Feb 2008
House Committee Requests Comments on Miscellaneous Tariff and Duty Suspension Bills
02/27/08 02:50 PM Filed in: Politics | Legislation
On
February 25, 2008, Chairman
Sander M. Levin (D-MI) and Ranking Member Wally Herger (R-CA) of
the Subcommittee on Trade jointly announced that
the Subcommittee is requesting written comments for the record from
all parties interested in miscellaneous duty suspension proposals
and corrections to the trade laws.
The Committee on Ways and Means has jurisdiction over legislation to amend the U.S. tariff schedule and to make corrections to trade legislation. On November 1, 2007, Chairman Levin and Ranking Member Herger requested that all Members who planned to introduce tariff legislation or miscellaneous corrections to the trade laws do so by December 14, 2007. Chairman Levin and Ranking Member Herger are now requesting public comment on those bills listed here and are requesting budget scoring estimates from the Congressional Budget Office. The deadline for the public to submit written comments to the Committee is Thursday, April 10, 2008.
After the comment period, the Subcommittee will review all comments and determine which bills should be included in a miscellaneous tariff bill (MTB) package. The Subcommittee will consider the extent to which the bills create a revenue loss, operate retroactively, attract controversy, or are not administrable. The Subcommittee states that,
The Committee on Ways and Means has jurisdiction over legislation to amend the U.S. tariff schedule and to make corrections to trade legislation. On November 1, 2007, Chairman Levin and Ranking Member Herger requested that all Members who planned to introduce tariff legislation or miscellaneous corrections to the trade laws do so by December 14, 2007. Chairman Levin and Ranking Member Herger are now requesting public comment on those bills listed here and are requesting budget scoring estimates from the Congressional Budget Office. The deadline for the public to submit written comments to the Committee is Thursday, April 10, 2008.
After the comment period, the Subcommittee will review all comments and determine which bills should be included in a miscellaneous tariff bill (MTB) package. The Subcommittee will consider the extent to which the bills create a revenue loss, operate retroactively, attract controversy, or are not administrable. The Subcommittee states that,
Instructions for submitting written comments can be found here.The primary purpose of the bill is to help U.S. manufacturers compete at home and abroad by temporarily suspending or reducing duties on intermediate products or materials that are not made domestically, or where there is no domestic opposition. Such reductions or suspensions reduce the costs for U.S. businesses and ultimately increase the competitiveness of their products. The process will look carefully for domestic production and opposition to proposed modifications to the U.S. Harmonized Tariff Schedule.
New AES Reporting Requirements for BIS License Exceptions
BIS has
issued new AES reporting requirements for BIS license exceptions.
The notice can be found here.
The notice states that as of April 28, 2008, the following reporting change will be implemented:
The notice states that as of April 28, 2008, the following reporting change will be implemented:
The Export Control Classification Number (ECCN) will be required for License Exceptions reportable under the following License Exception codes: C38-TSR, C41-RPL, C42-GOV, C43-GFT, C44-TSU, C45-BAG, C46-AVS, C47-APR, C48-KMI, C49-TAPS, C50-ENC
Industry & University Groups Oppose DEAC Recommendations
02/26/08 10:28 AM Filed in: Export | Deemed Exports
On
February 15, 2008, twelve industry groups (listed below) issued a
letter to the Secretary of Commerce offering their "preliminary
reaction" to the report by the Deemed Export Advisory Committee
(DEAC) issued on December 20, 2007. The signatories to the letter
were: the American Electronics Association (AeA), American Council
on International Personnel, Association for Manufacturing
Technology (AMT), Coaltion for Employment Through Exports, Computer
and Communications Industry Association, Emergency Committee for
American Trade, Information Technology Industry Council,
International Safety Equipment Association, National Council on
International Trade Development, National Foreign Trade Council,
and U.S.-China Business Council.
In the letter, the groups note a "marked disparity between the DEAC's analysis of the difficulties of regulating the transfer of technological knowledge in a globally interconnected world," an analysis they largely endorse, and the specific recommendations for a new approach to controlling the transfer of controlled information to foreign nationals while in the U.S. -- which they believe would be "difficult to translate into regulations, burdensome for U.S. companies' compliance programs and ultimately counterproductive to the U.S. national interest."
