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Feb 14 2012 issue

Tuesday, February 14, 2012
Sandler, Travis & Rosenberg Trade Report

ITC to Examine AD/CV, Section 337 Regulations in First Tranche of Retrospective Review

The International Trade Commission has adopted a plan creating a defined method and schedule for identifying and reconsidering certain significant rules that are obsolete, unnecessary, unjustified, excessively burdensome or counterproductive. This review process could result in the repeal, modification, strengthening, complementing or modernization of ITC rules. The plan finalizes without any significant changes a proposal the ITC released in October 2011.

The ITC is not primarily a regulatory agency and as a result its regulations generally only serve to govern the process of its own statutory investigative responsibilities. For example, the ITC issues rules of practice and procedure relating to the conduct of its investigations, which cover costs of production, agricultural imports, duty modifications, global and bilateral safeguard actions, antidumping and countervailing duties, short supply of textile fabric and yarn, and unfair trade practices.

With this in mind, the ITC will endeavor to review rules that have been affected by subsequent legal developments; overlap, duplicate or conflict with other federal rules; are the subject of public comments from individuals and entities that appear before the ITC as well as from congressional and other executive branch sources; require outdated reporting practices; or have been in place for a long time so that updating may be appropriate. Every two years the ITC general counsel will seek input from the public, the ITC secretary, office directors and administrative law judges on rules suitable for modification or elimination. Based on responses received, GC staff will make recommendations regarding the possible modification or elimination of existing regulations. Once an appropriate rule change has been identified, the ITC will publish a proposed rule and solicit public comment.

The ITC has identified the following aspects of its existing rules for review over the next two years.

• whether regulations in 19 CFR parts 201 (rules of general application relating to ITC functions and activities), 207 (AD/CV duty investigations) and 210 (Section 337 intellectual property rights infringement investigations) need to be modified, streamlined, expanded or repealed to make the ITC’s regulations more effective or less burdensome

• whether regulations in 19 CFR part 200 addressing employee responsibilities and conduct can be modified or repealed in light of the issuance of similar regulations by the Office of Government Ethics

• whether regulations in 19 CFR part 201, subpart F, addressing national security information should be modified in light of Executive Order 13526 of Dec. 29, 2009

• whether regulations in 19 CFR part 208 addressing investigations on the commercial availability of textile fabric and yarn in sub-Saharan African countries can be repealed in light of the repeal of section 112(c)(2) of the African Growth and Opportunity Act

However, this list is non-exhaustive and the ITC will consider whether other parts of its regulations should also be subject to review within the next two years.

Click here for ITC notice

Textile and Apparel Imports Fall Again in December

The Department of Commerce’s Office of Textiles and Apparel reported Feb. 10 that monthly U.S. textile and apparel imports fell 8.3% in December, compared to a year earlier, following a 7.1% year-on-year drop in November. Imports of cotton, wool, manmade fiber, silk blends and non-cotton vegetable fiber textile and apparel products totaled 3.78 billion square meter equivalents in December, down from 4.245 billion SME in November. Textile imports dropped 4.2% to 2.21 billion SME while apparel imports plummeted 13.5% (following a 14.5% drop in November) to 1.58 billion SME.

For the 12-month period ending in December, total imports fell 3.2% to 53.7 billion SME as textile imports slid 2.8% to 29.8 billion SME and apparel imports fell 3.6% to 23.9 billion SME.

With respect to specific sources, imports of textile and apparel products (except cotton and silk blend textiles) saw a year-on-year increase in December from Vietnam (2.1% to 235.6 million SME), Korea (0.5% to 102.4 million SME) and Israel (22.2% to 36.6 million SME) but declined from China (3.3% to 1.8 billion SME), Taiwan (16.4% to 58.4 million SME), Hong Kong (39.5% to 4.8 million SME), Canada (16.6% to 84.9 million SME), Mexico (15.5% to 164.8 million SME), the DR-CAFTA region (23.6% to 209.7 million SME), the ASEAN region (5.2% to 524.4 million SME), South Asia (13.5% to 525.9 million SME), the EU-15 (15.2% to 90.5 million SME), and Turkey (3.5% to 35.0 million SME).

