Section 301 Investigation

The Office of the U.S. Trade Representative (USTR) has announced that President Trump is moving forward with additional tariffs in its Section 301 investigation involving China’s acts, policies and practices related to forced technology transfers and intellectual property rights. The USTR has finalized a third list of Harmonized Tariff Schedule (HTS) subheadings resulting in additional tariffs of $200 billion on imports of Chinese products. The additional tariffs will go into effect September 24, 2018, and will be 10 percent at the start. The USTR has stated that these tariffs will increase to 25 percent on January 1, 2019. Continue Reading United States to Implement Additional Import Tariffs on $200 Billion of Chinese Products

On August 16, 2018, the United States implemented retaliatory tariffs of 25 percent on U.S. imports of 279 Chinese products covering an estimated trade value of $16 billion in 2018. This was in addition to the $34 billion in tariffs implemented in June 2018.

With these tariffs in place, the U.S. Trade Representative (USTR) has announced procedures to request the exclusion of products subject to this additional duty. In a notice published today in the Federal Register, the USTR has provided the criteria and detailed guidance for any product exclusion request application. Each request must specifically identify a particular product and provide supporting data and the rationale for the proposed exclusion. The USTR will not consider exclusion requests using criteria that cannot be made available to the public. Each request will be evaluated on a case-by-case basis. The USTR has specified, however, that the following information must be provided:

  • 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. The 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. The 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.
  • The annual quantity and value of the Chinese-origin product that the applicant purchased in each of the last three years.

Continue Reading U.S. Trade Representative Announces Section 301 Product Exclusion Process for Second List of Chinese Products Subject to 25 Percent Tariff

The U.S. Trade Representative (USTR) has closed the public comment period on whether to take further action in the form of an additional 10 or 25 percent tariff on certain products imported into the United States from China with an annual trade value of approximately $200 billion. Nearly 6,000 comments were received during the comment period, which focused on the third list (or tranche) of over 6,000 Harmonized Tariff Schedule (HTS) subheadings proposed by the USTR on July 17, 2018 (see annex to 83 Federal Register 33608). This followed a marathon six-day public hearing featuring a parade of witnesses who mostly complained of the injury their U.S. companies would face if these tariffs were implemented. Highlighting this concern, more than 150 U.S. trade groups filed a joint letter opposing the proposed tariffs and arguing that, if implemented, such tariffs and the continuing “tit-for-tat tariff escalation with China only serves to expand the harm to more U.S. economic interests, including farmers, families, businesses, and workers.” The letter states that any tariffs will serve to only invite additional Chinese retaliation and “cause significant supply chain disruptions” since the assumptions that U.S. companies “can simply move their production out of China are incorrect.”

Despite the outcry that U.S. companies, manufacturers, service providers and consumers will bear the brunt of any new proposed tariffs, President Trump on Friday, September 7, 2018, in remarks to reporters, stated that “the $200 billion we are talking about could take place very soon” and that his administration is prepared to seek tariffs on another $267 billion on Chinese goods “if I want.”

The Office of the United States Trade Representative (USTR) has finalized and released its second list of Harmonized Tariff Schedule (HTS) subheadings totaling approximately $16 billion worth of imports from China that will be subject to a 25 percent retaliatory tariff as part of the U.S. government’s ongoing Section 301 investigation and response to China’s intellectual property and forced technology transfer practices. This second list supplements the first list that went into effect on July 6, 2018, which totaled approximately $34 billion of imports from China. Combined, the two lists now cover approximately $50 billion worth of Chinese imports.

The second list contains 279 of the original 284 HTS tariff lines that were on a proposed HTS subheading list released on June 15, 2018. U.S. Customs and Border Protection will begin to collect the additional duties on these imports on August 23.

What a week for U.S.-China trade relations! On July 6, the United States began imposing 25 percent tariffs on approximately $34 billion worth of Chinese products imported into the United States. China then retaliated by imposing tariffs of its own on $34 billion worth of U.S. exports to China, which the United States called “inappropriate” and prompted the United States to announce plans to impose a 25 percent tariff on another $16 billion of Chinese goods. Next, the Office of the U.S. Trade Representative (USTR) indicated that it did not like China’s reaction and was considering imposing a 10 percent tariff on an additional $200 billion of imports from China.

To recap:

  1. U.S. Customs and Border Protection is now imposing a 25 percent tariff on numerous goods from China;
  2. the USTR is reviewing a supplemental list of Harmonized Tariff Schedule categories to possibly implement a 25 percent tariff on $16 billion worth of Chinese goods – a hearing on these categories will be held July 24-25; and
  3. the process for submitting comments and participating in another public hearing in late August regarding the proposed 10 percent tariff on the $200 billion worth of Chinese goods has just been announced.

If that weren’t enough, in testimony before the House Financial Services Committee on Thursday, July 12, Treasury Secretary Stephen Mnuchin was harshly questioned on the administration’s wisdom and strategy concerning these tariffs. Mnuchin denied that the United States is in a trade war with anyone, despite the views of other key trading partners. China’s Ministry of Commerce, for example, in its strongest statement yet, stated that the United States is “not only launching a trade war with China, but also with the whole world, dragging the world economy into danger” and becoming “an enemy to all.”

