The Court of International Trade in a Dec. 21 opinion denied U.S. Steel's motion to intervene in a case brought by Seneca Foods over the Commerce Department's denial of Section 232 exclusion requests. The trade court cited the Court of Appeals for the Federal Circuit's decision in California Steel Industries v. U.S. in which the appellate court denied U.S. Steel the right to intervene in a different Section 232 exclusion denial challenge. Judge Gary Katzmann ruled that the precedent establishes that the steelmaker does have the right to intervene under the trade court's rules.
Although some observers thought the Office of the U.S. Trade Representative's reaction to losing cases filed by Norway, Switzerland, Turkey and China at the World Trade Organization over its steel and aluminum tariffs marked a new era of rejecting the rules-based trading system, others who had served either in the WTO or the U.S. government said there was nothing too surprising about the U.S. reaction to its loss.
China took to the World Trade Organization Dec. 12 to challenge U.S. export control measures on semiconductor chips and other products, an official at China's Ministry of Commerce said, according to an unofficial translation. China referred the export restrictions to the trade body's dispute settlement mechanism, claiming the U.S. has been "generalizing the concept of national security."
The World Trade Organization issued a series of four rulings Dec. 9 finding that the U.S. Section 232 steel and aluminum tariffs set by President Donald Trump violated global trade rules. In the landmark rulings, a three-person panel found that the duties violated Articles I, II, XI and XXI of the General Agreement on Tariffs and Trade. The dispute panel said the tariffs, which the Trump administration said were needed to maintain U.S. national security, were not "taken in time of war or other emergency in international relations," as mandated by Article XXI(b)(iii) of national security protections, so the duties violate the GATT.
The U.S. Court of Appeals for the Federal Circuit will hold an oral argument on Jan. 10, 2023, at 10 a.m. EST in a case on whether President Donald Trump illegally expanded Section 232 steel and aluminum tariffs to include derivative products. According to the notice of oral argument, the court will hold the hearing in Courtroom 201 in the Howard T. Markey National Courts Building in Washington. In the case, the Court of International Trade said that Trump illegally expanded the tariffs to derivative products beyond the 105-day deadline to take tariff action that runs from the submission of a report from the commerce secretary. In Transpacific Steel v. U.S., however, the Federal Circuit said that Trump could take certain tariff actions beyond this deadline so long as it it was part of the original "plan of action" (see 2107130059) (PrimeSource Building Products v. U.S., Fed. Cir. # 21-2066).
The Supreme Court gave appellants, in a broad challenge to President Donald Trump's Section 232 steel and aluminum tariffs, an extension to file a petition for a writ of certiorari. In the case, the U.S. Court of Appeals for the Federal Circuit ruled that there is no requirement in the statute to find an imminent threat to the domestic industry before imposing Section 232 duties and that the threat determination is not reviewable under the "arbitrary and capricious" standard since the secretary's action "is only reviewable for compliance with the statute" (see 2206090047). The appellate court then denied a petition to rehear the challenge (see 2208190049). The appellants, led by USP Holdings, have through Dec. 16 to file the petition (USP Holdings v. United States, #21-1726).
US Steel Tells CIT About 'Developments' in CAFC Case Over Intervention in Section 232 Exclusion Case
U.S. Steel Corp., defendant-intervenor in a case over a denied Section 232 steel and aluminum tariff exclusion request, filed a notice of supplemental authority at the Court of International Trade on Nov. 14. The notice pointed to "developments" in a case before the U.S. Court of Appeals for the Federal Circuit, California Steel Industries v. U.S., in which the appellate court denied U.S. Steel the right to intervene in a different challenge to Section 232 exclusion request denials. Those "developments" reference U.S. Steel Corp.'s motion for rehearing (see 2210250056), in which it argued that the majority's ruling in the opinion cannot be squared with key Supreme Court precedent. The defendant-intervenor alerted the trade court to these developments "as they may result in a change to Federal Circuit law regarding the rights of parties to intervene in actions before the Court" (Seneca Foods Corp. v. United States, CIT #22-00243).
The whole U.S. Court of Appeals for the Federal Circuit should rehear a case on whether a group of domestic steel manufacturers have the right to intervene in cases challenging denied exclusion requests from Section 232 national security tariffs, U.S. Steel argued in an Oct. 24 motion for rehearing. The outcome of the litigation will have an "obvious impact" on U.S. Steel, and the majority's ruling in the opinion cannot be squared with key Supreme Court precedent, the appellant said.
The Court of International Trade in an Oct. 21 opinion let exporter Oman Fasteners stop paying cash deposits over its potential Section 232 steel and aluminum tariff liability in a case on the validity of the national security duties on "derivative" products. A previous court order let Oman Fasteners stop making duty deposits after reaching an agreement with the U.S. on the resumption of bonding. The U.S. said the company wasn't entitled to bonding since it had failed to abide by the arrangement. A three-judge panel ruled that the U.S. shall exclude Oman Fasteners from the need to post cash deposits for potential Section 232 liability until the U.S. can get another order from the court or Oman Fasteners voluntarily enters into an agreement that modifies the terms of the court's opinion.
CBP's Denial of PSCs Establishes Jurisdiction to Impose Section 232 Exclusions, Appellants Tell CAFC
CBP's denial of plaintiff-appellant Borusan Mannesmann's post summary corrections (PSCs) and administrative refund request constitutes a protestable decision, meaning Borusan had jurisdiction to seek Section 232 steel and aluminum tariff exclusions, Borusan and Gulf Coast Express Pipeline argued in an Oct. 17 opening brief at the U.S. Court of Appeals for the Federal Circuit. The appellants also said that Federal Circuit precedent established that CBP's denial of a timely request for a refund of previously paid duties can constitute a protestable decision, and while these precedential opinions do not concern unliquidated entries as is the case with Borusan, there is nothing limiting these decisions (Borusan Mannesmann Boru Sanayi Ticaret v. United States, Fed. Cir. #22-2097).