Circumvention Inquiries on Aluminum Foil from China Completed in Korea and Thailand - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
I. Type of Action: The U.S Department of Commerce (DOC) has self-initiated country-wide circumvention inquiries to determine whether certain aluminum foil completed in either Korea or Thailand using inputs (e., aluminum foil-and sheet-gauge products) manufactured in China are circumventing the antidumping duty (ADD) and countervailing duty (CVD) orders on Certain Aluminum Foil from China.
II. Product: The merchandise covered by the orders is aluminum foil having a thickness of 0.2 mm or less, in reels exceeding 25 pounds, regardless of width. Aluminum foil is made from an aluminum alloy that contains more than 92 percent aluminum. Aluminum foil may be made to ASTM specification ASTM B479, but can also be made to other specifications. Regardless of specification, however, all aluminum foil meeting the scope description is included in the scope, including aluminum foil to which lubricant has been applied to one or both sides of the foil. Excluded from the scope of the orders is aluminum foil that is backed with paper, paperboard, plastics, or similar backing materials on one side or both sides of the aluminum foil, as well as etched capacitor foil and aluminum foil that is cut to shape.
III. HTSUS Classifications: The products under the orders are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7607.11.3000,7607.11.6000, 7607.11.9030, 7607.11.9060, 7607.11.9090, and 7607.19.6000. Further, merchandise that falls within the scope of these proceedings may also be entered into the United States under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3045, 7606.12.3055, 7606.12.3090, 7606.12.6000, 7606.91.3090, 7606.91.6080, 7606.92.3090, and 7606.92.6080.
IV. Date of Initiation: DOC self-initiated these circumvention inquiries on July 11, 2022; DOC’s Notice of Initiation is expected to public in the Federal Register on July 15, 2022.
V. Projected Publication and Schedule:
A. The default date for ADD/CVD cash deposits upon an affirmative circumvention determination is retroactive to when DOC’s Notice of Initiation published in the Federal Register, pursuant to 19 C.F.R. § 351.226(l).
B. Projected date that DOC publishes its Notice of Initiation: July 15, 2022. Based on this projection, the circumvention inquiry is expected to proceed as follows:
• Comments and factual information due August 15, 2022 (rebuttal due August 29);
• DOC’s Preliminary Determination due December 12, 2022; and
• DOC’s Final Determination due May 11, 2023 (can be extended to July 17, 2023).
If you have questions regarding how this investigation may impact current and future imports of scope merchandise or whether a particular product is within the scope of the investigation, please contact one of our attorneys.
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Federal Register Notices:
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Initiation of Antidumping and Countervailing Duty Administrative Reviews; and Certain Carbon and Alloy Steel Cut-To-Length Plate From Belgium: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review; 2020-2021; Correction
• Circular Welded Carbon-Quality Steel Pipe From the United Arab Emirates: Final Results of Antidumping Duty Administrative Review; 2019-2020
• Investigations; Determinations, Modifications, and Rulings, etc.: Freight Rail Coupler Systems and Components From China
• Certain L-Tryptophan, L-Tryptophan Products, and Their Methods of Production; Notice of Commission Determination To Institute a Rescission Proceeding; Rescission of the Remedial Orders; Termination of Rescission Proceeding
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Stainless Steel Flanges From India: Preliminary Results of Countervailing Duty Administrative Review; 2020
• Chlorinated Isocyanurates From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2020-2021
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain UMTS and LTE Cellular Communications Modules and Products Containing the Same; Notice of a Commission Determination To Review in Part and, on Review, Affirm a Final Initial Determination Finding No Violation of Section 337; Termination of Investigation
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Non-Oriented Electrical Steel From the Republic of Korea, Certain Corrosion-Resistant Steel Products From the Republic of Korea, Certain Cold-Rolled Steel Flat Products From the Republic of Korea, Certain Hot-Rolled Steel Flat Products From the Republic of Korea, Certain Carbon and Alloy Steel Cut-to-Length Plate From the Republic of Korea, and Carbon and Alloy Steel Wire Rod From the Republic of Korea: Notice of Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review
• Fine Denier Polyester Staple Fiber From India: Final Results of Countervailing Duty Administrative Review; 2020
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Non-Oriented Electrical Steel From the Republic of Korea, Certain Corrosion-Resistant Steel Products From the Republic of Korea, Certain Cold-Rolled Steel Flat Products From the Republic of Korea, Certain Hot-Rolled Steel Flat Products From the Republic of Korea, Certain Carbon and Alloy Steel Cut-to-Length Plate From the Republic of Korea, and Carbon and Alloy Steel Wire Rod From the Republic of Korea: Notice of Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review
