CIT Strikes Brief From US Steel After Refusing to Let It Join Section 232 Exclusion Suit

The Court of International Trade on Sept. 9 struck a brief from U.S. Steel after the company attempted to submit supplemental arguments in a case on Section 232 steel and aluminum tariff exclusion requests. Judge M. Miller Baker said that because he rejected the company's bid to join the action, it's not a party to the case and can't file briefs (California Steel Industries v. United States, CIT # 21-00015).

The case concerns importer California Steel's Section 232 exclusion requests for its steel slab imports, which U.S. Steel objected to on the grounds that it could make the slab in sufficient quantity and quality to satisfy the importer's needs. The court rejected the objector's bid to join the case, noting that it could file an amicus brief (see 2405210049).

Supplemental briefs from importer California Steel Industries and the U.S. on the effect on the case of the Commerce Department's regulation, 15 C.F.R. 705 Supp. 1(c)(6)(i), were accepted by the court. The regulation says that if Commerce denies an exclusion request based on a representation from an objector which is later found to be inaccurate, the requester can submit a new exclusion request that refers to the original denied request and explains that the objector wasn't able to supply the steel.

The court asked whether California Steel failed to exhaust its administrative remedies by not submitting new requests referring to the original denied request "in light of U.S. Steel's alleged unwillingness or inability to timely supply the slab in sufficient quantities after the agency's denials." The court also asked whether it should remand the issue to let California Steel file the new exclusion requests.

California Steel said the answer to the first question is "no" since the regulation isn't an administrative remedy which would reverse the earlier denials and "more critically," after the denial of the requests, California Steel did submit new requests. The company referred back to the initial denials in the renewed requests and said the objectors were "unable to supply the slab sought by" the company after the prior denials.

The importer argued that it didn't fail to exhaust its administrative remedies since the regulation doesn't impose an exhaustion requirement. Commerce's denial of the requests was a "final agency action." There's no "available procedure or remedy at the agency level for CSI to obtain a reversal of those denials," the brief said. The only remedy was judicial review. The renewed requests won't afford any relief from the initial denials, the importer said.

The government didn't contest California Steel's claim that it didn't need to exhaust administrative remedies by filing a new request. The U.S. said that since the regulation is "prospective only" and a later request can be submitted "at any time," no exhaustion was needed.

The U.S. said the regulation "merely provides guidance on the type of information that Commerce would consider in a 'new exclusion request' that the agency would address in accordance with the regulation as a whole." While the regulation calls for a new exclusion request, that doesn't "deprive requestors of a reasonably timely remedy," the U.S. claimed.