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PREVENTING TRADE IN ONLINE FAKES

online

PREVENTING TRADE IN ONLINE FAKES

Online Buyer Beware

U.S. consumers spent over $600 billion dollars with U.S. merchants online in 2019. For consumers, online shopping is enticing for its convenience. With credit card in hand, shoppers can easily compare prices, make a purchase, and have the products shipped directly to their homes. The ability to sell online has transformed the ways in which manufacturers, shippers and retailers conduct business.

The evolution from brick and mortar to online stores has also made it more convenient for illegitimate businesses and criminals to pass off counterfeit products, which has attracted the attention of the U.S. government. Since November 2019, a flurry of government activity has focused on protecting consumers in the e-commerce environment.

Trade in fake goods 3.3 percent of world trade

Political Hue and Cry

The Senate Finance Committee examined online counterfeit goods last November when it issued a bipartisan report highlighting two key fact findings: U.S. businesses have difficulties preventing the sale of counterfeit goods online, and e-commerce platforms have no affirmative obligation to police counterfeit goods listings or to proactively remove suspected counterfeit items.

In January, the Department of Homeland Security (DHS) issued a report titled Combating Trafficking in Counterfeit and Pirated Goods, in which DHS found that e-commerce has contributed to a shift in the sale of counterfeit goods in the United States. As consumers increasingly purchase goods online, counterfeiters are increasingly producing a wider variety of goods that may be sold on websites alongside authentic products. The report adds that American consumers shopping on e-commerce platforms and online third-party marketplaces now face a significant risk of purchasing counterfeit or pirated goods.

A week after the release of the DHS report, the White House issued an Executive Order “Ensuring Safe and Lawful E-Commerce for U.S. Consumers, Businesses, Government Supply Chains, and Intellectual Property Rights Holders”. The Order implicates express carriers and the international postal system as contributing to the problem of imports of contraband and counterfeit goods.

American brands 24 percent of fake products seized

House Bill 6058, the SHOP SAFE Act of 2020, was introduced in early March in the House of Representatives. The bill proposes to impose contributory trademark infringement liability on e-commerce platforms unless they take steps specified in the legislation. The legislation received immediate support from several prominent industry associations.

The American Apparel & Footwear Association’s CEO stated that “more needs to be done to prevent counterfeit products from unknowingly entering the homes of American families.” In support of the bill, the CEO of the Personal Care Products Council stated that “counterfeit personal care products damage businesses, disregard regulatory protection and more importantly threaten consumers’ health and safety,” adding the Council encourages “Congress to establish a system that makes online marketplaces and others responsible for ensuring that products on their platforms comply with U.S. laws and regulations”.

Two days later, House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) stated that the convenience of e-commerce “has come at a devastating price: a proliferation of dangerous counterfeit goods that endanger consumers and property, and an army of counterfeit merchants from overseas that undermine American small businesses with unscrupulous tactics.”

Counterfeit medicines

Hiding on Plain Sites

In general, the owners of intellectual property (copyrights, trademarks, patents) have had a lot to say about the online platforms and marketplaces that host e-commerce. As summarized in the Senate Finance Committee’s report, e-commerce platforms place the burden of policing and enforcing intellectual property (IP) on the IP owners, suggesting they do not have a duty to police counterfeit listings or proactively remove suspected counterfeit goods from platforms.

The proposed SHOP SAFE Act of 2020 would place a greater burden on platforms. By taking steps outlined in the legislation, platforms would be able to avoid liability for IP violations.

During the week the SHOP SAFE Act was introduced and a hearing held to address the issue of e-commerce threats to consumers and the economy, a technology company, PreClear, announced it is using “technology that pushes out the border and prevents infringing goods and potentially harmful goods from being exported to the U.S.” PreClear’s founder is quoted as saying that the technology is in use 24/7 and rejects thousands of non-compliant items daily.

There is no doubt that the sheer volume of infringing and other non-compliant merchandise available to consumers on the internet begs for a solution. The question is whether protection and enforcement begin after the items are in the stream of commerce in the United States or before the items ship to the United States. One of the missing variables in the trade policy equation remains how to prevent infringing items from leaving the country of origin in the first instance.

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Tim Trainer was an attorney-advisor at the U.S. Customs Service and U.S. Patent & Trademark Office. He is a past president of the International AntiCounterfeiting Coalition. Tim is now the principal at Global Intellectual Property Strategy Center, P.C., and Galaxy Systems, Inc.

This article originally appeared on TradeVistas.org. Republished with permission.

businesses

How Businesses can Weather COVID-19: Start with Empathy to Employees

Major U.S. businesses are adjusting operations, laying off employees or reducing hours in response to the coronavirus outbreak.

