Litigation before the Court of International Trade is challenging the Trump administration’s Section 232 tariffs on imports of steel and aluminum.
The plaintiff in this case alleges that U.S. Customs and Border Protection is improperly calculating the value used to assess the tariffs based on informal, unpublished guidance from CBP’s Metals Center for Excellence and Expertise and has violated the Administrative Procedures Act by not using notice-and-comment rulemaking to codify this approach. Among other things, the plaintiff argues that (1) CBP is unlawfully treating the CEE memo as a binding rule, (2) CBP is applying the memo outside the framework of rulings and frequently-asked questions that typically governs tariff administration, (3) the memo is an unlawful method of appraisement that should be set aside under the APA, and (4) CBP has violated the Paperwork Reduction Act.
The Department of Justice’s recent rebuttal asked the CIT to throw out the case, arguing that the plaintiff must first file a protest if it believes CBP is failing to follow required procedures and that the courts should be used only when no other adequate remedy exists. DOJ used this exhaustion argument to answer the first three claims and largely sidestepped the fourth, effectively dismissing it.
It is unclear how and when the CIT will rule, but whatever the outcome, an appeal is likely.
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