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08.10.2010 Highlights in Internaltional Trade and Commerce Commerce Proposes to Require Electronic Filing in Import Relief Cases
A recently proposed amendment to the Commerce Department’s regulations would require electronic filing of information in antidumping (AD) and countervailing duty (CVD) cases. The proposed change will concern both petitioners and respondents in AD/CVD cases because required electronic filing increases the risk that confidential information may be disclosed inadvertently. For example, documents filed electronically may be attached and transmitted by accident to third parties. Furthermore, counsel are more likely to forward an email to clients without reviewing it to determine whether confidential information has been included by mistake. To help mitigate these risks, some federal agencies, such as the International Trade Commission, allow electronic filing of non-confidential documents but require that confidential documents be filed in hard copy. Comments on the proposed rule may be submitted electronically or in hard copy and are due by September 7. Expect numerous comments on the handling of confidential documents and the persons allowed to access those documents.

BIS Clarifies Scope of Commodity Classifications, Advisory Opinions
According to a recently issued interim final rule amending the Export Administration Regulations (EAR), exporters may not rely on commodity classification determinations and advisory opinions issued by the Commerce Department’s Bureau of Industry and Security (BIS) as official U.S. Government determinations of whether an item is subject to the EAR or to another agency’s exclusive jurisdiction. BIS has jurisdiction over items only if they are described in the EAR and not exclusively controlled by another agency. Some agencies, such as the State Department’s Directorate of Defense Trade Controls, issue “commodity jurisdiction” determinations as official statements of whether a specific item is subject to the agency’s jurisdiction. The EAR does not authorize BIS, however, to issue commodity jurisdiction determinations. Instead, it may provide only “commodity classifications”--official determinations only of which Export Control Classification Numbers (ECCNs) describe an item. BIS may also issue advisory opinions that describe how BIS interprets the EAR. Thus, while BIS may officially state whether the ECCNs describe an item, BIS may not state officially whether an item is subject to another agency’s exclusive jurisdiction or whether the item is subject to the EAR. The new rule does not change BIS policy but simply reminds the public that BIS may not make commodity jurisdiction determinations and that exporters may not rely on commodity classifications and advisory interpretations as official U.S. Government determinations of whether an item is subject to the EAR or to another agency’s exclusive jurisdiction.

House, Senate Pass Miscellaneous Tariff Bill
Both houses of Congress recently passed the U.S. Manufacturing Enhancement Act, more commonly known as the Miscellaneous Tariff Bill (MTB). The MTB temporarily reduces or suspends duties on certain U.S. imports, generally products used in manufacturing that are unavailable domestically. MTBs are passed periodically, and the previous MTB enacted in 2006 expired on December 31, 2009. MTBs usually are not controversial, and Congress typically passes them easily and without controversy. Action on the most recent MTB was delayed, however, because some Republicans claimed that it included special interest earmarks. Because of the gap between the expiration of the previous MTB and the enactment of the current one, the current MTB includes a provision for retroactive application for goods entered or withdrawn from warehouse for consumption on or after January 1, 2010 but before the effective date of the Bill. The House passed the MTB on July 21, the Senate passed it without amendment on July 27, Congress presented it to the President on July 30, and it will become law after he signs it.

South Korea FTA Not Yet Back on Track?
Despite President Obama’s desire to move forward with the U.S.- South Korea free trade agreement (FTA), some lawmakers remain concerned about its economic implications. In late June, President Obama announced goals of resolving all remaining issues by the time of his November visit to Seoul and then of submitting the already signed agreement to Congress for approval. However, it appears that Congressional opposition to the FTA remains. On July 22, Representative Michael Michaud of the House Trade Caucus sent the President a letter requesting a meeting to discuss concerns about the FTA’s current financial services and labor provisions. Michaud also objects to what he claims are Korean non-tariff barriers to U.S. automobiles, beef and textiles. On the other hand, supporters of the FTA claim that the agreement would help U.S. exporters and importers by reducing or eliminating Korean and U.S. tariffs. The South Korea FTA is but one of several FTAs that have been signed by the United States but not approved by Congress. (See Highlights, June 14, 2010).

Highlights in International Trade and Commerce by Williams Mullen is prepared for information purposes only and does not constitute legal advice. Persons seeking legal advice concerning the issues addressed in this issue are encouraged to contact competent legal counsel.

For comments or suggestions, please contact the publication editor, Jimmie V. Reyna, Esq.