Tariff Tactics

I. Introduction: Tariff Reimposition and Emerging Trends

Two parallel developments are reshaping the tariff landscape for importers: emerging judicial guidance on International Economic Emergency Powers Act (“IEEPA”) tariff refunds and a new wave of Section 301 investigations relevant to tariff reimposition.  On the heels of last week’s 47^th International Trade Update conference at Georgetown Law, we are writing a Tariff Tactics post to cover: (1) Atmus Filtration and new developments in IEEPA tariff refund litigation; and (2) recent United States Trade Representative Section 301 investigation announcements and what these signal for tariff reimposition.  Given these developments, importers eligible for IEEPA refunds should consider consulting counsel regarding filing claims in the Court of International Trade (“CIT”) or, at a minimum, tracking entry liquidation for Customs and Border Protection (“CBP”) protest deadlines.

II. What Atmus Filtration Means for Refund Timing and Pathways

As we covered in a recent Tariff Tactics post, Judge Eaton’s March 4, 2026 order may signal a refund process driven by CBP liquidation processes.  Atmus Filtration, Inc. v. United States, No. 26-01259, Order at 1–3 (Ct. Int’l Trade Mar. 4, 2026).  Essentially, the CIT ordered CBP to liquidate or reliquidate tariff entries excluding paid IEEPA tariffs.  This order may have differing impacts split across four categories:

1. Unliquidated Entries. CBP must liquidate these without IEEPA duties, ultimately resulting in refunds of deposits previously paid.
2. Entries Within 90-Days After Liquidation. CBP should exercise its statutory authority to voluntarily reliquidate entries within the ninety-day post-liquidation period and exclude IEEPA duties upon reliquidation.
3. Entries 90-180 Days Post-Liquidation. For protestable entries that are 90–180 days post-liquidation, importers must file a timely administrative protest to preserve refund claims.
4. Finally Liquidated Entries. The order is silent as to entries that have passed final liquidation, and these will likely require a Court challenge.

In practical terms, this framework would tie refund timing to the existing liquidation calendar rather than to a centralized administrative payout.  Because the March 4 order purports to apply to all importers with IEEPA tariff refund rights and to all entries that have not liquidated (or have not finally liquidated), it could lead to full IEEPA tariff refunds by January 2027, based on the existing liquidation calendar.  However, as a threshold matter, it is not clear whether an entry that liquidated with IEEPA tariffs assessed before the Supreme Court’s Learning Resources decision can be protested as the imposition of tariffs at that time was arguably ministerial.  It is likely that an entry that liquidated with IEEPA tariffs assessed after Learning Resources but before the March 4 Atmus Filtration order is protestable, but this is uncertain for similar reasons.  These entries may require CIT litigation, regardless of the March 4 order. 

III. Why Atmus Filtration Likely Does Not Resolve Refund Issues

More critical than the protestability issues noted above, importers cannot assume that Judge Eaton’s order resolves the refund issue for at least three reasons: (i) the order is currently stayed due to compliance challenges; (ii) liquidation deadlines continue to pass during the stay; and (iii) there is a potential for further appellate stay and reversal.

First, Judge Eaton stayed the order after CBP’s Executive Director of Trade Programs filed a Declaration on March 6, 2026 stating that CBP does not have technical/software capability to comply with the order using its Automated Commercial Environment (“ACE”) system.  The Declaration states that CBP will need approximately forty-five (45) days to complete system upgrades needed to comply with the March 4 order.  Since then, the CIT has reviewed and approved a process roadmap and status update that CBP submitted on March 12, 2026.  The update describes a new functionality that CBP is creating within the ACE system called the Consolidated Administration and Processing of Entries (“CAPE”).  CAPE will consist of four parts: a claims portal, mass processing, review and liquidation/reliquidation, and refunds.  Until these software updates are completed, the March 4, 2026 order remains stayed.

Second, CBP’s projected timeline for completion of software upgrades is not guaranteed: it is not possible to know how long the effective stay will continue.  In the interim, liquidation deadlines continue based on the injunction denials we previously discussed in AGS Co. Auto. Sols. v. U.S. Customs & Border Prot., No. 25-00255, slip op. 25-154 (Ct. Int’l Trade Dec. 15, 2025).  With entries subject to liquidation, importers must consider and track protest deadlines.  Failure to protest or file in the CIT during the one hundred and eighty (180) day protest timeline may result in liquidation finality and loss of certain refund claims.

Third, the government’s time to appeal might not expire until early May, 2026.  Because the March 4 order purports to apply universally, including to non-litigants, it may run afoul of the Supreme Court’s ruling in Trump v. CASA, Inc., 606 U.S. 831, 865 (2025) (holding that Federal Courts cannot issue universal injunctions).  In this regard, the Government previously argued in the Court of Appeals for the Federal Circuit that one plaintiff “cannot represent the interests of third parties who have filed their own cases, are represented by their own counsel, and are presently before the CIT.”  Given other comments by Administration officials that the Government intends to vigorously litigate IEEPA refund issues, importers should plan for an appeal and potential further stay of the March 4 order.

