Serving the Air Cargo Industry

since 1972


The Official Air Cargo Directories Serving the USA,

Canada, Latin America and the Caribbean

Published Annually

Lithium Battery Holiday Safety

By Roger Erickson
Bureau of Dangerous Goods

With the holidays rapidly approaching, an influx of new electronic devices will soon occur in homes across America. While these new gadgets are sure to be fun and exciting gifts for children and adults alike, it is important to also remember that many of them contain a potentially hazardous lithium ion or lithium metal battery. Lithium batteries have become popular in the world of electronics because they are able to harness a massive amount of energy into a relatively small casing, but this also makes them extremely dangerous in the event of malfunction or mishandling. Improperly stored or charged lithium ion batteries can be prone to overheating or even exploding in some cases, creating a fire risk that is often times avoidable. Button-type lithium metal batteries also pose a significant risk if swallowed, so it is crucial to keep them out of the hands of small children. There are some simple safety tips that consumers can adhere to that will reduce the risks associated with these devices and ensure that the holiday season remains both safe and enjoyable.

 It is important when selecting gifts for both children and adults that one carefully chooses the safest and most reliable products. Many of the batteries that are most susceptible to malfunction are coming from companies that have tried to cut costs in the manufacturing process by ignoring important safety standards. Make sure when purchasing electronic devices that the company that manufactured them is reputable; never sacrifice safety for a good deal.

Once the device has been gifted, it is easy for the recipient to get carried away with the excitement of a new toy and forget about how potentially dangerous the battery inside can be. Make sure to take the time to review the procedures for safe use and charging of the device. Only charge electronic devices with the charging cable provided by the manufacturer. This cable has been designed specifically for the battery contained in the device, and using any other charger puts the battery at risk of malfunctioning. Never place a device on a flammable surface such as a bed or a couch while charging. Should the device begin to overheat, being near any sort of flammable surface will greatly increase the risk of fire. When not in use, store devices containing batteries in an area free from direct sunlight; this outside source of heat could trigger an unsafe reaction within the battery.

Anyone purchasing a lithium metal button-type battery powered device for a child should also pay attention to the location of the battery in the device itself. Battery compartments should be secure and out of view of the child to prevent the battery from being removed. Within curious young hands, a battery becomes exponentially more dangerous, and one of these potential dangers is accidental swallowing. Once ingested, a lithium battery becomes activated by saliva, potentially causing it to burn through anything with which it comes into contact. Symptoms of a swallowed battery include coughing, chest pain, fever, and nausea. If a child is suspected to have swallowed a battery, they should be taken to the emergency room immediately; nothing should be given by mouth and vomiting should not be induced.

The world of personal electronic devices has been completely revolutionized by lithium batteries. It is exciting to be a part of this technology-driven world, and the holidays are an excellent time to give the gift of electronics. However, above all else, safety should be the priority of all consumers. After all, the holidays are all about family, so make sure to keep loved ones safe this holiday season by following these simple tips for battery safety. Enjoy your holidays and your wonderful new gifts, and remember to always stay safe!

Roger Erickson has been a customer service representative at the Bureau of Dangerous Goods for the past year. In his time with BDG, he has developed an appreciation for the intricacies of the dangerous goods regulations. He hopes to expand his knowledge of the hazmat industry while continuing to work closely with the incredible team of specialists employed by the Bureau of Dangerous Goods. Roger can be reached at 609.860.0300 or at www.BureauDG.com  

Issuance of Wood Packaging Material Penalty- Effective Nov. 1, 2017

U.S. Customs Border Protections – Update

By Debbie Dent
Director, Program Services
Border Connect, Inc.

Pursuant to U.S. Code of Federal Regulations 7 CFR § 319.40-3 (effective since Sept. 16, 2005), non-exempt wood packaging material (WPM) imported into the United States must have been treated at approved facilities at places of origin to kill harmful timber pests that may be present. The WPM must display a visible, legible, and permanent mark certifying treatment, preferably in at least two sides of the article. The mark must be approved under the International Plant Protection Convention (IPPC) in its International Standards of Phytosanitary Measures (ISPM 15) Regulation of wood packaging material in international trade (https://www.ippc.int/en/publications/640/). Any WPM from foreign origin found to be lacking appropriate IPPC-compliant markings or found to be infested with a timber pest is considered not properly treated to kill timber pests and in violation of the regulation. The responsible party (importer, carrier, or bonded custodian) for the violative WPM must adhere to the Emergency Action Notification stipulations and be responsible for any costs or charges associated with disposition.

The purpose of the WPM requirement is to prevent the introduction of exotic timber pests. Introduced exotic pests lack the natural environmental controls that may be found in their respective native lands to keep them in check. When exotic timber pests go unchecked they can cause widespread tree mortality with detrimental ecological impacts. Additionally, there may be economic impact for the lumber, fruit, and nut industries, as well as the loss of horticultural trees. Eradication efforts can prove to be very expensive and ineffective once an exotic pest is introduced, as is the case with the Emerald Ash Borer which was introduced with infested WPM. Therefore, preventing introduction is critical with these exotic pests.

U.S. Customs and Border Protection is responsible for enforcing the regulation at ports of entry. To motivate WPM compliance, effective Nov., 2017, responsible parties with a documented WPM violation may be issued a penalty under Title 19 United States Code (USC) § 1595a(b) or under 19 USC § 1592. This is a change from the previously published threshold of five violations. There will be no yearly reset for calculating repeat violations so each WPM violation may incur a penalty.

