46026 Federal Register / Vol. 83, No. 176 / Tuesday, September 11, 2018 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Part 705 

[Docket No.: 180227217–8217–02] 

RIN 0694–AH55 

Submissions of Exclusion Requests 

and Objections to Submitted Requests 

for Steel and Aluminum 

AGENCY: Office of Technology 

Evaluation, Bureau of Industry and 

Security, U.S. Department of Commerce. 

ACTION: Interim final rule. 

SUMMARY: On March 8, 2018, President 

Trump issued Proclamations 9704 and 

9705 (referred to henceforth as the 

‘‘Proclamations’’), imposing duties on 

imports of aluminum and steel. The 

Proclamations also authorized the 

Secretary of Commerce (referred to 

henceforth as the ‘‘Secretary’’) to grant 

exclusions from the duties if the 

Secretary determines the steel or 

aluminum article for which the 

exclusion is requested is not ‘‘produced 

in the United States in a sufficient and 

reasonably available amount or of a 

satisfactory quality’’ or should be 

excluded ‘‘based upon specific national 

security considerations.’’ 

On March 19, 2018, the Department 

issued an interim final rule (referred to 

henceforth as the ‘‘March 19 rule’’), 

setting forth the requirements a directly 

affected party located in the United 

States must satisfy when submitting 

exclusion requests. The March 19 rule 

also set forth the requirements that U.S. 

parties must meet when submitting 

objections to exclusion requests. The 

March 19 rule amended the National 

Security Industrial Base Regulations to 

add two new supplements. 

The rule published today by BIS, on 

behalf of the Secretary, revises the two 

supplements added by the March 19 

rule. The revisions are informed by the 

comments received in response to the 

March 19 rule and the U.S. Department 

of Commerce’s (referred to henceforth as 

‘‘the Department’’) experience with 

managing the exclusion and objection 

process. The Department understands 

the importance of having a transparent, 

fair and efficient exclusion and 

objection process. The publication of 

today’s rule should make significant 

improvements in all three respects, but 

due to the scope of this new process, 

BIS is publishing today’s rule as an 

interim final rule with request for 

comments. 

DATES: 

Effective date: This interim final rule 

is effective September 11, 2018. 

Comments: Comments on this interim 

final rule must be received by BIS no 

later than November 13, 2018. 

See SUPPLEMENTARY INFORMATION

section for information on submitting 

exclusion requests, objections thereto, 

rebuttals, and surrebuttals. 

ADDRESSES: All comments on this 

interim final rule must be submitted by 

one of the following methods: 

• By the Federal eRulemaking Portal: 

http://www.regulations.gov. Comments 

on this interim final rule may be 

submitted to regulations.gov docket 

number BIS–2018–0016. 

• By email directly to 

publiccomments@bis.doc.gov. Include 

RIN 0694–AH55 in the subject line. 

• By mail or delivery to Regulatory 

Policy Division, Bureau of Industry and 

Security, U.S. Department of Commerce, 

Room 2099B, 14th Street and 

Pennsylvania Avenue NW, Washington, 

DC 20230. Refer to RIN 0694–AH55. 

FOR FURTHER INFORMATION CONTACT: Brad 

Botwin, Director, Industrial Studies, 

Office of Technology Evaluation, Bureau 

of Industry and Security, U.S. 

Department of Commerce (202) 482– 

5642, Steel232@bis.doc.gov regarding 

provisions in this rule specific to steel 

exclusion requests and (202) 482–4757, 

Aluminum232@bis.doc.gov regarding 

provisions in this rule specific to 

aluminum exclusion requests. 

SUPPLEMENTARY INFORMATION: 

Background 

On March 8, 2018, President Trump 

issued Proclamations 9704 and 9705, 

imposing duties on imports of 

aluminum and steel. The Proclamations 

also authorized the Secretary to grant 

exclusions from the duties if the 

Secretary determines the steel or 

aluminum article for which the 

exclusion is requested is not ‘‘produced 

in the United States in a sufficient and 

reasonably available amount or of a 

satisfactory quality’’ or should be 

excluded ‘‘based upon specific national 

security considerations.’’ 

On March 19, 2018, the Department 

issued an interim final rule, setting forth 

the requirements U.S. businesses must 

satisfy when submitting exclusion 

requests. On behalf of the Secretary, BIS 

published the March 19 rule, 

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 (83 

FR 12106). The March 19 rule also set 

forth the requirements that U.S. parties 

must meet when submitting objections 

to exclusion requests. The March 19 

rule amended the National Security 

Industrial Base Regulations to add two 

new supplements, Supplements No. 1 

(for steel exclusion requests) and No. 2 

(for aluminum exclusion requests) to 

part 705. The Department started this 

process with the publication of the 

March 19 rule and is continuing that 

process to make various improvements 

with the publication of today’s rule. 

Updates & Improvements to Section 232 

Steel and Aluminum Exclusion Request 

and Objection Processes 

The rule published today by BIS, on 

behalf of the Secretary, makes changes 

to the two supplements added in the 

March 19 rule: Supplement No. 1 to Part 

705—Requirements for Submissions 

Requesting Exclusions from the 

Remedies Instituted in Presidential 

Proclamation 9705 of March 8, 2018 

Adjusting Imports of Steel Articles into 

the United States; and to Supplement 

No. 2 to Part 705—Requirements for 

Submissions Requesting Exclusions 

from the Remedies Instituted in 

Presidential Proclamation 9704 of 

March 8, 2018 to Adjusting Imports of 

Aluminum into the United States. 

The rule published today also makes 

needed changes to the two supplements 

to address the directives included in the 

Presidential Proclamations 9777 and 

9776 of August 29, 2018, whereby 

President Trump directed that as soon 

as practicable, the Secretary of 

Commerce shall issue procedures for 

requests for exclusions described in 

clause 1 and clause 2 of these two 

proclamations to allow for exclusion 

requests for countries subject to 

quantitative limitations. Today’s rule 

makes changes to add clause 1. The 

Department has already created a 

separate exclusion process for clause 2 

on the Commerce website at 

www.bis.doc.gov/index.php/232-steel, 

so no changes are made in today’s rule 

to address the directive included in 

clause 2 of Proclamation 9777. The rule 

published today will fulfill the 

Presidential directives included in the 

two most recent Proclamations, as well 

as the earlier Proclamations that 

directed the Secretary to create an 

exclusion process to ensure users of 

steel and aluminum in the United States 

would continue to have access to the 

steel and aluminum that they may need. 

The changes to the exclusion 

processes in this rule are informed by 

both the comments received in response 

to the March 19 rule and the 


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Department’s experience with managing 

the exclusion process. The comments 

identified a number of areas where 

transparency, effectiveness and fairness 

of the exclusion and objection process 

could be improved, including adding a 

rebuttal and surrebuttal process. The 

Department has incorporated changes 

based on many of those comments and 

has also included other process 

improvements. The publication of 

today’s rule should make significant 

improvements in all three respects, but 

because of the scope of this new 

process, BIS is publishing today’s rule 

as a second interim final rule with 

request for comments. 

Since March 19, the Department has 

worked to develop its exclusion process 

to ensure that the duties and 

quantitative limitations protect our 

national security while also minimizing 

undue impacts on downstream U.S. 

industries. Two specific Commerce 

components have worked closely in this 

effort: BIS and the International Trade 

Administration (ITA). BIS is the lead 

agency deciding whether to grant steel 

and aluminum tariff exclusion requests, 

and ITA is analyzing requests and 

objections to evaluate whether there is 

domestic production available to meet 

the requestor’s product needs, as 

provided in the exclusion requests. 

Since March 19, the Department has 

diligently worked to develop its 

exclusion process to ensure that the 

duties and quantitative limitations 

protect critical U.S. national security 

while minimizing undue impacts on 

downstream U.S. industries. The 

Department has already taken several 

steps to improve the exclusion process, 

including expediting the grant of 

properly filed exclusion requests that 

receive no objections and present no 

national security concerns, as well as 

increasing and organizing the 

Department’s staff to efficiently process 

exclusion requests. The publication of 

today’s rule provides an exclusion 

process for steel and aluminum articles 

subject to quantitative limitations and is 

an important step in further improving 

the exclusion request and objection 

process, including through the addition 

of a rebuttal and surrebuttal process. 

As of August 20, the Department had 

received more than 38,000 exclusion 

requests and more than 17,000 

objections. To streamline the exclusion 

review process, the Department has 

already taken steps to expedite the 

granting of properly filed exclusion 

requests which receive no objections 

and present no national security 

concerns. The Department has also 

worked to increase and organize its staff 

to efficiently process exclusion requests. 

The publication of today’s rule is an 

important step in improving the 

exclusion and objection process. 

Types of Comments the Department is 

Requesting on Today’s Rule 

The Department is not seeking 

comments on the duties and 

quantitative limitations or the exclusion 

and objection process overall, but rather 

on whether the specific changes 

included in this second interim final 

rule have addressed earlier concerns 

with the exclusion and objection 

process. Comments specific to the 

changes included in today’s rule will be 

the most helpful for the Department to 

receive, including comments on how 

the changes (e.g., the adding of a 

rebuttal and surrebuttal to the process) 

interact with the established exclusion 

and objection process and whether the 

commenters believe these changes 

improve the exclusion and objection 

process by making it more transparent, 

fair and efficient, as well as highlighting 

any unintended consequences of the 

changes made in today’s rule. 

Public Comments and BIS Responses 

The public comment period on the 

March 19 rule closed on May 18, 2018. 

BIS received 67 public comments on the 

interim final rule. Most of the comments 

were well thought out and supported 

their positions with a great deal of 

specificity. Many commenters made 

comments on the imposition of duties 

and quantitative limitations and 

whether or not that was a good idea. 

Those comments are outside the scope 

of the March 19 rule that was focused 

on creating an exclusion and objection 

process, thus the Department is not 

summarizing or providing responses to 

those general comments on the duties 

and quantitative limitations. The 

Department is responding to comments 

regarding concerns on the downstream 

impacts of U.S. manufacturers that use 

steel and aluminum, which is directly 

relevant to whether the exclusion 

process created in the March 19 rule is 

efficient enough to mitigate those 

downstream end users’ concerns. 

Commenters were generally 

supportive and welcomed the idea of 

creating an exclusion process, but most 

of the commenters believed the 

exclusion process was not working well 

and needed to be significantly improved 

in order for it to achieve the intended 

purpose. The commenters covered a 

broad range of industries and included 

some of the largest companies in the 

world, along with small to mid-size 

(SME) enterprises expressing significant 

concern over the duties and quantitative 

limitations and the difficulties in 

managing the exclusion process. Several 

of the SMEs indicated that without an 

efficient exclusion process, it is likely 

they may not survive or will face 

significant cut backs in employment and 

business activities. Larger companies 

indicated that without an efficient 

exclusion process, it is likely that major 

projects that they may have otherwise 

undertaken will likely not be 

undertaken. Commenters from the oil 

and gas industries and petrochemical 

industries hit on these points. 

Many downstream manufacturers that 

use steel and aluminum were 

particularly concerned with suffering 

from higher input costs, while at the 

same time having to compete directly 

with foreign competitors in other 

countries; e.g., China, but also countries 

such as Canada and Mexico. Many 

commenters argued that the exclusion 

process was overly and unnecessarily 

restrictive and did not take into account 

how steel and aluminum are procured 

and used in the United States. 

Commenters supporting and opposing 

the duties and quantitative limitations 

submitted comments on what they 

thought needed to be changed in the 

exclusion and the objection process to 

make it more fair, efficient and effective. 

Commenters included references to 

arbitrary and capricious government 

action and laid out from their 

perspective how the exclusion and 

objection process could be legally 

challenged if not improved. 

Concerns With Unintended 

Downstream Impacts That Steel and 

Aluminum Duties and Quantitative 

Limitations Will Have on U.S. 

Manufacturers and Consumers 

The Department received a significant 

number of detailed comments that 

raised concerns in this area. The 

comments came from a broad spectrum 

of U.S. industries, including many 

major sectoral employers. The creation 

of an effective product based exclusion/ 

objection process (and with the 

publication of today’s rule, a rebuttal/ 

surrebuttal process) is intended to 

address as many of these types of 

concerns as possible. As detailed below, 

many commenters do not believe that 

the exclusion/objection process is 

effective and that because of how 

products are sourced and used in the 

manufacturing process, it is unlikely to 

succeed. 

Comment (a)(1): Concerns for 

unintended downstream impacts for 

U.S. manufacturers. A small 

manufacturer noted that a 25 percent ad 

valorem duty increases their Cost of 

Goods Sold (COGS) by 7 percent, which 

can be the difference between 


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profitability and loss for their employeeowned company. This commenter noted 

that it has been portrayed in the media 

that this duty will have an impact of one 

half of one percent on the total cost of 

U.S. produced product. This commenter 

noted that its potential impact is 

fourteen times that. Many additional 

commenters provided additional 

examples from their experience. One 

manufacturer of dump bodies for dump 

trucks asserted that a 25 percent 

increase in steel prices would result in 

an ‘‘11 percent increase in wholesale 

product price’’ for the company. A 

commercial construction company 

asserted that ‘‘steel building suppliers 

increased [their prices by] 25–29 

percent overnight and will only hold 

pricing for 15 days.’’ The company 

anticipates price increases ‘‘across the 

board on more subcontractors and 

suppliers’’ as they anticipate a shortage. 

Another downstream manufacturer 

asked ‘‘how the Department will 

monitor and report on the effect of this 

tariff on the primary manufacturers of 

aluminum in the U.S., let alone 

downstream industries, which were 

ignored in the 232 report?’’ Other 

commenters noted that it is not only the 

232 duties and quantitative limitations 

that are putting pressure on these U.S. 

manufacturers, but also the other 

various trade remedies that the U.S. has 

implemented. 

BIS response: The Department 

understands that the consistent message 

from these commenters is that they are 

feeling pressure from the duties and 

quantitative limitations, and in many 

cases the commenters believe the costs 

may not be absorbable by these 

companies and the market. This puts 

pressure on the U.S. steel and 

aluminum industries to ramp up 

production and in the interim for an 

effective exclusion process to fill the 

void. The Department understands that 

and is taking steps to ensure the 

exclusion process is efficient enough to 

fill the void to avoid any unintended 

economic impact to downstream U.S. 

industries. The changes made in today’s 

rule will improve the efficiency of the 

process and address these comments. 

The Department will be monitoring the 

domestic aluminum and steel 

industries, as well as industries 

consuming steel and aluminum, to 

regularly evaluate the competitiveness 

of U.S. industry. The exclusion process 

is available to individuals and 

companies to ensure that they can 

obtain adequate supply of steel and 

aluminum products of size, shape, and 

function that are not available in the 

United States in adequate quantity or 

quality. 

Comment (a)(1)(ii): Recommends 

additional analysis is done of the 

downstream impact of duties and 

quantitative limitations. Some 

commenters recommended the 

Department review, on a regular basis, 

the impact of duties and quantitative 

limitations on the economy and 

downstream users and develop and 

implement a plan to sunset them if they 

prove to have a significant unintended 

impact. These commenters urged the 

Department to consider the unintended 

consequences of these duties and 

quantitative limitations in any review. 

One such consequence would be 

companies further down the supply 

chain importing finished goods at lower 

prices instead of purchasing higherpriced U.S. manufactured goods from 

companies that imported raw and semifinished materials subject to duties and 

quantitative limitations. 

BIS response: The Secretary has 

directed the Department economists to 

regularly review the impacts of the steel 

and aluminum duties and quantitative 

limitations, including on downstream 

sectors. The Secretary will present this 

information to the President for his 

consideration as appropriate. 

Comment (a)(1)(iii): Higher input 

costs for steel and aluminum will have 

a chilling effect on capital intensive 

investments that require a large amount 

of steel and aluminum, e.g., for energy 

exploration and production or 

petrochemical production. Commenters 

from major trade associations for oil and 

gas exploration noted that a process that 

generally involves granting only oneyear product exclusions would impede 

the ability to plan for the long term by 

introducing significant uncertainties as 

to when, whether, where, and at what 

price the member companies can 

purchase the steel inputs needed to 

bring U.S. oil and natural gas projects to 

fruition. Planning and locking in cost 

projections for equipment and materials 

is often key to determining whether a 

project’s economics merit approval. 

Other major industry associations, such 

as a trade association for the auto 

industry, identified an impact on 

investments in the U.S. that they 

attribute to the duties and quantitative 

limitations. These commenters believe 

the duties and quantitative limitations 

will have an impact on these 

manufacturers, the jobs they create, and 

ultimately the American consumer. 

BIS response: The Department 

believes an effectively managed and 

configured exclusion/objection process, 

with a rebuttal/surrebuttal process being 

added with today’s rule, will 

significantly mitigate these concerns. 

U.S. steel and aluminum manufacturers 

are already starting to increase 

production, and the exclusion process 

will be there to fill any temporary gaps 

in the U.S. supply to ensure that 

companies, such as those involved in oil 

and gas exploration and production and 

the automotive industry, will have the 

steel and aluminum they need to 

continue to invest in the United States. 

Comment (a)(1)(iv): Consumers will 

face increased prices. Commenters 

noted that the cost of their finished 

goods will increase because of the 

duties and quantitative limitations and 

those increases will be passed to 

consumers. A commenter noted that in 

order to compensate for their increased 

steel cost they will be forced to raise 

their finished product cost by at least 8 

percent. ‘‘That may seem like a small 

margin, but in today’s global market that 

is enough to cause a company to be 

forced to relocate manufacturing outside 

of the U.S., import finished foreign 

product, or ultimately to close their 

doors completely.’’ Another commenter 

noted that for 84 years in Harlan, Iowa 

this company has been a manufacturer 

of spare parts for mills used to make 

animal feed in the agriculture industry. 

The duties and quantitative limitations 

will drastically increase their costs and 

U.S. feed suppliers will see an increase 

in production costs to produce feed, 

leading to an increase in the cost of our 

food. 

BIS response: The Department agrees 

there may be some short term price 

adjustments that may reach consumers, 

but we believe that the price increases 

at the consumer level will be minimal. 

The Secretary has, as noted above, also 

directed the Department economists to 

regularly review the impacts of the steel 

and aluminum duties and quantitative 

limitations, including on downstream 

sectors. 

Concerns Over the U.S. Supply Chain 

and Comments Asserting That the 

Exclusion Objection Process Are 

Inefficient and Not Consistent With 

Business Practices, Regulatory 

Requirements, and Contractual 

Agreements for Sourcing Materials 

Comment (b)(1): Concern that 

exclusion process is not consistent with 

business procurement practices. 

Commenters asserted that the exclusion 

process does not take into account 

several key aspects of how the U.S. 

supply chain functions. A commenter 

asserted that companies generally 

classify their suppliers into a multitiered list, such as acceptable, approved, 

and preferred. Each of these tiers 

indicates the compliance with quality 


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standards based on years of experience 

with a supplier’s product. Even after a 

supplier adds new capacity, additional 

time is needed for purchasers of steel to 

technically qualify these new mills/ 

lines. Adding a new supplier to an 

approved manufacturers list is a lengthy 

process, taking as long as three years as 

a company wants to be assured of a 

supplier’s ability to manufacture a 

product to a given standard 

consistently. 

BIS response: The exclusion process 

created in the supplements added in the 

March 19 rule and the Proclamations 

include criteria requiring suitable 

quality of U.S. steel and aluminum to 

deny an exclusion request. The detailed 

form for requesting exclusions and the 

form for submitting objections are 

intended to provide enough information 

for individuals and companies to 

determine whether in fact a U.S. 

supplier can supply the steel or 

aluminum in the quantities and quality 

needed. If a U.S. supplier objects to an 

exclusion request, the burden is on that 

supplier to demonstrate that the 

exclusion should be denied because of 

failure to meet the specified criteria. As 

described below in the regulatory 

changes, today’s rule is adding 

additional text to paragraph (d)(4) in the 

two supplements to provide greater 

specificity for objections, which will be 

responsive to these types of comments. 

Today’s rule adding a rebuttal process to 

paragraph (f) to allow requesters of 

exclusions to rebut information 

included in an objection to their 

exclusion request will also improve the 

process and address these types of 

concerns raised by these commenters. 

Comment (b)(2): Factors beyond an 

importer’s control may limit their ability 

to change suppliers. Commenters 

asserted that regulatory requirements 

often limit the ability for U.S. 

manufacturers to make changes in the 

inputs, e.g., in the medical area or food 

products area. Offshore drilling and 

aircraft are other examples. Therefore, 

making changes in suppliers may not be 

permissible, or if it is, it may be 

expensive and/or time consuming. One 

commenter asserted that under Federal 

Food and Drug Administration 

regulations, substitution of the foil 

substrate could take two to ten years for 

approval, depending on use in 

packaging for food or medical devices. 

Another commenter asserted that given 

the low volume and high investment 

necessary to manufacture and smelt 

some specialty products for vehicles, 

many U.S. steel producers simply have 

decided not to enter into these markets. 

It can take many years for a company to 

test and validate that a material 

producer’s product will meet the 

specifications necessary to perform as 

required for many of these safety-critical 

parts. 

BIS response: The Department, when 

evaluating whether suitable quality of 

steel or aluminum supply exists in the 

United States, can take into account the 

types of factors asserted here by the 

commenters in two respects. First, these 

considerations may be taken into 

account when deciding whether to grant 

an exclusion request and second, these 

considerations may be taken into 

account when determining the 

appropriate validity period for an 

exclusion request. As described below, 

regulatory changes that add paragraphs 

(c)(6)(i) and (ii) to better define the 

exclusion review criteria and paragraph 

(h)(2)(iv) to provide additional context 

for how the Department determines the 

appropriate validity for exclusions will 

be responsive to these comments. 

Comment (b)(3): A one year window is 

not consistent with the way many raw 

materials are sourced. One commenter 

asserted that the restriction of 

exclusions to specific supplier and 

country of origin combinations may 

make it difficult for the commenter to 

actually use an exclusion if one were 

granted because the company does not 

have visibility as to the country of origin 

or producer when sourcing aluminum 

through traders. At the time the 

commenter makes minimum purchase 

commitments, it does not know which 

traders will have inventory from which 

specific countries or which markets will 

have the most favorable pricing. In order 

to obtain an exclusion for its purchases 

from traders, the commenter would 

have to apply for an exclusion for each 

product from every market from which 

the commenter’s traders could 

reasonably be expected to source 

product. Another commenter asserted 

that a problem could arise when the 

product delivered is not identical to 

what is ordered. In some instances, even 

though this commenter may place an 

order for one grade of aluminum, it 

might receive a better grade when there 

is a larger inventory of the higher graded 

product and the price differential is 

small. If an exclusion is limited to a 

specific grade and chemical 

composition of aluminum, the 

commenter would be forced to pay the 

tariff to use the product that was 

delivered. If the aluminum user must 

reject a shipment and wait for the 

specific grade covered by an exclusion, 

that could cause delays in its 

production process which could result 

in damages being assessed by its 

customers. 

BIS response: The Department 

understands that in the types of 

scenarios described by these 

commenters the usefulness of an 

exclusion may be limited or obtaining 

additional exclusions to cover 

additional sourcing activity may be 

needed. The Department believes that 

some of the concerns may be overstated 

and that, based on past procurement 

activities, patterns of steel and 

aluminum procurement can be 

identified to significantly limit the total 

number of exclusions that may need to 

be requested. These organizations may 

also attempt to begin sourcing more of 

their steel and aluminum procurement 

needs from U.S. manufacturers. Today’s 

rule nevertheless clarifies in (c)(2) in 

both supplements that the exclusion 

request forms do allow for minimum 

and maximum dimensions, as well as 

clarifying that ranges are acceptable 

when the manufacturing process 

permits small tolerances. A permissible 

range must be within the minimum and 

maximum range that is specified in the 

tariff provision and applicable legal 

notes for the provision. These changes 

to paragraph (c)(2) will also help 

address some of the concerns raised by 

these commenters. 

Comment (b)(3)(i): Exclusion process 

and timeline are difficult to align with 

real-world purchasing and contract 

decisions. One commenter asserted that 

like many companies, it makes purchase 

decisions on a calendar year basis. For 

calendar year 2018, this company has 

already obligated itself to purchase 

guaranteed minimum amounts from 

certain suppliers. The company has 

already obligated itself to purchase 

certain volumes for 2019 and expects to 

sign purchase contracts for the 

remaining volume for 2019 in mid to 

late 2018. Even if the exclusion requests 

are renewable at the end of their oneyear term, this company is concerned it 

will be forced to make 2020 purchasing 

commitments without knowing whether 

the full year’s purchases will be subject 

to duties or not. 

BIS response: The Department 

understands the concerns being raised. 

Organizations, such as those that need 

to make purchasing decisions multiple 

years out in the future, should include 

in the exclusion request information to 

that effect. This type of information may 

be used to support a validity period for 

longer than one year. As noted above, 

this rule adds paragraph (h)(2)(iv) to 

provide greater transparency in how the 

Department determines the appropriate 

validity date for exclusions and this will 

be responsive to these types of 

comments. The March 19 rule did not 

include any type of grandfathering 


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provisions for existing purchase 

contracts, and today’s rule does not add 

any grandfathering provisions. 

However, there is nothing that would 

preclude an individual or organization 

in the U.S. that has an existing purchase 

contract from applying for an exclusion 

request to cover the scope of that 

purchase agreement. To the extent that 

such exclusion request can meet the 

existing criteria in the supplements and 

Proclamations, the Department could 

approve that request and take into 

account the existence of a purchase 

contract in determining the appropriate 

validity period. The existence of a 

purchase contract would not be 

determinative, however, as the 

Department must also take into account 

any objections that are filed and the 

timeframe in which U.S. supply may be 

available. 

Comment (b)(4): Other concerns with 

quality or domestic supply. Some 

commenters asserted that lead times are 

long to make changes to the supply 

chain, including sometimes requiring 

OEM approvals before changing. 

Because one trade association’s 

members supply to the automotive and 

aerospace industry, the process to 

change raw material suppliers is closely 

followed by and often approved by their 

OEM customers. The association’s 

members have long-term customer 

contracts based on these approvals, and 

changes to the terms of those contracts 

are lengthy and time consuming. Other 

commenters raised concern about 

obtaining products where there is not 

sufficient U.S. supply. For example, 

some commenters asserted that many 

specialty steel and aluminum materials 

used in vehicle components are not 

available domestically. There may be 

only a few producers in the world—in 

some cases only one or two—that can 

source the grade of specialty materials 

needed to meet component 

specifications. Examples cited include 

wire used in steel-belted radial tires and 

specialty metals used in fuel injectors. 

For domestic manufacturers, it is not a 

question of whether they can produce 

these materials, but instead whether 

production of these niche materials will 

be cost-effective and provide a return on 

investment. 

BIS response: The Department is 

reviewing exclusion applications from 

domestic industry, and related 

objections (and will do the same for 

rebuttals/surrebuttals), on a case-by-case 

basis in a fair and transparent process. 

The Department will assess whether 

manufacturing capability can meet the 

technical parameters for the specific 

article in question, including if idle 

capacity is being brought back online as 

well as new capacity. Today’s rule adds 

greater specificity on the review criteria 

for exclusions under new paragraph 

(c)(6) and objections under revised 

paragraph (d)(4). These changes will be 

responsive to these types of comments. 

Increases in Costs for Steel and 

Aluminum in the U.S. That Exceed the 

Duties 

Some commenters provided detailed 

comments on what they perceived to be 

profiteering that may be occurring in the 

U.S. As described above, some of this 

may be short term adjustments that are 

not warranted by market fundamentals 

that should level out. 

Comment (c)(1): Concerns over 

profiteering by certain U.S. 

manufacturers of steel and aluminum or 

other parties that supply downstream 

manufacturers with steel and 

aluminum. One commenter asserted 

that it is not just importers being 

impacted by the duties and quantitative 

limitations. This commenter currently 

purchases all of its steel and aluminum 

from domestic sources, but is concerned 

that duties and quantitative limitations 

will allow the steel companies to raise 

their material prices significantly, even 

beyond the 25 percent competitive 

advantage provided by the tariff. 

Another commenter, a manufacturer of 

garage doors that buys 90 percent of its 

raw materials in the U.S., commented 

that ‘‘the tariffs have given the domestic 

manufacturers the ability to raise prices 

in excess of 28% this quarter.’’ The 

company fears that this increase will be 

impossible to pass on to its customers 

(national home builders). A trade 

association commenter expressed 

concern that market manipulation 

would cause the Midwest Premium to 

spike and the U.S. market to become 

more attractive to global aluminum 

suppliers, thereby drawing additional 

supply into the market and 

undermining the Department’s Section 

232 remedy. The commenter 

recommended that the Department 

follow the suggestion of Chairman 

Hatch and Ranking Member Wyden to 

‘‘[c]oordinate with the Department of 

Justice and Federal Trade Commission 

to ensure that effective mechanisms are 

in place to deter and to redress any 

anticompetitive conduct in the market 

for products that are subject to the 

Section 232 tariffs [duties and 

quantitative limitations] and product 

exclusion process,’’ including 

‘‘[m]echanisms . . . for the public to 

report perceived anticompetitive 

behavior in respect of such products 

and prompt review of those reports by 

the appropriate authorities.’’ 

BIS response: The Department and 

other parts of the U.S. Government as 

appropriate will review this issue and 

address as needed. 

Comment (c)(2): Concern that 

openness of exclusion process will allow 

for foreign profiteering because 

importers granted exclusions will be 

locked in to specific foreign suppliers. 

Because of the amount of confidential 

business information required on the 

exclusion forms, it will allow for foreign 

suppliers and competitors to increase 

their prices. A commenter asserted that 

they are concerned that limiting 

exclusions only to the suppliers, 

countries of origin, and quantities 

indicated in the exclusion request, 

while at the same time making all of this 

information public will create pricing, 

anti-trust, or customer-relation 

concerns. For example, once suppliers 

know that their company is limited only 

to sourcing through them if their 

company wants the product to be 

covered by an exclusion, they will have 

pricing power over the commenter and 

may raise prices because they know the 

commenter has no other choice but to 

buy from them. Another possible 

unintended consequence was 

highlighted by one commenter that 

asserted their competitors will know 

which suppliers and countries of origin 

they will need to purchase from and 

could attempt to fully book the supply 

so as to force the commenter to use 

more expensive materials that make the 

commenter’s finished products 

uncompetitive. 

BIS response: The Department does 

not agree that importers granted 

exclusions will be locked in to specific 

foreign suppliers. The approved 

exclusions will be specific to specified 

countries and suppliers, but domestic 

users are not precluded from submitting 

a new exclusion request if that type of 

profiteering or anticompetitive activity 

occurred by a foreign party. 

Is the exclusion objection process 

making supply issues worse for 

downstream manufacturers in U.S.? 

Comment (d)(1): Commenters arguing 

that the inefficient exclusion process is 

part of the problem and making issues 

worse. Many commenters expressed 

concern that the product exclusion 

process, as set forth in the March 19 

rule, is not working well. One 

commenter asserted that the mechanism 

set up to assess these requests fails to 

address the economic impact done to 

domestic manufacturing and opens up 

the U.S. to additional national security 

risks. Other commenters asserted that 

the volume of requests slows the entire 

process and that unnecessary 


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limitations on the scope of the exclusion 

requests create an untenable burden on 

the parties as well as the Department. 

Commenters asserted that the current 

exclusion process prevents requesters 

from being able to receive an exclusion 

quickly enough in the short-term to 

avoid disruption to their supply chain, 

and prevents them from being able to 

prepare in the long-term due to the short 

scope of any approved exclusion 

request. Requiring a business to 

accurately predict its usage for the year, 

they contend, prevents the business 

from being able to adjust or adapt to any 

changes in the market. And they assert 

that the lack of clarity around the 

process means that no company 

submitting a request has any idea if it 

will receive an exclusion, despite 

having disclosed some of its most 

sensitive proprietary information. They 

worry that requesters in similar 

situations will find themselves treated 

in a disparate manner as the Department 

determines how it will approach the 

relevant criteria. Finally, they assert that 

the complexity of the process, in 

particular the amount of information 

required, discourages participation in 

the exclusion process. 

BIS response: The Department 

understands the importance of a 

transparent, effective, and fair 

exclusion/objection process, as well as 

having the rebuttal/surrebuttal process 

added in today’s rule. The publication 

of today’s rule makes improvements that 

will be responsive to these concerns and 

that will make the process work better 

for the Department. The process is 

designed to help U.S. downstream 

manufacturers obtain steel and 

aluminum without the additional duties 

when U.S. supply is not available in the 

quantity and quality that they need. 

Comment (d)(1)(i): The Department 

misjudged the number of exclusions 

that would be submitted, as well as the 

anticipated burden. One commenter 

questioned the burden estimates 

included for complying with the rule 

and filing exclusion requests. This 

commenter asserted that each exclusion 

request requires the compilation of 

extensive supporting information that 

manufacturers must submit in addition 

to the lengthy exclusion request form. 

