ITA seeks comments on the following possible types of cooperative regulatory activities between the United States and the European Union: Information-sharing agreements; technical assistance; memoranda of understanding, mutual recognition agreements; collaboration between regulators before initiating rulemaking proceedings; agreements to align particular regulatory measures; equivalency arrangements; and accreditation of testing laboratories or other conformity assessment bodies.
These comments will serve as a basis for discussion with the European Union on regulatory cooperation activities to undertake which will support the President's National Export Initiative and serve as a basis for discussion within the U.S.— EU High-Level Regulatory Cooperation Forum.
Comments are due August 8, 2011.
Mr. Hill emphasized the need to reform the U.S. export controls to keep pace with geopolitical changes and innovations in industries: Our current system operates under two different control lists with distinctly different approaches to identifying and controlling products. The Department of State administers the Munitions List, which generally includes items specifically designed for military applications, a concept as opaque as it is outdated. And the Commerce Department administers the Commerce Control List, or CCL, which is a far more specific list of mostly “dual use items” – that is commercial items that could have military applications – items like truck parts, electronic components and even computers. There are three primary U.S. licensing agencies – each with different procedures and different information technology systems – and scores of different regulatory definitions. It would be hard for anyone to argue that this existing system is maximizing our security or is a model of efficiency. The Munitions List was created during the Cold War. Most of the items used by the military were developed by, or solely for the military. But times have changed. The commercial sector alone now develops nearly two-thirds of the technologies our military uses. For exporters and companies with production lines spread across the globe, time they could be spending creating innovative, game-changing products to sell in different countries is instead spent navigating a confusing and time-consuming export control bureaucracy. An equally disturbing phenomenon is that U.S. companies are sometimes being “engineered out” of collaborative foreign projects due to U.S. export control requirements. We have heard of examples of sales contracts including provisions that explicitly bar the use of U.S.-manufactured articles because companies don’t want to have to deal with our export control system.America puts our exporters in an untenable position when we forbid or delay them from selling a widely available item to an overseas market even when comparable foreign items face no similar restrictions from their home country.”
Mr. Hill also spoke of improving the export controls regime by reforming the United States Munitions List (USML), changing the export controls structure, and establishing a licensing policy that ensures an appropriate agency review.
As for the USML, the “goal is to create one list that will include every item or technology that requires control; have one agency that will administer these controls; have one enforcement coordination agency that handles every investigation of criminal violations; and run everything using one IT platform.” The Department of Defense and the Department of State are working on harmonizing the way the USML and the Commerce Control List (CCL) control items, software and technology. USML is being converted into a positive list of controls. Mr. Hill also stated that a three-tiered licensing system is being created that will apply in the same manner to items on both the USML and the CCL.
When the two control lists are updated, the plan is to implement common criteria for classifying items on both lists. This will be achieved by dividing each of the two lists into a three-tiered structure, which will distinguish between the most sensitive items available only in the U.S., items in the middle tier that provide a substantial military or intelligence advantage, and items in the lowest tier reserved for items that provide a significant military or intelligence advantage and which are more broadly availably.
These tiers are expected to improve the U.S. national security and competitiveness by permitting the government to adjust controls in a timely manner over a product’s life cycle.
A corresponding licensing policy will be implemented to ensure appropriate agency review. Top tier items will generally require a license for all destinations, many of the items in the middle tier will be eligible to be exported to allies and most multilateral partners under a license exception or general authorization, and licenses for the lowest tier items not considered proliferation concerns will typically not be required.
In the final phase of export controls reform, U.S. government plans to merge the USML and the CCL into one list.
The upcoming changes will be documented in the Federal Register.
ICS is similar to the 10+2 requirement in the U.S. The goal of ICS is to enable customs authorities to assess any risks shipments may pose by evaluating shipment information in advance.
As of mid-October, Denmark, Greece, and Luxembourg did not yet have ICS in place. While the EU Commission is working closely to correct the situation, exporters with shipments into Denmark, Greece or Luxembourg may wish to verify with their carriers that procedures are in place to ensure smooth imports into those countries.
EU Customs Information Portal provides answers to Frequently Asked Questions (FAQs) as well as time limits for filing of ENS, which vary depending on the mode of shipping:
Containerised maritime cargo (except short sea containerised shipping)
|At least 24 hours before commencement of loading in each foreign load port|
|Bulk/ break bulk maritime cargo (except short sea bulk/ break bulk shipping)||At least 4 hours before arrival at the first port in the Community|
Short sea shipping
||At least 2 hours before arrival at the first port in the Community|
|Short haul flights (less than 4 hours duration)||At least by the time of the actual take off of the aircraft|
|Long haul flights (more than 4 hours duration)||At least 4 hours before arrival at the first airport in the Community|
|Rail and inland waterways||At least 2 hours before arrival at the customs office of entry in the Community|
|Road traffic||At least 1 hour before arrival at the customs office of entry in the Community|
The U.S.-EU brochure titled “Protecting Intellectual Property Rights at Our Borders” is a brochure of basic information for trademark and copyright owners on working with customs officials in the U.S. and the EU. It provides information on how trademark/copyright owners can protect themselves from the global problem of counterfeiting and piracy. Suggested protection includes the registration and recording of IPR, product identification training guides, and sharing of intelligence on suspect shipments.
The joint customs web toolkit provides a single set of guidelines for trademark and copyright owners to design web-based product to determine whether goods are counterfeit or pirated. These toolkits provide information to customs officials to assist them in determining whether suspect shipments are counterfeit or pirated.
Other joint projects include Operation Infrastructure, the first joint IPR border enforcement operation undertaken by U.S. and EU customs authorities. CBP states that the operation fulfilled a key deliverable of the U.S.-EU IPR Action Strategy. Targeting semiconductors and network hardware, the operation ran from November 26, 2007 through December 14, 2007, and resulted in the seizures of more than 360,000 counterfeit integrated circuits and computer network components bearing more than 40 different companies’ trademarks. Officials are continuing discussions on future joint operations.
The EU Commission accepts duty suspension applications twice annually. The application process itself takes 12 months to complete. The current deadline for duty suspension applications is July 25, 2008 for applications that would take effect on July 1, 2009.
All current duty suspensions are listed by the EU Commission by EU Regulation. Normally, if a company succeeds in getting a duty suspension on a product, it remains on the list unless an objection is lodged at some point in the future.
Duty suspensions will not be granted where:
- Identical, equivalent or substitute products are manufactured in sufficient quantities within the Community
- The goods in question are finished products intended for sale to end-consumers without further substantial processing or without forming an integral part of a bigger final product for whose functioning they are necessary
- The goods are covered by an exclusive trading agreement
- A suspension would entail a conflict with any other Community policy
- Uncollected customs duties of the goods in question is estimated to be less than ECU 20,000 per year
If you are interested in learning more about obtaining a duty suspension in the EU, please contact Global Trade Expertise or Eamonn Flood (email@example.com) or Carol Lynch (firstname.lastname@example.org) of Crannagh & Co. (www.crannaghtrade.eu).