It’s uncharted territory for the nation, and companies from large brands to small businesses, like everyone else, are operating without a playbook to deal with an unprecedented public health threat that will also have economic implications. How businesses adjust to the pandemic and respond to this “new normal” is critical to the future of their business.

“The most important part is showing empathy to employees – now more than ever in these uncertain times,” says Ed Mitzen (www.edmitzen.com), founder of a health and wellness marketing agency and ForbesBook author of More Than a Number: The Power of Empathy and Philanthropy in Driving Ad Agency Performance.

“While every company is dealing with the effects of the COVID-19 outbreak, it’s important to keep in mind that your employees are being affected in more ways than one. Added challenges to daily life now include your partner working next to you, your children being home from school, and having to keep an extra close eye on elderly relatives. In these unusual circumstances, people will notice which companies are treating their employees with empathy and compassion and which are not.”

A business leader’s response during a time like this defines who they are as a leader.

Mitzen thinks this challenging time could be used by business owners to assess their company culture and consider that how they treat employees is central to that culture and vital for business results. He explains how leaders can show empathy to employees, strengthen company culture and drive performance:

Lead with support, not force. “Culture starts at the top, and the best results come when leaders support their people and help them get the most out of life, rather than trying to squeeze them to work harder and harder,” Mitzen says. “People can sacrifice for the job for only so long before they burn out. It may sound counterintuitive, but sometimes prioritizing life over work actually improves the work product. Once you hire good people, you don’t have to push them with crazy deadlines to squeeze productivity out of them.”

Build a team of caring people. “Business is a team sport,” Mitzen says. “To have an empathetic culture, you need people who care for each other and work well together. Build teams by looking for people who lead with empathy.  Don’t hire jerks. People who are super-talented but can’t get along with others tend to destroy the team dynamics, and the work product suffers.”

Define a positive culture – and the work. Showing empathy to employees can be an engine generating creativity and productivity. “The internal culture at a company defines the work the company produces,” Mitzen says. “Culture influences who chooses to work for you, how long they stay, and the quality of work they do. And the core of the culture is empathy, starting with employees and extending to customers and the communities that you live in. There’s a strong connection between a healthy work culture, which inspires people, and the work customers are receiving. That kind of company makes sure customers are treated the same way they are being treated.”

“Now more than ever, empathy, kindness and compassion are important values to keep at the forefront of your organization,” Mitzen says. “Business leaders can take the lead in doing the right thing, starting with their employees.”

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Ed Mitzen (www.edmitzen.com) is the ForbesBook author of More Than a Number: The Power of Empathy and Philanthropy in Driving Ad Agency Performance and the founder of Fingerpaint, an independent advertising agency grossing $60 million in revenue. A health and wellness marketing entrepreneur for 25 years, Mitzen also built successful firms CHS and Palio Communications. Fingerpaint has been included on the Inc. 5000 list of fastest-growing companies for seven straight years and garnered agency of the year nominations and wins from MM&M, Med Ad News, and PM360. Mitzen was named Industry Person of the Year by Med Ad News in 2016 and a top boss by Digiday in 2017. A graduate of Syracuse University with an MBA from the University of Rochester, Mitzen has written for Fortune, Forbes, HuffPost, and the Wall Street Journal.

tyson foods

TRANSPLACE GETS BOOSTS FROM TYSON FOODS, DANA INTERNATIONAL

Springdale, Arkansas-based Tyson Foods, which is one of the world’s largest food companies, bestowed its 2019 Premier Carrier Award to Transplace, the logistics/transportation/technology company headquartered in Frisco, Texas, and operating offices all over the United States and overseas.

“Transplace has been a partner for more than 35 years with a superior track record of on time and on budget delivery across our entire North American network,” said Chris Kozak, Tyson’s associate director of Contract Carriers. “Over the years as we’ve expanded and developed new consumer-appealing food products, Transplace has adapted its transportation management technologies to support us in staying at the forefront of our industry. Transplace consistently rises to our toughest logistics challenges and remains flexible to the day-to-day changes in our dynamic schedules.”

“In the more than three decades that I’ve been leading our 3PL strategies for Tyson Foods, it truly has been a collaborative relationship,” says Jay Moss, president of Transplace Specialized Services. “We are grateful for the award and honored to work with an organization that’s continuously evolving to meet consumer demands. Our access to data from North America’s largest transportation management system allows us to offer cost management insights and unprecedented efficiencies of scale. The Tyson Foods teams are open to our recommendations and together we’ve overcome countless supply chain challenges over the years.”

