Petition for Writ of Certiorari — HMTX Industries, LLC, et al., Petitioners v. United States, et al.

Supreme Court briefFeb 20, 2026

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APPENDIX

TABLE OF CONTENTS

Appendix A: Opinion of the United States

Court of Appeals for the Federal Circuit, HMTX

Industries, LLC v. USTR (Sept. 25, 2025) ................ 1a

Appendix B: Opinion and Order of the United

States Court of International Trade, In re

Section 301 Cases (Apr. 1, 2022) ............................. 39a

Appendix C: Opinion and Order of the United

States Court of International Trade, In re

Section 301 Cases (Mar. 17, 2023) ........................ 112a

Appendix D: Judgment of the United States

Court of Appeals for the Federal Circuit, HMTX

Industries, LLC v. USTR (Sept. 25, 2025) ............ 140a

Appendix E: 19 U.S.C.A. § 2411 ......................... 142a

Appendix F: 19 U.S.C.A. § 2412 ......................... 154a

Appendix G: 19 U.S.C.A. § 2413 ......................... 157a

Appendix H: 19 U.S.C.A. § 2414 ......................... 159a

Appendix I: 19 U.S.C.A. § 2415 .......................... 164a

Appendix J: 19 U.S.C.A. § 2416.......................... 168a

Appendix K: 19 U.S.C.A. § 2417 ......................... 173a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2023-1891

————

HMTX INDUSTRIES LLC,

HALSTEAD NEW ENGLAND CORP., METROFLOR CORP.,

JASCO PRODUCTS COMPANY LLC,

Plaintiffs-Appellants

UNITED STATES, OFFICE OF THE UNITED STATES TRADE

REPRESENTATIVE, JAMIESON GREER, U.S. TRADE

REPRESENTATIVE, UNITED STATES CUSTOMS AND

BORDER PROTECTION, RODNEY S. SCOTT,

COMMISSIONER OF U.S. CUSTOMS AND

BORDER PROTECTION,

Defendants-Appellees

————

Appeal from the United States Court of

International Trade in Nos. 1:20-cv-00177-3JP, 1:21cv-00052-3JP, Chief Judge Mark A. Barnett, Judge

Claire R. Kelly, Judge Jennifer Choe-Groves.

————

Decided: September 25, 2025

————

PRATIK A. SHAH, Akin Gump Strauss Hauer & Feld

LLP, Washington, DC, argued for plaintiffs-appellants.

Also represented by MATTHEW R. NICELY, DEVIN S.

SIKES, JAMES

WITKOWSKI.

EDWARD TYSSE,

DANIEL

MARTIN

EMMA E. BOND, Commercial Litigation Branch, Civil

Division, United States Department of Justice,

Washington, DC, argued for defendant-appellees. Also

represented by SOSUN BAE, BRIAN M. BOYNTON,

JOSHUA KOPPEL, PATRICIA M. MCCARTHY, JUSTIN

REINHART MILLER, LOREN MISHA PREHEIM, ELIZABETH

ANNE SPECK; PHILIP ANDREW BUTLER, MEGAN

MICHELLE GRIMBALL, Office of the United States Trade

Representative, Washington, DC; VALERIE SORENSENCLARK, Office of the Assistant Chief Counsel,

International Trade Litigation, United States

Customs and Border Protection, New York, NY.

————

Before LOURIE and HUGHES, Circuit Judges, and

GILSTRAP, District Judge.1

HUGHES, Circuit Judge.

From 2017 to 2018, the Office of the United States

Trade Representative (USTR) conducted an investigation which found that China was engaged in

unreasonable or discriminatory conduct that burdens

or restricts U.S. commerce. Following a period for

notice and comment, USTR took discretionary action

under Section 301 of the Trade Act of 1974 by imposing

25% duties on $50 billion of imports from China. This

$50 billion trade action on List 1 and List 2—a

reference to the list of Chinese products included in

the affected Harmonized Tariff Schedules—is not

challenged. After China retaliated against these

Honorable Rodney Gilstrap, District Judge, United States

District Court for the Eastern District of Texas, sitting by

designation.

tariffs, USTR invoked Section 307 to modify its

discretionary action and impose 10% duties, later

increased to 25%, on an additional $200 billion of

Chinese imports that fall under List 3. USTR then

imposed 10% duties, later decreased to 7.5%, on

approximately $120 billion in Chinese imports that

fall under List 4A.

Plaintiffs-Appellants HMTX Industries, Halstead

New England Corp., Metroflor Corp., and Jasco

Products Co. LLC are businesses that import Chinese

products subject to the List 3 and List 4A tariffs. They

filed the first of over 3,600 cases at the Court of

International Trade alleging that the List 3 and 4A

tariffs were issued without statutory authority and in

violation of the Administrative Procedure Act’s

requirements for notice and comment rulemaking. The

main issue before this court is one of statutory

interpretation, namely, whether Section 307

authorized USTR to modify its original Section 301

trade action by imposing escalatory tariffs on List 3

and List 4A.

The trial court agreed with the Government that the

modifications were consistent with USTR’s authority

under Section 307(a)(1)(B), which allows USTR to

modify an action where the burden or restriction

imposed by the investigated conduct “has increased or

decreased.” 19 U.S.C. § 2417(a)(1)(B). Following a

remand order instructing USTR to further explain

how it considered significant public comments aired in

response to the proposed modifications, USTR produced a remand redetermination articulating in

greater detail its contemporaneous reasoning for the

modified actions. On review, the trial court sustained

the List 3 and List 4A tariff actions.

We decline to address the scope of USTR’s authority

under Section 307(a)(1)(B) and instead conclude that

Section 307(a)(1)(C) independently authorized the

Lists 3 and 4A tariff actions. We further conclude that

USTR’s remand redetermination complied with the

trial court’s lawful remand order and supplied the

necessary clarification to meet the APA’s requirements

regarding notice-and-comment rulemaking. Accordingly,

we affirm the trial court’s final judgment and sustain

USTR’s challenged modifications.

We begin with a brief review of the Trade Act of

1974. Section 301 of the Act originally empowered the

President to respond to unfair trade practices which

burden or restrict United States commerce. Pub. L. No.

93-618, § 301, 88 Stat. 1978, 2041–43. Included in the

President’s powers to respond was the option to impose

duties on foreign countries responsible for the harmful

conduct. Id. at 2042. Section 141 of the 1974 Trade Act

also created the agency that, in 1979, was redesignated

the Office of the United States Trade Representative

(USTR). Id. at 1999 (Section 141 is currently found at

19 U.S.C. § 2171); Reorganization Plan No. 3 of 1979,

§ 1(a), 93 Stat. 1381, 1381. In 1988, Congress transferred the authority to implement Section 301 from

the President to USTR. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 1301(a),

102 Stat. 1107 (Section 301 is currently found at 19

U.S.C. § 2411).

“[S]ubject to the specific direction, if any, of the

President,” Section 301 of the 1974 Trade Act

empowers USTR to respond to unfair trade practices.

19 U.S.C. § 2411(a), (b)(2). Section 301 specifies the

circumstances in which USTR must take either

“[m]andatory action” or may take “[d]iscretionary

action” to eliminate an unfair trade practice by a

foreign country. Id. § 2411(a), (b). Like the President

prior to 1988, USTR’s scope of authority to take action

includes the power to “impose duties or other import

restrictions on the goods of . . . such foreign country for

such time as [USTR] determines appropriate.” Id.

§ 2411(c)(1)(B). Before taking action under Section 301,

USTR has to complete various steps. It must initiate

an investigation (id. § 2412); consult with the foreign

country regarding the practices being investigated (id.

§ 2413); determine whether the requisite conditions

for action are met, and if so, publish its proposed action

and the factual findings on which it is based (id.

§ 2414); and allow for public comment on the proposed

action and publication of the final action (id. § 2412(a)(4),

§ 2412(b)(1)(A), § 2414(c)).

Various conditions can trigger “[m]andatory action,”

including “an act, policy, or practice of a foreign

country” that violates a trade agreement with the

United States or is “unjustifiable and burdens or

restricts United States commerce.” Id. § 2411(a)(1)(B).

Mandatory actions are subject to a proportionality

requirement, meaning they must “affect goods or

services of the foreign country in an amount that is

equivalent in value to the burden or restriction being

imposed by that country on United States commerce.”

Id. § 2411(a)(3). Discretionary actions are not subject

to the same restriction. Section 301(b) provides that,

If the [USTR] determines under section

2414(a)(1) of this title that—

(1) an act, policy, or practice of a foreign

country is unreasonable or discriminatory and burdens or restricts United

States commerce, and

(2) action by the United States is

appropriate, the [USTR] shall take all

appropriate and feasible action authorized

under subsection (c), subject to the

specific direction, if any, of the President

regarding any such action, . . . to obtain

the elimination of that act, policy, or

practice. . . .

Id. § 2411(b) (titled “Discretionary Action”).

In other words, if an investigation leads USTR to

determine that a burdensome foreign practice is

“unreasonable or discriminatory”—as opposed to

“unjustifiable”—and that action is appropriate,

USTR’s discretionary powers are activated. Id. At that

point, USTR may take “all appropriate” action to

obtain a reversal of that practice, subject to the scope

of its authority. Id. The terms “unreasonable,”

“unjustifiable,” and “discriminatory” are defined by

Section 301 at § 2411(d)(3), § 2411(d)(4), and § 2411(d)(5)

respectively, and are not at issue on appeal.

As part of the 1988 amendments to the 1974 Trade

Act, Congress added Section 307, titled “Modification

and termination of actions,” to give USTR the

authority to “modify or terminate” a Section 301

action. Pub. L. No. 100-418, § 1301(a), 102 Stat. 1107

(Section 307 is currently found at 19 U.S.C. § 2417).

Section 307(a)(1) articulates the circumstances in

which modification is permitted:

The [USTR] may modify or terminate any

action, subject to the specific direction, if any,

of the President with respect to such action,

that is being taken under section 2411 of this

title if—

(A) any of the conditions described in

section 2411(a)(2) [releasing USTR from

the requirement to take mandatory

action] exist,

(B) the burden or restriction on United

States commerce of the denial rights, or

of the acts, policies, and practices, that

are the subject of such action has

increased or decreased, or

section 2411(b) of this title and is no

longer appropriate.

19 U.S.C. § 2417(a)(1).

The operation of Section 307 is such that Section

307(a)(1)(A) applies only to mandatory action, Section

307(a)(1)(C) applies only to discretionary action, and

Section 307(a)(1)(B) applies to either mandatory or

discretionary actions. Section 307(a)(1)(A) refers to

conditions when mandatory action is no longer

required, Section 307(a)(1)(C) explicitly refers to

discretionary action taken under Section 301(b), and

Section 307(a)(1)(B) applies to any action taken under

Section 301. Before modifying an action, USTR is also

obligated to consult “with representatives of the

domestic industry concerned” and to provide an

opportunity for other affected parties to present their

views on “the effects of the modification or termination

and whether any modification or termination of the

action is appropriate.” Id. § 2417(a)(2).

On August 14, 2017, President Trump issued a

memorandum directing USTR to determine whether

to investigate “any of China’s laws, policies, practices,

or actions that may be unreasonable or discriminatory

and that may be harming American intellectual

property rights, innovation, or technology development.” Addressing China’s Laws, Policies, Practices,

and Actions Related to Intellectual Property, Innovation,

and Technology, 82 Fed. Reg. 39,007, 39,007 (Aug. 17,

2017). Four days later, USTR initiated a “Section 301

Investigation” pursuant to the 1974 Trade Act and

subsequently requested public comment. Initiation of

Section 301 Investigation; Hearing; and Request for

Public Comment: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 82 Fed. Reg. 40,213, 40,213–14 (Aug.

24, 2017). The notice of investigation explained that

USTR would focus on four categories of conduct by the

Chinese government: (1) practices to force or induce

U.S. companies operating in China to transfer their

technology and intellectual property to Chinese

companies; (2) policies and regulations that deprive

U.S. companies of the ability to set market-based

terms in licensing with Chinese companies; (3) efforts

to direct and unfairly facilitate the systematic

investment in, and/or acquisition of, U.S. companies

and their assets by Chinese companies in order to

generate large-scale technology transfer in strategic

industries; and (4) cybertheft of intellectual property,

trade secrets, or confidential business information by

intrusions into U.S. commercial computer networks.

Id. Concurrently, USTR requested consultations with

the government of China, which opposed the initiation

of a Section 301 investigation. J.A. 01557.

After a seven-month investigation, USTR published

a report detailing the factual support for its finding

that the Chinese government was engaging in each of

the four categories of investigated conduct in a manner

that was unreasonable or discriminatory and burdened

or restricted U.S. commerce. Office of the United States

Trade Representative, Findings of the Investigation

into China’s Acts, Policies, And Practices Related to

Technology Transfer, Intellectual Property, and Innovation Under Section 301 of the Trade Act of 1974

(2018), https://ustr.gov/sites/default/files/Section%203

01%20FINAL.PDF. It promptly issued a notice of its

determination and requested public comment on an

appropriate action in response to the investigated

conduct. Notice of Determination and Request for

Public Comment Concerning Proposed Determination

of Action Pursuant to Section 301: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 83 Fed. Reg.

14,906, 14,906–54 (Apr. 6, 2018). The notice explained

that the investigated acts, policies, and practices were

actionable under Section 301(b), and that, pursuant to

direction from President Trump, the USTR “proposes

that appropriate action would include increased tariffs

on certain goods of Chinese origin.” Id. at 14,907.

USTR’s proposed discretionary action was a 25% tariff

on two lists of Chinese goods, specified by product

subheadings from the Harmonized Tariff Schedule

(HTS) of the United States, then cumulatively worth

$50 billion in annual trade value. Id. at 14,907,

14,910–54. These two lists are referred to as List 1 and

List 2. On June 20, 2018, USTR published notice of the

final List 1 items, covering $34 billion in trade value,

on which it would impose a 25% tariff. Notice of

Action and Request for Public Comment Concerning

Proposed Determination of Action Pursuant to Section

301: China’s Acts, Policies, and Practices Related to

Technology Transfer, Intellectual Property, and

Innovation, 83 Fed. Reg. 28,710, 28,711 (June 20,

2018). On August 16, 2018, USTR published notice

of the final List 2 items, covering an additional

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$16 billion in trade value, that would be tariffed at

the same rate. Notice of Action Pursuant to Section

301: China’s Acts, Policies, and Practices Related

to Technology Transfer, Intellectual Property, and

Innovation, 83 Fed. Reg. 40,823, 40,823–24 (Aug. 16,

2018). The List 1 and List 2 tariffs are not the subject

of this appeal.

In retaliation to USTR’s initial action, China raised

tariffs on $50 billion worth of exports from the United

States. President Trump determined that China had

no “intention of changing its unfair practices related to

the acquisition of American intellectual property and

technology” and directed the USTR to “identify $200

billion worth of Chinese goods for additional tariffs at

a rate of 10 percent.” J.A. 01872. Between mid-2018

and early 2020, the USTR, at the continued direction

of the President, invoked Sections 307(a)(1)(B) and

307(a)(1)(C) to modify its discretionary action several

times. These modifications culminated in the

additional Lists 3 and 4A tariffs—imposed on at least

$300 billion worth of Chinese imports—that are the

subject of this appeal.

The modifications began in July 2018, when USTR

published a notice of its proposal to “modify the action

in this investigation by taking a further, supplemental

action”—specifically, “an additional 10 percent ad

valorem duty on products [from] China” with “an

annual trade value of approximately $200 billion,”

specified in List 3. Request for Comments Concerning

Proposed Modification of Action Pursuant to Section

301: China’s Acts, Policies, and Practices Related

to Technology Transfer, Intellectual Property, and

Innovation, 83 Fed. Reg. 33,608, 33,609 (Jul. 17, 2018)

(“List 3 NPRM”). USTR cited to Section 307(a)(1)(C) as

authority for the modification, explaining that the

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modification was “appropriate” in light of (1) the 1974

Trade Act’s statutory goal of obtaining the elimination

of the investigated conduct, (2) China’s unwillingness

to “respond to action at a $50 billion level by

addressing U.S. concerns,” (3) the President’s direction,

and (4) “China’s announced retaliatory action ($50

billion) and the level of Chinese goods imported into

the United States ($505 billion in 2017).” Id. About a

month later, USTR proposed increasing the tariff on

List 3 items from 10% to 25% and accordingly

extended the period for public comments. Extension of

Public Comment Period Concerning Proposed Modification of Action Pursuant to Section 301: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 83 Fed. Reg.

38,760, 38,760–61 (Aug. 7, 2018)). USTR received over

6,000 written comments in response to the proposed

List 3 tariffs.2

Eleven days after the deadline for written comments

had elapsed, on September 17, 2018, President Trump

issued a statement announcing that USTR would

proceed with a two-phase implementation of the List 3

tariffs on the subject $200 billion of imports from

China. J.A. 06159. USTR accordingly published notice

of the final List 3 tariff action, this time relying on both

Section 307(a)(1)(B) and Section 307(a)(1)(C) as

authority for the modification. Notice of Modification

of Action Pursuant to Section 301 Action: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 83 Fed. Reg.

47,974, 47,974 (Sept. 21, 2018) (“Final List 3”).

Paralleling the language of these provisions, USTR

Although not submitted as part of the underlying docket,

these comments are publicly available at https://www.regulati

ons.gov/docket/USTR-2018-0026.

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stated that “the burden or restriction on United States

commerce of the acts, policies, and practices that are

the subject of the Section 301 action continues to

increase” and “China’s response . . . has shown that the

current action no longer is appropriate.” Id. at 47,974–

75. USTR also indicated that it “carefully reviewed the

public comments” and accordingly decided “not to

include certain tariff subheadings” in List 3. Id. at

47,975. The additional tariffs on List 3 products

became effective September 24, 2018. Id.

In the months that followed, USTR modified

implementation of the List 3 tariffs in response to U.S.China trade negotiations. At first, and at the direction

of the President, it delayed in increasing the tariffs on

List 3 items from 10% to 25% in response to progress

in discussions with China. Notice of Modification of

Section 301 Action: China’s Acts, Policies, and

Practices Related to Technology Transfer, Intellectual

Property, and Innovation, 83 Fed. Reg. 65,198, 65,198–

99 (Dec. 19, 2018); Notice of Modification of Section 301

Action: China’s Acts, Policies, and Practices Related to

Technology Transfer, Intellectual Property, and

Innovation, 84 Fed. Reg. 7,966, 7,966–67 (Mar. 5, 2019).

