Posts Tagged ‘Chinese counterfeit parts’

COOL Online Act Benefits Consumers Better than Shop Safe Act

Monday, October 4th, 2021

As more and more American consumers turn to buying products online instead of in person at brick-and-mortar stores, they become increasingly vulnerable to counterfeit goods and are unable to determine where the products have been made.  Country of Origin information is missing from the major online platforms so consumers are unable to fellow Americans by choosing to “Buy American” for products sold online.  Without knowing Country of Origin, they are not able to boycott buying products made in China by slave labor or protest the ethnic cleansing of the Uyghurs by the Chinese government. 

Over the last two years, a few Congressional Representatives and Senators have introduced bills in Congress to address these problems and protect consumers. This year, H. R. 3429, the Shop Safe Act of 2021, was introduced on May 20, 2021 by House Judiciary Committee Chairman Jerrold Nadler (D-NY), Internet Chairman Henry C. “Hank” Johnson, Jr. (D-GA), Internet Ranking Member Darrell Issa (R-CA), and Representative Ben Cline (R-VA).

Senator Christopher Coons (D-DE) also introduced S. 1843, the Shop Safe Act of 2021, in the Senate on May 26, 2021. These bills would supposedly protect consumers by stopping the online sale of harmful counterfeit products.

The Press Release issued by the sponsors on May 20, 2021, states: “The SHOP SAFE Act will:

  • Establish trademark liability for online marketplace platforms when a third-party sells a counterfeit product that poses a risk to consumer health or safety and that platform does not follow certain best practices;
  • Incentivize online platforms to establish best practices such as vetting sellers to ensure their legitimacy, removing counterfeit listings, and removing sellers who repeatedly sell counterfeits; and
  • Call for online marketplaces to take steps necessary to prevent the continued sale of counterfeits by the third-party seller or face contributory liability for their actions.”

This sounds good, but the online platform has to rely on the integrity of the distributor or manufacturer in stating that the product is not counterfeit.  I don’t know about you, but I wouldn’t have any confidence in China companies adhering to the “honor system.” Other concerns I have:  Does someone have to report a counterfeit product to the online platform?  How are counterfeit products identified?  Who investigates the charge? What proof has to be provided to prove a product is counterfeit?

Recently, the directors of US Inventor, Inc sent out an email to their supporters saying, “Big Tech is trying to pull a fast one again… This legislation grants immunity for trademark infringement to online selling platforms like Amazon, provided that their Chinese suppliers ‘attest’ that they ‘have taken reasonable steps to verify the authenticity of the goods’ and ‘agree not use a counterfeit mark’. Seriously…Congress is offering up a proposal to waive liability for Amazon based on their implementation of an “honor system” for their Chinese suppliers!”

I can understand the skepticism of US Inventors because one of the co-sponsors, Rep. Isa) was a co-sponsor of the America Invents Act of 2011 and two other co-sponsors voted in favor of the America Invents Act.  Readers of my articles are familiar with the harm caused by this Act.

US Inventors urged supporters not to believe the hype, stating:

  • “The SHOP SAFE Act of 2021 is HAZARDOUS to inventors, entrepreneurs, and small business.
  • The SHOP SAFE Act HURTS, not helps, intellectual property owners.” The SHOP SAFE Act limits your ability to protect your IP online.
  • The SHOP SAFE Act makes protecting your brand online harder not easier.
  • The SHOP SAFE Act lets the platforms off the hook for their misdeeds.
  • The SHOP SAFE Act hurts small business

They suggest asking yourself: “When was the last time you saw huge corporations and big special interests all support a bill containing MORE (not less) regulation? Why would the giant platforms who make more money from counterfeiting online like Amazon, eBay, Etsy, and Wish hail the SHOP SAFE Act as a cure?”

They conclude that the Shop Safe Act “does not fix the real problem” and “doesn’t close the loopholes.” Instead, “It adds a “safe harbor” for online marketplaces that lets them off the hook for legal liability.”  They say “The SHOP SAFE Act gives the online platforms and the counterfeiters MORE LOOPHOLES!  It’s “best practices” have already been tried and failed to stem the tide of pirated goods sold on sites like Amazon and eBay.”

A far better bill to protect consumers was S. 3707, the COOL Online Act, introduced by Senator Tammy Baldwin on May 13, 2020, and cosponsored by Rick Scott (R=FL), Kelly Loeffler (R-GA, and Christopher Murphy (D-CT).  While it wasn’t voted on in the 116th Congress, the provisions were included in Section 2510 of the United States Innovation and Competition Act of 2021 (S. 1260) passed on June 8, 2021 by the Senate.

