November 2008
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Global Trader Newsletter
In This Issue
EXPORT NEWS
State Dept. Posts New Registration Form
BIS Issues Final Rule on End-Use/End-User Controls
BIS Requests Comments on De Minimis Eligibility
CUSTOMS NEWS
CBP Issues "10+2" Interim Final Rule
CIT Denies Motions for Rehearing in Tariff Gender Discrimination Case
Supreme Court Hears First Antidumping Case
Who's Hiring
Calendar of Events
Quick Links
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Greetings!

We hope you all had a wonderful Thanksgiving holiday!

This month's highlights include: Customs issues "10+2" interim final rule which is effective January 26, 2009; the CIT denies motions for re-consideration in tariff gender/age discrimination case; the Supreme Court hears first ever antidumping case; DDTC posts a new ITAR registation form; BIS issues a final rule on end-use/end-user based controls; and BIS requests comments on removing Category 7A products from de minimis eligibility.

As always, we would appreciate any comments or suggestions you may have to improve this newsletter either by email to info@globaltradeexpertise or via our feedback survey link in our left column.

Thank you for reading!
 
Jennifer Kessinger & Tammie Goldstein Krauskopf
globaltradeexpertise
Export News
State Department Posts New Registration Form DS-2032
New Form and Instructions Reflect Recent Changes in Registration Fees
money
On November 25, 2008, the State Department's Directorate of Defense Trade Controls (DDTC) announced that the Office of Management and Budget (OMB) approved the new registration form DS-2032 and it is now posted on its website (here). The new form and all attachments can be found here. The DDTC provides guidance on Preparing a Registration Package as well.

The new form reflects the recent changes the DDTC made to its registration fees and periods on September 25, 2008.

BIS Issues Final Rule with Conforming Changes to End-User/End Use Based Controls and Clarification of Terms
Rule is Effective on November 18, 2008

State Department SealOn November 18, 2008, the Bureau of Industry and Security (BIS) published a final rule in the Federal Register amending the Export Administration Regulations (EAR) by making conforming changes in certain end-user/end-use controls in the EAR to ensure that the terminology used to describe each type of end-user/end-use control is consistent, to the fullest extent possible, with the terminology in such other controls in the EAR. In addition, the final rule amends the EAR by revising the definition of the term "transfer" and certain related terms, to provide greater clarity regarding these provisions.

With regard to the end-user/end-use conforming changes, BIS states that the amendments clarify that a party cannot proceed with an export, reexport, or transfer (in-country) that is in transit at the time the party is informed by BIS that a license is required (in accordance with certain end-user/end-use controls in the EAR), unless that party first obtains a license from BIS authorizing the completion of the transaction. These changes are intended to enhance the ability of BIS to stop items subject to the EAR, including items not on the CCL, from being exported, reexported or transferred when there is an unacceptable risk that such items will be used in, or diverted to, any of the proliferation activities specified in certain sections of the EAR.

BIS Requests Public Comments on Removing Category 7A Products from De Minimis Eligibility
Comments must be received no later than January 20, 2009

Alarm ClockOn November 14, 2008, the Bureau of Industry and Security (BIS) announced in the Federal Register that it is seeking public comments on the prospect of removing from de minimis eligibility commodities controlled for missile technology (MT) reasons under Category 7  - Product Group A on the Commerce Control List (CCL) except when the 7A commodities are incorporated as standard equipment in Federal Aviation Administration (FAA) (or national equivalent) certified civilian transport aircraft.

BIS states that it specifically is seeking public input on the impact the proposed change would have on U.S. manufacturers of Category 7A commodities, as well as the impact such a change would have on foreign manufacturers that incorporate U.S.-origin 7A commodities into their foreign-made products.

