Few New Materials Populate USTR’s Section 301 Administrative Record

Nearly 600 pages comprise two administrative record indexes, one “non-confidential,” the other “confidential,” filed April 30 with the Court of International Trade by government defendants in the massive Section 301 litigation challenging the lawfulness of the lists 3 and 4A tariffs on Chinese imports. The roughly 3,600+ complaints seek to get the tariffs vacated and the duties refunded, alleging they run afoul of the 1974 Trade Act and violate 1946 Administrative Procedure Act protections against sloppy rulemakings.

The indexes form “a complete list of the documents and materials directly or indirectly considered” at the Office of the U.S. Trade Representative “in connection with” the challenged tariffs, declared Megan Grimball, the agency’s associate general counsel, who worked on the Section 301 China investigation when the List 3 rulemaking took place. “These documents comprise the complete and entire Administrative Record in this case,” Grimball said.

Akin Gump attorneys for sample case plaintiffs HMTX Industries and Jasco Products didn’t respond to questions May 3 about whether they agree with Grimball that the indexes form a complete record. “Despite receiving approximately 10,000 comments, USTR said absolutely nothing about how those comments shaped its final promulgation of List 3 and List 4A,” in violation of the APA, Akin Gump’s Sept. 21 complaint alleged.

The non-confidential index released April 30 contains links to those roughly 10,000 comments, plus other previously released materials, including Federal Register notices, public hearing transcripts and White House statements. The 538-page public index didn't include links to emails or other internal agency materials that might shed light on USTR’s lists 3 and 4A decision-making. Also absent were records of communications among members of the interagency Section 301 committee that conducted the hearings.

The shorter confidential index links mostly to redacted trade-secret comments submitted in the lists 3 and 4A tariff rulemakings, but little else in the record that was previously unknown. One exception was an unlinked reference to a Sept. 17, 2018, document labeled in the index as “Confidential Summary of Confidential Advisory Committee advice.” It’s listed as “Attachment #3" to the unpublished Federal Register notice announcing the List 3 tariffs. Sept. 17, 2018, was when President Donald Trump announced the imposition of the List 3 tariffs on Chinese imports at 10%, effective Sept. 24, 2018. He later hiked List 3 to 25%, where those tariffs still stand today, after accusing the Chinese of reneging on trade commitments at the negotiating table. USTR didn’t respond to questions about the nature of the advice described in the document and why the agency wants to protect it from public disclosure.

“For months, we have urged China to change these unfair practices, and give fair and reciprocal treatment to American companies,” said Trump’s White House statement, which is linked in the non-confidential index. His decision came after “seven weeks of public notice, hearings, and extensive opportunities for comment,” he said. Trump announced List 3 about three weeks after that round of hearings concluded, and 11 days after post-hearing rebuttals came due.