With the 35-day partial federal government shutdown ending on January 26, 2019, the U.S. government’s trade-oriented agencies have reopened and are beginning to work through massive backlogs of work as personnel resume full-time operations. What follows is a listing of the current operational status of many of these agencies:

U.S. Customs and Border Protection (CBP)

While CBP staffed ports “as normal” during the shutdown to ensure that the “flow of trade {is} as close to normal as possible,” other functions were curtailed. Due to the lapse in federal funding, however, the CBP website and certain databases were not actively managed. While no formal announcement has been made by CBP, these resources are once again fully operational, including the Customs Rulings Online Search System (CROSS) and the AD/CVD search database.

U.S. Department of Commerce – Bureau of Industry and Security (BIS)

No official statement has been issued by BIS officials, but the Department of Commerce is once again fully operational. While export enforcement continued during the shutdown, other functions of BIS were severely curtailed, including the filing of export license applications. SNAP-R (BIS’s electronic filing system) is back up and accepting licensing applications; however, it is expected that the review-and-approval process for applications will be delayed due to the expected high volume of filings BIS expects to receive.

U.S. Department of Commerce – International Trade Administration (ITA)

ITA is once again fully operational and has issued a memorandum stating that “any delay and confusion caused by the closure of the Federal Government will best be minimized by uniformly tolling all Enforcement and Compliance deadlines for the effective duration of the recent closure (i.e., 40 days), with the exception of requests for administrative reviews of suspension agreements and antidumping duty (AD) and countervailing duty (CVD) orders.” ITA has indicated that this determination applies to every proceeding, with the exception of court-ordered redeterminations. For AD and CVD orders and suspension agreements with December and January anniversary months, all requests for administrative reviews are now due by February 28, 2019.

U.S. Department of State – Directorate of Defense Trade Controls (DDTC)

DDTC has posted a notice on its website stating that it “has returned to full operational status with all electronic application systems placed in normal operational mode and the 3pm daily pick-up and drop-off service restored.” In resuming full operations, the agency notes that “Priority will be placed on issuance of licenses in the system at the time of implementation of lapse of funding operations on December 22, 2018. New licenses will be accepted; however, industry is advised of the likelihood of longer than normal processing times due to the high volume of licenses DDTC expects to receive.”

U.S. Department of the Treasury – Office of Foreign Assets Control (OFAC)

As previously reported, Treasury continued to have critical staff reporting to work to maintain core operations, even though OFAC’s operations were significantly curtailed. OFAC is again fully functional, and its sanctions web pages and licensing portal are operating.

U.S. International Trade Commission (ITC)

The ITC has publicly stated that all investigations that were active and ongoing when the shutdown began will be tolled by 35 days; a formal notice soon to be published in the Federal Register will provide more detailed information. The ITC website notes that “specific schedules for each investigative proceeding, including those pending before an Administrative Law Judge, will be revised and new schedules posted. We hope in a week or more for revised schedules to be finalized.” The ITC website is once again fully operational, and EDIS (the ITC’s electronic filing system) was live and accepting filings as of January 30. The HTS Search Tool and Dataweb are once again fully operating.

Office of the U.S. Trade Representative (USTR)

USTR has announced that it has returned to “full operating status.” Bilateral trade negotiations continued during the shutdown, particularly those between the United States and China, which face a March 1 deadline before U.S. retaliatory tariffs increase on certain imports of certain Chinese products on March 2 from 10 percent to 25 percent; however, no notice has been provided regarding how the lengthy shutdown will affect the processing of Section 301 product exclusion requests.

The U.S. Department of Commerce’s Bureau of Industry and Security (BIS) has extended the public comment period for its November 19, 2018 advance notice of proposed rulemaking (ANPRM) for “Review of Controls of Certain Emerging Technologies.” In a December 10, 2018 announcement, Deputy Assistant Secretary for Export Administration Matthew Borman extended the deadline from December 19, 2018, until January 10, 2019, in response to public demand for an extension. The comment requirements and issues to be addressed are provided in BIS’s November 19, 2018 ANPRM. (See Trump and Trade Update of November 19, 2018.)

