Section 301 Investigation

On July 11, 2018, the United States Trade Representative (USTR) opened the docket for China 301 Product Exclusion Requests on regulations.gov. The Docket ID is USTR-2018-0025.

The docket includes USTR’s ‘China 301 Product Exclusion Form’.

In its July 11 Federal Register Notice describing the procedures to use for product exclusion requests, USTR states, “To assist in review of requests for exclusion, USTR has prepared a request form that will be posted on the USTR website under ‘‘Enforcement/Section 301 investigations’’ and on the www.regulations.gov docket in the ‘‘supporting documents’’ section. USTR strongly encourages interested persons to use the form to submit requests.”

The Section 301 exclusion form is more simplified than the earlier Section 232 exclusion form. Interested parties can still submit supporting documents in addition to the form, and there is no page limit to the submission

As a reminder, this product exclusion request process only applies to those goods subject to the ad valorem duty of 25 percent on products from China classified in the 818 subheadings of the Harmonized Tariff Schedule of the United States (HTSUS) set out in Annex A of the June 20, 2018, Federal Register Notice. Note that Annex B to the notice contains the same list of tariff subheadings, with unofficial descriptions of the types of products covered in each subheading.

For more information on key dates and submission guidelines for China Section 301 Product Exclusion Requests, please click here for Crowell’s post discussing the specifics of the notice

 

 

On July 10, 2018, U.S. Trade Representative (USTR) Robert Lighthizer announced that at President Trump’s request, USTR has initiated the process of imposing an additional 10 percent ad valorem duty on approximately $200 billion worth of imports from China including apparel, textiles, chemicals, and agricultural & aquacultural goods.

The USTR statement includes a link to an advance copy of the Federal Register Notice with the list of proposed tariffs and the process for the public notice and comment period. The notice will be published in the Federal Register later this week.

This is the third round of additional tariffs proposed by the Trump administration as a result of its Section 301 investigation into China’s alleged unfair trade practices related to “the forced transfer of American technology and intellectual property.”

The notice indicated the USTR will maintain the first round of tariffs on $34 billion worth of goods implemented on July 6, and will continue with a second round of proposed tariffs on $16 billion worth of goods. This second list is currently under review in a public notice and comment process, with a public hearing scheduled for July 24, 2018.

The Harmonized Tariff Schedule of the United States (HTSUS) subheadings of the products subject to the proposed tariffs is listed in the Annex (pages 11-205) to the notice.

The notice also included a list of key dates for a public notice, comment, and hearing process:

  • July 27, 2018: Due date for filing requests to appear and a summary of expected testimony at the public hearing, and for filing pre-hearing submissions.
  • August 17, 2018: Due date for submission of written comments.
  • August 20-23, 2018: The Section 301 Committee will convene a public hearing in the main hearing room of the U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436 beginning at 9:30 am.
  • August 30, 2018: Due date for submission of post-hearing rebuttal comments.

 

 

Section 301 For covered products in List 1, please click here. 25% 7/6/2018
For covered products in List 2, please click here. TBD TBD
For covered products in List 3, please click here and see Annex 10% TBD
Status: List 1 totaling $34 billion worth of imports is composed of 818 tariff lines, and went into effect on 7/6/2018.

 

List 2 totaling $16 billion worth of imports is composed of 284 proposed tariff lines identified by the interagency Section 301 Committee. These are in a public review process.

 

List 3 includes a list of tariff lines of products from China with an annual trade value totaling approximately $200 billion. These are also subject to a public review process.

On July 11, 2018, the United States Trade Representative (USTR) published a notice in the Federal Register explaining the procedures and criteria related to requests for product exclusions from the additional tariffs placed on goods from China on July 6.

USTR must receive requests to exclude a particular product by October 9, 2018. Per the notice, a docket will be opened on regulations.gov for the receipt of exclusion requests in docket number USTR–2018–0025.

Responses to a request for exclusion of a particular product are due 14 days after the request is posted.

Any replies to responses to an exclusion request are due 7 days after the close of the 14 day response period.

On July 6, 2018, USTR issued an intial press release with a link to an advance copy of this Federal Register Notice.

For more details regarding this important announcement, please click here for Crowell’s July 8 post discussing the specifics of the notice.

 

 

 

 

 

 

In a notice published on June 20, 2018, the U.S. Trade Representative (USTR) announced the imposition of an additional ad valorem duty of 25 percent on products from China classified in the 818 subheadings of the Harmonized Tariff Schedule of the United States (HTSUS) set out in Annex A of the notice in response to China’s alleged acts, policies, and practices related to technology transfer, intellectual property, and innovation included. Note that Annex B to the notice contains the same list of tariff subheadings, with unofficial descriptions of the types of products covered in each subheading.

The additional duties on these products took effect on July 6, 2018.

