throbber
Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 1 of 17
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`UNITED STATES COURT OF INTERNATIONAL TRADE
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`THE KRAFT HEINZ COMPANY,
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`Plaintiff,
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`UNITED STATES,
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`OFFICE OF THE UNITED STATES TRADE
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`REPRESENTATIVE; ROBERT E. LIGHTHIZER,
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`U.S. TRADE REPRESENTATIVE; U.S. CUSTOMS AND
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`BORDER PROTECTION; MARK A. MORGAN,
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`ACTING COMMISSIONER OF U.S. CUSTOMS AND
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`BORDER PROTECTION,
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`Defendants.
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`______________________________________________________)
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`Through its attorneys, Plaintiff, The Kraft Heinz Company (“Kraft Heinz”) alleges and
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`COMPLAINT
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`states as follows:
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`1.
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`Kraft Heinz brings this action to contest Defendants’ unlawful imposition and
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`collection of certain duties on its imported merchandise from the People’s Republic of China
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`pursuant to Section 301(b) of the Trade Act of 1974 ( “Trade Act”), 19 U.S.C. § 2411(b). See
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`Notice of Modification of Section 301 Action: China’s Acts, Policies, and Practices Related to
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`Rep. Sept. 21, 2018) (“List 3 Notice”); Notice of Modification of Section 301 Action: China’s
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`Technology Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 47,974 (U.S. Trade
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`Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`1
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`

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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 2 of 17
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`Innovation, 84 Fed. Reg. 22,564 (U.S. Trade Rep. Aug. 20, 2019) (“List 4 Notice”).1
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`Defendants’ imposition and collection of the List 3 and List 4A duties are inconsistent with the
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`statute, violate the Administrative Procedure Act (“APA”), and are otherwise contrary to law.
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`2.
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`Kraft Heinz therefore requests that this Court declare void ab initio Defendants’
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`imposition of the List 3 and List 4A duties and order Defendants to refund, with interest, the List
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`3 and List 4A duties that Kraft Heinz has paid.
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`JURISDICTION
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`3.
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`The Court has jurisdiction over this action contesting the imposition and
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`collection of the duties at issue pursuant to 28 U.S.C. § 1581(i)(1)(B), conferring exclusive
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`jurisdiction to this Court over any civil action against the United States, its agencies, or its
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`officers, arising out of any law providing for “tariffs, duties, fees, or other taxes on the
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`importation of merchandise for reasons other than the raising of revenue.”
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`STANDING
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`4.
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`Kraft Heinz is a U.S. importer of merchandise that has been or will be subject to
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`the additional ad valorem duties under List 3 and List 4A. Kraft Heinz is also a purchaser of
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`merchandise imported by its suppliers that has been or will be subject to the additional
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`duties. Kraft Heinz reimburses its suppliers for duties paid on such merchandise.
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`1 The Office of the U.S. Trade Representative (“USTR”) refers to the duties contested in
`this action as “List 3” and “List 4”, in light of the fact that USTR imposed a series of successive
`duties allegedly in connection to the same “action” taken pursuant to Section 301(b) of the Trade
`Act. List 4A refers to duties imposed on September 1, 2019 pursuant to the List 4 Notice. List
`4B refers to duties that were scheduled to be imposed on December 15, 2019 pursuant to the List
`4 Notice. List 4B duties were never imposed. The series of duties imposed is further described
`in the Statement of Facts, infra.
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`2
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`

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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 3 of 17
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`5.
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`Kraft Heinz has paid duties, or reimbursed suppliers for such duties, on
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`merchandise included in List 3 and List 4A. Defendants’ imposition and collection of these
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`duties is unlawful. These unlawful duties, therefore, have affected adversely and aggrieved Kraft
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`Heinz within the meaning of the APA, 5 U.S.C. § 702. Accordingly, Kraft Heinz has standing to
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`commence this action. See 28 U.S.C. § 2631(i) (“Any civil action of which the Court of
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`International Trade has jurisdiction . . . may be commenced in the court by any person adversely
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`affected or aggrieved by agency action within the meaning of Section 702 of Title 5.”).
