News
Print PDF

April 4 2012 issue

Tuesday, April 03, 2012
Sandler, Travis & Rosenberg Trade Report

Act Now to Secure Duty Savings on Imported Goods
Miscellaneous Trade Bills Must be Introduced by April 30

Companies interested in extending or establishing duty breaks on their imports have less than a month to make sure their goods are included in this year’s miscellaneous trade bill process. The MTB can save importers up to $1.5 million in duties over three years but all current MTB provisions are scheduled to expire Dec. 31, 2012. Congress has announced that all legislation seeking to continue or create duty suspensions must be introduced by April 30.

The MTB process is open to companies importing goods that have no equivalent U.S. domestic production and for which duties paid are less than $500,000 per year. Past MTBs have included products such as chemicals, yarns, electronic components and numerous other manufacturing inputs as well as food and finished consumer products such as food preparations, footwear and sporting goods. The window of opportunity for such duty savings is available only once every couple of years.

Professionals at Sandler, Travis & Rosenberg, P.A., have exceptional experience with the MTB process and can help your company identify products that may qualify for duty suspension, draft legislation, help find members of Congress to sponsor it and work closely with government agencies during the vetting process.

To learn more about the MTB via a pre-recorded webinar presented by ST&R’s David Olave, click here. For questions, or to get started with the MTB process, please contact David Olave at dolave@strtrade.com or Nicole Bivens Collinson at nbc@strtrade.com.

The U.S. Doth Protest Too Much, Methinks
by Marcus R. Cohen, Of Counsel with Sandler, Travis and Rosenberg, P.A., and faculty member of the TRACE Anti-bribery Specialist Accreditation program
(originally posted March 30 on the TRACE blog - http://traceblog.org/)

U.S. government coffers continue to overflow with spoils from Foreign Corrupt Practices Act convictions, but recently domestic corruption has made the headlines.

Last year, the U.S. Department of Justice and the U.S. Securities and Exchange Commission together collected over half a billion dollars in FCPA-related fines. And FCPA enforcement continues to be a top priority in 2012. In fact, Uncle Sam is strengthening his resolve to root out foreign corruption because, as Assistant Attorney General Lanny A. Breuer pointed out, FCPA enforcement “serves not only to hold accountable those who corrupt foreign officials, but in doing so it also serves to make the international business climate more transparent and fair for everyone.” Attorney General Eric Holder simplified the issue, declaring that “corruption undermines the promise of democracy. It imperils development, stability, and faith in our markets. And it weakens the rule of law.”

So, the United States, as the stalwart champion of international wholesomeness and global leader in anti-corruption prosecutions, must be the purest of the pure, right? Well…

Transparency International’s 2011 Corruption Perceptions Index, the universally-accepted barometer of public sector cleanliness, gave the United States a score of 7.1, which is at the bottom edge of the top third of countries. To put it in context, the U.S. lagged behind Barbados, Chile and Qatar in terms of its perceived levels of public sector corruption. At least we are ranked higher than Estonia. But just barely.

In March the findings of the State Integrity Investigation were released and it appears that Transparency International’s ranking was actually pretty generous. The State Integrity Investigation, a collaboration of the Center for Public Integrity, Global Integrity and Public Radio International, provided a domestic corruption snapshot by state and the results are fairly grim. States were graded using 330 separate metrics, including a review of lobbying disclosures, political financing laws and ethics enforcement. Sadly, more than half the stars on the flag received grades below a D+. Our national corruption report card included eight F’s.

All of which begs the question: Is it appropriate for a nation with marks so low that it couldn’t get into integrity community college to serve as international anti-corruption prosecutor-in-chief? Whether it’s appropriate or not, the era of expanded FCPA enforcement is here to stay.

Argentina’s Import Restricting Policies and Practices Blasted at WTO

The U.S. and 13 other World Trade Organization members complained to Argentina at a March 30 meeting of the WTO Goods Council about policies and practices they say have resulted in restrictions on imports into that country. A joint statement specifically named the overly broad use of non-automatic import licensing, trade balancing requirements and pre-registration and pre-approval of all imports. Press reports indicate that a number of other WTO members did not sign on to the joint statement but expressed similar concerns at the meeting.

