Supplement No. 1 to Part 705 - Requirements for Submissions Requesting Exclusions From the Remedies Instituted in Presidential Proclamations 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 duties and quantitative limitations imposed 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 methods of submission, and the information that must be included in such submissions. This supplement references two different methods of submission for 232 submissions: One based on a legacy system used for 232 submissions (www.regulations.gov), and a second system based on a new portal developed by the U.S. Department of Commerce (232 Exclusions Portal), for receiving, managing and responding to 232 submissions. The regulations.gov system must be used for all exclusion requests submitted no later than June 12, 2019. Thereafter, beginning on June 13, 2019, all exclusion requests must be submitted on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). Objections, rebuttals, and surrebuttals must always be filed on the system where the exclusion request was submitted, whether in www.regulations.gov or in the 232 Exclusions Portal. For example, if the exclusion request was submitted in www.regulations.gov, any objections, rebuttals, and surrebuttals pertaining to that exclusion request would also only be submitted in www.regulations.gov. Conversely, if the exclusion request was submitted in the 232 Exclusions Portal, any objections, rebuttals, and surrebuttals pertaining to that exclusion request would also only be submitted in the 232 Exclusions Portal. The use of regulations.gov for the 232 exclusions process will end once all exclusion requests submitted to regulations.gov no later than June 12, 2019 have completed the 232 exclusions process pursuant to this supplement - meaning the exclusion, objection, rebuttal, and surrebuttal process have been completed and the U.S. Department of Commerce has made a final disposition of the 232 submissions.

(b) Required forms. For any exclusion request to be submitted no later than June 12, 2019, 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. For any exclusion request to be submitted on or after June 13, 2019, the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations) includes four web-based forms that are to be used for submitting exclusion requests, objections to exclusion requests, rebuttals, and surrebuttals described in this supplement. On the 232 Exclusions Portal, each web-based form is available on the portal at the bottom of the preceding filing. For example, a party submitting an objection will access the objection form by scrolling to the bottom of the exclusion request, the rebuttal filer will access the rebuttal form by scrolling to the bottom of the objection form, and the surrebuttal filer would access the surrebuttal form by scrolling to the bottom of the rebuttal form. 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) of this supplement for submitting rebuttals and surrebuttals. In addition, submitters of exclusion requests, objections to submitted exclusion requests, rebuttals, and surrebuttals to the 232 Exclusions Portal will be required to complete a web-based registration on the 232 Exclusions Portal prior to submitting any documents. In order to register, submitters will be required to provide an email and establish a password for the account. After completing the registration, submitters will be able to login to an account on the 232 Exclusions Portal and submit exclusion requests, objections, rebuttals and surrebuttal documents.

(1) Form required for submitting exclusion requests. The full 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. The Title of the web-based fillable form in the 232 Exclusions Portal is Exclusion Request.

(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. The Title of the web-based fillable form in the 232 Exclusions Portal is Objection.

(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. The Title of the web-based fillable form in the 232 Exclusions Portal is Rebuttal.

(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. The Title of the web-based fillable form in the 232 Exclusions Portal is Surrebuttal.

Note to paragraphs (b)(1) through (4):

On the 232 Exclusions Portal, each exclusion request is assigned a distinct ID #, which is also used with its associated 232 submissions, but preceded with an acronym indicating the file type: Exclusion Requests (ER ID #), Objection (OF ID #), Rebuttals (RB ID #) and Surrebuttals (SR ID #). For an example of the four possible types of 232 submissions associated with a single exclusion request, you could have ER ID 237, OF ID 237, RB ID 237 and SR ID 237. The 232 Exclusions Portal will automatically assign the two letter designator depending on the type of web-based form being submitted in the portal and will assign an ID number to the original exclusion request and that ID number will be common to any objection, rebuttal, or surrebuttal submitted pertaining to the same exclusion request.

(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 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 or in the 232 Exclusions Portal, 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 [e-mail]; and CBI for surrebuttals use [e-mail].

