Weekly Trade Briefing: January 17 – 21, 2022

International Trade News

Trade Update • JANUARY 22, 2021

Aweekly roundup of news reports, government announcements, and other information about current and emerging developments in international trade and customs compliance.

U.S. Court Denies Gruyere Cheese Geographic Trademark Protection

A recent U.S. federal court ruling that Gruyere is a generic term may signal the challenges facing European producers looking to receive geographic trademark protection for their traditional food products in the U.S. and elsewhere. Seeking similar treatment to that of champagne and Roquefort cheese, the group argued the product was unique to the region. The Court, however, sided with the U.S. Dairy Export Council and other opposing groups who contended that consumers don’t associate the gruyere name with cheese made specifically from that region. According to the judge, “decades of importation, production, and sale of cheese labeled GRUYERE produced outside the Gruyère region of Switzerland France have eroded the meaning of that term and rendered it generic.” The decision has since been appealed.

ITC Issues General Exclusion Order re Certain Vacuum Insulated Flasks

Earlier this month, the International Trade Commission issued a notice of its final determination of a violation of Sec. 337 and issuance of a General Exclusion Order regarding certain vacuum insulated flasks made of stainless steel. The investigation followed a 2020 complaint by Oregon-based Hydro Flask Steel Technology alleging that a dozen Chinese companies were infringing on Hydro Flask’s patents and trademarks. The ITC’s review affirmed the initial determination’s findings, including satisfaction of the necessary “economic prong” of the domestic industry requirement, and agreed that the appropriate remedy is a GEO.

Mandatory Section 8E Reporting Delayed Until Feb. 28

In a bulletin issued late last week, CBP has advised that mandatory transmission of the USDA’s Section 8e requirements—applicable to avocados, grapefruit, kiwifruit, onions, potatoes, table grapes, field-grown tomatoes, pistachios, dates, hazelnuts (filberts), olives, raisins, and walnuts—through the Automated Commercial Environment system has been delayed until February 28. Starting on this date, ACE will reject any entries if the HTS codes are flagged with AM4 and if there is no corresponding AMS MO PGA message set provided.

The Economic Impacts of Retaliatory Tariffs on U.S. Agriculture

A new report from the U.S. Department of Agriculture’s Economic Research Service details the impacts stemming from various countries responding to the former administration’s tariffs on steel and aluminum. The report examines the losses that occurred in 2018 and 2019 due to retaliatory tariffs imposed by Canada, China, the European Union, India, Mexico, and Turkey. While tariffs from each country had an impact, losses that resulted were most profound for exports to China, according to the USDA, which estimates that farm export losses totaled $27 billion during that time.

Commerce Updates Automated Export System

The U.S. Department of Commerce’s Census Bureau has added new capabilities to the Automated Export System. A change that took effect on January 13 now sends a warning to the exporter if, based on the Export Control Classification Number and the destination, the commodity being exported needs a license and none is provided. In future, AES will no longer send a warning, but a Fatal Error notice. AES has also been updated to include license code “C64” for the new Authorized Cybersecurity Exports license exception.

ITC Launches Sec. 337 Investigation of Certain Refrigerator Water Filtration Devices

The U.S. International Trade Commission last week voted to institute an investigation of certain refrigerator water filtration devices and components thereof. The probe is based on a complaint filed last December by LG Electronics Inc. alleging that imports of certain refrigerator water filtration devices into the U.S. infringe various of its patents. LG Electronics is requesting that the USITC issue a general exclusion order and cease and desist orders. The USITC will make a final determination at the earliest practicable time and will set a target date for completing the investigation by February 28.

DOJ to Appeal Trade Court Decision Reinstating Solar Panel Loophole

The Biden administration is appealing the reinstatement of an exemption from the safeguard tariffs for bifacial modules. Late last week the Department of Justice filed a notice of appeal challenging a Nov. 16 decision by the U.S. Court of International Trade that ruled the former president had overstepped his authority in repealing the exemption just weeks before he left office. The DOJ contends that the exemption for bifacial panels was essentially issued in error and considers the appeal the start of a legal process towards formally removing the loophole. The dispute over the exemption has fiercely divided the U.S. solar industry. The trade association representing solar manufacturers, project developers, installers, and financiers described the DOJ’s appeal as “another government misstep in this long and tortured saga and provides no benefit to the American workers, public, or clean energy goals.”

Truck Chassis

CBSA Confirms Dumping & Subsidizing Decisions on Chinese Container Chassis

On January 19, the Canada Border Services Agency made final determinations of dumping and subsidizing with respect to certain container chassis from China (usually classified under 8716.39.30.90). The margin of dumping for all but one exporter was determined to be 126.4% with a countervailable subsidy amount of 20.4%. The Canadian International Trade Tribunal is continuing its inquiry to determine if the dumping and/or subsidizing are causing injury to the domestic industry and will make an order or finding by February 18. In the meantime, provisional duties will continue to apply on imports of subject goods.

Buy American Waiver Tracker Now Operational

Nearly one year after President Joe Biden signed an executive order to crack down on waivers from the federal government’s “Buy America” and “Buy American” requirements, a new government website tracking such exceptions is now operational. Though details regarding the procuring agencies’ justification(s) are limited, the new site will nonetheless provide U.S. manufacturers with greater transparency into government efforts to determine the availability of goods from domestic sources. Under the Biden administration, all waiver requests must now be run through the Made in America Director, a newly created position within the White House.

U.S. Lawmakers Question Tesla’s ‘Misguided’ Expansion in Xinjiang

In a letter sent this week to Tesla CEO Elon Musk, Reps. Bill Pascrell Jr. (D-N.J.) and Earl Blumenauer (D-Ore.) — who chair the House Ways and Means Committee’s oversight and trade subcommittees, respectively — accused Tesla of enabling “gross human rights violations” by opening a car showroom in China’s Xinjiang region. “Your misguided expansion into the Xinjiang Uyghur Autonomous Region sets a poor example and further empowers the  [Chinese Communist Party] at a fraught moment,” the lawmakers wrote. They have demanded that Tesla confirm by February 2 that it is “not contributing to or financially benefiting from the forced labor practices rampant in the region.”

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