The Department of Commerce, Bureau of Industry and Security (BIS) has issued a final rule which added five recently developed or developing technologies to the Export Administration Regulations' Commerce Control List that are essential to US national security. In particular, BIS amended four export control classification numbers and added a new one. These changes came into force on 23 May 2019 and have an immediate impact on parties exporting the newly controlled goods.
The Committee on Foreign Investment in the United States (CFIUS) is drafting the implementing regulations for the Foreign Investment Risk Review Modernisation Act. Foreign investors are closely following how CFIUS will exercise its new 'country specification' authority – specifically, whether it will create a negative or positive list of specific countries whose transactions are, respectively, either required to undergo or exempt from CFIUS review.
The US Court of Appeals for the Federal Circuit recently ruled that where the scope of an anti-dumping/countervailing duty order is ambiguous, US Customs and Border Protection has no independent authority to suspend liquidation without explicit instructions from the US Department of Commerce.
The US Trade Representative recently published a Federal Register notice requesting comments on the proposed exclusion process for List 3 of the Section 301 tariffs on Chinese imports. As part of various changes to the exclusion process, the proposal does not appear to include a mechanism for applicants to designate specific information requested as being business confidential on the current form.
Mirroring President Trump's recent threats – which came just days after the Section 301 tariff on List 3 products was increased from 10% to 25% following a breakdown in trade negotiations between the United States and China – the administration has released a fourth list of Chinese-origin products that will be subject to additional duties. For these tariffs to become effective, the Office of the United States Trade Representative will need to publish a final notice after a public comment period and hearing.
Between the addition of Huawei Technologies Co Ltd – the world's largest telecoms equipment maker – to the Entity List and a new executive order declaring a national emergency relating to information and communications technology and services, May 2019 has proved to be a period of non-stop excitement for the export control world. This article discusses what these changes mean for US companies.
Earlier in May 2019, President Donald Trump announced that the Section 301 tariffs on List 3 products would be increased from 10% to 25%, effective from 10 May 2019. He also stated that a fourth list of $325 billion in Chinese imports would be taxed at 25%. Meanwhile, US Trade Representative Robert Lighthizer has stated that his office has "begun preparations to launch a process" for interested parties to seek an exclusion from the List 3 tariffs.
President Donald Trump recently issued an executive order authorising broad new sanctions with respect to the steel, aluminium, iron and copper sectors of Iran. The announcement came hours after Iran announced that it would no longer fully comply with elements of the Joint Comprehensive Plan of Action. The executive order is a major expansion of existing statutory secondary sanctions which relate to steel and aluminium and also addresses two new sectors – copper and iron.
Fashion accessory and luxury goods importers of fine and costume jewellery containing gemstones or precious metals should be aware of a proposal being considered by Department of State (DOS) officials. According to the DOS, providing US consumers with information regarding the origin of raw materials used in jewellery is important in the fight against abusive regimes. In light of these developments, importers should begin to review their supply chains to understand how their goods could be affected.
After years of waiting, the new 22 CFR 126.4 International Traffic in Arms Regulations licence exemption for transfers of defence articles and services by or for the US government has come into effect. While the introduction of the revised exemption is largely positive for exporters, there are a few new boxes to check.
Companies have been on high alert since hearing about a potential shutdown of the US-Mexico border. Although President Trump does not appear to be actively taking steps to close the border, the administration has taken actions to address the migrant situation on the southern border that is disrupting global supply chains. To avoid delays, importers should, among other things, have accurate documentation and check with local port directors for any developments.
The Office of the United States Trade Representative recently announced that it is initiating an investigation under Section 301 of the Trade Act 1974 to enforce the United States' rights in the World Trade Organisation dispute involving subsidies provided to the large civil aircraft industry by the European Union. The investigation may result in tariffs of up to 100% on certain imports from the 28 EU member states as soon as 1 June 2019.
Following a meeting with Chinese Vice Premier Liu He, President Trump announced plans for an "epic" trade deal with China. However, to date, Trump has declined to set a date for a signing summit with President Xi Jinping to hammer out a final trade agreement, for which the Section 301 tariffs have emerged as a sticking point. China has demanded that the tariffs be removed as part of any final deal, while the White House hopes to use the tariffs as leverage to ensure compliance.
While various news accounts have now indicated that President Trump will not close the US-Mexico border, the administration will take further actions. As such, there will likely be a slowdown in border processing and longer wait times at all land ports of entry on the Mexican border for an extended period. Among other things, importers are advised to factor in that wait times will markedly increase or even double.
As part of its response to the changes regarding forced labour enforcement brought about by the Trade Facilitation and Trade Enforcement Act 2015, US Customs and Border Protection is proposing to compel members of the Customs Trade Partnership Against Terrorism to maintain a social compliance programme to help to combat forced labour in supply chains.
The Trump administration recently announced the termination of India and Turkey as recipients of the Generalised System of Preferences on the grounds that neither country has been adhering to the programme's statutory eligibility criteria. According to the press release, Turkey is 'graduating' from this programme, while India is being removed, as it has failed to assure the United States that it will provide "equitable and reasonable access to its markets in numerous sectors".
The Department of Commerce recently announced that it had formally submitted to President Donald Trump the results of its investigation into the effect of imports of automobiles and automobile parts on the national security of the United States. With this announcement, the global automotive industry was put on high alert of a potential new US import tariff aimed directly at the products that they sell.
In a strike against Nicolás Maduro and his supporters, the Trump administration recently announced a new executive order. Pursuant to Executive Order 13850, US persons are now broadly prohibited from engaging in transactions with Petróleos de Venezuela, SA (PDVSA), including its majority-owned subsidiaries. However, the Office of Foreign Assets Control has rolled out a slew of general licences authorising US persons to engage in certain transactions involving PDVSA and its majority-owned subsidiaries.
US Trade Representative Robert Lighthizer recently announced the Trump administration's intention to leave companies subject to the 10% tariff rate under Section 301 List 3 of the Trade Act 1974 without an exclusion process. In addition, due to the ongoing federal government shutdown, further delays are anticipated with the review of exclusion requests relating to Section 301 List 1 and Section 301 List 2.
In 2017 the United States agreed that it was time to modernise the 24-year-old North American Free Trade Agreement pact, launching months of negotiations that recently ended. When it comes into force, the United States-Mexico-Canada Agreement (USMCA) will strengthen national treatment protections for the covered financial services industry in the United States. This is set to take place throughout 2019, with the USMCA possibly coming into force in early 2020.