Recent Decisions Bolster Section 301 Plaintiffs' Arguments: Akin Gump
Two “pertinent and significant” decisions at the U.S. 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 1974 Trade Act modification…
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authority by imposing the Lists 3 and 4A tariffs on Chinese imports and that it violated protections in the 1946 Administrative Procedure Act against sloppy rulemakings, said Akin Gump lawyers for HMTX and Jasco in a notice of supplemental authorities relevant to the Section 301 litigation, posted Monday in docket 1:21-cv-52. Both decisions were handed down after Akin Gump filed its final written brief in the Section 301 case on Nov. 15 (see 2111160003). In Solar Energy Industries Association v. U.S., decided Nov. 16, the court decided President Donald Trump “acted outside of his delegated authority” when he relied on a modification provision in Section 204 of the Trade Act to increase “safeguard tariffs” to protect the domestic solar panel industry against foreign imports, said Akin Gump. For the purposes of HMTX-Jasco, the court in SEIA said “reading the modification provision as a whole confirms” that Section 307 of the Trade Act “permits only reductions, not increases, in tariff actions,” as HMTX and Jasco argued, it said. The court’s opinion in Invenergy Renewables LLC v. U.S., decided Nov. 17, “likewise supports” the Section 301 plaintiffs’ arguments on APA violations when it vacated a USTR rule because the agency didn’t adequately address the significant comments “raised by opponents of the rule USTR adopted,” said Akin Gump. Oral argument in the Section 301 test case is scheduled for Feb. 1.