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POTENTIAL CHALLENGE TO THE PRESIDENT’S SECTION 232 DUTIES

On March 25, 2019, a three-judge panel of the U.S. Court of International Trade (“CIT”) dismissed Am. Inst. For Int’l Steel v. Judges United States, CIT No. 18-00152, in which a number of plaintiffs had challenged President Trump’s decision of March 18, 2018 to impose a 25% additional duty on certain steel imports and a 10% additional duty on certain aluminum imports.[1]

The President had imposed the additional duties and quotas on imports from a number of countries under section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. § 1862 (“section 232”). The President claimed that these duties and quotas were required to eliminate a threat to national security stemming from excessive imports of the named products. The President then granted a number of exemptions to this program based on negotiations with certain exporting countries. Plaintiffs claimed that section 232 was an unconstitutional delegation of legislative authority to the President.

The CIT decision dismissing the AISI case likely will be appealed to the Court of Appeals for the Federal Circuit. The Federal Circuit decision may be appealed to the U.S. Supreme Court because the government’s case relies on Supreme Court precedent. Importers who wish to protect their rights to potential refunds of section 232 duties will have to file court actions in the CIT within two years of the dates that section 232 duties were paid. These filings will protect their rights in the event that a final judicial decision holds that the section 232 assessments were unconstitutional. For example, a case filed in the CIT on March 2, 2020 will protect the possible recovery of all section 232 duties paid within two years prior to this date.[2]

Please feel free to contact us if you have any questions regarding your rights to potential recovery of section 232 duties.

[1] Still pending in the CIT is Medtrade, Inc. et al. v. United States, et al., CIT No. 19-00009, in which plaintiff importers claim that Proclamation No. 9772 of August 10, 2018, which imposes 50% section 232 duties on Turkish steel, violates the equal protection and due process clauses of the U.S. Constitution. The Government’s answer in that case must be filed by April 3, 2019.

[2] March 2, 2018 was the first day of collection of section 232 duties. If these test cases are not favorably resolved by March 2, 2020, then additional actions will have to be filed to protect refunds of section 232 duties paid after that date.

 

 

 

 

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