The Court of International Trade in its April 1 remand order gave the Office of the U.S. Trade Representative “one final opportunity” to cure its Administrative Procedure Act violations and "flesh out" the reasons why it rejected the 9,000+ comments it received in the lists 3 and 4A Section 301 tariff rulemakings, without devising “new rationales for dismissing them,” Akin Gump lawyers for lead Section 301 plaintiffs HMTX Industries and Jasco Products said in comments on USTR’s Aug. 1 remand determination. “USTR’s response to that directive flunks the Court’s test,” they said (In Re Section 301 Cases, CIT #21-00052).
Section 301 tariff exclusions
The Office of the U.S. Trade Representative has established an exclusion process for Section 301 tariffs on China. In a series of rounds since the tariffs took effect, importers have been able to request exclusions from the tariffs, as well as extensions to existing exclusions. Many exclusions have been allowed to expire, as well. Section 301 exclusions are applicable to all importers of a given good, which may be defined as an entire tariff schedule subheading or a subset of a subheading outlined in a written description.
The Court of International Trade “bent over backwards” to allow the Office of the U.S. Trade Representative to comply with its Administrative Procedure Act obligations in its imposition of the lists 3 and 4A Section 301 tariffs on Chinese goods when it remanded the duties to the agency for further explanation on the rationale for the actions it took in the context of the comments it received, said an amicus brief filed Sept. 14 in the massive Section 301 litigation from the Retail Litigation Center, CTA, the National Retail Federation and four other trade associations. With USTR’s “non-responsive” answer to the remand order, the time has come for the court “to impose the normal remedy for unlawful agency action” and to vacate the lists 3 and 4A tariffs, it said (In Re Section 301 Cases, CIT #21-00052).
The following lawsuits were filed at the Court of International Trade during the weeks of Aug. 15-21 and 22-28:
Some companies said in recently submitted comments they used to benefit from Section 232 tariffs but no longer do. Others said they previously were able to mitigate the cost impact of Section 301 tariffs through exclusions, finding other suppliers or other trade benefits but can't anymore.
The Office of the U.S. Trade Representative often found itself weighing the possible harm to U.S. consumers from the lists 3 and 4A Section 301 tariffs against the need to give the duties enough teeth to curb China’s allegedly unfair trade practices, the agency said in its 90-page “remand determination,” filed Aug. 1 at the Court of International Trade (In Re Section 301 Cases, CIT #21-00052). Submitting its bid to ease the court's concerns over modifications made to the third and fourth tariff waves, USTR provided its justifications for removing various goods from the tariff lists ranging from critical minerals to seafood products.
Although President Joe Biden criticized President Donald Trump's China tariffs on the campaign trail, Peterson Institute for International Economics Senior Fellow Chad Bown said he always thought it was unlikely Biden would roll any of them back, because there are "huge political costs" to doing so, because opponents could label you as "weak on China."
Senate Majority Leader Chuck Schumer, D-N.Y., speaking on the floor of the Senate just before the CHIPS bill passed, said he wants the conference committee for the House and Senate China packages to continue negotiating.
Commerce Secretary Gina Raimondo acknowledged that lifting Section 301 tariffs is one of the few levers the White House has to lower inflation right now, but implied that President Joe Biden is hesitating because unions are arguing it would hurt workers.
Importers of finished goods and manufacturing inputs told the International Trade Commission across three days of testimony that the Section 301 tariffs are damaging profit margins, and in some cases lead to layoffs. But some unions and manufacturers said the Section 301 tariffs are deserved for Chinese abuses, and with the tariffs in place, the goods they make are more competitive. The International Trade Commission is studying the efficacy of Section 301 and Section 232 tariffs, and their economic impact.
Across three days of testimony July 20-22, the International Trade Commission heard from dozens of companies, trade groups and advocacy groups about the economic impact of Section 301 tariffs and Section 232 tariffs and quotas. The tariffs and quotas on metals inspired fewer witnesses than the China tariffs, but they were no less emphatic.The United Steelworkers said they strongly supported the tariffs and asked that they remain strong. Pete Trinidad, president of a USW local that represents 3,500 steel workers in Indiana, argued that the tariffs had either a small or no measurable effect on prices, according to a think tank study.