C-AIR TIMES ISSUE #591 - Friday, August 16, 2019 08:03

Update: USTR Announces Sec. 301 Tariffs Will Go Into Effect Sept. 1, 2019 for Clothing, Footwear and Other Items from China, with Delayed Implementation for Certain Items - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

On August 13, 2019, the U.S. Trade Representative (“USTR”) announced that Sec. 301 tariffs of an additional 10% ad valorem will go into effect Sept. 1, 2019 for Chinese-origin products listed on Tranche 4, with certain exceptions.

The tariff will go into effect on Sept. 1, 2019 for products listed here (“List 4A”):

The tariff will be delayed until Dec. 15, 2019 for items on this list (“List 4B”):

certain items will be removed from the Sec. 301, Tranche 4, list and will not be subject to the additional tariff, “based on health, safety, national security and other factors”. The USTR intends to publish the list of exempt products on its website.

The USTR further announced that an exclusion process will be conducted for products subject to the additional tariff.

To discuss strategies for addressing the impact of the tariff on your business, please contact our office to speak with one of our attorneys.

Information on COBRA User Fee Changes Effective October 1, 2019 - USCBP / Cargo Systems Messaging Service

Pursuant to the General Notice (84 FRN 37902) published August 2, 2019, various changes to user fees within the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 will take effect on October 1, 2019. The FRN may be accessed at the link below:

https://www.govinfo.gov/content/pkg/FR-2019-08-02/pdf/2019-16582.pdf

The Merchandise Processing Fee (MPF) ad valorem rate of 0.3464% will NOT change. The MPF minimum and maximum for formal entries (class code 499) will change. The minimum will change from $26.22 to $26.79 and the maximum will change from $508.70 to $519.76.

The fee for informal entry or release (class code 311) will change to $2.14.

The surcharge for manual entry or release will change to $3.21.

The dutiable mail fee (class code 496) will change to $5.89.

Federal Register Notices:

Japanese inspectors warned of previous discoveries

HOUSTON – U.S. Customs and Border Protection (CBP) agriculture specialists from the Houston Seaport found two dead female Asian Gypsy Moths (AGMs) and 20 Asian Gypsy moth egg masses on the superstructure of an international vessel.

The Asian Gypsy Moth is among the most damaging pests of hardwood forests and urban landscapes, defoliating over a million forested acres annually.

CBP agriculture specialists targeted this vessel for inspection after receiving notification from Japanese inspectors about their discovery of 52 egg masses and 52 live moths on the vessel prior to its departure to the U.S.

“CBP agriculture specialists at the Houston Seaport have discovered AGM egg masses on arriving international vessels on four separate occasions in the last month,” said Houston Area Port Director Roderick W. Hudson. “In this instance, our work with a partner nation led us to this important and significant discovery and highlights the global threat of this pest.”

CBP removed the egg masses and sent them to the United Stated Department of Agriculture (USDA) for identification; the agency confirmed Aug. 2 that the pests were in fact AGM. As required by law, the vessel left the port to receive treatment and to provide verification that it was free from AGM and egg masses.

The vessel had to depart and return multiple times before CBP agriculture specialists determined that it was absolutely free from AGM egg masses.

Female Asian Gypsy Moths can lay between 500-1,000 eggs that will become voracious caterpillars that may feed on hundreds of tree and shrub species.

On a typical day in fiscal year 2018, 319 pests at U.S. ports of entry and 4,552 materials for quarantine: plant, meat, animal byproduct, and soil.

Trump Administration Improves the Implementing Regulations of the Endangered Species Act - U.S. Fish & Wildlife Service

Washington - In its more than 45-year history, the Endangered Species Act (ESA) has catalyzed countless conservation partnerships that have helped recover some of America’s most treasured animals and plants from the bald eagle to the American alligator. Today, U.S. Secretary of the Interior David Bernhardt unveiled improvements to the implementing regulations of the ESA designed to increase transparency and effectiveness and bring the administration of the Act into the 21st century.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Secretary Bernhardt. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

“The revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said U.S. Secretary of Commerce Wilbur Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”

The changes finalized today by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Section 4, among other things, deals with adding species to or removing species from the Act’s protections and designating critical habitat; section 7 covers consultations with other federal agencies.

The ESA directs that determinations to add or remove a species from the lists of threatened or endangered species be based solely on the best available scientific and commercial information, and these will remain the only criteria on which listing determinations will be based. The regulations retain language stating, “The Secretary shall make a [listing] determination solely on the basis of the best scientific and commercial information regarding a species’ status.”

The revisions to the regulations clarify that the standards for delisting and reclassification of a species consider the same five statutory factors as the listing of a species in the first place. This requirement ensures that all species proposed for delisting or reclassification receive the same careful analysis to determine whether or not they meet the statutory definitions of a threatened or endangered species as is done for determining whether to add a species to the list.

