Paul Gluckman

The Court of International Trade in its April 1 remand order gave the Office of the U.S. Trade Representative “one final opportunity” to cure its Administrative Procedure Act violations and "flesh out" the reasons why it rejected the 9,000+ comments it received in the lists 3 and 4A Section 301 tariff rulemakings, without devising “new rationales for dismissing them,” Akin Gump lawyers for lead Section 301 plaintiffs HMTX Industries and Jasco Products said in comments on USTR’s Aug. 1 remand determination. “USTR’s response to that directive flunks the Court’s test,” they said (In Re Section 301 Cases, CIT #21-00052).

The Court of International Trade “bent over backwards” to allow the Office of the U.S. Trade Representative to comply with its Administrative Procedure Act obligations in its imposition of the lists 3 and 4A Section 301 tariffs on Chinese goods when it remanded the duties to the agency for further explanation on the rationale for the actions it took in the context of the comments it received, said an amicus brief filed Sept. 14 in the massive Section 301 litigation from the Retail Litigation Center, CTA, the National Retail Federation and four other trade associations. With USTR’s “non-responsive” answer to the remand order, the time has come for the court “to impose the normal remedy for unlawful agency action” and to vacate the lists 3 and 4A tariffs, it said (In Re Section 301 Cases, CIT #21-00052).

Lawyers for the Section 301 test-case plaintiffs HMTX Industries and Jasco Products have until Sept. 14 to file their response to the Aug. 1 remand results on the lists 3 and 4A tariffs from the Office of the U.S. Trade Representative, said an Aug. 15 scheduling order from the three-judge panel at the Court of International Trade. DOJ’s reply is due 44 days later, by Oct. 28, the order said. The two sides, in a joint status report, had agreed on the Sept. 14 date for the plaintiffs to respond to USTR’s remand results, but the government asked for 60 days to Nov. 14 to file its reply, while the plaintiffs asked for the government's reply within 30 days, by Oct. 14.

The Office of the U.S. Trade Representative often found itself weighing the possible harm to U.S. consumers from the lists 3 and 4A Section 301 tariffs against the need to give the duties enough teeth to curb China’s allegedly unfair trade practices, the agency said in its 90-page “remand determination,” filed Aug. 1 at the Court of International Trade (In Re Section 301 Cases, CIT #21-00052). Submitting its bid to ease the court's concerns over modifications made to the third and fourth tariff waves, USTR provided its justifications for removing various goods from the tariff lists ranging from critical minerals to seafood products.

Any chances that the Section 301 tariffs on Chinese goods would stimulate U.S. importers to shift their supply chains to alternative countries of origin were obliterated when the COVID-19 pandemic struck in early 2020, Jonathan Gold, National Retail Federation vice president-supply chain and customs policy, told the International Trade Commission in a virtual hearing July 21. The ITC completed three days of public hearings July 22 as part of its Tariff Act Section 332 investigation into the tariffs’ economic impact on U.S. industries.

Consumer tech products imported from China bore more than $32 billion in Section 301 tariff exposure between July 2018, when the first of the tariffs took effect, and December 2021, without dissuading most U.S. importers to abandon Chinese sourcing, according to a newly released Consumer Technology Association report produced with Trade Partnership Worldwide. A CTA spokesperson said July 20 that the association released the report to coincide with this week's public hearing at the International Trade Commission as part of its investigation on the economic impact of the Section 301 and Section 232 tariffs on U.S. industries.

The Office of the U.S. Trade Representative has 32 extra days, until Aug. 1, to file its lists 3 and 4A tariff remand results in the Section 301 litigation, a three-judge panel at the Court of International Trade said in a June 22 order. DOJ, on USTR’s behalf, asked for a 60-day extension to Aug. 30 to fix its Administrative Procedure Act violations, citing the volume of work required to meet the remand order, plus the agency’s limited staff resources and the additional projects compounding its workload (see 2206210042).

TV imports to the U.S. in all screen sizes from all countries nudged 1.5% higher year over year in the seasonally weak first quarter, reaching 9.77 million sets, commanding an average customs value of $330.66, according to Customs data retrieved May 8 through the International Trade Commission’s DataWeb portal. Q1 shipments fell 24.5% sequentially from Q4, and their average value trended 6.5% lower, evidence of the sustained decline in LCD panel prices that began late last summer.

Direct negotiations with China are, “at this point, unlikely to yield meaningful results” in curbing Beijing’s unfair trade practices, Emily Kilcrease, senior fellow at the Center for a New American Security, told the U.S.-China Economic and Security Review Commission in written testimony at a hearing April 14. “China has little incentive to commit to binding rules that will require structural changes to a system they believe works for their economic and political objectives,” she said.

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.”