The Commerce Department Bureau of Industry and Security extended by two weeks to Nov. 9 comments on its pre-rule on foundational technologies (see 2010050039), says Friday's Federal Register. It clarified the agency will accept “confidential business information” if commenters follow certain guidelines such as that they “clearly identify” that private portion and justify its nondisclosure.

Comments are due Nov. 12 in docket USTR-2020-0037 on initiating a Trade Act Section 301 investigation into Vietnam’s allegedly unfair currency valuation practices (see 2010050005), says an Office of the U.S. Trade Representative notice for Thursday’s Federal Register. “Available analysis” found the Vietnamese dong was undervalued by about 7% in 2017 and 8.4% in 2018, and it was “undervalued in 2019 as well,” via Vietnamese government manipulation through the State Bank of Vietnam (SBV), said USTR. “The evidence indicates that in 2019, the SBV undertook net purchases of foreign exchange totaling approximately $22 billion, which had the effect of undervaluing the dong’s exchange rate with the U.S. dollar,” it said. The investigation will determine whether Vietnam’s “interventions” are “unreasonable or discriminatory and burden or restrict U.S. commerce,” and what actions USTR should take to address them, it said. Vietnam supplied 20.9% of all smartphone imports to the U.S. in Q3 and 6.4% of all laptop and tablet imports (see 2010070028). “In light of the uncertainties arising from COVID-19 restrictions, USTR is not at this time scheduling a public hearing in this investigation,” it said. The Vietnamese Embassy in Washington didn’t respond to questions.

The Office of the U.S. Trade Representative is initiating a Trade Act Section 301 investigation into Vietnam’s allegedly unfair currency manipulation and “the resultant harm caused to U.S. commerce,” said the agency Friday. “Unfair currency practices can harm U.S. workers and businesses that compete with Vietnamese products that may be artificially lower-priced because of currency undervaluation,” said USTR Robert Lighthizer. “We will carefully review the results of the investigation and determine what, if any, actions it may be appropriate to take.” The Vietnamese Embassy in Washington didn’t respond to questions Monday. Vietnam accounted for 18% of all smartphone imports to the U.S. in Q2 (see 2008160001), plus 11% of TV imports and 5% of tablet and laptop shipments (see 2008090002).

The Commerce Department Bureau of Industry and Security's handling of emerging and foundational technologies drew rhetorical fire on a Center for Strategic and International Studies webinar. Experts said Friday the lengthy process is impeding Committee on Foreign Investment in the U.S. work. “It’s a hard list," said Wiley's Nova Daly of BIS work to come up with information on such technologies that need curbs when involving certain other countries. "Emerging technologies shift and change.” Putting controls on emerging and foundational technologies is "a requirement by law," the expert added. "It will help CFIUS do its job in terms of being able to make sure we don't lose those critical technologies.” The Foreign Investment Risk Review Modernization Act (FIRRMA) let CFIUS review transactions involving such tech. Because of some BIS delays in issuing those controls, CFIUS may not have a clear definition for what technologies to target, experts say. Making CFIUS partly dependent on BIS “was a really bad idea, and I think it needs to be re-looked,” said David Hanke, who helped draft FIRRMA and now is at Arent Fox. “There needs to be more agility, there needs to be more speed, the ability for [Treasury] to see something coming, and whether or not it's covered by BIS and the commerce control list, to be able to designate that in a quick manner.” Thomas Feddo, Treasury's CFIUS lead, cautioned critics from placing too much blame on BIS. “I'm not an export controls expert. I wish Commerce was here to defend themselves,” he said. “I think they might make some argument that they're making a great deal of progress.” Feddo said CFIUS doesn't necessarily need BIS to designate critical technologies for the committee to target transactions. BIS didn't comment Monday. A BIS spokesperson Friday pointed to its notice that day announcing six additional emerging technology controls. The agency hasn't issued foundational tech final controls (see 2008260013).

“Facts are facts,” and "the international community will not be fooled by the lies” of Secretary of State Mike Pompeo, said a Chinese Foreign Affairs Ministry spokesperson Friday. Pompeo accused the Chinese government Thursday of subjecting women to “forced abortion, forced sterilization, and involuntary implantation of birth control devices” as part of its campaign “against Uyghurs and members of other minority groups.” He further accused the Chinese Communist Party of continuing to use “censorship and arbitrary detentions to crack down on the freedoms of expression and association of China’s women’s rights advocates.” Pompeo’s allegations are “completely unfounded,” said the ministry spokesperson. “The Chinese government protects the rights and interests of all ethnic minorities in equal measure, with preferential population policies toward minority groups, including Uyghurs.” Women in the U.S., “in direct contrast,” still face “systemic, prevalent and institutional discrimination and threat,” and are “21 times more likely to die” from gun violence than women in other “high-income countries,” he said. The State Department didn’t respond to questions.

