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IMMIGRATION
& TRADE NEWS
LABOR
CONTRACTORS GET 12 YEARS IN PRISON
Three Florida citrus contractors received lengthy prison sentences for conspiring
to hold workers in involuntary servitude, harboring undocumented workers, interfering
with interstate commerce by extortion, and using firearms during the course of
a violent felony. United States District Judge K. Michael Moore sentenced brothers
Ramiro Ramos, age 42, and Juan Ramos, age 34, to 12 years and 3 months imprisonment
each. Their cousin Jose Ramos, age 45, was sentenced to 10 years and 3 months
imprisonment and also received a $10,000 fine. Judge Moore ordered defendants
Ramiro and Juan Ramos to forfeit real estate, personal property - including vehicles
- and over $3million in proceeds, because the jury determined that the property
was used in furtherance of the conspiracy or was obtained as a result of the criminal
enterprise. The evidence at trial established that the Ramiro and Juan Ramos worked
as farm labor contractors under the company name, R&A Harvesting, Inc., and engaged
in a conspiracy to hold migrant farm laborers in involuntary servitude and supply
those laborers to citrus industry growers. The conspiracy pre-dates the enactment
of the Victims of Trafficking and Violence Protection Act of 2000, which increased
criminal penalties and broadened prosecutors' authority in trafficking cases
to reach modern forms of slavery. The defendants were sentenced in accordance
with the laws in effect at the time of their offenses.
HOMELAND SECURITY NOW LAW
President Bush signed legislation creating a new Department of Homeland Security
November 24, 2002. The new cabinet-level position, with former Pennsylvania Governor
Tom Ridge at the helm, will include 170,000 employees from 22 separate agencies
including the Immigration and Naturalization Service.
NEW
REGISTRATION REQUIREMENTS
Citizens of 13 additional countries considered at higher risk for terrorism must
register with the government, Attorney General John Ashcroft announced on November
22, 2002. The new rules affect men born on or before Dec. 2, 1986, who are citizens
of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman,
Qatar, Somalia, Tunisia, the United Arab Emirates and Yemen. They must have entered
the United States on or before Sept. 30 and intend to stay at least until Jan.
10, 2003. Earlier this year, Mr. Ashcroft announced similar requirements for men
at least 16 years old from Iraq, Iran, Libya, Sudan and Syria. These men will
have to visit local offices of the Immigration and Naturalization Service to be
fingerprinted and photographed. The requirements do not apply to permanent residents,
diplomats or those who are seeking or were granted political asylum. Curiously,
the two countries which provided the greatest number of terrorists in the September
11, 2001 attacks are not on the list of countries required to register.
NEW ACTING INS DIRECTOR APPOINTED
The President intends to designate Michael J. Garcia of New York, to be Acting
Commissioner of Immigration and Naturalization at the Department of Justice. Mr.
Garcia is currently the Assistant Secretary of Commerce for Export Enforcement
at the Department of Commerce. Prior to his current position, he was Assistant
U.S. Attorney for the Southern District of New York. During his tenure, he was
twice the recipient of the Attorney General's Award for Exceptional Service
and he also received the Attorney General's Award for Distinguished Service.
Earlier in his career, Mr. Garcia worked as a law clerk for New York State Court
of Appeals Judge, Judith S. Kaye. He earned his bachelor's degree from the
State University of New York at Bingamton and his master's degree from the
College of William and Mary. Then received his J.D. from the Albany Law School
at Union University where he was first in his class.
INS ISSUES REMINDER FOR ALIENS WITH PENDING APPLICATIONS
The Immigration and Naturalization Service reminds aliens who have applied to
adjust status to that of permanent resident that they must obtain Advance Parole
(Form I-131-- Application for Travel Document) from the INS before traveling abroad
(see INS Travel Advisory Questions and Answers). Travel outside of the United
States may have severe consequences for certain aliens who are in the process
of adjusting their status. Such aliens may be unable to return to the United States,
their applications may be denied, or both. Note also that under the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, aliens who depart the United
States after being unlawfully present in the United States for certain periods
can be barred from admission to lawful permanent resident status, even if they
have obtained Advance Parole and would be otherwise eligible to adjust in the
United States. Those aliens who have been unlawfully present in the United States
for more than 180 days, but less than one year are inadmissible for three years;
those who have been unlawfully present for a year or more are inadmissible for
10 years. Thus, aliens who are unlawfully present, depart the U.S. and subsequently
reenter under a grant of parole, may nevertheless be ineligible to adjust their
status.
