On September 8, 2022, the USTR issued a notice that the Section 301 tariff actions would remain in effect because at least one representative of a domestic industry that benefits from each action, as modified, submitted to the USTR a request for continuation of the action.

On October 17, 2022, the Office of the United States Trade Representative (USTR) published a notice in the Federal Register requesting comments in its four-year review of the actions taken in the Section 301 investigation of China’s acts, policies and practices related to technology transfer, intellectual property and innovation. The comment portal opens on November 15, 2022, at 12:01 a.m. Eastern and closes on January 17, 2023, at 11:59 p.m. Eastern. To ensure consideration, all written comments must be submitted through the online portal, docket number USTR–2022–0014.

Background of USTR’s Four-Year Review

On May 5, 2022, the USTR announced that under Section 307(c)(2) of the Trade Act (19 U.S.C. 2417(c)(2)), the Section 301 tariff actions, as modified, were subject to possible termination on their respective four-year anniversary dates (i.e., July 6, 2022, and August 23, 2022), and notified representatives of domestic industries that benefit from the Section 301 tariffs of the opportunity to request continuation of the actions.

On September 8, 2022, the USTR issued a notice that the Section 301 tariff actions would remain in effect because at least one representative of a domestic industry that benefits from each action, as modified, submitted to the USTR a request for continuation of the action. This notice also announced that, in accordance with Section 307(c)(3) of the Trade Act (19 U.S.C. 2417(c)(3)), the USTR would conduct a review of the Section 301 tariff actions.

Criteria Used in the Four-Year Review

The Trade Act requires USTR to conduct a review of: (A) the effectiveness in achieving the objectives of Section 301 of (i) such action and (ii) other actions that could be taken (including actions against other products or services), and (B) the effects of such actions on the United States economy, including consumers.

To aid in its review, USTR will open a docket from November 15, 2022, through January 17, 2023, for interested persons to submit comments on any aspect of the above considerations, including comments on:

• The effectiveness of the actions in obtaining the elimination of China’s acts, policies and practices related to technology transfer, intellectual property and innovation.
• The effectiveness of the actions in counteracting China’s acts, policies and practices related to technology transfer, intellectual property and innovation.
• Other actions or modifications that would be more effective in obtaining the elimination of or in counteracting China’s acts, policies and practices related to technology transfer, intellectual property and innovation.
• The effects of the actions on the U.S. economy, including U.S. consumers.
• The effects of the actions on domestic manufacturing, including in terms of capital investments, domestic capacity and production levels, industry concentrations and profits.
• The effects of the actions on U.S. technology, including in terms of U.S. technological leadership and U.S. technological development.
• The effects of the actions on U.S. workers, including with respect to employment and wages.
• The effects of the actions on U.S. small businesses.
• The effects of the actions on U.S. supply chain resilience.
• The effects of the actions on the goals of U.S. critical supply chains outlined in Executive Order 14017 and in subsequent reports and findings.
• Whether the actions have resulted in higher additional duties on inputs used for additional manufacturing in the United States than the additional duties on particular downstream product(s) or finished good(s) incorporating those inputs.

Prescribed Format of the Requested Comments

On November 1, the USTR published a comment form prescribing the submission format for public comments. The comment form separates the questions into three sections (A, B and C) and invites views concerning the Section 301 actions at increasing levels of specificity. Submitters should use one or more of these sections based on their views.

Section A invites comments on the effectiveness of the tariffs at an economywide level. Section B invites comments on the effectiveness of the tariffs at a sector/industry level, including comments on the effects of the actions on domestic manufacturing, supply chain resilience, U.S. workers and consumers of goods within the industry or sector. For Section B, submitters may define the sector/industry in accordance with the scope of their views, including by North American Industry Classification System codes, if known. Section C invites comments at the level of individual Harmonized Tariff Schedule of the United States tariff subheadings, including comments on whether those tariffs should be maintained, eliminated or modified, and whether additional subheadings should be added to the actions.

USTR’s portal will allow for the submission of business confidential information.

About Duane Morris

Attorneys in the firm’s International Practice Group have considerable experience in assisting clients in developing duty-saving strategies. Toward this end, Duane Morris attorneys have submitted numerous comments regarding Section 301 tariffs to the USTR.

For More Information

If you have any questions or comments about this Alert or the process for seeking to submit Section 301 comments, please contact Geoffrey M. Goodale, Brian S. Goldstein, Raul Rangel Miguel, Lauren E. Wyszomierski, any of the attorneys in our International Practice Group, any of the attorneys in our Government Contracts and International Trade Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.