BIS Seeks Public Comments on the Section 232 Exclusions Process - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
In a February 10, 2022 Federal Register notice, the Bureau of Industry and Security (“BIS”) announced that it is seeking public comments regarding the Section 232 exclusion process currently in place with respect to the additional duties assessed on certain steel and aluminum products.
In particular, BIS is seeking public comment on the responsiveness of the exclusions process to market demand and enhanced consultation with U.S. firms and labor organizations. Also welcomed are comments on more specific aspects of the exclusion process, including: potential changes to the associated forms and required information; the request, objection, rebuttal, and surrebuttal process; the standards of review; General Approved Exclusions; and the overall transparency of the process.
Specific topics identified in comment solicitation include:
(1) how to reduce the volume of submission errors and rejected filings in the Section 232 Exclusions Portal;
(2) how to address the time for processing of exclusion requests, including but not limited to reducing length or type of attachments;
(3) requiring public summaries of any confidential business information in exclusion requests and objections, similar to the existing requirement for rebuttal and surrebuttals;
(4) requiring public disclosure of delivery times on the Exclusion Request and Objection Forms;
(5) requiring recent (i.e., from the last quarter or 90 days) evidence supporting claims made in a Request or Objection;
(6) streamlining the online forms or otherwise reducing administrative burden; and
(7) assessing the General Approved Exclusions’ (GAEs) criteria and identification of specific products.
Comments must be submitted in a particular form and filed through the Federal eRulemaking Portal. Comments will be accepted through March 28, 2022.
Please do not hesitate to contact Arthur Bodek or any GDLSK attorney for more information on the comment solicitation or the Section 232 steel / aluminum tariffs and exclusion process.
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Federal Register Notices:
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Oil Country Tubular Goods From the People's Republic of China: Initiation and Preliminary Results of Antidumping and Countervailing Duty Changed Circumstances Reviews
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Movable Barrier Operator Systems and Components Thereof; Notice of Commission Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and a Cease and Desist Order; Termination of the Investigation
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Circular Welded Carbon Steel Standard Pipe and Tube Products From Turkey: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2019-2020
• Investigations; Determinations, Modifications, anRulings, etc.: Stainless Steel Wire Rod From Japan, South Korea, and Taiwan
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Aluminum Foil From the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review, 2019-2020
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Blowers and Components Thereof; Notice of a Commission Determination To Review an Enforcement Initial Determination and Order No. 36
• Certain In Vitro Fertilization Products, Components Thereof, and Products Containing the Same; Commission Decision Not To Review a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding
• Sales at Less Than Fair Value; Determinations, Investigations, etc.: Oil Country Tubular Goods From Argentina, Mexico, and the Russian Federation: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations
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Cincinnati CBP Intercepts Shipments of Unapproved Injectable Cosmetics - U.S. Customs Border & Protection
CINCINNATI —Throughout the first month of 2022, Cincinnati U.S. Customs and Border Protection (CBP) officers seized 11 shipments of unapproved cosmetic treatments such as Botox, Juvederm, Restylane, and other fillers. Injectable cosmetic treatments are regulated by U.S. Food and Drug Administration (FDA), because unapproved products can contain unknown ingredients that may be ineffective or dangerous.
The 11 illegal shipments originated in China, South Korea, Bulgaria, and Czech Republic with ultimate destinations in many states including Florida, Texas, and New Mexico. The largest shipment, which came from China, contained 100 vials of Botox botulinum vials—or about 12,500 injections. Had the products been genuine and FDA-approved, the combined value for all the prohibited injectables would have been $170,545.
“Consumer health and safety are our key concerns when Customs and Border Protection officers enforce cosmetic imports,” said LaFonda D. Sutton-Burke, Director, Field Operations-Chicago. “Counterfeit products that you inject could seriously hurt you. They are manufactured in unregulated and unsanitary facilities with ingredients that you cannot be sure are authentic.”
