Many importers who were hit with Section 301 tariffs six years ago expected they would be rolled back in 18 months or two or three years, said Nicole Bivens Collinson, director of Sandler Travis's international trade and government relations practice. Then, once that didn't happen, they thought they'd see what happened in the Biden administration.
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.
Commerce Secretary Gina Raimondo told Senate appropriators that a proposed rule on connected vehicles should come out in the fall.
Full details about the Section 301 exclusion process will be revealed next week, but a White House memo said that importers of machinery in chapters 84 and 85 will need to submit requests for exclusions, even though the Office of the U.S. Trade Representative already has compiled a list of HTS codes it sees as appropriate targets for exclusions. The memo said there will be a way to register opposition to those requests, as well. The memo said the USTR "shall prioritize, in particular, exclusions for certain solar manufacturing equipment."
Sen. Marco Rubio, R-Fla., criticized President Joe Biden's decision to hike tariffs on Chinese electric vehicles under Section 301. Once the change is implemented, a Polestar or Volvo EV would be taxed at 102.5% rather than 27.5%. Rubio, in a letter sent May 14, said the tariff on cars with internal combustion engines must be equally high, because China exported 3.7 million ICE vehicles last year, compared with 1.2 million EVs.
The restriction that products that owe Section 301 tariffs will not be able to avoid Column 1 tariffs through the Miscellaneous Tariff Bill could greatly reduce how much money is saved by importers.
The administration will hike tariffs this year on steel and aluminum, solar cells (including in modules), ship to shore cranes, electric vehicles, lithium-ion EV batteries, battery parts, some critical minerals, certain respirators and face masks, syringes and needles, and will hike tariffs on other Chinese imports next year and in 2026. A White House fact sheet on the tariffs doesn't include more specific dates.
Section 301 China tariff changes outlined by the Office of the U.S. Trade Representative May 14 will take effect approximately 90 days after a request for comments that will be issued next week. That includes a 100% tariff on Chinese-origin electric vehicles, as well as the jump to 25% Section 301 tariffs on steel and aluminum products, ship to shore cranes, lithium-ion electric vehicle batteries, battery parts for non-lithium-ion batteries, "some critical minerals" and face masks, and a bump to 50% tariffs on solar cells, syringes and needles, the White House said in a fact sheet.
Rep. Jared Golden, D-Maine, introduced bills that would hike tariffs on green tech. One would add 25% tariffs to most favored nation tariffs for all battery components, solar energy components and wind energy components from China, with a hike of 5% a year until the rates reached 50%. The other, called Protecting American Autoworkers from China Act, would apply a 125% tax on Chinese autos -- not just electric vehicles -- over the MFN rate. That bill would apply to all cars built by Chinese-owned companies, even if they had a European or North American country of origin, "so that Chinese manufacturers cannot use other nations, such as Mexico, as a backdoor to avoid the tariffs."
Bloomberg reported that the White House will release the Section 301 tariffs review next week, with higher tariffs on electric vehicles, batteries and solar cells. The report said it's unclear if there will be any tariff reductions, "though large-scale reductions aren’t expected."
Trade groups, companies and a union that represent the aluminum and steel sectors told the Office of the U.S. Trade Representative that they need more protection from import competition, by expansion of the scope of Section 232 tariffs, and by re-negotiation of the rules of origin in both trade agreements and the Section 232 exclusion for Canada and Mexico.