BREAKING NEWS: China Trade War Update - List 4A Reduced to 7.5% and List 4B will NOT become effective on 12/15

We have been monitoring for a news update on whether U.S. & CHINA reached a "PHASE ONE DEAL" since we last wrote about it on October 11, 2019. Two months later, the USTR published a press release confirming that the United States and China have reached an historic and enforceable agreement on a Phase One trade deal and President Trump tweeted the announcement noting that this “is an amazing deal for all”.

The New Miscellaneous Tariff Bill Process Set to Begin

On October 11, 2019 the U.S. International Trade Commission (ITC) began accepting Miscellaneous Tariff Bill (MTB) petitions for duty suspension or reduction. The American Manufacturing Competitiveness Act (AMCA) of 2016 created the current MTB process. Under the MTB process, U.S. importers are able to petition for duty-free or reduced-duty treatment of certain imported products by submitting a petition to the ITC.

A detailed timeline of the process can be found here. The new MTB process, as set out in the law, runs from October 2019 through the end of 2020. The dates and time frames below have been calculated from the start date announced by the U.S. ITC and the text of the legislation:

• October 11 – December 10, 2019: USITC MTB portal open for petition submission.
• December 10, 2019 – January 11, 2020: USITC compiles petitions.
• No later than January 11 – USITC issues Federal Register notice soliciting comments on product petitions.
• January 11 - Late February, 2020 (45 days): USITC accepts public comments through online portal.
• January 11 - Mid-April, 2020 (90 days): Commerce conducts its review of petitions, at the end of which it submits its report to the congressional committees and the USITC.
• January 11 - Mid-June, 2020 (150 days): USITC conducts its review of petitions, at end of which it submits its Preliminary Report to the congressional committees, taking into consideration the Commerce Report.
• Mid-June – mid-August, 2020 (60 days): USITC conducts re-review of individual petitions, based on information submitted by the congressional committees, at the end of which it submits its Final Report to the congressional committees.

A successful MTB petition will cover a “noncontroversial” or “noncompetitive” product. The guidelines defining those products are:

• No domestic producer objects to the import duty elimination or reduction for the product;
• The import duty elimination or reduction for the product is determined to be in the interest of U.S. “downstream” producers and consumers; and
• The import duty elimination or reduction for the product must not result in a loss to the U.S. Department of the Treasury of more than $500,000 in annual revenue.

The ITC determines whether the petition should move forward. ITC delivers its determinations directly to congressional committees, including but not limited to:

• A determination if domestic production of the product exists;
• A determination of whether a domestic producer objects to the petition;
• Any technical changes to the product’s article description that are necessary for purposes of administration;
• An estimate of the amount of loss in revenue to the United States if the duty suspension or reduction takes effect;
• A list of petitions that it does not recommend for inclusion in an MTB.

Importers can request an elimination or reduction of duties, depending on the annual duty savings anticipated and the $500,000 threshold.

The ITC’s website indicates that almost 700 (or only 28 percent) of the petitions listed in the Commission’s final 2017 report were not recommended to Congress for inclusion in an MTB.  Many of these are due to issues regarding classification and the ability of U.S. Customs and Border Protection (CBP) to administer the claimed provision.

Successful MTB petitions are compiled into a bill and presented to the House Ways and Means and Senate Finance Committees and would then need to be approved by Congress and signed into law by the president before becoming effective. If signed into law, then the MTB petitions may become effective January 1, 2021, with an expiration date of December 31, 2024.

The ITC’s new petition procedures appear more stringent than those applied during the 2016 round of MTB petitions.

The new procedures indicate that the petitions should include (to the extent available):

1. CBP rulings issued on the product;
2. a copy of other CBP documentation indicating where the article is classified in the HTS;
3. an estimate of both total value and dutiable value for the product for the next five calendar years;
4. an estimate of the share of total imports represented by the petitioner’s imports of the subject article;
5. the names of any domestic producers of the article, if available;
6. a certification of completeness and correctness; and
7. an acknowledgement of the petitioner’s awareness that the information submitted is subject to ITC audit and verification.

