International Trade Court Refers Section 301 Tariffs to U.S. Trade Representative – International Law

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United States: International Trade Court Refers Section 301 Tariffs to U.S. Trade Representative

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The court orders the agency to provide a better explanation for List 3 and List 4A by June 30, 2022.

On April 1, 2022, a three-judge panel of the United States Court of International Trade issued an opinion in a test case involving more than 3,600 lawsuits challenging the United States Trade Representative’s (“USTR”) decision to impose tariffs on lists 3 and 4A. under Section 301 of the Commerce Act.

Although the court upheld the USTR’s legal authority to issue the fares, the court found that the USTR violated the Administrative Procedure Act (“APA”) when it enacted List 3 and the list 4A. The APA requires agencies to respond with reasons to comments that raise material issues in a notice and comment rulemaking process. But the court found that the USTR largely ignored important comments submitted during rulemaking. The USTR’s rationales for List 3 and List 4A did not “inform the court of how the USTR arrived at its decision to act and how it chose to act, considering given the opposition and support to increased duties and the inclusion or exclusion of particular subheadings, concerns raised about the impact of duties on the U.S. economy and the potential availability of ‘other courses of action.’

As a remedy, the court ordered that List 3 and List 4A be returned to the USTR for “reconsideration or further explanation regarding the USTR’s justification for imposing the tariffs and, if necessary, the reasons for the USTR to place products on or remove products from lists. The court has set a deadline of June 30, 2022 for the USTR to complete this process, but the court has declined to vacate List 3 and List 4A at this time, meaning they are still in place for a while. pre-trial detention.

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