U.S. Section 301 Tariffs
U.S.- China Trade War:
Update May 13, 2019:
After warning China against retaliation for the increase of LIST 3 to 25%, China stepped across that line on Monday May 12, by imposing tariffs against the United States. The USTR promptly announced LIST 4 the next day.
Update: May 6, 2019:
On Sunday, President Trump bluntly announced that the section 301 tariffs in LIST 3 will increase to 25% as of this Friday. (Since then, the USTR has confirmed that the 25% increase will be published on Tuesday May 7, and will take effect on 12:01 a.m., Friday, May 10.)
As recently as last week the news was filled with hope that after 6-months of intense trade negotiations, the stage had been set for a potential deal between the United States and China. The two largest economies in the world were moving to resolve their differences over the course of two final delegation meetings (one in Beijing and one in Washington D.C.) The final meeting in Washington had envisioned a 100-person Chinese delegation to finalize a 110 to 120 page agreement. That might have been followed-up on later with a meeting between President Trump and China’s Premier Xi Jinpeng.
Against that backdrop, USTR Robert Lighthizer flew to Beijing last week to drive the agreement forward, however, reports are that China backtracked on the fundamental legal reforms that had already been considered settled across the course of the 10-rounds of trade negotiations. The provisions at issue related to the enforcement mechanisms that would have addressed China’s continued misappropriation of U.S. intellectual property. The precise reason for the change in posture is still unknown, and there is speculation that the negotiating shift was the result of a changing “hawks-versus-doves” dynamic within the PRC. According to Lighthizer: “The bottom line is that we felt like we were on track to get somewhere but over the course of the last week or so we have seen an erosion in commitments by China. I would say, retreating from specific commitments that had already been made in our judgment… These were substantial, not minor ones. . . We can speculate as to why that happened. My own view is that these were serious, real commitments that were enforceable and that some people in China objected to that.”
Update: April 1, 2019:
Trade talks have been ongoing in “vigorous engagement,” according to the USTR’s report on foreign trade barriers. China however “seeks to protect many domestic industries through a restrictive investment regime” and “may condition investment approval on a requirement that a foreign enterprise transfer technology, conduct research and development in China, satisfy exporter local content requirements or make valuable, deal-specific commercial concessions”.
March 1, 2019 update:
LIST 1 approval/denial ratio is now 3,300 approved to 4,500 denied. This translates to a 42% rate of approval.
Trump’s extension to keep LIST 3 at 10% pending trade discussions will soon be released to the Federal Register; meanwhile, CBP has already adjusted programming in ACE.
February 18, 2019 Update
In the federal budget which passed Friday, Congress has included a mechanism demanding that the Trump administration (USTR) to open a process for importers to request and obtain 1-year exclusions from the Section 301 tariffs on LIST 3 goods from China. See, Explanatory Statement, Consolidated Appropriations Act, 2019, page 38.
Importers with significant LIST 3 exposure should immediately begin the process of preparing for these exclusion filings. The scope of this LIST 3 covers an enormous amount of trade ($200 billion in goods from China).
Importers may use the USTRs’ tariff tool to review coverage issues, while brokers can assist their clients using new ACE reports TR-004 and TR-005 which identify aggregate and line imports subject to safeguards.
In the interim, the Administration has explained that it would be willing to delay the LIST 3 increase from 10% to 25% if China’ comes to the table with substantive structural proposals. Thus, China has not even been willing to acknowledge that a problem exists in its polities, and has not been willing to entertain substantive changes.
January 2019 Update:
After holding December 2018, talks in China, the United States and China continue negotiations in January in Washington D.C. The question is whether a workable solution can be reached prior to the March 1 deadline. Currently, there are no reports of China’s agreement in principle that its current policies as regarding IP theft and forced technology transfers are unfair or should be in anyway changed. Instead, China has proposed massive purchase offsets - which would over time tend to to politically “capture” certain U.S. demographics, such as LNG and agriculture.
If talks fall through, the negotiations could be extended. Or the tariffs on $200 billion in US-China imports (on the USTR’s LIST 3) could be allowed to ratchet-up from 10% to 25%. Thereafter, the USTR also maintains a LIST 4 on the remainder of $250+ billion in trade from China that is not already subject to 301 tariffs or exempted.
Background Information on Section 301
Actionable conduct under section 301(b)(1) includes, acts, policies and practices of a foreign country that are unreasonable or discriminatory, and which burden or restrict U.S. commerce.
Unreasonable actions are those that while not necessarily in violation of, or inconsistent with, the international legal rights of the United States are otherwise viewed as unfair and/or inequitable.
These provisions exist as safeguards for any WTO member who feels its economy is being damaged by such conduct of another country.
