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January 23, 2014

EPA Publishes Revised Notice of Arrival Form for Import of Pesticides and Devices Raising New Questions for Importers

The ACTA Group

The U.S. Environmental Protection Agency (EPA) has revised the Notice of Arrival (NOA) form (EPA Form 3540-1), the use of which is required for import of pesticides and pest control devices into the United States. Importers should begin using the new form immediately. The revised form and related instructions are available online. EPA has added optional information blocks, recommendations, and certain clarifications to the instructions. Some of these changes may be beneficial and respond to industry concerns regarding a lack of clarity in prior instructions. Other changes, however, particularly regarding optional information and recommendations, should be reviewed with care as the information requested may well be treated as effectively mandatory.

Among the optional information items, EPA has added to the form an optional section (box 18) that allows the importer to provide information pertinent to the importation of unregistered pesticides. EPA states that the optional section is intended to allow the importer to communicate more clearly the basis supporting a permissible transfer, sale, or distribution of an unregistered product (e.g., a pesticide transfer between registered establishments operated by the same producer, a pesticide distributed under an experimental use permit (EUP), a pesticide distributed for research and development without an EUP). Depending on the reason the unregistered pesticide is being imported, the newly revised form allows the input of additional information that can also be provided.

For example, if the pesticide is being transferred between registered establishments operated by the same producer, EPA asks that the establishment number be provided of the establishment where the imported product is transported to after release by Customs. While the section is optional, EPA clearly recommends that companies complete this section, indicating that doing so “may expedite” EPA’s processing of the NOA.

EPA has also revised the instructions for the form. The instructions include a recommendation that all blocks be completed prior to submission and that supporting documentation be included with the submission of each NOA. Likewise, EPA recommends in the revised instructions that “each active ingredient and percentage be listed to ensure accuracy of information.”

EPA additionally has clarified certain terms in the instructions. The instructions for completing many of the items on the form were described previously by EPA as “self-explanatory.” Now, EPA provides instructions for each item to be completed. For example, while EPA had not previously provided instructions for how to provide the name and address of the licensed customs broker, EPA now provides a definition for a licensed customs broker: “Person (such as private individual, partnership, association or corporation) who is licensed, regulated, and empowered by CBP [U.S. Customs and Border Protection] to assist and transact on behalf of others (importers and exporters) in meeting Federal requirements governing imports and exports (customs business).” EPA has also defined “importer of record” in the instructions as “the individual or firm liable for payment of all duties and meeting all statutory and regulatory requirements incurred as a result of importation.” In addition, in the instructions, EPA recommends that an importer submitting an NOA attach a copy of the label for the imported product to the NOA.

For importation into the United States, a pesticide must be registered under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 3 or exempt from pesticide registration requirements. Unregistered pesticides that meet the requirements in 40 C.F.R. § 152.30 also may be imported, as may compliant pest control devices. A NOA must be submitted to the EPA Regional Office having jurisdiction over the state/territory in which the Port of Entry is located prior to the arrival of the shipment. EPA must complete Part II of the NOA, indicating the disposition to be made of the shipment of pesticide or device upon its arrival in the United States, and return the completed NOA to the importer. Upon arrival of the shipment of pesticide or device, the importer must present the completed NOA to Customs.

Companies should review the new form carefully. The clarifications should be considered to ensure compliance. Moreover, although the new sections on transfers and the recommendation to provide supporting documentation are optional, it is quite possible that EPA will effectively require that information for the shipments at issue to be approved for entry, and thus companies should also consider these when preparing NOA forms.