Importers should be given a chance to contest alleged non-compliance with energy conservation or labeling standards before goods are prevented from entering the U.S., said the National Electrical Manufacturers Association (NEMA) in comments to the Departments of Homeland Security and Treasury. The proposed rulemaking would require U.S. Customs and Border Protection (CBP) to seize specified appliances and equipment that don’t comply with the Energy Policy & Conservation Act energy efficiency or labeling requirements. A notification should be given to the importer if an agency intends to notify CBP of noncompliance, said NEMA. The proposed rules say the Department of Energy (DOE) or the Federal Trade Commission (FTC) may direct CBP to refuse admission of the covered import or recommend conditional release of the covered import to be brought into compliance.

“The importer should have a definite and limited period of time to appeal this intended determination and make corrections as necessary to its compliance documentation on file with the agency or to point out potential flaws in the agency’s analysis or understanding of that documentation or certifications,” said NEMA. “The consequences of a false determination of non-compliance would be costly not only to the importer but also to the primary regulatory agency and CBP. Whether DOE or FTC has notified the importer of its determination should be included in the written or electronic notice from that agency to CBP. CBP should have full assurance that the resources it would expend to track, identify and block allegedly non-compliant imports will be justified by good processes in and information from its partner agencies,” said NEMA. The NEMA comments are (here).

It would “place an increasing and open-ended burden on CBP,” the Telecommunications Industry Association said in its comments, because EPCA covers more than 50 different appliance and equipment categories, “including battery chargers, which are commonly packaged with their accompanying devices: “Given the finite resources CBP has to fulfill its mission, requiring CBP to be on call to police virtually all appliances and consumer equipment would necessitate pulling resources and focus from its other responsibilities.” The TIA comments are (here).

The Hearth, Patio & Barbecue Association (HPBA) said in comments that more information is necessary in the final rule. The HPBA “feels that any regulation on such an enforcement program should provide sufficient details on overall implementation, conditional release, and method of notice to manufacturers,” it said. The proposed rulemaking “offers very little in the way of explaining important details of the program” and “uncertainty over the implementation of the program makes possible a number of scenarios that would be problematic for foreign manufacturers or (as is the case with some HPBA members) domestic companies that also have manufacturing facilities in other countries,” it said. A helpful regulatory scheme would include “procedures setting forth how a company would receive adequate notice and opportunity to bring its products into compliance as opposed to an arbitrary and unannounced seizure at the border,” said HPBA. The HPBA comments are (here).

CBP should make a distinction for products that are imported to the U.S. for later export outside of the U.S., said Mitsubishi Electric & Electronics USA (MEUS). For instance, MEUS imports certain HVAC parts to the U.S. that are warehoused until sent to Latin American, where they are compliant with all local laws. ” MEUS strongly encourages the USCBP to incorporate more specific language into the § 12.50 amendment that exempts products that are intended for export only, or transshipment,” it said. The MEUS comments are (here).

Comments on the proposed rules were due May 25, 2012.


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