Agency also seeks comments to "keep current on developments in our national fight against the coronavirus pandemic"

On Friday, March 20, the United States Trade Representative (“USTR”) published a document entitled “USTR: Response to Coronavirus Crisis” that invites public comments on “Additional Modifications to the 301 Action to Address COVID-19.” The public docket is available here.

The press release explains that “the United States has prioritized health considerations” in taking action under Section 301 of the Trade Act of 1974 (“Section 301”) to address China’s acts, policies, and practices related to technology transfer, intellectual property, and innovation. USTR determined to open “a docket for members of the public, businesses, and government agencies to submit comments if they believe further modifications to the 301 tariffs may be necessary.” USTR explained that the agency previously worked in consultation with the Department of Health and Human Services so as to not impose tariffs “on certain critical products such as ventilators, oxygen masks, and nubilators.” USTR also explained that the agency has “granted exclusions” from the Section 301 tariffs “for a large number of health-related products” over the past year.

This new process is intended to enable the agency “to keep current on developments in our national fight against the coronavirus pandemic[.]” USTR also clarified that “this comment process does not replace the current exclusion process and supplements that process.” Importantly, USTR instructed the public that “submissions are limited to comments on products subject to the tariff actions and relevant to the medical response to the coronavirus.”

A draft Federal Register notice is available here. A high-level summary of the key points is set forth below.

USTR Urges The Public To Submit Comments “As Promptly As Possible” And That Any Responses To Comments “Should Be Submitted Within Three Business Days After A Comment Is Posted In The Docket.”

Although the comment period runs through at least June 25, 2020, USTR is requesting that interested parties “submit comments as promptly as possible” in order to “facilitate timely consideration of possible modifications” to the Section 301 tariffs. USTR also urged that “any responses to comments should be submitted within three business days after a comment is posted in the docket “ in order “to be assured of consideration[.]” Thus, it is incumbent upon interested stakeholders to closely monitor the docket in the days and weeks ahead.

USTR Requests Comments On Whether To Remove Duties From Additional Medical-Care Products

The draft Federal Register notice explains that “USTR invites comments from interested persons with respect to whether a particular product covered by the action in this investigation is needed to respond to the COVID-19 outbreak.” USTR requires that the comments “specifically must identify the particular product of concern and explain precisely how the product relates to the response to the COVID-19 outbreak.” As two examples, USTR stated that “the comment may address whether a product is directly used to treat COVID-19 or to limit the outbreak, and/or whether the product is used in the production of needed medical-care products.”

USTR also clarified that comments “may be submitted regarding any product covered by the action in the investigation, regardless of whether the product is subject to a pending or denied exclusion request.” This indicates that USTR is willing to “take another look” at excluding specific medical-care products for which it previously may have determined not to grant relief from the tariffs.

USTR Requests That Comments Define The Product Of Concern As Precisely As Possible

The draft Federal Register notice instructs that “commenters should define the product of concern as precisely as possible” to “facilitate timely consideration of possible modifications[.]” USTR states that “comments must include the following information, to the extent possible:”

  • The ten-digit subheading of the Harmonized Tariff Schedule of the United States applicable to the product; and
  • The identity of the product in terms of its functionality and physical characteristics (g., dimensions, material composition, or other characteristics)

USTR also instructs that while “commenters may provide information concerning the producer, importer, ultimate consumer, or trademarks or tradenames,” this information “is less helpful.” This direction underscores the urgency of situation that the country is facing due to the COVID-19 pandemic and USTR’s desire to focus its attention on whether a particular medical-care product should be excluded from the China tariffs.

Additional instructions regarding submission of comments are provided in the draft Federal Register notice.

In sum, USTR’s request for comments provides interested parties with an opportunity to seek relief from the China tariffs on imports of specific medical-care products that could be used to address the COVID-19 pandemic.