The Department estimated an average 

reporting burden for the collection of 

information in the exclusion request of 

four hours per request. This commenter 

thought four hours is a misleading 

estimate and does not account for the 

time taken to identify in a company’s 

business records the pertinent data 

needing to be entered or attached. This 

same commenter asserted that the 

Department was not even close on its 

estimate for how many exclusion 

requests would be received. 

BIS response: The commenter is the 

only commenter that mentioned a 

concern about four hours not being a 

sufficient amount of time to gather the 

information. Therefore, the Department 

believes the original estimate of four 

hours to gather the information and fill 

out the exclusion and objection forms is 

still an accurate estimate and makes no 

adjustments in that estimate. It is now 

clear, however, that the Department 

underestimated the number of exclusion 

requests and objections that would be 

filed. Although the estimates included 

in the March 19 rule were based on the 

Department’s good faith estimate at the 

time, the Department now has more 

information and experience that it can 

rely upon to project an annual number 

of exclusion requests. As described later 

in the Rulemaking Section, the 

Department revises the exclusion form 

paperwork collection, as well as the 

objection form paperwork collection to 

reflect the new estimates of the burden, 

as well as expanding both collections to 

account for the rebuttal/surrebuttal 

process today’s rule is adding. The 

Department believes the new numbers 

should be much more accurate. The 

Department took the changes being 

made in today’s rule into account when 

developing the updated estimates for 

the number of exclusions and objections 

that are anticipated to be received, as 

well as the anticipated numbers of 

rebuttals/surrebuttals that will be 

received. Because the rebuttals/ 

surrebuttals will not require filling out 

as extensive of a form as an exclusion 

request or objection, and in most 

respects will be responding to an 

objection or a rebuttal of an objection, 

the amount of time estimated to submit 

a rebuttal/surrebuttal is estimated to be 

much less, at one hour per rebuttal/ 

surrebuttal. The Department will 

reevaluate the estimates provided in 

today’s rule and the two related 

paperwork collection notices published 

in support of this rule and make any 

needed adjustments. 

Comment (d)(2): Supportive of having 

exclusion process. Commenters were 

supportive and appreciative of having 

an exclusion process. Commenters did 

not want to eliminate the exclusion/ 

objection process, but almost all had 

suggestions for changes to the process. 

Many commenters asserted that while 

they think the duties and quantitative 

limitations should be lifted as soon as 

possible because of unintended effects 

on downstream users, they also 

recognize that there must be a workable 

product exclusion process. Several 

commenters asserted that they 

appreciated the opportunity to comment 

on the Department’s March 19 rule and 

look forward to working with the 

Department to ensure that the exclusion 

request process is fair, inclusive, and 

effective. Commenters asserted that they 

understand the need for BIS to manage 

the product exclusion request process in 

a fair and transparent manner while 

taking appropriate account of the 

Proclamations’ goals of ensuring 

sufficient U.S. production of steel and 

aluminum to meet fundamental national 

security requirements. These 

commenters believe several aspects of 

the supplements and forms added in the 

March 19 rule should be modified or 

clarified consistent with those goals. 

BIS response: The Department 

appreciates the support for the 

exclusion/objection process, as well as 

the comments provided to improve the 

process. The Department believes with 

the publication of today’s rule, the 

exclusion/objection process (along with 

the rebuttal/surrebuttal process being 

added) will be significantly improved. 

Arbitrary and Capricious, Lacks Basic 

Due Process, Not Transparent, and Not 

Fair 

The comments described here are also 

referenced and addressed in other parts 

of this preamble and the regulatory 

changes made below. The intent of the 

discussion here is to highlight the 

general concerns raised in this area, 

along with the general BIS response. 

The specific types of issues, e.g., the 

need to add a rebuttal process, are 

addressed in other parts of the preamble 

and the regulatory text of this rule, and 

the Department believes the process will 

resolve these types of fairness and 

consistency concerns that were the 

focus of these commenters’ concerns. 

Comment (e)(1): Commenters raised 

concerns over lack of due process, 

fairness, or transparency. One 

commenter asserted that tying refunds 

to the date when the Department finally 

posts the petitions on its website is 

arbitrary. The commenter asked if an 

exclusion is granted, why that exclusion 

would not be granted retroactively to 

the date the tariff was imposed. Another 

commenter asserted that granting the 

exclusion for one year is arbitrary and 

that the decision process for whether to 

approve or deny exclusion requests is 

not specified and appears arbitrary. 

Other commenters asserted that it was 

critical for due process to include a 

formal rebuttal process in the exclusion 

and objection process. These 

commenters believe that without a 

rebuttal process, the Department risks 

finalizing actions without a complete 

record and taking action that is unfairly 


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biased against U.S. businesses that rely 

on imported articles or that may 

exacerbate risks to national security. 

Other commenters asserted that the 

current process increases the possibility 

of inconsistent treatment for individual 

requests that are only different based on 

an insignificant dimension. For 

example, one comment opined, ‘‘One 

can easily imagine a situation where a 

company ends up only able to import 

certain dimensions without payments of 

tariffs, and being barred from similarly 

being able to import others, despite their 

otherwise identical nature.’’ The 

comment continued, ‘‘This would be the 

definition of an arbitrary act on the part 

of the agency, when it ‘‘treats similar 

situations in dissimilar ways.’’ Along 

similar lines, another commenter 

asserted that the Department may grant 

an exclusion for a specific product for 

some companies/end-users but 

unreasonably deny it for others for the 

identical product, a result that it 

contended would be arbitrary, 

particularly if the exemption was based 

upon ‘‘short supply’’ considerations or a 

general lack of U.S. availability. 

BIS response: The review of all 

product exclusion applications from 

U.S. industry is being conducted on a 

case-by-case basis in a fair and 

transparent process. As described above, 

two specific Commerce components 

have worked closely in this effort—BIS 

and ITA. BIS is the lead agency deciding 

whether to grant steel and aluminum 

tariff exclusion requests, and ITA is 

analyzing requests and objections to 

evaluate whether there is domestic 

production available to meet the 

requestor’s product needs, as provided 

in the exclusion requests. The 

Department appreciates all of the 

commenters’ suggestions to improve the 

exclusion request process. Several of the 

commenters argued that they believe the 

March 19 rule and the exclusion process 

it established could be legally 

challenged because it appears arbitrary 

and capricious to them in certain 

respects. The Department does not agree 

with that assessment. However, the 

Department does believe the changes 

being made in today’s rule should 

significantly address these concerns. For 

example, today’s rule is adding a 

rebuttal/surrebuttal process under 

paragraphs (f) and (g) of the two 

supplements and making a number of 

other changes to make the criteria more 

well defined and their application more 

transparent for the public. The 

Department has been treating each 

exclusion request and objection 

received in a fair and equitable way 

based on the stated criteria included in 

the March 19 rule and standard 

operating procedures that have been 

developed for the exclusion and 

objection review process. 

Comments for How the Exclusion and 

Objection Process Can Be Improved 

Commenters in almost all cases noted 

that their comments applied equally to 

the steel and aluminum supplements. 

The rule published today makes the 

same improvements to each supplement 

to continue with parallel supplements 

(same parallel structure included in the 

March 19 rule), with only slight 

differences for information that is 

specific to steel or aluminum, e.g., in 

some of the examples being added to the 

supplements to make the application of 

the criteria more transparent. These 

changes are described below under 

Changes made in this interim final rule 

to the exclusion/objection process. 

Several commenters asked for 

clarification and guidance on how to 

apply for broader product exclusions 

that would apply to all importers in the 

United States. As described below in 

more detail, the Department has the 

discretion to make exclusions available 

to all importers if we find the 

circumstances so warrant, and we will 

exercise this discretion as appropriate. 

Individuals and organizations do not 

apply for such broad product 

exclusions, but rather the Department as 

it gains experience with the types of 

exclusion requests that are being 

repeatedly approved because the criteria 

are being met on a consistent basis over 

time, can exercise this type of discretion 

that will likely result in making the 

process more efficient. Several 

commenters wanted to quickly move 

toward these types of broad product 

exclusions, but the Department believes 

it better to begin with a deliberative 

assessment of individual requests in 

order to not undermine the purpose of 

the duties and quantitative limitations 

in place for steel and aluminum. 

Comment (f)(1): Date of submission, 

not the date of posting on 

regulations.gov, should be the relevant 

date for all decisions. Commenters 

requested that the date used for all 

future decisions such as applicability of 

duties or retroactive relief of duties be 

the date of submission of a complete 

request. They asserted that providing 

such retroactivity is a matter of fairness, 

as the date that the Department posts 

the submission on regulations.gov is 

currently an unknown and lengthy 

amount of time which is costing U.S. 

manufacturers hundreds of thousands of 

dollars per week. Another commenter 

asserted that the Department could have 

flexibility in this area and still be 

consistent with the second Presidential 

Proclamation, which set forth that the 

exclusion would apply retroactively to 

the date the request was posted for 

public comment. The commenter 

asserted that such language was not 

language of limitation, and the 

Department, through its action in 

response to these comments, might 

further extend the period of application. 

BIS response: The retroactive date for 

duty relief through the exclusion 

process is set by the Proclamations, not 

the Department. Today’s rule, as 

described below in the description of 

the regulatory changes, in order to 

improve the transparency of the process 

is adding a new paragraph (h)(2)(iii) to 

specify the effective date for approved 

exclusions. 

Improve Transparency, Including 

Making Information and Forms More 

Easily Accessible for the Public 

Comment (f)(2)(i): Make information 

and process more transparent. 

Commenters requested that the 

Department provide detailed timing and 

criteria, based on the Proclamations, 

that set forth how decisions will be 

made. U.S. manufacturers should be 

able to quickly determine that an 

exclusion request or denial is based on 

a known set of facts and is consistent 

with other actions on requests received. 

Several commenters requested that the 

Department impose stricter and more 

certain deadlines for its own actions, 

providing some finite time period 

between when an exclusion request is 

filed with the Department and when it 

is posted for comment. Commenters 

provided a range of suggested times 

from immediately (which is not feasible 

under the current regulations.gov 

system being used for the exclusion/ 

objection process, as well as for the 

rebuttal/surrebuttal process being added 

in today’s rule) to 5 to 14 days. 

Commenters were less concerned with 

the actual number of days than with 

having a specified number of days, so 

they better know what to expect. 

Without some set period for this step in 

the process, filing companies have no 

certainty as to when they can likely get 

a response to their request and this 

uncertainty is extremely disruptive to 

U.S. businesses trying to cope with the 

duties and quantitative limitations. 

Commenters said that the 

regulations.gov website where 

documentation is posted is not easy to 

navigate nor fully transparent. 

Commenters requested that the 

Department develop a system to notify 

applicants of their application status 

and anticipated wait time to facilitate 

planning and communications with 


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customers. Commenters requested that 

the Department publish official 

guidance or an ‘‘FAQ’’ page to describe 

the steps of the exclusion/objection 

process in easy to understand language. 

Commenters believe that information 

provided to the public should include a 

clear description of an entity eligible to 

file and an inventory or checklist of the 

information/evidence that should be 

provided as supplemental materials. 

BIS response: The Department 

published procedures for the product 

exclusion requests, as well as for 

objections, in the March 19 rule and 

subsequently made them available on 

the Department’s website. Today’s rule 

as described below adds Annex 1 to 

Supplements No. 1 and 2 to Part 705 

that will assist the public in using 

www.regulations.gov for application 

issues that are specific to submitting 

rebuttals under the exclusion, objection, 

rebuttal, surrebuttal process. The 

Department has also posted a step-bystep visual guide to assist industry 

through the process and tips on how to 

properly complete the exclusion request 

forms based on issues identified during 

BIS’s initial review of submissions, as 

well as based on ITA’s experience in 

reviewing the submissions. The 

Department will update these guides as 

appropriate. BIS has established 

dedicated phone numbers and email 

addresses for U.S. industry to seek 

assistance or ask questions about the 

process. These phone numbers and 

email addresses were included in the 

press release announcing the exclusion 

process and in the supplements added 

in the March 19 rule. The procedures 

published in the March 19 rule set forth 

the requirements for submitting requests 

for exclusions and for submitting 

objections to such exclusion requests 

during a 30-day comment period. 

Today’s rule is making a number of 

changes to better define the criteria used 

to review exclusion requests and 

objections that will be responsive to 

comments raising concerns about 

transparency and being able to predict 

the outcome for a particular exclusion 

request and any objections thereto. 

Today’s rule is adding a rebuttal/ 

surrebuttal process that will specify that 

after the 30-day objection period, an 

exclusion requester may submit a 

rebuttal to any objection(s) within 7 

days, and an objector(s) may respond to 

that rebuttal within an additional 7 days 

after the rebuttal period has ended and 

the 7-day surrebuttal comment period is 

opened. The Department will not open 

the 7-day rebuttal period until the 30- 

day objection period has concluded, all 

complete objections have been posted in 

regulations.gov, and the Department 

indicates on the tracking sheet that will 

be posted on the Department website 

that the 7-day rebuttal period has 

opened. The same type of process will 

be followed by the Department opening 

the 7-day surrebuttal comment period. 

The Department in order to not divert 

staff resources from reviewing 232 

submissions will not be able to contact 

each submitter to notify that the rebuttal 

or surrebuttal review period have 

opened, so submitters will need to 

check the tracking sheet that will be 

posted on the Commerce website for 

updates on their 232 submissions. Only 

the individual or organization that 

submitted the exclusion request may 

submit a rebuttal during the rebuttal 

comment period. Only the individual or 

organization that submitted an objection 

to exclusion request that received a 

rebuttal may submit a surrebuttal during 

the rebuttal comment period. The 

Department is confident that these 

added procedures will allow it to more 

efficiently make determinations on 

exclusion requests. The Department also 

has the discretion to make exclusions 

available to all importers if we find the 

circumstances so warrant, and we will 

exercise this discretion as appropriate. 

The Department will expeditiously 

grant properly filed exclusion requests 

which receive no objections and present 

no national security concerns. The 

Department will work with U.S. 

Customs and Border Protection to 

ensure that the requester provided an 

accurate Harmonized Tariff Schedule of 

the United States (HTSUS) statistical 

reporting number. If so, BIS will 

immediately assess the request for any 

national security concerns. If BIS 

identifies no national security concerns, 

it will expeditiously post a decision on 

regulations.gov granting the exclusion 

request. The Department has already 

made these process improvements and 

in today’s rule is adding a new 

paragraph (h)(2)(ii) in both supplements 

to specify this streamlined review 

policy for exclusion requests that 

receive no objections. These changes 

taken together should be responsive to 

the various comments described above 

on the exclusion/objection process. 

Comment (f)(2)(ii): Establish 

consistent guidelines for filling out the 

forms. Commenters requested that the 

Department adopt objective and 

transparent standards and guidelines for 

completing and submitting the forms 

and curing deficiencies when refiling 

the forms. A commenter asserted that 

the Department has been inconsistent 

and non-transparent in processing and 

posting the forms and in determining 

which forms ‘‘satisfy’’ reporting 

requirements and which forms do not. 

The commenter asserts that some forms 

are accepted and posted even though 

they are inconsistent with the 

Department’s detailed reporting 

specifications. 

BIS response: The Department has 

already taken action to improve 

transparency in this area. The 

Department has posted guidance with 

step-by-step visual guides to assist 

industry through the process and with 

tips on how to properly complete the 

exclusion request forms based on issues 

identified during the Department’s 

initial review of submissions. The most 

common issues have been incomplete 

forms or bundling numerous requests in 

a single submission, but as requesters 

have become more familiar with the 

process and regulations.gov, these 

issues have been reduced significantly. 

Today’s rule is also making changes to 

paragraph (b), including adding text to 

paragraph (b)(5) to clarify the provisions 

for public disclosure and information 

protected from public disclosure, and 

changes to paragraphs (c) and (d) to 

better define and include application 

examples for the criteria used for 

reviewing exclusions and objections. As 

described below, today’s rule also adds 

Annex 1 to Supplements No. 1 and 2 to 

Part 705, which will assist the public in 

using www.regulations.gov for 

application issues that are specific to 

submitting rebuttals and surrebuttals 

under the exclusion, objection, rebuttal, 

surrebuttal process. 

Comment (f)(2)(iii): Backlog of 

requests and timely release of 

information. Commenters requested the 

Department streamline its process, 

asserting that the Department is simply 

not equipped to handle the crushing 

volume of exclusion requests, 

particularly with the details reported in 

the forms. They request that forms be 

simplified and that the information 

requested be streamlined and grouped. 

Commenters also identified much of the 

backlog as attributable to the duplicative 

filings required by the product specific 

and customer-specific filing 

requirements. Commenters believe the 

Department can alleviate much of this 

backlog by adopting product exclusions 

based on broader product groupings, 

regardless of source and supply chain, 

as discussed further in the comments 

below. 

BIS response: The Department has 

worked to increase and organize its staff 

to efficiently process exclusion requests. 

Since July 2, the Department has been 

reviewing and posting about 1,800 

requests and 700 objections weekly. As 

of August 1, the Department has posted 

more than 2,200 steel and aluminum 


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decisions and will be posting 

substantially more in the coming weeks. 

BIS’s dedicated phone lines and email 

accounts are available to assist industry 

with any inquiries about their exclusion 

or objection filing. Due to the rolling 

nature of the exclusion/objection 

process, the wait time can vary. The 

Department has also modified its review 

procedures to expedite decisions on 

requests that have no corresponding 

objections, as described further in other 

parts of this rule, such as by adding a 

new paragraph (h)(2)(ii). This will not 

only speed processing of those requests 

but also facilitate review of requests 

with objections, and with the 

publication of today’s rule, requests that 

have rebuttal/surrebuttal(s). More 

Departmental staff time will be available 

for reviews of the more difficult requests 

that involve an objection(s) and 

rebuttal/surrebuttals(s). 

Confidentiality Issues 

Comment (f)(3)(i): Create formal 

process to allow for and protect 

submissions of confidential business 

information (CBI). Most commenters 

requested the Department revise the 

supplements added in the March 19 rule 

to provide for a formal process for the 

submission of CBI. Commenters asserted 

that neither the March 19 rule nor the 

exclusion request and objection forms 

indicate the procedures for submitting 

confidential business information. 

Commenters asserted that the 

Department has much experience (in 

trade remedy proceedings) in protecting 

CBI through the use of ‘‘protective 

orders.’’ Commenters requested the 

Department establish a similar process 

where parties may submit a 

‘‘confidential’’ version of an exclusion 

request and a separate redacted 

‘‘public’’ version which is released to 

the public at large. Commenters asserted 

that they believe that concerns over CBI 

may depress the number of companies 

willing to submit objections to 

exclusions. Commenters requested that 

the Department clarify the following 

issues related to CBI and the exclusion 

and objection process: Is an application 

complete if CBI is not provided, such as 

when a company determines that 

certain fields on an exclusion or 

objection form require disclosing 

proprietary information? If the box for 

CBI is checked, how long does the 

submitter have to submit the CBI and 

how long will it take for the completed 

application to be posted in 

regulations.gov? Does the 25 page limit 

of the petition include CBI? If the 

Department accepts group submissions, 

how can individual members protect 

their CBI? Other commenters urged the 

Department to allow filing of CBI in a 

way that protects that information from 

public disclosure but allows the 

Department to use it in a balanced 

manner across all requesters. 

Commenters raised concerns over 

fairness for the current process of 

dealing with CBI. The lack of a process 

for dealing with proprietary information 

means that when the Department posts 

an exclusion request or an objection 

with CBI in the supplementary material, 

there is no way for other parties to 

respond. For example, a commenter 

notes that objections from U.S. Steel 

have been posted, but certain 

information has not been provided, such 

as capacity and capacity utilization. 

Although the Department may reach out 

relating to such information, the 

requester will never know what the 

objector said about its capacity to 

supply the requested demand and, 

therefore, will never be able to rebut the 

issue. The commenter argues that the 

current system penalizes requesters 

whose requests may not be posted (or at 

a minimum may be delayed in being 

posted, thereby forestalling retroactive 

relief) if the exclusion request form is 

not fully filled out, yet an objector is 

able to unilaterally withhold data and 

delay consideration of the exclusion 

request. The commenter requests that 

such an objection be rejected as 

incomplete. 

BIS response: The Department 

published the regulations establishing 

the exclusion request/objection process 

in the March 19 rule. The Department 

has made clear in the regulations that 

parties applying for an exclusion and 

those objecting to the exclusion requests 

should include only public information 

in their full submissions. The exclusion 

and objection forms include an area 

where parties can indicate if they have 

additional CBI that they believe is 

relevant to their submission, although 

the Department believes that the 

information requested in the forms, in 

most cases, should suffice to allow a 

determination to grant or deny. 

However, based on the number of 

comments received on this issue 

regarding concerns over protecting CBI, 

the Department understands that 

additional changes and clarifications 

need to be made. Today’s rule is 

revising paragraph (b)(5) to clarify the 

procedures for public disclosure and the 

information protected from public 

disclosure, including specifying a 

process to be followed when making 

submissions that are not intended for 

public release. 

Comment (f)(3)(ii): Exclusion/ 

objection forms need to be scrubbed to 

eliminate questions that require 

disclosing CBI. Commenters asserted 

that much of the information the 

Department has requested in 

conjunction with objections to 

exclusion requests includes CBI, 

information that, if shared publicly, 

could raise intellectual property/trade 

secret, anti-trust, or customer-relation 

concerns. For example, a requester must 

provide chemical composition, 

dimensions, strength, toughness, 

ductility, magnetic permeability, surface 

finish, coatings, along with other 

technical data and must also provide the 

names of the suppliers used, as well as 

the quantity predicted to be needed 

from each supplier. An objector must 

provide capacity and capacity 

utilization data; production information, 

including production capacity and 

utilization data; technical specifications, 

including the detailed chemical 

composition; production/shipping 

timelines; and internal technical data to 

refute assertions made in the request. 

Commenters believed that this level of 

detail is unnecessary and burdensome 

for the purpose of this exercise and may 

require disclosure of proprietary 

information belonging not only to a 

requester or objector, but to a requester’s 

supplier. Commenters were also 

concerned that the exclusion request 

form requires companies to provide 

support regarding their inability to 

source domestic suppliers which will 

often involve revealing non-public 

terms of sale discussions and available 

sources of supply. One commenter 

asserted that sharing such extensive 

information plays into the hands of 

foreign powers or other competitors, 

allowing them to easily amass a large 

amount of industrial information on the 

U.S. 

BIS response: The Department 

designed both the steel and aluminum 

exclusion request and objection forms 

with input from a variety of U.S. 

Government and industry experts. The 

goal was to create a balance of 

information requested from the 

exclusion requester to allow a U.S. 

manufacturer of steel or aluminum to 

file a credible objection to that specific 

exclusion request. The Department is 

requesting that parties applying for an 

exclusion and those objecting to an 

exclusion request include only public 

information in their full submissions. 

The exclusions, objections, rebuttal, and 

surrebuttal forms include a section 

where parties can indicate if they have 

additional CBI that is relevant to their 

exclusion request or their objection. 

Metallurgical composition is not 

proprietary information. The 

Department does not ask for steel or 


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aluminum process information, which 

can be CBI. In almost every case, only 

public information is needed for a valid 

exclusion request and a valid objection. 

In the event that the Department 

determines that additional information 

of a proprietary nature is necessary to 

make a determination on an exclusion 

request, the Department will provide 

instructions to the affected parties and 

will protect this information from 

public disclosure. However, to address 

concerns in this area, today’s rule is 

revising paragraph (b)(5) to add more 

provisions to clarify the procedures for 

public disclosure and the information 

protected from public disclosure, 

including specifying a process to be 

followed when making submissions not 

intended for public release as part of a 

request, objection, rebuttal, or 

surrebuttal. 

Expand and Clarify What Parties Can 

Apply for Exclusions 

Comment (f)(4)(i): Trade associations 

should be able to petition on behalf of 

industries. Commenters felt strongly 

that the exclusion process should be 

revised to allow for trade associations to 

file for a broader exclusion on behalf of 

similarly situated member importers. 

They asserted that this would cut down 

on the number of requests that the 

Department is receiving, making the 

process more efficient and less costly, 

and would benefit small business 

importers in particular. In cases where 

several companies would like to make 

the same exclusion request, such as 

when the imported product at issue is 

not produced in the U.S. and is used by 

multiple domestic manufacturers, they 

argued that it is very inefficient to ask 

each of the companies to file the same 

request. Commenters asserted that the 

supplements contemplate broader 

exclusions, which they thought would 

be a natural place for trade associations 

to play a beneficial role in the exclusion 

process, but the supplements provide no 

guidance on how to apply for such 

broader exclusions. 

BIS response: Allowing trade 

associations to file requests will not 

make the process more efficient, 

because the information required for an 

exclusion request is unique to each 

individual or company applying for an 

exclusion. The individuals or 

organizations applying for an exclusion 

request must specify the precise steel or 

aluminum product, including whether a 

product is customized. Because the 

primary consideration in whether to 

grant or deny an exclusion request is 

evidence that the requested product is 

or readily can be made in sufficient 

quantity and quality by domestic 

manufacturers, it is essential that the 

precise product being sought be clearly 

identified, along with the quantity 

needed and the timeframe for delivery. 

This will necessarily be different for 

each individual or organization. A 

credible objection must state that the 

objector can produce the product being 

sought. Absent this specificity, it would 

be impossible for domestic 

manufacturers to determine whether or 

not they can produce the product. The 

need for specificity is why each 

individual or company needs to 

respond, as opposed to trade 

associations. The Secretary does have 

the discretion to make broader 

exclusions available to all importers if 

the Department finds the circumstances 

warrant, and the Secretary will exercise 

this discretion as appropriate. 

Comment (f)(4)(ii): Confirm that 

contractors and distributors that supply 

others with steel may apply for 

exclusion requests. A commenter 

requested the Department confirm that 

the supplements added with the March 

19 rule allow the Department to accept 

petitions from contractors and 

distributors that supply others with 

steel, as eligible individuals or 

organizations using steel in business 

activities. The commenter argued that it 

is important to accept such petitions, as 

these entities work with numerous 

clients and customers that need to 

procure steel needs for various oil and 

natural gas projects. 

BIS response: The Department 

confirms that contractors and 

distributors in the U.S. that supply 

others with steel or aluminum in the 

U.S. may apply for exclusion requests to 

supply those U.S. customers. 

Comment (f)(4)(iii): The Department 

should accept petitions from entities 

that are not the importer of record for 

products. Commenters requested the 

Department accept petitions from 

entities that are not importers of record, 

so that companies can submit petitions 

on behalf of their ultimate procurement 

needs that may be imported by other 

entities within their supply chains. 

BIS response: The Department does 

not agree. The individual or 

organization that will be identified as 

the beneficiary of the exclusion request 

must also be the importer of record. 

Comment (f)(4)(iv): U.S. importers of 

record—even though they may be 

foreign entities, should be able to submit 

exclusion requests. One commenter 

asserted that all of its European 

production exported to the United 

States is sold before that export. In such 

cases, this commenter believes the 

importers of record are more likely to 

have the information that would be 

useful to fill in the exclusion request 

forms as they are the ones involved with 

the actual act of importing and the ones 

responsible for tariffs. The commenter 

requests the Department allow such 

parties to apply for exclusions. 

BIS response: The Department 

confirms that a U.S. importer of record, 

including foreign entities located in the 

United States, may submit an exclusion 

request, provided they meet the other 

applicable criteria. The Department is 

aware that in certain cases a U.S. 

importer of record may be a foreign 

entity not located in the United States 

and those U.S. importers of record 

would not be able to meet the other 

applicable criteria—meaning an 

exclusion request would not be granted 

to such a foreign entity. The 

supplements added in the March 19 rule 

already permitted these types of parties 

to apply for exclusions, so no regulatory 

changes are needed. 

Comment (f)(4)(v): Allow affected 

foreign producers and exporters of steel 

and aluminum to apply for exclusions. 

One commenter asserted that foreign 

producers and/or exporters of steel and 

aluminum often have the most detailed 

information about the merchandise for 

which an exclusion is requested, 

including chemistry, standards, 

dimensions, availability, and quantities. 

This commenter asserted that foreign 

producers and exporters of steel and 

aluminum must often be consulted for 

this information by U.S. importers and 

end-users. The commenter requested the 

Department allow such foreign 

producers and exporters to submit 

exclusion requests on their own behalf 

to streamline the process. They asserted 

that doing so would be consistent with 

the Section 201 exclusion process, 

which allowed foreign producers to seek 

exclusions. 

BIS response: Making this change 

would not be consistent with the 

Proclamations or the intent of the two 

supplements added in the March 19 

rule. 

Comment (f)(4)(vi): Permit and clarify 

flexibility in certain situations 

particular to the motor vehicle industry 

in the designation of the proper party to 

make the exclusion request. A major 

trade association representing the auto 

industry asserted that there are certain 

situations that may be unique to the 

motor vehicle industry. The first 

example provided by the commenter is 

a ‘‘resale’’ program, in which the 

purchaser and user of the materials are 

not the same company. The vehicle 

manufacturer will purchase steel 

directly from the foreign steel company 

but will then resell the steel to a parts 

supplier. That supplier will then use the 


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steel in the production of a part to be 

sold to the vehicle manufacturer who 

originally purchased the materials. In 

the second example provided by the 

commenter, the vehicle manufacturer 

will instruct the parts supplier to 

purchase specific materials from a 

foreign producer. The properties or 

chemical makeup of the materials being 

purchased and used may be unknown to 

the parts supplier. This commenter 

requested the Department clarify the 

application process and provide 

flexibility allowing either the parts 

supplier or the vehicle manufacturer to 

make the exclusion request. 

BIS response: The Department 

clarifies that either the parts supplier or 

the vehicle manufacturer in these 

scenarios may submit an exclusion 

request. Individuals or organizations 

that apply for exclusion requests must 

use steel or aluminum articles in 

business activities in the United States, 

such as construction, manufacturing, or 

‘‘supplying these articles to users.’’ In 

this scenario, where the ‘‘vehicle 

manufacturer will purchase steel 

directly from the foreign steel company 

but will then resell the steel to a parts 

supplier,’’ the Department would 

consider the vehicle manufacturer to be 

a party supplying these articles to users 

and therefore could apply for an 

exclusion request. 

Tighten Exclusion Approval Criteria To 

Ensure That Intent and Scope of 

Exclusion Process Is Not Circumvented 

Comment (f)(5)(i): Clarify approval 

criteria for exclusions to specify 

requester must show that neither 

product nor an equivalent or 

substitutable product is produced in the 

U.S. A commenter requested that a 

product-specific exclusion be granted 

only upon a showing that neither the 

product nor an equivalent or 

substitutable product is produced in the 

United States. 

BIS response: The Department 

evaluates whether the steel or 

aluminum is ‘‘produced in the United 

States in a satisfactory quality’’ for 

consistency with the Proclamations. The 

exclusion review criteria ‘‘not produced 

in the United States in a satisfactory 

quality’’ does not mean the aluminum 

or steel needs to be identical, but it does 

need to be equivalent as a ‘‘substitutable 

product.’’ Today’s rule adds a new 

paragraph (c)(6)(ii) to further define this 

criterion, including adding some 

application examples to assist the 

public’s understanding and make the 

review process more transparent. 

Comment (f)(5)(ii): Clarify approval 

criteria for exclusions to specify that 

simply avoiding duties is not sufficient 

basis for approval. A commenter 

requested clarification that productspecific exclusions will not be granted 

simply to allow a submitter to avoid 

paying the additional duty on a product 

that is commonly produced in several 

markets, including markets that are 

exempt from the duties. This 

commenter believes allowing exclusions 

on such grounds would severely 

undermine the purpose of the duties. 

BIS response: The Department 

confirms that, based on the criteria of 

the Proclamations and the two 

supplements added in the March 19 

rule, simply wanting to avoid the duties 

is not sufficient basis for approval. 

Comment (f)(5)(iii): Definition of 

‘‘immediately’’ is too rigid and should 

be lengthened. Commenters requested 

lengthening the period for what should 

constitute ‘‘immediately.’’ A commenter 

asserted that in several instances, the 

exclusion request form asks whether a 

product could be produced 

‘‘immediately,’’ which is defined as 

‘‘within eight weeks.’’ Unless an article 

is currently being manufactured, an 

eight-week window to begin production 

is unreasonable. Beginning production 

‘‘immediately’’ should vary based on the 

level of processing and finishing 

involved (i.e., semi-finished products 

should have the shortest time period 

while downstream finished products 

should have longer time periods, 

including some much longer than 8 

weeks) as well as the volume requested 

(with larger volumes requiring more 

time). The commenter requested that if 

a specific time period is used in the 

forms and the Department’s analysis for 

‘‘immediately,’’ then it should be 

‘‘within twelve to sixteen weeks.’’ 