Save the Date- Annual Detroit Area Trucking Seminar- Friday, Nov. 3, 2017

Event will be held from 8:30 a.m. to noon at the Sheraton Detroit Metro Airport, at 8000 Merriman Road, Romulus, MI. A great venue to learn what’s new or changing. For more information contact Dean & Fulkerson, Troy Michigan by e-mail

Debbie Dent can be reached at 1-800-596-5176 or by email

 

Imports and Exports: A Short List of Common Problems and Opportunities

 

By Thomas J. O’Donnell and Lara A. Austrins
Clark Hill PLC

Introduction

Many people are not aware of the magnitude of U.S. foreign trade. In 2014, U.S. gross domestic product totaled $17.7 trillion, with imports accounting for $2.8 trillion of this total and exports accounting for $2.3 trillion of this total. Thus, for 2014, imports (16%) and exports (13%) accounted for almost 30% of U.S. GDP. Despite the size of their import/export trade, we have found that companies often pay scant attention to minimizing their duty exposure and other risks that are part of the import/export process, even though Customs holds them primarily accountable for exercising reasonable care over these transactions. These same companies often devote substantial resources to minimizing U.S. and foreign income taxes, but have minimal internal controls for managing their foreign trade transactions. This approach is shortsighted as it fails to adequately manage the risks associated with the import/export process and also fails to exploit the special tariff tools and processes that competitors may use to their advantage.

Fifty years ago, there was a much clearer line of demarcation between “domestic producers” and “importers.” In today’s international economy, this line is blurred, and most U.S. manufacturers and distributors deal in both domestic and imported products. In this regard, it often comes as a surprise to “U.S. manufacturers” just how much of their business involves the importation and exportation of goods.

The main “gatekeeper” in the import/export process is U.S. Customs and Border Protection, although a number of other agencies play a very crucial and active role in administering and regulating imports and exports. Customs determines the duties that apply to the products (including whether antidumping or countervailing duties are applicable), whether the products are properly valued, whether they are properly marked in accordance with U.S. law, whether they violate the intellectual property rights of other companies, and whether the products are even admissible into the United States. In making these and other determinations, Customs enforces the laws of some 40 other government agencies.

The purpose of this memorandum is to acquaint importers and exporters with some of the key areas of concern to them. While certainly not exhaustive, these areas are on the short list of items that most commonly give rise to problems, present opportunities for reducing duties, or present opportunities for doing things more efficiently. Below are synopses of many of these key areas, and the article’s electronic version has hyperlinks to more detailed articles for those who wish to explore a particular subject in more detail.  If you would like to receive a version of the article with the operative hyperlinks to these articles, please contact the article’s authors.  

IMPORTS

Tariff Classification – The most fundamental of all Customs determinations. The tariff classification of an article determines its duty rate and its eligibility for preferential free trade programs such as GSP or free trade agreements such as NAFTA, can alert an importer that other agencies may be interested in its products (FDA, EPA, CPSC, etc.), and can be helpful in determining whether the article may be subject to antidumping or countervailing duties or quotas. Incorrect tariff classifications almost always lead to preventable problems. For these reasons, prudent importers compile tariff classification databases and update them as new products are added and as changes in the language of the tariff necessitate.

The lawyers in Clark Hill’s International Trade Practice Group have a wealth of experience in tariff classification issues and have successfully litigated a number of tariff classification cases in the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit.

Customs Valuation – What do you mean the value on the invoice is not the dutiable value? Because almost all duty rates are expressed as percentages of the dutiable value of imported merchandise (ad valorem rates), determining the proper value of imported products is essential. The Customs value of goods generally is the price paid or payable by the importer, with required additions to value for items such as royalty and license fees, year-end price adjustment payments, payments to reflect currency fluctuation “assists,” and separate payments that are not reflected on the commercial invoice. These additions to value commonly are overlooked, and almost always result in problems with Customs down the road.

“Assists” are anything of value furnished to a foreign seller free of charge or at reduced cost and used in the production of the imported goods. The value of assists must be added to the invoice value to arrive at the total Customs dutiable value of imported merchandise. Common assists consist of tooling, machinery and equipment, components, and engineering and R&D, where such engineering and R&D is undertaken outside the U.S. Customs initiates a large number of penalty cases each year for failure to declare assists.

Customs closely scrutinizes transactions between related parties (5% or more of voting stock) and examines the circumstances of sale to satisfy itself that the relationship between the parties did not influence the price paid or payable. It has become increasingly routine for related parties to retroactively adjust prices, often on a yearly basis. In general, Customs requires the tender of additional duties where post-importation price increases occur, but will not refund duties where post-importation price reductions have occurred. An important exception to this general rule exists where post-importation price decreases occur between related parties pursuant to a formula that the importer uses when filing its income tax returns.

Many importers purchase product through “middlemen” such as agents or trading companies. We routinely assist in structuring transactions so that the price from the factory to the middleman is acceptable to Customs as the dutiable value of the imported goods instead of the higher price from the middleman to the importer.

Free Trade Agreements/Trade Preferences – Significant duty savings, but a potential down side. The U.S. has over a dozen free trade agreements with various countries, including Canada, Mexico, Australia, Dominican Republic-Central America, Colombia, Israel, Singapore, and Korea, and currently is negotiating FTAs with the EU and a group of Pacific Rim nations. In addition, the U.S. offers duty free entry to the goods of a number of developing countries under trade preference programs such as the Generalized System of Preferences (GSP). There are more than 100 GSP-eligible countries, including Brazil, Ecuador, Egypt, India, Indonesia, Pakistan, Philippines, Serbia, South Africa, Thailand, and Ukraine. Determining the eligibility of products under these trade preferences and trade agreements can be complicated and is often misunderstood, resulting in erroneous duty free entry claims. Customs has begun more closely monitoring claims made under FTAs and preference programs, so importers entering goods under any of these regimes should satisfy themselves that their products meet all eligibility requirements.

Antidumping and Countervailing Duties – What do you mean the duty rate is 404%? Antidumping duties (“ADD”) are imposed to offset unfairly priced imports that are sold in the foreign market at prices higher than to the U.S. market. Countervailing duties (“CVD”) are imposed to offset subsidies paid by foreign governments for the purpose of promoting exports. Both ADD and CVD can be imposed at the same time, and individually or collectively, ADD and CVD rates can be prohibitively high. Moreover, the scope of ADD/CVD orders often are construed very broadly, thereby covering products that at first glance might not appear to fall within the scope of the orders. For example in the aluminum extrusions case, the order may apply not only to aluminum extrusions, but also to a wide variety of products made from or containing aluminum extrusions.