In other news, Maumee, Ohio-based Dana International, which engineers solutions for passenger-vehicle, commercial-truck, off-highway and industrial-machinery clients, recently selected Transplace to manage its North American transportation network.

live animals

THE GLOBAL TRAVELS OF LIVE ANIMALS

Horses, Asses, Mules and Hinnies Atop the Tariff Schedule

Unless you’re a farmer or animal breeder, the first item in Chapter 1 of the Harmonized Tariff Schedule is one we may think about the least – Live Animals. For most Americans, live animals are a long supply chain away from the supermarket.

At over $21 billion in 2017, global trade in live animals has increased 140 percent over the last two decades. Some 45 million hogs, 16 million sheep, 11 million head of cattle, 5 million goats and 1.9 million poultry (mainly chickens) were transported around the globe, some for breeding and about 80 percent intended for consumption.

A specialized segment within the transportation sector is dedicated to transporting live animals by air, land and sea – from air cargo, tractor trailers and trains, to ocean container shipping.

HTS snippet 0101

Shifting Resource Burdens

The world will be home to 9.7 billion people by 2050. With more mouths to feed, agriculture production must become more efficient against the challenges of limited arable land, energy and water resources, especially in developing countries. International development agencies promote raising livestock as a way to increase income for smallholder farmers (owners can sell products and/or offspring) and to achieve greater food security in rural areas through access to high quality proteins. Importing livestock in the last few months of their life can reduce expenses associated with animal feed and veterinary care while conserving limited water resources.

The water-stressed Middle East region has become a major importer of live animals. Demand for meat and dairy products has grown steeply in Egypt, Israel, Jordan, Kuwait, Lebanon, Oman, Qatar and Saudi Arabia. Importing mature live animals avoids the need to rear animals from birth, shifting the water burden while meeting demand for animals freshly slaughtered in adherence to religious requirements.

Trade in live animals 3x increase

Trade in Genetics, No Goats No Glory

Countries are investing in improving their livestock by either importing live animals or importing frozen semen and embryos for artificial insemination, a process that is achieving higher success rates as costs are coming down. Global trade in purebred animals for breeding in 2017 was a $780 million industry. The animal genetic market is projected to grow from $4.2 billion in 2018 to $5.8 billion by 2023.

In November last year, 1,503 U.S.-origin Holstein heifers valued at $3 million were sold out of Statesville, North Carolina and shipped to Egypt aboard a livestock carrier in an effort by the Government of Egypt to improve the country’s dairy operations supporting output of milk for yogurt and cheese. Qatar is importing American-born dairy cows to surmount trade bans by neighboring countries.

Chickens are by far the largest category of live animals traded globally with hogs coming in second. But it’s dairy goats that could prove key to achieving the United Nations’ 2030 Agenda for Sustainable Development. Goats consume fewer resource inputs than cows, goat milk is nutritious, and women often have strong roles in dairy goat ownership and management.

Caprikorn Farms is the oldest goat dairy in Maryland. Raising some of the best dairy goats in the United States and the world, their genetics are in demand. They have worked with Russian authorities to not only send several live animal shipments to Russia but also improve Russia’s health protocol for international shipment. Ten of their goats even flew to Qatar on a private jet.

Bees also get in on the global trade act. Not only do bees circulate throughout the United States to pollinate our many crops, $48.1 million worth of live bees – including Queen bees and semen — were exported globally in 2018. Europe shipped $26.5 million or 55.2 percent of the global total.

Live animal trade routes 2017

Protecting Livestock on the Journey

While North American cattle and hogs have a short truck ride or may even live on ranches along the borders, many animals face a long ocean journey during which their health can be compromised. They are sometimes relegated to older vessels that may be converted from general cargo and not purpose-built to transport the animals in safe conditions. Often on journeys for weeks at a time, animals are at risk for fatigue, heat stress, overcrowding, injury and the spread of disease in close quarters.

The World Organization for Animal Health (OIE) issued the Terrestrial Animal Health Code in 2019 that provides standards for transporting animals by land, sea and air to protect the health and welfare of the animals and prevent the transfer of pathogens via international trade in animals.

As the global population increases and agricultural producers seek to maximize the resources available to them while improving output, global trade in live animals is likely to continue to grow. Standards and cooperation in international trade practices will need to evolve along with that trend.

Contributor Sarah Smiley lives on her family farm in Appalachia where they have raised fainting (myotonic) goats and Charolais cattle for more than 20 years.

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Sarah Smiley is a strategic communications and policy expert with over 20 years in international trade and government affairs, working in the U.S. Government, private sector and international organizations.