When China decided to “retreat from specific commitments agreed to in earlier rounds” of negotiations with

the United States, USTR, at President Trump’s

direction, increased the duties on List 3 items to 25%.

Notice of Modification of Section 301 Action: China’s

Acts, Policies, and Practices Related to Technology

Transfer, Intellectual Property, and Innovation, 84

Fed. Reg. 20,459, 20,459 (May 9, 2019).

In response to “further retaliatory action against

U.S. commerce,” the President directed, and USTR

proposed, another modification to the discretionary

action against China. Request for Comments

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Concerning Proposed Modification of Action Pursuant

to Section 301: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 84 Fed. Reg. 22,564, 22,564 (May 17,

2019) (“List 4 NPRM”). The proposed modification took

the form of an additional tariff, “of up to 25 percent,”

on a fourth list of Chinese imports worth $300 billion

in annual trade value. Id. USTR again referenced

Sections 307(a)(1)(B) and 307(a)(1)(C) as independent

bases for the proposed List 4 tariffs. Id. Although the

tariffs on Lists 1 through 4 would result in a duty on

“essentially all products” imported from China (worth

approximately $500 billion at the time, USTR

explained its view that modification was reasonable

“[i]n light of China’s failure to meaningfully address

the acts, policies, and practices that are subject to this

investigation and its response to the current action

being taken in this investigation.” Id. Notice of the

proposed modification again solicited comments, id. at

22,565, resulting in almost 3,000 additional written

submissions.3

USTR ultimately decided to split List 4 into Lists 4A

and 4B, and to begin by imposing a 10% tariff on List

4A items on September 1, 2019. Notice of Modification

of Section 301 Action: China’s Acts, Policies, and

Practices Related to Technology Transfer, Intellectual

Property, and Innovation, 84 Fed. Reg. 43,304, 43,304–

05 (Aug. 20, 2019) (“Final List 4”). Appellants estimate

that the annual trade value of the items on List 4A

was then approximately $120 billion. Appellants’

Opening Br. 22. Ten days later, at the President’s

direction, USTR increased tariffs on List 4A to 15%,

Although not submitted as part of the underlying docket,

these comments are publicly available at https://www.regulati

ons.gov/docket/USTR-2019-0004.

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citing additional tariff and non-tariff retaliation from

China. Notice of Modification of Section 301 Action:

China’s Acts, Policies, and Practices Related to Technology

Transfer, Intellectual Property, and Innovation, 84

Fed. Reg. 45,821, 45,822 (Aug. 30, 2019) (“China has

determined to impose tariffs on a substantial majority

of U.S. goods exported to China, with the goal of

pressuring the United States to cease its efforts to

obtain the elimination of China’s unfair policies. China

has further taken or threatened to take additional

countermeasures, including . . . steps to devalue its

currency.”).

By December 2019, however, the state of diplomatic

affairs had changed. USTR announced that “the

United States and China reached a historic and

enforceable agreement on a Phase One trade deal that

requires structural reforms and other changes to

China’s economic and trade regime, including with

respect to certain issues covered in this Section 301

investigation.” Notice of Modification of Section 301

Action: China’s Acts, Policies, and Practices Related to

Technology Transfer, Intellectual Property, and

Innovation, 84 Fed. Reg. 69,447, 69,447 (Dec. 18, 2019).

Although 15% tariffs on List 4B were supposed to go

into effect December 15, 2019, USTR indefinitely

suspended the List 4B tariffs, finding them “no longer

appropriate” in the context of the Phase One trade deal

with China. Id. At the President’s direction, USTR

further reduced the tariffs on List 4A to 7.5% once the

Phase One trade deal came into force. Notice of

Modification of Section 301 Action: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 85 Fed. Reg.

3,741, 3,741 (Jan. 22, 2020). Thus, by the start of 2020,

USTR was imposing a 25% tariff on List 1 and List 2

items worth $50 billion (the original Section 301

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action), and a 25% tariff on List 3 goods worth $200

billion as well as a 7.5% tariff on List 4A goods worth

at least $100 billion (the modified Section 301 action).

The present appeal requires us to determine

whether USTR had the authority to modify its original

Section 301 action to impose tariffs on items

enumerated in List 3 and List 4A.

In September 2020, Plaintiffs-Appellants, HMTX

Industries, Halstead New England Corp., Metroflor

Corp., and Jasco Products Co. LLC filed suit at the

Court of International Trade alleging that the List 3

and 4A tariffs were issued without statutory authority

and in violation of the APA. Compl. ¶¶ 65–69, 73–75,

HMTX Indus. LLC v. United States, Case No. 20-cv00177 (Ct. Int’l Trade Sept. 21, 2020), ECF No. 12.

Appellants are all businesses that import products

subject to the List 3 and List 4A tariffs. Approximately

3,500 additional suits raising substantially similar

claims were brought before the trial court (the “Section

301 Cases”). In response, the trial court collected these

cases into one “master case,” see In re Section 301

Cases, Case No. 21-cv-00052 (Ct. Int’l Trade Feb. 10,

2021), ECF No. 1 at 1, and selected Appellants’ case as

the “the sample case for purposes of the court’s initial

consideration and resolution of Plaintiffs’ claims,” id.,

ECF No. 267 at 1. All other Section 301 Cases were

stayed pending the resolution of Appellants’ case. Id.

The trial court found that “USTR exercised its

authority consistent with [S]ection 307(a)(1)(B) when

it promulgated List 3 and List 4A” and declined to

address whether USTR’s actions were also authorized

under Section 307(a)(1)(C). In re Section 301 Cases,

570 F. Supp. 3d 1306, 1334–35 (Ct. Int’l Trade 2022)

16a

(“Section 301 Cases I”). With respect to Section

307(a)(1)(B), the trial court concluded that “China’s

retaliatory conduct caused an increased burden on

U.S. commerce from the acts, policies, and practices

that constituted the subject of the [original Section

301] action,” and thus justified modified action in the

form of additional tariffs. Id. at 1332, 1334. The trial

court explained that China’s retaliatory measures

were linked to the original Section 301 action because

they were intended to maintain China’s four categories

of unfair conduct and to offset the original tariffs

imposed to encourage their elimination. Id. at 1334.

Regarding the alleged APA violations, the trial court

agreed with Appellants that USTR failed to adequately

respond to comments as required by the APA’s noticeand-comment rulemaking procedures. Id. at 1338.

Although USTR’s notices of proposed rulemaking

indicated a “willingness to consider factors other than

the President’s direction,” the contested final actions

did not respond to significant issues raised in the

comments—including “concerns regarding the legality

and efficacy of the tariffs, the potential for damage to

the U.S. economy, and whether alternative measures

would be more effective”—or explain the relationship

between issues raised in the comments and the

President’s direction. Id. at 1341, 1339. The trial court

ordered a limited remand for USTR to reconsider or

further explain its rationale for the List 3 and 4A

tariffs, warning that USTR “may not identify reasons

that were not previously given.” Id. at 1345.

In a 90-page remand determination, USTR responded

in more detail to the categories of comments highlighted by the trial court and further contextualized

how it weighed the President’s direction when taking

modified actions. In March 2023, the trial court

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sustained USTR’s remand determination and entered

a final judgment sustaining the List 3 and List 4A

tariffs. In re Section 301 Cases, 628 F. Supp. 3d 1235,

1251 (Ct. Int’l Trade 2023) (“Section 301 Cases II”). The

trial court was satisfied by USTR’s explanation that it

views the Trade Act of 1974 as affording it little

discretion to diverge from the President’s direction,

and by USTR’s account of how it balanced

commenters’ concerns with the Presidential direction

it had received. Id. at 1246–49.

Appellants timely appealed on May 12, 2023. The

trial court had jurisdiction over Appellant’s case

pursuant to 28 U.S.C. § 1581(i). We have jurisdiction

under 28 U.S.C. § 1295(a)(5).

Before us, Appellants argue that “nothing in Section

307” permits USTR’s List 3 and 4A tariff actions, and

that USTR failed to cure its APA violations on remand.

Appellants’ Opening Br. 4–5. We conclude that USTR

did not misconstrue Section 307(a)(1)(C) by interpreting it to independently authorize the Lists 3 and 4A

tariff actions. We further conclude that USTR’s remand

redetermination complied with the trial court’s

remand order and cured its original violations of the

APA’s procedural requirements. Accordingly, we affirm.

“We review the Court of International Trade’s

decision de novo, applying the same standard of review

applied by the Court of International Trade in its

review of the administrative record.” Dongbu Steel Co.

v. United States, 635 F.3d 1363, 1369 (Fed. Cir. 2011);

see also Corus Staal BV v. Dep’t of Com., 395 F.3d 1343,

1346 (Fed. Cir. 2005) (“We review the grant of

judgment on the agency record by the Court of

International Trade without deference.”). Because this

18a

case arose under 28 U.S.C. § 1581(i), the Administrative Procedure Act standard of review applies.

Shakeproof Indus. Prods. Div. of Ill. Tool Works Inc. v.

United States, 104 F.3d 1309, 1313 (Fed. Cir. 1997). The

APA requires us to “decide all relevant questions of

law, interpret constitutional and statutory provisions,”

and to “hold unlawful and set aside agency action”

which is “(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or

immunity; (C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

[or] (E) unsupported by substantial evidence.” 5 U.S.C.

§ 706.

In other words, and as is relevant here, we review de

novo the question of whether USTR properly exercised

its authority pursuant to the Trade Act of 1974 and

satisfied the statutory requirements for notice and

comment procedures under the APA. Although “this

court affords substantial deference to decisions of

[USTR] implicating the discretionary authority of the

President . . . , the judiciary is the final authority on

issues of statutory construction.” Gilda Indus., Inc. v.

United States, 622 F.3d 1358, 1363 (Fed. Cir. 2010)

(internal citations omitted).

III

As an initial matter, we reject the Government’s

argument that the List 3 and 4A tariffs were the

outcome of the President’s discretionary decisions, not

agency action, and thus not reviewable under the APA.

Appellees’ Response Br. 15–16, 19–27; see also Section

301 Cases I, 570 F. Supp. 3d at 1324–25 (noting the

lack to authority to support the government’s position

19a

“that antecedent presidential direction lacking any

direct effect on relevant parties renders List 3 and List

4A non-reviewable presidential actions.”).

None of the cases the Government cites support its

position, as they all relate to decisions taken by the

President pursuant to statutory provisions that

delegate to the President, and not to an agency, the

authority to take final action. See, e.g., USP Holdings,

Inc. v. United States, 36 F.4th 1359, 1362–63 (Fed. Cir.

2022); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1357

(Fed. Cir. 2006); Solar Energy Indus. Ass’n v. United

States, 86 F.4th 885, 890 (Fed. Cir. 2023). In 1988,

Congress transferred authority to enforce Section 301

from the President to USTR. It also expanded USTR’s

authority by enacting Section 307, which states that

USTR—not the President—“may modify or terminate

any [Section 301] action, subject to the specific direction,

if any, of the President.” 19 U.S.C. § 2417(a)(1)

(emphasis added). USTR’s own remand determination

stated that the President’s specific direction was one of

three factors it considered in deciding to modify its

action by expanding tariffs on Chinese products. J.A.

10643 (“[T]he Trade Representative considered: (1) the

specific direction of the President, (2) statutory factors,

and (3) the public comments and testimony.”).

The trial court correctly accepted such representations and gave weight to USTR’s explanation “that the

judgments reflected in the construction of Final List 3

and Final List 4A were its own.” Section 301 Cases II,

628 F. Supp. 3d at 1246 (internal citation and emphasis

omitted). We affirm the trial court’s well-reasoned

conclusion that “‘actions involving discretionary authority

delegated by Congress to the President’ . . . are distinct

from those ‘involving authority delegated by Congress

to an agency,’” and that the List 3 and 4A tariffs

20a

implicate the latter category of actions reviewable

under the APA. Section 301 Cases I, 570 F. Supp. 3d at

1324 (quoting Detroit Int’l Bridge Co. v. Gov’t of Can.,

189 F. Supp. 3d 85, 98–105 (D.D.C. 2016)).

Appellants argue that USTR exceeded its statutory

authority to “modify” an action under Section 307

when it increased its original $50 billion action into an

at least $350 billion action by imposing tariffs on Lists

3 and 4A. Although the trial court sustained these

modified actions by reference to USTR’s authority

under Section 307(a)(1)(B), we affirm USTR’s modified

actions on alternate grounds, with reference only to

Section 307(a)(1)(C). The Government agrees that

Section 307(a)(1)(C) provided an independent basis for

USTR’s modified action. Appellees’ Response Br. 28–

29. As such, we need not and do not reach the question

of whether the modified actions on appeal are within

the scope of USTR’s authority under Section 307(a)(1)(B).

“As in any case of statutory construction, our

analysis begins with the language of the statute. And

where the statutory language provides a clear answer,

it ends there as well.” Hughes Aircraft Co. v. Jacobson,

525 U.S. 432, 438 (1999) (internal citations and

quotation marks omitted). Subject to the President’s

direction, Section 307(a)(1) allows USTR to “modify or

terminate any action” being taken under Section 301,

when, under subsection (C), such action is “no longer

appropriate.” 19 U.S.C. § 2417(a)(1), (a)(1)(C). The

parties dispute both the meaning of the term “modify”

and the phrase “no longer appropriate.”

“When a statute includes an explicit definition of a

term, we must follow that definition, even if it varies

from a term’s ordinary meaning.” Van Buren v. United

21a

States, 593 U.S. 374, 387 (2021) (internal citations and

quotation marks omitted). Although the parties

provide conflicting dictionary definitions of “modify”—

as limited to “moderate[ ]” or “minor” change, see

Appellants’ Opening Br. 33, versus broad enough to

encompass “important” change, see Appellees’ Response

Br. 38—the Trade Act of 1974 only defines “modification” as a term which “includes the elimination of any

duty or import restriction,” 19 U.S.C. § 2481(6). As we

have previously recognized, this is “an open-ended

definition [that] does not exclude anything.” Solar

Energy, 86 F.4th at 896 (emphasis in original). Section

307(a)(1) similarly places no limit on the scope of the

term “modify.” Thus, we make two observations

regarding the meaning of “modify” in Section 307. The

first is that “modify” is indifferent to degrees of change

and contains no inherent limitations: “elimination” of

a duty, the only example of a modification provided by

the statute at Section 2481, encompasses major

changes because the relative impact of a duty could be

large. Second, “modify” is indifferent to the direction of

change and encompasses both escalations and deescalations in trade actions. This understanding is

confirmed by the structure of the statute. Section

307(a)(1)(B), separately from Section 307(a)(1)(C),

provides for modified action in view of “increased or

decreased” burdens or restrictions on United States

commerce, plainly requiring that “modify,” as used in

the parent clause Section 307(a)(1), covers both

increases and decreases in action.

Appellants nonetheless argue that “modify” has an

implied upward limit and cannot encompass a change

as large as the change between USTR’s original and

modified Section 301 actions in this case. They rely on

Solar Energy, where we stated that “a ‘modification’

must be a relatively minor adjustment,” 86 F.4th at

22a

901, and on Biden v. Nebraska, Appellants’ Opening

Br. 33, where the Supreme Court repeated that

“statutory permission to ‘modify’ does not authorize

‘basic and fundamental changes in the scheme’

(quoting MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218, 225 (1994)). The treatment of the term

“modify” in both cases is distinguishable.

In Solar Energy, this Court observed that the

President’s power to “modify” duties to protect domestic

industries from injury pursuant to Sections 201 and

204 of the Trade Act of 1974 was subject to a “phasedown requirement, preventing the modified tariff from

being any higher than the tariff that was imposed in

the preceding year.” 86 F.4th at 901. Thus, there was

an explicit upward limit to the President’s power to

“modify” an action under Section 204 that is not

present on USTR’s power to “modify” an action under

Section 307. Meanwhile, in Biden, the Court was

concerned with the power of the Secretary of Education to

“modify” “statutory or regulatory provisions” promulgated by Congress, which implicates separation of

powers concerns not at issue here. 600 U.S. at 494, 505.

In Section 307, Congress gave USTR the power to

modify its own agency actions, not the statute

authorizing those actions. If Congress had wanted to

limit the scope of that authority, it could have done so.

And indeed, it did so when it limited the scope of

USTR’s authority to modify mandatory actions by

subjecting them to a proportionality requirement. 19

U.S.C. § 2411(a)(3). Discretionary actions—and their

modifications—are not subject to a proportionality

requirement or any other express limit on the scale of

their impact.

23a

Discretionary actions are, however, limited with

regard to their “appropriate[ness].” Id. § 2411(b)(2).

The phrase “no longer appropriate” in Section

307(a)(1)(C) refers to Section 301(b), which uses the

term “appropriate” twice. To take a discretionary

action, USTR must first determine that “action by the

United States is appropriate.” Id. If so, Section 301(b)

permits USTR to “take all appropriate and feasible

action authorized under [Section 301(c)],” subject to

the President’s direction, to “obtain the elimination” of

the investigated acts, policies, or practices that are

unreasonable or discriminatory and burden or restrict

United States commerce. Id.

Appellants argue that Section 307(a)(1)(C) only

provides authority to reduce or terminate a Section

301(b) action. Appellants’ Opening Br. 43. In contrast,

the Government takes the position that Section

307(a)(1)(C)’s modification authority extends to situations

in which prior, predictive action proved insufficient to

its stated purpose, necessitating increased action that

is more appropriate. See Appellees’ Response Br. 36.

We hold that the statute “favor[s] the government’s

broader view, as the statute simply does not contain

the narrowing limitation the [Appellants] read into it.”

Solar Energy, 86 F.4th at 895; see also id. at 896–98

(holding that the President did not clearly misconstrue

his authority to “modify” duties under Section 204 as

permitting both trade-liberalizing and trade-restricting

modifications because nothing in the statute expressly

limits the President’s authority only to reducing duties).

