GDLSK: Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP

2/2/2022 China 301 Litigation Update

On February 1, 2022, the three-judge panel at the U.S. Court of International Trade heard oral argument in the pending litigation challenging the imposition of Section 301 Lists 3 and 4A additional duties on certain goods from China

The oral argument lasted for over three hours and centered on three main topics: 1) whether the decision to impose the List 3 and List 4A duties constituted presidential action that cannot be reviewed by the court; 2) whether the applicable statute permits modification of the initial assessment of additional duties on goods from China; and 3) whether the United States Trade Representative (USTR) complied with its rulemaking obligations under the Administrative Procedures Act (APA).

Based upon the judges’ questions, it seems likely that the court will find that it has authority to review the legality of USTR imposing the tariffs.  However, it is difficult to predict how the court will rule on the other issues.

In their questioning, the judges displayed deep familiarity with the issues raised in the parties’ briefs.  That, together with the high profile of this case, could mean that a decision will be issued within the next few months.  An appeal to the U.S. Court of Appeals for the Federal Circuit is nearly a certainty, and a further appeal to the Supreme Court is likely as well.

GDLSK actively participated in preparing plaintiffs’ counsel for the oral argument and was present at the oral argument.  Should you have any questions, please feel free to contact our office or any of our attorneys.  We encourage importers that are not already party to the litigation to join the case in order to preserve their rights to potential refunds.


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