As reported in a prior post, the United States on July 6, 2018 began imposing 25 percent tariffs on approximately $34 billion worth of Chinese products imported into the United States. This was the result of the Office of the U.S. Trade Representative (USTR) undertaking a Section 301 investigation into “China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation.” Shortly after these tariffs were implemented, China retaliated by imposing tariffs on $34 billion worth of U.S. exports to China. In response, U.S. Trade Representative Robert Lighthizer announced yesterday, July 10, 2018, “As a result of China’s retaliation and failure to change its practices, the President has ordered USTR to begin the process of imposing tariffs of 10 percent on an additional $200 billion of Chinese imports.” He added, “For over a year, the Trump Administration has patiently urged China to stop its unfair practices, open its market, and engage in true market competition. We have been very clear and detailed regarding the specific changes China should undertake. Unfortunately, China has not changed its behavior – behavior that puts the future of the U.S. economy at risk. Rather than address our legitimate concerns, China has begun to retaliate against U.S. products. There is no justification for such action.” Continue Reading USTR Proposes Additional 10 Percent Tariff Against Wider Range of Chinese Products Subject to USTR Review and Public Comment

On July 6, 2018, the United States implemented retaliatory tariffs of 25 percent on U.S. imports of approximately 800 Chinese products covering an estimated trade value of $34 billion in 2018. Pursuant to its Section 301 investigation into “China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation,” the Office of the U.S. Trade Representative (USTR) announced its determination to implement the tariffs in a June 20, 2018 Federal Register notice (see Annex B of the notice for the full list of covered HTSUS Codes). The USTR indicated that products under these HTSUS codes “contain products identified as benefitting from China’s industrial policies, including the ‘Made in China 2025’ program.” Continue Reading U.S. Trade Representative Announces Product Exclusion Process for China Section 301 Tariffs

As part of the Trump administration’s continuing efforts under Section 301 to pressure the People’s Republic of China (PRC) to change its intellectual property and forced technology transfer practices, the Office of the U.S. Trade Representative announced in the Federal Register today (1) which PRC products will be subject to a Section 301 25 percent tariff starting July 6 (Annex B), (2) which additional PRC products will undergo review to determine if they should be subject to the 25 percent tariff (Annex C) and (3) the review process for the additional PRC products.

The product lists in Annexes B and C were released last week. Today’s notice revealed for the first time the review process for the products listed in Annex C. Interested parties have until June 29 to file requests to appear at the July 24 public hearing; requests must include a summary of the expected testimony and may be accompanied by a pre-hearing submission. Parties filing written comments on the U.S. government’s proposed action must submit them by July 23, and post-hearing rebuttal comments are due by July 31. The hearing, which will start at 9:30 a.m. in the U.S. International Trade Commission’s main hearing room, will be limited to issues involving products listed in Annex C only. The notice did not address a product exclusion request process for the products listed in Annex B that will be subject to the 25 percent tariff on July 6, but indicated that a separate notice will be issued concerning that process.

Last Friday, the Trump administration released the list of imported products from the People’s Republic of China (PRC) that will be subject to an additional 25 percent tariff. The retaliatory tariffs are the result of (1) the U.S. government’s Section 301 investigation and report that assessed the PRC government’s intellectual property and technology transfer practices affecting U.S. companies and (2) the PRC government’s reluctance to address these U.S. government concerns so far. Tariffs on these products are scheduled to go into effect July 6.

The Section 301 investigation process, which included a public notice and comment period and hearing, reduced the first set of product lines under consideration from 1,333 U.S. Harmonized Tariff Schedule (HTS) line items to 818, worth approximately $34 billion in U.S. imports from China. In its Friday announcement, the Office of the U.S. Trade Representative also announced that an additional 284 HTS line items worth $16 billion in U.S. imports from China may be subject to the 25 percent tariff and would undergo further scrutiny as part of a public notice and comment process, including a public hearing. The second set of HTS line items includes, among others, products benefiting from PRC industrial policies, including the “Made in China 2025” program, which is an industrial strategy aimed to shift China’s economy into higher value-added manufacturing sectors, such as robotics, aerospace and energy-saving vehicles.

President Trump has released a statement setting forth the steps that his administration will undertake in an effort to protect domestic technology and intellectual property from China’s unfair and discriminatory trade practices. These actions are the result of the findings of the U.S. Trade Representative investigation pursuant to Section 301 of the Trade Act of 1974. On March 22, 2018, the president issued a Presidential Memorandum announcing the findings of that investigation, but in recent weeks there had been indications that any “trade war” and tariffs against China would be put on hold pending further discussions and negotiations. With today’s announcement, the United States will:

  • implement “specific investment restrictions and enhanced export controls for Chinese persons and entities related to the acquisition of industrially significant technology.” These restrictions and controls will be announced by June 30, 2018.
  • continue to pursue dispute settlement proceedings before the World Trade Organization for violations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) based on China’s discriminatory practices for licensing intellectual property. The United States filed the case regarding these violations on March 23, 2018.
  • continue with its Section 301 trade action and impose a 25 percent tariff on $50 billion of goods imported from China. The final list of covered imports will be announced by June 15, 2018.

The statement notes that the United States “will request that China remove all of its many trade barriers, including non-monetary trade barriers, which make it both difficult and unfair to do business there” and that “tariffs and taxes between the two countries be reciprocal in nature and value.”