Appellants interpret the phrase “no longer appropriate” to mean that Section 307(a)(1)(C) only allows for

modification “after changed circumstances undermine

the original finding that taking responsive action was

‘appropriate.’” Appellants’ Opening Br. 44. They note

24a

that this reading is consistent with USTR’s own prior

practice; before the action on appeal, USTR had only

invoked Section 307(a)(1)(C) five times, and always to

reduce or terminate an action. See id. at 49–51 (listing

prior actions). Finally, Appellants suggest that Section

307(a)(1)(A) and (C) should be read as parallel

provisions. Id. at 45–46. Because Section 307(a)(1)(A)

only allows USTR to taper down mandatory actions,

Appellants ask us to read Section 307(a)(1)(C) as

functioning in the same way for discretionary actions.

We decline to do so, as Appellants’ arguments are

untethered from the text of the statute itself. Without

more, Section 307(a)(1)(C)’s reference to discretionary

action that is “no longer appropriate” does not mean

that no further increases in action are appropriate.

Although Sections 307(a)(1)(A) and (C) are subparts of

the same statutory section on USTR’s modification

authority, they are constrained by different criteria.

Section 307(a)(1)(A) cross-references nine situations in

which mandatory action is no longer required and

USTR’s modification authority is triggered. 19 U.S.C.

§ 2411(a)(2). Section 307(a)(1)(C) makes no reference

to the specific circumstances in which USTR’s

authority to modify discretionary actions is triggered.

“[W]hen we’re engaged in the business of interpreting

statutes we presume differences in language like this

convey differences in meaning.” Henson v. Santander

Consumer USA Inc., 582 U.S. 79, 86 (2017). Because

Sections 307(a)(1)(A) and (C) are not written to mirror

each other, we cannot suppose they operate in the

same way. Although USTR’s prior actions can be

insightful, they cannot be used to limit the proper

interpretation of a statute where express limitations

do not exist.

25a

Although “appropriate” is a non-specific term, it is

anchored by the statute to a specific purpose: an

appropriate discretionary action is one that can end or

reverse the investigated conduct. 19 U.S.C. § 2411(b)(2).

The directive to take “all appropriate action” is broad,

and what constitutes an “appropriate” action is within

USTR’s discretion to determine, subject to the

President’s direction. Id.4 The statutory silence

surrounding the scope of the term “modify” and the

phrase “no longer appropriate” lead us to conclude that

USTR has similar discretion to determine how, and by

how much, to “modify” an action under Section

307(a)(1)(C). Though Appellants may have informed

reasons to disagree with the methods that USTR

employed to discourage China’s investigated conduct,

the statute does not provide for the limits on USTR’s

modification authority that Appellants seek to impose.

We conclude USTR acted properly when it invoked

Section 307(a)(1)(C) to promulgate the Lists 3 and 4A

tariffs. When announcing that it would impose the List

3 tariffs, for example, USTR explained that “[t]he

judgment during the period of investigation, based on

then-available information, was that a $50 billion

action would be effective in obtaining the elimination

of China’s policies. China’s response, however, has

shown that the current action no longer is appropriate.

China has made clear . . . that it will not change its

policies in response to the current Section 301 action.”

Final List 3, 83 Fed. Reg. 47,974, 47,975. USTR

repeated this logic when justifying the List 4A tariffs.

See Final List 4, 84 Fed. Reg. 43,304, 43,304 (“As of

As Appellants themselves conceded in oral argument, USTR

could have properly determined that a $300 billion (as opposed to

$50 billion) tariff action was an appropriate initial Section 301

action following its investigation. Oral Arg. at 2:31–2:50.

26a

May 2019, China’s statements and conduct indicated

that action at a $250 billion level was insufficient to

obtain the elimination of China’s unfair and harmful

policies.”).

In Solar Energy, we acknowledged the importance

of not interpreting “modify” in a way that would allow

absurd results. Solar Energy, 86 F.4th at 901.

Appellants express concern that interpreting Section

307(a)(1)(C) to authorize USTR’s modified actions in

this case amounts to “permit[ting] the Administration

to prosecute a limitless trade war.” Appellants’

Opening Br. 4. We disagree. Any modified action taken

pursuant to Section 307(a)(1)(C) is still tied to the

original Section 301 action, see 19 U.S.C. § 2417(a)(1),

and must be tailored to achieve Section 301’s statutory

goal of eliminating the investigated conduct, see 19

U.S.C. § 2411(b)(2). Nothing in the statute suggests

that Section 307 can be relied upon by USTR to raise

tariffs for any reason or by an amount that exceeds

what USTR believes to be appropriate to achieve the

ends of a discretionary Section 301(b) action. USTR

appears to have responded to this limit on its

modification authority throughout. For example, the

List 4 tariffs were repeatedly modified to punish or

reward China’s willingness to address the investigated

conduct and were not pursued in full when China

agreed to cooperate. Notice of Modification of Section

301 Action: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 84 Fed. Reg. 69,447, 69,447 (Dec. 18,

2019); Notice of Modification of Section 301 Action:

China’s Acts, Policies, and Practices Related to

Technology Transfer, Intellectual Property, and

Innovation, 85 Fed. Reg. 3,741, 3,741 (Jan. 22, 2020).

27a

We also disagree with Appellants’ suggestion that

our construction of Section 307(a)(1)(C) renders

Section 307(a)(1)(B) superfluous. We have a duty to

construe a statute such that “no clause, sentence, or

word shall be superfluous, void, or insignificant.” TRW

Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal

citations omitted). Section 307(a)(1)(B) applies to both

mandatory and discretionary actions. Even if

Appellants were right that USTR will always prefer

Section 307(a)(1)(C) over (B) to modify a discretionary

action under our construction, Appellants’ Opening Br.

46–47, Section 307(a)(1)(B) maintains independent

significance as the only clause which allows USTR to

increase a mandatory action in view of increased

burdens on commerce. 19 U.S.C. § 2417(a)(1)(B)

(stating that USTR “may modify or terminate any

action . . . if . . . the burden or restriction on United

States commerce . . . has increased”). The Government

adds that Appellants’ assumption is in any case

incorrect. Appellees’ Response Br. 41. It is conceivable

that USTR may be unable to determine that a given

discretionary action has become inappropriate—in

view of the President’s direction or the state of trade

negotiations—but nonetheless determine that the

burden of the investigated conduct has increased or

decreased. Id. In such a situation, USTR would still

have to rely on Section 307(a)(1)(B) to modify its

discretionary action. Thus, Appellants fail to demonstrate that superfluity results from our construction.

Now that we have determined that USTR did not

misconstrue Section 307(a)(1)(C) by interpreting it to

authorize its modified actions, we can consider

whether Section 307(a)(1)(C) violates the Constitution.

Appellants believe that USTR’s reliance on Section

307(a)(1)(C) raises a non-delegation problem. See

Appellants’ Opening Br. 52–54. Not so. Where non-

28a

delegation concerns are raised, “[t]he constitutional

question is whether Congress has supplied an

intelligible principle to guide the delegee’s use of

discretion.” Gundy v. United States, 588 U.S. 128, 135

(2019). The standard for “intelligible principle” is

“not demanding.” Id. at 145–46. A statute will be

unconstitutional where Congress “failed to articulate

any policy or standard to confine [the delegee’s]

discretion,” but broad delegations “to regulate in the

public interest” or as “requisite to protect the public

health” have been upheld. Id. (internal citations and

quotation marks omitted). Section 307(a)(1)(C) plainly

provides an intelligible principle for USTR’s authority

to modify a discretionary action. As the Government

succinctly explains, “Section 307(a)(1)(C) authorizes

only those actions that would have been permissible in

the first instance under Section 301(b)—specifically,

those appropriate to obtain the elimination of the

foreign practices found to be unfair after a full

investigation.” Appellees’ Response Br. 43 (citing 19

U.S.C. § 2417(a)(1); id. § 2411(a)–(b)).

This standard provides the specificity that is

required for Congress to delegate some of its authority

to USTR. And indeed, Appellants appear to concede

that USTR’s mandate to take “all appropriate action”

to end or reverse the investigated conduct under

Section 301(b) does not raise a non-delegation

problem. See Appellants’ Opening Br. 3 (describing the

List 1 and 2 tariffs as “arguably within the authority

Congress delegated to USTR”); Appellees’ Response

Br. 44. Appellants do not explain why the Government’s construction of Section 307(a)(1)(C) risks

placing fewer boundaries on USTR’s authority than

Section 301(b) itself. Their argument seems to assume

that an increase in action can become divorced from

the purpose of the original Section 301 action, as

29a

informed by USTR’s investigation. Appellants’ Opening

Br. 52–54. Though Appellants disagree with USTR

that the Lists 3 and 4A tariffs were “appropriate”

means to achieve Section 301’s ends, we do not discern

any constitutional violation in the statute.

For similar reasons, we reject Appellants’ theory

that USTR’s challenged modifications implicate the

major questions doctrine. “Agencies have only those

powers given to them by Congress,” and the major

questions doctrine prevents agencies from claiming

“[e]xtraordinary grants of regulatory authority” based

on “vague” or “modest words” where there may be

“reason to hesitate before concluding that Congress

meant to confer such authority.” West Virginia v.

EPA, 597 U.S. 697, 721, 723 (2022) (internal citations

and quotation marks omitted). Though Appellants

analogize the scale and magnitude of USTR’s Lists

3 and 4A tariffs to the kinds of changes unsuccessfully

pursued by the EPA in West Virginia and the Secretary

of Education in Biden, the agency actions at issue here

could not be more different. In the cases cited by

Appellants, the agencies attempted to modify the very

nature of their regulatory authority. In West Virginia,

for example, the EPA transformed the scope of Section

111 of the Clean Air Act “to adopt a regulatory

program that Congress had conspicuously and

repeatedly declined to enact itself.” 597 U.S. at 724.

Similarly, in Biden, the Secretary effectively rewrote

the HEROES Act to grant itself the power to waive

repayment obligations in circumstances beyond those

provided for by the statute. 600 U.S. at 496 (concluding

that while Congress specified in the Education Act “a

few narrowly delineated situations” that could qualify

a borrower for loan discharge, “the Secretary has

expanded forgiveness to nearly every borrower in the

country”). Likewise, this case is distinguishable from

30a

our recent decision in V.O.S., where the major questions doctrine was implicated because the tariffs at

issue were “‘unheralded’ and ‘transformative,’” the

government had “never previously claimed powers of

th[at] magnitude” under the relevant statute (International Emergency Economic Powers Act (IEEPA)), the

“basic and consequential tradeoffs” inherent in the

President’s decision to impose those tariffs were “ones

that Congress would likely have intended for itself,”

and there was “no clear congressional authorization

by IEEPA for tariffs of the magnitude of [those

implemented].” V.O.S. Selections, Inc. v. Trump, No.

2025-1812, 2025 WL 2490634, at *13–15 (Fed. Cir. Aug.

29, 2025) (en banc) (citations omitted), cert. granted,

2025 WL 2601020 (U.S. Sept. 9, 2025) (No. 25-250).

The Lists 3 and 4A tariffs may, at best, be a new use

of USTR’s regulatory authority, but they do not involve

a transformation of USTR’s regulatory authority.

USTR has modified its own unchallenged and statutorily

permissible original action in this case, not the

underlying Trade Act of 1974. As we have established,

the statute permits USTR to impose and modify tariffs

in response to unfair foreign trade practices, and

Congress afforded USTR substantial discretion in

determining what trade actions are appropriate. Such

“clear congressional authorization” for the challenged

action means that this cannot be a major questions

case. West Virginia, 597 U.S. at 724.

Appellants contend that USTR violated the APA’s

rule-making requirements by failing to consider and

adequately respond to significant public comments

expressing concern about the Lists 3 and 4A tariffs. We

affirm the trial court’s holding that USTR’s elaboration

31a

on remand remedied any such procedural violations.

See Section 301 Cases II, 628 F. Supp. 3d at 1246.

The APA requires agencies proceeding with notice

and comment rulemaking to publish a notice of the

proposed rule in the Federal Register, justify the rule

by reference to legal authority, describe what the rule

is about, and allow interested parties to submit

comments. 5 U.S.C. § 553(b)–(c). “After consideration of

the relevant matter presented,” an agency’s explanation of its final rule “shall incorporate . . . a concise

general statement of [its] basis and purpose.” Id.

§ 553(c). This means that “the agency must examine

the relevant data and articulate a satisfactory

explanation for its action including a rational

connection between the facts found and the choice

made.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(internal citation and quotation marks omitted). The

agency must also “consider and respond to significant

comments received during the period for public

comment.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92,

96 (2015); see also City of Portland v. EPA, 507 F.3d

706, 715 (D.C. Cir. 2007) (“Significant comments are

those which, if true, raise points relevant to the

agency’s decision and which, if adopted, would require

a change in an agency’s proposed rule.” (internal

citation and quotation marks omitted)). The Lists

3 and 4A tariffs are agency-made rules subject to these

procedural requirements. See Perez, 575 U.S. at 96

(“Rules issued through the notice-and-comment process

are often referred to as ‘legislative rules’ because they

have the ‘force and effect of law.’”) (quoting Chrysler

Corp. v. Brown, 441 U.S. 281, 302–03 (1979)).

Section 307 additionally requires USTR to “provide

opportunity for the presentation of views by other

32a

interested persons affected by the proposed modification” regarding “effects of the modification . . . and

whether any modification . . . of the action is

appropriate.” 19 U.S.C. § 2417(a)(2). This requirement

echoes Section 304(b), which generally requires USTR

to give interested parties an opportunity to present

their views before an action is taken pursuant to

findings made during an investigation. Id. § 2414(b)(1)(A).

It is not disputed that USTR complied with the

various requirements to provide opportunity to

comment on the proposed modifications to its original

Section 301 action. Before promulgating the Lists 3

and 4A tariffs, USTR solicited comments on “any

aspect of the proposed supplemental action,” including

the “tariff subheadings to be subject to increased

duties,” “[t]he level of the increase, if any, in the rate of

duty,” “[t]he appropriate aggregate level of trade to be

covered by additional duties,” “whether imposing

increased duties on a particular product would be

practicable or effective to obtain the elimination of

China’s acts,” and “whether imposing additional duties

on a particular product would cause disproportionate

economic harm to U.S. interests.” List 3 NPRM, 83 Fed.

Reg. at 33,609; List 4 NPRM, 84 Fed. Reg. at 22,565.

On appeal, the Government argues that the requirement to respond to comments did not apply to USTR

because the subject of the challenged modifications fell

within the APA’s foreign-affairs exception. Appellees’

Response Br. 47–53. The APA creates an exception

to notice and comment procedures for proposed

rulemaking “to the extent that there is involved . . . a

military or foreign affairs function of the United

States.” 5 U.S.C. § 553(a). “The purpose of the

exemption [i]s to allow more cautious and sensitive

consideration of those matters which so affect

33a

relations with other Governments that, for example,

public rule-making provisions would provoke

definitely undesirable international consequences.”

Am. Ass’n of Exporters & Imps.-Textile & Apparel Grp.

v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985).

We affirm the trial court’s holding that the

exemption does not apply to the case before us, as “the

Government’s invocation of the exemption is entirely

post hoc and inconsistent with the manner in which

the USTR conducted the modification processes.”

Section 301 Cases I, 570 F. Supp. 3d at 1336. USTR

published notice of its proposed modifications and the

amendments to those modifications in the Federal

factor it considered in its rulemaking. J.A. 10643. As

the trial court observed, USTR’s decision to repeatedly

publish its proposed modifications undermines the

notion that “definitely undesirable international

consequences” were at risk in public rulemaking.

Section 301 Cases I, 570 F. Supp. 3d at 1337. Though

“[r]equiring the Government to disclose its strategy in

the middle of trade negotiations . . . may well have had

adverse consequences for those negotiations,” Appellees’

Response Br. 53, that is exactly what the Government

did and without expressing concern prior to Appellants’

suit before the trial court. In any case, we decline to

apply the exemption whenever a rule relates to

ongoing trade negotiations, especially where, as here,

the controlling statute explicitly requires the public to

have an opportunity to comment on modifications to

Section 301 trade actions. 19 U.S.C. § 2417(a)(2). It

strikes us as counterintuitive to assume that Congress

did not anticipate Section 301 modifications would be

subject to trade negotiations when it created this

requirement.

34a

For the most part, USTR’s notices of final action

complied with the requirements of 5 U.S.C. § 553. As

the trial court found, the “statutory factors relevant to

the USTR’s determination of whether and how to

modify its action include ensuring that appropriate

action is taken to eliminate discriminatory and

burdensome acts [as required by Section 301] and the

President’s specific direction, if any. The notices of

proposed rulemaking . . . reflected these considerations.” Section 301 Cases I, 570 F. Supp. 3d at 1339. In

both List 3 NPRM and List 4 NPRM, USTR explained

that it was pursuing a modified action in response to

direction from President Trump, described what the

proposed modifications were about, and referenced

Section 307(a)(1)(C) as legal authority for the modifications. See List 3 NPRM, 83 Fed. Reg. at 33,609; List

4 NPRM, 84 Fed. Reg. at 22,564. USTR’s Final List 3

and Final List 4 notices offered a “general statement

of their basis and purpose,” 5 U.S.C.§ 553(c)—to the

extent that they repeated the President’s direction

and why USTR considered China’s conduct to be

actionable—but the trial court found that they failed

to address significant issues raised in the comments

that USTR had solicited in List 3 NPRM and List 4

NPRM. Section 301 Cases I, 570 F. Supp. 3d at 1340–

41. Specifically, the trial court explained that USTR’s

final notices “fail[ed] to apprise the court how the

USTR came to its decision to act and the manner in

which it chose to act, taking account of the opposition

and support for the increased duties and the inclusion

or exclusion of particular subheadings, the concerns

raised about the impact of the duties on the U.S.

economy, and the potential availability of alternative

courses of action, within the context of the specific

direction provided by the President.” Id.; see also id.,

at 1338 (“[T]he opportunity to comment is meaningless

35a

unless the agency responds to significant points raised

by the public.”) (citing Sherley v. Sebelius, 689 F.3d

776, 784 (D.C. Cir. 2012)). The trial court rejected

Appellants’ request for outright vacatur and instead

allowed USTR to cure the defect—which it characterized as giving rise to “legal uncertainty,” as opposed to

“illegality,” with regard to the sufficiency of USTR’s

reasoning—on remand. Id. at 1344.

