Manufacturing & Distribution

On March 20, 2020, the United States Trade Representative (USTR) announced that it was accepting public comments on possible modifications to the tariffs imposed on Chinese products as a part of the Section 301 action to address “China’s acts, policies and practices related to technology transfer, intellectual property and innovation.”  See. Although many medical/health-related products were excluded from these tariffs, the USTR is seeking identification of additional products currently subject to the tariffs that may be beneficial to combatting the COVID-19 pandemic. The procedures and criteria for submitting the requested comments are set forth in a Notice to be published in the Federal Register on March 25, 2020.  The Notice is currently available here.

The USTR imposed the China tariffs in four “tranches” and established a process for requesting exclusions. Comments submitted in response to this Notice should focus on modifications to existing tariff lists—i.e., those imposed in the first and second tranches, rather than exclusions to the later tranches. The process for considering exclusions to the third and fourth tranches, which includes assessment of medical necessity, is ongoing and not affected by the Notice. Comments on proposed modifications are limited to the medical response to COVID-19.  As set forth in the Notice:

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.

Comments may be submitted regardless of whether the product at issue is the subject of a pending or denied exclusion request.

The USTR is accepting comments at least until June 25, 2020, under Docket Number USTR-2020-0014, but suggests that comments be submitted “as promptly as possible.”  Responses to comments may also be submitted.

For more information on this or any other intellectual property concern, please contact the author or another member of the Miles & Stockbridge Intellectual Property Practice Group.

This alert was written by Michael Doane, a lawyer in the Intellectual Property & Technology practice group at Miles & Stockbridge.

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