Volume I, No. XXXVI
USTR moves the China exclusions and the port fees to the same January cliff, by two different routes
Notices published November 10 carry the 178 Section 301 product exclusions and the suspension of the maritime fees to January 2027. One extension followed a comment period and a presidential direction; the other rests on ongoing discussions with China and comments gathered in 2025.
The two notices appeared on consecutive pages of the Federal Register on November 10, filed the same morning and signed by the same general counsel1,2. Each moves a piece of the 2025 China arrangement to January 2027. They differ in how they got there. The suspension of the maritime port fees came after a proposal, a comment period and about 60 comments, and it states that it was made “at the direction of the President”2. The extension of the 178 product exclusions from the 2018 China tariffs came with no new proposal at all; it cites “ongoing discussions with China” and comments received in response to a notice of September 20251. When this journal last examined the arrangement, the exclusions were four days from lapsing with nothing on file. They now share an end point with the port fees and with the Commerce Department’s Affiliates Rule stay, which runs “until January 10, 2027”3.
The instrument: section 307 and the duty to consult
Both actions rest on section 307 of the Trade Act of 1974 (19 U.S.C. 2417), which lets the U.S. Trade Representative modify or terminate a Section 301 action, subject to any specific direction of the President, when the burden of the foreign practice has risen or fallen, or when an action taken under section 301(b) is no longer appropriate4. Section 307(a)(2) adds a procedural condition. Before modifying an action, USTR must consult the petitioner, if any, and representatives of the affected domestic industry, and give other interested persons an opportunity to present their views4. Section 307(b) then requires prompt publication and a written report to Congress4.
The maritime notice follows that sequence on its face. USTR proposed the two-month extension on October 23, invited comments, and cites section 307(a)(2) by name2. Its legal finding is the one section 307(a)(1) supplies: the April 17, 2025 action, as modified, “is no longer appropriate” and will be suspended2.
The exclusion notice reaches the same section by a different path. It quotes section 307(a)(1) and then states that, “In light of ongoing discussions with China,” it is appropriate to extend all 178 exclusions1. For the consultation, it relies on the comments filed in response to USTR’s September 16, 2025 notice, earlier public comments, and the advice of advisory committees and the interagency Section 301 Committee1. USTR received no new comments for this decision because it requested none1. The notice does not mention a presidential direction. The 2025 White House fact sheet did: it listed the exclusion extension, then to November 10, 2026, among the American commitments in the deal reached by President Trump and President Xi Jinping5.
The mechanism: what changes at the border on November 10?
For importers of excluded goods, almost nothing changes, which is the point. The exclusion notice amends the article descriptions of HTSUS headings 9903.88.69 and 9903.88.70 by deleting “November 9, 2026” and inserting “January 9, 2027”1. The extension covers goods entered for consumption, or withdrawn from warehouse for consumption, from 12:01 a.m. eastern time on November 10, 2026 to 11:59 p.m. eastern time on January 9, 20271. Annex A covers every exclusion under 9903.88.69 and U.S. notes 20(vvv)(i) through (iv); Annex B covers those under 9903.88.70 and U.S. note 20(www), the heading created for the September 2024 solar manufacturing equipment exclusions1. Any product that fits a description qualifies, whoever originally asked for the exclusion1.
The text is not wholly consistent. The determination section says the exclusions run “until January 10, 2027,” while the DATES line and both annexes stop at 11:59 p.m. on January 91. The maritime notice has a related quirk in the other direction: its DATES line ends the suspension at the close of January 9, but it amends headings 9903.91.12 through 9903.91.16 to read “January 10, 2027”2. The practical difference is small, but for entry purposes the annex text of the exclusion notice is the operative language1.
Classification is where importers still carry risk. On July 1, 2026, several ten-digit statistical numbers covered by the exclusions changed. CBP’s September 22 guidance, CSMS # 69990649, told filers that goods formerly under 8413.91.9065, 8413.91.9085 or 8413.91.9096 are now described in 8413.91.9039, 8413.91.9046, 8413.91.9059 or 8413.91.9099, and that goods formerly under 3926.90.9910 now fall in 3926.90.9915 or 3926.90.99206. A follow-up message, CSMS # 70261629, updated that guidance; according to C.H. Robinson, it affects five exclusions under 9903.88.69, lists 8479.90.9596 among the affected numbers, and calls for review of entries filed on or after July 17. When 9903.88.69 is claimed, the ordinary Section 301 chapter 99 number must not also be reported6. CBP says duties paid on goods that should have been excluded can be recovered by post-summary correction within its time limit, or by protest6. The November 10 notice says CBP “will issue instructions on entry guidance and implementation”1.
On the maritime side, USTR states that during the suspension no party will accrue liability for, or be required to pay, the fees on maritime transport services under Annexes I, II and III of the April 2025 action, or the Annex V.A duties on ship-to-shore cranes and other cargo-handling equipment2.
The effect: who wanted the fees back
USTR’s summary of the maritime comments is the clearest public record of who gains from the suspension and who does not. Of roughly 60 unique comments, some supported the extension on the ground that it would “avoid increased shipping costs and prevent commercial disruptions”2. Some asked USTR to suspend one or all of the Annex III service fees permanently, warning of disruption to U.S. exports if the suspension lapsed, and others asked that the Annex IV restrictions be lifted for good2.
The opposition was framed as industrial policy. Those commenters argued that the fees are needed to create incentives “to invest in U.S. shipbuilding and related industries, such as containers,” and that without them China’s dominance across the three sectors “will increase”2. A further group took a middle position: it supported ending the suspension of the crane and cargo-handling tariffs and treating them separately from the service fees2. USTR did not split the action. It suspended the fees and the Annex V.A duties together, and it pointed to the White House’s February 2026 maritime action plan as the place where shipbuilding capacity will be pursued in the meantime2.
Holland & Knight noted before the decision that the proposed term was only two months, against a full year in 2025, and that stakeholders should be prepared for the fees and duties to resume after January 9, 20278. The final notice keeps that short term2.
The exclusion notice publishes no comparable summary. It names the factors it weighed in 2025, among them consistency with the Administration’s priorities and the effect of an extension on the goal of eliminating China’s practices1, but it gives no account of who uses the 178 exclusions now or what lapse would have cost.
The longer view: a shrinking list on a short leash
The exclusions are the remnant of a much larger program. USTR imposed the China technology-transfer duties in four tranches between June 2018 and August 2019 and created processes for importers to seek product exclusions; most of those exclusions expired in 2019 and 20201. In December 2023 USTR sought comment on 352 reinstated exclusions and 77 COVID-related ones, kept 164 in May 2024, added the fourteen solar equipment exclusions that September, and then renewed the resulting 178 in May, September and November 20251. The November 2026 extension is the latest in that series, and at two months the shortest.
The other side of the arrangement is moving on the same clock. China Daily reported on November 9 that China’s Ministry of Transport, with State Council approval, extended its suspension of special port fees on U.S.-linked vessels, and of a related investigation into its shipping and shipbuilding industries, until January 10, 20279. Under the 2025 deal, China also undertook to extend its own tariff exclusion process, with those exclusions valid until December 31, 20265. That date now falls inside the new window, and the record contains no statement on what replaces it.
Every instrument on both sides now points at January 9 and 10. USTR says it will decide before then whether to continue the maritime suspension “or whether further action is appropriate”2, and that it “may continue to consider further extensions or additional modifications” of the exclusions1. Neither notice says what happens on January 11.