[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67140-67144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23578]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Part 12

[Docket No. USCBP-2016-0061; CBP Dec. 16-15]
RIN 1515-AE12


Notice of Arrival for Importations of Pesticides and Pesticidal 
Devices

AGENCY:  U.S. Customs and Border Protection, Department of Homeland 
Security; Department of the Treasury.

ACTION: Interim regulations; solicitation of comments.

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SUMMARY: This document amends the U.S. Customs and Border Protection 
(CBP) regulations pertaining to the importation of pesticides and 
pesticidal devices into the United States subject to the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA). Specifically, CBP 
is amending the regulations to permit the option of filing an 
electronic alternative to the U.S. Environmental Protection Agency's 
(EPA) ``Notice of Arrival of Pesticides and Devices'' (NOA) paper form, 
with entry documentation, via any CBP-authorized electronic data 
interchange system. This change will support modernization

[[Page 67141]]

initiatives, including implementation of the International Trade Data 
System (ITDS). This document also makes non-substantive conforming and 
editorial changes to the CBP regulations.

DATES: This interim final rule is effective September 30, 2016. 
Comments must be submitted on or before October 31, 2016.

ADDRESSES: You may submit comments, identified by docket number USCBP-
2016-0061, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Trade and Commercial Regulations Branch, Regulations 
and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K 
Street NE., 10th Floor, Washington, DC 20229-1177.
    Instructions: All submissions received must include the agency name 
and docket title for this rulemaking, and must reference docket number 
USCBP-2016-0061. All comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of the 
document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected during business days between the hours of 9:00 
a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch, 
Regulations and Rulings, Office of Trade, U.S. Customs and Border 
Protection, 90 K Street NE., 10th Floor, Washington, DC. Arrangements 
to inspect submitted comments should be made in advance by calling Mr. 
Joseph Clark at (202) 325-0118.

FOR FURTHER INFORMATION CONTACT: For questions related to the filing of 
EPA forms with CBP, contact William R. Scopa, Branch Chief, Partner 
Government Branch, Inter-Agency Collaboration Division, Office of 
Trade, U.S. Customs and Border Protection, at 
william.r.scopa.cbp.dhs.gov. For EPA-related questions, contact Ryne 
Yarger, Environmental Protection Specialist, Field and External Affairs 
Division, Office of Pesticide Programs, U.S. Environmental Protection 
Agency, at [email protected], telephone (703) 605-1193.

SUPPLEMENTARY INFORMATION: 

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim rule. See ADDRESSES above for information on how to submit 
comments. U.S. Customs and Border Protection (CBP) also invites 
comments that relate to the economic, environmental, or federalism 
effects that might result from this interim rule. Comments that will 
provide the most assistance to CBP will reference a specific portion of 
the interim rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.

Background

I. The Federal Insecticide, Fungicide and Rodenticide Act

    The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), as 
amended (7 U.S.C. 136 et seq.), provides for federal regulation of 
pesticide distribution, sale, and use in the United States. Section 3 
of the FIFRA, 7 U.S.C. 136a, requires that, with limited exceptions, 
all pesticides distributed or sold in the United States must be 
registered (licensed) by the U.S. Environmental Protection Agency 
(EPA). Section 17(c)(1) of the FIFRA, 7 U.S.C. 136o(c)(1), provides for 
EPA review of pesticides and devices being imported into the United 
States and authorizes U.S. Customs and Border Protection (CBP), at the 
request of EPA, to delay or refuse admission of imports that appear, 
from examination, to be adulterated, or misbranded, or otherwise 
violate the provisions of the FIFRA or are injurious to human health or 
the environment. Section 17(e) of the FIFRA, 7 U.S.C. 136o(e), provides 
that CBP, in consultation with EPA, will prescribe regulations for the 
enforcement of section 17(c).
    Under the FIFRA, EPA has authority to regulate the distribution or 
sale of registered and unregistered pesticides and pesticidal devices 
into the United States. In order to facilitate compliance with the 
FIFRA, the filing of EPA Form 3540-1 (``Notice of Arrival of Pesticides 
and Devices,'' hereinafter referred to in this document as ``NOA'') is 
required to notify EPA of the arrival of imported pesticides and 
devices and serves to assist EPA and CBP in fulfilling their statutory 
obligation under the FIFRA to regulate the importation, distribution, 
or sale of pesticides and devices in the United States. The NOA can be 
found in fillable .pdf format on EPA's ``Compliance'' Web site at 
https://www.epa.gov/compliance/epa-form-3540-1-notice-arrival-pesticides-and-devices.