Appellants argue that the decision to remand was

legal error because the trial court was obligated to

vacate the Lists 3 and 4A tariffs once it found that the

modified actions could not be sustained by USTR’s

explanations on the record. Appellants’ Opening Br.

64–65. As the trial court explained, however, vacatur

is not always required when an agency has provided

inadequate reasoning for its actions. Section 301 Cases

II, 628 F. Supp. 3d at 1242. In Department of Homeland

Security v. Regents of the University of California, the

Supreme Court summarized that if the grounds

provided by an agency for promulgating a rule are

inadequate, “a court may remand for the agency to do

one of two things: First, the agency can offer a fuller

explanation of the agency’s reasoning at the time of the

agency action. . . . [Second], the agency can deal with

the problem afresh by taking new agency action.” 591

U.S. 1, 20–21 (2020) (internal citations and quotation

marks omitted) (emphasis in original). If the agency

pursues option one on remand, “the agency may

elaborate” on what it had previously indicated as “the

determinative reason[s] for the final action taken,” but

it “may not provide new ones.” Id. (internal quotation

marks and citation omitted). Consistent with this

precedent, the trial court lawfully remanded for USTR

to contextualize the reasons for its modified action in

view of significant public comments. See Section 301

Cases I, 570 F. Supp. 3d at 1344 (prohibiting USTR

36a

from offering post hoc reasoning for the challenged

modifications on remand).

Appellants’ contention that this option was not

available essentially conflates failure to address

significant comments with failure to consider those

significant comments at all. Regents and the cases that

followed it “do not distinguish between failures of

explanation and failures of consideration.” Section 301

Cases II, 628 F. Supp. 3d at 1243. So long as the agency

indicated the factors relevant to its action in the first

instance, it is allowed to elaborate on remand. See

Regents, 591 U.S. at 20–21. USTR indicated that it

considered issues relevant to the categories of comments

it solicited. Final List 3, 83 Fed. Reg. 47,974, 47,975

(stating that USTR “reviewed the public comments

and the testimony from the six-day public hearing”

and “[b]ased on this review . . . determined not to

include certain tariff subheadings”); Final List 4, 84

Fed. Reg. 43,304, 43,305 (explaining that the decision

to impose 10% duties on List 4 as opposed to the 25%

duties originally proposed—“takes account of the

public comments” and that “[c]ertain tariff subheadings

proposed in the [List 4 NPRM] have been removed

from the final list of tariff subheadings subject to

additional duties, based on health, safety, national

security, and other factors”). Although USTR did not

explain how, for example, it weighed comments raising

concerns about the harm the Lists 3 and 4A tariffs

would have on the U.S. economy, it is plainly implied

that USTR considered the risk of such harms because

it requested comments on whether additional tariffs

would be appropriate, practicable, or effective and

because it is the broad duty of USTR to coordinate U.S.

trade policy. 19 U.S.C. § 2171(c). The trial court was

not, as Appellants suggest, faced with a “total

explanatory void” for USTR’s Final List 3 and Final

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List 4 actions that failed to provide “one word” on

significant factors related to the modifications.

Appellants’ Opening Br. 65 (citing Bhd. of Locomotive

Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83,

117 (D.C. Cir. 2020)). Thus, the trial court’s remand to

USTR to elaborate the basis for its action was

appropriate.

The final issue we consider on appeal is whether the

additional detail USTR provided on remand cured the

original deficiencies in USTR’s notice-and-comment

procedures. We conclude that it did. As the trial court

found, USTR’s remand redetermination successfully

“responded to significant concerns within the context

of China’s actionable conduct and the specific direction

of the President” without the use of post hoc

rationalization. Section 301 Cases II, 628 F. Supp. 3d

at 1245. USTR addressed each category of significant

comments the trial court identified as requiring

further response—comments regarding the inclusion

or exclusion of certain tariff subheadings, harm to the

U.S. economy, efficacy of the tariffs, and alternatives to

the tariffs—using public statements, hearing transcripts,

and other documents that provided insight into

USTR’s reasoning prior to the issuance of the final

Lists 3 and 4A tariffs. Id. at 1246–50. USTR also

provided a more detailed account of how it weighed

significant comments against the statutory factors it

was required to consider—the President’s direction

and the “appropriate”-ness of action. Id. at 1248. As the

trial court recited, “[t]he standard that an agency’s

response to comments must meet ‘is not particularly

demanding,’” as the agency’s reasons must only

“enable the court ‘to see what major issues of policy

were ventilated by the informal proceedings and why

the agency reacted to them as it did.’” Section 301

Cases II, 628 F. Supp. 3d at 1246 (citing Nat’l Mining

38a

Ass’n v. Mine Safety & Health Admin., 116 F.3d 520,

549 (D.C. Cir. 1997) and Auto. Parts & Accessories Ass’n

v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968)). Upon

complete review of the USTR’s redetermination on

remand, we agree with the trial court’s determination

that this standard was met. Id. at 1250 (“[T]he court

finds that USTR has complied with the court’s remand

order and has supplied the necessary explanation

supporting the imposition of duties pursuant to Final

List 3 and Final List 4.”).

Because Section 307(a)(1)(C) authorizes USTR to

take escalatory, modified trade actions, and because

USTR’s remand redetermination meets the APA’s

procedural requirements in 5 U.S.C. § 553, we affirm

the trial court and sustain the challenged Lists 3 and

4A tariffs.

AFFIRMED

COSTS

No costs.

39a

APPENDIX B

Slip Op. 22-32

UNITED STATES COURT OF

INTERNATIONAL TRADE

————

Court No. 21-00052-3JP

————

IN RE SECTION 301 CASES

————

Before: Mark A. Barnett, Claire R. Kelly, and

Jennifer Choe-Groves, Judges

————

OPINION AND ORDER

[Remanding the Office of the United States Trade

Representative’s determinations with respect to List 3

and List 4A; granting in part and denying in part

Defendants’ Motion to Correct the Administrative

Record.]

Dated: April 1, 2022

Pratik Shah, Akin Gump Strauss Hauer & Feld LLP,

of Washington, D.C., argued for Plaintiffs HMTX

Indus. LLC, Halstead New England Corp., Metroflor

Corp., and Jasco Prods. Co. LLC. With him on the brief

were Matthew R. Nicely, James E. Tysse, Devin S.

Sikes, Daniel M. Witkowski, and Sarah B. W. Kirwin.

Justin R. Miller, Attorney-In-Charge, International

Trade Field Office, Elizabeth A. Speck, Trial Attorney,

and Jamie L. Shookman, Trial Attorney, Commercial

Litigation Branch, Civil Division, U.S. Department of

Justice, of Washington, D.C., argued for Defendants.

40a

With them on the brief were Brian M. Boynton, Acting

Assistant Attorney General, Patricia M. McCarthy,

Director, L. Misha Preheim, Assistant Director, Sosun

Bae, Senior Trial Counsel, and Ann C. Motto, Trial

Attorney, Commercial Litigation Branch, Civil

Division, U.S. Department of Justice, of Washington,

D.C. Of Counsel on the brief were Megan Grimball,

Associate General Counsel, Philip Butler, Associate

General Counsel, and Edward Marcus, Assistant

General Counsel, Office of General Counsel, Office of

the U.S. Trade Representative, of Washington, D.C.,

and Paula Smith, Assistant Chief Counsel, Edward

Maurer, Deputy Assistant Chief Counsel, and Valerie

Sorensen-Clark, Attorney, Office of the Assistant Chief

Counsel, International Trade Litigation, U.S. Customs

and Border Protection, of New York, N.Y.

Joseph R. Palmore, Morrison & Foerster LLP, of

Washington, D.C., argued for Amici Curiae Retail

Litigation Center, et al. With him on the brief was

Adam L. Sorensen.

Christine M. Streatfeild, Baker McKenzie LLP, of

Washington, D.C., argued for Amici Curiae Am. Trailer

World Corp., et al. With her on the brief was Kevin M.

O’Brien, as well as Nancy A. Noonan and Angela M.

Santos, Arent Fox LLP, of Washington, D.C.

George W. Thompson, Thompson & Associates,

PLLC, of Washington, D.C., for Amici Curiae Ecolab

Inc., et al.

Barnett, Chief Judge: Plaintiffs HMTX Industries

LLC, Halstead New England Corporation, Metroflor

Corporation, and Jasco Products Company LLC

commenced the first of approximately 3,600 cases (the

41a

“Section 301 Cases”) contesting the imposition of a

third and fourth round of tariffs by the Office of the

United States Trade Representative (“the USTR” or

“the Trade Representative”) pursuant to section 301 of

the Trade Act of 1974 (“the Trade Act”), 19 U.S.C.

§ 2411, et seq. See generally Am. Compl., HMTX Indus.

LLC v. United States, Court No. 20-cv-00177 (CIT

Sept. 21, 2020), ECF No. 12 (“20-177 Am. Compl.”).

Defendants United States, et al. (“the Government”)

move to dismiss Plaintiffs’ claims as non-justiciable

pursuant to U.S. Court of International Trade (“USCIT”)

Rule 12(b)(6) or, alternatively, for judgment on the

agency record pursuant to USCIT Rule 56.1. Defs.’

Mot. to Dismiss or, Alternatively, Mot. for J. on the

Agency R. (“Defs.’ Mot.”), ECF No. 314. Plaintiffs crossmove for judgment on the agency record. Pls.’ CrossMot. for J. on the Agency R., and accompanying Mem.

in Supp. of Pls.’ Cross-Mot. for J. on the Agency R. and

Resp. to Defs.’ Mot. to Dismiss/Mot. for J. on the Agency

R. (“Pls.’ Cross-Mot. & Resp.”), ECF No. 358.

The Government also moves to correct the administrative record. Defs.’ Mot. to Correct the R. (“Defs.’

Mot. Correct R.”), ECF No. 441. Plaintiffs oppose that

motion, in part. Pls.’ Partial Opp’n to Defs.’ Mot. to

Correct the Agency R. (“Pls.’ Opp’n Correct R.”), ECF

No. 442.

For the following reasons, the court remands the

contested USTR determinations and grants in part

and denies in part the Government’s motion to correct

the record.

This figure reflects the approximate number of cases assigned

to this panel. As of March 31, 2022, there are approximately 318

unassigned cases raising similar claims that are stayed pursuant

to Administrative Order 21-02.

42a

BACKGROUND

I. Legal Framework

Article I, Section 8 of the U.S. Constitution vests

Congress with the “Power To lay and collect Taxes,

Duties, Imposts and Excises” and to “regulate Commerce

with foreign Nations.” U.S. Const. art. I, § 8, cl. 1, 3.

Section 301 of the Trade Act, which governs actions

taken in response to a foreign country’s violation of

a trade agreement or conduct that is otherwise

harmful to U.S. commerce, constitutes a congressional

delegation of some of that authority to the Executive

Branch. See 19 U.S.C. § 2411 (2018).2 Specifically,

section 301 sets out the circumstances under which

action by the USTR is mandatory (subject to certain

exceptions), see id. § 2411 (a)(1)–(2),3 and when such

action is discretionary, see id. § 2411(b).

This case concerns the latter scenario. Pursuant to

section 301(b), the USTR has discretion to act when it

determines that “(1) an act, policy, or practice of a

foreign country is unreasonable or discriminatory and

burdens or restricts United States commerce, and

(2) action by the United States is appropriate.” Id.

When both conditions are met, the USTR

Citations to the United States Code are to the 2018 version,

unless otherwise specified.

When the USTR finds that “the rights of the United States

under any trade agreement are being denied” or that “an act,

policy, or practice of a foreign country--(i) violates, or is

inconsistent with, the provisions of, or otherwise denies benefits

to the United States under, any trade agreement, or (ii) is

unjustifiable and burdens or restricts United States commerce,”

the USTR “shall take action,” 19 U.S.C. § 2411(a)(1), unless an

exception exists pursuant to section 301(a)(2), id. § 2411(a)(2).

43a

shall take all appropriate and feasible action

authorized under subsection (c), subject to the

specific direction, if any, of the President

regarding any such action, and all other

appropriate and feasible action within the

power of the President that the President

may direct the Trade Representative to

take under this subsection, to obtain the

elimination of that act, policy, or practice.

Actions may be taken that are within the

power of the President with respect to trade

in any goods or services, or with respect to any

other area of pertinent relations with the

foreign country.

Id. § 2411(b)(2).

Subsection (c) describes the actions the USTR may

take in order to implement mandatory or discretionary

actions under subsections (a) and (b). Id. § 2411(c). For

investigations not involving a trade agreement, the

USTR must make its determination as to whether

conduct is actionable under section 301(a) or (b) and,

if so, what action to take, no later than “12 months

after the date on which the investigation [was]

initiated.” Id. § 2414(a)(2)(B). Generally, such actions

must then be implemented within 30 days of the date

of the determination. Id. § 2415(a)(1).

Central to this litigation, section 307 of the Trade

Act governs the modification or termination of the

USTR’s actions taken pursuant to section 301. See

generally id. § 2417. The statute provides, inter alia:

(a) In general

(1) The Trade Representative may modify

or terminate any action, subject to the

specific direction, if any, of the President

44a

with respect to such action, that is being

taken under section 2411 of this title if—

(A) any of the conditions described in

section 2411(a)(2) of this title exist,

(B) the burden or restriction on United

States commerce of the denial rights, or

of the acts, policies, and practices, that

are the subject of such action has

increased or decreased, or

section 2411(b) of this title and is no

longer appropriate.

Id. § 2417(a)(1).

II. Factual Background

On August 14, 2017, the President of the United

States issued a memorandum instructing the USTR

to consider, consistent with section 302(b) of the

Trade Act, initiating an investigation addressing

the Government of the People’s Republic of China’s

(“China”) “laws, policies, practices, or actions that

may be unreasonable or discriminatory and that may

be harming American intellectual property rights,

innovation, or technology development.” Addressing

China’s Laws, Policies, Practices, and Actions Related

to Intellectual Property, Innovation, and Technology,

82 Fed. Reg. 39,007, 39,007 (Aug. 17, 2017). The USTR

initiated such an investigation on August 18, 2017.

Initiation of Section 301 Investigation; Hearing; and

Request for Public Comment: China’s Acts, Policies,

and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 82 Fed. Reg.

40,213 (Aug. 24, 2017) (“Initiation Notice”).

45a

On March 22, 2018, the USTR published a report

announcing the results of the investigation. OFFICE OF

THE UNITED STATES TRADE REPRESENTATIVE, FINDINGS

OF THE INVESTIGATION INTO CHINA’S ACTS, POLICIES,

AND PRACTICES RELATED TO TECHNOLOGY TRANSFER,

INTELLECTUAL PROPERTY, AND INNOVATION UNDER

SECTION 301 OF THE TRADE ACT OF 1974 (2018) (“USTR

Report” or “the Report”), https://ustr.gov/sites/default/

files/ Section 301 FINAL.PDF. The Report summarizes

the ways in which China’s conduct in the areas subject

to the investigation was unreasonable and burdened

U.S. commerce. See id. Also on March 22, 2018, the

President issued a memorandum directing the USTR,

inter alia, to “take all appropriate action” pursuant to

section 301 “to address the acts, policies, and practices

of China that are unreasonable or discriminatory and

that burden or restrict U.S. commerce” and to “consider

whether such action should include increased tariffs

on goods from China.” Actions by the United States

Related to the Section 301 Investigation of China’s

Laws, Policies, Practices, or Actions Related to Technology

Transfer, Intellectual Property, and Innovation, 83 Fed.

Reg. 13,099, 13,100 (Mar. 27, 2018). In that memorandum, the President further instructed the USTR to

“publish a proposed list of products and any intended

tariff increases within 15 days of the date of this

memorandum,” subject to notice and comment pursuant

to section 304(b), and, “after consultation with

appropriate agencies and committees,” to “publish a

final list of products and tariff increases, if any, and

implement any such tariffs.” Id.

On April 6, 2018, the USTR published notice of its

determination “that the acts, policies, and practices of

the Government of China related to technology

transfer, intellectual property, and innovation covered

in the investigation are unreasonable or discrimina-

46a

tory and burden or restrict U.S. commerce.” Notice of

Determination and Request for Public Comment Concerning Proposed Determination of Action Pursuant to

Section 301: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 83 Fed. Reg. 14,906, 14,906 (Apr. 6,

2018) (“USTR Determination”). Accordingly, the USTR

proposed tariffs on products worth “approximately

$50 billion in terms of estimated annual trade value”

in 2018. Id. at 14,907. The USTR considered the size of

the action to be “appropriate both in light of the

estimated harm to the U.S. economy, and to obtain

elimination of China’s harmful acts, policies, and

practices.” Id.

On June 20, 2018, the USTR published notice of a

final list of products “with an approximate annual

trade value of $34 billion” that would be subject to an

additional duty of 25 percent ad valorem, referred to

as “List 1.” Notice of Action and Request for Public

Comment Concerning Proposed Determination of Action

Pursuant to Section 301: China’s Acts, Policies, and

Practices Related to Technology Transfer, Intellectual

Property, and Innovation, 83 Fed. Reg. 28,710, 27,711

(June 20, 2018) (“Final List 1”). On August 16, 2018,

the USTR published notice of an additional list of

products with an approximate annual trade value of

$16 billion that would be subject to an additional duty

of 25 percent ad valorem, referred to as “List 2.” Notice

of Action Pursuant to Section 301: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 83 Fed. Reg.

40,823, 40,823–24 (Aug. 16, 2018).

