Even though only 21 percent of the nearly 10,800 Section 301 exclusion requests have been adjudicated, Miller & Chevalier is drawing some qualified conclusions about what worked. The Office of the U.S. Trade Representative approved exclusions to the 25 percent tariff on 984 products from the initial $34 billion in Chinese imports targeted (see 1812240010). The two most important factors, the law firm said in an analysis published Jan. 2, are specificity around why the import could not be sourced outside China and concrete explanations on how the additional duties would hurt the requester.
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.
President Donald Trump issued a presidential proclamation Dec. 21 making changes to the tariff schedule that are set to be implemented Jan. 1. Among other changes, the proclamation formally ends African Growth and Opportunity Act benefits for Mauritania (see 1811050019), and amends the tariff schedule to clarify duty-free treatment for certain goods of Nepal under the Trade Facilitation and Trade Enforcement Act of 2015. Other technical and conforming changes are also being made related to the tariff treatment of guayaberas from Panama, the tariff-rate quota on tobacco products, implementation of Section 301 tariffs on China and the Miscellaneous Tariff Bill. The International Trade Commission will now amend the tariff schedule to implement the changes, though the agency is operating in a limited capacity due to the ongoing federal government shutdown.
The first set of products excluded from the initial tranche of Section 301 tariffs (see 1812240010) is hoped to be the beginning of good news from the Office of the U.S. Trade Representative, said David Cohen, a customs lawyer with Sandler Travis. "We hope that this is the first notification of many exclusions to be granted," Cohen said in an email. "Many of the articles subject to the tariff are those which are not related to the stated intent of the Section 301 action which is safeguarding technology and apply, in some cases, to products that utilize decades old commonly available technology. Moreover, the breadth of the coverage unfortunately sweeps in many products that in no way help China achieve her 2025 goals; for example a hand wrench is included. We hope the Administration continues to review the pending petitions and permit many other products to enter the US commerce free from the Section 301 duties."
The U.S Trade Representative issued its first list of product exclusions from Section 301 tariffs on products from China, granting full or partial exemptions for 22 10-digit tariff subheadings, according to a pre-publication copy of a notice posted to the agency’s website Dec. 21. The product exclusions apply retroactively as of July 6, the date the first set of tariffs took effect, and will remain in effect until one year after USTR publishes the notice in the Federal Register.
Christmas lights producers outside China appear to have doubled their volume of exports to the U.S. after the Section 301 tariffs more than doubled the tariffs on Chinese lights, according to the Coalition for GSP. The group decided to look at Christmas lights because nearly all of the imports happen from August through October, so the impact of the tariff jump on Chinese lights from 8 percent to 18 percent on Sept. 24 would show up immediately.
China’s foreign ministry said the U.S. must withdraw allegations against two state-linked Chinese hackers charged Dec. 20 with intellectual-property cybercrimes or risk endangering U.S.-China trade negotiations aimed at averting a March 2 increase in Section 301 tariffs on Chinese imports. China urges the U.S. “to immediately correct its wrongdoings, stop defaming and discrediting China on the cybersecurity issue, and withdraw its so-called charges against the Chinese nationals so as to avoid seriously damaging bilateral relations and bilateral cooperation in relevant fields,” said a spokesperson Dec. 21. In charging the two Chinese nationals with cybertheft, the U.S. “fabricated stories out of nothing and made unwarranted accusations against China on the cybersecurity issue,” she said. China “has been firmly opposing and cracking down on all forms of cyber espionage. The Chinese government has never participated in or supported others in stealing commercial secrets in any form.”
CBP issued the following releases on commercial trade and related matters:
Although PricewaterhouseCoopers expects trade will not return to normal with China for more than three years, experts on a Dec. 20 webcast said clients are mitigating increased tariffs through a variety of strategies, including lowering customs value, bonded warehouse use, modifying tariff codes and negotiating with suppliers or customers. "Probably 20 percent can be mitigated without making any changes to the supply chain," said Scott McCandless, a trade policy specialist for the firm.
The World Trade Organization agreed to form a panel on whether Russian retaliation for U.S. steel and aluminum tariffs is illegal, at the Dec. 18 meeting of the Dispute Settlement Body. A Russian official said its delegation was bewildered to hear the U.S. say that Russia is undermining WTO rules "when it is the U.S. arbitrarily imposing additional duties on steel and aluminium and using them as a squeezer in order to allow the US, with different degrees of success, to get trade concessions from certain members," a summary of the meeting said. According to a Geneva trade official, there now have been five panels formed on retaliatory tariffs responding to the Section 232 tariffs. At the same meeting, the U.S. blocked a first request by China to form a panel to judge whether U.S. tariffs on Chinese goods under Section 301 are legal. Its delegation said that the two parties are in negotiations, and that's the right place to settle the conflict, not the WTO. The panel will automatically be authorized at next month's Dispute Settlement Body meeting. China said U.S. tariffs are damaging the global economy and damaging global industrial supply chains.
CBP created Harmonized System Update (HSU) 1820 on Dec. 18, containing 19,061 Automated Broker Interface records and 3,393 harmonized tariff records, it said in a CSMS message. The update includes changes related to the delayed increase of Section 301 tariffs on goods from China (see 1812180010), CBP said. Other changes "include the annual special program staged rate reductions mandated by the individual Free Trade Agreements," it said. "This update also contains modifications mandated by the 484 F Committee, the Committee for Statistical Annotation of Tariff Schedules. These adjustments are effective on January 1, 2019 and will be published within the change record, and chapters, of the 2019" Harmonized Tariff Schedule of the United States.