II. Current Pesticide and Device Importation Procedures

    The statutory provisions set forth in section 17(c) of the FIFRA, 7 
U.S.C. 136o(c), are implemented in the CBP regulations at Sec. Sec.  
12.110 through 12.117 of title 19 of the Code of Federal Regulations 
(19 CFR 12.110-12.117) and prescribe the administration of CBP's 
pesticide and device import program.
    Currently, when a pesticide or device is to be imported into the 
United States, the importer of record or its agent must submit, prior 
to arrival, a NOA to the EPA regional office with responsibility for 
the port of entry where the merchandise will be entered. EPA reviews 
and evaluates the information presented on the NOA and determines the 
disposition to be made of the shipment of the pesticides or devices 
upon their arrival in the United States. EPA may request additional 
information to make its determination on whether the pesticides or 
devices satisfy the requirements of the FIFRA. Upon review of the NOA, 
EPA will inform CBP of the action to be taken with respect to the 
shipment. The possible actions include release, detention, or refusal 
of entry of the shipment. The determination is indicated on the 
completed NOA form, which is signed by an EPA official and returned to 
the importer or its agent. The importer or the importer's agent must 
submit the completed NOA form to CBP along with the documentation 
required for the entry of merchandise. CBP will follow EPA's 
disposition instructions in the NOA and notify EPA when discrepancies 
exist between the NOA and the entry documents.

III. Explanation of Interim Amendments to CBP Regulations

    CBP, in consultation with EPA, is amending the CBP regulations to 
permit the option of filing an electronic alternative to the NOA with 
the entry documentation, via any CBP-authorized electronic data 
interchange system. The NOA may still be filed in a paper format with 
the EPA prior to arrival of the shipment, and the completed NOA must be 
filed with CBP at the time of entry.
    These changes liberalize filing procedures and implement 
modernization initiatives including the International Trade Data System 
(ITDS), as established by section 405 of the Security and 
Accountability for Every (SAFE) Port Act of 2006, Public Law 109-347, 
120 Stat. 1884, by utilizing a single-window system for the collection

[[Page 67142]]

and distribution of standard electronic import and export data required 
by participating Federal agencies. These amendments will allow 
electronic collection, processing, sharing, and review of requisite 
trade data and documents during the cargo import process.
    A discussion of the amendments to 19 CFR 12.110-12.117, other than 
non-substantive editorial changes, is set forth below.
Section 12.111
    Existing Sec.  12.111 (19 CFR 12.111) provides that all imported 
pesticides are required to be registered under the provisions of 
section 3 of the FIFRA, and pursuant to 40 CFR 162.10, before being 
permitted entry into the United States. Devices, although not required 
to be registered, must not bear any statement, design, or graphic 
representation that is false or misleading in any particular.
    CBP is amending this section to update an EPA regulatory citation 
and to conform to EPA regulations that allow certain pesticides to be 
imported without registration.
Section 12.112
    Existing Sec.  12.112(a) (19 CFR 12.112(a)) provides that prior to 
arrival of pesticides or devices into the United States, the importer 
must submit a NOA to the Administrator of the EPA. EPA will complete 
the NOA, indicating the disposition to be made of the shipment of 
pesticides or devices upon its arrival in the United States, and return 
it to the importer or its agent. Existing Sec.  12.112(b) exempts 
importers of chemicals imported for use other than as pesticides from 
the requirement to submit a NOA.
    This rule liberalizes the procedures set forth in 19 CFR 12.112(a) 
by permitting the option of filing an electronic alternative to the 
NOA, with the entry documentation, via any CBP-authorized electronic 
data interchange system. The NOA may still be filed in a paper format, 
however it must be submitted to the EPA prior to arrival of the 
shipment.
Section 12.113
    Existing Sec.  12.113 (19 CFR 12.113) prescribes the presentation 
of the NOA to CBP, and the ramifications of failure to do so. 
Specifically, paragraph (a) requires that upon arrival of a shipment of 
pesticides or devices into the United States, the importer or its agent 
must present the completed NOA to the CBP port director and the port 
director will notify EPA of any discrepancies between the entry 
documents for the shipment and the information contained in the NOA. 
Paragraph (b) provides that where a completed NOA is not presented to 
CBP upon arrival, the shipment will be detained by CBP at the 
importer's risk and expense until the completed NOA is presented or 
until other disposition is ordered by EPA. The detention may not exceed 
30 days, unless extended by CBP for good cause for a period not to 
exceed an additional 30 days. The importer or his agent may also 
request CBP for an extension of the initial 30-day detention period. 
Paragraph (c) provides that a shipment that remains detained or 
undisposed of due to failure to present a completed NOA or non-receipt 
of the EPA shipment disposition order as to its disposition will be 
treated as a prohibited importation. CBP will cause the destruction of 
any such shipment not exported by the consignee within 90 days after 
the expiration of the detention period.
    CBP is amending Sec.  12.113 to clarify that CBP must be in receipt 
of the completed NOA at the time of entry, and not upon arrival, and 
that an electronic alternative to the NOA may be filed via any CBP-
authorized electronic data interchange system with the filing of the 
entry documentation.
Section 12.115
    Section 12.115 (19 CFR 12.115) prescribes the terms applicable to 
when a shipment of detained pesticides or devices may be released to 
the consignee under bond pending an examination by EPA as to whether 
the goods comply with the requirements of the FIFRA.
    CBP is amending this section to conform to 19 CFR part 133 which 
permits the electronic filing of bonds.
Section 12.116
    Section 12.116 (19 CFR 12.116) prescribes the manner by which CBP 
will deliver samples of the imported pesticides or devices, and any 
related information, to EPA.
    CBP is amending this provision by removing the reference to ``in 
writing'' to reflect that CBP may notify the consignee electronically.

