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To improve marine safety and prevent marine pollution, United States and European Union agree on mutual recognition of technical conformity for marine equipment
On February 27, 2004, the EU signed the Agreement between the European Community and the United States of America on the mutual recognition of certificates of conformity for marine equipment. The U.S. and the EU have decided that “mutual recognition” procedures will facilitate trade in technical equipment. The way it works is that recognized bodies in the exporting country certify the marine product’s compliance with the importing country’s regulatory and technical requirements.
The Agreement lays down the conditions under which the importing party’s regulatory authority is to accept the certificates of conformity issued by the exporting party’s conformity assessment bodies. Essentially, the technical requirements in both the U.S. and EU are presumed to be equivalent. Further, it provides a framework for regulatory cooperation between the U.S. and the EU for marine equipment. See Articles 2 and 4 of the Agreement.
Each party designates the qualified conformity assessment bodies (laboratories) that are qualified to review the technical conformity of the products to be traded (Article 6). To ensure proper functioning of the Agreement, the parties established a Joint Committee which will meet periodically and which may also set up Joint Working Groups (Article 7).
In Annex II, the Agreement lists the covered maritime products and it will be periodically updated. It contains products such as Lifebuoy self-activating smoke signals, line-throwing appliances, liferafts, magnetic compasses, echo-sounding equipment and rate-of-turn indicators.
The EU has designated a regulatory agency in each of the EU Member States. For example, in the United Kingdom it is the Maritime and Coastguard Agency in Southampton. The relevant Commission Directorate is the Directorate General for Energy and Transport, Maritime Safety Unit. In the U.S., it is the U.S. Coast Guard, Office of Design and Engineering Standards (G-MS).
The underlying laws and regulations are Council Directive 96/98/E.C. of 20 December 1996 for the EU, and 46 U.S.C. Section 3306 and 46 C.F.R. Parts 159 to 165 for the U.S. The text of the Agreement is attached to the corrected Council Decision 2004/425/E.C. It entered into force on July 1, 2004.
Citation: Corrigendum to Council Decision 2004/425/E.C. of 21 April 2004 on conclusion of Agreement between European Community and United States of America on mutual recognition of certificates of conformity for marine equipment, 2004 O.J. of European Union (L 185) 18, 24 May 2004 (corrected Council Decision and text of Agreement) & (L 234) 9, 3 July 2004 (notice of entry into force).
Filed in: 2004 International Law Update, Issue8
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Over strenuous objections from EU, Japan, and other WTO members, U.S. imposes temporary tariff safeguards to reduce steel imports as way of assisting struggling U. S. steel industry
Pursuant to Section 201 of the U.S. Trade Act of 1974, the U. S. President had opened an investigation in June 2001 to determine whether foreign steel was entering the U.S. in such increased quantities as to be a substantial cause of serious injury, or threat thereof, to the domestic steel industry. To help out the embattled U.S steel industry, the President instituted temporary safeguards in the form of tariffs on imported steel and steel products on March 5, 2002.
Pursuant to Section 203(b)(1) of the Trade Act of 1974, the President reported the safeguards to Congress. According to the Report, these measures include: (1) a 30% tariff on imports of plate, hot-rolled sheet, cold-rolled sheet, and coated sheet, as well as tin mill products and (2) a 15% tariff on certain welded tubular products and stainless steel bars, as well as stainless steel rods.
These tariffs do not apply to NAFTA or other Free Trade Agreement (FTA) partners. The tariffs took effect on March 20, 2002, and will remain in force for three years with periodic reviews of their effectiveness and of the need to continue them. There were vigorous protests from the EU, Japan, and other WTO members.
In a press release, the EU stated that these U.S. measures fail to meet the requirements of the WTO Safeguards Agreements. The Korean steel case (see WTO dispute DS202), for instance, found that a similar U.S. approach was incompatible with WTO trading rules. Thus, the EU brought a complaint before the WTO on March 7, 2002. In its view, the problems facing the U.S. steel industry result not from imports but from “legacy costs” such as health and pension obligations for laid-off and retired workers. The EU also contends that a multilateral approach towards solving the problems of the U.S. steel industry would have been preferable, such as a surcharge on all sales of steel in the U.S.
