DAWR Imported Foods Notice – Understanding the Food Control Certificate

The Department of Agriculture and Water Resources (“DAWR”) released an Imported Foods Notice this week reminding importers of food products about the importer’s responsibilities when a Food Control Certificate (“FCC”) is issued.

The Notice, IFN 08-19, can be found here.

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Brown Marmorated Stink Bug (BMSB) Update

The 2018-2019 seasonal measures for the Brown Marmorated Stink Bug (“BMSB”) will draw to a close today, April 30, 2019.

However, readers should bear in mind that Australia’s Biosecurity authority, a division of the Australian government’s Department of Agriculture and Water Resources (“DAWR”), has in place “run-off” plans for imported cargo departing overseas ports at or near the end of the seasonal measures.  For example, containers departing overseas ports over the next few days are most likely to have been packed with their cargo prior to the close of the seasonal measures and, therefore, they will still be affected by the seasonal measures even though the container won’t arrive in Australia for at least 3 weeks and possibly up to 6-8 weeks.  DAWR will monitor such shipments closely to ensure appropriate Biosecurity measures have been undertaken prior to shipment, or can be undertaken prior to release of the cargo from the relevant Australian port area.

While those involved with imports from the affected countries of origin will no doubt breathe a sigh of relief that the Biosecurity restrictions will, over the coming months, ease back in respect of this pest, sadly, such relief will be short-lived.

In light of the logistical issues (or nightmares for many) the seasonal measures have created in seasons 2017-2018 and 2018-2019, there has been an on-going inquiry initiated by the relevant Australian Government Minister pursuant to the many representations to Government about the problems faced by the importing community due to DAWR not having sufficient resources to cope with their own requirements.  DAWR acknowledge they are under-resourced and have resorted to extended overtime for Departmental officers as well as re-engaging with recently retired officers to come back into the work force to assist with the volume of work.

Despite this there have been significant delays in some instances and many thousands of dollars in additional costs for importers, and not just in fees charged by DAWR.  Delayed containers often incur storage charges at container terminals (the wharves) or special storage facilities, additional transport costs for containers moved off the wharf to special storage, and shipping line charges for return of empty containers outside the free period allowed by that line.  Shipping lines have shown little interest in appeals from importers for extended free time, using the situation to make extra profit at the expense of importers caught up in a delay not of their making.  The shipping lines seem to take the position that the importer should have made proper arrangements for their cargo prior to shipment to ensure it wasn’t delayed on arrival. This stance by the shipping lines completely (conveniently?) ignores the fact that the delay is not because the importer didn’t have their goods correctly treated overseas, rather it is because DAWR are taking so long to process clearances.  DAWR have steadfastly refused to entertain claims from importers for any compensation, hiding behind the fact there is no requirement within the legislation for them to process clearances within a set time frame.  Clearly, these processing delays demonstrate the importance for importers to provide documents to their Customs and accredited Biosecurity broker as early as possible to allow for the extended time frame it takes DAWR to process the clearance during BMSB season.

In an effort to find a better way of dealing with the issues, DAWR have already been working on plans for the 2019-2020 seasonal measures.  They have hosted public seminars around Australia to advise industry of their proposed measures and to seek feedback in relation to those measures.  From that feedback, they hope to have their final measures settled well in advance of the commencement of the 2019-202 season, unlike 2018-2019 when industry didn’t receive advice of the final measures until a few days prior to the beginning of the season.  On top of that, the system and measures were re-shaped seemingly “on the fly”  during the season as it became apparent DAWR had badly miscalculated the impact of their requirements, and immense pressure was brought to bear from importers and their service providers.

Yesterday, 29 April 2019, saw the first draft release on the DAWR dedicated BMSB webpages of their proposed measures for the 2019-2020 season.  The BMSB, a native of northern Asia, is spreading rapidly through the European and North American continents where it is not yet defined as a “reportable pest” despite it being a major nuisance.  Of note, the number of countries now on the DAWR list of “target risk countries” has increased from 9 in 2018-2019 (10 if you include Japan, but Japan is only on a heightened vessel surveillance regime at this stage) to 32 countries (as at the time of writing, with other countries under scrutiny) for 2019-2020 (plus Japan which remains on a heightened vessel surveillance regime for now).

