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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 following lawsuits were filed at the Court of International Trade during the weeks of May 13-19 and May 20-26:
The Office of the U.S. Trade Representative decided to extend 164 Section 301 tariff exclusions through May 31, and the other 265 exclusions will expire June 14.
The Office of the U.S. Trade Representative decided that 164 exclusions from Section 301 China tariffs -- including for fabrics, bras, electric motors, sterile drapes, hunting stands, bicycle trailers, auto rearview mirrors and more -- will continue to avoid the tariffs through May 31, 2025, while 265 exclusions will expire June 14.
The U.S.-China Economic and Security Review Commission, shortly after the administration chose to keep and expand the Section 301 tariffs (see 2405220072), grappled with what it should recommend to Congress on how to use trade policy to counteract trade distortions from China's communist-run economy.
The auto industry welcomes the pre-emptive tariff on Chinese electric vehicles -- it is going from 27.5% to 102.5% Aug. 1 -- but says that higher Section 301 tariffs on lithium-ion batteries and the minerals used to make those batteries work are counterproductive to the goal of helping automakers catch up to China's head start.
Solar manufacturing equipment imported from China will automatically be exempt from 301 tariffs, but a notice published by the Office of U.S. Trade Representative is unclear on when those tariffs will be lifted. A spokesperson said they will be effective on the day the notice is published in the Federal Register.
Five products identified by the Biden administration as deserving 100% Section 301 tariffs for strategic reasons -- electric vans, buses, low-speed golf-cart like EVs, electric cars, and plug-in hybrids -- will see higher rates on Aug. 1.
A Federal Register notice that will be made public this week will announce decisions on which of the current Section 301 tariff exclusions can continue, according to Brian Janovitz, chief counsel for China trade enforcement in the Office of the U.S. Trade Representative.
Former House Ways and Means Committee Chairman Kevin Brady of Texas, who led the committee when the major tax cuts were written and passed during the Trump administration, is joining Akin's lobbying practice. Brian Pomper, former chief international trade counsel when Sen. Max Baucus, D-Mont., led the committee, now is co-lead of the lobbying practice. He said: "With the novel USMCA review process starting in earnest next year and the need to navigate difficult trade issues like the Section 301 tariffs on China, Brady’s distinguished career at the forefront of shaping trade policy will bring unparalleled perspective and insight to our clients at a critical time.”