Paul Gluckman

With less than two weeks to spare before the June 30 deadline for the Office of the U.S. Trade Representative to file its remand results in the Section 301 litigation, the agency needs a 60-day extension to Aug. 29 due to the volume of work involved, the agency’s limited staff resources and other projects that are compounding its workload, DOJ said June 17 at the Court of International Trade. Akin Gump lawyers for test-case plaintiffs HMTX Industries and Jasco Products oppose the motion and soon will file a response, DOJ said. Matthew Nicely, Akin Gump’s lead attorney, declined to comment June 17.

Though the Court of International Trade ruled April 1 that the Office of the U.S. Trade Representative violated the 1946 Administrative Procedure Act when it failed in its final tariff notices to publicly connect the lists 3 and 4A Section 301 comments it received with the tariff decisions it made (see 2204010061), the three-judge panel absolved the agency of APA wrongdoing amid plaintiffs’ allegations it ran sloppy rulemakings.

The unanimous three-judge opinion at the U.S. Court of International Trade remanding the lists 3 and 4A Section 301 tariffs to the Office of the U.S. Trade Representative on April 1 for correcting deficiencies in the agency’s Administrative Procedure Act compliance extends the current litigation at least until mid-summer. The opinion, written by Chief Judge Mark Barnett and coming two months to the day after Feb. 1 oral argument was held (see 2202010059), gives USTR 90 days, to June 30, to respond to the remand order, and orders the plaintiffs and the government to submit a joint status report 14 days after that, including a proposed schedule on “the further disposition of this litigation.”

The Office of the U.S. Trade Representative “properly exercised its authority” under the Section 307 modification provisions of the 1974 Trade Act when it ordered the imposition of the lists 3 and 4A Section 301 tariffs on Chinese imports, the Court of International Trade ruled in an April 1 opinion. Test-case plaintiffs HMTX Industries and Jasco Products, plus the more than 3,600 complaints that followed, sought to vacate the tariffs on grounds that lists 3 and 4A were unlawful without USTR launching a new Section 301 investigation.

The Office of the U.S. Trade Representative sought confidential advice from “private-sector advisory committees,” believed to be under the Industry Trade Advisory Committee (ITAC) program managed jointly by USTR and the Commerce Department, before imposing the List 3 Section 301 tariffs on Chinese imports, Stephen Vaughn, the agency’s then-general counsel, wrote then-USTR Robert Lighthizer on Sept. 17, 2018. The document was one of about a dozen “decision memos” spanning 488 pages that DOJ filed March 24 in the Section 301 litigation docket (In Re Section 301 Cases, CIT #21-00052) at the Court of International Trade as an “appendix” to oral argument held Feb. 1 (see 2202010059).

July 6 marks the fourth anniversary of the List 1 Section 301 tariffs' taking effect on Chinese imports, and the 1974 Trade Act requires their expiration after four years, “unless some conditions are met,” said David Olave, a Sandler Travis associate and trade policy adviser, on a recent podcast. “No unilateral 301 action that I know has made it through the four years, so we’re about to witness trade policy procedural history,” he said.

The U.S. Court of International Trade should deny the Department of Justice's motion to add a November 2018 investigatory “update” report from the Office of the U.S. Trade Representative to the administrative record in the Section 301 litigation (see 2202160033) because the government has failed to show that USTR “actually relied on or considered” the report when it was deciding to impose either the Lists 3 or List 4A tariffs on Chinese imports, Akin Gump lawyers for sample-case plaintiffs HMTX Industries and Jasco Products said in a partial opposition brief filed Feb. 16.

The Department of Justice wants the U.S. Court of International Trade to include two documents that the Office of the U.S. Trade Representative “realized” were missing from the administrative record filed April 30 by the government in the Section 301 litigation, it said in a Feb. 15 motion to correct the record. USTR Assistant General Counsel Megan Grimball said in a declaration that the documents were “inadvertently omitted.” DOJ said USTR discovered the omissions in the two weeks since the Feb. 1 oral argument.

The Court of International Trade heard oral argument on Feb. 1 over whether lists 3 and 4A of Section 301 tariffs were properly imposed, marking one of the largest cases in the CIT's history. The hourslong affair saw the judges push back on arguments made by both the Department of Justice and the plaintiffs, with significant attention paid to the procedural elements of the president's decision to impose the retaliatory Section 301 tariffs on billions of dollars worth of Chinese goods. In all, the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves heard from the Department of Justice, counsel for the test case plaintiffs HMTX Industries and Jasco Products, and amici.

The massive Section 301 litigation that has inundated the U.S. Court of International Trade since the first cases were filed 16 months ago enters a critical new phase Feb. 1 when oral argument is scheduled for 10 a.m. EST before the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves. Virtually all the thousands of complaints seek to vacate the lists 3 and 4A tariffs on Chinese imports and get the duties paid refunded with interest on grounds that the Office of the U.S. Trade Representative overstepped its tariff-wielding authority under the 1974 Trade Act and violated protections in the 1946 Administrative Procedure Act (APA) against sloppy federal agency rulemakings.