C-AIR TIMES ISSUE #651 - Friday, October 09, 2020 08:43

Petitions for the Imposition of Antidumping and Countervailing Duties on Utility Scale Wind Towers from India, Malaysia and Spain - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

I. Type of Action: Antidumping Duty (“AD”): India, Malaysia and Spain; Countervailing Duty (“CVD”): India, and Malaysia

II. Product: The merchandise covered by these petitions consists of certain wind towers, whether or not tapered, and sections thereof. Certain wind towers support the nacelle and rotor blades in a wind turbine with a minimum rated electrical power generation capacity in excess of 100 kilowatts and with a minimum height of 50 meters measured from the base of the tower to the bottom of the nacelle (i.e., where the top of the tower and nacelle are joined) when fully assembled. A wind tower section consists of, at a minimum, multiple steel plates rolled into cylindrical or conical shapes and welded together (or otherwise attached) to form a steel shell, regardless of coating, end-finish, painting, treatment, or method of manufacture, and with or without flanges, doors, or internal or external components (e.g., flooring/decking, ladders, lifts, electrical buss boxes, electrical cabling, conduit, cable harness for nacelle generator, interior lighting, tool and storage lockers) attached to the wind tower section. Several wind tower sections are normally required to form a completed wind tower. Wind towers and sections thereof are included within the scope whether or not they are joined with nonsubject merchandise, such as nacelles or rotor blades, and whether or not they have internal or external components attached to the subject merchandise. Specifically excluded from the scope are nacelles and rotor blades, regardless of whether they are attached to the wind tower. Also excluded are any internal or external components which are not attached to the wind towers or sections thereof, unless those components are shipped with the tower sections.

III. HTS classifications: Wind towers are currently classified under HTSUS subheadings 7308.20.0020 and 8502.31.0000.

IV. Date of Filing: September 30, 2020

V. Petitioners: Wind Tower Trade Coalition (“Petitioner” or “Coalition”).

VI. Foreign Producers/Exporters: Please contact our office for a list filed with the petition.

VII. US Importers named: Please contact our office for a list filed with the petition.

VIII. Alleged Dumping Margins (No CVD Margins Listed):

India: 71.80%
Malaysia: 55.88%
Spain: 83.66%

IX. Comments:

A. Projected date of ITC Preliminary Conference: October 21, 2020.

B. The earliest theoretical date for retroactive suspension of liquidation for the AD is December 9, 2020; CVD is October 20, 2020. Please contact our office for a complete projected schedule for the AD/CVD investigations.

C. Volume and Value of Imports: Please contact our office for a summary of the data filed with the petition.

D. List of Alleged Subsidy Programs: Please contact our office for a list of alleged subsidy programs.

If you have questions regarding how this investigation may impact future imports of scope merchandise or whether a particular product is within the scope of the investigation, please contact one of our attorneys.

Section 301 Litigation Update - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

We are providing further information in connection with the initial court action that was filed to challenge the assessment of Section 301 List 3 and List 4A duties on goods from China. To date over 3,500 actions have been filed in the Court of International Trade (CIT) to challenge assessment of the List 3 and 4A tariffs. We expect this number to grow as additional companies file cases, in particular companies that primarily paid duties on List 4A goods. September 21, 2020 was initially identified as a deadline for filing lawsuits to challenge the tariffs as that marked the two year date from which the USTR announced the List 3 tariffs. However, it can be argued that the two-year deadline to file a lawsuit (the statute of limitations) runs from the date tariffs are paid, or even from the date of liquidation of those entries, and not from the date the USTR announced the List 3 tariffs on September 21, 2018. This conclusion on the statute of limitations is based upon prior court decisions in similar cases, which we believe the CIT should apply in the current cases challenging the List 3 and List 4A tariffs. Thus, it is still possible to file lawsuits challenging the List 3 and List 4A tariffs.

Most entries of List 3 products would not have liquidated prior to mid-2019, which means that List 3 importers should still be able to file timely lawsuits if the court determines that the statute of limitations runs from dates of entry liquidation. Duties for List 4A goods were not announced until August 1, 2019, and were not imposed until September 1, 2019, so importers have adequate time to file cases to recover List 4A duty payments if they have not done so already.

Procedurally, the Department of Justice (DOJ), which represents the government in these cases, has requested the court to implement a plan to manage this huge number of lawsuits to avoid the need to have every case litigated individually at this time. The DOJ has asked the court to designate a lead case (the initial case filed) and stay the remaining cases pending a decision in the lead case. In addition, the DOJ has suggested that a steering committee of attorneys be established to assist the court in managing the litigation of the lead case and the additional cases that have been filed. The DOJ has suggested that our firm be one of the members of the steering committee. Our firm will be actively involved in working with the attorneys for the lead plaintiffs to present the most advantageous arguments for our clients. We will be monitoring and responding to all procedural developments and will be assisting in management of all cases stayed pending the outcome. If these efforts prove to be successful for the lead plaintiffs, then we anticipate that the other cases filed by our firm for our clients will benefit from that success.

