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Federal Register / Vol. 86, No. 213 / Monday, November 8, 2021 / Notices
Secretary provide notice to the Secretary of Defense that such an investigation has been initiated. Section 232 b2A
also requires the Secretary to do the following:
1 consult with the Secretary of Defense regarding the methodological and policy questions raised in the investigation;
2 seek information and advice from, and consult with, appropriate officers of the United States; and 3 if it is appropriate and after reasonable notice, hold public hearings or otherwise afford interested parties an opportunity to present information and advice relevant to such investigation. 10

As detailed in Part III of this report, each of the legal requirements set forth above has been satisfied.
In conducting the investigation, Section 232 permits the Secretary to request that the Secretary of Defense provide an assessment of the defense requirements of the article that is the subject of the investigation. See 19
U.S.C. 1862b2B.
Upon completion of a Section 232
investigation, the Secretary is required to submit a report to the President no later than 270 days after the date on which the investigation was initiated.
See 19 U.S.C. 1862b3A. The required report must:
1 Set forth the findings of such investigation with respect to the effect of the importation of such article in such quantities or under such circumstances upon the national security;
2 set forth, based on such findings, the recommendations of the Secretary for action or inaction under this section; and 3 if the Secretary finds that such article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security . . . so advise the President . . .

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Id.
Department regulations require that an executive summary of the report, excluding any classified or proprietary information, be published in the Federal Register. Copies of the full report, excluding any classified or proprietary information, must be available for public inspection and copying. See 15 CFR 705.10.
Within 90 days after receiving a report in which the Secretary finds that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair 10 See
19 U.S.C. 1862b2A. Department regulations i set forth additional authority and specific procedures for such input from interested parties, see 15 CFR 705.7705.8, and ii provide that the Secretary may vary or dispense with those procedures in emergency situations, or when in the judgment of the Department, national security interests require it. Id. at 705.9.

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the national security, the President shall:
1 determine whether the President concurs with the finding of the Secretary;
and 2 if the President concurs, determine the nature and duration of the action that, in the judgment of the President, must be taken to adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security. See 19 U.S.C. 1862c1A.

B. Discussion Section 232 does not contain a definition of national security.
However, both Section 232 and its implementing regulations at 15 CFR part 705 contain non-exclusive lists of factors that the Secretary must consider in evaluating the effect of imports on the national security. Congress in Section 232 explicitly provides that national security includes, but is not limited to, national defense requirements. See 19
U.S.C. 1862d. In the 2001 Report, the Department determined that national defense includes both defense of the United States directly and the ability to project military capabilities globally. 11
The Department also concluded in the 2001 Report that in addition to the satisfaction of national defense requirements, the term national security can be interpreted more broadly to include the general security and welfare of certain industries, beyond those necessary to satisfy national defense requirements that are critical to the minimum operations of the economy and government. 12 This report, like the 2018 Steel Report and 2018 Aluminum Report, uses these reasonable interpretations of national defense and national security. 13
Section 232 directs the Secretary to determine whether imports of any article are being made in such quantities or under such circumstances that those imports threaten to impair the national security. See 19 U.S.C.
1862b3A. The statutory construction makes clear that either the quantities or the circumstances, standing alone, may be sufficient to support an affirmative finding. They may also be considered together, particularly where the circumstances act to prolong or magnify the impact of the quantities being imported.
The statute does not define a threshold for when such quantities of imports are sufficient to threaten to 11 2001 Report at 5 supra n. 3. See also 2018
Steel Report at 13; 2018 Aluminum Report at 12
13.
12 Id.
13 See 2018 Steel Report at 1314; 2018
Aluminum Report at 13.

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impair the national security, nor does it define the circumstances that might qualify. Likewise, the statute does not require a finding that the quantities or circumstances are currently impairing the national security. Instead, the threshold question under Section 232 is whether the importation of such article in such quantities or under such circumstances threaten to impair the national security. See 19 U.S.C.
1862b3A emphasis added. This formulation strongly suggests that Congress expected that an affirmative finding under Section 232 would occur before there is actual impairment of the national security.
Additionally, in Section 232 Congress explicitly directed the Secretary to consider the impact of foreign competition and the displacement of any domestic products by excessive imports in determining whether the weakening of our internal economy may impair the national security, but made no reference to an assessment of the sources of imports. Therefore, it appears likely that Congress recognized adverse impacts might be caused by imports from allies or other reliable sources. As a result, the fact that some or all of the imports causing the harm are from reliable sources does not compel a finding that those imports do not threaten to impair national security.
Indeed, as this report finds, the imports that threaten to impair the national security largely come from allies of the United States. However, as discussed further in Section VI.C, the United States cannot be certain of its ability to access intellectual property needed to maintain technological superiority and assure the ability to cost-effectively project U.S. military power when that intellectual property is under foreign ownership and control.
Section 232d contains a considerable list of factors for the Secretary to consider in determining if imports threaten to impair the national security 14 of the United States, and this list is mirrored in the implementing regulations. See 19 U.S.C. 1862d and 15 CFR 705.4. Congress was careful to note twice in Section 232d that the list it provided, while mandatory, is not exclusive.15
Congress broke the list of factors into two parts using two separate sentences.
14 19

U.S.C. 1862b3A.
19 U.S.C. 1862d The Secretary and the President shall, in light of the requirements of national security and without excluding other relevant factors . . . This section also provides that other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors. . . emphasis added.
15 See
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