Trade Court Gives Commerce Another Shot to Review Section 232 Exclusion Request Denials

The Court of International Trade granted the Commerce Department's request to re-review its decision to deny 15 exclusion requests from Section 232 steel and aluminum tariffs, in a Feb. 1 order. Plaintiff NLMK Pennsylvania had consented to the request, even though Commerce's offer only covered 15 of the 54 total exclusion denial challenges made by NLMK. In its order, CIT did shorten the amount of time Commerce has to review the 15 cases from 150 days, as requested by the agency, to 106 days.

NLMK had 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 offered 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 (see 2112230047). The remand offer followed the trade court's ruling in JSW Steel v. United States, in which the court found another set of Commerce exclusion request denials "devoid of explanation" and frustrating judicial review (see 2008050066).

NLMK still had some reservations. While Commerce said that a new decision maker will preside over the reviews, the plaintiff wanted further assurances, including the identity of the officials who will conduct the new reviews, specific measures taken to ensure that the reviewing officials have not participated in any ex parte communications, and confirmation that these officials did not engage in any ex parte communications with the objectors to the exclusion requests.

The trade court, though, did not grant NLMK's requests. "First, Plaintiff fails to make a showing of bias or an irrevocably closed mind with respect to particular officials such that they should be purged from the determination," the judge said. "Nor does Plaintiff cite any law in support of its request for additional limitations. ...

"If Plaintiff challenges Commerce’s remand redetermination as unsupported by substantial evidence or otherwise contrary to law, arguing that the determination was infected by ex parte communications, and the court determines that the redetermination is unsupported by substantial evidence or otherwise contrary to law, the court can remand the redetermination. Thus, the court will not preemptively dictate to Commerce the contours of its proceeding other than to ensure that it follows the contours set by Congress."

Commerce requested 150 days to conduct the new reviews while NLMK wanted the standard 90-day remand. The court gave the agency 106 days to take another look at the 15 exclusion requests, basing the timeline on "Commerce's own regulations."

(NLMK Pennsylvania LLC v. United States, Slip Op. 22-7, CIT #21-00507, Judge Claire Kelly, dated 02/01/22. Attorneys: Sanford Litvack of Chaffetz Lindsey for plaintiff NLMK Pennsylvania LLC; Tara Hogan for defendant U.S. government)