Section 232 Exclusion Request Forms and Comments by Leibowitz

Below are some of the comments made to SMU by attorney Leibowitz on Monday, which you may want to consider as you go through the process of determining how you wish to proceed. At the end of his comments we have included Mr. Leibowitz’s contact information.

The Commerce Department interim rule on exclusion requests was published in today’s Federal Register—83 Fed. Reg. 12106-12112.  I attach a PDF copy.

1. Commerce also released four forms for requesting and opposing exclusion requests—two for steel and two for aluminum.  They are very similar but not identical.
   1. The exclusion request forms upload to a spreadsheet program.  The forms must be completed online.  I attach PDF versions for review, but the forms may NOT be sent in by mail.  They must be completed online.
   2. The forms call for very specific information—business confidential information should not be supplied because all information is public on the forms.
   3. Attachments are allowed (up to 25 pages).  Business confidential information may be supplied only on request of the Department of Commerce.  Be aware, however, that forms may be rejected if all the blanks are not filled in. 
2. A few highlights:
   1. Requests for exclusion may be filed at any time.
   2. Companies that oppose a request for exclusion must submit objections online within 30 days after the exclusion request is submitted.
   3. Each specific product must be the subject of a separate exclusion request.  Ranges for specifications may be provided in a single exclusion request; however, the range must be min-max rather than a percentage tolerance.
   4. Criteria for approval—not provided. 
   5. Availability: the form allows for description of products that (i) are not produced at all in the United States; (ii) produced but in insufficient quantities; (iii) not currently produced in the United States but under development; and (iv) requester attempted to purchase from a U.S. producer within the past two years.  Neither the form nor the interim regulation provide guidance as to whether a request will be granted if all information tends to support an exclusion. 
   6. Business confidential information: requesting parties and opposing parties must fill in the form completely.  Certain information provided may be confidential; if it is not provided, the request or objection may be rejected.
   7. Requests for exclusion must disclose the “annual quantity to be supplied in kilograms” and must name the current manufacturer(s) of the product. If the product is not purchased directly from the manufacturer, the intermediate supplier must be disclosed. 
   8. Exclusions, if granted, will apply only to the manufacturers and intermediate suppliers listed on the request form. 
   9. “Normally” the review process will take 90 days to complete.  The regulation and the forms are silent about the consequences of taking more than 90 days to evaluate a request.
   10. If a product is not produced in the United States, a domestic producer may claim that it can produce the product or a “substitute product that has similar form, fit, function, and performance” within a specified period of time at a particular facility.

Lewis Leibowitz

The Law Office of Lewis E. Leibowitz
1400 16^th Street, N.W.
Suite 350
Washington, D.C. 20036

Phone: (202) 776-1142
Fax: (202) 861-2924
Cell: (202) 250-1551