The table below provides a summary of recent import and export developments announced by the U.S. federal government agencies shown below (as of April 21, 2020) in response to the global pandemic. New information is shown below in red, and additional updates will be provided as new announcements are made. If you have any questions relating to the current operational status of U.S. trade agencies as a result of COVID-19, or other international trade-related issues, please contact Melissa Proctor (melissa@millerproctorlaw.com) or Peggy Chaplin Louie (peggy@millerproctorlaw.com) at Miller Proctor Law PLLC (https://millerproctorlaw.com ).

Recent Import Developments

Customs and Border Protection (CBP) Customs and Border Protection (CBP) On April 20, 2020, CBP issued CSMS #42429822 which provides Interim Implementation Instructions for the USMCA. The instructions were described by CBP as “informational” and that they are intended only to “provide early guidance” on the USMCA requirements, including the making of claims for preferential treatment. Note that the instructions do not have the force of law and are subject to further revision. CBP stated that the Final Implementing Instructions will be released prior to the date the USMCA enters into force—until that time, the NAFTA requirements will continue to be applied.
US Treasury Department and CBP

 

Temporary Final Rule Postponing Duties, Fees and Taxes On April 19th, the US Treasury Department and CBP published a Temporary Final Rule postponing the payment of duties, fees, and taxes for 90 days for importers experiencing significant financial hardship. The rule applies to entries made in March or April 2020, but not to goods subject to trade remedies, bills due on liquidation or reliquidation, penalties, liquidated damages, or fees per 9 USC 58c. Entries containing both goods that are subject to trade remedies and goods that are not, will not qualify for the postponement. See our previous Blog Post dated April 20, 2020 for further details.
International Trade Commission ITC to Issue Report Identifying Imported Products Needed for COVID-19 Response and Related Tariff and Trade Information

 

At the request of the Senate Finance Committee and the House Ways and Means Committee, the ITC has commenced an investigation to identify imported products necessary for responding to the COVID-19 pandemic, as well as their associated tariff classifications, countries of origin and applicable duty rates—these committees requested that ITC provide a report detailing this information in order to assist the USTR and Congress in considering and taking responsive actions, which could include modifying tariffs on such goods. The ITC is expected to issue its report at the end of April.
ITC ITC Response to COVID-19 Since March 17th, all ITC employees have been working remotely, and may be contacted via telephone and email as usual.

·       Section 337 hearings postponed until 5/12.
·       No in-person preliminary phase AD/CVD duty staff conferences will be held for new and ongoing investigations. Parties may provide opening remarks, witness testimony, and responses through written submission and post conference briefs.
·       ITC will conduct all votes by notation.
·       No in-person hearings will be held for final phase investigations, sunset reviews, and Sections 332 and 131. Parties will be invited to provide opening remarks, written testimony, and responses to questions issued by the ITC with certified written responses.
·       Parties may also be invited to participate in virtual or telephonic closing and/or rebuttal statements.
·       All in-person group meetings, seminars, and conferences are canceled or postponed.

ITC is only accepting electronic filings through the EDIS System. The USITC Building is closed to the public through April 24, 2020.

Customs & Border Protection (CBP) International Donations Accepted by FEMA (IAS CONOPS) In CSMS #42320854 (April 9, 2020), CBP provided guidance on imports of international donations accepted by FEMA via the International Assistance System (IAS) Concept of Operations (CONOPS). The IAS process only applies to government-to-government assistance (i.e., nation-state to nation-state assistance), and the shipments must be accepted by the US government through the State Department. Upon the arrival of goods at US ports, a cargo manifest must be provided by the arriving carrier—CBP will screen the shipment for high-risk factors. Formal entry will not be required, and the goods may be released off the manifest. Any merchandise that does not meet the above criteria can still be entered under established entry procedures.
CBP Charitable Organization Imports In CSMS #42320854 (April 9, 2020), CBP provided guidance on products imported by US charities or other private entities to assist with relief efforts in response to the pandemic. Qualifying shipments do not require formal entry and may be released off the manifest. CBP may verify an organization’s tax-exempt status on the IRS list website. Any merchandise that does not meet the above criteria can still be entered under established entry procedures.
USDA’s Animal and Plant Health Inspection Service (APHIS)

 

Veterinary Health Certificates For shipments arriving between 4/8-5/16, CBP may accept all import documents uploaded to Document Image System for regulated animal products/byproducts. Original hard copy veterinary health certificates for high-risk products will still be required. Shipments arriving without veterinary health certificates will be refused entry or held until the required documents are provided.
APHIS Fruit from New Zealand