During the time between the USTR’s finalization of

List 1 and List 2, the President directed the USTR to

identify $200 billion worth of Chinese goods on which

47a

to impose an additional duty of 10 percent ad valorem

“after the legal process is complete” if China refused to

change its practices. Statement from the President

Regarding Trade with China (June 18, 2018) (“June

2018 Presidential Statement”), ECF No. 441-1; see also

USTR Robert Lighthizer Statement on the President’s

Additional China Trade Action (June 18, 2018), PR 27.4

In accordance with that direction, the USTR identified

6,031 tariff subheadings comprising goods imported

from China, referred to as “List 3.” Request for

Comments Concerning Proposed Modification of Action

Pursuant to Section 301: China’s Acts, Policies, and

Practices Related to Technology Transfer, Intellectual

Property, and Innovation, 83 Fed. Reg. 33,608, 33,608–

09 (July 17, 2018) (“List 3 NPRM”). In proposing the

additional duties, the USTR relied on its authority to

modify the action pursuant to section 307(a)(1)(C) of

the Trade Act. Id. at 33,609. The USTR explained that

China had responded “to the initial U.S. action in the

investigation by imposing retaliatory tariffs on U.S.

goods[] instead of addressing U.S. concerns” regarding

the unfair practices identified in the investigation. Id.

at 33,608. The USTR also explained that “a supplemental $200 billion action is appropriate” because

China had failed to respond favorably to the $50 billion

action and instead imposed “retaliatory duties” in the

amount of $50 billion on U.S. products. Id. at 33,609.

The administrative record associated with the contested List

3 and List 4A duties is divided into a Public Administrative

Record (“PR”), ECF No. 297, and a Confidential Administrative

Record (“CR”), ECF No. 298. For record documents available

online, the indices contain hyperlinks to their location. See PR;

CR. The Government also filed an appendix of record documents

provided to the court in advance of oral argument. See [Partial]

Index to the Admin. R., ECF Nos. 447, 447-1 (PR 1–12), 447-2

(PR 13–20), 447-3 (PR 21–25), 447-4 (PR 26–36).

48a

The USTR later extended the public comment

period concerning the List 3 duties after the President

directed the USTR “to consider increasing the

proposed level of the additional duty from 10 percent

to 25 percent.” Extension of Public Comment Period

Concerning Proposed Modification of Action Pursuant

to Section 301: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 83 Fed. Reg. 38,760, 38,760–61 (Aug.

7, 2018) (“List 3 Cmt. Extension”).

On September 17, 2018, the President directed the

USTR to impose an additional duty of 10 percent ad

valorem on $200 billion worth of Chinese goods, to take

effect on September 24, 2018, and to increase the

additional duty to 25 percent ad valorem on January

1, 2019. Statement from the President (Sept. 17, 2018)

(“Sept. 2018 Presidential Statement”), PR 4. On

September 21, 2018, the USTR published final notice

of List 3 duties at a rate of 10 percent ad valorem with

an effective date of September 24, 2018. Notice of

Modification of Action Pursuant to Section 301 Action:

China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83

Fed. Reg. 47,974 (Sept. 21, 2018) (“Final List 3”). In

accordance with the President’s direction, the rate of

additional duty on products covered by List 3 was set

to increase to 25 percent ad valorem on January 1,

2019. Id. at 47,974.

As authority for the List 3 duties, the USTR relied

on section 307(a)(1)(B) and (C). See id. at 47,974–75.

The USTR explained that “the burden or restriction on

United States commerce of the acts, policies, and

practices that are the subject of the Section 301 action

continues to increase” and, further, that “China’s

unfair acts, policies, and practices include not just its

49a

specific technology transfer and IP polices [sic] referenced in the notice of initiation in the investigation,

but also China’s subsequent defensive actions taken to

maintain those policies.” Id. at 47,974. The USTR

noted that China had “impose[d] approximately $50

billion in tariffs on U.S. goods” to persuade the United

States to end the section 301 action and to protect the

investigated practices, which led to “increased harm to

the U.S. economy.” Id.

With respect to subsection (C), the USTR explained

that “[t]he term ‘appropriate’” used in that provision

links to section 301(b), which authorizes the USTR to

“take all appropriate and feasible action” in order “to

obtain the elimination of [the] act, policy, or practice.”

Id. (quoting 19 U.S.C. § 2411(b)). According to the

USTR, the action that will achieve that aim “is a

matter of predictive judgment, to be exercised by the

[USTR], subject to any specific direction of the

President.” Id. at 47,974–75. While the USTR previously judged that “a $50 billion action would be

effective in obtaining the elimination of China’s

policies[,] China’s response . . . ha[d] shown that the

current action no longer [was] appropriate.” Id. at

47,975.

The USTR also explained that, during the public

comment period, it had received more than 6,000

written submissions and held a six-day public hearing.

Id. at 47,974. The USTR stated that it had “carefully

reviewed the public comments and the testimony from

the six-day public hearing” and, consequently, removed

“certain tariff subheadings” from the list. Id. at 47,975.

The final list identified “5,745 full and partial tariff

subheadings.” Id.

After several extensions of the effective date of the

increase in List 3 duties issued in connection with

50a

ongoing trade negotiations, List 3 duties increased to

25 percent ad valorem in May or June of 2019, based

on the date of export. Notice of Modification of Section

301 Action: China’s Acts, Policies, and Practices Related

to Technology Transfer, Intellectual Property, and Innovation, 84 Fed. Reg. 20,459 (May 9, 2019); Implementing

Modification to Section 301 Action: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 84 Fed. Reg.

21,892 (May 15, 2019); Additional Implementing

Modification to Section 301 Action: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 84 Fed. Reg.

26,930 (June 10, 2019).

After the List 3 duties increased to 25 percent, the

USTR established an exclusion process pursuant to

which importers could request exclusion of their

products from List 3 duties. Procedures for Requests to

Exclude Particular Products From the September 2018

Action Pursuant to Section 301: China’s Acts, Policies,

and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 84 Fed. Reg. 29,576

(June 24, 2019). Plaintiffs obtained exclusions for

certain of their imports, effective September 24, 2018,

through August 7, 2020. See, e.g., Notice of Product

Exclusions: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 84 Fed. Reg. 61,674, 61,675–76. (Nov.

13, 2019); 20-177 Am. Compl. ¶¶ 49–50.

On May 17, 2019, the USTR announced its intent, at

the direction of the President, to modify again the

section 301 action by imposing additional duties of up

to 25 percent ad valorem on products from China

covered by 3,805 additional tariff subheadings,

referred to as “List 4.” Request for Comments

51a

Concerning Proposed Modification of Action Pursuant

to Section 301: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 84 Fed. Reg. 22,564 (May 17, 2019)

(“List 4 NPRM”); see also Statement by U.S. Trade

Representative Robert Lighthizer on Section 301

Action (May 10, 2019), PR 30. The USTR explained

that the United States and China had engaged in

several rounds of negotiation regarding issues covered

by the section 301 investigation, but that China had

“retreated from specific commitments made in

previous rounds” and “announced further retaliatory

action against U.S. commerce.” List 4 NPRM, 84 Fed.

Reg. at 22,564. The USTR proposed modifying the

action pursuant to section 307(a)(1)(B) and (C). Id.

On August 20, 2019, the USTR published final notice

of the List 4 duties in the amount of 10 percent ad

valorem on certain products identified in List 4 NPRM.

Notice of Modification of Section 301 Action: China’s

Acts, Policies, and Practices Related to Technology

Transfer, Intellectual Property, and Innovation, 84 Fed.

Reg. 43,304 (Aug. 20, 2019) (“Final List 4”). Within

Final List 4, the tariff subheadings were segregated

into List 4A and List 4B with separate effective dates

(September 1, 2019 and December 15, 2019, respectively).

Id. at 43,305.

Referencing the language of section 307(a)(1)(B), the

USTR explained that “[t]he burden or restriction on

United States commerce of the acts, policies, and

practices that are the subject of the Section 301 action

continues to increase.” Id. at 43,304. The USTR also

explained that “China’s unfair acts, policies, and

practices include not just its technology transfer and

IP polices [sic] referenced in the notice of initiation in

the investigation, but also China’s subsequent defensive

52a

actions taken to maintain those unfair acts, policies,

and practices.” Id. (referencing China’s retaliatory

imposition of “tariffs on approximately $110 billion

worth of U.S. goods” and other “non-tariff measures”).

In reference to section 307(a)(1)(C), the USTR stated

that “China’s response has shown that the current

action no longer is appropriate.” Id. The USTR noted

China’s retreat from certain negotiated commitments,

retaliatory actions, and currency devaluation. Id. at

43,305.

Lastly, the USTR stated that it had considered “the

public comments” it had received “and the testimony

from the seven-day public hearing, as well as the

advice of the interagency Section 301 committee and

appropriate advisory committees.” Id. In response to

that information, the USTR removed “[c]ertain tariff

subheadings” from the final List 4 duties “based on

health, safety, national security, and other factors,” and

staggered the effective dates for the List 4A and List

4B duties. Id. Thereafter, the USTR provided notice of

its intent to increase the additional duty rate applicable to List 4A and List 4B from 10 percent ad valorem

to 15 percent ad valorem. Notice of Modification of

Section 301 Action: China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation, 84 Fed. Reg. 45,821 (Aug. 30, 2019).

On December 18, 2019, the USTR indefinitely

suspended the additional duties of 15 percent ad

valorem on List 4B, but not List 4A, “[i]n light of

progress in the negotiations with China.” Notice of

Modification of Section 301 Action: China’s Acts,

Policies, and Practices Related to Technology Transfer,

Intellectual Property, and Innovation, 84 Fed. Reg.

69,447, 69,447 (Dec. 18, 2019).

53a

On January 22, 2020, the USTR halved the

additional duty on products covered by List 4A from

15 percent ad valorem to 7.5 percent ad valorem.

Notice of Modification of Section 301 Action: China’s

Acts, Policies, and Practices Related to Technology

Transfer, Intellectual Property, and Innovation, 85 Fed.

Reg. 3741 (Jan. 22, 2020).

III. Procedural History

On September 10, 2020, Plaintiffs commenced an

action challenging the section 301 duties imposed

pursuant to List 3 and List 4A. Summons, Compl.,

HMTX Indus. LLC v. United States, Court No. 20-cv00177 (CIT Sept. 10, 2020), ECF Nos. 1, 2. Count one

alleges that the USTR exceeded its authority pursuant

to section 307 of the Trade Act when it imposed the

duties and seeks a declaratory judgment to that effect.

20-177 Am. Compl. ¶¶ 63–70. Count two alleges

violations of the Administrative Procedure Act (“APA”).

Id. ¶¶ 71–75. Specifically, Plaintiffs allege that USTR

exceeded its authority “in promulgating List 3 and List

4A,” id. ¶ 73, and “promulgated List 3 and List 4A in

an arbitrary and capricious manner,” id. ¶ 75.

On February 5, 2021, Plaintiffs’ action, among

others, was assigned to this panel. See, e.g., Order,

HMTX Indus. LLC v. United States, Court No. 20-cv00177 (CIT Feb. 5, 2021), ECF No. 43. On February 10,

2021, the panel designated a “master case” under the

name “In Re Section 301 Cases” to function as the

primary vehicle by which the court would manage the

litigation of the Section 301 Cases. Std. Procedural

Order No. 21-01 (Feb. 10, 2021), ECF No. 1. After

receiving input from the Parties, on March 31, 2021,

the court designated Plaintiffs’ case as “the sample

case for purposes of the court’s initial consideration

and resolution of Plaintiffs’ claims.” Std. Procedural

54a

Order 21-04 (Mar. 31, 2021), ECF No. 267. The court

stayed all other Section 301 Cases and appointed

a Plaintiffs’ Steering Committee to aid the court’s

adoption of case management procedures and coordinate the preparation of consolidated briefs and court

submissions. Id.; see also Std. Procedural Order 21-02

(Feb. 16, 2021), ECF No. 82 (explaining the duties of

the steering committee). On April 12, 2021, the Parties

filed a Joint Status Report with a proposed briefing

schedule governing disposition of the merits of the

sample case. Joint Status Report (Apr. 12, 2021), ECF

No. 274. The following day, the court entered a

Scheduling Order. See Scheduling Order (Apr. 13,

2021), ECF No. 275.5

On June 1, 2021, the Government filed its opening

motion. Defs.’ Mot. On August 2, 2021, Plaintiffs filed

their cross-motion and response to the Government’s

motion. Pls.’ Cross-Mot. & Resp. On August 9, 2021,

several interested parties that are plaintiffs in actions

that were stayed behind this sample action filed an

amicus brief on whether any potential relief is limited

On July 6, 2021, a divided panel granted Plaintiffs’ motion for

a preliminary injunction suspending liquidation of unliquidated

entries subject to the contested tariffs. In re Section 301 Cases, 45

CIT __, __, 524 F. Supp. 3d 1355, 1357–72 (2021); see also id. at

1372–83 (Barnett, C.J., dissenting); Order (July 6, 2021), ECF No.

330 (temporarily restraining liquidation; establishing a process

for implementing the preliminary injunction; and allowing the

Government to instead “stipulate to refund any duties found to

have been illegally collected”). On September 8, 2021, the court

acknowledged the Government’s acceptance of “the option to

stipulate” to a refund of unlawfully collected duties “without

prejudice to the issue of whether . . . refunds will be limited to

[importers of record]” and ordered Defendants to liquidate subject

entries “in the ordinary course.” Order (Sept. 8, 2021) at 1–2, ECF

No. 408.

55a

to an importer of record. Amicus Br. of Interested

Parties (“Interested Parties’ Br.”), ECF No. 362. On

August 31, 2021, the court granted two additional

motions for leave to file an amicus brief. Order (Aug.

31, 2021), ECF No. 396; Order (Aug. 31, 2021), ECF No.

397; see also Proposed Br. of Amici Curiae Retail

Litigation Center, Inc., et al. (“RLC’s Br.”), ECF No.

373-2; Br. of Proposed Amici Curiae Ecolab Inc., et al.

in Supp. of the Cross-Mot. for J. on the Agency R.

Submitted by Pls.’ HMTX Indus. LLC et al. (“Ecolab’s

Br.”), ECF No. 374. On October 1, 2021, the Government filed its joint response to Plaintiffs’ cross-motion

and the amicus briefs and a reply in support of its

opening motion. Defs.’ Reply in Supp. of Their Mot. to

Dismiss, Resp. to Pls.’ Cross-Mot. for J. on the Agency

R., and Resp. to Amicus Curiae Supporting Brs. (“Defs.’

Resp. & Reply”), ECF No. 412.6 On November 15, 2021,

Plaintiffs filed their reply. Pls.’ Reply in Supp. of Their

Cross-Mot. for J. on the Agency R. (“Pls’ Reply”), ECF

No. 425. The court heard oral argument on February 1,

2021. Docket Entry, ECF No. 440.

Following oral argument, on February 15, 2022, the

Government filed a partial consent motion to correct

the administrative record. Defs.’ Mot. Correct R. On

February 16, 2022, Plaintiffs filed their response. Pls.’

Opp’n Correct R.

On October 18, 2021, the court granted the Government’s

motion to correct citation errors in their opening and reply briefs.

Order (Oct. 18, 2021), ECF No. 415; see also Defs.’ Consent Mot.

to Correct Minor Citation Errors, Ex. B, ECF No. 413-2 (corrected

pages).

56a

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C.

§ 1581(i)(1)(B) (2018 & Supp. II 2020), which grants

the court “exclusive jurisdiction of any civil action

commenced against the United States . . . that arises

out of any law of the United States providing for . . .

tariffs, duties, fees, or other taxes on the importation

of merchandise for reasons other than the raising of

revenue.”

The court may properly dismiss a claim pursuant to

USCIT Rule 12(b)(6) when the plaintiff ’s factual

allegations, assumed to be true, fail to raise a legally

cognizable claim. See Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555–56 (2007); United Pac. Ins. Co. v. United

States, 464 F.3d 1325, 1327 (Fed. Cir. 2006). USCIT

Rule 56.1 provides for judgment on the agency record

in an action that is before the court pursuant to 28

U.S.C. § 1581(i). The APA directs the court to “decide

all relevant questions of law, interpret constitutional

and statutory provisions, and determine the meaning

or applicability of the terms of an agency action.” 5

U.S.C. § 706; see also 28 U.S.C. § 2640(e). Additionally,

the “court shall . . . hold unlawful and set aside agency

action, findings, and conclusions found to be--(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; [or] . . . (C) in excess of

statutory . . . authority; [or] . . . (E) unsupported by

substantial evidence.” 5 U.S.C. § 706(2).

DISCUSSION

The court first considers the Government’s motion to

dismiss Plaintiffs’ claims based on non-justiciability.

As discussed below, because the court finds that the

claims are reviewable, the court turns next to the

cross-motions concerning the USTR’s authority pursuant

57a

to section 307 of the Trade Act and alleged procedural

violations. Lastly, the court considers the Government’s

partial consent motion to correct the administrative

record.

I. Reviewability of Plaintiffs’ Claims

1. Whether List 3 and List 4A Constitute

Unreviewable Presidential Action

a. Parties’ Contentions

The Government contends that Plaintiffs seek to

challenge presidential—as opposed to agency—action

because at each step in the modification process, “the

USTR acted at ‘the specific direction . . . of the

President.’” Defs.’ Mot. at 22 (quoting 19 U.S.C.

§ 2417(a)(1)). When the President “exercise[s] his

discretion to direct action” pursuant to section 307(a)(1),

the Government contends, “the action constitutes

presidential action.” Defs.’ Resp. & Reply at 5. Thus,

the Government contends, Plaintiffs’ claims arising

out of the APA must fail “because the President is not

an ‘agency’ within the meaning of the APA.” Defs.’ Mot.

at 22 (citing, inter alia, Franklin v. Massachusetts, 505

U.S. 788, 800–01 (1992)).

Plaintiffs contend that the promulgation of List 3

and List 4A constitute final agency action because

sections 301 and 307 of the Trade Act authorize the

USTR—not the President—to act, and relevant Federal

take the specified actions. Pls.’ Cross-Mot. & Resp. at

47 (citing Final List 3, 83 Fed. Reg. at 47,974, and

Final List 4, 84 Fed. Reg. at 43,304). Plaintiffs also

point to legislative history accompanying the 1988

amendments to the Trade Act that transferred

authority from the President to the USTR. Id. (citing

H.R. REP. NO. 100-576 at 511 (1988) (conf. report)).

58a

Plaintiffs further contend that judicial precedent

supports reviewing the USTR’s actions even when

taken pursuant to Presidential direction. Id. at 48–49

(citing, inter alia, Invenergy Renewables LLC v. United

States, 43 CIT __, __, 422 F. Supp. 3d 1255, 1282–83,

1294 (2019), and Gilda Indus., Inc. v. United States

(“Gilda II”), 622 F.3d 1358, 1363 (Fed. Cir. 2010)).

b. List 3 and List 4A Implicate Agency

Actions That Are Judicially Reviewable

While “[a]gency action made reviewable by statute

and final agency action for which there is no other

adequate remedy in a court are subject to judicial

review,” 5 U.S.C. § 704, presidential action is nonreviewable under the APA, Franklin, 505 U.S. at 800–

01. The Government’s arguments for dismissal raise

the question whether agency action taken in accordance

with presidential direction pursuant to section 307

constitutes non-reviewable presidential action.

