International Trade Law News
June 10, 2004
Final Dumping Margins Announced In Investigation of Polyethylene Retail Carrier Bags
Today the U.S. Department of Commerce's International Trade Administration announced the final determinations in the antidumping duty investigations on imports of polyethylene retail carrier bags (PRCBs) from the People's Republic of China (PRC), Malaysia, and Thailand. The dumping margins in the final determination ranged from 0.20 percent to 77.33 percent for the PRC respondents, 0.91 percent to 101.74 percent for the Malaysia respondents, and 0.62 percent to 122.88 percent for Thailand (see complete list below).
The antidumping petition requesting this investigation was filed on June 20, 2003 by the Polyethylene Retail Carrier Bag Committee, and its individual members, PCL Packaging, Inc., Sonoco Products Company, Superbag Corp., Vanguard Plastics, Inc., and Inteplast Group, Ltd.
The next step of this investigation is for the U.S. International Trade Commission (ITC) to render its final injury determination. The ITC is expected to announce its decision on or about July 23. If the ITC makes an affirmative determination that imports of PRCBs are materially injuring, or threatening to materially injure, the domestic industry in the United States, then the Commerce Department will issue an antidumping order and instruct U.S. Customs and Border Protection to collect antidumping duties. If the ITC makes a negative injury determination, the investigation will be terminated and no order will be issued.
The following is the list of dumping margins by country and manufacturer:
Thailand
-Thai Plastic Bags Industries Group= 0.62%
-Universal Polybag Co., Ltd.= 5.66%
-Champion Paper Polybags Ltd.=122.88%
-TRC Polypack=122.88%
-Zip-Pak Co., Ltd.=122.88%
-All Others Rate=5.66%
Malaysia
-Bee Lian Plastic Industries Sdn. Bhd.=0.91%
-Teong Chuan Plastic and Timber Sdn. Bhd=101.74%
-Brandpak Industries Sdn. Bhd=101.74%
-Gants Pac Industries=101.74%
-Sido Bangun Sdn.Bhd.=101.74%
-Zhin Hin/Chin Hin Plastic Manufacturer Sdn. Bhd=101.74%
-All Others Rate=84.94 %
China
-PRC-wide Rate 77.33%
-Hang Lung Plastic Manufactory Ltd. (Hang Lung)=0.20%
-Dongguan Huang Jiang United Wah Plastic Bag Factory (United Wah)=23.19%
-Nantong Huasheng Plastic Products Co., Ltd (Nantong)=2.29%
-Rally Plastics Co., Ltd. (Rally Plastics)=23.81%
-Shanghai Glopack Packing Co., Ltd and Sea Lake Polyethylene Enterprise Ltd.=19.73%
-Xiamen Ming Pak Plastics Co., Ltd. (Ming Pak)=35.23%
-Zhongshan Dongfeng Hung Wai Plastic Bag Manufactory (Zhongshan)=41.21%
-The following Chinese producers/exporters all received a 23.06% margin:
Beijing Lianbin, Dongguan Zhongqiao, Good-in Holdings, Guangdong Esquel, Nan Sing, Ningbo Fanrong, Ningbo Huansen, Rain Continent, Shanghai Dazhi, Shanghai Fangsheng, Shanghai Jingtai, Shanghai Light Industrial, Shanghai Minmetals, Shanghai New Ai Lian, Shanghai Overseas, Shanghai Yafu, Weihai Weiquan, Xiamen Xingyatai, Xinhui Henglong.
June 9, 2004
Antidumping Petition Filed On Purified Carboxymethylcellulose
An antidumping duty petition was filed today by Aqualon Company on Purified Carboxymethylcellulose from Finland, Mexico, the Netherlands and Sweden.
Attorney Receives Stiff Sentence for Smuggling Cuban Cigars Into United States
A Chicago-area lawyer was sentenced today to more than three years in federal prison for smuggling thousands of Cuban cigars into the U.S. and selling them for a profit. Richard "Mick" Connors, 54, who was found guilty in 2002 of smuggling, trading with the enemy, conspiracy and lying to a passport officer, was also fined $60,000 and placed on three years' probation.
U.S. District Judge Ronald A. Guzman ordered Connors taken into custody immediately, despite a request that he be allowed to attend his daughter's wedding later this month. The judge said the former public defender is too familiar with ways to flee the country.
During the trial, witnesses testified that in the early 1990s, as the cigar fad was building in the United States, Mr. Connors regularly traveled to Cuba via Canada and Mexico, bought cigars at $25 to $60 a box and sold them in the United States for up to $400 a box. He was arrested at the Canadian border in 1996 with 1,150 cigars.
