CBP issued the following releases on commercial trade and related matters:
The World Trade Organization told member countries this week that the U.S. has filed an appeal on a panel report on the legality of its Section 301 tariffs on Chinese imports. Because there is no appellate body, there is no way to appeal a case, but China cannot take action under WTO rules while the appeal is pending. In practical terms, however, China already retaliated years ago for the Section 301 tariffs.
Export Compliance Daily is providing readers with the top stories for Oct. 19-23 in case you missed them. You can find any article by searching on the title or by clicking on the hyperlinked reference number.
Importers GHSP and Brose North America have “no doubt” that the first-filed HMTX Industries-Jasco Products complaint should be one of the designated test cases in the massive Section 301 litigation, argued lawyer Paul Vandevert Friday in a response (in Pacer) to DOJ’s Oct. 19 motion for case management procedures (see 2010200020). All the roughly 3,600 complaints seek to vacate the Lists 3 and 4A tariff rulemakings and get the tariffs refunded, alleging the Office of the U.S. Trade Representative overstepped its 1974 Trade Act authority and violated the Administrative Procedure Act. Vandevert is among the few to additionally charge USTR with breaching constitutional protections against federal revenue-raising (see 2010040001). “A number of other cases filed,” including from the GHSP and Brose plaintiffs he represents, “have raised claims that are substantively distinct and discrete” from HMTX-Jasco and should also be weighed as possible test cases, he said. Akin Gump's Sept. 30 motion for a three-judge panel made clear HMTX-Jasco was making no constitutional claim (see 2010010043). Vandevert thinks GHSP and Brose were the first to raise the revenue-raising claim and so should also be considered as first-filed test cases, he said. “It is also our understanding that several other plaintiffs in this Section 301 litigation have amended their complaints to adopt and incorporate the revenue raising claims made by GHSP and Brose,” he said. Vandevert emailed us a list Sunday of 22 complaints that Hogan Lovells filed on behalf of various importers. We reviewed them and found that all but one were filed in September and amended Oct. 9 to add the constitutional claim. The 22nd action (in Pacer), filed Oct. 21 on behalf of spices supplier McCormick, raised the argument as an original claim. The Hogan Lovells complaints also add allegations that USTR violated importers' Fifth Amendment due process rights, a claim that Vandevert didn't argue on behalf of GHSP and Brose. USTR deprived importers of due process on Lists 3 and 4A when it failed to "provide a sufficient opportunity for comment" and didn't "adequately explain" its rationale, said all the various Hogan Lovells complaints. USTR's "predetermined decision-making resulted in the unlawful imposition of tariffs on imports covered by Lists 3 and 4A whose value equals $500 billion," they said. USTR didn't respond to questions Monday. Hogan Lovells declined comment.
The following lawsuits were filed at the Court of International Trade during the week of Oct. 19-25:
Law firm Husch Blackwell doesn't object to DOJ’s proposal to designate the first-filed HMTX Industries-Jasco Products complaint as a test case in the massive Section 301 litigation, but “there is no reason that it should be chosen as the only test case without further analysis,” it said Thursday in a partial opposition (in Pacer) to the government’s Oct. 19 motion for case management procedures (see 2010200020). It told the U.S. Court of International Trade it represents 75 “individually named plaintiffs” of the “approximately 6000 plus” importers seeking to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded.
HMTX Industries and Jasco Products, first plaintiffs to file in the massive Section 301 litigation seeking to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded, strongly oppose DOJ’s prolonged briefing format and schedule proposed Monday in a motion for case management procedures (see 2010200020), said Akin Gump in a response (in Pacer) Thursday at the U.S. Court of International Trade. The government proposed the parties not begin to argue the “merits of this dispute” before 2022 or beyond, it said. “Given the ongoing harms to thousands of plaintiffs, among others, that protracted schedule is unacceptable.” The CIT instead should follow the harbor maintenance tax (HMT) litigation as a model by staying all but the HMTX-Jasco complaint and ordering the parties to file “concurrent cross-motions for summary judgment addressing particular issues, including both jurisdictional and merits questions,” said Akin Gump. Adopting the HMT litigation’s cross-motions procedure “will best achieve the aims of resolving the key legal issues in an efficient manner,” it said. “Unnecessarily delaying resolution of this case for additional months or years -- with all the attendant litigation expenses and accruing duties that would entail -- is unwarranted.” Since more than 3,500 importers filed suit, many of whose entries have already liquidated or will liquidate soon, it’s important “to confirm at the outset that the government will stipulate, as it has in other cases, that a refund remedy is available should plaintiffs prevail,” said Akin Gump. “Such relief remains critical to ensuring that these cases are handled efficiently, effectively, and with the least administrative burden possible.” DOJ hasn’t taken a position on refunds and indicated to plaintiffs it won’t do so until a test case is picked. DOJ didn’t respond to questions. DOJ’s motion for case management procedures is likely to face broader opposition, blogged law firm Thompson Hine Wednesday. "This motion is expected to trigger a raft of challenges by plaintiffs’ counsel in all of the Section 301-related cases on such DOJ positions as the composition of the Plaintiffs’ Steering Committee and the designation of appropriate test cases," it said.
