USTR Opens New Portal to Apply For Exclusions from Section 301 Tariffs on Imports from China That Impact COVID-19 National Emergency
On March 20th, the United States Trade Representative (USTR), the government office that administers Section 301 of the Trade Act of 1974 and which implemented four tranches of tariffs on products in China in retaliation for Chinese practices affecting US Intellectual property and market access, announced a new comment period for Public Comments to Identify Additional Products Potentially Helpful to U.S. Response to Coronavirus Crisis. USTR noted that in consultation with the Department of Health and Human services many health-related products were not originally covered, including: “critical medicines and other essential medical products including parts needed for MRI devices, combined PET/CT scanners, certain radiation therapy equipment, air purification equipment, and parts of homecare beds; sterile electrosurgical tools; digital clinical thermometers”; Id. In its website announcement the USTR indicated that in an “effort to keep current on developments in our national fight against the coronavirus pandemic, USTR has opened 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”.
The time period for such requests is open until June 25, 2020, but it was indicated that requests would be granted on a rolling basis. The USTR indicated that this special opportunity was in addition to the exclusion process for 301 already in effect. Although the windows for new exclusions under the various lists of prior Chinese tariffs lists 1, 2, 3, and 4 have closed, new exclusions are still being granted periodically, see e.g. Butzel Long Client Alert, and there have been opportunities to extend the one-year expiration of these tariffs as well as for parties other than the original applicants to take advantage of exclusions granted to others for the same product.
The notice on the USTR website was followed by a more formal Federal Register notice with more detailed filing requirements. See also Federal Register /Vol. 85, No. 58 /Wednesday, March 25, 2020,/Notices 16987.
The Federal Register Notice specifically set out certain information that must be included in the comment as follows:
Each comment specifically must identify the particular product of concern and explain precisely how the product relates to the response to the COVID–19 outbreak. For example, 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. Id at 16998.
Responses to comments are permitted within three days of posting, indicating that perhaps the USTR is intending to expedite the process. In earlier opportunities comments were often permitted for 15 days.
Butzel Long attorneys have assisted clients in the past in applying for and obtaining exclusions and are available to assist.
Leslie Alan Glick
Raul Rangel Miguel
Bill Quan Yang