Aluminum Rod Importer Seeks Judgment Challenging Four Exclusion Request Rejections
Importer Prysmian Cables and Systems, USA filed a motion for judgment June 5 after a host of its other claims against the U.S. were dismissed in January (see 2501220064). It said that the Commerce Department wrongly rejected two of its Section 232 exclusion requests by claiming an authority based on national security that it didn’t actually have and two more by treating prospective presidential proclamations as retrospective (Prysmian Cables and Systems v. U.S., CIT # 24-00101).
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In a January ruling, Court of International Trade Judge Stephen Vaden dismissed the importer’s claims regarding the Commerce Department’s refusal to grant 17 exclusion requests for aluminum rods. Prysmian argued that Commerce was required to perform a number of actions under 5 U.S.C. 706(1) before denying the requests, but the department failed to do so. Vaden found that the importer’s claims should have been brought instead under 706(2). He also ruled that most of Prysmian’s other claims were barred by the statute of limitations.
On June 5, the importer moved forward with its surviving claims regarding four exclusion request denials. It said that, for each request, it had shown by acknowledged “clear and unequivocal evidence” that the domestic industry didn’t produce enough of certain inputs to meet its needs.
First, it said that Commerce had been wrong to deny two of its requests regarding Russian-origin aluminum products based on “unauthorized national security considerations.” When President Donald Trump imposed his Section 232 aluminum tariffs and steel tariffs in 2018, his proclamations also directed that Commerce should grant exclusions for national security purposes, it noted. But that didn’t give the department the ability to deny requests for those purposes, it said.
It also said that the department cited Russia’s invasion of Ukraine as its “purported national security concern” for denying its requests. But Prysmian filed these two requests in November 2021, prior to the invasion, for merchandise that it already had purchased, it said. This meant that the denial wouldn’t have any economic impact on Russian producers, it argued.
And although Commerce did partly grant one of those requests, it didn’t extend the exclusion to Prysmian’s “importing agent,” Concord Resources Limited, the importer said. Prysmian requested by email that Concord be added as an importer of record (IOR) to the exclusion, but Commerce responded that it couldn’t because, by that point, the exclusion window had already closed. But the department couldn’t demonstrate that such a rule existed, the importer argued.
This was further shown in discussions between CBP and Commerce that had been placed on the administrative record, Prysmian said. In them, CBP asked whether Commerce had any such rule forbidding the addition of new importers of record after an exclusion request window had closed. Commerce answered that “Customs ultimately could refer to [unidentified] guidance from BIS regarding the prospective (and not retroactive) nature of IOR Changes,” the importer said.
Second, the department improperly denied two other exclusion requests in only a “generic ‘blast email,’” without actually conducting any inquiry into the requests or publishing a decision memo, Prysmian claimed.
Commerce based its ability to do so on two presidential proclamations, Proclamation 10895 and Proclamation 10896, which were issued on Feb. 10, 2025, and revoked the department’s ability to grant certain exclusion requests. But both proclamations were “clear” that they don’t apply retroactively, and Prysmian’s requests were submitted before they were made, the importer said.