The following blog post is a client alert created by Mike Snarr, a Partner, and Casey Holder, an Associate, at Baker & Hostetler LLP. You can find the original posting here, and you can contact Mike or contact Casey with any regulatory concerns or questions. It is recommended that you view the following primers prior to reading this article:
- After a setback in trade negotiations, the USTR (U.S. trade representative) increased tariffs on List 3 to 25%.
- The increased duty rate applies to products that are exported to the United States on or after May 10 and will enter the United States on or after June 1. Products exported prior to May 10 that enter the United States prior to June 1 are subject to the preexisting 10% duty rate.
- The USTR confirmed that it will publish an exclusion request process for List 3.
- The USTR announced a public notice and comment process in connection with the establishment of proposed List 4, which imposes 25% tariffs on practically all remaining Chinese-origin products.
- Following the increase in tariffs on List 3, China announced retaliatory tariffs on $60 billion worth of U.S.-origin imports, to take effect June 1.
Background on Section 301 Tariffs
Sections 301 through 310 of the Trade Act of 1974 (commonly referred to as simply Section 301) are the principal statutory means by which the United States enforces its rights under trade agreements and addresses foreign barriers it determines to be unfair to U.S. exports. Section 301 applies to acts, policies and practices that the USTR determines either (1) violate or are inconsistent with a U.S. trade agreement or (2) are unjustifiable and burden or restrict U.S. commerce.
On March 10, 2018, President Donald Trump signed the Memorandum on Actions by the United States Related to the Section 301 Investigation undertaken by the USTR, citing four broad policies that justified U.S. action against China:
- China uses joint venture requirements, foreign investment restrictions, and administrative review and licensing processes to force or pressure technology transfers from U.S. companies to a Chinese entity.
- China maintains unfair licensing practices that prevent U.S. firms from getting market-based returns for their intellectual property.
- China directs and facilitates investments and acquisitions that generate large-scale technology and intellectual property transfer to support China’s industrial policy goals, including the Made in China 2025 initiative.
- China conducts and supports cyberintrusions into U.S. computer networks to gain access to valuable business information.
The U.S. proposed several responses to these policies, including, on April 3, 2018, a 25% additional tariff on $50 billion worth of Chinese imports. The first two rounds (List 1 and List 2) covered $34 billion worth of products effective July 6 and an additional $16 billion worth of products effective Aug. 23. China then implemented commensurate countermeasures against the United States. On Sept. 17, 2018, the Trump administration announced a third round of tariffs, and that same day, China raised tariffs on $60 billion worth of United States imports. Trump and Chinese President Xi met on Dec. 1, 2018, during the G20 Summit in Argentina to discuss trade negotiations. After several rounds of negotiation and delays in tariff increases due to reportedly positive negotiations, Trump tweeted on May 5 that trade talks were progressing “too slowly” and announced tariff hikes from 10% to 25% on $200 billion worth of Chinese imports.
Increase in Tariffs on List 3
On May 9, following a setback in trade negotiations, the USTR modified the tariffs on Section 301 List 3 imports from China, increasing them from 10% to 25%. List 3 covers $200 billion in products, which have been subject to a 10% duty rate since Sept. 24, 2018, the effective date of the Section 301 List 3 tariffs.
The tariff rate on List 3 was initially 10% and was set to rise to 25% on Jan. 1. On Dec. 19, 2018, the USTR changed the effective date of the duty increase to March 2. On Feb. 24, the president directed a further delay in the duty increase in light of ongoing negotiations with China. The president noted progress in discussions related to forced technology transfer and intellectual property rights protection, which prompted the Section 301 tariffs against China, but raised the tariff rate in May, claiming that China had reneged on commitments made during the negotiations.
The increased 25% duty rate applies to List 3 products that are exported to the United States on or after May 10 and will enter the United States on or after June 1. U.S. Customs and Border Protection (CBP) instructed importers to report the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 9903.88.03 or 9903.88.04 for these products.