A good number of importers first become aware that ADD and CVD apply to their products only after the goods have been imported. In some instances, Customs seeks recovery of these duties going back several years, along with sizable penalties.

Global Trade Actions and Safeguards – I hear imports of aluminum, steel and potentially other products from across the globe could be assigned additional duties or quotas. Don’t ADD/CVD cases already target unfairly traded imports? Yes, however the U.S. has other trade remedy actions at its disposal with broader international scope to address situations where country-specific ADD/CVD orders are deemed to be insufficient. One such measure that has been recently dusted off is the Section 232 national security investigation. Where ADD/CVD are found to be too narrow in terms of geography and product coverage, a Section 232 investigation can offer the chance to take action against a broad range of products from a swath of countries if the Department of Commerce and the President agree that the imported products are a threat to national security. In those situations, the President can impose remedies such as tariffs, quotas or tariff-rate quotas to restrict imports.

Another measure with global implications is the Section 201 or “escape clause” because it permits a country to “escape” temporarily from its obligations under the WTO with respect to a particular product if a domestic industry is suffering serious injury substantially caused by rapidly increasing imports. The explicit purpose is to allow the domestic industry time to restructure. Under, Section 201, no one is being accused of breaking laws; rather, the domestic industry argues that a surge in imports is the source of the industry’s crisis. The decision to impose remedies which can be global in scope – is up to the President. The menu of available relief includes the imposition of a higher duty, a tariff-rate quota, a quantitative restriction, trade adjustment assistance to the effected U.S. industry (or any combination of these measures).

Country of Origin Determinations and Country of Origin Marking – Are you telling me we have to put country of origin labels on 10 containers of parts before we can sell them? With few exceptions, every article imported into the United States must be marked with its country of origin. Improperly marked products can be seized and forfeited, denied entry, subjected to liquidated damages equal to the value of the goods, subjected to penalties, or assessed special 10% marking duties. Country of origin marking issues often affect an importer’s entire product line and have the potential to severely delay the timely delivery of goods. The appropriate use of the “Made in U.S.A.” mark, which is governed by the Federal Trade Commission, also is a common issue addressed by Clark Hill lawyers. This area has received a lot of attention lately because of private, third party actions brought against manufacturers for violating state laws governing use of the “Made in U.S.A.” claim. For example, under California law, products may be marked “Made in U.S.A” only if every single component is of U.S. origin.

It is not at all unusual today for a finished product, component, or subassembly to be assembled in one country from components sourced from a number of countries. Determining the country of origin of the finished good is becoming increasingly complex. This process is significant because the country of origin can determine whether the article is fully dutiable or duty free under a free trade agreement or tariff preference program. Country of origin also determines whether a product is subject to antidumping and countervailing duties.

Intellectual Property Rights – Your company may not have had to deal with infringing imports – yet. Importers can record their trademarks, trade names, and copyrights with Customs, and Customs will examine imported merchandise to ensure that it is not infringing. Customs seizes and forfeits large quantities of infringing merchandise each year, and registering marks with Customs delivers a lot of bang for the buck.

Another potent weapon against imports that infringe intellectual property rights is provided by the International Trade Commission (ITC) under Section 337 of the Tariff Act of 1930, as amended. In Section 337 cases, the ITC conducts “fast track” proceedings that examine the validity of U.S. patents, trademarks and copyrights. These cases are concluded in a year, and if successful, result in the issuance of enforceable exclusion orders that bar the importation of infringing foreign products. U.S. Federal district courts are not required to defer to ITC determinations, but often do so. For this reason, a high percentage of parallel Federal district court cases are settled without trial once a favorable ITC determination has been made.

Drawback – Why am I hearing about this only now? Drawback programs permit companies to recover 99% of the duties they paid on imported merchandise under certain circumstances. There are two types of drawback: unused merchandise drawback and manufacturing drawback. Unused merchandise drawback can be used when the imported merchandise is not “used” in the U.S. and is exported within 3 years of importation. The following operations are not considered a “use” and therefore are permissible: testing, cleaning, repackaging, inspecting, refurbishing, repairing, reworking, freezing, blending, cutting, slitting, adjusting, replacing components, unpacking, and disassembling.

Manufacturing drawback is used when the imported materials or components are used in the manufacture of articles that are exported from the United States. Clark Hill’s International Trade lawyers have substantial experience with the complex regulations governing drawback and regularly advise clients regarding the establishment of drawback programs or in contesting denial of drawback.

Special Tariff Provisions – How much did you tell me we can save? Is this something new? The U.S. tariff schedules contain many special tariff provisions that are of substantial benefit to U.S. importers and exporters. For example, one tariff provision permits deducting from dutiable value the cost of fabricated U.S. components that were assembled abroad into the imported article. This tariff provision is widely used by the automotive, wearing apparel, and electronics industries. Another widely-used provision covers articles (U.S. or foreign) sent abroad for repairs or alterations. Upon return to the U.S., duties are assessed only against the value of the repairs or alterations.

Although special tariff provisions are often “fleshed out” by the Customs regulations, in most instances they can be understood only after interpreting Customs rulings on the subject. For example, the term “alterations” means that the article shipped abroad must be fit for its intended use at the time of exportation and “alteration” means that the operations abroad fit it for a different use. Thus, the tariff provision covering articles sent abroad for repair or alteration does not apply where the exported articles are not fit for their intended use and the operations conducted abroad are simply part of the finishing operation that makes the article fit for its intended use. The point is that the language in special tariff provisions often employs terms of art that may not convey the actual parameters and requirements of the provision. Many companies learn this distinction the hard way when they are required to pay duties on the full value of what they thought was an article sent abroad for “alterations.” In appropriate circumstances, special tariff provisions can be used to good effect. However, it is incumbent upon importers to familiarize themselves with the meaning and requirements of these provisions before using them.

