On September 14, 2022, the plaintiff group in the ongoing China Section 301 tariff refund litigation before the Court of International Trade (CIT) filed its comments in response to the USTR’s remand explanation.  The comments highlight that the CIT offered the USTR a final opportunity to explain its rationale and reasoning as to why it “rejected the 9,000+ comments it received” and that such an explanation could not offer rationales that were not already on or supported by the existing record.  The plaintiff group argued that “USTR’s response to that directive flunks the Court’s test”.  The comments call out (1) the USTR’s focus on immaterial issues that only address why it removed certain products from the list, (2) the impermissible post hoc nature of the remand and/or reliance on Presidential direction, and (3) the USTR’s failure to meaningfully respond to interested parties’ comments during the underlying process that raised fundamental objections to the List 3 and List 4 tariff actions, which rendered those tariff actions arbitrary and capricious and which the USTR cannot rectify now without taking entirely new agency action.  Overall, the plaintiff group’s comments argue that the USTR’s remand explanation offers “zero contemporaneous evidence, from the administrative record or otherwise, that it meaningfully grappled with those substantial comments at the time Lists 3 and 4A were developed.”  For these reasons, the plaintiff group argues, the List 3 and List 4 tariffs should be vacated and the paid duties should be refunded.

See Update of August 2, 2022 for more details on the USTR’s Remand Results explanation, and Update of April 6, 2022 for the CIT’s decision directing such further explanation.  The government defendants now have the opportunity to file a response to the September 14 filing, which is currently due October 28, 2022.  The plaintiff group will then be able to file a final reply, which is currently due November 14, 2022.

Photo of Scott E. Diamond** Scott E. Diamond**

Scott is a senior policy advisor with more than 25 years’ experience with the legislative and regulatory processes involved in international trade policy, remedies and enforcement. This includes working with clients on matters involving export controls, economic sanctions, human rights and forced labor…

Scott is a senior policy advisor with more than 25 years’ experience with the legislative and regulatory processes involved in international trade policy, remedies and enforcement. This includes working with clients on matters involving export controls, economic sanctions, human rights and forced labor compliance, corporate anti-boycott and antibribery compliance, national security investigations, and foreign direct investment in the United States.

**Not licensed to practice law.

Photo of David M. Schwartz David M. Schwartz

David is the leader of Thompson Hine’s International Trade practice group and a member of the firm’s International Committee. He advises clients on the risks and opportunities presented by U.S. international trade laws and regulations and international trade agreements. He focuses on antidumping…

David is the leader of Thompson Hine’s International Trade practice group and a member of the firm’s International Committee. He advises clients on the risks and opportunities presented by U.S. international trade laws and regulations and international trade agreements. He focuses on antidumping (AD), countervailing duty (CVD) and safeguard litigation, international trade policy, and cross-border compliance issues affecting goods, services, technology and investments that involve transportation, customs, export controls, economic sanctions, anti-boycott and anti-bribery laws and regulations.

Photo of Samir D. Varma Samir D. Varma

Samir advises multinational corporations on export controls, economic sanctions and customs, and counsels individuals and corporations on the Foreign Corrupt Practices Act (FCPA) and other anti-corruption laws. He represents clients in enforcement actions before U.S. regulatory agencies and conducts corporate internal investigations.