United States Court of Appeals 

for the Federal Circuit ______________________ 

BORUSAN MANNESMANN BORU SANAYI VE 

TICARET A.S., BORUSAN MANNESMANN PIPE 

U.S. INC.,

Plaintiffs-Appellants

v.

UNITED STATES, WHEATLAND TUBE, NUCOR 

TUBULAR PRODUCTS INC.,

Defendants-Appellees

______________________ 

2021-2097

______________________ 

Appeal from the United States Court of International 

Trade in No. 1:20-cv-00015-JAR, Senior Judge Jane A. Restani.

______________________ 

Decided: March 15, 2023

______________________ 

JULIE MENDOZA, Morris, Manning & Martin, LLP, 

Washington, DC, argued for plaintiffs-appellants. Also 

represented by DONALD CAMERON, JR., MARY HODGINS,

BRADY MILLS, R. WILL PLANERT, EDWARD JOHN THOMAS,

III; TIMOTHY MEYER, Duke University School of Law, 

Durham, NC. 

 ALAN H. PRICE, Wiley Rein, LLP, Washington, DC, for 

defendant-appellee Nucor Tubular Products Inc. Also 

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2 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

represented by THEODORE PAUL BRACKEMYRE, ROBERT E.

DEFRANCESCO, III, PAUL A. DEVAMITHRAN. 

 ELIZABETH DRAKE, Schagrin Associates, Washington, 

DC, argued for defendant-appellee Wheatland Tube. Also 

represented by NICHOLAS J. BIRCH, CHRISTOPHER 

CLOUTIER, WILLIAM ALFRED FENNELL, LUKE A. MEISNER,

KELSEY RULE, ROGER BRIAN SCHAGRIN. 

 ROBERT R. KIEPURA, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. 

Also represented by BRIAN M. BOYNTON, PATRICIA M.

MCCARTHY, FRANKLIN E. WHITE, JR.; RACHEL BOGDAN, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, 

Washington, DC. 

 ______________________ 

Before TARANTO, STOLL, and CUNNINGHAM, Circuit 

Judges.

TARANTO, Circuit Judge. 

From May 2017 to April 2018, Borusan Mannesmann 

Boru Sanayi ve Ticaret A.S. and Borusan Mannesmann 

Pipe U.S. Inc. (collectively, Borusan) imported circular 

welded carbon steel pipes and tubes (carbon steel pipe) that 

were subject to decades-old antidumping duties. Near the 

end of that period in 2018, the President issued Proclamation 9705, which separately imposed a duty on imported 

steel articles (including Borusan’s carbon steel pipe) under 

§ 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862. 

In the annual administrative review of the antidumping 

duties owed on Borusan’s imports for the May 2017–April 

2018 period, the Department of Commerce treated the 

Proclamation 9705 duty as a “United States import dut[y]” 

under 19 U.S.C. § 1677a(c)(2)(A), a treatment that resulted 

in higher antidumping duties for Borusan’s imports in the 

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BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US 3

review than if Commerce had not so treated the Proclamation 9705 duty. 

Borusan challenged Commerce’s annual-review determination in the Court of International Trade (Trade 

Court), urging that the phrase “United States import duties” in § 1677a(c)(2)(A) did not encompass any duties imposed under § 232. The Trade Court disagreed and 

affirmed Commerce’s treatment of the Proclamation 9705 

duty. Borusan Mannesmann Boru Sanayi ve Ticaret A.S.

v. United States, 494 F. Supp. 3d 1365, 1371–76 (Ct. Int’l 

Trade 2021). That ruling is now here on Borusan’s appeal. 

Because Commerce correctly determined that the particular § 232 duty imposed by Proclamation 9705 is a “United 

States import dut[y]” under 19 U.S.C. § 1677a(c)(2)(A), we 

affirm. 

I 

A 

Antidumping duties are designed to remedy injury or 

threatened injury to domestic industry from the importation of merchandise sold in the United States at a price less 

than the merchandise’s fair value (i.e., dumping). See 19 

U.S.C. § 1673; Thyssenkrupp Steel North America, Inc. v. 

United States, 886 F.3d 1215, 1217 (Fed. Cir. 2018). The 

antidumping duty is set to equal the amount by which the 

imported merchandise is sold below its fair value. 19 

U.S.C. § 1673. Importers make appropriate deposits upon 

entering merchandise subject to an antidumping duty, but 

final determinations of the duties owed are generally made 

in annual administrative reviews (if requested) that cover 

imports during the preceding 12 months (the period of review). Id. § 1675(a)(1); see Thyssenkrupp, 886 F.3d at 1218 

(describing this “retrospective” system). 

