China Section 301 Litigation Update - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
On August 15, 2023, the U.S. Court of Appeals for the Federal Circuit (CAFC) granted the Government’s request for an additional 60 days to file its response brief in the China Section 301 litigation appeal. Such extension requests are routine and are typically granted by the CAFC. The Government’s brief is now due on October 27, 2023. Plaintiffs’ reply brief will be due 21 days after the Government files its brief. It is possible that plaintiffs will obtain a short extension.
The revised schedule means that the CAFC will likely hear oral argument in early 2024 and the CAFC may issue its decision on the appeal in late spring. Should you have any questions, please contact one of our attorneys.
**Federal Register Notices:
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Antidumping Duty Order on Wooden Bedroom Furniture From the People's Republic of China: Final Results of Changed Circumstances Review
• Forged Steel Fluid End Blocks From Italy: Final Results of the Antidumping Duty Administrative Revi
• Emulsion Styrene-Butadiene Rubber From Brazil, the Republic of Korea, Mexico, and Poland: Continuation of Antidumping Duty Orders
• Certain Cut-to-Length Carbon Steel Plate From the Russian Federation: Termination of the Suspension Agreement and Issuance of Antidumping Duty Order
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Computer Network Security Equipment and Systems, Related Software, Components Thereof, and Products Containing Same; Notice of Request for Submissions on the Public Interest
• Steel Wire Garment Hangers From Taiwan and Vietnam; Scheduling of Expedited Five-Year Reviews
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Notice of Third Amended Final Determination of the Results of 2012-2013 Antidumping Administrative Review Pursuant to Court Decision
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Toner Supply Containers and Components Thereof (I); Notice of Commission Determination Not To Review an Initial Determination Terminating the Modification Proceeding Based on Withdrawal of the Petition; Termination of Modification Proceeding
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2021-2022
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From Germany
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Icemaking Machines and Components Thereof; Institution of Investigation
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Finished Carbon Steel Flanges From India: Preliminary Results of Countervailing Duty Administrative Review; 2021
• Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Notice of Correction to the Final Results, and Amended Final Results of Countervailing Duty Administrative Review; 2020
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Power Converter Modules and Computing Systems Containing the Same; Institution of Investigation
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Carbon and Alloy Steel Wire Rod From the Republic of Turkey: Continuation of the Countervailing Duty Order
• Dioctyl Terephthalate From the Republic of Korea: Continuation of Antidumping Duty Order
• Certain Lined Paper Products From India and the People's Republic of China: Continuation of Antidumping Duty Orders and Countervailing Duty Order
Agricultural Quarantine and Inspection (AQI) User Fees - U.S. Customs & Border Protection
FTC Charges Experian with Spamming Consumers Who Signed Up for Company Accounts with Marketing Emails They Couldn’t Opt Out Of - Federal Trade Commission
Under proposed order, company must pay financial penalty and offer consumers a way to opt out of such messages
The Federal Trade Commission will require Experian Consumer Services, which offers consumers access to their Experian credit information, to pay $650,000 to settle charges it sent consumers unsolicited email without offering them a way to opt out of such messages, as required under the CAN-SPAM Act.
In a complaint filed by the Department of Justice on behalf of the FTC, the agency says that California-based Experian Consumer Services (ECS), also known as ConsumerInfo.com, Inc., spammed consumers with marketing offers after they signed up for an account with the company in order to manage their Experian credit report information. In the emails, the company failed to provide clear and conspicuous notice of consumers’ ability to opt out of receiving additional marketing messages and a mechanism for doing so, in violation of the CAN-SPAM Act, according to the complaint.
“Signing up for a membership doesn’t mean you’re signing up for unwanted email, especially when all you’re trying to do is freeze your credit to protect your identity,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “You always have the right to unsubscribe from marketing messages, and the FTC takes enforcing that right seriously.”
