Two and a half years after the first Section 301 tariffs went on what ultimately covered the vast majority of imports from China, most of the public lobbying is about renewing exclusions, or offering another round of exclusion applications to be submitted. Lawyers and advocates differ on how they think lobbying will develop over the course of 2021, as President Joe Biden gets his trade team in place. Dan Ujczo, senior counsel at Thompson Hine, said he thinks the focus on exclusions is because businesses have gotten the message on 301s from the administration, which he described as: “brace for these to be around. These aren’t going away anytime soon.”
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.
Across dozens of pages of written answers to Senate Finance Committee members, U.S. trade representative nominee Katherine Tai often avoided directly answering questions, instead pledging to work with senators on their priorities. One of the most common questions posed to Tai was whether she would renew Section 301 exclusions that expired last year; as well, whether she would allow companies that were denied exclusions another chance at a request; and whether she would reopen the exclusion process.
U.S. trade representative nominee Katherine Tai said that despite the president's prioritizing of the domestic economy, “I don't expect, if confirmed, to be put on the back burner at all.” Tai, a veteran of the House Ways and Means Committee trade staff, faced largely friendly questioning over a more-than-three-hour hearing in the Senate Finance Committee on Feb. 25.
The American Apparel and Footwear Association told President Joe Biden that the Section 301 exclusion that covers cloth masks will be expired on April 1, and that it needs to be extended past then, since the COVID-19 pandemic will not be over. They said in a news release that without that exclusion, the tariff rate on personal protective equipment will double.
Katharine Tai, President Joe Biden’s nominee for U.S. trade representative, enjoys broad bipartisan support in Congress through her work as a USMCA negotiator when she was House Ways and Means Committee chief trade counsel, Nicole Bivens Collinson, Sandler Travis president-international trade and government relations, told a Sports & Fitness Industry Association webinar Feb. 23. Tai’s Senate Finance Committee confirmation hearing is set for 10 a.m. Feb. 25, and she’s going to be asked a lot of questions about the Biden administration’s posture toward the Section 301 tariffs on China, Collinson said. If all goes as well as expected with her confirmation process, Tai could be sworn in as USTR as soon as March 8, she said.
Many expect trade policy under the Biden administration to be more worker-focused than consumer-focused, but many specifics remain undecided. “The jury is still out on what that pro-worker trade policy will look like in practice,” said Joshua Boswell, a lawyer at Crowell & Moring. Boswell spoke to a webinar audience Feb. 17 on the 2021 trade outlook and said such predictions don't tell you much about tariffs, free trade negotiations or trade remedies in and of themselves.
The following lawsuits were filed at the Court of International Trade during the week of Feb.8-14:
Board members and people who provide services to foreign-trade zones talked about what the National Association of Foreign-Trade Zones should work on now that it lost the battle on USMCA rules of origin treatment for goods produced in those zones. “Now that provision’s back in the act, it’s going to be a real challenge,” said Melissa Irmen, chair of the NAFTZ board. The group wants to make sure a U.S.-United Kingdom free trade agreement doesn't prohibit goods made in FTZs from qualifying for rules of origin, as USMCA does. “They are concerned that the USMCA approach could be a precedent.”
President Donald Trump didn't get China to agree to much in the way of structural changes, panelists said, but Asia Society Policy Institute Vice President Wendy Cutler said he put China front and center on the agenda, which was good. “He was really willing to take on the business community when it came to China,” she said. Cutler, who worked at the Office of the U.S. Trade Representative for more than 25 years, said that when she was at USTR, one of her frustrations in trying to negotiate with China was that U.S. “companies were pretty conflicted. They liked the … money they were making. They wanted us to be quote, unquote tough with China, but they didn’t want to be part of the get-tough strategy. Our hands were tied in a way.”
The following lawsuits were filed at the Court of International Trade during the week of Feb.1-7: