USTR Requests Comments on Possible Reinstatement of Section 301 Tariff Exclusions

October 06, 2021

Yesterday the Office of the United States Trade Representative (“USTR”) requested comments regarding the possible reinstatement of certain exclusions to tariffs imposed on imports of certain goods from China pursuant to Section 301 of the Trade Act of 1974 (“the Section 301 tariffs”). USTR’s request for comments is available here.

Pursuant to the notice, USTR identified a list of 549 products for which the Trump Administration granted exclusion extensions — most of which expired on December 31, 2020 — and established a comment period to determine whether to reactivate those exclusions and set a duration for any exclusions granted.

The factors the USTR will consider in deciding whether or not to extend exclusions are similar to those considered during the prior Administration, including:

  • whether the particular product is available in the United States or other countries;
  • how changes in the global supply chain since September 2018 or any other relevant industry developments have impacted product availability;
  • the efforts the importers or U.S. purchasers have undertaken since September 2018 to source the product from the United States or other countries; and
  • domestic capacity for production in the United States.

USTR is also requesting qualitative views from commentators, including whether or not reinstating the exclusion will impact or result in severe economic harm to the commenter or to other U.S. interests — such as small businesses, employment, manufacturing, or critical supply chains — as well as 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.

If the USTR reinstates any of the exclusions, then such exclusions would be reinstated retroactively to merchandise entered, or withdrawn from warehouse, for consumption on or after October 12, 2021, so long as the entries are not liquidated by U.S. Customs and Border Protection (CBP). CBP typically liquidates an entry 314 days after entry, so the sooner importers file for and receive an exclusion extension, the greater the potential duty refunds for entries after October 12, 2021.

To submit a comment either supporting or opposing the reinstatement of a particular exclusion, commenters must use USTR’s portal here. The deadline to submit comments is December 1, 2021.