Inapplicability of Notice and Delayed Effective Date

    The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553 
govern agency rulemaking procedures. Section 553(b) of the APA 
generally requires notice and public comment before issuance of a final 
rule. In addition, section 553(d) of the APA requires that a final rule 
have a 30-day delayed effective date. The APA, however, provides 
exceptions from the prior notice and public comment requirement and the 
delayed effective date requirements, when an agency for good cause 
finds that such procedures are impracticable, unnecessary, or contrary 
to the public interest.
    Treasury and CBP find that prior notice and comment procedures are 
unnecessary and that good cause exists to issue these regulations 
effective upon publication. Prior procedures are unnecessary because 
the rule does not substantively alter the underlying rights or 
interests of importers or filers, but only expands the options 
available to filers in presenting required information to the agency.

Executive Orders 13563 and 12866

    Executive Orders (E.O.) 13563 and 12866 direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This interim rule is not a ``significant regulatory action,'' under 
section 3(f) of E.O. 12866. Accordingly, OMB has not reviewed this 
regulation.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of a proposed 
rule on small entities (i.e., small businesses, small organizations, 
and small governmental jurisdictions) when the agency is required to 
publish a general notice of proposed rulemaking for a rule. Since a 
general notice of proposed rulemaking is not necessary for this rule, 
CBP is not required to prepare a regulatory flexibility analysis for 
this rule.

Paperwork Reduction Act (PRA)

    The information collection activities associated with the existing 
requirements related to the submission of a paper NOA under 19 CFR 
12.110-12.117, are currently approved by OMB under OMB control number 
2070-0020 (EPA ICR No. 0152.10). This rule adds an electronic filing 
option to the existing paper filing option, in which the information 
collection activities for the electronic filing of a NOA have been

[[Page 67143]]

approved under OMB control number 2070-0020 (EPA ICR No. 0152.11). 
There is no change in burden hours as a result of this rule.

Signing Authority

    This document is being issued in accordance with Sec.  0.1(a)(1) of 
the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of 
the Secretary of the Treasury (or his or her delegate) to approve 
regulations related to certain CBP revenue functions.

List of Subjects in 19 CFR Part 12

    Customs duties and inspection, Entry of merchandise, Imports, 
Pesticides and devices, Reporting and recordkeeping requirements.

Amendments to Part 12 of the CBP Regulations

    For the reasons set forth in the preamble, 19 CFR part 12 is 
amended as set forth below.

PART 12--SPECIAL CLASSES OF MERCHANDISE

0
1. The general authority citation for part 12, and the specific 
authority citations for sections 12.110 through 12.117, continue to 
read as follows:

    Authority:  5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), 
Harmonized Tariff Schedule of the United States (HTSUS)), 1624.

* * * * *
    Sections 12.110 through 12.117 also issued under 19 U.S.C. 1484 
and 7 U.S.C. 136 et seq.
* * * * *


Sec.  12.110  [Amended]

0
2. Section 12.110 is amended:
0
a. In the first sentence, by removing the word ``shall''; and
0
b. In the second sentence, by removing the words ``shall mean'' and 
adding in their place the word ``means''.


Sec.  12.111  [Amended]

0
 3. In Sec.  12.111, the first sentence is amended by removing the word 
``All'' and adding in its place the word ``Certain'', and by removing 
the number ``162.10'' and adding in its place the language ``part 
152''.

0
4. Section 12.112 is amended by revising paragraph (a) to read as 
follows:


Sec.  12.112  Notice of Arrival of pesticides and devices filed with 
the Administrator.