The current section 301 duties have therefore been premised on acts, policies, and practices of the Government of China as they relate to technology transfer, intellectual property, and innovation.
In August of 2017, as a prelude to these section 301 duties, the President called for the USTR to undertake a section 301 investigation. The USTR's Section 301 Report (3/2017) documented the already widely-appreciated conclusion that China’s acts, policies, and practices do involve harmful acquisition of U.S. technologies, and noted that these practices are also important elements of China’s ‘‘Made in China 2025’’ policies.
Following the report, President Trump issues a Presidential Memorandum announcement on March 22, 2018, describing the range of actions that the United States would pursue in response, and directing the USTR to compile the first list of tariff items against which 25% ad valorem duties would be assessed.
USTR's LIST 1
Background: On April 3, the USTR released its Notice on the proposed strategy to confront the discriminatory technology transfer and intellectual property practices of China which followed on the President's Memorandum of March 22. The Notice provided a proposed list of 1,300 separate tariff lines against which the 25% section 301 duties would be imposed on goods from China, including industries such as aerospace, information technology, communications, metals, and machinery. The response and hearing deadlines were set out, as follows:
April 23, 2018: Due date for filing requests to appear and a summary of expected testimony at the public hearing and for filing pre-hearing submissions.
May 11, 2018: Due date for submission of written comments.
May 15, 2018: The Section 301 Committee will convene a public hearing in the main hearing room of the U.S. International Trade Commission, 500 E Street SW Washington DC 20436 beginning at 10:00 am.
May 22, 2018: Due date for submission of post-hearing rebuttal comments.
Following that activity, the USTR analyzed these comments, and published a final determination on the tariff action (known as LIST 1). On May 19, the White House released a joint statement (with the government of China) regarding the status of trade consultations, and Treasury Secretary Steve Mnuchin has stated that the administration is “putting the trade war on hold.” That "cease-fire" failed to hold and by May 29, a White House Statement set a deadline of June 15 for the announcement of the final section 301 percent tariffs.
The USTR issued its revised LIST 1, and the 25% tariffs went into effect on July 6, 2018. (LIST 1 represented a reduction of the original proposal based on numerous comments received. In total, 515 product lines were removed from the original 1,333 lines.)
Thereafter, China's retaliatory duties were swiftly announced to negate the US action. On June 15th, the White House pledged to add another round of duties to compensate (LIST 2). The window to file LIST 1 exclusion requests to the USTR closed on October 9th, 2018.
USTR's LIST 2
The Exclusion request process has also been announced. The deadline for such exclusion requests falls on December 18, 2018.
Background history: On June, 14, 2018, President Trump gave a green light to the USTR's release of the second list of additional 301 tariffs as a response to China's retaliatory duties. The second proposed list (LIST 2) contained 284 additional tariff lines and the announced schedule set out the dates for comments to the proposed LIST 2, as follows:
June 29, 2018: Due date for filing requests to appear and a summary of expected testimony at the public hearing and for filing pre-hearing submissions.
July 23, 2018: Due date for submission of written comments.
July 24, 2018: The Section 301 Committee will convene a public hearing in the main hearing room of the U.S. International Trade Commission, 500 E Street SW Washington, DC 20436 beginning at 9:30 a.m.
July 31, 2018: Due date for submission of post-hearing rebuttal comments.
On August 7, 2018, Commerce announced the final List 2 representing $16 billion worth of imports from China that will be subject to a 25 percent additional tariff as part of the U.S. response to China’s unfair trade practices. (USTR kept 279 of the original 284 tariff lines.) On August 16, the USTR announced revised LIST 2 301 duties, effective as of August 23, 2018.
USTR's LIST 3
On September 17, President Trump announced the imposition of LIST 3 at the 10% rate (until the end of the year) and effective on September 24, 2018. On January 1, the tariffs will rise to 25 percent. The announcement also indicates that given retaliation by China, the United States will move forward with tariffs on LIST 4 representing approximately $257 billion in additional products from China.
Background history: On July 11, 2018, the USTR released the third list of 6,000+ tariff lines in response to China's continued retaliation. LIST 3 is estimated to represent $200 billion in inbound China-U.S. trade. Whereas lists 1 and 2 provided for 25% tariffs, LIST 3 de-escalates the conflict by imposing only 10% rates - until January 2019.
Per the Federal Register publication, the follows deadlines will apply to the proposed third list:
July 27, 2018: Due date for filing requests to appear and a summary of expected testimony at the public hearing, and for filing pre-hearing submissions. (Deadline extended to August 13, 2018)
August 17, 2018: Due date for submission of written comments. (Deadline extended to September 5, 2018.)