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`TIMELINESS
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`6.
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`This cause of action accrued, at the earliest, upon USTR’s publication of the List
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`3 and List 4 notices imposing the List 3 and List 4A duties on September 21, 2018 and August
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`20, 2019. Accordingly, this action is timely because Kraft Heinz commenced this action “in
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`accordance with the rules of the court within two years after the cause of action first accrue[d].”
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`28 U.S.C. § 2636(i).
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`RELEVANT LAW
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`7.
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`Section 301(b) of the Trade Act authorizes USTR to investigate whether a “an act,
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`policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts
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`United States commerce.” 19 U.S.C. § 2411(b).
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`8.
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`If USTR’s finding is affirmative, Section 301(c)(1)(B) permits USTR to impose
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`special duties on imports from the foreign country subject to investigation. Id. § 2411(c)(1)(B).
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`Section 304(a)(2)(B) requires USTR to determine whether to impose import restrictions in light
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`of any affirmative determination within “12 months after the date on which the investigation is
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`3
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 4 of 17
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`initiated.” Id. § 2414(a)(2)(B). The Trade Act does not authorize USTR to increase or expand
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`duties imposed under Section 301(b) outside of the 12-month time limit.
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`9.
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`In relevant part, Section 307(a)(1) of the Trade Act permits USTR to “modify or
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`terminate” the action taken pursuant to Section 301(b) where “the burden or restriction on United
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`States commerce . . . of the acts, policies, and practices, that are the subject of such action has
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`increased or decreased,” or where the action “is no longer appropriate.” Id. § 2417(a)(1)(B), (C).
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`10.
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`Before modifying any action pursuant to Section 307, however, USTR must, inter
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`alia, “provide opportunity for the presentation of views” of interested parties “affected by the
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`proposed modification . . . concerning the effects of the modification . . . and whether any
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`modification . . . of the action is appropriate.” Id. § 2417(a)(2). Modification, “as applied to any
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`duty or other import restriction, includes the elimination of any duty or other import restriction.”
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`19 U.S.C. § 2481(6).
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`11.
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`The authority granted by Section 307 to modify an action taken under Section
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`301(b) does not authorize USTR to impose entirely new duties. Reading USTR’s modification
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`authority in Section 307(a) as a license to impose entirely new duties outside of the 12-month
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`time limit envisioned in 304(a)(2)(B) would create an unintended and unauthorized loophole
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`allowing USTR to circumvent the carefully calibrated, procedurally intricate process that
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`Congress required for imposing duties pursuant to Section 301(b).
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`12. When Congress intended to grant USTR the authority to include additional goods
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`subject to an action taken pursuant to Section 301 after duties were imposed, it said so explicitly.
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`For example, in the context of actions taken under Section 301(a), Congress referred to “taking
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`further” action, or revising the action “to affect other goods” —not to “modifying” the action.
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`4
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 5 of 17
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`See 19 U.S.C. § 2416(b)(1) (“the Trade Representative shall determine what further action the
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`Trade representative shall take under section 2411(a) of this title. For purposes of Section 2411
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`2414(a)(1) of this title); see also id. § 2416(b)(2)(B) (where a country fails to implement “the
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`of this title, any such determination shall be treated as a determination made under section
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`recommendation made pursuant to a dispute settlement proceeding under the World Trade
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`Organization, the Trade Representative shall periodically revise the list or action to affect other
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`goods” of that country.).
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`Initial Investigation and List 1 and 2 Duties
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`STATEMENT OF FACTS
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`13.
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`On August 14, 2017, President Trump directed USTR to consider initiating an
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`investigation pursuant to Section 301(b) of the Trade Act concerning China’s laws, policies,
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`practices and actions related to intellectual property, innovation, and technology. See Addressing
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`China’s Laws, Policies, Practices, and Actions Related to Intellectual Property, Innovation, and
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`Technology, 82 Fed. Reg. 39,007 (Aug. 17, 2017).
