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Context:

In early fall 2020, Dentons Cohen & Grigsby filed a number of separate legal actions in the United States Tribunal of International Trade (CIT) on behalf of our clients challenging the validity of the Section 301 “List 3 tariffs. »Imposed on Chinese products under the Trade Act of 1974 by the United States Trade Representative (USTR) and US Customs and Border Protection. The gist of the Complainants’ argument is that these tariffs were imposed in a manner that did not follow the procedures required under the Trade Act 1974 and that the USTR office exceeded its power to “Modify” an action under Article 307 of the Trade Law by enacting List 3 in retaliation for retaliatory tariffs imposed by China. This case is active, the government having filed a motion for dismissal or, failing that, a motion for judgment on the agency’s file on June 1, 2021, in the main case administered by the complainants’ steering committee. The response of the principal applicants in opposition to the government’s motion to dismiss is due on August 2, 2021.

List 4A is approaching the deadline:

The same challenges that we put forward in imposing tariffs on the item 301 tariffs of List 3 also apply to the imposition of the tariffs of item 301 “List 4A” imposed on the tariffs. Chinese products under the 1974 Trade Law. A deadline for filing challenges to the imposition of Section 301 tariffs on goods covered by List 4A with the CIT is undoubtedly close to August 20, 2021., which is two years after the publication of List 4A on August 20, 2019 in the Federal Register and which is generally considered the most conservative deadline for list 4A challenges to CIT. List 3 tariffs cover a wide range of products estimated at $ 200 billion in imports from China. In contrast, List 4A covers a smaller number of total annual imports from China, identified by their respective designation in the Harmonized Tariff, but contains several major product groups, including certain foods, clothing, chemicals, steel. and aluminum and machinery.

Continuous Claim Theory:

It should be noted that some complainants have taken the position that every time an importer places goods on List 3 (and in the future on List 4A), a new complaint and new injury accumulate which justifies a substantial challenge (as opposed to a procedural challenge) of the imposition of these tariffs. This theory has not been judged by the CIT, but it seems to have legal value. According to this theory, a lawsuit filed today can be considered to have been filed on time for all entries of goods subject to List 3 entries in the past two years.

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