No Proof USTR Weighed Section 301 ‘Update’ Report in Tariff Decisions, Plaintiffs Say

The U.S. Court of International Trade should deny the Department of Justice's motion to add a November 2018 investigatory “update” report from the Office of the U.S. Trade Representative to the administrative record in the Section 301 litigation (see 2202160033) because the government has failed to show that USTR “actually relied on or considered” the report when it was deciding to impose either the Lists 3 or List 4A tariffs on Chinese imports, Akin Gump lawyers for sample-case plaintiffs HMTX Industries and Jasco Products said in a partial opposition brief filed Feb. 16.

Plaintiffs take no position on the government’s motion to include a transcript of then-President Donald Trump’s June 2018 remarks authorizing USTR to identify $200 billion worth of Chinese goods for additional tariffs that eventually became List 3, they said. USTR Assistant General Counsel Megan Grimball said in a declaration both documents were “inadvertently omitted” from the administrative record filed with the court on April 30. They now belong in the record because USTR “was aware of the contents of both of these documents and they would have been considered” in the agency’s decision-making about lists 3 or 4A, she said.

But the update report, finding that several rounds of tariffs had failed to curb China’s allegedly unfair trade practices, “did not exist until two months after List 3 had been promulgated into law” in September 2018, the Akin Gump lawyers said. Nor did USTR “cite, let alone rely on,” the report “at any point during the List 4 rulemaking process” that followed many months later, they said. DOJ’s “thirteenth-hour assertion” that USTR “in some vague fashion” considered the report during the rulemakings “falls woefully short” of its burden under case law to identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency, they said.

DOJ also has “forfeited any reliance” on the report so late in the Section 301 case, and so the court should deny the motion on “waiver grounds,” the Akin Gump lawyers said. Not only did USTR fail to cite or rely on the report during its two rulemakings, but the government has “also failed to cite or rely on it during this litigation,” they said.

Since Grimball’s original April 30 declaration attesting then to the complete administrative record, “the parties have filed substantive briefs totaling over 200 pages,” and the court held a lengthy oral argument “involving six different advocates,” the Akin Gump lawyers said. Before DOJ’s Feb. 15 motion to correct the record, “filed three months after the close of briefing and two weeks after the hearing,” the only mention of the report during the 17-month-long litigation was a “passing reference” to it during the government’s oral argument, without any prior notice to plaintiffs or to the court, they said.