CBP Sees USTR's Draft Exclusions, Not Individual Petitions, in Section 301 Exclusion Reviews

CBP's role in considering Section 301 exclusion requests is limited to a review of drafted exclusions from the Office of the U.S. Trade Representative, a CBP spokesperson said. Asked whether CBP sees the full exclusion requests in their entirety, the spokesperson said "CBP does not review individual petitions for exclusions to the remedy." USTR "evaluates and approves requests for exclusions to the China 301 remedy," the CBP spokesperson said.

"CBP provides input as to whether an exclusion can be administered by CBP," the spokesperson said. "This consultation occurs as part of 'Stage 3' of USTR’s exclusion process, as identified in the 'Exclusion Request Status Index' for the exclusion process under each of the 301 Lists on the USTR website."

CBP considers multiple factors when looking at the exclusions provided by USTR, the spokesperson said. "Specifically, CBP reviews draft exclusions prepared by USTR primarily to flag those that include narrative descriptions of goods that are, on their face, not classified under the ten-digit HTSUS number referenced in the parenthetical. CBP will also flag draft exclusions that pose particularly significant administrative difficulties."

This may have been a shift from how the reviews went early on, said one customs lawyer who works on exclusion requests. "We didn’t know that CBP does not currently see what importers actually submit to USTR, which I think they did in the beginning," she said. "At some point the process changed to USTR drafting their own product descriptions for exclusions and sending them to CBP for approval.” While the specifics of CBP's review may not make for major differences, "at the very least, it means that our clients can stop fretting over whether CBP will agree with their proposed product exclusion language," she said.