The Executive Order announcing increased tariffs on steel and aluminum products also required a process for excluding articles for which there “is a lack of sufficient U.S. production capacity of comparable products,” or “for specific national security-based considerations.” With those tariffs about to take effect, the Commerce Department has adopted an “interim final rule” setting forth “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.”
This rule identifies the parties authorized to file exclusion requests, the information they must provide and the procedures that will govern disposition of requests. These are summarized below.
To be accepted for consideration, an exclusion request must be filed by an individual or organization that uses aluminum, or steel, “in business activities (e.g., construction, manufacturing, or supplying [the] product to users) in the United States.” Objections to exclusion requests may be filed by “[a]ny individual or organization in the United States.”
Requests are required to set forth a substantial amount of information regarding the submitting party and the product covered.
On the first point, a request must identify the requester and “specify the business activities in the United States within which the requester is engaged that authorize [it] to submit” and “clearly identify, and provide support for, the basis upon which the exclusion is sought.”
Second, each request should identify the applicable “10-digit Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting number”, along with information regarding product characteristics (such as type, size and chemical and metallurgical properties), source and applications, unavailability in the United States and quantity for which exclusion is sought. Each request is limited to a single product.
The standard for objections is broader: they must identify the objecting party and “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.”
There is no time limit for exclusion requests. Objections must be filed no later than 30 days after the date of the exclusion’s submission.
Requests and objections must be submitted electronically to the regulations portal, using one of the forms adopted for this purpose by Commerce. They are limited to 25 pages “inclusive of all exhibits and attachments, but exclusive of the respective forms.”
As explained by Commerce, “[a]n exclusion will only be granted if an article is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for a specific national security consideration.”
A successful exclusion request does not necessarily benefit parties other than the submitter. Exclusions will be approved “on a product basis and . . . be limited to the individual or organization that submitted the specific exclusion request, unless Commerce approves a broader application of the product-based exclusion request to apply to additional importers.”
Need for Speed
Even though there is no deadline for submitting requests, domestic parties interested in seeking duty relief probably should pursue this option sooner rather than later. The anticipated “review period normally will not exceed 90 days, including adjudication of objections submitted on exclusion requests.” While that may be the equivalent of a nanosecond in government time, it’s an eternity for importers paying the extra duties (25 percent for steel and 10 percent for aluminum.) Exclusions will remain in effect for a year, but will only be effective 5 days after the date of issuance; there is no provision for retroactive application.