BIS response: The Department 

disagrees. The definition of 

‘‘immediately’’ is appropriate and 

requires no lengthening or shortening in 

order to meet the purposes of the 

exclusion and objection process and for 

consistency with the Proclamations. The 

Department emphasizes that the 

supplements added in the March 19 rule 

used the word ‘‘generally’’ to qualify the 

one year validity periods for approved 

exclusions. Because of the large number 

of comments received on the issue of 

the appropriate validity date and the 

need to improve the transparency of the 

decision making process and alert 

submitters of exclusion requests/ 

objections/rebuttals/surrebuttals to the 

types of information that may warrant a 

longer or shorter validity period, today’s 

rule is adding a new paragraph (h)(2)(iv) 

to provide more details on validity 

periods, including application 

examples. 

Comment (f)(5)(iv): Clarify approval 

criteria for exclusions to specify that 

evidence of substitutable products is 

sufficient to deny. A commenter 

asserted the final rule should clarify that 

exclusion requests will be denied where 

a member of the domestic industry 

opposes the request and demonstrates 

that it produces a product with ‘‘similar 

form, fit, function, and performance’’ to 

the requested product. 

BIS response: The Department agrees, 

provided ‘‘similar form, fit, function, 

and performance’’ being referenced by 

the commenter meets the definition of 

‘‘substitute product’’ that is being added 

to the two supplements in today’s rule 

and can be provided in the requisite 

quantity and time frame to meet the 

needs of the requester. Today’s rule 

adds a new paragraph (c)(6)(ii) to 

provide a definition for the criterion 

‘‘not produced in the United States in a 

satisfactory quality.’’ The new 

paragraph specifies that the exclusion 

review criterion ‘‘not produced in the 

United States in a satisfactory quality’’ 

does not mean the steel or aluminum 

needs to be identical, but it does need 

to be equivalent as a substitute product. 

This new paragraph will also include 

application examples to assist the 

public’s understanding of ‘‘substitute 

product.’’ 

Comment (f)(5)(v): Specify that 

approved exclusions cannot be assigned 

for other companies to use. A 

commenter requested the Department to 

clarify that not only is an exclusion 

limited to the party that requested it, 

there can be no assignment or transfer 

of the exclusion once granted. Allowing 

the assignment of exclusions would 

allow importers to circumvent the 

duties by accumulating the ability to 

import under product-specific 

exclusions. 

BIS response: The Department agrees 

and clarifies here that the use of an 

approved exclusion may not be assigned 

to another entity. 

Comment (f)(5)(vi): Specify that all 

product needs to be imported within 

one year of the approved exclusion. A 

commenter requested further narrowing 

and clarifying the scope of exclusions to 

specify that goods must be imported 

into the United States prior to the end 

of the one-year (or any other period) for 

which the exclusion is granted. 

BIS response: The Department agrees 

and confirms here that all products in 

an exclusion approved request must be 

imported within the validity period. A 

one-year validity period is standard. 

The Department communicates with 

CBP once an exclusion request is to be 

approved to provide the validity date. 

The Presidential Proclamations 


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establish the requirements for obtaining 

retroactive refunds from duties paid 

prior to the validity period of a granted 

exclusion. 

Broaden Exclusion Criteria (To Make It 

Easier To Get Approved) To Better 

Achieve the Purpose of the Exclusion 

Process 

Commenters that had concerns with 

the exclusion process made suggestions 

for broadening the exclusion criteria to 

make it easier to get approval as 

discussed in the next series of 

comments. 

Comment (f)(6)(i): Department should 

not consider the availability of 

‘‘substitute steel products’’ in assessing 

requests. In contrast to the comments 

above that advocated being more 

permissive to steel and aluminum 

manufacturers in the U.S., the 

commenter here requested that the 

Department not allow supposed product 

‘‘substitutes’’ to form the basis of 

rejecting an exclusion request, arguing 

that doing so would be contrary to the 

Proclamations. The same commenter 

asserted that neither the Proclamations 

nor the text of the March 19 rule 

mention either ‘‘substitute’’ or ‘‘nearequivalent’’ products, so inclusion of 

this as part of the criteria is not 

appropriate. The same commenter 

asserted that neither ‘‘substitute steel 

product’’ nor ‘‘near-equivalent steel 

product’’ is defined, creating 

uncertainty as to what these fields mean 

and that the Department is in no 

position to make that determination on 

a factual or technical basis. The 

commenter noted that if a customer 

requires certification of the product, just 

being similar is not good enough to 

immediately replace a current supplier. 

The commenter also noted that 

manufacturers have production lines 

and operations created for exact 

technical properties and cannot just do 

with any raw material that is ‘‘similar.’’ 

The commenter also argued that if a 

manufacturer has a preference for 

products it uses as raw materials, it is 

wholly inappropriate for the 

government to force it to use another 

kind of product. A company’s 

operations and equipment may need to 

change in order to use a ‘‘substitute steel 

product’’ and its workforce may not 

have the experience in dealing with a 

different kind of steel. Finally, the 

commenter asserted that even if the 

Department believes that substitute steel 

products should be considered, it must 

clarify how it is using that factor in its 

analysis and specify what factors are 

being considered as the exclusion 

request form does not fully address 

these issues. The commenter asserted 

that a company should be afforded a full 

opportunity to explain why it cannot 

use such ‘‘substitute’’ or ‘‘nearequivalent’’ products, and any problems 

that could arise from the use of such 

products. 

BIS response: The Department 

disagrees with the concerns raised about 

considering substitute products. The 

Department understands the points 

raised about the importance of adding 

greater specificity for the criterion on 

what may constitute an equivalent 

product that is of satisfactory quality 

and how the criterion is used in the 

review of exclusion requests and 

objections. As noted above in response 

to comment (f)(5)(iv), today’s rule is 

adding a new paragraph (c)(6)(ii) to 

provide a definition for the criterion 

‘‘not produced in the United States in a 

satisfactory quality,’’ defining the term 

‘‘substitute product,’’ and including 

application examples. The Department 

is also adding a rebuttal and surrebuttal 

process that will allow an exclusion 

requester to identify reasons why an 

alleged substitute product is not in fact 

a substitute. These changes are 

responsive to these types of comments. 

Comment (f)(6)(ii): Definition of 

‘‘immediately’’ should be kept the same 

or shortened. One commenter asserted 

that as the exclusions currently only last 

one year, the Department should not 

recognize objections unless they can 

produce the item at that point. If a 

domestic steel manufacturer is able to 

produce the good in the future, it would 

be then more appropriate to object to the 

following year’s request. 

BIS response: The Department agrees 

that the definition should remain the 

same, but disagrees that the definition 

needs to be shortened. The definition of 

‘‘immediately’’ is appropriate and 

requires no lengthening or shortening in 

order to meet the purpose of the 

exclusion and objection process and for 

consistency with the Proclamations. As 

referenced above, today’s rule is adding 

paragraph (h)(2)(iv) to provide more 

transparency and guidance to submitters 

on how the Department will determine 

the appropriate validity date for 

approved exclusions. Today’s rule also 

is adding a rebuttal and surrebuttal 

process discussed in regulatory changes 

below that will be responsive to these 

types of comments and help to ensure 

the Department has all the relevant 

information needed to determine the 

appropriate validity period on a fair and 

consistent basis. 

Comment (f)(6)(iii): Add metrics for 

determining U.S. domestic capacity to 

meet demand. Commenters raised 

concerns that the March 19 rule does 

not identify the criteria the Department 

will apply in determining whether an 

article is produced in the United States 

in a sufficient and reasonably available 

amount, which raises the following 

questions: 

Comment (f)(6)(iii)(A): To what extent 

will the Department take into account 

quantities demanded by users of the 

article other than the applicant itself? 

BIS response: The Department, 

including product experts from ITA, 

will review requests based on the 

information provided and 

representations made by the objector. 

Today’s rule is adding a rebuttal and 

surrebuttal process where an individual 

or organization that submitted an 

exclusion request that received an 

objection could include in their rebuttal 

any concerns they had about an objector 

overcommitting the steel or aluminum 

manufacturer’s current or future 

capacity. This rebuttal process will be 

included in a new paragraph (f) in both 

supplements. 

Comment (f)(6)(iii)(B): To what extent 

will the Department verify the potential 

for U.S. manufacturers to increase 

capacity and/or capacity utilization? 

BIS response: If the objector is 

asserting that it is not currently 

producing the steel identified in an 

exclusion request but can produce the 

steel or aluminum within eight weeks, 

the objector must identify how it will be 

able to start production within eight 

weeks. This requirement includes 

specifying in writing to the Department 

as part of an objection the timeline the 

objector anticipates to start or restart 

production of the steel or aluminum 

included in the exclusion request to 

which the manufacturer is objecting. 

Today’s rule revises paragraph (d)(4) to 

add more specificity on these 

requirements for the substance of 

objections to submitted exclusion 

requests. 

Comment (f)(6)(iii)(C): How does the 

Department intend to deal with multiple 

exclusion requests where each 

individual request might be fulfilled 

from U.S. domestic parties, but the total 

of such requests exceeds current U.S. 

capacity? 

BIS response: The Department, 

including product experts from ITA, 

will be evaluating these factors as part 

of the review process when objections 

are received. The new rebuttal process 

this rule is adding to a new paragraph 

(f), as well as the surrebuttal process 

being added to paragraph (g), in each 

supplement, provides an additional way 

for the Department to receive input to 

help identify these types of trends that 

the Department agrees should be taken 

into account for an efficient and 

effective exclusion process. 


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Comment (f)(6)(iii)(D): What is the 

timeframe that the Department will use 

to determine if a U.S. domestic party is 

capable of producing the specific 

product? Is it within the period of the 

particular exclusion request (i.e., one 

year)? 

BIS response: The steel or aluminum 

product must be available 

‘‘immediately.’’ ‘‘Immediately’’ means 

whether a product is currently being 

produced or could be produced and 

delivered ‘‘within eight weeks’’ in the 

amount needed for the business 

activities described in the exclusion 

request. Today’s rule is adding a 

definition of ‘‘immediately’’ to 

paragraph (c)(6)(i) and application 

examples to assist the public’s 

understanding. 

Comment (f)(6)(iii)(E): Will the 

Department take into account product 

prices and the conflicting impacts of 

such prices on U.S. domestic steel 

producers and users in determining 

whether there could be sufficient 

domestic capacity? 

BIS response: The Department will 

not consider this criterion. The 

Department only considers criteria 

taken from the Proclamations which are 

included in the review criteria of the 

two supplements and on the exclusion 

request and objection forms. 

Comment (f)(6)(iii)(F): One 

commenter argued that the Department 

should apply reasonable standards to 

the review of exclusion requests and 

objections, which the commenter 

identified as not allowing unsupported 

assertions of production capacity and, 

after a prima facie case for an exclusion 

request is made (accepted as correct 

until proven otherwise), affording that 

request a presumption of approval. 

BIS response: The Department agrees 

that it must hold requesters and 

objectors to a high and consistent 

review standard and will continue to do 

so with the rebuttals and surrebuttals 

being added with today’s rule. However, 

the Department wants to emphasize that 

BIS and ITA do not prejudge or give 

greater weight to any particular 

submission, whether an exclusion 

request, an objection, a rebuttal, or a 

surrebuttal. The process is created to 

allow each party involved in the process 

to provide relevant information, 

including that specified on the forms by 

the Department, and any other 

information that the party involved in 

the process believes is relevant, in order 

to allow the Department to make a fair, 

impartial and consistent determination 

whether an exclusion request should be 

approved or denied. 

Comment (f)(6)(iv): Broaden criterion 

for determining whether a U.S. steel or 

aluminum user has tried to source from 

U.S. suppliers to be longer than two 

years. One commenter requested that 

the Department broadly take into 

consideration requesters’ attempts to 

source a product historically beyond the 

most recent two-year period. The 

commenter argued that if a requester has 

tried repeatedly over the years or is 

familiar enough with the market, it may 

not have regularly reached out to 

domestic suppliers in the most recent 

years. The commenter believed it would 

be unfair to expect a company to check 

annually whether or not a supplier has 

changed its production capabilities. 

BIS response: The Department 

disagrees. The U.S. Government 

anticipates and is already seeing a 

resurgence in steel and aluminum 

production in the United States with 

new facilities opening and new capacity 

being actively planned. If an individual 

or organization has not looked to buy 

steel or aluminum manufactured in the 

United States, it would be well worth 

their effort to do so before applying for 

an exclusion request. This will also save 

the requester time, as well that of 

potential objectors and the Department, 

because the potential requester may find 

in conducting a search that steel or 

aluminum not available in the U.S. 

market before may now or soon be 

available in the United States. 

Comment (f)(6)(v): Add metrics to 

determine sufficient quality. 

Commenters asserted that the 

Department should define and release 

metrics that will be used to determine 

whether U.S. steel manufacturers have 

the capacity to meet demand in order to 

provide greater clarity on how the 

Department will make its determination 

regarding production in the United 

States in a satisfactory quality. One 

commenter requested that objectors be 

required to show that they have the 

ability to produce steel goods that can 

actually be used by the supplier in the 

same way as the overseas product it had 

previously sourced. In the commenter’s 

view, that would require a showing that 

the product is of the same quality and 

can be certified if necessary for the 

particular item and that it will be 

committed to this specific use if 

requested. Another commenter was 

concerned that it is easy for 

manufacturers to assert that they ought 

to be able to make a certain product but, 

in reality, it may turn out to be difficult 

and unfeasible. Still another commenter 

was concerned that for many steel items 

there is a certification process which 

can take years and require demonstrated 

consistency in the product, thereby 

pushing off by two to three years actual 

production by a replacement U.S. steel 

supplier, assuming the would-be 

supplier is able to pass the certification. 

The commenters argued that if the 

Department does not stringently assess 

U.S. steel producers’ claims and 

consider extrinsic factors that affect 

available supply, it could create a 

situation where domestic steel users 

will have no usable steel supplies, 

driving them out of business. 

BIS response: The Department agrees 

with some of the concerns raised and, 

as noted above, is adding a new 

paragraph (c)(6)(ii) to clarify issues 

regarding quality and provide the public 

with a better understanding of the 

application of the criterion. In addition, 

the Department notes that today’s rule 

also is adding a rebuttal and surrebuttal 

process under paragraphs (f) and (g) that 

will allow requesters to provide a 

rebuttal if they believe an objector 

cannot meet their quality standards or if 

some other aspect of the objection 

warrants a response, as well as an 

opportunity for the objector receiving a 

rebuttal to submit a surrebuttal if it 

believes that is warranted. 

Comment (f)(6)(vi): Allow companies 

to seek product exclusions on basis of 

internal quality standards. A 

commenter requested the Department 

specify how it will determine whether, 

in the case of highly specialized 

products, a domestic product’s quality/ 

standard is equivalent to the quality/ 

standard of the foreign import. The 

same commenter requested the 

Department explain the weight that it 

will give to a user’s stated needs 

regarding product quality in making its 

determination whether to grant an 

exclusion request. Commenters 

requested that the Department define 

the minimum quality thresholds that 

U.S. steel manufacturers must meet. In 

particular, commenters requested that 

the Department approve exclusions 

based on comparative performance 

standards. For products available from 

both domestic and international 

sources, commenters asserted that 

companies should be allowed to submit 

data identifying the companies’ 

performance needs and comparing the 

performance of the domestic product vs. 

the international product; identifying 

specific products needed to meet a 

specific performance standard 

determined by the user, who is in the 

best position to identify the product 

quality requirements for any given 

project; and establishing the existence of 

a company’s corporate approved Quality 

Assurance standards that exceed 

regulatory or industry approved 

standards. 

BIS response: The purpose of the 

exclusion process is to protect 


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downstream manufacturers that rely on 

products not produced by U.S. domestic 

industry at this time. The guiding 

principle is that, if U.S. domestic 

industry does not or will not produce a 

given steel or aluminum product of the 

quality needed by users in the United 

States, companies that rely on those 

products will not pay duties on them. 

Today’s rule adds paragraph (c)(6), 

including paragraph (c)(6)(ii), to 

respond to these types of comments 

concerned with ensuring that the 

exclusion review process adequately 

takes into account the quality needs of 

requesters. 

Comment (f)(6)(vii): The Department 

should only deny an exclusion request 

if there is a domestic metals producer 

that can provide the same product to 

customer specifications in the time line 

needed by the requester. A commenter 

asserted that domestic capacity to make 

a product is not the same thing as the 

current ability to produce a needed 

product within a viable lead time to 

meet customer demands. The 

commenter was concerned that the 

Department not reject product exclusion 

requests based solely on a domestic 

producer’s claim of capacity to make the 

product, noting that many of the 

objections posted on regulations.gov, 

have included phrases like ‘‘Although 

we don’t make this product. . .’’ and 

‘‘We have the capacity to make this 

product. . .’’ The commenter 

emphasized that a manufacturer that 

needs steel or aluminum to make its 

product needs it available in the U.S. 

marketplace within reasonable lead 

times and to specific specifications to 

meet customer demands. 

BIS response: The Department agrees 

on the point generally, but also believes 

that a reasonable standard needs to be 

applied to balance the needs of 

requesters to obtain steel and aluminum 

in a timely fashion with providing an 

opportunity for U.S. steel and 

aluminum manufacturers to expand 

capacity when that can be done 

‘‘immediately’’—meaning within eight 

weeks. This criterion is consistent with 

the intent of the Proclamations and the 

criteria of the two supplements added in 

the March 19 rule. The final rule 

published today is adding text to 

paragraph (d)(4), as well as adding new 

paragraphs (c)(6)(i) and (ii) to the 

supplements, to provide additional 

context for what constitutes sufficient 

quality and application examples for 

this criterion. 

Comment (f)(6)(viii): Establish process 

to consider existing contracts and 

supplier agreements when reviewing 

exclusion requests. A commenter 

requested that the Department establish 

a process to evaluate existing contracts 

and supplier agreements when assessing 

exclusion requests in order to avoid 

undue disruption to the operations of 

U.S. companies that are already relying 

on qualified suppliers of needed inputs. 

BIS response: The Department is not 

authorized by the Proclamations to grant 

product exclusions on the basis of 

existing contracts, except as described 

in the Presidential Proclamation 9777 of 

August 29, 2018 under clause 2 that 

requires the Secretary to grant 

exclusions from quantitative limitations. 

The August 29 Proclamation 9777 

created the separate exclusion process 

to address concerns such as these for 

certain existing contracts that include 

steel articles. Other than clause 2, 

exclusions 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 specific national security 

considerations. 

Comment (f)(6)(ix): Add metrics to 

determine ‘‘national security 

considerations’’—current criterion is too 

narrow for what should be considered 

national security. Commenters 

requested that national security 

considerations be defined more 

precisely and more broadly to take into 

account other economic considerations 

that are important to U.S. national 

security. A commenter requested that 

the Department must make ‘‘national 

security considerations’’ explicitly clear 

to requesters. It asserted that, if the 

Department produces exclusion 

guidance without defining this term or 

with a vague definition, requesters will 

have great difficulty in providing the 

necessary information in their requests 

and such vagueness could lead the 

Department to deny exclusion requests 

in an arbitrary and capricious manner. 

Smaller companies, the commenter 

remarked, would be at a severe 

disadvantage in responding to this 

criterion. Another commenter was 

concerned that national security was 

being defined too narrowly because the 

exclusion request form identifies U.S. 

national security requirements as 

‘‘critical infrastructure or national 

defense systems.’’ The commenter was 

concerned that this form implies that 

these two criteria alone are the only 

national security justifications that may 

be made for a product exclusion request. 

The commenter requested that the 

Department consider a broader 

definition of ‘‘national security’’ for 

determining exclusion requests that 

mirrors the language of 19 U.S.C. Sec. 

1862(d), which states that ‘‘. . . [I]n the 

administration of this section, the 

Secretary and the President shall further 

recognize the close relation of the 

economic welfare of the Nation to our 

national security . . .’’ A trade 

association commenter for the oil and 

gas industry asserted that they expect 

the Department to recognize the 

importance the oil and natural gas 

industry and to consider petitions for 

relief from the U.S. oil and natural gas 

industry in the spirit of President 

Trump’s March 28, 2017 Executive 

Order (E.O.) entitled ‘‘Promoting Energy 

Independence and Economic Growth.’’ 

That E.O. states that ‘‘[I]t is in the 

national interest to . . . avoid regulatory 

burdens that unnecessarily encumber 

energy production, constrain economic 

growth, and prevent job creation’’ and 

that regulatory actions that ‘‘unduly 

burden the development of domestic 

energy resources’’ be suspended, 

revised, or rescinded. 

BIS response: Protecting U.S. national 

security is why the Section 232 process 

exists. The President has instructed the 

Department to grant exclusions from the 

tariff for specific national security 

considerations, and the Department, as 

well as the rest of the U.S. Government, 

must exercise some reasonable 

discretion in determining whether that 

standard is met when evaluating 

exclusion requests, objections, and the 

rebuttals and surrebuttals being added 

with the publication of today’s rule. 

However, the Department also 

understands the importance of 

transparency in applying the national 

security review criterion in a fair and 

consistent way. The Department in 

today’s rule is adding a new paragraph 

(c)(6)(iii) to each of the supplements to 

provide additional context for how the 

Department will apply the criterion ‘‘for 

specific national security 

considerations.’’ Similar to the other 

new paragraphs today’s rule is adding to 

better define the criteria used to 

evaluate exclusion requests, objections, 

and the new rebuttals and surrebuttals 

process, examples are provided to assist 

the public in better understanding the 

application of the national security 

criterion. 

Comment (f)(6)(x): Establish processes 

that evaluate the risks to approving an 

exclusion request, but also the risks of 

not approving. A commenter requested 

that the Department, in evaluating 

exclusion requests, consider the risks 

and potential effects of granting as well 

as not granting a requested exclusion on 

U.S. businesses, including downstream 

users of products with little or no 

national security applications. 

BIS response: The Department 

considers the criteria of the 

Proclamations in deciding whether or 


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not to grant an exclusion request and is 

committed to applying those criteria in 

a fair and objective way. 

Comment (f)(7): Separate requests for 

like products should be eliminated. 

There was overwhelming support by a 

large number of the commenters for the 

rule to be revised to allow exclusion 

requests to cover ranges or dimensions 

within the same HTSUS code and 

thereby streamline the process for both 

importers and the Department. 

Commenters asserted that not only do 

current limitations unduly burden the 

requester by requiring duplicative 

requests, they also burden objectors who 

must respond individually to each 

request and the Department that must 

consider each request. The commenters 

believe that substantively the 

Department could still adequately track 

what was being approved in exclusions 

without retaining this unnecessary 

restriction. Another commenter raised 

concerns that the current process 

increases the possibility of inconsistent 

treatment for individual requests that 

are only different based on an 

insignificant dimension. Commenters 

recommended the Department clarify 

that a single exclusion form may be 

submitted for similar products and 

allow reasonable ranging of chemistry 

and dimensions (including width, 

height, length, diameter, and thickness) 

based upon standard industry practice. 

BIS response: BIS designed both the 

steel and aluminum exclusion and 

objection forms with input from a 

variety of U.S. Government and industry 

experts. The goal was to obtain 

sufficient information from the 

exclusion filer to allow a U.S. 

manufacturer of steel or aluminum to 

file a credible objection to that specific 

exclusion. To be credible, the objection 

must state that the objector can produce 

the specific product for which the 

exclusion is requested within the time 

frame covered by the exclusion request. 

The forms allow for a product that may 

be within a narrow range. Today’s rule 

is adding two sentences to paragraph 

(c)(2) to clarify these types of issues. 

Define Process for Obtaining ‘‘Broad 

Exclusions’’ and Use This Process To 

Make the Exclusion Process More 

Effective 

Comment (f)(8)(i): Provide details on 

how to apply for broad exclusions. 

Commenters asserted that the statement 

‘‘unless Department approves a broader 

application of the product-based 

exclusion request to apply to additional 

importers’’ clearly contemplates that the 

Department is considering approving 

broader exclusion requests that can 

apply to multiple importers and that the 

Department should provide guidance on 

a process for such exclusions. Many 

commenters requested that the 

Department explain the circumstances 

under which BIS will approve a broader 

product exclusion and how U.S. 

companies may request such an 

exclusion. Commenters believe these 

broader exclusions would allow steel 

products to be reviewed in a broader 

fashion and provide the Department 

with an opportunity to more accurately 

assess domestic availability in relation 

to all the requests relating to that 

particular type of steel. Some 

commenters, to further support their 

position, asserted that the Department 

and the USTR relied on such a productbased exclusion process as part of the 

Section 201 steel safeguard proceedings 

more than a decade ago. 

BIS response: The March 19 rule was 

not clear enough on this issue. 

Identifying, evaluating, and approving 

broad product-based exclusions is done 

solely by the Department. Individuals 

and companies do play a role in this 

process, but that role is limited to 

submitting exclusion requests, 

objections, and the rebuttals and 

surrebuttals being added with the 

publication of today’s rule. The 

Department is responsible for 

identifying market trends in specific 

exclusion requests that may warrant 

approving broad product-based 

exclusions. In identifying these market 

trends, the Department will place 

particular importance on the objections 

being provided or lack thereof. The 

Department understands that this is a 

more time intensive process for all 

parties involved, but it ensures that the 

granting of broad based product 

exclusions is done in a measured and 

deliberative way so as not to undermine 

the Proclamations and their objective of 

protecting critical U.S. national security 

interests. 

Comment (f)(8)(ii): Product exclusions 

must not be company-specific and 

should apply broadly to all products 

from all sources meeting the exclusion 

requirements. Some commenters believe 

product exclusions should be broadly 

considered and granted on a productspecific basis, regardless of source, 

manufacturer, country-of-origin, or 

supply chain. They argued that the 

Department should use an exclusion 

process similar to the one used during 

the Section 201 safeguard measures on 

imported steel in 2002 in which 

exclusion requests were not tied to 

specific supply chains, manufacturers, 

or countries. The commenters asserted 

that a company-specific exclusion 

scheme is unduly restrictive, arbitrary, 

and ignores commercial realities. They 

argued that, under the current system, 

the Department may grant an exclusion 

for a specific product for some 

companies/end-users but unreasonably 

deny it for others for the identical 

product, a result that they contend is 

arbitrary, particularly if the exemption 

is based upon ‘‘short supply’’ 

considerations or a general lack of U.S. 

availability. Commenters also note that 

the current system increases the burden 

on requesters and the Department and 

creates needless enforcement and 

compliance issues at the border, as 

suppliers, importers, and end-users 

must determine how to monitor, 

segregate, track, and report all such 

supply chain details to CBP at the time 

of entry. Therefore, these commenters 

believe a ‘‘product’’ exclusion should be 

granted for ‘‘the product’’ itself, 

regardless of supplier or country of 

origin. 

BIS response: The Department does 

not agree. Parties applying for 

exclusions are required to identify the 

source countries for the single product 

for which the exclusion is requested, the 

annual quantity to be supplied, and the 

name of the current manufacturer(s)/ 

supplier(s), and the country of the 

manufacturer(s)/supplier(s). The 

exclusion request, if granted, will only 

pertain to the identified supplier(s) 

listed in the exclusion request form and 

the specific country of origin identified 

by the requester. The Secretary has the 

discretion to make broader exclusions 

available to all importers if the 

Department finds the circumstances 

warrant it, and the Secretary will 

exercise this discretion as appropriate, 

but only after exclusion request in the 

ordinary course. 

Comment (f)(8)(iii): If the Department 

determines a product is not available in 

U.S., then broader product (categorical) 

exclusion available to all should be 

approved. Commenters requested that if 

a product is not made in the United 

States or is not made in sufficient 

quantity or quality, the Department 

grant a broader product exclusion (not 

just on company by company, product 

by product basis). Commenters 

requested that any domestic industry 

objections to such a categorical 

exclusions be accompanied by specific 

evidence demonstrating when domestic 

capacity is projected to come on line. 

One commenter requested that the 

Department allocate resources to 

accelerate the identification of products 

where there is currently no (or very 

limited) U.S. production and none is 

likely to be available before a to-bedetermined future date. Such action 

would ease the burden on users of these 

types of products. Moreover, once the 


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review is completed, the commenter 

argued that the Department would be 

able to focus its resources on analyzing 

exclusion requests where there is 

substantial U.S. production or where 

there is expected to be substantial U.S. 

production in the foreseeable future. 

BIS response: As asserted above, the 

individuals or organizations applying 

for an exclusion must specify the 

precise steel or aluminum product, 

including whether a product is 

customized. Parties applying for 

exclusions are required to identify the 

source countries for the single product 

for which the exclusion is requested, the 

annual quantity to be supplied, the 

name of the current manufacturer(s)/ 

supplier(s), and the country of the 

manufacturer(s)/supplier(s). The 

exclusion request, if granted, will only 

pertain to the identified supplier(s) 

listed in the exclusion request form and 

the specific country of origin identified 

by the requester. The Secretary does 

have the discretion to make broader 

exclusions available to all importers if 

the Department finds the circumstances 

warrant it, and the Secretary will 

exercise this discretion as appropriate, 

but only after an exclusion request in 

the ordinary course. 

Comment (f)(9): Provide streamlined 

process whereby a second company 

seeking to use an exclusion already 

granted to another U.S. company can 

quickly obtain the right to use the same 

type of product exclusion. Commenters 

thought requiring that each exclusion 

granted be available only to the 

company that requested it is inefficient 

and time-consuming. Commenters 

recommended the Department provide a 

streamlined process whereby a second 

company seeking to use an exclusion 

already granted to a U.S. company can 

quickly obtain the right to use the same 

product exclusion. 

BIS response: The Department will 

allow exclusion requesters to reference 

a previously approved exclusion, but 

the new requester must still fill out the 

exclusion form and their new exclusion 

request will be evaluated based on the 

information included in their exclusion 

request. New requesters may include a 

copy of the original approved exclusion 

request, but simply referencing the 

approval identifier of the previous 

approved exclusion is sufficient and is 

what the Department recommends in 

such scenarios. The existence of a 

preexisting approved exclusion request 

for another individual or company 

would not be determinative for the 

review of a new exclusion request. Each 

request is reviewed on a case-by-case 

basis, and potential objectors will have 

an opportunity to review the new 

exclusion request, to object, and if they 

submitted an exclusion request or 

objection, to participate in the rebuttals/ 

surrebuttals process created with the 

publication of today’s rule. This is 

important because a domestic steel or 

aluminum manufacturer that may not 

have had the capacity to produce when 

reviewing the previously approved 

exclusion request may be able to 

produce ‘‘immediately’’ at the time a 

later exclusion request is filed. 

Country of Origin (Various 

Recommendations for How It Should Be 

Used in the Exclusion Process) 

Comment (f)(10)(i): Exclusions should 

not be country specific. One commenter 

recommended the Department allow 

companies granted product exclusions 

to import the product tariff-free from 

any country, given that the basis of the 

exclusion request is that the U.S. 

company cannot source the product 

domestically. 

BIS response: As noted above, the 

Department, in consultation with other 

Federal agencies, has the authority to 

grant exclusions from the additional 

duties imposed in the Proclamations for 

products that are not produced in 

sufficient quantity or quality in the 

United States or for specific national 

security considerations. Parties applying 

for exclusions are required to identify 

the source countries for the single 

product for which the exclusion is 

requested, the annual quantity to be 

supplied, the name of the current 

manufacturer(s)/supplier(s), and the 

country of the manufacturer(s)/ 

supplier(s). The exclusion request, if 

granted, will only pertain to the 

identified supplier(s) listed in the 

exclusion request form and the specific 

country of origin identified by the 

requester. The Secretary does have the 

discretion to make broader exclusions 

available to importers if the Department 

finds the circumstances warrant it, and 

the Secretary will exercise this 

discretion as appropriate, but only after 

an exclusion request in the ordinary 

course. 

Comment (f)(10)(ii): Department 

should consider country of origin when 

assessing a request. A commenter 

recommended that the Department 

consider the country of origin, and 

prioritize the requests of those countries 

that are national security allies, such as 

members of the European Union. In the 

commenter’s view, such an approach 

would be in consonance with the 

national security aims of the tariffs. 

BIS response: The review criteria 

based on the Proclamations and the two 

supplements added in the March 19 rule 

do not take into account the country of 

origin, so it would be inappropriate for 

the Department to make the proposed 

change. However, as described below, 

today’s rule does add a new Note to 

paragraph (c)(2) to both supplements to 

allow for product exclusions for 

countries subject to country-based 

quantitative limitations. 

Validity Periods for Exclusions 

Comment (f)(11)(i): Concerns that one 

year is insufficient and arbitrary. 

Commenters thought that granting of the 

exclusion for one year is arbitrary. A 

commenter asked if the product is not 

available domestically now, why the 

Department believes it will be available 

next year, or the year after, or ever. 

Commenters requested that instead of 

forcing importing manufacturers to go 

through this arduous exclusion petition 

process every year, the Department 

require aluminum and steel 

manufacturers to prove that the 

domestic supply exists in the quantities 

and the quality specifications necessary 

before ending any exclusion. 