State Department final guidance expands on the initial definition of human rights due diligence and offers red flags and due diligence considerations for exporting surveillance technology. The department didn't significantly narrow its definition for surveillance items despite industry requests. It deleted a suggestion that companies incorporate a “kill switch” to remotely deactivate a device if a company is concerned it's being misused. Information Technology and Innovation Foundation comments last year warned a kill switch could be used for “censorship or other negative purposes.” Snooping tech can be misused if exported to “foreign government end-users or private end-users that have close relationships with governments that do not demonstrate respect for human rights,” State said Wednesday. The U.S. restricts shipments to China over the country’s mass surveillance and detention of ethnic minorities in the Xinjiang.

The Section 301 lawsuits are an important check on the government's imposition of tariffs despite the recent claims of a domestic industry group, a customs lawyer told us. Kenneth Rapoza, an industry analyst with the Coalition for a Prosperous America, had disparaged lawyers representing companies challenging Lists 3 and 4 of the Section 301 tariffs (see 2009300028). "Importers and Exporters, Domestic Producers and the population at large have a right to expect proper federal enforcement of Trade Laws," said Simon Gluck lawyer Chris Kane in an email and on LinkedIn Thursday. "Attorneys play an indispensable role in seeing that happens. In the last BIG case, attorneys protected the rights of U.S. exporters, including the members of Mr. Rapoza’s employer, to retrospective refunds of and prospective dispensation from the Export Harbor Maintenance Tax all the way to U.S. Supreme Court and thereafter. That’s how it works in our legal system," he said.

The Coalition for Prosperous America, supporting Trade Act Section 301 tariffs on China, complained Tuesday about the "cadre of legal firms" suing the Trump administration over tariffs on goods from Lists 3 and 4A (see 2009220027). "The equivalent of tariff ambulance chasers" recruited the companies to file the lawsuits, blogged Kenneth Rapoza. The analyst mentioned Sandler Travis, which said in a recent client notice there's still time to file similar challenges, and noted the role of Sandler Travis lawyer Lenny Feldman as co-chair of the Customs and Border Protection's Commercial Customs Operations Advisory Committee. The blog post highlighted Akin Gump, which filed the first lawsuit, for being the largest lobbying operation in Washington and representing ZTE. The law firms didn't comment Wednesday.

DOJ’s motion for case management procedures to navigate the thousands of Section 301 tariff complaints before the U.S. Court of International Trade (see 2009240040) was “procedurally defective” because it wasn’t served on any other plaintiffs who filed cases involving the original HMTX Industries lawsuit (see 2009110041), said an opposition (in Pacer) Monday from Paulsen Vandevert, lawyer for importers GHSP and Brose North America. The more than 3,400 complaints seek to have the Lists 3 and 4A tariff rulemakings vacated and the paid duties refunded. GHSP, a supplier of electromechanical systems to the automotive industry, and Brose, a distributor of mechatronic parts for motorized car seats, are in “full agreement” with DOJ that the many complaints will require case management procedures, said Vandevert. But his clients “strongly object” to designating the three “first-filed” complaints as test cases, he said. The first three complaints were filed Sept. 10 and Sept.16. Vandevert filed for GHSP (in Pacer) Sept. 18 and for Brose (in Pacer) Sept. 22. “To determine which case or cases should be designated as the lead or test cases, the Court and all counsel involved must identify the cases that best represent all of the issues raised by all plaintiffs that would support invalidating the List 3 and 4A duties and justify their refund,” said Vandevert. “At this time it cannot be known with any certainty which cases, if any, do that.” DOJ didn't respond to questions Tuesday. Virtually all the suits we examined allege the Office of the U.S. Trade Representative overstepped its authority under the 1974 Trade Act when it imposed Lists 3 and 4A as retaliatory strikes against China. They also allege USTR violated the Administrative Procedure Act by running rulemakings that were sloppy and lacked transparency. Vandevert's complaints on behalf of GHSP and Brose were among the few to layer on the additional argument that Lists 3 and 4A were unlawful and unconstitutional forms of federal “revenue collection,” well beyond the "scope of actions USTR was authorized to take" under the Trade Act (see 2009230023). Only Congress has the “constitutional power” to impose taxes, said both complaints.

China opposes the Trump administration's "unjustified suppression and bullying" of non-U.S. companies under the "weakest pretext of national security," said a Foreign Affairs Ministry spokesperson Monday. The U.S. District Court for the District of Columbia granted a preliminary injunction Sunday against implementing President Donald Trump’s executive order seeking to ban Chinese-owned apps TikTok and WeChat from U.S. app stores (see 2009180051). U.S. District Judge Carl Nichols issued the order (in Pacer). TikTok showed the prohibitions “likely exceed the lawful bounds proscribed” by the International Emergency Economic Powers Act, Nichols wrote in the accompanying memorandum opinion (in Pacer), which was unsealed Monday. He cited IEEPA’s limitations in regulating “informational” materials. "We hope the U.S. can earnestly respect the principles of market economy and fair competition, observe international trade rules, and foster an open, fair, just and non-discriminatory business environment for foreign companies operating and investing in the U.S.,” the Foreign Affairs Ministry spokesperson said. The Commerce Department said the government will comply with the injunction but “intends to vigorously defend the E.O. and the Secretary’s implementation efforts from legal challenges.” The EO “is fully consistent with the law and promotes legitimate national security interests,” Commerce said. TikTok said it “will continue defending our rights for the benefit of our community and employees" and continue its dialogue with the federal government.