Ya Basta - Mexico Asks China To Work Together to Address Duty Evasion Schemes

Duty evasion has recently been the subject of Congressional hearings, reports, and pending legislation in the Senate and House in the United States of America.  Looks like the United States of Mexico is joining the fiesta.

According to a September 28, 2011 press release, Mexico's Secretary of Economy recently sent a letter to China's Ministry of Commerce (MOFCOM) raising concerns that Mexican industries are being harmed by pervasive transshipment, undervaluation, and misclassification. The letter apparently identifies companies that offer services to evade duties and "trick" customs authorities in several countries, including Mexico.  I haven't seen the letter, but I wonder if they are referring to the companies described in Part II of this report.

While efforts north of the Rio Grande have primarily focused on customs enforcement, Mexico is seeking a bilateral working group to enlist China's assistance in combating the problem.  This approach is inline with the Mexican saying, "mas vale un mal arreglo que un buen pleito" (it's better to have a bad deal than a good fight).

Show Me the Money - DOC Announces New Requirement For Cash Deposits of Provisional Measures

The US Department of Commerce (DOC) announced today a change in its regulations that will require importers to post cash deposits of estimated antidumping (AD) and countervailing (CVD) duties starting with the preliminary determination in original investigations.  This change applies to new investigations initiated as a result of petitions filed on or after November 2, 2011.  While DOC maintains discretion under the new regulations because it will "normally" require cash deposits, it recognizes that, going forward, it will be "rare and unusual circumstances" when it permits bonding.

Prior to this change, importers were allowed to post bonds in lieu of cash deposits for the so-called "provisional measures" DOC puts in place upon making an affirmative preliminary determination in an original investigation.  Under the US's retrospective system, the "provisional measures" are estimates of the importer's AD/CVD liability based on the dumping and/or subsidy margins calculated for the preliminary determination.  The final AD/CVD liability is determined later through annual administrative reviews.

DOC is making the change:

• "to strengthen the administration of the nation's AD and CVD laws by making importers directly responsible for the payment of AD and CVD duties";
• "to ensure that the U.S. Government collects the full amount of the duties owed"; and
• "reduce some of the burdens that U.S. Customs and Border Protection (CBP) faces when trying to collect AD and CVD duties."

The current shortfalls in collecting AD/CVD duties are well documented: see here, here, and here.  

Mystery Solved -- FDA/CBP Allows States To Import Drugs For Lethal Injections

The Arizona Republic is reporting that the FDA is exercising "enforcement discretion" to allow states to import drugs used in lethal injections even when produced in non-FDA approved facilities.  According to the article:

An FDA spokeswoman told The Arizona Republic last week that the agency would "continue to defer to law enforcement on all matters involving lethal injection," suggesting that the agency will allow states to continue to import the drug from abroad.

The article goes on to describe how Arizona imported the drug and counseled other states on how to go about doing so:

In late November, Britain imposed a ban on thiopental exports for use in capital punishment. In December, the Italian government passed a similar resolution.

Also in December, the California Department of Corrections and Rehabilitation was ordered by a judge to release details of its acquisition of thiopental after being sued by the American Civil Liberties Union. California disclosed its source: Arizona's Corrections Department. In late September, officials from California had driven to Arizona to obtain the drug.

Arizona corrections officials coached their California counterparts on a "bulletproof" means of obtaining the drug.

According to an e-mail from Corrections Deputy Director Charles Flanagan to California officials, Arizona used a local customs broker to obtain the drug from a British pharmaceutical-supply house. Then, Flanagan said, it was necessary for the shipment to go through customs in Phoenix, not in Memphis, Tenn., where the shipment would first arrive via Federal Express. That would give jurisdiction to local customs officials, not those in Memphis.

An FDA officer from Los Angeles signed off on the shipment, according to court documents. Whether the decisions to admit the shipment were made locally or higher up in Customs and the FDA is unclear. Neither agency has yet released that information.

Homeland Security Secretary Janet Napolitano, whose agency oversees U.S. Customs and Border Protection, told The Republic that the question did not go as high as her office.

In a series of e-mails to The Republic last week, FDA spokeswoman Shelly Burgess wrote: "Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public-health role. FDA does not verify the identity, potency, safety, or effectiveness of substances imported for this purpose. FDA exercises similar enforcement discretion when these drugs are manufactured and purchased within the United States."