Used under the direction of licensed medical professionals, cosmetic injectables can treat health problems such as migraines, and aesthetic concerns like fine lines and wrinkles. The shipments CBP seized in Cincinnati included these injectables:
• Botox
• Juvederm
• Restylane
• Sardenya
• Yvoire
• Rejeunesse
• Meditoxin
• Sculptra
CBP works in conjunction with FDA to intercept illegal shipments like these from entering the commerce of the United States. Consumers may think they are getting a “great deal” by purchasing cosmetic treatments online from third party sellers, but it is impossible to determine the products’ safety, efficacy, or legitimacy. CBP recommends consumers purchase regulated cosmetic products from reputable sources, and ensure they are administered by properly trained and licensed medical professionals.
“Pirated goods, such as unapproved Botox, threaten our economy and put American consumers at risk,” said Cincinnati Port Director Richard Gillespie. “Our officers and specialists enforce hundreds of laws for many partner agencies and are committed to ensuring the health and safety of American citizens.”
“The FDA is especially concerned about the illegal importation of injectable prescription medications as these drug products may pose a significant risk to public health. Like the products seized by our partners at CBP, there is no way to know whether these products were made under good manufacturing practice conditions, and sterility of these products are not always assured,” said Assistant Commissioner for Import Operations Dan Solis. “Injectable prescription drug products should only be used under the supervision of medical professionals able to assess product and package quality and monitor patients for potential adverse effects. Our strong relationship with CBP enables the kind of collaborative work necessary to best apply each agency’s authority and enforcement tools and prevent potentially dangerous medical products from entering the US.”
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.
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USITC Institutes Section 337 Investigation of Certain Networking Devices, Computers and Components Thereof and Systems Containing the Same - U.S. International Trade Commission
The U.S. International Trade Commission (USITC) has voted to institute an investigation of certain networking devices, computers, and components thereof and systems containing the same. The products at issue in the investigation are described in the Commission’s notice of investigation.
The investigation is based on a complaint filed by Proven Networks, LLC of Los Angeles, CA, on January 13, 2022. The complaint alleges violations of section 337 of the Tariff Act of 1930 in the importation into the United States and sale of certain networking devices, computers, and components thereof and systems containing the same that infringe a patent asserted by the complainant. The complainant requests that the USITC issue a limited exclusion order and a permanent cease and desist order.
The USITC has identified the following respondent in this investigation: NetApp, Inc., of San Jose, CA
By instituting this investigation (337-TA-1298), the USITC has not yet made any decision on the merits of the case. The USITC’s Chief Administrative Law Judge will assign the case to one of the USITC’s administrative law judges (ALJ), who will schedule and hold an evidentiary hearing. The ALJ will make an initial determination as to whether there is a violation of section 337; that initial determination is subject to review by the Commission.
The USITC will make a final determination in the investigation at the earliest practicable time. Within 45 days after institution of the investigation, the USITC will set a target date for completing the investigation. USITC remedial orders in section 337 cases are effective when issued and become final 60 days after issuance unless disapproved for policy reasons by the U.S. Trade Representative within that 60-day period.
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USTR Releases Annual Report on China's WTO Compliance - Office of US Trade Representative
WASHINGTON – The Office of the United States Trade Representative today released its annual “2021 Report to Congress on China’s WTO Compliance,” laying out the Biden Administration’s assessment of China’s membership in the World Trade Organization.
“China has not moved to embrace the market-oriented principles on which the WTO and its rules are based, despite the representations that it made when it joined 20 years ago,” said Ambassador Katherine Tai. “China has instead retained and expanded its state-led, non-market approach to the economy and trade. It is clear that in pursuing that approach, China’s policies and practices challenge the premise of the WTO’s rules and cause serious harm to workers and businesses around the world, particularly in industries targeted by China’s industrial plans.”
The Biden Administration is pursuing a multi-faceted approach to address the harm caused by China’s trade and economic policies through both bilateral engagement with China and the use of trade tools to protect American workers and businesses. The Administration’s strategy also includes enhanced engagement with allies and partners in order to build broad support for solutions to the many unique problems posed by China and defending our shared interests.
