CBP Withdraws Proposed Changes to First Sale Program
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP / http://www.gdlsk.com/firm-news/326-cbp-withdraws-proposed-changes-to-first-sale-program-.html
CBP has informally advised various trade associations that the proposed changes to the Informed Compliance Publication (ICP) on Bona Fide Sales & Sales for Exportation to the United States will be withdrawn. CBP has indicated that it was not seeking to change policy or the law affecting first sale through the proposed ICP revisions but was instead looking to provide clarity with regard to the documents which could be required during an audit of first sale transactions. Based upon the overwhelmingly negative comments received from the Trade, it is understood that proposed changes do not comport business reality and that the ICP is not the right vehicle to bring clarification to the audit process. A majority of commenters were uncomfortable with the notion of a list being used to identify required documents and it is possible that further discussions will be held with the Trade to clarify the audit requirements. Thus, for the moment, it appears that there will be no changes to the existing requirements for first sale appraisement.
PierPass Announces Free-Flow Program to Speed Cargo Through Ports of Los Angeles and Long Beach
PierPass / http://www.cbp.gov/newsroom/local-media-release/2014-09-09-000000/cbp-finds-first-nation-pest-pharr-international
LONG BEACH, Calif., Sept. 11, 2014 – PierPass Inc. today launched the Free-Flow Program, testing a new cargo-handling process expected to significantly reduce the time it takes participating trucks to pick up containers at marine terminals.
Today’s random-access process – where any truck can show up at any time to pick up any container – hasn’t changed since containerization began in the early 1960’s. With new, larger ships unloading as many as 5,000 containers at a time, the random-access process is creating efficiency challenges at major ports around the world.
The free-flow process enables bulk delivery of large groups of containers belonging to the same cargo owner, trucking company or logistics company.
“To keep cargo flowing quickly as ships grow ever larger, we need to change how we move containers,” said PierPass President and CEO Bruce Wargo. “Doing the same things incrementally faster won’t solve congestion pressures.”
Mr. Wargo added, “How congested would LAX or JFK be if every taxi came for one specific person rather than picking up the first in line? That’s how the current container cargo system works.”
Under the Free-Flow Program, PierPass is working with participating terminals, trucking companies and cargo owners to test free-flow, measure its impact on cargo velocity and costs, and learn what methods and resources are needed to run free-flow successfully. If the testing demonstrates significantly positive results, free-flow is expected to become a regular part of terminal operations.
In a typical case, a large retailer that has 80 or more containers arriving on a single ship will arrange free-flow delivery with the marine terminal. In other cases, a trucking or logistics company can arrange for free-flow by consolidating groups of containers from multiple cargo owners.
Under the current system, when terminals unload containers from arriving ships they pile them into stacks in the order they come off the ship. When trucks arrive and request a specific container, it has to be located and dug out of a stack that can be four or five containers high and six containers deep. Container-handling equipment like rubber-tired gantry cranes (RTGs) must move an average of three containers to dig a specific container out of the stack and deliver it to a waiting truck. As a result, one RTG can deliver an average of only eight to ten containers per hour. Using the free-flow process, a tophandler crane is expected to deliver as many as 20 containers per hour.
The free-flow process starts when a ship is being unloaded. All containers claimed by a single owner, trucking company or logistics provider are piled into a separate stack. The cargo owner or its representative then sends a stream of trucks into the marine terminal through a special lane, and each truck takes the next container in the stack.
Trial runs of free-flow have shown a range of results and are helping terminal operators and trucking companies learn how to best structure the process. At best, trucking companies have reported turn times as short as 11 minutes, compared to about 45 minutes for a typical transaction.
Terminal operators believe that free-flow might eventually account for as much as 30% of cargo moves. While the trucks participating in free-flow will see the most dramatic improvement, the process should have a spillover benefit to the rest of the trucks, by reducing the number of trucks in the RTG lanes.