I've previously blogged about the prohibitions against importation of drugs manufactured in non-FDA approved facilities located outside the United States ("Buying Medicine From Outside the U.S. Is Risky Business" Especially For Death Row Inmates) and raised questions about how Arizona obtained the sodium thiopental:

what I really want to know is how was the thiopental sodium imported into the United States.  Perscription drugs (and controlled substances) such as sodium thiopental  can only be imported into the United States if they are produced at FDA-approved facilities.  There are no foreign FDA-approved facilities for sodium thiopental.  Therefore, it's unclear how someone could have formally declared the drugs and imported them into the United States.  Did someone "informally" import the sodium thiopental  in their carry-on luggage and make it available for sale to states?  I sure hope not.

Well, now we know.  The FDA has decided to create a de facto "lethal injection" exception to the statutory prohibition against importation of drugs produced in non-FDA facilities.  In effect, what the FDA is saying is that it won't prohibit the importation of these drugs by states that intend to use them in lethal injections because these are "off label" uses and so the FDA has no interest in ensuring that the drugs are safe and effective.  I suspect the recipients of the drugs feel differently.

DOC's Trade Law Enforcement Initiative Could Lead To College Football Playoffs

On November 23, 2010, DOC announced the Trade Law Enforcement Initiative (TLEI) in support of President Obama's call for a college football playoff system.  I bet you never thought about the link between US trade remedy laws and college football.  Honestly, I didn't either until I heard this week that Texas Christian University (TCU) is joining the Big East.  For those of you that don't follow college athletics, the Big East is a sports conference that traditionally included college basketball powerhouses located on/near the East Coast - hence the name Big East.  For the geographically challenged, TCU is located in Fort Worth, Texas approximately 1,500 miles from the East Coast.  It makes about as much sense for TCU to be in a conference called the Big East as it does to say that exports will increase if laws targeting unfairly traded imports are strengthened.  But I digress. 

The link between trade remedies and college football is simple.  Stronger trade remedy laws will help US industries improve their performance, which will mean their management and employees will have more cash to support their almae matres alma maters.  Colleges will then have more resources to give to their football programs, which in turn will lead to greater parity, and thus more pressure for a playoff system so more schools can compete, on the field, for a national championship.  Makes perfect sense, right?

I'm kidding of course.  What DOC actually said is that it is launching the TLEI in support of the President's National Export Initiative (NEI) to double US exports over the next five years.  The "rationale" is that implementing a package of policy and regulatory changes to improve the administration of laws meant to offset the injurious effect of unfairly traded imports will help US exports.  Hmm.  How exactly does that work?  As far as I can tell there is no correlation between the TLEI package and NEI.  The TLEI may strengthen the administration of US trade remedy laws, which would be a good thing for the domestic industries that are injured or threatened with injury by unfairly traded imports.  However, it is extremely doubtful that that will lead to increased US exports.  The more likely outcome is increased trade friction with our trading partners and higher costs (even if justifiably so to level the playing field) for US companies that use imports subject to trade remedies as inputs.  Neither of which should result in more exports.  I just don't see the connection between the TLEI and NEI. 

Speaking of college football, congratulations to the the University of Maryland's head coach (Ralph Friedgen) and starting quarterback (Danny O'Brien) on wining ACC Coach of the Year and Rookie of the Year.  Fear the Turtle!!!

The "State of Play" of Antidumping Cases in the EU

On November 24, 2010, Karel De Gucht, EU Trade Commissioner, delivered remarks to the European Parliament on antidumping (AD) issues.  Mr. De Gucht is not my favorite trade official, but I respect his straightforward remarks on the "state of play" of AD matters in the EU.  Here are some highlights:

• "defence of EU production against international trade distortions should be considered as a necessary component of an open and fair trade strategy."
  
  Translation - EU will continue to use AD/CVD investigations to protect EU industries.
• "Trade defence instruments are there for good reasons. In the absence of

  international competition rules and of other rules associated with well functioning

  markets trade defence instruments are the only possible means of protecting our

  industry against unfairly traded goods. We seek to use these rules in the most

  efficient way for our industries."
  
  Translation - As long as WTO norms allow countries to use AD/CVD investigations to protect domestic industries the EU will continue to use these types of measures.
• "The international rules on trade defence are being renegotiated in the World Trade

  Organisation. The EU position there is clear: we want to maintain the effectiveness

  of our instruments while protecting our business against protectionist actions by

  others."
  
  Translation - When the EU imposes AD/CVD measures it is a permissible exercise of its rights under applicable WTO norms.  When other countries impose such measures against EU industries it may be protectionist.
• "regarding the use of trade defence instruments by third countries, we have
  
  
  As I noted here, exporters in developed countries are likely to face more AD/CVD measures in the short to medium term.
• "I would like to assure you that we closely follow trade defence actions by third countries and take action when necessary. Such action includes intense monitoring, effective support of affected EU exporters or even starting a dispute settlement procedure at the WTO.  In many cases the Commission's actions lead to the termination of the investigation without the imposition of measures. In other cases, these interventions often result in a lower measure for the EU exporters concerned."
  