The statement points out that since 2008 Argentina has greatly expanded the list of products subject to non-automatic import licensing requirements. At present, an import license is required for approximately 600 eight-digit tariff lines, including laptops, home appliances, air conditioners, tractors, machinery and tools, autos and auto parts, plastics, chemicals, tires, toys, footwear, textiles and apparel, luggage, bicycles and paper products. WTO rules require non-automatic licensing requirements to not have undue trade-restrictive or trade-distortive effects on imports and to comply with all relevant provisions of the Agreement on Import Licensing Procedures, including a maximum processing period of 60 days. However, the statement asserts, many companies report that Argentina’s non-automatic import licensing scheme does not meet either of these criteria, with wait periods of six months and longer and some instances of import licenses being denied altogether without justification or explanation.

On Feb. 1 Argentina implemented regulations requiring pre-registration, review and approval of each and every import transaction. According to the joint statement, these regulations are creating long delays and resulting in huge costs for many exporters, and it appears that this new system is operating as a de facto import restricting scheme on all products.

Finally, the statement highlights Argentina’s informal trade balancing policy, whereby companies seeking to import products must agree to export, dollar for dollar, goods of an equal or greater value or establish production facilities in Argentina. In addition, many companies report being told by Argentine government officials that they must agree to undertake such trade balancing commitments prior to receiving authorization to import goods. There appears to be no official directive or resolution setting out these requirements, the statement notes, but high-level officials have been quoted in the press as saying quite clearly that their purpose is to improve Argentina’s trade balance by restricting imports and promoting exports.

The 14 WTO members state that Argentina has failed to adequately address these concerns and instead has introduced new measures and made existing ones more problematic for foreign exporters. These actions clearly limit the growth-enhancing prospects for trade, the statement adds, and are “unbefitting” a member of the G-20 that has committed to refrain from raising new barriers to trade and investment. The statement therefore calls on Argentina to either immediately end these measures and practices or provide a detailed written explanation of how they are consistent with WTO rules. The complainants also reserved the right to take further action, which could use of the WTO dispute settlement process, if necessary.

Bricks, Minerals Added to List of Imports Requiring Contractor Certification as to Child Labor

The Department of Labor has updated its list of products requiring federal contractor certification as to forced or indentured child labor. This update adds bricks from Afghanistan and cassiterite and coltan from the Democratic Republic of the Congo. The department has also received requests to (a) add cottonseed from Uzbekistan and carpets from India, (b) remove garments and embroidered textiles (zari) from India, and (c) expand the list to include end products if there is a reasonable basis to believe that their component parts might have been mined, produced or manufactured by forced or indentured child labor, regardless of the stage in the supply chain in which such labor might have been used.

Under Executive Order 13126 of June 1999, federal agencies may not acquire products produced by forced or indentured child labor. As a result, federal contractors who supply the products on the DOL list must certify that they have made a good faith effort to determine whether forced or indentured child labor was used to mine, produce or manufacture them and that, on the basis of those efforts, they are unaware of any such use of child labor. It should be noted that this list is different from the one issued under the Trafficking Victims Protection Reauthorization Act of 2005.

With this revision, the products currently included on the DOL list are as follows.

- bamboo from Burma
- beans (green, soy, yellow) from Burma
- Brazil nuts/chestnuts from Bolivia
- bricks from Afghanistan, Burma, China, India, Nepal and Pakistan
- carpets from Nepal and Pakistan
- cassiterite from DRC
- coal from Pakistan
- coca (stimulant plant) from Colombia
- cocoa from Cote d’Ivoire and Nigeria
- coffee from Cote d’Ivoire
- coltan from DRC
- cotton from Benin, Burkina Faso, China, Tajikistan and Uzbekistan
- cottonseed (hybrid) from India
- diamonds from Sierra Leone
- electronics from China
- embroidered textiles (zari) from India and Nepal
- garments from Argentina, India and Thailand
- gold from Burkina Faso
- granite from Nigeria
- gravel (crushed stones) from Nigeria
- hand-woven textiles from Ethiopia
- pornography from Russia
- rice from Burma, India and Mali
- rubber from Burma
- shrimp from Thailand
- stones from India and Nepal
- sugarcane from Bolivia and Burma
- teak from Burma
- tilapia (fish) from Ghana
- tobacco from Malawi
- toys from China