There is a considerable amount of information on the webpages, and I recommend readers review the information here to start preparing their import arrangements for the 2019-2020 season.  You can also learn about the BMSB itself on the DAWR website by checking this DAWR page.

Should you require assistance to determine if your imports are likely to be affected and, if so, what measures will possibly apply, please Contact Us to discuss.

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Urgent attention required for new Chain of Responsibility laws

The following is an excerpt from an article was published on 8th May 2017 by Travis Brooks-Garrett, partner at Freight & Trade Alliance.

“LAST year the Queensland Government passed the Heavy Vehicle National Law and Other Legislation Amendment Bill 2016, to be incorporated into the Heavy Vehicle National Law.

This Act of Parliament from our northern state has a profound effect on the Chain of Responsibility requirements nationally with all states and territories, except Western Australia and the Northern Territory, covered under the changes.  The amendments recast the duties and liabilities of consignor/consignees, schedulers and operators, loading managers, loaders and packers, unloaders, who are all considered to have a primary duty of care under the new legislations, with executive officers facing ‘due diligence’ obligations in ensuring compliance.  Safety is no longer the exclusive domain of those responsible for the transport task. While industry was given an 18-month implementation period, it is a monumental shift and industry needs to be aware, and service providers need to start educating their clients and suppliers, before the new legislation takes full effect.

What does this mean in practical terms?  As an importer, do my delivery requirements encourage my transport operator to speed or drive while fatigued?  Have I ensured my loads are properly restrained?  As a forwarder, have I provided reliable weight information to the transport operator?  In the words of one wise Freight & Trade Alliance (FTA) member, “there should be a focus on safety before any commercial considerations such as product damage or ease of unloading”.

With the change in requirements comes the changes to the penalty and compliance regimes, which are to be re-aligned to better reflect the existing OH&S legislation.  Breaches may receive a maximum fine of $3m for a corporation, or a personal fine of $300,000 or a five-year imprisonment, or both.  Commendably, the new laws will also introduce “enforceable undertakings” as a compliance option, meaning a party who breaches the law may enter into an agreement with the regulator committing to address the areas of non-compliance.  In the event of a serious breach the regulator will have increased powers to obtain documents and information during an investigation.

This new legislation is all about eliminating risk through business controls, a common theme that has featured in many recent Government reforms. Risk detection has been replaced by “positive duty”, an approach that is more proactive and can be customised to the risk profile of your business and your role in the freight task.  Strong employee training and robust business systems and processes are the bedrock of this approach.”

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Asbestos – not just in car parts

In a post on June 7, 2016 I alerted readers to a case where imported, counterfeit, car parts were found to contain asbestos. Asbestos is, under Australian law, a strictly prohibited import and export and requires special permission from the Australian Government for anyone wishing to deal in this deadly product.

When processing import declarations on behalf of importers, Customs brokers are required to answer a series of community protection questions designed to filter out items that might contain asbestos. The Australian Border Force (“ABF”) have expanded the range of tariff classifications (HS codes) to which questions relating to asbestos content are linked. In recent discussions between the ABF and the Customs Brokers and Forwarders Council of Australia (“CBFCA”), the ABF re-iterated their position when it comes to asbestos.

In a nutshell, the OWNER of the goods must be CERTAIN that the goods do not contain ANY asbestos – there must be ZERO asbestos content. How can an owner be certain? By having the goods tested by a testing authority recognised by the National Association of Testing Authorities (“NATA”) in Australia (for goods intended for export) or by a testing authority recognised by an overseas body of similar standing to NATA. Further information about testing authorities can be found on the NATA website.

There is also a wealth of information on the ABF website here, which includes a list of those items considered high risk of containing asbestos.

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Beware of counterfeit car parts – they might contain asbestos

The following article is provided courtesy of the Customs Brokers and Forwarders Council of Australia (CBFCA).

A recent Media Report from the Asbestos Safety and Eradication Agency (ASEA) revealed the importation of counterfeit car parts into Australia, some of which contain asbestos.

