USTR Extends Section 301 Exclusions for COVID-19 Related Medical-Care Products

The Office of the U.S. Trade Representative (USTR) published a Notice in the Federal Register on Nov. 16, 2021, extending product exclusions for COVID-19-related products covered by 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, USTR solicited 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 USTR continued to extend – most recently through Sept. 30, 2021.

On Aug. 27, 2021, USTR published a Notice Requesting Public Comments on whether any of those exclusions should be extended, noting that each exclusion would be considered on a case-by-case basis. The Notice indicated that USTR would consider various factors when determining which exclusions to extend, including whether the spread of the Delta variant warranted a further exclusion, whether the current level of domestic production necessitated the continued import of products from China and the impact of the exclusions on the goals of combatting China's acts, policies and practices targeted by the Section 301 investigation. After receiving comments, USTR extended the exclusions until Nov. 14, 2021, to allow time to consider the submissions.

Ultimately, USTR has decided to extend the exclusions of 81 products for six months and to phase out the exclusions on the remaining 18 products, with a 16-day transition period ending Nov. 30, 2021. Those that received the six-month extension are now eligible until 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 Harmonized Tariff Schedule of the United States (HTSUS) subheading – is eligible and that USTR will continue to consider additional modifications and extensions if appropriate. The products eligible for COVID-related exclusions are listed in Annexes to the Federal Register Notice published on Nov. 16, 2021.

Please contact the authors of this alert if you have questions or need assistance navigating the exclusion process.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.