Granting Section 232 Exclusion Requests Via Judgment 'Extraordinary Relief,' DOJ Says

A court order granting an importer Section 232 exclusions for tin mill products would be "extraordinary relief," and the Court of International Trade should instead remand the denied exclusions to the Commerce Department for further consideration, DOJ said in an April 11 response brief at the Court of International Trade. While DOJ argued that Commerce correctly denied six Section 232 exclusion requests, it seeks to reconsider another two, admitting that some of Seneca's arguments warrant further consideration (Seneca Foods Corporation v. United States, CIT # 22-00243).

The DOJ brief contests a Feb. 28 motion for judgment (see 2303010035) by Seneca Foods, a U.S. fruit and vegetable processor that uses tin mill products to make its own cans. In its six requests submitted between October 2021 and January 2022, Seneca claimed that domestic suppliers could not enter into contracts to supply Seneca’s needs between late 2020 and the spring of 2021. When Seneca filed its requests, it relied on by-then-old statements by domestic producers as the basis for its requests, Commerce said.

Commerce correctly concluded that U.S. Steel showed that it could have provided the requested products at the time through spot sales and Seneca’s evidence only addressed contract sale ability, DOJ said. Because Commerce found that the products were immediately available in the domestic industry and Seneca did not contradict U.S. Steel's evidence, Commerce rightly denied the requests, DOJ said.

But DOJ said Commerce denied Seneca's two additional March 2022 requests without reaching the merits of the requests. Commerce relied on a subject-matter expert to evaluate the Seneca's information and found that it was insufficient and contained conflicting information, the brief said.

Seneca argued that Commerce never explained what issues existed with the request or what information in the request conflicted with information from Seneca's confidential business information submission. DOJ agreed and asked the court to remand two of the eight denials to Commerce for reevaluation, saying that it "has a compelling interest in deciding whether the two requests can be considered on the merits" and that its interest outweighs the need for immediate finality.

DOJ argued that a judgment granting Section 232 exclusions outright would be "a clear overreach of the Court's authority," which is to review Commerce's determinations rather than impose its own.