9/9/2021 China 301 Litigation Update - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
As detailed in our previous litigation updates, the court issued an order on July 6, 2021, that was intended to maintain the availability of refunds for entries that were unliquidated as of the date of that order. That order contemplated that U.S. Customs and Border Protection (CBP) would suspend liquidation of plaintiffs’ List 3 or 4A entries that were unliquidated as of July 6, 2021. However, the mechanism for accomplishing that was largely left to the parties to negotiate. The government had taken the position that plaintiffs would need to provide detailed entry information to CBP every 30 days, while plaintiffs argued that such reporting was unnecessary.
After over two months of negotiations, status reports, and court conferences, the government reversed its position, conceding that the process that it had insisted was necessary would impose a burden on CBP that the agency could not meet. As a result, the government agreed to accept plaintiffs’ proposal that it simply stipulate that refunds will be available for any covered entry that was unliquidated as of July 6, 2021.
On September 8, 2021, the court issued a new order that provides that the government shall refund any duties ultimately found to have been illegally collected on entries that were not liquidated on July 6, 2021. As a result of this new order, plaintiffs will not be required to provide CBP with any entry data at this time. Covered entries will continue to be liquidated in the normal course.
The order does not apply to Section 301 entries that liquidated prior to July 6, 2021, and the availability of refunds for those entries will be determined by the court in the event that plaintiffs are ultimately successful on the merits of the case.
Finally, in the event that plaintiffs do obtain a final judgment holding that the collection of these duties was illegal, it is likely that plaintiffs will need to run a report in CBP’s Automated Commercial Environment (ACE) system to identify its covered entries. For that reason, we continue to recommend that plaintiffs obtain an ACE account with CBP, if they have not already done so. The Plaintiffs Steering Committee (of which GDLSK is an active member) has had discussions with CBP regarding what that report will entail. However, the precise details will not be finalized until the end of the litigation, in the event that plaintiffs are successful.
Should you have any questions, please contact one of our attorneys.
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Federal Register Notices:
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Ripe Olives From Spain: Preliminary Results of Countervailing Duty Administrative Review; 2019
• Certain Cased Pencils From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2019-2020
• Light-Walled Rectangular Pipe and Tube From Mexico: Preliminary Results of Antidumping Duty Administrative Review; 2019-2020
• Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Preliminary Results of Countervailing Duty Administrative Review Rescission in Part, and Intent To Rescind in Part; 2019
• Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; and Preliminary Determination of No Shipments; 2019-2020
• Finished Carbon Steel Flanges From India: Preliminary Results of Countervailing Duty Administrative Review; 2019
• Initiation of Antidumping and Countervailing Duty Administrative Reviews
• Fine Denier Polyester Staple Fiber From India: Final Results of Countervailing Duty Administrative Review; 2019
• Finished Carbon Steel Flanges From India: Preliminary Results of Antidumping Duty Administrative Review; 2019-2020
• Certain Activated Carbon From the People's Republic of China: Notice of Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review
• Ripe Olives From Spain: Preliminary Results of Antidumping Duty Administrative Review; 2019-2020
• Light-Walled Rectangular Pipe and Tube From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review; 2019-2020
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Pentafluoroethane (R-125) From China; Scheduling of the Final Phase of Countervailing Duty and Anti-Dumping Duty Investigations
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Laptops, Desktops, Servers, Mobile Phones, Tablets, and Components Thereof; Notice of Institution of Investigation
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Stainless Steel Flanges From India: Notice of Court Decision Not in Harmony With the Final Determination of Antidumping Investigation; Notice of Amended Final Determination
• Extension of Due Date for the Submission of Comments on the Russian Federations Status as a Market Economy Country Under the Antidumping Duty Laws: Investigation of Urea Ammonium Nitrate Solutions From the Russian Federation: Notice of Extension of Due Date for the Submission of Comments on the Russian Federation's Status as a Market Economy Country Under the Antidumping Duty Laws
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From China
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Steel Concrete Reinforcing Bar From Mexico: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2018-2019
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Walk-Behind Snow Throwers and Parts Thereof From the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty Determination
• Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Preliminary Results of Antidumping Duty Administrative Review, Preliminary Determination of No Shipments, and Partial Rescission of Antidumping Duty Administrative Review; 2019-2020
• Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Preliminary Results of Countervailing Duty Administrative Review Rescission in Part, and Intent To Rescind in Part; 2019
• Investigations; Determinations, Modifications, and Rulings, etc.: Methionine From Japan and Spain
• Certain Portable Gaming Console Systems With Attachable Handheld Controllers and Components Thereof II: Commission Determination To Review in Part a Final Initial Determination, and on Review, To Find No Violation of Section 337; Termination of the Investigation
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Chicago CBP Seize Counterfeit COVID Vaccination Cards - U.S. Customs & Border Protection
CHICAGO — U.S. Customs and Border Protection (CBP) officers working at the International Mail Facility at Chicago O’Hare recently seized 19 counterfeit COVID-19 vaccination cards arriving from China.