 

APHIS has temporarily suspended the preclearance program for apples and pears from New Zealand. Although APHIS is unable to send preclearance inspectors to New Zealand due to COVID-19 travel restrictions and safety concerns, imports of apples and pears from New Zealand will be allowed to continue subject to existing U.S. requirements (i.e., preclearance will not be required if shipments undergo required inspection on arrival and meet all general requirements of 7 CFR 319.56-3, including pest mitigation restrictions and treatments ordered by the port of entry inspector).
CBP Importers Should Provide Advanced Notification of Pandemic Relief Materials to CBP: CBP’s New York Field Office released a memo on March 24th (Informational Pipeline 20-001-NYFO) stating that, in order to expedite legitimate shipments of relief materials, CBP requests that importers provide advance notification to CBP when they are expecting shipments of pandemic relief materials such as pharmaceutical products, PPE, building supplies, and other related items that have already arrived and are pending release or on hold, as well as those that will be arriving by air or ocean. Importers should contact the Assistant Port Director, Trade’s staff at (718) 487-5172 for shipments arriving at JFK Airport. For shipments arriving at the Port of New York/Newark, the Problem Resolution Unit can be reached at NY-NWKPROBRES@CBP.DHS.GOV or (973)368-6167.
CBP Requests for Binding CBP Rulings: CBP announced that the National Commodity Specialist Division continues to accept binding ruling requests; however, requests submitted in hardcopy and the submission of physical samples will likely result in processing delays. Therefore, importers preparing to submit requests are urged to utilize the online e-Ruling Template and submit color photographs in lieu of paper submissions and physical samples.
CBP 10-Day Extension for Termination/Replacement of Customs Bonds: In CSMS #60152, CBP announced that it will grant a 10-day extension for the termination and replacement of insufficient customs bonds for which notices were issued with a deadline of March 21, 2020. Accordingly these bonds should be scheduled for termination by March 31st with a termination date of no later than April 15, 2020. CBP noted that it is operating under normal procedures and can complete processing and reviews in a timely manner—therefore, the April bond sufficiency reviews and notices will not be postponed.
USTR Request for Public Comments on Removal of Section 301 Tariffs from Medical-Care Products: On March 25th, USTR published in the Federal Register a request for comments on a possible action to remove Section 301 tariffs from certain medical-care products imported from China into the United States in response to the COVID-19 pandemic. See 85 Federal Register 16987 (March 25, 2020). Comments must be submitted on or before June 25, 2020. USTR will review the comments on a rolling basis. Importers wishing to submit comments must submit the following information to USTR via the online portal at https://regulations.gov using Docket Number USTR-2020-0014: (a) detailed description of the product (including ten-digit HTSUS classification, dimensions, material composition, etc.); (b) how the product relates to the response to the COVID-19 outbreak; (c) whether the product can be used used to treat COVID-19 or to limit the outbreak, and/or whether the product is used in the production of needed medical-care products; and, (d) information about the producer, importer, ultimate consumer, trademarks or tradenames, etc.
USTR New Section 301 Product Exclusions for Certain Medical Supplies: On USTR rolled out new product exclusions from the Section 301 tariffs for certain medical supplies on March 10th, March 16th, and March 17th. See 87 Federal Register 13970; 85 Federal Register 15015; and, 85 Federal Register 15254. Importers of medical-related products are urged to review the Federal Register notices that identify the product exclusions that have been approved by USTR to assess whether they apply to their products. Importers that confirm that their products qualify for particular product exclusions can utilize them for future imports and seek duty refunds from CBP on previous entries even if they did not submit the exclusion requests to USTR. To qualify for a product exclusion, the merchandise must satisfy both the narrative description of the product as well as the specified HTSUS tariff classification.
FDA Instructions for Submission of Entry Information for Personal Protective Equipment and Other Devices:

 

The FDA issued instructions to importers regarding the submission of entry information for personal protective equipment and other devices to facilitate the import process to address the COVID-19 pandemic.

·       General purpose or industrial use personal protective equipment is not regulated by the FDA; therefore, entry information for those products should not be transmitted to FDA.
·       When importing products authorized under an Emergency Use Authorization (EUA), entry information should be submitted to FDA. A full list of EUAs for the COVID-19 pandemic is available on FDA’s.
·       For items regulated by FDA as a device not authorized by an EUA, entry information should be submitted to FDA.
·       A full list of guidance documents issued for specific product related to COVID-19  with applicable product codes and policy, can be found on FDA’s website.