(B) For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted no later than June 12, 2019, the email subject line must only include the original regulations.gov 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. For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted on or after June 13, 2019, the email subject line must only include the original 232 Exclusions Portal Exclusion Request (ER) ID # and the body of the email must include the 232 Exclusions Portal Rebuttal (RB) ID #, or Surrebuttal (SR) ID # you received from the 232 Exclusions Portal when you successfully submitted your rebuttal or surrebuttal. These naming conventions used in www.regulations.gov and in the 232 Exclusions Portal, respectively, will assist the U.S. Department of Commerce to associate the CBI that will not be posted in regulations.gov or in the 232 Exclusions Portal, 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 or in the 232 Exclusions Portal following the procedures identified in this supplement, as appropriate.

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. Parties intending to request an exclusion from quantitative limitations applicable to imports of items classified under subheading 9903.80.57 of subchapter III of chapter 99 of the HTSUS for Brazil should consult paragraph (j) of this supplement prior to submitting an exclusion request.

(3) Where to submit exclusion requests? All exclusion requests submitted no later than June 12, 2019 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. All exclusion requests submitted on or after June 13, 2019, must be submitted directly on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).

(4) No time limit for submitting exclusion requests. Exclusion requests may be submitted at any time, but the date of submission determines whether an exclusion request must be submitted via regulations.gov or via the new 232 Exclusions Portal, as indicated in paragraph (c)(3) of this supplement. The U.S. Department of Commerce will reject, and require resubmission using the correct submission method, of any exclusion request that does not use the correct submission method specified in this supplement based on the date of submission. Strict adherence to the correct submission method based on the date of an exclusion request's submission is required to ensure the efficient, fair, and transparent processing of exclusion requests during the transition period by the U.S. Department of Commerce, and to enable the Department to complete the transition to the 232 Exclusions Portal as quickly as possible.

(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 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 -

(i) Objections to submitted exclusion requests in regulations.gov. When submitting an objection to an exclusion request that was submitted no later than June 12, 2019, 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 by Company A on March 15, 2018, 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.

(ii) Objections to submitted exclusion requests in the 232 Exclusions Portal. When submitting an objection to a submitted exclusion request that was submitted on or after June 13, 2019, the objector must locate the exclusion request and submit the objection in response to the request directly in the 232 Exclusions Portal. Once the relevant exclusion request has been located, an individual or organization that would like to submit an objection will access the objection form by scrolling to the bottom of the exclusion request form and then filling out the web-based form for submitting their objection to the exclusion request in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).

(3) Time limit for submitting objections to submitted exclusions requests. All objections to submitted exclusion requests that were submitted no later than June 12, 2019 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. All objections to submitted exclusion requests that were submitted on or after June 13, 2019, must be submitted directly on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations) 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) or in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). 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 -

(i) Identification of rebuttals in regulations.gov. 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 Federal rulemaking portal (http://www.regulations.gov). See Annex 1 to Supplements No. 1 and 2 to this part 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.

(ii) Identification of rebuttals in 232 Exclusions Portal. When submitting a rebuttal, the individual or organization that submitted the exclusion request will access the rebuttal form by scrolling to the bottom of the objection form and then filling out the web-based form for submitting their rebuttal to the objection in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).

(2) Format and size limitations for rebuttals. Similar to the exclusions process identified under paragraph (c) of this supplement 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) of this supplement. The rebuttal must be in writing and submitted in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. 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 the posting of the last objection in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. 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 or in the 232 Exclusions Portal. 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 September 18, 2018, to serve as the start date for the review periods identified in paragraph (f)(4) of this supplement 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) of this supplement) posted to their objection to an exclusion request in the Federal rulemaking portal (http://www.regulations.gov) or in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). 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 -

(i) Identification of surrebuttals in regulations.gov. 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 this part 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 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.

(ii) Identification of surrebuttals in the 232 Exclusions Portal. When submitting a surrebuttal, the individual or organization that submitted the objection will access the surrebuttal form by scrolling to the bottom of the rebuttal form and then filling out the web-based form for submitting their surrebuttal to the rebuttal in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).

