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November 7 2012 Issue

Wednesday, November 07, 2012
Sandler, Travis & Rosenberg Trade Report

Export Enforcement Rules Would be Tightened Under BIS Proposal

The Bureau of Industry and Security is soliciting comments through Jan. 7, 2013, on a proposed rule that would make the following changes to the Export Administration Regulations to better resolve administrative enforcement proceedings in a timely manner and provide more efficient notice of administrative charging letters.

Voluntary Self-Disclosures. The final, comprehensive narrative account required in voluntary self-disclosures of violations of the EAR would have to be submitted to the Office of Export Enforcement within 180 days of the initial VSD notification. BIS explains that currently, because there is no time limit, initial notifications are “too often” not promptly followed by comprehensive narrative accounts, requiring OEE to maintain open files on VSDs for extended periods of time without making sufficient progress toward resolving the matter disclosed.

The 180-day deadline could be extended if warranted, although OEE would be able to place conditions on an extension such as a requirement for the disclosing person to undertake specific interim remedial compliance measures. BIS notes that failure to meet either the 180-day deadline or an extended deadline would not be an additional violation of the EAR but could reduce or eliminate the mitigating impact of the VSD.

Charging Letters. The procedures for instituting administrative enforcement proceedings include issuing a charging letter, which sets forth the essential facts about the alleged violations as well as certain other information about the case and informs the respondent that failure to answer the charges will be treated as a default. The proposed rule would add as an authorized method of notifying respondents of the issuance of a charging letter the sending of a copy of the letter to the respondent’s last known address by express mail or by a commercial courier or delivery service.

Respondents are required to answer a charging letter within 30 days of being served with notice of its issuance. Currently the date of service is determined by the date of delivery or of attempted delivery if delivery is refused. BIS proposes to remove the phrase “if delivery is refused,” which would eliminate the requirement that an attempted delivery involve documentation that delivery was refused. 

CBP Maritime Operations Resume in Port of New York/Newark

On Nov. 5 U.S. Customs and Border Protection conducted cargo container inspections at the port of New York/Newark for the first time since it was struck by Hurricane Sandy. Waterways and CBP facilities are now open with restrictions in this area, with damage assessments still ongoing, and are open and operational in the southern New England region. Cargo ships and containers are once again being processed at the port of New York/New Jersey in what one official called “the next step in CBP restoring its maritime operations here in the greater New York City area and returning to business as usual.” 

Updated Guidebook on Automated Commercial Environment

U.S. Customs and Border Protection has posted to its Web site an updated guidance document on a wide range of topics concerning the Automated Commercial Environment. Questions and answers in this 100+ page guide are divided into the following categories.

- systems background
- Automated Broker Interface
- general
- application
- Cargo Systems Messaging Service
- carriers
- Document Image System
- e-Manifest: Rail and Sea
- e-Manifest: Truck
- Cargo Release/Simplified Entry Pilot: Policy
- Cargo Release/Simplified Entry Pilot: Technical
- Entry Summary, Accounts and Revenue
- importer security filing
- periodic monthly statement
- reports
- post-summary corrections 

Investigation of DR-CAFTA Labor Petition Against Honduras Extended

The Department of Labor has extended its investigation into a petition filed last March alleging that the government of Honduras has failed to effectively enforce its labor laws and comply with its commitments under DR-CAFTA. The DOL states that an extension is needed due to the scope of the submission, which covers 17 distinct fact patterns in three different economic sectors (manufacturing, agriculture and port operations) and three different regions of Honduras; the scope of the violations alleged, which cover freedom of association, the right to organize, the right to bargain collectively, child labor, and acceptable conditions of work as well as threats and violence against trade unionists; and the large amounts of information received from the government and stakeholders. The DOL adds that it will continue to give this matter the highest priority in order to complete its review as expeditiously as possible.

AD Notices: Silicomanganese, Ether

Agency: International Trade Administration.
Commodity: Silicomanganese.
Country: Brazil.
Nature of Notice: Revocation of antidumping duty order, effective Sept. 14, 2011.

Agency: International Trade Administration.
Commodity: Ethylene glycol monobutyl ether.
Country: U.S.
Nature of Notice: First request for NAFTA binational panel review concerning Mexico’s antidumping duty order on this product.

Guidance on Removing an RLF Entry From an ABI Statement

U.S. Customs and Border Protection has issued guidance on removing a remote location filing entry from an ABI statement. RLF regulations require the broker or importer to direct the payment of RLF transactions using the Automated Clearinghouse or other electronic payment authorized by CBP. However, there are circumstances under which the RLF entry must be removed from the ABI statement, including cases of a duplicate entry or when the importer refuses to pay the broker for the duties, taxes and fees. In these cases, the following steps will be used.

- If the entry summary has already been scheduled on a preliminary statement, the filer will advance the statement date to provide time for CBP to process the removal.

- The filer will submit the statement removal request in writing to the Entry Division. The request will include the entry number, statement number and reason for removal. It is critical that CBP process the request as soon as possible to enable the importer or filer to make alternative payment arrangements.