List 3 products that were exported to the United States before May 10 and will enter the United States before June 1 are eligible for the preexisting 10% additional duty rate. CBP instructed importers to report HTSUS subheading 9903.88.09 for these products. Importers that have already paid additional duties of 25% on these products may file post-summary corrections to request refunds of overpayments.
The notice also provides that an exclusion process will be developed and described in a separate notice. Such a process has not yet been released, but we anticipate that the exclusion request process for List 3, as with Lists 1 and 2, is likely to require parties requesting an exclusion to identify whether (1) the product is available only in China, (2) imposition of these additional duties would cause severe economic harm to the requester or other U.S. interests, and (3) the product is strategically important or related to the Made in China 2025 policy.
Importers quickly should begin compiling information they believe will contribute to their application requests for each product subject to the tariffs. We foresee that there will be a very large number of requests, and the sooner applications can be completed, the more likely those applications will get ahead of the inevitable backlog and administrative delays.
Proposed List 4
Trump had previously alluded to the slow pace of negotiations and suggested that 25% in additional duties would be placed on remaining Chinese-origin imports. On May 10, USTR Robert Lighthizer announced that at the direction of Trump, the USTR would “begin the process of raising tariffs on essentially all remaining imports from China, which are valued at approximately $300 billion.”
The notice proposes additional duties of up to 25% on List 4 goods, which includes practically all remaining Chinese-origin products and concerns an additional $300 billion worth of Chinese imports. It also outlines a timeline for public comment as well as public hearings on the proposed list. Notably, List 4 includes products that were previously removed from Lists 1 through 3 in response to public comment. The proposed list excludes some products, including pharmaceuticals, pharmaceutical inputs, certain medical goods, rare-earth minerals and critical minerals. As with prior lists, the USTR will conduct a public hearing and consider public comments before finalizing the list of products and the level of duties imposed.
Important dates are as follows:
- June 10 – Due date for requests to appear at the public hearing and submissions of summaries of expected testimony at the hearing.
- June 17 – Date of the public hearing and due date for submission of written comments.
- Seven Days After Last Day of Public Hearing – Due date for submission of post-hearing rebuttal comments.
Comments may address any aspect of the proposed action, including the tariff classifications subject to increased duties and whether such classifications should be retained or removed; the level of the additional duty rate, if any should be imposed; and the appropriate aggregate level of trade to be covered by the duties.
The USTR specifically requests that commenters address whether imposing increased duties on a specific product would be practicable or effective to eliminate China’s acts, policies and practices and whether doing so would cause disproportionate economic harm to U.S. interests, including small or medium-size businesses and consumers.
The notice states that the “United States and China intend to continue further discussions,” and President Trump has stated that he has not yet decided whether to impose the List 4 tariffs. President Trump also tweeted that he expected to meet Chinese President Xi at the G20 Summit in Japan, but this has not been confirmed.
China’s Retaliatory Tariffs
On May 13, China announced retaliatory tariffs on $60 billion worth of U.S. goods, building on a list it originally announced in August 2018. China had postponed implementation of the tariffs following the U.S.’s decision to keep List 3 tariffs at 10%. Goods hit by the highest rate include cooking oils, frozen vegetables, wine, beer and other beverages as well as industrial minerals and chemicals, textiles and clothing, jewelry, metal products, machinery parts, and consumer items ranging from home appliances to condoms.
In response to the U.S. decision to increase tariffs from 10% to 25% on $200 billion of Chinese goods (List 3), China announced an increase in tariffs on $60 billion of U.S. exports. China first announced an imposition of 5%, 10%, 20% and 25% tariffs on these $60 billion of U.S. goods on Aug. 3, 2018 (CN List 2). It reduced rates to 5% and 10% in September 2018 because the United States kept the tariff rate on List 3 at 10% indefinitely. China has now decided to restore the 5%, 10%, 20% and 25% tariffs effective June 1. However, it removed 67 automotive and auto part products that had tariffs temporarily suspended as a result of the Trump-Xi meeting in Buenos Aires. See the Peterson Institute website for translation of the $60 billion retaliation list as well as the $50 billion list (CN List 1).
