In December 2018, during the U.S. Court of International Trade oral argument in the proceeding in which the American Institute for International Steel challenged the Section 232 national security tariffs on steel as unconstitutional, Judge Kelly posed what was intended to be an extreme hypothetical, asking counsel for the U.S. Government whether the Section 232 statute could be construed to allow for a determination that imports of peanut butter threaten U.S. national security. Counsel for the U.S. Government did not directly address the question or otherwise acknowledge the absurdity of such a notion.
Fast forward nearly seven years, and we may soon have our answer. As a part of the Trump Administration’s second term expansion of the Section 232 tariff’s reach, parties may now request that the U.S. Department of Commerce add virtually any product to the list of steel or aluminum “derivatives” that could be made subject to 50% Section 232 tariffs. In the latest round of such requests, several organizations have requested that Commerce include the Harmonized Tariff Schedule code for peanut butter (as well as many other food and vegetable products) as derivatives of steel and aluminum that should be subject to the Section 232 tariff. If Commerce approves all inclusion requests submitted, as it did with the previous round of requests filed in May, then importers of peanut butter (and hundreds of other products from coffee, to fruit and nuts, to insecticides) will need to determine the steel and aluminum content of the imported article’s packaging and start paying 50% Section 232 tariffs on the value thereof.
Comments on these latest Section 232 inclusion requests are due by October 21, 2025. Based on Commerce’s practice thus far, filing comments in opposition is unlikely to deter Commerce from moving forward with including these products in the steel/aluminum derivatives list. However, this does not mean that Commerce’s action to include products that have absolutely nothing to do with national security is lawful. Companies willing to consider a legal challenge to Commerce’s inclusion request decisions should consider filing comments in opposition to these inclusions in order to preserve arguments for any potential court appeal. Our International Trade Group at Morris, Manning & Martin LLP is well positioned to assist companies with filing comments and litigating Section 232 matters.
