Background

The Bureau of Industry and Security is seeking comments by July 10 on its administration of, as well as potential revisions to, the process for obtaining exclusions from the Section 232 tariffs and quotas on imported steel and aluminum articles. Commerce Secretary Wilbur Ross indicated that comments will be used to help BIS apply these measures effectively “while avoiding unnecessary impacts on downstream American industries.”

BIS states that as of March 23 it had received 179,128 requests for such exclusions, including 157,983 for steel and 21,145 for aluminum. Of those requests, 34,970 were rejected and 33,297 received objections. BIS has posted 114,009 decisions, with 78,569 exclusions granted and 25,440 denied.

BIS is now seeking input on the appropriateness of the factors considered, and the efficiency and

transparency of the process employed, in rendering decisions on exclusion requests. Specific topics for potential comments include the following.

- the information sought on the exclusion request, objection, rebuttal, and surrebuttal forms

- expanding or restricting eligibility requirements for requestors and objectors

- the Section 232 Exclusions Portal

- the requirements for requesting exclusions

- the factors considered in rendering decisions on exclusion requests

- the information published with the decisions

- BIS website guidance and training videos

- the definition of “product” governing when separate exclusion requests must be submitted

- the incorporation of steel and aluminum derivative products into the product exclusion process

BIS is also inviting comments on potential revisions to the exclusion process, including the following.

- one-year blanket approvals of exclusion requests for product types that have received no objections as of a baseline date (see attached for annexes listing such products)

- one-year blanket denials of exclusion requests for product types that have received 100 percent objection rates and never been granted as of a baseline date (see attaches for annexes listing such products)

- time-limited annual or semiannual windows during which all product-specific exclusion requests and corresponding objections may be submitted and decided

- issuing an interim denial memo to requesters who receive a partial approval of their exclusion request until they purchase the domestically available portion of their requested quantity

- requiring requestors to make a good faith showing of the need for the product in the requested quantity, as well as that the product will in fact be imported in the quality and amount, and during the time period, to which they attest in the exclusion request

- requiring objectors to submit factual evidence that they can in fact manufacture the product in the quality and amount, and during the time period, to which they attest in the objection

- setting a limit on the total quantity of product that a single company could be granted an exclusion for based on an objective standard, such as a specified percentage increase over a three-year average

- requiring that requesters citing national security reasons as a basis for an exclusion request provide specific, articulable, and verifiable facts supporting such assertion

- clarifying that the domestic product is “reasonably available” if it can be manufactured and delivered in a time period that is equal to or less than that of the imported product

- requiring that requestors demonstrate that they have tried to purchase the product domestically

- in the rebuttal/surrebuttal phase, requiring that both requestor and objector demonstrate that they have attempted to negotiate in good faith an agreement on the said product

For more information on Section 232 tariffs, please contact trade attorney Kristen Smith at (202) 730-4965.

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