The National Law Review wrote:  “The Act as passed by the Senate is virtually unchanged from the proposed legislation that we reported on. As a recap, the legislation would require that a wide variety of imported commodities sold online be accompanied by the following disclosures on the website ‘in a conspicuous place’:

  • The country of origin of the product, consistent with U.S. Customs and Borders Protection (CBP) marking requirements; and
  • The country of origin in which the seller is located (and, if applicable, the location of any parent corporation)
  • Further, the online disclosures for certain categories of goods already subject to existing specialized COOL requirements would also be required to comply with these existing requirements. Importantly, products covered by USDA’s Agricultural Marketing Service (AMS) COOL would have to comply with AMS’s COOL requirements in the online disclosure.
  • The legislation would be enforced by the Federal Trade Commission (FTC), but would require that FTC and CBP sign a memorandum of understanding to provide for consistent implementation of the legislation.”

This legislation will now move to the House of Representatives for consideration. We can only hope that the provisions of the COOL Online Act will be added to the House version of the United States Innovation and Competition Act of 2021. 

The Coalition for a Prosperous America, of which I have been a member since 2011, supports the COOL Online Act. I have been a member of the Buy America committee since it was started two years ago.  Recently, James A. Stuber, Co-Chair of the Buy America Committee and the author of What If Things Were Made in America Again, wrote “Congress must fight to ensure that America’s families know exactly what they’re buying online with their hard-earned money. Both the House and Senate should support country-of-origin labeling for all e-commerce transactions. Anything less could potentially put American lives at risk.”

We need the help of everyone who supports rebuilding American manufacturing by encouraging more people to Buy American.  Here’s what you can do:  Call the Capitol main number (202-224-3121) and ask to speak to the office of your Representative.  Ask them to vote against the Shop Safe Act. Ask them to sponsor or co-sponsor the COOL Online Act.  If you can’t get through on the main Capitol line, call the local office.  I’ve called my Representative.  Will you?

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U.S. Must Stop Trafficking of Counterfeit and Pirated Goods

Tuesday, August 4th, 2020

One of the dangers of reliance on foreign manufacturers is the increase of U.S. vulnerability to receiving counterfeit goods.  Over the last ten years, there have been several reports prepared to determine the extent of the infiltration of counterfeits into U.S. defense and industrial supply chains, to provide an understanding of industry and government practices that contribute to the problem, and to identify best practices and recommendations for handling and preventing counterfeit electronics.

The first was the Defense Industrial Base Assessment: Counterfeit Electronics prepared by the U.S. Department of Commerce on January 2010as a result of a three-year study. “This assessment focused on discrete electronic components, microcircuits, and circuit board products – key elements of electronic systems that support national security, industrial, and commercial missions and operations. A few of the findings of the study were:

  • all elements of the supply chain have been directly impacted by counterfeit electronics
  • companies and organizations assume that others in the supply chain are testing parts;
  • lack of traceability in the supply chain is commonplace
  • there is an insufficient chain of accountability within organizations
  • recordkeeping on counterfeit incidents by organizations is very limited
  • most DOD organizations do not have policies in place to prevent counterfeit parts from infiltrating their supply chain

The Bureau of Industry and Security’s (BIS) Office of Technology Evaluation (OTE) made the following key recommendations:

  • Consider establishing a centralized federal reporting mechanism for collecting information on suspected/confirmed counterfeit parts for use by industry and all federal agencies
  • Modify Federal Acquisition Regulations (FAR), including Defense Federal Acquisition Regulations (DFAR), to allow for “best value” procurement
  • Require U.S. Government suppliers and federal agencies to systematically report counterfeit electronic parts to the national federal reporting mechanism;
  • Issue clear, unambiguous legal guidance to industry and U.S. federal agencies with respect to civil and criminal liabilities, reporting and handling requirements
  • Establish federal guidance for the destruction, recycling, and/or disposal of electronic systems and parts sold and consumed in the United States
  • Consider establishing a government data repository of electronic parts information and for disseminating best practices to limit the infiltration of counterfeits into supply chains
  • Develop international agreements covering information sharing, supply chain integrity, border inspection of electronic parts shipped to and from their countries, related law enforcement cooperation, and standards for inspecting suspected/confirmed counterfeits

However, implementing these recommendations didn’t solve the problem.  On May 21, 2012, the U.S. Senate Armed Services Committee released a report as a result of a congressional investigation into counterfeit goods.  “The year-long investigation launched by Sen. Carl Levin, D-Mich., the committee’s chairman, and Ranking Member Sen. John McCain, R-Ariz., found a total number of suspect counterfeit parts involved in those 1,800 cases exceeding 1 million.” Counterfeit electronic parts “were uncovered in items ranging from night vision equipment to Global Positioning System (GPS) navigation modules.”

The Committee “discovered counterfeit electronic parts from China in the Air Force’s largest cargo plane, in assemblies intended for Special Operations helicopters, and in a Navy surveillance plane among 1,800 cases of bogus parts.

“Our report outlines how this flood of counterfeit parts, overwhelmingly from China, threatens national security, the safety of our troops and American jobs,” Levin said. “

As a result, “the Committee adopted an amendment to the FY12 National Defense Authorization Act (NDAA) to “address weaknesses in the defense supply chain and to promote the adoption of aggressive counterfeit avoidance practices by DoD and the defense industry.”

