Court Challenge to Section 301 China Duties – Refunds May be Available

A coalition of importers has filed a Court challenge to the U.S. Trade Representative’s imposition of Section 301 tariffs on List 3 and List 4A imports from China. For more than two years, the U.S. has assessed additional tariffs on hundreds of billions of dollars’ worth of Chinese goods pursuant to Section 301 of the Trade Act of 1974. These duties were imposed as part of a process intended to address intellectual property abuses by China. This coalition has claimed that the Section 301 tariffs on List 3 and List 4A goods were imposed in violation of the authority provided under the Trade Act and the Administrative Procedures Act. Specifically, this case asserts that Congress did not give the executive branch the power to wage a trade war, responding to China’s retaliatory tariffs, when it allowed for investigations targeting the Chinese intellectual property violations that underlie the Section 301 tariffs. Further, the case argues that the USTR ignored the statutory deadlines in Section 301 in promulgating List 3 and List 4A, making those actions invalid under the APA.

If this challenge is upheld, retroactive relief will only be available to those parties that have filed a complaint. Under the theory being pursued, the underlying challenge is to the USTR’s Notice of Modification of Section 301 Action published on September 21, 2018, and any challenge must be filed within 2 years of the date of the Notice. Therefore, importers must file their own independent claims to preserve their potential refunds by Friday, September 18, 2020. If this litigation is 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, would become available. Importers now have a very narrow window of opportunity to join this challenge and preserve their rights to such refunds by filing their own timely complaint. We are admitted to the Court of International Trade and can file for you at reasonable cost or and on a contingent basis if you prefer. Do not delay!