UPDATED: March 25, 2020 – Several U.S. executive branch agencies along with federal courts are instituting significant operational changes. These changes have either already been implemented or are anticipated at the U.S. government agencies and courts which manage international trade-related concerns in the coming weeks due to personnel and public safety concerns over the COVID-19 health crisis. Husch Blackwell has provided an agency-by-agency summary below based upon the currently available information with respect to each agency’s status. The Office of Personnel Management (“OPM”) announced last week, and until further notice, that federal offices nationwide are open but “maximum telework flexibilities” are in place for all eligible employees “pursuant to direction from agency heads.”
Agencies Handling Trade Remedy Proceedings
U.S. Department of Commerce (Commerce) – Commerce has not yet published a formal notice of its operating status; however, it is known that meetings with visitors from outside of the agency have been canceled in the past week. Additional information relating to Commerce’s status is available here. Commerce has also issued certain contractor-specific guidance here.
U.S. Department of Commerce, Enforcement and Compliance (E&C) – announced that it is temporarily modifying certain requirements for serving documents with business proprietary information in AD/CVD cases through May 19, 2020. E&C will provide a “Get BPI Releases” link in ACCESS that will make BPI documents available for all APO-authorized lead attorneys and their proxies for a period of 14 days. Daily BPI Release digest emails will be sent to notify parties when BPI documents are available on ACCESS for viewing. The announcement encouraged parties to agree to and avail of email service of public documents and public versions in order to facilitate the transition of service of BPI documents through the ACCESS portal.
U.S. International Trade Commission (ITC) – The ITC stated that it will continue to be open but will monitor the situation. The Secretary’s office has communicated with most parties and will accept only electronic filings during this time. Filings must be made through the ITC’s Electronic Document Information System (EDIS) at https://edis.usitc.gov. No in-person, paper-based filings or paper copies of any electronic filings will be accepted until further notice. Limited access will be granted only to visitors who have a statutory matter, and all visitors are restricted to the first floor of the ITC building. In addition, electronic service of documents containing business proprietary information will be served electronically via the ITC’s electronic portal and similarly any document releases by the ITC containing business proprietary information will be released electronically.
Section 337 Hearings – Administrative law judges (ALJs) have been ordered to postpone any hearings scheduled in the next 60 days. All discovery will continue and any essential outside participation by staff will be decided on a case-by-case basis.
Title VII (Antidumping and Countervailing Duty) Matters – All antidumping and countervailing duty preliminary phase staff conferences have been cancelled for the next 60 days. All ITC Title VII votes will be conducted by notation; there will be no in-person vote for the next 60 days. Regarding hearings for final phase Title VII investigations, five-year (sunset) reviews, and those held under Section 332 and Section 131, the ITC has decided not to hold in-person hearings and interested parties will be invited instead to answer written questions issued by the ITC with certified written responses.
Other Agency Meetings, Seminars and Briefings – All scheduled in-person meetings with outside persons have been cancelled or postponed for the next 60 days.
Agencies Handling Other Customs and Trade Matters
U.S. Trade Representative (USTR) – The Office of the U.S. Trade Representative has offered no updates with respect to its current or future operating status.
U.S. Customs and Border Protection (CBP) – CBP refers users to DHS.gov/coronavirus for information related to the COVID-19 pandemic, where it states that “all air, land and sea Ports of Entry (POEs), CBP Officers (CBPOs) and Border Patrol Agents (BPAs) continue to identify and refer individuals with symptoms of COVID-19 or a travel history to China, Iran, or certain European countries in the past 14 days to CDC or local public health officials for enhanced health screening.”
As has been occurring for several weeks, the rerouting of all flights with passengers, who have recently been in China, Iran, and certain European countries, continues through select airports with established resources, procedures and personnel. A February 3, 2020 bulletin explained that “[c]rew, and flights carrying only cargo (i.e., no passengers or non-crew), are excluded” from U.S. Department of Homeland Security’s arrival restrictions imposed on February 2, 2020. It has also been reported that “CBP continues to process cargo at its normal rate as there has been no identified threat as it relates to cargo shipments” and that “vessels or embarked crewmembers or passengers that have recently been in China will have their arrivals fully vetted to safeguard the American public, yet facilitate trade. This safety protocol is not anticipated to slow down the movement of cargo.” CBP has cancelled or postponed several upcoming trade conferences, including the 2020 Trade Symposium.
Effective March 21, 2020, the United States and Canada imposed restrictions on “non-essential travel” between the two countries applying mainly for tourism and recreational purposes. Similar restrictions on non-essential travel between the United States and Mexico also went into effect on March 21.
