The Office of the U.S. Trade Representative, acting at the “direction” of President Donald Trump, had the authority under the 1974 Trade Act to impose the lists 3 and 4A Section 301 tariffs on Chinese imports, argued a Department of Justice "master answer" filed March 12 in one among a series of “anticipated defenses” it plans to mount against the massive litigation inundating the U.S. Court of International Trade. The defenses were layered with a series of fallback arguments, some contradicting others. Lawyers asked about the filing said the tactic is common, based on the proven strategy that DOJ needs only one argument to stick.

Therese Randazzo, director of the forced labor division in the trade remedy and law enforcement directorate at CBP, said that although there have been far more withhold release orders than findings since legislation eliminated a forced labor loophole in 2015, the trade community should expect to see more findings in the future. Randazzo, who was speaking on a panel on forced labor at the annual Georgetown Law International Trade Update on March 11, declined to comment on whether CBP has opened an investigation into forced labor in polysilicon from China (see 2101080044). That's an input for solar panels, and about two-thirds of the world's solar panels are made in China.

The U.S Commission on International Religious Freedom, an advisory committee to Congress, heard from four witnesses that passing the Uyghur Forced Labor Prevention Act is the most important thing the U.S. could do to convince companies that sell in the U.S. to exit China's Xinjiang region. One witness, from the Heritage Foundation, said a better first step would be a two-year region-wide withhold release order, which would give CBP time to gather more convincing evidence about the scope of forced labor in the western Chinese province.

CBP's continued application of Part 102 NAFTA marking rules for goods imported from Canada and Mexico (see 2103100025) doesn't include some agricultural goods imported under USMCA, said Monika Brenner, chief of the CBP Valuation and Special Programs Branch, during the virtual Georgetown Law International Trade Update on March 10. “For certain goods, it's designated as an S+ in the special subcolumn,” she said. “And for those you actually have to figure out if it's a good of Canada or a good of Mexico.”

The European Union and U.S. have moved closer to each other's positions on World Trade Organization reform, panelists on a webinar agreed, but that's not to say it's going to be quick or easy to get the appellate body restarted.

The U.S. Court of International Trade dismissed a challenge to the Section 232 steel and aluminum tariffs' exclusion process, finding that the importer-specific exclusion process is constitutional. In the case, steel importer Thyssenkrupp Materials and its subsidiaries said that by excluding individual importers from the tariffs, the process violated the Constitution's uniformity clause by discriminating against steel and aluminum importers based on geography (see 2004230053). Thyssenkrupp also held that the exclusion process was inconsistent with presidential proclamations dictating how the exclusions should be conducted. Judges Claire Kelly, Gary Katzmann and Jane Restani in their March 10 opinion were unconvinced of both arguments and granted the government defense's motion to dismiss the case.

CBP will allow importers to continue to use Part 102 NAFTA marking rules for goods imported from Canada and Mexico, even though they are no longer a requirement for USMCA preferences, said James Kim, a lawyer with CBP’s Office of Regulations and Rulings currently working at the agency’s USMCA center, during a Zoom call following a panel discussion March 9.

International Trade Today is providing readers with the top stories from March 1-5 in case they were missed. All articles can be found by searching on the titles or by clicking on the hyperlinked reference number.

The recent focus on forced labor has also created some trade facilitation problems, both of which appear unlikely to go away under the Biden administration, said Paul Rosenthal, a lawyer with Kelley Drye, during the virtual International Trade Update hosted by Georgetown Law on March 9. Rosenthal was asked about the corporate compliance difficulties following CBP forced labor enforcement actions, particularly in countries that the company isn't directly connected to. “The shift has been away from concern about U.S. manufacturing interests to social interests” involving child and forced labor, he said. “And I don't see that shifting. In fact, I see that continuing and accelerating and I think one the big issues” for the administration “will be how to balance those interests,” he said

CBP posted a new fact sheet on the process for modifying or revoking withhold release orders issued out of suspicion that forced labor was used in the supply chain of imported goods. The fact sheet follows a recent Government Accountability Office report that recommended that CBP provide more information on the subject (see 2103010042).