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November 16 2012 Issue

Friday, November 16, 2012
Sandler, Travis & Rosenberg Trade Report

CBP Commercial Operations Advisory Committee to Meet Dec. 4 in Washington

The Advisory Committee on Commercial Operations of U.S. Customs and Border Protection will hold an open meeting Dec. 4 in Washington, D.C. The COAC will hear from the following subcommittees on the topics listed and will then review, deliberate, provide observations and formulate recommendations on how to proceed on those topics. 

- Trade Facilitation Subcommittee: CBP’s Trade Transformation initiatives, the role of the customs broker in regard to the Centers of Excellence and Expertise, and results from a COAC industry survey regarding the expected benefits of the CEEs. 

- Role of the Broker Subcommittee: Various aspects of CBP’s effort to revise the role of the customs broker in the CBP regulations, which includes whether the initiative in the area of continuing education should be pursued, requirements for brokers to obtain bona fides for their importer clients before transacting customs business on their behalf, and the possible revision of CBP Form 5106 (Importer Identification Input Record). 

- ACE Strategic Communications Working Group: How CBP should proceed in communicating with the trade community as the agency shifts from ACS to ACE. 

- One U.S. Government at the Border Subcommittee: How to address a “One U.S. Government” approach to trusted trader programs and the subcommittee’s term-end report. 

Intellectual Property Rights Enforcement Subcommittee: Guidance on new tools to be used at ports of entry to help identify counterfeit products, the distribution chain management and serialization pilot project, and modification of the CBP recordation database of federally registered trademarks, trade names and copyrights. 

- Antidumping/Countervailing Duties Subcommittee: Term-end report and the impact of trade enforcement and trade intelligence initiatives. 

- Bond Subcommittee: Proposed modifications to CBP Form 5106, liquidated damages/mitigation guidelines, and the use of single transaction bonds when additional security is merited. The subcommittee will also respond to a CBP request to look into the possibility of issuing bonds prior to the foreign departure of goods intended for importation into the United States. 

- Update from CBP’s Agriculture Programs and Trade Liaison on the July 2012 USDA/Animal Plant Health Inspection Service and CBP Joint Stakeholder Conference. 

CBP states that prior to the COAC taking action on any of these topics members of the public will have an opportunity to provide comments orally or, for comments submitted electronically during the meeting, by reading the comments into the record. To facilitate public participation, CBP is requesting that public comments on these issues be submitted in writing no later than Nov. 26. 

The COAC will also discuss the following initiatives and subcommittee topics. 

- the National Strategy for Global Supply Chain Security 

- the 21st Century Border Management and Beyond the Border initiatives 

- the Air Cargo Advance Screening pilot, including the operational involvement of freight forwarders and next steps in drafting a proposed rule 

- incentives for U.S. exporters to participate in the Customs-Trade Partnership Against Terrorism

GAO Identifies Ways to Improve Maintenance of Marine Freight Transportation Infrastructure

The Government Accountability Office released this week a report on the challenges that federal agencies face in maintaining and improving the infrastructure associated with the Marine Transportation System. The MTS comprises navigable waterways, which are overseen by the Army Corps of Engineers, as well as ports and port connectors, which are under the purview of the Department of Transportation. 

According to the report, existing challenges include the condition of aging structures that support navigation and transportation, which has resulted in deteriorating performance and costly delays to shippers. There is also a growing backlog of maintenance projects but insufficient funding to complete them and no system-wide strategy for prioritizing expenditures. Other concerns include uncertainty concerning the Panama Canal expansion and its potentially significant impact on the MTS as well as a renewed focus on ports and their importance to the U.S. economy. 

The report identifies two efforts in particular that provide opportunities to improve the effectiveness of federal support to MTS infrastructure. First, the recently enacted Moving Ahead for Progress in the 21st Century Act will focus efforts on improving freight mobility and the surface infrastructure that supports it but also provides an opportunity to better coordinate MTS investments system-wide. Besides establishing a framework for a national freight policy, MAP-21 requires DOT to develop a National Freight Strategic Plan in consultation with appropriate state DOTs and other appropriate private and public stakeholders. The GAO recommends that as part of this process DOT consider all MTS segments and coordinate the prioritization of infrastructure investments with the Corps of Engineers to ensure that limited resources are efficiently targeted and invested. 

Second, the Committee on the Marine Transportation System, a partnership of federal agencies chaired by DOT, has the opportunity to take further actions to help ensure the efficacy of its 2008 National Strategy for the MTS. Specifically, the report states, DOT should ensure that this strategy (a) is reviewed and updated to reflect new and emerging challenges, (b) establishes accountability mechanisms such as clear and desired results and outcome-related performance measures, and (c) establishes and implements a schedule for the regular reporting of progress made in addressing the strategy’s 34 recommendations to improve the MTS.

Dates and Deadlines: Information Technology Agreement, GSP, Air Cargo, Magnets

Following are highlights of regulatory effective dates and deadlines and federal agency meetings coming up in the next week. 