August 20-23, 2018: The Section 301 Committee will convene a public hearing in the main hearing room of the U.S. International Trade Commission, 500 E Street SW, Washington DC, 20436 beginning at 9:30 am.
August 30, 2018: Deadline for submission of post-hearing rebuttal comments.
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CURATED HISTORY OF SECTION 301 EVENTS:
May 13, 2019: USTR: LIST 4 tariffs announced.
May 9 & 10, 2019: CBP: CSMS instructions for LIST 3 declarations given increase to 25%.
May 9: USTR: 3rd round of product exclusions.
May 8, 2019: USTR: LIST 3 increase announcement.
May 6, 2019: POTUS: Failed trade negotiations. LIST 3 to increase to 25%. LIST 4 to be readied at 25%.
May 4, 2019: USTR: LIST 3 exclusions process to open.
April 25, 2019: Sen. Grassly states 301 tariffs could be removed in stages by both countries. Trade negotiations continue: April 30 (Beijing) and May 8 (Washington DC).
April 19, 2019: CBP: CSMS #19-000212: Submitting Imports of Third Group of Products Excluded from Section 301 Duties.
April 18, 2019: USTR: 3rd Tranche of Product Exclusions: China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation
April 10, 2019: CNBC: Treasury Secretary Mnuchin says US and China have agreed on the trade deal enforcement mechanism. “…if we can complete this deal it will be the most significant economic development… in 40 years… We’ve pretty much agreed on an enforcement mechanism. We’ve agreed that both sides will establish enforcement offices that will deal with the ongoing matters. This is something both sides are taking very seriously… I’m not going to comment on the specifics of the tariff and what would stay and what would go away… ”
April 1, 2019: USTR: Report on foreign trade restrictions.
March 26, 2019: Xinhua: Opening up "a distinctive symbol" of China today: vice premier
March 22, 2019: CBP: CSMS #19-000155: Submitting Imports of Second Group of Products Excluded from Section 301 Duties.
March 21, 2019: USTR: Second list of LIST 1 section 301 exclusions.
March 20, 2019: POTUS: President Trump states that the agreement being negotiated with China would not end section 301 tariffs, those tariffs will stay in place for a “substantial period of time. . . because we have to make sure that if we do the deal with China, that China lives by the deal.”
March 5, 2019: Federal Register: USTR Suspends LIST 3 increase “until further notice.”
March 5, 2019: WSJ article: All tariffs could come off.
February 27, 2019: Congress: Testimony of USTR, Robert Lighthizer.
February 28, 2019: House: Explanatory Statement, Consolidated Appropriations Act, 2019, page 38.
February 10, 2019: United Nations: UN Conference on Trade and Development Report.
February 8, 2019: CBP: CSMS #19-000052: Submitting Imports of Products Excluded from Section 301 Duties.
January 30, 2019: CBP: CSMS CSMS# 19-000020: Sect. 201, 232, and 301 Reports Now Available in ACE to Importers and Brokers.
December 27, 2018: USTR: Notice of first LIST 1 exclusions/
December 1, 2018: G20: Trump and Xi reach framework for negotiation. LIST 3 increase from 10% to 25% is delayed.
November 30, 2018: In advance of G20, the USTR hints at more tariffs based on automobiles and labor rights.
November 13, 2018: Washington Post: Pence on China: “I don’t think it’s a matter of promises. We’re looking for results. We’re looking for a change of posture.”
Nov. 15, 2018 : WSJ article: Trump Forged His Ideas on Trade in the 1980s—and Never Deviated
November 13, 2018: Shanghai Trade Expo: Xi Jinpeng promises to open China’s markets.
October 10, 2018: Congressional-Executive Commission on China: Annual Report.
September, 21, 2018: CBP: CSMS #18-000554: Section 301 Trade Remedies Assessed on China; 3rd List of Products Subject to 301.
September 20, 2018: USTR: Federal Register publication of LIST 3 duties: effective 9/24.
September 18, 2018: USTR: Exclusion process for LIST 2. Deadline: December 18, 2018.
September 17, 2018: Whitehouse: Announces duties against $200 Billion in Chinese Goods (LIST 3). Effective date: September 24, 2018.
September 10, 2018: NYT: U.S. Weighs Sanctions Against Chinese Officials Over Muslim Detention Camps
August 24, 2018: USTR solicits public comment on China's compliance with WTO standards.
August 22, 2018: USTR extends comment period on List 3.
August 21, 2018: CBP: CSMS #18-000493: Update re: Section 301 Trade Remedies procedures.
August 20, 2018: American Association of Port Authorities (AAPA): Testimony in opposition to 301 tariffs.
August 19, 2018: ITC: publishes Year in Trade Report for 2017.
