The Supreme Court's decision in West Virginia v. EPA demands that the U.S. Court of Appeals for the Federal Circuit reconsider its decision finding that a protest with CBP is needed to retroactively apply Section 301 duty exclusions, the appellants and importers ARP Materials and Harrison Steel Castings argued in an Oct. 4 brief. Seeking reconsideration at the appellate court, ARP and Harrison said that the Federal Circuit's opinion does not consider the EPA case, which embraced the "major questions doctrine" -- the idea that federal agencies need explicit congressional approval to regulate issues fundamental to the economy (ARP Materials v. United States, Fed. Cir. #21-2176).
U.S. Trade Representative Katherine Tai said she had an informal dialogue about the World Trade Organization dispute settlement system with representatives from Argentina, Brazil, Cambodia, India and South Africa. Tai was in Bali, Indonesia, for a G-20 trade ministers meeting, and the discussion happened on the sidelines of that meeting.
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A text-only order Sept. 15 of the three-judge panel at the Court of International Trade granted the motion for leave filed by three importers to enter into the record of the Section 301 litigation their previously unexpected amicus brief in the Section 301 litigation (see 2209140054). Verifone, Drone Nerds and Specialized Bicycle Components argued in the brief for the lists 3 and 4A tariffs to be vacated for Administrative Procedure Act violations at the Office of the U.S. Trade Representative that remain uncured after the agency filed its Aug. 1 remand determination. The three importers are “interested parties” to the litigation, as they are “individual claimants” among the thousands of Section 301 lawsuits filed, and because they “do business in and with China,” their motion said (In Re Section 301 Cases, CIT #21-00052).
The Court of International Trade in its April 1 remand order gave the Office of the U.S. Trade Representative “one final opportunity” to cure its Administrative Procedure Act violations and "flesh out" the reasons why it rejected the 9,000+ comments it received in the lists 3 and 4A Section 301 tariff rulemakings, without devising “new rationales for dismissing them,” Akin Gump lawyers for lead Section 301 plaintiffs HMTX Industries and Jasco Products said in comments on USTR’s Aug. 1 remand determination. “USTR’s response to that directive flunks the Court’s test,” they said (In Re Section 301 Cases, CIT #21-00052).
The Court of International Trade “bent over backwards” to allow the Office of the U.S. Trade Representative to comply with its Administrative Procedure Act obligations in its imposition of the lists 3 and 4A Section 301 tariffs on Chinese goods when it remanded the duties to the agency for further explanation on the rationale for the actions it took in the context of the comments it received, said an amicus brief filed Sept. 14 in the massive Section 301 litigation from the Retail Litigation Center, CTA, the National Retail Federation and four other trade associations. With USTR’s “non-responsive” answer to the remand order, the time has come for the court “to impose the normal remedy for unlawful agency action” and to vacate the lists 3 and 4A tariffs, it said (In Re Section 301 Cases, CIT #21-00052).
Micah Myers, former senior associate general counsel at the Office of the U.S. Trade Representative, joined Cozen O'Connor as a member of its Washington D.C. office, the firm announced. At USTR, Myers worked on various international trade negotiations, World Trade Organization disputes and proceedings as part of the USMCA labor enforcement team. Myers will advise clients on international trade issues including litigation, administrative proceedings and other matters, the firm said.
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The U.S. Court of Appeals for the Federal Circuit in a Sept. 6 opinion said that the Court of International Trade was right to dismiss a suit from two importers seeking to retroactively apply Section 301 tariff exclusions, for lack of subject matter jurisdiction since a protest with CBP was not filed. The trade court held that it did not have jurisdiction under Section 1581(i), the court's "residual" jurisdiction, since the court would have had jurisdiction under Section 1581(a) had the importers, ARP Materials and Harrison Steel Castings, filed protests with CBP. The Federal Circuit agreed, holding that the true nature of the suit contests CBP's assessment of the duties and not the Office of the U.S. Trade Representative's exclusions, necessitating a protest.
The Court of Appeals for the Federal Circuit in a Sept. 6 opinion said the Court of International Trade was right to toss a suit from two importers seeking to retroactively apply Section 301 tariff exclusions. The trade court held that it did not have subject-matter jurisdiction under Section 1581(i) but would have had jurisdiction under Section 1581(a) had the importers, ARP Materials and Harrison Steel Castings, filed protests with CBP. The Federal Circuit agreed, holding that the suit contests CBP's assessment of the duties and not USTR's exclusions and the importers had ample chance to file a protest as ARP's exclusions were granted months before the deadline to file a protest for the relevant entries. The court ruled that Harrison's entries, which were granted exclusions beyond the 180-day deadline to file a protest, also would have had the chance to request a refund via a post summary correction, making Section 1581(a) the proper jurisdiction for the challenge.