Importers Vie for Rehearing in Section 301 Exclusion Case After Supreme Court Decision

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).

The Federal Circuit had said the Court of International Trade was right to dismiss ARP's and Harrison's case for lack of subject matter jurisdiction since a protest was not filed. The trade court said that it didn't 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 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 (see 2209060035).

ARP and Harrison say the West Virginia decision was not considered and that the Supreme Court decision is relevant to the present action. "The instant consolidated case is not a matter of 'life and breath' in the way West Virginia is," the brief said. "However, the investigation of the practices in China relative to U.S. Intellectual Property and the extent to which retaliation was necessary had and has implications that directly impact foreign relations, even world peace, international trade with China and potentially other nations, the U.S. economy, U.S. industry and U.S. labor. The ramifications are not only national but international."

The importers further argue that the Federal Circuit misapprehended the true nature of its case. As opposed to a "garden variety" CBP classification case, the action actually concerns CBP's efforts to "usurp" the U.S. Trade Representative's authority over the Section 301 exclusions and refund process -- an issue of first impression, the brief said. Along the lines of the EPA case, there is nothing in the statute to indicate that Congress has permitted CBP to substitute its decisions for USTR's, meaning the appellate court should reconsider its decision in light of this important precedent, the brief said.

"After a finding that retaliation was required, the USTR could not and cannot lightly allow CBP or any other federal agency carte blanche to substitute its/their decisions for those made by and within the exclusive authority of the USTR," ARP and Harrison argued. The importers also said that the decision "misapprehends USTR authority" since there is nothing in the law that would allow the agency to hand over its responsibilities to CBP to undo a granted Section 301 refund.