BIS response: Generally, an exclusion 

is granted for one year from the date of 

signature. Parties should review the 

decision document for this information. 

As described below, the Department 

does have discretion to approve varying 

validity dates depending on the facts 

surrounding an exclusion. Also as 

referenced above and described in more 

detail below, today’s rule is adding a 

new paragraph (h)(2)(iii) to provide 

more information on the criteria the 

Department uses to determine the 

appropriate validity date for an 

exclusion. 

Comment (f)(11)(ii): Clarify that 

approvals can be less than one year 

when warranted. One commenter 

requested that the final rule clarify that 

although exclusions generally will be 

granted for one year, a shorter time 

period may be granted if the objector 

provides information showing that an 

exclusion is only warranted for a shorter 

period of time (e.g., that the objector can 

begin or expand domestic production in 

less than one year). 

BIS response: The Department agrees 

and confirms approvals can be less than 

one year when warranted. Today’s final 

rule is adding a new paragraph (h)(2)(iv) 

to provide additional context on the 

general one year validity date and when 

a shorter or longer validity date may be 

warranted. New paragraph (h)(2)(iv) 

includes application examples for when 

a longer period may be warranted for 

the validity period. 

Comment (f)(11)(iii): Should be five 

years or longer. One commenter 

requested that the Department explicitly 

provide for exclusion validity periods of 


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five years, subject to renewal thereafter, 

and for the length of specific projects 

discussed in submitted exclusion 

requests where U.S. domestic parties 

cannot demonstrate sufficient capacity 

to meet the long-term requirements set 

forth in an individual exclusion request 

or multiple exclusion requests for the 

same specific product. This commenter 

supported its position by noting that 

while one year is an easily definable 

time period, it does not reflect the 

reality of business planning, particularly 

where long-term, large-scale 

investments and purchasing contracts 

are involved, such as are typical in the 

oil and natural gas industry. In the 

commenter’s view, a five-year product 

exclusion is required to accommodate 

project planning and to reflect the 

reality of the long lead time from 

purchase order to delivery of products. 

The commenter recommended that U.S. 

manufacturers be provided the 

opportunity, regarding any exclusions 

granted, to prove that they have 

developed new capacity to meet 

quantity and/or quality specifications of 

entities granted petitions. 

BIS response: As described above, 

today’s final rule is adding a new 

paragraph (h)(2)(iv) to provide 

additional context on the general one 

year validity date and when a shorter or 

longer validity date may be warranted. 

The commenter’s recommendation to 

allow objectors to provide additional 

information to permit re-reviewing an 

approved exclusion request would 

likely require adding provisions to 

revoke existing approvals. The 

Department did not add such provisions 

in this rule because the Department 

believes there are likely many other 

members of the public who believe such 

changes would add unpredictability and 

undermine their ability for long range 

planning. The Department does, 

however, welcome comments in 

response to today’s rule on this 

commenter’s idea of allowing longer 

validity periods, with the understanding 

that potential objectors could come back 

at any time during such periods to 

request a readjudication of the product 

exclusion. 

Comment (f)(11)(iv): Exclusions 

should not be limited to an annual 

basis. Commenters requested that 

exclusions be indefinite until 

challenged and domestic production is 

demonstrated. These commenters 

asserted that a year is not a long time 

in the manufacturing cycle, and 

companies will need to plan out their 

supply chains further into the future. 

They also asserted that requiring all 

companies granted exclusion requests to 

go through this process yearly to ensure 

continuous supply would be a massive 

waste of the Department’s resources and 

overly burdensome to domestic steel 

users. These commenters believe that if 

the Department has found in the first 

instance that an exclusion should be 

granted because of the lack of domestic 

supply, it should be up to the domestic 

suppliers to demonstrate that their 

capabilities have changed. 

BIS response: As described above, 

today’s rule is adding a new paragraph 

(h)(2)(iv) to provide additional context 

on the general one year validity date 

and when a shorter or longer validity 

date may be warranted. The new 

paragraph (h)(2)(iv) includes examples 

for when a longer period may be 

warranted. 

Comment (f)(11)(v): Product 

exclusions should be permanent, not 

temporary (and on a universal basis). 

One commenter believes that temporary 

exclusions inject significant uncertainty 

into the business planning of companies 

and will only increase costs for 

companies as they have to alter their 

supply chains. 

BIS response: The Department does 

not believe that permanent exclusions 

would be consistent with the intent of 

the Proclamations and is concerned that 

such exclusions might in fact 

undermine the resurgence of certain 

steel and aluminum manufacturing 

critical to protecting U.S. national 

security. The Secretary does have the 

discretion to make broader exclusions 

available to all importers if the 

Department finds the circumstances 

warrant it, and the Secretary will 

exercise this discretion as appropriate. 

Comment (f)(12): Allow supporters of 

exclusion requests an opportunity to 

submit comments. One commenter was 

concerned that while the March 19 rule 

provides an opportunity for any 

individual or organization in the United 

States to file objections to exclusion 

requests, it does not provide a similar 

opportunity for such persons to make 

submissions in support of other parties’ 

exclusion requests. This commenter 

recommends the Department permit 

such filings. 

BIS response: The Department 

disagrees. The Department understands 

the desire of affected or similarly 

situated parties to provide submissions 

of support. However, the original 

submitter of an exclusion request is best 

situated to provide the specific 

information for the exclusion request 

and, under the new process for rebuttals 

and surrebuttals adopted in this rule, 

will be allowed to submit rebuttals to 

any objection received. Allowing other 

parties to submit statements of support 

is not needed in order for the 

Department to conduct its review of the 

exclusion request and would likely slow 

the entire process down. The number of 

exclusion requests being reviewed is 

substantial, and one of the purposes of 

today’s rule is to make improvements in 

the efficiency of the process. Where 

warranted to improve the transparency 

or fairness of the process, the 

Department has implemented changes 

that may increase its workload, but 

otherwise the focus is on trying to 

streamline the process to improve it for 

all parties involved. 

Add Rebuttal Process and Specify 

Criteria for Review of Objections 

Comment (f)(13)(i): Must add a 

rebuttal process (to allow exclusion 

request submitters to respond to 

objectors). An area of significant 

concern for commenters was the 

absence of a formal rebuttal process in 

the March 19 rule. Commenters 

recommended that the final rule should 

provide an even-handed, reciprocal 

process that allows interested parties to 

respond to objections. The supplements 

added in the March 19 rule currently 

provide an unbalanced rebuttal process 

under which any interested party may 

respond to a request, but the requester 

is not permitted a response. These 

commenters believe that requesters 

must have the ability as a matter of 

procedural due process to respond to 

objections. These commenters 

recommended that the Department 

should therefore provide requesters a 

15-day period to respond to any 

objections. These commenters asserted 

that a rebuttal process is consistent with 

due process and responsible 

administrative decision making. 

Therefore, these commenters 

recommended that the final rule should 

provide: A limitation on rebuttals to 

potentially aggrieved domestic 

manufacturers of specific articles sought 

to be excluded, plus a response by the 

applicant; in the alternative, if rebuttals 

are not limited to domestic 

manufacturers, a response by an 

interested party. These commenters said 

that it is important to allow the 

requester an opportunity to reply to the 

objections raised to make certain that 

the Department has all the information 

necessary to determine whether 

domestic steel producers can actually 

fulfill their needs. For U.S. companies 

using steel in their production process, 

determining which suppliers to use is a 

decision that is carefully considered 

based on their economic and 

manufacturing needs. One commenter 

remarked, ‘‘Without carefully assessing 

and soliciting reasons why certain steel 

suppliers are used in this process, the 


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Department runs the risk of creating 

lasting damage to the U.S. 

manufacturing sector.’’ The commenters 

thus warned against finalizing product 

exclusion requests without a complete 

record, arguing that decisions in such 

cases could be arbitrary and capricious, 

unfairly biased against U.S. businesses 

that rely on imported articles, or 

exacerbate risks to national security. 

BIS response: The Department agrees 

that adding a rebuttal and surrebuttal 

process will improve the process. The 

Department has accordingly developed 

and is adding with the publication of 

today’s rule a rebuttal process described 

under paragraph (f) in the two 

supplements to allow exclusion 

requesters to provide evidence refuting 

objectors’ claims of domestic capacity, 

as well as a surrebuttal process to allow 

the objector to respond to the rebuttal. 

The rebuttal and surrebuttal process 

will enhance the review process to 

ensure Department decision makers 

have as much relevant information as 

possible when assessing exclusion 

requests. 

Comment (f)(13)(ii): More criteria 

needs to be added for objections. One 

commenter asserted that while the 

March 19 rule indicated a 90-day 

response time, it does not state the 

standards for reviewing an application 

or what consideration the Department 

will give to objections, including those 

that readily admit to not currently 

producing the subject material in the 

quantity, or the quality, needed. Along 

similar lines, another commenter raised 

concern that the March 19 rule says very 

little about the nature of or criteria for 

lodging the objection, other than it 

should ‘‘clearly identify, and provide 

support for, its opposition’’ to the 

exclusion. The objection form provides 

some additional requirements 

(including production capabilities in the 

U.S. relative to the exclusion request 

production), but it simply allows the 

objector to assert that it makes ‘‘similar’’ 

merchandise. 

BIS response: The Department agrees 

that it would be beneficial to add 

additional information to the two 

supplements to better define the review 

criteria for objections. Today’s rule 

amends paragraph (d)(4) to better define 

how the Department will review 

objections, including providing 

application examples and important 

considerations for objectors to take into 

account when they are making 

representations in an objection. Today’s 

rule also makes changes to paragraph (h) 

to provide additional information for 

the disposition of objections. These 

changes will improve the transparency 

of the objection review process for the 

public. 

Comment (f)(13)(iii): Failure to object 

should result in automatic approval. A 

commenter asserted that the 

supplements added in the March 19 do 

not indicate what happens if there is no 

objection filed to a request within 30 

days. This commenter recommends that 

the Department should make clear in 

the final rule that the failure of any 

party to object to an exclusion request 

should result in automatic approval of 

the request, and the approval should be 

issued within 15 days of the end of the 

30-day period. 

BIS response: The Department will 

grant properly filed exclusion requests 

which meet the requisite criteria, 

receive no objections, and present no 

national security concerns. After an 

exclusion request’s 30-day comment 

period on regulations.gov, BIS will work 

with CBP to ensure that the requester 

provided an accurate HTSUS statistical 

reporting number. If so, BIS will 

immediately assess the request for 

satisfaction of the requisite criteria and 

any national security concerns. If BIS 

concludes that the request satisfies the 

criteria and identifies no national 

security concerns with granting the 

request, BIS will expeditiously post a 

decision on regulations.gov granting the 

exclusion request. Today’s rule adds in 

a new paragraph (h)(2)(ii) a streamlined 

process for approving exclusion 

requests that do not receive objections. 

Comment (f)(13)(iv): Objection based 

on ability to produce. One commenter 

recommended that the objector be 

required to ensure that it can produce 

the precise product described in the 

exclusion form and not merely similar 

products. Many other commenters 

asserted similar concerns and 

recommendations in this area about not 

falling into an equivalent trap that 

would undermine the ability of these 

downstream users of steel and 

aluminum to function effectively. 

BIS response: The Department agrees 

that an objector must be able to make 

the same steel or aluminum product or 

one that is equivalent, meaning 

‘‘substitutable for,’’ the one identified in 

the exclusion request that is the subject 

of the objection. As discussed above, 

today’s rule adds new paragraphs 

(c)(6)(ii) to better define what 

constitutes satisfactory quality and 

(c)(6)(i) to better define what constitutes 

sufficient and reasonably available steel 

or aluminum. The rebuttal and 

surrebuttal process that today’s rule is 

adding to paragraphs (f) and (g) in the 

two supplements will enhance the 

review process and the information the 

Department is receiving to ensure 

appropriate decisions based on a 

common understanding of the facts at 

hand. 

Comment (f)(13)(v): Objections based 

on future capacity. One commenter 

requested that any objector objecting 

based on anticipated capacity coming 

on line be required to provide specific 

evidence of when such capacity will 

come on line and that it can and 

actually will make the exact same 

product that is the subject of the 

exclusion. Many commenters hit on 

similar concerns and made similar type 

of recommendations. 

BIS response: The Department agrees 

that representations made by objectors 

must be supported by information that 

identifies clearly whether the capacity is 

currently available or will be 

‘‘immediately.’’ As described above, 

today’s rule is adding a new paragraph 

(c)(6)(i) and revising paragraph (d)(4) to 

make these requirements clear to 

objectors. The information required on 

the objection form will assist the 

Department in making these 

determinations whether sufficient 

supply is available in the U.S. to 

warrant denying an exclusion request. 

The rebuttal and surrebuttal process in 

today’s rule is adding to paragraphs (f) 

and (g) in the two supplements will 

enhance this process and the 

information the Department is receiving 

to ensure appropriate decisions are 

being made based on a common 

understanding of the facts at hand. 

Comment (f)(14): Add fair 

administrative and judicial review 

procedures for exclusion 

determinations. One commenter 

requested that the final rule articulate 

fair administrative and judicial review 

procedures for exclusion 

determinations. This same commenter 

recommended that final action by the 

Department be immediately appealable 

to an appropriate administrative 

appellate body, and/or the Court of 

International Trade. The commenter 

provided its thoughts on what courts 

may be appropriate, including the 

limitations that may make those 

suggested courts not the right legal 

venue. The commenter asserted that 

while it believes the Court of 

International Trade may be the 

appropriate forum for some appeals, 

there are clear exceptions to the Court’s 

jurisdiction where Presidential 

Proclamations involve matters other 

than tariffs, such as national security. 

BIS response: There is no specific 

appeals process. However, if a request is 

denied, a party is free to submit another 

request for exclusion that may provide 

additional details or information to 

support the request. As described above, 


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today’s rule is also adding a rebuttal and 

surrebuttal process to allow those 

individuals and organizations that 

submitted an exclusion request that 

received objections to submit rebuttals 

during a 7 day review period of the final 

objection posted for their exclusion 

request. These changes will improve the 

process and allow such parties an 

opportunity to provide additional 

information to the Department that they 

believe should be considered. 

The Department Should Provide 

Detailed Information on the Process for 

Extending an Exclusion Request Beyond 

the Initial One Year 

Comment (f)(15)(i): Allow submissions 

of renewals prior to expiration date of 

approved exclusions. A commenter 

recommended that the final rule be 

revised to clarify that requests for the 

extension of an exclusion be submitted 

prior to the exclusion’s expiration to 

avoid any disruption to the supply 

chain. 

BIS response: The Department agrees, 

but also clarifies that the existing 

provisions from the March 19 rule 

already allow renewal requests at any 

time. Technically, each new submission 

is a new exclusion request, but an 

applicant may, as an additional 

supporting document in a letter of 

explanation, reference a previous 

approval whether that is still valid or 

not. Individuals and companies will 

need to file a new exclusion request 

before the expiration of any granted 

exclusions to avoid any interruptions in 

their tariff relief. A copy of the previous 

approval is not needed, simply referring 

to the previous regulations.gov approval 

number in the new application is 

sufficient. The existing approved 

exclusion would not be amended, but 

may assist the Department in reviewing 

a new exclusion request. Each approved 

exclusion is limited to a set time period 

because there will be changing domestic 

production capabilities and product 

availability as U.S. steel and aluminum 

manufacturers increase production. 

Each exclusion request is reviewed on 

its own merit and on a case-by-case 

basis, so the existence of a previous 

exclusion approval is not a guarantee a 

new exclusion request will be approved. 

As a time saving tip, requesters may 

reuse the original form submission and 

just update the fields that need to be 

updated by downloading the form, 

making any needed updates, and then 

submitting the updated form in 

regulations.gov as a new submission. 

Comment (f)(15)(ii): Renewal process 

should be simple, streamlined and 

burden placed on U.S. steel and 

aluminum manufacturers to make the 

case if circumstances have changed in 

terms of their capacity. Commenters 

were concerned about the lack of 

information provided on how the 

Department plans to review granted 

exclusions at the conclusion of their 

one-year approval period. They asserted 

that lack of information about the 

process injects a huge amount of 

uncertainty into supplier agreements, 

which typically extend well beyond one 

year. These commenters requested that 

additional information on the process 

for requesting renewal of an exclusion 

be provided and that such process be 

clearly explained and not overly 

burdensome. Commenters 

recommended that the Department 

require the domestic producers to 

provide evidence that the circumstances 

leading to the grant of the original 

exclusion order have changed. Several 

commenters recommended that the 

Department amend the supplements 

added in the March 19 rule such that, 

if no facts or circumstances regarding 

the original exclusion request have 

changed, a filing company would not be 

required to file a completely new 

exclusion request to retain the benefit of 

a request that has already been 

approved. 

BIS response: The Department 

believes the renewal process outlined in 

the response to Comment (f)(15)(i) 

appropriately complies with the 

Proclamations and balances the 

competing interests. 

Comments on the Exclusion Form 

Comment (g)(1): Provide more 

guidance on using regulations.gov. A 

commenter requested BIS provide 

direction on the steps needed to use 

regulations.gov to submit an exclusion 

request. This commenter was having 

difficulty determining which link or 

button in regulations.gov it needed to 

use to submit the exclusion application 

submission itself. 

BIS response: The Department agrees 

that providing guidance on the use of 

regulations.gov is needed and has 

already taken steps to address this issue. 

As described above, the Department has 

posted step-by-step guidance documents 

and various helpful tips on 

regulations.gov under the two docket 

numbers, as well as on the Commerce 

website, to assist the public’s 

understanding and to reduce the burden 

in getting used to using regulatons.gov. 

Today’s rule also, as described below, 

adds an Annex 1 to Supplements No. 1 

and 2 to Part 705, which will assist the 

public in using www.regulations.gov for 

application issues specific to 

submissions under the exclusion, 

objection, rebuttal, surrebuttal process. 

As with any new process, there has been 

a learning curve for the public using 

regulations.gov, and this will continue 

to a lesser degree with the rebuttals and 

surrebuttals today’s rule is adding. The 

Department has significantly increased 

the number of people working on 

exclusion requests and objections, 

including adding many new people who 

previously had not used regulations.gov, 

so we understand that it takes some 

time to get familiar with the system. The 

Department has also found for itself, as 

well as members of the public that we 

have spoken to on the phone regarding 

using regulations.gov, that the comfort 

level is increasing, and we anticipate 

this will continue. 

Comment (g)(2): Ensure exclusion and 

objection criteria are limited to that 

covered by the Proclamation. A 

commenter was concerned whether the 

exclusion form was introducing criteria 

that was not consistent with the 

Proclamations. The commenter asserted 

that the Proclamation is clear that if a 

steel article is not produced in the 

United States in a sufficient and 

reasonably available amount or of 

satisfactory quality, the Department 

should grant an exclusion. However, the 

exclusion request form contains many 

fields beyond those factors. The 

commenter recommended that the 

Department make it clear that it will not 

be considering if ‘‘substitute products’’ 

are available, nor the ability of CBP to 

easily distinguish the product when 

making its decision as to whether an 

exclusion is approved. 

BIS response: The Department does 

not agree that information being 

requested on the forms is inconsistent 

with the criteria included in the 

Proclamations and the supplements 

added in the March 19 rule. The 

information being requested is needed 

by the Department to make a 

determination whether one of the three 

criteria identified in the Proclamations 

can be met. As described above, today’s 

rule is making various changes to clarify 

these types of issues and to add greater 

transparency to the process. The 

changes being made in today’s rule will 

give the public a better understanding of 

the criteria that the Department is using 

to review exclusion requests, objections, 

and rebuttals and surrebuttals being 

added with today’s rule. Today’s rule 

also clarifies the references to CBP and 

how they fit into the process to ensure 

that what is being approved is 

implementable. Providing false 

information to CBP in the form or 

providing a HTSUS statistical reporting 

number that is not correct may result in 

other import or export clearance related 

penalties from the U.S. Government, so 


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ensuring that an individual or 

organization that submitted an 

exclusion request used the correct 

HTSUS statistical reporting number will 

ensure an approved exclusion is 

implementable, as well as being 

consistent with other U.S. regulations. 

Comment (g)(3): Concern over the use 

of ranges on the forms. Commenters 

raised concern that the form has caused 

confusion in the industry due to the 

seemingly contradictory language 

wherein field 2.j. notes that ‘‘Ranges 

. . . are allowed,’’ but field 3.b. 

prohibits ‘‘a range of products and or 

sizes.’’ These commenters believe these 

inconsistencies have added additional 

uncertainty to an already opaque 

process, with requesters unsure if and 

when ranges are permissible. Therefore, 

these commenters recommended that 

the Department clarify what it means 

regarding permissible use of ranges and 

do so with specific examples, including 

illustrative examples demonstrating the 

outer bounds of any impermissible 

range for each such physical dimension 

(e.g., width range generally may not 

exceed 100 mm; thickness range may 

not exceed 50 mm). 

BIS response: The Department 

designed both the steel and aluminum 

exclusion/objection forms with input 

from a variety of U.S. Government 

experts and industry association 

material experts. The goal was to create 

a balance of information requested from 

the exclusion filer to allow a U.S. 

manufacturer of steel or aluminum to 

file a credible objection to that specific 

exclusion. The forms allow for a 

product that may be within a range but 

not products across a wide range. A 

permissible range must be within the 

minimum and maximum range that is 

specified in the tariff provision and 

applicable legal notes for the provision. 

As referenced above, today’s rule is 

adding two sentences to paragraph (c)(2) 

to clarify these types of issues. 

Comments on the Objection Form 

Comment (h)(1): Rule and the 

objection form are not in sync for who 

may submit an objection because of 

certain questions on the objection form. 

A commenter asserted the March 19 rule 

indicates that ‘‘any individual or 

organization in the United States may 

file objections to steel exclusion 

requests.’’ However, the commenter 

asserted that the Response Form for 

Objections to Posted Section 232 

Exclusion Requests—Steel (the 

Response Form) is structured to accept 

only the information of a single 

company, which would not appear to 

provide an opportunity for a joint 

submission by an ad hoc association of 

companies in opposition to a request, 

even if the association included the 

specific data requested for evaluating 

the objection. The commenter believes 

the submission of a single objection 

representing the views of a range of steel 

producing companies is a far more 

efficient way for the Department to 

receive comments in opposition to an 

exclusion request. 

BIS response: The Department agrees 

that there is an inconsistency between 

the objection form and the supplements 

added in the May 19 rule. In order to 

address this inconsistency, today’s rule 

is revising paragraph (d) in both 

supplements to clarify that the 

individuals and organizations in the 

U.S. that may submit objections are 

limited to those using aluminum or steel 

in business activities (e.g., construction, 

manufacturing, or supplying steel or 

aluminum products to users). The 

purpose of the objection process (as well 

as the surrebuttal process being adding 

in today’s rule) is to determine whether 

an exclusion should be approved or 

denied, so the objector needs to be able 

to provide information relevant to the 

fields identified on the form. The 

Department needs the information 

identified in those fields to fairly and 

consistently make determinations on the 

disposition of exclusion requests when 

objections are submitted, as well as 

rebuttals and surrebuttals being added 

to the process with the publication of 

today’s rule. The need for efficiency 

requires that objectors be able to address 

all of the applicable fields on the 

objection form in order to submit a 

credible objection that may warrant the 

Department’s denying an exclusion 

request. Today’s rule addresses this 

inconsistency by revising paragraph 

(d)(1) to clarify who may submit an 

objection to a submitted exclusion 

request. 

Comment (h)(2): Specific fields on the 

objection form that would appear to 

prevent certain parties from being able 

to submit objections. Question 2b on the 

objection form asks respondents to 

‘‘discuss the suitability of your 

organization’s steel products’’ and 

question 3 asks ‘‘what percentage of the 

total steel product tonnage requirement 

covered under the exclusion request 

. . . can your organization 

manufacture?’’ These questions appear 

to create a bias against opposition 

comments from organizations that are 

not actual producers of steel product, 

given that the March 19 rule indicates 

that objections that do not include the 

information requested on the objection 

form ‘‘will not be considered.’’ 

BIS response: The Department 

disagrees that there is any bias in the 

process, but this commenter, similar to 

commenter (h)(1) above, did highlight 

an inconsistency that needs to be 

addressed between the objection form 

and the two supplements added in the 

March 19 rule. As described in the BIS 

response to comment (h)(1) above, 

today’s rule is making changes to 

address this inconsistency between the 

objection form and the two supplements 

added in the March 19 rule by revising 

paragraph (d)(1). 

Comment (h)(3): Consolidated 

objections from industry would allow for 

better analysis by the Department and 

reduce burden on industry and the 

Department. A commenter asserted that 

for particularly large volume exclusion 

requests, one domestic steel 

manufacturer may not have the entire 

unutilized capacity to meet the needs 

that form the basis of that exclusion 

request. However, the domestic industry 

may very well have capacity in the 

aggregate to meet such orders. Absent 

permitting a single combined 

submission by members of the domestic 

industry that can provide aggregate data 

for the Department to review, the 

Department would need to collect that 

information from each of the members, 

expending unnecessary time and 

resources and increasing the risk that 

complete information will not be 

available to consider. Thus, at the very 

least, the commenter requested that the 

Department revise the supplements 

added in the March 19 rule and 

objection form to provide for joint 

submissions of ad hoc associations of 

companies to oppose ‘‘insufficient 

volume’’-based exclusion requests. 

BIS response: The Department does 

not agree. The Department is relying on 

the product expertise of ITA, as well as 

the information that the Department is 

receiving through the exclusion requests 

and objections, which will be enhanced 

further with the rebuttal and surrebuttal 

process being added by today’s rule. 

Because of the significant amount of 

exclusion request and objection activity 

the Department has been managing 

since March 19, the information that the 

Department has on the U.S. market for 

steel and aluminum production and its 

gaps (both in supply and quality) is 

deepening quickly. The Department is 

the party that will identify when 

broader based exclusions may be 

warranted for approval after 

consideration and approval by the 

Secretary. The Department 

acknowledges that this process may not 

be the most efficient for approving these 

types of broader exclusions, but it will 

ensure that any approved exclusions do 

not undermine the larger objectives of 


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the tariffs and the need to protect 

critical U.S. national security interests. 

Suggestions for Examples of Broad 

Based Product Exclusions That Could 

Be Implemented 

A number of commenters representing 

a wide range of industries submitted 

their initial suggestions for what should 

be included in broad based product 

exclusions. These requests for broad 

based product exclusions included 

primary aluminum and fabricated can 

sheet, aluminum foil, Grain Oriented 

Electric Steel (‘‘GOES’’), tinplate and tin 

free steel, specialty chrome products 

used in deepwater oil and gas wells, 

products used across the entire crude oil 

and natural gas production industry, 

and certain steel and aluminum 

products that are critical to motor 

vehicle parts manufacturers. At this 

time, the Department does not believe it 

is warranted to add a broad based 

product exclusion for any of the 

examples provided in the comments 

received on the March 19 rule. This 

does not preclude the Department from 

reevaluating this determination once 

additional exclusion requests are 

submitted and additional information 

provided to the Department in the 

objection, rebuttal, and surrebuttal 

processes is evaluated further and 

patterns begin to develop that may 

warrant granting broad product based 

exclusions for some or all of these 

referenced items. The intent of the 

March 19 rule was for the Department 

to identify these candidates for broad 

product exclusions over time based on 

experience with reviewing and 

approving exclusion requests submitted 

by individuals or companies. This is the 

reason why the March 19 rule did not 

have any provisions that described how 

individuals or organization could 

request broad based product exclusion 

requests. The Department believes this 

is the correct approach and is 

continuing this same regulatory 

framework in today’s rule. 

Process and Timing for Obtaining Tariff 

Refunds for Approved Exclusion 

Requests 

Comment (j)(1): Clarify effective date 

for exclusions. Commenters were 

concerned that the slowness of the 

process may nullify exclusions for many 

interested parties. A commenter was 

concerned that exclusions (once 

granted) appear to apply only to imports 

of a specific product arriving after the 

request was posted for public comment. 

This means merchandise imported prior 

to the posting of the request will not 

receive the benefits of the exclusion, 

even if the exclusion is ultimately 

granted. The commenter is concerned 

that this creates huge disadvantages for 

those seeking and obtaining exclusions 

because any merchandise on the water 

(or about to be shipped) remains subject 

to potential duties until the forms are 

posted, regardless of eligibility for 

exclusion. 

BIS response: The date for applying 

duty refunds is established in the 

Proclamations as amended. 

Comment (j)(2): Clarify who pays and 

the process for obtaining refunds for 

tariffs paid before exclusion granted? 

Commenters were concerned about the 

lack of information on the process for 

obtaining refunds for tariffs once an 

exclusion request is approved. 

Commenters asserted that the 

supplements are silent on the issue of 

whether a company that successfully 

obtains a product exclusion may obtain 

a refund of duties paid on such products 

already entered through U.S. customs 

procedures. Commenters recommended 

that the rule should be amended to 

describe this refund process in detail. 

BIS response: The Department 

clarifies here that if an exclusion is 

granted, the party would then work with 

CBP on the refund mechanism. CBP has 

provided public guidance on the 

process for requesting refunds in CBP’s 

Cargo Systems Messaging Service 

message #18–000378 available at 

https://csms.cbp.gov/viewmssg.asp?

Recid=23577&page=&srch_argv=232&

srchtype=&btype=&sortby=&sby=. 

Comments Dealing With CBP 

Enforcement and Implementation of 

Product Based Exclusions and Country 

Based Exclusions 

Comment (k)(1): Concerns with CBP 

implementation and enforcement of 

exclusions. A commenter raised 

concerns that the detailed and 

individualized nature of the exclusion 

requests (i.e., product specificity and 

supply chain specificity) virtually 

ensures that compliance and 

enforcement will be complicated. A 

commenter requested that the 

Department clarify the following details 

to facilitate enforcement by CBP: 

Amendments to Entry Forms: The 

commenter argued that the Department 

should recommend changes to CBP 

entry forms to allow easier enforcement. 

Such changes might include creation of 

a separate line item on the 7501 form to 

declare such duties, similar to the way 

CBP enforces the collection of 

antidumping and countervailing duties. 

Entry Documentation: The commenter 

suggested that the Department specify 

the documents required to be produced 

at entry by each party in the supply 

chain to create predictability and to 

help simplify the process for importing 

excluded merchandise without delay or 

duties, e.g., mill test certificates, origin 

certificates, and export licenses. 

A commenter requested that the 

Department clarify how it will instruct 

and assist CBP in enforcing and 

administering exclusion requests, 

including whether it will adopt any type 

of import licensing system. 

A commenter requested that the 

Department address how it will enforce 

and administer product exclusions 

simultaneously with country 

exemptions, particularly given the 

current temporary nature of some of the 

country exemptions. A country 

exemption establishes a quantitative 

limit for steel or aluminum that may be 

imported from a specific country, but 

once the quantitative limitation is 

reached no additional quantity of that 

steel or aluminum may be imported 

from that country. Commenters assert 

they are concerned about the 

quantitative limitations because if the 

supply of steel or aluminum is needed 

from such a country once the 

quantitative limitation is reached, there 

will be no alternative supply. For 

countries not subject to quantitative 

limitations an unlimited amount of steel 

or aluminum may be imported, but if 

not subject to a product exclusion, 

would be required to pay the applicable 

tariff of 25 percent for steel and 10% for 

aluminum. The commenter requested 

that if country exemptions are tied to 

quotas (referred to henceforth as 

quantitative limitations) (or any other 

type of import restriction), the 

Department work with the USTR and 

CBP to develop a workable solution to 

simultaneously monitor and enforce 

product exclusions, country 

exemptions, and any quantitative 

limitations used to enforce country 

exemptions. 

BIS response: The Department has 

been working closely with CBP in the 

development and implementation of the 

product exclusion process. BIS will not 

issue a decision granting an exclusion 

until CBP confirms that the exclusion is 

administrable, meaning the exclusion 

request designates the correct HTSUS 

statistical reporting number. The 

Department will provide CBP with 

information that will identify each 

approved exclusion request, as 

described in the preceding paragraph. 

Individuals or organizations whose 

exclusion requests are approved must 

report information concerning any 

applicable exclusion to CBP. 

Comment (k)(2): Department should 

clarify that CBP’s ability to distinguish 

a steel product is not a criterion for 

granting an exclusion request. One 


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commenter asserted that neither the 

Proclamations nor the March 19 rule say 

anything about weighing the burden on 

the CBP to administer an exclusion as 

being part of the criteria for whether to 

approve an exclusion request. 

Therefore, this commenter requests the 

Department not use this field on the 

exclusion form as the basis for rejecting 

a request. 

BIS response: The Department does 

not agree. In order for critical U.S. 

national security interests to be 

protected and to be consistent with the 

Proclamations, the items included in an 

approved exclusion must be able to be 

adequately identified by CBP to ensure 

importers are not exceeding the scope of 

approvals. Also as referenced above on 

a similar comment, importers are 

responsible for providing a correct 

HTSUS statistical reporting number to 

CBP, so the Department’s process of 

ensuring the HTS number is correct also 

helps the importer to ensure the 

information that they are otherwise 

required to provide to CBP is correct. 