Citation: Action under Section 203 of the Trade Act of 1974 Concerning Certain Steel Products, 67 Federal Register 10593 (March 7, 2002); Proclamation 7529 of March 5, 2002 … To Facilitate Positive Adjustment to Competition From Imports of Certain Steel Products, 67 Federal Register 10553 (March 7, 2002). [See also European Union in U.S. news release No. 11/02 (March 5, 2002); www.CNN.com report of March 6, 2002, “EU lashes out at U.S. steel row”; Press release of Ministry of Foreign Affairs of Japan of March 6, 2002, available on www.mofa.go.jp; President’s Report is available on website of U.S. Trade Representative at www.ustr.gov; The Washington Post, March 8, 2002, page E3; Further information on EU position is available on website of European Commission at http://europa.eu.int.]
Filed in: 2002 International Law Update, Issue 3
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Mexico publishes operating rules for its program of distribution centers in U.S., called “Mexican-U.S. Commercialization System” and designed to expand trade with U.S. by small and medium-sized Mexican companies
Effective March 15, 2001, the Mexican Government published the rules of operation for its Distribution Center Program in the United States, called “Agreement that announces the rules of operation and evaluation and management factors for the program of distribution centers in the United States.”
The purpose of this Mexican program is the promotion of exports to the U.S. Approximately 90% of all Mexican companies are small and medium size companies, and their share in the export market is less than 2%. The large number of Mexicans living and working in the U.S., as well as the favorable trading environment provided by NAFTA, offer an opportunity for Mexico to expand its exports to the U.S.
Therefore, the Mexican Government, along with the Ministry of Economy and the Representative Office for Mexicans Abroad and Mexican-Americans, has developed a this new strategy. The main purpose is to channel the resources of small and medium enterprises to promote and distribute their products in the U.S. (Article 2). In particular, the Program will provide infrastructure such as training, warehouse space, and advice about potential markets covered by a Distribution Center. (Article 4). To take part, companies must meet certain criteria. For example they must have not more than 100 employees if they are in the service sector, or 500 employees if they are in the manufacturing sector (Articles 9 and 10).
To administer the program, the Government is setting up an Advisory Council (Consejo Consultivo) (Articles 23, 24 and 25), and a Technical Committee (Comite Tecnico) (Articles 26 and 27). The Program will establish entities (instituciones) in the form of Mexican non-profit organizations to furnish the export assistance. (Articles 28-32). These entities, in turn, will cooperate with non-profit “distribution centers” to be established in the U.S. (Articles 33-35).
Finally, a Directorate will govern the Program (Direccion). It is to be independent of the Government but will cooperates closely with the Directorate General for Promotion “D” within the Ministry of Economy (Articles 36-38).
Citation: Acuerdo por el que se dan conocer las reglas de operacion e indicadores de evaluacion y de gestion del programa de centros de distribucion en Estados Unidos, [Mexican] Diario Oficial de la Federacion, 15 March 2001.
Filed in: 2001 International Law Update, Issue5
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World Trade Organization Appellate Body affirms that U.S. restrictions on lamb meat from Australia and New Zealand violate WTO trading rules
On May 1, 2001, the World Trade Organization (WTO) Dispute Settlement Body released the Appellate Body report in the dispute regarding U.S. import barriers to lamb meat from Australia and New Zealand. The dispute revolves around a safeguard investigation begun by the U.S. International Trade Commission (USITC) on October 7, 1998 as to imports of lamb meat.
The U.S. imposed a definitive safeguard measure in the form of a tariff-rate quota on July 7, 1999. Australia and New Zealand filed a complaint with the WTO, alleging that the U.S. safeguard measures are inconsistent with Articles I, II, and XIX of GATT 1994 and the Agreement on Safeguards.
In a Report circulated on December 21, 2000, a Dispute Settlement Panel found that the U.S. safeguard measure did in fact violate trading rules. For example, the U.S. had failed to demonstrate the existence of “unforeseen developments” (see Article XIX:1(a) of GATT 1994), and had broadly defined its “domestic industry” as including growers and feeders of live lambs (see 4.1(c) of the Agreement on Safeguards).
The Appellate Body Report essentially upholds the Panel’s findings. In addition, the Appellate Body:
(1) Upholds the Panel’s finding that the USITC used data that was not sufficiently representative of the U.S. “domestic industry”;
(2) Finds that the Panel correctly interpreted the standard of review as set forth in Article 11 of the Dispute Settlement Understanding, which is appropriate to the review of claims under Article 4.2 of the Agreement on Safeguards.