In the next four years, progress was made as shown by the follow-up report to Congress of February 2016 Government Accountability Office (GAO), which  “found that while the number of counterfeit parts in the DoD supply chain decreased significantly between 2011 and 2015, there were still nearly 50 parts per year that were identified as being counterfeit.  As a percentage of total parts, this was a mere .006% of the DoD supply chain.”

However, a single counterfeit part can have a disastrous impact and identifying counterfeit parts is extremely difficult when they are deliberately manufactured to pass as the “real deal.” Moreover, the threat of counterfeit parts being introduced by U.S. adversaries, such as China, has increased, and these foreign companies are good at figuring out ways to make their counterfeits blend in with other components.

Counterfeit goods are not limited to the defense and industrial supply chain.  The January 24, 2020 report to the President of the United States, “Combating Trafficking in Counterfeit and Pirated Goods,” states, “Counterfeiting is no longer confined to street-corners and flea markets. The problem has intensified to staggering levels…information collected by the U.S. Department of Homeland Security (DHS) between 2000 and 2018 shows that seizures of infringing goods at U.S. borders have increased 10-fold, from 3,244 seizures per year to 33,810.”

This report recommended the following immediate actions for the Department of Homeland Security and other agencies:

1.” Ensure Entities with Financial Interests in Imports Bear Responsibility

2. Increase Scrutiny of Section 321 Environment

3. Suspend and Debar Repeat Offenders; Act Against Non-Compliant International Posts

4. Apply Civil Fines, Penalties and Injunctive Actions for Violative Imported Products

5. Leverage Advance Electronic Data for Mail Mode

6. Anti-Counterfeiting Consortium to Identify Online Nefarious Actors (ACTION) Plan

7. Analyze Enforcement Resources

8. Create Modernized E-Commerce Enforcement Framework

9. Assess Contributory Trademark Infringement Liability for Platforms

10. Re-Examine the Legal Framework Surrounding Non-Resident Importers

11. Establish a National Consumer Awareness Campaign”

These recommendations were very timely since there has been a big problem with counterfeit pharmaceuticals, personal protective equipment (PPE), and medical devices during the COVID-19 pandemic this year. Counterfeit goods in the healthcare industry can cause immediate loss of lives just like counterfeit parts in the defense industry can cause loss of life for our military personnel in defending our country.

Since taking office in January 2017, President Trump has issued three Executive Orders strengthening different aspects of the Buy American Act of 1933: 

EO 13788: “Buy American and Hire American,” April 18, 2017

EO 13858: Strengthening Buy-American Preferences for Infrastructure Projects,” January 31 2019

EO 13881:– “Maximizing Use of American-Made Goods, Products, and Materials,” July 15, 2019

I laud the President’s focus on strengthening the Buy American Act, but the best way to eliminate the problem of counterfeit goods is to return manufacturing to America of all critical goods for our defense and military, as well as our pharmaceutical, PPE, and medical device industries.  This is referred to as “reshoring” by Harry Moser, who founded the Reshoring Initiative in 2010. In an article for Assembly magazine of February 12, 2019, Harry Moser wrote: “The Reshoring Initiative has aggregated consumer surveys from 10 sources, gleaning insight into the preferences of more than 14,000 U.S. consumers. Findings show that there is a decisive preference for U.S.-made goods: 97 percent have a positive view of goods manufactured in the U.S. Americans also have a positive opinion of companies that manufacture in the U.S.: 91 percent believe it is important to manufacture in the U.S. and think the government should take steps to support American manufacturing.”

Only Made in USA products will be able to provide confidence in the quality of the products, but government agencies, the health care industry, and consumers need to know where products are being made to make the choice of buying Made in USA products. Currently, there are limitations of county of origin labeling on products, and no information is provided for products sold on the internet and through catalogs.  We must address this situation if we are truly going to be able to stop trafficking of counterfeit and pirated goods. 

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Protecting Intellectual Property is Critical to our Economy

Tuesday, September 10th, 2013

The U. S. economy has been the innovator of virtually all major technologies developed since World War II. The innovative technologies that American inventors and entrepreneurs have invented and developed have benefitted Americans in all aspects of their lives. American manufacturers have been responsible for more than two-thirds of all private sector R&D that led to these innovative new technologies. More than 90 percent of new patents derive from the manufacturing sector and the closely integrated engineering and technology-intensive services.

Innovation is the hallmark of U. S. manufacturing, and it requires a certain mass of interconnected activities, which like a snowball rolling downhill grows in size as it proceeds towards end users. Substantial R&D is required to keep the innovation ball rolling to ensure more successes than failures.

Manufacturing is an incubator for technology and science, so it is important that R&D be conducted in close proximity to manufacturing plants where innovative ideas can be tested and worker feedback can fuel product innovation.