Click here for DOL notice
http://www.ofr.gov/OFRUpload/OFRData/2012-07961_PI.pdf

Of Note: Trade Talks, Product Safety

S. Korea, Indonesia announce launch of free trade talks
http://www.koreaherald.com/national/Detail.jsp?newsMLId=20120328001308

United States and Tunisia Discuss New Approaches to Foster Trade and Investment
http://www.ustr.gov/about-us/press-office/press-releases/2012/march/united-states-and-tunisia-discuss-new-approaches-fos

Joint Readout of the 10th United States and Sri Lanka TIFA Joint Council Meeting
http://www.ustr.gov/about-us/press-office/press-releases/2012/march/joint-readout-10th-united-states-and-sri-lanka-tifa

More Companies Penalized For Not Reporting Safety Defects
http://boston.cbslocal.com/2012/03/26/more-companies-penalized-for-not-reporting-safety-defects/

AD/CV Notices: Request Reviews, Pipe, Shrimp, Mushrooms, PET Film, Uranium, Gift Boxes, Isocyanurates, Fish, Polyester Fiber, Hot-Rolled Steel

Agency: ITA.
Nature of Notice: Opportunity to request administrative reviews of AD or CV duty orders on the following products covering the period April 1, 2011, through March 31, 2012.
- HEDP from India and China (AD)
- activated carbon from China (AD)
- steel threaded rod from China (AD)
- frontseating service valves from China (AD)
- magnesium metal from China (AD)
- non-malleable cast iron pipe fittings from China (AD)
- fresh and chilled Atlantic salmon from Norway (CV; period of review Jan. 1 through Dec. 31, 2011)
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7862.pdf

Agency: ITA.
Commodity: Welded carbon steel standard pipe.
Country: Turkey.
Nature of Notice: Preliminary results of administrative review of CV duty order for the period Jan. 1 through Dec. 31, 2010.
Details: Total net countervailable subsidy rates for the two reviewed producer/exporters are 0.27% and 0.35%, both of which are de minimis. If these rates stand in the final results, no CV duties will be assessed on entries of subject merchandise during the period of review and no CV cash deposits will be required for entries after the date the final results are published.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7846.pdf

Agency: ITA.
Commodity: Frozen warmwater shrimp.
Country: Brazil, India and Thailand.
Nature of Notice: Initiation of administrative reviews of AD duty orders for the period Feb. 1, 2011, through Jan. 31, 2012, and request for revocation of order concerning India with respect to three exporters.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7874.pdf

Agency: ITA.
Commodity: Preserved mushrooms.
Country: China.
Nature of Notice: Initiation of new shipper review of AD duty order for the period Feb. 1, 2011, through Jan. 31, 2012.
Details: This review could result in a specific AD duty rate for the shipper under review, which may be higher or lower than the China-wide rate to which it is currently subject.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7966.pdf

Agency: ITA.
Commodity: Polyethylene terephthalate film, sheet and strip.
Country: India.
Nature of Notice: Rescission of administrative review of CV duty order for the period Jan. 1 through Dec. 31, 2010, because there were no entries of subject merchandise produced or exported by the entity reviewed during this period.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7871.pdf

Agency: ITA.
Commodity: Low enriched uranium.
Country: France.
Nature of Notice: Final results of changed circumstances review of AD duty order.
Details: ITA will extend by 18 months the deadline for the reexportation of one entry.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7868.pdf

Agency: ITA/ITC.
Nature of Notice: Initiation of sunset reviews of AD duty orders on folding gift boxes from China and seamless pipe and pressure pipe from Germany.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7863.pdf

