Section 232 Tariffs Aren't Remedial, DOJ Tells Federal Circuit

Just because Section 232 tariffs are placed in Chapter 99 of the Harmonized Tariff Schedule, this doesn't make them remedial tariffs, the Department of Justice told the U.S. Court of Appeals for the Federal Circuit in a Jan. 14 brief. The tariffs also aren't temporary, don't count as a double remedy and can be deducted from an antidumping duty respondent's export price, the brief said (Borusan Mannesman Boru Sanayi ve Ticaret v. U.S., Fed. Cir. #21-2097).

The case, originally brought to the Court of International Trade by Turkish exporter Borusan Mannesman, challenges the Commerce Department's final results in the administrative review of the ADD order on circular welded pipe and tube from Turkey. Borusan challenged Commerce's decision to reduce its U.S. price by the amount of Section 232 duties it paid on its exports. The trade court said that because the statute is ambiguous, Commerce is entitled to deference.

Borusan appealed and said that the Section 232 duties are housed in Chapter 99 of the HTS, making them remedial and thus "special" duties. "There is no express exception in the HTSUS revision in the Annex" to the presidential proclamation," DOJ said. "Thus, the placement of Section 232 duties in the HTSUS does not have an impact on their legal classification as 'U.S. import duties.'"

DOJ said that Borusan conceded that the CAFC ruled that the term "U.S. import duties" is ambiguous, lending "tremendous deference" to Commerce's interpretation of the term. "However, following its concession on this point, Borusan’s argument proceeds from a false premise -- that Section 232 duties are indistinguishable from [S]ection 201 duties," DOJ said. "After a thorough analysis, Commerce determined, and the trial court agreed, that Section 232 duties are not akin to Section 201 or antidumping duties."