This article originally appeared on TradeVistas.org. Republished with permission.

ecommerce business

How Coronavirus Impacts Ecommerce Business and Beyond

There is no vaccine to prevent the spreading Coronavirus, yet, and that holds lessons for ecommerce businesses and the people who work at them. Today, we’re facing a time to prepare and hopefully limit exposure and risks at work.

For businesses, preparation and the possibility of illness are going to reshape the day-to-day. After reviewing scenarios and government guidance (here’s your list of cleaners that can take out COVID-19), we’ve put together some thoughts on the most significant impacts we’ll see soon and how companies can respond to protect their people best.

Sending people home is best but expensive

Many ecommerce businesses are small shops, though we’ve been impressed to see some grow significantly in recent years. It’s always a fantastic thing to witness, but their scrappy nature usually means staff are perpetually busy and wearing multiple hats.

Unfortunately, that might mean the COVID-19 threat will hit you especially hard.

Your best bet to keep everyone at work safe is to let anyone go home when they feel even the slightest bit sick. If that happens, document the person arrived and left, plus who they came into contact with at work — employees and anyone who might’ve visited — and how they got to work. This can help medical professionals who are already going to be stretched thin.

The best practice here is going to cost you, but it could also save your team from significant harm, and that is to pay your team to stay home. Help people use their sick days and vacation time if they have it. If someone doesn’t, review your budget to see what you can offer.

If people can’t afford to stay home, they come into work even when sick. That’s a danger none of us can afford right now.

Wash your hands and everything else

There is a little bit of a silver lining in the ecommerce world: most of the products moving through your warehouse are going to be safe. You’re watching for people above all else.

This is because most coronaviruses, including COVID-19, struggle to live on surfaces. So far, we haven’t seen evidence of contaminated food products, which is generally where you’ll first see illnesses spread by products/goods.

For products, the risk is a “smear infection” where someone coughs or sneezes onto a product or package, and a new person touches that and then their face. The virus is believed to have a short lifespan in smear cases, so your team should be relatively safe. Maximize their safety by prioritizing handwashing. Have your team wear gloves at all times, but still make them wash up after unloading a truck.

What ecommerce and other businesses will want to be aware of is the route their goods are taking to get to warehouses. If something is passing through areas where there’s been an outbreak or if you learn that a delivery person for a specific company has fallen ill, pay extra close attention to cleaning these products and packages.

For goods that have been traveling to your company for days or weeks by ocean, there’s minimal product risk from that leg of the trip, but local infections may be possible. Air travel is fast enough that you could have higher smear risks.

So, wash hands, wear gloves, and clean everything as you go.

Alternatives may become scarce

Some impacts are already rippling through the global supply chain. One significant shift is that companies are scrambling to find alternative sources for products and raw materials. Not only are prices for some materials already rising, but there’s growing lane congestion.

This will be a double hit for businesses.

If you’re not manufacturing your own goods, then you need someone to do it for you. New partners can be expensive to source. At the same time, your competition will be turning to them as well. Also happening concurrently, manufacturers will be looking to secure new sources of raw materials. Shifts, such as nearshoring production and buying local, all come with increased costs and supply chain changes.

The other impact is that it could generate more congestion for local delivery and fulfillment options. Companies may face the cost of shipping their goods rise, as well as see delays in fulfillment times. Those delays are already happening in areas where there have been cases of the virus.

Your business will pay more, but you might not be able to pass on additional expenses to customers. Delays in fulfillment times will hit the ecommerce sector hard because customers already expect two-day shipping options. Now, you’ll have to tell them it could be longer and cost more, which may see them take their business elsewhere.

Outsourcing will increase

Expect companies to start diversifying the way they get goods to customers. One particular method is going to be outsourcing fulfillment to companies that have multiple warehouses. It’s a smart way to avoid supply chain bottlenecks because it minimizes the chances that a local outbreak will impact your entire fulfillment operations.

For some ecommerce companies, this outsourcing may come with a small benefit of reaching customers more quickly (once they get stock to third-party logistics providers), while also protecting some workers. If we see sustained infections and spreading of the virus, there’s a potential that many small ecommerce businesses will start outsourcing their entire fulfillment operations.

In the short-term, that could cause some issues with warehouse space and fulfillment staff. In the long run, it might cause cost reductions and lead to greater product availability.

Companies who can figure out how to avoid delivery slowdowns — such as large ones able to own and use their own delivery fleet — will dominate the market. The U.S. has faced a truck driver shortage for years, and growth in outsourcing may help curb some of that, but it would come with higher wages for those who have a greater potential risk of being exposed to the Coronavirus and other health concerns.

