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Volume XIII, Number 152


June 01, 2023

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Section 301 Tariffs On China-Based Manufacturing: Here to Stay (For Now)

A recent decision by the U.S. Court of International Trade ("USCIT") means that tariffs on imports from China under Section 301 of the Trade Act of 1974 will remain in place for now.

In 2018, the United States imposed tariffs on various products imported from China under Section 301—identifying impacted products on Lists 1 to 4 as published in the Federal Register. As a result, supply chains struggled to manage the financial impact of the ad valorem tariffs ranging from 7.5% to 25%. 

In 2020, U.S. importers filed an action in the USCIT seeking to vacate tariffs for Lists 3 and 4A. The importers argued that the United States Trade Representative ("USTR") exceeded its authority and violated the Administrative Procedure Act ("APA") by, among other things, failing to allow sufficient time and process for notice and comment. Specifically, the plaintiffs contend that the USTR received thousands of comments opposing the imposition of the duties and failed to give any reasonable response to the comments other than those that relate to whether specific tariff items would be subject to the duties.

After allowing the USTR to address why its responses to the comments were appropriate, the USCIT affirmed the Section 301 tariffs on March 17, 2023—finding the USTR had given enough consideration to public input to satisfy its obligations under the APA.  

USCIT held that an agency must only respond to comments that raised significant problems—those "which, if true, raise points relevant to the agency’s decision and which, if adopted, would require a change in an agency’s proposed rule."  The USCIT emphasized that the standard that the agency must meet in responding to comments “is not particularly demanding.”  Rather, the USCIT will "uphold a decision of less-than-ideal clarity if the agency's path may reasonably be discerned." As such, the USCIT opined that the USTR was only required to show awareness of the comments and engaged in reasoned decision-making.

USCIT’s decision may be appealed to the Court of Appeals for the Federal Circuit. If an appeal is ultimately successful, refunds of Section 301 tariffs paid on List 3 and List 4A goods may become available to the litigants and the Section 301 tariff program may cease.​

© 2023 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XIII, Number 80

About this Author

Amy M. Johnston Detroit Commercial Attorney Miller Canfield

Amy M. Johnston is a Principal at Miller Canfield's Detroit office. She is a seasoned litigator who specializes in complex commercial disputes and class actions with an emphasis on banking, energy, manufacturing and real estate industries. 

With more than 25 years of courtroom and commercial arbitration experience, Amy has represented large and small companies in business, trade secret, anti-trust, PMPA, environmental, oil and gas royalties, electric energy, utility accounting, avoided costs, FERC, PURPA, class actions, construction, real estate...

Ahmad S. Mazloum Detroit Commercial Attorney Miller Canfield

Ahmad Mazloum is a Detroit Associate who works with Miller Canfield's Litigation and Dispute Resolution Group on complex commercial matters, including breach of contract, unpaid commissions, and non-competition claims. He represents a broad range of individual and corporate clients in both state and federal court. He is also experienced defending healthcare systems, skilled nursing and rehabilitation facilities against medical malpractice claims.

Ahmad graduated cum laude from the University of Detroit Mercy School of Law and the University of...

Jeffrey Richardson Mergers & Acquisition Lawyer

Jeffrey Richardson advises multinational clients in the information technology and defense sectors on matters including mergers and acquisitions, distribution agreements, joint ventures, and strategic corporate structuring. 

Specifically, Jeffrey brings expertise in matching operational business execution requirements with functional business structures. He is frequently engaged in advising clients of export control compliance, as well as the impact of intellectual property matters within business structures. His breadth of experience is informed by a business...