As importers await CBP guidance on imports from Hong Kong, some think there still may be more to come from a recent executive order suspending Hong Kong’s special status under certain trade laws. While the order only mentioned country of origin marking on the import side, “I also suspect that the details will continue to emerge and that other restrictions may be applied,” Lawrence Friedman of Barnes Richardson said by email.
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.
The Office of the U.S. Trade Representative will grant extensions to 14 exclusions from the second list of Section 301 tariffs on goods from China that were due to expire July 31, it said in a notice. The 55 exclusions that weren't extended, all listed in U.S. Note 20(o) to subchapter III of chapter 99 and filed under subheading 9903.88.12, will expire July 31. The 14 extended exclusions will now expire Dec. 31, USTR said.
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CBP issued the following releases on commercial trade and related matters:
A “key thing” about the Trade Act Section 301 tariff exclusions on Chinese goods that have been granted or extended is that most are set to expire Dec. 31, Nicole Bivens Collinson, president-international trade and government relations with Sandler Travis, said during a Sports & Fitness Industry Association webinar July 23. If President Donald Trump is reelected, she believes, his administration “will view that as a mandate” for eradicating tariff exclusions permanently, she said.
A recent executive order suspending Hong Kong's special trade status won't result in additional tariffs on goods from Hong Kong, a senior administration official said in a July 23 email. “The July 14, 2020, Executive Order on Hong Kong Normalization does not provide for new U.S. tariffs on goods from Hong Kong,” the official said. “The Administration will continue to evaluate and adjust our policies as conditions warrant.”
Rep. Kevin Brady, R-Texas, the ranking member on the Ways and Means Committee, said that incentives to move medicines, active pharmaceutical ingredients and medical supply manufacturing out of China and to the U.S. and “reliable trade partners” is something House Republicans would like to see as part of the next COVID-19 relief package.
The $38 million in Section 301 tariff costs iRobot incurred in 2019 inflicted a hit of three percentage points on its gross margin for the year, CEO Colin Angle said. IRobot assumes the List 3 tariff exclusion it landed in April on the robotic vacuum cleaners it sources from China will expire at the end of 2020, he said. The reinstatement of 25% tariffs on Chinese goods will result in a “similar contraction” to 2021 gross margin, he said. U.S. Trade Representative Robert Lighthizer “made it quite explicit” in congressional testimony last month that any granted List 3 exemptions “would expire at the end of the year,” Angle said. Lighthizer’s testimony “is the most explicit guidance that we have been given,” he said July 22 following quarterly results.
The Office of the U.S. Trade Representative issued another set of product exclusions from the fourth group of Section 301 tariffs on goods from China. The new exclusions from the tariffs include "11 existing ten-digit HTSUS subheadings and 53 specially prepared product descriptions, which together respond to 242 separate exclusion requests," according to the notice. The product exclusions apply retroactively to Sept. 1, 2019, the date the fourth set of tariffs took effect. The exclusions will be in effect until Sept. 1.
The Office of the U.S. Trade Representative announced a new round of product exclusions for products on the fourth list of Section 301 tariffs on products from China. New subheading 9903.88.53 will be used for the new exclusions. The new set of exclusions are reflected in “11 existing ten-digit HTSUS subheadings and 53 specially prepared product descriptions, which together respond to 242 separate exclusion requests,” according to the notice.