Continued from previous pageCommerce has improved its exclusion process since Hatch and Wyden sent a letter in April, including by introducing a formal rebuttal and surrebuttal process as well as exclusions from quotas applicable to steel and aluminum products from certain countries, the Monday letter states.
“At the same time, as stakeholders have advanced through the product exclusion process, additional flaws have surfaced where we believe DOC needs to make improvements,” Hatch and Wyden wrote. “American businesses report lengthy delays in the processing of exclusion requests; contradictory, incomplete or ambiguous guidance when DOC denies requests on technical grounds; and slow and unresponsive replies to their inquiries at DOC.”
While Commerce has targeted the timeline of 106 days to decide whether to grant requested exclusions, requests that were filed and posted as long ago as early April remain pending, a period more than double the 106 days targeted by Commerce, the senators said.
“Our assessments suggest that, of more than 29,700 posted requests awaiting decision as of December 10, more than 11,700 have been pending for more than 106 days, and more than 4,900 requests have been pending for more than 150 days,” the letter says. “Each passing day that an exclusion request sits undecided extends the uncertainty for American workers, businesses and their suppliers and customers.”
Further, businesses have told the committee that their product exclusion requests have been denied on the basis that Commerce deemed their requests incomplete or insufficient, but with no explanation of the technical deficiency, the senators wrote.
It would be “appropriate and consistent with due process and fairness” for Commerce to clearly identify defects to companies when it finds them in requests, the letter says.
Hatch and Wyden also called for Commerce to refund all Section 232 duties paid during the review period when it rejects a request on technical grounds but then finds a product exclusion is justified on the merits.
Finally, stakeholders have reported multiple problems with the designated Commerce email address for the steel product exclusion process, including response delays of several days, “form” answers from Commerce that don’t address specific questions and Commerce redirecting questions to U.S. Customs and Border Protection, which has redirected questions back to Commerce, sending stakeholders into a “bureaucratic loop,” the letter says.
Delays to action should be limited to “rare and extraordinary circumstances,” the senators said.
Hatch and Wyden requested a “prompt response” to their concerns, with a description of Commerce’s plans and actions to resolve them.
A Commerce spokesperson confirmed the agency has received the letter, but didn't comment further.