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US: USTR seeks comments for potential reinstatement of Section 301 exclusions

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On October 8, 2021, the Office of the United States Trade Representative (“USTR”) issued a notice and request for public comments on the potential reinstatement of certain exclusions of tariffs on Chinese imports imposed under USTR’s Section 301 investigation.  USTR will examine 549 previously granted exclusions, many of which expired since December 31, 2020, for possible reinstatement.  USTR will evaluate each exclusion on a case-by-case basis.  The list of exclusions USTR seeks comments on can be found here.  Exclusions on this list were first granted from each of the original rounds of exclusions going back to 2018.  USTR has previously extended each of these exclusions.

The focus of the evaluation will be whether, despite the first imposition of these additional duties in September 2018, the particular product remains available only from China.  In addition, USTR will consider whether reinstating the exclusion will impact or result in severe economic harm to the commenter or other US interests, including the impact on small businesses, employment, manufacturing output, and critical supply chains in the United States.  USTR will also consider the overall impact of the exclusions on the goal of obtaining the elimination of China’s acts, policies and practices covered in the Section 301 investigation.  USTR will consult with other federal agencies, including the Small Business Administration, as part of its review. 

The docket to submit public comments is open through December 1, 2021.  Commentators should address the factors listed within the Federal Register notice and include whether a particular product and/or a comparable product is available from sources in the United States or third countries, any change in the global supply chain since 2018 with respect to the particular product or any industry developments, and the efforts, if any, the importers have undertaken to source the product from the United States or a third country.  A facsimile of the public comment form can be found here.  Parties seeking to submit comments on more than one exclusion must submit separate comments for each exclusion. 

The authors acknowledge the assistance of Ryan Orange with this blog post.

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Meghan Hamilton is a member of the International Commercial Practice Group and the International Trade Compliance Sub-Practice Group in Baker McKenzie Chicago, where she has been an associate since 2015. Meg regularly assists multinational companies on sanctions, customs and export control compliance as well as other international trade matters, including commercial agreements and anti-boycott regulations. She is active in civic activities throughout Chicago, serving on the Young Professional Board of the Center for Disability and Elder Law as well as the Auxiliary Board of the Chicago Legal Clinic.

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Christine Streatfeild is a partner in the IPTech Practice Group. She has a broad range of trade, regulatory, and litigation experience, most frequently representing clients in antidumping and countervailing duty cases, safeguard measures, duties imposed for national security purposes (Section 232 duties), and Section 337 intellectual property and trade secrets disputes. She appears before the US International Trade Commission (ITC), US Department of Commerce (DOC), and the federal courts. She also routinely advises companies regulated by the Food and Drug Administration (FDA) on issues affecting mergers, acquisitions, licensing, and compliance. Prior to joining Baker McKenzie, Ms. Streatfeild served as the acting deputy director of the Generalized System of Preferences (GSP) and in the Environment and Natural Resources division of the Office of the United States Trade Representative. She has also served as an adjunct professor at the Krieger School, Johns Hopkins University, where she taught Global Trade, Policy and Competition.

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