Specifically, the groups claimed that:
1. Controlled technologies would not be refined
2. More foreign nationals would be subject to controls
3. Recommendations would harm U.S. technological leadership
In conclusion, the groups stated, "We urge the Department to go back to the drawing board and work closely with industry in developing an approach that will produce a more balanced result."
Similarly, on February 20, 2008, the Association of American Universities (AAU) and the Council on Governmental Relations (COGR) submitted a letter to the Secretary of Commerce expressing their views on the findings and recommendations of the DEAC report. The groups stated that they strongly agree with the DEAC's principal conclusion that ". . . the existing Deemed Export Regulatory Regime no longer effectively serves its intended purpose and should be replaced with an approach that better reflects the realities of today's national security needs and global economy."
In the letter, the groups endorsed and specifically highlighted the following points:
1. Too many technologies are subject to deemed export controls and the list of covered technologies should be drastically reduced;
2. Each technolgoy on the CCL should "sunset" automatically after a period of one year, unless there is explicit action to retain it on the list following a review process; and
3. They agree wtih the DEAC recommendation to eliminate any distinction between research products and knowledge regarding equipment needed to conduct the research.
The letter then goes on to state the groups' serious concerns over the following DEAC recommendations:
1. They urge Commerce to regject the deemed export decision process construct proposed in the report -- specifically, as with the industry groups, they disapprove of the proposed "loyalty" assessments, which they claim would raise very serious policy, practical, and legal issues for universities;
2. They are concerned about the impact of loyalty assessments and broad-based background checks will have on reviews of deemed export license applications; and
3. They reject the DEAC's proposal to change the definition of fundamental research.
In conclusion, they state that they find the report to be well-considered and contains many helpful findings, but they urge Commerce to seriously consider the concerns outlined.
In the letter, the groups note a "marked disparity between the DEAC's analysis of the difficulties of regulating the transfer of technological knowledge in a globally interconnected world," an analysis they largely endorse, and the specific recommendations for a new approach to controlling the transfer of controlled information to foreign nationals while in the U.S. -- which they believe would be "difficult to translate into regulations, burdensome for U.S. companies' compliance programs and ultimately counterproductive to the U.S. national interest."
Specifically, the groups claimed that:
1. Controlled technologies would not be refined
2. More foreign nationals would be subject to controls
3. Recommendations would harm U.S. technological leadership
In conclusion, the groups stated, "We urge the Department to go back to the drawing board and work closely with industry in developing an approach that will produce a more balanced result."
Similarly, on February 20, 2008, the Association of American Universities (AAU) and the Council on Governmental Relations (COGR) submitted a letter to the Secretary of Commerce expressing their views on the findings and recommendations of the DEAC report. The groups stated that they strongly agree with the DEAC's principal conclusion that ". . . the existing Deemed Export Regulatory Regime no longer effectively serves its intended purpose and should be replaced with an approach that better reflects the realities of today's national security needs and global economy."
In the letter, the groups endorsed and specifically highlighted the following points:
1. Too many technologies are subject to deemed export controls and the list of covered technologies should be drastically reduced;
2. Each technolgoy on the CCL should "sunset" automatically after a period of one year, unless there is explicit action to retain it on the list following a review process; and
3. They agree wtih the DEAC recommendation to eliminate any distinction between research products and knowledge regarding equipment needed to conduct the research.
The letter then goes on to state the groups' serious concerns over the following DEAC recommendations:
1. They urge Commerce to regject the deemed export decision process construct proposed in the report -- specifically, as with the industry groups, they disapprove of the proposed "loyalty" assessments, which they claim would raise very serious policy, practical, and legal issues for universities;
2. They are concerned about the impact of loyalty assessments and broad-based background checks will have on reviews of deemed export license applications; and
3. They reject the DEAC's proposal to change the definition of fundamental research.
In conclusion, they state that they find the report to be well-considered and contains many helpful findings, but they urge Commerce to seriously consider the concerns outlined.