HMTX Industries and Jasco Products, first plaintiffs to file in the massive Section 301 litigation seeking to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded, strongly oppose DOJ’s prolonged briefing format and schedule proposed Monday in a motion for case management procedures (see 2010200020), said Akin Gump in a response (in Pacer) Thursday at the U.S. Court of International Trade. The government proposed the parties not begin to argue the “merits of this dispute” before 2022 or beyond, it said. “Given the ongoing harms to thousands of plaintiffs, among others, that protracted schedule is unacceptable.” The CIT instead should follow the harbor maintenance tax (HMT) litigation as a model by staying all but the HMTX-Jasco complaint and ordering the parties to file “concurrent cross-motions for summary judgment addressing particular issues, including both jurisdictional and merits questions,” said Akin Gump. Adopting the HMT litigation’s cross-motions procedure “will best achieve the aims of resolving the key legal issues in an efficient manner,” it said. “Unnecessarily delaying resolution of this case for additional months or years -- with all the attendant litigation expenses and accruing duties that would entail -- is unwarranted.” Since more than 3,500 importers filed suit, many of whose entries have already liquidated or will liquidate soon, it’s important “to confirm at the outset that the government will stipulate, as it has in other cases, that a refund remedy is available should plaintiffs prevail,” said Akin Gump. “Such relief remains critical to ensuring that these cases are handled efficiently, effectively, and with the least administrative burden possible.” DOJ hasn’t taken a position on refunds and indicated to plaintiffs it won’t do so until a test case is picked. DOJ didn’t respond to questions. DOJ’s motion for case management procedures is likely to face broader opposition, blogged law firm Thompson Hine Wednesday. "This motion is expected to trigger a raft of challenges by plaintiffs’ counsel in all of the Section 301-related cases on such DOJ positions as the composition of the Plaintiffs’ Steering Committee and the designation of appropriate test cases," it said.
HMTX Industries and Jasco Products, first plaintiffs to file in the massive Section 301 litigation seeking to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded, strongly oppose DOJ’s prolonged briefing format and schedule proposed Monday in a motion for case management procedures (see 2010200020), said Akin Gump in a response (in Pacer) Thursday at the U.S. Court of International Trade. The government proposed the parties not begin to argue the “merits of this dispute” before 2022 or beyond, it said. “Given the ongoing harms to thousands of plaintiffs, among others, that protracted schedule is unacceptable.” The CIT instead should follow the harbor maintenance tax (HMT) litigation as a model by staying all but the HMTX-Jasco complaint and ordering the parties to file “concurrent cross-motions for summary judgment addressing particular issues, including both jurisdictional and merits questions,” said Akin Gump. Adopting the HMT litigation’s cross-motions procedure “will best achieve the aims of resolving the key legal issues in an efficient manner,” it said. “Unnecessarily delaying resolution of this case for additional months or years -- with all the attendant litigation expenses and accruing duties that would entail -- is unwarranted.” Since more than 3,500 importers filed suit, many of whose entries have already liquidated or will liquidate soon, it’s important “to confirm at the outset that the government will stipulate, as it has in other cases, that a refund remedy is available should plaintiffs prevail,” said Akin Gump. “Such relief remains critical to ensuring that these cases are handled efficiently, effectively, and with the least administrative burden possible.” DOJ hasn’t taken a position on refunds and indicated to plaintiffs it won’t do so until a test case is picked. DOJ didn’t respond to questions. DOJ’s motion for case management procedures is likely to face broader opposition, blogged law firm Thompson Hine Wednesday. "This motion is expected to trigger a raft of challenges by plaintiffs’ counsel in all of the Section 301-related cases on such DOJ positions as the composition of the Plaintiffs’ Steering Committee and the designation of appropriate test cases," it said.
Law firm Husch Blackwell has no objection to a Department of Justice proposal to designate the first-filed HMTX Industries-Jasco Products complaint as a test case in the massive Section 301 litigation, but “there is no reason that it should be chosen as the only test case without further analysis,” it said Oct. 22 in a partial opposition to the government’s Oct. 19 motion for case management procedures (see 2010200022). It told the Court of International Trade that it represents 75 “individually named plaintiffs” of the “approximately 6000 plus” importers seeking to vacate the lists 3 and 4A tariff rulemakings and get the duties refunded.