On August 1, 2022, and as directed by the U.S. Court of International Trade (CIT) in its April 2022 decision (see Update of April 6, 2022), the Office of the U.S. Trade Representative (USTR) filed a 90-page explanation in support of its rationale for imposing List 3 and List 4A tariff determinations to show that it satisfied its Administrative Procedure Act (APA) obligations. In noting the CIT’s acknowledgement that the APA does not require a comment-by-comment response, the USTR stated in its remand explanation that, with over 9,000 total comments submitted, “approximately 95 percent of the comments addressed ‘tariff subheadings to be covered’ by the proposed lists or specific products to be covered” by the determinations. As to more general, non-product-specific comments, the USTR stated that only approximately 440 such comments were submitted. Based on that analysis, the USTR focused much of its remand results explanation on product-specific comments for List 3 and 4 modifications, including: (i) the removal of rare earth critical minerals; (ii) the removal of certain seafood products; (iii) the removal of Chinese antiques and works of art; (iv) the removal of certain consumer electronics; (v) the removal of certain health and safety products; (vi) the removal of certain chemicals and other inputs; (vii) the removal of certain product critical to U.S. port operations; and (viii) details as to why certain products were not removed from Lists 3 and 4A. The USTR concludes in its explanation that “each aspect of the determination [was] made in consideration of the public comments and testimony, as well as statutory considerations, including the direction of the President.”
To further buttress the submission, the government defendants also filed a Motion for Leave to Correct the Record to add nine documents and a declaration to the underlying administrative record. In support of allowing these documents to be added to the record, the Department of Justice notes in the motion that, (1) while the USTR was drafting the remand results explanation, it was “determined that [these] additional documents either were indirectly considered in the process of issuing the contested determinations, or they were issued in conjunction with the contested determinations” and, (2) since the USTR was aware of the facts contained in these documents, they should be part of the administrative record. According to the motion, the plaintiff group took 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.”