U.S.
SECURITIES BROKER CAN’T BE REJECTED FOR DIFFERENT INVESTMENT PHILOSOPHY
On October 25, 2000, Bellamah, Neuhauser & Barrett, Inc., filed an application
for alien employment certification on behalf of the Alien, Feldy Suwito, to fill
the position of Securities Broker. Duties of the job to be performed were described
as to "[s]ell financial products and services to clients for investment purposes."
Minimum requirements for the position were listed as a Bachelor's Degree in
Finance and Series 7 & 63 Licensed. Employer received six applicant referrals
in response to its recruitment efforts -- all of whom were rejected by Employer
as unqualified for the position. A Notice of Findings was issued by the Certifying
Officer on November 27, 2001, proposing to deny labor certification based upon
a finding that Employer unlawfully rejected an apparently qualified U.S. workers.
Noting there were no experience requirements listed for the position, the Certifying
Officer concluded that one citizen applicant met all the stated job requirements
and thus the Employer's rejection of his application, because his trading
style and did not comport with Employer's investment philosophy, was not accepted.
In Rebuttal, Employer asserted that the previously submitted reason (incompatible
trading style) was not the only reason for its rejection of the applicant - -
Williams. Employer also submitted as a basis for his rejection that Mr. Williams
insisted on working from his home. The CO decision was affirmed. Title
20 C.F.R. 656.21(b)(6), provides that U.S. workers applying for a job opportunity
offered to an alien may be rejected solely for lawful, job-related reasons. Section
656.20(c)(8) requires that the job opportunity be clearly open to any qualified
U.S. worker. In general, an applicant is considered qualified for a job if he
or she meets the minimum requirements specified for that job in the labor certification
application. United Parcel Service. 1990-INA-90 (Mar. 28, 1991); Mancillas International
Ltd., 1988-INA-321 (Feb. 7, 1990). Thus, an employer unlawfully rejects a U.S.
worker who satisfies the minimum requirements specified on the ETA 750A and in
the advertisement for the position. CCDONLINE Systems Inc., 1993-INA-258 (May
24, 1994); American Cafe, 1990-INA-26 (Jan 24, 1991); Cal-Tex Management Services,
1988-INA-492 (Sept. 19, 1990). Here, Employer stated its minimum requirements
as a "Bachelor Degree in Finance and Series 7 & 63 Licensed." Accordingly, inasmuch
as applicant Williams clearly met Employer's stated minimum requirements ,
the CO found Employer's cited basis of "incompatible trading style" was an
unlawful basis for rejection of this qualified U.S. worker applicant. The claim
that the rejected the US employee because he wanted to work at home as not credible.
BELLAMAH, NEUHAUSER & BARRETT, INC., EMPLOYER ON BEHALF OF FELDY SUWITO, ALIEN
BALCA Case No.: 2002-INA-75 ETA Case No.: P2001-DC-03361153 Decided: November
6, 2002 .