Innovation and production are intertwined. You need to know how to make a product in order to make it better. “Most innovation does not come from some disembodied laboratory,” said Stephen S. Cohen, co-director of the Berkeley roundtable on the International Economy at the University of California, Berkeley. “In order to innovate in what you make, you have to be pretty good at making – and we are losing that ability.

In his book Great Again:  Revitalizing America’s Entrepreneurial Leadership, Hank Nothhaft, retired CEO of Tessera Technologies, writes that “In our arrogance and our own naiveté, we told ourselves that so long as America did the ‘creative’ work, the inventing, we could let other nations do the ‘grunt’ work – the manufacturing. We did not yet understand that a nation that no longer makes things will eventually forget how to invent them.”

Most cutting edge or break-through technologies are not generated by established, larger companies. They come from the creative innovations of entrepreneurs starting up companies. However, most of these entrepreneurs don’t startup their companies in a vacuum; they are most often started by people who have gained knowledge and experience at existing companies in a technology/product field and leave the company to develop their own innovative new product in that same field.

These entrepreneurs need to have protection for the intellectual property of their new technologies via the patent system in order to raise the investor funds they need to move forward in developing the technology into a marketable, producible end product. Angel investors and venture capital investors invest their monies in a combination of the entrepreneurial team and the innovative, even disruptive technology. If the intellectual property is not secured through a “patent pending” or issued patent, there is nothing in which to invest.

Economist Pat Choate, author of Saving Capitalism: Keeping America Strong, emphasized how important the protection of Intellectual Property is to the future of American manufacturing at the “Making California Thrive” Manufacturing summit last February facilitated by the Coalition for a Prosperous America. He said that the U. S. is the most innovative country in the world and issues more patents than any other country. However, the recent passage of the America Invents Act converting the U. S. from a “first-to-invent” to “first-to-file” is hurting our innovation. Most growth comes from “disruptive” technology developed by inventors/entrepreneurs of small companies, and the “first-to-file” favors large companies that can file a challenge against these small companies in the hopes of bankrupting them to avoid disruptive technology from harming their business.

In the last two decades, the competitive status of U. S. manufacturing has been increasingly challenged by the state-of-the-art technologies being developed by established nations such as Japan, Germany, Korea, and Taiwan. While emerging economies, such as China, are acquiring advanced manufacturing capability through R&D tax incentives and incentives for direct foreign investment, they still rely heavily on counterfeiting, pirating, and theft of American intellectual property to compete unfairly.

In the July 12th article in The Hill, Stephen Ezell, a senior analyst with the Information Technology and Innovation Foundation, wrote “IP-intensive industries are foundational to the U.S. economy. They contribute over $5.1 trillion in U.S. economic output, accounting for nearly 35 percent of U.S. GDP in 2010, as the U.S. Department of Commerce found in its report Intellectual Property and the U.S. Economy: Industries in Focus. At the same time, IP-intensive industries exported more than $1 trillion worth of goods and services in 2011, accounting for approximately 74 percent of total U.S. exports that year, and supported at least 40 million jobs, or 20 percent of all U.S. private sector employment.”
He criticized the testimony that the Government Accountability Office (GAO) provided to the House Committee on Energy and Commerce Subcommittee on Oversight and Investigations regarding Insights Gained from Efforts to Quantify the Effects of Counterfeit and Pirated Goods in the U.S. Economy because it ignored previous reports of the International Trade Commission and the IP Commission.

Instead of providing new data, the GAO report laments the fact that “quantifying the economic impact of counterfeit and pirated goods on the U.S. economy is challenging primarily because of the lack of available data on the extent and value of counterfeit trade.”

He pointed out that the ITC report, “China: Effects of Intellectual Property Infringement and Indigenous Innovation Policies on the U.S. Economy, estimated that in 2009 alone Chinese theft or infringement of U.S. intellectual property cost almost one million U.S. jobs and caused $48.2 billion in U.S. economic losses due to lost sales, royalties, or license fees. The report found that, ‘Of the $48.2 billion in total reported losses in 2009, approximately $36.6 billion (75.9 percent) was attributable to lost sales, while the remaining $11.6 billion was attributable to a combination of lost royalty and license payments.’”

He added that the more recent “IP Commission Report, a report from the Commission on the Theft of American Intellectual Property, found that the impact of international IP theft on the U.S. economy exceeds $320 billion annually, comparable to the level of U.S. exports to Asia.”

On June 20, 2013, the White House released the 92-page 2013 Joint Strategic Plan on Intellectual Property Enforcement. The press release states, “Since the first Joint Strategic Plan was released in 2010, the Administration has made tremendous progress in intellectual property enforcement. Coordination and efficiency of the Federal agencies has improved; U.S law enforcement has increased significantly and we have successfully worked with Congress to improve our legislation. We have increased our focus on trade secret theft and economic espionage that give foreign governments and companies an unfair competitive advantage by stealing our technology. We have pressed our trading partners to do more to improve enforcement of all types of intellectual property.”