Customs Penalties – Customs has assessed a penalty against us of how much? The most common causes of Customs penalties are tariff classification errors, failure to declare assists, failure to declare antidumping and countervailing duties, trademark infringement, improperly claiming duty free entry under trade agreements or special tariff programs, failure to declare payments made to foreign suppliers that are not reflected on the invoice price of the goods, and failure to comply with the requirements of other government agencies, such as FDA, EPA, CPSC, USDA, etc. Customs penalties are among the most severe of any agency. Penalties in the range of 2 to 4 times the loss of revenue (plus repayment of the loss of revenue) are not unusual. Moreover, loss of revenue in these cases often is substantial as the statute of limitations covers merchandise imported over the previous 5 years. Thus, the monetary losses incurred by importers for Customs violations are routinely doubled or tripled. Our attorneys have an excellent track record in minimizing or eliminating importers’ penalty liability. We also routinely assist importers in preparing voluntary disclosures of violations, which usually reduce the penalty assessment to repayment of the loss of revenue plus interest.

Customs Compliance Programs and Customs Audits – Compliance programs pay for themselves. Importers must exercise “reasonable care” in determining the classification, value, and country of origin of imported goods, and must monitor their compliance with all the other laws and regulations governing the imported merchandise. An effective compliance program is essential to meeting the “reasonable care” standard. Clark Hill’s International Trade lawyers have helped numerous clients implement compliance programs that are tailored to their specific needs.

To ensure compliance, Customs conducts regular audits, some of which can last for years. However, where an importer can demonstrate that it has an effective compliance program and that it is following its own internal procedures, the scope of an audit may be greatly reduced to Customs testing a small sample of transactions. If it is satisfied that the procedures are being followed and it discovers no significant violations during the sampling process, Customs routinely concludes the audit in a few months. We regularly guide importers through this complex and sometimes time-consuming process.

Foreign Trade Zones – FTZs help U.S. companies reduce costs of manufacturing and distribution. An FTZ is an area that for Customs duty purposes is treated as being outside the commerce of the United States. Candidates for FTZs include manufacturers who import raw materials and components, as well as distribution companies that import over $50 million per year (can be through multiple facilities).

When a manufacturer admits merchandise into an FTZ, it may elect to pay duty on the imported article based upon its condition at time of admission to the zone or its condition at time of transfer from the zone. This is called the “inverted tariff” and can result in substantial duty savings. Major industries using the FTZ program include but are not limited to:

  • Automobile manufacturing and assembly
  • Petroleum storage, refining, and blending
  • Pharmaceutical manufacturing
  • Aerospace manufacturing and assembly
  • Electronics assembly

For manufacturers and distributors, the weekly Customs entry authorized for FTZ users can result in saving more than $320,000 per year in Customs merchandise processing fees. In addition, Customs duties are deferred until after merchandise is transferred from a zone to the U.S. Moreover, where foreign merchandise is exported or scrapped (e.g., obsolete materials, components, or finished products), no duties are ever paid. See the FTZ benefits estimator for the savings in duties manufacturers can realize from the inverted tariff.

Vessel Manifests and Your Proprietary Data – My company’s confidential import/export data is available to my competitors? Vessel manifests provide a wealth of information about a shipper’s business, including a description of the imported/exported goods, the names of suppliers, consignees, importers, piece count, and weight. Many importers and exporters assume that this information is confidential. However, it is readily available to anyone unless confidentiality is expressly granted by Customs. Of particular concern to importers and exporters is the availability of their shippers’ and consignees’ names and addresses and a description of the goods. For a few hundred dollars, your competitors can discover your sources of supply and customers. We assist importers and exporters in filing confidentiality requests with Customs and monitoring the manifest reports to make sure that Customs continues to suppress this confidential information.

Hazardous Materials – I know fireworks are dangerous, but what does this have to do with trade? If your company ships hazardous materials (a/k/a “HAZMAT”), a single mistake could cause your business to incur hundreds of thousands of dollars in penalties. HAZMAT is a substance or material which has been determined by the U.S. Department of Transportation (DOT) to be capable of posing an unreasonable risk to health, safety and property when transported in commerce. HAZMAT can include medicines, chemicals, household cleaners, fuel, and batteries to radioactive, toxic, and explosive materials. Fireworks are a class of explosive pyrotechnic articles. Prior to transportation into and within the United States, all explosives, including fireworks, must be classed and approved by the DOT. Federal HAZMAT transportation law authorizes the DOT to issue classification documents—EX Approvals—in accordance with the HAZMAT regulations. These EX Approvals are also used for international shipments. Approval holders also must comply with the rules set forth by the U.S. Coast Guard; U.S. Customs and Border Protection; Bureau of Alcohol, Tobacco, Firearms and Explosives; as well as the Consumer Product Safety Commission.

EXPORTS

Exports Subject to Control and the Agencies Involved – Everything exported from the U.S. and some things that aren’t are subject to export controls. All U.S. items, which include commodities, software, and technology, are subject to control when exported from the United States, and may remain subject to U.S. controls when exported to a third country. The level of control depends on the nature of the item, its destination, the end-user, and the end-use. Most U.S. export controls are administered by two agencies, the Commerce Department’s Bureau of Industry and Security (BIS) and the State Department’s Directorate of Defense Trade Controls (DDTC). BIS, under the Export Administration Regulations, regulates exports of commercial items with potential military applications (“dual-use” items). DDTC under the International Traffic in Arms Regulations (ITAR), regulates exports of items and services specifically designed for military uses.

The third agency involved in export controls is the Treasury Department’s Office of Foreign Assets Control (OFAC), which administers and enforces economic and trade sanctions against targeted countries and individuals to achieve particular foreign policy and national security goals. The controls may include restrictions or embargoes on imports, exports, investment, foreign transactions, and travel. OFAC maintains a List of Specially Designated Nationals (the “SDN List”), which identifies individuals known to assist target countries, terrorism sponsoring organizations, narcotics traffickers, and arms dealers. Transactions with SDNs are prohibited.

Deemed Exports – How can we be guilty of export violations when we don’t export? Technology can be exported without leaving the country. A “deemed export” occurs when foreign nationals are given access to technology in the United States. Depending on the nationality of the foreign national and the nature of the technology, a license may be required before the foreign national can access the item. This issue typically arises when foreign nationals employed in the U.S. have access to controlled items.  This also may raise immigration issues because certain types of visas require the employer to certify whether the controlled technology will be released to the employee as part of his or her job.