(2) Format and size limitations for surrebuttals. Similar to the exclusions process identified under paragraph (c) of this supplement, the objection process identified under paragraph (d) of this supplement, and the rebuttal process identified under paragraph (f) of this supplement, the surrebuttal process requires the submission of a government form as specified in paragraph (b)(4) of this supplement. The surrebuttal must be in writing and submitted in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. 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 the posting of the last rebuttal to an objection to an exclusion request in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. 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 or in the 232 Exclusions Portal. 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 -

(A) Responses in regulations.gov. The U.S. Department of Commerce will post responses (decision memos) in regulations.gov to each exclusion request submitted no later than June 12, 2019 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.

(B) Responses in the 232 Exclusions Portal. The U.S. Department of Commerce will post responses (decision memos) in the 232 Exclusions Portal to each exclusion request submitted on or after June 13, 2019. 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 through the 232 Exclusions Portal.

(ii) Streamlined review process for “No Objection” requests. The U.S. Department of Commerce will 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 or in the 232 Exclusions Portal (based on which submission method was used for the submission of the exclusion request) has expired and no objections have been submitted, BIS will immediately assess the request for any national security concerns. If BIS identifies no national security concerns, it will post a decision granting the exclusion request on regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal.

(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 or in the 232 Exclusions Portal, based on which submission method was used for the submission of the exclusion request. 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.

(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 either regulations.gov or in the 232 Exclusions Portal, 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 [phone] or [e-mail] regarding steel exclusion requests. See Annex 1 to Supplements Nos. 1 and 2 to this part for application issues that are specific to using www.regulations.gov for submitting rebuttals and surrebuttals under these two supplements for exclusion requests submitted no later than June 12, 2019. 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. The U.S. Department of Commerce has also included a manual providing instruction on the 232 Exclusions Portal for exclusion requests submitted on or after June 13, 2019, titled 232 Exclusions Portal Comprehensive Guide (“232 Exclusions Guide”) and posted online at (https://www.commerce.gov/page/section-232-investigations) to assist your understanding when making 232 submissions in the 232 Exclusions Portal.

(j) Certification for requesting relief from quantitative limitation for Brazil. Brazil is a country subject to quantitative limitations for steel articles. Pursuant to Proclamation 10064 of August 28, 2020, the United States will lower, for the remainder of 2020, one of the quantitative limitations set forth in Proclamation 9759 of May 31, 2018 (Adjusting Imports of Steel Into the United States) applicable to certain steel articles imported from Brazil in order to protect U.S. national security interests. President Trump in Proclamation 10064 noted that he has been informed that a reduction in this quantitative limitation set forth in Proclamation 9759 applicable to steel article imports from Brazil may delay or disrupt specific production activities in the United States for which imports of steel articles covered by this quantitative limitation have already been contracted for delivery in the fourth quarter of 2020. In light of these circumstances, and after considering the impact on the economy and the national security objectives of section 232 of the Trade Expansion Act of 1962, as amended, President Trump in Proclamation 10064 directed the Secretary to provide relief from this modified quantitative limitation in certain limited circumstances that are specified in Proclamation 10064 and repeated in this paragraph (j). This authority is in addition to the relief from the quantitative limitations that the Secretary is already authorized to provide pursuant to clause 1 of Proclamation 9777 of August 29, 2018 (Adjusting Imports of Steel Into the United States), and involves different exclusion criteria and procedures. This paragraph (j) describes what must be done to obtain this relief, how the U.S. Department of Commerce reviews these requests for relief, the administration and use of granted requests of relief, and when revocation of grants of relief may occur.

(1) Sworn statement required to grant relief. The Secretary will grant relief from the modified quantitative limitation applicable to imports of steel articles classified under subheading 9903.80.57 of subchapter III of chapter 99 of the HTSUS from Brazil only upon receipt of a sworn statement signed by the chief executive officer and the chief legal officer of the party requesting relief, attesting to the following criteria:

(i) The steel article for which relief is sought, (insert description here of the steel article by HTS classification and Chapter 99 quota category HTS classification), and the associated contract or other written agreement meet the criteria for relief set forth in clause 2(i) through (iv) of Proclamation 10064, described here under paragraphs (j)(1)(i)(A) through (D) of this supplement:

(A) The party requesting relief entered into a contract or other written agreement for the production and shipment of such steel article before August 28, 2020;

(B) Such agreement specifies the quantity of such steel article that is to be produced and shipped to the United States prior to December 31, 2020;

(C) Such steel article is to be used in production activities in the United States and such steel article cannot be procured from another supplier to meet the delivery schedule and specifications contained in such agreement; and

(D) Lack of relief from the quantitative limitation on such steel article would significantly disrupt the production activity in the United States for which the steel article specified in such agreement is intended;

(ii) The party requesting relief will accurately report to U.S. Customs and Border Protection (CBP), in the manner that CBP prescribes, the quantity of steel articles entered for consumption, or withdrawn from warehouse for consumption, pursuant to any grant of relief; and

(iii) The quantity of steel articles entered pursuant to a grant of relief will not exceed the quantity for which the Secretary has granted relief.

(2) Where to submit requests for grants of relief? All exclusion requests for grants of relief pursuant to this paragraph (j) must be in electronic form and submitted to BIS by email: [e-mail]. In order to submit a request for a grant of relief, you must submit your request for a grant of relief as an attachment to the email sent to [e-mail]. The only documentation required for a request for a grant of relief is the sworn statement required under paragraph (j)(1) of this supplement. There are no objection, rebuttal, or surrebuttal submissions or review periods, and no provisions of the exclusion request process specified in this supplement apply except those provided in this paragraph (j).

(3) Disposition of requests for grants of relief. The U.S. Department of Commerce will grant requests for relief that meet the criteria specified in paragraphs (j)(1) and (2) of this supplement until such time as the maximum quantity under this relief program is met, and will post granted requests publicly on the BIS website as described below. In Proclamation 10064 under clause 2, President Trump specified that the volume of imports for which the Secretary grants relief under this clause shall not exceed 60,000,000 kilograms in the aggregate and this paragraph (j)(3) imposes this same limitation. The Department will use a “first submitted, first approved” process until such time as the maximum aggregate limit has been approved and will not accept submissions after this limit is reached. The Secretary will notify CBP of any grant of relief made pursuant to this proclamation.

Note to paragraph (j)(3):

Denials will occur if the sworn statement does not meet all of the requirements specified in paragraphs (j)(1) and (2) of this supplement, or will be denied to the extent the amount of imports for which the Secretary has granted relief under this paragraph (j)(3) would exceed 60,000,000 kilograms in the aggregate. Once the aggregate amount of approved grants for relief reaches 60,000,000 kilograms, the U.S. Department of Commerce will post a statement on the BIS website under www.bis.doc.gov/232-steel-Brazil to alert other requesters that the aggregate limit has been reached, and no more requests will be approved.

(4) Administration and use of granted requests of relief. Any relief granted under paragraph (j)(3) of this supplement will only be valid if the subject steel article is entered for consumption, or withdrawn from warehouse for consumption, on or before December 31, 2020. Where a party has received relief under the provisions of this paragraph (j), they are not eligible for further relief under clause 1 of Proclamation 9777 prior to January 1, 2021, for the same steel article pursuant to an exclusion request submitted under paragraph (c) of this supplement.

(5) Revocation of grants of relief. The Secretary of Commerce will revoke any grant of relief under paragraph (j)(3) of this supplement if the Secretary determines at any time after such grant that the criteria for relief to which the party must attest under paragraphs (j)(1)(i) through (iii) of this supplement have not been met and may, if the Secretary deems it appropriate, notify the Attorney General of the facts that led to such revocation.

Effective Date Note

Effective Date Note:

At 85 FR 64382, Oct. 13, 2020, supplement 1 to part 705 was amended by revising the heading, and by adding a sentence to the end of the Note to paragraph (c)(2) and adding paragraph (j), effective until Dec. 31, 2020.