CAFC Tosses Section 232 Exclusion Challenge After CBP Drops Duties From Entries
The U.S. Court of Appeals for the Federal Circuit on Dec. 28 dismissed an appeal from Borusan Mannesmann Boru Sanayi ve Ticaret and Gulf Coast Express Pipeline over Section 232 exclusion requests. The appellants asked for the case to be dismissed after CBP dropped the Section 232 steel and aluminum duties from the entries at issue (Borusan Mannesmann Boru Sanayi ve Ticaret v. United States, Fed. Cir. #22-2097).
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Borusan and Gulf Coast originally took to the Court of International Trade seeking exclusions for 19 entries of steel pipe from Turkey, claiming jurisdiction under Section 1581(a). The case prompted an initial motion to dismiss from DOJ, seeing as all the entries are not liquidated (see 2108260062). During litigation, 18 of the entries were under an injunction in the Transpacific Steel case, which had sought to overturn the tariff hike on Turkish steel in 2018.
The plaintiffs argued that they're not protesting the classification and amount of duties charged on the entries but instead are seeking to protest "charges or exactions" that came with the failure to apply the exclusions. DOJ disagreed, arguing that the protest sought to change the classification for the subject entries and, "operationally, the only way that CBP could approve the protest would be to change the tariff classification to account for the claimed exclusions" (see 2111160049). The trade court sided with the U.S., finding that since the entries were unliquidated, the court does not have jurisdiction over the matter and that the plaintiffs failed to show that CBP's decision not to issue the refunds before liquidation constitutes a decision as to charges or exactions (see 2206090076).
Borusan and Gulf Coast appealed to the Federal Circuit to argue that the trade court does have jurisdiction to hear the case -- a position that will remain unresolved after CBP dropped the Section 232 duty liability from the entries.