Encryption Items – Not just for highly sophisticated goods. Items that have the capability to encrypt or decrypt data are subject to specific export controls. There is a common misconception in the trade community that only highly sophisticated encryption items are subject to export controls. This is not the case as items such as WIFI routers and set-top cable TV boxes are covered by encryption controls.

Export Control Reform – Is there anything I should be doing differently? In 2013, BIS and DDTC implemented the first stage of the President’s Export Control Reform (ECR) Initiative. ECR is an ambitious project that will result in the removal of many items from the U.S. Munitions List. These items will then become controlled by BIS. The items covered by ECR are generally those that may be specifically designed for a military application such as a Humvee axle, but do not warrant control as a defense article. ECR requires companies involved in the defense trade to reconfigure their processes to comply with BIS controls.

Tom O’Donnell is a member of Clark Hill’s International Trade Practice Group and concentrates on issues arising from the movement of goods between countries.  He regularly deals with U.S. Customs and Border Protection, the Commerce Department, State Department, and other agencies that regulate U.S. imports and exports.   ;  312-985-5570.

Lara Austrins is a senior attorney in Clark Hill’s International Trade Practice Group in the firm’s Chicago Office.  She advises clients on all aspects of international trade regulation, including Customs, international trade agreements, preference programs, and export controls.  ; 312-985-5571.

Customs, by golly, offering support on both sides of the Northern Border

By Debbie Dent
Director
Border Connect, Inc.

 

AMPS / ACI Update

On June 1 2017, the Canada Border Services Agency (CBSA) implemented a 90-day evaluation period, allowing drivers in the highway mode who arrive without Advance Commercial Information (ACI) compliance to turn around and return to the U.S. in order to avoid penalty action.

The CBSA is extending that evaluation period and will continue to allow highway carriers to return to the U.S. to avoid ACI penalties until midnight of Dec. 31, 2017.

This is welcomed news to the carrier community!

Customs Trade Partnership Against Terrorism (C-TPAT) Update

As some of you may know Detroit was the host of the C-TPAT 2017 Conference this past Aug. 29-31, 2017.

Changes are coming including a new logo trademarked by CBP!

Two full days of workshops were offered to attendees and those workshops should be uploaded and available to all C-TPAT partners through document library within a few short weeks.

Some highlights included Best Practices Framework – Does your C-TPAT program include the following?

  • Senior Management Support
  • Innovative Business Process/Technology
  • Documented Process (that is regularly uploaded to your partner document exchange)
  • Checks, Balances, Accountability and Testing
  • Evidence of Implementation

Self-assessment and supporting evidence of implementation is the key to continued success in meeting your commitment to this program, experiencing a successful validation and most importantly avoiding a potential breach of security.

“The only thing consistent in this global world of ours is change!”

Debbie Dent, can be reached at 1-800-596-5176 or by e-mail

 

As an instructor, how important is it to be engaging in the classroom, and what kind of difference does this make to the students’ learning experience?

John Frantz 
Bureau of Dangerous Goods, LTD.

Let’s be honest. The majority of students would find a trip to the dentist for a root canal procedure preferable to having to sit through multiple days of hazmat training. The U.S. and international regulations are, by their nature, dry, exceedingly wordy, and chock full of dreaded “legalese” that can be confusing at times, especially for first time students.

During my introductions at the start of a class I usually ask the question: “How many of you volunteered to have hazardous materials duties?”  Almost no one ever raises their hand. Then I ask: “How many of you were “voluntold” to have hazardous materials duties?”  Just about every person will smile and raise their hands.  I think most of us, including myself, fall into the latter category.

So, how do we as instructors, combat this quite normal and common apprehension/aversion to training?

For me, the smiles in reaction to the “voluntold” question are my first visual key that I have begun the process of engaging the student. The importance of engaging the student cannot be overstated. Without it, we are just standing up there regurgitating information. Think of Ben Stein in the movie Ferris Bueller’s Day Off, standing in front of the class and speaking in monotone (anyone…anyone?) while his students all look like they are being tortured to death by boredom. 

Hazmat employees all have an enormous and important responsibility for ensuring the safe transport of hazardous materials. As instructors, it’s our job to ensure that students leave our training classes with the knowledge to do so. If we “Ben Stein” them, then that won’t be the case. 

A great first objective in class is to get the students to relax and feel comfortable. This is important to me as I encourage students to ask questions (no such thing as a stupid question in hazmat class) and share experiences and challenges that they face in their jobs with their fellow classmates.  I’ll have the students introduce themselves and give a bit of information on their companies and their responsibilities. It presents a good opportunity for everyone to get to know each other and often presents them with good networking possibilities. The class introductions can eat up some valuable class time, but in the end that time is well-spent in the interest of getting students comfortable and keeping them engaged.  This also helps the instructor to know what types of hazardous materials the students are dealing with so that they can be incorporated into the class. Anything that makes the training relatable to the student is a win for both the student and the instructor.

Simplifying the regulations whenever possible helps immensely as well. I often jokingly tell my students that my official job title is “Plain English Translator of Regulations”.  Just take a look at the definition of the word “Person” in 49 CFR 171.8 for an example of the need for this.  It’s painful…

Student boredom is the enemy of every instructor. The lecturing, PowerPoint reading, monotone speaking “Sage on the Stage” approach wears thin after about an hour. On the flip side, the trainer who makes excruciating efforts to be entertaining while skimping on actual class content is doing nobody any favors either. 

Using class exercises and the occasional game to break up and review the regulatory lecturing is very helpful.  As an instructor, you get pretty adept at reading body language. After lunch, around 2:30 or 3:00 pm (when students start yawning or looking at their phones or watches) is an especially good time to switch gears. At this point I like to use a game or even brief conversations of non-hazmat related topics, all of which can help in keeping the student engaged (and not to mention, awake).