On November 19, 2018, the Bureau of Industry and Security (BIS) at the Department of Commerce issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking public comment on criteria for identifying emerging technologies essential to U.S. national security. In the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Congress passed the Export Control Reform Act of 2018, which included a section aimed at establishing controls on “emerging” and “foundational” technologies. Section 1758 of the NDAA outlined a process for interagency review considering both public and classified information, in addition to inputs from various interagency committees. Once an emerging or foundational technology is identified, the NDAA authorizes the BIS to establish appropriate controls on the export, reexport or transfer of that technology.

The BIS is seeking input from all interested parties on: (1) how to define emerging technology; (2) criteria to apply to determine whether there are specific technologies within certain categories, which are listed below, that are important to U.S. national security; (3) sources to identify technologies ; (4) other general technology categories that warrant review; (5) the status of development of these technologies; (6) the impact specific emerging technology controls would have on U.S. technological leadership; and (7) any other approaches to the issue of identifying emerging technologies, including the stage of development or maturity level.

The BIS will issue a separate ANPRM to identify foundational technologies important to U.S. national security but will accept public comments on treating emerging and foundational technologies as separate types of technology.

Written comments addressing the BIS’s seven criteria must be submitted no later than December 19, 2018. Written comments must be filed through the Federal eRulemaking Portal at https://www.regulations.gov in Docket No. BIS 2018-0024.

Representative Technology Categories

  1. Biotechnology, such as:
    1. Nanobiology;
    2. Synthetic biology;
    3. Genomic and genetic engineering; or
    4. Neurotech.
  2. Artificial intelligence (AI) and machine learning technology, such as:
    1. Neural networks and deep learning (e.g., brain modelling, time series prediction, classification);
    2. Evolution and genetic computation (e.g., genetic algorithms, genetic programming);
    3. Reinforcement learning;
    4. Computer vision (e.g., object recognition, image understanding);
    5. Expert systems (e.g., decision support systems, teaching systems);
    6. Speech and audio processing (e.g., speech recognition and production);
    7. Natural language processing (e.g., machine translation);
    8. Planning (e.g., scheduling, game playing);
    9. Audio and video manipulation technologies (e.g., voice cloning, deepfakes);
    10. AI cloud technologies; or
    11. AI chipsets.
  3. Position, Navigation, and Timing (PNT) technology.
  4. Microprocessor technology, such as:
    1. Systems-on-Chip (SoC); or
    2. Stacked Memory on Chip.
  5. Advanced computing technology, such as memory-centric logic.
  6. Data analytics technology, such as:
    1. Visualization;
    2. Automated analysis algorithms; or
    3. Context-aware computing.
  7. Quantum information and sensing technology, such as:
    1. Quantum computing;
    2. Quantum encryption; or
    3. Quantum sensing.
  8. Logistics technology, such as:
    1. Mobile electric power;
    2. Modeling and simulation;
    3. Total asset visibility; or
    4. Distribution-based Logistics Systems (DBLS).
  9. Additive manufacturing (e.g., 3D printing);
  10. Robotics, such as:
    1. Micro-drone and micro-robotic systems;
    2. Swarming technology;
    3. Self-assembling robots;
    4. Molecular robotics;
    5. Robot compliers; or
    6. Smart Dust.
  11. Brain-computer interfaces, such as
    1. Neural-controlled interfaces;
    2. Mind-machine interfaces;
    3. Direct neural interfaces; or
    4. Brain-machine interfaces.
  12. Hypersonics, such as:
    1. Flight control algorithms;
    2. Propulsion technologies;
    3. Thermal protection systems; or
    4. Specialized materials (for structures, sensors, etc.).
  13. Advanced Materials, such as:
    1. Adaptive camouflage;
    2. Functional textiles (e.g., advanced fiber and fabric technology); or
    3. Biomaterials.
  14. Advanced surveillance technologies, such as faceprint and voiceprint technologies.