Steel Exporter Pushes for No Section 232 Deduction in AD Case After Transpacific CIT Decision
The Commerce Department was wrong to not remove a Section 232 steel tariff adjustment in an antidumping duty calculation in light of the Court of International Trade's opinion finding the tariff hike on Turkish steel was illegal, Turkish steel importer Borusan Mannesmann Boru Sanayi ve Ticaret said in a Sept. 2 brief. Following CIT's decision in Transpacific Steel LLC, et al. v. United States, Commerce should not have deducted the cost of the duties from Borusan's U.S. price in an antidumping case, the exporter argued. Borusan also again argued that Section 232 duties should not be deducted from the U.S. price since, like Section 201 duties, they are remedial, temporary and would be double-counted if deducted (Borusan Mannesmann Boru Sanayi ve Ticaret A.S., et al. v. United States, CIT #21-00132).
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Borusan is challenging elements of the 2018-19 administrative review of the antidumping duty order on circular welded carbon steel standard pipe and tube products from Turkey. During the review, the exporter said it kept Commerce apprised of the status of the Transpacific litigation, but received no follow-up questions from the agency.
Perhaps Borusan's argument would have been met with less resistance if the ruling in the Transpacifc case was final. But the U.S. Court of Appeals for the Federal Circuit reversed this decision in July, finding that the president's decision to hike the Turkish steel tariffs from 25% to 50% was permitted (see 2107130059). So long as the action is part of a continuous "plan of action" concurrent with its original purpose identified in the report from Commerce to the president, action beyond procedural deadlines is permitted, the appellate court said.
Borusan noted this reversal in its motion for judgment, but pointed out that the Federal Circuit's decision is not final since Transpacific, and others, moved for a full court rehearing of the case (see 2108250022). "Significantly, the unlawfully collected section 232 duties were refunded for the entries of standard pipe on appeal, and Commerce’s deduction of section 232 duties in excess of those actually imposed is unlawful," the brief said.
"Commerce may not lawfully refuse to give effect to a decision that was made by a three-judge panel of this Court," Borusan said. "The fact that this Court and the Federal Circuit denied the Government’s motion to stay enforcement of the judgment underscores that decisions of this Court are effective upon the entry of judgment. In the absence of a stay, final decision by this Court must be given effect. In any event, it is likely that the Transpacific litigation will become final at some point during the pendency of this litigation. Commerce’s first rationale for continuing to deduct the unlawfully collected section 232 duties will no longer apply at that point."