ASEA recently presented at CBFCA Regional Conventions around Australia to highlight the growing concern in relation to such imports and to educate industry members to assist them to help their importer clients to comply with the prohibition on importing asbestos.

The importation into Australia of asbestos or asbestos-containing materials (ACMs) is strictly prohibited except under very limited circumstances. Australian law has zero tolerance for asbestos or ACMs. Responsibility lies with the importer for ensuring goods are asbestos-free prior to importation.

Goods imported into Australia (without an exemption) can attract fines (at the time of writing) of up to AUD 170,000.00 or three (3) times the value of the goods, whichever is greater.

The Department of Immigration and Border Protection (DIBP) also reaffirmed in their presentations an intensifying of their efforts to address the risk of asbestos in imported goods, especially in building products and children’s toys.

To the view the article about how the ASEA found out about the asbestos in the counterfeit parts, please see here.

Information on Australian standards can be found on the National Association of Testing Authorities website.

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DoA Biosecurity impose mandatory inspections on break-bulk cargo

Advice has been received this afternoon that the Department of Agriculture Biosecurity division (DoA Biosecurity) has instituted a system of mandatory inspections on ALL break-bulk cargo (motor vehicles, machinery, etc.) loaded at the US ports of Savannah or Baltimore.

This action is effective immediately and will affect all such cargo discharging from today onwards at ANY Australian port, until further notice.

The reason for this action by DoA Biosecurity is due to recent significant interception of hitchhiker pests, Brown Marmorated Stink Bugs and Asian Lady Beetles. All cargo will be subject to full inspection and treatment where necessary. Fees for service will be charged in acordance with normal DoA Biosecurity charging guidelines.

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Free Trade Agreements – Update

The Korea – Australia Free Trade Agreement (KAFTA) entered into force on 12 December, 2014.

Further information can be found on the Australian Customs & Border Protection Service website here.

The Australian Government has announced that the Japan – Australia Economic Partnership Agreement (JAEPA) will enter into force on 15 January, 2015.

Further information can be found on the Australian Customs & Border Protection Service website here.

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K Line Rate Restoration, effective 15 August 2014

K Line advise that effective from 15th August, 2014, they will introduce another rate restoration programme to restore freight rates to a viable level.

This rate restoration will affect all dry and reefer containers from Singapore, Malaysia, Indonesia, Philippines, Cambodia, Thailand and Vietnam. The additional amount will be US$200 per TEU. The date of issue of the bill of lading will be the date that determines whether or not the increase applies.

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Department of Agriculture undertakes verification inspections for certain commodities from China

In a previous article, I referred readers to the Department of Agriculture Biosecurity advice of increased surveillance of timber packaging materials originating in China.

The Department of Agriculture Biosecurity division released Notice to Industry 63/2014 advising they are now undertaking a short term verification inspection programme targeting commercial goods falling under Harmonised tariff headings 2514, 2515, 2516, 6801, 6802 and 6809.

The Department recently intercepted some pallets that were found to be infested with Asian longhorn beetle, the brown mulberry longhorn beetle, and the Japanese sawyer beetle. All of these are considered significant pests of living trees. The concern is that the pallets were all marked with the treatment identification code ISPM15 HT and supporting documents were provided which confirmed treatment had occurred.

The programme will run for 3 weeks from late June 2014.

In order to minimise the impact on importers:
– Inspections will take place at the importers premises or a location nominated by the importer.
– Goods may be removed from shipping containers; however all goods and packaging must be isolated awaiting inspection.
– No inspection fees will be issued, however normal document processing fees will apply.

The Department is particularly interested in identifying wooden packaging material displaying signs of insect damage or ineffective treatment.

In addition, importers that discover any suspect materials (even materials already imported and in the importer’s premises) should immediately notify the Department via 1800 19 55 43

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K Line Rate Restoration, effective 1st August, 2014

K Line advise that effective from 1st August, 2014, they will introduce a rate restoration programme to restore freight rates to a viable level.

The rate restoration will affect all dry and reefer containers from China, Hong Kong, Taiwan and Korea. The additional amount will be US$300 per TEU. The date of issue of the bill of lading will be the date that determines whether or not the increase applies.

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