We anticipate that the DOJ may seek dismissal of the lead case and assert that the USTR decision to impose the tariffs is not subject to review by the courts. If the court rejects such an argument, the case will move forward through certain procedural steps and the plaintiffs and the DOJ will then submit cross motions to the court for summary judgment. A lawsuit of this nature will typically not involve a full trial in court. Because of the magnitude of this case, it is likely that any decision from the CIT will be appealed to the Court of Appeals for the Federal Circuit, and possibly to the U.S. Supreme Court. This process should take 2-3 years.

Some importers have asked whether they should immediately begin filing protests within 180 days of the liquidation of all entries on which List 3 or 4A tariffs have been paid. Based upon prior court precedent, and the position taken by the DOJ in previous similar cases, it is our view that the CIT has the authority to require CBP to issue refunds on liquidated entries in a case of this nature, even if no protest was ever filed. Our view is also based on the fact that CBP has no authority to decide whether the Section 301 tariffs are lawful. In other words filing a protest would be a futile act which is not required by law. We are working directly with the DOJ to resolve any doubt as to the court’s authority to order refunds on liquidated entries if the case is ultimately successful. This process may take several weeks or longer. Until the DOJ’s position is confirmed, importers should consider filing protective protests on liquidated entries. This would be the most conservative approach to prevent finality of liquidation. In addition, importers should consider requesting CBP to extend liquidation on affected entries that are currently unliquidated. Our firm is available to assist our clients in this process and to answer any questions.

In order to file protests, you will have to provide us with a report of all entries of goods covered by List 3 and list 4A along with relevant customs entry data (date of entry, HTS, value, duties paid, date of liquidation, etc.). If you are unable to obtain an entry report from your customs broker we are available to assist you in obtaining reports from CBP. Copies of entry documents must be retained and may be required in future court proceedings. We urge you to retain all of these records in the event that we may need them later for your proof of claim.

We are always available to answer any questions that you may have.

U.S. Department of Commerce Finalizes 20-Year Amendment to the Suspension Agreement on Uranium from the Russian Federation - U.S. Department of Commerce

The U.S. Department of Commerce (Commerce) and the State Atomic Energy Corporation Rosatom (Rosatom), on behalf of the Government of the Russian Federation, have signed a final amendment to the Agreement Suspending the Antidumping Investigation on Uranium from the Russian Federation (Agreement). This amendment extends the Agreement through 2040 and reduces U.S. reliance on uranium from Russia during that time period.

“This landmark agreement will contribute to the revitalization of American nuclear industry, while promoting America’s long-term strategic interests,” said Secretary of Commerce Wilbur Ross. “It represents yet another success for the Trump Administration’s America First approach to international trade agreements.”

The amendment is unchanged from a draft amendment released for public comment on September 11, 2020. The amendment will:

Extend the life of the agreement. Previously, the agreement was set to expire on December 31, 2020 – which would have resulted in unchecked imports of Russian uranium, potentially decimating the front-end of the nuclear fuel cycle in the United States. The amended agreement will not expire until 2040 at the earliest.
Reduce U.S. imports of uranium from Russia. Prior to the amendment, the Agreement allowed Russian uranium exports to meet approximately 20% of U.S. enrichment demand. Under the amended Agreement, this figure will drop to an average of approximately 17% over the next 20 years, and will be no higher than 15% starting in 2028.
Strengthen existing protections for the U.S. commercial enrichment industry. By extending and reducing the Agreement’s export limits, the final amendment will enable the U.S. commercial enrichment industry to compete on fair terms.
Establish unprecedented protections for U.S. uranium miners and the U.S. uranium converter. Previously, the Agreement allowed Russia to use its entire export quota for the sale of not only enrichment, but also natural uranium and conversion (i.e., a process for converting natural uranium so that it is suitable for enrichment). By contrast, the amended Agreement will allow only a portion of the export quota to be used for the sale of natural uranium and conversion from Russia. On average, this portion will be equivalent to approximately 7% of U.S. enrichment demand, and no higher than 5% starting in 2026.
Fix “returned feed” provisions in the existing Agreement that prejudice U.S. uranium miners and the U.S. converter. Under the previous Agreement, foreign-origin returned feed (i.e., natural uranium delivered by U.S. customers to the Russian exporter, in exchange for enriched uranium) could be delivered to the Russian exporter, enriched in Western Europe, and then exported to the United States outside the Agreement’s export limits. The amended Agreement would subject the foreign-origin returned feed that is enriched in third countries and exported back to the United States to the Agreement’s export limits, thereby encouraging the competitiveness of U.S.-origin natural uranium.
Allow for the fulfillment of U.S. customers’ pre-existing contracts for Russian uranium. There are U.S. companies that entered into contracts to purchase uranium from Russia prior to and around the time that Commerce engaged in negotiations to extend the Agreement beyond 2020. The limits in the agreement are structured to enable the vast majority of these contracts to be fulfilled.

