• Trump’s Steel and Aluminum Tariffs Take Effect; Exclusion Process Defined
  • April 18, 2018 | Authors: Marc C. Hebert; Thomas Eamon Slattery
  • Law Firm: Jones Walker LLP - New Orleans Office
  • The Trump administration has moved forward with implementing the tariff regime on steel and aluminum pursuant to the U.S. Department of Commerce’s (Commerce) finding in a 232 investigation. President Trump’s steel and aluminum tariff proclamations, announced March 8, were formally published in the Federal Register on March 15, 2018, along with annexes containing further detail about the products covered by the tariffs.

    Shortly thereafter, on March 19, 2018, Commerce published an “interim final rule” taking immediate effect and specifying the requirements and process by which affected parties may submit applications for product exclusions from the tariffs (the application processes are specific to product-exclusion applications – they do not apply to applications for country-based exclusions[1]).[2] The process includes the opportunity for the submission of third-party objections to exclusion requests. There also is no time limit for submitting product-exclusion requests to Commerce.

    The tariffs take effect March 23 at 12:01 a.m. ET and will apply to the covered products from all countries except Canada and Mexico.

    Product Scope: The Proclamations and Annexes

    The proclamations and annexes provide specific harmonized tariff schedule (HTS) heading numbers for steel and aluminum products covered by the tariffs. The annexes list the following HTS numbers covering the subject products:

    Steel:

    • flat-rolled products provided for in headings 7208, 7209, 7210, 7211, 7212, 7225 or 7226;
    • bars and rods provided for in headings 7213, 7214, 7215, 7227 or 7228; angles, shapes and sections of 7216 (except subheadings 7216.61.00, 7216.69.00 or 7216.91.00); wire provided for in headings 7217 or 7229; sheet piling provided for in subheading 7301.10.00; rails provided for in subheading 7302.10; fish-plates and sole plates provided for in subheading 7302.40.00; and other products of iron or steel provided for in subheading 7302.90.00;
    • tubes, pipes and hollow profiles provided for in heading 7304 or 7306; tubes and pipes provided for in heading 7305;
    • ingots, other primary forms and semi-finished products provided for in heading 7206, 7207 or 7224; and
    • products of stainless steel provided for in heading 7218, 7219, 7220, 7221, 7222 or 7223.

    Aluminum:

    • unwrought aluminum provided for in heading 7601;
    • bars, rods and profiles provided for in heading 7604; wire provided for in heading 7605;
    • plates, sheets and strip provided for in 7606; foil provided for in heading 7607;
    • tubes, pipes, and tube or pipe fittings provided for in heading 7608 and 7609; and
    • castings and forgings of aluminum provided for in subheading 7616.99.51.

    The Product-Exclusion Process

    Two grounds for product exclusion are available: (1) unavailability of the product in the United States (based on quantity or quality of available product) and (2) “specific national security considerations.”

    Only individuals or organizations that use the identified articles in their business activities in the United States may make product-exclusion requests to Commerce. In order to receive product exclusions, these parties must make a separate application to Commerce “on each distinct type and dimension of product to be imported.” The application requires detailed product specifications and applicant information, and because the applications will be publicly available, applicants should take care not to include any sensitive or confidential information in their applications.

    The parameters under which exclusions will be granted are tight, and approvals will be limited to the individual or organization that submits the specific exclusion request unless Commerce explicitly adopts a broader application. Thus, an exclusion will be applicant-specific and entitle only the applicant to tariff-free importation of the subject article unless Commerce indicates otherwise. As a corollary, individuals or companies are free to make an application for product exclusion even if Commerce has previously denied an application for a like product; these applicants are strongly encouraged to include information that is new or different from that in the denied applications.

    Any party in the United States may file an objection to product-exclusion requests no later than 30 days after the related exclusion requests are posted.

    Commerce is expecting several thousand applications for exclusions to be filed in the upcoming weeks. Even if a product is covered by an existing antidumping or countervailing duty order, an exclusion request may be made for that product. Anyone filing an exclusion request must be sure to include sufficient information for Commerce to clearly distinguish the imported product (by quality and use characteristics) from what would or could be a competing domestic product.