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`property practices on August 18, 2017. See Initiation of Section 301 Investigation; Hearing; and
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`14.
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`USTR initiated the investigation into Chinese technology transfer and intellectual
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`Request for Public Comments: China’s Acts, Policies, and Practices Related to Technology
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`Transfer, Intellectual Property, and Innovation, 82 Fed. Reg. 40,213 (Aug. 24, 2017).
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`15.
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`On March 22, 2018, USTR released its report announcing the results of its
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`investigation. See Office of the U.S. Trade Representative, Findings of the Investigation into
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`China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`5
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 6 of 17
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`Innovation Under Section 301 of the Trade Act of 1974 (Mar. 22, 2018).2 The report concluded
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`that the investigated practices of the Chinese government are unreasonable and discriminatory
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`and burden or restrict U.S. commerce. See id. at 47.
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`16.
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`On March 22, 2018, USTR also published a “Fact Sheet” stating that “[a]n
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`interagency team of subject matter experts and economists' estimates that China’s policies result
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`in harm to the U.S. economy of at least $50 billion per year.” Office of the U.S. Trade
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`Representative, Section 301 Fact Sheet (Mar. 22, 2018).3 The Fact Sheet stated that USTR
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`would “propose additional tariffs” of 25 percent ad valorem “on certain products of China, with
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`an annual trade value commensurate with the harm caused to the U.S. economy resulting from
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`China’s unfair policies.” Id.
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`17.
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`On April 6, 2018 USTR published a Notice of Determination and Request for
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`Public Comment Concerning Proposed Determination of Action Pursuant to Section 301:
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`China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`Innovation, 83 Fed. Reg. 14,906 (April 6, 2018). In the notice, USTR identified a list of
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`products with a total value of approximately $50 billion on which it proposed to impose
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`additional duties and set a period for comment and a public hearing on the proposed list. See id.
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`USTR stated that “[t]he value of the list is approximately $50 billion in terms of estimated
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`annual trade revenue value for calendar year 2018. This level is appropriate both in light of the
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`2 USTR’s report is available at https://ustr.gov/sites/default/files/
`Section%20301%20FINAL.PDF.
`3 USTR’s Fact sheet is available at https://ustr.gov/about-us/policy-offices/press-
`office/fact-sheets/2018/march/Section-301-fact-sheet.
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`6
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`

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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 7 of 17
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`estimated harm to the U.S. economy, and to obtain elimination of China’s harmful acts, policies,
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`and practices.” Id. at 14,907.
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`18.
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`After taking comment from interested parties, on June 20, 2018, USTR published
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`Notice of Action and Request for Public Comment Concerning Proposed Determination of Action
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`Pursuant to Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer,
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`Intellectual Property, and Innovation, 83 Fed. Reg. 28,710 (June 20, 2018), imposing an
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`additional 25 percent ad valorem duty on approximately $34 billion in listed imports from China,
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`which USTR refers to as “List 1” duties. USTR stated that it had removed approximately $16
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`billion worth of imports from its proposed list in response to input from the public during the
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`notice-and-comment process. See id. at 28,712. In light of the removal of certain products from
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`the initial proposed list, USTR proposed an additional list of $16 billion in imports, stating that
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`“[i]ncluding these tariff subheadings in the Section 301 action would maintain the effectiveness
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`of a $50 billion trade action.” Id.
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`19.
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`On August 16, 2018, USTR published Notice of Action Pursuant to Section 301:
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`China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`Innovation, 83 Fed. Reg. 40,823-24 (Aug. 16, 2018), imposing an additional 25 percent ad
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`valorem duty on approximately $16 billion in imports from China. USTR refers to these as “List
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`2” duties. The August 16, 2018 notice reiterated that the List 2 duties would “maintain the
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`effectiveness of a $50 billion trade action.” Id.