Customs News

CBP Issues Interim Final Rule on "10+2" Importer Security Filing and Additional Carrier Requirements
Rule is Effective on January 26, 2009; Comments on Certain Aspects of the Rule must be Recived by June 1, 2009

CBP SealOn November 25, 2008, the U.S. Customs and Border Protection (CBP) issued an interim final rule in the Federal Register on the Importer Security Filing and Additional Carrier Requirements, also known as the "10+2" Rule. The 10+2 Rule requires importers and carriers to report additional data to CBP for all vessel cargo headed for the U.S.

Effective January 26, 2009, the Importer Security Filing will require carriers to provide CBP with vessel stow plans and container status messages, while importers must report to CBP the following 10 data elements:

    �    Seller,
    �    Buyer,
    �    Importer of record number / Foreign trade zone applicant identification number,
    �    Consignee number,
    �    Manufacturer (or supplier),
    �    Ship to party,
    �    Country of origin,
    �    Commodity Harmonized Tariff Schedule of the United States (HTSUS) number,
    �    Container stuffing location, and
    �    Consolidator (stuffer).

The 10+2 Rule requires that importers transmit an importer security filing no later than 24 hours prior to lading at the foreign port. This information must be submitted to CBP via a CBP-approved electronic data system. The container stuffing location and consolidator date may be filed no later than 24 hours before arrival at a U.S. port.

Under the new rule, importers will be legally responsible for the accuracy and timeliness of the Import Security Filing, regardless of whether a broker or other agent actually filed it. CBP has also revised the sanctions for failure to comply with the reporting requirements. Under the new rule, liquidated damages for violations of the Importer Security Filing requirements are changed from the value of merchandise to $5,000 per violation.  

CIT Denies Motions for Reconsideration in Tariff Gender Discrimination Case
Totes Isotoner Case Continues

glovesOn November 4, 2008, the U.S. Court of International Trade issued an order denying both the importer's and the United States' motions for reconsideration of the Court's July 3, 2008 decision.

In its original complaint, importer Totes Isotoner Corporation ("Totes") alleged that the Harmonized Tariff Schedule of the United States (HTSUS) illegally discriminated on the basis of gender and/or age by setting out different tariff rates for "men's" gloves and for "other" gloves. The court dismissed Totes' claim on the grounds that the complaint did not allege facts sufficient to establish an inference of discrimination.

Both parties sought reconsideration of the the court's July 3, 2008 opinion. The defendant asked that the matter be dismissed for lack of jurisdiction arguing that Totes failed to exhaust its administrative remedies when it failed to file a protest with U.S. Customs and Border Protection (CBP) as necessary to invoke the the court's jurisdiction. On the defendant's motion, the court held that constitutional challenges to statutory provisions from which CBP has no discretion to deviate are exempt from otherwise required exhaustion of administrative remedies. Here, because Totes' complaint raised only a constitutional challenge to the HTSUS, the constitutional issues of gender/age discrimination were not amenable to administrative determination. The court reasoned that CBP does not have the authority to decide the constitutionality of the HTSUS; rather, CBP can only passively assess and collect the required tariff. Therefore, the court held that Totes could only challenge the constitutionality of the tariff before the court and not before CBP.

Totes sought reconsideration of the court's decision that its complaint failed to state a claim. Totes argued that, since the challenged tariff provision was facially discriminatory, the government's discriminatory intent should be presumed. Totes argued that it should not be required to establish the discrimination by demonstrating how the alleged classification was applied. The court held, however, that plaintiff's burden to show either discriminatory intent or that the law at issue actually caused unconstitutional discrimination could be excused only if the plaintiff could demonstrate that the provision was facially discriminatory. Because the court found that Totes had failed to show an unconstitutional classification, the court refused to waive the requirement to show the classification's discriminatory intent.

The court denied Totes' motion holding that Totes allegation was insufficient to show gender discrimination because the complaint provided insufficient basis for the court to make an inference of unconstitutional discrimination. The court reasoned that the HTSUS was not facially discriminatory and that it merely distinguished between two similar products based upon HTSUS descriptions of "men's" or "other" gloves. The tariff schedule did not explicitly order CBP to collect a lower rate of duty when the duty was paid by men or women. While the HTSUS subheading requires CBP to differentiate between gloves because they are targeted for use by specific genders, this is not sufficient to show facial discrimination. Thus, Totes' claim that the subheading distinguished between products labeled for consumption by different genders was not sufficient to establish gender discrimination.

