Biden Administration Unveils Long-Awaited Process to Reinstate China Product Exclusions

On October 5, 2021, the United States Trade Representative (USTR) announced the Biden Administration’s highly-anticipated China trade policy, including a comment request process that will be used to determine whether Section 301 product exclusions should be reinstated for certain China-origin products that are currently subject to additional ad valorem tariff rates between 7.5 and 25%. Please find additional details on this reinstatement process and the trade policy implications below.

A link to the Federal Register Notice can be found here.

In a Nut Shell

  • The USTR request for comment only covers 549 expired product exclusions (a list of these products can be found here).
  • Comments must be filed by December 1, 2021. Based on the submitted comments, the USTR will determine which of the 549 expired product exclusions will be reinstated and such reinstatement would apply retroactively to October 12, 2021.  
  • Importers of these products (which include: certain prepared meal products, steel fasteners, and hand tools, motors and transmission parts, backpacks and duffle bags, parts for industrial machinery, and various production materials ranging from chemicals and minerals to plastics, textiles, and base metals) should consider filing comments to reinstate the Section 301 exclusion. There may also be an opportunity to obtain refunds on duties paid on products granted exclusions.
  • The potential “reinstatement” of such previously granted product exclusions is part of a larger restructuring of the U.S.’s bilateral trade relationship with China. Initial priorities for the U.S. “re-coupling” with China will include enforcement of commitments in the phase-one agreement and the possibility of additional Section 301 investigations to combat certain nonmarket Chinese trade practices. 

“Reinstatement” of Section 301 Exclusions 

Pursuant to findings based on Section 301 of the Trade Act of 1974 (19 U.S.C. § 2411), USTR imposed additional duties on four tranches of products between June 20, 2018, and January 22, 2020. The tranches are known as “List 1”, “List 2”, “List 3”, “List 4A” and “List 4B” and cover approximately $550 billion worth of yearly imports from China.

  • Products on Lists 1-3 are currently subject to an additional 25% tariff,
  • Products on List 4A are currently subject to an additional 7.5% tariff,
  • Products under List 4B are not currently subject to any additional tariff.

When the Section 301 tariffs were implemented, the USTR established a process to exclude certain products on List 1 – List 4A from their corresponding Section 301 tariff. Aside from the product exclusions that were granted in relation to the COVID-19 pandemic, the final set of product exclusions extended by the USTR covered 549 product exclusions and expired between December 31, 2020, and April 18, 2021. Since the expiration of these product exclusions, the China-origin products within these 549 product categories have been subject to an additional 7.5 to 25% tariff upon importation.

Comment Process for Reinstatement
On October 5, 2021, the USTR requested comments to evaluate whether the 549 product exclusions should be reinstated. This comment submission window is between October 12, 2021, and December 1, 2021, and all comments must be submitted through the USTR Public Docket Portal. The comments can be made by a party seeking to support or oppose the reinstatement of one of the 549 product exclusions, whether or not such party previously submitted an exclusion request.

Based on the submitted comments, the USTR will evaluate whether the 549 product exclusions should be reinstated on a case-by-case basis through assessment of the following factors:

  • Whether the particular product and/or a comparable product is available from sources in the United States and/or in third countries.
  • Any changes in the global supply chain since September 2018 with respect to the particular product or any other relevant industry developments.
  • The efforts, if any, the importers or U.S. purchasers have undertaken since September 2018 to source the product from the United States or third countries.
  • Domestic capacity for producing the product in the United States.
  • Whether the imposition of additional duties on the particular product would cause severe economic harm to the requester or other U.S. interests.
  • Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.

Any reinstatement granted by the USTR would be retroactive to October 12, 2021.

Scope of Products Eligible for Reinstatement
The possible “reinstatement” of Section 301 product exclusions only covers the 549 product exclusions that expired between December 31, 2020 and April 18, 2021. Determining whether an imported product is eligible for this reinstatement requires matching the product’s characteristics and Harmonized Tariff Schedule (HTS) classification to the “exclusion product description” on USTR’s list of 549 product exclusions. In summary, these product exclusions eligible for consideration consist of the following:

Section 301 List Product Exclusions Section 301 Tariff Rate
List 1 137 product categories classified under HTS chapters 84, 85, 86, 87, 90 25%
List 2 59 product categories classified under HTS chapters 39, 73, 84, 85, 86, 87, 90 25%
List 3 266 product categories classified under HTS chapters 3, 8, 16, 28 – 29, 32, 34, 37 – 40, 42, 44, 48, 50 – 51, 54 – 58, 60, 65, 68 – 70, 73, 75, 76, 82 – 85, 87, 90 – 91, and 94 25%
List 4A 87 product categories classified under HTS chapters 1, 5, 34, 39 – 40, 48 – 49, 52, 55, 61 – 63, 65, 72, 84 – 85, 90 – 92, and 94 – 97 7.5%

