Commerce Offers New Reviews for 15 of NLMK's 54 Section 232 Exclusion Requests

The Commerce Department wants another shot at considering 15 denied requests for exclusions from the Section 232 steel and aluminum tariffs, it said in a Dec. 23 partial voluntary remand request at the Court of International Trade. Commerce's offer of reconsideration would cover only 15 of plaintiff NLMK Pennsylvania's 54 denied exclusion requests. Commerce's brief stated that counsel for NLMK did not indicate support for or opposition to the motion yet, but would oppose the agency's 150-day timeline for reconsidering the 15 exclusion requests (NLMK Pennsylvania v. U.S., CIT #21-00507).

NLMK sought exclusions for two different types -- 10" thick and 8" thick -- of semi-finished stainless steel slab from Russia via its 54 exclusion requests. Commerce's Bureau of Industry and Security rejected the requests, finding that the domestic industry was capable of timely making the slabs in quantities sufficient to fill NLMK's orders. At CIT, NLMK argued that Commerce did not provide sufficient analysis to deny the exclusion requests.

In response, Commerce is offering a remand for 15 of the 54 exclusions in which it will conduct a "new and independent review" of the record limited to the original exclusion request; the parties' original objections, rebuttals and sur-rebuttals; and any other information the decision-maker considers. The remand offer comes partly due to the trade court's ruling in a different case, JSW Steel v. United States, in which the court found Commerce's exclusion request denials "devoid of explanation" and frustrating judicial review (see 2008050066).

Commerce said it's concerned about the sufficiency of the existing record for those 15 exclusion denials. "We recognize that despite our best efforts to provide the Court and parties with documents and information in existence concerning communications between interested parties and Commerce while the exclusion requests were pending, the Court may nonetheless conclude that the existing record for these 15 requests is incomplete," the brief said.

The agency also discussed the length of its proposed review period: 150 days. The agency said there are currently over 16,800 pending exclusion requests before the agency, which generally must be decided within 106 days. Taking this into consideration, plus the voluntary remands the trade court has granted in other cases contesting Section 232 exclusion denials, Commerce argued that 150 days is appropriate. "Commerce must devote the time and resources to address these other competing obligations," the brief said. "To ensure that Commerce has sufficient bandwidth to address these additional 15 exclusion requests, Commerce requests that the due date of this remand fall at a reasonable time after the ... due date [in another exclusion denial case]."