Of importance to the present appeal, antidumping duties depend on the “dumping margin,” 19 U.S.C. 

§ 1677(35)(A), which is the difference between “the normal 

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4 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

value” and the “export price (or the constructed export 

price) for the merchandise,” id. § 1673. The normal value, 

i.e., the value in the home country, is commonly the price 

at which the merchandise is sold in the exporting country, 

subject to certain adjustments. Id. § 1677b(a)(1)(B). On 

the other hand, the “export price” is 

the price at which the subject merchandise is first 

sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject 

merchandise outside of the United States to an unaffiliated purchaser in the United States or to an 

unaffiliated purchaser for exportation to the 

United States, as adjusted under subsection (c). 

Id. § 1677a(a). A “constructed export price” is similar for 

present purposes.1 In either case, this price, before it is 

adjusted as next described, can be called the “U.S. price.” 

See United States Steel Corp. v. United States, 621 F.3d 

1351, 1353 & n.1 (Fed. Cir. 2010) (defining “export price” 

as “the price of the product in the United States”).

1 A “constructed export price,” also involving a foreign producer’s or exporter’s first sale to an unaffiliated 

purchaser, is used when the location of such a sale is “in 

the United States”—rather than (as with an “export price”) 

“outside of the United States”—according to the definition 

of “construction export price” as 

the price at which the subject merchandise is first 

sold (or agreed to be sold) in the United States before or after the date of importation by or for the 

account of the producer or exporter of such merchandise or by a seller affiliated with the producer 

or exporter, to a purchaser not affiliated with the 

producer or exporter, as adjusted under subsections (c) and (d). 

19 U.S.C. § 1677a(b).

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BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US 5

To arrive at the final export or constructed export price, 

adjustments must be made. For example, the U.S. price 

must be “increased by . . . the amount of any countervailing 

duty imposed on the subject merchandise under part I of 

this subtitle [19 U.S.C. §§ 1671–1671h] to offset an export 

subsidy.” 19 U.S.C. § 1677a(c)(1)(C). And, what is key 

here, the U.S. price also must be “reduced by[,] . . . except 

as provided in paragraph (1)(C),” i.e., except for certain 

countervailing duties,

the amount, if any, included in such price, attributable to any additional costs, charges, or expenses, 

and United States import duties, which are incident 

to bringing the subject merchandise from the original place of shipment in the exporting country to 

the place of delivery in the United States. 

Id. § 1677a(c)(2)(A) (emphasis added). We have described 

these adjustments as designed to produce an “apples with 

apples” comparison between the price at which the merchandise is sold in the U.S. and the price at which it is sold 

in the home country. Smith-Corona Group v. United 

States, 713 F.2d 1568, 1578 (Fed. Cir. 1983); see also APEX 

Exports v. United States, 777 F.3d 1373, 1375 (Fed. Cir. 

2015). 

B 

Borusan Mannesmann Boru Sanayi ve Ticaret A.S. 

produces carbon steel pipe in Turkey and exports it to the 

United States. Borusan Mannesmann Pipe U.S. Inc., a 

United States-based affiliate of Borusan A.S., imports carbon steel pipe into the United States. Borusan’s carbon 

steel pipe has long been subject to antidumping duties, see,

e.g., Antidumping Duty Order: Welded Carbon Steel Standard Pipe and Tube Products from Turkey, 51 Fed. Reg. 

17,784 (May 15, 1986), including the Borusan pipe imported from May 2017 through April 2018. 

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6 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

In March 2018, the President issued a proclamation, 

pursuant to § 232 of the Trade Expansion Act of 1962, Pub. 

L. No. 87-794, 76 Stat. 872, 877, codified as amended at 19 

U.S.C. § 1862, that imposed a 25 percent ad valorem tariff 

on imported steel articles, including carbon steel pipe, from 

all countries except Canada and Mexico, entered (or withdrawn from a warehouse for consumption) on or after 

March 23, 2018. Proclamation 9705, 83 Fed. Reg. 11,625 

(Mar. 15, 2018). The proclamation directed that the duty 

was to be imposed “in addition to any other duties, fees, 

exactions, and charges applicable to such imported steel articles.” Id. clause 2, 83 Fed. Reg. at 11,627. Although the 

President later modified Proclamation 9705, the 25 percent 

duty applied to Borusan’s imports for the last five weeks or 

so of the period from May 1, 2017, through April 30, 2018, 

which was the period of review for the annual administrative review of antidumping duties initiated by Commerce 

in July 2018. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 Fed. Reg. 32,270 (July 

12, 2018).

