On September 8, 2021, the Court of International Trade (CIT) issued an order that revised its July 6, 2021 order granting the plaintiff group’s motion for a preliminary injunction in the ongoing China Section 301 tariff refund litigation. That preliminary injunction suspended liquidation of unliquidated entries from China subject to List 3 and List 4A duties, which, the plaintiff group alleges, are not authorized under the original investigation of the U.S. Trade Representative (USTR) into China’s actions adversely affecting U.S. intellectual property rights, innovation and technology development. The July 6, 2021 order also established a U.S. government repository for collecting information on unliquidated entries and a process for the companies represented by the plaintiff group to request suspension of liquidation of entries during the remainder of the litigation. See Update of July 7, 2021.

After nearly two months of negotiations, status reports and conferences, the government defendants conceded that U.S. Customs and Border Protection (CBP) could not carry out this process. Instead, the government defendants informed the CIT that they would stipulate to any refunds of unliquidated entries before July 6, 2021, and entries on or after July 6, 2021, should the plaintiffs prevail on the merits – a position they had previously rejected. As a result, the CIT’s September 8, 2021 order acknowledges the stipulation, which the plaintiff group supports, and directs the following actions:

  • The government defendants may continue to liquidate List 3 and List 4A entries and collect those additional duties;
  • Should the CIT find that the List 3 and/or List 4A duties have been illegally collected, and should that decision become final and conclusive, including all appeals, the government defendants must reliquidate any subject entries without the assessment of List 3 and List 4A duties, or otherwise refund to the plaintiff group companies such duties, with interest; and
  • The requirement for the government defendants to establish a repository for the collection of suspended liquidation of entries has been removed.

With this stipulation and the removal of the repository requirement, the plaintiff group will no longer be required to submit List 3 and List 4 A entry data to CBP to request suspension of these duties. The CIT order, however, makes clear that its scope only applies to entries that were unliquidated at the time of the July 6, 2021 preliminary injunction, and to entries entered on or after July 6, 2021.