In a bizarre twist in the case, Connors' ex-wife claimed that U.S. Customs agents encouraged her to "get friendlier" with him in order to collect incriminating evidence against her ex-husband. The ex-wife said she threw valuable documents into the trash so the customs agent - who was monitoring the lawyer's garbage - could collect evidence he could not get without a search warrant. Connors has argued that his conviction should be reversed because the actions taken by Customs amounted to an illegal search and seizure.
Shrimp Task Force Posts State-by-State Shrimp Jobs Analysis
In order to bolster its case against antidumping petition on imported shrimp, the Consuming Industries Trade Action Coalition (CITAC)/American Seafood Distributors Associations (ASDA) Shrimp Task Force today posted an interactive map of the United States on its website at www.citac.info/shrimp/map/index.htmlthat shows the number of shrimp-consuming jobs versus shrimp-producing jobs on a state-by-state basis.
On December 31, 2003, the Ad Hoc Shrimp Trade Action Committee, composed of a number of U.S. shrimp producers, filed an antidumping petition on frozen and canned warmwater shrimp from Brazil, China, Ecuador, India, Thailand and Vietnam.
The CITAC/ASDA Shrimp Task Force claims that an economic analysis peformed by The Trade Partnership found that there are 20 U.S. shrimp-consuming jobs involved in processing or distribution for every U.S. shrimp-producing job. The Task Force also claims that the higher prices for shrimp that would result from the imposition of antidumping duties will cause many of these shrimp processing and distributing jobs to be eliminated.
June 8, 2004
BIS Imposes Civil Penalty for Unlicensed Exports of Fire Detection Equipment to India
The Commerce Department’s Bureau of Industry and Security (BIS) today announced that General Monitors of Lake Forest, California, agreed to pay a $40,000 civil penalty to settle charges that it violated the Export Administration Regulations when it failed to obtain the required export licenses for shipments of gas and fire detection equipment to India. General Monitors develops and produces gas monitoring and flame detection instrumentation.
In its charging letter, BIS alleged that in December 1998, General Monitors exported gas and fire detection equipment on six occasions without the required licenses to Bharat Heavy Electricals Limited (BHEL) in Hyderabad, India. BIS also charged that on 12 occasions between 1998 and 2001, General Monitors falsely indicated that shipments to BHEL did not require an export license on Shipper’s Export Declarations (SEDs) accompanying shipments to BHEL.
At the time of the export, BHEL was on BIS’s Entity List and exports to BHEL therefore required prior authorization. The Entity List is a compilation of end users who have been determined to present an unacceptable risk of diversion to developing weapons of mass destruction or missiles used to deliver these weapons. All exports to those appearing on the Entity List require licenses. BIS maintains the Entity List to inform the public of the export license requirements related to these entities.
BIS noted that General Monitors voluntarily self-disclosed some of the violations and cooperated with the investigation.
BIS Settles Major Enforcement Case Against Polygraph Manufacturer for Unlicensed Exports
The Commerce Department’s Bureau of Industry and Security (BIS) today announced that Stoelting Company of Wood Dale, Illinois, agreed to a $44,000 civil penalty and a five-year denial of export privileges to settle charges that it exported polygraph machines to the People’s Republic of China (PRC) in violation of the Export Administration Regulations. Stoelting’s President, LaVern Miller, also agreed to pay a $44,000 civil penalty to settle related charges. The five-year denial of export privileges is suspended provided Stoelting does not violate the EAR during that period.
Founded in 1886, Stoelting Co., is a producer of physiological measurement instruments and psychological test materials for over a century. Stoelting is credited with having invented the first modern polygraph in 1935.
In its charging letter, BIS alleged that between January 1998 and February 1999, Stoelting, under the direction of Miller, knowingly exported and attempted to export polygraph equipment without the required export licenses from the Department of Commerce. The polygraph equipment was diverted through Italy and Taiwan to the PRC. The Commerce Department controls the export of polygraph equipment to the PRC for crime control reasons.
In related criminal cases, Miller and Stoelting have also pled guilty in the Northern District of Illinois to violating the International Emergency Economic Powers Act (IEEPA). Sentencing for the criminal charges is scheduled for September 2004.
Stoelting has apparently gotten the message, as the company's Web site now states that:
"Stoelting will not knowingly allow anyone to ship polygraph equipment to any restricted country without the prior receipt of a proper U.S. Department of Commerce export license. Further, Stoelting personnel will report to the U.S. Department of Commerce Enforcement Division any and all individuals or agencies who may attempt to do so."
