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U.S. Government Agencies Outline Expected Regulatory Actions for the Next 12 Months

The various agencies that make up the U.S. federal government recently issued their respective semi-annual regulatory agendas, which include a number of actions of potential interest to Hong Kong and mainland Chinese exporters. Some of the most significant actions that are expected over the next six to twelve months are summarised below.

U.S. Department of Commerce. The International Trade Administration has scheduled for this summer the publication of four separate final rules amending the antidumping and countervailing duty regulations by (i) establishing time limits for the submission of information pertaining to requests for sampling in administrative reviews of AD duty orders (scheduled to be issued in June), (ii) revising the procedures for conducting AD/CV sunset reviews (June), (iii) withdrawing the regulation governing the treatment of tollers and subcontractors in AD duty determinations (June), and (iv) refining the definition of price adjustment and the circumstances under which the DOC will accept certain price adjustments in AD duty proceedings (July).

The Bureau of Industry and Security has scheduled a number of actions for the next year, including the following.

  • a proposed rule expanding the scope of the maritime nuclear propulsion prohibition in the Export Administration Regulations to apply to both commodities and software as well as technology (July)
  • a final rule removing the special comprehensive licence authorisation (July)
  • a final rule imposing 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 (July)
  • a proposed rule making the following revisions to the section of the EAR that specifies what changes may be made to export and re-export licences: (i) expanding the scope of non-material changes that exporters and re-exporters may self-determine are non-material, provided the changes are within the scope of specified parameters; and (ii) adding a new subset of changes that may be made to an export or re-export licence, provided the exporter or re-exporter submits notification to BIS and BIS approves the change in writing as a non-material change (September)
  • a proposed rule updating and clarifying certain licence exception AVS provisions and clarifying the requirements that apply to shipments to international waters (September)
  • a proposed rule on positively identifying specially designed components on the Commerce Control List so as to decrease the use of that term (November)
  • a 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 (December)
  • a notice requiring paragraph designations to be included in the ECCN field of the Automated Export System (December)
  • a proposed rule revising the CCL to apply crime control licence requirements to certain devices, software and technology based on the roles those items play in crime control and law enforcement activities (December)
  • a proposed rule on revising and improving the recordkeeping requirements of the EAR (March 2016)

Moreover, the National Oceanic and Atmospheric Administration is slated to issue a proposal in July revising procedures to monitor international trade in certain fishery products by integrating trade monitoring programmes within the International Trade Data System and requiring electronic information collection through the automated Internet portal maintained by U.S. Customs and Border Protection. This proposal could be finalised as early as October.

Consumer Product Safety Commission. The CPSC will continue to have a full schedule in the months ahead. Among other things, the agency is expected to soon issue a proposed rule on ways to reduce the cost of third-party testing requirements. The CPSC is also working on proposed standards for the following durable nursery products, which could be unveiled during the second half of this year: infant bouncer seats, high chairs, hook-on chairs, infant bath tubs, children's folding chairs, gates and other enclosures for confining a child, and inclined sleep products. Regulatory actions are also expected in the next few months to address safety hazards associated with extension cords, crib bumpers, fireworks devices, portable generators, automatic residential garage door operators, and recreational off-road vehicles.

Food and Drug Administration. FDA is expected to take the following actions within the next year.