Consumers who wish to freeze or take other steps to manage their Experian credit information online must create an account with ECS. The complaint charges that consumers who signed up for a free membership account with ECS were then sent emails promoting Experian’s products and services such as one touting Experian Boost, which promotes ways for consumers to boost their credit scores, and another that offers a free “Dark Web” scan. But the emails did not contain an unsubscribe link consumers could use to keep from receiving even more marketing emails.
Experian includes a notice at the bottom of these emails informing recipients that they are receiving the messages because they “contain important information about your account.” Contrary to Experian’s claims, however, the complaint charges that the emails are not related to consumers’ accounts and instead market or promote products and services. Therefore, the emails must provide consumers with a way to unsubscribe from receiving future messages.
In addition to the $650,000 penalty, the proposed order prohibits ECS from sending marketing emails that fail to offer a mechanism to opt out of such messages. The order must be approved by a federal court before it can go into effect.
The Commission voted 3-0 to refer the complaint and stipulated final order to the Department of Justice for filing. The DOJ filed the complaint and proposed stipulated order in the U.S. District Court for the Central District of California.
NOTE: The Commission authorizes the filing of a complaint when it has “reason to believe” that the named defendant is violating or is about to violate the law and it appears to the Commission that a proceeding is in the public interest. Stipulated final orders have the force of law when approved and signed by the District Court judge.
The lead FTC staffers on this matter are Frances Kern and Elsie Kappler from the FTC’s Bureau of Consumer Protection.
FAA Extends Flexibility for Airlines in New York, Continues to Urge Use of Larger Aircraft - Federal Aviation Administration
The FAA will allow airlines flexibility on slot usage requirements for airports in the New York City area through Oct. 28, 2023. The agency continues to expect that airlines will operate larger aircraft to transport more passengers and make sure passengers are fully informed about any possible disruptions.
The new date coincides with the International Air Transport Association summer season when airlines have relatively higher levels of traffic.
The FAA is working closely with NATCA to implement a long-term solution to resolve ongoing low staffing levels at the New York Terminal Radar Approach Control (N90).
USITC Makes Determination in a Five-Year (Sunset) Review Concerning Polyester Staple Fiber from China - U.S. International Trade Commission
The U.S. International Trade Commission (USITC) today determined that revocation of the existing antidumping duty order on polyester staple fiber from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
As a result of the Commission’s affirmative determination, the existing order on imports of this product from China will remain in place.
Chairman David S. Johanson and Commissioners Rhonda K. Schmidtlein, Jason E. Kearns, Randolph J. Stayin, and Amy A. Karpel voted in the affirmative.
Today’s action comes under the five-year (sunset) review process required by the Uruguay Round Agreements Act. See the attached page for background on this five-year (sunset) review.
The Commission’s public report Polyester Staple Fiber from China (Inv. No. 731-TA-1104 (Third Review), USITC Publication 5456, August 2023) will contain the views of the Commission and information developed during the review.
The report will be available by September 27, 2023; when available, it may be accessed on the USITC website at: https://www.usitc.gov/commission_publications_library.
The Uruguay Round Agreements Act requires the Department of Commerce to revoke an antidumping or countervailing duty order, or terminate a suspension agreement, after five years unless the Department of Commerce and the USITC determine that revoking the order or terminating the suspension agreement would be likely to lead to continuation or recurrence of dumping or subsidies (Commerce) and of material injury (USITC) within a reasonably foreseeable time.
The Commission’s institution notice in five-year reviews requests that interested parties file responses with the Commission concerning the likely effects of terminating the suspended investigation under review as well as other information. Generally within 95 days from institution, the Commission will determine whether the responses it has received reflect an adequate or inadequate level of interest in a full review. If responses to the USITC’s notice of institution are adequate, or if other circumstances warrant a full review, the Commission conducts a full review, which includes a public hearing and issuance of questionnaires.
The Commission generally does not hold a hearing or conduct further investigative activities in expedited reviews. Commissioners base their injury determination in expedited reviews on the facts available, including the Commission’s prior injury and review determinations, responses received to its notice of institution, data collected by staff in connection with the review, and information provided by the Department of Commerce.
