The Office of the U.S. Trade Representative complied with Administrative Procedure Act requirements when it set lists 3 and 4A Section 301 tariffs on China, the Court of International Trade held in a much-anticipated opinion on March 17. After USTR provided more explanation of its tariff decisions on remand, judges Mark Barnett, Claire Kelly and Jennifer Choe-Groves held that the explanations were not made impermissibly post hoc and cleared APA requirements.
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 recently filed at the Court of International Trade:
The Court of International Trade upheld the U.S. Trade Representative's Lists 3 and 4A tariff action under Section 301 on China in a widely-anticipated decision on March 17. After the tariffs were previously sent back over concerns of compliance with the Administrative Procedures Act, the USTR offered further explanations of its tariff decisions. Judges Mark Barnet, Claire Kelly and Jennifer Choe-Groves held that these explanations were not made impermissibly post hoc and cleared APA requirements.
The following lawsuits were recently filed at the Court of International Trade:
The following lawsuits were recently filed at the Court of International Trade:
The following lawsuits were recently filed at the Court of International Trade:
The following lawsuit was recently filed at the Court of International Trade:
The following lawsuit was recently filed at the Court of International Trade:
The following lawsuit was recently filed at the Court of International Trade:
The following lawsuits were recently filed at the Court of International Trade: