Commerce Offers Redo on Over 500 Section 232 Exclusion Requests; CIT Sends Issue to Mediation

The Commerce Department wants a voluntary remand to reconsider a bevy of blanket Section 232 exclusion denials it issued to Voestalpine High Performance Metals Corp. and Edro Specialty Steels, the agency told the Court of International Trade in a Sept. 30 filing (Voestalpine High Performance Metals Corp., et al. v. United States, CIT #21-00093). Judge Miller Baker then stayed the time for plaintiffs to respond to this remand motion “until further order of the court,” in an order. The judge then instructed all parties to let the court know their position on court-annexed mediation to settle the issue of remand.

Baker referenced his recent move to temporarily consolidate six cases, all challenging Section 232 exclusion denials, to consider Commerce's offer of voluntary remand (see 2108190038). In those instances, Baker referred the cases to court-annexed mediation before Judge Leo Gordon.

The two plaintiffs in this instance, Voestalpine and Edro, submitted 502 exclusion requests for high alloyed specialty steel products, wanting a reprieve from the Section 232 steel and aluminum national security tariffs. Commerce's Bureau of Industry and Security rejected all 502, declaring that “it found that the domestic industry was capable of manufacturing sufficient quantities of merchandise of sufficient quality for all 502 subject requests.”

Citing a recent CIT case, JSW Steel, Inc. v. United States, in which the trade court ruled that BIS's exclusion denials were “devoid of explanation and frustrate judicial review,” Commerce wants another crack at considering the exclusion requests. “Based on its review of the decision memoranda and underlying recommendations in this case, which are similar in reasoning and scope of analysis as those reviewed in JSW, Commerce wishes to reconsider the exclusions and to provide additional reasoning or explanation, as necessary,” the filing said.

Of particular concern to BIS was that the agency did not log the meetings it held with interested parties to discuss the exclusion requests. The lack of the documentation of these meetings concerned BIS, which said that this could give the court a sense that it did not fully consider the requests. Nevertheless, on remand, Commerce said it will engage in a “new and independent review” of the record limited to the original requests, the parties' original objections and any other information that the BIS decision maker considers.

The duration of the remand period was of particular concern to BIS, which said that Commerce is currently facing over 17,000 pending exclusion requests that the agency must make a decision on, generally, within 106 days. To accommodate these concerns, BIS floated a 10-tranche remand schedule for Voestalpine and Edro, with the last tranche of exclusion requests due on June 10, 2022.