Portions of USTR’s Tariff Rulemakings Were Legal Under APA, Trade Court Says

Though the U.S. Court of International Trade ruled April 1 that the Office of the U.S. Trade Representative violated the 1946 Administrative Procedure Act when it failed in its final tariff notices to publicly connect the Lists 3 and 4A Section 301 comments it received with the tariff decisions it made (see 2204010059), the three-judge panel absolved the agency of APA wrongdoing amid plaintiffs’ allegations it ran sloppy rulemakings.

The court remanded the tariffs to USTR on the insufficiencies of its notices, giving the agency until June 30 for “reconsideration or further explanation” of its “rationale for imposing the tariffs and, as necessary, the USTR’s reasons for placing products on the lists or removing products therefrom.”

The Section 301 plaintiffs also accused USTR of violating the APA by failing to provide meaningful opportunity to comment on List 3 when it set a simultaneous deadline for written and post-hearing rebuttal comments. The agency also acted unlawfully when it limited testimony at the Lists 3 and 4A public hearings to five minutes a person.

Those arguments “lack merit,” the judges decided. “The APA did not require the USTR to provide interested parties with an opportunity to submit rebuttal comments,” said their unanimous opinion. USTR’s decision to limit oral testimony to five minutes per person “also did not violate the APA, which gives agencies discretion as to whether a rulemaking will involve an ‘opportunity for oral presentation,’” said the opinion.

“Absent a statutory directive, the amount of time allowed for each person to testify is the type of line-drawing exercise best left to the USTR,” wrote the judges. The public hearings for Lists 3 and 4A ran for 13 days collectively, they said, “demonstrating ample opportunity for public participation.”