Agree that they seem to violate USMCA.
As for the forced labor issue, the fact that the EU regs don’t go into full effect until the end of 2027 is the opening. It’s not about proving forced labor use, but rather that there are currently no full EU barriers.
Based on what we know, do you think there’s better legal standing for the replacement tariffs coming on Friday as opposed to the current ones on EU?
Since it doesn’t appear there will be a tariff-free window and I’m not inclined to wait a year or more, I’m trying to decide if I may be better off clearing my stock under the current tariffs rather than the replacements in terms of a potential refund down the road.
My speculation isn’t really better than anyone’s, but I think they are on better legal standing than the IEEPA tariffs because they followed the process and made several findings that are the basis for them and the courts are more likely to defer to Executive Branch findings even though they seem somewhat artificially drawn.
It took a long time for the IEEPA tariffs to be declared unlawful, and the refunds are still being litigated on several fronts. So, I think the Section 301 tariffs will be here for quite a while.
-Al
Agree, though the IEEPA tariffs have already been tossed. The current tariffs are based on Section 122, which a lower court has already found unlawful (this is the “balance of payments” tariff). I would have more confidence that lower court ruling will ultimately be upheld and refunds eventually issued than the Section 301 tariffs will be found invalid.
I think you’re arguing that Andrew would have had better odds to have shipped his wine under the Section 122 tariffs than it will be after Friday with the Section 301 tariffs? I agree.
The biggest ongoing IEEPA fight for importers is over tariffs that were paid and already closed out in the CBP CAPE system. The government is claiming they don’t have authorization from Congress to refund those tariffs in the absence of a court order, the order from Judge Eaton to refund them is equivalent to a universal injunction granting relief to non-parties, and that a proposed class action should not be allowed for a variety of reasons (some of which I find dubious). So, there is a set of cases in the Federal Circuit where the government is appealing the order to refund those payments, and litigation in the original VOS Selections case in the Court of International Trade over the proposed class action. There is at least one other issue being litigated in a case I haven’t looked at in a while (from small companies who used facilitators to handle the imports and pay but pass through the tariffs).
There are also proposed class actions from consumers against large companies that raised prices and then may be receiving refunds. But, that is a separate issue, I suspect they are hoping the large companies will settle.
Al
Yes - you’re paying the same either way, and any refunds are (a) more likely and (b) likely to be sooner for 122 tariffs than 301 tariffs.
Thanks. Thankfully my wine is already onshore in bond to give me options. I think I’m going to have them move ahead with clearing customs this week under Section 122 instead of waiting.
The current tariffs are on much shakier legal ground than the section 301 tariffs coming on Friday. With the 301 tariffs you would need a court to analyze the underlying “findings” that resulted in the tariffs. That’s a tough putt even if they look shaky on the surface.
Happy end of Section 122 tariffs day!
Welcome to Section 301 tariffs period . . .
Not quite. Goods in transit exception today and Monday. Fingers crossed my pallets fell into that loophole. 
Nice! So ship after 122 expires and hope the transit loophole covers the shipment happening over next couple of days? Well played if so.
No, very small window. Goods had to be shipped before 7/22 and cleared by Monday. My pallets already landed and were sitting in DE in bond for this precise scenario. I had asked them to work on clearance yesterday, but I didn’t hear anything other than it was taking longer than usual. I’m hoping that final clearance actually happened today under no tariffs rather than yesterday under Section 122.
My broker told me yesterday that the Section 122 tariffs actually expired on Thursday in the CBP computer system.
It was No Tariff Thursday.
Correct. Those 31 day months mess up calculations!
So for the ill informed- what is the current EU to US wine tarif since my wines were not landed yet. Thank you
10%.
