Section 301 - The Second Tranche of China
Tariffs (LIST 2) Exclusion Process Announced


September 17, 2018

The USTR has announced the procedures for requesting Section 301 Exclusions for List 2. The final list 2 was published in the Federal Register on August 16, 2018 (83 FR 40823) and went into effect on August 23, 2018. List 2 contains 284 HTS subheadings with an annual trade value of approximately $16 billion.

While the official notice regarding List 2 exclusion requests will be published in the Federal Register on Tuesday, September 18, 2018, the preliminary notice can be found here.

As of September 17, 2018, the final List 3 has not been announced.

Submitting an Exclusion Request for List 2

  • Due date for submissions is December 18, 2018.
  • The docket number to submit exclusions is USTR-2018-0032 at www.regulations.gov.
  • Parties will have 14 days after posting to resubmit comments; replies to comments are due within 7 days.
  • Electronic submissions are preferred. 
  • **New** USTR prefers submissions made using the 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 and saved as a searchable Adobe Acrobat (.pdf) document. If parties do not use the USTR form, USTR prefers submissions made in Microsoft Word (.docx) or searchable Adobe Acrobat (.pdf). If you use an application other than those two, indicate the name of the application in the “comment” field.
  • Do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, include any exhibits, annexes, or other attachments in the same file as the comment itself, rather than submitting them as separate files.
  • For any documents submitted electronically containing business confidential information, the file name of the business confidential version must end with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page and the submission should clearly indicate, via brackets, highlighting, or other means, the specific information that is business confidential. If you request business confidential treatment, you must certify in writing that disclosure of the information would endanger trade secrets or profitability, and that the information would not customarily be released to the public. Filers of submissions containing business confidential information also must submit a public version of their submissions. The file name of the public version must end with the character “P”. The “BC” and “P” should follow the rest of the file name. If these procedures are not sufficient to protect business confidential information or otherwise protect business interests, contact the USTR Section 301 line at (202) 395-5725 to discuss whether alternative arrangements are possible.

Information to be Contained in Exclusion Request 

  • Identification of the particular product in terms of the physical characteristics (e.g., dimensions, material composition, or other characteristics) that distinguish it from other products within the covered 8-digit subheading. USTR will not consider requests that identify the product at issue in terms of the identity of the producer, importer, ultimate consumer, actual use or chief use, or trademarks or tradenames. USTR will not consider requests that identify the product using criteria that cannot be made available to the public.
  • The 10-digit subheading of the HTSUS applicable to the particular product requested for exclusion.
  • Requesters also may submit information on the ability of U.S. Customs and Border Protection to administer the exclusion.
  • Annual quantity and value for the last 3 years.
  • If imports sold as final products, the percentage of the total gross sales in 2017 of the Chinese-origin product must be provided.
  • All submissions must include a statement that the submitter certifies that the information provided is complete and correct to the best of his or her knowledge.

Rationale for Requesting an Exclusion

In addressing each of the below factors, requesters should provide supporting reasons.

  • 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.
  • Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.

Granting of Exclusion Requests

  • Any exclusion will be effective starting from the August 23, 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 August 23 date of the imposition of the additional duties.
  • USTR will periodically announce decisions on pending requests.

For further information or questions about this or other customs issues, contact George R. Tuttle, III at geo@tuttlelaw.com or at (415) 986-8780.

 

George R. Tuttle, III is an attorney with the Law Offices of George R. Tuttle in the San Francisco Bay Area.

The information in this article is general in nature, and is not intended to constitute legal advice or to create an attorney-client relationship with respect to any event or occurrence, and may not be considered as such.

Copyright © 2018 by Tuttle Law Offices.  

All rights reserved.  Information has been obtained from sources believed to be reliable.  However, because of the possibility of human or mechanical error by our offices or by others, we do not guarantee the accuracy, adequacy, or completeness of any information and are not responsible for any errors, omissions, or for the results obtained from the use of such information.

 

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