Our students have a great responsibility to perform their hazmat duties in a compliant manner. As trainers, our primary goal is to maintain an environment that keeps them engaged and involved, and to provide them with competence and confidence in navigating the challenging regulatory turf. 

John became an instructor in 2008. John specializes in training shippers, managers, forwarders, consolidators and airline acceptance staff in the laws governing the transportation of Dangerous Goods for ground (49 CFR), air (IATA) and vessel (IMDG). In 2013, John became an IATA accredited instructor graduating with distinction at IATA’s Professional Skills for DGR Instructors Course. In addition to general hazardous materials courses, John also conducts specialized seminars on the shipment of lithium batteries as well as infectious substances as regulated by DOT, IATA and IMDG. John can be reached at 1.844.532.7634 or via email 

 

Customs And Border Protection “New” Programs Development

By Carl Soller
Soller Law Intl

Having practiced law in the Customs and Trade arena since the late 1970s, I have developed a perspective that many younger attorneys and Trade professionals have not yet acquired.  Sad to say, many of the so-called “modern technological advancements” currently in place and being developed can hardly be called developments, in a positive light.

As stated in the August 2016 U.S. Customs and Border Protection (CBP) “Fiscal Year 2016 Report to Congress,” ACE (Automated Commercial Environment), in addition to “strengthening border security” also “facilitates legitimate trade.”  Both the Trade community and longtime CBP officials will offer or concede that ACE, after the “2001” beginning of the “modernization effort” has yet to fulfill its mission.  Delays in the movement of “legitimate freight” and untested security programs are the sources of criticism from Congress and Trade participants.

As I have pointed to in earlier “Legal Corner” and sister publications, the Government Accountability Office (GAO) has regularly reviewed and commented unfavorably on CBP’s attempts to implement programs without proper and efficient testing and vetting.  Sad to say those same criticisms continue.

Private industry representatives also point to the continued lack of oversight of imports needed to prevent intentional “low” value declarations of imports in order to avoid duty payments and related commercial violations. 

Currently, imports valued at $800 or less (Section 321 entries with few exceptions) are released by CBP without the requirement of entry document submission or CBP scrutiny.  Principally used by “express delivery services” the level of abuse is uncharted and probably impossible to quantify, to say nothing about the security concerns and use of express services to import contraband.  Congress is aware of these issues, but seems helpless or not interested in resolving the perceived problems of fraud and intentional under-valuation to avoid payment of duties.

The final and long-awaited completion of ACE is even more perplexing.  CBP clearly has preempted practicality by buying into the fantasy that e-commerce is the solution to “lack” of manpower and proper training.  Conceptually a “one stop shop” enhances trade and is more efficient.  However, the desire to enable all information required to be submitted to and accepted by one Government Agency (CBP), and then distributed electronically to all other Government Agencies with oversight, has not been realized.  ACE remains a “jerry rigged” program still using the ABI/AMS existing elements and paper submissions to collect needed data.

Sadly, the “Memorandum of Understanding” (MOU) required to authorize CBP to collect and distribute needed and required entry information to other Government authorities such as FDA, Fish & Wildlife, EPA, DOT and 40 others have not been executed.  A Freedom of Information Act request for copies of such MOUs has been submitted, but with no response.  It was submitted in February 2016.  (Please contact Quick Caller if you want a copy of the request.)     

Moving on, what about commercial efficiency?  The implementation by CBP of the Centers of Excellence and Expertise (CEE) has created chaos.  The implementation was intended to create teams of experienced experts based on commodity descriptions.  Although in CBP’s words, the process is continuing, it certainly has created mass confusion.    

Recently, a client received a detention notice, not identifying the CBP issuing person or Team.  After contacting all in the CBP chain of command, it was established that no CBP official had “ownership” of the matter.  The CEE involved was centered in Buffalo, but no one there knew who, at the Port of Entry of the goods, was aware of the person / persons in charge.  Also, the Acting Port Director of the Port of Entry stated that the CBP “Manifest System” did not provide guidance.

Another issue arose with the ACE “protest module.”  A protest of a CBP decision was submitted and filing acknowledged by ACE.  It had substantial attachments.  When CBP “Protest” Officials were contacted, and copies of the protest and attachments were requested, we were informed that there is no methodology to make copies of the protest or to send the submission electronically to the Protest filer.  Since that document is required, if instituting an action in the Court of International Trade, CBP’s inability to retrieve duplicate copies of the submission would not be treated kindly by the Judges of that Court.

We could continue with unfavorable analyses ad nauseum, but I believe the picture painted is more than adequate to inform all that your comments are needed.     

Fortunately, on CBP’s Commissioner’s staff, a person is designated to deal with these concerns.  Valerie Neuhart ( – (202-344-1440) is the Acting Trade Relations designee.  I’m certain your concerns will be heard if you communicate your thoughts appropriately.

Carl R. Soller (Soller Law Intl) represents clients here and abroad in areas relating to international cargo transportation and the import/export, sale and purchase of consumer and manufactured products from art and antiquities through zebras and zithers. He has advised all segments of the international transportation industry relating to TSA, CBP, FDA and numerous other Government Agencies’ compliance requirements both in “National Security” issues as well as purely commercial activities.  Carl continues to be recognized in “Super Lawyers” as a “Top Rated” International Lawyer. As a participant with Government Representatives and other industry experts, Carl was instrumental in developing concepts for insuring the security of our supply chain and continues to advance “credible solutions” to the often deficient regulatory schemes.

Carl Soller can be reached at: (516) 812-6650 – (212) 643-6650 –   – JFK International Airport Office: 2016 Linden Blvd. Suite 18 Elmont, NY 11003

DETROIT TIGERS OUTING at COMERICA PARK

THE DETROIT INTERMODAL ASSOCIATION- OCEAN FREIGHT ASSOCIATION

http://www.dia-ofa.org

Is pleased to invite you to attend its annual

DETROIT TIGERS OUTING at COMERICA PARK

On Friday, September 22nd – GAME TIME: 7:10PM

 Invite your Co-workers, customers, family, and friends to join us to watch the

 

Detroit Tigers vs. Minnesota Twins

***FIREWORKS following the Game***

 

Pre-game Round Up: Exodos Rooftop Lounge 529 Monroe St, Detroit, MI 48226

Located in Greektown across the street from the Casino (5:30pm – Game Time)

**Ticket price includes admission to the park, Upper Baseline Box (located in Sec 331 -3rd Base Side) and

Pre-game Round Up** (Snacks and a couple of cocktails) 

————————————————————————————————————————————————————— 

Tickets will only be held with receipt of your payment since we pay in advance for this event. 