It’s outrageous that the plan takes 92 pages to describe actions that are either the same as actions in the 2010 plan or are so ridiculously vague or redundant that they are virtually worthless, such as:

  • Support small and medium-size enterprises in foreign markets.
  • Coordinate international capacity-building and training.
  • Improve transparency in intellectual property policymaking.
  • Examine labor conditions.
  • Assess the economic impact of intellectual property-intensive industries.
  • Use legal software.
  • Educate authors on “fair use” copyright doctrine

What inventors and entrepreneurs need most is enforcement of current laws. Thus, the most useful actions in the new plan are:

  • Improve IPR enforcement efficacy by leveraging advanced technology and expertise.
  • Increase focus on counterfeits shipped through international mail and work with express carriers.
  • Evaluate the enforcement process of exclusion orders issued by the U.S. International Trade Commission (ITC).
  • Promote Enforcement of U.S. Intellectual Property Rights through Trade Policy Tools

I seriously question whether this plan will enhance protecting America’s Intellectual Property. In addition, how will we know if it is successful if we don’t have current data on the extent of Intellectual Property theft and the damage it is causing to the American economy?

I agree with Mr. Ezell that the above plan “must be effectively implemented and the federal government needs to make it clear that it will no longer tolerate foreign entities counterfeiting or pirating U.S. goods, stealing trade secrets, copying digital content, or otherwise taking U.S. property without paying for it.”

Since innovation and creativity are part of the foundation of our country’s economy, we need to have effective enforcement of intellectual property rights to promote economic growth, ensure our global competitiveness, and protect the health and safety of our citizens. If we want to remain at the cutting edge of technology and innovation and maintain the critical mass of our manufacturing industry, we also need to protect the key to our future security as a nation and keep the R&D that fuels innovation and the subsequent manufacture of products within the United States.

 

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Senate Report Reveals Extent of Chinese Counterfeit Parts in Defense Industry

Tuesday, May 29th, 2012

On May 21, 2012, the Senate Armed Services Committee released a report on counterfeit parts in the Department of Defense supply chain.  The Committee discovered counterfeit electronic parts from China in the Air Force’s C-130J and C-27J cargo plane, in assemblies used in the Navy’s SH-60B helicopter, and in the Navy’s P-8A surveillance plane, among 1,800 cases of bogus parts.

“The systems we rely on for national security and the protection of our military men and women depend on the performance and reliability of small, incredibly sophisticated electronic components.  Our fighter pilots rely on night vision systems enabled by transistors the size of paper clips to identify targets.  Our soldiers and Marines depend on radios ad GPS devices, and the microelectronics that make them work, to stay in contact with their units and get advance warning of threats that may be around the next corner. The failure of a single electronic part can leave a soldier, sailor, airman, or Marine vulnerable at the worst possible time,” the report says. “Unfortunately, a flood of counterfeit electronic parts has made it a lot harder to prevent that from happening.”

The year-long investigation launched by Sen. Carl Levin, D-Mich., the committee’s chairman,and Ranking Member Sen. John McCain, R-Ariz., found over a million suspect counterfeit parts involved in those 1,800 cases.

“Our report outlines how this flood of counterfeit parts, overwhelmingly from China, threatens national security, the safety of our troops and American jobs,” Levin said. “It underscores China’s failure to police the blatant market in counterfeit parts – a failure China should rectify.”  The Chinese government denied visas to Committee staff to travel to mainland China as part of the Committee’s investigation.

The investigation revealed that China was the dominant source of counterfeit electronic parts ? more than 70 percent of the parts tracked were traced to China, coming from more than 650 companies.  Counterfeit parts included unauthorized copies of an authentic product and previously used parts that were made to look new and sold as new.  The parts often change hands multiple times before being bought by defense contractors, who may know little about the source of the parts they buy, the report said.

“Our committee’s report makes it abundantly clear that vulnerabilities throughout the defense supply chain allow counterfeit electronic parts to infiltrate critical U.S. military systems, risking our security and the lives of the men and women who protect it,” said McCain. “As directed by last year’s Defense Authorization bill, the Department of Defense and its contractors must attack this problem more aggressively, particularly since counterfeiters are becoming better at shielding their dangerous fakes from detection.”

In November 2012, the Committee held a hearing on the investigation’s preliminary findings.  Following that hearing, Committee Chairman Carl Levin and Ranking Member John McCain offered an amendment to the National Defense Authorization Act for Fiscal Year 2012 to address weaknesses in the defense supply chain and to promote the adoption of aggressive counterfeit avoidance practices by DOD and the defense industry. The amendment was adopted in the Senate and a revised version was included in the final bill signed by President Obama on December  31, 2011.

