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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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In an <a href="https://www.thompsonhinesmartrade.com/wp-content/uploads/sites/783/2019/10/Commerce-OIG-memo-for-Secretary-Ross-Oct-28-2019.pdf" target="_blank" rel="noopener">October 28, 2019 memorandum</a> for Secretary of Commerce Wilbur Ross, the Department of Commerce&rsquo;s Office of Inspector General (IG) issued a &ldquo;management alert&rdquo; over concerns about the &ldquo;lack of transparency that contributes to the appearance of improper influence in decision-making&rdquo; for the Section 232 steel and aluminum tariff exclusion process. While not requesting any formal response, the IG noted that the issue would be included in a full audit report to be issued at a later date.
The alert raises concerns over (1) whether the Bureau of Industry and Security (BIS) and International Trade Administration (ITA) have been adhering to the processes and procedures in place to review Section 232 product exclusion requests and (2) the lack of transparency in the decision-making process. The memo notes that the IG discovered that officials and interested parties have had &ldquo;off-record communications&rdquo; that have not been documented and that subsequent actions have been based on those conversations. This behavior gives the appearance that the product exclusion process is not transparent, that there is an &ldquo;unofficial appeals process&rdquo; and that &ldquo;decisions are not rendered based on evidence contained in the record.&rdquo; In at least one reported instance, the memo notes that BIS revised a review criterion in the exclusion request process based on communications with an objecting party, that no other parties were aware of the communication or had the opportunity to comment, and that the resulting change &ldquo;will likely result in an increase in the number of exclusion requests [that are] rejected.&rdquo; This incident alone raises concerns of the appearance of improper influence on the review process.
As a result, the IG proposes that BIS consider these corrective actions:
<ol>
<li>regard all decisions as final once they are posted online, or amend the exclusion process regulations to allow for appeals;</li>
<li>create a formal process for modifying internal criteria that is used to review exclusion requests in order to ensure internal criteria are properly vetted and approved before implementation; and</li>
<li>document all discussions with interested parties, and direct all emails concerning specific exclusion requests to BIS&rsquo;s official organizational email addresses to ensure that the correspondence becomes part of the official record.</li>
</ol>

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Department of Commerce’s Inspector General Issues Alert on “Lack of Transparency” in Section 232 Tariff Exclusion Process