This report was prepared pursuant to section 421 of the U.S.-China Relations Act of 2000 (P.L. 106-286), 22 U.S.C. § 6951 (the Act), which requires the United States Trade Representative (USTR) to report annually to Congress on compliance by the People’s Republic of China (China) with commitments made in connection with its accession to the World Trade Organization (WTO), including both multilateral commitments and any bilateral commitments made to the United States. The report covers calendar year 2021. It also incorporates the findings of the Overseas Compliance Program, as required by section 413(b)(2) of the Act, 22 U.S.C. § 6943(b)(2).
The complete report on China’s WTO compliance can be found here..
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Chinese Military-Industrial Complex Sanctions Regulations - Office of Foreign Assets Control
AGENCY: Office of Foreign Assets Control, Treasury.
ACTION: Final rule.
SUMMARY: The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is adding regulations to implement a November 12, 2020 Executive order related to securities investments that finance Communist Chinese military companies, as amended by a June 3, 2021 Executive order related to the Chinese military-industrial complex and Chinese surveillance technology. OFAC intends to supplement these regulations with a more comprehensive set of regulations, which may include additional interpretive guidance and definitions, general licenses, and other regulatory provisions.
DATES: This rule is effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: OFAC: Assistant Director for Licensing, 202-622-2480; Assistant Director for Regulatory Affairs, 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, 202-622-2490.
Electronic Availability This document and additional information concerning OFAC are available on OFAC’s website: www.treasury.gov/ofac.
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Notorious Markets for Counterfeiting and Piracy - Office of US Trade Representative
WASHINGTON – The Office of the United States Trade Representative (USTR) today released the findings of its 2021 Review of Notorious Markets for Counterfeiting and Piracy (the Notorious Markets List). The Notorious Markets List highlights online and physical markets that reportedly engage in or facilitate substantial trademark counterfeiting or copyright piracy.
“The global trade in counterfeit and pirated goods undermines critical U.S. innovation and creativity and harms American workers,” said Ambassador Katherine Tai. “This illicit trade also increases the vulnerability of workers involved in the manufacturing of counterfeit goods to exploitative labor practices, and the counterfeit goods can pose significant risks to the health and safety of consumers and workers around the world.”
Reflecting the Biden-Harris Administration’s worker-centered trade policy, the 2021 Notorious Markets List’s issue focus section examines the adverse impact of counterfeiting on workers involved with the manufacture of counterfeit goods. The section describes how the illicit nature of counterfeiting requires coordination between relevant actors in order to effectively uncover and combat labor violations in counterfeiting operations across the globe.
The 2021 Notorious Markets List also identifies 42 online markets and 35 physical markets that are reported to engage in or facilitate substantial trademark counterfeiting or copyright piracy. This includes identifying for the first time AliExpress and the WeChat e-commerce ecosystem, two significant China-based online markets that reportedly facilitate substantial trademark counterfeiting. Also, China-based online markets Baidu Wangpan, DHGate, Pinduoduo, and Taobao continue to be listed, as well as nine physical markets located within China that are known for the manufacture, distribution, and sale of counterfeit goods.
Background
USTR first identified notorious markets in the Special 301 Report in 2006. Since February 2011, USTR has published annually the Notorious Markets List separately from the Special 301 Report, to increase public awareness and help market operators and governments prioritize intellectual property enforcement efforts that protect American businesses and their workers.
The Notorious Markets List does not constitute an exhaustive list of all markets reported to deal in or facilitate commercial-scale copyright piracy or trademark counterfeiting, nor does it reflect findings of legal violations or the U.S. Government’s analysis of the general intellectual property protection and enforcement climate in the country concerned. Such analysis is contained in the annual Special 301 Report issued at the end of April each year.
USTR initiated the 2021 Notorious Markets List Review on August 30, 2021, through publication in the Federal Register of a request for public comments. The request for comments and the public’s responses are online at www.regulations.gov, Docket number USTR-2021-0013.
The complete 2021 Notorious Markets List can be found here