In its final results for that administrative review, Commerce treated the Proclamation 9705 duty as a “United 

States import dut[y]” under 19 U.S.C. § 1677a(c)(2)(A). Because Borusan had built this duty into its U.S. price (raising, after imposition of the Proclamation 9705 duty, what 

the U.S. price was before the duty), Commerce subtracted 

the Proclamation 9705 duty from the Borusan U.S. price, 

thereby lowering the export (and constructed export) price 

for Borusan (from what it would be without subtraction) 

and enlarging the gap between the normal value and the 

export (and constructed export) price, i.e., increasing the 

dumping margin that determines the antidumping duty 

owed. Circular Welded Carbon Steel Standard Pipe and 

Tube Products from Turkey: Final Results of Antidumping 

Duty Administrative Review and Final Determination of 

No Shipments; 2017–2018, 85 Fed. Reg. 3616 (Jan. 22, 

2020) (Final Results); see also Circular Welded Carbon 

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BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US 7

Steel Standard Pipe and Tube Products from Turkey: 

Amended Final Results of Antidumping Duty Administrative Review; 2017–2018, 85 Fed. Reg. 12,893 (Mar. 5, 2020); 

J.A. 1348. 

In a memorandum issued with the Final Results, J.A. 

2368, Commerce analyzed two factors to determine 

whether the Proclamation 9705 duty, imposed under § 232,

is a “regular” duty, such that, according to Commerce, it 

falls within the meaning of “United States import duties,” 

or a “special duty,” such that it does not. J.A. 2397–400. 

Commerce borrowed the distinction, and factors used to apply it, from its determination made years earlier in considering a different presidential proclamation, Proclamation 

7529, 67 Fed. Reg. 10,553 (Mar. 7, 2002), that imposed socalled “safeguard” (or “§ 201”) duties under different statutory authority, namely, § 201 et. seq. of the Trade Act of 

1974, Pub. L. No. 93-618, title II, §§ 201–05, 88 Stat. 1978, 

2011–18 (codified as amended at 19 U.S.C. §§ 2251–55). 

See Stainless Steel Wire Rod from the Republic of Korea: 

Final Results of Antidumping Duty Administrative Review, 

69 Fed. Reg. 19,153 (Apr. 12, 2004) (SWR Korea); Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359–66 

(Fed. Cir. 2007) (affirming the SWR Korea analysis under 

Chevron U.S.A., Inc. v. Natural Resources Defense Council, 

467 U.S. 837 (1984)). Specifically, Commerce analyzed (1) 

whether the Proclamation 9705 duty is remedial and (2) 

whether “double counting” of the duty would result from 

deeming it a United States import duty and therefore subtracting it from the U.S. price. J.A. 2397–400. Commerce 

did not analyze a third factor identified in the earlier § 201 

proceedings: whether the duty at issue is temporary. 

Commerce determined that Proclamation 9705’s duty 

is not remedial, making it unlike special duties, because 

duties imposed under § 232 “are not focused on remedying 

injury to a domestic industry” but instead on eliminating 

threats to national security. J.A. 2398. Commerce also 

concluded that “antidumping duties and section 232 

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8 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

duties” serve “separate and distinct” functions, so “there 

would be no overlap between the two in providing the remedies sought by each,” and hence no double counting in 

deeming the duty imposed under § 232 a United States import duty to be subtracted under 19 U.S.C. § 1677a(c)(2)(A). 

J.A. 2399. Commerce then pointed to Proclamation 9705’s 

statement, which it described as “critical” to its doublecounting analysis, that the duty is “to be imposed in addition to other duties.” J.A. 2400. Finally, Commerce concluded that the International Trade Commission’s 

placement of the § 232 duty at issue in the “special” duties 

chapter of the Harmonized Tariff Schedule is not sufficient 

to change the above-described conclusion. Id. Because 

Commerce determined in a separate memorandum that 

the Proclamation 9705 duty was in fact included in the U.S. 

price for Borusan before adjustment, J.A. 1348, it subtracted the duty under 19 U.S.C. § 1677a(c)(2)(A). 