Our world will look different tomorrow

We’ve fully embraced the gig economy and home delivery, and there’s a potential it all comes crashing down. Whether these employees continue work amid growing exposure (and even after becoming sick) or if services start slowing down, it’ll impact the daily lives of many Americans.

Businesses will also face changes in the way we bring people to the office, help staff pay for healthcare, and what processes we no longer choose to do to protect ourselves. The global, interconnected supply chain is already changing, and nothing but time will tell us how profound and varied this impact is.

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Jake Rheude is the Director of Marketing for Red Stag Fulfillment, an ecommerce fulfillment warehouse that was born out of ecommerce. He has years of experience in ecommerce and business development. In his free time, Jake enjoys reading about business and sharing his own experience with others.

4PL

ONE, TWO, 3PL … or 4PL? DETERMINING WHICH MAKES THE MOST SENSE FOR YOUR BUSINESS

The supply chain ecosystem is becoming more demanding as consumers are conditioned to expect nearly instantaneous free shipping and where order delays can inflict serious damage to brands. As a result, shippers must carefully select their supply chain partners, as their performance has a much greater potential impact on customer satisfaction and the bottom line than ever before.

However, shippers are often perplexed when faced with the choice of partnering with a 3PL or 4PL to tackle their logistics and transportation challenges.

“Every shipper is unique, but many face the same challenges and share the same goals: reducing costs, optimizing their network, consolidating shipments, changing behaviors, improving customer service, and improving visibility, to name a few,” says Ross Spanier, senior vice president of Sales and Solutions at GlobalTranz, a Phoenix, Arizona-based tech company that provides a cloud-based, multimodal transportation management system (TMS) to shippers, carriers and brokers.

“The common thread that links these challenges and goals is data,” Spanier continues, “and many companies lack the data they need to make truly informed business decisions.”

He should know. Spanier brings more than 17 years of experience—which includes stops at C.H. Robinson and Logistics Planning Services—to the discussion of 3PL versus 4PL partnerships. Shippers, he maintains, should focus on the capabilities of the prospective partner and seek out partners that combine the technology, people, multimodal services and solutions they need to in gain a competitive advantage.

“Many shippers really cannot afford to staff and maintain an internal transportation and logistics team,” he notes. “Finding a partner that can act as an extension of their business is key. It’s also extremely important to make sure your partner can provide technology and experience in implementation, execution and integration. That can be a significant cost and a disruption for businesses that attempt to do that by themselves.”

Whether you’re a medium-sized business or listed on the Fortune 1000 annual list, deciding between a 3PL and a 4PL sets the stage for all moving parts.

“A common misunderstanding is that a 3PL is just a broker, when the reality is they can be much more than that,” Spanier says. “At GlobalTranz, our managed solutions are a great example of that. We can offer a more strategic and consultative approach for our customers including having ‘skin in the game’ on the broker side, where we’re taking on pricing commitments, service level commitments, managing the risks and owning the contracts.

“Many times, that is one of the common misunderstandings because a 3PL can act very strategically with customers and not necessarily need a fourth party. The 4PL typically offers strategic insights and management of a company’s entire supply chain, and often if one goes back to the question of ‘what is the difference between a 3PL and 4PL,’ 4PLs are the right fit for much more mature, large or complex organizations.”

GlobalTranz positions itself as a leader in customized solutions for a wide variety of shippers across many industry verticals. From LTL to truckload, final mile or white-glove service, intermodal, ocean, air, and cross-border Mexico transportation … are all part of the GlobalTranz offering. In addition, the company offers an award-winning TMS. The company takes pride in collaborative efforts between the people driving their technology as an integrated solution offered to their customer base.

“Whether a customer is best-suited for a 3PL or 4PL solution is typically not already known when we walk in the door, Spanier explains. “We like to show where a customer can gain the most value based on the solution and its capabilities. More times than not, it’s about voicing that to the customer and understanding where their constraints are and how we can put a solution together–a 3PL or a 4PL solution.”

GlobalTranz boasts a different approach when it comes to serving its customer base. Its robust managed solutions offerings serve a variety of needs that can be tailored upon identifying where the client’s business needs it the most. The experts at GlobalTranz take the process of solution identification one step further by evaluating the needs and configuring a solution from there. There is no “one-size-fits-all” solution, which is exactly how GlobalTranz separates itself from the rest as a leader in logistics solutions–whether that be a 3PL or 4PL solution.

“People, processes, and technology are important, and it’s crucial to establish relationships and communications that are aligned with company goals,” Spanier contends. “Without strong relationships in place, technology and process won’t deliver the needed support or what they’re looking to get out of a partner. When you have a customer looking at a 3PL solution, you want to make sure that a 3PL has the ability to bring in carriers no matter what markets they operate in. This is critical because they may be in one market today but with growth, both organic and through acquisitions, and the changing dynamics in customer demand and expectations, the footprint could expand and it’s important to have a partner that is quick to react and agile in respect to their carrier partners as well.”

