United States: Requirements For Steel And Aluminum Exclusion Requests Announced

On March 8, 2018, President Trump announced his final decision on the implementation of steel and aluminum tariffs, citing national security concerns.¹ These tariffs go into effect on March 23, 2018. The President's Proclamation announced the Department of Commerce ("DOC") would have 10 days to provide guidance to those seeking product-based exclusions to the newly announced tariffs. On March 19, 2018, the DOC provided an interim final rule ("the Interim Final Rule") listing the requirements for companies seeking product-based exclusions to the steel and aluminum tariffs.² The Interim Final Rule is effective March 19, 2018 and interested parties may submit comments to BIS no later than May 18, 2018. Commenters on the Interim Final Rule may submit comments regarding how and whether or not the country of origin of a proposed product should be considered by DOC as part of the process for reviewing product-based exclusion requests. There is no time limit for submitting exclusion requests, but objections to exclusion requests must be submitted within 30 days of the posting of the exclusion request. 

The Interim Final Rule amends the National Security Industrial Base Regulations (15 C.F.R. parts 700-705) to add two new supplements outlining the requirements and process for how parties in the United States may submit exclusion requests, or objections to the granting of exclusion requests. The two new supplements have different criteria based on the differences between the steel and aluminum industries. To submit exclusion requests, or objections to exclusions requests, companies must complete the forms found in the Bureau of Industry and Security's ("BIS").³ These forms are also found at regulations.gov under the applicable docket numbers.⁴

Exclusion requests must include the submitter's name, the date of submission, and the Harmonized Tariff Schedule of the United States ("HTSUS") number.⁵ Additionally, the requests must specify the business activities in which the requester is engaged that authorize the individual or organization to submit an exclusion request. Only individuals or organizations using articles identified in the President's Proclamation in business activities (e.g., construction, manufacturing, or supplying steel to users) in the U.S. may submit exclusion requests. The request should also clearly identify, and provide support for, the basis upon which an exclusion is sought. Finally, exclusions will only be granted if the article is not produced in the U.S. in a sufficient and reasonable amount, is not produced in the U.S. in a satisfactory quality, or for a specific national security consideration. All exclusion requests must be in electronic form and submitted to the Federal rulemaking portal.⁶ Separate exclusion requests must be filed for products falling in more than one HTSUS number. Similarly, objections to submitted exclusion requests must clearly identify, and provide support for, its opposition to the proposed exclusion, with reference to the specific basis identified in, and the support provided for, the submitted exclusion request.

Any approved exclusion requests will be made on a product by product basis and limited to the individual or organization that submitted the exclusion request, unless the DOC adopts a broader exclusion. The review period will generally not exceed 90 days, and approved exclusions will be effective five business days after publication of the response. All approved exclusions will generally be approved for one year.

While no deadline for submissions has been implemented by the Interim Final Rule, companies wishing to obtain an exclusion should move quickly. The steel and aluminum tariffs take effect on March 23, 2018. Please do not hesitate to contact Torres Law with any assistance you or your company may need with applying for product based exclusions.

Footnotes

1 For more information regarding President Trump's steel and aluminum proclamation, please refer to our previously published article, Tariffs on Steel, a Sign of Trade Wars on the Horizon. Available at: http://www.torrestradelaw.com/posts/Tariffs-on-Steel%2C-a-Sign-of-Trade-Wars-on-the-Horizon/138.

2 Federal Register, Requirements for Submissions Requesting Exclusions From the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel Into the United States and Adjusting Imports of Aluminum Into the United States; and the Filing of Objections to Submitted Exclusion Requests for Steel and Aluminum, https://www.federalregister.gov/documents/2018/03/19/2018-05761/requirements-for-submissions-requesting-exclusions-from-the-remedies-instituted-in-presidential (last visited March 19, 2018).

3 The steel exclusion request form can be found at https://www.bis.doc.gov/index.php/232-steel#. The aluminum exclusion request form can be found at https://www.bis.doc.gov/index.php/232-aluminum#.

4 The docket number for steel is BIS-2018-0006. The docket number for aluminum is BIS-2018-0002.

5 Id.

6 Exclusion requests should be submitted at https://www.regulations.gov/.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.