Borusan challenged the Final Results in the Trade 

Court. It contended, among other things, that all duties 

imposed under § 232, categorically, must be deemed not 

“United States import duties.” Wheatland Tube and Nucor 

Tubular Products, Inc., U.S. domestic producers of carbon 

steel pipe and therefore interested parties, 19 U.S.C. 

§ 1677(9)(C), intervened.

The Trade Court, in its February 17, 2021 opinion, 

agreed with Commerce on the point now at issue here. Borusan, 494 F. Supp. 3d at 1373–76. It determined that duties imposed by the President under § 232 are “remedial in 

a broad sense” but are unlike the presidentially imposed 

safeguard duties (also called “§ 201 duties”) that were at 

issue in SWR Korea and Wheatland. Id. at 1374. Safeguard duties, the Trade Court said, “require[] a finding of 

a particular level of injury or threat of injury,” whereas duties imposed under § 232 “could be used to promote vital 

nascent industries, not just already established injured industries,” in which case “remediation would not be a primary goal.” Id. The Trade Court further noted that duties 

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imposed under § 232 are not subject to statutory time limits, unlike safeguard duties, which are subject to such time 

limits, see 19 U.S.C. § 2253(e), but nevertheless determined 

that duties imposed under section 232 are “not . . . significantly more permanent than safeguard duties.” Borusan, 

494 F. Supp. 3d. at 1374–75. The Trade Court gave a third 

factor—whether inclusion in “United States import duties” 

results in double counting—the greatest weight. Id. at 

1375–76. It explained that “[t]here is a clear statutory interplay between Section 201 duties and antidumping duties,” which is not the case for duties imposed under § 232, 

so no double counting results from treating the latter as

“United States import duties” under 19 U.S.C. 

§ 1677a(c)(2)(A) to calculate the dumping margin. Id. at 

1375. The Trade Court finally noted that the parties accepted that Borusan’s relevant U.S. prices included the 

Proclamation 9705 duty. Id. at 1376 n.9. 

The Trade Court remanded the matter for Commerce 

to consider other issues immaterial to the present appeal. 

Id. at 1377. Commerce issued final results of redetermination on April 19, 2021. The Trade Court, “[h]aving received 

no objections to . . . the Remand Results,” entered final 

judgment “sustain[ing]” them and ordering “liquidat[ion] 

[of the Borusan entries covered by the administrative review] in accordance with the final court decision in this action, including all appeals.” J.A. 1 (capitalization 

removed). Borusan timely appealed.2 We have jurisdiction 

under 28 U.S.C. § 1295(a)(5). 

II

“We review the Commerce decisions at issue de novo, 

using the same standard of review applied by the [Trade 

Court] . . . .” Quiedan Co. v. United States, 927 F.3d 1328, 

2 Wheatland and the United States each cross-appealed, but those cross-appeals have been dismissed.

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10 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

1330 (Fed. Cir. 2019) (citations omitted). We must sustain 

Commerce’s determinations in antidumping duty proceedings unless they are “unsupported by substantial evidence 

on the record, or otherwise not in accordance with law.” 19 

U.S.C. § 1516a(b)(1)(B)(i). “For factual determinations, 

substantial evidence is ‘such relevant evidence as a reasonable mind might accept to support a conclusion’ considering 

the record as a whole.” Mid Continent Steel & Wire, Inc. v. 

United States, 941 F.3d 530, 537 (Fed. Cir. 2019) (citations 

omitted). We evaluate questions of statutory interpretation de novo. Transpacific Steel LLC v. United States, 4 

F.4th 1306, 1318 (Fed. Cir. 2021).

There is no properly preserved dispute before us about 

Commerce’s determination, J.A. 1348, that the duty imposed by Proclamation 9705 was in fact included in Borusan’s U.S. prices.3 The only issue is whether it was 

permissible for Commerce to treat that duty as a “United 

States import dut[y]” under 19 U.S.C. § 1677a(c)(2)(A) to 

be subtracted from those U.S. prices to arrive at the export 

(and constructed export) price used for calculation of the 

dumping margin. We draw the proclamation-specific conclusion that this treatment was permissible.

A 

Before addressing the situation presented here—a specific presidential proclamation imposing a duty under 

3 Borusan did not challenge that determination before the Trade Court. See Borusan, 494 F. Supp. 3d at 1376 

n.9. Nor did Borusan challenge the determination in this 

court until its reply brief, Reply Br. at 25-27, which was too 

late. See In re Google Technology Holdings LLC, 980 F.3d 

858, 863 (Fed. Cir. 2020); Aventis Pharma S.A. v. Hospira, 

Inc., 675 F.3d 1324, 1332 (Fed. Cir. 2012).