While this administration recognizes the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent. Revisions to the regulations identify a non-exhaustive list of such circumstances, but this will continue to be rare exceptions.

When designating critical habitat, the regulations reinstate the requirement that areas where threatened or endangered species are present at the time of listing be evaluated first before unoccupied areas are considered. This reduces the potential for additional regulatory burden that results from a designation when species are not present in an area. In addition, the regulations impose a heightened standard for unoccupied areas to be designated as critical habitat. On top of the existing standard that the designated unoccupied habitat is essential to the conservation of the species, it must also, at the time of designation, contain one or more of the physical or biological features essential to the species’ conservation.

To ensure federal government actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat, federal agencies must consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service under section 7 of the Act. The revisions to the implementing regulations clarify the interagency consultation process and make it more efficient and consistent.

The revisions codify alternative consultation mechanisms that may provide greater efficiency for how ESA consultations are conducted. They also establish a deadline for informal consultations to provide greater certainty for federal agencies and applicants of timely decisions, without compromising conservation of ESA-listed species.

Revisions to the definitions of “destruction or adverse modification,” “effects of the action” and “environmental baseline” further improve the consultation process by providing clarity and consistency.

In addition to the final joint regulations, the U.S. Fish and Wildlife Service finalized a separate revision rescinding its “blanket rule” under section 4(d) of the ESA. The rule had automatically given threatened species the same protections as endangered species unless otherwise specified.

The National Marine Fisheries Service has never employed such a blanket rule, so the new regulations bring the two agencies into alignment. The change impacts only future threatened species’ listings or reclassifications from endangered to threatened status and does not apply to species already listed as threatened. The U.S. Fish and Wildlife Service will craft species-specific 4(d) rules for each future threatened species determination as deemed necessary and advisable for the conservation of the species, as has been common practice for many species listed as threatened in recent years.

From comments received during the public comment period in making these regulatory changes, concerns were raised regarding the lack of transparency in making listing decisions and the economic impact associated with determinations. Public transparency is critical in all government decision making, and the preamble to the regulation clarifies that the ESA does not prohibit agencies from collecting data that determine this cost and making that information available, as long as doing so does not influence the listing determination.

The final regulations submitted to the Federal Register can be found here:

https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html

FDA Warns Consumers About the Dangerous and Potentially Life Threatening Side Effects of Miracle Mineral Solutions - Food & Drug Administration

The U.S. Food and Drug Administration is warning consumers not to purchase or drink a product sold online as a medical treatment due to a recent rise in reported health issues. Since 2010, the FDA has warned consumers about the dangers of Miracle or Master Mineral Solution, Miracle Mineral Supplement, MMS, Chlorine Dioxide (CD) Protocol, Water Purification Solution (WPS) and other similar products. Miracle Mineral Solution has not been approved by the FDA for any use, but these products continue to be promoted on social media as a remedy for treating autism, cancer, HIV/AIDS, hepatitis and flu, among other conditions. However, the solution, when mixed, develops into a dangerous bleach which has caused serious and potentially life-threatening side effects.

“The FDA’s drug approval process ensures that patients receive safe and effective drug products. Miracle Mineral Solution and similar products are not FDA-approved, and ingesting these products is the same as drinking bleach. Consumers should not use these products, and parents should not give these products to their children for any reason,” said FDA Acting Commissioner Ned Sharpless, M.D. “The FDA will continue to track those selling this dangerous product and take appropriate enforcement actions against those who attempt to evade FDA regulations and market unapproved and potentially dangerous products to the American public. Our top priority is to protect the public from products that place their health at risk, and we will send a strong and clear message that these products have the potential to cause serious harm.”

Websites selling MMS describe the product as a liquid that is 28% sodium chlorite in distilled water. Product directions instruct consumers to mix the sodium chlorite solution with citric acid – such as lemon or lime juice – or another acid before drinking. In many instances, the sodium chlorite is sold with a citric acid “activator.” When the acid is added, the mixture becomes chlorine dioxide, a powerful bleaching agent.

The FDA recently received new reports of people experiencing severe vomiting, severe diarrhea, life-threatening low blood pressure caused by dehydration and acute liver failure after drinking these products. The FDA is not aware of any scientific evidence supporting the safety or effectiveness of MMS products, despite claims that the solution is an antimicrobial, antiviral and antibacterial. The FDA encourages consumers to talk to a health care professional about treating medical conditions or diseases.

Consumers who have experienced an adverse health effect after ingesting this product should seek immediate medical attention. Anyone who has experienced an adverse health effect that may be related to MMS should report it through the FDA’s MedWatch Safety Information program as soon as possible at 800-FDA-1088 or www.fda.gov/medwatch/report.htm.