For these reasons, we strongly recommend that importers file claims in the CIT to preserve refund rights, particularly with respect to entries that have or continue to liquidate.  Importers can file broad claims alleging the basis for IEEPA refunds generally, without needing detailed analysis of entry or ACE data.  (We separately recommend analyzing entry data to evaluate protest deadlines and related CBP protest strategies).  Absent a lawsuit, importers risk a lapse of protest deadlines and may be left without any refund remedies.  Even if CBP ultimately administers refunds through liquidation, pending litigation may still influence the scope of relief and protect importers if appellate courts find the CIT cannot adjudicate claims or order relief for parties that have not appeared in the CIT.  At a minimum, importers should consider enrolling in the CBP’s refunds program through the ACE Portal.  See CSMS # 67513690. 

As we explain in the next part of this post, while refund litigation continues to develop in the CIT, the Administration has simultaneously begun laying the groundwork for new tariffs through Section 301 investigations.

IV. Tariff Reimposition and USTR Section 301 Investigations

After the Supreme Court’s decision invalidating IEEPA tariffs, the Administration swiftly moved to reimpose tariffs under § 122 of the Trade Act of 1974, which we previously discussed here.  Future posts will discuss the emerging judicial and legislative challenges to these Section 122 tariffs.  For this post, we note that the Section 122 statute authorizes tariffs for a period of up to one hundred and fifty (150) days, without any Congressional approval.  Because of this, importers should expect these 122 tariffs to remain in place through a five-month period. 

In a further re-imposition development, last week (on March 11 and March 12, 2026), the Office of the United States Trade Representative (“USTR”) announced new investigations under § 301 of the Trade Act of 1974 (a possibility we previously discussed here).  The USTR announced sixteen new investigations on March 11 and sixty new investigations on March 12, 2026.  These investigations suggest the Administration may attempt to replace some of its lost IEEPA tariff leverage through new Section 301 tariffs.

The sixteen March 11, 2026 investigations concern Structural Excess Capacity and Production in Manufacturing Sectors (the “Excess Capacity” investigations) with potential tariff impacts on goods from: China, the European Union (EU), Singapore, Switzerland, Norway, Indonesia, Malaysia, Cambodia, Thailand, Korea, Vietnam, Taiwan, Bangladesh, Mexico, Japan, and India.  These sixteen Excess Capacity investigations will focus on “production capacity untethered from the incentives of domestic and global demand” that leads to “overproduction and large or persistent trade surpluses,” “underutilized and unused capacity,” and other issues that present a “serious challenge to U.S. efforts to re-shore supply chains and provide good-paying jobs for American workers.”  Written comments for the Excess Capacity investigations are due by April 15, 2026.  USTR will hold public hearings beginning May 5, 2026, up to May 8, with post-hearing rebuttal comments due to be submitted one week after conclusion of hearings.

The March 12, 2026 investigations concern Goods Produced with Forced Labor (the “Forced Labor” investigations).  These sixty Forced Labor investigations may impact goods from trading partners including Argentina, Australia, Bangladesh, Brazil, Canada, Chile, China, Egypt, the European Union (EU), Hong Kong, India, Indonesia, Israel, Japan, Mexico, Nigeria, Pakistan, Philippines, Russia, Singapore, South Korea, Switzerland, Taiwan, Turkey, the United Kingdom (UK), Venezuela, and Vietnam.  Written comments in the Forced Labor investigations are due by April 15, 2026, and public hearings are scheduled to begin April 28, continuing up to May 1, with post-hearing rebuttal comments due one week after.

Importers should strongly consider participating in the comment and public hearing processes as to these Section 301 tariffs.  Importers should not assume exact replication of IEEPA tariffs, notwithstanding that the Administration may seek to replace tariff revenue to IEEPA levels.  Section 301 tariffs can cover broader or narrower categories of goods at higher or lower rates.  Companies that participate in these processes can better protect their interests by providing an avenue to shape product coverage, tariff rates, and potential exclusion frameworks before tariffs are finalized.  Importers should also note that these tariff investigations likely signal only the beginning of Section 301 tariff reimposition.  Ambassador Jamieson Greer, the United States Trade Representative, has already previewed potential upcoming Section 301 tariffs, e.g., practices concerning pharmaceutical pricing, U.S. technology companies, digital services taxes, ocean pollution, and seafood and rice.

V. Conclusion

Importers should assess both CIT litigation strategies and administrative engagement based on review of ACE documentation, while also evaluating opportunities to participate in the new Section 301 investigations through comment submission and participation in public hearings.  As tariff reimposition efforts continue, Tariff Tactics will track these developments to provide actionable guidance to importers.  Future posts are likely to explore section 122 reimposition issues in more detail, and to explore emerging markets in buying and selling IEEPA refund claims.