“While free-flow isn’t a silver bullet to fix all congestion issues, we believe it can significantly benefit port users,” Mr. Wargo said. “Terminal operators will continue to innovate how they handle growing cargo volumes, to ensure that the Ports of Los Angeles and Long Beach remain the most reliable and productive in North America.”
For additional information about the Free-Flow Program, see Rule 14 in the West Coast MTO Agreement’s Marine Terminal Schedule No. 1, available at http://www.pierpass.org/wp-content/uploads/2014/09/wcmtoa-10-8-schedule.pdf.
About PierPass
PierPass is a not-for-profit company created by marine terminal operators at the Port of Los Angeles and Port of Long Beach in 2005 to address multi-terminal issues such as congestion, air quality and security. To learn what it takes for a truck to drop off or pick up a container at a marine terminal, see http://youtu.be/P9IJN1yIIJ4. For additional information, please see www.pierpass.org.
CBP Seizes Fake E-Tablets Worth $1.1M
U.S. Customs & Border Protection/ http://www.cbp.gov/newsroom/local-media-release/2014-09-03-000000/cbp-seizes-fake-e-tablets-worth-11m
LAREDO, Texas – The Import Specialist Enforcement Team at U.S. Customs and Border Protection’s Laredo Port of Entry recently seized a commercial shipment of counterfeit electronic tablets valued at $1.1 million for allegedly infringing on the Amazon, Google, Micro SD and SD registered and recorded U.S. trademarks.
In the recently finalized enforcement action, a CBP import specialist at World Trade Bridge selected a shipment of polymer lithium operated screens, electronic tablets, for a secondary examination. During the examination, CBP import specialists observed that the electronic tablets bore the Amazon, Google, Micro SD and SD trademarks, all of which are trademark recorded with CBP. A legal review by CBP Headquarters Intellectual Property Rights Branch indicated the imported tablets bore potentially counterfeit marks. A license administrator for SD confirmed that the use of their trademark was unauthorized. CBP’s ISET determined on August 14 that the shipment of 11,540 electronic tablets lacked legal authorization from SD-3C LLC, Google Inc., and Amazon Technologies Inc., and that the tablets were counterfeit and subject to seizure. CBP subsequently seized the tablets, which carried a manufacturer’s suggested retail price, had the trademarks been genuine, of $1.1 million.
“This is a significant seizure of tablets found to be infringing on three separate trademarks recorded with CBP,” said Joseph Misenhelter, CBP port director, Laredo Port of Entry. “Seizures like these ensure that valuable intellectual property is protected from harm from would-be knockoff products and help restore the integrity of America’s economy.”
CBP’s vigilant enforcement of Intellectual Property Rights protects America’s businesses against the threat of unfair and illicit competition from foreign companies and prevents goods that may be dangerous to consumers or national security from entering the United States
Digital Trade Has Far-Reaching Effects on the U.S. and Global Ecomonies, says USITC
U.S. International Trade Commission / http://www.usitc.gov/press_room/news_release/2014/er0911mm1.htm
Digital trade -- domestic commerce and international trade conducted via the Internet -- has far-reaching effects on the U.S. economy that have fundamentally transformed many aspects of the ways businesses operate and interact with one another, reports the U.S. International Trade Commission (USITC) in its publication Digital Trade in the U.S. and Global Economies, Part 2.
The USITC, an independent, nonpartisan, factfinding federal agency, completed the report at the request of the U.S. Senate Committee on Finance.
As requested, Digital Trade in the U.S. and Global Economies, Part 2 provides information on the value of U.S. digital trade and the potential growth of this trade, and it provides insight into the broader linkages and contributions of digital trade to the U.S. economy. The report includes a survey of U.S. firms in industries particularly involved in digital trade (digitally intensive firms), examines the effects of notable barriers and impediments to digital trade, and presents case studies that examine the importance of digital trade to selected U.S. industries. Report highlights follow.