For purposes of this case, the answer to that

question is “no.” Franklin held that the APA did not

apply to a challenge to reapportionment because the

President, not the Secretary of Commerce, sent the

final apportionment to Congress and thus took the

final step “affecting the States.” 505 U.S. at 796–801.

Accordingly, Franklin’s bar on judicial review generally is

“limited to those cases in which the President has final

constitutional or statutory responsibility for the final

step necessary for the agency action directly to affect

the parties.” Pub. Citizen v. USTR, 5 F.3d 549, 552 (D.C.

Cir. 1993) (emphasis added)7 (declining APA review

The opinions of the U.S. Court of Appeals for the D.C. Circuit

are not binding on this court. However, the court finds judicial

precedent from the D.C. Circuit instructive in light of the court’s

expertise in the area of administrative law. See, e.g., Vt. Yankee

59a

over a challenge to the North American Free Trade

Agreement (“NAFTA”) because Congress gave the

President “the discretion to renegotiate NAFTA before

submitting to Congress or to refuse to submit it at all”

and it was, therefore, the President’s action, not the

USTR’s, that affected members of the plaintifforganization).8

Here, the Government extends Franklin beyond its

holding when it argues, in effect, that antecedent

presidential direction lacking any direct effect on

relevant parties renders List 3 and List 4A nonreviewable presidential actions. The Government cites

no authority to support such a broad reading. Indeed,

in an analogous context, courts review agency action

taken to implement Presidential proclamations and

Executive orders—each of which are forms of presiNuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,

535 n.14 (1978) (observing that “the vast majority of challenges

to administrative agency action are brought to the [D.C.

Circuit]”); see generally Richard J. Pierce, Jr., The Special

Contributions of the D.C. Circuit to Administrative Law, 90 GEO.

L.J. 779 (2002). The U.S. Court of Appeals for the Federal Circuit

has also relied on D.C. Circuit precedent. See Nat’l Org. of

Veterans’ Advocates, Inc. v. Sec’y of Veterans Affs., 260 F.3d 1365,

1379–81 (Fed. Cir. 2001) (“NOVA”) (following Allied-Signal, Inc. v.

U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 151 (D.C. Cir. 1993)).

In Franklin, the Court considered the importance of the

President’s role in the “integrity of the [reapportionment] process” in

reaching its decision. 505 U.S. at 800. Likewise, in Public Citizen,

the appellate court noted that the President was considered

“essential to the integrity of international trade negotiations” as

evidenced by “the requirement that the President, and not [the

USTR], initiate trade negotiations and submit trade agreements

and their implementing legislation to Congress.” 5 F.3d at 552.

The D.C. Circuit left open the possibility that “APA review of

otherwise final agency actions may well be available” when “the

President’s role is not essential to the integrity of the process.” Id.

60a

dential direction—pursuant to the APA. See, e.g.,

Sherley v. Sebelius, 689 F.3d 776 (D.C. Cir. 2012)

(conducting APA review over agency action taken to

implement an Executive order); Chamber of Commerce

of United States v. Reich, 74 F.3d 1322, 1326–27 (D.C.

Cir. 1996) (surmising that agency regulations based on

an Executive order issued by the President would be

reviewable under the APA had plaintiffs brought such

a claim); Tate v. Pompeo, 513 F. Supp. 3d 132 (D.D.C.

2021) (reviewing agency action taken to implement a

Presidential proclamation). Thus, although “actions

involving discretionary authority delegated by Congress

to the President” may be non-reviewable under the

APA, such cases are distinct from those “involving

authority delegated by Congress to an agency.” See

Detroit Int’l Bridge Co. v. Gov’t of Can., 189 F. Supp. 3d

85, 98–105 (D.D.C. 2016).9

The Detroit International court declined to review the U.S.

Department of State’s (“USDS”) issuance of a permit to build a

bridge across an international boundary because Congress had

vested discretionary authority over bridge approvals in the

President, who had, in turn, delegated certain ministerial

responsibilities to USDS by Executive Order). 189 F. Supp. 3d 85,

98–105. In noting the significance of the recipient of Congress’

delegation, however, the court explained that “an unreviewable

presidential action must involve the exercise of discretionary

authority vested in the President; an agency acting on behalf of

the President is not sufficient by itself” to avoid APA review. 189

F. Supp. 3d at 104 (emphasis added). For this proposition, the

court cited Justice Elena Kagan, then Visiting Professor at

Harvard Law School, who wrote:

When the challenge is to an action delegated to an

agency head but directed by the President, . . . the

President effectively has stepped into the shoes of an

agency head, and the review provisions usually

applicable to that agency’s action should govern.

Nothing in Franklin’s interpretation of the APA or in

61a

This case concerns the latter circumstance. Congress

delegated to the USTR authority over modifications to

section 301 actions. See 19 U.S.C. § 2417(a)(1); H.R.

REP. NO. 100-576 at 551 (recognizing the USTR’s

authority to decide and implement section 301 actions

and noting that “[t]he President would not retain

separate authority to take action”).10 Consistent with

its—or any other case’s—underlying discussion of

separation of powers issues is to the contrary.

Id. (quoting Elena Kagan, Presidential Administration, 114 Harv.

L. Rev. 2245, 2351 (2001)).

When Congress transferred authority over section 301

actions from the President to the USTR in the 1988 amendments

to the Trade Act and gave the USTR the authority to modify

section 301 actions, Congress gave some indication of its reasons

for preserving a role for the President. Addressing the phrase

“subject to the direction, if any, of the President,” which did not

include the term “specific” as ultimately enacted, the House Ways

and Means Committee Report recognized “that the President

could provide broad policy direction or endorse the USTR

decision,” but that the “details of particular actions would remain

with the USTR, including modification and termination of

prior retaliatory action.” H.R. Rep. No. 100-40 at 59 (1987).

Additionally, the Committee Report “recognize[d] that if there is

a policy issue of major magnitude, the President could direct the

USTR to take a different course of action.” Id. at 59–60. However,

“[t]he Committee expect[ed] that the interagency committee

advisory process prior to the decision by the USTR [would]

virtually eliminate the instances in which any specific direction

from the President would be appropriate.” Id. at 59–60. Thus,

although Congress envisioned the President retaining a role with

respect to broad policy direction or directing the USTR to take

action relating to issues of extraordinary importance, see id.,

Congress generally gave the USTR authority over the detailed

decision-making process required by statute, see 19 U.S.C. § 2411,

et seq.

Of course, what Congress envisioned is not as important as

what the statute allows. At least in this case, however, and with

respect to List 3, the evidence of record is consistent with the

62a

the statute, the USTR engaged in a rulemaking process,

the results of which—List 3 and List 4A—“directly

affect[ed] the parties.” Franklin, 505 U.S. at 797.

The court thus concludes that Plaintiffs’ claims are

not non-reviewable pursuant to the APA by virtue of

the President’s involvement.11 Accordingly, the court

denies the Government’s motion to dismiss Plaintiffs’

claims on this basis.

legislative history (the record lacks evidence of presidential

direction with respect to List 4A beyond the USTR’s assertions in

the relevant notices). While the President offered “broad policy

direction,” and specifically directed the USTR regarding the size

of the modification, the level of tariffs, and the date of

implementation and directed the USTR to take the final action,

see June 2018 Presidential Statement; Sept. 2018 Presidential

Statement, at the hearing, the Government acknowledged that

the record does not contain evidence that the President had final

authority in the process of approving the final list of tariff

subheadings covered by the determinations, Oral Arg. 7:50–9:40,

available at https://www.cit.uscourts.gov/sites/cit/files/020122-21

00052-3JP.mp3 (time stamp from the recording). Thus, while the

USTR’s modification authority is subject to the specific direction

of the President, it is still the USTR that is acting for purposes of

the APA.

While the Parties dispute the applicability of Gilda II, that

case is not dispositive of the issues raised by the Government.

Gilda II addressed the automatic termination provision set forth

in section 307(c)(1). 622 F.3d at 1362–67. That provision does not

preserve a role for presidential direction. See 19 U.S.C. § 2417(c)(1).

Further, in that case, the appellate court addressed the effect on

section 307(c)(1) of the USTR’s failure to act in accordance with

the notice requirement set forth in section 307(c)(2). Gilda II, 622

F.3d at 1364–65. The court did not address whether any action by

the USTR, had it occurred, would be subject to the APA.

63a

2. Political Question Doctrine

a. Parties’ Contentions

The Government contends that Plaintiffs’ claims are

non-justiciable pursuant to the political question doctrine

because they implicate the President’s discretionary

determinations that modification of the original

section 301 action was merited. Defs.’ Mot. at 25.

Specifically, the Government contends, Plaintiffs seek

to challenge the President’s determinations (1) that

the original action “was ‘no longer appropriate’” and

“whether new tariffs [are] ‘appropriate’”; and (2) that

China’s retaliatory conduct “increased the burden on

the United States economy.” Id. at 26–27 (citations

omitted). According to the Government, the “highly

discretionary nature of what is ‘appropriate’” under

the circumstances means that “the statute lacks a

‘judicially discoverable and manageable standard[].’”

Id. at 27 (quoting Baker v. Carr, 369 U.S. 186, 217

(1962)) (alteration in original); see also id. at 28

(discussing Almond Bros. Lumber Co. v. United States,

721 F.3d 1320, 1326–27 (Fed. Cir. 2013)); Defs.’ Resp. &

Reply at 9–10. The Government also contends that

“prudential considerations” disfavor judicial review.

Defs.’ Mot. at 29. To that end, the Government

contends that “[P]laintiffs invite competing policies

and statements regarding United States trade policy

from the Judicial Branch, potentially disrupting the

conduct of United States foreign relations,” such as

ongoing trade negotiations with China. Id.

Plaintiffs contend that their claims implicate matters

of statutory interpretation and compliance with the

APA, both of which present judicially manageable

standards. Pls.’ Cross-Mot. & Resp. at 50–51. Thus,

Plaintiffs contend, their claims neither “challenge discretionary determinations committed to the Executive

64a

Branch,” id. at 51, nor seek judicial pronouncements

on trade policy, id. at 52. Plaintiffs rely on Almond

Brothers to contend that the court may resolve

arguments regarding statutory interpretation while

declining to address discretionary USTR determinations.

Id. (citing Almond Bros., 721 F.3d at 1326–27).

b. Plaintiffs’ Claims Do Not Implicate a

Non-Justiciable Political Question

A controversy may involve a political question when

there is:

a textually demonstrable constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and manageable standards for resolving

it; or the impossibility of deciding without an

initial policy determination of a kind clearly

for nonjudicial discretion; or the impossibility

of a court’s undertaking independent resolution without expressing lack of the respect

due coordinate branches of government; or an

unusual need for unquestioning adherence to

a political decision already made; or the

potentiality of embarrassment from multifarious

pronouncements by various departments on

one question.

Baker, 369 U.S. at 217. While the doctrine precludes

judicial review of “controversies which revolve around

policy choices and value determinations constitutionally committed” to the Legislative or Executive

Branches, “it goes without saying that interpreting

congressional legislation is a recurring and accepted

task for the federal courts.” Japan Whaling Ass’n v.

American Cetacean Soc’y, 478 U.S. 221, 230 (1986). The

court may not “shirk [its] responsibility” to ascertain

65a

the proper interpretation of a statute “merely because

[its] decision may have significant political overtones.”

Id.; see also Zivotofsky ex rel. Zivotofsky v. Clinton, 566

U.S. 189, 196 (2012) (explaining that resolution of the

plaintiff ’s claim did not turn on “the courts’ own

unmoored determination of what United States policy

toward Jerusalem should be,” but instead on the

“familiar judicial exercise” of deciding whether the

plaintiff ’s “interpretation of the statute is correct, and

whether the statute is constitutional,” such that the

political question doctrine did not apply).

The “decision that a question is nonjusticiable is not

one courts should make lightly.” El-Shifa Pharm.

Indus. Co. v. United States, 378 F.3d 1346, 1362 (Fed.

Cir. 2004). Here, however, the court readily concludes

that Plaintiffs’ claims do not raise non-justiciable

political questions.

Plaintiffs allege, inter alia, that the USTR exceeded

the authority provided by section 307(a)(1)(B) and (C)

of the Trade Act when it promulgated List 3 and List

4A. 20-177 Am. Compl. ¶¶ 68–70, 73. It is clear from

the court’s discussion, infra, that such claims require

the court to engage in the “familiar judicial exercise”

of statutory interpretation in order to ascertain

whether the factual predicate for the modifications fell

within the purview of subsection (B), and whether

subsection (C) is limited to reductions in, or termination

of, trade actions. See Zivotofsky, 566 U.S. at 196.

The court is not questioning the USTR’s determination that China’s subsequent defensive conduct

increased the burden on U.S. commerce, Defs.’ Mot. at

27–28, indeed, Plaintiffs concede that it did, Pls.’

Cross-Mot. & Resp. at 31. Instead, the issue before the

court is whether that conduct increased the burden on

U.S. commerce in a legally relevant way. That inquiry

66a

requires the court to interpret the meaning of the

statutory terms, “the acts, policies, and practices[] that

are the subject of such action,” in relation to this

modification action. 19 U.S.C. § 2417(a)(1)(B). Likewise,

the court is not reviewing the USTR’s discretionary

decisions regarding the appropriateness of certain actions

pursuant to subsection (C). See Defs.’ Mot. at 26.

For these reasons, the Government’s reliance on

Almond Brothers is misplaced. Resolution of that case

turned on the appellate court’s application of the APA’s

narrow exception to judicial review for “agency action

[that] is committed to agency discretion by law,” 5

U.S.C. § 701(a)(2), to the plaintiff ’s challenges to the

terms of an agreement the USTR entered into with

Canada, see Almond Bros., 721 F.3d at 1322, 1325–27.

While finding the substance of the terms of the

agreement to fall within the USTR’s discretionary

authority such that there was “no law to apply,” id. at

1327 (quoting Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 410 (1971)), the court nevertheless

considered, and rejected, the plaintiff ’s argument that

the agreement failed to meet other applicable

statutory requirements, id.

The Government’s motion does not discuss the

political question doctrine in relation to Plaintiffs’

claims concerning the USTR’s compliance with the

procedural requirements set forth in the APA. See

Defs.’ Mot. at 25–30; 20-177 Am. Compl. ¶¶ 74–75. In

its reply brief, the Government asserts that, “[i]f a case

presents an unreviewable political question, then no

review of those claims is available under the APA.”

Defs.’ Resp. & Reply at 10 (citing Heckler v. Chaney,

470 U.S. 821, 828 (1985), and Mobarez v. Kerry, 187 F.

Supp. 3d 85, 97 (D.D.C. 2016)) (emphasis added). The

cited cases are inapposite because each addressed the

67a

unavailability of APA review of substantive—as opposed

to procedural—claims. See Heckler, 470 U.S. at 837–38

(finding that an agency’s discretionary decision not to

undertake an enforcement action was not subject to

judicial review pursuant to 5 U.S.C. § 701(a)(2));

Mobarez, 187 F. Supp. 3d at 92 (declining to undertake

APA review of the plaintiff ’s claim that the U.S.

government failed to fulfill its alleged duty to evacuate

U.S. citizens from Yemen and distinguishing such

claims from reviewable “garden-variety” claims

requiring statutory interpretation).

Simply put, the policy-laden questions to which the

USTR directed its discretionary authority are not

before the court. See Defs.’ Mot. at 29 (arguing that

“plaintiffs invite competing policies and statements

regarding United States trade policy from the Judicial

Branch”). Matters of statutory interpretation and

compliance with procedural requirements are

independent questions the court is well-equipped to

answer. Thus, the court is not risking “the potentiality

of embarrassment from multifarious pronouncements

by various departments on one question.” Baker, 369

U.S. at 217. Accordingly, the court denies the

Government’s motion to dismiss Plaintiffs’ claims

based on purported non-justiciability and now turns to

the merits of those claims.

II. Whether the USTR Exceeded its Modification

Authority Pursuant to Section 307 of the Trade

Act

1. Standard of Review

a. Parties’ Contentions

The Government contends that, even if the contested

actions are those of the USTR, a heightened standard

of review applies, namely, whether there has been “a

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clear misconstruction of the governing statute, a

significant procedural violation, or action outside

delegated authority.” Defs.’ Mot. at 30–31 (quoting

Gilda II, 622 F.3d at 1363). The Government asserts

that the USTR conducts “‘[a]ll functions . . . under the

direction of the President,’” id. at 30,12 meaning that

the court must “afford[] substantial deference to

decisions of the [USTR] implicating the discretionary

authority of the President in matters of foreign

relations,” id. (quoting Gilda II, 622 F.2d at 1363).

Plaintiffs contend that the court “is the final

authority on issues of statutory construction,” Pls.’

Cross-Mot. & Resp. at 39 (quoting Gilda II, 622 F.3d at

1363), and resolving this case requires applying the

Chevron framework, id. at 39–40 (citing Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

843 n. 9 (1984)). Plaintiffs further contend that the

statute is unambiguous, but that even if it were not,

the USTR’s interpretation merits no deference. Id. at

41–42. Plaintiffs also contend that the Government

has misconstrued the authorities upon which it seeks

to rely. Pls.’ Reply at 3–5.

b. Analysis

In cases arising under the court’s jurisdiction

pursuant to 28 U.S.C. § 1581(i), the court applies the

standard of review set forth in the APA. 28 U.S.C.

§ 2640(e). The “court must ‘decide all relevant

questions of law, interpret constitutional and statutory

provisions,’ and ‘hold unlawful and set aside agency

The Government identifies 19 U.S.C. § 2171(a) as the

source for this quotation, but the phrase is instead found in

Reorganization Plan No. 3 of 1979, 44 Fed. Reg. 69,273, 69,274

(1979) (reorganization of functions relating to international

trade, section 1(b)(4)).

