Recent Decisions Support Section 301 Plaintiffs' Arguments, HMTX Lawyers Tell CIT

Two “pertinent and significant” decisions at the Court of International Trade support the arguments of Section 301 test case plaintiffs HMTX Industries and Jasco Products that the Office of the U.S. Trade Representative overstepped its Trade Act of 1974 modification authority by imposing the lists 3 and 4A tariffs on Chinese imports and that it violated protections in the Administrative Procedure Act against sloppy rulemakings, Akin Gump lawyers for HMTX and Jasco said in a notice of supplemental authorities relevant to the Section 301 litigation. Both decisions were handed down after Akin Gump filed its final written brief in the Section 301 case on Nov. 15 (see 2111160010).

In Solar Energy Industries Association v. U.S., decided Nov. 16, the court determined that President Donald Trump “acted outside of his delegated authority” when he relied on a modification provision in Section 204 of the Trade Act to increase “safeguard tariffs” to protect the domestic solar panel industry against foreign imports, Akin Gump said (see 2111160032). For the purposes of HMTX-Jasco, the court in SEIA found that “reading the modification provision as a whole confirms” that Section 307 of the Trade Act “permits only reductions, not increases, in tariff actions,” as HMTX and Jasco have argued, it said.

The court’s opinion in Invenergy Renewables LLC v. U.S., decided Nov. 17, “likewise supports” the Section 301 plaintiffs’ arguments on APA violations when it vacated a USTR rule because the agency didn’t adequately address the significant comments “raised by opponents of the rule USTR adopted,” Akin Gump said (see 2111170038). Oral argument in the Section 301 test case is scheduled for Feb. 1 (In Re Section 301 Cases, CIT #21-00052).