DOJ Files New Motion for USTR to Correct Record in Section 301 Cases

DOJ asked the Court of International Trade in an Aug. 1 motion on behalf of the Office of the U.S. Trade Representative for permission to correct the administrative record in the Section 301 litigation to include 136 pages of documents not previously submitted in the cases. Virtually all the documents previously were in the public domain, and they include mostly news releases and Federal Register notices announcing USTR actions connected with the imposition of the four rounds of Section 301 tariffs on Chinese imports dating to 2018.

USTR “was aware of the facts contained in all these documents, such that those facts were considered when making the challenged decisions” about imposing the lists 3 and 4A tariffs, the agency said: “Upon drafting the remand results as ordered by the Court, the USTR has determined that additional documents either were indirectly considered in the process of issuing the contested determinations, or they were issued in conjunction with the contested determinations, such that they should be part of the administrative record.”

The remand results themselves, to address what the court in April found to be Administrative Procedure Act violations at USTR in the imposition of the lists 3 and 4A tariffs, were due at the court Aug. 1. DOJ said it reached out July 28 to Matthew Nicely and Pratik Shah, lead Akin Gump attorneys for test-case plaintiffs HMTX Industries and Jasco Products, to gauge their position on the motion. According to DOJ, Nicely and Shah said they “take no position on the motion, on the understanding that the Government has forfeited reliance on documents not cited in its previous merits briefing to this Court.” Nicely didn’t immediately respond to an email seeking comment.