On February 10, 2022, the Department of Commerce (“the Department”) published a Federal Register notice requesting public comments on the process for seeking exclusions from the Section 232 steel and aluminum tariffs. Comments are due on March 28, 2022.

The Department is soliciting comments with regard to two areas in particular. First, as directed by the recent Presidential Proclamation regarding the U.S.-EU steel deal, the Department has requested feedback regarding the responsiveness of the exclusion process to “market demand and enhanced consultation with U.S. firms and labor organizations.” Second, the Department noted that it would also be open to receiving comments on specific aspects of the Section 232 exclusion process, including potential changes regarding the information being requested, how the process proceeds, the standard of review, General Approved Exclusions (“GAEs”), and the transparency of the system. The notice lists the following issues and possible changes as areas for comment as well:

  • How to reduce the volume of submission errors and rejected filings in the Section 232 Exclusions Portal
  • How to address the time for processing of exclusion requests, including but not limited to reducing length or type of attachments
  • Requiring public summaries of any confidential business information in exclusion requests and objections, similar to the existing requirement for rebuttal and surrebuttals
  • Requiring public disclosure of delivery times on the Exclusion Request and Objection Forms
  • Requiring recent (i.e., from the last quarter or 90 days) evidence supporting claims made in a Request or Objection
  • Streamlining the online forms or otherwise reducing administrative burden; and
  • Assessing the GAEs criteria and identification of specific products

For companies that have been using the Section 232 exclusion process, this is an excellent opportunity to raise any issues or problems that have been encountered. In addition, although not mentioned in the request, this could also be an opportunity for companies to comment on the extended exclusions that were issued as part of the U.S.-EU agreement, since the Department did not provide the public any opportunity to address how it intended to manage that process.