USTR Expands Section 301 Exclusions for COVID-19 Health Care Products – International Law


United States: USTR expands Section 301 exclusions for medical care products related to COVID-19

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Strong points

  • The Office of the United States Trade Representative (USTR) has extended the exclusion of 81 COVID-related medical care products from China’s Section 301 duties for an additional six months.

  • The remaining 18 COVID-related exclusions were granted a 16-day transition period, with the exclusion ending on November 30, 2021.

The Office of the United States Trade Representative (USTR) has issued a Notice in the Federal Register November 16, 2021, extending product exclusions for COVID-19-related products covered by the USTR’s Section 301 investigation into China’s acts, policies and practices related to technology transfer, intellectual property and innovation. Early in the COVID-19 pandemic, the USTR sought comments on potential Section 301 exclusions for imports from China related to COVID-19. (See Holland & Knight’s previous alert, “Comments Sought on Section 301 Exclusions for China Imports Related to COVID-19”, April 15, 2020.) In total, exclusions had been granted for 99 products, which the USTR has continued to expand – most recently through September 30, 2021.

On August 27, 2021, the USTR published a Notice Seeking Public Comment on whether any of these exclusions should be extended, noting that each exclusion would be considered on a case-by-case basis. The notice stated that the USTR would consider a variety of factors in determining which exclusions to expand, including whether the spread of the Delta variant warranted further exclusion, whether the current level of domestic production required the continued importation of products from China and the impact of the exclusions on the objectives of combating China’s acts, policies and practices subject to the Section 301 investigation. After receiving feedback, the USTR extended the exclusions until November 14, 2021, to allow time to review submissions.

Ultimately, the USTR decided to extend the exclusions for 81 products for six months and to phase out the exclusions for the remaining 18 products, with a 16-day transition period ending November 30, 2021. Those who received the six-month extension are now eligible through May 31, 2022. The Federal Register notice explains that any product meeting the description – the scope of which is determined by the applicable 10-digit subheading of the Harmonized Tariff Schedule of the States United States (HTSUS) – is eligible and the USTR will continue to consider additional modifications and extensions as appropriate. Products eligible for COVID exclusions are listed in Appendices to Federal Register Notice published on November 16, 2021.

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