The Court of International Trade (“CIT”) saw nearly 3,000 complaints filed over a period of four days from Friday, September 18, 2020 to Monday, September 22, 2020 challenging the United States Trade Representative’s (“USTR”) authority to levy Section 301 Tariffs on products found on List 3 (and frequently, also those also found on List 4A) (“List 3 Tariffs”). These complaints dovetail from the lead case which first raised this issue, filed on September 10, 2020, HMTX Industries LLC et al. v. United States.
Plaintiffs have generally taken the position that, while initial retaliatory tariff action reflected in the implementation of Section 301 Tariffs on products found on List 1 and List 2 may have been lawful, the USTR’s subsequent round of actions (i.e., List 3 and List 4A) failed to comply with requirements under the Administrative Procedures Act. These lawsuits, if successful, may ultimately eliminate List 3 (and where applicable, List 4A) tariffs and result in refunds. It remains to be seen whether refunds would be applicable to all importers, or only those who filed complaints. Further action could be warranted in the latter case for those parties which elected not to file lawsuits but subsequently wish to pursue action to receive refunds on duties paid. Importers may also still challenge exclusion denials, extension denials, and the shortening of granted List 3 exclusions.
There remain conflicting opinions as to when the deadline to file a complaint contesting List 3 Tariffs expires (or expired). The statute of limitations to file a complaint at the CIT expires after two years – the outstanding question is when this deadline first began tolling. Some argue that the deadline expired on Friday, September 18, 2020, starting the timer from the USTR press release which first announced the finalized list of covered tariff numbers included in List 3. Others point to Monday, September 21, 2020, which is two years from the date on which the finalized list of covered tariff numbers was first published in the Federal Register. Still others take the position that the deadline is September 24, 2020 (the date the tariffs actually took effect), or, possibly a later date corresponding to when an importer was first assessed a duty on an imported List 3 product. There is therefore still time as of the publication of this blog, arguably, for importers to “throw their hat in the ring” with respect to contesting List 3 Tariffs. We can additionally expect another round of lawsuits contesting List 4, but the expiry of the statute of limitations for those products remains around a year in the future at the earliest.
Regardless of the outcome at the CIT, importers can expect there will be at least one appeal to the Court of Appeals, and possibly another appeal to the Supreme Court. Importers should therefore not expect any resolution on this question in the near future.