Forced-Labor Tariffs Face a Separate APA Development Challenge
Importers say USTR had to assess economic development under the APA even if Section 301's express exception does not apply. DOJ contests that duty.
Primary lensTariff authority
Sub-topicForced-labor action
Evidence base9 records used
Use caseAuthority exposure review
The importers challenging the forced-labor tariffs argue that USTR's treatment of economic development can fail judicial review even if the government wins its preferred reading of Section 301. Their October 16 supplemental brief asks the Court of International Trade to treat development as a relevant factor that the agency had to consider under the Administrative Procedure Act, independently of the statute's express development safeguard. CIT, plaintiffs' October 16 supplemental brief, ECF 63, pp. 8-10
As of October 19, the showed no merits ruling. The distinction belongs in importer counsel's litigation-risk memo. A ruling that the statutory safeguard does not apply would answer one objection. Counsel would still need to see whether the court also rejects the claimed duty to consider development when judging a foreign import policy unreasonable. The October briefs sharpen the development argument in the . The challenged targets foreign economies' failure to impose and effectively enforce bans on imports made with forced labor. The filings do not change that action's terms.
The statutory choice leaves a disputed APA argument
DOJ says USTR used Section 301(d)(3)(A), the general definition of unreasonable foreign conduct. Its October 16 brief points to the original report's citation of that provision and argues that USTR's reasoning can be discerned from the report. It says the development safeguard in subparagraph (C) applies only to the labor practices described in (B)(iii). CIT, defendants' October 16 supplemental brief, ECF 62, pp. 1-5
The safeguard bars treating those practices as unreasonable if USTR determines that either specified labor-rights progress or the country's level of economic development satisfies the statutory condition. The parties dispute both its applicability and whether USTR must undertake the inquiry. 19 U.S.C. 2411(d)(3)(A)-(C)
Traverse's October 1 analysis examined that statutory choice. The supplemental briefs now expose a further issue. Even assuming the general provision can support the action, the plaintiffs contend that Congress's express treatment of development makes it relevant to USTR's assessment of labor-related conduct. They invoke ordinary review of agency reasoning to challenge the omission. Plaintiffs' supplemental brief, ECF 63, p. 9
Under their theory, USTR would have to assess a country's circumstances and explain its judgment. The court could require that assessment without finding that any country qualifies for the exception.
An omitted factor differs from an unanswered comment
The Supreme Court also emphasized that review is narrow and that judges may not substitute their judgment for the agency's. The unresolved issue here is whether economic development is a relevant factor for this particular determination, and whether USTR's treatment of it was adequate. Supreme Court, State Farm, 463 U.S. 29, 43
The plaintiffs expressly distinguish their argument from an allegation that USTR failed to respond to public comments. DOJ quotes their counsel's statement at oral argument that they were not bringing a failure-to-respond claim. DOJ uses that statement to oppose a comments claim. The plaintiffs continue to press the alleged omission as a different error. Defendants' brief, ECF 62, p. 6Plaintiffs' brief, ECF 63, p. 9
A significant comment can identify a factor the agency should consider. In HMTX, the Federal Circuit discussed reasoned explanation and the obligation to address significant comments together. The duties overlap, but the specific alleged error still matters. Federal Circuit, HMTX Industries v. United States, No. 23-1891, p. 28
Question in the development dispute
What remains disputed
Does Section 301's express safeguard apply?
Whether USTR's statutory route triggers subparagraph (C), and what that provision requires.
Did USTR omit a relevant factor?
Whether economic development required consideration under the APA even if USTR could proceed under (A).
Did USTR inadequately answer significant comments?
Whether that claim is presented, which comments required answers, and whether any error caused prejudice.
DOJ's defense goes beyond the oral-argument disclaimer. It argues that development could not require a different unreasonableness determination because USTR made no finding under (B)(iii) and therefore had no duty to make a development determination under (C). On that account, the APA does not expand the statutory inquiry. Defendants' supplemental brief, ECF 62, pp. 5-7
The plaintiffs must therefore establish why development remains legally relevant under the general authority they dispute. Their answer is that Congress identified it as important to evaluating labor practices. Whether that reasoning extends to the foreign import-policy omissions USTR investigated is the contested link. Saying that agency action is reviewable under the APA does not establish which factors the agency had to weigh.
DOJ also identifies development comments from Vietnam, Colombia and South Africa, and says the sample plaintiffs assert imports from only Vietnam among those three. It couples that point with the disclaimer and an asserted failure to show prejudicial error. That is DOJ's argument about the comments claim, not a ruling limiting the separate relevant-factor theory to those countries. Defendants' supplemental brief, ECF 62, pp. 6-7
USTR did address technical assistance and capacity building in its final action. It concluded that those measures alone were unlikely to eliminate the investigated practices and that tariff pressure could encourage action. USTR, final forced-labor tariff actions, 91 FR 47329 The question is whether that policy discussion adequately addresses the country-level development consideration the plaintiffs say the law required.
A finding of error would leave the remedy contested
Counsel should revise the litigation assessment when the court resolves the relevance and adequacy of USTR's development review. Before applying any court-ordered relief to the company's entries, counsel should check the order's operative terms and any stay. A decision requiring more agency analysis could leave collection in place.
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