  Translation -- EU exporters, we have your back.

Basically, his remarks boil down to - the EU will protect its domestic industries through continued use of AD/CVD measures and active engagement with third countries that seek to impose such measures against EU exporters. 

Around The World In One Click

I've noticed a couple of "interesting" items the last few days which I lump together below:

The Republic of Mauritius -- held a two-day workshop on Trade Remedies "to ensure capacity-building of the private sector" regarding their brand new (passed June 2010), now ready for prime time Antidumping and Countervailing Measures Act.  The workshop appears to be sponsored, at least in part, by the EU's TradeCom Facility.  The TradeCom Facility is financed by the European Development Fund and provides trade-related technical assistance to ACP countries.  It's not my money, but I'm not sure assisting an island nation of 1.2 million people establish AD/CVD laws is the best use of EU funds right now.

EU -- speaking of the EU, it recently released its five-year blueprint for an "assertive" trade policy.  The blueprint is available here.  According to the accompanying press release, the five-year plan proposes:

1. to complete its ambitious negotiating agenda at the WTO and with major trading partners such as India and Mercosur. Completing this agenda would increase European GDP by more than one percent per year;
2. to deepen trade relations with other strategic partners, such as the US, China, Russia and Japan, where the main focus will be on tackling non-tariff barriers to trade;
3. to help European businesses access global markets by setting up a mechanism to redress the balance between open markets in the EU (for example in public procurement) and more closed markets with our trading partners;
4. to start negotiating comprehensive investment provisions with some of our key trading partners;
5. to make sure trade is fair, and our rights are properly enforced, translating promise on paper into concrete benefits;
6. to ensure trade remains inclusive so that the benefits go to the many, not the few. We will spell out how trade can continue to support development as we set up a new framework of rules for trade preferences for developing countries.

Argentina -- imposed antidumping duties of 295% against malleable iron pipe fittings from China.  Brave.  Argentina only recently resumed selling soybean oil to China, which had imposed a ban in April 2010 in response to Argentine antidumping duties against various Chinese products.  Vamos, vamos, Argentina!

Happy Thanksgiving!       

Google's Free Trade Manifesto

On November 15, 2010, Google posted an interesting white paper that outlines its trade agenda.  "Enabling Trade in the Era of Information Technologies:  Breaking Down Barriers to the Free Flow of Information" describes the importance of the Internet to economic growth, the dramatic increase in governmental interference with the Internet, how these restrictions conflict with existing international trade rules (e.g., GATS), and Google's vision for "free trade" in Internet-related services. 

Google candidly acknowledges that this is "pretty wonky stuff."  (I'd say that is an understatement.)  If you strip out the wonky alphabet soup of trade acronyms (WTO, GATS, APEC, KORUS, etc.) and trade lingo (market access, national treatment, transparency, etc.) the message boils down to:  the Internet is unique so instead of interfering with it, governments should ensure that international trade rules promote free trade in Internet-related services. 

What I find particularly refreshing is that Google acknowledges that existing trade agreements do not necessarily address all of the issues it raises so it asks policy makers to: 

ensure that rules in the next generation of trade agreements reflect new challenges of Internet trade. In this new era, addressing the trade-related problems posed by government censorship and disruption of the Internet will be critical. Fresh, creative thinking will be required in order to properly address the unprecedented problems and opportunities that arise every day.

ZP55S99HFEQS

What Congress Giveth, Commerce Can Taketh Away?

The US Department of Commerce (DOC) announced this week that it will continue to issue liquidation instructions to US Customs and Border Protection (CBP) 15 days after publication in the Federal Register of final results of antidumping and/or countervailing duty administrative reviews.  DOC's announcement is available here.  Not exactly riveting stuff but still important because it affects whether DOC decisions are subject to judicial review.

The US Court of International Trade has previously ruled that DOC's so-called 15-day policy is contrary to law because:   

the record does not disclose any consideration of the need for an orderly administration of the statutory scheme for judicial review or the need for Commerce to achieve its regulatory objectives without imposing the unnecessary costs and burdens on affected parties that result from the Department's policy, rule, or practice.

This week's announcement appears to be DOC's attempt to sort of address those concerns.  DOC took a second look at its existing policy and determined that it was reasonable (who needs judicial review when an agency can determine the reasonableness of its own decisions?):

Commerce has determined that the issuance of liquidation instructions 15 days after publication is reasonable because it balances the factors which Commerce must consider in the effective administration of the antidumping and countervailing duty laws. 