The five-year (sunset) review concerning Polyester Staple Fiber from China (Third Review) was instituted on March 1, 2023.
On June 5, 2023, the Commission voted to conduct an expedited review. Commissioners Rhonda K. Schmidtlein, Jason E. Kearns, Randolph J. Stayin, and Amy A. Karpel concluded that the domestic interested party group response was adequate and the respondent interested party group response was inadequate, and voted for an expedited review. Chairman David S. Johanson voted to conduct a full review.
A record of the Commission’s vote to conduct an expedited review is available from the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Requests may be made by telephone by calling 202-205-1802.
Department of Homeland Security’s Cyber Safety Review Board to Conduct Review on Cloud Security - Department of Homeland Security
CSRB’s Third Review Will Provide Recommendations to Help Organizations Protect Against Malicious Access to Cloud-Based Accounts
WASHINGTON – Today, Secretary of Homeland Security Alejandro N. Mayorkas announced that the Cyber Safety Review Board (CSRB) will conduct its next review on the malicious targeting of cloud computing environments. The review will focus on approaches government, industry, and Cloud Service Providers (CSPs) should employ to strengthen identity management and authentication in the cloud. The CSRB will assess the recent Microsoft Exchange Online intrusion, initially reported in July 2023, and conduct a broader review of issues relating to cloud-based identity and authentication infrastructure affecting applicable CSPs and their customers. The Department began considering whether this incident would be an appropriate subject of the Board’s next review immediately upon learning of the incident in July. The Board will develop actionable recommendations that will advance cybersecurity practices for both cloud computing customers and CSPs themselves. Once concluded, the report will be transmitted to President Joseph R. Biden, Jr. through Secretary Mayorkas and Cybersecurity and Infrastructure Security Agency (CISA) Director Jen Easterly.
“Organizations of all kinds are increasingly reliant on cloud computing to deliver services to the American people, which makes it imperative that we understand the vulnerabilities of that technology,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Cloud security is the backbone of some of our most critical systems, from our e-commerce platforms to our communication tools to our critical infrastructure. In its reviews of the Log4j vulnerabilities and activities associated with Lapsus$, the CSRB has proven itself to be ready to tackle and examine critical and timely issues like this one. Actionable recommendations from the CSRB will help all organizations better secure their data and further cyber resilience.”
The CSRB is an unprecedented public-private initiative that brings together government and industry leaders to deepen our understanding of significant cybersecurity events, including the root causes, mitigations, and responses, and to issue recommendations, based on this fact-finding in the wake of those events. The CSRB’s first review focused on vulnerabilities discovered in late 2021 in the widely used Log4j open-source software library. Its second review, released yesterday, examined the recent attacks associated with Lapsus$, a global extortion-focused hacker group. The CSRB found that Lapsus$ leveraged simple techniques to evade industry-standard security tools that are a lynchpin of many corporate cybersecurity programs and outlined 10 actionable recommendations for how government, companies, and civil society can better protect against Lapsus$ and similar groups.
“We must as a country acknowledge the increasing criticality of cloud infrastructure in our daily lives and identify the best ways to secure that infrastructure and the many businesses and consumers that rely on it,” said CSRB Chair and DHS Under Secretary for Policy Rob Silvers. “The Cyber Safety Review Board is designed to assess significant incidents and ecosystem vulnerabilities and make recommendations based on the lessons learned. To do this work, we bring together the best expertise from industry and government. The Board will undertake a thorough review.”
“An effective shared responsibility model requires a persistent focus on potential systemic risks in cloud environments. Organizations around the world place trust in secure identity management and authentication infrastructure to provide essential functions and protect sensitive data,” said CISA Director Jen Easterly. “The Board’s findings and recommendations from this assessment will advance cybersecurity practices across cloud environments and ensure that we can collectively maintain trust in these critical systems.”
The CSRB does not have regulatory powers and is not an enforcement authority. Its purpose is to identify relevant lessons learned to inform future improvements and better protect our communities.