On May 23, 2019, Varnum summarized recent developments regarding tariff increases to the so-called List 3 imports from China. To recap, in May 2019, the United States Trade Representative (USTR) announced an additional 25 percent ad valorem duty on List 3 imports from China. The announcement came after a breakdown in trade-related negotiations between the U.S. and China. USTR initially intended for these additional duties to apply to goods entering the country on or after June 1 or that were exported from China on or after May 10, but USTR subsequently extended the June 1 entry-based deadline to June 15. An open question, however, has been whether USTR will implement an exclusion-request process, as it did for List 1 and List 2 goods, whereby interested American parties may submit requests to exclude certain products from tariff increases.

On June 19 USTR answered that question in the affirmative. Beginning at noon Eastern Standard Time on June 30 USTR will open its online portal and begin accepting submissions for requests to exclude certain products. The deadline for exclusion requests is set for September 30, 2019.

In filing requests, interested parties should prepare to carefully address a number of issues, some of which may be designated as confidential and some of which must be made publicly available. For example, each request must specifically identify a product using Harmonized Tariff Schedule nomenclature and provide supporting data and rationale, such as whether and to what extent the exact product is available from other sources and whether efforts have been made to pursue those alternate sources. Attachments may be submitted to support a product's identification but such documents may not be maintained as confidential. USTR will not evaluate requests that identify a product with information that cannot be made available to the public.

Once a request is submitted through the USTR portal, interested parties are provided a 14-day window within which they may file responses, either in support or opposition. Such responses must also be submitted through the USTR portal and will become publicly available. If a response is filed, the original requesting party may file a reply within seven (7) days of either the response of the end of the 14-day period, whichever is later. Replies must similarly be available publicly.

USTR will periodically review and announce decisions on pending submissions. It will evaluate submissions on a case-by-case basis taking into consideration: (a) whether the product is identified with sufficient precision, (b) the stated rationale for the exclusion, and (c) whether an exclusion would undermine the government's objectives in connection with its Section 301 investigation. If an exclusion is granted, it will be effective as of September 24, 2018 and will remain in effect for one year following the publication of the exclusion determination.