United States Court of International Trade

Slip Op. 20-111

Before the U.S. Court of International Trade in JSW (Steel) USA, Inc. v. United States, Slip Op. 20-111, Court No. 19-00133 (August 5, 2020) was a challenge by a steel importer to the Department of Commerce’s denial of the company’s twelve (12) Section 232 tariff exclusion requests. The Court applied the traditional administrative test of arbitrary and capriciousness to Commerce’s determinations to deny the exclusion request.

“Under the arbitrary and capricious standard, courts consider whether the agency ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” Id. at 12. The Court said “[r]emand of all twelve exclusion requests is warranted because Commerce’s denials are devoid of explanation and frustrate judicial review.” Id. at 18. “The court cannot be certain what record evidence, if any, Commerce relied upon when both the … decision memoranda … [does] not explain what information the [agency] considered, how it was weighed, or why the evidence compelled denial.” Id. The Court remanded all 12 exclusion denials to Commerce for further consideration.