SEC Reconsidering “Conflict Minerals Rule” - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
In January 31, 2017 public statements, Acting SEC Chairman Michael S. Piwowar addressed both the overall future of the SEC’s “Conflict Minerals Rule” as well as a technical issue under the rule.
Public comments are being solicited on both topics. Companies impacted by this rule should consider filing comments.
Background
The Conflict Minerals Rule imposes reporting requirements on all U.S. publicly listed companies that manufacture or contract to manufacture merchandise containing any amount of columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives (specifically, tantalum, tin, and tungsten), regardless of their origin, provided that they are necessary for the functionality of a product the company manufactured or contracted to manufacture. Additional requirements are triggered with respect to such minerals that may originate in the Democratic Republic of the Congo (“DRC”) or any adjacent country (“the covered countries”). The intended purpose of the rule is to end the ongoing violent conflict in the DRC, which has been partially financed by the exploitation and trade of conflict minerals originating in the DRC.
January 31st Public Statements
In his statements, the Acting SEC Chairman observed that, while visiting Africa last year, he heard numerous complaints about the rule from those directly affected. These included that: the disclosure requirements have caused a de facto boycott of African minerals with effects far beyond the covered countries; onerous compliance costs are driving legitimate mining operators out of business; it is unclear whether the rule has accomplished any of its objectives; and, a withdrawal from the region may undermine U.S. national security interests.
Separately, Acting Chairman Piwowar observed that, after an April 2014 decision by the U.S. Court of Appeals for the D.C. Circuit held that a technical aspect of the Conflict Minerals Rule violated the First Amendment, the SEC issued a stay of the problematic provision (along with other interim guidance) pending the completion of judicial review. The matter was remanded to the lower court for further consideration (where it continues to sit).
Comments Solicited
The Acting Chairman has encouraged interested parties to submit detailed comments in connection with the above by March 17, 2017.
Is It Really 'FDA Approved?' - U.S. Food & Drug Administration
Maybe you saw those words on a company’s website, or in a commercial promoting a new product or treatment. Some marketers may say their products are “FDA approved,” but how can you know for sure what the U.S. Food and Drug Administration approves?
FDA is responsible for protecting public health by regulating human drugs and biologics, animal drugs, medical devices, tobacco products, food (including animal food), cosmetics, and electronic products that emit radiation.
But not all those products undergo premarket approval — that is, a review of safety and effectiveness by FDA experts and agency approval before a product can be marketed. In some cases, FDA’s enforcement efforts focus on products after they are already for sale. That is determined by Congress in establishing FDA’s authorities. Even when FDA approval is not required before a product is sold, the agency has regulatory authority to act when safety issues arise.
Here is a guide to how FDA regulates products — and what the agency does (and doesn’t) approve.
Digital Trade and the Impact of Barriers to Digital Trade on the Competitiveness of U.S. Firms in International Markets Will Be Focus of Three New USITC Investigations - U.S. International Trade Commission
The U.S. International Trade Commission (USITC) will conduct three investigations to examine uses of new digital technologies for U.S. firms and the impact of barriers to digital trade on the competitiveness of U.S. firms in international markets.
The investigations were requested by the Office of the U.S. Trade Representative in a letter received on January 13, 2017. The letter noted that the three new reports would provide an update and extension of the analysis presented in two earlier USITC reports: Digital Trade in the U.S. and Global Economies, Part I (July 2013) and Digital Trade in the U.S. and Global Economies, Part 2 (August 2014), which were completed at the request of the U.S. Senate Committee on Finance.
As requested, the USITC, an independent, nonpartisan, factfinding federal agency, will conduct three investigations and provide three reports to the USTR. One report will be public, and two reports will be confidential.
- The first investigation, Global Digital Trade I: Market Opportunities and Key Foreign Trade Restrictions, will describe the current landscape and recent developments in digital technologies used by firms, as well as digital technologies used by consumers. It will also provide market information for digital products and services both in the United States and in key foreign markets such as the European Union, China, Russia, Brazil, India, and Indonesia -- especially those products and services that can scale globally. The investigation will assess the rate of adoption of digital technologies in the United States as well as in foreign markets with further study of the importance of both domestic and cross-border data-flows. Finally, the report will describe regulatory and policy measures in important markets abroad that may impede digital trade. The report will be delivered to USTR by August 29, 2017, and released to the public soon thereafter.
- The second investigation will analyze measures that affect the ability of U.S. firms to develop or supply digital products and services to firms abroad. It also will assess the impact of those measures on the competitiveness of U.S. firms supplying digital products and services and on international trade and investment flows associated with digital trade. This report will be confidential and will be delivered to USTR by October 28, 2018. More details about this report will be available when it is formally instituted.
