In April 2022, the U.S. Court of International Trade (CIT) issued an opinion rejecting importers arguments that the third and fourth rounds of Section 301 duties were beyond the time period permitted by the statute. However, the court agreed with the importers’ separate claim that the USTR violated the Administrative Procedure Act (APA) by failing to follow procedure and evaluate comments filed in response to the imposition of List 3 and List 4 duties. The court set an August 1, 2022 deadline for the USTR to provide an explanation of how the USTR arrived at its determinations and how those determinations affected the U.S. economy.
On August 1, 2022, the Office of the U.S. Trade Representative (USTR) filed its response with the CIT. The USTR’s response can be accessed here.
On August 15, 2022, the CIT set deadlines for the Plaintiff’s comments on the USTR’s response, the Defendant’s reply, and the Plaintiffs’ response to Defendant’s reply. This final document filing has been given a deadline of November 14, 2022. The court will determine whether oral arguments are necessary after the document filings.
Currently it is difficult to determine whether the USTR’s explanations of why it was lawful to ignore the comment period will have any effect on the final outcome of the case, as success will depend heavily on how the judges interpret the USTR’s explanations in light of the Plaintiff’s and Defendant’s arguments. We expect both parties to extend their document filing deadlines several times, which will potentially push the final document filing and oral arguments into 1st Qtr. 2023.
At this time, there is nothing you need to do. We will continue to monitor the litigation and keep you apprised of further developments.
If you have any questions regarding the case, or CBP in general, please reach out to one of our attorneys and we will be happy to help.