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`List 3 Duties
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`20.
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`In response to the List 1 and List 2 duties, China announced retaliatory duties on
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`imports of U.S. products. See U.S. Trade Representative, Statement by U.S. Trade
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`7
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 8 of 17
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`Representative Robert Lighthizer on Section 301 Action (July 10, 2018) (“Lighthizer July 10,
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`2018 Statement”).4
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`21.
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`In response to China’s retaliation, USTR proposed on July 17, 2018, to take
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`“supplemental action,” to impose duties of 10 percent ad valorem on approximately $200 billion
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`in additional Chinese-origin products. Request for Comments Concerning Proposed
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`Modification of Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to
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`17, 2018); USTR set dates for public comment, a public hearing, and post-hearing rebuttal
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`Technology Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 33,608, 33,609 (July
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`comments. See Lighthizer July 10, 2018 Statement.
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`22.
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`Subsequently, USTR proposed “raising the level of the additional duty in the
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`proposed supplemental action from 10 percent to 25 percent.” Extension of Public Comment
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`Period Concerning Proposed Modification of Action Pursuant to Section 301: China’s Acts,
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`Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83
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`Fed. Reg. 38,760 (Aug. 7, 2018). USTR also set new dates for the public hearing and changed
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`the comment deadlines to make affirmative and rebuttal comments due on the same day. See id.
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`At the public hearing, held from August 20, 2018, through August 27, 2018, parties were limited
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`to only five minutes of testimony. Approximately 350 witnesses appeared at the hearing, and
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`USTR received over 6,000 comments from the public.
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`23.
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`On September 17, 2018 President Trump announced that he had directed USTR to
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`impose 10 percent additional duties on $200 billion of imports from China. See The White
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`4 Ambassador Lighthizer’s July 10, 2018 statement is available at https://ustr.gov/about-
`us/policy-offices/press-office/press-releases/2018/july/statement-us-trade-representative.
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`8
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 9 of 17
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`House, Statement from the President (Sept. 17, 2018).5 President Trump claimed that the
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`additional duties were tied to “China’s decision to “impose new tariffs in an effort to hurt the
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`United States economy,” and acknowledged that “[w]e are taking this action today as a result of
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`the Section 301 process that the USTR has been leading for more than 12 months.” Id.
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`(emphasis supplied).
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`24.
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`USTR published the final list of the affected products subject to the additional
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`duties covering $200 billion in imports on September 21, 2018, commonly referred to as List 3.
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`See List 3 Notice, 83 Fed. Reg. at 47,974. USTR’s notice was issued more than 12 months after
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`the initiation of the investigation on August 24, 2017. USTR did not provide any substantive
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`analysis of any of the more than 6,000 comments that it received or any of the testimony
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`provided by more than 350 witnesses, beyond stating that it had made certain adjustments to
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`List 3. USTR also provided no substantive response to parties’ comments regarding the adverse
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`effects of the proposed modification, nor did it provide any substantive explanation for rejecting
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`parties’ views that the proposed modification was inappropriate. See id.
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`25.
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`In the List 3 Notice, USTR claimed that “China’s unfair acts, policies, and
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`practices include not just its technology transfer and IP polices referenced in the notice of
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`initiation in the investigation, but also China's subsequent defensive actions taken to maintain
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`those unfair acts, policies, and practices as determined in that investigation.” Id. Therefore, in
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`the List 4 Notice, USTR conceded that it imposed additional duties based, at least in part, on
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`“unfair acts, policies, and practices” not subject to the underlying original investigation. USTR
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`provided no explanation as to how the List 3 duties were commensurate with these additional
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`5 President Trump’s September 17, 2018 statement is available at
`www.whitehouse.gov/briefings-statements/statement-from-the-president-4/.
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`9
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 10 of 17
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`alleged unfair acts, policies, and practices, or how the statute conferred USTR with the authority
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`to “modify” the Section 301(b) action based on acts, policies, and practices not identified or
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`addressed in the original investigation.