- The third investigation will analyze measures that affect the ability of U.S. firms to develop or supply digital products and services to consumers abroad. It also will assess the impact of those measures on the competitiveness of U.S. firms supplying digital products and services and on international trade and investment flows associated with digital trade. This report will be confidential and will be delivered to USTR by March 29, 2019. More details about this report will be available when it is formally instituted.
The USITC has instituted the first investigation.
The USITC will hold a public hearing in connection with the investigation on April 4, 2017. Requests to appear at the hearing should be filed no later than 5:15 p.m. on March 21, 2017, with the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. For further information, call 202-205-2000.
The USITC also welcomes written submissions for the record. Written submissions should be addressed to the Secretary of the Commission at the above address and should be submitted at the earliest practical date, but no later than 5:15 p.m. on April 21, 2017. All written submissions, except for confidential business information, will be available for public inspection.
Further information on the scope of the first investigation and appropriate submissions is available in the USITC's notice of investigation, dated February 6, 2017, which can be obtained from the USITC Internet site (https://www.usitc.gov) or by contacting the Office of the Secretary at the above address or at 202-205-2000.
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 Commission's objective findings and independent analyses on the subjects investigated. The Commission 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 investigation reports are subsequently released to the public unless they are classified by the requester for national security reasons.
'Operation Team Player' Nets $20 Million in Fake Sports Merchandise - U.S. Immigration and Customs Enforcements
HOUSTON – U.S. Immigration and Customs Enforcement (ICE) representatives announced today that enforcement actions led by Homeland Security Investigations (HSI) resulted in the seizure of over 260,000 counterfeit sports-related items worth an estimated $20 million, and joint investigative efforts led to 56 arrests with 50 convictions.
The results from Operation Team Player, a year-round effort developed by the HSI-led National Intellectual Property Rights Coordination Center (IPR Center) to crackdown on the illegal importation of counterfeit sports apparel and merchandise, were revealed at a press conference hosted by the NFL with participation from ICE, U.S. Customs and Border Protection (CBP), Houston Police Department, Harris County District Attorney’s Office and Harris County Constable’s Office.
“Criminal elements use major sporting events like the Super Bowl as an opportunity to sell substandard and counterfeit goods to the American public,” said Acting ICE Director Thomas D. Homan. “ICE special agents are committed to collaborating with industry and law-enforcement agencies to crackdown on counterfeiting that significantly impacts local economies and funnels money into organizations involved in additional illicit activities.”
Special agents from HSI teamed with industry, CBP and local law enforcement to identify flea markets, retail outlets and street vendors selling counterfeit goods during the week leading up to Super Bowl LI. They seized fake jerseys, hats, cell-phone accessories and thousands of other bogus items prepared to be sold to unsuspecting consumers.
“The NFL is proud to continue its work with ICE, the IPR Center, and law enforcement departments throughout the country to protect fans and consumers who are seeking an authentic NFL experience during the celebration of Super Bowl LI,” said NFL Vice President of Legal Affairs, Dolores DiBella. “Their collaborative enforcement efforts advance consumer protection goals for every industry, year-round.”
This year’s Operation Team Player, which saw significant increases in arrests and convictions, began at the conclusion of last year’s Super Bowl. Throughout the year, the IPR Center led coordinated efforts with major sporting leagues to target contraband that impacts the economy, enables additional criminality and poses health and safety hazards to the public.
“Collaborative efforts like Operation Team Player put the health and safety of the American people and the vitality of our economy first,” said Acting CBP Commissioner Kevin McAleenan. “CBP is proud to partner with ICE, the IPR Center and local authorities to ensure businesses and consumers are protected from intellectual property thieves.”
As one of the U.S. government’s key weapons in the fight against criminal counterfeiting and piracy, the IPR Center is not only committed to closely coordinating with its 23 member agencies, but also collaborating with industry and anti-counterfeiting associations to develop initiatives, coordinate enforcement actions and conduct investigations related to intellectual property theft.
“Super Bowl fans should beware of the scammers descending on Houston and flooding the internet with fake fan gear,” said David Hirschmann, president and CEO of the U.S. Chamber of Commerce’s Global Intellectual Property Center. “Instead of supporting their favorite teams and players, unsuspecting enthusiasts who purchase counterfeit goods could be forfeiting their personal financial information to criminal networks and undermining American jobs. For consumers, the best defense against counterfeit sellers is a good offense: only purchase known brands from known sellers that bear the official holographic marks of authenticity.”
FMC Rejects New York/New Jersey Equipment Optimization Discussion Agreement - Federal Martime Commission
The Federal Maritime Commission (FMC) today rejected the "Port of New York/New Jersey Equipment Optimization Discussion Agreement" (FMC Agreement No. 012445) for failing to meet the clear and definite disclosure standard required by law.