Civil Liberties Groups Sue Department of Homeland Security over Searches and Harassment at U.S. Borders
On February 7, 2008, the
Electronic Frontier
Foundation and the Asian Law Caucus, both civil liberty groups based
in San Francisco, filed suit against the U.S. Department of
Homeland Security (DHS) for denying access to public records on the
questioning and searches of travelers at U.S. borders. Filed under
the Freedom of Information Act (FOIA), the suit claims to respond
to growing complaints by U.S. citizens and immigrants of excessive
or repeated screenings by U.S. Customs and Border Protection (CBP)
agents. The compliant can be found here.
ALC states that it has received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers' books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. When individuals complained, they were told, "This is the border, and you have no rights."
"When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation's doorstep," said Shirin Sinnar, staff attorney at ALC. "The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process."
ALC and EFF asked DHS to disclose its policies on questioning travelers on First Amendment-protected activities, photocopying individuals' personal papers, and searching laptop computers and other electronic devices. The agency failed to meet the 20-day time limit that Congress has set for responding to public information requests, prompting the lawsuit.
"The public has the right to know what the government's standards are for border searches," said EFF Staff Attorney Marcia Hofmann. "Laptops, phones, and other gadgets include vast amounts of personal information. When will agents read your email? When do they copy data, where is it stored, and for how long? How will this information follow you throughout your life? The secrecy surrounding border search policies means that DHS has no accountability to America's travelers."
Interesting news articles on the suit have appeared in the Washington Post and the San Francisco Chronicle. Both of these articles regard the search and seizure of electronics. The search and possible seizure of laptops and other computer devices without suspicion or any articulated explanation is particularly troublesome to business travelers. The question of whether Customs inspectors have a right to search laptops and electronic devices without reasonable suspicion of a crime has already been under review in both the Fourth and Ninth Circuits. (See, United States v. Ickes, 393 F. 3d 501 (4th Cir. 2005) (did not directly address the level of suspicion required to search laptops but did rule that laptops fall within border search authority); United States v. Arnold, 454 F. Supp. 2d 999 (N.D. Cal. 2006) (reasonable suspicion required to search computers)).
Border searches are a well-recognized and long established exception to the probable cause and warrant requirements of the Fourth Amendment. Even so, the conduct of such searches, as with any search, must be reasonable. Sections 482 and section 1582, Title 19 of the United States Code authorize Customs officers to search and seize (detain) persons at the border. Removal of an outer coat such as a sport jacket or suit coat or the examination of a handbag are not considered searches of the person and are treated as searches of containers. Section 1496, Title 19 of the United States Code authorizes the examination of baggage of any person "arriving in the United States" without any suspicion.
Reasonable suspicion means that the facts known to the customs agents at the time of the search, combined with the agent's reasonable inferences from those facts, provides the agent with a particularized and objective basis for suspecting that the search will reveal contraband or a crime. (United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304 (1985)).
In recent years, CBP has argued that its authority to protect the country's border extends to looking at information stored on electronic devices such as laptops without any suspicion of a crime. CBP is taking the position that a laptop is the equivalent of a suitcase or container with the information stored on the laptop as the equivalent of physical merchandise packed in luggage. The question is whether the Courts will agree. We will follow this issue and keep you updated of any developments.
ALC states that it has received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers' books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information. When individuals complained, they were told, "This is the border, and you have no rights."
"When the government searches your books, peers into your computer, and demands to know your political views, it sends the message that free expression and privacy disappear at our nation's doorstep," said Shirin Sinnar, staff attorney at ALC. "The fact that so many people face these searches and questioning every time they return to the United States, not knowing why and unable to clear their names, violates basic notions of fairness and due process."
ALC and EFF asked DHS to disclose its policies on questioning travelers on First Amendment-protected activities, photocopying individuals' personal papers, and searching laptop computers and other electronic devices. The agency failed to meet the 20-day time limit that Congress has set for responding to public information requests, prompting the lawsuit.