• Fine Denier Polyester Staple Fiber From India: Final Results of Countervailing Duty Administrative Review; 2020
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Initiation of Antidumping and Countervailing Duty Administrative Reviews
• Agreement Suspending the Antidumping Duty Investigation on Sugar From Mexico: Final Results of the 2019-2020 Administrative Review; Correction
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Uncoated Paper From Portugal: Final Results of Antidumping Duty Administrative Review; 2020-2021
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Emulsion Styrene-Butadiene Rubber (ESBR) From Czechia and Russia; Scheduling of the Final Phase of Antidumping Duty Investigations
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FTC Takes Action Against Weber for Illegally Restricting Customers’ Right to Repair - Federal Trade Commission
Agency Order Requires Grill Maker to Fix Warranty and Come Clean with Customers
The Federal Trade Commission is taking action against grill maker Weber-Stephen Products, LLC, for illegally restricting customers’ right to repair their purchased products. The FTC’s complaint charges that Weber’s warranty included terms that conveyed that the warranty is void if customers use or install third-party parts on their grill products. Weber is being ordered to fix its warranty by removing illegal terms and recognizing the right to repair and come clean with customers about their ability to use third-party parts.
“This is the FTC’s third right-to-repair lawsuit in as many weeks,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “Companies that use their warranties to illegally restrict consumers’ right to repair should fix them now.”
Illinois-based Weber manufactures and sells grills and related products worldwide and offers limited warranties to consumers who buy its products that provide for no-cost repair or replacement, should the products have defects or other issues.
The FTC has made it a priority to protect consumers’ right to repair their products. The Magnuson Moss Warranty Act is one of the FTC’s tools to address repair restrictions. It prohibits a company from conditioning a consumer product warranty on the consumer’s using any article or service which is identified by brand name unless it is provided for free. Following the FTC’s right to repair report Nixing the Fix, the Commission issued a Policy Statement on Repair Restrictions Imposed by Manufacturers pledging to ramp up investigations into illegal repair restrictions. The FTC recently announced complaints and orders against Harley-Davidson and the maker of Westinghouse outdoor generators for similar issues.
According to the FTC’s complaint, Weber imposed illegal warranty terms that voided customers’ warranties if they used or installed any third-party parts on their grill products. The FTC alleges that these terms harm consumers and competition in multiple ways, including:
• Restricting consumers’ choices: Consumers who buy a product covered by a warranty do so to protect their own interests, not the manufacturer’s. Weber’s warranty improperly implied that as a condition of maintaining warranty coverage, consumers had to use the company’s parts.
• Costing consumers more money: By telling consumers their warranty will be voided if they choose third-party parts, Weber forced consumers to use potentially more expensive options provided by Weber itself. This violates the Warranty Act, which prohibits these clauses unless a manufacturer provides the required parts for free under the warranty or is granted an exception from the FTC.
• Undercutting independent businesses: The Warranty Act’s tying prohibition protects not just consumers, but also independent repairers and the manufacturers of aftermarket parts. By conditioning its warranty on the use of Weber-branded parts, Weber infringed the right of independent repairers and manufacturers to compete on a level playing field.
• Reducing resiliency: Robust competition from aftermarket part manufacturers is critical to ensuring that consumers get the replacement parts they need when they need them and are not at the mercy of branded part supply chains. More resilient and repairable products also lead to less waste in the form of products that could otherwise be fixed.
Enforcement Actions
Under the FTC Act and the Warranty Act, the FTC has the authority to take action against companies violating consumer protection laws, including those engaging in unfair or deceptive acts or practices. The FTC’s order in this case:
• Prohibits further violations: Weber will be prohibited from further violations of the Warranty Act. They will also be prohibited from telling consumers that their warranties will be void if they use third-party parts, or that they should only use Weber-brand parts. If the company violates these terms, the FTC will be able to seek civil penalties of up to $46,517 per violation in federal court.
