If a reelected President Donald Trump uses the existing Section 301 tariffs program to hike tariffs on all Chinese goods by at least 60%, that's likely to survive a court challenge, said two law professors who spoke during a Washington International Trade Association webinar on the executive branch's ability to make deals and impose trade restrictions without congressional say-so.
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 Aluminum Association is pleased by the hike in Section 301 tariffs on aluminum products -- even though it applies to more products than it wishes were covered -- and says Mexico's reporting is helping with trade remedies covering Chinese, Russian and Belarussian steel.
The following lawsuits were filed at the Court of International Trade during the weeks of Oct. 7-13 and Oct. 14-20:
Decoupling between the U.S. and China in the most technologically advanced products is real, economists said at an Oct. 21 Peterson Institute for International Economics event, but trade overall between the two countries continues to grow, if more slowly than trade with other partners.
A group of parents and other family members of those who overdosed on fentanyl are asking the Office of the U.S. Trade Representative to double the 25% Section 301 tariffs on lists 1 and 2 under the existing Section 301 action, combined with no de minimis eligibility for all Chinese goods.
Officials from Squire Patton Boggs said that if Donald Trump returns to the presidency, a 10% tariff or higher on a vast swath of imports could come very quickly, but what wouldn't be subject to the tariffs is not yet clear.
Treasury Secretary Janet Yellen, without naming Trump, criticized his economic approach, saying a broad-based tariff would be like a sales tax.
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Felicia Pullam, executive director of trade relations at CBP, defended the administration's proposal to end de minimis eligibility for goods subject to Section 301 tariffs as workable, arguing that charging a $2 fee per de minimis package will allow the agency to hire more staff to screen for contraband, and pushing back on industry arguments that collecting tariffs on low-value packages costs the agency more than that revenue.
Sandler Travis managing partner Lenny Feldman said that CBP decided to delay an ACE validation for de minimis shipments to a recipient that would exceed $800 a day, because "they realized when this hits, there's going to be a significant amount of cargo that's going to be above the threshold."