The law requires the Secretary of Defense to conduct an assessment of Department of Defense acquisition policies and systems for the detection and avoidance of counterfeit electronic parts not later than 180 days after the date of the enactment of the Act to:

  • establish Department-wide definitions of the terms “counterfeit” or “suspect counterfeit electronic part”
  • issue guidance regarding “training personnel, making sourcing decisions, ensuring traceability of parts, inspecting and testing parts, reporting and quarantining counterfeit electronic parts and suspect counterfeit electronic parts, and taking corrective actions (including actions to recover costs…”
  • issue or revise guidance “on remedial actions to be taken in the case of a supplier who has repeatedly failed to detect and avoid counterfeit electronic parts or otherwise failed to exercise due diligence in the detection and avoidance of such parts, including consideration of whether to suspend or debar a supplier until such time as the supplier has effectively addressed the issues that led to such failures.”
  • require contractors or subcontractors that suspect a counterfeit part provide “a report in writing within 60 days to appropriate Government authorities and to the Government-Industry Data Exchange Program
  • “establish a process for analyzing, assessing, and acting on reports of counterfeit electronic parts and suspect counterfeit electronic parts” that are reported.
  • Require the Secretary to revise the Department of Defense Supplement to the Federal Acquisition Regulation to address the detection and avoidance of counterfeit electronic parts not later than 270 days after the date of the enactment of this Act.

The law includes provisions to help stop counterfeit electronic parts before they enter the U.S, strengthens the inspection regimen for imported parts, and gives the government wider berth in seeking assistance from the private sector in determining whether parts are authentic.  It also requires that contractors or subcontractors “obtain electronic parts that are in production or currently available in stock from the original manufacturers of the parts or their authorized dealers, or from trusted suppliers who obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers manufacturers or authorized distributors.”

The investigation revealed that the defense industry also has routinely failed to report cases of suspected bogus parts.  For example, the majority of the 1,800 cases involving counterfeit parts appear to have gone unreported to the DOD or criminal authorities.  Boeing failed to report a case of a suspect counterfeit part used in the Navy’s P-8A surveillance airplane until the Senate Armed Services Committee began inquiring, the report said.  And L-3 Communications didn’t report the suspect memory chip to the Air Force until the day before the committee’s staff was scheduled to meet with the Air Force program office responsible for the program.

The Committee’s report includes detailed descriptions of how counterfeits are flooding the supply chain, risking the performance and reliability of critical defense systems. In just one example described in the report, the U.S. Air Force says that a single electronic parts supplier, Hong Dark Electronic Trade of Shenzhen, China, supplied approximately 84,000 suspect counterfeit electronic parts into the DOD supply chain. Parts from Hong Dark made it into Traffic Alert and Collision Avoidance Systems (TCAS) intended for the C-5AMP, C-12, and the Global Hawk.  In addition, parts from Hong Dark made it into assemblies intended for the P-3, the Special Operations Force A/MH-6M, and other military equipment, like the Excalibur (an extended range artillery projectile), the Navy Integrated Submarine Imaging System, and the Army Stryker Mobile Gun.

The Armed Services Committee reached the follow conclusions on counterfeit parts:

Conclusion 1: China is the dominant source country for counterfeit electronic parts that are infiltrating the defense supply chain.

Conclusion 2: The Chinese government has failed to take steps to stop counterfeiting operations that are carried out openly in that country.

Conclusion 3: The Department of Defense lacks knowledge of the scope and impact of counterfeit parts on critical defense systems.

Conclusion 4: The use of counterfeit electronic parts in defense systems can compromise performance and reliability, risk national security, and endanger the safety of military personnel.

Conclusion 5: Permitting contractors to recover costs incurred as a result of their own failure to detect counterfeit electronic parts does not encourage the adoption of aggressive counterfeit avoidance and detection programs.

Conclusion 6: The defense industry’s reliance on unvetted independent distributors to supply electronic parts for critical military applications results in unacceptable risks to national security and the safety of U.S. military personnel.

Conclusion 7: Weaknesses in the testing regime for electronic parts create vulnerabilities that are exploited by counterfeiters.

Conclusion 8: The defense industry routinely failed to report cases of suspect counterfeit parts, putting the integrity of the defense supply chain at risk.

Of course, China denies any culpability.  On May 25, 2012 an article appeared in China Defense News that stated, “The U.S. government has found yet another reason to ignore its own problems and bash China, this time accusing the country of compromising national security via the manufacture of counterfeit electronic components used by the U.S. military…The accuracy of the claims is questionable at best, but bigger questions should be answered first: how did counterfeit parts end up slipping into the U.S. military system in the first place? And for what purpose were the parts originally shipped for?

The U.S. has maintained a military embargo on China for 23 years. Military components and weapons aren’t supposed to be officially traded between the two countries to begin with. Taking this into consideration, the U.S. ought to find out precisely who purchased the parts and how they passed muster before accusing China of wrongdoing.”

