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Export Controls, Enforcement Among New Items on DOC Regulatory Schedule

Thursday, June 27, 2019
Sandler, Travis & Rosenberg Trade Report

Tighter controls on exports of specific products and to particular countries, as well as updated export enforcement provisions, are among the new items on the Department of Commerce’s most recent semiannual regulatory agenda. This document lists the following regulations affecting international trade that could be issued within the next year as well as rulemaking proceedings that have been in process for some time and are not as likely to see further progress in the near term. The expected timeframes for issuance of the rules are indicated in parentheses.

Upcoming Regulations

- an advance notice of proposed rulemaking on allowing for electronic service in antidumping and countervailing duty proceedings via the ACCESS system (June 2019; first time published)

- an ANPR on potential export controls on quantum computers (June 2019; first time published)

- a proposed rule to modify certain export license 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 final rule eliminating the regulation describing how the DOC will issue licenses for the allocation of tariff-rate quotas on worsted wool fabric, as the underlying program has been transferred to the Department of Agriculture (June 2019; previously November 2018)

- 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 (June 2019; previously November 2018)

- a final rule to establish a voluntary trusted trader program for seafood importers that aims to provide benefits such as reduced targeting and inspections and enhanced streamlined entry (June 2019, previously November 2018; proposed rule published January 2018)

- a proposed rule to require review of certain technology transfers that would not otherwise require licenses according to the Commerce Control List (June 2019; previously March)

- an ANPR 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 license exceptions STA (strategic trade authorization) and TSR (technology and software restricted) for certain items (July 2019; first time published)

- a final rule establishing a general policy of denial for license applications for exports, reexports, 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 reexport license 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 license exception STA for exports, reexports, 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 license requirements on exports, reexports, and transfers (in-country) of items intended for military end-use or military end-users in China, Russia, or Venezuela (July 2019; previously February)

- 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 on export controls for cybersecurity items (October 2019; previously November 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 (a) information provided by domestic interested parties regarding sales made below the cost of production in order to allege dumping and (b) allow the DOC’s use of voluntarily submitted information to calculate constructed value (December 2019; previously December 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 CV duty applied in a separate segment of the same proceeding (December 2019; previously December 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 (December 2019; previously February)

Regulations in Process

- a final rule establishing time limits for the submission of requests for sampling in administrative reviews of AD duty orders (proposed rule issued November 2013)

- a proposed rule to adopt an export licensing amendment process and make other licensing process efficiencies

- 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 license requirement determination and licensing, and (b) details when and how a U.S. PPI may delegate to the foreign PPI its responsibilities to determine license requirements and apply for a license (proposed rule issued February 2014)

- a proposed rule updating and clarifying certain license exception AVS provisions

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