Finally, Totes asked the court to certify the question of whether the tariff provision at issue was facially discriminatory for interlocutory appeal. The court denied Totes' motion for issue certification because Totes failed to satisfy either condition for certification because it failed to show either substantial grounds for difference of opinion or that an immediate interlocutory appeal would materially advance the ultimate termination of the litigation.

Supreme Court Hears First Ever Antidumping Cases
Extent of Agency Deference Will Likely Be At Issue

Supreme CourtOn November 4, 2008, the U.S. Supreme Court heard oral arguments in the first antidumping cases ever granted certiorari, the consolidated cases, United States v. Eurodif S.A., et al. (Docket No. 07-1059) and USEC, Inc. v. Eurodif S.A. (Docket No. 07-1078). The cases involve appeals arising from an antidumping petition filed in 2000 on imports of low enriched uranium from countries (including France).

In these cases, the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit overturned a decision by the Commerce Department that contracts for the enrichment of uranium between U.S. buyers and Eurodif, an enricher in France, were contracts for the sale of goods and subject to the antidumping petition. The courts held that the contracts were contracts for services and not subject to the antidumping duty laws.

In hearing this case, the Supreme Court will likely consider the extent to which courts must give deference to administrative agencies, such as the Commerce Department, under the test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

The Court is expected to issue its opinion in these cases in Spring of 2009.
 
Who's Hiring?
A Summary of Current Trade Job Opportunities

hand signing formAs a service to the international trade community, Global Trade Expertise compiles links to trade job opportunities from many different sources. New trade job listings are posted frequently on our website. Here are some of the new job listings from November:

Future Electronics - Southaven, MS
AkzoNobel - Bridgewater, NJ
Staples - Overland Park, KS
Indotronix International Corp. - San Jose, CA
Becton Dickinson - San Jose, CA
Avon - New York, NY
General Mills - Minneapolis, MN
Hound - Gloucester, MA
L-1 Biometrics - Bloomington, MN
Daimler Trucks of North America - Portland, OR
Volkswagen Group of America - Herndon, VA
Yokogawa Corporation of America - Houston, TX
Ernst & Young - San Jose, CA

To sort the job opportunities by region, fields, or levels, click on the appropriate category or tag in the right column on our Trade Jobs webpage.

Calendar of Events
Upcoming Trade Events & Seminars

datebookOur website has a comprehensive listing of import and export conferences held throughout the country, as well as Customs training, EAR training, ITAR training, and other training. Below is a small sampling of what's available in December:

U.S. Export Controls Seminar - Black, Sengers & Associates
December 1 - 2, 2008 - Miami, FL - $1050

How to Develop an Export Management and Compliance Program - Bureau of Industry and Security (BIS)
December 2 - 3, 2008 - Jacksonville, FL - $350


21st Annual Membership Meeting - Professional Association of Exporters and Importers (PAEI)
December 3, 2008 - Santa Clara, CA - Free to Members Only

Defense Trade Controls Seminar -  Black, Sengers & Associates
December 3 - 4, 2008 - Miami, FL - $1050

Encryption Controls- Bureau of Industry and Security (BIS)
December 4, 2008 - Jacksonville, FL - $125


Personal Branding - Women in International Trade - Northern California
December 10, 2008 - Palo Alto, CA - $45 Members/$60 Non-Member

Holiday Party - Society for International Affairs
December 9, 2009 - Washington, DC

Thanks again for your interest in our newsletter!
 
Sincerely,
 
Jennifer Kessinger & Tammie Krauskopf
Attorneys & Consultants

Tel. 925.876.1381 (Jennifer Kessinger)

[email protected]

Tel. 708.707.4087 (Tammie Krauskopf)

www.globaltradeexpertise.com
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