Trial On Illegal Shipments to Libya and Syria Starts in Dallas
The following article that appeared in Texas Lawyer discusses the InfoCom trial that began yesterday in Dallas. The case involves unlicensed shipments of computers and related equipment to Syria and Libya. Details on the alleged violations of the EAR are contained in the BIS order denying InfoCom's export privileges that is found at http://efoia.bis.doc.gov/ExportControlViolations/e705.pdf.
Texas Lawyer, 06-08-2004
By Mary Alice Robbins
Set against the backdrop of continuing violence and unrest in the Middle East, the first trial of five brothers -- all Palestinian-born Muslims arrested in December 2002 for allegedly shipping computers to designated terrorist countries and money-laundering –- began Monday in a federal courtroom in Dallas.
The legal problems the Elashi brothers face began less than a week before the Sept. 11, 2001, terrorist attacks on America. On Sept. 5, 2001, the North Texas Joint Terrorism Task Force -- made up of agents of the FBI, Customs Service and other federal agencies -- began searching InfoCom Corp., the brothers' Richardson-based Internet services company, according to a report published the following day in the Dallas Morning News.
In December 2002, a grand jury for the U.S. District Court for the Northern District in Dallas indicted the brothers; their cousin, Nadia Elashi; her husband, Mousa Abu Marzook, who was designated a terrorist in 1995 by then-President Bill Clinton; and InfoCom. An August 2003 indictment in United States of America v. Bayan Elashi, et al. supersedes the 2002 indictment.
Prosecutors allege in the 46-count superseding indictment that the brothers and InfoCom exported computers and computer components to two designated terrorist countries, Libya and Syria; made false statements on forms accompanying some shipments; and engaged in money laundering. Prosecutors further allege that three of the brothers -- Bayan, Ghassan and Basman Elashi -- engaged in unlawful financial dealings and money laundering with Marzook.
"It's a case that has a lot of great perception benefits to the prosecution," says Tom Melsheimer, a former Assistant U.S. Attorney in Dallas. "You mention terrorist and you mention terrorist organization, and you feel like you have 12 votes."
But Melsheimer, now a partner in Dallas' Fish & Richardson, says prosecutors will have to do a lot more to convict the Elashi brothers.
"This probably will end up like most white-collar criminal cases; it's going to be a case about the documents," Melsheimer says.
But he says prosecutors probably also need someone from inside the company or familiar with its operations to "help them tell the story."
The Elashi brothers deny all the allegations. "Our clients have maintained their innocence from the time this has started," says Jeff Kearney, attorney for Hazim Elashi.
Kearney says the brothers were educated in the United States and have been in this country for a number of years. He says that Ghassan Elashi and Ihsan Elashyi, who uses a different spelling for his last name than his brothers, are U.S. citizens, and the other brothers are in this country on work visas.
Marzook and his wife have not made an appearance in the case, Kearney says. According to a reply memorandum supporting the government's motion to take depositions, the couple is believed to be living in Damascus, Syria.
Tom Schneider, spokesman for the U.S. Marshals Service in Dallas, says the case has attracted news media interest. Between 20 and 25 reporters have notified him that they will be present for the beginning of the trial, Schneider says.
Schneider says the marshals service will beef up security for the trial, but he declines to discuss specifics. "We're going to have security that's appropriate for the setting," he says.
The high-profile case, which will be tried before U.S. District Judge Sam Lindsay, also involves a team of prominent criminal defense attorneys.
Fort Worth solo Tim Evans, attorney for Ghassan Elashi, says he realized that a lot of prejudice and stereotyping was going on against members of the Muslim community (when he represented another Muslim client in an earlier unrelated case).
"When society gets in that mode or that atmosphere, it's a recipe for injustice," Evans says.
Evans says Ghassan Elashi contacted him about the brothers' case. After agreeing to represent Ghassan Elashi, Evans says he asked three other prominent criminal defense attorneys Kearney, the principal in the Kearney Law Firm in Fort Worth; Michael Gibson, a partner in Dallas' Burleson Pate & Gibson; and Richard A. Anderson, of counsel at Burleson Pate -- to defend three of the other Elashi brothers for substantially reduced fees. The Muslim community in the Dallas area is trying to raise the money to pay the attorneys, Evans says.
Gibson, who represents Bayan Elashi and InfoCom, did not return two phone calls seeking comment.
Rounding out the brothers' defense team is Marlo Cadeddu, a partner in Dallas' Sorrels & Udashen. U.S. Magistrate Judge Paul Stickney of Dallas appointed Cadeddu to represent Ihsan Elashyi.
First Assistant U.S. Attorney James T. Jacks and Assistant U.S. Attorney Nathan Garrett, both of Dallas, are prosecuting the case with Special Assistant U.S. Attorney Barry Jonas of the U.S. Department of Justice Tax Division.
