On April 21, 2020, Barnes, Richardson & Colburn LLP opened a new line in the challenges to Section 232 duties on steel and aluminum products. In this case, brought on behalf of a Michigan-based importer, the challenge is directed at the exclusion process implemented by the Commerce Department. Specifically, because Section 232 exclusions are not applicable to all importers of the same product and are not implemented by changes to the Harmonized Tariff Schedule, the exclusions result in the HTS items being non-uniform in their application to importers of merchandise classified under the same tariff item. This system is contrary to the constitutional requirement that “all Duties, Imposts and Excises shall be uniform throughout the United States . . . .”
We believe that companies that continue to pay 232 duties for merchandise classified in an HTSUS item for which another entity has received an exclusion are at a competitive disadvantage and may be entitled to have the same tariff treatment applied to their imports. If your company is paying 232 duties on merchandise classified in a tariff item for which a competitor or other entity has secured an exclusion, contact a BRC attorney to discuss whether you might be eligible for a refund.