DEFICIENT NOF LEADS TO REMAND FOR AA TO FASHION PHOTOGRAPHER
A Fashion Photo Studio filed an application for the position of Administrative
Assistant. The Certifying Officer ("CO") denied certification. On
April 30, 2001, Employer, Magic Glamour, filed an application for alien employment
certification on behalf of the Alien, Maria Bustillos, to fill the position of
Administrative Assistant. The job to be performed was described as to "[a]ssist
fashion photographer in preparing set and applying make-up. Maintain records,
manage accounts". Minimum requirements for the position were listed as two years
experience in the job offered. Employer received forty-eight applicant referrals
in response to its recruitment efforts, all of whom were rejected by Employer
as either unqualified or unavailable for the position. A Notice of Findings (NOF)
was issued by the CO on October 15, 2001, proposing to deny labor certification
based upon a finding that Employer had provided the Alien with the training and/or
experience necessary to qualify for the job opportunity, and thus had not stated
its actual minimum requirements for the petitioned position. In addition, the
CO cited Employer's rejection of over 35 U.S. workers for the experience the
Alien lacked, i.e. two years experience in a photo studio, as an unlawful rejection
of these U.S. workers. In Rebuttal, Employer submitted a copy of a letter from
Algo Publicity indicating that the Alien had worked for the company in Mexico
as a photographer, cosmetologist and administrative assistant from March 1985
to June 1992, thus maintaining that the Alien had the required qualifications
even before coming to the United States. Employer also indicated that it amended
the Form ETA-750, part B, to reflect this. Employer further contended that its
rejection of the applicants who did not have prior experience as an Administrative
Assistant in a photo studio was proper because such experience was specifically
required by Employer in its Form ETA-750, posting notice and advertisement. A
Final Determination denying labor certification was issued by the CO on November
27, 2001, based upon a finding that Employer had failed to establish that the
Alien met the minimum job requirements when hired. The CO noted the experience
documented by Employer was experience as an administrative assistant in an advertising
agency, not a photo studio. Since Employer failed to demonstrate that the Alien
possessed the required photo studio experience when hired, the CO found Employer's
rejection of 35 U.S. workers for lacking the same experience unsupportable and
hence, an unlawful rejection of these U.S. workers. On appeal, The Certifying
Officer's denial of labor certification was VACATED and the matter REMANDED
for further consideration and findings as the Board concluded that the CO did
not adequately set forth the bases for his conclusion so as to allow Employer
to fully address the issue. Specifically, the NOF must give notice that is adequate
to provide the employer an opportunity to rebut or cure the alleged defects. Downey
Orthopedic Medical Group, 1987-INA-674 (Mar. 16, 1988)(en banc). If an unclear
or ambiguous NOF causes or contributes to an employer's confusion, the matter
may be remanded to the CO for clarification and to give the employer an opportunity
to rebut. See, e.g., Patisserie Suisse, Inc., 1990-INA-131 (Oct. 16, 1991); Poultry
Classics, 1991-INA-68 (June 21, 1991); Toys "R" Us, 1989- INA-345 (Dec. 10, 1990);
Sue Chiang, 1989-INA-77 (May 25, 1990); American Candy Manufacturing Corp., 1988-INA-274
(Oct. 27, 1989); Hudson Tool & Die Company, 1988-INA-415 (Oct. 4, 1989); Dr. Joseph
Maghen, 1988-INA-335 (Aug. 8, 1989). Here, the Form 750 Part B, Statement of Qualifications
of the Alien, indicates that the Alien had in excess of seven years experience
as an Administrative Assistant at a photo studio prior to her hire by Employer
in January 2001. However, as was raised by Employer in its brief on appeal, because
the company the Alien previously worked for is named Manzano Enterprises, Inc.,
and the Alien's current employer's last name is also Manzano, the CO presumably
assumed that both companies either belonged to the same person or are somehow
related. Employer further states: However, this is only a guess, since [the] CO
did not provide any basis for his assumption and did not request any information
that would establish that the two companies are, in fact, separate and unrelated
entities. Thus, the Employer was deprived of the opportunity to provide any rebuttal
to [the] CO's findings, and the alien, in turn, was forced to expend additional
time and resources to obtain a letter of experience from Mexico. As a result,
the Board concluded this matter should be remanded to provide an Employer an opportunity
to address this issue. IN THE MATTER OF: MAGIC GLAMOUR, EMPLOYER ON BEHALF OF
MARIA BUSTILLOS, ALIEN BALCA Case No.: 2002-INA-71 ETA Case No.: P2001-DC-03358132
November 5, 2002.
DISTRICT
COURT AFFIRMS RETROACTIVE EFFECT OF 1996 IMMIGRATION LAWS DENYING RELIEF
Evangelista is a native of Italy who has been a lawful permanent resident of the
United States since 1961. Although Evangelista never became a citizen of this
country, his wife is a naturalized United States citizen. His five adult children
were all born in this country and remain residents of the United States. In October
of 1996, Evangelista was convicted, after a jury trial, of tax evasion. Specifically,
Evangelista was convicted of conspiracy to impede the IRS in collection of income
and payroll taxes in violation of 18 USC § 371, failure to collect or pay income/FICA
taxes in violation of 26 USC § 7202 and attempt to evade or defeat tax in violation
of 26 USC § 7201. After his conviction, Evangelista was sentenced to a 51 month
term of imprisonment. In 1999, Evangelista was placed in removal proceedings by
the INS . The government sought to remove Evangelista based upon his conviction
of an aggravated felony. 8 U.S.C. § 1101(a)(43)(M)(ii). Evangelista sought administrative
relief from deportation before the INS. In a decision dated April 11, 2000, an
Immigration Judge ("IJ") denied the application. The decision of the IJ held,
specifically, that Evangelista was, indeed convicted of an "aggravated felony,"
within the meaning of the relevant statute. Further, the IJ held that Evangelista
was ineligible for a waiver of deportation pursuant to Section 212(c) of the INA.