BIS will not issue a decision granting an 

exclusion until CBP confirms that the 

exclusion is administrable. In cases 

where a request is denied for HTSUS 

issues, companies are encouraged to 

work with CBP to confirm the proper 

classifications and resubmit. 

Country Based Exclusions Must Be 

Taken Into Account When Determining 

U.S. Supply 

Comment (l)(1): Country based 

exclusions must also be taken into 

account when determining U.S. supply. 

A commenter was concerned that the 

March 19 rule and the exclusion request 

process and exclusion and objection 

forms appear to place too much 

emphasis on the availability of supply 

in the U.S. market. The fact that U.S. 

production cannot meet 100 percent of 

demand for a product should not itself 

be the basis for a product-specific 

exclusion. This commenter 

recommended the proper interpretation 

of short-supply should be that the 

product cannot be produced at all in 

either the U.S. or one of the other 

exempted countries. 

BIS response: The Department does 

not agree. The Proclamations authorize 

the Secretary of Commerce to grant 

exclusions from the duties only if the 

Secretary determines that the steel or 

aluminum article for which the 

exclusion is requested is not produced 

in the United States in a sufficient and 

reasonable available amount or of a 

satisfactory quality or should be 

excluded based upon specific national 

security considerations. As described in 

more detail below, today’s rule is 

adding paragraph (c)(6)(i)–(iii) to be 

responsive to these types of comments. 

Comment (l)(2): Product exclusion 

requests must be coordinated with 

country exemptions to prevent ‘‘doubledipping.’’ A commenter requested in 

order to ensure that the tariffs serve 

their purpose of boosting U.S. steel 

production, the Department and the 

USTR coordinate the allocation of 

product-specific requests with any 

country-specific exemptions and any 

applicable quantitative limitations to 

prevent ‘‘double-dipping.’’ 

BIS response: The Department does 

not agree. The product based exclusions 

process and the country exemptions 

process are separate processes. The 

Department does not take into account 

approved country exemptions when 

evaluating whether to approve an 

exclusion request. Questions specific to 

country exemptions should be directed 

to USTR. Today’s rule does, however, 

add a new Note to paragraph (c)(2) to 

allow for product exclusion requests for 

countries subject to quantitative 

exclusions using the same criteria 

specified in the supplements added in 

the March 19 rule and the 

Proclamations. The review criteria for 

whether to grant exclusion requests 

from countries subject to quantitative 

limitations does not take into account 

the current level remaining of a 

quantitative limitation for a particular 

country, but today’s rule does, for 

consistency with the August 29, 2018, 

Presidential Proclamation 9777 and the 

August 29, 2018, Presidential 

Proclamation 9776, takes steps along 

with CBP to ensure that the exclusions 

granted under the scope of paragraph (c) 

do not undermine the purpose of the 

country based quantitative limitations. 

Country Based Exemptions Must Not Be 

Taken Into Account When Determining 

U.S. Supply 

Comment (n)(1): No way to guarantee 

foreign supply would be available to a 

U.S. based user. A commenter asserted 

that the ability to potentially source 

from a foreign country does not mean 

that a U.S. manufacturer would be able 

to receive supplies from that foreign 

country and that such a consideration 

serves no purpose with regard to the 

goal of the Section 232 tariffs. Therefore, 

this commenter recommends it should 

not be considered in this context. 

BIS response: The exclusion process 

is intended to be as narrowly focused as 

possible to ensure the larger objective of 

the tariffs—to protect critical U.S. 

national security—is achieved. The 

Proclamations authorize the Secretary to 

grant exclusions from the duties only if 

the Secretary determines the steel or 

aluminum article for which the 

exclusion is requested is not produced 

in the United States in a sufficient and 

reasonable available amount or of a 

satisfactory quality or for specific 

national security considerations. As 

described above and in more detail 

below, today’s rule adds a Note to 

paragraph (c)(2) that will be partially 

responsive to these types of comments. 

Comment (n)(2): Country exemptions 

have been fluid, so difficult to include 

that in the product exclusion analysis. 

One commenter asserted that the 

country exemptions are fluid or not 

finalized, with caveats that the 

President ‘‘will consider re-imposing 

the tariff’’ or ‘‘revisit this determination, 

as appropriate,’’ which makes it difficult 

to reliably include country exemptions 

as part of the analysis for product based 

exclusions. 

BIS response: The product exclusion 

process operates independently of 

country exemption discussions. 

Decisions about country exemptions are 

made by the President, based on his 

assessment of the factors described in 

his Proclamations. Under the authority 

granted by the earlier Proclamations, an 

exclusion request only applies to 

aluminum or steel imported from a 

country subject to a tariff. However, the 

Proclamations 9777 and 9776 of August 

29, 2018, allowed the Secretary to grant 

exclusions from quantitative limitations 

as described in this rule with the 

addition of Note to paragraph (c)(2). As 

noted above, the Proclamation 9777 

under clause 2 also created a separate 

process that requires the Secretary to 

grant exclusions from quantitative 

limitations. The Department cannot 

grant exclusion requests for aluminum 

or steel products imported from a 

country subject to a quantitative 

limitation, except as specified in the 

Note to paragraph (c)(2) for purposes of 

today’s rule, or under clause 2 of 

Proclamation 9777. 

Comment (n)(3): Product based 

exclusions should not be country 

specific and should be available for 

countries with quantitative limitations. 

A commenter requested the Department 

authorize all companies granted product 

exclusions to import tariff-free from any 

available market economy source 

country because the basis of the 

exclusion request is that the U.S. 

company cannot source the product 

domestically. While the exclusion 

request process, managed by the 

Department, is separate from the 

country exemption process being 

managed by the USTR, the commenter 

urged the Department and USTR to 

coordinate and allow companies to 

apply for and be granted exclusion 


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requests or pay the tariffs on products 

that go beyond a country’s quantitative 

limitation. 

BIS response: As noted above, the 

exclusion request and objection process 

operates independently of country 

exemption discussions. Decisions about 

exemptions are made by the President, 

based on his assessment of the factors 

described in his Proclamations. Under 

the authority granted by the 

Proclamations, an exclusion request 

only applies to aluminum or steel 

imported from a country subject to a 

tariff. The Department cannot grant 

exclusion requests for aluminum or 

steel products imported from a country 

subject to a quantitative limitation, 

except as specified in the Note to 

paragraph (c)(2) (in Supplements No. 1 

and 2 for aluminum and steel). 

Comment (n)(4): Concerns that 

country quantitative limitations will 

further restrict U.S. supply. A trade 

association commenter asserted that it 

understands that the Department will 

not entertain exclusion requests 

covering steel from South Korea subject 

to a filled quantitative limitation and 

urges the Department to reverse this 

policy. The commenter argues that the 

policy treats steel from countries with 

exemptions, such as South Korea, less 

favorably than those countries that have 

not been granted exemptions, such as 

Russia and China. In this example, 

Russian and Chinese steel and 

aluminum would be permitted to be 

imported into the U.S. with an 

exclusion or be subject to tariffs. After 

the steel quantitative limitation for 

South Korea is reached, however, 

companies would not be permitted to 

apply for exclusions or pay tariffs on 

additional South Korean steel, and steel 

shipments would have to be returned or 

destroyed. Another commenter had 

concerns that since these are absolute 

quantitative limitations, there is no 

opportunity for importers to pay the 

tariff and import the product if the 

quantitative limitation is filled, which 

constrains supply even further. These 

commenters requested the that 

Department allow interested parties 

who are subjected to quantitative 

limitations be able to use the Section 

232 exclusion process to request an 

exclusion from the quantitative 

limitations for ‘‘short supply’’ or similar 

reasons regarding lack of domestic 

availability. 

BIS response: As noted above, the 

exclusion request and objection process 

operates independently of country 

exemption discussions. Decisions about 

exemptions are made by the President, 

based on his assessment of the factors 

described in his Proclamations. Under 

the authority granted by the 

Proclamations, an exclusion request 

only applies to aluminum or steel 

imported from a country subject to a 

tariff, except as specified in the Note to 

paragraph (c)(2)(in Supplements No. 1 

and 2 for steel and aluminum). Under 

today’s rule, the Department will be able 

to grant exclusion requests for 

aluminum or steel products imported 

from a country subject to a quantitative 

limitation under the conditions 

specified in the Note to paragraph (c)(2) 

(in Supplements No. 1 and 2 for steel 

and aluminum). 

Changes Made in This Interim Final 

Rule to the Exclusion and Objection 

Process 

In order to improve the fairness, 

transparency and efficiency of the 

exclusion and objection process, as well 

as add a rebuttal and surrebuttal 

process, BIS, on behalf of the Secretary, 

is publishing today’s interim final rule 

to make a number of changes to improve 

the process. These changes are 

responsive to the comments received on 

the March 19 rule and should improve 

the process significantly. Because the 

two supplements are nearly identical, 

with the same paragraph structure and 

regulatory provisions, this interim final 

rule makes the same changes to both 

Supplement No. 1 and No. 2 to Part 705. 

The only places where the regulatory 

changes made in this rule differ slightly 

is in the application examples that are 

specific to steel or aluminum and the 

samples of naming conventions for 

submissions in regulations.gov that use 

the respective docket numbers in the 

examples (BIS–2018–0006 (steel) and 

BIS–2018–0002 (aluminum)). 

Today’s rule makes conforming edits 

throughout the two supplements to add 

references to the new rebuttal and 

surrebuttal process that today’s rule is 

adding. The new rebuttal process is 

described below under paragraph (f). 

The new surrebuttal process is 

described below under paragraph (g). 

Except for the changes to new 

paragraphs (f) and (g), the additional 

references to rebuttal and surrebuttal are 

being added when the process is being 

referenced as a whole in the two 

supplements—meaning whenever the 

terms ‘‘exclusion request’’ and 

‘‘objection’’ are used to describe the 

process. References to these two terms 

will, after the publication of today’s 

rule, encompass exclusion requests, 

objections, rebuttals and surrebuttals. 

It is important to understand that the 

Department is committed to having as 

fair, transparent and efficient a process 

as possible for managing product 

exclusion requests. As asserted above by 

the commenters and confirmed by the 

experience of the Department, the 

number of submissions for exclusion 

requests and objections have far 

exceeded original expectations, and the 

Department is taking steps in this rule 

to improve the efficiency of adjudicating 

those requests. In addition, the 

Department is making changes to 

improve the fairness of the process by 

allowing the individual or organization 

that submitted an exclusion request or 

an objection to have an opportunity to 

respond to information provided by the 

other party, leading to better and more 

informed decisions on exclusion 

requests. 

In paragraph (b)(5)(Public disclosure), 

today’s rule is making explicit the 

procedures for protecting and 

submitting confidential business 

information. Changes to paragraph (b)(5) 

will result in additional submissions by 

email that the Department will need to 

review and address, but the overall 

benefit of creating a more transparent 

process outweighs any possible 

reduction in the overall efficiencies of 

the overall process. This rule revises the 

paragraph (b)(5) heading to add the 

phrase ‘‘and information protected from 

public disclosure,’’ splits paragraph 

(b)(5) into new paragraphs (b)(5)(i) and 

(ii), and adds a new paragraph (b)(5)(iii). 

Paragraph (b)(5)(i) specifies that, except 

for the information described in the new 

paragraph (b)(5)(iii), individuals and 

organizations must otherwise fully 

complete the relevant forms. Paragraph 

(b)(5) as added in the March 19 rule 

already included this requirement, but 

based on the comments received, there 

was some confusion about whether all 

fields needed to be completed on the 

exclusion and objection forms and 

whether that requirement changed if the 

submission included confidential 

business information. Today’s rule is 

addressing those issues and will state 

clearly in the regulatory text that all 

fields have to be completed. 

New paragraph (b)(5)(ii)(Information 

not subject to public disclosure should 

not be submitted) contains provisions to 

explain clearly what information should 

not be included on the forms, or in the 

information provided in rebuttals and 

surrebuttals, because these submissions 

and documents will be made publicly 

available on regulations.gov. The 

revisions made to paragraph (b)(5)(ii) 

include adding a cross reference to new 

paragraph (b)(5)(iii)(Procedures for 

identifying, but not disclosing 

confidential or propriety business 

information (CBI) in the public version, 

and procedures for submitting 

confidential business information). 

Paragraph (b)(5)(iii) describes in detail 


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how to submit confidential business 

information as a separate email 

submission to the Department that 

would not be disclosed to the public, 

but would still inform the Department’s 

review process of exclusion requests, 

objections, rebuttals, and surrebuttals. 

These new requirements include 

specifying that an individual or 

organization filing a submission that 

contains information for which CBI 

treatment is claimed must file a public 

version of the submission and then 

follow on the same day the public 

version was submitted, the requirements 

in paragraph (b)(5)(iii). These 

requirements include specifying how 

the information that will be submitted 

separately by email as confidential 

business information will be 

summarized in a public version. New 

paragraph (b)(5)(iii) includes timelines 

for the separate email submission of 

confidential business information in 

relation to the public submission. The 

new paragraph (b)(5)(iii) also specifies 

that submissions that contain 

confidential business information that is 

not for public release must follow the 

procedures in paragraphs (b)(5)(iii)(A)– 

(C). The requirements in these 

paragraphs for email submission assist 

the Department in identifying these 

submissions to allow the Department to 

properly associate these email 

submissions with the respective 232 

submissions posted in regulations.gov. 

Today’s rule adds a limitation in new 

paragraph (b)(5)(iii)(C) to specify the 

confidential business information is 

limited to a maximum of 5 pages per 

rebuttal or surrebuttal. 

In paragraph (c)(2)(Identification of 

exclusion requests), today’s rule adds 

two sentences to clarify certain aspects 

of the forms and the two supplements 

that caused confusion for several 

commenters on whether ranges or 

multiple dimensions were permissible. 

The first new sentence specifies that the 

exclusion request forms allow for 

minimum and maximum dimensions. 

The second new sentence specifies that 

ranges are acceptable if the 

manufacturing process permits small 

tolerances. A permissible range must be 

within the minimum and maximum 

range that is specified in the tariff 

provision and applicable legal notes for 

the provision. When additional context 

or explanation is needed on these types 

of issues, the Department encourages 

submitters—both requesters and 

objectors—to provide additional 

explanation as warranted. 

Today’s rule also adds a new Note to 

paragraph (c)(2) to describe the process 

for how an individual or organization 

may submit an exclusion request for 

importing steel or aluminum from a 

country that has a country exemption. 

The exclusion form has been revised to 

include one additional field for these 

types of exclusion requests. In 

requesting one of these types of 

exclusions, the requester will select the 

field on the exclusion request form to 

indicate that the exclusion request is for 

importing from a country eligible for a 

country exemption. This is important to 

assist the Department in identifying 

these types of exclusion requests, 

assisting the Department in coordinating 

its review with other parts of the U.S. 

Government as warranted, and when 

coordinating with CBP on the 

implementation of these product based 

exclusions from countries subject to 

quantitative limitations. Today’s rule 

also adds examples of the types of 

information that a requester is required 

to include in support of these types of 

exclusion requests. 

In paragraph (c)(Exclusion requests), 

today’s rule is adding a new paragraph 

(c)(6)(Criteria used to review exclusion 

requests). As described above, several 

commenters on the May 19 rule had 

concerns regarding whether the 

Department was managing the process 

in a fair and transparent manner. 

Several commenters said that because of 

the lack of specificity surrounding the 

three criteria included in the 

Proclamations and used in the 

supplements and exclusion request and 

objection forms, it was difficult for the 

public to judge whether the process was 

being conducted in a fair and 

transparent manner. Today’s rule adds 

new paragraph (c)(6) to specify in much 

greater detail the criteria the Department 

is using to review the exclusion 

requests. These additions to the two 

supplements will be responsive to the 

various comments the Department 

received on the May 19 rule. The 

introductory text of paragraph (c)(6) 

specifies that the Department, as has 

been the case since the March 19 rule 

was published, will review each 

exclusion request in a fair and 

transparent manner to determine 

whether an article described in an 

exclusion request meets any of the three 

criteria included in the Proclamations. 

Specifically, whether the 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 

specific national security 

considerations. New paragraphs 

(c)(6)(i)–(iii) provide more information 

on the criteria used to review requests, 

including by defining keys terms used 

in the review criteria and adding 

illustrative application examples of the 

criteria to enhance understanding in 

new paragraph (c)(6)(i)(Not produced in 

the United States in a sufficient and 

reasonably available amount), 

paragraph (c)(6)(ii)(Not produced in the 

United States in a satisfactory quality), 

and paragraph (c)(6)(iii)(For specific 

national security considerations). 

In paragraph (d)(Objections to 

submitted exclusion requests), today’s 

rule makes two changes, the first by 

revising paragraph (d)(1) to narrow the 

scope of the phrase ‘‘any individual or 

organization in the United States’’ to 

also require that these individuals or 

organizations must be using steel or 

aluminum in business activities (e.g., 

construction, manufacturing, or 

supplying steel product or aluminum 

product to users) to file objections to 

steel or aluminum exclusion requests. 

The Department views this change as a 

clarification to the two supplements 

added in the March 19 rule to better 

align the regulatory text with the text 

and intent of the Proclamations and the 

objection forms. Commenters on the 

March 19 rule correctly asserted that 

there was an inconsistency in the 

supplements that appeared to allow for 

any individual or organization in the 

United States to file objections to steel 

or aluminum exclusion requests where 

the objection form itself required 

answering a series of questions that 

could only reasonably be completed by 

an individual or organization in the 

United States that manufactures steel or 

aluminum articles. As asserted by the 

commenters, this inconsistency in the 

text created confusion for the submitters 

on who may be eligible to submit an 

objection. Taking into account the 

intended purpose of an objection (i.e., 

identifying whether the criteria 

described above being added to new 

paragraph (c)(6)(i) and (ii) are met), the 

Department has determined that the 

most appropriate way to resolve the 

inconsistency between the supplements 

and the forms is to revise the regulatory 

text to more closely align with the 

objection form. As described above, this 

is an example where the revisions made 

to the two supplements differ to make 

each revision specific to the 

supplement—meaning that steel is 

referenced in the revision to 

Supplement No. 1 to part 705 and 

aluminum is referenced in the revisions 

to Supplement No. 2 to part 705. The 

Department also is making this change 

to improve the fairness of the exclusion 

request and objection process. 

Commenters correctly asserted that in 

the March 19 rule the criteria for who 

may submit an exclusion request under 


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paragraph (c) was more restrictive than 

who may submit an objection. 

Commenters thought that difference was 

not treating parties consistently or 

fairly. The changes being made to 

paragraph (d)(1) in today’s rule will 

resolve that issue. 

Secondly, in paragraph 

(d)(4)(Substance of objections to 

submitted exclusion requests), today’s 

rule is making changes to make the 

criteria the Department uses to review 

objections to submitted exclusion 

requests clearer and more transparent. 

Similar to the addition of new 

paragraph (c)(6) described above, 

today’s rule is better defining the 

criteria, including the key term 

‘‘immediately.’’ These revisions to 

paragraph (d)(4) will also better align 

the regulatory text with the text used in 

the objection form. These changes will 

improve the transparency of the review 

process, and reduce the burden on all 

parties involved in the exclusion 

request, objection, rebuttal, and 

surrebuttal process. Many comments 

from individuals or organizations that 

submit exclusion requests requested 

that objectors be required to be more 

specific about timelines and disclosing 

any potential hurdles that may limit 

their ability to truly start producing the 

needed steel or aluminum to which they 

are objecting. Commenters were 

concerned about objection forms that 

seem to broadly assert that an objector 

could conceivably make a steel or 

aluminum item, but do not provide 

much specificity on how they would 

meet the target to start producing the 

steel or aluminum. The Department 

agreed with these commenters that 

adding greater specificity in the 

requirements for objections would aid 

both objectors to more easily understand 

what information would be helpful to 

include in an objection and requesters 

in understanding when a legitimate 

objection is filed that would warrant 

denying their exclusion request or at 

least warrant the submission of a 

rebuttal. Today’s rule makes those 

changes to paragraph (d)(4). As 

described above, the exclusion request, 

objection, rebuttal, and surrebuttal 

process has the potential to be 

adversarial in nature, so the Department 

believes it important to establish clear 

criteria to allow all parties to better 

understand the facts at hand. 

In paragraph (e)(Limitations on the 

size of submissions) today’s rule makes 

two conforming changes. First, today’s 

rule excludes any CBI that is submitted 

from the 25 page exclusion and 

objection limit. As described above 

regarding paragraph (b)(5), submission 

made under (b)(5)(iii) will be a separate 

email submission to the Department. 

The page limit for confidential business 

information is limited to a maximum of 

5 pages pursuant to paragraph 

(b)(5)(iii)(B). Therefore, the 25 page 

limitation does not apply for CBI 

included in the original submission of 

an exclusion or objection, or for a 

rebuttal or a surrebuttal as described 

below regarding new paragraphs (f) and 

(g). The page limit for rebuttals and 

surrebuttals is limited to a maximum of 

10 pages pursuant to new paragraphs 

(f)(2) and (g)(2). Because the maximum 

size that may be submitted is less than 

10 MB, today’s rule is including a 

maximum 10 MB file size requirement 

to paragraph (e). The Department of 

Commerce has included this in our stepby-step guides and quick tips for 

submissions that are posted in 

regulations.gov. User manual for 

regulations.gov also make reference to 

this file size limitation, so adding this 

less than 10 MB file size limitation to 

the two supplements should reduce the 

number of occasions where the 

submission exceeds the limitation and 

the submitter has to follow up with the 

BIS support telephone number or email, 

or has to call to the regulations.gov 

support telephone number. This type of 

confusion wastes the time of the 

submitter, as well as the United States 

Government, so adding this to 

paragraph (e) should likely help reduce 

this problem. 

Today’s rule redesignates paragraphs 

(f) and (g) as paragraphs (h) and (i), 

respectively, to account for adding a 

new paragraph (f) for the rebuttal 

process and a new paragraph (g) for the 

surrebuttal process. 

Paragraph (f)(Rebuttal process) is 

being added as a new paragraph to both 

supplements. Paragraph (f) creates a 

rebuttal process to allow only 

individuals or organizations that have 

submitted an exclusion request 

pursuant to one of the two supplements 

to submit a rebuttal to any objection(s) 

posted to their exclusion request in 

regulations.gov. Many commenters 

requested the Department make this 

type of a change to ensure that the 

process was fair and the Department 

had all of the relevant information when 

an objector made an objection to an 

exclusion request. The formal objection 

process in paragraph (d) that was 

included in the March 19 rule already 

established a process for objections to 

exclusions, but commenters expressed 

strongly that fairness required providing 

parties that submitted an exclusion 

request with a transparent opportunity 

to formally respond, in particular if they 

disagreed with some or all of the 

representations being made by an 

objector. 

Paragraph (f)(1)(Identification of 

rebuttals) describes the process for 

submitting a rebuttal in regulations.gov. 

Paragraph (f)(1) specifies that when 

submitting a rebuttal, the individual or 

organization that submitted the 

exclusion request would submit a 

comment on the submitted objection to 

the submitted exclusion request in 

regulations.gov. Paragraph (f)(1) also 

includes guidance on the naming 

convention to use for rebuttals to ease 

the burden on the Department in 

identifying rebuttals. 

Paragraph (f)(2)(Format and size 

limitations for rebuttals) describes the 

format for submitting rebuttals. 

Paragraph (f)(2) includes guidance on 

the same types of size limitations noted 

above to ensure that submitters do not 

include an attachment as part of their 

rebuttal that exceeds the size of 10 MB. 

Paragraph (f)(2) limits rebuttals to a 

maximum of 10 pages inclusive of all 

exhibits and attachments, but exclusive 

of the rebuttal form and any confidential 

business information (CBI is limited to 

a maximum of 5 pages) provided to the 

Department. 

Paragraph (f)(3) (Substance of 

rebuttals) provides the criteria that a 

good rebuttal must address. First, 

rebuttals must address an objection to 

the exclusion request made by the 

requester. If multiple objections were 

received on a particular exclusion, the 

requester may submit a rebuttal to each 

objector. Paragraph (f)(3) specifies that 

the most effective rebuttals will be those 

that aim to correct factual errors or 

misunderstandings in the objection(s). A 

good rebuttal should assist the parties 

involved to come to a common 

understanding of the facts at hand. 

Coming to a common understanding 

regarding the facts of a particular 

exclusion or objection will better inform 

the Department’s review process. 

Although the rebuttal process will add 

an additional step, it should lead to 

better and fairer outcomes for all parties 

involved in the product exclusion 

request process. 

Paragraph (f)(4)(Time limit for 

submitting rebuttals) specifies the 

timing for submitting rebuttals. The 

rebuttal period will begin on the date 

the Department opens the rebuttal 

period, after posting the last objection in 

regulations.gov, and will last for 7 days. 

There will be a single rebuttal period 

that will apply for all objections 

received on an exclusion request. The 

Department will open the 7 day rebuttal 

period once the Department has posted 

all of the complete objections received 

on an exclusion request. As described 


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below, the opening of the rebuttal 

comment period will be specified in a 

daily list the Department will prepare 

that will be available on 

www.commerce.gov/232. The 7 day 

period is intended to allow for the 

individual or organization that 

submitted an exclusion request to 

submit any written rebuttals that they 

believe are warranted. The Department 

of Commerce will not notify the 

individual or organization that 

submitted the exclusion request, other 

than posting the last objection and 

opening the rebuttal comment period for 

7 days. If you submitted an exclusion 

request, after the objection comment 

period closes for your exclusion request, 

you should search for all the objections 

on the www.regulations.gov website 

using the tutorial available on 

www.regulations.gov. Commerce will 

also prepare a daily list available on 

www.commerce.gov/232 that will assist 

you with determining whether an 

objection was filed for your product 

exclusion request, that will supplement 

the information included in Annex 1 to 

Supplements No. 1 and 2 and in 

regulations.gov. It will be the 

responsibility of submitters of exclusion 

requests to monitor the status in 

regulations.gov or on 

www.commerce.gov/232 to determine if 

objections have been received and, if 

they believe it is warranted to submit a 

rebuttal(s), to do that once the last 

objection received in their exclusion 

request is posted by the Department 

following the procedures specified in 

new paragraph (f) being added to both 

supplements. 

Today’s rule is also adding a Note to 

paragraph (f)(4) to add grandfathering 

provisions to allow for exclusion 

requests already posted, but not yet 

fully adjudicated, to be reopened to 

allow for rebuttals, as well as 

surrebuttals, as described in Note to 

paragraph (g)(4) below. The 

grandfathering provisions will be 

available for any pending exclusion 

request that meets all three of the 

following criteria included in the Note 

to paragraph (f)(4), as of September 11, 

2018. In order to be eligible for 

grandfathering, the exclusion request 

must meet the following: The exclusion 

request received an objection(s), the 30 

day objection review period has closed, 

and the Department has not posted a 

final determination on the exclusion 

request. The Note to paragraph (f)(4) 

specifies that the date of reopening will 

start the review periods identified in 

paragraph (f)(4) for those grandfathered 

exclusions. The Department will reopen 

the requests on a rolling basis starting 

on the date of publication of today’s 

rule, and will seek to complete the 

reopening process on the date that is 

seven days after the date of publication 

of today’s rule, on September 18, 2018, 

to serve as the start date for the review 

periods identified in paragraph (f)(4) for 

those requests. 

Paragraph (g)(Surrebuttal process) is 

being added as a new paragraph to both 

supplements. Paragraph (g) creates a 

surrebuttal process to allow only 

individuals or organizations that have a 

posted objection and had a rebuttal filed 

on their objection, to a submitted 

exclusion request to be able to submit a 

surrebuttal to a rebuttal posted to their 

objection in regulations.gov. The 

paragraph structure of the rebuttal 

process and surrebuttal process are the 

same, and the provisions of the two 

paragraphs have most elements in 

common. The differences between 

paragraphs (f) and (g) are primarily the 

party in the process that is responding 

(the party that submitted the exclusion 

request for rebuttals, or the party that 

submitted the objection for surrebuttals) 

and the timing of the rebuttal and 

surrebuttal that occurs in a sequential 

order to allow each party sufficient 

review time before submitting a rebuttal 

or surrebuttal. 

Many commenters requested the 

Department make this type of a change 

to ensure that the process was fair and 

the Department had all of the relevant 

information when an objection to an 

exclusion request received a rebuttal. 

The commenters on the March 19 rule 

described conceptually what they 

thought was needed to create a fair 

process for all parties and these types of 

additional opportunities to provide 

input with a rebuttal, followed by 

surrebuttal process, were recommended. 

The Department agrees this would 

improve the process and is making these 

changes with the addition of paragraph 

(g) described here and (f) above. The 

formal objection process in paragraph 

(d) that was included in the March 19 

rule already established a process for 

objectors to respond to exclusion 

requests in their objections. However, 

because today’s rule is adding a rebuttal 

process, for fairness it is also adding a 

surrebuttal process for objectors. The 

detailed exclusion request and objection 

forms help to establish an important 

baseline for allowing the Department to 

evaluate exclusion requests and 

objections, but the Department agrees 

that allowing the rebuttals and 

surrebuttals described here will provide 

the Department with better information 

and lead to better decisions even though 

it does add more time to the overall 

process. 

Paragraph (g)(1)(Identification of 

surrebuttals) describes the process for 

submitting a surrebuttal in 

regulations.gov. Paragraph (g)(1) 

specifies that when submitting a 

surrebuttal, the individual or 

organization that submitted the 

objection would submit a comment on 

the rebuttal submitted on the objection 

to the exclusion request in 

regulations.gov. Paragraph (g)(1) also 

includes guidance on the naming 

convention to use for surrebuttals to 

ease the burden on the Department in 

identifying surrebuttals. 

Paragraph (g)(2)(Format and size 

limitations for surrebuttals) describes 

the format for submitting surrebuttals. 

Paragraph (g)(2) also includes guidance 

on the same types of size limitations 

noted above to ensure submitters do not 

include an attachment as part of their 

surrebuttal that exceeds the size of 10 

MB. Paragraph (g)(2) limits surrebuttals 

to a maximum of 10 pages inclusive of 

all exhibits and attachments, but 

exclusive of the surrebuttal form and 

any confidential business information 

(CBI is limited to a maximum of 5 

pages) provided to the Department. 

Paragraph (g)(3)(Substance of 

surrebuttals) provides the criteria that a 

good surrebuttal must address. First, 

surrebuttals must address a rebuttal to 

the objection to the exclusion request 

made by the submitter of the objection. 

Paragraph (g)(3) specifies that the most 

effective surrebuttals will be those that 

aim to correct factual errors or 

misunderstandings in the rebuttal to an 

objection. The surrebuttal process, 

although it will add an additional step 

in the process, should lead to better and 

fairer outcomes for all parties involved 

in the product exclusion request 

process. 

Paragraph (g)(4)(Time limit for 

submitting surrebuttals) specifies the 

timing for submitting surrebuttals. 

Paragraph (g)(4) specifies that the 

surrebuttal period will begin on the date 

the Department opens the surrebuttal 

period, after posting the last rebuttal to 

an objection to an exclusion request in 

regulations.gov, and will last for 7 days. 

The 7 day period is intended to allow 

for the individual or organization that 

submitted an objection and received a 

rebuttal to submit any written 

surrebuttals that they believe are 

warranted. The Department of 

Commerce will not notify the individual 

or organization that submitted the 

objection request that received a 

rebuttal, other than posting the rebuttal 

received for each objection and opening 

the surrebuttal comment period for 7 

days. If you submitted an objection to an 

exclusion request, after the rebuttal 


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comment period closes on an exclusion 

request, you should search for all the 

rebuttals on the www.regulations.gov 

website using the tutorial available on 

www.regulations.gov. Commerce will 

also prepare a daily list available on 

www.commerce.gov/232 that will assist 

you with determining whether a rebuttal 

was filed on your objection. You must 

have the exclusion request ID # (BIS– 

2018–000X–XXXXX) to locate rebuttals 

to your objection. It will be the 

responsibility of submitters of 

objections to monitor the status in 

regulations.gov or on 

www.commerce.gov/232 to determine if 

their objection has received a rebuttal 

and, if they believe it is warranted, to 

submit a surrebuttal following the 

procedures specified in new paragraph 

(g) being added to both supplements. 

In newly redesignated paragraph 

(h)(Disposition of 232 submissions), 

previously paragraph (f), today’s rule is 

revising the heading, along with making 

several other changes. In newly 

redesignated paragraph 

(h)(1)(Disposition of incomplete 

submissions), today’s rule is adding new 

paragraphs (h)(1)(iii) for rebuttals and 

(h)(1)(iv) for surrebuttals to specify that 

filings that do not satisfy the reporting 

requirements specified in paragraph (f) 

for rebuttals or specified in paragraph 

(g) for surrebuttals will not be 

considered. 

