Since the end of 2020, almost all companies were forced to begin paying the Section 301 duties as most available exclusions expired. This was a major hit for companies who were relying on the exclusions, as the additional duties were either 25% (List 1, 2, and 3) or 15% (List 4A). In August 2021, the Office of the United States Trade Representative ("USTR") released a process to reinstate certain exclusions that were previously valid.1 After months of review, on March 28, 2022, the USTR released the list of Section 301 exclusions that would be reinstated.2 If a company can utilize one or more of the reinstated exclusions, it means it no longer must pay the additional tariffs for those specific products. With that in mind, here is some of the notable information from the recent FR Notice:
- List 1: There were a total of six full Harmonized Tariff Schedule of the United States ("HTS") headings that were excluded. These fall within Chapters 84, 85, and 90. There were also eighty-three product specific exclusions that were reinstated. Most of these reinstatements were also within Chapters 84, 85, and 90.
- List 2: While there were zero full HTS headings that were excluded, there were thirty-four product specific exclusions that were approved. Most of these product specific exclusions fall within Chapters 39, 84, 85, 87, and 90.
- List 3: There were a total of nineteen full HTS headings that were excluded. Most of these fall under Chapters 03, 56, and 87. There were also one hundred and sixty-eight product specific exclusions that were reinstated. These fell within a variety of Chapters within the tariff, with the majority being in Chapters 84, 85, and 94 (furniture).
- List 4A: There were a total of eight full HTS headings that were excluded. There were also thirty-four product specific exclusions that were reinstated. These fell within a variety of Chapters within the tariff, with the majority being in Chapters 39, 61, and 90.
The recently reinstated exclusions are valid through December 31, 2022. It is likely that an additional reinstatement process will be opened around that time where importers can request the same exclusions be reinstated for the following calendar year. Along with the exclusions being valid through 2022, importers can request refunds dating back to when the comment period for the reinstatements occurred (October 12, 2021). It is important to note that any importer can utilize the reinstated exclusion and that a company did not have to be the original submitter of the reinstatement comment to seek refunds.
If a company identifies previously imported merchandise between October 12, 2021, and the merchandise is covered by one of the reinstated Section 301 exclusions, it can work with its broker or attorneys to obtain the money. This can either be done through a protest if the entries have liquidated, or the more likely scenario, a post-summary correction, if the entries have not liquidated. Within the March 28th FR Notice, the USTR provided new subheading 9903.88.67 which can be used moving forward (and to obtain refunds) to show that a product qualifies under one of the reinstated Section 301 exclusions.
Footnotes
1. There was a total of 549 eligible exclusions for comment. To be eligible, the exclusion had to have been previously extended by the USTR. See https://ustr.gov/sites/default/files/files/Notices/Section%20301%20China%20Request%20for%20Comments/Index%20of%20549%20Previously%20Extended%20Exclusions.pdf.
2. https://ustr.gov/sites/default/files/notices/87%20FR%2017380.pdf
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