Further to the below, the Department of Commerce will publish procedures for (i) requesting product-based exclusions from the section 232 duties on steel and aluminum, and (ii) objecting to such requests, in tomorrow’s Federal Register (an advance copy of the Federal Register notice is attached here). Any company potentially interested in seeking an exclusion for one or more articles covered by the section 232 duties should review the notice. In particular, there are a number of key items worth noting:
(1) exclusion petitions may be submitted only by “individuals or organizations using [steel or aluminum] articles . . . in business activities . . . in the United States”;
(2) objections to exclusion petitions may be submitted by “any individual or organization in the United States”;
(3) any approved exclusion petitions will be limited to a specific article (unless Commerce specifies a broader exclusion is granted) and to the petitioner (i.e., you cannot generally get the benefit of someone else’s exclusion petition); you can, however, file “follow-on” petitions;
(4) exclusions petitions must be filed electronically, using a specific form created for this purpose; objections must be filed within 30 days of an exclusion petition being filed, also using a specific form; petitions can cover only a single 10-digit Harmonized Tariff Schedule classification; and the review process will generally take 90 days from date of filing; and
(5) approved exclusions will be effective 5 business days after the approval is published; and will “generally” be good for 1 year.
Product exclusion petitions will only be approved “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.” We expect that Commerce will approve petitions only sparingly, and primarily for valid national security-related considerations.
Product based exclusions can be filed beginning tomorrow, March 19, 2018. If you are considering doing so, we recommend filing as soon as possible. That said, it is important that your petition be as well prepared as possible (e.g., consider scope issues, the import data, whether there are any national security implications/allies in the federal government, any likely objections, etc.) to give it the best chance of success. We are assisting many clients prepare petitions and would be happy to discuss this with you further. If you are interested in doing so, please let us know.