Agency: ITA.
Commodity: Chlorinated isocyanurates.
Country: China.
Nature of Notice: Rescission of new shipper review of AD duty order for the period June 1, 2011, through Feb. 29, 2012.
Details: Shipper had no entries of subject merchandise during the period of review.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7843.pdf

Agency: ITA.
Commodity: Frozen fish fillets.
Country: Vietnam.
Nature of Notice: Initiation of new shipper reviews of AD duty order for the period Aug. 1, 2011, through Jan. 31, 2012.
Details: This review could result in new, specific AD duty rates for three producer/exporters.
Link: http://www.ofr.gov/OFRUpload/OFRData/2012-07979_PI.pdf

Agency: ITA.
Commodity: Polyester staple fiber.
Country: China.
Nature of Notice: Extension from April 2 to June 29 of time limit for preliminary results of administrative review of AD duty order for the period June 1, 2010, through May 31, 2011.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7849.pdf

Agency: ITA.
Commodity: Hot-rolled flat-rolled carbon-quality steel products.
Country: Russia.
Nature of Notice: Extension from April 2 to May 24 of time limit for preliminary results of administrative review of suspension agreement.
Link: http://www.gpo.gov/fdsys/pkg/FR-2012-04-02/pdf/2012-7861.pdf

IPR Enforcement Actions on Mobile Devices, Dental Appliances, Computer Devices, LCD Devices

New IPR Infringement Petition on Mobile Devices. The International Trade Commission received March 29 a petition requesting that it institute a Section 337 investigation regarding certain cameras and mobile devices, related software and firmware, and components thereof and products containing same. The complainant is HymanEyes Technologies Ltd. and the proposed respondents are located in Japan, the United Kingdom and the U.S.

Section 337 investigations primarily involve claims regarding intellectual property rights violations by imported goods, including the infringement of patents, trademarks and copyrights. Other forms of unfair competition involving imported products, such as misappropriation of trade secrets or trade dress and false advertising, may also be asserted. The primary remedy available in Section 337 investigations is an exclusion order that directs U.S. Customs and Border Protection to stop infringing imports from entering the U.S. In addition, the ITC may issue cease and desist orders against named importers and other persons engaged in unfair acts that violate Section 337, including selling infringing imported articles out of U.S. inventory.

New Patent Infringement Investigation of Orthodontic Aligners. The International Trade Commission has instituted investigation 337-TA-833 to determine whether imports of certain digital models, digital data and treatment plans for use in making incremental dental positioning adjustment appliances (orthodontic aligners), the appliances made therefrom, and methods of making the same are violating Section 337 of the 1930 Tariff Act by reason of patent infringement. The complainant, Align Technology Inc., requests that after this investigation the ITC issue cease and desist orders, which would require the named respondents to cease actions that violate Section 337, including selling infringing imported articles out of U.S. inventory. The respondents in this investigation are located in Pakistan and the U.S.

Potential IPR Probe of Computer Devices Evaluated for Public Interest Issues. The International Trade Commission is requesting comments no later than April 10 on any public interest issues raised by a Section 337 intellectual property rights infringement complaint filed on behalf of Technology Properties Limited LLC against certain computer and computer peripheral devices and components thereof and products containing the same. Comments should address whether the issuance of exclusion orders and/or cease and desist orders pursuant to this complaint would affect the public health and welfare in the U.S., competitive conditions in the U.S. economy, the production of like or directly competitive articles in the U.S., or U.S. consumers. In particular, the ITC is interested in comments that:

- explain how the articles potentially subject to the orders are used in the U.S.;

- identify any public health, safety or welfare concerns in the U.S. relating to the potential orders;

- identify like or directly competitive articles that the complainant, its licensees or third parties make in the U.S. that could replace the subject articles if they were to be excluded;

- indicate whether the complainant, the complainant’s licensees and/or third-party suppliers have the capacity to replace the volume of articles potentially subject to the requested orders within a commercially reasonable time; and

- explain how the requested orders would impact U.S. consumers.

