US Seeks Partial Dismissal of Section 232 Exclusion Request Denial Case for Untimeliness

Citing untimeliness, the U.S. on Aug. 2 sought partial dismissal of a case brought by an aluminum rod importer alleging that the Commerce Department had denied its Section 232 tariff exclusion request on the basis of promises made by a competitor (Prysmian Cables and Systems USA v. U.S., CIT # 24-00101).

Importer Prysmian Cables and Systems USA filed its complaint in June (see 2406100052), joining a growing number of cases making similar claims -- that Commerce denied importers’ exclusion requests after a domestic producer, usually a competitor, said that it could provide the needed resources itself without providing adequate proof (see 2406120057, 2406200047 and 2405100067).

Because Prysmian brought its case under 28 U.S.C. 1581(i), all but two of its claims are untimely since they regard events that occurred more than two years ago, the government said in its motion.

Under 1581(i), claims must be brought “within two years after the cause of action first accrues.” Accrual, the U.S. said, “is measured from the point when the injured party ‘reasonably should have known about the existence of a claim.’” However, 16 out of the 18 exclusion request denials Prysmian seeks to challenge were made between May 2019 and April 2022, making those challenges “facially untimely,” it said.

Prysmian can still raise them only if both it has been “pursuing [its] rights diligently” and “some extraordinary circumstance” prevented it from filing earlier, it said; but the importer hadn’t provided any reason to explain how this “extraordinary remedy” would apply, it said, “nor are we aware of any.”