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.