More Products Could Fall Under Section 232 Tariffs for Steel and Aluminum, Attorneys Suggest

Roll explained how the Trump administration started a process in May asking the public to indicate which products and which tariff codes should be added to the list of goods subject to Section 232 duties.

What followed was that the government then proceeded to add more goods to the Section 232 tariffs for steel and aluminum in August (see 2508150060).

The government "rubber-stamped" over 400 requests for new additions in August, and it only rejected about 60 requests despite receiving comments expressing concern over the new additions, Roll said.

The government is poised to accept more inclusion requests in similar processes scheduled to begin in September and January, he continued.

"I predict they'll all be rubber-stamped as well," Roll said. "You've got to keep an eye on those dockets, because if your tariff code today is not subject to aluminum, steel or copper tariffs, it could be tomorrow," he continued. He added that "I wouldn't be surprised if somebody sues" over the legality of this process.

Separately, during a Sept. 4 webinar sponsored by the Laredo Licensed U.S. Customs Brokers Association, trade attorney Jay Acayan fielded a question about what happens if a good is subject to Section 232 tariffs on steel and aluminum but is 100% iron.

On one hand, CBP currently states that such a product is not subject to Section 232 tariffs, Acayan said. CBP says so in its Frequently Asked Questions on Section 232 tariffs for steel and aluminum.

However, "things are constantly changing. They've changed again ... in the newest executive orders we have -- I know everybody who makes iron products has noticed this -- the word iron has crept into the determination of iron and steel. It's no longer just steel," Acayan said.

The published guidance seems to indicate that iron and steel are defined as being interchangeable, Acayan said. However, in the trade, they are not interchangeable. Iron is an element, while steel is an iron alloy that contains carbon, he said. Iron pipes aren't used in drilling rigs because the iron is malleable, so carbon is put into the iron to create an alloy that's stronger than iron.

"My advice at this minute is you don't pay [Section] 232 duties on it. Except that might change, and that's the part I don't think anybody's going to like. It probably will change," Acayan said. "The reason is that the current 232 language says iron and steel. So I think that what's probably going to happen, is that the current administration is going to try to slip that in."

In the Deringer webinar, Roll acknowledged that there still are many questions about import compliance for which CBP needs to provide the trade with additional guidance. One is obtaining the correct valuation of a product's Section 232 content.

"I think it's going to be some time before Customs really figures out what a Wild, Wild West it is out there in terms of people getting values. A lot of people don't know what to do. We don't have the answers also -- full disclosure -- for every situation," Roll said. "We try to craft a solution, but a lot of times, especially with ... all different suppliers and different melts and pours, it can get not as precise as we would all like, or maybe as Customs would like.

"But at the end of the day, the importing person is at the mercy of your suppliers giving you accurate information," Roll continued. To ensure they do, the importer must make sure they do so "through education, through making them be ones who are going to feel the pain. Contractually, you have to tell them this is going to be your problem. Our tariffs depend on that, our landed costs and our whole cost structure is dependent on you, supplier, giving the accurate information."