On December 14, 2020, the Commerce’s Bureau of Industry and Security (BIS) published in the Federal Register an interim final rule [Docket No. 201203-0323] (“IFR”) that revises aspects of the process for requesting exclusions from the duties and quantitative limitations on imports of aluminum and steel discussed in three previous interim final rules implementing the exclusion process authorized by the President under Section 232 of the Trade Expansion Act of 1962, as amended (“232”). These changes are also informed by a notice of inquiry with request for comments on the 232 exclusions process that was published on May 26, 2020. Based on public comments on the current process for submissions to Commerce, Commerce is publishing this interim final rule to make additional revisions to the 232 exclusion process, including to the 232 Exclusions Portal. : The interim final rule is effective December 14, 2020, except for amendatory instructions 3 and 5 that are effective December 29, 2020. Comments on this interim final rule must be received by BIS no later than February 12, 2021, 2020.
There are three key changes to the exclusion process:
1. The IFR addresses the need to create a more efficient method for approving exclusions where objections have not been received in the past for certain steel or aluminum articles. Commerce has determined creating general approved exclusions that may be used by any importing entity is warranted. This has been noted by commenters who submit exclusion requests, and by trade associations that represent those companies, as one of the most important changes that could be made to improve the efficiency of the 232 exclusion process. As described in much greater detail in the IFR, Commerce addresses this issue with the adoption of General Approved Exclusions (GAEs). This change will result in an estimated immediate decrease of 5,000 exclusion requests annually, resulting in a significant improvement in efficiency, with the possibility of more in the future. Unlike exclusion requests, GAEs do not include quantity limits.
2. The IFR addresses a trend identified by commenters and validated in data reviewed by Commerce — that certain exclusion requesters may have requested more volume than they may have needed for their own business purposes compared to past usage. Submitting large numbers of unneeded exclusion requests decreases the efficiency of the 232 exclusions process for potential objectors and Commerce. It also creates issues for potential objectors. As described in greater detail in the IFR, this issue is addressed by adding a new certification requirement for volumes requested. Along the same lines, the IFR also adds a note to remind all parties submitting 232 submissions of the prohibition against making false statements to the US Government and the consequences that may occur for such false statements.
3. The IFR addresses an objector concern they were being held to a higher standard than foreign suppliers because of the interpretation that “immediately” meant the objector needed to be able to provide the steel or aluminum articles within 8 weeks, even though a foreign supplier may not be able to provide the same steel or aluminum article until much longer than 8 weeks. With this IFR the term “immediately,” is retained but language has been modified to apply the same time standard to US objectors and foreign suppliers for when the steel or aluminum articles need to be provided to the exclusion requester.
Commerce said that some comments to earlier proposals are not addressed in the IFR but will be addressed in future rules.
