Court Sets Two More Status Conferences in Section 301 Litigation

Justice Department lawyers “are still conferring internally” about modifications proposed by the Section 301 plaintiffs to the July 6 preliminary injunction (PI) order freezing liquidations of unliquidated customs entries from China with lists 3 and 4A tariff exposure, said a government filing late Tuesday at the U.S. Court of International Trade, made “under protest” due to defendants’ opposition to the PI. “A lack of response to any specific proposal should not be interpreted as agreeing to that proposal,” Justice said. The government supports reliquidating, if the plaintiffs win the litigation, any entries that liquidated inadvertently during the PI order’s temporary restraining order (TRO) period due to CBP limitations, it said. “CBP only has the functionality to return liquidated entries to unliquidated status one entry at a time, and very few CBP personnel are knowledgeable and trained to utilize this very limited and extraordinary functionality,” Justice said.

The government so far has balked at accepting the plaintiffs’ proposal to remove the need for CBP involvement by stipulating refunds would be available, at the end of the litigation, if importers prevail, on all entries that liquidate in the normal course of business. The government missed the July 20 deadline for creating the “repository” required in the PI order for importers to identify for CBP which of their entries should not be liquidated. The repository is now due Aug. 6, said an order signed Tuesday by Judges Claire Kelly and Jennifer Choe-Groves (see 2107200046). Chief Judge Mark Barnett, who dissented from the PI order, did not sign.

The court also extended the TRO period when no entries can liquidate, to Sept. 2 from Aug. 2. The government wanted it extended to 30 days after the repository is created. Plaintiffs wanted a 90-day TRO. The judges scheduled two more status conferences to be held virtually, one for July 23 at 11 a.m., the other for Aug. 2 at 2 p.m. For both conferences, the July 20 order said, “the Parties are ordered to each bring an individual authorized to make decisions for the respective Party.”