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BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US 11

§ 232—we recount the decisions of Commerce and of this 

court that addressed the application of 19 U.S.C. 

§ 1677a(c)(2)(A) to safeguard duties imposed by a 2002 

presidential proclamation under the distinct § 201 regime. 

Those decisions feature prominently in the Commerce decision, Trade Court ruling, and parties’ briefing before us.

Section 201 authorizes the President to take actions 

when an “article is being imported into the United States 

in such increased quantities as to be a substantial cause of 

serious injury, or the threat thereof, to . . . domestic industry.” 19 U.S.C. § 2251(a) (emphasis added to indicate why 

§ 201 is commonly described as addressing surges in imports). Among the wide range of actions authorized is “an 

increase in, or the imposition of, any duty on the imported 

article.” Id. § 2253(a)(3)(A). For purposes of the chapter 

containing § 201 et seq., “[t]he term ‘duty’ includes the rate 

and form of any import duty, including but not limited to 

tariff-rate quotas.” Id. § 2481(1). Congress set certain prerequisites to presidential action, including an identified determination by the International Trade Commission about 

injury or threatened injury. Id. §§ 2251–54. Presidentially 

proclaimed measures are time-limited, presumptively to 

four years. Id. § 2253(e).

In 2002, the President issued Proclamation 7529 to impose duties under § 201 on merchandise that was also subject to antidumping duties, e.g., stainless steel wire rod 

from the Republic of Korea, SWR Korea, 69 Fed. Reg. at 

19,153, and carbon steel pipe from Thailand, Certain 

Welded Carbon Steel Pipes and Tubes from Thailand: Final 

Results of Antidumping Duty Administrative Review, 69 

Fed. Reg. 61,649 (Oct. 20, 2004). Commerce, in its annual 

administrative reviews addressing those antidumping duties, had to decide whether the Proclamation 7529 duties 

were “United States import duties.” It concluded that they 

were not, after giving notice and receiving comments on the 

issue. SWR Korea, 69 Fed. Reg. at 19,154–61.

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Commerce reasoned that there is a distinction between 

“special” duties and “regular” duties, that it had long excluded antidumping duties from “United States import duties,” and that antidumping duties are “special duties.” Id.

at 19,159 (discussing the Antidumping Act of 1921, Pub. L. 

No. 67-10, title II, §§ 202, 211, 42 Stat. 9, 11–12, 15). Commerce then considered whether the duties at issue, imposed under § 201 by Proclamation 7529, were more like 

special duties, which include at least antidumping duties, 

or regular duties. Id. Much of Commerce’s reasoning addressed § 201 generally, but some was specific to Proclamation 7529. Id. at 19,160.

Commerce stated that § 201 duties are both remedial 

and temporary, unlike normal duties. Id. at 19,159. Commerce also determined that treating the duties at issue as 

“United States import duties” presented problems of double counting similar to the circularity problems presented 

by treating antidumping duties as “United States import 

duties.” Id. at 19,160. Commerce stated that duties imposed under § 201 and antidumping duties can be interrelated and remedy overlapping harms. Id.4 Commerce then

4 For support, Commerce relied on a Senate Committee Report related to the Trade Act of 1974 (which enacted 

the § 201 regime), S. Rep. No. 93-1298 at 123 (1974), and 

also the Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act (URAA), the 

latter stating that, in considering the imposition of 

measures under § 201, “the President will continue the 

practice of taking into account relief provided under other 

provisions of law, such as the antidumping and countervailing duty laws,” SAA, H.R. Doc. No. 103-316, Vol. 1, at 

964 (1994). The SAA “shall be regarded as an authoritative 

expression by the United States concerning the interpretation and application of the Uruguay Round Agreements” 

and the URAA. 19 U.S.C. § 3512(d). 

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made the proclamation-specific point that there was “absolutely no indication in [Proclamation 7529] placing 201 duties on certain imports of steel that the President believed 

that Commerce effectively would increase those duties by 

taking them into account in calculating subsequent dumping margins.” Id. Commerce reasoned that “any adjustment for the potential overlap between 201 and 

[antidumping] remedies is to be made by the President in 

setting the level of the 201 duties,” and “[o]nce the President has struck this balance, it is not Commerce’s place to 

upset that balance.” Id.

