Background

The Court of International Trade heard oral arguments Feb. 2 in a case challenging the Section 301 tariffs on List 3 and 4A goods from China, and a decision is expected later this year. However, 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.

Litigation first filed at the CIT in 2020 and since joined by thousands of importers argues that the tariffs, which affect hundreds of billions of dollars’ worth of imports from China, were imposed in violation of the authority provided under the Trade Act of 1974 and the Administrative Procedures Act. If the test case being considered by the CIT is successful, refunds of all such tariffs, regardless of whether an exclusion was previously available or filed, will potentially become available.

During oral arguments presented to the CIT in a three-hour hearing Feb. 2, three major issues emerged. First, whether the CIT has authority to hear and decide the case, with the government arguing that presidential action is not reviewable by the CIT and the plaintiffs countering that the actions at issue were actually taken by the Office of the U.S. Trade Representative. Second, the circumstances under which the Section 301 statute allows for increases in tariffs, with the government arguing that it should be able to address increased harm resulting from the originally investigated actions but the plaintiffs asserting that this was not the rationale for the List 3 and 4A tariffs. Third, whether USTR complied with the APA in sufficiently considering public comments before taking action, with the government pointing out that USTR held hearings, removed tariff provisions from the final lists, and set up an exclusion process but plaintiffs noting that USTR’s only explicit response to thousands of comments and days of testimony was a single sentence indicating that the comments were considered.

The CIT will now deliberate on the arguments made (and any additional briefings on specific issues that it may deem necessary) and a final decision is expected in six to eight months, after which the losing party is likely to file an appeal with the Court of Appeals for the Federal Circuit.

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