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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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The Department of Commerce has issued a <a href="https://www.govinfo.gov/content/pkg/FR-2020-05-26/pdf/2020-11173.pdf" target="_blank" rel="noopener noreferrer">Federal Register notice</a> seeking public comment on (1) the appropriateness of the information its Bureau of Industry and Security (BIS) requested and considered in applying the Section 232 exclusion criteria to product exclusion requests, and (2) the efficiency and transparency of the product exclusion process itself. This request for comment is related to the national security investigation President Donald Trump implemented pursuant to Section 232 of the Trade Expansion Act of 1962, as amended. In March 2018, the president issued two Presidential Proclamations implementing tariffs on certain steel and aluminum imports into the United States. See <a href="https://www.trumpandtrade.com/2018/03/president-trump-signs-proclamations-section-232-tariffs-aluminum-steel/">Trump and Trade Update of March 8, 2018</a>.&nbsp; Shortly thereafter, BIS released the requirements and procedures for requesting product-based exclusions from these tariffs. See <a href="https://www.trumpandtrade.com/2018/03/department-commerce-releases-requirements-requesting-product-based-exclusions-section-232-aluminum-steel-tariffs/">Trump and Trade Update of March 16, 2020</a>.
As of March 2020, BIS had received 179,128 exclusion requests (157,983 for steel and 21,145 for aluminum). Of these requests, 34,970 have been rejected and 33,297 received objections. BIS has posted 114,009 decisions, with 78,569 exclusions granted and 25,440 exclusion requests denied. Over the course of the exclusion review process, Commerce has received numerous complaints from Congress and the public about the manner in which reviews have been considered and the lack of any meaningful transparency. In October 2019, in fact, Commerce&rsquo;s Inspector General issued a &ldquo;management alert&rdquo; over concerns about the &ldquo;lack of transparency that contributes to the appearance of improper influence in decision-making&rdquo; for the Section 232 steel and aluminum tariff exclusion process. See <a href="https://www.trumpandtrade.com/2019/10/department-of-commerces-inspector-general-issues-alert-on-lack-of-transparency-in-section-232-tariff-exclusion-process/">Trump and Trade Update of October 31, 2019</a>.
With this Federal Register notice, BIS is seeking public input on the process and is interested in comments on: (1) the information sought on the exclusion request, objection, rebuttal and surrebuttal forms; (2) expanding or restricting eligibility requirements for requestors and objectors; (3) the Section 232 Exclusions Portal; (4) the requirements set forth in Federal Register notices, <a href="https://www.govinfo.gov/content/pkg/FR-2018-03-19/pdf/2018-05761.pdf" target="_blank" rel="noopener noreferrer">83 FR 12106</a>, <a href="https://www.govinfo.gov/content/pkg/FR-2018-09-11/pdf/2018-19662.pdf">83 FR 46026</a>, and <a href="https://www.govinfo.gov/content/pkg/FR-2019-06-10/pdf/2019-12254.pdf" target="_blank" rel="noopener noreferrer">84 FR 26751</a>; 5) the factors considered in rendering decisions on exclusion requests; 6) the information published with the decisions; 7) the BIS website guidance and training videos; 8) the definition of &ldquo;product&rdquo; determining when separate exclusion requests must be submitted; and 9) the incorporation of steel and aluminum derivative products into the product exclusion process. BIS will also accept comments on potential revisions to the exclusion process and any specific details about commenters&rsquo; experiences with the exclusion/objection process.
Public comments will be accepted until July 10, 2020. Any comments should be submitted via the eRulemaking portal at <a href="http://www.regulations.gov/" target="_blank" rel="noopener noreferrer">www.regulations.gov</a> on Docket no. BIS-2020-0012.

core/freeform

SmarTrade

Senior Legislative and Regulatory Policy Advisor

Scott E. Diamond

Commerce Seeks Comments on the Product Exclusion Process for Section 232 Steel and Aluminum Tariffs