The Office of the U.S. Trade Representative complied with Administrative Procedure Act requirements when it set lists 3 and 4A Section 301 tariffs on China, the Court of International Trade held in a much-anticipated opinion on March 17. After USTR provided more explanation of its tariff decisions on remand, judges Mark Barnett, Claire Kelly and Jennifer Choe-Groves held that the explanations were not made impermissibly post hoc and cleared APA requirements.
Section 301 Tariffs
Section 301 Tariffs are levied under the Trade Act of 1974 which grants the Office of the United States Trade Representative (USTR) authority to investigate and take action to protect U.S. rights from trade agreements and respond to foreign trade practices. Section 301 of the Trade Act of 1974 provides statutory means allowing the United States to impose sanctions on foreign countries violating U.S. trade agreements or engaging in acts that are “unjustifiable” or “unreasonable” and burdensome to U.S. commerce. Prior to 1995, the U.S. frequently used Section 301 to eliminate trade barriers and pressure other countries to open markets to U.S. goods.
The founding of the World Trade Organization in 1995 created an enforceable dispute settlement mechanism, reducing U.S. use of Section 301. The Trump Administration began using Section 301 in 2018 to unilaterally enforce tariffs on countries and industries it deemed unfair to U.S. industries. The Trump Administration adopted the policy shift to close what it deemed a persistent "trade gap" between the U.S. and foreign governments that it said disadvantaged U.S. firms. Additionally, it pointed to alleged weaknesses in the WTO trade dispute settlement process to justify many of its tariff actions—particularly against China. The administration also cited failures in previous trade agreements to enhance foreign market access for U.S. firms and workers.
The Trump Administration launched a Section 301 investigation into Chinese trade policies in August 2017. Following the investigation, President Trump ordered the USTR to take five tariff actions between 2018 and 2019. Almost three quarters of U.S. imports from China were subject to Section 301 tariffs, which ranged from 15% to 25%. The U.S. and China engaged in negotiations resulting in the “U.S.-China Phase One Trade Agreement”, signed in January 2020.
The Biden Administration took steps in 2021 to eliminate foreign policies subject to Section 301 investigations. The administration has extended and reinstated many of the tariffs enacted during the Trump administration but is conducting a review of all Section 301 actions against China.
While the Section 232 tariffs increased domestic steel production by 5% and increased smelter utilization by about 15%, there was $3.4 billion less manufacturing across the most impacted metal consuming industries -- industrial machinery, cutlery and handtool factories; motor vehicle suspension and steering components; agricultural/mining/construction manufacturing, and metal fabricators, according to an International Trade Commission report.
The following lawsuits were filed at the Court of International Trade during the week of March 6-12:
The following lawsuits were filed at the Court of International Trade during the weeks of Feb. 20-26 and Feb. 27 - March 5:
The new Republican majority in the House Ways and Means Committee said it plans to do oversight across a multitude of trade policies advanced by the administration, including enforcement of trade agreements and trade negotiations for the Indo-Pacific Economic Framework for Prosperity (IPEF), the Americas Partnership for Economic Prosperity, the U.S.-Taiwan Initiative on 21st Century Trade and the U.S.-Kenya Strategic Trade and Investment Partnership. For existing FTAs, the committee said it wishes to identify provisions that should be updated to improve the agreements' benefits for the U.S.
The following lawsuits were filed at the Court of International Trade during the week of Feb. 13-19:
The following lawsuits were filed at the Court of International Trade during the week of Feb. 6-12:
Pillows made of Chinese fabric, but constructed in Mexico, are considered Chinese-origin for tariff purposes and subject to Section 301 measures, CBP headquarters said in a recently released ruling.
The head of the Ways and Means Committee's Trade Subcommittee said that the Generalized System of Preferences benefits program never should have lapsed for two years, and he believes there's interest among House Democrats and Republicans "to get this done in a direct fashion that is timely and useful."
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