The USITC will take into account the Department of Commerce report, including input from CBP, and other Executive agencies, in its report. The USITC will provide its preliminary report to the House Ways and Means and Senate Finance Committees in mid-June 2020 and its final report in mid-August 2020. In between the preliminary and final reports, the USITC is directed to consider information from the congressional committees on its report. For more information on the MTB process, click here.

For more information regarding the filing or preparation of the petition, contact Diaz Trade Law today at 305-456-3830 or via email at info@diaztradelaw.com.

33,810 IPR Seizures in 2018!

U.S. Customs and Border Protection (CBP) is tasked with the monitoring of and enforcement of intellectual property rights (IPR). In CBP's FY 2018 Seizure Statistics, CBP advised that it enforced trademarks and copyrights pertaining to over 17,641 active recordations, including 2,289 new recordations and 812 renewals of expiring recordations.

In fiscal year 2018, 381 individuals were arrested by CBP or ICE for violations related to IPR violations and 260 convictions related to intellectual property crimes proceeded. The total number of IPR seizures decreased by 333 seizures from the previous year. Surprisingly, while the number of seizures decreased from 34,143  in 2017 to 33,810 in 2018, the total estimated manufacturer’s suggested retail price (MSRP) of seized goods, had they been genuine, increased $1.4 billion.

UPDATE! DEADLINE APPROACHING – WHY SHOULD YOUR PRODUCT NOT BE ON THE 301 LIST!

We have been working hard to keep you up to date on the current Trade War between the United States and China. For background on the Trade War see our previous blog post. This blog post sets out USTR’s actions in coordination with the Trump Administrations instructions. China took retaliatory actions against the United States in response to the first 301 list  of additional U.S. duties that became effective on July 6, 2018, which imposed an additional 25% duty on goods worth $34 Billion.

Section 301 - List 3 Tariff Exclusion Requests Open Until September 30th

On May 9, 2019, the Office of the United States Trade Representative (USTR) published a Federal Register Notice announcing that an exclusion process will become available for all goods included on List 3. All products included on List 3 are now subject to an additional 25 percent tariff (raised from 10%).

On Monday, June 24, 2019, USTR released a Notice detailing the exclusion process. As discussed in our previous blog, the exclusion process opened up via an online portal on June 30, 2019, and will remain open until September 30, 2019.

Wondering if your Exclusion Request has been granted or denied? Find out here!

Since the inception of the Trade War with China, the Office of the United States’ Trade Representative (USTR) has provided citizens, primarily those in industries directly affected by the imposition of ad valorem duties (tariffs), the opportunity to request that certain products be granted exclusions. Each list of tariffs has its own specific process to ensure that concerned citizens may voice their opinions as to why given products should not be subjected to additional duties upon importation, as prescribed in the Section 301 investigation.

List 4 Split into Two HTS Lists

As published by the USTR TODAY: USTR Announces Next Steps on Proposed 10 Percent Tariff on Imports from China

The United States Trade Representative (USTR) today announced the next steps in the process of imposing an additional tariff of 10 percent on approximately $300 billion of Chinese imports.

On May 17, 2019, USTR published a list of products imported from China that would be potentially subject to an additional 10 percent tariff.  This new tariff will go into effect on September 1 as announced by President Trump on August 1.

Certain products are being removed from the tariff list based on health, safety, national security and other factors and will not face additional tariffs of 10 percent.

U.S. issues additional Chinese Tariffs – Is Your Product on the List?/ EE.UU. Emite Aranceles Adicionales a Bienes Chinos: ¿Su Producto Está En La Lista?