(3) Concludes that the U.S. acted inconsistently with Articles 2.1 and 4.2(a) of the Agreement on Safeguards because the USITC Report did not explain adequately the determination that there existed a threat of serious injury to the domestic industry;
(4) Reverses the Panel’s interpretation of the causation requirement in the Agreement on Safeguards but upholds the ultimate finding that the U.S. acted incompatibly with Articles 2.1 and 4.2(b) of the Agreement because the USITC’s determination that there existed a causal link between increased imports and a threat of serious injury did not positively exclude other factors that may have hurt domestic industry.
The Appellate Body therefore recommends that the U.S. bring its safeguard measure in compliance with its obligations under GATT 1994 and the Agreement on Safeguards.
Citation: United States – Safeguard measures on imports of fresh, chilled or frozen lamb meat from New Zealand and Australia (WT/DS177/AB/R & WT/DS178/AB/R) (1 May 2001). The Appellate Body report is available on the WTO website “www.wto.org”.
Filed in: 2001 International Law Update, Issue5
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U.S. executive and legislative branches approve “Permanent Normal Trade Relations” with China that may pave way to latter’s World Trade Organization membership in near future
On May 24, 2000, the U.S. House of Representatives approved “Permanent Normal Trade Relations” (PNTR) with China by a vote of 237 to 197. On September 19, 2000, the Senate passed the bill with a 83-15 vote. The President signed the bill into law on October 10, 2000. This brings China a step closer to WTO membership, possibly before the end of the year.
The Act has two main sections, (1) normal trade relations with China, and (2) U.S.-China relations. It provides, in particular, for (1) terminating the application of Title IV of the Trade Act of 1974 to China, allowing the President to grant normal trade relations treatment to China (Section 101), and (2) approving China’s accession to the World Trade Organization (WTO).
The latter provision requires the President to submit a report to Congress certifying that the terms and conditions are at least equivalent to those agreed to between the U.S. and China on November 15, 1999. See 1999 International Law Update 169. The nondiscriminatory treatment will be effective upon China’s entry into the WTO (Section 102).
With this action, Congress has ended its practice of granting normal trade privileges to China on an annual basis and instead grants Chinese products the same low-tariff access that products from most countries enjoy. China, in return, has granted U.S. products lower tariffs and has made other free-trade concessions as part of the U.S.-China agreement on China’s WTO accession.
Representative Curt Weldon (R-Pennsylvania) had introduced a Concurrent Resolution that the U.S. should revoke PNTR if China were to attack, invade, or impose a blockade on Taiwan (HCR 334).
[Editorial Note: On May 19, 2000, the EU has reached an agreement with China for China's WTO accession. The agreement includes significant reductions on China's import tariffs for EU products.]
Citation: Public Law 106-286, 114 Stat. 880 (October 10, 2000) [H. Res. 4444] An Act to authorize extension of nondiscriminatory treatment (normal trade relations treatment) to People’s Republic of China, and to establish a framework for relations between United States and People’s Republic of China; The White House press release (October 10, 2000); 146 Cong. Record H 3746 (May 24, 2000); U.S. Trade Representative press releases 00-38 (May 17, 2000) & 00-63 (September 19, 2000); The Washington Post, September 20, 2000, page A1 & May 29, 2000, page A2; WTO Director-General Mike Moore’s Statement … (24 May 2000), available on WTO website “www.wto.org”. [Further information on this matter is available on website of “China Trade Relations Working Group” of White House, at “www.chinapntr.gov”; The European Union News, News Release No. 23/00 (May 19, 2000), EU-China Agreement on WTO].
Filed in: 2000 International Law Update, Issue 10
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As matter of first impression, Sixth Circuit decides that 1916 Antidumping Act does not permit U.S. steel company to obtain injunctive relief against Japanese companies who were allegedly dumping steel on U.S. market
The Antidumping Act of 1916 (15 U.S.C. Section 72) allows private plaintiffs to bring actions in district court against parties that have violated, or conspired to violate, plaintiffs’ business interests. It was enacted to counter unfair predatory practices by foreign competitors, and the remedy includes treble damages, attorneys’ fees and costs. The 1916 Act does not expressly provide for injunctive relief.
Wheeling-Pittsburgh Steel Corporation (WPSC) brought suit against three Japanese trading companies, Mitsui & Co., Inc., Marubeni America Corp., and Itochu International, Inc., under the 1916 Act to prevent them from importing hot-rolled steel into the U.S. WPSC is a domestic producer of that commodity.
Plaintiff alleged that the defendants were selling such steel for less than the actual market value, and urged the court to apply its inherent powers to enjoin foreign competitors from illegally dumping products on the U.S. markets. In particular, plaintiff requested preliminary injunctive relief pending a final determination on the merits. The district court, however, concluded that the Act did not authorize such a remedy. Plaintiff then filed this interlocutory appeal.