The rejection of the request for a waiver hearing was based on the holding that
Section 212(c) was repealed and no longer available to individuals who, like Evangelista,
were facing deportation and as a result of a conviction dated after the statute's
repeal. The Board of Immigration Appeals affirmed the decision and Evangelista’s
request for habeus corpus was denied. The United States Federal Court for the
Eastern District of New York affirmed. The retroactive effect of the 1996 immigration
laws eliminating such relief is constitutional. See, Evangelista v. Ashcroft,
2002 WL 31662715 (November 22, 2000).
CONVENTION AGAINST TORTURE DOES NOT APPLY TO ROGUE GOVERNMENT
Alien sought, inter alia, Convention Against Torture protection against actions
taken by the Liberation Tigers of Tamil in Sri Lanka. The claim was rejected without
much discussion because the Liberation Tigers of Tamil do not constitute a government.
However, in a world where rebel groups do retain government like control over
some significant sections of countries, it is submitted this decision might require
some additional analysis in the future. See, Perinpanathan v. I.N.S., 2002 WL
31500939, ___F.3rd_____(CA 8) (November 13, 2002).
Evil
and stupid: ARAB NEWS CONDMENS MOMBASA BOMBING
Here is an editorial from the Arab News on 29 November 2002 condemning the Mombasa
bombing. We thought it interesting and worth reprinting in its entirety if for
no other reason then it conveys views from the Arab world that do not get covered
by the talking heads of the US news networks, but should be heard:
Arab News Editorial 29 November 2002
Yesterday’s suicide bomb explosion at an Israeli-owned hotel in the Kenyan
seaside resort of Mombasa and the double missile attack on an Israeli charter
airliner taking off from the city’s airport were not wholly unexpected.
A month ago, Al-Qaeda said in one of its taped messages that it would go after
Jewish targets worldwide; despite the claims of responsibility from a hitherto
unknown Palestinian group, Al-Qaeda remains the likely perpetrator.Expectation,
however, does not make what happened any less evil — or stupid.
It is bad enough when innocent bystanders are killed in military action, but civilians,
Israeli or otherwise, must never be targeted. The fact that the Palestinians are
at war with Israel does not alter that fundamental fact. In any event, what was
the military objective here? Was the hotel a secret Israeli army base? Where the
two children killed in the blast Israeli soldiers? Were the six Kenyans killed
closet Israelis? The fact that the Israeli Army kills innocent Palestinians, even
Palestinian children, is no justification. It is not for Israel’s enemies
to mimic its evil deeds.
To target and kill civilians is the worst of crimes against humanity.
Killing Israeli holiday-makers, or those waiting for buses in Israel, is no different
to Serbs slaughtering the innocents of Srebrenica, other than in scale. Those
who organized the Mombasa attacks are on a par with the Milosevics and Karadzics
of this world — just as cruel, vile and culpable.
Nor will such evil advance the Palestinian cause. It will set it back —
which is why this coordinated attack, for all its apparent sophistication, was
so insane. All that the Palestinians have is the moral high ground, based on the
justice of their cause. That high ground is the only hope of a free Palestine
being one day created. It is reinforced when the world sees pictures of Palestinian
homes bulldozed and innocent Palestinian children killed. But it works the other
way too. Every time a suicide bomb goes off in Israel, every time Israeli civilians
are killed, at a club, at a bus stop, that moral high ground is eroded. Whether
or not Palestinians were involved in the Mombassa action, they will, sadly, be
tainted by it.
There is another reason why this attack sets their cause back. It and the bus
attack in northern Israel are precisely the sort of action that frightens the
Israelis into Ariel Sharon’s bloodstained arms. He — and Netanyahu
— alone gain.