On June 15, President Trump kept true to his May 29^th promise of imposing additional tariffs against Chinese goods. The Office of the United States Trade Representative (USTR) has officially released the “Section 301 Product List”. The additional duties are effective on or after July 6, 2018. History

Section 301- List 4 Tariffs in Effect Starting September 1

President Donald Trump, left, poses for a photo with Chinese President Xi Jinping during a meeting on the sidelines of the G-20 summit in Osaka, Japan, Saturday, June 29, 2019. (AP Photo/Susan Walsh) Despite the reignition of tensions in May, hopes of reconciliation began to grow in the preeminence of the G-20 international economic forum, held in June. While substantial progress was not made, President Trump and potential dictator for life Xi Jinping appeared to slow the escalation, coming to a bilateral good-faith agreement. Supposedly, the two nations agreed that the United States would soften the sanctions imposed on Chinese tech giant, Huawei, contingent that China begins to repurchase American agricultural products, as well as halt their exportation of Fentanyl. The tentative “cease-fire” also intended to delay the United States’ imposition of the threatened list 4, which would levy a 25% ad valorem on roughly $300 Billion worth of Chinese goods. The new round of tariffs looms over China, considering that 2019 proved to be their worst fiscal year in recent memory. In fact, this is the most sluggish Chinese economy in nearly three decades, which many directly attribute to President Trump’s vigilant economic policies. However, approximately a month since the United States graciously showed the illicit regime restraint, China refuses to uphold their end of the bargain. Chinese imports of American agriculture has failed to accelerate, and similarly, their exportation of Fentanyl remains a major health threat to the United States. “China agreed to...buy agricultural product from the U.S. in large quantities, but did not do so,” President Trump said. “Additionally, my friend President Xi said that he would stop the sale of Fentanyl to the United States—this never happened, and many Americans continue to die.”

...buy agricultural product from the U.S. in large quantities, but did not do so. Additionally, my friend President Xi said that he would stop the sale of Fentanyl to the United States – this never happened, and many Americans continue to die! Trade talks are continuing, and...

— Donald J. Trump (@realDonaldTrump) August 1, 2019

China’s most recent defiance led President Trump to announce that the US will proceed to implement a 4^th list of tariffs. Despite the fact that the originally proposed list would levy 25% ad valorem, the new list, which is set to go into effect on September 1, will start at a 10% ad valorem tariff (and can be increased to a 25% tariff at a later date). The list still targets $300 Billion worth of goods and is set to affect almost all items not included in List’s 1, 2, and 3. Whereas list’s 1 and 2 affected steel, aluminum, and other metals, list 3 began to cast a wider net. List 4 however, includes a variety of goods ranging from clothing to basic electronics.

China Trade War Intensifies

 

 Today, the Trump administration’s China trade war intensified as it announced plans to increase tariffs on Lists 1, 2, 3, and 4! The president connected the additional tariff hikes to China’s new retaliatory tariffs (as a result of US’s imposition of List 4 tariffs) on $75 billion-dollar in US products, mainly impacted the agricultural and auto industries, or President Trump’s base (as previously reported here). So what are the changes?

TOP 5 Strategies to Mitigate the Impact of Tariffs

Many importers, exporters, and international businesses alike may be unaware that avenues exist to ensure that their products remain unabated by protectionist trade policies (think China tariffs).

This blog provides an easy reference overview of five (5) proven and legitimate options for duty-saving opportunities.

We recommend U.S. importers, exporters, and manufacturers to consider these five (5) options as they apply to all products from virtually any country subjected to a tariff, including Section 201 tariffs for solar systems, Section 232 tariffs for aluminum and steel, and the infamous Section 301 Tariffs in place for Chinese originating goods and violations of trade agreements, as well as acts, policies or practices that are unjustifiable,  unreasonable, or discriminatory and that burden or restrict U.S. commerce.

U.S. and China Reach ‘Phase 1 Deal’

 Today, President Trump and the Chinese government announced a “Phase 1 Deal” and suspended the proposed increase in tariffs for products (on Lists 1, 2, and 3) that were set to begin on October 15. The scheduled tariff was set to increase from 25 to 30 percent on $250 billion worth of Chinese imports. In exchange, the Chinese government will buy $40-50 billion worth of American agricultural goods, and the agreement will include terms on both intellectual property rights and financial services.

