Commerce Can Deduct US Price by Section 232 Duties in AD Reviews, CIT Rules

The Commerce Department can reduce an antidumping duty review respondent's U.S. price by the amount of their Section 232 duties paid, the Court of International Trade said in a Dec. 20 opinion. Commerce also doesn't have to notify the respondent that it intends to reduce the U.S. price by the amount of the Section 232 duties paid since notice and comment procedures don't apply to antidumping administrative procedures, Judge Jane Restani said.

The opinion came in a case over Commerce's final results in the administrative review of the antidumping duty order on rebar products from Mexico, in which plaintiff Deacero served as a mandatory respondent. In the review, Commerce treated the Section 232 duties paid by Deacero as U.S. import duties, deducting them from the company's U.S. price in the dumping calculation. Deacero argued that, like Section 201 duties, Section 232 duties are "special duties," and should thus not be deducted.

As it has ruled previously, the trade court said that Commerce is allowed to make such a reduction. Deacero argued that the language of the presidential proclamations imposing the Section 232 tariffs on goods from Mexico was the same as the antidumping duties on the goods, and so they were double counted in the dumping calculation. "This argument misses the point," Restani said. "There would only be impermissible double counting if there was clear statutory interplay between Section 232 duties and antidumping duties. Here, there is no such interplay. ... Antidumping duties continue after the President imposes Section 232 duties, and the duties are separate and distinct."

Deacero also argued that Commerce was required to notify it that the agency was going to deduct Section 232 duties from the company's export price and constructed export price and that not doing so violated the Administrative Procedure Act. "This court has repeatedly held that notice and comment procedures 'do not apply to antidumping administrative procedures, which mostly involve fact-based, investigative activities,'" the court said. "Here, Commerce was not required to engage in notice-and-comment rulemaking to deduct Section 232 duties from Deacero’s U.S. price. Notice-and-comment procedures do not apply in antidumping administrative procedures because they are fact-based, investigative activities."

(Deacero S.A.P.I de C.V., et al. v. United States, Slip Op. 21-171, CIT #20-03924, date 12/20/21, Judge Jane Restani. Attorneys: Rosa Jeong of Greenberg Traurig for plaintiffs; Ann Motto for defendant U.S. government; Maureen Thorson of Wiley Rein for defendant-intervenors Rebar Trade Action Coalition)