    (a) General. An importer or the importer's agent desiring to import 
pesticides or devices into the United States must submit to the 
Administrator, prior to the arrival of the shipment in the United 
States, a Notice of Arrival of Pesticides and Devices (Notice of 
Arrival) on U.S. Environmental Protection Agency (EPA) Form 3540-1. The 
Administrator will complete the Notice of Arrival and provide 
notification to the importer or the importer's agent indicating the 
disposition to be made of a pesticide or device upon its entry into the 
United States. In the alternative, the importer or the importer's agent 
may file an electronic alternative to the Notice of Arrival, with the 
filing of the entry documentation, via any CBP-authorized electronic 
data interchange system.
* * * * *

0
5. Section 12.113 is revised to read as follows:


Sec.  12.113  Arrival and entry of shipment of pesticides and devices.

    (a) Notice of Arrival form filed with CBP. Upon entry of a shipment 
of pesticides or devices into the United States, and concurrent with 
the filing of the entry documentation, CBP must be in receipt of a 
completed Notice of Arrival of Pesticides and Devices (Notice of 
Arrival) on U.S. Environmental Protection Agency (EPA) Form 3540-1 or 
its electronic alternative submitted via any CBP-authorized electronic 
data interchange system. A completed Notice of Arrival must have been 
signed by the Administrator and indicate any action to be taken by CBP 
with respect to the shipment. CBP will compare entry information for 
the shipment of pesticides or devices with the information in the 
Notice of Arrival and notify the Administrator of any discrepancies.
    (b) EPA Notice of Arrival declaration form not presented. When a 
shipment of pesticides or devices arrives and entry is attempted in the 
United States without a completed Notice of Arrival having been filed 
with CBP pursuant to paragraph (a) of this section, the shipment will 
be detained by CBP at the importer's risk and expense until the 
completed Notice of Arrival is presented to CBP or until other 
disposition is ordered by the Administrator. Such detention is not to 
exceed a period of 30-calendar days, or such additional extended 30-
calendar day detention period as CBP may for good cause authorize. An 
importer or its agent may request an extension of the initial 30-
calendar day detention period by filing a request with the director of 
the CBP port of entry.
    (c) Disposition of pesticides or devices remaining under detention. 
A shipment of pesticides or devices that remains detained or undisposed 
of due to the failure to timely submit to CBP a completed Notice of 
Arrival will be treated as a prohibited importation. CBP will cause the 
destruction of any such shipment not exported by the consignee within 
90-calendar days after the expiration of the detention period specified 
or authorized by paragraph (b) of this section.

0
6. Section 12.114 is revised to read as follows:


Sec.  12.114   Release or refusal of delivery.

    If the EPA directs the port director to release the shipment of 
pesticides or devices, the shipment will be released to the consignee. 
If the EPA directs the port director to refuse delivery of the 
shipment, the shipment will be refused delivery and treated as a 
prohibited importation. The port director will cause the destruction of 
any shipment refused delivery and not exported by the consignee within 
90-calendar days after notice of such refusal of delivery.
0
7. Section 12.115 is revised to read as follows:


Sec.  12.115   Release under bond of shipment detained for examination.

    If the EPA so directs, a shipment of pesticides or devices will be 
detained at the importer's risk and expense by the port director 
pending an examination by the Administrator to determine whether the 
shipment complies with the requirements of the Act. However, a shipment 
detained for examination may be released to the consignee prior to a 
determination by the Administrator provided a bond is furnished on CBP 
Form 301, or its electronic equivalent, containing the bond conditions 
set forth in Sec.  113.62 of this chapter, for the return of the 
merchandise to CBP custody, and upon entry of the merchandise and the 
satisfaction of all other applicable laws. The bond will be in an 
amount deemed appropriate by CBP. When a shipment of pesticides or 
devices is released to the consignee under bond, the pesticides or 
devices must not be used or otherwise disposed of until the 
determination on compliance with the requirements of the Act is made by 
the Administrator.


Sec.  12.116  [Amended]

0
8. Section Sec.  12.116 is amended: in the first and last sentences, by 
removing the word ``shall'' each place that it appears and adding in 
each place the word ``will''; and, in the last sentence, by removing 
the phrase ``, in writing,''.


Sec.  12.117  [Amended]

0
 9. Section 12.117 is amended by removing the word ``shall'' each place

[[Page 67144]]

that it appears and adding in each place the word ``will''.

R. Gil Kerlikowske,
Commissioner, U.S. Customs and Border Protection.
    Approved: September 26, 2016.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2016-23578 Filed 9-29-16; 8:45 am]
 BILLING CODE 9111-14-P