The U.S. Court of Appeals for the Sixth Circuit affirms.
Whether a federal district court may grant injunctive relief under the 1916 Act is a matter of first impression in all jurisdictions. The language of the 1916 Act provides for treble damages, attorneys’ fees, and costs. When Congress sets forth specific remedies in a statute, those remedies are generally exclusive. Federal courts do possess inherent equitable power to grant injunctive relief, depending on traditional principles of equity jurisdiction, e.g., whether plaintiff has an adequate remedy at law for damages. In the case of importation of foreign goods, however, the Court is unable to find that federal courts traditionally granted this type of equitable relief.
Furthermore, courts must interpret the 1916 Act in the light of its interaction with later antidumping statutes. If the 1916 Act provided for injunctive relief, it would likely interfere with investigations under Title VII of the Tariff Act of 1930 [19 U.S.C. Section 1671] and with presidential measures taken under the International Emergency Economic Powers Act [50 U.S.C. Section 1701(a)]. Finally, the Court exercises caution because the World Trade Organization (WTO) has recently found the 1916 statute incompatible with GATT trading rules (see 2000 International Law Update 64 & 97).
Citation: Wheeling-Pittsburgh Steel Corp. v. Mitsui & Co., Inc., No. 99-3741 (6th Cir. July 25, 2000).
Filed in: 2000 International Law Update, Issue8
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U.S. Congress enacts African Growth and Opportunity Act to grant U.S. trade benefits to Sub-Saharan countries of Africa
The U.S. House of Representatives (voting 309-110) and the Senate (voting 77-19) have passed the African Growth and Opportunity Act (H.R. 434) (AGOA), and President Clinton signed it into law on May 18, 2000. (The Act is part of the Trade and Development Act of 2000 which also provides trade benefits to the Caribbean Basin, Albania, and Kyrgyzstan). The AGOA seeks to promote a positive trading partnership between the U.S. and the 48 listed nations of Sub-Sarahan Africa.
In particular, the Act will “authorize a new trade and investment policy for Sub-Saharan Africa, expand trade benefits to the countries in the Caribbean Basin, renew the generalized system of preferences, and reauthorize the trade adjustment assistance programs.” (Preamble) It is part of a broader initiative to support the integration of African countries into the multilateral trading system, such as the Economic Growth and Opportunity in Africa (Partnership Initiative) announced in 1997.
The AGOA emphasizes free markets and self-sufficiency. The listed sub-Saharan African countries that meet human rights and economic liberalization standards, as determined by the President, become eligible for economic programs and other support (Section 104). In particular, the Act directs the President:
(1) To convene annual high-level meetings between the U.S. government and governments of Sub-Saharan countries to foster close economic relations, and to establish a U.S.-Sub-Saharan Africa Trade and Economic Cooperation Forum as an encouragement for setting up joint ventures between large and small businesses (Section 5).
(2) To develop a plan for a U.S.-Sub-Saharan Africa Free Trade Area and to have the U.S. enter into trade agreements with specific countries (Section 116).
(3) To Create an Office of the Assistant United States Trade Representative for African Affairs (Section 117), and
(4) To direct the Secretary of Commerce to ensure the stationing of at least 20 full-time U.S. and Foreign Commercial Service employees in at least 10 different Sub-Saharan countries (Section 125).
[Editorial Note: In a related matter, President Clinton has released a Report to Congress on Trade and Development Policy Toward Africa. This Report is the latest in a series of five annual reports outlining the Government's trade and development strategy toward Sub-Saharan Africa. It describes the Government's initiatives to increase trade and investment with those countries, and emphasizes its commitment to the AGOA.]
Citation: Pub. L. No. 106-200 (May 18, 2000); 114 Stat. 251. [For previous history of bill, see 145 Cong. Rec. S 13776 (November 3, 1999); U.S. Trade Representative press release 99-92 (November 3, 1999). [For additional information on Act and closely related matters, see African Studies website of University of Pennsylvania "www.sas.upenn.edu"; U.S. Trade Representative press release 00-07 (January 27, 2000) Press release 00-33 on President Clinton's Report on Africa (May 4, 2000) (Endorses Africa/CBI Trade Bill) & 00-36 (May 11, 2000) (Lauds final passage of bill)].