The parcel was inspected to determine the admissibility of the items. Upon inspection officers discovered 19 counterfeit COVID-19 vaccination cards. The cards closely resembled the authentic Center for Disease Control (CDC) certificates provided by healthcare practitioners when administering the COVID vaccine. The cards appeared to be fraudulent due to their low-quality appearance and misspelled words.
“Counterfeiters are savvy and follow trends in consumer demand, including the high demand for vaccination cards during the pandemic,” said LaFonda Sutton-Burke, Director, Field Operations, Chicago Field Office. “Every officer in the Chicago Field Office is committed to protecting the lives and welfare of every community.”
The parcel was seized on August 31 and was headed to a residential address in Wapakoneta, Ohio. Recently, CBP has been seizing a high volume of counterfeit vaccination cards throughout the country.
The Federal Bureau of Investigations (FBI) has warned the public that the unauthorized use of an official government agency's seal (such as Health and Human Services (HHS) or the Centers for Disease Control and Prevention (CDC) is a crime and may be punishable under Title 18 United States Code, Section 1017, and other applicable laws.
CBP Office of Field Operations’ dual mission is to facilitate travel in the United States while we secure our borders, our people, and our visitors from those that would do us harm like terrorists and terrorist weapons, criminals, and contraband.
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Memphis Seizes 2.85 Kilos of Fentanyl in Cute Little Wooden Display Boxes - U.S. Customs & Border Protection
MEMPHIS - On Tuesday, August 24, U.S. Customs and Border Protection (CBP) Officers at an express consignment hub in Memphis, Tennessee examined a package described in the paperwork by the shipper as "wood crafts art and technique of making.” The shipment was sent from Michoacan, Mexico, to a residence in southeast Houston.
The shipment consisted of unvarnished wooden boxes with hinged lids, inside of which were wooden crafts, such as a little rolling pin. An x-ray yielded anomalies within two of the boxes. An intrusive inspection along the inside linings of the display boxes themselves yielded an off-white powdery substance. The substance was within gaps created by a double walling of the interior of the boxes. A CBP K9 was nearby and gave a positive indication the shipment contained the presence of narcotics. A field test tentatively displayed the properties of Fentanyl and the onsite CBP lab confirmed. Fentanyl is a Schedule II controlled substance that is similar to morphine but about 100 times more potent. The total weight was 2.85 kilograms. According to the DEA, “Drug trafficking organizations typically distribute Fentanyl by the kilogram. One kilogram of Fentanyl has the potential to kill 500,000 people.”
“This might seem like a small seizure from a little handicraft gift box,” said Acting Area Port Director Benjamin Canfield, “but if we look at those DEA numbers, this had the potential to overdose or kill 1.425 million people. That’s a lot of poison to be shipped to a residence in southeast Houston. I’m proud of my officers and the work they do every shift to stop these substances from reaching the wrong hands.”
This seizure took place within the Area Port of Memphis, which covers ports of entry throughout the state of Tennessee and falls under CBP’s New Orleans Field Office. This Field Office includes all ports in Louisiana, Mississippi, Alabama, Arkansas and Tennessee.10:41 AM 9/7/2021
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OTEXA: Announcements - Office of Textile & Apparel
[09/02/21] – July 2021 Textile and Apparel Import Report
[09/08/21] - The Office of the United States Trade Representative requests comments that identify online and physical markets that infringe on U.S. intellectual property for inclusion in the 2021 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List). The deadline for submission of written comments is October 11, 2021. See the Federal Register notice for further details and instructions.
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There isn't Adequate Space for All the Imports Coming to the U.S., says Port of Los Angeles - Port of Los Angeles
Gene Seroka of the Port of Los Angeles says cargoes have remained at the port for longer periods of time, and he is imploring to the import community to pick up their cargoes quickly.
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Homeland Security LIVE - 9/11 Remembrance and Survivor Tree Planting Ceremony - Department Homeland Security
In honor of the 20th anniversary of September 11, 2001, the Department of Homeland Security will plant a seedling from the “Survivor Tree” on its campus in Southeast Washington, D.C.
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The Survivor Tree
A Callery pear tree became known as the “Survivor Tree” after enduring the September 11, 2001 terror attacks at the World Trade Center.
