No New Documents Populate USTR’s Section 301 Administrative Record

Nearly 600 pages comprise two administrative record indexes, one “non-confidential” (in Pacer), the other “confidential” (in Pacer), filed Friday with the U.S. 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,” said Grimball.

Akin Gump attorneys for sample case plaintiffs HMTX Industries and Jasco Products didn’t respond to questions Monday 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, alleged Akin Gump’s Sept. 21 complaint (in Pacer).

The non-confidential index released Friday contains links to those roughly 10,000 comments, plus other previously released materials, including Federal Register notices, public hearing transcripts and White House statements. We searched the 538-page public index and found no links to emails or other internal agency materials that would shed light on USTR’s Lists 3 and 4A decision-making. Also absent were records of communications among members of the inter-agency Section 301 committee that conducted the hearings. Among the roughly 6,000 comments linked to in the index is the Sept. 6, 2018, CTA submission, co-authored by Akin Gump, that first floated the allegations that List 3 ran afoul of the law.

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. USTR didn’t respond Monday to questions about the nature of the advice described in the document and why the agency wants to protect it from public disclosure.

We checked the significance of Sept. 17, 2018, and found that in addition to that being the date of the unpublished Federal Register notice, it also was when President Donald Trump announced the imposition of the List 3 tariffs on Chinese imports at 10%, effective Sept. 24. He later hiked List 3 charges to 25%, where those tariffs still stand today, after accusing the Chinese of reneging on trade commitments at the negotiating table.

“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 to 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 were due. We found no linked materials in the indexes pertaining to any USTR deliberations that could have taken place between the end of the List 3 rulemaking and the announcement of the tariffs.