• Recognizes consumers’ right to repair: Weber will be required to add specific language to its warranty saying, “Using third-party parts will not void this warranty.”
• Comes clean with consumers: Weber must send and post notices informing customers that their warranties will remain in effect even if they use or install third-party parts on their Weber grill products.
The Commission vote to issue the administrative complaint and to accept the consent agreement was 5-0. The FTC will publish a description of the consent agreement package in the Federal Register soon. The agreement will be subject to public comment for 30 days, after which the Commission will decide whether to make the proposed consent order final. Instructions for filing comments appear in the published notice. Once processed, comments will be posted on Regulations.gov.
NOTE: The Commission issues an administrative complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $46,517.
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CBP Intercepts First-in-Port Pest - U.S. Customs & Border Protection
Plant disease, pests found in flower shipment
AUSTIN, Texas – U.S. Customs and Border Protection agriculture specialists working at the Austin-Bergstrom International Airport discovered a variety of prohibited pests and plant diseases, to include one pest that has never been encountered at this port of entry.
The discovery occurred when CBP agriculture specialists inspected cargo arriving from various international destinations. The packages included fresh flowers, Jasminum sp. and Chrysanthemum sp., from India.
As CBP agriculture specialists examined the jasmine flowers, they discovered live lepidoptera larvae. The larvae were sent to the US Department of Agriculture for identification. The pest was confirmed to be Hendecasis duplifascialis Hampson, a type of destructive moth, known to attack the jasmine flower. This interception is particularly impressive because it is the first of its kind at Austin-Bergstrom International Airport. A “first in port” interception is an agricultural discovery that has never been encountered at that specific port of entry in CBP’s history.
“The dangers of agricultural pests and plant diseases entering the US and affecting our agriculture and economy is real and imminent,” emphasized Richard Mendez, Port Director, Port of Austin. “The work our CBP agriculture specialists carry out is so important. They intercept and prevent dangerous pests, and plant and animal diseases from entering the US and threating our nation’s agriculture, our natural resources, and our economy. I am extremely proud of the work our team in Austin accomplishes each day and these interceptions reflect their efforts.”
As CBP agriculture specialists continued their inspection, they noticed what appeared to be white rust on the chrysanthemum leaves and found additional live lepidoptera larvae.
The agriculture specialists suspected the white rust to be a plant disease and sent it to the local US Department of Agriculture for identification. The leaf rust was confirmed to be Puccinia horiana Henn, also known as chrysanthemum white rust (CWR). This plant disease was first identified in Japan in the late 1800s. CWR is native to Japan and established itself in many parts of Africa, Australia, Europe, and South America. The introduction of CWR into the US could negatively impact nurseries and gardens across the nation. The US agriculture and economy could suffer substantial losses if CWR were to become established in the country.
The lepidoptera larvae were also sent to the local USDA entomologist for identification and were confirmed to be Helicoverpa sp, Noctuidae, a species of moth. These species of moth are extremely destructive and have a wide host range, from cut flowers to cotton, corn, and vegetables. They are found in Africa, Europe, Asia, and Australia, are highly reproductive and are considered a serious threat to US agriculture.
The pests and plants were destroyed by steam sterilization to ensure they are no longer a threat to US agriculture.
Every year, millions of pounds of vegetables, fresh fruits, cut flowers, and other items enter the United States through commercial shipments from other countries. CBP agriculture specialists intercept tens of thousands of pests that are dangerous to the health and safety of US agricultural resources each year, thereby preventing potential threats before they can do any harm.
On a typical day in FY 2022, CBP agriculture specialists discovered 264 pests at US ports of entry and 2,548 materials for quarantine: plant, meat, animal byproduct, and soil.
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Two Foreign Nationals Plead Guilty to Trafficking Ivory and Rhinoceros Horn from the Democratic Republic of the Congo - Department of Justice
Herdade Lokua, 34, and Jospin Mujangi, 32, of Kinshasa, Democratic Republic of Congo (DRC), pleaded guilty yesterday in federal court in Seattle to conspiracy and Lacey Act charges. They were indicted on Nov. 3, 2021, on 11 counts relating to trafficking wildlife from DRC to Seattle. The court scheduled the sentencing hearing for Nov. 1.