August 16, 2018: CBP: Announcement of "Safeguard" Informed Compliance publication to come at 2018 Trade Symposium in Atlanta.
August 15, 2018: USTR announces LIST 2 section 301 duties will be effective as of August 23, 2018.
August 15, 2018: Rumors abound possible LIST 4 action coming in advance or on heels of talks with China.
August 15, 2018: Telecommunications Industry Association: Opposes tariffs on networking equipment.
August 14, 2018: Forbes: Trump is Losing his Trade War
August 8, 2018: Peak Pegasus: A symbol of the trade war?
August 7, 2018: Commerce: Final List 2 announced. This represents $16 billion worth of imports from China that will be subject to a 25 percent additional tariff as part of the U.S. response to China’s unfair trade practices. (USTR kept 279 of the original 284 tariff lines.) The duties are effective on August 23.
August 6, 2018: USTR: review of Turkey’s GSP Eligibility announced (in Response to Retaliatory Tariffs)
August 4, 2018: List 3 comments deadline extended to September 5, 2018.
August 3, 2018: China promptly announces its tariff retaliation.
August 1, 2018: POTUS: List 3 increase proposed to 25% tariff rates.
July 11, 2018: USTR: Third list released. (the 6,000+ tariff lines are estimated to comprise $200 billion in inbound goods from China).
July 11, 2018: Senate rebukes POTUS trade war (88-to-11).
June 28, 2018: CBP: CSMS #18-000409: Section 301 Trade Remedies to be Assessed on Certain Products from China Effective July 6.
June 28, 2018: USTR: Voices rebuttal statement against retaliatory duties.
June 28, 2018: White House report cites "Chinese Economic aggression."
June 15, 2018: White House: Statement: U.S. will pursue additional duties to compensate for China's Retaliation.
June, 14, 2018: President gives green light to 301 tariffs on $50B Chinese goods; China vows a response in kind.
USTR issued LIST 1 representing the a final list of products against which duties will go into effect on July 6, 2018. (The list represents the reduction of the original proposed list based on comments received. 515 product lines were removed from the original 1,333 lines.)
A second proposed list (LIST 2) has been released containing 284 newly proposed tariff lines.
June 9, 2018: After G-7, Canada pledges to retaliate against the United States tariffs on steel and aluminum products in defense of Canadian workers, leading President Trump to issue 2 caustic tweets:
"Based on Justin’s false statements at his news conference, and the fact that Canada is charging massive Tariffs to our U.S. farmers, workers and companies, I have instructed our U.S. Reps not to endorse the Communique as we look at Tariffs on automobiles flooding the U.S. Market!” Mr. Trump wrote."
“PM Justin Trudeau of Canada acted so meek and mild during our @g7 meetings, only to give a news conference after I left saying that, ‘US Tariffs were kind of insulting’ and he ‘will not be pushed around.’ Very dishonest & weak. Our Tariffs are in response to his of 270% on dairy!”
Meanwhile, despite the trade war, the National Retail Federation expects record imports (further exacerbating the trade deficit).
May 31, 2018: China cuts tariffs on 1,449 categories of goods from most favored nations will be reduced by an overall average of about 60 percent. China also announced a new negative list will be published by June 30 possibly reducing investment barriers.
May 30, 2018: Trilateral meeting: Japan, US, EU: Joint Statement against China's forced technology transfers and forced investments.
May 29, 2018: POTUS: White House Statement: Section 301 tariffs to be finalized, despite US-China discussions.
May 19, 2018: United States and China: Joint Statement Regarding Trade Consultations
April 23, 2018: Customs: CSMS #18-000301: Allows CBP 300 days to reject entries subject to sec. 232 & sec. 301.
April 12, 2018: POTUS proposes rejoining TPP.
April 11, 2018: Senator Grassley (R-Iowa) quote following trip to China: [China] “will do anything legal or illegal, moral or immoral, ethical or unethical ... to get ahead and stay ahead.” Lawmakers calling for TPP and NAFTA as bulwarks.
April 6, 2018: POTUS: Statement on China Trade War: directing USTR to look at additional tariffs and to plan for the protection of US industry (farmers).
April 5, 2018: Reuters: China tariffs to go into effect Monday.
April 3, 2018: USTR Notice of Determination and Request for Public Comment re: Section 301 List of Products against which duties may be applied.
March 22, 2018, POTUS: Memorandum announces the section 301 process.
August 24, 2017: USTR announces a section 301 investigation on China's practices on Technology Transfer, Intellectual Property, and Innovation.
August 14, 2017: POTUS: Memorandum calling for section 301 investigation.
April 2011: Trump: statement that as president, he would tell Beijing: “Listen, you motherf—ers, we’re going to tax you 25%!”