"The public has the right to know what the government's standards are for border searches," said EFF Staff Attorney Marcia Hofmann. "Laptops, phones, and other gadgets include vast amounts of personal information. When will agents read your email? When do they copy data, where is it stored, and for how long? How will this information follow you throughout your life? The secrecy surrounding border search policies means that DHS has no accountability to America's travelers."
Interesting news articles on the suit have appeared in the Washington Post and the San Francisco Chronicle. Both of these articles regard the search and seizure of electronics. The search and possible seizure of laptops and other computer devices without suspicion or any articulated explanation is particularly troublesome to business travelers. The question of whether Customs inspectors have a right to search laptops and electronic devices without reasonable suspicion of a crime has already been under review in both the Fourth and Ninth Circuits. (See, United States v. Ickes, 393 F. 3d 501 (4th Cir. 2005) (did not directly address the level of suspicion required to search laptops but did rule that laptops fall within border search authority); United States v. Arnold, 454 F. Supp. 2d 999 (N.D. Cal. 2006) (reasonable suspicion required to search computers)).
Border searches are a well-recognized and long established exception to the probable cause and warrant requirements of the Fourth Amendment. Even so, the conduct of such searches, as with any search, must be reasonable. Sections 482 and section 1582, Title 19 of the United States Code authorize Customs officers to search and seize (detain) persons at the border. Removal of an outer coat such as a sport jacket or suit coat or the examination of a handbag are not considered searches of the person and are treated as searches of containers. Section 1496, Title 19 of the United States Code authorizes the examination of baggage of any person "arriving in the United States" without any suspicion.
Reasonable suspicion means that the facts known to the customs agents at the time of the search, combined with the agent's reasonable inferences from those facts, provides the agent with a particularized and objective basis for suspecting that the search will reveal contraband or a crime. (United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304 (1985)).
In recent years, CBP has argued that its authority to protect the country's border extends to looking at information stored on electronic devices such as laptops without any suspicion of a crime. CBP is taking the position that a laptop is the equivalent of a suitcase or container with the information stored on the laptop as the equivalent of physical merchandise packed in luggage. The question is whether the Courts will agree. We will follow this issue and keep you updated of any developments.
CBP Extends Comment Period for Proposed Interpretation re: "First Sale" Valuation
On February 7, 2008, the U.S.
Customs and Border Protection ("CBP") published a
notice
in the
Federal
Register extending by 30 days the comment
period for its proposed interpretation of the phrase "sold for
exportation to the United States" for purposes of applying the
transaction value method of appraisement when a series of sales
exist prior to importation into the U.S.
CBP is proposing that the transaction value (or price paid or payable) for imported goods in a series of sales is the price paid or payable in the last sale occurring prior to the goods' importation into the United States, rather than the price in the first or earlier sale. CBP states that this is based on its proposed revised interpretation of the phrase "when sold for exportation to the United States" such that CBP no longer believes that the first (or earlier) sale qualifies as a sale for exportation to the United States. CBP states that this proposed interpretation is in line with the conclusions of the Technical Committee on Customs Valuation as set forth in Commentary 22.1, entitled, "Meaning of the Expression 'Sold for Export to the Country of Importation' in a Series of Sale."
On January 24, 2008, CBP published a notice in the Federal Register setting forth its proposed interpretation with a comment period to expire on March 24, 2008. CBP received correspondence requesting an extension of the comment period. Accordingly, CBP has decided to allow an additional 30 days for comments. Comments are now due on or before April 23, 2008.
CBP is proposing that the transaction value (or price paid or payable) for imported goods in a series of sales is the price paid or payable in the last sale occurring prior to the goods' importation into the United States, rather than the price in the first or earlier sale. CBP states that this is based on its proposed revised interpretation of the phrase "when sold for exportation to the United States" such that CBP no longer believes that the first (or earlier) sale qualifies as a sale for exportation to the United States. CBP states that this proposed interpretation is in line with the conclusions of the Technical Committee on Customs Valuation as set forth in Commentary 22.1, entitled, "Meaning of the Expression 'Sold for Export to the Country of Importation' in a Series of Sale."