APHIS Acceptance of Electronic Documents to Facilitate Import and Export Clearance The USDA’s Animal and Plant Health Inspection Service (APHIS) announced that it will accept electronically produced phytosanitary certificates to facilitate the clearance of imported plants and plant products during the COVID-19 pandemic. Electronic documents may be uploaded to the Automated Commercial Environment (ACE) using the Document Imaging System or provide them in email attachments. APHIS will also allow precleared consignments to be accompanied by an email from APHIS Plant Protection and Quarantine (PPQ) with an electronic copy of PPQ Form 203 attached if the original form is not available.
 

Recent Export/Sanctions Developments

OFAC

 

Communicating OFAC Compliance Concerns Related to COVID-19 On April 20, 2020, OFAC issued guidance on communicating with OFAC if the COVID-19 global pandemic may delay a financial institution’s or other business’ ability to meet OFAC regulatory requirements, such as blocking and rejecting reports within 10 business days, responding to administrative subpoenas, submitting reports required by general or specific licenses, or other required reports or submissions. The appropriate OFAC contact information is shown below:

·       Blocking/Reject Reports: 202-622-2490/800-540-6322 or ofac_feedback@treasury.gov;
·       Administrative Subpoenas: Contact the assigned case officer;
·       License Reports: 202-622-2480, ofac_feedback@treasury.gov or the online licensing portal;
·       Requests for Reconsideration of a Listing as an SDN (Petition): ofac.reconsideration@treasury.gov;
·       Voluntary Self-Disclosures: OFACdisclosures@treasury.gov;
·       Refer to OFAC’s Data Delivery Standards for detailed electronic submission guidance.

OFAC Fact Sheet: Provision of Humanitarian Assistance and Trade to Combat COVID-19

 

On April 16, 2020, OFAC issued a Fact Sheet on the exemptions, exceptions and authorization for humanitarian assistance and trade under the OFAC-administered sanctions programs (Iran, Venezuela, North Korea, Syria, Cuba, and Ukraine/Russia).
EXIM Bank Resolution to Restrict Export Support for Needed US Medical Supplies and Equipment The Export-Import Bank of the United States (EXIM) voted last week to temporarily exclude from EXIM coverage or financing any exports of critically needed personal protective equipment (PPE) and other medical supplies and equipment. The restrictions will remain in place until September 30, 2020.
EXIM Bank Fact Sheet: COVID-19 Relief Measures In response to COVID-19, the EXIM Bank implemented temporary relief measures for US exporters of goods and services and their foreign customers which will extend until May 31, 2020:

·       Bridge Financing Program;
·       Pre-delivery/Pre-export Financing Program;
·       Supply Chain Financing Guarantee Program;
·       Working Capital Guarantee Program;

DDTC Longer Processing Times for Commodity Jurisdiction Requests and ITAR License/Agreement Applications: The State Department’s Directorate of Defense Trade Controls (DDTC) announced that export license applications requested under the International Traffic in Arms Regulations (ITAR), as well as commodity jurisdiction requests and general correspondences, are still being accepted by the agency but will experience longer processing times.
DDTC ITAR Registration Applications and Renewals

 

New and renewal ITAR registration requests are still being accepted by the DDTC via the DECCS, and are being processed as they are submitted.
DDTC New Process for Submitting ITAR Voluntary Disclosures to DTCC Companies preparing voluntary disclosures of ITAR violations are encouraged to submit them in PF format via email to DTCC-CaseStatus@state.gov in lieu of hardcopy submissions. Disclosures should be made on company letterhead, and duplicate hardcopy submissions are not required to be submitted.
Census Bureau New Process for Submitting Voluntary Self-Disclosures and Data Requests to the Census Bureau Companies preparing voluntary self-disclosure of Foreign Trade Regulations violations (i.e., Automated Export System violations) are asked to submit them electronically to the Trade Regulations Branch to emd.askregs@census.gov in password-protected filed. Requests for data should also be submitted electronically to the Data User & Trade Outreach Branch to tmd.outreach@census.gov. These submissions may also be submitted via fax (301-763-8835).
BIS

 

Export Control Forum Canceled The BIS has not yet published information on the effects of COVID-19 on its operations; however, the BIS canceled the export control forum slated for April 2020.