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  September 12th, 2019 | Written by


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  • Many companies find they cannot quickly change their supply chains or stop doing business with China.
  • List 3 goods have been subject to a 25 percent tariff since May 2019.
  • Companies should consider seeking official exclusions from the tariffs with the Office of the USTR.

Despite recent plans to revive moribund negotiations, the prospects for a near term solution to the U.S.- China trade conflict are very much in doubt. The United States has expanded the tariffs already in place to cover nearly all imports from China, and in response China has hit back with tariffs of its own where it may hurt U.S. exports the most, mainly in swing-state industries such as farming and automobile production. 

The stock markets and economic growth in each country have increasingly shown signs of strain from the trade war and a cease-fire could provide a welcome respite. Although the Trump administration has agreed to renew trade negotiations in early October, it would be irresponsible to expect these talks to arrive at a meaningful resolution based on how entrenched each side has become. Leaving fate in the hands of the negotiators is risky business since prior negotiations have stalled or led to further escalations. So what can companies do to protect their interests and to mitigate the impact of the tariffs? 

Many companies find they cannot quickly change their supply chains or stop doing business with China. This is because U.S. importers and producers are dependent on Chinese parts makers. Some of these parts may not be available in the United States or third countries. Moving production to the United States could itself take years. But in the short term, companies can take certain steps to mitigate the impact of the tariffs. 

First, companies should consider seeking official exclusions from the tariffs with the Office of the United States Trade Representative (USTR). Since importers are responsible for paying the tariff amounts, it is crucial that they are well informed about the exclusion process and consider filing requests as soon as possible since deadlines are looming. 

Tariffs on imports from China have been divided into four separate Lists; goods on Lists 1 and 2 encompass roughly $50 billion of imports from China and their exclusion process has closed. Lists 3 and 4 cover the remaining $500 billion of imports and are entering their final phase. 

List 3 goods have been subject to a 25 percent tariff since May 2019, but the rate is set to increase to 30 percent on October 15, 2019 (originally the increase was set for October 1, but President Trump has extended it by two weeks as a gesture of “good will” towards China). The deadline for requesting List 3 exclusions is September 30. 

List 4 goods, or all goods not presently covered by Lists 1-3, are subject to a 15 percent tariff effective September 1 (List 4A), or December 15 (List 4B). The exclusion process for List 4 has yet to be announced, but is likely to resemble that which applied to the previous Lists. 

What makes an exclusion request successful? This has been like reading tea leaves, although certain patterns have emerged. Namely, successful applications are extremely detailed and provide adequate information for USTR staff on which to base their opinion. Products not manufactured in the United States, products for which the manufacturer has a U.S. or foreign patent, or products which are difficult to manufacture in the United States due to high costs or environmental concerns are examples of those for which the USTR has approved exclusions. 

Other factors which have shown to affect exclusions include: potential U.S. jobs lost; financial impact on an industry sector; store of facility closings; customer demographics; ability of the customers to accept some of the tariff costs; geographic location; whether the products are included in the “Made in China 2025” policies; capacity of U.S. manufacturers to produce the quantities and quality required for the product; impact on swing states in the next presidential election; or effective public relations. 

However, an exclusion request can take time to submit, and often much longer for the USTR to reach a determination. Exclusions have also been rare. 

For those looking for another option, a change in the product’s customs classification may provide a viable option. U.S. Customs and Border Protection can only levy tariffs on the condition of goods as imported. When goods are imported, they are assigned a specific classification under the Harmonized Tariff Schedule (HTS) subheading. Each subheading for Chinese imports is assigned a specific tariff rate depending on where it falls on Lists 1-4. U.S. companies can work with their Chinese suppliers to determine whether certain products could be shipped in separate parts, finished or unfinished, or in embellished forms so that they legally fall under an HTS subheading assigned to a lower tariff rate. 

For some U.S. companies, passing on of the tariff cost to their consumers may be preferable. But for many, this is not a competitive solution. Some customers simply will not tolerate the increased pricing and demand for the products would correspondingly decline. 

While it is not always a quick solution, U.S. companies concerned about the duration of the current trade war may also consider diversifying their sourcing away from China altogether by shifting some or all manufacturing to the United States, or to a third country. A product with a non-China country of origin would not be subject to the current tariffs. However, country of origin rules are not harmonized internationally and different rules may apply under free trade agreements, or the substantial transformation test. Therefore, it is important for importers to understand the applicable rules and carefully verify the country of origin when considering this option. 

Finally, another approach would be to lower the dutiable value of the product upon importation to the United States through the so-called “first sale” valuation. In this scenario, U.S. importers pay duty on the price that a trading company pays the manufacturer instead of the higher price the importer pays the trading company. While the tariffs would still apply in this case, their impact would be less severe because the dutiable value would be significantly lower. 


Mark Ludwikowski is the leader and Courtney Taylor is an Associate of the International Trade practice of Clark Hill, PLC. They are resident in the firm’s Washington D.C. office and can be reached at 202-772-0909; and