So, when deciding on what makes the most sense for your business, consider partners that not only provide solutions but are agile and customizable based on specific business goals.

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As the GlobalTranz Senior Vice President of Sales and Solutions, Ross Spanier leads the enterprise sales organization as well as the design and delivery of innovative and customized supply chain solutions that drive efficiency, cost savings and competitive advantages for current and prospective customers. With more than 15 years of experience in the supply chain and logistics industry, Spanier has developed and grown sales and operations teams specializing in best-in-class service execution of LTL, TL, expedite, supply chain management, projects & heavy haul, white glove and managed transportation service lines. Prior to joining GlobalTranz in 2017, he held sales and operations leadership roles at both C.H. Robinson and Logistics Planning Services (LPS).

modex

MODEX Day Two: Coronavirus Impacting More than Just Trade Operations

Day two for MODEX 2020 concluded with industry players addressing the now-notorious coronavirus and what this means for both domestic and international markets fortunate enough to continue operations without disruption. From what we learned during the session, “Coronavirus and Global Supply Chains” the wave currently felt in China, Italy, and beyond, will eventually make its way to the U.S. and companies have no reason not to be prepared.

Researcher Philip J. Palin, John Paxton with MHI, and David Shillingford with Resilience360 took the unsettling topic head-on and addressed concerns without hesitation. Traders be aware: for domestic and untouched international markets, the worst isn’t over. The coronavirus creates more than just health concerns. It impacts trade operations, legal concerns, and causes financial turmoil as we’ve already started to see.

“The virus is the primary cause of the supply chain impact but the secondary causes coming from the virus include financial, regulatory, compliance, and legal,” explained Shillingford. “Another risk to think about is workforce risk. How many of the workers that left for Chinese New Year have been able to come back, and for those that have returned, are they able to work with open factories or are they still under quarantine?”

“The good news is, the extraordinary supply and demand disruption we’re discussing in terms of China is being released. It’s slow but it’s happening and it’s giving us a benchmark of for how long domestic disruption will be,” Palin stated after announcing the first containership from China arrived at the Port of Los Angeles in almost 10 days on Monday.

Shillingford goes on to explain the shifting patterns in consumer behavior as well, noting that due to worldwide panic, demand is shifting and challenging the logistics sector. Buying habits have undoubtedly changed in recent weeks along with mindsets. Interactions are now limited to a fist-bump or elbow touch rather than a handshake and the numbers of public events cancelled are going up.

“Other things we are seeing involve personnel movement. It’s not just transportation impacted,” Shillingford added.

On the legal side of the crisis, Chinese suppliers are having an issue with certificates and contractual obligations. Shillingford urges industry players to understand the importance of knowing if suppliers have been issued force majeure slips.

“One thing supply chains hate is variance, and there’s going to be a lot of variance and volatility on the demand side,” he concluded.

What does all this mean for the U.S.? At the end of the day, it’s a matter of preparation and strategizing for the more fortunate markets without the disruption of a complete shut-down.

“There was a hidden, horrible problem in the Hubei province that required a draconian measure to prevent transmission of the virus. We should be ahead of that curve as well as the rest of the world, even with this very contagious virus,” explained Palin. “And even if we are behind that curve, we don’t have 300 million workers separated from their place of work.”

coronavirus

The Impact of the Coronavirus on U.S. Trade Proceedings

The coronavirus (COVID-19) has had an undisputed impact on health and travel around the globe during the past two months. It has also stifled trade with China, where it originated. The pressure from tariffs and the ongoing trade war is beginning to shift to pressure from supply chain disruptions caused by the coronavirus. Importers and manufacturers that source from China have been particularly affected, as have maritime, construction, and global supply chain entities. But as trade with China has taken a hit, how have U.S. agencies handled the administration and enforcement of ongoing proceedings involving China?

Of all U.S. federal agencies with oversight over trade with China, the Department of Commerce (“DOC”) is perhaps the most directly involved. The DOC administers antidumping (“AD”) and countervailing (“CVD”) cases, as well as Section 232 tariffs that target Chinese imports. The Office of the United States Trade Secretary (“USTR”) administers the Section 301 tariffs specifically targeting China.

