The Department of Justice wants the U.S. Court of International Trade to include two documents that the Office of the U.S. Trade Representative “realized” were missing from the administrative record filed April 30 by the government in the Section 301 litigation, it said in a Feb. 15 motion to correct the record. USTR Assistant General Counsel Megan Grimball said in a declaration that the documents were “inadvertently omitted.” DOJ said USTR discovered the omissions in the two weeks since the Feb. 1 oral argument.
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:
Challenge to Lack of Section 301 Refund Not an Entry-Specific Matter, Importers Tell Federal Circuit
A CBP protest was not needed to establish jurisdiction in two companies' challenge to CBP's assessment of Section 301 tariffs on goods subsequently granted a tariff exclusion since the challenge is not an entry-specific matter, the companies, ARP Materials and Harrison Steel, said in a Feb. 7 brief. Replying to the U.S.'s arguments at the U.S. Court of Appeals for the Federal Circuit, the plaintiff-appellants said that their challenge has jurisdiction under Section 1581(i), the trade court's "residual" jurisdiction provision, since the action relates to CBP's imposition of the requirements of an "inapt statute" to all the entries excluded from tariff lists 2 and 3 (ARP Materials Inc. v. United States, Fed. Cir. #21-2176).
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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 Court of International Trade heard oral argument on Feb. 1 over whether lists 3 and 4A of Section 301 tariffs were properly imposed, marking one of the largest cases in the CIT's history. The hourslong affair saw the judges push back on arguments made by both the Department of Justice and the plaintiffs, with significant attention paid to the procedural elements of the president's decision to impose the retaliatory Section 301 tariffs on billions of dollars worth of Chinese goods. In all, the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves heard from the Department of Justice, counsel for the test case plaintiffs HMTX Industries and Jasco Products, and amici.
The following lawsuits were recently filed at the Court of International Trade:
The massive Section 301 litigation that has inundated the U.S. Court of International Trade since the first cases were filed 16 months ago enters a critical new phase Feb. 1 when oral argument is scheduled for 10 a.m. EST before the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves. Virtually all the thousands of complaints seek to vacate the lists 3 and 4A tariffs on Chinese imports and get the duties paid refunded with interest on grounds that the Office of the U.S. Trade Representative overstepped its tariff-wielding authority under the 1974 Trade Act and violated protections in the 1946 Administrative Procedure Act (APA) against sloppy federal agency rulemakings.