Company Name: _____________________________________

 

Signature: __________________________________________

 

# of Tickets: ________   X   $45.00= _________

 

Phone #: ____________________       Fax #: ___________________

 

Email: _________________________________________________

Please pay via PayPal on the website (www.dia-ofa.org) or mail payment to:

(Make checks payable to the D.I.A.-O.F.A. and mail to)

Don Wood

c/o C.H. Robinson Global Logistics

1885 Pond Run Drive
Auburn Hills, MI 48326
Phone: 313.566.9624
Fax: 313.566.9601

 

The Abolition of Tariff Publishing at the Federal Maritime Commission

By Carlos Rodriguez, Partner
Husch Blackwell LLP

Federal Maritime Commission reauthorization Bills in the House and the Senate (HR 2593, and S. 1119) contain language that would remove the requirement that NVOCCs tendering cargo to ocean common carriers must have “a tariff as required by section 40501 of this title.” The reference to “section 40501 of this title” is to 46 U.S. Code § 40501, the statutory provision that requires that NVOCCs maintain rate tariffs.

This is a significant change in the U.S. maritime regulatory scheme. This prospective statutory change, when coupled with recent comments from Acting Chairman Michael Khouri, and the Commission’s Regulatory Reform Initiative (Notice of Inquiry) proceeding sends a clear signal where tariff publishing requirements are headed.  Comments were due in response to the Commission’s NOI July 5, 2017. The NOI requested comments, among other things, on how to deregulate 46 C.F.R. §520, the regulations which impose tariff publication requirements. We are aware that many of the submissions, including those from the New York/New Jersey Foreign Freight Forwarders and Brokers Association and the National Customs Broker & Freight Forwarders Association, included strong language urging tariff publication be eliminated as obsolete and serving no commercial nor regulatory purpose.

 Acting Chairman Michael Khouri recently made the following illuminating statements with respect to the lack of commercial or regulatory purpose in tariff publishing of rates:

April 4, 2017 Statements to Congress:  “ .  .  .  relief from tariff publication requirements immediately comes to mind    .  .  .  Continuing to mandate thousands of tariffs be published that do not reflect real conditions in the market, and have minimal, if any, use by industry participants .  .  . is a requirement and expense that regulated entities could be relieved of under the exemption authority provided to the Commission by Congress.”

April 5, 2017 to the National Custom Brokers & Freight Forwarders Association, New Orleans:  “.  .  where and how does the filed rate doctrine fit with twenty- first century container shipping practices – the answers get weaker and weaker.  .  . I understand the utility of rules tariffs, but rate tariffs – not so clear. . . .”

The recurring arguments to do away with tariff publication of rates, which appear to be gaining support, again appear in the aforementioned comments to the FMC NOI include the following:

  • Tariff publication requirements serve no useful purpose in today’s shipping world. Today, rates are negotiated individually with customers, who do not refer to publically available NVOCC tariffs in selecting the company to move their freight. 
  • The other salient problem with the requirement of the publishing of tariff rates is its cost. The Commission’s records from many previous proceedings have clearly established that costs for tariff maintenance ranges from $20,000 to $200,000, with undetermined costs for staff dedicated to tariff functions, and possibly much more for NVOCCs which have taken the tariff publishing function in-house.
  • It has been abundantly shown that shippers do not access tariffs.  Freight is moved at rates determined by mutual commercial agreement.  Rates are recorded in a tariff after the agreement is in place and only for purposes of compliance with an outdated regulation. There is no commercial reason on record for adhering to tariff publishing requirements.
  • NVOCCs operate in a highly competitive environment.  Shippers have tremendous options to seek rate and service comparisons from well over 5,000 licensed OTI NVOCCs.  There are currently electronic ocean freight platforms on the web where competing NVOCCs provide quotes to shippers on a real time basis where the most competitive NVOCC gets the freight. The current marketplace is obviously an environment where tariffs are obstacles and only an after-the-fact regulatory burden in the process.
  • The Federal Government should not involve itself in the form, nature, and timing of freight rate agreements between commercial entities.  There is no clear justifiable federal government interest in this arena.
  • Maintaining tariffs solely for the purpose of compliance is a cost to NVOCCs without any commercial or regulatory benefit.   While most NVOCCs currently strive to meet tariff publishing requirements, it has become very difficult, if not impossible, to be completely compliant with this totally unnecessary and inane requirement.  Therefore, a real regulatory threat of substantial penalties is present with no corresponding social or commercial value to the shipping public.

Conclusion. It is our opinion that the new language in the Senate and House FMC Reauthorization bills; the FMC Acting Chairman’s recent comments questioning the validity of publishing rates;  and, the timely initiation of the above described NOI, all point the same way: the imminent  elimination of tariff rate publishing requirements.

Carlos Rodriguez is a partner at Husch Blackwell LLP in Washington, D.C. He concentrates his practice on international and domestic transportation law, admiralty, regulatory maritime law, international commercial transactional law, transportation litigation and export licensing and compliance matters. He is also involved with transport and security issues involving the U.S. Customs and Border Protection and the Transportation Security Administration. He is transportation counsel to the New York/ New Jersey Foreign Freight Forwarders and Brokers Association. Mr. Rodriguez can be reached at (202) 378-2365 or via email at

 

Air Cargo Security: Where are we going and where have we been?

