[Federal Register Volume 83, Number 176 (Tuesday, September 11, 2018)]
[Rules and Regulations]
[Pages 46026-46065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19662]



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Vol. 83

Tuesday,

No. 176

September 11, 2018

Part II





Department of Commerce





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 Bureau of Industry and Security





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15 CFR Part 705





Submissions of Exclusion Requests and Objections to Submitted Requests 
for Steel and Aluminum; Final Rule

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

[[Page 46026]]


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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.

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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 [email protected]. 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, 
[email protected] regarding provisions in this rule specific to 
steel exclusion requests and (202) 482-4757, [email protected] 
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

[[Page 46027]]

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

[[Page 46028]]

profitability and loss for their employee-owned 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 higher-priced U.S. 
manufactured goods from companies that imported raw and semi-finished 
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 one-year 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 multi-tiered 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 one-year 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

[[Page 46030]]

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

[[Page 46031]]

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

[[Page 46032]]

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

[[Page 46033]]

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-by-step 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

[[Page 46034]]

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

[[Page 46035]]

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

[[Page 46036]]

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 product-specific 
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

[[Page 46037]]

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 ``near-equivalent'' 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 ``near-
equivalent'' 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.

[[Page 46038]]

    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

[[Page 46039]]

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

[[Page 46040]]

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 
product-based 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 product-specific 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-be-determined 
future date. Such action would ease the burden on users of these types 
of products. Moreover, once the

[[Page 46041]]

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

[[Page 46042]]

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

[[Page 46043]]

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,

[[Page 46044]]

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

[[Page 46045]]

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

[[Page 46046]]

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

[[Page 46047]]

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 ``double-dipping.'' 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

[[Page 46048]]

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

[[Page 46049]]

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

[[Page 46050]]

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 step-by-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

[[Page 46051]]

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

[[Page 46052]]

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 non-standard 
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

[[Page 46053]]

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

[[Page 46054]]

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/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states/, and for the 
Presidential Proclamation on Adjusting Imports of Aluminum into the 
United States, https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-aluminum-united-states/.
    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/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states/, and for the 
Presidential Proclamation on Adjusting Imports of Aluminum into the 
United States, https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-aluminum-united-states/.

[[Page 46055]]

    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

[[Page 46056]]

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]

0
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).

0
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

[[Page 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 [email protected]; and CBI for surrebuttals use 
[email protected].
    (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

[[Page 46058]]

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

[[Page 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

[[Page 46060]]

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 six-month 
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 [email protected] 
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- by-step 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

[[Page 46061]]

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 [email protected]; and CBI for surrebuttals use 
[email protected].
    (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

[[Page 46062]]

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

[[Page 46063]]

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.

[[Page 46064]]

    (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 six-month 
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 [email protected] 
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 step-by-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.

0
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

[[Page 46065]]

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 [email protected] 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 [email protected] 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