Commerce Wants Do-Over on Section 232 Exclusion Denials

The Commerce Department requested a voluntary remand in a Court of International Trade case over steel exporter Mirror Metals' denied Section 232 exclusion requests, finding that it is appropriate to reconsider the exclusion denials. The case concerns 45 exclusion requests for flat-rolled stainless steel products that are supposedly used in large-scale architectural projects. The requests saw objections from three domestic manufacturers, leading to Commerce denying all 45 exclusion bids. The leading reason for the denials given by Commerce was the availability of the domestic capacity to make the products in question (Mirror Metals, Inc. v. United States, CIT #21-00144).

Mirror Metals, in launching its case against the denials, said that the exclusion requests were denied "with no reasoning or analysis," and that Commerce erred by engaging in "undocumented, ex parte communications" with the three objectors. Further, Commerce denied 11 of the requests on the grounds that CBP advised Commerce that the product descriptions in the requests were inconsistent with the claimed classification under the Harmonized Tariff Schedule. Mirror Metals said that these denials, made without first providing notice or an opportunity to fix the requests, are arbitrary and unreasonable.

Without admitting any wrongdoing, Commerce nevertheless wants another go at the exclusion requests. "In assessing the correctness of Commerce’s original decision, Commerce will engage in a new and independent review of the record -- consisting of the original exclusion requests, the parties’ original objections, rebuttals and sur-rebuttals, and any other information that the decision-maker considers -- thereby removing disputes concerning what information the decision-maker considered at the time these decision were made, or that the agency considered ex parte information," the motion said.