The June 20 notice also announced that the USTR would establish a process by which U.S. stakeholders may request that particular products classified within a covered tariff subheading be excluded from the additional duties.

On July 6, 2018, USTR issued a press release with a link to the soon-to-be published Federal Register Notice which explains the procedures and criteria related to requests for product exclusions. A docket for the receipt of exclusion requests will be established on regulations.gov.

The notice will be published in the Federal Register sometime during the week of July 9, 2018.

A key piece of information for importers is that “[a]ny exclusion will be effective starting from the July 6, 2018 effective date of the additional duties, and extending for one year after the publication of the exclusion determination in the Federal Register. In other words, an exclusion, if granted, will apply retroactively to the July 6 date of the imposition of the additional duties. USTR will periodically announce decisions on pending requests.”

Key Dates

  • Interested parties will have 90 days to file a request for a product exclusion; and
  • The request period will end on October 9, 2018.

Rationale for Requested Product Exclusion

Each request should explain the following factors:

  • Whether the particular product is available only from China. In addressing this factor, requesters should address specifically whether the particular product and/or a comparable product is available from sources in the United States and/or in third countries;
  • Whether the imposition of additional duties on the particular product would cause severe economic harm to the requester or other U.S. interests; and
  • Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.

Process Timeline

  • Following public posting of a request on Regulations.gov, the public will have 14 days to comment on a certain product exclusion request; and
  • After the close of the 14 day response period, interested persons will have an additional 7 days to reply to any responses received in support of or opposition to the request.

Highlights

The notice includes information on:

  • How to identify products in the exclusion request;
  • Submission Instructions – to include the submission of business confidential information; and
  • Document Format Instructions.

 

 

Check back here for the latest developments on all the on-going trade actions.

On July 5, 2018, U.S. Customs and Border Protection (CBP) hosted a teleconference to review Section 301 filings requirements, allow members of the trade community to seek clarifications and raise questions, and outline resources CBP has in place.

The first set of Section 301 tariff increases is effective on July 6, 2018.

This is the second round of tariff increases following the recent Section 232 tariffs on steel and aluminum. CBP is highly interested in hearing from the trade community to ensure effective implementation of the new 301 tariffs. If a business or importer has specific questions or concerns, CBP encourages them to contact the agency at traderemedy@cbp.dhs.gov.

CBP recommends monitoring the Federal Register and USTR website for the forthcoming exclusion process. This will be provided in a separate Federal Register Notice (FRN).

There is also a second list of 284 tariff lines covering approximately $16 billion of imports from China under consideration for implementation. These were identified by the interagency Section 301 group and are currently undergoing a public notice and comment process, including a public hearing.

On the call, CBP clarified that the 25% tariff is limited to goods with a country of origin (CoO) and NOT a country of export, of the People’s Republic of China (excluding Hong Kong and Macao).

Other highlights are included below:

  • Free Trade Zones (FTZ): Goods entering as privileged foreign (PF) before 12:01 AM on July 6 will not be subject to, or assessed, the new duties. The FRN specifies applicability to products admitted to FTZs on or after the effective date. The notice does not discuss PF status prior to the effective date. It was confirmed that the ACE system has been updated to reflect this.
  • Harmonized Tariff Schedule of the U.S. (HTSUS) Subheading 9903.88.10 should be active in system.
  • There are no quotas related to Section 301. The ACE quota module is not being used and is not tied to Section 301 products. Members of the trade community should not receive any quota messages unless the product is subject to an applicable quota, however, CBP does not believe that the over 800 HS codes subject to the 25% tariff are also subject to an applicable quota.
  • If Chapter 98 provisions are applied correctly from a compliance perspective, then the rates of duty imposed under Section 301 will not apply. Importers must follow the instructions and properly file claims for HTSUS Chapter 98 entries.
  • Importers must report if a product meets the requirements of Section 301 by using the correct HTSUS Subheading (i.e., 9903.88.10).
  • De Minimis: It was noted that if a product meets Section 301 requirements and is under the $800 threshold, the shipment should follow existing procedures.
  • CBP has indicated that they will, under a case-by-case review approach, grant leeway to members of the trade community experiencing some of the more complicated questions and/or complex technical matters raised on the call. CBP has asked parties to document questions, so that they can be responded to. For example, there are open FTZ questions, questions related to sets and kits where an import specialist may be able to assist and/or a ruling needs to be requested.

The CBP web page for Section 301 trade remedies against China may be found here.

CBP announced it is developing a Section 301 Frequently Asked Questions (FAQs) web page.

 

 

 

This week will see the implementation of previously announced tariff increases from the U.S., China, and Mexico.

Thursday, July 5 – Section 232 (Mexico)

Mexico will implement the second round of its retaliation for the U.S.’ increased tariffs on imports of certain steel and aluminum products with additional tariffs of 10-15% on pork and cheese products.