AD/CV Cases Advance on Power Transformers, Wind Towers, Washers, Hangers

AD Duty Deposits Now Required on Large Power Transformers from Korea. The International Trade Administration announced Feb. 10 a preliminary affirmative dumping determination on large power transformers from Korea. As a result the ITA will instruct U.S. Customs and Border Protection to begin collecting cash deposits or bonds based on the preliminary dumping margins, which range from 21.79% 5o 38.07%.

LPTs are typically used in high voltage electrical power transmission systems to increase, transfer or decrease the output voltage levels being transmitted to minimize the power lost during transmission. The scope of this investigation covers large liquid dielectric power transformers having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete. Incomplete LPTs are subassemblies consisting of the active part and any other parts attached to, imported with or invoiced with the active parts of LPTs. The active part of the transformer consists of one or more of the following when attached to or otherwise assembled with one another: steel core or shell, windings, electrical insulation between windings, and mechanical frame. The product definition encompasses all such LPTs regardless of name designation, including step-up transformers, step-down transformers, autotransformers, interconnection transformers, voltage regulator transformers, rectifier transformers and power rectifier transformers. Imports of subject merchandise are provided for under HTSUS subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540.

The ITA’s final AD duty determination is expected in July. If that determination and the International Trade Commission’s AD injury determination (due on or about Aug. 21) are both affirmative, the ITA will issue an AD duty order on subject merchandise.

Click here for DOC notice

AD/CV Cases on Wind Towers, Washers, Hangers Advance. The International Trade Commission has made preliminary affirmative antidumping and/or countervailing injury determinations on the following products.

- utility scale wind towers from China (AD/CV) and Vietnam (AD)
- large residential washers from Korea (AD/CV) and Mexico (AD)
- steel wire garment hangers from Taiwan (AD) and Vietnam (AD/CV)

As a result of these determinations, the International Trade Administration will continue its AD/CV duty investigations of these products.

DR-CAFTA Short Supply of Faux Suede

The Committee for the Implementation of Textile Agreements has determined that certain faux suede bonded to faux fur pile fabric is not available in commercial quantities in a timely manner in the DR-CAFTA countries. As a result, CITA is adding this product to the short supply list in DR-CAFTA Annex 3.25 in unrestricted quantities.

Click here for CITA notice

Medical Device Reporting for Importers, Etc., Subject of FDA Review

The Food and Drug Administration is seeking comments no later than April 16 on the proposed extension of an information collection associated with importer, manufacturer, user facility and distributor reporting concerning medical devices. FDA regulations require user facilities to report to the device manufacturer and FDA incidents where a medical device caused or contributed to a death or serious injury. Additionally, user facilities are required to annually submit via form FDA 3419 the number and summary of adverse events reported during the calendar year. Manufacturers of medical devices must report to FDA when they become aware of information indicating that one of their devices may have caused or contributed to death or serious injury or has malfunctioned in such a way that should the malfunction recur it would be likely to cause or contribute to a death or serious injury. Device importers report deaths and serious injuries to FDA and manufacturers. Importers report malfunctions only to the manufacturers, unless they are unknown, in which case the reports are sent to FDA.

Click here for FDA notice

Two Nominated as FMC Commissioners

President Obama announced Feb. 10 his intent to nominate the following individuals to be commissioners with the Federal Maritime Commission.

William Doyle is currently chief of staff at the Marine Engineers’ Beneficial Association and since April 2008 has also served as the director of permits, scheduling and compliance at the Office of the Federal Coordinator for Alaska Natural Gas Transportation Projects. From 2002 to 2008 he was the deputy general counsel and the director of government and legislative affairs of MEBA. Earlier in his career he served as a U.S. Coast Guard licensed marine engineer from 1992 to 2001.