The virus has had a lesser impact on the administration of Section 232 and Section 301 tariffs because this is handled almost entirely in Washington. However, in AD/CVD cases DOC officials must regularly travel to China to conduct onsite verifications of Chinese producers examined in these proceedings. The DOC is currently overseeing nearly 200 ongoing AD/CVD cases against China. Of these, new investigations require verifications, and in the remaining annual reviews the DOC must verify Chinese producers at least once every three years. Each verification takes at minimum a week and involves two or three officials. That adds up to significant travel to China during an average year.

So how has the DOC been mitigating the impact of the virus on its ability to administer trade remedy proceedings? For one, many AD/CVD verifications have been put on hold indefinitely due to health concerns and because major airlines have suspended flights to China. This can be good or bad depending on which side of the case one is (i.e., U.S. companies that brought the cases vs. the importers that have to pay the duties). If the case is likely to result in high margins, importers and their Chinese suppliers would likely want verification so that they can personally prove to DOC officials that they are not dumping and do not receive illegal subsidies. On the other hand, if the AD/CVD margins are projected to be low, then U.S. producers may want the Chinese producers verified, and conversely the latter would prefer not to be audited.

The DOC has also been generous about granting extensions for submissions to Chinese respondents in AD/CVD cases. The agency recognizes that responses to its questionnaires require access to information which has been difficult for Chinese employees to access. Many of them are in quarantined areas and unable to get to work, let alone respond to DOC’s requests. Chinese legal counsel and accountants that regularly support respondents in DOC’s proceedings also are less able to reach their clients.

The DOC may even consider a less conventional approach – tolling of AD/CVD cases. Tolling would allow for ongoing proceedings to be paused or delayed. There is little precedent for such action in response to a foreign emergency or crisis. The DOC last tolled deadlines in its proceedings during the U.S. government shutdown in January 2019. But that was necessitated by domestic federal government concerns. With the coronavirus, a close comparison could be made to the 2004 Asian tsunami crisis, but that event did not necessitate tolling of DOC’s AD/CVD cases involving shrimp from Thailand and India whose seafood industries were decimated.

The DOC has the discretion to toll its deadlines. However, an action that changes AD/CVD duties would require Congressional approval. Hence pleas for a reduction in such duties would face an uphill effort and encounter resistance from domestic producers (as it did when Thailand asked to have dumping duties on its shrimp reduced after the tsunami).

Although the coronavirus itself appears to have become a non-tariff barrier, the Trump Administration has given no indication of backing off its trade deal reached with China in January. Under the agreement, China promised to increase purchases of U.S. crops and meat products by $20 billion in 2020 in exchange for a reduction or delay on current tariffs. Indeed, in late February, USTR Robert Lighthizer and Agricultural Secretary Sonny Perdue insisted that the Administration will hold China accountable for its commitments, even as the outbreak disrupts global supply lines.

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*Mark Ludwikowski is the leader of the International Trade practice of Clark Hill, PLC and is resident in the firm’s Washington D.C. office. He can be reached at 202-640-6680 and mludwikowski@ClarkHill.com

congress

DRIVING CONGRESS TO ACT ON NATIONAL SECURITY TARIFFS

Volkswagen GTI is turbocharged with room for…tariffs?

The Volkswagen Golf GTI is a perennial winner of Car and Driver’s 10Best award. The German-built sport hatchback combines “speed, handling, build quality, an attractive interior, and room for the family,” all for under $30,000. Car and Driver raves about the GTI’s turbocharged engine and notes it’s a formidable challenger to competing “hot hatches.”

Apparently, the U.S. Department of Commerce believes that the GTI poses another challenge — maybe a turbocharged threat to America’s national security.

In a still-confidential 2019 report, the Department reportedly found that imported autos like the GTI “threaten to impair the national security” and recommended that the president impose tariffs as high as 25 percent.

All revved up

The president would enact these tariffs under Section 232 of the Trade Expansion Act of 1962. As TradeVistas’ Andrea Durkin has detailed, Section 232 is a little-used Cold War-era law under which Congress delegated broad authority to the president to restrict imports for national security reasons. The law is also the basis for current controversial duties on steel and aluminum.

The proposed tariffs have generated opposition from vehicle manufacturers, suppliers, economic analysts and members of Congress. The Alliance of Automotive Manufacturers notes that a 25 percent tariff on autos and parts would raise the price of an average imported car by an estimated $6,000 (and add $2,000 to a U.S.-built car) while potentially leading to the loss of over 600,000 American jobs. The Association of Global Automakers (now merged with the Auto Alliance to form the Alliance for Automotive Innovation) questions how passenger cars and light trucks are relevant to national security, suggesting that “America does not go to war in a Ford Fiesta.” Statements from Administration officials suggest that the “national security” justification for auto tariffs may be a pretext to gain negotiating leverage in other contexts.

