Federal Register, Volume 83 Issue 181 (Tuesday, September 18, 2018)
[Federal Register Volume 83, Number 181 (Tuesday, September 18, 2018)]
[Notices]
[Pages 47236-47238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20246]
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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
[Docket Number USTR-2018-0032]
Procedures To Consider Requests for Exclusion of Particular
Products From the Additional Action Pursuant to Section 301: China's
Acts, Policies, and Practices Related to Technology Transfer,
Intellectual Property, and Innovation
AGENCY: Office of the United States Trade Representative.
ACTION: Notice and request for comments.
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SUMMARY: In a notice published on August 16, 2018 (83 FR 40823), the
U.S. Trade Representative (Trade Representative) determined to take an
additional action in the Section 301 investigation of China's acts,
policies, and practices related to technology transfer, intellectual
property, and innovation. The August 16 notice also announced that the
Trade Representative would establish a process by which U.S.
stakeholders may request that particular products classified within a
tariff subheading covered by the additional action be excluded from the
additional duties. This notice sets out the specific procedures and
criteria related to requests for product exclusions, and opens up a
docket for the receipt of exclusion requests.
DATES: USTR must receive all requests to exclude a particular product
by December 18, 2018. Responses to a request for exclusion of a
particular product are due 14 days after the request is posted in
docket number USTR-2018-0032 on www.regulations.gov. Any replies to
responses to an exclusion request are due the later of 7 days after the
close of the 14 day response period, or 7 days after the posting of a
response.
ADDRESSES: USTR strongly prefers electronic submissions made through
the Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting requests for exclusion, responses to
requests, and replies to responses in section B below. The docket
number is USTR-2018-0032.
FOR FURTHER INFORMATION CONTACT: For questions about the product
exclusion process, contact Assistant General Counsels Megan Grimball or
Philip Butler, or Director of Industrial Goods Justin Hoffmann at (202)
395-5725. For questions on customs classification or implementation of
additional duties, contact traderemedy@cbp.dhs.gov.
SUPPLEMENTARY INFORMATION:
A. Background
On August 18, 2017, the Office of the U.S. Trade Representative
(USTR) initiated an investigation into certain acts, policies, and
practices of the Government of China related to technology transfer,
intellectual property, and innovation (82 FR 40213).
In a notice published on April 6, 2018 (83 FR 14906), the Trade
Representative announced a determination that the acts, policies, and
practices of the Government of China covered in the investigation are
unreasonable or discriminatory and burden or restrict U.S. commerce.
The April 6 notice also invited public comment on a proposed action in
the investigation, in the form of an additional 25 percent ad valorem
duty on products from China classified in a list of 1,333 tariff
subheadings, with an annual trade value of approximately $50 billion.
After review, the Trade Representative determined to take an
initial action in the investigation, and to consider an additional
proposed action. See 83 FR 28710 (June 20, 2018). The Trade
Representative narrowed the proposed list in the April 6 notice to 818
tariff subheadings, with an approximate annual trade value of $34
billion. This initial action became effective on July 6, 2018. The
additional proposed action was an additional ad valorem duty of 25
percent on products of China classified in 284 tariff subheadings, with
an annual trade value of approximately $16 billion, as set forth in
Annex C to the June 20 notice.
After review, the Trade Representative determined to impose
additional duties on 279 tariff subheadings, with an annual trade value
of approximately $16 billion. See 83 FR 40823 (August 16, 2018). The
additional duties on these products took effect on August 23, 2018.
During the notice and comment process, a number of interested
persons asserted that specific products within a particular tariff
subheading only were available from China, that the imposition of
additional duties on the specific products would cause severe economic
harm to a U.S. interest, and that the specific products were not
strategically important or related to the ``Made in China 2025''
program. In light of such concerns, the Trade Representative determined
to establish a process by which U.S. stakeholders may request that
particular products classified within a covered HTSUS subheading be
excluded from the additional action. That process is set out in the
remainder of this notice.
