N. Am. Interpipe, Inc. v. United States

• Decision Date: 25 May 2021
• Docket Number: Court No. 20-03869, Court No. 21-00093,Slip Op. 21-66, Court No. 21-00027,Court No. 20-03825, Court No. 21-00015, Court No. 21-00005
• Citation: 519 F.Supp.3d 1313
• Court: U.S. Court of International Trade
• Parties: N. AM. INTERPIPE, INC., Plaintiff, v. UNITED STATES, Defendant. Evraz Inc. NA, et ano., Plaintiffs, v. United States, Defendant. AM/NS Calvert LLC, Plaintiff, v. United States, Defendant. California Steel Indus., Inc., Plaintiff, v. United States, Defendant. Valbruna Slater Stainless, Inc., Plaintiff, v. United States, Defendant. Voestalpine High Performance Metals Corp., et ano., Plaintiff, v. United States, Defendant.

519 F.Supp.3d 1313

N. AM. INTERPIPE, INC., Plaintiff,

v.UNITED STATES, Defendant.

Evraz Inc. NA, et ano., Plaintiffs,

v.United States, Defendant.

AM/NS Calvert LLC, Plaintiff,

v.United States, Defendant.

California Steel Indus., Inc., Plaintiff,

v.United States, Defendant.

Valbruna Slater Stainless, Inc., Plaintiff,

v.United States, Defendant.

Voestalpine High Performance Metals Corp., et ano., Plaintiff,

v.United States, Defendant.

Slip Op. 21-66

Court No. 20-03825

Court No. 20-03869

Court No. 21-00005

Court No. 21-00015

Court No. 21-00027

Court No. 21-00093

United States Court of International Trade.

May 25, 2021

Matthew J. McConkey, Mayer Brown LLP of Washington, DC, on the papers for Proposed Defendant-Intervenor United States Steel Corporation in Court No. 20-3825.

Roger B. Schagrin, Christopher T. Cloutier, Elizabeth J. Drake, and Luke A. Meisner, Schagrin Associates of Washington, DC, on the papers for Proposed Defendant-Intervenor United States Steel Corporation in Court No. 20-3869.

Timothy C. Brightbill, Laura El-Sabaawi, Tessa V. Capeloto, and Adam M. Teslik, Wiley Rein LLP of Washington, DC, on the papers for Proposed Defendant-Intervenors American Cast Iron Pipe Company, Berg Steel Pipe Corp., Berg Spiral Pipe Corp., and Stupp Corporation in Court No. 20-3869.

Thomas M. Beline and James E. Ransdell, Cassidy Levy Kent (USA) LLP of Washington, DC, on the papers for Proposed Defendant-Intervenor United States Steel Corporation in Court Nos. 21-00005 and 21-00015.

John R. Magnus, TradeWins LLC of Washington, DC, on the papers for Proposed Defendant-Intervenor Electralloy/G.O. Carlson in Court Nos. 21-00027 and 21-00093, as well as for Proposed Defendant-Intervenors Crucible Industries LLC, Ellwood City Forge Company, and Ellwood Specialty Steel in Court No. 21-00093.

H. Deen Kaplan, Craig A. Lewis, and Nicholas W. Laneville, Hogan Lovells US LLP of Washington, DC, on the papers for Plaintiffs North American Interpipe, Inc., in Court No. 21-00005 and Evraz Inc. NA and Evraz Inc. NA Canada in Court No. 20-03869. Messrs. Lewis and Laneville were also on the papers for Plaintiff Valbruna Slater Stainless, Inc., in Court No. 21-00027.

Paul C. Rosenthal, R. Alan Luberda, Joshua Morey, and Julia A. Kuelzow, Kelley Drye & Warren LLP of Washington, DC, on the papers for Plaintiff AM/NS Calvert LLC in Court No. 21-00005.

Sanford Litvack, Andrew L. Poplinger, and R. Matthew Burke, Chaffetz Lindsey LLP of New York, NY, on the papers for Plaintiff California Steel Industries, Inc., in Court No. 21-00015.

Matthew M. Nolan, Nancy A. Noonan, Leah N. Scarpelli, and Jessica R. DiPietro, Arent Fox LLP of Washington, DC, on the papers for Plaintiffs Voestalpine High Performance Metals Corp. and Edro Specialty Steels, Inc., in Court No. 21-00093.

Tara K. Hogan, Assistant Director, Brian M. Boynton, Acting Assistant Attorney General, and Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, DC, on the papers for Defendant United States in all six cases. The following counsel were also on the papers for Defendant United States in the specified matters: Kyle S. Beckrich, Trial Attorney, Cases 20-03825 and 21-00005; Joshua E. Kurland, Trial Attorney, Case 20-03869; Ann C. Motto, Trial Attorney, Cases 21-00015 and 21-00093; and Stephen C. Tosini, Senior Trial Counsel, Case 21-00027. Of counsel on the papers for Defendant United States in all six matters were Anthony D. Saler and Kimberly Hsu, Office of Chief Counsel for Industry & Security, U.S. Department of Commerce of Washington, DC.