In pleading guilty, both defendants admitted that beginning in November 2019, they agreed to smuggle elephant ivory, white rhinoceros horn and pangolin scales to the United States. They worked with a middleman to negotiate the sales and coordinate imports to Seattle. Between August and September 2020, Lokua and Mujangi shipped three packages containing approximately 49 pounds of ivory from Kinshasa. They arranged for the ivory to be cut into smaller pieces and painted black; the packages were then falsely labeled as containing wood.
Lokua and Mujangi acknowledged that in June 2021, they sent nearly five pounds of rhinoceros horn to Seattle using a similar scheme. Lokua discussed sending two tons of ivory and one ton of pangolin scales concealed in a shipping container. He stated that payment would have to be routed through a bank account in China before they could access the cash in Kinshasa.
Lokua and Mujangi admitted that they traveled to Seattle on Nov. 2, 2021, to meet with prospective buyers who were actually undercover federal agents. After negotiating the details of a large shipment of ivory, rhinoceros horn and pangolin scales, agents arrested both men in Edmonds, Washington.
The investigation was part of “Operation Kuluna,” an international operation conducted between the Office of Homeland Security Investigations (HSI) in Seattle, the Government of the DRC and the U.S. Embassy in Kinshasa. After the arrests, the task force in DRC acted on information provided by HSI-Seattle to seize 2,067 pounds of ivory and 75 pounds of pangolin scales in Kinshasa worth approximately $3.5 million, all contraband related to wildlife trafficking.
The Lacey Act is the nation’s oldest wildlife trafficking statute and prohibits, among other things, falsely labeling shipments containing wildlife. The United States, DRC and approximately 181 other countries are signatories to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES is an international treaty that restricts trade in species that may be threatened with extinction. CITES has permit requirements for protected wildlife, and the indictment alleges that the defendants did not obtain any of the necessary papers or declarations from DRC or the United States.
The CITES treaty has listed the white rhinoceros (Ceratotherium simum) as a protected species since 1975 and the African elephant (Loxodanta africana) since 1977. All species of pangolin were added to the CITES appendix with the greatest level of protection in 2017. All three mammals are threatened by poaching and habitat loss.
HSI-Seattle conducted the investigation. The government is represented by Senior Trial Attorneys Patrick M. Duggan and Ryan C. Connors of the Environment and Natural Resources Division’s Environmental Crimes Section with assistance from the U.S. Attorney’s Office in the Western District of Washington.
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Vornado Agrees to Pay $7.5 Million Civil Penalty for Failure to Immediately Report Space Heaters Posing a Fire Hazard - Consumer Product Safety Commission
WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission (CPSC) announced that Vornado Air LLC, of Andover, Kansas, has agreed to pay a $7.5 million civil penalty. The settlement resolves CPSC’s charges that Vornado failed to immediately report to CPSC, as required by law, that its VH101 Personal Vortex electric space heater contained a defect or created an unreasonable risk of serious injury.
CPSC charged that Vornado had information that the heater could overheat and catch fire, posing a risk of burn injury or death. Vornado investigated multiple consumer reports of fire, but the firm did not immediately notify CPSC of the defect or risk as required by law. In January 2018, Vornado reported to CPSC that a 90-year-old Minnesota man had died in a fire involving a Vornado space heater that was suspected to be a VH101 heater.
Vornado recalled the VH101 Personal Vortex heater on April 4, 2018. The recall was re-announced on August 22, 2018, after Vornado confirmed that the heater involved in the fatal incident was a VH101.
In 2008, the Vornado Trust paid a $500,000 civil penalty to CPSC on behalf of Vornado’s predecessor, Vornado Air Circulation Systems Inc., after it failed to immediately report overheating and fire incidents involving space heaters between 1993 and 2004.
The settlement agreement requires Vornado to maintain a compliance program to ensure that the company complies with the Consumer Product Safety Act (CPSA) and to maintain internal controls designed to ensure timely, complete, and accurate reporting to CPSC. Vornado has also agreed to file annual reports regarding the compliance program and system of internal controls for a period of three years.
The settlement agreement has been accepted provisionally by the Commission by a 4-0-1 vote.