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.
The Department of Justice wants the U.S. Court of International Trade to include two documents that the Office of the U.S. Trade Representative “realized” were missing from the administrative record filed April 30 by the government in the Section 301 litigation, it said in a Feb. 15 motion to correct the record. USTR Assistant General Counsel Megan Grimball said in a declaration that the documents were “inadvertently omitted.” DOJ said USTR discovered the omissions in the two weeks since the Feb. 1 oral argument.
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The Court of International Trade heard oral argument on Feb. 1 over whether lists 3 and 4A of Section 301 tariffs were properly imposed, marking one of the largest cases in the CIT's history. The hourslong affair saw the judges push back on arguments made by both the Department of Justice and the plaintiffs, with significant attention paid to the procedural elements of the president's decision to impose the retaliatory Section 301 tariffs on billions of dollars worth of Chinese goods. In all, the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves heard from the Department of Justice, counsel for the test case plaintiffs HMTX Industries and Jasco Products, and amici.
The 15% tariff on most solar panels and the 15% tariff on imported solar cells past a 2.5 gigawatt threshold are slated to expire Feb. 6, and, according to Reuters, the White House is considering accepting some of the International Trade Commission's recommendations on extending the solar panel and cell safeguard, and rejecting others. The ITC recommended reducing the current 15% rate by just .25% in 2022, and by another quarter point each year, until early 2026, when the safeguard would expire.
The following lawsuits were recently filed at the Court of International Trade:
Home Depot U.S.A. launched a challenge at the Court of International Trade over President Donald Trump's expansion of the Section 232 tariffs onto steel and aluminum "derivative" products, such as steel nails. Building on the early success of the PrimeSource Building Products Inc. v. U.S. case -- currently under appeal at the U.S. Court of Appeals for the Federal Circuit -- Home Depot said that the action to impose tariffs on the derivative products violated procedural time limits in the Section 232 statute (Home Depot USA v. United States, CIT #22-00014). In April 2021, CIT struck down the Section 232 duties on derivative goods, finding the president violated his statutory authority (see 2104050049).
The following lawsuits were recently filed at the Court of International Trade:
The Department of Justice will appeal to the U.S. Court of Appeals for the Federal Circuit a November 2021 Court of International Trade decision striking down the Trump administration's withdrawal of a tariff exclusion on bifacial solar panels, according to a Jan. 14 notice of appeal. In the opinion, the trade court struck down the exclusion rescission since the law only permits trade liberalizing alterations to the existing safeguard measures (see 2111160032) (Solar Energy Industries Association v. United States, CIT #20-03941).
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).