B. Procedures To Request the Exclusion of Particular Products
USTR invites interested persons, including trade associations, to
submit requests for exclusion from the additional duties of a
particular product classified within an HTSUS subheading set out in
Annex A of the notice published at 83 FR 40823 (August 16, 2018). As
explained in more detail below, each request specifically must identify
a particular product, and provide supporting data and the rationale for
the requested exclusion. USTR will evaluate each request on a case-by-
case basis, taking into account whether the exclusion would undermine
the objective of the Section 301 investigation. Any exclusion will be
effective starting from the August 23, 2018 effective date of the
additional duties, and extending for one year after the publication of
the exclusion determination in the Federal Register. In other words, an
exclusion, if granted, will apply retroactively to the August 23 date
of the imposition of the additional duties. USTR will periodically
announce decisions on pending requests.
1. Requests for Exclusion of Particular Products
With regard to product identification, any request for exclusion
must include the following information:
Identification of the particular product in terms of the
physical characteristics (e.g., dimensions, material composition, or
other characteristics) that distinguish it from other products within
the covered 8-digit subheading. USTR will not consider requests that
identify the product at issue in terms of the identity
[[Page 47237]]
of the producer, importer, ultimate consumer, actual use or chief use,
or trademarks or tradenames. USTR will not consider requests that
identify the product using criteria that cannot be made available to
the public.
The 10-digit subheading of the HTSUS applicable to the
particular product requested for exclusion.
Requesters also may submit information on the ability of
U.S. Customs and Border Protection to administer the exclusion.
Requesters must provide the annual quantity and value of the
Chinese-origin product that the requester purchased in each of the last
three years. For trade association requesters, please provide such
information based on your members' data. If precise annual quantity and
value information are not available, please provide an estimate and
explain the basis for the estimation.
For imports sold as final products, requesters must provide the
percentage of their total gross sales in 2017 that sales of the
Chinese-origin product accounted for.
For imports used in the production of final products, requesters
must provide the percentage of the total cost of producing the final
product(s) the Chinese-origin input accounts for and the percentage of
their total gross sales in 2017 that sales of the final product(s)
accounted for.
With regard to the rationale for the requested exclusion, each
request for exclusion should address the following factors:
Whether the particular product is available only from
China. In addressing this factor, requesters should address
specifically whether the particular product and/or a comparable product
is available from sources in the United States and/or in third
countries.
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.
In addressing each factor, the requester should provide support for
their assertions. Requesters also may provide any other information or
data that they consider relevant to an evaluation of the request.
Any request that contains business confidential information must be
accompanied by a public version. The public version will be posted on
regulations.gov.
2. Responses to Requests for Exclusions
After a request for exclusion of a particular product is posted on
docket number USTR 2018-0032, interested persons will have 14 days to
respond to the request, indicating support or opposition and providing
reasons for their view. All responses must clearly identify the
specific request for exclusion being addressed. You can view requests
for exclusions on www.regulations.gov by entering docket number USTR-
2018-0032 in the search field on the home page.
3. Replies to Responses to Requests for Exclusions
After a response is posted on docket number USTR 2018-0032,
interested persons will have the opportunity to reply to the response.
Any reply must be posted within the later of 7 days after the close of
the 14 day response period, or 7 days after the posting of a response.
All replies must clearly identify the specific responses being
addressed.
4. Submission Instructions
As noted above, interested persons must submit requests for
exclusions by December 18, 2018. Any responses to those requests must
be submitted within 14 days after the requests are posted. Any reply to
a response must be submitted within the later of 7 days after the close
of the 14 day response period, or 7 days after the posting of a
response. Interested persons seeking to exclude two or more products
must submit a separate request for each product, i.e., one product per
request.
All submissions must include a statement that the submitter
certifies that the information provided is complete and correct to the
best of his or her knowledge.
To assist in review of requests for exclusion, USTR has prepared a
request form that will be posted on the USTR website under
`Enforcement/Section 301 investigations' and on the www.regulations.gov
docket in the `supporting documents' section. USTR strongly encourages
interested persons to use the form to submit requests, though use of
the form is not required. All submissions must be in English and sent
electronically via www.regulations.gov.
