The U.S. Court of Appeals for the Federal Circuit's July 13 decision in favor of President Donald Trump's Section 232 tariff increase for Turkish steel past the 105-day deadline set by statute may be a serious setback for Turkish steel exporters (see 2107130059), but what it means for the remaining litigation challenging the president's authority under Section 232, Section 301 or any other statute granting the executive tariff powers is less clear, lawyers said in the days following the decision.
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.
Two steel importers, voestalpine USA and Bilstein Cold Rolled Steel, want refunds for Section 232 steel and aluminum duties paid on imports of alloy steel since the Commerce Department's Bureau of Industry and Security published a Section 232 exclusion with the wrong Harmonized Tariff Schedule code, they said in a June 18 complaint filed at the Court of International Trade. Voestalpine and Bilstein say the HTS error was only remedied after the imports had been liquidated and that no protest option was available to apply the exclusions after liquidation (voestalpine USA LLC et al. v. United States, CIT #21-00290).
JSW Steel (USA) is accusing three U.S. steelmakers of a conspiracy and group "boycott" to hinder JSW's ability to make and sell competing steel products, according to a June 8 complaint in the U.S. District Court for the Southern District of Texas. Following the imposition of Section 232 tariffs on steel and aluminum in 2018, JSW claims U.S. Steel, Nucor and AK Steel owner Cleveland-Cliffs, which control 80% of domestic steel capacity, colluded to refuse to sell raw material to JSW.
U.S. Steel Corp. told the Court of International Trade May 19 that the public release of the administrative record in a case involving Section 232 exclusions should entitle the company to the right to intervene in the case. “Among the reasons U. S. Steel cited in support of its right to intervene was the use and contextualization of factual information supplied by U. S. Steel to Commerce,” the company told the court. The Commerce Department's inadvertent released of this information means U.S. Steel's “fear has been realized,” the company said.