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U.S. Government Agencies Announce Upcoming Regulatory Actions

A number of U.S. government agencies, including the U.S. Department of Commerce, the U.S. Department of Justice, the U.S. Department of Agriculture, the U.S. Department of Homeland Security and the Food and Drug Administration, recently announced a range of planned regulatory actions for this year of potential interest to Hong Kong and mainland Chinese exporters. A brief description of these actions is provided below, with the expected timeframes for issuance of the rules indicated in parentheses.

Upcoming Regulations – USDA

  • a proposed rule to provide exceptions to the Lacey Act import declaration requirements for (i) products containing composite plant materials and (ii) products containing a minimal amount of plant materials (December 2017)
  • a final rule establishing a performance standard for authorising the importation and interstate movement of fruits and vegetables (December 2017)
  • a final rule restructuring the regulations on the importation of plants for planting and adding plants whose importation is not authorised pending pest risk analysis (December 2017)
  • a final rule to (i) establish generic criteria that would allow for the approval of new cold treatment facilities in the southern and western states of the United States, which would facilitate the importation of fruit requiring cold treatment, and (ii) harmonise language concerning state compliance with facility establishment and parameters for the movement of consignments from the port of entry or points of origin in the United States to the treatment facility in the irradiation treatment regulations with language in the cold treatment regulations (December 2017; proposed rule published in June 2016)
  • a final rule that would ease restrictions on the importation of some plant pests, establish criteria for the movement and environmental release of biological control organisms, and revise the regulations regarding the movement of soil (February 2018; proposed rule issued in January 2017)
  • a final rule amending the regulations regarding the importation of live sheep, goats and wild ruminants and their embryos, semen, products and by-products (February 2018)
  • a final rule to list mainland China as eligible to export to the United States poultry products from birds slaughtered in the mainland (March 2018; proposed rule published in June 2017)

Upcoming Regulations – DOC

  • a proposed rule to clarify that for all entries subject to antidumping duties the importer must file its reimbursement certification in either proper electronic form or paper form in accordance with CBP requirements (December 2017)
  • a proposed rule setting forth procedures to address covered merchandise referrals from CBP (December 2017)
  • a final rule specifying that where the exporting country does not constitute a viable market the DOC will normally calculate normal value based on constructed value (December 2017; proposed rule published in August 2016)
  • a final rule eliminating the regulation describing how the DOC will issue, and the effect of, licences for the allocation of tariff-rate quotas on worsted wool fabric, as the underlying programme has been transferred to USDA (December 2017)
  • a proposed rule to establish a voluntary Commerce Trusted Trader Program for importers that aims to provide benefits such as reduced targeting and inspections and enhanced streamlined entry (December 2017)
  • a final rule to eliminate the regulation describing how the DOC will determine whether applicants are bona fide motor vehicle manufacturers under the Automotive Products Trade Act of 1965, as the authority for this regulation is no longer part of the U.S. tariff schedule (March 2018)
  • a proposed rule to improve the export clearance requirements under the Export Administration Regulations, including better harmonising them with similar requirements under the International Traffic in Arms Regulations (March 2018)
  • a proposed rule on the definition of a routed export transaction and the responsibilities of parties in routed export transactions (April 2018; advance notice of proposed rulemaking issued in October 2017)
  • a proposed rule to eliminate references to (i) information provided by domestic interested parties regarding sales made below the cost of production in order to allege dumping and (ii) the DOC’s use of voluntarily submitted information to calculate constructed value (April 2018)
  • a proposed rule that would align DOC regulations with the Trade Preferences Extension Act of 2015, which provides that the DOC shall not be required to corroborate any dumping margin or countervailing duty applied in a separate segment of the same proceeding (April 2018)
  • a proposed rule expanding the scope of the maritime nuclear propulsion prohibition in the EAR to apply to both commodities and software as well as technology (April 2018)
  • a proposed rule updating and clarifying certain licence exception AVS provisions (June 2018)
  • a proposed rule to amend certain 600 series ECCNs to clarify the controls on items related to military vehicles, vessels of war, submersible vessels, oceanographic equipment, and auxiliary and miscellaneous military equipment (June 2018)
  • a final rule imposing export controls on read-out integrated circuits, seismic intrusion detection systems, radar for helicopter autonomous landing systems and technology required for the development or production of specified nanotechnology (August 2018)

