Importer Says US Mischaracterizes Its Claims in Suit on Section 232 Exclusion Denials
The U.S. conflated importer Prysmian Cables and Systems' claims that the Commerce Department improperly denied its requests for Section 232 steel tariff exclusions with its claim that Commerce failed to "perform certain mandatory and discrete actions in responding" to the requests, Prysmian argued in its response to the government's motion to partially dismiss the case (Prysmian Cables and Systems v. U.S., CIT # 24-00101).
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Prysmian brought the suit to challenge 17 exclusion denials made from 2019 to 2023. The importer amended its complaint to ultimately make two types of claims. The first claim falls under 5 U.S.C. 706(1) and says that Commerce failed to conduct "legally required actions" in responding to the exclusion requests by not applying "legally mandated eligibility criteria to the record evidence," use reasoned decisions responsive to the presented facts and tell CBP to refund previously paid tariffs.
The second claim falls under Section 706(2) and says that even if Commerce wasn't legally required to carry out its duties, its refusal to grant the exclusion requests is arbitrary and capricious under the Administrative Procedure Act. Section 706 concerns the scope of suits challenging agency action.
The U.S. moved to dismiss the amended complaint, arguing that the Section 706(1) claims fail because the U.S. Supreme Court has said an agency's denial of a petition amounts to action rather than inaction redressable under this statute (see 2410310054). In response, Prysmian said Commerce mischaracterizes its claim, conflating the Section 706(2) claims, which challenge the "improper denials" of the exclusion requests, with the 706(1) claims, which contest the agency's alleged failure to carry out the mandatory and discrete actions.
The government also sought dismissal of all but two of Prysmian's Section 706(2) claims on the grounds that they are barred by the two-year state of limitations established by Section 2636(i). The importer said in response that the government ignores that while some of the denials took place over two years before Prysmian initiated this case, the agency's "ongoing and persistent refusal to grant Prysmian the exclusions to which it is unambiguously entitled persists to this day and is independently actionable."
In addition, the Section 706(2) claims are covered by Section 2640's six-year statute of limitations and not by the two-year statute of limitations in Section 2636(i).