BREAKING NEWS: EXCLUSION PORTAL TO OPEN FOR LIST 4A

                      

USTR announced it will open the exclusion request process for HTS’s on List 4A. List 4A includes products covered by Annex A of the August 20, 2019 notice (84 FR 43304)  that are subject to 15% duty as of September 1, 2019.

 

List 4 has a total of 300 Billion worth of products and includes both lists 4A & 4B. 15% duties for List 4B (products covered by Annex C of the August 20 notice) are effective December 15, 2019, and no exclusion process has yet been discussed for 4B.

Exclusion portal opens October 31, 2019, and closes on January 31, 2020.

Contact us today to get your request in timely!

DTL helps clients strategize how to identify the strongest argument to persuade the government in granting your exclusion request. DTL was active in assisting clients submit exclusion requests for List 3.

BLOG HAS MOVED TO CustomsandInternationalTradeLaw.com

Thank you to all of you who have followed Customs and Trade News. You'll be pleased to know we are STILL publishing content, but, at a new location. Want to know all about the Phase 1 Deal reached with China today?

Click on http://customsandinternationaltradelaw.com/ to keep up with the latest Customs and International Trade news relevant to your international business. To get the email updates directly in your inbox subscribe here.

Trump to Impose Tariffs on All Imported Goods From Mexico

As a result of the immigration crisis intensifying at the border of the United States and Mexico, President Trump announced a five (5) percent tariff to be levied on all goods from Mexico starting June 10^th. 

The tariffs are set to continue to increase by five percent each month up to twenty-five percent. The tariffs will permanently remain at the 25 percent level unless and until Mexico substantially stops the illegal inflow of aliens coming through its territory.

The effective date of the imposition of the additional tariffs are as follows:

Did You Know That Sunglasses Are Regulated by The FDA As Medical Devices?

Whether you import sunglasses into the United States or sell sunglasses in the U.S. commerce, you are required to comply with the laws and regulations of the U.S. Food & Drug Administration (FDA). The FDA regulates sunglasses products to ensure their safety and impact resistance. These products are regulated as medical devices as they are intended to mitigate or prevent the effect of the sun's ultraviolet (UV) rays on the eyes of a person. The term “Medical Device” is defined in 21 CFR 201(h).

The following are FDA regulations that apply sunglasses. Failure to comply with them may result in CBP and FDA detaining your sunglasses at the U.S. port of entry.

NEWS ALERT - USTR’s newly Announced List 3 Exclusion process and List 4 Comment and Hearing Process

USTR published a Federal Notice on May 21, laying out the exclusion process for list 3. USTR anticipates that the exclusion period will open up on or around June 30^th. USTR estimates that over 60,000 US Stakeholders will request an exclusion for a particular product. On May 13, USTR proposed a 4^th list, which slaps a 25% tariff on roughly 300 billion worth of goods. From food products to furniture, the proposed list would include “essentially all products not currently covered” under previously imposed lists including literally thousands of irrelevant goods. If your product appears on any Section 301 tariff list there are three avenues to potentially get it removed. You may submit a comment, attend public hearings, or obtain an exclusion. Below is a big picture of the past and future opportunities get products off tariff lists:

As the trade war between United States and China drags into its second year, a resolution does not appear to be in the near future. In fact, following the most recent wave of escalations, the US stock market plummeted over 600 points leading into Monday, May 13.

While the trade war continues, neither side seems ready to reconcile. In early May, the two parties came close to a consensus. According to President Trump, China backed out of the deal, re-igniting tensions. In response to China reneging on the tentative agreement, President Trump called for an additional 25% tariff increase on Chinese Products on List 3.

UPDATE: USTR Increases Section 301 Tariffs to 25% Duty for Products on List 3

Since September 17, 2018, the trade industry has been bracing themselves for the increase of China tariffs from 10% to 25%. The trade community has enjoyed a few months of postponements – January 1st, 2019 to March 1st, 2019. The postponements led many to believe the increase was unlikely, until May 6, when the President emphatically stated that “the 10% will go up to 25% on Friday [May 10, 2019].” via twitter. Only three days later and USTR has officially announced the anticipated 25% increase is effective on 12:01 am, May 10, 2019.

