Initiatives within the executive, legislative, and judicial branches of the U.S. government could offer relief from the Section 301 tariffs on hundreds of billions of dollars’ worth of imports from China, but only one is currently making any forward progress.
A case first filed with the Court of International Trade in 2020 and since joined by thousands of importers argues that the tariffs on List 3 and List 4A goods were imposed (1) in violation of the authority provided under the Trade Act of 1974 because there was no specific finding from the Office of the U.S. Trade Representative on the impact of China’s actions on U.S. trade, and (2) in violation of the Administrative Procedures Act because USTR failed to allow sufficient time and process for notice and comment and failed to adequately respond to the thousands of comments received.
In April the CIT agreed that USTR’s near non-existent responses to the comments violated the APA and sent the matter back to USTR for an explanation of why it imposed the List 3 and 4A tariffs and how it addressed the comments. USTR filed its 90-page response with the CIT on Aug. 1. Some form of additional briefing on this response is anticipated, and parties to the case have been instructed to file by Aug. 15 a joint status report and proposed schedule for the remainder of the litigation. The CIT is still expected to conclude its review sometime this fall, and whatever decision it issues is almost certain to be appealed to the Court of Appeals for the Federal Circuit.
If this case is ultimately successful, refunds of all Section 301 tariffs paid on List 3 and List 4A goods, regardless of whether an exclusion was previously available or filed, will potentially become available. Importers can still preserve their rights to possible refunds of these tariffs by joining the case. For more information, or assistance filing your claim, please contact attorneys Larry Ordet, Lenny Feldman, Rob DeCamp, or David Cohen at 301Litigation@strtrade.com.
In the meantime, the trade community is still awaiting the results of USTR’s sunset review of the Section 301 tariffs. While an announcement of the continuation or lifting of these tariffs had been anticipated around July 5, USTR has still made no formal announcement and the tariffs thus remain in effect, ostensibly because domestic entities requested the continuance of the tariffs. A second window for comments on the List 2, 3, and 4A tariffs remains open until Aug. 22, and a third window is expected to open sometime after that date for comments on why the tariffs should be removed. Due to the APA concerns in the lawsuit, USTR will likely allow time to consider all comments before taking any action.
Finally, provisions that would have created new processes for imposing and granting exclusions from Section 301 tariffs were dropped from legislation to bolster U.S. competitiveness against China, which was ultimately narrowed to focus on the domestic semiconductor manufacturing industry and is now awaiting President Biden’s signature. There has been speculation that these and other trade provisions could be added to another legislative vehicle or incorporated into a standalone bill later this year.
Amid these developments, efforts to ameliorate the impact of the tariffs are continuing.
- ST&R is assembling coalitions on housing affordability, the music industry, and children’s products to address USTR’s review and related issues (for more information, please contact Nicole Bivens Collinson at (202) 730-4956 or via email or Angela Marshall Hofmann at (202) 730-4957 or via email).
- ST&R is advocating for the renewal of all previously approved exclusions and the creation of a process allowing for new exclusion requests (for more information, please contact strdc@strtrade.com).
- There are a number of proven and legitimate ways to effectively avoid the tariffs or limit their impact (click here for more information).
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