SECTION 301 – Additional China Duty Status
Arguments, Motions Scheduled for Section 301 Tariff Lawsuit
Oral Argument Scheduled. On Thursday, June 17, the U.S. Court of International Trade (CIT) will hold an oral argument on plaintiffs’ motion for a preliminary injunction. The motion seeks to suspend the liquidation on entries involving the Section 301 duties challenged in the court cases.
The government filed a memorandum opposing the motion and plaintiffs have asked to court to permit the filing of a reply to that opposition. The government stated it would defer to the court on whether to accept a reply. Because most court precedent supports the fact that an Office of the U.S. Trade Representative (USTR)-directed function, e.g., Section 301 tariffs, where Customs and Border Protection (CBP) performs a ministerial role, e.g., collecting but not deciding whether to collect duties, is not a protestable decision, many practitioners had advised that protests were unnecessary to preserve Section 301 claims. However, recent activity in the case concerning the suspension of liquidation shows that even this threshold issue is not an entirely settled one.
Motion for Judgment or Dismissal Filed. On June 1, 2021, the government filed motions to dismiss and alternatively for judgment on the agency Record. The deadline for the response is Aug. 2 and the Section 301 Steering Committee is actively and collaboratively preparing that response.
Much of the government’s argument claimed that based upon its discretionary authority, the trade community’s case must not prevail, i.e., the administration was following the law. On the other hand, it can be argued that the relevant statutory Section 307 limits modification authority to narrow parameters that the president exceeded. Other considerations include the CIT’s authority to review the president’s actions and the claim that the presidential actions broke through the procedural guardrails and exceeded his authority in promulgating tariffs on goods included on Lists 3 & 4.
Letter to Biden. On a separate front, a group of importers independently sent a letter to the Biden administration asking to settle the case for the good of the country and alleviate the economic and social harms the tariffs have caused to the U.S. economy.
NCBFAA Customs Counsel Lenny Feldman provides that the government’s motions were expected and their substance was anticipated. The court’s decision on the preliminary injunction following the oral argument should provide some clarity as to whether protests may be required to preserve Section 301 claims.
The publication and authorship of this document is the National Customs Brokers and Forwards Association of America (NCBFAA).