- The combined effects of enhanced productivity and lower international trade costs in digitally intensive industries due to digital trade likely resulted in an estimated $517.1 billion to $710.7 billion increase (a 3.4 percent to 4.8 percent increase) in U.S. gross domestic product (GDP). U.S. real wages were likely higher by 4.5 percent to 5.0 percent, and the effect on U.S. total employment ranged from no change to an increase of 2.4 million full-time equivalents (FTEs), depending on how workers and employers responded to rising wages. If the effects of enhanced productivity and lower trade costs in non-digitally intensive sectors were also quantified, the economy-wide estimates would likely be larger. [Read More]
- U.S. digitally intensive firms sold $935.2 billion in products and services and purchased $471.4 billion in products and services over the Internet. Most products and services firms sold or purchased online in 2012 were delivered physically or in person -- not digitally. [Read More]
- Online sales by digitally intensive small and medium-sized enterprises (SMEs) were $227.1 billion, or about one-fourth of total online sales, and online purchases by SMEs were $162.2 billion, or about one-third of total online purchases. Sales and purchases by both SMEs and large firms are more likely to have been delivered physically or in person than digitally delivered. [Read More]
- The Commission's survey of U.S. digitally intensive firms found that internal communications and online ordering of products and services are the leading ways firms use the Internet. [Read More]
- Survey estimates also showed that losing access to the Internet would reduce productivity by 15 percent or more for more than 40 percent of firms in digitally intensive industries. Business-to-business communications ranked as the largest contributor to the productivity benefits of the Internet; selling online products or services was tied with ordering online products or services as the second largest. [Read More]
- Online international trade is a relatively small component of U.S. exports and imports of both digitally and physically delivered products and services. Digitally intensive firms exported $222.9 billion and imported $106.2 billion in products and services ordered online in 2012. Most exports and imports ordered online are delivered physically or in person -- not digitally. [Read More]
- Localization requirements, market access limits, data privacy and protection requirements, intellectual property rights infringement, uncertain legal liability rules, and customs measures in other countries present obstacles to international digital trade by U.S. digitally intensive firms. According to survey results, the removal of foreign barriers to digital trade would boost U.S. sales abroad, although not all sectors would benefit equally. [Read More]
- The removal of foreign barriers to digital trade in digitally intensive industries would likely result in an estimated $16.7 billion to $41.4 billion increase (a 0.1 percent to 0.3 percent increase) in U.S. GDP. U.S. real wages would likely be 0.7 percent to 1.4 percent higher, and the effect on U.S. total employment would range from no change to an increase of 0.4 million FTEs. [Read More]
- The report features 10 case studies that highlight the importance of digital trade to selected U.S. businesses. They describe how Internet-based economic activity has created new or improved business opportunities, and sometimes disrupted older business models; how companies and consumers use the massive amounts of data currently available over the Internet to develop innovative products and services and to enhance productivity; and the impact of the Internet and international digital trade on global competitiveness, including from the perspective of SMEs. [Read More]
Digital Trade in the U.S. and Global Economies, Part 2 (Inv. No. 332-540, USITC publication 4485, August 2014) is available on the USITC's Internet site at http://www.usitc.gov/publications/332/pub4485.pdf.
The report is the second of two requested by the Committee. The first report, Digital Trade in the U.S. and Global Economies, Part 1, was delivered in July 2013. That report laid the groundwork for the second report by providing an overview of trends in U.S. digital trade, describing the ways digital trade facilitates trade in other sectors, and setting out potential approaches for estimating the economic impact of digital trade on the U.S. economy. The first report also examined available information on international digital trade, including notable barriers and impediments to such trade.
