At a Glance
- Under Section 232 actions, unlike IEEPA, the president does not act unilaterally in determining whether the imposition of trade restrictions is appropriate; rather the law requires that the president first direct an investigation by the U.S. Department of Commerce before any duties can attach.
- The Department of Commerce has 270 days to investigate the imports at issue per the direction of the president, but the investigation and report can be issued with less time.
- Parties may wish to consider taking advantage of the comment opportunities to advocate for exclusions and limited application of these potential tariffs by either commenting under their own name to preserve rights for litigation or by working through a trade association.
Overview of Section 232 Actions
While President Trump has often utilized the International Emergency Economic Powers Act (IEEPA) to levy tariffs during the recent onslaught of tariff action, Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. § 1862) (Section 232) has also proven a select tool for the president during both his first term in office and now.
Unlike IEEPA, which does not provide the express authority to implement tariffs and is currently being challenged in court on those grounds, Section 232 does provide express authority to the president to impose trade restrictions, such as tariffs or quotas, on imports that are determined to threaten national security. Notably, “national security” is not defined within the statute, which allows for broad interpretations by the courts and law makers.
Under Section 232 actions, unlike IEEPA, the president does not act unilaterally in determining whether the imposition of trade restrictions is appropriate, rather the law requires that the president first direct an investigation by the U.S. Department of Commerce before any duties can attach.
The Department of Commerce investigation evaluates whether specific imports are being brought into the United States in quantities or under circumstances that could impair national security. The investigations include considerations like the impact on domestic industries critical to defense, economic stability and infrastructure.
The Department of Commerce has 270 days to investigate the imports at issue per the direction of the president, but the investigation and report can be issued with less time. The president generally has 90 days to determine trade restrictions and can act 15 days thereafter. (Here too, the timeline can be shorter; and we note that President Trump has utilized exceptions in the law to impose tariffs after this timeline as well in previous actions under Section 232.)
The scope of Section 232 investigations has evolved over time. While initially focused on traditional defense-related industries, recent cases beginning in President Trump’s first term have expanded use of the law. The courts have generally supported this expanded use of the law.
Current Section 232 Cases
Following a 2018 investigation, the administration has recently expanded ongoing tariffs on these articles and their derivatives — i.e., articles made from aluminum or steel or with aluminum or steel components — to protect domestic industries from overcapacity and unfair trade practices.
Status: Duty rates determined and implemented on imports from all countries.
Following a 2018 investigation into the impact of imports on the U.S. automotive industry and its role in national security, the Trump administration recently instituted tariffs and proposed tariffs on these imports.
Status: Duty rates determined and implemented on passenger vehicles and light trucks, but not yet implemented on parts.
This investigation includes copper in all forms, including, but not limited to, raw mined copper; copper concentrates; refined copper; copper alloys; scrap copper; and derivative products such as copper wire, copper tubing, copper-based electrical components and products composed of such products.
Status: Notice and comment period ended; investigation in progress.
The investigation is to determine the effects on the national security of imports of wood products: timber, lumber, and their derivative products such as paper products, construction materials and furniture.
Status: Notice and comment period ended; investigation in progress.
The investigation is centered on pharmaceuticals and pharmaceutical ingredients, including finished drug products, medical countermeasures, critical inputs such as active pharmaceutical ingredients, and key starting materials, as well as derivative products of those items.
Status: Notice and comment period ends on May 7, 2025.
The investigation is set to focus on the impact of semiconductor substrates and bare wafers, legacy chips, leading-edge chips, microelectronics, SME components and derivative products of these articles including downstream products that make up the electronics supply chain.
Status: Notice and comment period ends on May 7, 2025.
This includes rare-earth elements and other essential materials used in defense systems, advanced manufacturing and critical infrastructure. The critical minerals list was most recently updated in 2022.
Status: Announced, but no action.
Comments
The Commerce Department has historically requested public comments and offered a public hearing concerning Section 232 investigations, but we note that the governing regulations make clear that to do so is permissive. There is no statutory requirement for notice and comment or a public hearing: “[i]f the Department determines that it is appropriate to afford interested parties an opportunity to present information and advice relevant and material to an investigation, a public notice shall be published in the Federal Register soliciting from any interested party written comments, opinions, data, information or advice relative to the investigation.” 19 C.F.R. § 705.7(a).
To date, Commerce appears to be allowing notice and comment periods on these recent actions, but has not yet announced any hearings.
Parties may wish to consider taking advantage of the comment opportunities to advocate for exclusions and limited application of these potential tariffs by either commenting under their own name to preserve rights for litigation or by working through a trade association.
As these tariffs are administered based on the Harmonized Tariff Schedule of the United States (HTSUS), first and foremost, importers will want to advocate that their imports are not included on the list of covered products by HTSUS.
The current Section 232 tariffs on steel, aluminum and autos provide examples of exemptions that could be further argued for in comments with respect to new implementation of new Section 232 tariffs, such as:
- U.S. content exemptions
- United States–Mexico–Canada Agreement exemptions
- Limited application on derivative products
However, other examples of potential exemptions, could include the following:
- Exemptions for all free trade agreements
- De minimis content requirements
- Chapter 98 exemptions
- No tariffs on imports made pursuant to government contracts
- Use of quotas rather than tariffs
