The Court of International Trade issued a May 17 opinion addressing two cases brought by Voestalpine USA and Bilstein Cold Rolled Steel, the importer and purchaser of entries subject to Section 232 steel and aluminum tariffs, respectively. The cases both concern reliquidation requests on various steel entries without the Section 232 duties, based on the Commerce Department's Bureau of Industry and Security's approval of exclusion requests. The exclusions each originally contained an invalid Harmonized Tariff Schedule subheading, but by the time the error was discovered in both cases, CBP had liquidated the entries with the duties.
Section 232 Exclusions
Companies that import steel and aluminum goods that are subject to Section 232 tariffs may seek exclusions from these tariffs for their products with the Commerce Department's Bureau of Industry and Security. Oftentimes, these exclusion requests will be rejected, particularly where a domestic U.S. steel or aluminum company can demonstrate that they are capable of making the importer's products in sufficient quantity and quality. After an exclusion request has been denied, the importer challenge this decision at the Court of International Trade. Frequently, these challenges will be referred to mediation before a CIT judge, however, cases that proceed to litigation will involve evidentiary disputes regarding the U.S. companies' manufacturing capacity and quality.
The Court of International Trade granted steel company NLMK Pennsylvania's request to file a second amended complaint in its challenge to the Commerce Department's denials of the company's Section 232 steel and aluminum tariff exclusion requests. The amended complaint tacks on two additional entries that were denied the Section 232 exclusions since they cover the same products. The motion went unopposed from the U.S. (NLMK Pennsylvania LLC v. United States, CIT #21-00507).
The Commerce Department reversed course on 45 Section 232 steel and aluminum tariff exclusion bids, granting the requests on remand at the Court of International Trade. Submitting the results of its voluntary remand request in an April 18 submission, Commerce's Bureau of Industry and Security granted importer Mirror Metals' exclusion requests, finding that the bids should be granted after looking at whether the relevant steel article could be made at a sufficient level in the U.S. (Mirror Metals v. United States, CIT #21-00144).
Three judges at the U.S. Court of Appeals for the Federal Circuit probed the question of whether a group of U.S. steel companies, led by U.S. Steel Corp., could intervene in a spate of cases challenging the Commerce Department's decision to deny certain importers exclusions to Section 232 steel and aluminum duties. During an April 7 oral argument, Chief Judge Kimberly Moore and Judges Pauline Newman and Todd Hughes expressed serious doubt as to whether the steel companies could join the exclusion challenges (California Steel Industries v. United States, Fed. Cir. #21-2172).
U.S. steel manufacturer Maverick Tube lied to the Commerce Department when it objected to importer Maple Leaf Marketing's Section 232 steel and aluminum tariff exclusion requests, MLM told the Court of International Trade in a March 18 brief. As such, Commerce's Bureau of Industry and Security's decision to deny these requests cannot be sustained, MLM argued. It urged the trade court to remand the case so Commerce can add communications the agency had with a subject matter expert on whose word the exclusion requests were denied (Maple Leaf Marketing v. United States, CIT #20-00125).
The U.S. District Court for the Western District of Pennsylvania dismissed a case brought by steel company NLMK Pennsylvania and Indiana alleging that U.S. Steel lied to the Commerce Department to get NLMK's requests for exclusions from Section 232 steel and aluminum tariffs denied. Judge William Stickman said it's unclear whether NLMK submitted a viable claim of unfair competition under Pennsylvania state law, but even if it did, federal law preempts the claim (NLMK Pennsylvania v. U.S. Steel Corporation, W.D. Pa. #21-00273).
The Court of International Trade extended the mediation period for a case brought by Evraz challenging the Commerce Department's denial of the importer's Section 232 steel and aluminum tariff exclusion requests. In the March 15 order, the trade court gave the parties until April 29 to resolve litigation led by Judge Leo Gordon. Evraz called for mediation, along with other litigants, to discuss the availability of a remedy for already liquidated entries (Evraz Inc. v. United States, CIT #20-03869).
The Court of International Trade granted steel importer North American Interpipe refunds on Section 232 steel and aluminum duties it paid following court mediation over the company's challenge to the U.S.'s denials of NAI's exclusion requests from the tariffs. Per the public stipulated judgment on agreed-upon fact, Judge M. Miller Baker penned an order which declares that NAI may not appeal (North American Interpipe v. United States, CIT #20-03825).
The Court of International Trade dismissed three customs cases brought by California importer Mirror Metals in a series of three orders for lack of prosecution. All three cases were filed in February 2020 and concern CBP's assessment of Section 232 steel and aluminum tariffs on the company's various metal articles. Filed under Section 1581(a), the cases contested the Commerce Department's Bureau of Industry and Security's denial of Mirror Metals' exclusion requests (Mirror Metals v. U.S., CIT #20-00039, -00040, -00041). While the importer has two other nearly identical cases filed at CIT, it also has a case filed under Section 1581(i), the trade court's "residual" jurisdiction, to contest the BIS exclusion denials that the court has found to be the proper jurisdictional outlet. Most recently in that case, the trade court remanded the denials to BIS for further review (see 2111190056).
The Commerce Department's Bureau of Industry and Security granted importer CPW America Co.'s bid for exclusions from paying Section 232 steel and aluminum tariffs following a remand order from the Court of International Trade. In a Feb. 23 submission, BIS said that there was not sufficient domestic U.S. capacity of line pipe to justify rejecting CPW's exclusion requests (CPW America Co. v. United States, CIT #21-00335).