USITC general factfinding investigations, such as this one, cover matters related to tariffs or trade and are generally conducted at the request of the U.S. Trade Representative, the House Committee on Ways and Means, or the Senate Committee on Finance. The resulting reports convey the USITC's objective findings and independent analyses on the subject investigated. The USITC makes no recommendations on policy or other matters in its general factfinding reports. Upon completion of each investigation, the USITC submits its findings and analyses to the requester. General factfinding reports are subsequently released to the public, unless they are classified by the requester for national security reasons.
ITA: Press Releases
International Trade Administration / http://www.trade.gov/press/press-releases/
09/09/2014 Commerce Finds Dumping of Imports of Chlorinated Isocyanurates from Japan and Countervailable Subsidization of Imports of Chlorinated Isocyanurates from the People’s Republic of China
09/09/2014 Commerce Finds Dumping of Imports of Steel Concrete Reinforcing Bar (Rebar) from Mexico, Countervailable Subsidization of Rebar from Turkey, and No Dumping of Rebar from Turkey
CBP Finds First in Nation Pest at Pharr International Bridge
U.S. Customs & Border Protection / http://www.cbp.gov/newsroom/local-media-release/2014-09-09-000000/cbp-finds-first-nation-pest-pharr-international
PHARR, Texas – U.S. Customs and Border Protection, Office of Field Operations agriculture specialists at the Pharr International Bridge cargo facility recently intercepted a pest determined to be a first in the nation discovery in a shipment of mixed vegetables.
“Our CBP agriculture specialists are to be commended for their tenacity and attention to detail which resulted in the discovery of a first in the nation pest,” said Efrain Solis, port director, Hidalgo/Pharr/Anzalduas Port of Entry. “By intercepting these exotic pests, our agriculture specialists help protect American agriculture and contribute to the nation’s economic security by denying entry to invasive species not known to exist in the U.S.”We all have a role to play. I hope you’ll check out this campaign and raise your voice for elephants.
The interception occurred on August 29 when CBP agriculture specialists conducted an examination of a commercial shipment of mixed vegetables. During an examination of the produce, a CBP agriculture specialist discovered live insects on the chayote (pear-shaped squash). CBP submitted the pests for identification to a U.S. Department of Agriculture entomologist at the Plant Inspection Station in Los Indios, Texas. The initial identification was later confirmed by a national specialist that the insect was Diabrotica scutellata (Jacoby), a first in the nation pest not known to exist in the U.S., also a quarantine significant pest. Diabrotica scutellata (Jacoby) belongs to the Chrysomelidae family. Members of this genus Diabrotica include several economically significant agricultural pest species some of which are destructive pests of corn.
Given the findings, CBP refused entry for the shipment and it was returned to Mexico.
FTC Sues Pharmaceutical Companies for Illegally Blocking Consumer Access to Lower-Cost Versions of the Blockbuster Drug AndroGel
Federal Trade Commission / http://www.ftc.gov/news-events/press-releases/2014/09/ftc-sues-pharmaceutical-companies-illegally-blocking-consumer
In its latest action to ensure competition in the nation’s healthcare markets, the Federal Trade Commission has filed a complaint in federal district court charging several major pharmaceutical companies with illegally blocking American consumers’ access to lower-cost versions of the blockbuster drug AndroGel.
The FTC’s complaint alleges that AbbVie Inc. and its partner Besins Healthcare Inc. filed baseless patent infringement lawsuits against potential generic competitors to delay the introduction of lower-priced versions of the testosterone replacement drug AndroGel. While the lawsuits were pending, AbbVie then entered into an anticompetitive pay-for-delay settlement agreement with Teva Pharmaceuticals USA, Inc. to further delay generic drug competition.
“The FTC is acting today to stop anticompetitive conduct by AbbVie, Besins Healthcare and Teva which has forced consumers to overpay hundreds of millions for the drug AndroGel,” said FTC Chairwoman Edith Ramirez. “This action also reinforces the Commission’s longstanding commitment to protect American consumers from collusive arrangements between branded and generic pharmaceutical companies that inflate the prices of prescription drugs and harm competition.”