Richard A. Lidinsky, Jr., is already FMC chairman but his term as a commissioner is set to expire June 30. Prior to joining the FMC Lidinsky worked in the maritime trade industry for nearly 40 years, holding a number of positions in both business and government. From 1986 to 2006 he worked at the global maritime company Sea Container Ltd., where he established its Washington, D.C., office and served as vice president for governmental affairs. From 1975 to 1986 he served as director of tariffs and national port affairs at the Maryland Port Administration. He has also served as a member of the Sealift Transportation Committee of the National Defense Transportation Association; as board director on the Defense, Transportation and Port Security Committee of the British-American Business Association; and as a high-level expert to the U.S. NATO Delegation on the Ports and Intermodal Transportation Committee.

Labor Dept. Amends Regulations on Non-Immigrant Workers

The Department of Labor has issued a final rule that, effective April 23, will amend its regulations governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment as well as the enforcement of the obligations applicable
to employers of such workers. This rule revises the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2B status.

The H-2B program allows the entry of foreign workers into the U.S. on a temporary basis when qualified U.S. workers are not available and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.

According to a DOL press release, the final rule provides employers with greater flexibility and certainty throughout the application and recruitment processes. It also improves U.S. workers’ access to jobs by creating a national registry for all H-2B job postings, increasing the amount of time during which U.S. workers must be recruited and requiring the rehiring of former employees when available. In addition, H-2B program benefits such as transportation costs and wages will be extended to U.S. workers performing substantially the same work as H-2B workers.

Click here for DOL final rule

U.S. Agricultural Exports Reached Record High in 2011, USDA Reports

The Department of Agriculture announced Feb. 10 that U.S. farm exports rose $20.5 billion in 2011 to a record $136.3 billion. Grains were the biggest contributor, reaching an all-time high of $37.7 billion, a $9.2 billion increase over 2010. Cotton experienced the biggest year-to-year gain, up 44% to a record $8.5 billion. Dairy ($4.8 billion), beef ($5.4 billion) and pork ($6 billion) exports also set records in 2011, and the volume of beef shipments surpassed levels last seen in 2003, the last year before a detection of bovine spongiform encephalopathy (mad cow disease) in Washington state disrupted U.S. trade.

Energy Conservation Standards for Microwave Ovens Proposed for Revision

The Department of Energy has issued a supplemental proposed rule to revise its energy conservation standards for standby mode and off mode for microwave ovens. The proposed standards prescribe the maximum allowable energy use when microwave ovens are in either of these modes and, if adopted, would apply to all covered microwaves manufactured in or imported into the U.S. on or after April 1, 2014.

Comments on this proposal are due no later than April 16. In addition, the DOE will hold a public meeting (which will also be broadcast as a webinar) on this proposal March 14.

Click here for DOE proposed rule

Test Procedures for Air Conditioners and Heat Pumps Subject of Feb. 14 Meeting

The Department of Energy will hold a public meeting Feb. 14 in Washington, D.C., to discuss methodologies and gather comments on testing residential central air conditioners and heat pumps designed to use hydrochlorofluorocarbon-22 (R-22) refrigerant. This meeting will also be broadcast via webinar.

The Energy Policy and Conservation Act of 1975 established the Energy Conservation Program for Consumer Products Other Than Automobiles, which consists of four activities: testing, labeling, federal energy conservation standards, and certification, compliance and enforcement. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for certifying to DOE that their products comply with applicable energy conservation standards adopted pursuant to EPCA and for representing the efficiency of those products.

Effective Jan. 1, 2010, the Environmental Protection Agency banned the sale and distribution of those central air conditioning systems and heat pump systems manufactured after that date that are designed to use R-22 refrigerant. EPA’s rulemaking included an exception for the manufacture and importation of replacement components as long as they are not pre-charged with R-22. Because complete R-22 systems can no longer be distributed, manufacturers inquired how to test and rate condensing units and outdoor units using R-22 refrigerant. The DOE is therefore holding this public meeting to gather information on this issue.

Click here for notice of DOE meeting

DOT Notes Delays in Processing Special Permits Applications

The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration has published a list of special permit applications that have been in process for 180 days or more. For each application the reason(s) for delay and the expected completion date are provided. Special permits grant exceptions from the Hazardous Material Regulations, including for motor vehicles, rail freight, cargo vessels, cargo aircraft and passenger-carrying aircraft.

Click here for DOT notice

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