Trade Cases

Appeals for Tariff Exclusions Already in the Works

March 15, 2018

Companies that import steel products can apply for relief from President Trump’s tariff immediately, even before the Commerce Department issues formal procedures, recommends Washington trade attorney Lewis Leibowitz. “I see no reason to wait for detailed procedures to come out from Commerce. A letter to the Secretary should suffice to get started,” he said.

The Commerce Department is working on procedures for parties to apply for exclusion from the 25 percent tariff on steel imports signed by President Trump on March 8. The procedures are to be issued by March 18, 10 days from the president’s proclamation. The tariffs are scheduled to become effective on March 23.

The proclamation on steel sets out the following criteria for product exclusions: “[The Commerce Secretary] is hereby authorized to provide relief from the additional duties set forth in … this proclamation for any steel article determined not to be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality and is also authorized to provide such relief based upon specific national security considerations. Such relief shall be provided for a steel article only after a request for exclusion is made by a directly affected party located in the United States.”

There is some precedent for tariff exclusions. In the safeguard tariff regime of 2002-03, exclusions were granted on more than 400 products, Leibowitz said. Generally, duties were refunded retroactively after the exclusions were approved. “We don’t know if that will be repeated this time. The situation is very muddled.”

Parties seeking relief should base their claims on the key words in the proclamation: products not sufficiently available or of satisfactory quality in the U.S. Note that price is not mentioned as a criterion, Leibowitz said.

There are reports that companies and countries are already negotiating to be excluded from the tariffs, but no real sign of movement yet. Republican Sen. Jeff Flake of Arizona, an opponent of Trump’s tariffs on steel and aluminum, reportedly has introduced legislation to nullify them, though the bill’s text is not available, Leibowitz added.