Jennifer Hillman asked me to post the following:
Does anyone know what the operative time frames are for the imposition of the China 301 tariffs?
The President’s memorandum of March 22, in using the language “unreasonable or discriminatory and that burdens or restricts U.S. commerce,” has made it clear that any tariff action falls under the “discretionary” half of 301 (subsection (b)) and must be considered an action taken pursuant to Section 302(B)(1)(A). The memo goes on to say that USTR shall publish a proposed list of products and any intended tariff increases within 15 days of the March 22 date of the memo—or by Friday, April 6, 2018—and that, after a period of notice and comment in accordance with section 304(b) and after consultations with appropriate agencies and committees, USTR shall publish its final list and implement its tariff increase.
My question relates to the reference to 304(b) (19 U.S.C. 2414(b)) and what constitutes a “determination.” Section 304 seems to contemplate that USTR will make two determinations at the same time: a) whether China’s practices are unreasonable or discriminatory and burden or restrict US Commerce, and b) what action to take. (Section 304(a)). Section 304(b), which is specifically referenced in the President’s March 22 memo, talks about consultations before the determinations are made and then sets forth requirements for: a) an opportunity (after giving not less than 30 days’ notice) for parties to present views, including a public hearing if requested, b) obtain advice from the appropriate committees, and c) possibly requesting probable economic effects advice from the USITC. Section 305 then goes on to state (with some possibility for exceptions) that any actions under 301 should be implemented not later than 30 days after the determination to impose a remedy is made.
Would others agree that neither of the two determinations has been made yet or is the release of the President’s memo and the March 22 release by USTR of the excellent FINDINGS OF THE INVESTIGATION INTO CHINA’S ACTS, POLICIES, AND PRACTICES RELATED TO TECHNOLOGY TRANSFER, INTELLECTUAL PROPERTY, AND INNOVATION UNDER SECTION 301 OF THE TRADE ACT OF 1974 constitute the first determination noted above? Note that the process leading up to the issuance of the FINDINGS included a request for consultations with the Chinese, two rounds of public comments and a hearing.
If neither determination as been made, when does the clock start ticking?
--when the list of products is released on April 6?
--whenever the public comments on the list and hearings (if requested) related to the list and changes to the list have been completed?
--when the advice from the private sector advisory committees has been provided?
--only after all of the above and USTR issues a revised list and formal determination of its “unreasonable and burdensome” findings?
Is all of this process subject to time limitations in the law other than the general 12 month limit in 304(a)(2)(B)?
When should we expect these tariffs to be implemented?
Anyone have any thoughts?