Friday, July 6 – Section 301 (U.S. and China)

The U.S. will impose another 25% in duties on 818 tariff lines (see Annex B) worth $34 billion from China on July 6. The additional tariffs are part of the U.S.’ response to China’s alleged unfair trade practices related to “the forced transfer of American technology and intellectual property” pursuant to Section 301 of the Trade Act of 1974.

That same day, China has announced it will respond in kind by increasing duties on 545 tariff lines by the same amount. This action is also valued at $34 billion. Agricultural products, sport utility vehicles, and electric vehicles are among the goods targeted by China.

For all of the latest tariff news, please click here.

 

 

 

 

On June 15, China’s State Council announced it would retaliate against new U.S. tariffs stemming from its Section 301 investigation of China’s unfair trade practices related to the “forced transfer of American technology and intellectual property”.

The list of retaliatory tariffs expanded some 106 types of products China originally disclosed in April in response to the U.S. Section 232 tariffs on steel and aluminum products. China announced that the added tariffs would target $50 billion of U.S. goods to be implemented in two phases. The first list hits $34 billion of U.S. products across 545 categories with 25% tariffs beginning on July 6. This is the same day the United States will increase duties on the import of 818 tariff lines from China, also valued at $34 billion.

Agricultural products, sport utility vehicles, and electric vehicles are among the goods targeted by China.

China also released a second list with an additional $16 billion of U.S. goods to target with higher tariffs. The tariff rate and start date on the second list will be finalized later. The U.S. is also planning a second set of tariffs on $16 billion worth of Chinese goods after July 6, and the list will undergo further review in a public notice and comment process, including a public hearing. After completion of this process, USTR will issue a final determination on the products from this list that would be subject to the additional duties.

 

China (Response to Section 301 Tariffs) For covered products in List 1, please click here.

(Unofficial Version)

 

For covered products in List 2, please click here.

(Unofficial Version)

25%

 

 

 

TBD

7/6/2018

 

 

 

TBD

Status: List 1 is composed of 545 tariff lines, and goes into effect on 7/6/2018.

List 2 contains 114 tariff lines on U.S. goods worth $16 billion. Start date is unknown.

On June 15, the Office of the United States Trade Representative (USTR) issued a press release announcing its intent to impose additional tariffs on products imported from China. The additional tariffs are part of the U.S.’ response to China’s unfair trade practices related to “the forced transfer of American technology and intellectual property” pursuant to Section 301 of the Trade Act of 1974.

Two lists of tariff lines were released. The first list includes 818 of the original 1,333 lines and is valued at $34 billion worth of imports from China. Products falling under these tariff lines will see an additional duty of 25 percent beginning on July 6.

The second list consists of 284 new tariff lines identified by the interagency Section 301 Committee as “benefiting from Chinese industrial policies, including the “Made in China 2025” industrial policy.”

These 284 lines cover approximately $16 billion worth of imports from China. This list will undergo further review in a public notice and comment process, including a public hearing. After completion of this process, USTR will issue a final determination on the products from this list that would be subject to the additional duties.

 

Section 301 For covered products, please click here for the Federal Register Notice. See Annex B.

For covered products, please click here for the Federal Register Notice. See Annex C.

25%

 

TBD

7/6/2018

 

TBD

Status: List 1 is composed of 818 of the original 1,333 tariff lines, and goes into effect on 7/6/2018.

List 2 is composed of 284 proposed tariff lines identified by the interagency Section 301 Committee. These will see further review, to include a public hearing.

For full details, please click here.

Last updated on 7/13/2018: added link to an unofficial searchable and filterable spreadsheet listing the tariff codes for all three current U.S. Section 301 tariff lists (see last line in Section 301 Status).

Update on 7/11/2018: added new U.S. Section 301 tariffs announced on 7/10/2018.

Update on 7/2/2018: added EU Annex I tariffs effective.

Update on 6/29/2018: added Canadian retaliatory tariffs.

Update on 6/21/2018: added India, Japan, Russia, and Turkey.

Update on 6/18/2018: added China’s Section 301 retaliatory tariffs.

Update on 6/15/2018: added new U.S. Section 301 tariffs; added translated version of Mexican retaliatory measures and updated Mexico section.

U.S. Trade Actions

Action Covered Products Rate Increase Effective Date
Section 232 Steel and Aluminum Steel – 25%
Aluminum – 10%
6/1/2018
Status: Steel – all countries of origin except South Korea, Brazil, and Argentina (agreed to quotas); and Australia (exempted).

Aluminum – all countries of origin except Argentina (agreed to quota); and Australia (exempted).

Section 232 Autos and Automotive Parts TBD TBD
Status: For the latest status, please click here.
Section 301 For covered products in List 1, please click here.

 

For covered products in List 2, please click here.

 

For covered products in List 3, please click here and see the Annex.

