A group of domestic steel manufacturers doesn't have the right to intervene in a spate of challenges to denied requests for exclusions from Section 232 steel and aluminum tariffs, the U.S. Court of Appeals for the Federal Circuit ruled in a Sept. 8 opinion. Ruling against the Court of International Trade's opinion that the would-be intervenors did not establish standing, Judges Kimberly Moore and Todd Hughes ultimately found that the interveners nevertheless failed to identify a legally protectable interest to qualify as intervenors under the trade court's rules.
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 Appeals for the Federal Circuit in a Sept. 8 opinion denied a group of domestic steel manufacturers the right to intervene in six cases challenging denied exclusions to Section 232 steel and aluminum tariffs. Judges Kimberly Moore and Todd Hughes affirmed the Court of International Trade's ruling that the domestic producers did not have a legally protectable interest in the case, though they parted from the trade court's position in ruling that the manufacturers established standing to intervene. While they had standing, the lack of a legally protectable interest stunted their bid to join the litigation. Judge Pauline Newman dissented from the majority opinion, ruling the manufacturers have clear economic interests in the tariff exclusion requests, establishing their right to intervene.
The following lawsuits were recently filed at the Court of International Trade:
Importer Mirror Metals and the Commerce Department need more time to work out the details of refunding Section 232 duties following Commerce's decision to grant retroactive tariff exclusion bids, according to an Aug. 22 status report filed with the Court of International Trade (Mirror Metals v. U.S., CIT #21-00144).
The Commerce Department erred in rejecting food and vegetable processing giant Seneca Foods Corporation's requests for exclusions from Section 232 steel and aluminum tariffs, Seneca argued in an Aug. 19 complaint at the Court of International Trade. The vegetable canning company said that Commerce violated the Administrative Procedure Act by failing to meaningfully consider and explain its rejection of the exclusion requests (Seneca Foods Corporation v. United States, CIT #22-00243).
The Court of International Trade in an Aug. 1 order granted a joint motion for stipulated judgment, granting refunds to importer Transpacific Steel for Section 232 steel and aluminum duties paid in error. The importer was originally granted three exclusions with the wrong Harmonized Tariff Schedule subheading listed in them. After having its resubmitted exclusion requests denied, Transpacific took to the trade court to seek the exclusions and refunds for the Section 232 duties paid. It received just that following a settlement with the U.S. (Transpacific Steel v. United States, CIT #21-00362).
The Court of International Trade should circumvent the remand process and order the Commerce Department to grant exclusions to Section 232 steel and aluminum duties, steel company NLMK Pennsylvania argued in a July 22 brief. Likening its experience with the exclusion process at Commerce to "a bad remake of Groundhog Day," the plaintiff argued that Commerce has repeatedly ignored the record evidence which plainly shows that the U.S. companies do not have the capacity to fill NLMK's requests (NLMK Pennsylvania v. United States, CIT #21-00507).
The Court of International Trade entered stipulated judgment July 19 in a case over denied Section 232 steel and aluminum tariff exclusions. The case was reported to have been settled via mediation in February, with the trade court saying all the issues brought by plaintiffs Voestalpine High Performance Metals and Edro Specialty Steels were settled (see 2202080057). The court then held a status conference to discuss the availability of a remedy for already-liquidated entries. The parties reached a remedy stipulating that CBP will reliquidate the liquidated entries without the Section 232 duties and that refunds will be paid with interest, the judgment said. Voestalpine and Edro brought their case to CIT to contest the denial of 502 exclusion requests for high alloyed specialty steel products (see 2110010032) (Voestalpine High Performance Metals v. U.S., CIT #21-00093).
The Court of International Trade in a confidential June 1 opinion dismissed a challenge from Turkish steel exporter Borusan Mannesmann Boru Sanayi ve Ticaret seeking the reversal of its denied Section 232 steel and aluminum tariff exclusion requests. In a letter to the litigants, Judge Timothy Reif said that the parties have until June 8 to review the bracketed confidential information and the remainder of the opinion to see if anything else should be redacted from the public versions. The U.S. originally moved to toss the case since the subject entries are not liquidated, and Borusan filed the case under Section 1581(a), which requires a protestable decision to occur before such a claim can be made (see 2108260062). In a public judgment, Reif sided with the U.S., dismissing the case (Borusan Mannesmann Boru Sanayi ve Ticaret v. United States, CIT #21-00186).
The following are short summaries of recent CBP NY rulings issued by the agency's National Commodity Specialist Division in New York: