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Federal Register / Vol. 86, No. 234 / Thursday, December 9, 2021 / Rules and Regulations
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concerned that not only does granting GAEs for such steel and aluminum articles allow the company who submitted the exclusion request to import the steel or aluminum product tariff-free, it also opens the market to all companies who import that aluminum or steel product.
BIS response: Commerce agrees with these concerns and is addressing them in this interim final rule.
Changes Made in This Interim Final Rule To Improve the Section 232
Exclusions Process BIS is suspending 30 out of the 123
GAEs that became effective on December 29, 2020. This interim final rule implements these 30 suspensions by removing these GAEs from supplements no. 2 and no. 3 to part 705.
Commerce made this determination based on internal review of exclusions data which indicated that the articles specified in these 30 GAEs require further analysis by the Department.
Based on the results of this analysis, Commerce may reissue these GAEs in whole or in part with subsequent interim final rules. As noted in the December 14 rule, Commerce may periodically publish notices of inquiry in the Federal Register soliciting public comments on potential removals, revisions, or additions to the two supplements for GAEs. Based on Commerces experience with the initial tranche of GAEs, Commerce will likely publish notices prior to adding additional GAEs to help better inform Commerce decisions on what HTSUS
codes or specific products may warrant inclusion.
The steel and aluminum articles specified by these 30 GAEs as defined by their HTSUS Classifications will revert to the duties and treatment previously established under Presidential Proclamations 9704 and 9705 as well as subsequent Proclamations.
Commerce identified 26 steel GAEs and 4 aluminum GAEs for removal in this interim final rule. Commerce identified these GAEs based on review of its internal exclusions data in light of public comments received in response to the December 14 rule highlighting, as noted above, that articles under certain HTSUS codes were included as GAEs despite previously receiving objections and/or denials in the Section 232
Exclusions Portal.
Commerce issued the set of 123 GAEs based on its analysis of all of the exclusion requests received through the Section 232 exclusions process since its implementation on March 19, 2018. BIS
based the GAEs on the HTSUS codes
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that had never received an objection during the first thirty months of the Section 232 exclusions process, on the basis that the lack of objections indicated either an unwillingness or inability of domestic objectors to manufacture the articles classified under the HTSUS codes. Commerce conducted its analysis using data, drawn on a baseline date of September 12, 2020, from the Section 232
Exclusions Portal. The baseline date provided for thirty months of Section 232 submissions data covering nearly 240,000 of Section 232 submissions.
Based on the quantity and timespan of the data, Commerce concluded that all 123 HTSUS codes could be implemented as GAEs.
Since publishing the December 14
rule, Commerce has become aware that exclusion requests for steel and aluminum articles specified by 29 of the GAEs removed by this interim final rule25 steel GAEs and 4 aluminum GAEsreceived objections after September 12, 2020. In some but not all cases, the Department denied these exclusion requests. BIS is removing these 29 GAEs to conduct further analysis with updated data from the Section 232 Exclusions Portal. BIS, based on the results of this analysis, may reissue these GAEs in whole or part in subsequent rules. Commerce has also made internal process changes specific to the timing of data runs to ensure that the baseline date used for determining new GAEs is as close as possible to when any subsequent rule that adds or revises the GAEs is published. These internal process changes will allow Commerce, as needed, to remove GAEs from a rule prior to publication if it is determined that one or more of the GAEs or the HTSUS codes comprising the GAEs have received objections and/
or denials.
As a conforming change to a recent U.S. International Trade Commission ITC decision, this rule also removes one additional steel GAE. Specifically, the ITC 484f Committee retired HTSUS
Classification 7208390015 covered by GAE.92.S effective July 1, 2021. This rule removes GAE.92.S from the GAE
List.
In order to more efficiently address future ITC changes to the Harmonized Tariff Schedule of the United States, Commerce is adding a note to supplements no. 2 and no. 3 to specify how GAEs will be treated when the ITC
makes certain changes to the HTSUS
Classifications as part of their routine updates to the HTSUS with revisions including re-categorizations, modifications, and removals to/from the HTSUS Classifications. The note
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specifies that the list of the HTSUS
Classifications referenced in supplements no. 2 and no. 3 of GAEs is drawn from the Harmonized Tariff Schedule of the United States published on the ITC website and ITC Change Records for HTSUS Classifications compiled at https hts.usitc.gov/ and will be amended when the ITC
publishes subsequent Change Records.
The note added to supplements no. 2
and no. 3 specifies that if there are any discrepancies between the list of the HTSUS Classifications in the GAE List and the HTSUS Classifications identified by the ITC in the Harmonized Tariff Schedule of the United States and the associated Change Records, the ITCs list of HTSUS Classifications shall be controlling. The new note this rule adds to supplements no. 2 and no. 3
specifies that if an HTSUS Classification defining a GAE is split or otherwise modified by the ITC in the HTSUS, Commerce will extend the GAE to the newly created HTSUS Classifications, so long as the new child HTSUS
Classifications contain products falling entirely within the scope of the old parent HTSUS Classification. The new note added to supplements no. 2 and no. 3 also specifies that these types of inherited GAEs will be effective from the effective date of the change to the HTSUS, even prior to a Commerce rule being published to add the new HTSUS
number to one of the GAE lists under supplements no. 2 or 3. This note being added to supplements no. 2 and no. 3
will allow Commerce to instruct CBP to retain the GAE in the event of an HTSUS classification being modified even before Commerce is able to update and publish a revised GAE list under supplements no. 2 or no. 3. During the period after the effective date of the change to the HTSUS and before the GAE is updated, ACE will reject entries claiming the exclusion with the new HTSUS number and importers will have to make entry without the exclusion. In order for importers to preserve their rights, if any, to the exclusion with the new HTSUS number during this period, the note also advises importers to seek extensions of liquidation of the affected entries with CBP until Commerce is able to update and publish a revised GAE list under supplements no. 2 or no. 3.
Commerce has determined that the internal process changes implemented will address these issues that occurred during the selection of the GAEs included in the December 14 rule.
Additionally, as stated in the December 14 rule and above, Commerce may publish notices requesting comments on additions, removals, or modifications of
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