In a Federal Register interim rule to be published on December 14, 2020, the Department of Commerce’s Bureau of Industry and Security (BIS) announced that it was revising certain aspects of the process for requesting exclusions from the additional duties and quantitative limitations implemented on imports of aluminum and steel under Section 232 of the Trade Expansion Act of 1962. This interim rule is the result of BIS’s effort to revamp the exclusion request process after continued criticism from the public and Congress. In May 2020, BIS sought public comment on the process; see Update of May 26, 2020 for additional details. Because it is an interim rule, a final public comment period will be available.
The interim rule makes three key changes to the 232 exclusion process:
- It establishes a “more efficient method for approving exclusions where objections have not been received in the past for certain steel or aluminum articles.” BIS will create “General Approved Exclusions” (GAEs) that may be used by any importing entity. BIS estimates that this change will result in a decrease of 5,000 exclusion requests annually. The issuance of GAEs covering certain steel or aluminum articles will be determined by BIS, in consultation with other agencies as necessary. BIS states that the public will not be involved in requesting new or revised GAEs but that BIS “will use the information provided in exclusion requests to inform its review.” Generally, GAEs will provide blanket exemptions for articles that previously received individual exclusions unopposed by domestic steel and aluminum producers. In establishing GAEs, BIS makes clear in the interim rule that (i) there will be no retroactive relief available when using GAEs; (ii) relief is only available to steel or aluminum articles that are entered for consumption, or withdrawn from warehouse for consumption, on or after the effective date of a GAE; and (iii) these GAEs are indefinite in length, but may be removed, revised or added to at any time by BIS via a Federal Register notice.
- It acknowledges that certain exclusion requesters may have requested more volume than needed and that “submitting large numbers of unneeded exclusion requests decreases the efficiency” of the exclusion process and creates issues for potential objectors. In response, the interim rule establishes a new certification for importers seeking an exclusion that will include the volume of imports required to ensure that the request “is consistent with the past use of steel or aluminum by an exclusion requester.” The interim rule also reminds parties of the prohibition against making false statements.
- It addresses complaints by U.S. objectors that they faced a higher standard than foreign suppliers because of BIS’s prior interpretation of the term “immediately,” which required an objector to provide the steel or aluminum articles within eight weeks but allowed the foreign supplier much longer than eight weeks to provide the same steel or aluminum articles. The interim rule retains the term “immediately” but has been modified to apply the same time standard to U.S. objectors and foreign suppliers.
The interim rule reduces the allowable length for exclusion requests, objections, rebuttals and surrebuttals. The rule removes the 25-page limit for exclusions and objections and replaces it with a 5,000-word limit and removes the 10-page limit for rebuttals and replaces that with a 2,500-word limit.
Public comments on this interim rule will be accepted until February 12, 2021. Any comments must be submitted electronically via the Federal eRulemaking website: http://www.regulations.gov on Docket number BIS-2020-0022 or RIN 0694-AH55.