I answered the question of how counterfeit parts ended up “slipping into the U. S. military system in the first place” in my blog article last fall, titled “What Led to the Problem of Chinese Counterfeit Parts.”  I detailed the following four main reasons for the problem of Chinese counterfeit parts:

  1. Mil. Spec. qualified components replaced by off the shelf components by allowing use of “dual use technology” of commercial components
  2. Relaxing “Buy American” requirements for Federal procurement
  3. American companies sourcing manufacturing offshore, mainly in China
  4. Rapid obsolescence of components, especially micro chips

The provisions of the National Defense Authorization for FY 2012 don’t directly address these four main reasons for the counterfeit part problem.  This is another typical example of Congressional legislation where they attempt to have their cake and eat it too by seeming to crack down on counterfeit parts while not endangering U. S. corporate investments in China.  In order not to anger their big political donors, who include some of the corporations that export our jobs to China, they place the burden of identifying and reporting counterfeit parts on contractors and subcontractors instead of addressing the root causes I have listed above.

The new Federal procurement regulations being drafted by the Department of Defense are supposed to “address the detection and avoidance of counterfeit electronic parts,” but there has been no mention of eliminating “dual use technology” of commercial parts for military/defense applications.  And, there has been no discussion of tightening or strengthening the “Buy American” requirements for Federal procurement to what they were prior to 1993.

Worst of all, there has been no action by Congress on addressing the trade and tax laws that currently incentivize American manufacturers to continue to offshore manufacturing in China and other foreign countries.  Congress must act to eliminate the incentives for offshoring and provide incentives for bringing manufacturing back to America.  Until these root causes are addressed, we will continue to have counterfeit parts slip into the military/defense procurement system and endanger the lives of our military personnel and threaten our national security.

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What Led to the Problem of Chinese Counterfeit Parts?

Tuesday, November 15th, 2011

Last week, the Senate Armed Services Committee reported that an investigation found and examined about 1800 cases of suspected counterfeit electronic parts dating from 2009 to last year, totaling about a million individual components.  Tracing the supply chain, 70% of the components came through China, where a variety of methods were used to misrepresent the parts as new and genuine.  Hearings now being conducted by Senator Carl Levin (D-Michigan) and Senator John McCain (R-Arizona).

At a news conference on Monday, November 7, 2011, Sen. Carl Levin told reporters, “There’s a flood of counterfeit parts entering the defense supply chain.  It is endangering our troops and it is costing us a fortune.”

Sen. John McCain said the investigation documents the alarming “threat counterfeit parts pose to the safety of our men and women in uniform, to national security and to our economy.”  He added, “We can’t tolerate the risk of a ballistic missile interceptor failing to hit its target, a helicopter pilot unable to fire his missiles, or any other mission failure because of a counterfeit part.”

This dangerous state of affairs has taken over 20 years to develop and is a complex web of unintended consequences of seemingly innocuous changes in policies.  There are four main reasons for the problem of Chinese counterfeit components:

1.      Mil. Spec. qualified components replaced by off the shelf components

2.      “Buy American” requirements relaxed

3.      Manufacturing outsourced offshore, mainly in China

4.      Rapid obsolescence of components, especially micro chips

It all started with the scandals of the 1980s over the $600 toilet seats and $400 wrenches that President Reagan’s Defense Department, under Caspar Weinberger, was accused of wasting its money on by the Democrat-controlled Congress.

At the time, the news media ignored reasonable voices pointing out that tooling often has to be made to produce metal, plastic, rubber, and fiber glass parts in certain manufacturing processes.  This tooling cost then has to be amortized into the piece price of the part; i.e., tooling cost divided by the number of parts ordered plus piece price equals selling price. Since defense and military parts are produced in much lower volume than commercial products, the amortized tooling costs add much more to the part cost than it does for commercial parts.

The $600 toilet seat was actually a uniquely shaped, molded fiberglass shroud that fits over the toilet and had to satisfy specifications for vibration resistance, weight, and durability for the P-3C Orion antisubmarine aircraft, which went into service in 1962.  Since the airplane had been out of production for years, new tooling was required to produce the part.  The price reflected the design work and the cost of the equipment to manufacture them, and Lockheed Corp. charged $34,560 for 54 toilet covers, or $640 each.  The president of Lockheed at the time, Lawrence Kitchen, adjusted to the price to $100 each and returned $29,165.

Because of the public outcry over these scandals, the procurement regulations were changed.  The Defense Department, branches of the military, and their supply chain of vendors were allowed to purchase commercial off the shelf parts (COTS) if they met the same fit and function of parts made to strict military specifications.  In the early 1990s, most commercial parts were still being made in the United States, with some outsourcing to the Philippines, Hong Kong, and Singapore, so this change was pretty safe.  Permitting commercial parts to replace Mil. Spec. parts probably drove out of business the small companies that catered exclusively to the military and that provided traceability, per Mil. Spec., for parts supplied to government agencies, military contractors, and subcontractors.  This was all done in the name of cost savings.  Now, however, most commercial electronic components and micro chips are fabricated in China.

