[Federal Register Volume 83, Number 133 (Wednesday, July 11, 2018)]
[Notices]
[Pages 32181-32184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14820]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket Number USTR-2018-0025]


Procedures To Consider Requests for Exclusion of Particular 
Products From the Determination of 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 June 20, 2018, the U.S. Trade 
Representative

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(Trade Representative) determined that appropriate action to obtain the 
elimination of China's acts, policies, and practices related to 
technology transfer, intellectual property, and innovation includes the 
imposition of an additional ad valorem duty of 25 percent on products 
from China classified in certain enumerated subheadings of the 
Harmonized Tariff Schedule of the United States (HTSUS). See 83 FR 
28710. The June 20 notice also announced that the Trade Representative 
would establish a process by which U.S. stakeholders may request that 
particular products classified within a covered tariff subheading be 
excluded from the additional duties. Today's 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 requests to exclude a particular product by 
October 9, 2018. Responses to a request for exclusion of a particular 
product are due 14 days after the request is posted in docket number 
USTR-2018-0025 on www.regulations.gov. Any replies to responses to an 
exclusion request are due 7 days after the close of the 14 day response 
period.

ADDRESSES: USTR strongly prefers electronic submissions made through 
the Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting requests for exclusion and responses to 
requests in section B below. The docket number is USTR-2018-0025.

FOR FURTHER INFORMATION CONTACT: For questions about the product 
exclusion process, contact USTR Assistant General Counsel Arthur Tsao 
or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For 
questions on customs classification or implementation of additional 
duties, contact [email protected].

SUPPLEMENTARY INFORMATION: 

A. Background

    On August 18, 2017, the Trade Representative initiated an 
investigation of the government of China's acts, policies, and 
practices related to technology transfer, intellectual property, and 
innovation. See 82 FR 40213. The proceedings in the investigation up 
through the Trade Representative's determination that China's acts, 
policies, and practices are actionable under section 301(b) of the 
Trade Act of 1974 (19 U.S.C. 2411(b)) are set out in the notice 
published at 83 FR 14906 (April 6, 2018).
    The April 6, 2018 notice invited public comment on a proposed 
action in the investigation: The imposition of an additional ad valorem 
duty of 25 percent on products from China classified in a list of 1,333 
tariff subheadings. As explained in the notice, the value of the 
products on the list was approximately $50 billion in terms of 
estimated annual trade value for calendar year 2018, and the level was 
appropriate both in light of the estimated harm to the U.S. economy, 
and to obtain elimination of China's harmful acts, policies, and 
practices. USTR invited interested persons to provide comments and 
participate in a hearing. The public submissions and a transcript of 
the hearing are available on www.regulations.gov in docket number USTR-
2018-0005.
    USTR and the interagency Section 301 Committee carefully reviewed 
the public comments and the testimony from the three day public 
hearing. USTR and the Section 301 Committee also carefully reviewed the 
extent to which the tariff subheadings in the April 6, 2018 notice 
included products containing industrially significant technology, 
including technologies and products related to the ``Made in China 
2025'' program. Based on this review process, on June 20, 2018, the 
Trade Representative determined that appropriate action in this 
investigation includes the imposition of an additional ad valorem duty 
of 25 percent on products from China classified in the 818 subheadings 
of the HTSUS set out in Annex A of the notice published at 83 FR 28710 
(June 20, 2018). The additional duties on these products took effect on 
July 6, 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 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 duties. That process is set out in the 
remainder of this notice.

B. Procedures To Request the Exclusion of Additional Particular 
Products

    USTR invites interested persons, including trade associations, to 
submit requests for exclusion from the additional duties of a 
particular product classified within a HTSUS subheading set out in 
Annex A of the notice published at 83 FR 28710 (June 20, 2018). As 
explained in more detail below, each request must specifically 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 July 6, 2018 effective date of the 
additional duties, and extend 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 July 6 date of 
the imposition of the additional duties. USTR periodically will 
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 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 most applicable to 
the particular product requested for exclusion.
     Requestors also may submit information on the ability of 
U.S. Customs and Border Protection to administer the exclusion.
     Requestors must provide the annual quantity and value of 
the Chinese-origin product that the requestor purchased in each of the 
last three years. For trade association requestors, please provide such 
information based on your members' data. If precise annual quantity and 
value information is not available, please provide an estimate and 
explain the basis for the estimation.
    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

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this factor, requestors 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 requestor or 
other U.S. interests.
     Whether the particular product is strategically important 
or related to ``Made in China 2025'' or other Chinese industrial 
programs.
    Requestors may also provide any other information or data that they 
consider relevant to an evaluation of the request.
    Any request that contains business confidential information (BCI) 
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 2018-0025, 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-
2018-0025 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 2018-0025, 
interested persons will have the opportunity to reply to the response. 
Any reply must be posted within 7 days after the close of the 14 day 
response period. All replies clearly must identify the specific 
responses being addressed.

4. Submission Instructions

    As noted above, interested persons must submit requests for 
exclusions by October 9, 2018; any responses to those requests must be 
submitted within 14 days after the requests are posted; and any reply 
to a response must be submitted within 7 days after the close of the 14 
day response period. 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. All submissions must be in English and sent electronically 
via www.regulations.gov.

5. Submitting a Product Exclusion Request

    To submit requests via www.regulations.gov, enter document ID 
number USTR-2018-0025-0001 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 should include the 10 digit 
subheading of the HTSUS most applicable to the particular product and 
the name of the person or entity submitting the comments (e.g., 
1234567890 Initech). If the request includes BCI, then two files must 
be submitted--the business confidential version and a pubic version. 
The file names should indicate the version, e.g., 1234567890 Initech BC 
and 1234567890 Initech P. Additional instructions on business 
confidential submissions can be found below.

6. Submitting 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-2018-0025-0005 Initrode). If the response includes 
BCI, then two files must be submitted--the BCI version and a public 
version. The file names should indicate the version, e.g., USTR-2018-
0025-0001 Initrode BC and USTR-2018-0025-0001 Initrode P.

7. Submitting 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-2018-0025-0020 Initech). If the reply includes BCI, then 
two files must be submitted--the BCI version and a public version. The 
file names should indicate the version, e.g., USTR-2018-0025-0020 
Initech BC and USTR-2018-0025-0020 Initech P.
    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

    USTR prefers that you submit requests for product exclusions in an 
attached document. If you attach a document, it is sufficient to type 
``see attached'' in the ``comment'' field. USTR strongly prefers that 
you make submissions 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 
saved as a searchable Adobe Acrobat file (.pdf). 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 BCI, the file 
name of the business confidential version should end with the 
characters ``BC''. Any page containing BCI 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 BCI

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also must submit a public version of their submissions. The file name 
of the public version should 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 BCI 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 BCI. You can view submissions on the https://www.regulations.gov 
website by entering docket number USTR-2018-0025 in the search field on 
the home page.

Robert E. Lighthizer,
United States Trade Representative.
[FR Doc. 2018-14820 Filed 7-10-18; 8:45 am]
 BILLING CODE 3290-F8-P