5. To Submit a Product Exclusion Request
To submit requests via www.regulations.gov, enter document ID
number USTR-2018-0032 on the home page and click `search.' The site
will provide a search-results page listing the Federal Register notice
associated with this docket. Find a reference to this notice and click
on the link titled `comment now!'. Once posted on the electronic
docket, the exclusion request will be viewable in the `primary
documents' section.
File names for requests for exclusions must include the 10-digit
subheading of the HTSUS applicable to the particular product and the
name of the person or entity submitting the request (e.g., 1234567890
Initech). If the request includes business confidential information,
then two files must be submitted--the business confidential version and
a public version. The file names must indicate the version, e.g.,
1234567890 Initech BC and 1234567890 Initech P. Additional instructions
on business confidential submissions can be found below in Section B.8
of this notice.
6. To Submit a Response to a Product Exclusion Request
To respond to a request for exclusion, please find the request in
the `primary documents' section of the docket and click on the link
titled `comment now!' associated with that specific request. Responses
made on requests for exclusion will appear in the `comments' section of
the docket.
File names for responses to requests should include the document ID
of the request and the name of the person or entity submitting the
response (e.g., USTR-2018-0032-0005 Initrode). If the response includes
business confidential information, then two files must be submitted--
the business confidential information version and a public version. The
file names should indicate the version, e.g., USTR-2018-0032-0005
Initrode BC and USTR-2018-0032-0005 Initrode P.
7. To Submit a Reply to a Response on a Product Exclusion Request
To reply to a response made to an exclusion request, please find
the exclusion request that is the subject of the response in the
`primary documents' section of the docket and click on the link titled
`comment now!'. Replies will appear in the `comments' section of the
docket.
File names for replies should include the document ID of the
response and the name of the person or entity submitting the reply
(e.g., USTR-2018-0032-0020 Initech). If the reply includes business
confidential information, then two files must be submitted--the
business confidential information version and a public version. The
file names must indicate the version, e.g., USTR-2018-0032-0020 Initech
BC and USTR-2018-0032-0020 Initech P.
[[Page 47238]]
For further information on using the www.regulations.gov website,
please consult the resources provided on the website by clicking on
`How to Use Regulations.gov' on the bottom of the home page.
8. Document Format Instructions
Submit requests for product exclusions in an attached document.
Type `see attached' in the `comment' field. USTR prefers submissions
made using the request form that will be posted on the USTR website
under `Enforcement/Section 301 investigations' and on the
www.regulations.gov docket in the `supporting documents' section and
saved as a searchable Adobe Acrobat (.pdf) document. If you do not use
the USTR form, USTR prefers submissions made in Microsoft Word (.doc)
or searchable Adobe Acrobat (.pdf). If you use an application other
than those two, please indicate the name of the application in the
`comment' field.
Please do not attach separate cover letters to electronic
submissions; rather, include any information that might appear in a
cover letter in the comments themselves. Similarly, to the extent
possible, please include any exhibits, annexes, or other attachments in
the same file as the comment itself, rather than submitting them as
separate files.
For any documents submitted electronically containing business
confidential information, the file name of the business confidential
version must end with the characters `BC'. Any page containing business
confidential information must be clearly marked `BUSINESS CONFIDENTIAL'
on the top of that page and the submission should clearly indicate, via
brackets, highlighting, or other means, the specific information that
is business confidential. If you request business confidential
treatment, you must certify in writing that disclosure of the
information would endanger trade secrets or profitability, and that the
information would not customarily be released to the public. Filers of
submissions containing business confidential information also must
submit a public version of their submissions. The file name of the
public version must end with the character `P'. The `BC' and `P' should
follow the rest of the file name. If these procedures are not
sufficient to protect business confidential information or otherwise
protect business interests, please contact the USTR Section 301 line at
(202) 395-5725 to discuss whether alternative arrangements are
possible.
USTR will post submissions in the docket for public inspection,
except business confidential information. You can view submissions on
the https://www.regulations.gov website by entering docket number USTR-
2018-0032 in the search field on the home page.
Robert E. Lighthizer,
United States Trade Representative.
[FR Doc. 2018-20246 Filed 9-17-18; 8:45 am]
BILLING CODE 3290-F8-P