Importer Criticizes BIS' Lack of Guidance on Element of Section 232 Exclusion Resubmissions

CBP illegally failed to apply exclusions for Section 232 steel and aluminum tariffs to eight shipments of hot wrought steel round bars even though the exclusions were granted after the shipments entered the U.S., importer Saarsteel argued in a complaint last week at the Court of International Trade. The company said it is CBP's practice to allow an importer to claim a granted exclusion via a post-summary correction or a protest when the exclusion was granted after the entry was made but "relates back to a submission date covering the entry" (Saarsteel Inc. v. United States, CIT # 21-00271).

Saarsteel also criticized the Commerce Department's Bureau of Industry and Security for "taking such an inordinate amount of time to approve the exclusion requests in this case and in not providing Metform and Saarsteel with clear and adequate information on the revision of the exclusion requests." The importer said BIS failed to provide any information to the public on a restriction against listing an increase in the requested amount of a Section 232 exclusion when resubmitting a Section 232 exclusion request.

Saarsteel imported the cut length bars from 2018-19 from exporter Metform, classifying the goods under Harmonized Tariff Schedule subheading 7228.30.8015, which provides for "Other bars and rods of other alloy steel ... not further worked than hot-rolled, hot-drawn or extruded." Metform submitted two exclusion requests for the two different types of bars imported by Saarsteel, both of which were granted.

However, the exclusions contained errors in the listed HTS code. Metform was told it needed to refile the exclusion requests with the revised HTS code. The company made the change, and also listed increased amounts to be covered by the exclusions. BIS rejected the resubmissions due to the increase in the requested amount. Metform again resubmitted the exclusion request, reverting to the original amount, and asked that the exclusions apply back to the date they were originally granted, which BIS approved.

Saarsteel took to the trade court to contest CBP's failure to apply the exclusions and BIS' failure to submit guidance on revising amounts in resubmitted Section 232 exclusion requests. "Defendant acted in an arbitrary and capricious manner in taking such an inordinate amount of time to approve the exclusion requests in this case and in not providing Metform and Saarsteel with clear and adequate information on the revision of the exclusion requests," the brief said. "These arbitrary and capricious actions were prejudicial to Saarsteel, which was bound by strict statutory deadlines for the protest of liquidations and the commencement of civil actions."