The commodities within these product categories include certain:

  • Food products, personal care products, chemicals and minerals, wood and paper products, textile materials, stone and ceramic products, glass products, optical and medical instruments, and measuring and checking apparatuses;
  • Base metal products (e.g., steel fasteners and hand tools as well as articles of iron, steel, nickel, and aluminum);
  • Vehicles and their parts (e.g., work trucks, motorcycles, and automotive parts such as motors and transmission components);
  • Machines and appliances (e.g., parts for printing machines, cutting machines, drilling machines, sewing machines, vacuums, heaters, air conditioners, and refrigerators); and
  • Consumer products (e.g., backpacks, duffel bags, leather accessories, bicycles, recreational sporting goods, and furniture).

First Steps Towards Realigning the U.S. – China Trade Relationship

The “reinstatement” of previously granted exclusions is part of a larger restructuring of the U.S.’s bilateral trade relationship with China. Following a months-long internal policy review, United States Trade Representative (USTR) Katherine Tai outlined the Biden Administration’s U.S. – China trade policy during remarks at the Center for Strategic and International Studies on October 4, 2021.

Though the U.S. will maintain a worker-centered trade policy, focused primarily on domestic investments to enhance American competitiveness at home, it will also pursue four initial steps  to realign the U.S. – China trade relationship:

  1. The U.S. will discuss with China its performance under the phase-one agreement negotiated by the Trump Administration. The USTR will continue to engage with China on implementing and maintaining the phase-one agreement, including purchasing commitments benefiting American industries that are set to expire at the end of the year. However, USTR Tai emphasized that the phase-one agreement is only a “starting point” for resuming and resetting bilateral contact between the U.S. and China, and the USTR will move beyond the initial agreement in determining how best to navigate the relationship with China in the near- and long-term. USTR Tai noted that “you have to start somewhere if you want to get somewhere else,” but clarified that further discussions with China will be dictated by their engagement on phase-one.
  2. The U.S. will begin a “targeted tariff exclusion process” to serve the economic interests of U.S. businesses, especially small- and medium-sized businesses. As detailed above, the USTR unveiled a narrow process for requesting reinstatement of 549 previously extended exclusions from the additional Section 301 tariffs. It is unclear whether an additional, more broad process for requesting new exclusions is forthcoming. USTR Tai noted that the USTR will consider the potential for additional exclusion processes “as warranted,” and will continue to prioritize the availability of domestic or third-country alternatives in granting exclusions.
  3. The U.S. will use the full range of tools available, and develop new tools as needed, to address larger trade policy concerns with China. Though helpful as a starting point for engagement with China, the phase-one agreement failed to “meaningfully address” certain fundamental concerns, including China’s state-centered and nonmarket trade practices. Throughout her speech, USTR Tai emphasized that Section 301 is “a very, very important” trade enforcement tool to defend the interests of the American economy. There is no indication that the Biden Administration intends to remove the additional Section 301 tariffs. USTR Tai did not foreclose the possibility for further tariffs pursuant to Section 301 and, in fact, referenced the possibility of a new investigation, which may target Chinese subsidies.
  4. The U.S. will continue to work with allies to shape the rules for fair trade and facilitate a “race to the top” for market economies and democracies. USTR highlighted the importance of working with “like-minded partners” to build fair and open markets enabling healthy competition, which she said was the “core” of the U.S. trade strategy. The goal is to achieve shared prosperity for American businesses, as well as U.S. allies and the larger global economy.

Importantly, USTR Tai’s remarks highlighted that the U.S. would continue to engage with China, ruling out the “decoupling” of U.S.-China supply chains as a “realistic outcome” and a Biden Administration priority. Instead, the initial U.S. policy towards China will focus on a “re-coupling” of the trade relationship, with the U.S. engaging from a position of strength rather than dependency. Though the Biden Administration intends to reengage with China, USTR Tai did not provide a timeline for bilateral discussions.

What Companies That Import Products From China Should Do

This comment process may result in significant potential duty savings opportunities on a wide range of products from China. Importers are urged to review their imports from China and if any of their imports are covered by the 549 product exclusions, consider filing written comments. Importers may also have the opportunity to recover duties paid in connection with exclusions ultimately granted.

Arent Fox has developed a program to assist importers in identifying these products, estimating the impact from these tariffs, and recovering duties paid on excluded products. If you would like more information, please contact any Arent Fox trade group member listed below.

Arent Fox’s International Trade and Investment team is experienced both in counseling companies trading with China and in mitigating the effects of Section 301 tariffs. If you would like more information, please contact any Arent Fox Customs & Import Compliance group member listed below.


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