25%

 

TBD

 

 

10%

7/6/2018

 

TBD

 

 

TBD

Status: List 1 totaling $34 billion worth of imports is composed of 818 tariff lines, and went into effect on 7/6/2018.

List 2 totaling $16 billion worth of imports is composed of 284 proposed tariff lines identified by the interagency Section 301 Committee. These are in a public review process.

For full details on Lists 1 and 2, please click here.

List 3 includes a list of tariff lines of products from China with an annual trade value totaling approximately $200 billion. These are also subject to a public review process

For full details on List 3, please click here.

Unofficial searchable and filterable spreadsheet with tabs for all three U.S. Section 301 tariff lists.

Retaliatory Actions

 

Canada For covered products, please click here. Table 1 – 25%
Table 2 – 10%
Table 3 – 10%
7/1/2018
Status: The Canadian government received over 1,000 submissions of public feedback during public consultations on its original list.

Canada is imposing countermeasures against C$16.6 billion in imports of steel, aluminum, and other products from the U.S., representing the value of 2017 Canadian exports affected by the U.S. tariffs.

EU For covered products, please click here. Annex I – 10% or 25%
Annex II – 10% – 50%
Annex I – 6/22/2018
Annex II – 3/23/2018 or 5th day after WTO Dispute Settlement Body rules against the U.S. action, whichever is first.
Status: For the latest status, please click here.
Mexico For the translated list of covered products, please click here. 7% – 25% (pages 1-4)

 

10% – 15% (page 5)

6/5/2018

7/5/2018

Status: Most retaliatory measures effective as of 6/5/2018. An “exception” list is effective on 7/5/2018.
China (Response to Section 232 Tariffs) For covered products, please click here. Annex I – 15% – 25% 4/3/2018
Status: For the latest status, please click here.
China (Response to Section 301 Tariffs) For covered products in List 1, please click here.

(Unofficial Version)

 

For covered products in List 2, please click here.

(Unofficial Version)

25%

 

 

 

TBD

7/6/2018

 

 

 

TBD

Status: List 1 is composed of 545 tariff lines, and goes into effect on 7/6/2018.

List 2 contains 114 tariff lines on U.S. goods worth $16 billion. Start date is unknown.

India For covered products, please click here. Up to $10.6 billion;
Annex I – 5% – 100%
6/21/2018
Status: The U.S. declined India’s request for WTO consultations. Thus leading to India’s retaliation tariffs on U.S. goods, effective immediately.
Japan For covered products, please click here. Up to $1.91 billion TBD – no earlier than March 23, 2021, or the 5th day following the date of a decision from the WTO DSB, whichever comes first.
Status: No update since May 18, 2018. Ambassador Lighthizer is holding trade talks with Economy Minister Motegi in July. Under Secretary McKinney is also leading a trade mission to Japan to discuss a possible bilateral trade deal.
Russia For covered products, please click here. Up to $3.16 billion TBD
Status: Russia will apply the proposed suspension of equivalent concessions upon the expiration of 30 days from the day on which Council on Trade in Goods has been notified. The suspension will continue until the U.S. lifts the safeguard measures.
Turkey For covered products, please click here. Up to $1.78 billion;
Annex I – 5% – 40%
6/21/2018
Status: The U.S. declined Turkey’s request for WTO consultions due to the provisions of the Safeguard Agreement. The Government of Turkey proposed the suspension of equivalent concessions starting June 21, 2018.

 

 

On April 19, Crowell & Moring’s International Trade Attorneys hosted a webinar on “Trade in 2018 – What’s Ahead?”

Please click here to register and view the webinar on demand.

Summary

From the Section 232 national security tariffs on steel and aluminum imports to the ongoing NAFTA re-negotiation, the Trump administration is seeking to implement significant changes in international trade policy and enforcement. Economic sanctions on Russia continue to expand, the future is far from clear regarding Iran, and perhaps North Korea is coming into focus. A new Asia trade agreement without the United States, and a bumpy road ahead for Brexit all make for uncertainty and the need for enhanced trade risk management. Join us as we identify the international trade risks and opportunities likely to continue and grow in 2018.

Our Crowell & Moring team discussed predictions for the remainder of the year, with cross-border insights from our practitioners in the U.S., London, and Brussels. Topics included likely trends and issues in the U.S. and EU including:

  • Trade policy developments: Section 232, NAFTA renegotiation, and trade remedies
  • Sanctions in Year Two of the Trump Administration: Russia, Iran, North Korea, and beyond
  • Anti-money laundering (AML) and beneficial ownership
  • Supply chain risk management: blockchain, forced labor, the U.K. Modern Slavery Act, and GDPR
  • Europe: Brexit, the EU’s 4th AML Directive, and the EU/U.K. AML enforcement
  • CFIUS: how significant is the new legislation?
  • Export controls: Wither reform?
  • Import and customs