There will be other victims too — Muslim victims —as a result of this
insane action. Tanzanian and Kenyan Muslims still feel the weight of discrimination
and suspicion as a result of Al-Qaeda’s 1998 US Embassy attacks in the two
countries. In Tanzania there has been outrage among Muslims at a new terrorism
law which they believe discriminates specifically against them. This bombing will
make matters immeasurably worse. It will be used by Tanzania to justify the new
law and could be used by both states to clamp down even tighter. Not that Al-Qaeda
will care.
But this attack is also a warning to President Bush who has allowed himself to
be deflected by Iraq. Last month there was the bomb attack in Bali. Yesterday,
it was Mombasa. Tomorrow where? Goa? Benidorm? Bodrum? Marrakesh? Al-Qaeda is
not going to stop. Like a ravenous, stalking beast, it has tasted human flesh
and will crave for more until it is destroyed. Its destruction has to be the crux
of the war on terrorism, not Iraq.
AMNESTY INTERNATIONAL REPORTS ON VARIOUS ABUSES
02/12/2002Bolivia: Will the new government defend human rights defenders? (AMR
18/005/2002) 02/12/2002Egypt: Release human rights defenders (MDE 12/041/2002)
02/12/2002Iraq: UK government dossier on human rights abuses (MDE 14/031/2002)
01/12/2002World AIDS Day: human rights central to battle against AIDS (POL 30/008/2002)
29/11/2002Japan: Cease all executions (ASA 22/010/2002) 29/11/2002Republic of
Korea: commute death sentences (ASA 25/010/2002) 29/11/2002Russian Federation:
No forcible return of displaced Chechens to Chechnya until security is guaranteed
(EUR 46/064/2002) 29/11/2002 Bahrain: Amnesty International concerned that new
legislation allows impunity for human rights offences (MDE 11/001/2002) 28/11/2002
Kenya/Israel: Amnesty International condemns targeting of civilians (AFR 32/021/2002)
28/11/2002Cambodia / Thailand: Sok Yoeun must not be extradited (ASA 23/011/2002)
27/11/2002 Guatemala: Justice without fear(AMR 34/076/2002) 27/11/2002Ireland:
Irish Government refuses access to Amnesty prison researchers (EUR 29/001/2002)
27/11/2002Bosnia-Herzegovina: SFOR detention violates human rights (EUR 3/019/2002)
26/11/2002Brazil: Espírito Santo -- Witnesses at risk! (AMR 19/029/2002) 26/11/2002China:
Internet users at risk of arbitrary detention, torture and even execution (ASA
17/056/2002)26/11/2002Russian Federation: Lawmakers must abide by Russia's
international obligations in safeguarding freedom of expression (EUR 46/063/2002)
26/11/2002) Turkmenistan: government must seek justice not revenge (EUR 61/005/2002)
25/11/2002India: Jammu/Kashmir government should implement human rights program
(ASA 20/022/2002) 22/11/2002Liberia: The UN Security Council should accord highest
priority to protection of human rights (AFR 34/030/2002) 22/11/2002Myanmar: Amnesty
International calls for release of all prisoners of conscience (ASA 16/017/2002)
22/11/2002Nepal: Sexual abuse reports highlight plight of Bhutanese refugees (ASA
31/071/2002) 22/11/2002Denmark/Iraq: International Justice for the victims of
Halabja (EUR 18/002/2002) 21/11/2002Egypt: UN experts concerned about persistence
of torture (MDE 12/040/2002) 20/11/2002Japan: Prison abuses must stop (ASA 22/009/2002)
20/11/2002Spain: Government must act against torture and ill-treatment
US
AND INDIA HOLD DISCUSSIONS ON IMPORT-SURGE COMPLAINTS BY US STEEL PRODUCERS
Following recent complaints to US trade officials from producers of carbon flat-rolled
producers and stainless bar and angles, that imports from India exceeded the 3-percent
total import share threshold, and a request that India’s Section 201 exemption
status be reconsidered, US and Indian government officials are reported to have
met and discussed recent steel import surges from India. The talks, that can have
major impact on Indian steel exports to US, are expected to continue later this
month.
Background Information: Under President Bush’s Proclamation issued March
5, 2002, the safeguard measures were not applied to imports from any developing
country that is a member of the WTO, “as long as that country's share
of total imports of the product, based on imports during a recent representative
period, does not exceed 3 percent . . .” Under the Proclamation, if it is
determined that a surge in imports of a product from a developing country undermines
the effectiveness of the pertinent safeguard measure, the safeguard measure shall
be modified to apply to such product from such country. A possible dumping and
countervailing duty case may also follow.
