CAFC Should Uphold Section 232 Expansion, Steel Nail Group Says in Amicus Bid

The U.S.Court of Appeals for the Federal Circuit shouldn't strike down President Donald Trump's extension of Section 232 steel and aluminum tariffs onto "derivative" products made beyond procedural deadlines since the tariffs had a positive impact on the U.S. industry, The American Steel Nail Coalition said in Jan. 10 proposed amicus brief. The coalition asked the court for leave to file the amicus brief in a bid to broaden the defense of the president's tariff action. The proposed amicus further said that this issue has already been decided following the Federal Circuit's decision in the key case Transpacific Steel v. U.S. (PrimeSource Building Products v. United States, Fed. Cir. #21-2066).

The CAFC said that the president was allowed to raise the duties on Turkish steel beyond the 105-day deadline that runs from the Commerce report (see 2107130059), reversing a Court of International Trade decision that strictly applied the deadline (see 2104050049). Questions lingered afterward over how this would impact the remaining litigation over the president's use of Section 232. Some lawyers differentiated the tariff hike on the same products in the Transpacific case from an extension of the tariffs to new products in the PrimeSource case -- the case in which the coalition has filed its proposed amicus (see 2107150051).

"Since the implementation of Proclamation 9980, imports of steel nails, tacks, drawing pins, corrugated nails, staples, and similar derivative articles decreased by 9 percent from the 21-month comparison period of February 2020 to October 2021 as compared to the prior 21-month period of May 2018 to January 2020," the brief said. "Imports of bumper and body stampings of aluminum and steel for motor vehicles and tractors decreased by 27 percent during the same comparison period."

The trade group also argued that the tariff action should be upheld since the issue was resolved during Transpacific and that the expansion isn't subject to judicial review because the president can impose tariffs beyond procedural deadlines if such tariffs are part of the original "plan of action." The steel and aluminum derivative decision does not violate this principle, the brief said.

The statute also doesn't allow for judicial review, the group said. "Section 232 commits actions to prevent threats to national security, including circumvention of such actions, to the discretion of the President," the brief said. "Even if Proclamation 9980 is judicially reviewable, it is a manifestation of the core constitutional and statutory authorities and duties of the President as a necessary enforcement measure to prevent circumvention of duties and undermining of national security interests sought to be protected by Proclamations 9704 and 9705."