In October 2001, a severely damaged tree was discovered at Ground Zero, with snapped roots and burned and broken branches. The tree was removed from the rubble and placed in the care of the New York City Department of Parks and Recreation.
After its recovery and rehabilitation, the tree was returned to the Memorial in 2010. New, smooth limbs extended from the gnarled stumps, creating a visible demarcation between the tree’s past and present. Today, the tree stands as a living reminder of resilience, survival, and rebirth.
The Survivor Tree Seedling Program
Each year, the 9/11 Memorial gives seedlings from the Survivor Tree to three communities that have endured tragedy in recent years, as well as communities that have committed to nurturing these trees to serve as landmarks symbolizing resiliency and hope. The Survivor Tree seedling program was launched on September 11, 2013, in partnership with Bartlett Tree Experts of Stamford, Connecticut, and John Bowne High School in the Flushing neighborhood of Queens.
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U.S. EPA Penalizes Four California Facilities More Than $800,000 for Clean Air Act Chemical Safety Violations - Environmental Protection Agency
SAN FRANCISCO - The U.S. Environmental Protection Agency (EPA) has announced settlements with four companies for alleged violations of Clean Air Act chemical release prevention requirements at four anhydrous ammonia facilities in Central California. The companies will pay more than $826,000 in civil penalties and make safety improvements to their facilities, with the goal of protecting the public and first responders from dangerous chemicals.
Anhydrous ammonia can cause serious, often irreversible health effects when released. In addition to potential harmful effects from inhalation of or skin contact with this substance, it is highly flammable. Anhydrous ammonia is considered an extremely hazardous substance.
“It is paramount that facilities properly manage the handling of extremely hazardous substances to prevent dangerous incidents,” said EPA Pacific Southwest Regional Director of Enforcement and Compliance , Amy Miller. “Industry needs to properly manage dangerous substances or face significant Clean Air Act penalties.”
Details on the Settlements
A September 2019 EPA inspection of the Dreyers Grand Ice Cream Inc. facility located in Bakersfield, California, found the company failed to: comply with process safety and hazard evaluation requirements; correct deficient equipment; manage change requirements; comply with compliance audit requirements; and submit accurate hazardous chemical reports for anhydrous ammonia.
Dreyers paid a penalty of $301,066 and improved process safety by: adding machinery room signage, panic hardware, and an eyewash and safety shower; moving machinery room ammonia sensors; adding labeling; and improving machinery room emergency ventilation. The company also corrected deficient equipment and addressed outstanding recommendations from hazard evaluations and compliance audits.
An April 2018 EPA inspection of the Kern Ice and Cold Storage LLC. facility in Bakersfield, California found the company failed to: identify hazards and conduct an adequate hazard review; design and maintain a safe facility; and minimize the consequences of a release.
Kern Ice agreed to a civil penalty of $115,012 and will make modifications to the facility to improve safety. These will include adding labeling, improving equipment access, installing emergency stop switches, and improving machine room ventilation.
A June 2018 EPA inspection of Dole Fresh Vegetables Inc., owned by Dole Foods LLC and located in Marina, California, found the company failed to design and maintain a safe facility. Dole Fresh Vegetables also did not comply with process safety, hazard evaluation, and operating procedure requirements.
Dole Fresh Vegetables paid a penalty of $206,621 and made modifications to the facility to improve safety such as installing physical barriers around ammonia piping, improving machinery room ventilation, and improving emergency shutoff valve access. The facility also corrected deficient equipment, addressed outstanding hazard evaluation recommendations, and updated operating procedures.
A June 2018 EPA inspection of the Dole Packaged Foods LLC. owned by ITOCHU Corporation and located in Atwater, California, found the company failed to: comply with process safety, hazard evaluation, operating procedure, and training requirements; correct deficient equipment; and develop and implement an adequate emergency response plan.
Dole Packaged Foods paid a civil penalty of $203,445 and installed physical barriers around ammonia pressure vessels and piping. The company also agreed to update operating procedures and ammonia operator training, conduct a mechanical integrity audit and address the audit’s recommendations, conduct an emergency response team drill, and address outstanding action items from previous drills.
About Anhydrous Ammonia
Thousands of facilities nationwide make, use, and store extremely hazardous substances, including anhydrous ammonia. Catastrophic accidents at ammonia refrigeration facilities—historically about 150 each year—result in fatalities and serious injuries, evacuations, and other harm to human health and the environment. EPA inspected these facilities as part of the Agency’s National Compliance Initiative, which seeks to reduce risk to human health and the environment by decreasing the likelihood of accidental releases and mitigating the consequences of chemical accidents.