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action, findings, and conclusions found to be . . .

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’” Gilda II, 622

F.3d at 1363 (quoting 5 U.S.C. § 706) (alteration in

original).

While the Government seeks to distinguish Gilda II

based on the underlying statute at issue,13 see Defs.’

Resp. & Reply at 6, that distinction is inapposite here.

Gilda II recognizes that although the “court affords

substantial deference to decisions of the Trade

Representative implicating the discretionary authority of

the President in matters of foreign relations,” id.

(citing Maple Leaf Fish Co. v. United States, 762 F.2d

86, 89 (Fed. Cir. 1985) (emphasis added), “[t]he

judiciary is the final authority on issues of statutory

construction and must reject administrative constructions which are contrary to clear congressional intent,”

id. (quoting Chevron, 467 U.S. at 843 n.9 (1984))

(alteration in original). Thus, when “the intent of

Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id.

(quoting Chevron, 467 U.S. at 842–43).

Accordingly, the appellate court distinguished

matters implicating presidential discretion from those

requiring statutory interpretation. See Gilda II, 622

F.3d at 1363.

Here, resolving Plaintiffs’ substantive claims requires

the court first to interpret the relevant statutory

provisions; thus, the court “must first carefully inves13

Gilda II addressed the USTR’s interpretation of 19 U.S.C.

§ 2417(c)(1), the statutory provision governing automatic

termination of retaliatory duties. 622 F.3d at 1362. That provision

does not involve presidential direction.

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tigate the matter to determine whether Congress’s

purpose and intent on the question at issue is

judicially ascertainable.” Timex V.I., Inc. v. United

States, 157 F.3d 879, 881 (Fed. Cir. 1998). Accordingly,

the court turns to its examination of “the statute’s text,

structure, and legislative history,” applying, if necessary,

“the relevant canons of interpretation.” Gazelle v.

Shulkin, 868 F.3d 1006, 1010 (Fed. Cir. 2017) (quoting

Heino v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir. 2012)).14

Because the court finds that the statute is unambiguous, the court need not and does not address what,

if any, deference the USTR’s interpretation of the

statute would be given if the statute was ambiguous.

The Government’s reliance on Maple Leaf Fish Co., 762 F.2d

86, Silfab Solar, Inc. v. United States, 892 F.3d 1340 (Fed. Cir.

2018), and Transpacific Steel LLC v. United States, 4 F.4th 1306

(Fed. Cir. 2021), cert. denied, 2022 WL 892108 (U.S. Mar. 28, 2022),

is also unpersuasive. See Defs.’ Mot. at 30–31; Defs.’ Resp. & Reply

at 11–13. Silfab Solar and Maple Leaf Fish Co. address,

respectively, the extent to which the court may review findings of

fact by the President or the U.S. International Trade Commission

in preparation for presidential action. Silfab Solar, 892 F.3d at

1349; Maple Leaf Fish Co., 762 F.2d at 89–90. In Transpacific, the

appellate court addressed the timeliness of presidential action

pursuant to section 232 of the Trade Expansion Act of 1962,

19 U.S.C. § 1862. 4 F.4th at 1318–19. That inquiry required the

court to interpret the meaning of the term “action” pursuant to

19 U.S.C. § 1862(c)(1)(B). Id. at 1322. In so doing, the court

considered the statute’s ordinary meaning, id. at 1319–22,

“relevant statutory context,” id. at 1322, and the statute’s “legal

and historical backdrop,” id. at 1324 (citation omitted), before

concluding that Congress’ intent was plain with respect to the

operative term. These cases thus lend support for the distinction

between review of discretionary decisions and statutory interpretation recognized in Gilda II.

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2. The USTR’s Authority Pursuant to Section

307(a)(1)(B)

a. Parties’ Contentions

The Government contends that “China’s subsequent

actions”—retaliatory tariffs and other measures such

as currency devaluation—“were not separate and

distinct from their unfair trade practices investigated

under section 301” but “were directly related” to the

investigation and intended to permit and defend the

continuation of the investigated practices. Defs.’ Mot.

at 32.15 The Government further contends that Plaintiffs’

interpretation of the statute would prevent the

President and the USTR from “respond[ing] to a

trading partner’s refusal to eliminate its unfair trade

practices” and retaliatory actions. Id. at 33. Such an

interpretation, the Government contends, is inconsistent with both the USTR’s authority to take “all

‘appropriate and feasible action’ within the power of

the President” to eliminate the unfair practices

pursuant to section 301(b)(2), id., and legislative

history surrounding the 1988 amendments to section

301 indicating congressional desire for vigorous action

in response to unfair trade practices, id. at 37–38.

Drawing a temporal line in the sand, Plaintiffs

contend that the phrase “the subject of such action” in

subsection (B) cannot encompass China’s defensive

Indeed, the Government contends that China’s defensive

actions permitted the USTR to modify the section 301 action

under both subsections (B) and (C). Defs.’ Mot. at 33. The

Government asserts, and Plaintiffs agree, that each subsection—

(B) and (C) constitutes “an independent basis for action” and

failure as to one is not a basis to overturn the action. Defs.’ Mot.

at 36 n.6; Oral Arg. 1:55:10–1:55:30 (colloquy with Plaintiffs

during which they agreed that each statutory basis provides

independent authority for the modifications).

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actions “because those actions had not yet transpired

when the investigation was initiated or when USTR

determined that remedial action was ‘appropriate.’”

Pls.’ Cross-Mot. & Resp. at 31. Thus, Plaintiffs contend,

“[t]he increased burden cannot come from other

subsequent ‘defensive’ actions.” Id. at 32; cf. Ecolab’s

Br. at 8–12 (advancing similar arguments). Plaintiffs

contend that any congressional intent to permit the

USTR “to prosecute a limitless trade war” would have

been stated in clearer terms, “not through the tailored

language of Section 307(a)(1)(B).” Pls.’ Cross-Mot. &

Resp. at 31–32. Plaintiffs also contend that the existence

of explicit retaliation authority pursuant to section

306(b)(2) disfavors interpreting subsection (B) to allow

the USTR to retaliate against a trading partner’s actions

under the guise of modification. See id. at 32–33.

The Government counters that the USTR “made the

required finding that the burden on U.S. commerce

had increased as a result of China’s unfair trade

practices, and its ‘subsequent defensive actions taken

to maintain’ those practices.” Defs.’ Resp. & Reply at

14 (citing Final List 3, 83 Fed. Reg. at 47,974, and

Final List 4, 84 Fed. Reg. at 43,304) (emphasis

added).16 The Government contends that the court

should reject Plaintiffs’ characterization of the initial

investigation as “limited and discrete,” id. at 16,

because the investigated practices covered “China’s

massive ‘top-down national strategy[]’ unfairly to

acquire U.S. technology,” which required “the mobilization and participation of all sectors of [Chinese]

In that regard, the Government also points to a statement

regarding China’s acquisition of hybrid vehicle technology from

Toyota. Defs.’ Resp. & Reply at 15 (quoting Mem. from USTR

General Counsel Stephen Vaughn to USTR Robert Lighthizer

(Sept. 17, 2018) (“Sept. 2018 Vaughn Mem.”) at 6, PR 1).

73a

society,” id. at 15–16 & n.4 (quoting USTR Report at

11). The Government also contends that section

306(b)(2) applies in different circumstances and “is

irrelevant here.” Id. at 16. While recognizing that

resort to legislative history is unnecessary when a

statute is plain, Defs.’ Mot. at 5 n.2, the Government

contends that the legislative history behind the 1988

amendments to the Trade Act supports interpreting

subsection (B) to allow the USTR to respond to

defensive conduct, Defs.’ Resp. & Reply at 18 (citing

133 CONG. REC. 20,486 (1987) (statement of Sen.

Lautenberg); S. REP. NO. 100-71 (1987), at 73–74).

In their Reply, Plaintiffs contend that the Government’s

assertions of an increased burden on U.S. commerce

from the investigated practices are conclusory and

unavailing. Pls.’ Reply at 7–8. Plaintiffs contend that

the Government’s “true argument” for reliance on

subsection (B) remains China’s subsequent defensive

conduct that is distinct from the “the four discrete

categories of intellectual property and technology

transfer conduct that USTR actually investigated.” Id.

at 8. Plaintiffs further contend that the Government’s

reliance on the USTR Report constitutes a post hoc

rationalization for the USTR’s action. Id. at 10. Lastly,

Plaintiffs contend that the Government’s dismissal of

the relevance of section 306 misses the point. Id. at 10

n.3. Plaintiffs argue that the existence of “section 306

shows that Congress understood how to authorize

‘retaliation’ explicitly against another country’s

response to trade proceedings or actions where it

wanted to.” Id.

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b. In Promulgating List 3 and List 4A, the

USTR Properly Exercised Its Authority

Pursuant to Section 307(a)(1)(B)

The court begins with the language of the statute.

The statute permits the USTR to “modify or terminate

any action, subject to the specific direction, if any, of

the President with respect to such action, that is being

taken under section 2411 of this title if—. . . the burden

or restriction on United States commerce . . . of the

acts, policies, and practices, that are the subject of

such action has increased or decreased.” 19 U.S.C.

§ 2417(a)(1)(B) (emphasis added). This case requires

the court first to interpret the meaning of the phrase,

“the subject of such action,” because the Parties

disagree about whether retaliatory actions taken by

China can be the source of burden from the acts,

policies, and practices that were the subject of the

original action.

Plaintiffs contend that the relevant phrase refers to

the subject of the original investigation. Pls.’ CrossMot. & Resp. at 32; Pls.’ Reply at 7–9. The plain

meaning of the terms supports that interpretation.

Black’s Law Dictionary17 defines “subject,” when used

as a noun, as “[t]he matter of concern over which

something is created; something about which thought

or the constructive faculty is employed,” for example,

“the subject of the statute.” Black’s Law Dictionary at

1465 (8th Ed. 2004); cf. Subject (noun), The Oxford

English Dictionary, Vol. XVII at 29 (2nd Ed. 1989) (“A

thing affording matter for action of a specified kind; a

Courts have long considered dictionary definitions to discern

the ordinary meaning of a term. See, e.g., Nix v. Hedden, 149 U.S.

304, 306–07 (1893); Gumpenberger v. Wilkie, 973 F.3d 1379, 1382

(Fed. Cir. 2020).

75a

ground motive or cause.”). The phrase “such action,”

when read in context, refers to the “action” referenced

in the introductory clause of section 307(a)(1). See 19

U.S.C. § 2417(a)(1)(B); cf. Solar Energy Indus. Ass’n v.

United States, Slip Op. 21-154, 2021 WL 5320790, at

*9 (Nov. 16, 2021) (stating that the term “‘such’ is

typically read to ‘refer[ ] back to something indicated

earlier in the text’”) (citation omitted) (alteration in

original). The term “action,” in the introductory clause,

constitutes a reference to the action taken pursuant

to section 301, i.e., the initial action. See 19 U.S.C.

§ 2417(a)(1) (cross-referencing 19 U.S.C. § 2411). Thus,

to rely on the authority provided by subsection (B), the

USTR must act based on increased harm to U.S.

commerce from the acts, policies, and practices that

constituted the subject of the original investigation.

Indeed, the Government does not present a different

textual view of the provision. The court thus finds the

text of the statute plain with respect to subsection (B)

and need not resort to legislative history or other tools

of statutory interpretation.

Interpreting the meaning of the phrase does not,

however, end the inquiry. Instead, the Parties dispute

what was the subject of the action and whether

China’s defensive conduct, occurring subsequent to the

original investigation, can properly be considered the

basis for an increase in the harm stemming from the

subject of the action. See, e.g., Pls.’ Cross-Mot. & Resp.

at 32; Defs.’ Resp. & Reply at 15–16. Plaintiffs argue

that the subject of the action must be limited to “the

investigated intellectual property practices themselves.”

Pls.’ Cross-Mot. & Resp. at 25 (emphasis omitted); see

also Pls.’ Reply at 8 (distinguishing China’s retaliation

from the conduct “that USTR actually investigated”).

The Government argues that China’s retaliatory

conduct was “not separate and distinct from” the

76a

investigated acts and was instead “directly related” to

the acts, policies, and practices that were the subject

of the investigation. Defs.’ Mot. at 32; Defs.’ Resp. &

Reply at 15.

Upon review of the record of the agency’s proceedings and the arguments of the Parties, the court finds

that the link between the subject of the original section

301 action and China’s retaliation is plain on its face.

The USTR’s initial determination was statutorily

required to be designed to lead to the elimination of

the unfair acts, policies, and practices, but without any

requirement for the action to be focused on the same

or similar industries. See 19 U.S.C. § 2411(b)(2). Thus,

by imposing duties on $50 billion in trade, the USTR

intended to disrupt the trade flow into the United

States in such amount necessary to lead to the

elimination of China’s unfair practices. By directly

offsetting the duties on the $50 billion in trade with its

own duties on $50 billion in trade from the United

States, China directly connected its retaliation to the

U.S. action and to its own acts, policies, and practices

that the U.S. action was designed to eliminate. See

Final List 3, 83 Fed. Reg. at 47,974; cf. Final List 4, 84

Fed. Reg. at 43,304 (noting China’s decision to impose

tariffs on $110 billion worth of U.S. goods).

Plaintiffs’ arguments that China’s retaliatory conduct

cannot be part of “the subject of ” the action because

that conduct post-dates the initial investigation and

determination are not persuasive. Pls.’ Cross-Mot. &

Resp. at 31; see also Pls.’ Reply at 8 (“As a temporal and

logical matter, the ‘subject of ’ the section 301 action

does not encompass all ‘subsequent defensive measures’

China might take in retaliation for U.S. tariffs.”).

Modifications are based on activity increasing (or

decreasing) the burden on U.S. commerce after the

77a

initial determination. 19 U.S.C. § 2417(a)(1)(B). Plaintiffs’

argument thus turns on whether the USTR found that

China’s retaliatory conduct caused an increased burden

on U.S. commerce from the acts, policies, and practices

that constituted the subject of the action. Because, as

discussed below, the court concludes that it did,

Plaintiffs’ timing-based argument must fail.18

In determining whether the USTR reasonably

considered China’s retaliatory actions to be within the

purview of the “subject of the action,” the court “may

not supply a reasoned basis for the agency’s action that

the agency itself has not given.” Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983) (citing SEC v. Chenery Corp., 332

U.S. 194, 196 (1947)). Nevertheless, the court will

“uphold a decision of less than ideal clarity if the

agency’s path may reasonably be discerned.” Bowman

Plaintiffs also argue that “[t]he magnitude of the responsive

List 3 and List 4A actions . . . underscores their distinct nature.”

Pls.’ Reply at 8. According to Plaintiffs, the USTR deemed $50

billion “‘commensurate’ to the harms” resulting from the

“investigated practices.” Id. The USTR explained that a $50

billion action was initially “appropriate both in light of the

estimated harm to the U.S. economy, and to obtain elimination of

China’s harmful acts, policies, and practices.” USTR Determination,

83 Fed. Reg. at 14,907. The USTR is not, however, statutorily

required to quantify any increase in burden or otherwise show

that the increase in tariffs is commensurate to the increased

harm. See 19 U.S.C. § 2417(a)(1)(B); compare id. § 2411(a)(3)

(stating that mandatory actions taken pursuant to section 301(a)(1)

“shall be devised so as to affect goods or services of the foreign

country in an amount that is equivalent in value to the burden or

restriction being imposed by that country on United States

commerce”), with id. § 2411(b) (governing discretionary actions

taken pursuant to section 301(b), which does not contain any such

limitation).

78a

Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S.

281, 286 (1974).

Beyond the clear connection between the defensive,

retaliatory actions and the acts, policies, and practices

they seek to defend, List 3 and List 4A reference the

USTR’s prior determinations concerning the investigation and subsequent actions. See Final List 3, 83

Fed. Reg. at 47,974; Final List 4, 84 Fed. Reg. at 43,304.

Given that List 3 and List 4A constitute modifications

to those actions, the court also looked to the cited

determinations to consider further the USTR’s position

regarding the scope of the subject of the original

action. The USTR broadly defined the investigation as

addressing “China’s Acts, Policies, and Practices

Related to Technology Transfer, Intellectual Property,

and Innovation.” Initiation Notice, 82 Fed. Reg. at

40,213 (emphasis added). Thus, the investigation

covered China’s conduct related to the identified

matters and not simply, as Plaintiffs contend, the acts

constituting the identified matters. See id. Additionally,

while the USTR specified four categories of acts,

policies, and practices that it deemed actionable in its

initial determination, the USTR described the Report

as a “comprehensive” account of “the acts, policies, and

practices under investigation.” USTR Determination,

83 Fed. Reg. at 14,907. The Report, which is both public

and contemporaneous with the USTR’s initial section

301 determination, may also be considered. See United

States v. Sci. Applications Int’l Corp., 502 F. Supp. 2d

75, 78 (D.D.C. 2007) (“Generally, ‘when a document

incorporates outside material by reference, the subject

matter to which it refers becomes a part of the

incorporating document just as if it were set out in

full.’”) (quoting Air Line Pilots Ass’n, Int’l v. Delta Air

Lines, 863 F.2d 87, 94 (D.C. Cir. 1988)).

79a

In addition to summarizing the specific acts, policies,

and practices related to technology transfer, intellectual property, and innovation under investigation, the

USTR Report provided the historical context in

which those actions arose. The Report explained that

“[c]oncerns about a wide range of unfair practices of

the Chinese government . . . related to [those matters]

are longstanding.” USTR Report at 4. The Report

noted that the investigation covered the Chinese

government’s use of “a variety of tools, including

opaque and discretionary administrative approval

processes, joint venture requirements, foreign equity

limitations, procurements, and other mechanisms to

regulate or intervene in U.S. companies’ operations in

China, in order to require or pressure the transfer of

technologies and intellectual property to Chinese

companies.” Id. at 5 (emphasis added). Indeed, as

noted by the Government, China’s “top-down national

strategy” for acquiring technology “requires the

mobilization and participation of all sectors of

[Chinese] society.” Id. at 11.

In addition to these concerns, the Report specifically

explained the reluctance among U.S. companies to

“complain about China’s unfair trade practices” because

of concerns about “Chinese retaliation.” Id. at 9. “Other

mechanisms” used to regulate U.S. companies’ operations in China thus included the lack of “effective

recourse” for U.S. companies wanting to report

“informal pressures for fear of retaliation and the

potential loss of business opportunities.” Id. at 21.