  • a final rule allowing for the inclusion of certain stand-alone symbols in the labelling of medical devices (June)
  • a proposed rule to ban powdered natural rubber latex and powdered synthetic latex surgeon's and patient examination gloves (July)
  • a final rule requiring certain facilities to establish and implement hazard analysis and risk-based preventive controls for animal food, including ingredients and mixed animal feed (August)
  • a final rule requiring food facilities to have and implement preventive controls to significantly minimise or prevent the occurrence of hazards that could affect food manufactured, processed, packed or held by the facility (August)
  • a final rule providing the owner or consignee of a drug that has been refused admission into the United States and is valued at US$2,500 or less with written notice that FDA intends to destroy the drug before such action is taken (September)
  • a final rule establishing science-based minimum standards for the safe production and harvesting of those types of fruits and vegetables that are raw agricultural commodities for which FDA has determined that such standards minimise the risk of serious adverse health consequences or death (October)
  • a final rule on the foreign supplier verification programme describing what a food importer must do to verify that its foreign suppliers produce food that is as safe as food produced in the United States (October)
  • a final rule establishing regulations for the accreditation of third-party auditors auditing foreign facilities to assist in ensuring the safety of imported food (October)
  • a final rule establishing requirements for parties including shippers, motor and rail carriers, and receivers engaged in the transportation of food (including food for animals) to use sanitary transportation practices (March 2016)
  • a proposed rule setting forth the minimum current good manufacturing practice requirements for human drug products compounded by an outsourcing facility (July 2016)

U.S. Customs and Border Protection. CBP also has a full schedule in the months ahead, including the following actions.

  • a final rule allowing CBP to disclose to an intellectual property right holder information appearing on merchandise or its retail packaging that may comprise information otherwise protected by the Trade Secrets Act for the purpose of assisting CBP in determining whether the merchandise bears a counterfeit mark (June)
  • a final rule to enhance CBP's ability to regulate and track in-bond merchandise and ensure that it is properly entered or exported (August)
  • a final rule removing some of the requirements for documentation used to establish proof of exportation for drawback claims (November)
  • an interim final rule reflecting that as of 1 November 2015 entry and entry summary information filed electronically must be filed through the Automated Commercial Environment instead of the Automated Commercial System (November)
  • an interim final rule shifting authority to make certain decisions regarding customs transactions from port directors to directors of the Centers of Excellence and Expertise (December)
  • a proposed rule that would make various changes to increase the accuracy and reliability of the advance information submitted under the importer security filing rule (December)
  • a proposed rule to implement the Air Cargo Advance Screening pilot as a regulatory programme (December)
  • 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 (December)

U.S. Department of Agriculture. Regulatory actions of potential interest that the USDA may take in the coming months are summarised below.

  • a final rule adding new user fee categories and adjusting current fees charged for certain agricultural quarantine and inspection services provided in connection with certain commercial vessels, trucks, rail cars and aircraft (June)
  • a final rule providing for consideration of all new fruits and vegetables for importation into the United States using a notice-based process and removing region- or commodity-specific phytosanitary requirements (June)
  • a final rule exempting from assessments for promotion activities conducted under marketing order or research and promotion programmes (i) certified organic commodities (those comprising at least 95 percent organic components) and (ii) certified organic commodities that are produced, handled, marketed or imported by operations that also deal in conventional products (July)
  • a final rule on the Dairy Import Licensing Program (August)
  • a final rule providing for an electronic export application and certification system for meat, poultry and egg products (December)
  • a proposed rule to amend the bovine spongiform encephalopathy and scrapie regulations to make further clarifications regarding the importation of live sheep, goats and wild ruminants and their embryos, semen, products and by-products (regulation in process)

Other Agencies. The following actions are also expected from the Department of State, the Fish and Wildlife Service, and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

  • an FWS proposed rule revising the general permitting regulations, primarily to propose increases in fees for applying for permits that allow otherwise prohibited activities under the Lacey Act, Convention on International Trade in Endangered Species of Wild Fauna and Flora, and other laws (June)
  • several State Department final rules modifying the International Traffic in Arms Regulations and certain forms to remove any reference to paper-based processing to ensure that licence technical data, manufacturing licence and technical assistance agreements are submitted electronically (June through November)
  • a Bureau of Alcohol, Tobacco, Firearms and Explosives proposed rule replacing the term "specifically designed" with the term "specially designed" to align with terminology in the U.S. Munitions List, the ITAR and the CCL (August)
  • proposed rules from the Alcohol and Tobacco Tax and Trade Bureau amending the regulations on the importation and exportation of distilled spirits, wine, beer and tobacco products to implement the International Trade Data System (August)
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