On Sunday, October 20, 2019, the U.S. Trade Representative (USTR) published the procedures for requesting the exclusion of particular products from the Section 301 List 4a tariffs against China. The procedures will be effective beginning Thursday, October 31, 2019.
Exclusion Information Required by USTR
USTR is seeking specific information, data and the rationale for the requested exclusion. To submit an exclusion request, requesters must first register on the portal at https://exclusions.ustr.gov/s/login/, which will open at noon EDT on October 31, 2019.
Once registered, the requester can complete and submit one or more exclusion request forms. The following information is required to be included in any exclusion request:
- The 10-digit subheading of the HTSUS being requested for exclusion. If no 10-digit subheading is available, requesters should use the 8-digit subheading and add “00”. Different models classified under different 8-digit or 10-digit subheadings are considered different products and require separate exclusion requests.
- Product name and a detailed description of the product. A detailed description of the product includes, but is not limited to, its physical characteristics (e.g., dimensions, weight, material composition). Requesters may submit a range of comparable goods within the product definition set out in an exclusion request. Thus, a product request may include two or more goods with similar product characteristics or attributes. Goods with different SKUs, model numbers or sizes are not necessarily different products.
- The product’s function, application (whether the product is designed to function in or with a particular machine or other device), principal use, and any unique physical features that distinguish it from other products within the covered 8-digit HTSUS subheading. Requesters may submit attachments that help distinguish the product (e.g., CBP rulings, photos and specification sheets, previous import documentation). Please note: USTR will not consider requests that identify the product using criteria that cannot be made available for public inspection.
- Whether the product is currently subject to an anti-dumping or countervailing duty order issued by the U.S. Department of Commerce.
- Requesters must provide their relationship to the product (Importer, U.S. Producer, Purchaser, Industry Association, Other) and provide specific data on the annual quantity and value of the Chinese-origin product, domestic product and third-country product the requester purchased in 2017, 2018, and the first half of 2019.
- Requesters must provide information regarding their gross revenues for 2018 and the first half of 2019.
- For imports sold as final products, requesters must provide the percentage of their total gross sales in 2018 that sales of the Chinese-origin product accounted for.
- For imports used in the production of final products, requesters must provide the percentage of the total cost of producing the final product(s) the Chinese-origin input accounts for and the percentage of their total gross sales in 2018 that sales of the final product(s) accounted for.
- With regard to the rationale for the requested exclusion, each requester will be asked to address the following:
- Whether the particular product is available only from China and whether the particular product and/or a comparable product is available from sources in the United States and/or in third countries. The requester must provide an explanation if the product is not available outside of China or the requester is not sure of the product availability.
- Whether the requester has attempted to source the product from the United States or third countries.
- Whether the imposition of additional duties on the particular product has or will 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.
In addressing each factor, the requester should provide support for their assertions. To provide information about the possible cumulative effects of the Section 301 tariff actions, requesters also may submit information about any exclusion requests submitted by the requester under the initial $34 billion tariff action (Docket ID: USTR2018-0025), the additional $16 billion tariff action (Docket ID: USTR-2018-0032), or the additional $200 billion tariff action (Docket ID: USTR-2019-0005), and the value of the requester’s imports applicable to the previous tariff actions. Requesters also may provide any other information or data that they consider relevant to an evaluation of the request
The official exclusion request form is listed at the bottom of the Procedures to Request the Exclusion of Particular Products.
Deadline for Submitting Exclusion Requests
The deadline to submit exclusion requests for this group of products is January 31, 2020.
Opposition and Rebuttal
Interested parties can oppose an exclusion request, but must do so within 14 days of the date that the exclusion request was posted on the List 4 Portal . The company submitting the exclusion then has seven days to rebut the opposition comments.
It is important that all companies filing requests consider whether China is the only source of supply for the product. This appears to be a key element for exclusion. Companies should develop a strategy to address this issue, especially where there may be some small U.S. or third-country producers of a product for which an exclusion is being requested. Please consider using legal counsel to ensure you are making the best argument.
U.S. producers that want to continue to have tariffs applied need to actively monitor the exclusion requests for products they produce given the very short 14-day deadline to oppose exclusion requests.
For more information, please contact your local Noatum Logistics USA (Formerly MIQ Logistics) representative.