On April 24, 2023, plaintiffs in an ongoing challenge at the U.S. Court of Appeals for the Federal Circuit filed a Petition for Rehearing En Banc of their argument that former President Donald Trump improperly imposed additional Section 232 national security tariffs on derivatives of certain imported steel articles. In their petition for consideration by the full court, the petitioners — PrimeSource Building Products, Inc. and Oman Fasteners, LLC — state that the prior three-judge panel, which heard arguments on the matter and upheld the president’s authority to expand national security tariffs even after certain statutory deadlines had passed, ignored the plain language of Section 232 of the Trade Expansion Act of 1962.

The petitioners argue that if the three-judge panel’s decision stands, “the President will enjoy unbounded legislative power to regulate foreign trade—to take any action, at any time, targeting any imported product, so long as at any point in the past, the Secretary [of Commerce] made a threat determination regarding either the targeted product or any material used to make that product. Given its profound expansion of the Executive’s power, this case merits rehearing by the Court en banc.” In addition to alleging that the plain language of the statute was ignored, the petitioners also argue that the panel abandoned strict limitations on presidential power under Section 232 that were set forth in an earlier appellate decision in Transpacific Steel LLC v. United States. In doing so, the three-judge panel, the petitioners claim, has done “far greater violence to the procedural safeguards Congress built into Section 232.” In seeking an en banc rehearing, the petitioners are asking a full Federal Circuit panel to affirm the U.S. Court of International Trade’s original decision invalidating the Section 232 duties on derivatives of certain imported steel products.

Our Update of  February 8, 2023 provides details on the three-judge panel’s opinion that reversed the CIT decision. See also Updates of April 6, 2021 and January 28, 2021 for additional background on the case and the CIT’s dismissal of other claims.