Hundreds More Ask Court to Vacate List 3, 4A Tariffs on Chinese Goods
The U.S. Court of International Trade should “set aside” the List 3 and 4A Section 301 tariffs on Chinese imports as “ultra vires” (“beyond the powers”) of the Office of the U.S. Trade Representative and order the duties refunded to U.S. importers, said tech companies Dana Innovations, Foster Electric, GN Audio, Scosche Industries and Sharp Electronics in five virtually identical complaints (in Pacer). They were among hundreds filed Thursday and Friday accusing USTR of overstepping Trade Act authority and violating the Administrative Procedure Act safeguarding transparent rulemakings.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The suits attempt to seize on a potential tariff refund opportunity, if floor-tiling plaintiffs HMTX Industries, Halstead and Metroflor prevail in their Sept. 10 case (see 2009110041). The complaints are “timely,” said the dozens of them we studied, under CIT’s residual jurisdiction provision, coming before Monday’s two-year anniversary of USTR’s List 3 Federal Register notice. Importers began paying the List 3 duties Sept. 24, 2018.
Though the HMTX case “may be a long-shot, you can never say never,” blogged trade expert Ted Murphy with Sidley Austin. “If you want to preserve your right to a refund, in case the flooring companies’ action is successful, you need to put a case on file at the CIT” by Monday, he told clients. "“If you have paid a significant amount under List 3 and/or List 4A, and you are willing to invest a little to preserve your right to a refund, please let us know.”
Scosche suffered “an actual, imminent injury that is fairly traceable to the implementation, administration, and enforcement of List 3 and/or List 4,” said the car audio supplier's complaint, typifying the others. The harms “can be redressed by a declaratory judgment and permanent injunction” ruling USTR’s actions unlawful under the Trade Act and “arbitrary and capricious” under the APA, said Scosche.
The hundreds of complaints filed by importers in a variety of industries seem likely to mount even higher with Monday’s statutory deadline looming. Akin Gump filed the original suit for HMTX using as a template the complaint it drafted for CTA two years ago, but never executed. Other lawyers modeled their actions after Akin Gump’s, barely changing the wording.
The Trade Act didn't give USTR authority to wage an unchecked trade war with China for however long it wanted, said all of the many complaints we examined. USTR breached APA by imposing List 3 with unworkable comment and rebuttal deadlines, they said. All noted USTR was silent on how the 6,000 List 3 comments it received helped shape its decision-making, also in violation of the APA. USTR didn't comment Friday.