September 16, 2019

September 16, 2019

Subscribe to Latest Legal News and Analysis

USTR Announces List 4 Tariffs on $300B Imports from China While Continuing to Accept Exclusion Requests for List 3 Tariffs

The U.S.-China trade dispute escalated yet again as the Office of the U.S. Trade Representative (USTR) announced a fourth round of tariffs of 10 percent on an estimated $300 billion of goods imported from China not already subject to Section 301 tariffs.  At the same time, the USTR continues to accept List 3 exclusion requests and is working to complete review of List 1 and List 2 exclusion requests.

1. USTR Announces Section 301 Tariffs on $300B of U.S. Imports from China (Lists 4A and 4B).

The USTR announced the fourth round of Section 301 tariffs of 10 percent on an estimated $300 billion of U.S. imports from China in a press release dated Aug. 13, 2019.  The official notice was published in the Federal Register on Aug. 20, 2019.  84 FR 43304.  These tariffs are in addition to the estimated $250 billion already subject to 25 percent tariffs.  All these tariffs have been imposed pursuant to Section 301 of the Trade Act of 1974, following the USTR’s investigation and determination that China’s acts, policies, and practices regarding technology transfer, intellectual property, and innovation were unreasonable and discriminatory, and burdened or restricted U.S. commerce.  In this announcement, the USTR justified this newest round of tariffs, stating China is not addressing the acts, policies, and practices that the Section 301 tariffs intended to curb, but instead has levied retaliatory tariffs on approximately $110 billion worth of U.S. goods, backtracked in its trade negotiations, and devalued its currency.

This Aug. 20, 2019 tariff announcement comes after a May-June 2019 period of public comment and public hearings.  The USTR noted it had removed certain tariff subheadings from the final fourth round list because of health, safety, national security, and other factors.  The USTR also divided this fourth round of 10 percent tariffs into two sublists with different effective dates.  List 4A is to take effect on Sept. 1, 2019, and consists of a wide range of goods where the share of U.S. imports is less than 75 percent from China.  List 4B is to take effect on Dec. 15, 2019.  The USTR stated the delay of a few months for List 4B was to provide “a longer adjustment period for U.S. interested persons” because this list consists of goods where the share of U.S. imports is 75 percent or greater from China, including, for example, cell phones, laptops, computers, video game consoles, certain toys, computer monitors, and certain items of footwear and clothing.  The USTR also confirmed it will institute an exclusion request process for Lists 4A and 4B and it will publish a separate notice describing the procedures in the future.

The chart below summarizes the Section 301 tariffs imposed to date.

 

Tariff List  – Value of Imports
from China
Number of
Tariff Subheadings
on List
Date Tariff Levied Tariff Exclusion Request Deadline
List 1 – $34B 818 July 6, 2018 25% Oct. 9, 2018
List 2 – $16B 279 Aug. 23, 2018 25% Dec. 18, 2018
List 3 – $200B 5,733 Sept. 24, 2018 10% Sept. 30, 2019

Jan. 1, 2019(postponed)

Mar. 2. 2019(postponed)

May 10, 2019

25%

Lists 4A and 4B – $300B

3,805*

September 1, 2019
(List 4A)

December 15, 2019
(List 4B)

10%

Deadline not yet announced

 

*Number of tariff subheadings for Lists 4A and 4B are the number of the tariff subheadings proposed in the May 17, 2019 Federal Register notice concerning proposed List 4 tariffs.  The USTR Notice published in the Federal Register on Aug. 20, 2019 states a certain number of tariff subheadings were removed from the final list based on health, safety, national security, and other factors.

 

2. USTR Accepting List 3 Exclusion Requests through Next Month

For List 3, the USTR began accepting exclusion requests on June 30, 2019 via its online portal, and the submission deadline is Sept. 30, 2019.  As with the exclusions from the first and second round of tariffs, a List 3 exclusion granted will be retroactive to Sept. 24, 2018, the day the tariffs were initially imposed.  See our alert here about the USTR announcement of the List 3 exclusion request process.  The USTR has received over 9,000 exclusion requests to date, is reviewing requests on a rolling basis, and has granted 15 exclusion requests.

3. Status of Exclusion Requests for Lists 1 and 2

The USTR’s Aug. 16, 2019 updates for List 1 and 2 exclusion requests indicate continued progress in processing the backlog of requests.  The USTR has completed its initial substantive review based on its product exclusion criteria (Stage 2).  For List 1, a new round of exclusions was granted with a notice published in the Federal Register on July 9, 2019, bringing the total exclusions granted to 2,813, or 26 percent of the total.  There are 6,762, or 62 percent, denied List 1 requests and 1,247, or 19 percent, List 1 pending requests in Stage 3, in which the requests are evaluated with input from U.S. Customs and Border Protection (CBP) to determine whether they can be administered.  Notably, since our last update, there are 1,263 fewer requests in Stage 3, but the number of granted exclusions only increased by 856, meaning a significant number of exclusion requests were denied as not administrable.  Also notable is the first round of List 2 exclusion requests published in the Federal Register on July 31, 2019.  Ten percent or 292 List 2 requests have now been granted.  There are 1,143 of 2,920 (39 percent) List 2 requests that remain pending in Stage 3 and 1,484, or 51 percent, that have been denied.  The chart below summarizes the status of the exclusion request process for Lists 1 and 2. 

Updated Status of Exclusion Requests for Lists 1 and 2

Tariff List List 1 – $34B List 2 – $16B
Date Tariff Levied Jul. 6, 2018 Aug. 23, 2018
Date Exclusion Request Process Announced Jul. 11, 2018 Sept. 18, 2018
Exclusion Request Deadline Oct. 9, 2018 Dec. 18, 2018
Total Number of Exclusion Requests 10,822 2,920
Requests in Stage 1 (Public Comment Period) 0 0
Requests in Stage 2 (Initial Substantive Review) 1 (0%)
Requests in Stage 3 (Administrability Review) 1,247 (12%) 1,143 (39%)
Requests in Stage 4 (Granted and publication in progress) 0 0
Granted 2,813 (26%) 292 (10%)
Denied

6,762 (62%)

1,484 (51%)

Note: Exclusion request data is compiled from the most recent USTR exclusion request index updates for List 1 and List 2 dated Aug. 16, 2019.

 

© 2019 Dinsmore & Shohl LLP. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Ivan Bilaniuk, Dinsmore Law Firm, Washington DC, Corporate and Litigation Law Attorney
Partner

Ivan’s practice focuses on helping clients realize their business objectives in their international contracting, international commercial disputes, international operations and exporting. He advises clients working in and with foreign markets in the Middle East, Europe, Africa and Asia on contracting, risk management, managing disputes and international compliance issues including anti-corruption due diligence, export controls and trade sanctions. 

He engages in international arbitration of commercial and international government contract...

202-559-3611
Julia T. Stuebing Associate Dinsmore Litigation
Associate

Julia focuses her practice on litigation and has experience representing individuals and businesses through all stages of litigation.

Prior to joining Dinsmore, Julia was an attorney at a Colorado law firm. Previously, she worked as a law clerk for a Denver district court judge.

While in law school, Julia was editor-in-chief of the Michigan Journal of International Law and part of The Dow Chemical Company’s inaugural class of Dow Sustainability Fellows. During the summers, she interned at the United States Attorney’s office for the Eastern District of Michigan and worked at a firm in Boston.

Prior to law school, Julia completed a Fulbright Fellowship in Haifa, Israel. She was also a litigation project assistant at a firm in Washington, D.C. Julia is conversant in Spanish and Hebrew.

734-773-4051