Nov. 19 – comments on proposed mandatory federal safety standard on small, high-powered magnet sets 

Nov. 19 – effective date of CBP final rule implementing U.S.-Peru FTA 

Nov. 19 – comments on topics for discussion in U.S.-East African Community Commercial Dialogue 

Nov. 20 – comments on ITC report on proposed expansion of Information Technology Agreement 

Nov. 21 – petitions requesting waivers of the GSP competitive need limitations 

Nov. 23 – applications to participate in the Air Cargo Advance Screening pilot 

Nov. 23 – comments on proposed closure of Jamieson Line, N.Y., border crossing 

Nov. 23 – effective date of FMC final rule raising the amount of the optional NVOCC bond rider for China

Law Professor Nominated to Serve on Court of International Trade

President Obama has nominated Brooklyn Law School professor Claire R. Kelly to serve on the Court of International Trade. Kelly serves as co-director for The Dennis J. Block Center for the Study of International Business Law and as the faculty advisor for the Brooklyn Journal of International Law. She also serves on the board of directors of the Customs and International Trade Bar Association and chairs its Subcommittee on Trade Adjustment Assistance. Prior to joining academia in 1997 she worked as an associate at a law firm in New York City for four years. 

AD/CV Notices: Steel Pipe, Garment Hangers

Agency: International Trade Commission. 
Commodity: Circular welded carbon-quality steel pipe. 
Country: India, Oman, the United Arab Emirates and Vietnam. 
Nature of Notice: Final negative antidumping and countervailing injury determinations. 
Details: No AD or CV duty orders will be issued on this merchandise. 

Agency: International Trade Commission. 
Commodity: Steel wire garment hangers. 
Country: Taiwan. 
Nature of Notice: Final affirmative antidumping injury determination. 
Details: The International Trade Administration will shortly issue an AD duty order on these goods.

IPR Enforcement Actions on Device Cases, Digital Media Devices, Projectors

New Patent Infringement Investigation of Electronic Device Cases. The International Trade Commission has instituted investigation 337-TA-861 to determine whether imports of certain cases for portable electronic devices are violating Section 337 of the 1930 Tariff Act by reason of patent infringement. The complainant requests that after this investigation the ITC issue an exclusion order, which would direct U.S. Customs and Border Protection to prohibit the entry of the infringing products into the U.S., and 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 China, Hong Kong and the U.S. 

Import Restrictions Recommended on Digital Media Devices. In patent infringement investigation 33-TA-796 the presiding administrative law judge has recommended the imposition of a limited exclusion order and a cease and desist order against infringing electronic digital media devices and components thereof. The International Trade Commission is therefore requesting comments no later than Dec. 3 on whether the issuance of such orders 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. 

No Import Restrictions on Projectors. The International Trade Commission has terminated in its entirety without the imposition of import restrictions patent infringement investigation 337-TA-815 of certain projectors with controlled-angle optical retarders, components thereof and products containing same. This action follows the withdrawal of the complaint by Compound Photonics. 

Treasury Adds Iraq to International Boycott Country List

The Treasury Department has published its semiannual list of countries that require or may require participation in, or cooperation with, an international boycott. Treasury is adding Iraq to this list, which also includes Kuwait, Lebanon, Libya, Qatar, Saudi Arabia, Syria, the United Arab Emirates and Yemen.

FDA Info Collection on Dairy Exports to Chile Under Review

The Food and Drug Administration is accepting through Jan. 14, 2013, comments on the proposed extension of an information collection associated with the establishment and maintenance of a list of U.S. dairy product manufacturers/processors with an interest in exporting to Chile. 

As a result of talks under the U.S.-China Free Trade Agreement, Chile has recognized the FDA as the competent U.S. food safety authority and accepted the U.S. regulatory system for dairy inspections. Chile will therefore not require individual inspections of U.S. firms by Chile as a prerequisite for trade but will instead accept firms identified by the FDA as eligible to export to Chile. 

The FDA has therefore established a list that identifies U.S. dairy product manufacturers/processors that have expressed an interest in exporting dairy products to Chile, are subject to FDA jurisdiction and are not the subject of a pending judicial enforcement action (i.e., an injunction or seizure) or a pending warning letter. While application for inclusion on this list is voluntary, dairy products from firms not on this list could be delayed or prevented from entering commerce in Chile.

New and Amended Maritime Agreements Filed

The Federal Maritime Commission has issued notice that the following new or amended agreements have been filed. Interested parties may submit comments by Nov. 26. 

Australia and New Zealand-United States Discussion Agreement – The amendment would add A.P. Moller-Maersk AS, trading under the name Maersk Line, as a party to the agreement. 

Priority/Marine Express Space Charter, Sailing and Cooperative Working Agreement – The agreement would authorize the parties to share vessels and charter space to each other in the trade between Puerto Rico and the Dominican Republic. 

Crowley/Priority Ro/Ro Space Charter and Sailing Agreement – The agreement authorizes Priority to charter space to Crowley in the trade between Puerto Rico and the Dominican Republic for cargo originating in Puerto Rico as well as for cargo being transshipped in Puerto Rico.

CBP Accredits Texas Company as Commercial Lab

U.S. Customs and Border Protection has given notice that as of July 12, 2012, Dixie Services Inc. of Galena Park, Texas, has been accredited to test petroleum, petroleum products, organic chemicals and vegetable oils for customs purposes.

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