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3.20.2023 China 301 Litigation Update

On March 17, 2023, the U.S. Court of International Trade (CIT) issued a decision in In Re Section 301 Cases, Court No. 21-00052, sustaining the promulgation of the List 3 and List 4A additional tariffs by the United States Trade Representative (USTR).

The CIT had previously found that USTR acted within its statutory authority when it modified the original Section 301 determinations on certain goods from China by adding List 3 and List 4A.  However, in the previous decision, the CIT found that USTR had not demonstrated that it had satisfied the procedural requirements of the Administrative Procedure Act (APA) when it promulgated List 3 and List 4A.  Specifically, the CIT found that USTR had not provided adequate explanations of how it considered the thousands of comments that it received during the notice and comment periods that preceded its imposition of the additional duties.  The CIT issued a remand to USTR to give the agency an opportunity to provide a fuller explanation and USTR responded by filing a 90-page remand report.

Plaintiffs argued that the remand report constituted impermissible post hoc rationalizations and that USTR had failed to show that it considered several of the concerns raised in the comments.  However, in ruling for the government, the CIT found that the remand report was an adequate “amplified articulation” of USTR’s rationales at the time that it imposed List 3 and List 4A.  Additionally, the CIT held that USTR was not required to provide additional explanations of why it concurred with the President that additional tariffs were appropriate.

The decision by the CIT is now final.  We expect that plaintiffs will appeal to the U.S. Court of Appeals for the Federal Circuit (CAFC).  The CAFC will apply a de novo standard of review to the legal findings by the CIT, which means that such issues will be reviewed by the CAFC as if the CIT had not issued a decision.  Plaintiffs have 60 days from the date of the CIT’s entry of judgment to file an appeal.

Should you have any questions, please do not hesitate to contact one of our attorneys.


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