These factors include:  (1) taking into account the time for alleging ministerial errors, (2) the amount of time CBP needs to liquidate the covered entries, and (3) ensuring the US Treasury receives the correct amount of duties.

DOC did not address the first consideration identified by the court - "an orderly administration of the statutory scheme for judicial review."  The court's concern is that the 15-day policy short-circuits the statutory scheme that allows parties 30 days to file a summons and then another 30 days to file a complaint (followed by an additional period to move for a preliminary injunction that enjoins liquidation of the covered entries).  Instead of grappling with the competing interests, DOC says while the 15-day policy is reasonable, 

Commerce will continue not to issue liquidation instructions if a party provides the Department of Justice with a draft summons, complaint, and motion for preliminary injunction prior to Day 15.

Translation - hey trade bar, Congress may have given you 60 days to file a summons and complaint, but that doesn't mean we have to.

Look, I get that there are competing interests here -- DOC's concern that CBP only has 6 months from publication of the final results to liquidate the entries or they are deemed liquidated at the cash deposit rate claimed at the time of importation v. parties having the full amount of time granted by Congress to decide whether to appeal (by filing the summons) and how to frame the issues (by filing the complaint) -- and that DOC is trying to find a middle ground by saying "we won't issue the instructions if you give our lawyers a draft."  Still, strictly from a separation of powers perspective, it does not seem correct that an administrative agency can effectively shorten the time granted by Congress to seek judicial review.

Thiopental Sodium - Reflux

Last week, I wrote about the US Supreme Court's order that essentially allowed Arizona to use thiopental sodium produced in a non-FDA approved facility located abroad.  Other states such as California, are also reported to be relying on imported thiopental sodium.  According to The Guardian:

The British producer, Archimedes Pharma, denies knowingly selling the drug for use in lethal injections.  As far as the company is concerned, it lawfully injected the drug into the stream of commerce in the UK and it has no control over what happens next.

"The company supplies the product in the UK, in accordance with regulations, through the recognised pharmaceutical supply chain, primarily to wholesalers and hospital pharmacies," it said.

Archimedes said that once the drug entered the complex chain of medical supplies it would not have known where it was eventually sold. "Consistent with applicable regulations, the company does not have information on specific end purchasers or users of its products. The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product," it said.

A London-based human rights group - Repreive - has filed suit in England to bar the export of thiopental sodium for use in executions in the United States.  I wonder if the UK tribunal will consider whether an export ban violates Article XI(1) of the GATT:

No prohibitions or restrictions other than duties, taxes or other charges, . . . shall be instituted or maintained by any contracting party . . . on the exportation or sale for export of any product destined for the territory of any other contracting party. 

or meets one of the general exceptions found in Article XX.  I seriously doubt it. 

Putting aside the potential WTO issues, what I really want to know is how was the thiopental sodium imported into the United States.  Perscription drugs (and controlled substances) such as thiopental sodium can only be imported into the United States if they are produced at FDA-approved facilities.  There are no foreign FDA-approved facilities for thiopental sodium.  Therefore, it's unclear how someone could have formally declared the drugs and imported them into the United States.  Did someone "informally" import the thiopental sodium in their carry-on luggage and make it available for sale to states?  I sure hope not. 

California is also planning to use a batch of sodium thiopental apparently imported from the UK in an execution that was put on hold last month, it has emerged.

"Buying Medicine From Outside The U.S. Is Risky Business" Especially For Death Row Inmates

On Monday, October 25, 2010 a federal judge in Arizona issued a temporary restraining order to delay an execution because of questions surrounding the origin of one of the drugs - sodium thiopental - that Arizona (and other states) administers during the execution.  The Supreme Court issued an order on Tuesday, October 26, 2010 vacating the lower court's order.  

Death penalty cases rarely (never?) raise customs issues, but this one might.  In its order, the Supreme Court noted: 

There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.

Hmmm.  Section 801 of the Federal Food, Drug, and Cosmetic Act generally prohibits the importation of non-FDA approved prescription drugs.  Sodium thiopental is a "controlled substance" aka prescription drug.  The lower court found that the drug in question was "non-FDA approved."  

So the obvious questions are who imported the drug, how was it declared, and is there some general exception for prescription drugs imported for (by?) states for use in executions?  I'm not aware of any such exception but I suppose there could be one.  Seems to me that the public policy justifications (e.g. concerns about safety and efficacy) for prohibiting the importation of non-FDA approved drugs should apply whether the drugs are taken voluntarily by senior citizens or administered (involuntarily) to death row inmates.