In newly redesignated paragraph 

(h)(2)(Disposition of complete 

submissions), today’s rule is revising the 

existing text, along with adding new 

text to broaden the scope of this 

paragraph and provide more specificity 

to make these provisions more 

transparent for the public. These 

changes include designating some of the 

existing text as paragraph 

(h)(2)(i)(Posting of responses), including 

adding a reference to rebuttal and 

surrebuttal where needed. 

In new paragraph 

(h)(2)(ii)(Streamlined review process for 

‘‘No Objection’’ requests), today’s rule 

makes a change to improve the 

efficiency of the exclusion process. 

Under this streamlined review process, 

the Department will grant properly filed 

exclusion requests which meet the 

requisite criteria, receive no objections, 

and present no national security 

concerns. After the 30-day comment 

period on regulations.gov, BIS will work 

with CBP to ensure that the requester 

provided an accurate HTSUS statistical 

reporting number. If the HTSUS is 

correct, BIS will immediately assess the 

request to determine whether it satisfies 

the criteria and for any national security 

concerns (see paragraph (c)(6)(iii)(For 

specific national security 

considerations) and if it satisfies the 

criteria and presents no national 

security concerns, BIS will 

expeditiously post a decision on 

regulations.gov granting the exclusion 

request. The Department has already 

made this process change as an 

important step in helping to resolve the 

initial backlog of the exclusion requests 

that were received as of March 19. The 

Department believes going forward that 

creating a streamlined review process 

for exclusion requests when no 

objections are received will benefit 

those requesting exclusions and the 

Department in more efficiently 

managing the exclusion, objection, 

rebuttal, and surrebuttal process. The 

more efficient process being added 

under paragraph (h)(2)(ii) will provide 

more time for the Department to focus 

on exclusions where there are 

objections, and after the publication of 

today’s rule for exclusions and 

objections that also include rebuttals 

and surrebuttals. As described above in 

the discussion of adding a rebuttal and 

surrebuttal process, those new 

submissions will increase the fairness 

and transparency of the process, but 

will result in more overall submissions. 

The changes described in new 

paragraph (h)(2)(ii) are an important 

efficiency improvement to the overall 

process that the Department anticipates 

will help deserving requesters receive 

exclusions in an expedited fashion 

when no objection has been filed. 

In new paragraph (h)(2)(iii)(Effective 

date for approved exclusions and date 

used for calculating duty refunds), 

today’s rule is adding new paragraphs 

(h)(2)(iii)(A) and (B). Paragraph 

(h)(2)(iii)(A)(Effective date for approved 

exclusions) includes the original text 

from paragraph (f) that was 

redesignated, and some minor 

conforming changes today’s rule makes 

to this paragraph. The date used for 

calculating tariff refunds will be set by 

Proclamation, so today’s rule does not 

make any changes to paragraph 

(h)(2)(iii)(A) to address providing 

additional guidance for calculating duty 

refunds. Commenters also requested 

more guidance on and greater specificity 

in the supplements for what part of the 

government should be contacted for 

obtaining refunds on the duties. Today’s 

rule adds new paragraph 

(h)(2)(iii)(B)(Contact for obtaining tariffs 

refunds), to clarify that the Department 

is not involved with providing duty 

refunds and to direct individuals and 

organizations with approved exclusions 

to contact CBP for questions regarding 

obtaining duty refunds. 

In new paragraph (h)(2)(iv)(Validity 

period for exclusion requests), today’s 

rule is moving the redesignated text 

from paragraph (f) that stated that 

exclusions would generally be approved 

for one year to new paragraph (h)(2)(iv) 

introductory text. The Department 

emphasizes that the supplements added 

in the March 19 rule used the term 

‘‘generally,’’ so it was never the intent 

for the Department to make all 

exclusions fit into a one year validity. 

Commenters questioned whether one 

year was an arbitrary number, but as 

noted above the Department believes 

that a general one year validity is 

appropriate for purposes of the criteria 

included in the supplements and the 

purpose of the Proclamations. However, 

because a large number of comments 

requested more information on when 

the Department may grant a longer 

validity or a shorter validity period, 

today’s rule is adding text to the 

introductory text of paragraph (h)(2)(iv) 

to make clearer for the public the 

criteria that the Department, and other 

agencies as warranted, will take into 

account when determining when a nonstandard validity period may be 

warranted. The Department also is 

adding paragraphs 

(h)(2)(iv)(A)(Examples of what fact 

patterns may warrant a longer exclusion 

validity period), (B)(Examples of what 

criteria may warrant a shorter exclusion 

validity period), and (C) to make the 

application of these criteria even more 

transparent through illustrative 

examples under paragraphs (h)(2)(iv)(A) 

and (B). Today’s rule adds new 

paragraph (h)(2)(iv)(C) to qualify that 

the fact patterns identified in 

paragraphs (h)(2)(iv)(A) or (B) will not 

be determinant in themselves for 

determining the appropriate validity 

period, but still encouraging submitters 

to reference this type of information 

when warranted to justify a shorter or 

longer validity period. 

For example, if a company that 

requested an exclusion for one year 

determines during the objection, 

rebuttal, and surrebuttal process that a 

U.S. manufacturer may be able to make 

the product within nine months, it may 

assist the company that requested the 

exclusion to have a shorter nine month 

exclusion validity and make business 

plans to start purchasing steel from the 

U.S. manufacturer. This would allow for 

advanced business planning (a concern 

that was asserted by a number of 

commenters as being important) for both 

the party with the granted exclusion 

request and the objector, eliminate the 

need to apply for a subsequent 

exclusion request that likely would be 

denied if the U.S. manufacturer’s 

production did come online at nine 


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months with suitable quality, and help 

improve the efficiency of the system by 

reducing the number of new exclusions 

the Department would need to review 

and allowing the Department to focus 

on other exclusion requests. 

Under newly redesignated paragraph 

(h)(3)(Review period and 

implementation of any needed 

conforming changes), today’s rule 

revises existing text and adds new text 

to make these provisions more 

transparent for the public, in particular 

to address how BIS interacts with CBP 

on determining whether to approve an 

exclusion request. Commenters were 

confused whether the references to CBP 

in the supplements and on the 

exclusion form in particular meant 

CBP’s approval was an additional 

criterion that needed to be met for an 

exclusion request to be approved. It is 

not, but the comments identified an area 

where adding greater specificity to the 

regulatory provisions would improve 

the public’s understanding of how the 

Department interacts with CBP, in 

particular the important role CBP plays 

in confirming the HTSUS statistical 

reporting number is correct, which is a 

prerequisite in order for an exclusion 

request to implementable at the border. 

New paragraph (h)(3)(i) (Review period) 

specifies that the review period 

normally will not exceed 106 days, 

increased from 90 days to account for 

the additional time added to the review 

process for the rebuttal and surrebuttal 

process described above being added to 

paragraphs (f) and (g). In addition, as a 

conforming change for the addition of 

the streamlined ‘‘No Objections’’ 

process described under paragraph 

(h)(2)(ii) described above, today’s rule is 

qualifying that the 106 days does not 

apply to that streamlined review process 

for ‘‘No Objection’’ requests. 

New paragraph (h)(3)(ii)(Coordination 

with other agencies on approval and 

implementation), adds existing text that 

references coordination with other 

agencies of the U.S. Government, such 

as the United States International Trade 

Commission (USITC) and CBP, to take 

any additional steps needed to 

implement an approved exclusion 

request. Because the USITC is not 

involved with the exclusion process, 

today’s rule removes it from the 

illustrative list of government agencies. 

To add greater transparency on the type 

of coordination that is occurring with 

CBP on exclusion requests, this rule 

adds a sentence to paragraph (h)(3)(ii) to 

clarify that these additional steps in 

coordination with CBP are needed to 

implement an approved exclusion 

request. The new sentence clearly states 

that this coordination is not part of the 

review criteria used by the Department 

to determine whether to approve an 

exclusion request, but it does emphasize 

that this coordination is an important 

component in ensuring the approved 

exclusion request can be properly 

implemented—meaning the HTSUS 

statistical reporting number provided by 

the requester is in fact correct. 

In newly redesignated paragraph 

(i)(For further information), previously 

paragraph (g), today’s rule is adding one 

sentence to highlight some of the 

training sources that the Department has 

created and posted on regulations.gov 

under the regulations.gov docket 

numbers for steel and aluminum and on 

the BIS website. These include FAQs, 

best practices other companies have 

used for submitting exclusion requests 

and objections, and helpful checklists to 

improve understanding. 

Today’s final rule adds a new Annex 

1 to Supplements No. 1 and 2 to Part 

705. This Annex provides instructions 

on the steps to follow to file (submit) 

rebuttal comments in 

www.regulations.gov. The Annex 

includes five steps that will assist the 

public in using www.regulations.gov for 

application issues that are specific to 

submitting rebuttals under the product 

exclusion request process. The 

www.regulations.gov website already 

includes various guidance on using the 

website portal for submitting comments 

on publications, but the guidance in the 

Annex will supplement that existing 

guidance with information that is 

specific to the rebuttal process. For 

example, the Annex provides guidance 

on how to identify whether an exclusion 

request has received objections and 

information on how to see when the 

rebuttal comment period opens in 

regulations.gov for an exclusion request 

that received an objection, including an 

exclusion request that received more 

than one objection. For the same 

reasons, the new Annex also includes 

five steps to follow to file surrebuttal 

comments in www.regulations.gov. 

Because of the additional complexity 

being added to the process for using 

www.regulations.gov with the addition 

of rebuttals and surrebuttals, the 

Department is adding these instructions 

as part of an Annex to assist the pubic 

to better understand using 

regulations.gov when submitting 

rebuttals and surrebuttals. 

Rulemaking Requirements 

1. Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The March 

19 rule was determined to be a 

‘‘significant regulatory action,’’ although 

not economically significant, under 

section 3(f) of Executive Order 12866. 

Today’s rule has also been determined 

to be to be a ‘‘significant regulatory 

action,’’ although not economically 

significant, under section 3(f) of 

Executive Order 12866. However, as 

stated under Section 4 of Presidential 

Proclamation 9704 and Section 4 of 

Proclamation 9705 of March 8, 2018, 

this rule is exempt from Executive 

Order 13771 (82 FR 9339, February 3, 

2017). 

2. The Paperwork Reduction Act of 

1995 (44 U.S.C. 3501 et seq.) (PRA) 

provides that an agency generally 

cannot conduct or sponsor a collection 

of information, and no person is 

required to respond to nor be subject to 

a penalty for failure to comply with a 

collection of information, unless that 

collection has obtained Office of 

Management and Budget (OMB) 

approval and displays a currently valid 

OMB Control Number. 

The Department requested and OMB 

authorized emergency processing of two 

information collections involved in this 

rule, consistent with 5 CFR 1320.13. 

OMB approved these two information 

collections as emergency collections on 

March 18, 2018. The Presidential 

Proclamations authorized the Secretary 

of Commerce, in consultation with the 

Secretary of Defense, the Secretary of 

the Treasury, the Secretary of State, the 

United States Trade Representative, the 

Assistant to the President for Economic 

Policy, the Assistant to the President for 

National Security Affairs, and other 

senior Executive Branch officials as 

appropriate, to grant exclusions for the 

import of goods not currently available 

in the United States in a sufficient 

quantity or satisfactory quality, or for 

other specific national security reasons. 

He further directed the Secretary to 

establish the process for submitting and 

granting these requests for exclusions 

within 10 days, and the publication of 

the March 19 interim final rule fulfilled 

that directive. Based on the comments 

received in response to the comment 

period for the interim final rule, 

however, the agency has determined 

that changes need to be made to the 

March 19 rule to achieve the stated 

obectives of the March 19 rule and the 

President’s directive to establish an 


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46054 Federal Register / Vol. 83, No. 176 / Tuesday, September 11, 2018 / Rules and Regulations 

efficient exclusion process to ensure 

downstream users of steel and 

aluminum in the United States were not 

unnecessarily hurt by the tariffs that 

have been implemented on steel and 

aluminum. The immediate 

implementation of an effective 

exclusion request process, consistent 

with the intent of the Presidential 

Proclamations, also required creating a 

process to allow any individual or 

organization in the United States to 

submit objections to submitted 

exclusion requests, and based on the 

comments received on the March 19 

rule also requires adding a rebuttal and 

surrebuttal process. In the March 19 

rule, the Department determined the 

following conditions had been met: 

a. The collection of information was 

needed prior to the expiration of time 

periods normally associated with a 

routine submission for review under the 

provisions of the Paperwork Reduction 

Act in view of the President’s 

Proclamations issued on March 8, 2018, 

for the Presidential Proclamation on 

Adjusting Imports of Steel into the 

United States, https://

www.whitehouse.gov/presidentialactions/presidential-proclamationadjusting-imports-steel-united-states/, 

and for the Presidential Proclamation on 

Adjusting Imports of Aluminum into the 

United States, https://

www.whitehouse.gov/presidentialactions/presidential-proclamationadjusting-imports-aluminum-unitedstates/. 

b. The collection of information was 

essential to the mission of the 

Department, in particular to the 

adjudication of exclusion requests and 

objections to exclusions requests and, 

with the publication of today’s interim 

final rule that makes revisions to the 

two supplements added in the March 19 

rule to the adjudication of rebuttals and 

surrebuttals. 

c. The use of normal clearance 

procedures would have prevented the 

collection of information of exclusion 

requests and objections to exclusion 

requests, for national security purposes, 

as well as for rebuttals and surrebuttals 

being added in today’s rule, as 

discussed under section 232 of the 

Trade Expansion Act of 1962 as 

amended and the Presidential 

Proclamations issued on March 8, 2018. 

The Commerce Department provided 

a separate 60-day notice in the Federal 

Register requesting public comment on 

the information collections contained 

within the March 19 rule. This notice 

was published in the Federal Register 

on May 1, 2018, 83 FR 19044 and 19045. 

The Commerce Department intends to 

provide separate 60-day notice in the 

Federal Register requesting public 

comment on the two revised and 

expanded information collections 

contained within today’s interim final 

rule. 

Agency: Commerce Department. 

Type of Information Collection: 

Revised and Expanded Collections. 

Title of the Collection [0694–0139]: 

Procedures for Submitting Requests for 

Exclusions from the Remedies Instituted 

by the President in the Presidential 

Proclamations 9705 and 9704 of March 

8, 2018 Adjusting Imports of Steel into 

the United States and Adjusting Imports 

of Aluminum into the United States. 

Revised Collection Estimates for 

Exclusion Request Filings Based on 

Data Since March 19, 2018 

Affected Public: Private Sector— 

Businesses. 

Total Estimated Number of 

Respondents: [96,954]. 

Average Responses per Year: [1]. 

Total Estimated Number of 

Responses: [96,954]. 

Average Time per Response: 4 hours. 

Total Annual Time Burden: [387,816]. 

Type of Information Collection: 

[Revised Collection]. 

Title of the Collection [0694–0138]: 

Objection Filing to Posted Section 232 

Exclusion Request: Steel; and Objection 

Filing to Posted Section 232 Exclusion 

Request: Aluminum, respectively. 

Revised Collection Estimates for 

Objection Filings Based on Data Since 

March 19, 2018 

Affected Public: Private Sector— 

Businesses. 

Total Estimated Number of 

Respondents: [38,781]. 

Average Responses per Year: [1]. 

Total Estimated Number of 

Responses: [38,781]. 

Average Time per Response: [4]. 

Total Annual Time Burden: [155,124]. 

Type of Information Collection: 

[Revised Collection]. 

OMB Control Number: [0694–0138]. 

In addition to the two collections 

referenced above for the March 19 rule, 

the Commerce Department requested, 

and OMB authorized, emergency 

processing of an additional information 

collection involved in today’s rule, 

consistent with 5 CFR 1320.13. As was 

noted in the report submitted by the 

Secretary to the President, steel and 

aluminum are being imported into the 

United States in such quantities or 

under such circumstances as to threaten 

to impair the national security of the 

United States and therefore any delay in 

implementing these remedial actions (as 

described Proclamations 9704 and 9705 

of March 8, 2018) would further 

undermine U.S. national security 

interests. In order to ensure that the 

remedial actions from the Presidential 

Proclamations do not undermine users 

of these articles in the United States that 

may need the foreign supply of these 

articles for manufacturing other articles 

in the United States that are critical to 

protecting the national security of the 

United States, or are otherwise 

important to protecting the U.S. 

economy because there is not currently 

a sufficient and reasonably available 

amount or of a satisfactory quality of 

these articles in the United States, the 

Presidential Proclamations authorized 

the Secretary of Commerce, in 

consultation with the Secretary of 

Defense, the Secretary of State, the 

United States Trade Representative, and 

other agency heads as appropriate to 

grant exclusions. This emergency 

collection is needed in order for today’s 

rule to establish the process for 

submitting rebuttals and surrebuttals to 

help better inform the process of 

granting these requests for exclusions. 

This action is needed immediately to 

protect national security interests of the 

United States. 

If this emergency collection were 

delayed to allow for public comment 

before becoming effective, individuals 

and organizations in the United States 

would not have the opportunity to 

submit rebuttals and surrebuttals during 

the comment period and during the 

finalization of the collection, with the 

possible result of economic hardship for 

the U.S. companies and an overall less 

effective exclusion process. BIS intends 

to publish a notice in the Federal 

Register informing the public that DOC 

submitted a request for an emergency 

collection and the request was approved 

by OMB. 

The Department has determined the 

following conditions have been met: 

a. The collection of information is 

needed prior to the expiration of time 

period normally associated with a 

routine submission for review under the 

provisions of the Paperwork Reduction 

Act in view of the President’s 

proclamations issued on March 8, 2018, 

for the Presidential Proclamation on 

Adjusting Imports of Steel into the 

United States, https://

www.whitehouse.gov/presidentialactions/presidential-proclamationadjusting-imports-steel-united-states/, 

and for the Presidential Proclamation on 

Adjusting Imports of Aluminum into the 

United States, https://

www.whitehouse.gov/presidentialactions/presidential-proclamationadjusting-imports-aluminum-unitedstates/. 


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b. The collection of information is 

essential to the mission of the 

Department, in particular to the 

adjudication exclusion requests, 

objections to exclusions requests, 

rebuttals and surrebuttals. 

c. The use of normal clearance 

procedures would prevent the collection 

of information for rebuttals and 

surrebuttals and would make the review 

of exclusion requests and objections to 

exclusion requests less effective. 

Exclusion requests and objections to 

exclusions requests are important for 

national security purposes, as discussed 

under section 232 of the Trade 

Expansion Act of 1962 as amended and 

the Presidential Proclamations issued 

on March 8, 2018. 

The Commerce Department intends to 

provide separate 60-day notice in the 

Federal Register requesting public 

comment on the information collections 

contained within this rule. 

Agency: Commerce Department. 

Type of Information Collection: New 

Collection. 

Title of the Collection 0694–0141: 

Procedures for Submitting Rebuttals and 

Surrebuttals Requests for Exclusions 

from and Objections to the Section 232 

National Security Adjustments of 

Imports of Steel and Aluminum. 

Submissions of Rebuttals (To Respond 

to Objections to Exclusions) 

Affected Public: Private Sector— 

Businesses. 

Total Estimated Number of 

Respondents: [34,902]. 

Average Responses per Year: [1]. 

Total Estimated Number of 

Responses: [34,902]. 

Average Time per Response: 1 hours. 

Total Annual Time Burden: [34,902]. 

Type of Information Collection: [New 

Collection]. 

OMB Control Number: [0694–0141]. 

Submissions of Surrebuttals (To 

Respond to Rebuttals to Objections) 

Affected Public: Private Sector— 

Businesses. 

Total Estimated Number of 

Respondents: [27,921]. 

Average Responses per Year: [1]. 

Total Estimated Number of 

Responses: [27,921]. 

Average Time per Response: 1 hours. 

Total Annual Time Burden: [27,921]. 

Type of Information Collection: [New 

Collection]. 

OMB Control Number: [0694–0141]. 

3. This rule does not contain policies 

with Federalism implications as that 

term is defined in Executive Order 

13132. 

4. The provisions of the 

Administrative Procedure Act (5 U.S.C. 

553) requiring notice of proposed 

rulemaking, the opportunity for public 

comment, and a delay in effective date 

are inapplicable because this regulation 

involves a military or foreign affairs 

function of the United States. (See 5 

U.S.C. 553(a)(1)). As explained in the 

reports submitted by the Secretary to the 

President, steel and aluminum are being 

imported into the United States in such 

quantities or under such circumstances 

as to threaten to impair the national 

security of the United States and 

therefore the President is implementing 

these remedial actions (as described 

Proclamations 9704 and 9705 of March 

8, 2018) to protect U.S. national security 

interests. That implementation includes 

the creation of an effective process by 

which affected domestic parties can 

obtain exclusion requests ‘‘based upon 

specific national security 

considerations.’’ The Department started 

this process with the publication of the 

March 19 rule and is continuing this 

process with the publication of today’s 

interim final rule. The revisions to the 

exclusion request process are informed 

by the comments received in response 

to the March 19 rule and the 

Department’s experience with managing 

the exclusion request and objection 

process. Commenters were generally 

supportive and welcomed the idea of 

creating an exclusion process, but most 

of the commenters believe the exclusion 

process is not working well and needs 

to be significantly improved in order for 

it to achieve the intended purpose. The 

commenters identified a number of 

areas where transparency, effectiveness, 

and fairness of the process could be 

improved. The Department understands 

the importance of having a transparent, 

fair and efficient product exclusion 

request process, consistent with the 

directive provided by the President to 

create this type of process to mitigate 

any unintended consequences of 

imposing the tariffs on steel and 

aluminum in order to protect critical 

U.S. national security interests. The 

publication of today’s rule should make 

significant improvements in all three 

respects, but because of the scope of this 

new process, BIS is publishing today’s 

rule as an interim final rule with request 

for comments. 

In addition, the Department finds that 

there is good cause under 5 U.S.C. 

553(b)(B) to waive the provisions of the 

Administrative Procedure Act requiring 

prior notice and the opportunity for 

public comment and under 5 U.S.C. 

553(d)(3) to waive the delay in effective 

date because such delays would be 

either impracticable or contrary to the 

public interest. In order to ensure that 

the actions taken to adjust imports do 

not undermine users of steel or 

aluminum that are subject to the 

remedial actions instituted by the 

Proclamations and are critical to 

protecting the national security of the 

United States, the Presidential 

Proclamations authorized the Secretary 

of Commerce, in consultation with the 

Secretary of Defense, the Secretary of 

the Treasury, the Secretary of State, the 

United States Trade Representative, the 

Assistant to the President for Economic 

Policy, the Assistant to the President for 

National Security Affairs, and other 

senior Executive Branch officials as 

appropriate, to grant exclusions for the 

import of goods not currently available 

in the United States in a sufficient 

quantity or satisfactory quality, or for 

other specific national security reasons. 

He further directed the Secretary to, 

within 10 days, issue procedures for 

submitting and granting these requests 

for exclusions and this interim final rule 

fulfills that direction. As described 

above, the Secretary complied with the 

directive from the President with the 

publication of the March 19 rule and is 

taking the next step in improving the 

exclusion and objection process by 

making needed changes with the 

publication of today’s rule, as well as 

adding the needed rebuttal and 

surrebuttal process. The immediate 

implementation of an effective 

exclusion request process, consistent 

with the intent of the Presidential 

Proclamations, also required creating a 

process to allow any individual or 

organization in the United States to 

submit objections to submitted 

exclusion requests. The objection 

process was created with the 

publication of the March 19 rule. This 

publication of today’s rule makes 

needed changes in the objection process 

and adds a rebuttal and surrebuttal 

process to create the type of fair, 

transparent, and efficient process that 

was intended in the March 19 rule, but 

was found lacking by the commenters in 

several key respects. Today’s rule makes 

critical changes to ensure a fair, 

transparent, and efficient exclusion 

process. 

If this interim final rule were delayed 

to allow for public comment or for thirty 

days before companies in the U.S. were 

allowed to benefit from the 

improvements made in the exclusion, 

objection, and newly added rebuttal and 

surrebuttal process from the remedies 

instituted by the President, those 

entities could face significant economic 

hardship that could potentially create a 

detrimental effect on the general U.S. 

economy. The comments received on 


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46056 Federal Register / Vol. 83, No. 176 / Tuesday, September 11, 2018 / Rules and Regulations 

the March 19 rule were clear whether 

they were supportive of tariffs or against 

tariffs, that an efficient exclusion 

request, objection, and rebuttal and 

surrebuttal process was needed, that the 

March 19 rule had not sufficiently 

created such a process; if specific 

improvements are not made, dire 

economic consequences could occur. 

Commenters also thought the 

inefficiencies of the process could 

undermine other critical U.S. national 

security interests. Likewise, our national 

security could be impacted if particular 

national security considerations justify 

an exclusion, but the process for 

obtaining such exclusion were delayed, 

or the Department lacked adequate 

information to make a fair, transparent 

and efficient determination for all 

parties involved and to ensure the 

critical national security considerations 

are being protected. 

Finally, the 30 day delay in 

effectiveness for final rules is 

inapplicable under 5 U.S.C. 553(d)(1) 

because this rule relieves a restriction. 

Because a notice of proposed 

rulemaking and an opportunity for prior 

public comment are not required for this 

rule by 5 U.S.C. 553, or by any other 

law, the analytical requirements of the 

Regulatory Flexibility Act, 5 U.S.C. 601 

et seq., are not applicable. Accordingly, 

no regulatory flexibility analysis is 

required and none has been prepared. 

Pursuant to Proclamations 9704 and 

9705 of March 8, 2018, the 

establishment of procedures for an 

exclusion process under each 

Proclamation shall be published in the 

Federal Register and are exempt from 

Executive Order 13771. 

List of Subjects in 15 CFR Part 705 

Administrative practice and 

procedure, Business and industry, 

Classified information, Confidential 

business information, Imports, 

Investigations, National security. 

For the reasons set forth in the 

preamble, part 705 of subchapter A of 

15 CFR chapter VII is amended as 

follows: 

PART 705—[AMENDED] 

■ 1. The authority citation for part 705 

continues to read as follows: 

Authority: Section 232 of the Trade 

Expansion Act of 1962, as amended (19 

U.S.C. 1862) and Reorg. Plan No. 3 of 1979 

(44 FR 69273, December 3, 1979). 

■ 2. Revise Supplement No. 1 and 

Supplement No. 2 to Part 705 to read as 

follows: 

Supplement No. 1 to Part 705— 

Requirements for Submissions 

Requesting Exclusions From the 

Remedies Instituted in Presidential 

Proclamation 9705 of March 8, 2018 

Adjusting Imports of Steel Articles Into 

the United States 

On March 8, 2018, the President issued 

Proclamation 9705 concurring with the 

findings of the January 11, 2018 report of the 

Secretary of Commerce on the effects of 

imports of steel mill articles (steel articles) 

identified in Proclamation 9705 (‘‘steel’’) on 

the national security and determining that 

adjusting steel imports through the 

imposition of duties is necessary so that 

imports of steel will no longer threaten to 

impair the national security. Clause 3 of 

Proclamation 9705 also authorized the 

Secretary of Commerce, in consultation with 

the Secretary of Defense, the Secretary of the 

Treasury, the Secretary of State, the United 

States Trade Representative, the Assistant to 

the President for Economic Policy, the 

Assistant to the President for National 

Security Affairs, and other senior Executive 

Branch officials as appropriate, to grant 

exclusions from the duties at the request of 

directly affected parties located in the United 

States if the steel articles are determined not 

to be produced in the United States in a 

sufficient and reasonably available amount or 

of a satisfactory quality or based upon 

specific national security considerations. On 

August 29, 2018, the President issued 

Proclamation 9776. Clause 1 of Proclamation 

9776 authorized the Secretary of Commerce, 

in consultation with the Secretary of State, 

the Secretary of the Treasury, the Secretary 

of Defense, the United States Trade 

Representative (USTR), the Assistant to the 

President for National Security Affairs, the 

Assistant to the President for Economic 

Policy, and such other senior Executive 

Branch officials as the Secretary deems 

appropriate, to provide relief from the 

applicable quantitative limitations set forth 

in Proclamation 9740 and Proclamation 9759 

and their accompanying annexes, as 

amended, at the request of a directly affected 

party located in the United States for any 

steel article determined by the Secretary to 

not be produced in the United States in a 

sufficient and reasonably available amount or 

of a satisfactory quality. The Secretary is also 

authorized to provide such relief based upon 

specific national security considerations. 

(a) Scope. This supplement specifies the 

requirements and process for how directly 

affected parties located in the United States 

may submit requests for exclusions from the 

remedies instituted by the President. This 

supplement also specifies the requirements 

and process for how parties in the United 

States may submit objections to submitted 

exclusion requests for relief from the duties 

or quantitative limitations imposed by the 

President, and rebuttals to submitted 

objections and surrebuttals (collectively, 

‘‘232 submissions’’). This supplement 

identifies the time periods for such 

submissions, the method of submission, and 

the information that must be included in 

such submissions. 

(b) Required forms. The U.S. Department of 

Commerce has posted four separate fillable 

forms on the BIS website at https://

www.bis.doc.gov/index.php/232-steel and on 

the Federal rulemaking portal (http://

www.regulations.gov) that are to be used for 

submitting exclusion requests, objections to 

exclusion requests, rebuttals, and 

surrebuttals described in this supplement. 

On regulations.gov, you can find these four 

forms for steel exclusion requests, objections 

to exclusion requests, rebuttals to objections, 

and surrebuttals by searching for its 

regulations.gov docket number, which is 

BIS–2018–0006. The U.S. Department of 

Commerce requires requesters and objectors 

to use the appropriate form as specified 

under paragraphs (b)(1) and (2) of this 

supplement for submitting exclusion requests 

and objections to submitted exclusion 

requests, and the forms specified under 

paragraphs (b)(3) and (4) for submitting 

rebuttals and surrebuttals. 

(1) Form required for submitting exclusion 

requests. The name of the form used for 

submitting exclusion requests is Request for 

Exclusion from Remedies: Section 232 

National Security Investigation of Steel 

Imports. The Title in www.regulations.gov is 

Exclusion Request—Steel and is posted 

under ID # BIS–2018–0006–0002. 

(2) Form required for submitting objections 

to submitted exclusion requests. The name of 

the form used for submitting objections to 

submitted exclusion requests is Objection 

Filing to Posted Section 232 Exclusion 

Request: Steel. The Title in 

www.regulations.gov is Objection Filing— 

Steel and is posted under ID # BIS–2018– 

0006–0003. 

(3) Form required for submitting rebuttals. 

The name of the form used for submitting 

rebuttals to objections is Rebuttal to 

Objection Received for Section 232 Exclusion 

Request: Steel. The Title in 

www.regulations.gov is Rebuttal Filing—Steel 

and is posted under ID # BIS–2018–0006– 

45144. 

(4) Form required for submitting 

surrebuttals. The name of the form used for 

submitting surrebuttals to objections is 

Surrebuttal to Rebuttal Received on Section 

232 Objection: Steel. The Title in 

www.regulations.gov is Surrebuttal Filing— 

Steel and is posted under ID # BIS–2018– 

0006–45145. 

(5) Public disclosure and information 

protected from public disclosure. 

(i) Information submitted in 232 

submissions will be subject to public review 

and made available for public inspection and 

copying, except for the information described 

in paragraph (b)(5)(iii) of this supplement. 

Individuals and organizations must fully 

complete the relevant forms. 

(ii) Information not subject to public 

disclosure should not be submitted. 

Personally identifiable information, 

including social security numbers and 

employer identification numbers, should not 

be provided. Information that is subject to 

government-imposed access and 

dissemination or other specific national 

security controls, e.g., classified information 

or information that has U.S. Government 

restrictions on dissemination to non-U.S. 

citizens or other categories of persons that 

would prohibit public disclosure of the 


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Federal Register / Vol. 83, No. 176 / Tuesday, September 11, 2018 / Rules and Regulations 46057 

information, may not be included in 232 

submissions. Individuals and organizations 

that have confidential business information 

(‘‘CBI’’) that they believe relevant to the 

Secretary’s consideration of the 232 

submission should so indicate in the 

appropriate field of the relevant form, or on 

the rebuttal or surrebuttal submission, 

following the procedures in paragraph 

(b)(5)(iii) of this supplement. 

(iii) Procedures for identifying, but not 

disclosing confidential or proprietary 

business information (CBI) in the public 

version, and procedures for submitting CBI. 

