Industry News

Section 301 Litigation Update

Jul. 27, 2021


In the past month there has been some noteworthy activity in the U.S. Court of International Trade (CIT) litigation challenging the Section 301 List 3 and List 4A duties. Namely, on July 6 the Court of International Trade issued an injunction preventing Customs and Border Protection from liquidating entries subject to this litigation. The CIT has also ordered the U.S. government to create a repository for plaintiffs to identify any unliquidated entries affected by the List 3 and List 4A duties. For the identified entries, the government must either stipulate to the availability of refunds or suspend liquidation, to assure the availability of at least some refunds for duties paid should plaintiffs prevail on the merits.

As background, this all began with on September 10, 2020, when importer HMTX Industries LLC filed a lawsuit at the CIT challenging the U.S. Trade Representative’s (USTR) authority to assess Section 301 List 3 duties on certain products originating from China, as well as the USTR’s procedural steps to implement those duties. The complaint was later amended to include Section 301 List 4A duties.

Since that initial lawsuit was filed, thousands of other lawsuits have been filed challenging the List 3 and/or List 4A Section 301 duties on the same or similar grounds as the original HMTX case. The parties are now in the process of finalizing the deadlines and sorting out what information the plaintiffs will be required to submit to Customs for the repository. It is likely there will be a template from Customs that will need to be completed and submitted. The repository was originally due August 6, 2021, however, the government has requested additional time to set up a CBP process for receiving the data from plaintiffs. It is not yet possible to predict on what date CBP will issue its preferred template and instructions for filing.

If you have questions about gathering information for the repository or filing litigation in the matter, please contact a Barnes, Richardson & Colburn attorney. Note, all the filings in this matter are available for review through the Court’s CM/ECF system (In Re Section 301 Litigation, Court No. 21-0052).