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.”

First sale treatment may not be applicable to transactions involving non-market economies, including China, Court of International Trade Senior Judge Thomas Aquilino said in a March 1 decision. In a ruling on cookware imported by Meyer from Thailand and China through a Chinese middleman, the trade court found the involvement of Chinese companies made it difficult to determine whether the transaction was at arm's length and undistorted by non-market influences, as required for first sale valuation. Though he stopped short of saying imports originating in non-market economies could never receive first sale valuation, he called on the U.S. Court of Appeals for the Federal Circuit to clarify.

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 Section 301 tariffs on Chinese imports “touched directly a lot of people and have disrupted a lot of people’s lives and livelihoods,” said Katherine Tai, President Joe Biden’s nominee for U.S. trade representative, at her Senate Finance Committee confirmation hearing Thursday. She was asked how, if confirmed, she would revise USTR's tariff exclusion decisions that critics during the Trump administration called inconsistent and lacking transparency. During the three-hour hearing, she didn’t say whether she favored keeping or eliminating the tariffs themselves.

Friederike Gorgens, previously with Arent Fox, joined Greenberg Traurig as of counsel in the firm's international trade practice. At Arent Fox, Gorgens was listed as one of the litigators in the case challenging lists 3 and 4A of the Section 301 China tariffs. Arent Fox is one of the largest law firms involved in the litigation, representing more than 50 of the lawsuits against the tariffs.

Thompson Hine trade attorney Dan Ujczo expects the only activity on trade in the first eight months of Joe Biden's presidency will be on issues either so small that they don't make a splash -- such as the Miscellaneous Tariff Bill and the Generalized System of Preferences benefits program -- or on issues that have an immediate need for action.

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.

Katherine Tai, President Joe Biden’s nominee for U.S. trade representative, enjoys broad bipartisan support in Congress through her work as a U.S.-Mexico-Canada Agreement negotiator as House Ways and Means chief trade counsel, said Nicole Bivens Collinson, Sandler Travis president-international trade and government relations, at a Sports & Fitness Industry Association webinar Tuesday. If all goes as well as expected with her confirmation process Tai could be sworn in as USTR as soon as March 8, said Collinson. At Tai’s Senate Finance Committee confirmation hearing Thursday, she will be asked "many questions" about the Biden administration’s posture toward the Section 301 tariffs on China, said Collinson. The new administration has shown it’s “not moving anytime soon to remove those tariffs,” she said, and it’s possible Tai, as USTR, will “restart” the tariff exclusion process. Most of the remaining exemptions expired Dec. 31, except for COVID-19-related exclusions, which are scheduled to lapse next month. “We know there’s a strong push” in Congress and the business community to reinstate the exclusions and extend previously expired exemptions, she said. If the administration decides to do neither, “they could wait to see what happens” with the massive Section 301 litigation at the U.S. Court of International Trade, she said. “It’s very possible” the court’s three-judge panel could render an opinion by September or October, Collinson said. “They could come out and say these tariffs did exceed the statutory authority, and therefore they are illegal.” There’s speculation the administration won’t appeal the opinion to the Supreme Court if the plaintiffs prevail, she said. “This could be an easy way for the Biden administration to say we’re going to remove the tariffs because the courts have ruled the previous administration exceeded its statutory authority." Though Collinson isn't a lawyer, Sandler Travis has several attorneys representing importer plaintiffs in various Section 301 cases, the litigation’s docket report (in Pacer) shows. The White House didn’t comment.