Click here for ITC notice
http://www.ofr.gov/OFRUpload/OFRData/2012-07936_PI.pdf

Comments Sought in Patent Infringement Probes of LCD Devices. The ITC has determined to review certain portions of the partial affirmative patent infringement finding issued by the presiding administrative law judge in investigations 337-TA-741/749 of certain liquid crystal display devices, including monitors, televisions, modules and components thereof. The ITC is also soliciting comments on the form of remedy, if any, that should be ordered (i.e., an exclusion order and/or cease and desist order); the effect any such remedy would have on the public health and welfare, competitive conditions in the U.S. economy, U.S. production of articles that are like or directly competitive with those that are subject to this investigation, and U.S. consumers; and the amount of the bond under which subject articles could enter the U.S. during the 60-day period the president has to review any ITC remedy order.

Click here for ITC notice
http://www.ofr.gov/OFRUpload/OFRData/2012-07628_PI.pdf

Foreign Regulatory Changes Could Affect Exports of Bottles, Drugs, Insect Repellents, Pesticides, Sanitizing Products, Vessels, Tobacco, Fertilizers, Coffee Beans

According to the National Institute of Standards and Technology, the World Trade Organization has been notified of regulatory changes that may affect exports of specific products to the following countries. More details, including regulatory texts, can be accessed here (https://tsapps.nist.gov/notifyus/data/request/new_notifications.cfm). For information on how these restrictions may affect your business, contact ST&R.

Argentina – prohibition on importation, manufacture and marketing of feeding bottles containing bisphenol A (effective March 5)

Argentina – information to be included in directions for use and on labels of over-the-counter medicinal preparations

Argentina – registration and authorization requirements for marketing of insect repellents for human use

Brazil – draft technical regulation on pesticides, disinfectants and wood preservatives containing tebuthiuron (comments due by April 14)

Brazil – draft resolution establishing procedures and technical requirements for registration of sanitizing products (comments due by May 19)

Chile – draft regulation on rules applicable to imports of ozone-depleting substances (comments due by April 19)

Colombia – March 8 issuance of draft resolution on sanitary requirements to be met by vessels engaged in harvesting, freezing or processing of fishery products

European Union – March 8 publication of amended directive on manufacture, presentation and sale of tobacco products

Trinidad and Tobago – label requirements for fertilizers (comments due by May 11)

Uganda – final draft standard specifying requirements for green coffee beans (comments due by May 29)

Labor Advisory Committee for Trade Negotiations and Trade Policy to Meet May 14

The Labor Advisory Committee for Trade Negotiation and Trade Policy will hold a closed meeting May 14 in Washington, D.C. This meeting will include a review and discussion of current issues that influence U.S. trade policy, and potential U.S. negotiating objectives and bargaining positions in current and anticipated trade negotiations will be discussed.

Click here for DOL notice
http://www.ofr.gov/OFRUpload/OFRData/2012-07965_PI.pdf

Monthly Surface Trade with Canada and Mexico Up Nearly 2% in January

U.S. monthly surface transportation trade in goods with NAFTA partners Canada and Mexico rose 1.8% in January, according to statistics released March 27 by the Department of Transportation. The January total of $75.5 billion was also up 11.5% from a year before. Over the last ten years total surface transportation trade with Canada and Mexico has risen 82.8%, including a 96.5% gain for exports and a 72.7% increase for imports.

Surface transportation includes freight movements by truck, rail, pipeline, mail, foreign-trade zones and other modes and in January accounted for 86.3% of U.S. trade by value with Canada and Mexico. Surface trade between the U.S. and Canada totaled $44.1 billion, down 0.2% from December but up 9.6% from a year before. Exports fell 1.7% for the month but gained 7.7% from the previous January, while imports saw a 1.1% monthly increase and an 11.3% rise year-on-year. U.S.-Mexico surface transportation trade totaled $31.4 billion, up 4.6% from December and 14.3% from the previous year. Exports and imports gained 8.7% and 1.4%, respectively, for the month and rose 17.4% and 11.7% over January 2011.

Click here for DOT notice
http://www.bts.gov/press_releases/2012/bts015_12/pdf/bts015_12.pdf

To get news like this in your inbox daily, subscribe to the Sandler, Travis & Rosenberg Trade Report.

Customs & International Headlines