TOP 11 COPYRIGHT MYTHS AND MISCONCEPTIONS / LOS TOP ONCE MITOS Y CONCEPTOS ERRÓNEOS SOBRE LOS DERECHOS DE AUTOR

                                   

1.- What is copyrightable and what is not?

Copyright protection exists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Works of authorship include the following categories:

• literary works;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pantomimes and choreographic works;
• pictorial, graphic, and sculptural works;
• motion pictures and other audiovisual works;
• sound recordings; and
• architectural works.

Voice Your Comments about CTPAT & the Trusted Trader Program!

U.S. Customs and Border Protection (CBP) provided a 60-day extension as part of their “Agency Information Collection Activities” requesting comments on the CTPAT and Trusted Program.

CBP will be submitting the information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The PRA changed many aspects of Information Collection by the Federal government. requiring agencies to plan for the development of new collections of information and the extension of ongoing collections well in advance of sending proposals to OMB. Agencies must:

Comment Today! USTR Publishes Preliminary List of EU Products To Be Covered By Additional Duties

Until recently the Section 301 Tariffs have been associated with China deceptive practices. The USTR is now expanding Section 301 Tariffs to the European Union (EU).  As a result of the World Trade Organization (WTO) repeatedly finding that EU subsidies to Airbus have caused adverse effects to the United States; the Office of the United States Trade Representative (USTR) has launched a process under Section 301 of the Trade Act of 1974 to identify products of the EU to which additional duties may be applied. These additional duties will be in effect from the dated published until the EU removes those subsidies.

Using a Middleman? Learn How to Lower Your Customs Value Using First Sale!

Pursuant to the Customs Modernization Act, the importer of record (IOR) must use “reasonable care” when providing the value of the goods to Customs and Border Protection (CBP). All merchandise imported into the United States is subject to valuation or appraisement. The Trade Agreements Act of 1979, codified at 19 U.S.C. § 1401a, sets forth a hierarchy of methods for the appraisement of imported merchandise. Under the Trade Agreements Act of 1979, the transaction value of imported merchandise is the primary or preferred method for determining the value of imported merchandise. Generally, transaction value is the price actually paid or payable for merchandise when sold for exportation to the United States, plus certain statutorily enumerated additions.

CBP, BIS, AND OTHER AGENCIES LAUNCH A NEW TASK FORCE TO COMBAT COUNTERFEIT GOODS

The Department of Homeland Security (DHS) published a press release announcing a new multi-agency task force, The Global Trade Task Force (GTTF), which is designed to protect national security and combat counterfeit goods. The multi-agency task force was launched recently in Detroit and DHS believes the task force could serve as a national model for related investigations.

CBP Needs Your Help to Improve their Operations in the 21st Century Business Environment – COMMENT PERIOD NOW OPEN!

U.S. Customs and Border Protection (CBP), has announced the re-opening of the public comment period on the six key themes identified by “The 21st Century Customs Framework” initiative. Now is your chance to provide feedback to CBP that can benefit your supply chain and the US economy.

CBP appreciates the need to stay modern to face the challenges of an evolving business landscape. To fulfill its mission, CBP is carrying out an initiative entitled “The 21st Century Customs Framework" which will seek to address and improve many aspects of CBP's trade mission to better position the agency to operate in the 21st Century business environment. Below are the topics CBP is seeking public input on:

New Import Detention Order Targets Tuna Harvested with Forced Labor

Effective February 4, 2019, Customs and Border Protection (CBP) has ordered the detention at all U.S. ports of entry of tuna and any such merchandise manufactured wholly or in part by the Tunago No. 61, which is a fishing vessel owned by Tunago Fishery Co., LTD a company located in Vanuatu. According to the CBP press release of February 6, 2019, importers of detained shipments are provided an opportunity to export their goods or demonstrate that they were not produced with forced labor. The Tariff Act of 1930 (19 U.S.C. § 1307) bans imports of merchandise or food produced in whole or at least in part by forced labor, including convict labor, forced child labor, and indentured labor.

