Opportunity to Comment on Certain Section 301 Tariff Exclusions

Alston & Bird

Alston & Bird

Our International Trade & Regulatory Group highlights the categories of comments the United States Trade Representative is seeking from companies about the 549 product-specific exclusions for products of China.

  • The new exclusion is targeted to 549 products from China
  • The exclusions, if reinstated, will be retroactive to October 12, 2021
  • Comments will be accepted through December 1 and should be limited to those exclusions

The Office of the United States Trade Representative (USTR) is considering whether to reinstate previously extended exclusions covering products of China subject to Section 301 tariffs. Public comments are due on December 1, 2021.

On October 4, 2021, Ambassador Katherine Tai announced that a new “targeted” product exclusion process would be launched “to mitigate the effects of certain Section 301 tariffs that raised costs on Americans.”

This new exclusion process is narrow in scope, covering only the exclusions that the USTR previously granted and extended. Among 2,200 exclusions that the USTR granted, 549 exclusions were extended, and most of them expired on December 31, 2020. The list of these 549 product-specific exclusions is available here.

The USTR will accept comments from October 12 through December 1, 2021. The USTR will review and publish reinstated exclusions in the Federal Register. Reinstated exclusions will be retroactive for merchandise entered, or withdrawn from warehouse, for consumption on or after October 12, 2021.

The comments, either supporting or opposing reinstating the exclusions, should address the availability of the product in the United States and other countries; any global supply chain change regarding the product and its specific industry; potential efforts from U.S. importers to source the product domestically or from third countries; U.S. domestic capacity; whether reinstating or not reinstating the exclusion would impact or harm U.S. interests, including the impact on small businesses, employment, manufacturing output, and critical U.S. supply chains; and whether the exclusions contributed to the goal of eliminating China’s acts, policies, and practices covered in the Section 301 investigation.

The USTR also welcomes comments on the appropriate length of time for reinstated exclusions, how much of the product has been imported from China over the last three years and at what price, whether Chinese suppliers lowered their prices for the goods after tariffs were imposed, how much of the product was purchased from other countries and the purchaser’s revenues for the last three years, and whether the product is an input or not.

Companies that have an interest in any of the 549 product-specific exclusions should consider submitting comments.

This process does not allow requests for new product exclusions, but Tai indicated that the Administration is keeping open the potential for additional exclusion processes.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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