301 Tariff Case Decision Expected Soon but Importers Can Still Join

Litigation challenging Section 301 tariffs is expected to see a court decision within the next few months, but importers of goods subject to the tariffs can still join the case to obtain potential refunds.

A case first filed with the Court of International Trade in 2020 and since joined by thousands of importers argues that the Section 301 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.

Oral arguments in this case are scheduled for Feb. 7. The focus will be whether USTR complied with its procedural burden under the APA in promulgating the tariffs. In April 2022 the CIT agreed that USTR’s near non-existent responses to 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.

After the oral arguments the three-judge panel will review the issue and publish a decision, likely within three to six months. The ruling is then 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, efforts to ameliorate the impact of the tariffs are continuing.

– 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.

– Hundreds of tariff exclusions were recently extended through Sept. 30.

– An ongoing USTR review could result in changes to the tariffs; comments are due by Jan. 17.