China Tariff Hike Postponed - USTR to Establish an Exclusion Process – Seminar on “China Tariffs/AD/CVD 101”

The on-going trade war continues as China and the US make progress to come to an agreement. For background information on past actions taken by the Trump Administration to protect American Intellectual Property, check out our previous blogs.

China Tariff Increase is Postponed

President Trump reported in a February 24th tweet that as a result of the “substantial progress” in trade negotiations with China on “important structural issues” he will be delaying the increase from 10 percent to 25 percent in the additional Section 301 tariffs on the List 3 goods (valued at about US$200 billion) that is scheduled to take place on  March 2nd. To formalize the extension, the administration will have to publish a Federal Register notice stating the Section 301 additional tariff on the so-called List 3 products will remain at ten percent for now and the notice will likely provide the new date for the tariff increase. To date no formal notice has been published.

Civil Forfeiture - Know Your Rights!

Routinely, individuals in the U.S. have property taken from them under “Asset Forfeiture” laws and are unaware of their rights.  Civil judicial forfeiture does not require a criminal conviction, and is a powerful legal tool used by law enforcement and Federal Agencies to seize property that is involved in a crime. Fines and forfeitures have become a key source of revenue, bringing in hundreds of millions of dollars each year.

The majority of federal forfeiture cases are uncontested when there is a related criminal case. Administrative forfeiture occurs when property is seized but no one files a claim to contest the seizure. Property that can be administratively forfeited includes merchandise prohibited from importation; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value. Federal law imposes strict deadlines and notification requirements in the administrative forfeiture process. If the seizure is contested, then the U.S. government is required to use either criminal or civil judicial forfeiture proceedings to gain title to the property.

TOP 10 MISTAKES MADE BY TRADEMARK OWNERS

In most jurisdictions, the majority of trademark filings are made by small businesses and entrepreneurs or solopreneurs. When starting a business, it is easy to get caught up on getting your business off the ground. Below outlines the TOP 10 mistakes trademark owners can make (and we will teach you how to avoid them and MUCH more in our seminar, ABC’s of Protecting Your Brand, on February 20, 2019).

1. Not Realizing That Protecting Trademarks Could Create Value for Your Business.

Most new businesses should analyze the value of their business from the start. While most businesses operate out of rented/leased space or straight out of the owner’s home and rely on loans to promote their services or financing for product inventory, businesses fall short in adding value to their own brand name. When it’s time to sell or liquidate businesses are left with little or no assets apart from their client lists and intellectual property, if any. Not investing in protecting their trademarks will diminish the value of their business in the future.

PAYING CHINESE TARIFF’S & YOUR COMPETITORS AREN’T?

Now that the Section 301 tariffs are effective, importers are required pay additional duties – but not all are doing so. We found that while some importers know their product is subject to one of the 3 Chinese tariff lists, they are either using HTS’s not on the list (even though that is not the correct HTS for their product), or using an HTS subject to additional tariffs, but, not paying the additional tariffs. If you are an honest importer paying the correct amount of additional duties, this may leave you unable to compete in the current market.

If you’ve noticed that some of your competitor’s pricing has not been affected by the additional tariffs and you have been forced to increase your prices to stay in business, you have an option to help equal the playing field.

CATCH UP ON DTL’S TOP BLOGS FROM 2018!

We want to make sure you stay up to date with the hottest trade topics from 2018. below is a summary of what you missed by category. Enjoy!

Why You Need Your VERY OWN ACE Account

The Automated Commercial Environment (ACE) is a U.S. Customs and Border Protection (CBP) system designed to facilitate legitimate trade while enhancing border security. ACE improves collection, sharing, and processing of information submitted to CBP and government agencies.

You can now double check your entries filed by your broker  with CBP & directly (or via a trusted consult) interact with CBP via ACE!