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`26.
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`In contrast to the analysis provided in the List 1 and List 2 Notices, USTR
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`provided no qualitative or quantitative analysis in the List 3 Notice demonstrating that its
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`imposition of the List 3 duties was commensurate with the alleged “increased burden” on U.S.
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`Commerce. USTR also stated, in a conclusory manner, that Chinese retaliation made the
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`existing action no longer “appropriate.” Id. However, USTR did not provide any substantive
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`analysis as to how the List 3 duties on an additional $200 billion in imports would render the
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`purported “modification” to the measure “appropriate.”
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`27.
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`On May 9, 2019, USTR announced that it would increase the tariff rate applicable
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`to List 3 goods from 10 percent to 25 percent. See Notice of Modification of Section 301 Action:
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`China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`Innovation, 84 Fed. Reg. 20,459 (May 9, 2019). The notice cited China’s decision to “retreat
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`from specific commitments agreed to in earlier rounds” of negotiations as the basis for the
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`increase in the duty rate. Id. USTR did not seek public comment on the rate increase, and failed
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`to provide any explanation or analysis as the increased duties were commensurate with or
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`otherwise appropriate as a response to the “unfair acts, policies, and practices” identified in the
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`underlying USTR investigation. Id.
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`List 4 Duties
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`28.
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`On May 17, 2019, USTR announced its intention to proceed with the
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`implementation on a fourth list of Section 301 duties on $300 billion in additional products. See
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`10
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 11 of 17
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`Request for Comments Concerning Proposed Modification of Action Pursuant to Section 301:
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`China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`Innovation, 84 Fed. Reg. 22,564 (May 17, 2019). USTR claimed that it was proposing to impose
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`the List 4 duties “[i]n light of China’s failure to meaningfully address the acts, policies, and
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`practices that are subject to this investigation and its response to the current action being taken in
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`this investigation,” even though the investigation had concluded on March 28, 2018, well over a
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`year prior to the notice. Id. USTR set a public hearing and invited comments on the proposed
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`List 4 duties. See id.
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`29.
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`At the public hearing, held from June 17, 2019, through June 25, 2019, parties
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`again were limited to only five minutes of testimony. Hundreds of witnesses appeared at the
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`hearing, and USTR received over 3,000 comments from the public.
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`30.
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`On August 20, 2019, USTR announced that it would implement duties of 10
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`percent ad valorem on approximately $300 million in List 4 goods in two phases, i.e., “List 4A
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`and List 4B.” List 4 Notice, 84 Fed. Reg. at 43,304. USTR imposed ad valorem duties of 10
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`percent on approximately $120 billion, effective September 1, 2019. See id. List 4B, to become
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`effective on December 15, 2019, would impose duties of 10 percent ad valorem on the remaining
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`$180 billion worth of imports. See id. The August 20, 2019, List 4 Notice was published nearly
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`two years after the initiation of the investigation on August 24, 2017. USTR provided no
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`substantive analysis of parties’ comments or hearing testimony submitted in opposition to
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`imposition of the List 4 duties.
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`31.
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`USTR claimed in the List 4 Notice that “[t]he burden or restriction on United
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`States commerce of the acts, policies, and practices that are the subject of the Section 301 action
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`11
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 12 of 17
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`continues to increase.” Id. However, USTR provided no substantive analysis as to the extent of
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`the increase in the burden alleged, or whether the 10 percent ad valorem duties on $300 billion in
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`additional goods was proportional to the alleged increase.
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`32.
