Customs Protest Litigation, Targeted Dumping, New Leadership Among Big Topics in Trade for 2013
Fresh regulations and agreements, disputes and personnel will be among major issues in the coming year for those in the trade world, said industry lawyers who spoke at an American Bar Association international law conference April 26. Recent customs protest litigation will continue to be on the minds for those in the customs world and cases before the World Trade Organization, free trade agreements and potential new heads of the WTO and the U.S. Trade Representative are expect to be other hot topics in trade policy this year, they said.
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Significant cases like Hitachi Home Electronics -- over time limits for CBP action on customs protests -- and the U.S.’s action against Active Frontier International over false country of origin statements continue to affect customs policy (see 12120323 for more on Hitachi and 13011722 for more on Active Frontier). The Active Frontier case should especially be a lesson to importers, said Cortney Morgan of Barnes, Richardson at the panel, held as part of the American Bar Association Section of International Law’s 2013 spring meeting. “If you receive correspondence from customs, be sure to clearly understand what is being asked of you,” she said. The agency is also working to implement the most-recent free trade agreements: Colombia, Panama and Korea, Morgan said. In her practice, she’s noticed those agreements and preferential programs are a “big enforcement focus for customs right now.”
The State Department's enforcement priorities this year are China and Iran, said Geoffrey Goodale of Cooley. The Treasury Department is also implementing new regulations to deal with updated Iran sanctions. Treasury's Office of Foreign Assets Control amended Iran Sanctions Regulations in March (see 13031514). In August of last year, President Obama signed an executive order giving increased authority to State and Treasury for Iran sanctions violations (see 12080106).
Targeted dumping will also be an issue in 2013 and could “very well give rise to international disputes,” said John Magnus, president of trade consulting firm Tradewins. As a result of WTO actions, the Commerce Department will likely also tackle questions over the linkages between subsidies and dumping, Magnus said. “As you can imagine, they are struggling in that regard.” Trade remedy cases have also focused increasingly on branded products, like appliances, refrigerators and washing machines, Magnus said. Those items have "not traditionally been the main [focus] of these laws," he said.
The WTO is also getting a new Director General this year; the final candidates are from Mexico and Brazil, raising the question of whether movements towards transparency and public access will continue or slow down, Magnus said, since developing countries tend to be more cautious over those areas. A new USTR is also in the wings. The current “lack of leadership” is a real challenge for the agency, John Laroski, counsel in King and Spalding’s international practice group and former USTR general counsel, said. The problem is mitigated somewhat by the presence of Acting USTR Demetrios Marantis, Laroski said. Not having a permanent USTR nominated by the President is “not an insurmountable challenge,” but it will still continue to be an issue for the agency, Laroski said.
USTR has its hands full this year, working on the Trans Pacific Partnership, the EU-U.S. agreement and the International Services Agreement. Laroski classified TPP has the first free trade agreement the Obama Administration "really put a stamp [on]." The agreement will go beyond the WTO and include new chapters on state-owned enterprises, e-commerce and regulatory coherence. Though that issue is "an agenda item in the TPP, it is the agenda item in the [EU-U.S. agreement], Magnus said. Defining regulations, figuring out what's good and what's not good enough is "the real juice of the agreement," Magnus said.