By Carl Soller
Soller Law Intl

 

The Transportation Security Administration (TSA) and its parent, the Department of Homeland Security (DHS) announced new directives on June 29, 2017 which mandates that “airlines will bear the brunt of the responsibility to implement the U.S. Government’s heightened passenger and aircraft screening procedures for all U.S.-bound flights.”  So said DHS Secretary John F. Kelly.  These new measures also impose increased security on flights to the U.S. from other countries.  The stated purpose is to “combat the threat of terrorists hiding bombs in laptops.” 

The stated purpose of the proposed security changes echoes the oft-stated problem with Airport/Air Cargo Security initiatives.  The changes were seemingly proposed as a knee jerk reaction to the thought that laptops pose a significant security risk.  We, however, return to our too consistent refrain: where are the statistics proving that a real security risk exists in air cargo procedures to justify the new proposal?

Proposals that are costly and largely unenforceable against actual terrorist activities are not properly vetted prior to implementation.  This deficiency has been restated on numerous occasions by both industry “experts” and the GSA (General Services Administration.)  The GSA has commented on a number of untested Government initiatives relating to security measures and almost invariably determines that efficiency analyses of any Government Agency is lacking.

If we look back to the 2005 proposals for implementing air cargo security measures we are astounded to learn that the “risk/reward” analysis of the variously presented Congressional approaches to air cargo security concerns are yet to be determined as effective. 

Quoting from the 2005 Congressional Research Service (CRS) report is instructive.  It states:

The cost of air cargo security options are significant to both the Federal Government and the air cargo industry.  Furthermore,the indirect costs of air cargo security on air cargo operations may pose significant long-term challenges.  On the other hand, the potential costs of a terrorist attack, both in terms of the loss of life and property and the long term economic impacts may also be significant but are difficult to predict and quantify.  An ongoing debate tied to air cargo appropriations and oversight of aviation security is the amount of physical screening and inspection of air cargo that is needed and achievable and whether risk-based pre-screening tools can provide an adequate means to ensure the security of air cargo by identifying at-risk cargo for targeted physical inspections.

Besides the logistic complexities of inspecting large amounts or 100%of cargo on passenger flights, many are concerned that the cost of doing so outweighs the potential benefit, especially given the capabilities of current screening systems.

Unfortunately, the analysis weighing the cost of inspecting 100% of cargo against the potential benefit has NEVER been done.  And this suggestion has been repeated by security experts, ad nauseam, and has either been ignored or resulted in failure.

Neither the current administration nor the past Government leaders have taken advantage of the many air cargo security experts available to render valuable advice on the outstanding issues.

It is however, very clear that the benefits and risks attendant to the various options have been identified early in the process.  I could bore you with the complete list but I will only outline a few of them and ask that you contemplate why answers are missing, after all these years living with the fear of terrorist attacks and other security fears.

Here are a few options – the benefits and risks will be discussed in the future.

  • Government planned air cargo security enhancements
  • Increased funding for physical security of air cargo facilities
  • Mandating the use of tamper-resistant packaging and containers
  • Mandating physical screening of all persons with access to air cargo facilities and aircraft
  • Mandating increased screening and inspection of air cargo shipments
  • Increased funding for air cargo security research and development
  • Deployment of hardened cargo containers on passenger aircraft as recommended by the 9/11 Commission

Reality may be that Congress may be forced to mandate additional dollars to be designated specifically to proper security analyses and efficiencies.

Carl R. Soller (Soller Law Intl) represents clients here and abroad in areas relating to international cargo transportation and the import/export, sale and purchase of consumer and manufactured products from art and antiquities through zebras and zithers. He has advised all segments of the international transportation industry relating to TSA, CBP, FDA and numerous other Government Agencies’ compliance requirements both in “National Security” issues as well as purely commercial activities.  Carl continues to be recognized in “Super Lawyers” as a “Top Rated” International Lawyer. As a participant with Government Representatives and other industry experts, Carl was instrumental in developing concepts for insuring the security of our supply chain and continues to advance “credible solutions” to the often deficient regulatory schemes.

Carl Soller can be reached at: (516) 812-6650 – (212) 643-6650 – 

 JFK International Airport Office: 2016 Linden Blvd. Suite 18 Elmont, NY 11003

Canadian Customs providing some relief for transborder truckers

By Debbie Dent
Director, Program Services
Border Connect, Inc.

 

AMPS/ ACI Update
Due to recent system instability, the Canada Border Services Agency (CBSA) is offering some potential relief to carriers who have experienced penalty with a recent announcement of a 90-day evaluation period that began May 29, 2017 as an interim measure for carriers to comply with the ACI requirements and provide an opportunity to take corrective action. The evaluation period will end at midnight Aug. 26, 2017.

During the evaluation period, the CBSA will allow drivers in the highway mode (whether or not there is an outage) who arrive without ACI to return voluntarily to the United States to await transmission of both their conveyance and cargo information. No ACI penalties will be issued in cases where a carrier returns to the United States. Carriers must advise their driver of this option!

Where a carrier is provided an opportunity to return but chooses not to, or it is outside an outage period, penalties C378, C379 and C382 may still be applied. Penalty C378 (the most commonly issued penalty) is a minimum of $2,000 for both conveyance and cargo data at 1st level as long as non-compliance has not already occurred during the previous 12-month period.

The CBSA will monitor the frequency of returns, and may contact carriers who continue to be non-compliant to provide outreach to improve compliance.

Here’s a did-you-know that Borders on amazing: U.S. CBP Recent Stats

On a typical day…..U.S. Customs and Border Protection processes 992,243 passengers and pedestrians, 67,337 trucks, rail and sea containers, 269,753 incoming privately owned vehicles, $6.3 billion worth of imported goods into the U.S. and patrols 1,900 miles of border with Mexico (3,075 km), 5,000 miles of border with Canada, 2,000 miles of coastal waters and 95,000 miles of shoreline.  There are 329 “ports of entry” and 139 Border Patrol Stations.  Not an easy task for sure!!

Plan on joining us at Expedite Expo 2017 in Lexington, Kentucky July 14-15.  A link for more information can be found here- https://www.expediteexpo.com

Debbie Dent can be reached at 1-800-596-5176 or by e-mail