In light of the finalized amendment, Commerce issued a simultaneous determination that the ongoing 2017-2018 administrative review of the Agreement is moot. Thus, the administrative review will not lead to termination of the Agreement and resumption of the underlying antidumping investigation, as could have occurred absent a finalized amendment.

Commerce’s Enforcement and Compliance unit in the International Trade Administration, which negotiated today’s amendment to the Agreement, is responsible for vigorously enforcing U.S. trade law and does so through an impartial, transparent process that abides by international rules and is based on factual evidence provided on the record.

15,000 Viagra Tablets Seized for Violating FDA Compliance - U.S. Customs & Border Protection

CHICAGO – U.S. Customs and Border Protection officers recently seized a shipment of Viagra pills arriving from Turkey that violated FDA laws and could prove dangerous to consumers.

On October 4, CBP officers in Chicago seized a shipment that contained 15,000 tablets marked and packaged as Viagra 100mg tablets, and varying brands of honey mixed with Sildenafil. The shipment was shipped by a company in Istanbul, Turkey and was heading to a residence in Michigan. If the pills were real, and approved by the FDA, the MSRP would have been $1,065,000.

The pills were in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), which prohibits the introduction of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded. These pills, which were misbranded, were seized and turned over to the FDA Office of Criminal Investigation for further investigation.

“Our Officers are dedicated to identifying and intercepting these types of shipments that could potentially harm our communities,” said Shane Campbell, Port Director-Chicago. “Consumers do not realize the risk they are taking when using prescription drugs from other countries. These non-regulated drugs could cause health concerns or even death."

Unapproved prescriptions may be manufactured using incorrect or harmful ingredients. This medicine is then packaged and labeled to look like the real thing. Counterfeit medicines are unsafe because they may not work and could be harmful.

CBP provides basic import information about admissibility requirements and the clearance process for e-commerce goods and encourages buyers to confirm that their purchases and the importation of those purchases comply with any state and federal import regulations.

CBP conducts operations at ports of entry throughout the United States, and regularly screens arriving international passengers and cargo for narcotics, weapons, and other restricted or prohibited products. CBP strives to serve as the premier law enforcement agency enhancing the Nation’s safety, security, and prosperity through collaboration, innovation, and integration.

Federal Register Notices:

Today, during a virtual ceremony, the U.S. Food and Drug Administration and its regulatory counterparts in Mexico – the Federal Commission for the Protection from Sanitary RisksExternal Link Disclaimer (COFEPRIS) and the National Service of Agro-Alimentary Health, Safety and QualityExternal Link Disclaimer (SENASICA) – enhanced a partnership to work together on food safety in both countries. This Statement of Intent broadens and strengthens the scope of their existing partnership to include the safety of all human food regulated by the FDA. Additionally, this latest partnership embraces the use of new and emerging technologies, leverages food safety programs at SENASICA and COFEPRIS and their work with local industry, and further enhances the collaborations of U.S. and Mexico with other key partners.

"U.S. consumers rely on imports from Mexico for much of the fresh fruit and vegetables that they eat as well as other foods. Our enhanced food safety partnership with our Mexican colleagues will play an important role in helping each country’s respective efforts to create a modernized food safety regulatory framework," said FDA Commissioner Stephen M. Hahn, M.D. "By strengthening our ongoing collaboration with Mexico’s food safety regulatory authorities, we can bolster our important work protecting public health in both countries and prevent foodborne diseases by using modern technology, preventive practices based on technical and scientific evidence, as well as actions of health surveillance and verification measures."

Historically, the FDA and its regulatory counterparts in Mexico have worked collaboratively due to the high volume of food trade across the border. In 2014, they signed a partnership focused on produce safety. About one-third of all imported food into the U.S. is from Mexico and 60% of all imported produce is from Mexico. As a result, the FDA, SENASICA, and COFEPRIS work closely together on food establishment inspections and responding to foodborne illness outbreaks, as well as developing and implementing plans to enhance food safety in other areas of mutual public health interest.

"The New Era of Smarter Food Safety Blueprint outlines the approach the FDA will take over the next decade to encourage more effective and modern food safety processes,” said Frank Yiannas, FDA Deputy Commissioner for Food Policy and Response. “Through this new partnership, the FDA, SENASICA, and COFEPRIS will enhance our level of collaboration to strengthen food safety and leverage new approaches that further protect consumers in both the U.S. and Mexico.”

The three agencies have initially structured their food safety partnership to focus on areas of mutual interest related to human food safety, such as: prevention (e.g., Salmonella in papaya and Cyclospora in other produce), outbreak response, regulatory laboratory collaboration (e.g., Whole Genome Sequencing of foodborne bacteria, viruses, and other pathogens), and outreach/training opportunities for industry (e.g., Produce Safety and Preventive Controls for Human Foods). Through this new partnership, the FDA, SENASICA, and COFEPRIS will further strengthen their close collaboration by including all human foods under the FDA’s jurisdiction that is traded between the two countries, in addition to their ongoing work on fresh produce. This modern approach to food safety utilizes all available tools and technologies to help ensure a strong and resilient food system.

The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products.