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U.S. Government Agencies Outline Expected Regulatory Actions for the Next Six 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 by the U.S. Department of Commerce and U.S. Customs and Border Protection that are expected over the next six months are summarised below.

U.S. Department of Commerce. The International Trade Administration had scheduled for June an advance notice of proposed rulemaking allowing for electronic service in antidumping and countervailing duty proceedings via the ACCESS system, as well as a final rule eliminating the regulation describing how the DOC will issue licences for the allocation of tariff-rate quotas on worsted wool fabric (as the underlying programme has been transferred to the U.S. Department of Agriculture). Also scheduled for June was a final rule to establish a voluntary trusted trader programme for seafood importers that aims to provide benefits such as reduced targeting and inspections and enhanced streamlined entry.

Additional regulatory actions scheduled by the ITA for the coming months include the following:

  • a proposed rule setting forth procedures to address covered merchandise referrals from U.S. Customs and Border Protection (September 2019; previously December 2018);
  • a proposed rule to clarify that for all entries subject to AD duties the importer must file its reimbursement certification in either proper electronic form or paper form in accordance with CBP requirements (December 2019; previously December 2018);
  • 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 2019, previously December 2018; proposed rule published in August 2016);
  • 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) allow the DOC’s use of voluntarily submitted information to calculate constructed value (December 2019; previously December 2018); and
  • 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 CV duty applied in a separate segment of the same proceeding (December 2019; previously December 2018).

Moreover, the ITA is continuing to work on a final rule that would establish time limits for the submission of requests for sampling in administrative reviews of AD duty orders (a proposed rule was issued in November 2013).

The Bureau of Industry and Security has also scheduled a number of actions for the six months, including the following:

  • an advance notice of proposed rulemaking on potential export controls on quantum computers (June 2019; first time published);
  • a proposed rule to modify certain export licence exceptions (June 2019; first time published);
  • a proposed rule on the effects of adding to the Commerce Control List an export control on computer forensic systems, equipment, components and related development, production and use software (June 2019; first time published);
  • a proposed rule to require review of certain technology transfers that would not otherwise require licences according to the Commerce Control List (June 2019; previously March);
  • an advance notice of proposed rulemaking on criteria for reviewing certain foundational technologies pursuant to applicable sections of the Export Control Reform Act of 2018 (July 2019; first time published);
  • a proposed rule to remove the availability of licence exceptions STA (strategic trade authorisation) and TSR (technology and software restricted) for certain items (July 2019; first time published);
  • a final rule establishing a general policy of denial for licence applications for exports, re-exports or transfers (in-country) of items controlled for national security reasons to Russia, with certain exceptions (July 2019; first time published);
  • a final rule providing that export or re-export licence applications for items controlled for national security reasons may be reviewed for human rights concerns (July 2019; first time published);
  • a final rule aligning the enforcement provisions of the Export Administration Regulations with the Export Control Reform Act of 2018, including revising penalty guidelines and enforcement authority (July 2019; first time published);
  • a final rule clarifying the availability of licence exception STA for exports, re-exports and transfers (in-country) of certain items under the EAR (July 2019; previously November 2018);
  • a proposed rule on the definition of a routed export transaction and the responsibilities of parties in such transactions (July 2019, previously February; advance notice of proposed rulemaking issued in October 2017);
  • a proposed rule to expand licence requirements on exports, re-exports and transfers (in-country) of items intended for military end-use or military end-users in mainland China, Russia or Venezuela (July 2019; previously February);
  • a proposed rule on export controls for cybersecurity items (October 2019; previously November 2018); and
  • 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 (December 2019; previously February).

In addition, BIS is working on the following actions: (i) a proposed rule to adopt an export licencing amendment process and make other licencing process efficiencies; (ii) a final rule that (a) 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 (b) 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 (proposed rule issued February 2014); and (iii) a proposed rule updating and clarifying certain licence exception AVS provisions.

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

  • a proposed rule pertaining to prior disclosure and the procedure for demanding payment of duties, taxes, fees or revenue for violations of 19 USC sections 1592 or 1593(a) when a penalty claim is not issued (no date specified; first time published);
  • a proposed rule amending the regulations pertaining to the importation of goods that violate or are suspected of violating the copyright laws in accordance with the Trade Facilitation and Trade Enforcement Act and certain provisions of the Digital Millennium Copyright Act (June 2019; previously February);
  • a 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 2019, unchanged; interim final rule issued October 2015);
  • a proposed rule to modernise the customs broker regulations (July 2019; previously December 2018);
  • a proposed rule that would exempt portions of the CTPAT system of records from one or more provisions of the Privacy Act because of criminal, civil and administrative enforcement requirements (July 2019; previously February 2019);
  • a proposed rule to update, modernise and streamline the process for enforcing the prohibition against the importation of goods mined, produced or manufactured in any foreign country by convict or forced labour or indentured labour under penal sanctions (August 2019; previously December 2018);
  • a final rule eliminating a restriction pertaining to CBP’s authority to refund excessive duties, taxes, fees or interest imposed on distilled spirits, wine and beer to facilitate implementation of the Craft Beverage Modernization Act (August 2019; previously December 2018);
  • a proposed rule to create a procedure for the disclosure of information otherwise protected by the Trade Secrets Act to a trademark owner when goods bearing suspected counterfeit trademarks have been voluntarily abandoned (August 2019; previously January);
  • an interim final rule implementing a TFTEA provision extending duty-free treatment to products exported and returned to the United States within three years after having been exported (August 2019; first time published);
  • a 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 (September 2019; previously December 2018);
  • a 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 (September 2019; previously March);
  • a final rule shifting authority to make certain decisions regarding customs transactions from port directors to directors of the Centers of Excellence and Expertise (October 2019; previously May);
  • a proposed rule to debar from entering U.S. ports any vessel owned or chartered by an entity found to be in violation of certain laws and regulations relating to the performance of longshore work by non-immigrant crew members (October 2019; first time published);
  • a 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 (December 2019, previously March; interim final rule published in August 2016);
  • a 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 ACE (December 2019, previously March; interim final rule published in September 2016); and
  • a final rule on procedures for investigating the evasion of AD and CV duty orders (December 2019, previously June; interim final rule published in August 2016).
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