In a complaint filed with the Court of International Trade (CIT) on September 10, 2020, two importers of vinyl tile have challenged the authority the United States Trade Representative (USTR) had to implement Section 301 tariffs on specific lists of targeted imports from China.

The complaint is the first formal piece of litigation filed against the current administration’s use of Section 301 tariffs.

Under Section 301 of the Trade Act of 1974, USTR has broad authority for a range of possible responsive actions to meet the goal of eliminating or otherwise resolving unfair practices, such as the imposition of duties or other restrictions on goods or services.

HMTX Industries LLC, Halstead New England Corporation, and Metroflor Corporation vs. United States of America; Office of the United States Trade Representative; Robert E. Lighthizer, U.S. Trade Representative; U.S. Customs & Border Protection; Mark A. Morgan, U.S. Customs & Border Protection Acting Commissioner

Court No. 20-00177

BASIS FOR ARGUMENT

  1. USTR failed to make a determination or finding that there was an unfair trade practice that required a remedy;
  2. Tariffs were instituted beyond the 12-month limit stated in the governing statute (19 U.S.C. § 2414);
  3. The manner in which tariff action was implemented violated the Administrative Procedures Act (APA);
  4. USTR failed to provide adequate opportunity for comments;
  5. USTR failed to consider relevant factors when making its decision
    1. (e.g. no analysis of increased burden on U.S. commerce from unfair trade practices)
  6. USTR failed to explain how the comments received by USTR shaped the final implementation of products selected for lists.

The lawsuit seeks refunds of all Section 301 tariffs paid on List 3 and List 4A goods, regardless of whether a protest or exclusion was previously available or filed.

Importers of products impacted by List 3 or 4A are being urged to also file independent claims by Friday, September 18, 2020.

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