance is being sought across products for which no finalized definition exists, which begs the question – how can importers know how to be compliant? And how does U.S. Customs actually know what to enforce?
Lastly, if it weren’t confusing enough, the rules keep changing as we await a final rule. For example, this last category of each section above, “Stay of Enforcement of Testing and Certification Requirement” refers to the following.
There is a “stay” with regards to lead content in children’s metal consumer products (with the exception of metal jewelry) and non-metal consumer products. This means that while children’s products must be in compliance with CPSC lead content rules, the enforcement against non-compliance with the lead content rule for children’s consumer products is not currently in effect because it is “stayed.”
To keep track of CPSIA updates, click here.
Questions/comments? Post below or email me at clark.deanna@gmail.com
Citations:
74 FR 68593, (12/28/09).
“The Commission plans to keep the stay in effect for total lead content in metal children’s products and in nonmetal children’s products tested pursuant to CPSC–CH–E1001–08, Standard Operating Procedure for Determining Total Lead (Pb) in Children’s Metal Products or CPSC–CH– E1002–08, Standard Operating Procedure for Determining Total Lead (Pb) in Non-Metal Children’s Products, (section 101 of the CPSIA) until February 10, 2011. With regard to lead content, the Commission has determined that testing of children’s products for lead content by a recognized third party testing laboratory and certification based upon that testing should begin on products manufactured after February 10, 2011 to allow component testing to form the basis for certifications for lead content and permit the staff to complete an interpretative rule on the meaning of the term ‘‘children’s product.’’ 74 FR 68588, pg. 68591 (12/28/09).
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