On January 12, 2009, the Interagency Working Group on Import Safety published draft guidance for industry entitled “Good Importer Practices.” The working group is comprised of the U. S. Departments of Health and Human Services (Food and Drug Administration), Agriculture, Commerce, Homeland Security, and Transportation and the U.S. Consumer Product Safety Commission, the U.S. Environmental Protection Agency, and the Office of the U.S. Trade Representative.

The Working Group organized the guidance into four broad “guiding principles”:

- establishing a product safety management program;
- knowing the product and applicable U.S. requirements;
- verifying product and firm compliance (throughout supply chain and life cycle); and
- taking corrective and preventive action (when necessary).

These principles give importers a roadmap they can follow to ensure that the products they import, and the processes they use to import those products, comply with myriad U.S. statutes and regulations. While the document is not a “how to” guide – with steps that match up to specific code citations – the guidance is an indispensible tool for management, which they can use to make sure that they are asking the right questions, and establishing the right programs and processes, for regulatory compliance.

The draft guidance encourages importers to focus on the life cycle of an imported product; for example, from growing and harvesting, to processing, packing, transporting, and distributing. At each step, importers should consider how to implement controls to help decrease the risk that the product could cause harm to people, animals, or the environment. In doing so, importers will help ensure overall regulatory compliance.

The guidance is also important for third-parties in the import process, such as consolidators, shippers, brokers and distributors. In the current regulatory environment, in which the government is focusing on everyone’s role in the security and safety of imports (and penalizing those who break the rules), even these third-parties should have processes in place to make sure that the importers with whom they work are complying with government rules and regulations.

Following this guidance laid out by the government is essential for all U.S. importers. If you don’t follow the roadmap, you may soon be lost.

The complete “Draft Guidance for Industry Good Importer Practices” can be found here.

Let Fuerst Ittleman help you with your roadmap for regulatory compliance. Our attorneys have years of experience in designing programs, policies and procedures to help importers stay on the right path and avoid problems with regulators. Contact us at 305-350-5690 or contact@fuerstlaw.com.

U.S. Customs and Border Protection (CBP) has issued guidelines regarding the imposition and mitigation of penalties for violations of its new export reporting regulations. In June 2008, CBP mandated that all required export information must be filed electronically via its Automated Export System (AES) or through AESDirect; paper filings of shipper’s export declarations would no longer be accepted. Beginning February 1, 2009, CBP will begin penalizing exports who fail to comply with this mandate.

It is important to note that penalties for filing to file electronic export information may be assessed against any and all culpable parties. Such parties include either the U.S. or Foreign ‘Principal Party in Interest’ (USPPI or FPPI). The PPI is the person or entity that receives the primary benefit (monetary or otherwise) of the export transaction. This party could be the seller (wholesaler/distributor) of the merchandise, the manufacturer, the company that placed the order for the merchandise, or the foreign purchaser. Penalties can also be assessed freight forwarders, brokers, and carriers.

CBP identified four specific areas in which penalties will be assessed:

- failure to file Electronic Export Information (EEI) in AES,
- late filing of EEI in AES,
- failure to file all information in AES or filing incorrect information in AES; and
- failure by the carrier to provide documents or information to CBP.

The maximum penalty for violations of the electronic export filing regulations is $10,000, or $1,100 per day in the case of late filings. The CBP guidelines also describe the mitigating and aggravating factors that can affect these penalty amounts.

Exporters should be aware that these penalties may be levied in addition to other applicable penalties that may arise from the export transaction. For example, if an exporter fails to file the required electronic export information for an exportation of counterfeit trademarked goods that had been illegally entered into the U.S., CBP may assess penalties for the AES violation as well as for the trademark violation.

The complete text of “Guidelines for the Imposition and Mitigation of Civil Penalties for Failure to Comply with the Foreign Trade Regulations in 15 CFR Part 30″ as issued by CBP may be found below.

Guidelines For Penalties

For assistance with navigating the confusing waters of export regulation, please contact Fuerst Ittleman at 305 350 5690 or contact@fuerstlaw.com.

The Lacey Act is the U.S. Department of Agriculture’s primary tool for combating illegal imports of wildlife, fish, and plants. Under the Act, it is unlawful to import – or for that matter to “export, transport, sell, receive, acquire, or purchase” – any plant harvested or traded in violation of any state’s laws, or most foreign laws.

Amendments to the Act in 2008 expanded its reach to protect more plants and plant products. (Before these amendments, many of these restrictions only applied to endangered species.) As of December 15, 2008, certain plants and plant products cannot be imported into the United States without an import declaration. This declaration must indentify the following information:

- scientific name of any imported plant (including genus and species),
- value of the importation,
- quantity of the plant, and
- name of the country from which the plant was taken (not just exported).

There are certain types of plants that are exempt from the new amendments. These include “common cultivars” (except trees), common food crops, scientific specimens of plant genetic material used in research, and plants that are to remain planted or to be planted or replanted. The USDA will be defining exactly what is meant by a “common cultivar” in the coming months.

It is important to note that import declarations are also required for plant products. Examples of such products – to the extent that they contain covered plants – include lumber, paper, furniture, sporting goods, musical instruments, vehicles, pharmaceuticals and textiles. The effect for importers will be far-reaching.

An electronic system soon will become available for collecting the information required on the declaration. In the meantime, importers may submit a paper form containing the required information on a voluntary basis. Once the electronic systems are in place, declarations will be mandatory and civil and criminal penalties may apply for failure to comply. Merchandise found to be in violation of these provisions may be subject to seizure and forfeiture.

To help importers generate the required information, USDA’s Animal and Plant Health Inspection Service (APHIS) has developed an online tool for looking up the genus and species names of plants. The tool is invaluable for complying with the new Lacey Act amendments. It can also make you sound smarter as you present your loved one with a gorgeous bouquet of Dianthus caryophyllus.

Fuerst Ittleman has years of experience in meeting USDA and other government agency requirements for the importation of plants and plant products. For assistance with your valuable importations, please contact us at 305 350 5690 or contact@fuerstlaw.com.