USTR Launches Vietnam 301 Investigation
Courtesy of Ray Bucheger, FBB Relations, Pacific Coast Council of Customs Brokers
UPDATE #1: USTR Launches Vietnam 301 Investigation
USTR has announced the agency is launching an investigation under Section 301 of the 1974 Trade Policy Act on “Vietnam’s acts, policies, and practices that may contribute to the undervaluation of its currency and the resultant harm caused to U.S. commerce.” Here is a press release that USTR issued on Friday.
USTR notes that it will issue a Federal Register Notice (FRN) this week with additional details on the investigation and information on how members of the public can provide comment.
While it is too early to know the consequences of this action (or what would happen if there is a change in Administration), the long-term result could be tariffs on imports of goods from Vietnam.
We will let you know when we have additional information.
UPDATE #2: Information on 301 Lawsuits Filed with CIT
Here is an update on the lawsuits filed with the Court of International Trade (CIT) challenging USTR’s use of Section 301 of the Trade Act of 1974 (and alleging improper use of the Administrative Procedures Act) to impose duties on items imported from China and included on List 3 and List 4A:
- To date, approximately 3,500 cases have been files on behalf of more than 4,000 companies.
- Many filings include multiple companies.
- Law firms continue to file complaints as questions about the statute of limitations remain (more on this below).
- It appears that the HMTX case filed by Akin Gump will be the lead lawsuit and other complaints will be stayed pending a decision on HMTX.
- Lawyers from multiple firms have come together to form a steering committee to determine strategy.
- Akin Gump has amended the complaint for HMTX to add tech company Jasco, so as to cover List 4A as well.
- Discussions with the Department of Justice (which is pleading the government’s case) are ongoing.
What is actual statute of limitations for List 3?
It is not clear how the judge will rule on this (i.e. the statute of limitations in this case is two years, but it is not clear when the CIT will determine the clock started):
- Out of an abundance of caution, law firms advised companies to file complaints by September 21, 2020, given that USTR issued the Federal Register Notice (FRN) announcing the List 3 tariffs on September 21, 2018.
- The CIT could decide the effective date is September 24, 2020, given that the effective date of the FRN was September 24, 2018.
- Some argue that the effective date is tied to the entry date, which could mean a separate statute of limitations for each entry that includes items covered by List 3.
Should companies file preliminary injunctions to suspend liquidation?
Some firms are trying to get DOJ to stipulate to the court that refunds would be provided on liquidated and unliquidated entries.
- Counsel believe that case law supports the court being able to order refunds on liquidated and unliquidated entries (i.e. that companies would not need to proactively seek to suspend liquidation of entries).
- Counsel is arguing that if DOJ doesn’t stipulate to the court that refunds would be provided on liquidated and unliquidated entries, then CBP will receive a substantial number of requests to stop the clock, and that these requests would overwhelm the agency.
- DOJ has not yet responded.
- NOTE: This does not change our efforts to seek legislation in the near-term to give CBP authority to issue refunds for imports that qualify for exclusions that were approved after the 180-day protest period ended, and for which companies are unable to claim such refunds. Our view is that even if the lawsuit is successful, it will likely be years before importers see any refunds; whereas we are seeking to pass legislation in the next several months. We are continuing to recruit companies to join our coalition seeking such legislation. Please contact us if you have clients facing this specific issue.
What is the timeline?
The CIT is asking for patience given the unprecedented nature of this issue.
- Posted by Joe DeSilvetri
- On October 7, 2020
- 0 Comments