According to the USTR, “concerns about retaliation

have enabled China’s technology transfer regime to

persist for more than a decade.” Id.; see also id. at 21

n.106.

80a

The foregoing discussion of retaliation in the USTR

Report provides context and explanation regarding the

reasons why individual companies were unable and

unwilling to pursue their own complaints against the

underlying Chinese practices. This recognition of the

challenges faced by individual companies led the

USTR, consistent with the direction of the President,

to initiate the section 301 action in order to protect

U.S. companies without them filing their own petitions

and incurring the consequences of targeted retaliation.

See id. at 10. Thus, even if the retaliatory actions by

China were not otherwise clearly related to the acts,

policies, and practices that China sought to defend

from the USTR’s section 301 action, the USTR Report

provides a basis for regarding China’s retaliatory

actions as within the scope of the acts, policies, and

practices that were the subject of the original action.

The USTR’s rationale for List 3 and List 4A reflects

this understanding of the agency’s authority pursuant

to subsection (B). As the USTR explained, China’s

retaliation against the initial imposition constitutes

conduct that is related to the specified unfair trade

policies because it is intended to “maintain those

policies.” Final List 3, 83 Fed. Reg. at 47,974; see also

Final List 4, 84 Fed. Reg. at 43,304. That retaliation

consisted of China’s imposition of tariffs on $50 billion

worth of U.S. goods, Final List 3, 83 Fed. Reg. at 47,974,

later increased to $110 billion worth of U.S. goods,

Final List 4, 84 Fed. Reg. at 43,304, and “non-tariff

measures,” id., including devaluing China’s currency,

id. at 43,305. China’s retaliation also caused increased

harm to U.S. commerce; a point that Plaintiffs concede.

See, e.g., Pls.’ Cross-Mot. & Resp. at 31. Together, these

notices reflect the USTR’s recognition that Chinese

retaliation was similarly directed against the effort to

challenge its unfair acts, policies, practices, just as the

81a

threats to retaliate against individual companies

were directed at maintaining those same practices.

Accordingly, the USTR properly found an increased

burden on U.S. commerce arising from the acts that

formed part of the subject of the original action.19

For these reasons, the court finds that the USTR

exercised its authority consistent with section 307(a)(1)(B)

when it promulgated List 3 and List 4A. Because

subsections (B) and (C) each provided an independent

basis for the determinations, the court need not and

does not reach the Parties’ arguments concerning the

USTR’s authority to issue the determinations pursuant

to section 307(a)(1)(C).

III. Procedural Claims Pursuant to the APA

The court first addresses the Government’s arguments

that the promulgation of List 3 and List 4A is exempt

from the APA’s procedural requirements and, finding

those arguments non-meritorious, next addresses

Plaintiffs’ APA claims.

1. Foreign Affairs Exemption

a. Parties’ Contentions

The Government contends that the promulgation of

List 3 and List 4A falls under the foreign affairs

exception to the APA because they “were part of the

negotiation of an international trade agreement” and

“relate[d] to the President’s ‘overall political agenda

concerning relations with another country.’” Defs.’ Mot.

For the same reasons, the court rejects Plaintiffs’ argument

that the USTR violated the substantive provisions of the APA by

failing to point to evidence of an “increased burden” from the

investigated practices. See Pls.’ Reply at 23–24.

82a

at 42–43 (quoting Am. Ass’n of Exps. & Imps. v. United

States, 751 F.2d 1239, 1249 (Fed. Cir. 1985)).

Plaintiffs contend that the promulgation of List 3

and List 4A does not fall under the foreign affairs

exception because “the public rulemaking” process

“would [not] ‘provoke definitively undesirable international consequences.’” Pls.’ Cross-Mot. & Resp. at 61–

62.

b. The Foreign Affairs Exemption Does Not

Apply

The APA exempts a rulemaking from notice and

comment procedures when the agency action involves

a “foreign affairs function of the United States.” 5

U.S.C. § 553(a)(1) (stating that section 553 applies,

“except to the extent that” a foreign affairs function “is

involved”).20 In other words, the foreign affairs

exemption is intended to allow an agency to “dispense

with [the] notice-and-comment procedures” set forth in

section 553. E.B. v. U.S. Dep’t of State, 2022 WL

343505, at *4 (D.D.C. 2022) (emphasis added); see also

H.R. REP. NO. 79-1980 at 257 (1946) (foreign affairs

functions are “exempt[] from all of the requirements”

set forth in section 553) (emphasis added).

When invoked, the exemption “will be construed

narrowly and granted reluctantly,” and “only to the

extent that the excepted subject matter is clearly and

directly involved in a foreign affairs function.” Mast

Indus., Inc. v. Regan, 8 CIT 214, 231, 596 F. Supp. 1567,

1582 (1984) (quotations and citation omitted). “The

The Government concedes that, in the event the court finds

the promulgation of List 3 and List 4A to constitute agency action,

the USTR’s actions are subject to informal rulemaking

procedures set forth in 5 U.S.C. § 553(b)–(c) unless the court finds

that the foreign affairs exception applies. Defs.’ Mot. at 39.

83a

purpose of the exemption [is] to allow more cautious

and sensitive consideration of those matters which ‘so

affect relations with other Governments that, for

example, public rule-making provisions would provoke

definitely undesirable international consequences.’”

Am. Ass’n of Exps. & Imps., 751 F.2d at 1249 (quoting

H.R. REP. NO. 79-1980 at 257).21

In this case, the USTR did not invoke the foreign

affairs exemption to relieve the agency from any

rulemaking procedures that may apply in addition to

the requirements of section 307.22 See Final List 3, 83

Consistent with its use as an example, meeting the

“definitely undesirable international consequences” standard

may be enough to invoke the foreign affairs exemption but is not

necessary. See Mast, 8 CIT at 230, 596 F. Supp. 2d at 1581 (noting

that such a finding “has not been considered necessary by courts”

and, if it were, “would render the ‘military or foreign affairs

function’ superfluous since the ‘good cause’ exception [set forth in

section] 553(b)(B), would apply”).

The foreign affairs exemption “[does] not relieve an agency

from any requirements imposed by law apart from this bill. H.R.

REP. NO. 79-1980 at 257. Section 307(a)(2) and (b) require the

USTR to “consult with the petitioner, if any, and with representatives of the domestic industry concerned” and to “provide [an]

opportunity for the presentation of views by other interested

persons affected by the proposed modification or termination”

before publishing “the reasons [for]” any modification in the

Federal Register and providing a report to Congress. 19 U.S.C.

§ 2417(a)(2)–(b). At the hearing, the Government suggested that

the only additional requirement found in the APA as compared to

section 307 is the requirement for a reasoned explanation, such

that applying the foreign affairs exemption would relieve the

court from analyzing the sufficiency of the USTR’s response to

public comments. Oral Arg. 59:15–1:01:00. In other words, the

Government appears to interpret section 307 to provide at least

some opportunity for public comment without requiring the

USTR to engage with the comments it receives to the extent

required by the APA.

84a

Fed. Reg. at 47,974–75; Final List 4, 84 Fed. Reg. at

43,304–05. Indeed, at each step in the processes that

resulted in List 3 and List 4A, the USTR, generally

consistent with both 19 U.S.C. § 2417(a)(2)–(b) and 5

U.S.C. § 553(b)–(c), published notices of its intended

actions, accepted comments from the public, and held

public hearings prior to publishing its determinations.

See supra Background Sec. II. Thus, the Government’s

invocation of the exemption is entirely post hoc and

inconsistent with the manner in which the USTR

conducted the modification processes.23

While the statute does not explicitly require an

agency to invoke the foreign affairs exemption in a

final rule, the USTR’s failure to make such an

invocation combined with the manner in which the

USTR conducted these processes suggests that the

USTR did not intend to invoke the exemption and, at

best, provides the court with an unclear record as to

whether the USTR in fact intended to invoke the

exemption. Cf., e.g., Mast, 8 CIT at 229, 596 F. Supp. at

1580 (documenting explicit invocation of the foreign

affairs exemption). The court, however, need not decide

whether the foreign affairs exemption may properly be

invoked solely by counsel post hoc, because the court

finds unconvincing the Government’s argument that

USTR’s actions “fall squarely within the foreign

affairs . . . exception.” Defs.’ Mot. at 44. Unlike in Mast,

for example, on which the Government seeks to rely in

connection with the implementation of international

agreements, the United States and China did not enter

into any trade agreement until after the USTR

promulgated Final List 3 and Final List 4. See Defs.’

Plaintiffs do not allege facial non-compliance with section

553 but, rather, deficiencies with respect to the USTR’s noticeand-comment procedures. See 20-177 Am. Compl. ¶¶ 74–75.

85a

Mot. at 41 (citing Mast, 8 CIT at 232, 596 F. Supp. 3d

at 1582).24

Moreover, courts have recognized that the foreign

affairs exemption does not apply simply because a rule

relates to ongoing negotiations. See, e.g., East Bay

Sanctuary Covenant v. Trump, 932 F.3d 742, 776 (9th

Cir. 2018) (holding that the foreign affairs exemption

did not apply to an interim rule suspending asylum for

certain persons when the government claimed that the

rule “directly related to ongoing negotiations with

Mexico” absent any explanation why immediate

publication of the rule furthered the negotiations).

This is particularly true when, as here, some form of

notice, opportunity to comment, and explanation is

otherwise required. See 19 U.S.C. § 2417(a)(2)–(b). The

Government has failed to explain how the foreign

affairs exemption would “allow more cautious and

sensitive consideration of [the] matters” addressed in

the contested determinations. See Am. Ass’n of Exps. &

Imps., 751 F.2d at 1249.

While the court recognizes the circuit split as to

whether an agency action must have “definitely

undesirable international consequences” to qualify for

the foreign affairs exemption, see Mast, 8 CIT at 230 &

n.20, 596 F. Supp. at 1581 & n.20, the court is bound

by Federal Circuit precedent, which at least considers

whether an action would have such consequences in

While Mast states that “the negotiation of agreements with

foreign governments . . . ‘clearly and directly’ involve[d] a ‘foreign

affairs function,’” that statement was made in the context of

negotiations under section 204 of the Agricultural Act of 1956,

which expressly granted the President power to issue regulations

in conjunction with the negotiation of international agreements

limiting certain imports. 8 CIT at 217, 232, 596 F. Supp. at 1570,

1582.

86a

determining whether the foreign affairs exception

should apply, see Am. Ass’n of Exps. & Imps., 751 F.2d

at 1249. The Government has not pointed to any such

consequences, which would prove difficult given the

considerable public airing of the proceedings.25 See

supra Background Sec. II; Zhang v. Slattery, 55 F.3d

732, 744–745 (2d Cir. 1995) (holding that the foreign

affairs exemption did not apply to an interim

immigration rule because the record lacked evidence

that subjecting the rule to notice and comment would

have undesirable international consequences and

because the focus of the rule had been at the center of

a national debate for more than six months prior to the

issuance of the rule).

Accordingly, the court turns to the merits of

Plaintiffs’ APA claims.

2. Response to Comments

a. Parties’ Contentions

Plaintiffs contend that the USTR failed to respond

to comments in a reasoned manner using two lines of

argument. See Pls.’ Cross-Mot. & Resp. at 59–60; Pls.’

Reply at 25–27. First, Plaintiffs assert that the USTR’s

failure to address the “‘overwhelming[]’ opposition” to

the imposition of List 3 and List 4A was arbitrary and

capricious. Pls.’ Reply at 26 (quoting Defs.’ Resp. &

Reply at 38) (alteration in original). Second, Plaintiffs

fault the USTR for failing to explain “which comments,

and what concerns raised in those comments, caused

At the hearing, the Government argued that responding to

each of the thousands of comments would provoke undesirable

international consequences but did not explain why or specify

the nature of the consequences. Oral Arg. 1:00:30–1:01:00. As

discussed below, however, a “comment-by-comment” response is

not the standard required by the APA.

87a

it to withdraw certain tariff headings and products but

not others.” Pls.’ Cross-Mot. & Resp. at 59–60.

Amici Curiae Retail Litigation Center, Inc. and

others (collectively, “RLC”) likewise contend that the

USTR neither considered, nor took sufficient time to

consider, substantial objections to the modifications.

RLC’s Br. at 12–15. While framing its arguments in

terms of the APA, RLC contends that the USTR’s

actions are more troubling given the statutory requirement to provide opportunity for the public to comment.

Id. at 13–14 (citing 19 U.S.C. § 2417(a)(2)). RLC argues

that the USTR failed to engage meaningfully with

comments expressing concerns that the modification

actions would harm the U.S. economy, “act[] as a

hidden tax for consumers on everyday products,” id. at

14, and disrupt “the supply chains of U.S. retailers,

manufacturers, and producers,” id. at 15.

The Government contends that the USTR considered

the factors relevant to the statutory determinations

pursuant to section 307(a)(1)(B) and (C). Defs.’ Mot. at

46–47, 58–59. The Government further contends that

the Federal Register notices associated with List 3

reflect the USTR’s consideration of comments in its

determinations to omit certain tariff subheadings,

delay the onset of the increase in the level of List 3

duties from 10 percent to 25 percent, and establish an

exclusion process. Id. at 58–59. With respect to List 4A,

the Government contends that the USTR responded to

comments by stating the bases upon which it removed

certain tariff subheadings, separating the subheadings

into two lists and staggering the effective date of List

4B, and establishing an exclusion process. Id. at 59; see

also Defs.’ Resp. & Reply at 41. The Government also

contends that policy issues raised by RLC fail to

88a

provide a basis to “overturn[] the tariffs.” Defs.’ Resp.

& Reply at 42.

b. The USTR Failed to Respond Adequately

to Comments

The APA requires agencies conducting notice and

comment rulemaking to “incorporate in the rules

adopted a concise general statement of their basis and

purpose.” 5 U.S.C. § 553(c). An agency’s explanation of

the basis and purpose for its action must demonstrate

a “consideration of the relevant factors,” State Farm,

463 U.S. at 43 (citation omitted), and “must offer a

rational connection between the facts found and the

choice made,” id. at 52 (quotations and citation

omitted). The standard that an agency’s response must

meet “is not particularly demanding.” Nat’l Mining

Ass’n v. Mine Safety & Health Admin., 116 F.3d 520,

549 (D.C. Cir. 1997) (per curiam) (quotations and

citation omitted). A court will not, however, undertake

a “laborious examination of the record, formulate in

the first instance the significant issues faced by the

agency and articulate the rationale of their resolution.”

Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330,

338 (D.C. Cir. 1968). For “judicial review . . . to be

meaningful,” the agency’s explanation must enable the

court “to see what major issues of policy were

ventilated by the informal proceedings and why the

agency reacted to them as it did.” Id. (emphasis added).

Conclusory statements that do not explain how a

determination was reached are therefore insufficient.

Int’l Union, United Mine Workers of Am. v. Mine Safety

& Health Admin., 626 F.3d 84, 94 (D.C. Cir. 2010).

The enabling statute informs the court’s examination of

an agency’s basis and purpose statement and the

relevance of comments received by an agency. Agency

action through notice and comment rulemaking must

89a

be tethered to the statute. See, e.g., State Farm, 463

U.S. at 43 (explaining that an agency cannot rely on

factors “which Congress has not intended it to

consider”). Additionally, “[t]he basis and purpose

statement is inextricably intertwined with the receipt

of comments.” Action on Smoking & Health v. C.A.B.,

699 F.2d 1209, 1216 (D.C. Cir. 1983) (footnote citation

omitted). An agency “must respond in a reasoned

manner to those [comments] that raise significant

problems.” City of Waukesha v. EPA, 320 F.3d 228, 257

(D.C. Cir. 2003) (quotations and citation omitted).

“Significant comments are those ‘which, if true, raise

points relevant to the agency’s decision and which, if

adopted, would require a change in an agency’s

proposed rule.’” City of Portland, Oregon v. EPA, 507

F.3d 706, 715 (D.C. Cir. 2007) (quoting Home Box

Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977)).

“[F]ailure to respond to comments is significant only

insofar as it demonstrates that the agency’s decision

was not based on a consideration of the relevant

factors.” Sherley, 689 F.3d at 784 (quotations and

citations omitted). “[T]he opportunity to comment is

meaningless unless the agency responds to significant

points raised by the public.” Id. (quotations and

citation omitted).

The statute permits the USTR to “modify or

terminate any action” that is being taken pursuant to

section 301 “subject to the specific direction, if any, of

the President.” 19 U.S.C. § 2417(a)(1). Thus, in

accordance with State Farm, 463 U.S. at 43, the

President’s specific direction, if any, is a statutory

consideration for which the agency must account. The

statute also requires the USTR to consider whether

the burden on U.S. commerce for which action was

taken pursuant to section 301 has increased or

decreased, or whether the prior action taken pursuant

90a

to section 301(b) is no longer appropriate. See 19 U.S.C.

§ 2417(a)(1)(B), (C). Relatedly, section 301(b) informs

the agency’s rationale by providing that the USTR is

to exercise its discretionary authority to take all

“appropriate and feasible action” when a foreign

country is engaging in “an act, policy, or practice” that

is “unreasonable or discriminatory and burdens or

restricts United States commerce” with the aim of

obtaining the elimination of the unfair act, policy, or

practice. Id. § 2411(b). Thus, statutory factors relevant

to the USTR’s determination of whether and how to

modify its action include ensuring that appropriate

action is taken to eliminate discriminatory and

burdensome acts and the President’s specific direction,

if any.

The notices of proposed rulemaking (“NPRM(s)”)

reflected these considerations. In List 3 NPRM, the

USTR explained that the proposed supplemental

action accorded with the President’s direction as

reflected in his statement “direct[ing] the United

States Trade Representative to identify $200 billion

worth of Chinese goods for additional tariffs at a rate

of 10 percent” that would “go into effect” following

completion of “the legal process.” 83 Fed. Reg. at 33,609

(citing June 2018 Presidential Statement). The notice

also requested public comments:

with respect to any aspect of the proposed

supplemental action, including

• The specific tariff subheadings to be

subject to increased duties, including

whether the subheadings listed in the

Ann

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