Section 232 Exclusions

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).

The Court of International Trade granted the Commerce Department's request to re-review its decision to deny 15 exclusion requests from Section 232 steel and aluminum tariffs, in a Feb. 1 order. Plaintiff NLMK Pennsylvania had consented to the request, even though Commerce's offer only covered 15 of the 54 total exclusion denial challenges made by NLMK. In its order, CIT did shorten the amount of time Commerce has to review the 15 cases from 150 days, as requested by the agency, to 106 days.

The Commerce Department wants another shot at considering 15 denied requests for exclusions from the Section 232 steel and aluminum tariffs, it said in a Dec. 23 partial voluntary remand request at the Court of International Trade. Commerce's offer of reconsideration would cover only 15 of plaintiff NLMK Pennsylvania's 54 denied exclusion requests. Commerce's brief stated that counsel for NLMK did not indicate support for or opposition to the motion yet, but would oppose the agency's 150-day timeline for reconsidering the 15 exclusion requests (NLMK Pennsylvania v. U.S., CIT #21-00507).

Mediation at the Court of International Trade in six consolidated cases over Section 232 steel and aluminum tariff exclusion denials failed to produce a settlement, the court said in a Dec. 14 report. The mediation, held by Judge Leo Gordon, was ordered after the consolidated plaintiffs' request for a status conference was denied as moot. The plaintiffs wanted the status conference to discuss the availability of a remedy for already-liquidated entries (Valbruna Slater Stainless, Inc. v. U.S., CIT #21-00027).

U.S. Steel was again denied the right to intervene in a Section 232 exclusion denial challenge at the Court of International Trade, with the court holding that the Pennsylvania steel company did not have a legally protectable interest in the case. According to the Dec. 3 opinion, U.S. Steel cannot intervene in the case since it won't be directly affected by the case's outcome. Judge Claire Kelly said that any harm that U.S. Steel would experience as a result of the court granting a Section 232 exclusion would be indirect since the company has no right to the sale of the covered products.

Since a steel importer's and purchaser's bid to reliquidate two entries subject to Section 232 steel and aluminum tariffs is virtually identical to its already dismissed action seeking the same thing, it should be dismissed, the Department of Justice argued in a Nov. 24 brief at the Court of International Trade. The new case, brought by the importer, Voestalpine USA, and the purchaser, Bilstein Cold Rolled Steel, which challenges the Commerce Department's Section 232 exclusion, is "legally indistinguishable" from its prior case, and, as such, is moot, the U.S. said (Voestalpine USA Corp., et al. v. United States, CIT #21-00290).

The Court of International Trade committed a logical error when it dismissed a steel importer's and purchaser's bid to reliquidate two entries subject to Section 232 steel and aluminum tariffs, the importer and purchaser said in a brief attempting to keep their case alive. Bilstein Cold Rolled Steel, the purchaser, and Voestalpine USA, the importer, moved for a reconsideration of CIT's decision, which held that the plaintiffs had already received the relief available to them from the Commerce Department in the form of a product exclusion but failed to preserve their ability to receive a refund through a protest or an extension of liquidation (Voestalpine USA Corp., et al. v. United States, CIT Consol. #20-03829).

The Commerce Department denied two Section 232 steel and aluminum tariff exclusion requests after completing a voluntary remand to reconsider its decision to initially reject the exclusion bids. Submitting the denials on Oct. 18 in remand results at the Court of International Trade, Commerce cited the International Trade Administration's analysis of the situation, which found that the domestic industry had enough capacity to take over for the subject imports (Maple Leaf Marketing, Inc. v. U.S., CIT #20-00125).

The Commerce Department wants a voluntary remand to reconsider a bevy of blanket Section 232 exclusion denials it issued to Voestalpine High Performance Metals Corp. and Edro Specialty Steels, the agency told the Court of International Trade in a Sept. 30 filing (Voestalpine High Performance Metals Corp., et al. v. United States, CIT #21-00093). Judge Miller Baker then stayed the time for plaintiffs to respond to this remand motion “until further order of the court,” in an order. The judge then instructed all parties to let the court know their position on court-annexed mediation to settle the issue of remand.