Two lawsuits challenging the new Section 301 tariffs (based on forced labor) were filed eight days ago in the Court of International Trade. The first is Burlap and Barrel (and Collective Horology) v Greer. The first plaintiff is also involved in a challenge to the Section 122 (balance of payments) tariffs currently on appeal.
https://storage.courtlistener.com/recap/gov.uscourts.cit.21433/gov.uscourts.cit.21433.2.0_1.pdf
The other is Learning Resources (and several other small businesses) v United States. The lead plaintiff filed one of the lawsuits challenging the IEEPA tariffs that made it to the Supreme Court although their suit is not the one that prevailed, for jurisdictional grounds (they did not initially file in the Court of International Trade).
https://storage.courtlistener.com/recap/gov.uscourts.cit.21433/gov.uscourts.cit.21433.2.0_1.pdf
It’s possible these cases will be consolidated. Neither has yet been assigned to a judge. Their main arguments are that the government used Section 301 to replace the IEEPA tariffs across the board (as the government’s own statements admitted) through pretextual and preordained determinations rather than following the statutory requirements. The statute requires country by country investigations of trade practices, the harms they cause to US commerce, and particularized tariffs on specific products that benefit from forced labor. Instead, they conducted a single investigation with limited anecdotal evidence and speculative estimates about the harms that may be caused. They also cite violations of the Administrative Procedures Act and the non delegation doctrine given the manner the government has implemented these broad tariffs.
It’s possible these cases will be consolidated. Neither has yet been assigned to a judge. The Learning Resources case seeks to certify a class of all importers affected by these tariffs, the Burlap and Barrel case seeks relief for the plaintiffs.
As far as the earlier tariff regimens, the IEEPA refunds litigation is proceeding on different fronts. The government is appealing the order that they issue refunds to importers whose payments have been finalized and who have not filed individual suits. There is more briefing due this week. In the VOS Selections case, the plaintiffs have requested class certification to get avoid thousands of individual lawsuits by importers still owed refunds. This has been fully briefed and there is a closed door hearing scheduled for Tuesday. The regular reports from CBP about progress of CAPE development and tariff refunds has moved from the Euro-Notions case (recently dismissed at request of plaintiff) to the Freestyle World case (one of numerous cases stayed while litigation was pending in the lead case).
In the Section 122 tariff litigation (tariffs recently expired after 150 days), there are a couple of appeals consolidated in the Court of Appeals for the Federal Circuit. That consolidated appeal is still being briefed. There is also a proposed amicus brief by an indiviudal who gave testimony in the Section 301 investigation who is worried that a too broad holding about Section 122 might affect the Section 301 cases.
-Al
There is now a third lawsuit against the Section 301 tariffs, for similar reasons as the two lawsuits from small importers. There are many sections to quote that capture the basis for the suit, but here is one:
These defects are buttressed by strong evidence of pretext: after this Court twice invalidated the Administration’s worldwide tariffs under other statutes, the President and Ambassador Jamieson Greer, the U.S. Trade Representative, announced an accelerated plan to “ensure continuity” by using Section 301 to impose “exactly” the same tariffs. The USTR timed and structured its investigation and the Tariff Action to replace the expiring Section 122 tariffs without interruption. The confluence of these three factors—the contemporaneous admissions describing how the Administration predetermined an endpoint under Section 301 for worldwide tariffs unrelated to Section 301’s purpose, the completion of the purported investigation of 60 different economies in record time, and the end result after this accelerated investigation of Section 301 tariffs that just so happen to mirror almost exactly the now-expired Section 122 tariffs—confirms that the Tariff Action is pretextual, arbitrary, capricious, and contrary to Section 301’s statutorily constrained purpose.
State of Oregon v Trump, the plaintiffs have requested a three judge panel in the Court of International Trade:
[https://www.courtlistener.com/docket/73711779/the-state-of-oregon-v-donald-j-trump/
-Al
Al,
Thank you. As someone who would like my substantial IEEPA tarriff refund, and has been paying new tarriffs, I am grateful for this update.
I am exhausted from all of this ‘winning’
Did you apply for a refund?