At the same time, China’s State Council Customs Tariff Commission established a tariff exclusion process for its retaliatory tariffs against the U.S. Exclusion applications will be assessed in two batches. The commission will accept applications related to the CN List 1 from June 3 through July 5 and will accept CN List 2-related applications from Sept. 2 through Oct. 18.
Each exclusion application will be based on an eight-digit tariff code and is evaluated based on three factors: (1) difficulty of obtaining alternative goods, (2) economic damage to the applicant and (3) major structural impacts on the relevant industries (including industry development, technological advancement, employment, environmental protection, etc.) or social consequences. The application form is not yet available at http://gszx.mof.gov.cn.
Once an exclusion list is announced, China will cease imposing the retaliation tariffs on excluded products for one year. Within six months of the announcement of the exclusion list, companies can also apply for tariff refunds. Tariffs already collected on those products whose tariffs are canceled or suspended prior to the announcement of the exclusion list will not be refunded.
There are two main situations under which products could apply for tariff refunds – first, when an exclusion list is organized by tariff codes; second, when a product is part of a tariff code in an exclusion list and Chinese customs is capable of processing a refund. Chinese customs has an additional code on top of the product’s tariff code that may allow for further delineation in imposition of tariffs.
Exposure and Mitigation
Trade negotiations are ongoing, and it is possible, though unlikely, that a deal may be completed before the effects of this latest escalation go into effect – both in the United States and in China.
Tariff Engineering: Despite CBP’s resistance, the courts have affirmed that CBP can levy tariffs only on the condition of goods as imported. This has led importers in a variety of industries where high duties prevail to import products in unfinished or embellished forms to legally take advantage of classification provisions carrying a lower or no rate of duty. Ensure that you are importing goods as appropriately classified in their imported state, and determine whether that classification is subject to List 3.
Operational Engineering: If you cannot modify the tariff provision for the imported product, consider changing its country of origin. Shifting operations away from one country to another may allow a product to escape the duty increase. Note that for purposes of duty liability, CBP has determined that substantial transformation is the appropriate method of evaluation, even for goods imported from Canada and Mexico, which would ordinarily be subject to the specific rules of origin under the North American Free Trade Agreement (NAFTA).
Valuation: Utilize the first sale rule if possible. Under this rule, importers pay duty only on the price that a middleman pays the manufacturer rather than on the higher price the importer pays the middleman. While the additional tariffs still would apply to the import, the dutiable value would be significantly lower, resulting in a lower overall duty bill for products subject to Section 301 tariffs.
Various criteria must be met to ensure the first sale price reflects a sale that is clearly destined for the U.S. and conducted at arm’s length. Once confirmed, though, a validated first sale value can provide substantial duty savings. It can also serve as a type of long-term import benefit because use of first sale valuation would continue to provide a lower declared value even after the Section 301 tariffs are removed
Bonded Warehouses and FTZs: Goods admitted to a foreign-trade zone in privileged foreign status will retain their character and tariff classification as admitted even if they are manufactured into a product affected by the additional tariffs that may be withdrawn from the zone and entered for consumption in the United States. Additionally, goods otherwise subject to the additional tariffs could enter and be stored in a bonded warehouse for up to five years to avoid those duties if they (a) are exported directly from the warehouse or (b) enter for U.S. consumption once the additional tariffs have lapsed or a product-specific exclusion has been granted.
Duty Drawback: Goods that are imported and subsequently exported may be entitled to a refund of 99% of duties and fees. Importers that bring goods into the United States and later export them should consider whether such goods may be entitled to drawback.
Importers should continue to consider the classifications of their products and prepare for an exclusion process for any goods subject to List 3. Importers should also follow the developments related to List 4 and consider preparing comments in response. BakerHostetler’s international trade team can advise on tariff classification, country of origin determinations and mitigation measures for imports, as well as assist in the preparation of List 3 product exclusion requests and comments in response to proposed List 4.