In a press release dated October 29, 2002, President and CEO of American Iron
and Steel Institute, Andrew G. Sharkey, III, urging the Administration and the
Congress defend vigorously the President's Steel Program, stated that: "The
facts on the current situation in the U.S. steel market differ greatly from the
false story being told by opponents of the President's Steel Program. . .
imports are surging, less than a quarter of total imports are covered by the 201
tariffs and significant additional domestic capacity is coming on stream. . .
spot prices are continuing to decline here, while they remain on the rise in most
other regions of the world . . .” On the other hand, “Users say steel
tariffs are 'wreaking havoc.
US PLANS INTERNET-BASED STEEL LICENSING AND IMPORT-SURGE MONITORING SYSTEM
US is working on this system which will be composed of three parts: an online
registration system for steel importers; an automatic steel license-issuance system;
and a Web site for monitoring import surges. The system is designed to help the
U.S. Trade Representative's office review import data on a quarterly basis,
looking for signs of material increases in imports, which then would be the basis
for immediate consultations and possible inclusion in the safeguard measure.
STAINLESS STEEL BAR FROM INDIA: FINAL RESULTS OF NEW SHIPPER ANTIDUMPING
DUTY ADMINISTRATIVE REVIEW
The International Trade Administration, Department of Commerce completed its new
shipper administrative review of the antidumping duty order on stainless steel
bar from India, requested by Uday Engineering Works of India (Uday), and found
that the reviewed company made sales of stainless steel bar from India in the
United States below normal value during the period of review, February 1 through
July 31, 2001.
REVOCATION OF ANTIDUMPING DUTY ORDERS ON COLLATED ROOFING NAILS FROM PEOPLE'S
REPUBLIC OF CHINA AND TAIWAN
The Department of Commerce is revoking the antidumping duty orders on collated
roofing nails from the PRC and Taiwan because no domestic party responded to the
sunset review notice of initiation by the applicable deadline. The Department
initiated the sunset reviews of the antidumping duty orders on October 1, 2002.
The Notice of Final Results of Five Year Sunset Reviews and Revocation of Antidumping
Duty Orders was published November 25, 2002.
INITIATION OF ANTIDUMPING DUTY INVESTIGATION: CERTAIN MALLEABLE IRON PIPE
FITTINGS FROM THE PEOPLE'S REPUBLIC OF CHINA
This investigation is in response to a petition filed by Anvil International,
Inc., and Ward Manufacturing Inc. alleging that imports of malleable iron pipe
fittings (malleable pipe fittings) from the People's Republic of China (PRC)
are being, or are likely to be, sold in the United States at less than fair value
(LTFV), and that such imports are materially injuring, or are threatening to materially
injure, an industry in the United States. The anticipated period of investigation
(POI) for the PRC, a non-market economy (NME) country, is April 1, 2002, through
September 30, 2002. Regarding an investigation involving a NME country, the Department
presumes, based on the extent of central government control in a NME, that a single
dumping margin, should there be one, is appropriate for all NME exporters in the
given country. The petitioners have identified seven companies as producers and/or
exporters of malleable pipe fittings from the PRC: Jinan Meide Casting Co., Ltd.,
National Steel Products Co., Ltd., Shandong Flying Casting & Forging Co., Ltd.,
Dalian Zhong Sheng Metal Products Co., Ltd., Hebei Great Wall Import & Export
Corporation, Tianjin Foreign Trade Group, and Xiamen Jia Da Quan Valves & Fittings
Co., Ltd.
ANTIDUMPING
PROCEEDINGS, “AFFILIATED PARTY SALES IN THE ORDINARY COURSE OF TRADE”
The International Trade Administration (U.S. Department of Commerce) is modifying
its methodology in antidumping proceedings concerning the determination of whether
sales to affiliated parties in the comparison market are made in the ordinary
course of trade and thus may be considered for use in calculating normal value.