Sourcing of US Light Vehicle Sales 2017

Congress may put the brakes on Presidential tariffs

With the possible exception of avid inventor Ben Franklin, America’s founders would be astounded by the GTI. They might be equally astonished, however, by the Trump Administration’s assertion of broad authority to impose tariffs. After fighting a revolution against “taxation without representation,” the founders believed it was vital to entrust the power to impose tariffs and other taxes to the people’s representatives. Specifically, Article I, Section 8 of the Constitution vests Congress with the “power to lay and collect taxes [and] duties.”

Since 1934, after its disastrous experience with the Smoot-Hawley tariffs, Congress has increasingly delegated specific trade and tariff powers to the president, subject to a variety of limitations. Presidents have generally used these powers judiciously and to reduce tariffs to expand trade. For example, when President Kennedy signed the 1962 Trade Expansion Act (which enacted Section 232), he emphasized the importance of opening trade and reducing trade barriers and warned against “stagnating behind tariff walls.”

President Trump has taken a maximalist approach to his delegated powers to impose tariffs, particularly for “national security” reasons. In response, Congressional critics from both parties point out that under the Constitution, Congress should be the ultimate driver of tariffs, not the president.

Other concerns with the Administration’s application of national security tariffs include a lack of transparency in determining tariffs and administering tariff exclusions, its use of an overly broad definition of national security, and the cascading impacts on U.S. producers from higher metal prices. Legal experts are also concerned that the Administration did not follow the law when it imposed new tariffs on derivative steel products (including nails and bumpers) and when it extended its review of auto tariffs when time limits under Section 232 have likely expired.

Cost of Autos 232 Tariffs

Time for a trade law tune-up?

Congress could rein in presidential national security tariffs by simply repealing Section 232. However, even critics of current tariffs recognize that there are circumstances where the president might need authority to adjust trade in response to national security threats. Accordingly, Congress has focused instead on bipartisan proposals to place additional limits on the president’s ability to employ Section 232.

The Trade Security Act of 2019, introduced by Senator Rob Portman (R-OH) and Representative Ron Kind (D-WI), would bifurcate the Section 232 process. The Department of Defense (DoD) would first investigate whether there is a national security basis for restricting imports of an article. If DoD finds that an article poses a security threat and the president decides to act, the Commerce Department would then recommend tariffs or other measures to address the threat. The Portman-Kind bill would also enable Congress to disapprove any Section 232 trade restriction imposed by the president through a resolution of disapproval that would itself be subject to a veto by the president. This legislation would not impact current Section 232 tariffs on steel and aluminum.

The Bicameral Congressional Trade Authority Act of 2019introduced by Senator Pat Toomey (R-PA) and Representative Mike Gallagher (R-WI) would also require DoD to take the lead in investigating whether an article poses a national security threat, while also adopting a tighter definition of national security. Notably, under this legislation, no proposed Section 232 action by the president could take effect unless Congress first passes a resolution of approval. The Toomey-Gallagher bill would also (i) repeal current steel and aluminum duties unless Congress passes an expedited resolution of approval, (ii) direct the independent U.S. International Trade Commission to report to Congress on the economic impacts of Section 232 actions, and (iii) require that the USITC administer the tariff exclusion process for future Section 232 actions.

Two bills in Congress to brake 232

Getting out of neutral

For the past year, Senate Finance Committee Chairman Chuck Grassley (R-IA) has been attempting to meld the Portman and Toomey bills into a compromise measure that would attract veto-proof majorities in Congress. Despite considerable bipartisan support, Grassley notes that this effort has faced two challenges. First, there’s opposition from Republicans who see the legislation as a rebuke of President Trump. Second — as any student of U.S. trade history could have predicted —interests that benefit from new national security tariffs are now lobbying intensely to retain these tariffs. Despite this opposition, Grassley has vowed to continue efforts to enact Section 232 reform in 2020.

More potholes ahead?

Meanwhile, Volkswagen’s GTI and other imported autos will continue to face the threat of national security tariffs. And that threat won’t necessarily subside if a Democratic president takes office next year. Some Democrats have already proposed using the Trump Administration’s expansive reading of Section 232 to advance their own policy goals — particularly to address the climate crisis. Carbon-emitting autos like the GTI would be a prime target for new tariffs.

The GTI was designed for Germany’s smooth, high-speed autobahns. When it comes to U.S. national security tariffs, however, the GTI’s road ahead may continue to be full of potholes.

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Ed Gerwin

Ed Gerwin is a lawyer, trade consultant, and President of Trade Guru LLC.

This article originally appeared on TradeVistas.org. Republished with permission.

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