Understanding the List 4 A Exclusion Portal Process for China 301 Duties

Understanding the List 4 A Exclusion Portal Process for China 301 Duties

As The Vision Council reported on Oct. 19, 2019, the United States Trade Representative (USTR) published procedures for requesting an exclusion from additional China 301 duties on products classified in a tariff subheading set out on Annex A to List 4 (published on Aug. 20, 2019), known as List 4 A. List 4 A includes spectacle lenses, spectacle frames, sunglasses, reading glasses, eyeglasses, goggles and many low vision devices. The opportunity to seek an exclusion from the China 301 duties for these products runs from noon on Oct. 31, 2019 to Jan. 31, 2020.

While The Vision Council will submit exclusion requests for the various List 4 A optical products, to date no exclusions have been granted to requests filed by trade associations during the exclusion processes for Lists 1, 2 or 3. Instead, some individual companies have been successful getting exclusions for their products. Therefore, The Vision Council recommends that each member interested in pursuing the exclusion process submit request(s) independent of The Vision Council's anticipated filings. The process, described below, requires information personal to each requestor. Each requestor can raise arguments specific to the uniqueness of its products, which could result in a narrowly drafted exclusion benefitting only the requestor's product.

That being said, if an exclusion is granted for a specific product, any importer can utilize that exclusion (and apply for retroactive refunds of duty paid) if its imported product is within the express scope of the exclusion. In other words, an exclusion tailored to cover "spectacle frames of plastic" would apply to all imports of spectacle frames made of plastic, but not made of other materials.

The process for seeking an exclusion is as follows:

  • Create an account with the USTR's exclusion portal.
  • Gather your facts. The Vision Council has taken the questions you will need to answer and created this template for your use. As you complete the template, you will need to provide the following information and more in support of an exclusion request:
    • Quantity and value of Chinese-origin product you purchased in 2017, 2018 and the first half of 2019;
    • Quantity and value of U.S. origin product you purchased in 2017, 2018 and the first half of 2019;
    • Quantity and value of third country-origin product you purchased in 2017, 2018 and the first half of 2019;
    • Your gross revenue for 2018 and the first quarter of 2019;
    • The percentage of your gross sales attributable to the Chinese product for which an exclusion is sought;
    • Whether the product is available only from a Chinese source, or sourced in other countries; and,
    • Whether the additional duties creating severe economic injury to your company or to others.
  • Log into your USTR account and enter your answers into the online portal.
    • Questions with a "*" are mandatory fields
    • Answers to questions with the word "Public" will be available for public viewing in the exclusion portal
    • Answers to questions with the letters "BCI" (business confidential information) will not be available for public viewing in the exclusion portal
  • Be prepared to wait months for a response. USTR is still working through exclusion requests for earlier product lists. In the meantime, you will need to continue paying the China 301 duties. If an exclusion is granted that covers your product, then you will have the opportunity to apply for retroactive refunds so long as liquidation of your entries has not become final. You will need to file administrative protests with U.S. Customs and Border Protection in order to seek refunds on liquidated entries.

General questions about this issue can be directed to Rick Van Arnam, The Vision Council's regulatory affairs counsel, at rvanarnam@barnesrichardson.com. In addition, Rick is available for individual engagement for those members looking for more assistance navigating the application and possible refund processes.