On February 10, 2022, the Department of Commerce (“the Department”) published a Federal Register notice requesting public comments on the process for seeking exclusions from the Section 232 steel and aluminum tariffs.  Comments are due on March 28, 2022.

The Department is soliciting comments with regard to two areas in particular.  First, as directed by

2022 is shaping up to be a critical year for the Biden Administration regarding U.S. international trade policy.  In 2021, the Biden Administration made headway in resolving some of the challenges with United States’ allies that arose during the last Administration, and trying to build bridges in important regions that had perhaps had been neglected.  But in a number of other critical areas, and arguably in the most significant areas, the Biden Administration made little tangible progress over the past year.  The discussion below offers a look back at the key developments in 2021 with respect to U.S. trade relations with the EU, China, the rest of Asia and North America, and a look ahead at what could come in 2022.
Continue Reading The US International Trade Agenda: A Look Back, A Look Ahead

On October 30, 2021, the United States and the European Union (“EU”) reached an agreement to replace the tariffs imposed under Section 232 of the Trade Expansion Act of 1962  (“Section 232”) on EU imports of steel and aluminum with a tariff-rate quota (“TRQ”) that is scheduled to take effect on January 1, 2022.  The deal allows a certain volume of EU steel and aluminum to enter the United States each year without the application of Section 232 tariffs.  Imports over that volume will be subject to Section 232 tariffs, which are currently 25 percent for steel imports, and 10 percent for aluminum imports.

According to details released by the Department of Commerce (“Commerce”), the TRQ is based on historical import values and will be allocated by product and by EU Member State.  For steel, the TRQ will be broken down into 54 product categories, with the total annual amount set at 3.3 million metric tons per year, starting in 2022.  The annual amount for the aluminum TRQ will be 18,000 metric tons for unwrought aluminum and 366,000 metric tons for semi-finished (wrought) aluminum.  The quota levels for unwrought aluminum will be subdivided into two product categories, and the quota levels for semi-finished aluminum will be subdivided into fourteen product categories. The United States will conduct annual reviews to adjust the steel TRQ amount based on US demand using data from the World Steel Association, but at this point there is no similar provision to adjust the levels of the aluminum TRQ.Continue Reading Client Alert: US and EU Reach Agreement Regarding Section 232 Tariffs on Steel and Aluminum Imports

On July 13, 2021, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) released its opinion reversing the U.S. Court of International Trade’s (“CIT”) decision that President Trump had unlawfully doubled tariffs on imports of steel from Turkey under Section 232 of the Trade Expansion Act of 1962 (“Section 232”).  The CIT had initially

Recent decisions from the U.S. Court of International Trade (“CIT”) have clarified the basis for legal challenges to the tariffs imposed by the Trump Administration on imports of steel and aluminum products on the grounds of national security. While the court has generally rejected wholesale challenges to these duties, other cases suggest that parties appealing the denial of specific exclusions to these duties might have some ability to obtain relief.

In Universal Steel Products, Inc. et al. v. the United States et al., a three-judge panel held that the duties did not violate obligations under Section 232 of the Trade Expansion Act of 1962 (“Section 232”) or the Administrative Procedure Act (“APA”). See Universal Steel Products Inc. et al. v. The United States et al., 2021 WL 401283 (C.I.T. 2021). Plaintiffs in Universal Steel Products claimed that the report issued by the Department of Commerce (“Commerce”) on steel and aluminum imports, and the subsequent presidential proclamations imposing tariffs on these products, contravened various procedural requirements. In its decision, the CIT found that the report was not reviewable under the APA as it was not a final agency decision. The court also concluded that the decision whether imports pose a national security threat under Section 232 is made at the president’s discretion and cannot be reviewed by a court. Finally, the CIT rejected arguments that the duration and timing of the tariffs imposed by the president did not comply with Section 232’s statutory provisions. This follows a decision by the CIT in 2019, where the court rejected a challenge to Section 232 as an impermissible delegation of statutory authority to the President by Congress.  See American Institute for Int’l Steel, Inc. et al v. United States, 376 F.Supp.3d 1335 (C.I.T. 2019), aff’d, 806 Fed.Appx. 982 (Fed. Cir.), cert. denied, 141 S.Ct. 133 (2020).

While the court is unlikely to support broad challenges to presidential authority in this area, it has shown a willingness to review clear procedural violations. Last month, the CIT dismissed all but one of the claims in Primesource Building Products Inc. v. U.S. et al., 2021 WL 276338 (C.I.T. 2021), a case that contested the expansion of Section 232 tariffs to derivative steel products like fasteners.  The CIT dismissed the plaintiff’s arguments that the proclamation broadening the tariffs was unconstitutional and unlawful under the Section 232 statute. The one claim that the CIT did not dismiss relates to whether the imposition of tariffs on downstream products after the 105-day statutory deadline triggered by the receipt of Commerce’s 232 report was lawful under Section 232. The CIT stated that it would examine whether later “assessments” made by Commerce that led to the expansion of the tariffs could be considered another report under the statute, thus extending the deadline. The court’s decision to consider limitations on the timing of any Section 232 action recalls a prior case in 2019 where the CIT struck down an increase in the duty rate from 25 percent to 50 percent specifically as to Turkish imports. In Transpacific Steel LLC v. United States, 474 F.Supp.3d 1332 (C.I.T. 2020), not only did the court find that this action violated the timeframe set forth by the Section 232 statute, it also concluded that there was no national security basis for an action that only increased tariffs with regard to Turkish imports. The CIT also held that the increase in this duty rate constituted a violation of the plaintiff’s equal protection rights under the U.S. Constitution.Continue Reading CIT Rejects Broad Challenge to Section 232 Duties on Steel and Aluminum Imports, But Challenges to Denied Exclusions Have More Success

On December 14, 2020, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) is scheduled to publish an interim final rule modifying certain elements of the exclusion process for steel and aluminum imports subject to tariffs pursuant to Section 232 of the Trade Expansion Act of 1962 (“Section 232”).

When President Trump imposed