The prosecutors decline to comment. "When we're close to trial, we can't discuss the case," says Kathy Colvin, spokeswoman for the U.S. Attorney's Office in Dallas.
TRIAL NO. 1
The first trial won't deal with the most inflammatory charges against the Elashis. In an April 20 order, Lindsay severed charges, related to the alleged unlawful shipments, from the charges alleging unlawful business dealings with Marzook.
"All the claims and accusations that the Elashis somehow supported a terrorist have been severed out of this trial. What we're dealing with now are just accusations of shipping and export violations," Evans says.
A motion filed by Hazim Elashi and Ihsan Elashyi to further sever the charges for the alleged shipping violations from the charges related to the alleged false statements on the export declarations forms remained pending before Lindsay as of presstime on June 3. If Lindsay grants that motion, two more trials will be necessary.
Attorneys for the brothers claim their clients are being prosecuted on criminal charges for alleged shipping violations similar to violations for which a number of major U.S. companies paid only civil fines.
"I'm concerned that this prosecution may be politically motivated because the vast majority [of companies] when export violations are alleged to have occurred are pursued administratively and then civil penalties are imposed," Cadeddu says.
According to the superseding indictment, the International Emergency Economic Powers Act, 50 U.S.C. §§1701-1706, authorizes the president to deal with unusual or extraordinary threats to U.S. national security and foreign policy through executive orders, and violating an executive order is a criminal act.
Prosecutors allege in the superseding indictment that the Elashi brothers and InfoCom knowingly and willfully conspired to violate Executive Orders 12,924 and 12,543 and regulations that prohibit exporting computers and computer components from the United States to Syria or Libya without a U.S. license.
The superseding indictment further alleges that the defendants conspired in 1997 to fill an order from a Libyan-based customer by shipping computers and computer components to a company in Malta, which then shipped the goods to Libya. The Libyan customer instructed the defendants to use that Maltese shipping company, the indictment alleges.
As alleged in the indictment, the brothers and their company also contracted with a customer based in the United States in 1999 to ship computers through Italy to a customer in Libya.
"The government has to prove we knew, in fact, that the goods were going to Libya," says Kearney, attorney for Hazim Elashi.
Dallas attorney Jay Vogelson, a former chairman of the American Bar Association's International Law Section, says that it is sometimes hard to prove that defendants knew that goods would be shipped on from a wayside stop.
If the defendants contend they thought the shipment was going to a lawful recipient, the prosecution must prove that isn't so, says Vogelson, a senior member of Dallas' Stutzman, Bromberg, Esserman & Plifka. "Simply proving what the recipient did doesn't prove what the sender knew," he says.
Another allegation is that the brothers reported significantly less than the true values of the goods they shipped on the export declaration forms. According to the indictment, the U.S. Department of Commerce uses the forms to track the United States' foreign trade for economic and trade policy purposes.
Anderson, attorney for Basam Elashi, says the government's theory is that the undervaluation keeps the U.S. Bureau of the Census from determining the trade imbalance. "That somehow deprives the government of the opportunity to have statistics," he says.
The indictment also alleges that the brothers engaged in money laundering when they deposited $55,703, derived from an illegal shipment, into a financial institution -- a violation of 18 U.S.C. §§1957 and 2.
Because some potential jurors may have strong feelings about Muslims and people from the Middle East, Kearney says that voir dire will be critical in the case. "We're trying to identify feelings about sensitive issues that come up in a case like this," he says.
Kearney says the defense team is using jury consultant Michael Ford of Dallas. "He will be there to consult with us on individual jurors," Kearney says.
In a May 28 order, Lindsay granted the defendants' motion to submit questionnaires to the jury panel before voir dire. Kearney says defense attorneys and prosecutors submitted proposed questionnaires to Lindsay, who is creating his own questionnaire.
Also in the May 28 order, Lindsay agreed to allow individual questioning of jurors if circumstances warrant it. Evans says that in his 26 years of practicing law, he knows of only one federal judge who allowed the separate questioning of members of a jury panel.
Notes Evans, "It's extremely rare."
June 7, 2004
President Designates New Chairman and Vice-Chairman of ITC
President Bush announced on Friday that he intends to designate Stephen Koplan to be Chairman of the United States International Trade Commission (ITC) for a two-year term expiring June 16, 2006. Commissioner Koplan currently serves as an ITC Commissioner and has previously served as Chairman.
The President also announced that he intends to designate Deanna Tanner Okun to be Vice- Chairman of the ITC for a two-year term expiring June 16, 2006. Ms. Okun currently serves as Chairman of the ITC and she has previously served as Vice-Chairman.