For persons seeking to submit confidential or 

proprietary business information (CBI), the 

232 submission available to the public must 

contain a summary of the CBI in sufficient 

detail to permit a reasonable understanding 

of the substance of the information. If the 

submitting person claims that summarization 

is not possible, the claim must be 

accompanied by a full explanation of the 

reasons supporting that claim. Generally, 

numerical data will be considered adequately 

summarized if grouped or presented in terms 

of indices or figures within 10 percent of the 

actual figure. If an individual portion of the 

numerical data is voluminous (e.g., 5 pages 

of numerical data), at least one percent of the 

numerical data, representative of that 

portion, must be summarized. In order to 

submit CBI that is not for public release as 

a separate email submission to the U.S. 

Department of Commerce, you must follow 

the procedures in paragraphs (b)(3)(iii)(A)– 

(C) of this supplement to assist the U.S. 

Department of Commerce in identifying these 

submissions and associating these 

submissions with the respective 232 

submission posted in regulations.gov. 

Submitters with classified information 

should contact the U.S. Department of 

Commerce for instructions on the appropriate 

methods to send this type of information. If 

you are submitting a rebuttal or a surrebuttal, 

Annex 1 to Supplements No. 1 and 2 

includes additional guidance for submitting 

CBI. 

(A) On the same day that you submit your 

232 submission in www.regulations.gov, send 

an email to the U.S. Department of 

Commerce. The email address used is 

different depending on the type of 

submission the emailed CBI is for, as follows: 

CBI for rebuttals use 232rebuttals@doc.gov; 

and CBI for surrebuttals use 232surrebuttals@

doc.gov. 

(B) The email subject line must only 

include the original exclusion request ID # 

(BIS–2018–000X–XXXXX) and the body of 

the email must include the 11-digit 

alphanumeric tracking number (XXX–XXXX– 

XXXX) you received from regulations.gov 

when you successfully submitted your 

rebuttal, or surrebuttal. This naming 

convention will assist the U.S. Department of 

Commerce to associate the CBI, that will not 

be posted in regulations.gov, with the 

information included in the public 

submission. 

(C) Submit the CBI as an attachment to that 

email. The CBI is limited to a maximum of 

5 pages per rebuttal, or surrebuttal. The email 

is to be limited to sending your CBI. All other 

information for the public submission, and 

public versions of the CBI, where 

appropriate, for a 232 submission must be 

submitted using www.regulations.gov 

following the procedures identified in this 

supplement. 

Note to Paragraph (b) for Submission of 

Supporting Documents (Attachments): 

Supporting attachments must be emailed as 

PDF documents. 

(c) Exclusion requests. 

(1) Who may submit an exclusion request? 

Only directly affected individuals or 

organizations located in the United States 

may submit an exclusion request. An 

individual or organization is ‘‘directly 

affected’’ if they are using steel in business 

activities (e.g., construction, manufacturing, 

or supplying steel product to users) in the 

United States. 

(2) Identification of exclusion requests. The 

file name of the submission must include the 

submitter’s name, date of submission, and 

the 10-digit Harmonized Tariff Schedule of 

the United States (HTSUS) statistical 

reporting number. For example, if Company 

A is submitting an exclusion request on June 

1, 2018, the file should be named as follows: 

‘‘Company A exclusion request of 6–1–18 for 

7207200045 HTSUS.’’ Separate exclusion 

requests must be submitted for steel products 

with chemistry by percentage breakdown by 

weight, metallurgical properties, surface 

quality (e.g., galvanized, coated), and distinct 

critical dimensions (e.g., 0.25-inch rebar, 0.5- 

inch rebar, 0.5-inch sheet, or 0.75 sheet) 

covered by a common HTSUS subheading. 

The exclusion request forms allow for 

minimum and maximum dimensions. Ranges 

are acceptable if the manufacturing process 

permits small tolerances. A permissible range 

must be within the minimum and maximum 

range that is specified in the tariff provision 

and applicable legal notes for the provision. 

Separate exclusion requests must also be 

submitted for products falling in more than 

one 10-digit HTSUS statistical reporting 

number. The U.S. Department of Commerce 

will approve exclusions on a product basis, 

and the approvals will 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. Other directly affected 

individuals or organizations located in the 

United States that wish to submit an 

exclusion request for a steel product that has 

already been the subject of an approved 

exclusion request may submit an exclusion 

request under this supplement. These 

additional exclusion requests by other 

directly affected individuals or organizations 

in the United States are not required to 

reference the previously approved exclusion 

but are advised to do so, if they want 

Commerce to take that into account when 

reviewing a subsequent exclusion request. 

Directly affected individuals and 

organizations in the United States will not be 

precluded from submitting a request for 

exclusion of a product even though an 

exclusion request submitted for that product 

by another requester or that requester was 

denied or is no longer valid. 

Note to Paragraph (c)(2): For directly 

affected individuals or organizations located 

in the United States seeking exclusions from 

quantitative limitations imposed on certain 

countries, the requester must select the field 

on the exclusion form to indicate that the 

exclusion request is for importing from a 

country subject to a quantitative limitation. 

In addition to selecting this field on the 

exclusion request form, a requester must 

provide information that it believes supports 

allowing the requester to import steel that 

may otherwise exceed the quantitative 

limitation for this country. For example, the 

requester may indicate it believes the steel 

identified in the exclusion request is not 

available from any U.S. suppliers, and 

indicate that the quantitative limitation has 

been exceeded or will likely soon be 

exceeded leading to this individual or 

organization not being able to import or 

otherwise obtain (from any other country) the 

needed steel. Providing information as part of 

the exclusion requests that supports these 

types of statements is required for the U.S. 

Department of Commerce to consider these 

types of exclusion requests. 

(3) Where to submit exclusion requests? All 

exclusion requests must be in electronic form 

and submitted to the Federal rulemaking 

portal (http://www.regulations.gov). You can 

find the interim final rule that added this 

supplement by searching for the 

regulations.gov docket number, which is 

BIS–2018–0006. 

(4) No time limit for submitting exclusion 

requests. All exclusion requests must be in 

electronic form and submitted to the Federal 

rulemaking portal (http://

www.regulations.gov), but may be submitted 

at any time. 

(5) Substance of exclusion requests. An 

exclusion request must specify the business 

activities in the United States within which 

the requester is engaged that qualify the 

individual or organization to be directly 

affected and thus eligible to submit an 

exclusion request. The request should clearly 

identify, and provide support for, the basis 

upon which the exclusion is sought. An 

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 specific national 

security considerations. 

(6) Criteria used to review exclusion 

requests. The U.S. Department of Commerce 

will review each exclusion request to 

determine whether an article described in an 

exclusion request meets any of the following 

three criteria: the 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 specific national security 

considerations. To provide additional context 

on the meaning and application of the 

criteria, paragraphs (c)(6)(i)–(iii) of this 

supplement define keys terms used in the 

review criteria and provide illustrative 

application examples. The U.S. Department 

of Commerce will use the same criteria 

identified in paragraphs (c)(6)(i)–(iii) of this 

supplement when determining whether it is 

warranted to approve broader product-based 

exclusions based on trends the Department 

may see over time with 232 submissions. The 


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public is not permitted to request broader 

product-based exclusions that would apply 

to all importers, because the Department 

makes these determinations over time by 

evaluating the macro trends in 232 

submissions. 

(i) Not produced in the United States in a 

sufficient and reasonably available amount. 

The exclusion review criterion ‘‘not 

produced in the United States in a sufficient 

and reasonably available amount’’ means that 

the amount of steel that is needed by the end 

user requesting the exclusion is not available 

immediately in the United States to meet its 

specified business activities. ‘‘Immediately’’ 

means whether a product is currently being 

produced or could be produced ‘‘within eight 

weeks’’ in the amount needed in the business 

activities of the user of steel in the United 

States described in the exclusion request. 

The U.S. Department of Commerce reviews 

an exclusion request based on the 

information included in the exclusion 

request, any objections to an exclusion 

request, any rebuttals to the objections made 

by an individual or organization that 

submitted the exclusion request, and any 

surrebuttals. If the Department denies an 

exclusion request based on a representation 

made by an objector, which later is 

determined to be inaccurate (e.g., if the 

objector was not able to meet the requirement 

of being able to ‘‘immediately’’ supply the 

steel that was included in a denied exclusion 

request in the quantity needed), the requester 

may submit a new exclusion request that 

refers back to the original denied exclusion 

request and explains that the objector was 

not able to supply the steel. The U.S. 

Department of Commerce would take that 

into account in reviewing a subsequent 

exclusion request. 

(ii) Not produced in the United States in 

a satisfactory quality. The exclusion review 

criterion ‘‘not produced in the United States 

in a satisfactory quality’’ does not mean the 

steel needs to be identical, but it does need 

to be equivalent as a substitute product. 

‘‘Substitute product’’ for purposes of this 

review criterion means that the steel being 

produced by an objector can meet 

‘‘immediately’’ (see paragraph (c)(6)(i) of this 

supplement) the quality (e.g., industry specs 

or internal company quality controls or 

standards), regulatory, or testing standards, 

in order for the U.S. produced steel to be 

used in that business activity in the United 

States by that end user. For example, if a U.S. 

business activity requires that steel plates to 

be provided must meet certain military 

testing and military specification standards 

in order to be used in military combat 

vehicles, that requirement would be taken 

into account when reviewing the exclusion 

request and any objections, rebuttals and 

surrebuttals submitted. As another example, 

if a U.S. business activity requires that steel 

tubing to be provided must meet certain Food 

and Drug Administration (FDA) approvals to 

be used in medical devices, that requirement 

would be taken into account when reviewing 

the exclusion request and any objections, 

rebuttals, and surrebuttals submitted. 

Another example would be a food 

manufacturer that requires tin-plate approval 

from the U.S. Department of Agriculture 

(USDA) to make any changes in the tin-plate 

it uses to make cans for fruit juices. An 

objector would not have to make steel for use 

in making the cans that was identical, but it 

would have to be a ‘‘substitute product’’ 

meaning it could meet the USDA certification 

standards. 

(iii) For specific national security 

considerations. The exclusion review 

criterion ‘‘or for specific national security 

considerations’’ is intended to allow the U.S. 

Department of Commerce, in consultation 

with other parts of the U.S. Government as 

warranted, to make determinations whether a 

particular exclusion request should be 

approved based on specific national security 

considerations. For example, if the steel 

included in an exclusion request is needed 

by a U.S. defense contractor for making 

critical items for use in a military weapons 

platform for the U.S. Department of Defense, 

and the duty or quantitative limitation will 

prevent the military weapons platform from 

being produced, the exclusion will likely be 

granted. The U.S. Department of Commerce, 

in consultation with the other parts of the 

U.S. Government as warranted, can consider 

other impacts to U.S. national security that 

may result from not approving an exclusion, 

e.g., the unintended impacts that may occur 

in other downstream industries using steel, 

but in such cases the demonstrated concern 

with U.S. national security would need to be 

tangible and clearly explained and ultimately 

determined by the U.S. Government. 

(d) Objections to submitted exclusion 

requests. 

(1) Who may submit an objection to a 

submitted exclusion request? Any individual 

or organization that manufactures steel 

articles in the United States may file 

objections to steel exclusion requests, but the 

U.S. Department of Commerce will only 

consider information directly related to the 

submitted exclusion request that is the 

subject of the objection. 

(2) Identification of objections to submitted 

exclusion requests. When submitting an 

objection to a submitted exclusion request, 

the objector must locate the exclusion request 

and submit a comment on the submitted 

exclusion request in regulations.gov. The file 

name of the objection submission should 

include the objector’s name, date of 

submission of the objection, name of the 

organization that submitted the exclusion 

request, and date the exclusion request was 

posted. For example, if Company B is 

submitting on April 1, 2018, an objection to 

an exclusion request submitted on March 15, 

2018 by Company A, the file should be 

named: ‘‘Company B objection_4–1–18 for 

Company A exclusion request_3–15–18.’’ In 

regulations.gov once an objection to a 

submitted exclusion request is posted, the 

objection will appear as a document under 

the related exclusion request. 

(3) Time limit for submitting objections to 

submitted exclusions requests. All objections 

to submitted exclusion requests must be in 

electronic form and submitted to the Federal 

rulemaking portal (http://

www.regulations.gov) no later than 30 days 

after the related exclusion request is posted. 

(4) Substance of objections to submitted 

exclusion requests. The objection should 

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. If the objector is asserting 

that it is not currently producing the steel 

identified in an exclusion request but can 

produce the steel within eight weeks 

(meaning the objector meets the definition of 

being able to supply the steel ‘‘immediately’’ 

in order to meet the demand identified in the 

exclusion request), the objector must identify 

how it will be able to produce the article 

within eight weeks. This requirement 

includes specifying in writing to the U.S. 

Department of Commerce as part of the 

objection, the timeline the objector 

anticipates in order to start or restart 

production of the steel included in the 

exclusion request to which it is objecting. For 

example, a summary timeline that specifies 

the steps that will occur over the weeks 

needed to produce that steel would be 

helpful to include, not only for the U.S. 

Department of Commerce review of the 

objection, but also for the requester of the 

exclusion and its determination whether to 

file a rebuttal to the objection. The U.S. 

Department of Commerce understands that in 

certain cases regulatory approvals, such as 

from the Environmental Protection Agency 

(EPA) or some approvals at the state or local 

level may be required to start or restart 

production and that some of these types of 

approvals may be not controllable by an 

objector. 

(e) Limitations on the size of submissions. 

Each exclusion request and each objection to 

a submitted exclusion request is to be limited 

to a maximum of 25 pages, inclusive of all 

exhibits and attachments, but exclusive of 

the respective forms and any CBI provided to 

the U.S. Department of Commerce. Each 

attachment to a submission must be less than 

10 MB. 

(f) Rebuttal process. Only individuals or 

organizations that have submitted an 

exclusion request pursuant to this 

supplement may submit a rebuttal to any 

objection(s) posted to their exclusion request 

in the Federal rulemaking portal (http://

www.regulations.gov). The objections to 

submitted exclusion requests process 

identified under paragraph (d) of this 

supplement already establish a formal 

response process for steel manufacturers in 

the United States. The objection process is an 

important part of ensuring the duties and 

quantitiative limitations are working as 

intended to achieve the stated purposes of 

the President’s Proclamations and the 

objectives of implementing these duties and 

quantitative limitations to protect U.S. 

national security interests. In order to 

enhance the fairness of this process and to 

allow the individual or organization that 

submitted an exclusion request to respond to 

any objections submitted to its exclusion 

request, this paragraph (f) allows for 

subsequent written submissions under the 

rebuttal process. 

(1) Identification of rebuttals. When 

submitting a rebuttal, the individual or 

organization that submitted the exclusion 

request submits a comment on the objection 

submitted to the exclusion request in the 


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Federal Register / Vol. 83, No. 176 / Tuesday, September 11, 2018 / Rules and Regulations 46059 

Federal rulemaking portal (http://

www.regulations.gov). See Annex 1 to 

Supplements No. 1 and 2 to Part 705 for a 

five-step process for how to submit rebuttals. 

Annex 1 describes the naming convention 

used for identification of rebuttals and the 

steps needed to identify objections to 

exclusion requests when using 

www.regulations.gov to submit a rebuttal. 

Submitters of rebuttals must follow the steps 

described in Annex 1, including following 

the naming convention of rebuttals. In 

regulations.gov once a rebuttal to an 

objection to a submitted exclusion request is 

posted, the rebuttal will appear as a 

document under the related exclusion 

request. 

(2) Format and size limitations for 

rebuttals. Similar to the exclusion process 

identified under paragraph (c) and the 

objection process identified under paragraph 

(d) of this supplement, the rebuttal process 

requires the submission of a government 

form as specified in paragraph (b)(3). The 

rebuttal must be in writing and submitted in 

regulations.gov. Each rebuttal is to be limited 

to a maximum of 10 pages, inclusive of all 

exhibits and attachments, but exclusive of 

the rebuttal form and any CBI provided to the 

U.S. Department of Commerce. Each 

attachment to a submission must be less than 

10 MB. 

(3) Substance of rebuttals. Rebuttals must 

address an objection to the exclusion request 

made by the requester. If multiple objections 

were received on a particular exclusion, the 

requester may submit a rebuttal to each 

objector. The most effective rebuttals will be 

those that aim to correct factual errors or 

misunderstandings in the objection(s). 

(4) Time limit for submitting rebuttals. The 

rebuttal period begins on the date the 

Department opens the rebuttal period after 

posting the last objection in regulations.gov. 

This beginning date will be sometime 

between thirty-one to forty-five days (a 

fifteen day range) after an exclusion request 

has been posted. The range of days is needed 

to account for time needed by the U.S. 

Department of Commerce to review any 

objections submitted to determine whether 

the objections are complete and should be 

posted in regulations.gov. The rebuttal period 

ends seven days after the rebuttal comment 

period is opened. This seven day rebuttal 

period allows for the individual or 

organization that submitted an exclusion 

request pursuant to this supplement to 

submit any written rebuttals that it believes 

are warranted. 

Note to Paragraph (f)(4): For exclusion 

requests that received an objection(s) but for 

which the U.S. Department of Commerce has 

not posted a final determination on the 

exclusion request as of September 11, 2018, 

the Department will reopen the requests to 

allow for the submission of rebuttals. The 

Department will reopen the requests on a 

rolling basis starting on September 11, 2018, 

and will seek to complete the reopening 

process on the date that is seven days after 

the date of publication of this notice in the 

Federal Register, September 18, 2018, to 

serve as the start date for the review periods 

identified in paragraph (f)(4) for those 

requests. 

(g) Surrebuttal process. Only individuals or 

organizations that have a posted objection to 

a submitted exclusion request pursuant to 

this supplement may submit a surrebuttal to 

a rebuttal (see paragraph (f)) posted to their 

objection to an exclusion request in the 

Federal rulemaking portal (http://

www.regulations.gov). The objections process 

identified under paragraph (d) of this 

supplement already establishes a formal 

response process for steel manufacturers in 

the United States and is an important part of 

ensuring the duties and quantitative 

limitations are working as intended to 

achieve the stated purposes of the President’s 

Proclamations and the objectives of 

implementing these duties and quantitative 

limitations to protect U.S. national security 

interests. In order to enhance the fairness of 

this process and to allow the individual or 

organization that submitted an objection to a 

submitted exclusion request to respond to 

any rebuttals submitted pursuant to 

paragraph (f) of this supplement, paragraph 

(g) allows for subsequent written submissions 

under this surrebuttal process. 

(1) Identification of surrebuttals. When 

submitting a surrebuttal, the individual or 

organization that submitted the objection to 

an exclusion request would submit a 

comment on the submitted rebuttal to the 

objection submitted in the Federal 

rulemaking portal (http://

www.regulations.gov). See Annex 1 to 

Supplements No. 1 and 2 to Part 705 for a 

five-step process for how to submit 

surrebuttals. Annex 1 describes the naming 

convention used for identification of 

surrebuttals and the steps needed to identify 

rebuttals in regulations when using 

www.regulatons.gov to submit a surrebuttal. 

Submitters of surrebuttals must follow the 

steps described in Annex 1, including 

following the naming convention of 

surrebuttals. In regulations.gov once a 

surrebuttal to a rebuttal to an objection to a 

submitted exclusion request is posted, the 

surrebuttal will appear as a document under 

the related exclusion request. 

(2) Format and size limitations for 

surrebuttals. Similar to the exclusion process 

identified under paragraph (c) of this 

supplement, the objection process identified 

under paragraph (d), and the rebuttal process 

identified under paragraph (f), the surrebuttal 

process requires the submission of a 

government form as specified in paragraph 

(b)(4). The surrebuttal must be in writing and 

submitted in regulations.gov. Each 

surrebuttal is to be limited to a maximum of 

10 pages, inclusive of all exhibits and 

attachments, but exclusive of the surrebuttal 

form and any CBI provided to the U.S. 

Department of Commerce. Each attachment 

to a submission must be less than 10 MB. 

(3) Substance of surrebuttals. Surrebuttals 

must address a rebuttal to an objection to the 

exclusion request made by the requester. The 

most effective surrebuttals will be those that 

aim to correct factual errors or 

misunderstandings in the rebuttal to an 

objection. 

(4) Time limit for submitting surrebuttals. 

The surrebuttal period begins on the date the 

Department opens the surrebuttal comment 

period after posting the last rebuttal to an 

objection to an exclusion request in 

regulations.gov. This will be sometime 

within a fifteen-day range after the rebuttal 

period has closed. The range of days is 

needed to account for time needed by the 

U.S. Department of Commerce to review any 

rebuttals to objections submitted to 

determine whether the rebuttals are complete 

and should be posted in regulations.gov. The 

surrebuttal period ends seven days after the 

surrebuttal comment period is opened. This 

seven-day surrebuttal period allows for the 

individual or organization that submitted an 

objection to a submitted exclusion request 

pursuant to this supplement to submit any 

written surrebuttals that it believes are 

warranted to respond to a rebuttal. 

(h) Disposition of 232 submissions. 

(1) Disposition of incomplete submissions. 

(i) Exclusion requests that do not satisfy 

the requirements specified in paragraphs (b) 

and (c) of this supplement will be denied. 

(ii) Objection filings that do not satisfy the 

requirements specified in paragraphs (b) and 

(d) will not be considered. 

(iii) Rebuttal filings that do not satisfy the 

requirements specified in paragraphs (b) and 

(f) will not be considered. 

(iv) Surrebuttal filings that do not satisfy 

the requirements specified in paragraphs (b) 

and (g) will not be considered. 

(2) Disposition of complete submissions. 

(i) Posting of responses. The U.S. 

Department of Commerce will post responses 

in regulations.gov to each exclusion request 

submitted under docket number BIS–2018– 

0006. The U.S. Department of Commerce 

response to an exclusion request will also be 

responsive to any of the objection(s), 

rebuttal(s) and surrebuttal(s) for that 

submitted exclusion request submitted under 

docket number BIS–2018–0006. 

(ii) Streamlined review process for ‘‘No 

Objection’’ requests. The U.S. Department of 

Commerce will expeditiously grant properly 

filed exclusion requests which meet the 

requisite criteria, receive no objections, and 

present no national security concerns. If an 

exclusion request’s 30-day comment period 

on regulations.gov has expired and no 

objections have been submitted, the U.S. 

Department of Commerce will work with 

U.S. Customs and Border Protection (CBP) to 

ensure that the requester provided an 

accurate HTSUS statistical reporting number. 

If so, BIS will immediately assess the request 

for any national security concerns. If BIS 

identifies no national security concerns, it 

will expeditiously post a decision on 

regulations.gov granting the exclusion 

request. 

(iii) Effective date for approved exclusions 

and date used for calculating duty refunds. 

(A) Effective date for approved exclusions. 

Approved exclusions will be effective five 

business days after publication of the U.S. 

Department of Commerce response granting 

an exclusion in regulations.gov. Starting on 

that date, the requester will be able to rely 

upon the approved exclusion request in 

calculating the duties owed on the product 

imported in accordance with the terms listed 

in the approved exclusion request. 

(B) Contact for obtaining duty refunds. The 

U.S. Department of Commerce does not 

provide refunds on tariffs. Any questions on 


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the refund of duties should be directed to 

CBP. 

(iv) Validity period for exclusion requests. 

Exclusions will generally be approved for 

one year, but may be valid for shorter or 

longer than one year depending on the 

specifics of the exclusion request; any 

objections filed; and analysis by the U.S. 

Department of Commerce and other parts of 

the U.S. Government, as warranted, of the 

current supply and demand in the United 

States, including any limitations or other 

factors that the Department determines 

should be considered in order to achieve the 

national security objectives of the duties and 

quantitative limitations. 

(A) Examples of what fact patterns may 

warrant a longer exclusion validity period. 

Individuals or organizations submitting 

exclusion requests or objections may specify 

and are encouraged to specify how long they 

believe an exclusion may be warranted and 

specify the rationale for that recommended 

time period. For example, an individual or 

organization submitting an exclusion request 

may request a longer validity period if there 

are factors outside of their control that may 

make it warranted to grant a longer period. 

These factors may include regulatory 

requirements that make a longer validity 

period justified, e.g., for an aircraft 

manufacturer that would require a certain 

number of years to make a change to an FAA 

approved type certificate or for a 

manufacturer of medical items to obtain FDA 

approval. Business considerations, such as 

the need for a multi-year contract for steel 

with strict delivery schedules in order to 

complete a significant U.S. project by an 

established deadline, e.g., a large scale oil 

and gas exploration project, is another 

illustrative example of the types of 

considerations that a person submitting an 

exclusion request may reference. 

(B) Examples of what criteria may warrant 

a shorter exclusion validity period. Objectors 

are encouraged to provide their suggestions 

for how long they believe an appropriate 

validity period should be for an exclusion 

request. In certain cases, this may be an 

objector indicating it has committed to 

adding new capacity that will be coming 

online within six months, so a shorter sixmonth period is warranted. Conversely, if an 

objector knows it will take two years to 

obtain appropriate regulatory approvals, 

financing and/or completing construction to 

add new capacity, the objector may, in 

responding to an exclusion that requests a 

longer validity period, e.g., three years, 

indicate that although they agree a longer 

validity period than one year may be 

warranted in this case, that two years is 

sufficient. 

(C) None of the illustrative fact patterns 

identified in paragraphs (h)(2)(iv)(A) or (B) of 

this supplement will be determinative in and 

of themselves for establishing the appropriate 

validity period, but this type of information 

is helpful for the U.S. Department of 

Commerce to receive, when warranted, to 

help determine the appropriate validity 

period if a period other than one year is 

requested. 

(3) Review period and implementation of 

any needed conforming changes. 

(i) Review period. The review period 

normally will not exceed 106 days for 

requests that receive objections, including 

adjudication of objections submitted on 

exclusion requests and any rebuttals to 

objections, and surrebuttals. The estimated 

106 day period begins on the day the 

exclusion request is posted in regulations.gov 

and ends once a decision to grant or deny is 

made on the exclusion request. 

(ii) Coordination with other agencies on 

approval and implementation. Other 

agencies of the U.S. Government, such as 

CBP, will take any additional steps needed to 

implement an approved exclusion request. 

These additional steps needed to implement 

an approved exclusion request are not part of 

the review criteria used by the U.S. 

Department of Commerce to determine 

whether to approve an exclusion request, but 

are an important component in ensuring the 

approved exclusion request can be properly 

implemented. The U.S. Department of 

Commerce will provide CBP with 

information that will identify each approved 

exclusion request pursuant to this 

supplement. Individuals or organizations 

whose exclusion requests are approved must 

report information concerning any applicable 

exclusion in such form as CBP may require. 

These exclusion identifiers will be used by 

importers in the data collected by CBP in 

order for CBP to determine whether an 

import is within the scope of an approved 

exclusion request. 

(i) For further information. If you have 

questions on this supplement, you may 

contact Director, Industrial Studies, Office of 

Technology Evaluation, Bureau of Industry 

and Security, U.S. Department of Commerce, 

at (202) 482–5642 or Steel232@bis.doc.gov 

regarding steel exclusion requests. See Annex 

1 to Supplements Nos. 1 and 2 to Part 705 

for application issues that are specific to 

using www.regulations.gov for submitting 

rebuttals and surrebuttals under these two 

supplements. The U.S. Department of 

Commerce has posted in regulations.gov 

training documents to assist your 

understanding when submitting exclusion 

requests and objections, including step- bystep screen shots of the process when using 

regulations.gov. The U.S. Department of 

Commerce website also includes FAQs, best 

practices other companies have used for 

submitting exclusion requests and objections, 

and helpful checklists. 

Supplement No. 2 to Part 705— 

Requirements for Submissions 

Requesting Exclusions From the 

Remedies Instituted in Presidential 

Proclamation 9704 of March 8, 2018 To 

Adjusting Imports of Aluminum Into 

the United States 

On March 8, 2018, the President issued 

Proclamation 9704 concurring with the 

findings of the January 17, 2018 report of the 

Secretary of Commerce on the investigation 

into the effects of imports of aluminum 

identified in Proclamation 9704 

(‘‘aluminum’’) on the national security and 

determining that adjusting aluminum 

imports through the imposition of duties is 

necessary so that imports of aluminum will 

no longer threaten to impair the national 

security. Clause 3 of Proclamation 9704 also 

authorized the Secretary of Commerce, in 

consultation with the Secretary of Defense, 

the Secretary of the Treasury, the Secretary 

of State, the United States Trade 

Representative, the Assistant to the President 

for Economic Policy, the Assistant to the 

President for National Security Affairs, and 

other senior Executive Branch officials as 

appropriate, to grant exclusions from the 

duties at the request of directly affected 

parties located in the United States if the 

aluminum articles are determined not to be 

produced in the United States in a sufficient 

and reasonably available amount or of a 

satisfactory quality or based upon specific 

national security considerations. On August 

29, 2018, the President issued Proclamation 

9776. Clause 1 of Proclamation 9776 

authorized the Secretary of Commerce, in 

consultation with the Secretary of State, the 

Secretary of the Treasury, the Secretary of 

Defense, the United States Trade 

Representative (USTR), the Assistant to the 

President for National Security Affairs, the 

Assistant to the President for Economic 

Policy, and such other senior Executive 

Branch officials as the Secretary deems 

appropriate, to provide relief from the 

applicable quantitative limitations set forth 

in Proclamation 9704 and Proclamation 9758 

and their accompanying annexes, as 

amended, at the request of a directly affected 

party located in the United States for any 

aluminum article determined by the 

Secretary to not be produced in the United 

States in a sufficient and reasonably available 

amount or of a satisfactory quality. The 

Secretary is also authorized to provide such 

relief based upon specific national security 

considerations. 

(a) Scope. This supplement specifies the 

requirements and process for how directly 

affected parties located in the United States 

may submit requests for exclusions from the 

remedies instituted by the President. This 

supplement also specifies the requirements 

and process for how parties in the United 

States may submit objections to submitted 

exclusion requests for relief from the duties 

or quantitative limitations imposed by the 

President, and rebuttals to submitted 

objections and surrebuttals (collectively, 

‘‘232 submissions’’). This supplement 

identifies the time periods for such 

submissions, the method of submission, and 

the information that must be included in 

such submissions. 

(b) Required forms. The U.S. Department of 

Commerce has posted four separate fillable 

forms on the BIS website at https://

www.bis.doc.gov/index.php/232-aluminum 

and on the Federal rulemaking portal (http:// 

www.regulations.gov) that are to be used by 

organizations for submitting exclusion 

requests, objections to exclusion requests, 

rebuttals, and surrebuttals described in this 

supplement. On regulations.gov, you can find 

these four forms for aluminum exclusion 

requests, objections to exclusion requests, 

rebuttals to objections, and surrebuttals by 

searching for its regulations.gov docket 

number, which is BIS–2018–0002. The U.S. 

Department of Commerce requires requesters 

and objectors to use the appropriate form as 


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specified under paragraphs (b)(1) and (2) of 

this supplement for submitting exclusion 

requests and objections to submitted 

exclusion requests, and the forms specified 

under paragraphs (b)(3) and (4) for 

submitting rebuttals and surrebuttals. 

(1) Form required for submitting exclusion 

requests. The name of the form used for 

submitting exclusion requests is Request for 

Exclusion from Remedies: Section 232 

National Security Investigation of Aluminum 

Imports. The Title in www.regulations.gov is 

Exclusion Request—Aluminum and is posted 

under ID # BIS–2018–0002–0002. 

(2) Form required for submitting objections 

to submitted exclusion requests. The name of 

the form used for submitting objections to 

submitted exclusion requests is Objection 

Filing to Posted Section 232 Exclusion 

Request: Aluminum. The Title in 

www.regulations.gov is Objection Filing— 

Aluminum and is posted under ID # BIS– 

2018–0002–0003. 

(3) Form required for submitting rebuttals. 

The name of the form used for submitting 

rebuttals to objections is Rebuttal to 

Objection Received for Section 232 Exclusion 

Request: Aluminum. The Title in 

www.regulations.gov is Rebuttal Filing— 

Aluminum and is posted under ID # BIS– 

2018–0002–4393. 

(4) Form required for submitting 

surrebuttals. The name of the form used for 

submitting surrebuttals to objections is 

Surrebuttal to Rebuttal Received on Section 

232 Objection: Aluminum. The Title in 

www.regulations.gov is Surrebuttal Filing— 

Aluminum and is posted under ID # BIS– 

2018–0002–4394. 

(5) Public disclosure and information 

protected from public disclosure. 

(i) Information submitted in 232 

submissions will be subject to public review 

and made available for public inspection and 

copying, except for the information described 

in paragraph (b)(5)(iii) of this supplement. 

Individuals and organizations must 

otherwise fully complete the relevant forms. 

(ii) Information not subject to public 

disclosure should not be submitted. 

Personally identifiable information, 

including social security numbers and 

employer identification numbers, should not 

be provided. Information that is subject to 

government-imposed access and 

dissemination or other specific national 

security controls, e.g., classified information 

or information that has U.S. Government 

restrictions on dissemination to non-U.S. 

citizens or other categories of persons that 

would prohibit public disclosure of the 

information, may not be included in 232 

submissions. Individuals and organizations 

that have confidential business information 

(‘‘CBI’’) that they believe relevant to the 

Secretary’s consideration of the 232 

submission should so indicate in the 

appropriate field of the relevant form, or on 

the rebuttal or surrebuttal submission, 

following the procedures in paragraph 

(b)(5)(iii) of this supplement. 