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`As it did in the List 3 Notice, USTR also claimed in the List 4 Notice that
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`“China's unfair acts, policies, and practices include not just its technology transfer and IP polices
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`referenced in the notice of initiation in the investigation, but also China’s subsequent defensive
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`actions taken to maintain those unfair acts, policies, and practices as determined in that
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`investigation.” Id. USTR also pointed to China’s alleged failure to meet commitments made
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`during trade negotiations, and alleged devaluation of the Chinese yuan. See id. USTR provided
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`no explanation as to how the List 4 duties were commensurate with these additional alleged
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`unfair acts, policies, and practices, or how the statute conferred on USTR the authority to
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`“modify” the Section 301(b) action based on acts, policies, and practices not identified or
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`addressed in the original investigation.
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`33.
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`On August 30, 2019, USTR announced that it would increase the tariff rate
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`applicable to List 4A and List 4B goods from 10 percent to 15 percent. See Notice of
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`Modification of Section 301 Action: China’s Acts, Policies, and Practices Related to Technology
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`Transfer, Intellectual Property, and Innovation, 84 Fed. Reg. 45,821 (Aug. 30, 2019). USTR
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`stated in the August 30 notice that it was increasing the rate of duty because China responded to
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`USTR’s announcement of the List 4 duties by imposing additional retaliatory duties on U.S.
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`imports. See id. USTR also pointed to China’s alleged failure to honor commitments made
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`during negotiations, and alleged devaluation of its currency. See id.
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`12
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 13 of 17
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`34.
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`On December 18, 2019, USTR published a notice in the Federal Register stating
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`that it would “suspend indefinitely the imposition of additional duties of 15 percent on products
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`of China covered by” List 4B. Notice of Modification of Section 301 Action: China’s Acts,
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`Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 84
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`Fed. Reg. 69,447 (Dec. 18, 2019). List 4B remains suspended as of the date of filing of this
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`Complaint.
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`35.
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`On January 22, 2020, USTR reduced the duties applicable to List 4A goods from
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`15 percent to 7.5 percent. See Notice of Modification of Section 301 Action: China’s Acts,
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`Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 85
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`Fed. Reg. 3,741 (Jan. 22, 2020). The 7.5 percent duties applicable to List 4A remains in effect as
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`of the date of filing of this Complaint.
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`STATEMENT OF CLAIMS
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`COUNT I: DECLARATORY JUDGMENT
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`36.
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`37.
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`Paragraphs 1 through 35 of this Complaint are incorporated herein by reference.
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`The Court may “declare the rights and other legal relations of any interested party
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`seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. §
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`2201(a).
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`38.
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`USTR failed to articulate a rational connection between the imposition of the
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`Section 301 duties on Chinese products covered by List 3 and List 4A and the acts or policies
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`found in its report to “burden or restrict” U.S. commerce, as required by 19 U.S.C. § 2411(b)(1).
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`13
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`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 14 of 17
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`39.
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`USTR failed to take action to impose duties on List 3 and List 4 products from
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`China within the 12-month period required by 19 U.S.C. § 2414(a)(1)(B) and (2)(B).
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`40.
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`USTR failed to articulate any basis—much less a reasoned basis—for its finding
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`that the burden on U.S. commerce from the investigated unfair policies or practices increased as
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`a result of China’s reaction to the Section 301 tariffs. USTR may not increase the duties assessed
`
`in furtherance of Section 301(b) for reasons other than the acts, policies, or practices that were
`
`found to burden U.S. commerce in the underlying investigation. Nor may USTR impose duties
`
`that are significantly disproportionate to the alleged burdens on U.S. commerce on which those
`
`duties are based, as USTR has done under List 3 and List 4.
`
`41.
`
`Section 301(b) actions may be modified when no longer appropriate. See 19
`
`U.S.C. § 2417(a)(1)(C). But this authorization does not permit USTR to increase an existing
`
`remedy action. Rather, the statute provides authority only to decrease, remove, or suspend the
`
`action. See 19 U.S.C. § 2481(6). USTR’s attempt to assert its modification authority as a basis
`
`to impose new duties on additional goods is thus contrary to the statute.
`
`42.
`
`Kraft Heinz is, therefore, entitled to a declaratory judgment that the duties
`
`imposed on products of China covered by List 3 and List 4A are contrary to law and void ab
`
`initio.
