Forced-Labor Tariff Case Tests What USTR Can Repair on Remand · Traverse Analysis
Forced-Labor Tariff Case Tests What USTR Can Repair on Remand
The importers' September 18 reply challenges whether USTR can cure the alleged defects by explaining its original decision or must take new agency action.
The importers challenging the forced-labor tariffs want the Court of International Trade to reject an opportunity for USTR to rebuild its case while the duties remain in force. Their September 18 reply argues that the defects require new factfinding, beyond elaborating the agency's original reasoning. That is an argument for vacatur, not a conclusion the court has reached.
For in-house trade counsel, the useful task before the September 30 argument is to identify what a proposed correction would actually change. A longer explanation of the original decision, a different reason for that decision, and a new agency action are distinct possibilities. The choice matters to the duration of the dispute and to the tariff assumption in the business's cost forecast.
The dispute over what is missing
The forced-labor tariff action rests on about each investigated economy's failure to impose and effectively enforce an import prohibition. Plaintiffs dispute whether that practice was shown to burden U.S. commerce, a predicate for action under Section 301(b).
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The reply's claim is narrower than saying forced labor cannot harm U.S. trade. Plaintiffs contend USTR never demonstrated the necessary connection between each economy's import policy and an actual burden on American commerce. They expressly disclaim a requirement to calculate that burden precisely. On their account, additional prose cannot supply findings the investigation failed to establish.
DOJ disputes the premise. Its September 4 response defends the existing evidence and economic reasoning. If the court nevertheless finds deficiencies, the government asks for remand without vacatur, returning the matter to USTR while leaving the action in place. It cites both the possibility of correction and the disruption of removing tariffs that it says have encouraged foreign governments to adopt prohibitions.
HMTX gives USTR room to explain
The earlier litigation over China's List 3 and List 4A tariffs gives DOJ a substantial argument. Traverse's July analysis identified that precedent as a reason to expect remand to remain a possibility. The September reply now contests how much that opportunity could accomplish. In HMTX, the Federal Circuit upheld a remand that allowed USTR to explain its treatment of significant public comments. On remand, USTR had supplied the explanation that the Federal Circuit found sufficient to sustain those tariffs.
The opinion matters because it rejects an easy distinction between failure to explain and failure to consider. USTR's original notices had indicated relevant factors. The court allowed elaboration, relying on the notices, the solicitation of comments and the agency's choices about rates and exclusions. An incomplete express discussion did not establish that USTR had ignored the issue.
That is a substantial obstacle to treating every missing explanation in the current case as incurable. But HMTX concerned modifications to an earlier China action and a defect in responding to comments. It did not approve the 2026 findings about 60 economies. The comparison turns on whether the original forced-labor decision contains a foundation that further explanation can support.
New reasons require a different route
The Supreme Court's Regents decision supplies the governing distinction. An agency may give a fuller account of its reasoning when it acted. It may instead take new agency action, following the procedures that new action requires. The second route permits new reasons. The first does not permit an agency to preserve an old decision by attaching a different justification afterward.
Regents does not prohibit reopening an investigation or deciding again. Nor does it make a longer report inherently suspect. The question is what the report is doing. Does it explain the basis of the original determination, or make a determination the agency needs for a new action?
The following distinctions provide a way to read a possible remand order. They do not predict the court's findings or dictate whether the tariffs remain in force.
Issue identified by the court
Inquiry on remand
Remedy question still to resolve
Inadequate treatment of an originally indicated factor
Can USTR explain its original reasoning more fully?
Whether to retain the action during that work
A proposed rationale different from the original grounds
Does USTR need new agency action and its required procedures?
What happens to the challenged action meanwhile
Insufficient support for a required determination
What evidence and reconsideration does the order permit?
Whether the deficiency warrants vacatur
A finding of error is therefore only part of the litigation update. Counsel must also read the permitted scope of the agency's response.
Policy progress does not answer every record question
The distinction has practical force while USTR continues its diplomatic work. On September 15, the agency announced training for representatives of more than 50 trading partners, alongside country-specific technical assistance. It also reported that 12 additional economies had adopted prohibition measures by July.
Those developments can support a policy argument that pressure is producing responses. They do not, by themselves, establish that each original finding had sufficient support when made. Evidence offered about the disruption of vacatur performs a different function from evidence offered to justify the original tariff determination.
DOJ's remedy argument accordingly deserves separate evaluation. It asks the court to weigh the seriousness of any deficiency against the consequences of an interim change. Even if the court disagrees with some original reasoning, the government contends that an opportunity to correct it would preserve ongoing efforts. The court has to assess that request, rather than infer the remedy from the word “error.”
Read the order before changing the forecast
Oral argument is scheduled for September 30. The calendar supplies no decision deadline.
The next litigation memo should identify any error the court finds, the work it permits USTR to undertake, and the treatment of the tariffs during that work. A deadline to explain existing grounds and an instruction allowing a new determination would imply different agency tasks. Neither description alone tells the business when its duty payments change.
Counsel should tie any change in the duty forecast to the order's operative provisions on vacatur, the actions and entries it reaches, any stay, and applicable Customs instructions. A remand deadline alone gives the business no date for tariff relief.
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