Upcoming Regulations – DHS/Treasury

  • a U.S. Customs and Border Protection interim final rule to implement a mandatory Air Cargo Advance Screening programme for inbound aircraft required to make entry that have commercial cargo aboard (January 2018)
  • a CBP proposed rule amending the regulations pertaining to the importation of goods that violate or are suspected of violating the copyright laws in accordance with title III of the Trade Facilitation and Trade Enforcement Act and certain provisions of the Digital Millennium Copyright Act (January 2018)
  • a CBP proposed rule implementing changes to the drawback laws contained in the TFTEA by requiring claims to be filed electronically, extending and standardising timelines for filing claims, modifying recordkeeping requirements, and establishing a new standard for substituting merchandise based on its tariff classification (January 2018)
  • a CBP final rule to expand the definition of “importer” under the importer security filing rule for certain types of shipments to ensure that the party that has the best access to the required information is the party responsible for filing the ISF (March 2018; proposed rule issued in July 2016)
  • a CBP proposed rule to update and modify the (a)(1)(A) list in the appendix to 19 CFR Part 163 (March 2018)
  • a CBP proposed rule to establish procedures for determining the duration and scope of a vessel debarment (i.e., barring from entry into U.S. ports any vessel owned or chartered by an entity found to be in violation of certain immigration laws and regulations) and how entities may request mitigation of the debarment (April 2018)
  • a CBP proposed rule seeking to promote the speed, accuracy and transparency of administrative rulings concerning the importation of articles that may be subject to exclusion orders issued by the U.S. International Trade Commission under section 337 of the 1930 Tariff Act (April 2018)
  • a CBP final rule shifting authority to make certain decisions regarding customs transactions from port directors to directors of the Centers of Excellence and Expertise (May 2018)
  • a CBP proposed rule to modernise the customs broker regulations, including by allowing national permit holders to conduct customs business in all districts within the U.S. customs territory, removing the requirement to have a district permit in each district where the broker conducts customs business, removing the requirement that brokers maintain physical offices in the districts in which they conduct customs business, and updating the requirements on responsible supervision and control (June 2018)
  • a CBP proposed rule that would require customs brokers to verify the identity of importers and non-resident importers and would create a process for doing so that is contemporaneous with obtaining power of attorney (June 2018)
  • a CBP final rule reflecting that the Automated Commercial System is being phased out as a CBP-authorised electronic data interchange system for the processing of electronic entry and entry summary filings (June 2018; interim final rule issued October 2015)
  • a CBP final rule raising from US$200 to US$800 the de minimis value of articles that may be imported by one person on one day free of duty and tax (June 2018; interim final rule published in August 2016)
  • a CBP final rule on procedures for investigating evasion of AD and CV duty orders (June 2018; interim final rule published in August 2016)
  • a CBP final rule clarifying the circumstances under which a notice of arrival must be filed for imported pesticides and pesticidal devices, codifying existing required NOA data elements, requiring the submission of additional NOA data elements for unregistered pesticides that are currently optional, and permitting the NOA to be filed electronically in the Automated Commercial Environment (June 2018; interim final rule published in September 2016)
  • an Alcohol and Tobacco Tax and Trade Bureau proposed rule to update procedures for exports of distilled spirits, wine, beer and tobacco products and implement the International Trade Data System all-electronic environment (September 2018)

Upcoming Regulations – Miscellaneous Agencies

  • a Fish and Wildlife Service proposed rule to revise the regulations on the importation, exportation and transportation of wildlife to adapt to the ITDS, clarify prior notification requirements and clearance and clearance refusal options, and add the ability for FWS to offer a conditional release of certain wildlife to co-ordinate release activities under ITDS (December 2017)
  • a State Department final rule clarifying when exports may be made to or on behalf of a U.S. government agency without a licence and expanding this exemption to allow for permanent exports (December 2017)
  • an FDA final rule requiring certain data elements to be submitted to the FDA and CBP for veterinary devices (May 2018)
  • a proposed rule implementing the FDA’s authority under the Food Safety Modernization Act to suspend the registration of facilities that manufacture, process, pack, receive or hold food (June 2018)
  • an FDA proposed rule that would remove requirements that apply to importers of food for humans and animals concerning requirements to obtain written assurance from the customer that identified hazards will be controlled (August 2018)
  • a proposed rule from the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives to replace the term “specifically designed” with the term “specially designed” in 27 CFR Part 447 to make terminology consistent between the U.S. Munitions Import List, the ITAR and the Commerce Control List (September 2018)
  • a proposed rule from the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau to amend the regulations on the exportation of distilled spirits, wine, beer and tobacco products to update export procedures and implement ITDS (September 2018)
  • an FDA final rule on gluten-free labelling of fermented, hydrolysed or distilled foods (October 2018)

Regulations in Process

  • a final rule setting forth due process procedures for CBP to follow before suspending or revoking assigned entry filer codes, immediate delivery privileges, or remote location filing privileges
  • a DOC final rule establishing time limits for the submission of requests for sampling in administrative reviews of AD duty orders
  • a DOC proposed rule to adopt an export licencing amendment process and make other licencing process efficiencies
  • a DOC final rule that (i) clarifies the parties’ responsibilities under the EAR in a routed export transaction, including when the U.S. principal party in interest maintains its responsibility for licence requirement determination and licencing, and (ii) details when and how a U.S. PPI may delegate to the foreign PPI its responsibilities to determine licence requirements and apply for a licence

Regulations Completed

  • a DOC final rule making four clarifications to licence exception GOV and adding five notes to licence exception STA
  • a final rule prescribing procedures for the donation of technologies, training or other support services to assist CBP in intellectual property rights enforcement
  • a final rule to enhance CBP’s ability to regulate and track in-bond merchandise and ensure it is properly entered or exported

Regulations Withdrawn

  • a USDA final rule on the importation of genetically engineered organisms
Content provided by Picture: HKTDC Research
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