On Friday, March 16, the Commerce Department released the details for the process to request and object to products exclusions related to the section 232 proclamations imposing 25 percent ad valorem tariffs on covered steel imports and 10 percent ad valorem tariffs on covered aluminum imports. The Commerce Department announced the release today and the interim final rule is published in today’s Federal Register.
Potential European Union Retaliation: Also on Friday, March 16, the EU released two lists of U.S. imports on which it would impose tariffs in retaliation for the United States’ imposition of tariffs on EU exports of steel and aluminum products. The first list would be implemented within 90 days and the second list would apply if the steel and aluminum tariffs are not eliminated within three years. Wood and wood products are not on the list for immediate retaliation, although some wood pulp products do appear on the second list, looking forward three years.
The Commerce Department exclusion process covers products “determined not to be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality or based upon specific national security considerations.” The Office of the U.S. Trade Representative (USTR) is working separately on potential country exclusions. This interim final rule is effective today and comments on this interim final rule are due in 60 days, by May 18.
Country Exclusion Process. Presidential Proclamations 9704 and 9705 on aluminum and steel products, respectively, provided that any country with which the United States has a security relationship may seek to discuss “alternative ways to address the threatened impairment of the national security caused by imports from that country.” If a “satisfactory alternative” is reached, the President may modify or remove the tariffs on imports from that country. Canada and Mexico have already been excluded (pending an agreement on NAFTA), and a number of additional countries are in discussions with the administration seeking exclusions, including Australia, Brazil, Japan and the European Union. Early reports indicate that Australia may be the first in line to receive a country exclusion. Unlike the product exclusion process, for which a time-limit was identified in the proclamation to establish a process, no such formal requirements were laid out with respect to the country exclusion process.
Requirements for Exclusion Requests: The Commerce Department has set up information pages for steel products and aluminum products.
- Submission: All exclusion requests must be submitted through the Federal rulemaking portal. The steel docket (BIS-2018-0006) and the aluminum docket (BIS-2018-0002) are expected to be added to www.regulations.gov later today.
- No Time Limit for Exclusion Requests; 30 Day Period for Objections: The Commerce process indicates that there is no time limit for requests. Objections to exclusion requests must be submitted 30 days after the exclusion requests are posted on www.regulations.gov.
- Forms for Exclusion Requests and Objections: Forms to request exclusions or to object to exclusions are found here for steel imports and are found here for aluminum imports.
- Requestors: Only individuals or organizations using the steel or aluminum articles in business activities (e.g., construction, manufacturing, or supplying steel to users) in the United States may submit exclusion requests. Requestors must have an Employer Identification Number or a Customs and Border Protection Import Number.
- Objections to Exclusion Requests: Any individual or enterprise in the United States may file an objection to the exclusion request. Forms for objections are found here for steel imports and here for aluminum imports.
- Separate Requests Required for Distinct Products: A separate exclusion request “must be submitted on each distinct type and dimension” of the steel or aluminum product to be imported. As further indicated on the forms, separate exclusion requests are required for products “with chemistry by percentage breakdown by weight, metallurgical properties, surface quality (e.g., galvanized, coated, etc.), and distinct critical dimensions (e.g., 0.25-inch rebar, 0.5-inch rebar; 0.5-inch sheet, or 0.75 sheet) covered by a common HTSUS subheading.” Separate exclusion requests are required for aluminum products “with distinct critical dimensions (e.g., 10 mm diameter bar, 15 mm bar, or 20 mm bar) covered by a common HTSUS statistical reporting number.” For both steel and aluminum, separate exclusion requests must also be submitted for products falling in more than one 10-digit HTSUS statistical reporting number.
- Exclusions Limited to Product and Individual Requestor: Approved exclusions are made only for the product requested imported by the individual or organization requesting making the request, unless the Commerce Department approves a broader exclusion. Subsequent requests by other individuals or enterprises made be made for the same product type through new supplements.
- Exclusion Requests May Be Made for Products Previously Denied: The Commerce notice indicates that it will review any exclusion request, even if a request for the same product was previously denied.
- Public Disclosure of Exclusion Requests and Exclusions, although companies with business confidential Information should indicate on the form that they have such information.
- Commerce Department Review: Review of exclusion requests will generally take place within 90 days.
- Time Limit and No Retroactivity for Approved Exclusions: Approved exclusions will be effective five business days after the approval is posted on www.regulations.gov and are not retroactive. Approved exclusions will generally be approved for only one year.