- In cases where the entry was removed from the statement because the importer is refusing to pay the broker (a) CBP will remove the entry summary from the statement, (b) the filer will submit the entry summary package to CBP with a cover letter citing Treasury Decision 89-49 (or, if the filer is not permitted at the specific port of entry or the entry summary is for a Center of Excellence and Expertise participant, the filer will mail, fax or email (as directed by the port or Center) the paper entry summary package to the port or Center), (c) CBP will accept the entry summary and notify the filer that the it has been removed from the statement, (d) CBP will initiate a “No Pay” liquidated damage case against the entry summary (or, if the importer pays CBP prior to the case initiation, a “Money Late File” liquidated damage case will be initiated), and (e) if the importer subsequently chooses to pay the duties on this entry summary, the port may accept payment on the entry via single pay.

CBP notes that ABI filers have the ability to remove an entry summary from an ACH statement until the entry summary is scheduled for payment on a preliminary statement. 

Topics of Discussion Sought for New U.S.-East Africa Commercial Dialogue

The Department of Commerce is inviting public comment and recommendations no later than Nov. 19 on the issues upon which the new U.S.-East African Community Commercial Dialogue should focus. This Dialogue will be a consultative mechanism through which the two sides will promote business opportunities in key sectors linked to EAC development goals, foster an open and predictable business climate by providing a forum for addressing non-tariff trade barriers and other constraints to trade, support the EAC’s integration process by facilitating stronger private sector ties between companies in the U.S. and the EAC and throughout the EAC region, and increase private sector input into the U.S.-EAC trade and investment partnership.

The DOC is considering proposing two principal areas of focus for work under the Commercial Dialogue: the promotion of business opportunities in key growth sectors, including energy, transportation infrastructure, information and communication technology, and agribusiness; and fostering an open and predictable business climate by addressing trade facilitation, customs and logistics, intellectual property rights, standards and transparency. The DOC is requesting comments on these proposed areas of focus and on the development of an agenda for the Dialogue from U.S. companies, U.S. trade associations (including chambers of commerce in East Africa), and EAC diaspora organizations in the U.S. 

CBP Reviewing Information Collection on Administrative Rulings

U.S. Customs and Border Protection is accepting comments through Jan. 7, 2013, on the proposed extension without change of an information collection required to respond to requests by importers and other interested persons for the issuance of administrative rulings. These rulings pertain to the interpretation of applicable laws related to prospective and current transactions involving classification, marking and country of origin. The information collection is also necessary to enable CBP to make proper decisions regarding the issuance of binding rulings that modify or revoke prior CBP binding rulings.

Comments should address whether this collection is necessary for the proper performance of CBP’s functions, including whether the information has practical utility; the accuracy of CBP’s estimates of the burden of the collection and ways to minimize that burden, including the use of automated collection techniques or other forms of information technology; and ways to enhance the quality, utility and clarity of the information collected. 

Ocean Transportation Intermediary License Applicants

The Federal Maritime Commission has provided notice that the following applicants have filed applications for licenses as non-vessel-operating common carrier and/or ocean freight forwarder ocean transportation intermediaries. Persons knowing of any reason why any of these applicants should not receive a license are requested to contact the FMC.

- Balkans Air Corporation, Brooklyn, N.Y.
- Encompass Global Logistics LLC, Irvine, Calif.
- Ghanem Forwarding LLC, Halethorpe, Md.
- Motoni Global Investment Company Incorporated d/b/a Motoni Global Travel/Shipping, Forest Park, Ga.
- North Star Container LLC d/b/a NS World Logistics, Edina, Minn.
- Omega’s Five Inc., Miami, Fla.
- Tosie LLC, Houston, Texas 

Civil Nuclear Trade Committee Renewed, Seeks Members

The International Trade Administration has announced the renewal of the charter for its Civil Nuclear Trade Advisory Committee. The CINTAC advises the ITA on the following issues.

- trade policy development and negotiations relating to U.S. civil nuclear exports

- the effect of U.S. and foreign government policies, regulations, programs and practices on the export of U.S. civil nuclear goods and services

- the competitiveness of U.S. industry and its ability to compete for civil nuclear products and services opportunities in international markets, including specific problems in exporting

- the identification of priority civil nuclear products and services markets with the potential for high immediate returns for U.S. exports, as well as emerging markets with a longer-term potential for U.S. exports

- strategies to increase private sector awareness and effective use of U.S. government export promotion programs and how such programs may be more efficiently designed and coordinated

- the development of complementary industry and trade association export promotion programs, including ways for greater or more effective coordination of U.S. government efforts with private sector organizations’ civil nuclear industry export promotion efforts

- the development of U.S. government programs to encourage producers of civil nuclear products and services to enter new foreign markets

The ITA is inviting by no later than Dec. 7 nominations for up to 40 members to serve a two-year term on this committee. Members must represent U.S. entities involved in the export of civil nuclear products and services and reflect the diversity of this sector, including in terms of entities’ size and geographic location, and must be drawn from U.S. civil nuclear manufacturing and services companies, U.S. utilities, U.S. trade associations and other U.S. organizations in the civil nuclear sector. Each member must be a U.S. citizen and must not be registered as a foreign agent. No member may represent a company that is majority owned or controlled by a foreign government entity or entities. 

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