On January 24, 2008, CBP published a notice in the Federal Register setting forth its proposed interpretation with a comment period to expire on March 24, 2008. CBP received correspondence requesting an extension of the comment period. Accordingly, CBP has decided to allow an additional 30 days for comments. Comments are now due on or before April 23, 2008.
For further information, contact: Lorrie Rodbart, Valuation and Special Programs Branch, Regulations and Rulings, Office of International Trade; Phone: (202) 572-8740.
BIS Announces Steps to Implement Deemed Export Advisory Committee Recommendations
On February 6, 2008, the
Department of Commerce's Bureau of Industry and Security
(BIS) announced that it had completed its review
of the Deemed Export Advisory Committee's (DEAC)
report. BIS states that the Department
has begun to work with its U.S. government partners, including the
Departments of Defense, State, and Energy, to "consider the
report's analysis and recommendations as a basis for reforming
current deemed export policy."
A "deemed export" is the transfer of controlled dual-use technology to a foreign national while in the United States. BIS stated that, "Given the significant role that foreign nationals play in the U.S. research system, deemed export policy has significant implications for U.S. national security and economic competitiveness."
Mario Mancuso, Under Secretary of Commerce for Industry and Security, stated, "U.S. deemed export policy must account for the variety of risks we face. While our rules should not permit the transfer of sensitive U.S. technology to a real or potential adversary, they must ensure the United States remains the most innovative and competitive economy in the world."
While certain proposals under active consideration will require interagency support, Under Secretary Mancuso has directed BIS to immediately:
A "deemed export" is the transfer of controlled dual-use technology to a foreign national while in the United States. BIS stated that, "Given the significant role that foreign nationals play in the U.S. research system, deemed export policy has significant implications for U.S. national security and economic competitiveness."
Mario Mancuso, Under Secretary of Commerce for Industry and Security, stated, "U.S. deemed export policy must account for the variety of risks we face. While our rules should not permit the transfer of sensitive U.S. technology to a real or potential adversary, they must ensure the United States remains the most innovative and competitive economy in the world."
While certain proposals under active consideration will require interagency support, Under Secretary Mancuso has directed BIS to immediately:
- Create an Emerging Technologies Advisory Committee, composed of representatives from leading research universities, government research labs, and industry to make recommendations to BIS regarding emerging technologies on a regular basis; and
- Improve outreach and engagement efforts to the academic and technology communities about the progress and scope of the deemed export policy efforts.
CBP Extends 10+2 Comment Period
02/06/08 04:09 PM Filed in: Customs | Rulemaking
On
February 1, 2008, U.S. Customs and Border Protection (CBP)
published a notice in the Federal Register extending the comment
period for its proposed "10+2" filing requirement for ocean cargo
by 15 days until March 18, 2008. It is expected that many
interested parties will be filing comments on the proposed
rule.
On January 2, 2008, U.S. Customs and Border Protection (CBP) published a proposed rule regarding importer security filing and additional carrier requirements, also known as the "10+2" rule. The proposed rule will require that importers and carriers to submit additional information regarding cargo before the cargo is brought into the U.S. by vessel. The information must be provided 24 hours prior to loading of the cargo on the vessel and via a CBP-approved electronic data interchange system.
The proposed rule is intended to allow CBP to identify high-risk shipments to prevent smuggling and ensure cargo safety and security. The proposed regulations originate from the Security and Accountability for Every (SAFE) Port Act of 2006 and the Trade Act of 2002. CBP issued a news release about the rule here.
On January 2, 2008, U.S. Customs and Border Protection (CBP) published a proposed rule regarding importer security filing and additional carrier requirements, also known as the "10+2" rule. The proposed rule will require that importers and carriers to submit additional information regarding cargo before the cargo is brought into the U.S. by vessel. The information must be provided 24 hours prior to loading of the cargo on the vessel and via a CBP-approved electronic data interchange system.
The proposed rule is intended to allow CBP to identify high-risk shipments to prevent smuggling and ensure cargo safety and security. The proposed regulations originate from the Security and Accountability for Every (SAFE) Port Act of 2006 and the Trade Act of 2002. CBP issued a news release about the rule here.