This change in methodology concerns the test used in antidumping proceedings to
determine whether comparison market sales between affiliated parties are made
at arm's length and thus may be considered to be within the ``ordinary course
of trade.'' The new test will provide that, for sales by the exporter
or producer to an affiliate to be included in the normal value calculation, those
sales prices must fall, on average, within a defined range, or band, around sales
prices of the same or comparable merchandise sold by that exporter or producer
to all unaffiliated customers. The band applied for this purpose will provide
that the overall ratio calculated for an affiliate be between 98 percent and 102
percent, inclusive, of prices to unaffiliated customers in order for sales to
that affiliate to be considered ``in the ordinary course of trade'' and
used in the normal value calculation. This new test is consistent with the view,
expressed by the WTO Appellate Body, that rules aimed at preventing the distortion
of normal value through sales between affiliates should reflect, ``even-handedly,''
that ``both high and low-priced sales between affiliates might not be ``in the
ordinary course of trade'.'' The schedule for implementing this change
is set forth in the ``Timetable'' section of the Notice published.
FERROVANADIUM FROM THE PEOPLE'S REPUBLIC OF CHINA, DEPARTMENT OF COMMERCE
NOTICE OF FINAL DETERMINATION OF SALES AT LESS THAN FAIR VALUE
In two Notices published in Federal Register November 29, 2002, Department of
Commerce has determined that ferrovanadium from the People's Republic of China
(PRC), and the Republic of South Africa is being sold, or is likely to be sold,
in the United States at less than fair value (LTFV). The preliminary determinations
of sales at less-than-fair-value of this product from PRC was published on July
8, 2002, and from South Africa on June 25, 2002. As Commerce’s final determinations
are affirmative, the International Trade Commission (ITC) will determine, within
45 days, whether these imports are materially injuring, or threaten material injury
to, the U.S. industry. If the ITC determines that material injury, or threat of
material injury does not exist, the proceeding will be terminated and all securities
posted will be refunded or canceled. If the ITC determines that such injury does
exist, the Department will issue an antidumping duty order directing Customs officials
to assess antidumping duties on all imports of subject merchandise entered for
consumption on or after the effective date of the suspension of liquidation.
INSTITUTION OF ANTIDUMPING INVESTIGATION FOR IMPORTS OF REFINED BROWN
ALUMINUM OXIDE FROM CHINA
In response to a petition filed on November 20, 2002, by Washington Mills Co.,
Inc., North Grafton, MA, the International Trade Commission (ITC) has instituted
an investigation and commenced preliminary phase of antidumping investigation
to determine whether there is a reasonable indication that an industry in the
United States is materially injured or threatened with material injury, or the
establishment of an industry in the United States is materially retarded, by reason
of imports from China of refined brown aluminum oxide. The product covered by
this investigation is ground, pulverized, or refined brown aluminum oxide. Crude
aluminum oxide is excluded from the scope of the petition. Persons (other than
petitioners) wishing to participate in the investigation as parties must file
an entry of appearance with the Secretary to the Commission not later than seven
days after publication of this notice in the Federal Register, which is November
29, 2002.
BARIUM CARBONATE FROM CHINA
Pursuant to a petition filed September 30, 2002 with the United States International
Trade Commission (ITC) and the Department of Commerce by Chemical Products Corp.,
Cartersville, GA, alleging that an industry in the United States is materially
injured or threatened with material injury by reason of less than fair value (LTFV)
imports of barium carbonate from China, and the following investigation, the ITC
has determined that there is a reasonable indication that an industry in the United
States is threatened with material injury by reason of imports from China of barium
carbonate, provided for in subheading 2836.60.00 of the Harmonized Tariff Schedule
of the United States, that are alleged to be sold in the United States at LTFV.
The Commission also gave notice of the commencement of the final phase of its
investigation. The Commission will issue a final phase notice of scheduling, which
will be published in the Federal Register upon notice from the U.S. Department
of Commerce (Commerce) of an affirmative preliminary determination in the investigation
under section 733(b) of the Tariff Act of 1930 Act, or, if the preliminary determination
is negative, upon notice of an affirmative final determination in that investigation
under section 735(a) of the Act.
CONTAINER
SECURITY INITIATIVE (CSI) IRKS EUROPEANS
New York Times reports, “The European Union was considering disciplining
member countries that are taking part in the American program, fearing that it
could create havoc in the shipping industry. The European Union is concerned about
two-country agreements that the Bush administration has reached with eight nations
in Europe and Asia, allowing United States Customs officers to select cargo containers
for the inspection of hazardous material before they are shipped to the United
States.