The Port Authority of New York & New Jersey (PANYNJ) and the Ocean Carriers Equipment Management Association Agreement (OCEMA) jointly applied on November 30th, 2016 to establish this discussion agreement.
This was not the first application by these filing parties seeking permission to establish a discussion agreement at the Port of New York & New Jersey. On June 23, 2016, the Commission received Agreement No. 012420, and subsequently issued a Request for Additional Information on August 4, 2016. The filing parties chose to withdraw Agreement No. 012420 on August 10, 2016. Many of the issues the Commission identified in August were left unaddressed and unresolved in the filing made in November, and rejected by the Commission today.
"Today’s rejection of the ‘Port of New York/New Jersey Equipment Optimization Discussion Agreement’ should not be viewed by port management or carrier executives of companies doing business at the port as the Commission being opposed to the establishment of a discussion agreement," said Cordero. "I am amenable to meeting with the PANYNJ management team and OCEMA to discuss the Commission’s concerns with the previous filings, as well as to explore how to create a narrowly tailored agreement that delivers specific efficiencies."
The Federal Maritime Commission is responsible for regulating the Nation’s international ocean transportation for the benefit of exporters, importers, and the American consumer. The Commission’s mission is to foster a fair, efficient, and reliable international ocean transportation system while protecting the public from unfair and deceptive practices.
Certain Biaxial Integral Geogrid Products from China Injure U.S. Industry, Says USITC - U.S. International Trade Commission
The United States International Trade Commission (USITC) today determined that a U.S. industry is materially injured by reason of imports of certain biaxial integral geogrid products from China that the U.S. Department of Commerce (Commerce) has determined are subsidized and sold in the United States at less than fair value.
All six Commissioners voted in the affirmative.
As a result of the USITC’s affirmative determinations, Commerce will issue antidumping and countervailing duty orders on imports of these products from China.
The Commission also made negative findings with respect to critical circumstances with regard to imports of this product from China. As a result, goods that entered the United States from China prior to the dates of Commerce’s affirmative preliminary determinations, will not be subject to retroactive antidumping or countervailing duties.
The Commission’s public report Certain Biaxial Integral Geogrid Products from China (Investigation Nos. 701-TA-554 and 731-TA-1309 (Final), USITC Publication 4670, February 2017) will contain the views of the Commission and information developed during the investigations.
The report will be available by March 14, 2017; when available, it may be accessed on the USITC website at: http://pubapps.usitc.gov/applications/publogs/qry_publication_loglist.asp.
CBP Inspects Millions of Cut Flowers for Valentine's Day - U.S. Customs & Border Protection
San Juan and Aguadilla ports of entry are among top 10
SAN JUAN, Puerto Rico – As Valentine’s Day quickly approaches U.S. Customs and Border Protection (CBP) diligently inspects shipments of imported cut flowers to prevent the spread of insects or pests that may damage national and local agriculture.
“Agriculture inspections are a crucial part of the inspection process for items entering into the country,” said Keith McFarquhar, Acting Director of Field Operations for Puerto Rico and the U.S. Virgin Islands. “A single dangerous pest could cause millions of dollars of damage to our nation’s crops.”
During the 2016 Valentine’s Season, which ran from January 1 to Feb. 14, 2016, CBP San Juan Field Operations inspected 3.7 million stems of cut flowers imported from various destinations around the world. This volume puts the San Juan Field Office among the top 10 in the United States in volume of imported cut flowers.
Most of the cut flower shipments are imported from South America, primarily Colombia, with 636 million stems, followed by Ecuador with 198 million stems.
Miami ranks first among U.S. ports of entry for shipments of cut flower imports, followed by Los Angeles. The San Juan Field Office ranked 9th nationwide with the greatest number of flower shipments received in 2016.
The imported cut flowers inspection process resulted in a total of 2441 pest interceptions nationally, with the majority of pest intercepted at Miami ports. The Aguadilla port ranks 3rd among the ports with more pest interceptions, with 181 pests intercepted, 82 of which were determined to be “actionable pests”. At the San Juan Airport, 27 pests were intercepted, placing that port 8th among ports with more pest interceptions nationwide.
CBP agriculture specialists are determined to safeguard American agriculture by demonstrating careful diligence as they examine imported shipments detecting and preventing entry into the country of exotic plant pests and foreign animal diseases that could harm our agricultural resources. They do this with inspection and prevention efforts designed to keep prohibited agricultural items from entering the United States. These items (pests and/or diseases), whether in commercial cargo or as “hitchhikers” with an international airline/vessel, passenger or a pedestrian crossing the border, could cause serious damage to America’s crops, livestock, and the environment.