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China Section 301 Litigation Update

On December 21, 2023, the Government filed its principal brief in the appeal pending before the U.S. Court of Appeals for the Federal Circuit (CAFC).  The Government’s brief urges the CAFC to affirm the decision by the U.S. Court of International Trade that upheld the actions by the United States Trade Representative (USTR) to modify the original tariffs imposed following the Section 301 investigation into China’s harmful policies as concerning technology.  The disputed modifications entailed the imposition of List 3 and List 4A, which vastly increased the scope of the tariffs applied on merchandise imported from China.

In short, the Government argues that the statute grants USTR broad authority to modify an initial imposition of Section 301 tariffs and that the modifications related to China’s harmful trade practices that were the subject of the Section 301 investigation.  The brief also argues that USTR’s actions are entitled to deference because they were done at the direction of the President.  Finally, the Government asserts that the procedural requirements of the Administrative Procedures Act do not apply but that even if they do, they were met by USTR.

Appellants’ reply brief is due on February 12, 2024.  The CAFC will likely hear oral argument in late spring 2024 and the CAFC may issue its decision on the appeal in the summer, or later if the court orders additional briefing.  Should you have any questions, please contact one of our attorneys.


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