Filed in: Issue 6
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U.S. Department of Commerce not only eases restrictions on exports of U.S. encryption equipment and software, but also allows exports to non-government end-users everywhere thus opening up global markets for U.S. encryption products
Effective January 14, 2000, the U.S. Department of Commerce, Bureau of Export Administration, has issued an interim final rule on exports of encryption equipment. It implements the encryption policy announced by the White House on September 16 last and simplifies U.S. encryption export rules. The principles of the new approach entail (1) technical review of encryption products before sale, (2) a streamlined post-export reporting system, and (3) reviewing exports of strong encryption to foreign governments. Businesses can export mass-produced encryption software without restrictions.
In particular, the Rule amends the Export Administration Regulations (EAR) [15 C.F.R. Parts 734, 740, 742, 770, 772, and 774] to permit the export and re-export of any encryption equipment and software to individuals, businesses, and other non-government end-users. It also allows the export and re-export of retail encryption equipment and software to all end-users. The Rule, however, does not revoke the restrictions on exports to countries that, in the U.S. government’s view, continue to champion terrorism, i.e., Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria.
The Rule also implements those changes for encryption products brought about by the Wassenaar Arrangement. [Editorial Note: In 1996, 33 countries concluded the "Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies." It seeks to prevent unauthorized transfers of sensitive materials that governments can use for military purposes. See 1999 Int'l Law Update 9]. For example, the Rule does not apply to 64-bit mass market software and commodities.
Citation: 65 Federal Register 2492 (January 14, 2000). [See also Washington Post, January 13, 2000, page E1.]
Filed in: 2000 International Law Update, Issue 3
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Kazakhstan issues new rules for labeling of many specified products, requiring more detailed labels in both Kazakh and Russian and extending grace period for compliance
In January 2000, the Kazakh Government amended the labeling rules applicable to commercial products. Resolution Number 44 provides a newly revised list of commodities that have to carry Kazakh and Russian labels. The affected items include poultry products, dairy products, fats and oils, sweets, cereal products, liquor, animal feed, tobacco, paint, and electric household items. The Resolution exempts vitamins, pharmaceuticals, leather goods, fabrics, kitchen utensils, telephones, radios, and furniture.
The labels must bear (1) the product name, (2) the country of origin, (3) the manufacturer, (4) the date of manufacture, (5) the expiration date, (6) storage instructions, (7) usage instructions, and (8) nutritional information (for food products).
Resolution Number 121 amends the requirement published on August 31, 1999, which would have blocked the entry of non-complying products beginning February 1, 2000. The grace period for non-complying products will now expire on April 1, 2000.
[Editorial Note: The Harmonized System Tariff numbers are available upon request from the U.S. Commercial Service in Almaty, website: www.usis.kz. Please address specific questions directly to the Committee on Standardization, Metrology and Certification of the Ministry of Energy, Industry and Trade (Gosstandart), website: www.banknet.kz/gosstandart.]
Citation: Kazakhstani Government Resolutions Number 44 (Kazakhstanskaya Pravda of January 14, 2000) & Number 121 (Kazakhstanskaya Pravda of January 26, 2000). [Summary Report on these requirements by O. Chukreyeva of U.S. Commercial Service in Kazakhstan, along with English translation, is available through U.S. Department of Commerce, USA Trade Center, Phone: (202) 482-4522, or through BISNIS website www.bisnis.doc.gov.]
Filed in: 2000 International Law Update, Issue 2
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World Customs Organization adopts Kyoto Convention to simplify and harmonize international customs procedures
On June 25, 1999, at the 94th Session of the World Customs Organization (WCO), Brussels, 114 Heads of Customs Administrations unanimously adopted the “International Convention on the simplification and harmonization of Customs procedures” (Kyoto Convention). This Convention updates the Kyoto Convention on customs procedures of 1973.
The Convention’s goal is to further streamline international customs procedures. Countries that join the Convention commit themselves to using computer systems to hasten border clearances and to use modern analytical techniques to target only risky shipments for inspection. Governments must release all goods as soon as customs has examined them.
The Convention provides that the parties implement the itemized simplification and harmonization requirements set forth in the “General Annex.” In addition, the Convention has several specific annexes, for example on the “Arrival of goods in a Customs territory,” and on “Customs Warehouses and Free Zones.” The parties will establish a Management Committee to ensure the uniform implementation of the Convention (Article 6).
The Convention will enter into force three months after ratification by 40 countries, which is expected to take more than one year.
Citation: The text of the Kyoto Convention, along with a press release, is available on the website of the World Customs Organization www.wcoomd.org.
Filed in: 1999 International Law Update, Issue 9
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