Second, after the end of the Cold War and the successful conclusion of the first Gulf War, the provisions of the “Buy American Act” were eased to allow purchasing off the shelf commercial parts from foreign countries by the Defense Department and other government agencies.  Previously, parts, assemblies, and systems were required to be substantially made in the United States or in a NATO country, such as Great Britain, France, and Germany.

This led to parts being made in China as more and more American companies started to outsource manufacturing in China either by selecting Chinese companies as vendors or setting up their own manufacturing plants in China.   This trend accelerated after China received “most favored nation” status with the approval of the World Trade Organization treaty in the year 2000, and American companies started to build semiconductor wafer fab plants in China to produce micro chips.

The problem with counterfeit parts is not something new to industry – there were always a small number of rejected parts that went out the “back door” of companies to be sold on the black or “gray” markets by individual employees.  What is new is the purposeful production of counterfeit parts by a foreign government, namely, China, as a form of economic warfare and counter espionage.

Brian Toohey, president of the Semiconductor Industry Association (SIA), testified Tuesday before the Senate Armed Services Committee calling counterfeit parts “a ticking time bomb.”   He added, “The catastrophic failure risk inherently found in counterfeit semiconductors places our citizens and military personnel in unreasonable peril,” said Toohey. The SIA estimates that counterfeits cost US-based semiconductor companies more than $7.5 billion a year.

EBN Editor, Barbara Jorgensen wrote in her blog, “Counterfeits have been appearing in the consumer and industrial sectors for as long as anyone can remember, but their presence in mission-critical defense equipment and military and passenger aircraft threatens lives  The efforts have a ways to go, but the dialogue between industry associations such as the SIA and the Defense Department and Justice Department are a major step in the right direction.”

Bruce Rayner, Contributing Editor, EE Times, wrote “counterfeiting is on the rise and it is getting harder to detect.  Counterfeit computer hardware, including chips, was one of the top commodities seized in 2010 by the US Immigration and Customs Enforcement agency (ICE) … up five-fold over 2009…The reason for the increase is that there’s a lot of money to be made.  Many obsolete components are in demand by the military because they need to repair very old equipment, such as 1980s-vintage fighter jets.  But the parts are no longer manufactured, and only a few authorized distributors stock the vintage components.  In some cases, the only place to buy these chips is from independent distributors or brokers who don’t have formal sourcing relationships with the original component manufacturer. They buy them over the Internet from sources they don’t know and who can’t validate their authenticity.”

The August 2011 issue of Industry Week reported, “In 2010, government agents seized fake goods totaling $188.1 million, which if genuine would have been worth $1.4 billion.  Goods from China accounted for 66% of the value of seizures by U. S. Customs and Border Protection.”  In the same article, Wes Shepherd, CEO of Channel IQ, said that the outsourcing of manufacturing in China combined with online selling “introduced the specter of counterfeiting as a much more serious problem.”

Joe O’Neill, owner of O’Neill Technologies and formerly with Intel, Samsung and Toshiba, told me in an interview, “the counterfeit problem is a product life cycle mismatch between consumer and more traditional applications, such as industrial, medical, and defense.  The life cycle of micro chips, also referred to as micro processors and controllers, are very short in the networking, computer, and telecommunications industries.  The life cycle of a cell phone model may range from six to 12 months, while industrial and military products may have a life cycle of decades.  Products for the military are a small piece of the market so there is a real problem with part obsolescence.  Availability of these parts that have been made ‘end of life’ force manufacturers to go into the Gray Market or other non-traditional sources to keep their factories supplied with parts.  There are a few companies that specialize in making obsolescent microprocessors for industrial, medical or military manufacturers by “cloning” the parts.” One such company is Innovasic, which makes the X86 series of Intel and AMD micro processors.

During the Senate hearings, part of which I watched after work, photos of bins of electronic parts were shown as Thomas Sharpe, V. P. of SMT Corporation, described visiting electronic component marketplaces in July 2008, where scrapped electronic parts were washed in rivers or left for the daily monsoon rains, dried on river banks, and collected in bins to be ready for counterfeit processing.  Counterfeiters buy used parts for pennies in the street markets of Shenzhen and other Chinese cities, re-mark them, fix broken leads and buff them up, then ship them to brokers in the West who unknowingly or knowingly sell them to other brokers or to OEMs for multiples of what they paid.

Last year, the Department of Justice’s Task Force on Intellectual Property was created specifically to prosecute counterfeiters, and last week Stephanie McCloskey was sentenced to 38 months in federal prison for her role in a scheme by VisionTech Components to import fake chips from China into the U. S. that were sold to a variety of customers including defense contractors and the military.

Until we implement more stringent procurement regulations, strengthen “Buy American” procurement regulations for defense and military components, and return more manufacturing to the United States from offshore, it will be up to manufacturers to have a system to detect and deter counterfeits.  Many defense contractors have put in place strict regimen for inspecting, testing, and reporting counterfeits, but all companies need to be vigilant by inspecting, testing, and reporting.

 

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