`
`COUNT II: APA VIOLATION
`
`43.
`
`Paragraphs 1 through 42 of this Complaint are incorporated herein by reference.
`
`44.
`
`The Administrative Procedure Act provides, in relevant part, that this Court
`
`invalidate any final agency action that is “arbitrary, capricious, an abuse of discretion, or
`
`14
`
`

`

`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 15 of 17
`
`otherwise not in accordance with law,” “in excess of statutory . . . authority,” or without
`
`observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
`
`45.
`
`USTR’s imposition of List 3 and List 4 duties more than 12 months after the
`
`initiation of the investigation is in excess of statutory authority and without observance of
`
`procedure required by law.
`
`46.
`
`USTR’s imposition of List 3 and List 4 duties—for reasons unrelated to China’s
`
`acts, policies, and practices related to technology transfer, intellectual property, and innovation as
`
`identified in the underlying investigation, and to an extent significantly disproportionate to the
`
`alleged burdens on U.S. commerce on which those duties are based —is in excess of statutory
`
`authority and is arbitrary, capricious, and an abuse of discretion.
`
`47.
`
`USTR’s imposition of List 3 and List 4 duties was arbitrary and capricious
`
`because USTR did not provide meaningful opportunity to comment, failed to consider relevant
`
`factors when making its decision, and failed to draw a rational connection between the facts
`
`found and the choices made.
`
`REQUEST FOR RELIEF
`
`
`
`For the foregoing reasons, Kraft Heinz respectfully requests that this Court:
`
`Declare the imposition and collection of List 3 and List 4A duties to be
`
`Order Defendants to refund, with interest as provided by law, all duties paid
`
`15
`
`contrary to law and, therefore, void ab initio;
`Vacate the List 3 and List 4A actions;
`by Kraft Heinz and its suppliers in accordance with List 3 and List 4A;
`
`1.
`
`2.
`
`3.
`
`

`

`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 16 of 17
`
`4.
`
`Permanently enjoin Defendants from collecting further duties on
`
`importations by Kraft Heinz and its suppliers pursuant to List 3 and List 4A.
`
`5.
`
`Grant such other relief as the Court may deem just and proper.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/s/ Lynn M. Fischer Fox
`Lynn M. Fischer Fox
`J. David Park
`Michael T. Shor
`Henry Almond
`Daniel Wilson
`Leslie C. Bailey
`
`Counsel to The Kraft Heinz Company.
`
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 MASSACHUSETTS AVENUE, N.W.
`WASHINGTON, D.C. 20001
`PHONE: (202) 942-5601
`FAX: (202) 942-5999
`Lynn.FischerFox@arnoldporter.com
`
`Dated: September 21, 2020
`
`16
`
`

`

`Case 1:20-cv-03021-N/A Document 2 Filed 09/21/20 Page 17 of 17
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to U.S. Court of International Trade Rule 4(b) and (h), I hereby certify that on
`
`September 21, 2020, I caused copies of Plaintiff’s Summons and Complaint to be served on the
`
`following parties by certified mail, return receipt requested:
`
`Attorney-In-Charge
`International Trade Field Office
`Commercial Litigation Branch
`U.S. Department of Justice
`26 Federal Plaza
`New York, NY 10278
`
`General Counsel Joseph L. Barloon
`Office of the General Counsel
`Office of the U.S. Trade Representative
`600 17th Street, NW
`Washington, DC 20006
`
`Attorney-In-Charge
`Commercial Litigation Branch
`U.S. Department of Justice
`1100 L Street, NW
`Washington, DC 20530
`
`
`Chief Counsel Scott K. Falk Office
`of Chief Counsel
`U.S. Customs & Border Protection
`1300 Pennsylvania Ave., NW
`Washington, DC 20229
`
`
`/s/ Lynn Fischer Fox
`Lynn Fischer Fox
`
`
`
`
`
`
`
`
`

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