On December 5, 2022, the plaintiff group filed its final reply to the government defendants’ response on the remand determination of the Office of the U.S. Trade Representative (USTR) in the ongoing Court of International Trade (CIT) litigation challenging the validity of Section 301 tariffs on certain imports of Chinese products. This final reply continued the plaintiff group’s argument that USTR’s remand determination lacks “any showing that USTR considered commenters’ major objections contemporaneously with its decisions to levy the List 3 and List 4A tariffs on hundreds of billions of dollars of imports from China.” Since USTR can point to “no explanation from the contemporaneous record” for many of the objections to the tariffs that were raised, the plaintiff group argues that there is a clear reason for this failure – “USTR cannot ‘elaborate’ on explanations it never gave.”

The plaintiff group reiterated that the government defendants in their response cannot fix USTR’s fatal flaws in its remand determination to cure any Administrative Procedure Act (APA) violations, arguing:

  1. “Non-responsive and conclusory statements grounded in presidential direction do not show that USTR engaged in reasoned decision-making when it selected the duty rates and covered amounts of trade.” Instead, failing to respond to comments “demonstrates that the agency’s decision was not based on a consideration of the relevant factors” and “raises doubts” about the discretion shown by USTR;
  2. “USTR’s explanations are missing, conclusory, or (at best) post hoc” rationales in its consideration of the harm caused by the tariffs to U.S. consumers and the economy and, as such, “the record remains devoid of any reasoned explanation as to how USTR arrived at the conclusion that the List 3 and List 4A actions overall were ‘appropriate’”; and
  3. USTR concedes that it failed to consider a number of alternatives proposed by interested parties and this “failure to give reasoned consideration to alternatives [to tariffs] renders its determination arbitrary and capricious.”

Because USTR continues to fail to satisfy “basic APA obligations,” the plaintiff group argues, the CIT should vacate the List 3 and List 4A tariffs and order refunds of the duties paid. With this reply, briefing by the parties on the CIT’s remand decision is complete. The three-judge panel will now consider the arguments, and a decision is expected in the new year.

See Update of November 8, 2022 for details on the government defendants’ final response. See also Updates of September 15, 2022 for details on the plaintiff group’s comments in response to the USTR’s remand determination, and Update of August 2, 2022 for details on the USTR’s Remand Results explanation. The Update of April 6, 2022 summarizes the CIT’s decision directing such further explanation.