International Trade Law News
February 20, 2004
BIS Issues Final Penalty Guidance in the Settlement of Administrative Enforcement Cases
The Bureau of Industry and Security (BIS) of the Department of Commerce issued on February 20, 2004 the final rule, Penalty Guidance in the Settlement of Administrative Enforcement Cases, which amends the Export Administration Regulations (EAR). The rule, which incorporates guidance on how BIS makes penalty determinations when settling enforcement cases under the EAR, states that “BIS carefully considers each settlement offer in light of facts and circumstances of the case, relevant precedent, and BIS’s objective to achieve in each case an appropriate level of penalty and deterrent effect.”
Towards that end, the rule enumerates factors BIS considers in making penalty determinations. The rule provides a number of “General Factors” considered including the degree of willfulness of the party, the destination of the export, and additional related or unrelated violations of the exporter. The rule also includes a number of mitigating factors BIS considers, including whether the party made a voluntary self-disclosure of the violation, whether the party has an effective compliance program, and whether the violation was an isolated occurrence, whether the party cooperated to an “exceptional degree” with the investigation. Finally, the rule states a number of “Aggravating Factors” such as whether the party tried to conceal the violation.
The final rule, found at 15 CFR Parts 764 and 766, is the product of the proposed rule released on September 17, 2003 and BIS’s consideration of public comments on it.
February 18, 2004
ITC Issues Affirmative Injury Determination on Antidumping Measures for Certain Warm Water Shrimp from Asian and South American Countries
The United States International Trade Commission (ITC) unanimously determined on February 17, 2004 that there is reasonable indication that a U.S. industry is materially injured or threatened with material injury by imports of frozen and canned warmwater shrimp and prawns from Brazil, China, Ecuador, India, Thailand, and Vietnam. As a result, the U.S. Department of Commerce will continue the investigation it began on January 21, 2004 to determine whether shrimp is being sold in U.S. markets at less than fair market value. Commerce will make a preliminary antidumping determination on or about June 8, 2004.
The antidumping investigation was initiated by the Ad Hoc Shrimp Trade Action Committee, whose members are located in Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Texas.
The imported products subject to this investigation are warmwater shrimp and prawns, whether frozen or canned, wild-caught (ocean harvested) or farm-raised (produced by aquaculture), heads-on or heads-off, shell-on or peeled, tail-on or tail-off, deveined or not deveined, cooked or raw, or otherwise processed in frozen or canned form. The merchandise subject to this investigation is provided for in subheadings 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, 1605.20.10.30, and 1605.20.10.40 of the Harmonized Tariff Schedule of the United States.