Duty Deferral Requests – CBP is approving, on a case-by-case basis, requests for extended deadlines to pay duties, taxes and fees due to COVID-19. See our previous post here. CBP is also considering a more formal duty deferral policy in response to COVID-19, but none has been announced to date.
Binding Ruling Requests – The CBP National Commodity Specialist Division is still accepting binding ruling requests, but “paper binding ruling requests and requests that include or necessitate a sample may be delayed in processing and/or issuance,” according to CBP’s CSMS message. Filers are encouraged to use the eRulings website for ruling requests and to include detailed “photographs or short videos of the product to be submitted in lieu of samples,” it said. “However, we recognize that certain commodities require a sample in order for a determination to be made. In such cases, delays may occur. The National Import Specialist assigned to work on your ruling will reach out to you to discuss your options and whether a determination can be made without a sample.”
Agencies Handling Export Controls and Sanctions Issues
U.S. Department of Commerce – The Bureau of Industry and Security (BIS) has not issued a formal notice of its operating status, but does have guidance for Commerce employees posted on its website as noted above. BIS has announced the cancellation of its Annual Export Control Forum originally scheduled to take place April 1-2, 2020 in Los Angeles. As of now, BIS’s Annual Update Conference 2020 is still scheduled to take place in Washington, DC on June 29 – July 1.
U.S. Department of the Treasury –Treasury has yet to publish a formal notice of its operating status; however, the “public engagement” schedule for the next several weeks is currently empty, suggesting that all outside meetings have been cancelled. The Office of Foreign Assets Control (OFAC) has not indicated yet whether its operations have been affected.
U.S. Department of State – The Directorate of Defense Trade Controls (DDTC) has announced that its core functions across its Licensing, Compliance, Policy, and Management continue to operate. “However, staffing and other adjustments across the Department and interagency are being made” as the agency follows OPM guidance.
- Licensing activities: All electronic application systems are currently operating as normal, and new licenses continue to be accepted for processing. However, a longer than normal processing time should be expected.
- Registration, CJ Requests and General Correspondence: These filings via the DECCS system continue and are being processed as they are submitted; responses may be delayed by the current operational environment.
DDTC has established a new option for industry to submit disclosures and related information (e.g., exhibits, extension requests, responses to DTCC inquires) by allowing submissions via email to DTCC-CaseStatus@state.gov. In the event that a disclosure cannot be submitted via email, DDTC indicates that the continued use of regular U.S. mail is acceptable.
U.S. Census Bureau – The majority of U.S. Census Bureau employees are operating remotely via telework. During this time, call centers and email inboxes will remain open to assist customers’ daily trade needs. However, the agency will have limited access to physical mail. For those companies that are submitting a Voluntary Self-Disclosure (VSD) or data request, please make the submission electronically to the Trade Regulations Branch (TRB) in a password-protected file to email@example.com (for VSDs) or Data User & Trade Outreach Branch (DUTOB) to firstname.lastname@example.org (for data requests). Additionally, such submissions may be sent to Census’ secure fax at 301-763-8835.
- People who have traveled to China, Iran, Ireland, South Korea, the United Kingdom, or any of the 26 countries located in the Schengen Area of Europe within the last 14 days; reside or have had close contact with someone who has traveled to one of these areas within the last 14 days; have been asked to self-quarantine by any hospital or health agency; or have been diagnosed with, or have had contact with, anyone who has been diagnosed with COVID-19, must inform the court security officers upon entering the courthouse and will be denied permission to enter. Attorneys who are so affected who are scheduled to appear before the CIT in the near future must notify the court so that appropriate safeguard measures can be taken. Attorneys may appear via teleconference or videoconference with the approval of the presiding judge. These restrictions will remain in place until further notice.
U.S. Court of Appeals for the Federal Circuit (CAFC) – Per a public advisory notice and an administrative order, the CAFC began restricting public access to the National Courts Building complex on March 16, 2020. On March 19, the Court issued an updated public advisory stating that all cases scheduled for argument during the April 2020 sitting will now be conducted by telephone conference and no in-person hearings will be held. Individuals, including pro se litigants and couriers wishing to deliver or to file case documents, must submit these items either by mail or by deposit in the court’s night box. Mail and third-party commercial deliveries will be limited to the lobby. Any other deliveries must be coordinated ahead of time with relevant court staff.
U.S. Supreme Court – The Court announced in an order that out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court Building will be closed to the public effective at 4:30pm on March 12, 2020, until further notice. The building will remain open for official business, and case filing deadlines have not been extended generally under Rule 30.1, but did address the extension of many filing deadlines in its order. Oral arguments scheduled for the March session have been postponed.