Baker, Judge:

In these six cases, domestic entities that imported steel subject to national security tariffs challenge the Department of Commerce's denial of their requests to be excluded (exempted) from paying such tariffs and seek refunds of tariffs so paid. Several domestic steel producers that objected to Plaintiffs’ exclusion requests before Commerce now seek to intervene in this litigation on the side of the government. The Court concludes that the proposed intervenors are ineligible to intervene as a matter of law and therefore denies their motions for the reasons explained below. Nevertheless, the Court reiterates its willingness to entertain motions to appear as amici curiae. See USCIT R. 76 ; see also PrimeSource Bldg. Prods., Inc. v. United States , 494 F. Supp. 3d 1307, 1335 (CIT 2021) (Baker, J., concurring) ("[E]xperienced litigators note that many of those benefits [of intervention] could be achieved simply by ... outsiders ... present[ing] their views as amici. ") (alterations in original) (quoting Caleb Nelson, Intervention , 106 Va. L. Rev. 271, 391 (2020) ).

Statutory and Regulatory Background

Section 232 of the Trade Expansion Act of 1962 authorizes the President to restrict imports of goods to "[s]afeguard[ ] national security." 19 U.S.C. § 1862. Pursuant to this authority, the President imposed a 25 percent ad valorem tariff on imports of certain steel products. See Proclamation 9705 of March 8, 2018, Adjusting Imports of Steel into the United States , 83 Fed. Reg. 11,625 (Mar. 15, 2018).

Proclamation 9705 also directed the Secretary of Commerce to exclude from the proclamation's duties "any steel article determined not to be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality" and further authorized the Secretary "to provide such relief based upon specific national security considerations." Id. at 11,627 ¶ 3.

Commerce accordingly issued an interim final rule authorizing U.S. importers to request an exclusion from Section 301 duties of any "[a]rticle [that] is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for a specific national security consideration." Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States; and the Filing of Objections to Submitted Exclusion Requests for Steel and Aluminum , 83 Fed. Reg. 12,106, 12,110 (Dep't Commerce Mar. 19, 2018) (cleaned up).

Under this rule, exclusions do not relate to products generally—rather, they apply to specified quantities of subject products, and insofar as Commerce grants any importer's exclusion request, the exclusion applies for one year or until the submitting party has imported the full volume of material subject to the exclusion, whichever comes first. U.S. Dep't of Commerce, Bureau of Industry and Security, 232 Exclusion Process Frequently Asked Questions (FAQs) Version 1.01, at 12 (June 18, 2019) (also noting that companies may obtain relief retroactive to the date the exclusion request was submitted) (accessed May 24, 2021).¹ Exclusions do not apply to other importers or purchasers, nor do they apply to other products. 83 Fed. Reg. at 12,107 ("Approved exclusions will be made on a product basis and will be limited to the individual or organization that submitted the specific exclusion request ...."); 232 Exclusion Process FAQs , above , at 18 ("The company that filed the original exclusion request has exclusive rights[,] and a granted exclusion is non-trans-ferable.").

The interim final rule also allows "[a]ny individual or organization that manufactures steel articles in the United States" to object to exclusion requests. Submissions of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum , 83 Fed. Reg. 46,026, 46,058 (Dep't Commerce Sept. 11, 2018). Insofar as an objector asserts "that it is not currently producing the steel identified in an exclusion request but can produce the steel within eight weeks," the objector "must identify how it will be able to produce the article within eight weeks." Id.

Factual Background

Plaintiffs in these six cases are domestic manufacturers and one domestic distributor that import various types of steel subject to Section 232 tariffs.² The plaintiffs applied to Commerce for exclusions from the tariffs, and other domestic companies objected to the requests on various grounds, typically based on the claim that they could satisfactorily produce all of, or sufficient substitutes for, the material that was the subject of the exclusion requests.

Commerce subsequently denied all (or, in one case, substantially all) of Plaintiffs’ exclusion requests on various grounds. Significantly for present purposes, the plaintiff(s) in each case paid the challenged duties and imported the steel products in question notwithstanding the exclusion denials.³

The plaintiffs then brought these six suits under this Court's residual jurisdiction.

See 28 U.S.C. § 1581(i). Plaintiffs assert Administrative Procedure Act claims contending that Commerce failed to consider relevant factors and evidence, failed to give adequate explanations for its decisions, and in some instances considered legally irrelevant factors. See 5 U.S.C. §§ 701 – 06. As relief, the plaintiffs ask this Court to order refunds or remand these cases back to Commerce for further proceedings.

The Pending Intervention Motions

Several domestic parties that asserted objections to Plaintiffs’ exclusion requests before Commerce now move to intervene in these cases as party defendants and have tendered proposed answers. United States Steel Corporation seeks to intervene in four of these cases;⁴ four members of the American Line Pipe Producers Association seek to intervene in their individual capacities⁵ (collectively, "Pipe Producers") in a single case;⁶ Electralloy/G.O. Carlson seeks to intervene in two others;⁷ and Crucible Industries LLC, Ellwood City Forge Company, and Ellwood Specialty Steel all seek to intervene in a single case.⁸

The plaintiffs oppose intervention. The government filed papers that fail to take a direct position but express doubts on the propriety of intervention.⁹

Discussion

All proposed intervenors...