(iii) Procedures for identifying, but not 

disclosing, confidential or proprietary 

business information (CBI) in the public 

version, and procedures for submitting CBI. 

For persons seeking to submit CBI, the 232 

submission available to the public must 

contain a summary of the CBI in sufficient 

detail to permit a reasonable understanding 

of the substance of the information. If the 

submitting person claims that summarization 

is not possible, the claim must be 

accompanied by a full explanation of the 

reasons supporting that claim. Generally, 

numerical data will be considered adequately 

summarized if grouped or presented in terms 

of indices or figures within 10 percent of the 

actual figure. If an individual portion of the 

numerical data is voluminous (e.g., 5 pages 

of numerical data), at least one percent of the 

numerical data, representative of that portion 

must be summarized. In order to submit CBI 

that is not for public release as a separate 

email submission to the U.S. Department of 

Commerce, you must follow the procedures 

in paragraphs (b)(3)(iii)(A)–(C) of this 

supplement to assist the U.S. Department of 

Commerce in identifying these submissions 

and associating these submissions with the 

respective 232 submission posted in 

regulations.gov. Submitters with classified 

information should contact the U.S. 

Department of Commerce for instructions on 

the appropriate methods to send this type of 

information. If you are submitting a rebuttal 

or a surrebuttal, Annex 1 to Supplements No. 

1 and 2 includes additional guidance for 

submitting CBI. 

(A) On the same day that you submit your 

232 submission in www.regulations.gov, send 

an email to the U.S. Department of 

Commerce. The email address used is 

different depending on the type of 

submission the emailed CBP is for, as 

follows: CBI for rebuttals use 232rebuttals@

doc.gov; and CBI for surrebuttals use 

232surrebuttals@doc.gov. 

(B) The email subject line must only 

include the original exclusion request ID # 

(BIS–2018–000X–XXXXX) and the body of 

the email must include the 11-digit 

alphanumeric tracking number (XXX–XXXX– 

XXXX) you received from regulations.gov 

when you successfully submitted your 

rebuttal, or surrebuttal. This naming 

convention will assist the U.S. Department of 

Commerce to associate the CBI, that will not 

be posted in regulations.gov, with the 

information included in the public 

submission. 

(C) Submit the CBI as an attachment to that 

email. The CBI is limited to a maximum of 

5 pages per rebuttal, or surrebuttal. The email 

is to be limited to sending your CBI. All other 

information for the public submission, and 

public versions of the CBI, where 

appropriate, for a 232 submission must be 

submitted using www.regulations.gov 

following the procedures identified in this 

supplement. 

Note to Paragraph (B) for Submission of 

Supporting Documents (Attachments): 

Supporting attachments must be emailed as 

PDF documents. 

(c) Exclusion requests. 

(1) Who may submit an exclusion request? 

Only directly affected individuals or 

organizations located in the United States 

may submit an exclusion request. An 

individual or organization is ‘‘directly 

affected’’ if they are using aluminum in 

business activities (e.g., construction, 

manufacturing, or supplying aluminum 

product to users) in the United States. 

(2) Identification of exclusion requests. The 

file name of the submission must include the 

submitter’s name, date of submission, and 

the 10-digit Harmonized Tariff Schedule of 

the United States (HTSUS) statistical 

reporting number. For example, if Company 

A is submitting an exclusion request on June 

1, 2018, the file should be named as follows: 

‘‘Company A exclusion request of 6–1–18 for 

7604293050 HTSUS.’’ Separate exclusion 

requests must be submitted for aluminum 

products with distinct critical dimensions 

(e.g., 10 mm diameter bar, 15 mm bar, or 20 

mm bar) covered by a common HTSUS 

statistical reporting number. The exclusion 

request forms do allow for minimum and 

maximum dimensions. Ranges are acceptable 

if the manufacturing process permits small 

tolerances. A permissible range must be 

within the minimum and maximum range 

that is specified in the tariff provision and 

applicable legal notes for the provision. 

Separate exclusion requests must also be 

submitted for products falling in more than 

one 10-digit HTSUS statistical reporting 

number. The U.S. Department of Commerce 

will approve exclusions on a product basis 

and the approvals will 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. Other directly affected 

individuals or organizations located in the 

United States that wish to submit an 

exclusion request for an aluminum product 

that has already been the subject of an 

approved exclusion request may submit an 

exclusion request under this supplement. 

These additional exclusion requests by other 

directly affected individuals or organizations 

in the United States are not required to 

reference the previously approved exclusion 

but are advised to do so, if they want 

Commerce to take that into account when 

reviewing a subsequent exclusion request. 

Directly affected individuals and 

organizations in the United States will not be 

precluded from submitting a request for 

exclusion of a product even though an 

exclusion request submitted for that product 

by another requester or that requester was 

denied or is no longer valid. 

Note to Paragraph (c)(2): For directly 

affected individuals or organizations located 

in the United States seeking exclusions from 

quantitative limitations imposed on certain 

countries, the requester must select the field 

on the exclusion form to indicate that the 

exclusion request is for importing from a 

country subject to a quantitative limitation. 

In addition to selecting this field on the 

exclusion request form, a requester must 

provide information that it believes supports 

allowing the requester to import aluminum 

that may otherwise exceed the quantitative 

limitation for this country. For example, the 

requester may indicate it believes the 

aluminum identified in the exclusion request 

is not available from any U.S. suppliers, and 

indicate that the quantitative limitation has 

been exceeded or will likely soon be 

exceeded leading to this individual or 

organization not being able to import or 


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otherwise obtain (from any other country) the 

needed aluminum. Providing information as 

part of the exclusion requests that supports 

these types of statements is required for the 

U.S. Department of Commerce to consider 

these types of exclusion requests. 

(3) Where to submit exclusion requests? All 

exclusion requests must be in electronic form 

and submitted to the Federal rulemaking 

portal (http://www.regulations.gov). You can 

find the interim final rule that added this 

supplement by searching for the 

regulations.gov docket number, which is 

BIS–2018–0002. 

(4) No time limit for submitting exclusion 

requests. All exclusion requests must be in 

electronic form and submitted to the Federal 

rulemaking portal (http://

www.regulations.gov), but may be submitted 

at any time. 

(5) Substance of exclusion requests. An 

exclusion request must specify the business 

activities in the United States in which the 

requester is engaged that qualify the 

individual or organization to be directly 

affected and thus eligible to submit an 

exclusion request. The request should clearly 

identify, and provide support for, the basis 

upon which the exclusion is sought. An 

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 specific national 

security considerations. 

(6) Criteria used to review exclusion 

requests. The U.S. Department of Commerce 

will review each exclusion request to 

determine whether an article described in an 

exclusion request meets any of the following 

three criteria: The 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 specific national security 

considerations. To provide additional context 

on the meaning and application of the 

criteria, paragraphs (c)(6)(i)–(iii) of this 

supplement define keys terms used in the 

review criteria and provide illustrative 

application examples. The U.S. Department 

of Commerce will use the same criteria 

identified in paragraphs (c)(6)(i)–(iii) of this 

supplement when determining whether it is 

warranted to approve broader product-based 

exclusions based on trends the Department 

may see over time with 232 submissions. The 

public is not permitted to request broader 

product-based exclusions that would apply 

to all importers, because the Department 

makes these determinations over time by 

evaluating the macro trends in 232 

submissions. 

(i) Not produced in the United States in a 

sufficient and reasonably available amount. 

The exclusion review criterion ‘‘not 

produced in the United States in a sufficient 

and reasonably available amount’’ means that 

the amount of aluminum that is needed by 

the end user requesting the exclusion is not 

available immediately in the United States to 

meet its specified business activities. 

‘‘Immediately’’ means whether a product is 

currently being produced or could be 

produced ‘‘within eight weeks’’ in the 

amount needed in the business activities of 

the user of aluminum in the United States 

described in the exclusion request. The U.S. 

Department of Commerce reviews an 

exclusion request based on the information 

included in the exclusion request, any 

objections to an exclusion request, any 

rebuttals to the objections made by an 

individual or organization that submitted the 

exclusion request, and any surrebuttals. If the 

U.S. Department denies an exclusion request 

based on a representation made by an 

objector, which later is determined to be 

inaccurate (e.g., if the objector was not able 

to meet the requirement of being able to 

‘‘immediately’’ supply the aluminum that 

was included in a denied exclusion request 

in the quantity needed), the requester may 

submit a new exclusion request that refers 

back to the original denied exclusion request 

and explains that the objector was not able 

to supply the aluminum. The U.S. 

Department of Commerce would take that 

into account in reviewing a subsequent 

exclusion request. 

(ii) Not produced in the United States in 

a satisfactory quality. The exclusion review 

criterion ‘‘not produced in the United States 

in a satisfactory quality’’ does not mean the 

aluminum needs to be identical, but it does 

need to be equivalent as a substitute product. 

‘‘Substitute product’’ for purposes of this 

review criterion means that the aluminum 

being produced by an objector can meet 

‘‘immediately’’ (see paragraph (c)(6)(i) of this 

supplement) the quality (e.g., industry specs 

or internal company quality controls or 

standards), regulatory, or testing standards, 

in order for the U.S. produced aluminum to 

be used in that business activity in the 

United States by that end user. For example, 

if a U.S. business activity requires that 

aluminum to be provided must meet certain 

military testing and military specification 

standards in order to be used in military 

aircraft, that requirement would be taken into 

account when reviewing the exclusion 

request and any objections, rebuttals, and 

surrebuttals submitted. Another example, 

would be a U.S. pharmaceutical 

manufacturer that requires approval from the 

Food and Drug Administration (FDA) to 

make any changes in its aluminum product 

pill bottle covers. An objector would not 

have to make aluminum for use in making 

the product covers that was identical, but it 

would have to be a ‘‘substitute product’’ 

meaning it could meet the FDA certification 

standards. 

(iii) For specific national security 

considerations. The exclusion review 

criterion ‘‘or for specific national security 

considerations’’ is intended to allow the U.S. 

Department of Commerce, in consultation 

with other parts of the U.S. Government as 

warranted, to make determinations whether a 

particular exclusion request should be 

approved based on specific national security 

considerations. For example, if the aluminum 

included in an exclusion request is needed 

by a U.S. defense contractor for making 

critical items for use in a military weapons 

platform for the U.S. Department of Defense, 

and the duty or quantitative limitation will 

prevent the military weapons platform from 

being produced, the exclusion will likely be, 

the exclusion will likely be granted. The U.S. 

Department of Commerce, in consultation 

with the other parts of the U.S. Government 

as warranted, can consider other impacts to 

U.S. national security that may result from 

not approving an exclusion, e.g., the 

unintended impacts that may occur in other 

downstream industries using aluminum, but 

in such cases the demonstrated concern with 

U.S. national security would need to be 

tangible and clearly explained and ultimately 

determined by the U.S. Government. 

(d) Objections to submitted exclusion 

requests. 

(1) Who may submit an objection to a 

submitted exclusion request? Any individual 

or organization that manufactures aluminum 

articles in the United States may file 

objections to aluminum exclusion requests, 

but the U.S. Department of Commerce will 

only consider information directly related to 

the submitted exclusion request that is the 

subject of the objection. 

(2) Identification of objections to submitted 

exclusion requests. When submitting an 

objection to a submitted exclusion request, 

the objector must locate the exclusion request 

and submit a comment on the submitted 

exclusion request in regulations.gov. The file 

name of the objection submission should 

include the objector’s name, date of 

submission of the objection, name of the 

organization that submitted the exclusion 

request, and date the exclusion request was 

posted. For example, if Company X is 

submitting on April 1, 2018, an objection to 

an exclusion request submitted on March 15, 

2018 by Company A, the file should be 

named: ‘‘Company X objection_4–1–18 for 

Company A exclusion request_3–15–18.’’ In 

regulations.gov once an objection to a 

submitted exclusion request is posted, the 

objection will appear as a document under 

the related exclusion request. 

(3) Time limit for submitting objections to 

submitted exclusions requests. All objections 

to submitted exclusion requests must be in 

electronic form and submitted to the Federal 

rulemaking portal (http://

www.regulations.gov) no later than 30 days 

after the related exclusion request is posted. 

(4) Substance of objections to submitted 

exclusion requests. The objection should 

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. If the objector is asserting 

that it is not currently producing the 

aluminum identified in an exclusion request 

but can produce the aluminum within eight 

weeks (meaning the objector meets the 

definition of being able to supply the 

aluminum ‘‘immediately’’ in order to meet 

the demand identified in the exclusion 

request), the objector must identify how it 

will be able to produce the article within 

eight weeks. This requirement includes 

specifying in writing to the U.S. Department 

of Commerce as part of the objection, the 

timeline the objector anticipates in order to 

start or restart production of the aluminum 

included in the exclusion request to which 

it is objecting. For example, a summary 

timeline that specifies the steps that will 

occur over the weeks needed to produce that 

aluminum would be helpful to include, not 


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only for the U.S. Department of Commerce 

review of the objection, but also for the 

requester of the exclusion and its 

determination whether to file a rebuttal to the 

objection. The U.S. Department of Commerce 

understands that in certain cases regulatory 

approvals, such as from the Environmental 

Protection Agency (EPA) or some approvals 

at the state or local level may be required to 

start or restart production and that some of 

these types of approvals may be not 

controllable by an objector. 

(e) Limitations on the size of submissions. 

Each exclusion request and each objection to 

a submitted exclusion request is to be limited 

to a maximum of 25 pages, respectively, 

inclusive of all exhibits and attachments, but 

exclusive of the respective forms and any CBI 

provided to the U.S. Department of 

Commerce. Each attachment to a submission 

must be less than 10 MB. 

(f) Rebuttal process. Only individuals or 

organizations that have submitted an 

exclusion request pursuant to this 

supplement may submit a rebuttal to any 

objection(s) posted to their exclusion request 

in the Federal rulemaking portal (http://

www.regulations.gov). The objections to 

submitted exclusion requests process 

identified under paragraph (d) of this 

supplement already establish a formal 

response process for aluminum 

manufacturers in the United States. The 

objection process is an important part of 

ensuring the duties and quantitative 

limitations are working as intended to 

achieve the stated purposes of the President’s 

Proclamations and the objectives of 

implementing these duties and quantitative 

limitations to protect U.S. national security 

interests. In order to enhance the fairness of 

this process and to allow the individual or 

organization that submitted an exclusion 

request to respond to any objections 

submitted to its exclusion request, this 

paragraph (f) allows for subsequent written 

submissions under the rebuttal process. 

(1) Identification of rebuttals. When 

submitting a rebuttal, the individual or 

organization that submitted the exclusion 

request submits a comment on the objection 

to the submitted exclusion request in the 

Federal rulemaking portal (http://

www.regulations.gov). See Annex 1 to 

Supplements No. 1 and 2 to Part 705 for a 

five-step process for how to submit rebuttals. 

Annex 1 describes the naming convention 

used for identification of rebuttals and the 

steps needed to identify objections to 

exclusion requests when using 

www.regulations.gov to submit a rebuttal. 

Submitters of rebuttals must follow the steps 

described in Annex 1, including following 

the naming convention of rebuttals. In 

regulations.gov once a rebuttal to an 

objection to a submitted exclusion request is 

posted, the rebuttal will appear as a 

document under the related exclusion 

request. 

(2) Format and size limitations for 

rebuttals. Similar to the exclusion process 

identified under paragraph (c) of this 

supplement and the objection process 

identified under paragraph (d), the rebuttal 

process requires the submission of a 

government form as specified in paragraph 

(b)(3). The rebuttal must be in writing and 

submitted in regulations.gov. Each rebuttal is 

to be limited to a maximum of 10 pages, 

inclusive of all exhibits and attachments, but 

exclusive of the rebuttal form and any CBI 

provided to the U.S. Department of 

Commerce. Each attachment to a submission 

must be less than 10 MB. 

(3) Substance of rebuttals. Rebuttals must 

address an objection to the exclusion request 

made by the requester. If multiple objections 

were received on a particular exclusion, the 

requester may submit a rebuttal to each 

objector. The most effective rebuttals will be 

those that aim to correct factual errors or 

misunderstandings in the objection(s). 

(4) Time limit for submitting rebuttals. The 

rebuttal period begins on the date the 

Department opens the rebuttal period after 

posting the last objection in regulations.gov. 

This beginning date will be sometime 

between thirty-one to forty-five days (a 

fifteen day range) after an exclusion request 

has been posted. The range of days is needed 

to account for time needed by the U.S. 

Department of Commerce to review any 

objections submitted to determine whether 

the objections are complete and should be 

posted in regulations.gov. The rebuttal period 

ends seven days after the rebuttal comment 

period is opened. This seven day rebuttal 

period allows for the individual or 

organization that submitted an exclusion 

request pursuant to this supplement to 

submit any written rebuttals that it believes 

are warranted. 

Note to Paragraph (f)(4): For exclusion 

requests that received an objection(s) but for 

which the U.S. Department of Commerce has 

not posted a final determination on the 

exclusion request as of September 11, 2018, 

the Department will reopen the requests to 

allow for the submission of rebuttals. The 

Department will reopen the requests on a 

rolling basis starting on September 11, 2018, 

and will seek to complete the reopening 

process on the date that is seven days after 

the date of publication of this notice in the 

Federal Register, September 18, 2018, to 

serve as the start date for the review periods 

identified in paragraph (f)(4) for those 

requests. 

(g) Surrebuttal process. Only individuals or 

organizations that have a posted objection to 

a submitted exclusion request pursuant to 

this supplement may submit a surrebuttal to 

a rebuttal (see paragraph (f)) posted to their 

objection to an exclusion request in the 

Federal rulemaking portal (http://

www.regulations.gov). The objections process 

identified under paragraph (d) of this 

supplement already establishes a formal 

response process for aluminum 

manufacturers in the United States and is an 

important part of ensuring the duties and 

quantitative limitations are working as 

intended to achieve the stated purposes of 

the President’s Proclamations and the 

objectives of implementing these duties and 

quantitative limitations to protect U.S. 

national security interests. In order to 

enhance the fairness of this process and to 

allow the individual or organization that 

submitted an objection to a submitted 

exclusion request to respond to any rebuttals 

pursuant to paragraph (f) of this supplement, 

paragraph (g) allows for subsequent written 

submissions under this surrebuttal process. 

(1) Identification of surrebuttals. When 

submitting a surrebuttal, the individual or 

organization that submitted the objection to 

an exclusion request would submit a 

comment on the submitted rebuttal to the 

objection submitted in the Federal 

rulemaking portal (http://

www.regulations.gov). See Annex 1 to 

Supplements No. 1 and 2 to Part 705 for a 

five-step process for how to submit 

surrebuttals. Annex 1 describes the naming 

convention used for identification of 

surrebuttals and the steps needed to identify 

rebuttals in regulations when using 

www.regulations.gov to submit a surrebuttal. 

Submitters of surrebuttals must follow the 

steps described in Annex 1, including 

following the naming convention of 

surrebuttals. In regulations.gov once a 

surrebuttal to a rebuttal to an objection to a 

submitted exclusion request is posted, the 

surrebuttal will appear as a document under 

the related exclusion request. 

(2) Format and size limitations for 

surrebuttals. Similar to the exclusion process 

identified under paragraph (c) of this 

supplement, the objection process identified 

under paragraph (d), and the rebuttal process 

identified under paragraph (f), the surrebuttal 

process requires the submission of a 

government form as specified in paragraph 

(b)(4). The surrebuttal must be in writing and 

submitted in regulations.gov. Each 

surrebuttal is to be limited to a maximum of 

10 pages, inclusive of all exhibits and 

attachments, but exclusive of the surrebuttal 

form and any CBI provided to the U.S. 

Department of Commerce. Each attachment 

to a submission must be less than 10 MB. 

(3) Substance of surrebuttals. Surrebuttals 

must address a rebuttal to an objection to the 

exclusion request made by the requester. The 

most effective surrebuttals will be those that 

aim to correct factual errors or 

misunderstandings in the rebuttal to an 

objection(s). 

(4) Time limit for submitting surrebuttals. 

The surrebuttal period begins on the date the 

Department opens the surrebuttal period, 

after posting the last rebuttal to an objection 

to an exclusion request in regulations.gov. 

This will be sometime within a fifteen-day 

range after the rebuttal period has closed. 

The range of days is needed to account for 

time needed by the U.S. Department of 

Commerce to review any rebuttals to 

objections submitted to determine whether 

the rebuttals are complete and should be 

posted in regulations.gov. The surrebuttal 

period ends seven days after the surrebuttal 

period is opened. This seven-day surrebuttal 

period allows for the individual or 

organization that submitted an objection to a 

submitted exclusion request pursuant to this 

supplement to submit any written 

surrebuttals that it believes are warranted to 

respond to a rebuttal. 

(h) Disposition of 232 submissions. 

(1) Disposition of incomplete submissions. 

(i) Exclusion requests that do not satisfy 

the requirements specified in paragraphs (b) 

and (c) of this supplement will be denied. 

(ii) Objection filings that do not satisfy the 

requirements specified in paragraphs (b) and 

(d) will not be considered. 


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(iii) Rebuttal filings that do not satisfy the 

requirements specified in paragraphs (b) and 

(f) will not be considered. 

(iv) Surrebuttal filings that do not satisfy 

the requirements specified in paragraphs (b) 

and (g) will not be considered. 

(2) Disposition of complete submissions. 

(i) Posting of responses. The U.S. 

Department of Commerce will post responses 

in regulations.gov to each exclusion request 

submitted under docket number BIS–2018– 

0002. The U.S. Department of Commerce 

response to an exclusion request will also be 

responsive to any of the objection(s), 

rebuttal(s), and surrebuttal(s) for that 

submitted exclusion request submitted under 

docket number BIS–2018–0002. 

(ii) Streamlined review process for ‘‘No 

Objection’’ requests. The U.S. Department of 

Commerce will expeditiously grant properly 

filed exclusion requests which meet the 

requisite criteria, receive no objections, and 

present no national security concerns. If an 

exclusion request’s 30-day comment period 

on regulations.gov has expired and no 

objections have been submitted, the U.S. 

Department of Commerce will work with 

U.S. Customs and Border Protection (CBP) to 

ensure that the requester provided an 

accurate HTSUS statistical reporting number. 

If so, BIS will immediately assess the request 

for any national security concerns. If BIS 

identifies no national security concerns, it 

will expeditiously post a decision on 

regulations.gov granting the exclusion 

request. 

(iii) Effective date for approved exclusions 

and date used for calculating duty refunds. 

(A) Effective date for approved exclusions. 

Approved exclusions will be effective five 

business days after publication of the U.S. 

Department of Commerce response granting 

an exclusion in regulations.gov. Starting on 

that date, the requester will be able to rely 

upon the approved exclusion request in 

calculating the duties owed on the product 

imported in accordance with the terms listed 

in the approved exclusion request. 

(B) Contact for obtaining duty refunds. The 

U.S. Department of Commerce does not 

provide refunds on tariffs. Any questions on 

the refund of duties should be directed to 

CBP. 

(iv) Validity period for exclusion requests. 

Exclusions will generally be approved for 

one year, but may be valid for shorter or 

longer than one year depending on the 

specifics of the exclusion request; any 

objections filed; and analysis by the U.S. 

Department of Commerce and other parts of 

the U.S. Government, as warranted, of the 

current supply and demand in the United 

States, including any limitations or other 

factors that the Department determines 

should be considered in order to achieve the 

national security objectives of the duties and 

quantitative limitations while not unduly 

burdening other parts of U.S. industry. 

(A) Examples of what fact patterns may 

warrant a longer exclusion validity period. 

Individuals or organizations submitting 

exclusion requests or objections may specify 

and are encouraged to specify how long they 

believe an exclusion may be warranted and 

specify the rationale for that recommended 

time period. For example, an individual or 

organization submitting an exclusion request, 

may request a longer validity period if there 

are factors outside of their control that may 

make it warranted to grant a longer period. 

These factors may include regulatory 

requirements that make a longer validity 

period justified, e.g., for an aircraft 

manufacturer that would require a certain 

number of years to make a change to an FAA 

approved type certificate or for a 

manufacturer of medical items to obtain FDA 

approval. Business considerations, such as 

the need for a multi-year contract for 

aluminum with strict delivery schedules in 

order to complete a significant U.S. 

manufacturing project by an established 

deadline, e.g., a large scale petrochemical 

project, is another illustrative example of the 

types of considerations that a person 

submitting an exclusion request may 

reference. 

(B) Examples of what criteria may warrant 

a shorter exclusion validity period. Objectors 

are encouraged to provide their suggestions 

for how long they believe an appropriate 

validity period should be for an exclusion 

request. In certain cases, this may be an 

objector indicating it has committed to 

adding new capacity that will be coming 

online within six months, so a shorter sixmonth period is warranted. Conversely, if an 

objector knows it will take two years to 

obtain appropriate regulatory approvals, 

financing and/or completing construction to 

add new capacity, the objector may, in 

responding to an exclusion that requests a 

longer validity period, e.g., three years, 

indicate that although they agree a longer 

validity period than one year may be 

warranted in this case, that two years is 

sufficient. 

(C) None of the illustrative fact patterns 

identified in paragraphs (h)(2)(iv)(A) or (B) of 

this supplement will be determinative in and 

of themselves for establishing the appropriate 

validity period, but this type of information 

is helpful for the U.S. Department of 

Commerce to receive, when warranted, to 

help determine the appropriate validity 

period if a period other than one year is 

requested. 

(3) Review period and implementation of 

any needed conforming changes. 

(i) Review period. The review period 

normally will not exceed 106 days for 

requests that receive objections, including 

adjudication of objections submitted on 

exclusion requests and any rebuttals to 

objections, and surrebuttals. The estimated 

106-day period begins on the day the 

exclusion request is posted in regulations.gov 

and ends once a decision to grant or deny is 

made on the exclusion request. 

(ii) Coordination with other agencies on 

approval and implementation. Other 

agencies of the U.S. Government, such as 

CBP, will take any additional steps needed to 

implement an approved exclusion request. 

These additional steps needed to implement 

an approved exclusion request are not part of 

the review criteria used by the U.S. 

Department of Commerce to determine 

whether to approve an exclusion request, but 

are an important component in ensuring the 

approved exclusion request can be properly 

implemented. The U.S. Department of 

Commerce will provide CBP with 

information that will identify each approved 

exclusion request pursuant to this 

supplement. Importers are directed to report 

information concerning any applicable 

exclusion granted by Commerce in such form 

as CBP may require. These exclusion 

identifiers will be used by importers in the 

data collected by CBP in order for CBP to 

determine whether an import is within the 

scope of an approved exclusion request. 

(i) For further information. If you have 

questions on this supplement, you may 

contact Director, Industrial Studies, Office of 

Technology Evaluation, Bureau of Industry 

and Security, U.S. Department of Commerce, 

at (202) 482–4757 or Aluminum232@

bis.doc.gov regarding aluminum exclusion 

requests. See Annex 1 to Supplements Nos. 

1 and 2 to Part 705 for application issues that 

are specific to using www.regulations.gov for 

submitting rebuttals and surrebuttals under 

these two supplements. The U.S. Department 

of Commerce has posted in regulations.gov 

training documents to assist your 

understanding when submitting 232 

submissions. These documents include stepby-step screen shots of the process for using 

regulations.gov. The U.S. Department of 

Commerce website also includes FAQs and 

best practices other companies have used for 

submitting exclusion requests and objections. 

■ 1. Add Annex 1 to Supplements No. 

1 and 2 to Part 705, to read as follows: 

Annex 1 to Supplements No. 1 and 2 to 

Part 705—Steps for Using 

Regulations.gov To File Rebuttals and 

Surrebuttals 

How To File Rebuttal Comments 

Step 1: After the objection comment period 

closes for your exclusion request, you should 

search for all the objections on the 

www.regulations.gov website using the 

tutorial available on www.regulations.gov. 

Commerce will also prepare a daily list 

available on www.commerce.gov/232 that 

will assist you with determining whether an 

objection was filed for your product 

exclusion request. You must have your 

request ID # (BIS–2018–000X–XXXXX) to 

locate a specific exclusion request. 

Step 2: Using the list on 

www.commerce.gov/232 and your exclusion 

request ID #, filter the list for your request. 

If your request ID # is not on this list, it did 

not receive any objections and no rebuttal 

period will be opened and Commerce will 

process it accordingly. If your request ID # is 

on this list, locate the objections filed for 

your request. Please note that your request ID 

# will be listed more than once if it received 

more than one objection. Be advised that you 

should continue to monitor 

www.regulations.gov and the list on 

www.commerce.gov/232 to determine if 

objections were filed on your exclusion 

request. 

Step 3: To review the objections filed, go 

to www.regulations.gov and enter the 

objection ID # that corresponds to your 

exclusion request. Some exclusion requests 

may have multiple objections. 

Step 4: If you decide to file a rebuttal to 

an objection, visit www.regulations.gov to 


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locate the rebuttal submission form. Submit 

one rebuttal form for each objection you wish 

to rebut along with no more than 10 pages 

of supporting documentation. The 10 pages 

should include public documents and the 

public version of your confidential or 

proprietary business information (CBI) 

documentation. All rebuttal materials must 

be submitted within the 7-day rebuttal 

period. 

Step 5: If you wish to submit CBI as part 

of your rebuttal, you must mark the 

appropriate box in the rebuttal form. The CBI 

document must be emailed to 232rebuttals@

doc.gov on the same day you submit your 

rebuttal on regulations.gov. The email subject 

line must include the original exclusion 

request ID # (BIS–2018–000X–XXXXX) and 

the body of the email must include the 11- 

digit alphanumeric tracking number (XXX– 

XXXX–XXXX) you received from 

regulations.gov when you successfully 

submitted your rebuttal. Submit no more 

than 5 pages of supporting CBI 

documentation via email. As noted in Step 4 

above, an adequate public version, adhering 

to the requirements outlined in the body of 

this regulation, must accompany the 

submission of each rebuttal form on 

regulations.gov. If you do not file a public 

version of the CBI, Commerce will not 

consider your rebuttal to be properly 

submitted and exclude it from the analyses. 

For any questions, call (202) 482–5642 

(steel) or (202) 482–4757 (aluminum). 

How To File Surrebuttal Comments 

Step 1: After the rebuttal comment period 

closes on an exclusion request, you should 

search for all the rebuttals on the 

www.regulations.gov website using the 

tutorial available on www.regulations.gov. 

Commerce will also prepare a daily list 

available on www.commerce.gov/232 that 

will assist you with determining whether a 

rebuttal was filed on your objection. You 

must have the exclusion request ID # (BIS– 

2018–000X–XXXXX) to locate rebuttals to 

your objection. 

Step 2: Using the list on 

www.commerce.gov/232 filter the objection 

ID #, column using your objection ID #. If no 

rebuttals were filed for your objection, then 

the list will indicate, ‘‘No Rebuttal’’ under 

the Rebuttal ID column. Be advised that you 

should continue to monitor 

www.regulations.gov and the list on 

www.commerce.gov/232 to determine if 

rebuttals were filed on your objection. 

Step 3: To review the rebuttals filed, go to 

www.regulations.gov and enter the exclusion 

request ID # that corresponds to your 

objection. 

Step 4: If you decide to file a surrebuttal, 

visit www.regulations.gov to locate the 

surrebuttal submission form. Submit one 

surrebuttal form for each rebuttal you wish 

to rebut along with no more than 10 pages 

of supporting documentation. The 10 pages 

should include public documents and the 

public version of your CBI documentation. 

All surrebuttal materials must be submitted 

within the 7-day surrebuttal period. 

Step 5: If you wish to submit CBI as part 

of your surrebuttal, you must mark the 

appropriate box in the surrebuttal form. The 

CBI document must be emailed to 

232surrebuttals@doc.gov on the same day 

you submit your surrebuttal on 

regulations.gov. The email subject line must 

only include the original exclusion request 

ID # (BIS–2018–000X–XXXXX) and the body 

of the email must include the 11-digit 

alphanumeric tracking number (XXX–XXXX– 

XXXX) you received from regulations.gov 

when you successfully submitted your 

surrebuttal. Submit no more than 5 pages of 

supporting CBI documentation via email. As 

noted in Step 4 above, an adequate public 

version, adhering to the requirements 

outlined in the body of this regulation, must 

accompany the submission of each 

surrebuttal form on regulations.gov. If you do 

not file a public version of the CBI, 

Commerce will not consider your surrebuttal 

to be properly submitted and exclude it from 

the analyses. 

For any questions, call (202) 482–5642 

(steel) or (202) 482–4757 (aluminum). 

Dated: September 5, 2018. 

Wilbur L. Ross, 

Secretary of Commerce. 

[FR Doc. 2018–19662 Filed 9–6–18; 4:15 pm] 

BILLING CODE 3510–33–P 


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