In a statement released on October 18, 2019, the Office of the United States Trade Representative (USTR) announced that it will begin accepting product-specific tariff exclusion requests for Chinese-origin imports covered by the first half of the fourth tranche of tariffs imposed under Section 301 of the Trade Act of 1974 (i.e., List 4A). Products covered by List 4A, which went into effect on September 1, 2019, are subject to an additional 15 percent tariff. The key takeaways are as follows:

• Like the List 3 exclusion process, List 4A exclusion requests must be submitted through USTR's web portal (https://exclusions.ustr.gov), which will become active for submissions on October 31, 2019. The deadline to submit List 4 exclusion requests is January 31, 2020.
• If not already registered, requestors will be required to register on USTR's portal. Requestors will then be permitted to fill out USTR's online Exclusion Request Form, which we provide here.
• Exclusion requests must be product-specific and administrable, which means that U.S. Customs and Border Protection (CBP) must be able to consistently identify and correctly classify the covered product at the time of entry. USTR notes that it will not consider requests that (1) "identify the product using criteria that cannot be made available to the public" and (2) identify more than one unique product.
• Specifically, USTR's Exclusion Request Form asks for a "complete and detailed description of the particular product of concern," which includes, but is not limited to:
  • The product's physical characteristics (e.g., dimensions, weight, material composition, etc.);
  • Whether the product is designed to function in or with a particular machine (application);
  • The unit value of the product (ranges are permissible);
  • Any unique physical features that distinguish it from the products within the covered eight-digit HTSUS subheading; and
  • The product's principal use.
• USTR will only consider arguments in favor of an exclusion submitted in answer to the 18 questions on the Exclusion Request Form, or in an accompanying attachment, which focuses on the following themes:
  • Whether the product, or a comparable product, is available from sources in the United States or a third country;
  • Whether the imposition of additional duties since September on the product has resulted in severe economic harm to the requestor or other U.S. interests; and
  • Whether the particular product of concern is strategically important or related to "Made in China 2025" or other Chinese industrial programs.
• If an exclusion is granted, it will be effective for a period of one year from the implementation date of List 4A (i.e., until September 1, 2020). This contrasts with USTR's previous approach, which provided for a one-year exclusion from the publication date of the exclusion determination in the Federal Register with retroactive application to the tariff enactment date.

Based on our experience seeking exclusion requests for Lists 1, 2, and 3, we anticipate that requestors will have the greatest chance for success when they can demonstrate that a product is effectively available only from China, despite efforts to find alternative sourcing. In addition, requestors will be required to demonstrate severe economic harm to their company, such as decreases in revenue, market share, U.S. employment, and U.S. investment. Small businesses are likely to enjoy an advantage in requesting exclusions as well.

Finally, USTR has indicated that it will publish details regarding the application process in the Federal Register next week. In the meantime, click here for additional information on the Section 301 tariff exclusion request process.

We will continue to monitor USTR's action in connection with the List 4A exclusion process and update this Trade Flash as appropriate.

For more information, please contact:

Richard A. Mojica, rmojica@milchev.com, 202-626-1571

Nicole Gökçebay, ngokcebay@milchev.com, 202-626-1488

Adam Harper*

*Former Miller & Chevalier law clerk

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.