Commerce Seeks Do-Over for Section 232 Tariff Exclusion Request Determination

The Commerce Department wants another shot to consider the Section 232 tariff exclusion requests filed by Allegheny Technologies Incorporated after the agency initially rejected them. In a July 21 motion for voluntary remand in the Court of International Trade, Commerce said that in light of a recent CIT decision, JSW Steel, Inc. v. United States, which found that Commerce's exclusion request denials were "devoid of explanation and frustrate judicial review," the agency needs to take another look at its denials (Allegheny Technologies Incoporated et al. v. United States, CIT #20-03923).

Allegheny sought relief from the Section 232 steel and aluminum tariffs for two different types of semi-finished stainless steel slab from Indonesia. Commerce's Bureau of Industry and Security denied the requests, declaring that the domestic industry was capable of making enough to satisfy Allegheny's needs in a timely manner. The importer then launched a challenge in CIT. Most recently, the court stayed proceedings after both sides said they were consulting over how to resolve the case (see 2107140055).

In its filing, Commerce cited the scale of the Section 232 exclusion process. The agency said it is dealing with more than 19,000 pending exclusion requests, and for each one, generally, it has 106 days to issue a decision. In the various CIT cases over these exclusions, Commerce admitted to seeking voluntary remands to properly consider the request. CIT recently granted a voluntary remand to allow Commerce to reconsider Section 232 exclusion denials for Maple Leaf Marketing (see 2107200057).

In case the court has lingering concerns over the completeness of the existing record in the case, Commerce proposed to conduct a new and independent review of the record limited to: "(1) the original exclusion request; (2) the parties’ original objections, rebuttals and sur-rebuttals, and (3) any other information that the decisionmaker considers, which will be documented in the record." As was also the case in Maple Leaf's voluntary remand request, Commerce signaled that it could potentially grant one or both of the exclusion requests filed by Allegheny.