US
PROPOSES ELIMINATION OF GLOBAL TARIFFS
In an attempt to revive the stalled Doha round of world trade talks, United States
has proposed the elimination of global tariffs on industrial and consumer goods
by 2015. And by all tariffs Mr Bush means all—not just in America, but around
the world. This proposal follows an equally ambitious American plan to eliminate
agricultural export subsidies, is enough to make many of America’s closest
industrial partners pale. The European Commission's initial reaction was cautious,
though the WTO's Mr Supachai called the plan courageous, saying it would send
out the right signal to other WTO members. Earlier, in his first annual report
to members on developments in the international trading environment released on
15 November 2002 the Director-General of WTO said there is still “unfinished
business on tariffs,” noting that “tariffs remain an important impediment
to international trade, notwithstanding the considerable achievements of the Uruguay
Round.” He added that even in industrialized countries, where average tariff
protection is low, tariff “peaks” exist in certain sectors, notably
agricultural products, textiles, clothing and footwear. Dr. Supachai said another
key area of interest is agriculture, which, “despite its small and diminishing
contribution to GDP in most developed economies, receives a disproportionate amount
of assistance in the form of subsidies and protection at the border”.
GLOBAL TRADE LOOKING GLASS: CAN U.S. HAVE IT BOTH WAYS?
In this article published in New York Times, November 9, 2002, Daniel Altman writes:
“Policies adopted by the Bush administration to advance specific domestic
and international goals are undermining the White House's own efforts to open
markets through trade's global rule-making body, some foreign officials say.
In particular, new farm subsidies and other barriers to the American market have
led some of America's trading partners to doubt Washington's commitment
to free trade, in spite of its ambitious proposals to reduce distortions in world
markets. Those doubts, combined with the United States' pursuit of trade agreements
outside the World Trade Organization, have also diminished the pre-eminence of
the W.T.O., the critics say. That change may impede a crucial round of global
trade negotiations begun substantially through American diplomacy last November
in Doha, Qatar. . . Experts estimate the farm bill, signed by President Bush last
spring, could increase federal spending on agriculture by 70 percent over the
next six years, to as much as $180 billion, potentially violating limits for farm
support set during the last round of global trade talks, but Mr. Zoellick's
office (United States trade representative) disputed that. . . . Supachai Panitchpakdi,
the director general of the W.T.O., said the increase in subsidies under the farm
bill had hampered the new round of global trade talks. "It has created some questions,
some doubts in the mind of some countries," he said, "and has sometimes been used
to delay some of the proposals". . . In addition to complaints about specific
policies, some critics have also objected to Mr. Zoellick's simultaneous pursuit
of trade pacts with individual countries, with regional bodies like the Free Trade
Area of the Americas and with the W.T.O. While that approach ensures against any
one set of talks collapsing, diplomats say it also puts some negotiating partners
at a disadvantage. Small countries in particular often lack the expertise to engage
in three sets of talks, and the comprehensive negotiations at the W.T.O. could
be shortchanged.”
Countervailing Duties Investigation Against Korean Semiconductors
(dynamic random access memory)
In a Notice published in Federal Register, November 27, 2002, the Department of
Commerce is initiating a countervailing duty investigation to determine whether
manufacturers, producers, or exporters of dynamic random access memory from the
Republic of Korea have received countervailable subsidies.
PEDESTAL
ACTUATORS FROM CHINA
Pursuant to a petition filed August 19, 2002 on behalf of Motion Systems Corporation,
the United States International Trade Commission determined that pedestal actuators
from the People's Republic of China are being imported into the United States
in such increased quantities or under such conditions as to cause market disruption
to the domestic producers of like or directly competitive products. Pedestal actuators
consist of electromechanical linear actuators, imported with or without motors,
or as part of scooter subassemblies, all the foregoing used for lifting and lowering,
or for pushing or pulling. The products under investigation include any subassembly
of pedestal actuator parts and components. The Commission transmitted its determination
to the President and U.S. Trade Representative on October 18, 2002; it transmitted
its remedy proposals to the President and U.S. Trade Representative on November
7, 2002. The views of the Commission are contained in USITC Publication 3557 (November
2002), entitled Pedestal Actuators from China: Investigation No. TA-421-1.
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