Today’s complaint follows a long line of cases the FTC has brought to stop anticompetitive conduct in the pharmaceutical industry.
The FTC is seeking a court judgment declaring that the defendants’ conduct violates the FTC Act, ordering the companies to disgorge their ill-gotten gains, and permanently barring them from engaging in similar anticompetitive behavior in the future.
AndroGel is a topical pharmaceutical gel product approved for testosterone replacement therapy in men with low testosterone. It has annual U.S. sales of more than $1 billion.
The FTC’s lawsuit centers on two main allegations of anticompetitive conduct:
- AbbVie and Besins filed baseless patent infringement lawsuits against generic drug marketers Teva and Perrigo Company to delay FDA approval of a generic version of AndroGel and extend the monopoly profits for the branded version. The complaint charges AbbVie and Besins with monopolization.
- After countersuing AbbVie and Besins and alleging that the infringement suit was baseless, Teva subsequently accepted illegal payments from AbbVie to drop its patent challenge and refrain from bringing its competing testosterone gel product to market. The complaint charges AbbVie and Teva with illegally restraining trade.
At issue in the alleged sham patent infringement suit is an ingredient in branded AndroGel, called isopropyl myristate or IPM. IPM is known as a “penetration enhancer” because it speeds the delivery of the drug’s active ingredient, testosterone, through the skin and into the bloodstream. The patent on branded AndroGel covers only a formulation using IPM as the penetration enhancer, according to the FTC complaint.
Although Teva and Perrigo developed testosterone gel products that did not contain IPM and used different penetration enhancers than AndroGel, AbbVie and Besins sued Teva and Perrigo for patent infringement. Under federal law, these lawsuits triggered an automatic 30-month stay of the FDA’s authority to approve Teva’s and Perrigo’s applications to market their testosterone gel products, regardless of the merits of the infringement claims.
The FTC alleges that AbbVie and Besins had no reasonable basis to contend that Teva’s and Perrigo’s penetration enhancers were equivalent to IPM and therefore covered by the narrow AndroGel formulation patent. AbbVie and Besins had in fact surrendered any claim to those penetration enhancers in gaining patent approval for AndroGel from the Patent and Trademark Office.
Thus, as alleged in the FTC complaint, the actual motivation for filing the infringement suits was to extend the large profits AbbVie and Besins were making from AndroGel sales in the U.S. market, at the expense of consumers and competition.
And, as further noted in the FTC complaint, AbbVie’s predecessor company publicly declined to bring the same suit against Perrigo just two years earlier, when Perrigo first sought FDA approval of its generic AndroGel product.
When AbbVie and Besins sued Teva, Teva asserted an antitrust counterclaim that the infringement suit constituted sham litigation. But, according to the FTC’s complaint, Teva subsequently recognized that it would be more profitable to reach an agreement with AbbVie to share the monopoly profits from AndroGel than to compete.
Under the agreement, Teva abandoned its countersuit and agreed to refrain from launching its lower-cost AndroGel alternative until a specified date, according to the complaint. In exchange, AbbVie paid its potential rival in the form of an authorized generic deal for an unrelated product – a cholesterol drug called Tricor, with annual U.S. sales of more than $1 billion in 2011– that was highly profitable for Teva, but made no independent business sense for AbbVie.
Overall, this anticompetitive conduct blocked competition from both Teva’s and Perrigo’s lower-cost substitutes for brand-name AndroGel and preserved AbbVie’s and Besins’s AndroGel monopoly for a substantial period of time.
The complaint also names AbbVie’s predecessor company, Abbott Laboratories, and its wholly owned subsidiary, Unimed Pharmaceuticals, LLC, as defendants in the case.
The Commission vote to file the complaint was 3-2, with Commissioners Maureen K. Ohlhausen and Joshua D. Wright dissenting. It was filed under seal in the U.S. District Court for the Eastern District of Pennsylvania on September 8, 2014. A redacted version was made public.