In Wheatland, we approved Commerce’s SWR Korea 

conclusion, affirming its application in the annual administration review before us. 495 F.3d at 1359–66. We 

quickly found ambiguity at step one of the Chevron framework. Id. at 1359–60. We explained that “Congress has 

not defined or explained the meaning or scope of ‘United 

States import duties,”’ id. at 1359, and concluded that

“Congress has not ‘directly spoken to the precise question 

at issue’”—“whether § 201 safeguard duties are to be considered ‘United States import duties’ for purposes of determining the [export price] and calculating dumping 

margin,” id. at 1359–60. 

We then determined, at step two of the Chevron framework, that Commerce’s answer to this precise question was 

reasonable. Among other things, we specifically highlighted the lack of express presidential intent “regarding 

the calculation of antidumping margin” in the particular 

proclamation at issue. Id. at 1364. We quoted and relied 

on Commerce’s explanation that the relationship between 

a particular safeguard duty and antidumping remedies 

was for the President to decide in imposing the former and 

that, in Proclamation 7529, “the balance between § 201 

safeguard duties and antidumping duties had been set by 

the President.” Id. at 1365. We also noted certain proclamation-specific facts as supporting Commerce’s conclusion. 

Id. at 1364–65 (stating that only four of the twenty 

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14 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

exporting countries were subject to both antidumping duties and § 201 safeguard duties). 

Notably, the government emphasized proclamationspecific issues in its brief before us in Wheatland. For example, the government suggested that Commerce was in 

the best position to determine whether to deduct the § 201 

duties at issue from the U.S. price because Commerce, 

through the Secretary of Commerce, is subject to the President’s control. Wheatland, Nos. 2006-1524, -1525, United 

States Opening Br. at 41–42. The government also emphasized the lack of country-specific rates in Proclamation 

7529, which it viewed as indicating that the President did 

not intend for the proclamation’s duties to be imposed in 

addition to antidumping duties. Id. at 42–45. 

B 

1 

The reference to “United States import duties” in 

§ 1677a(c)(2)(A) is a reference to actually prescribed duties—not to a mere legal authorization to prescribe duties, 

such as the constitutional grant of power to Congress or a

statutory grant of authority to the President. The provision requires “reducing” a concrete numerical price, the 

U.S. price, by “United States import duties,” to the extent 

those duties are “included in such price” to arrive at a different concrete numerical price, the “export price” (or “constructed export price”). 19 U.S.C. § 1677a(c)(2)(A). There 

is nothing to subtract until a duty is prescribed. If a statute 

merely authorizes a governmental officer or body to impose 

a duty, as § 232 authorizes the President to do, it is the 

particular exercise of the authority that determines—

based on the character of that exercise—whether the prescribed duty comes within § 1677a(c)(2)(A). 

Nothing in § 1677a(c)(2)(A) requires the uniform treatment of all duties prescribed under a particular statutory 

authorization. Nor, more specifically, have we been shown 

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BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US 15

anything in the § 232 framework that requires the uniform 

treatment of all duties imposed by the President under 

§ 232. Specifically, although Borusan suggests that we categorically conclude that § 232 duties are not United States 

import duties, see Oral Arg. at 43:20–44:19, it has presented no persuasive reason to conclude that the relevant 

question—whether a specific duty prescribed by a particular presidential action under § 232 constitutes a “United 

States import dut[y]” under § 1677a(c)(2)(A)—must have 

the same answer for all such actions under § 232. 

Section 232 by its terms gives the President discretion 

to determine “the nature and duration of the action” 

needed to “adjust the imports of the article and its derivatives” to address the national-security threat. 19 U.S.C. 

§ 1862(c)(1)(A)(ii). Even as to a choice between quotas and 

duties, § 232 gives the President “discretion in determining 

the method to be used to adjust imports.” Federal Energy 

Administration v. Algonquin SNG, Inc., 426 U.S. 548, 561 

(1976). The President’s discretion is broad enough to encompass the choice of whether a duty is to be imposed on 

top of the amounts of antidumping duties that would be 

due without the duty or, instead, is to partly or wholly substitute for such duties. See Transpacific, 4 F.4th at 1324–

26 (affirming discretion as to action to be taken). 

Thus, we need not make a statute-wide categorical determination regarding all duties imposed on imports by 

presidential action under § 232. We will focus on the character of Proclamation 9705 specifically—the authorized 

governmental action that actually prescribed the duty on 

imports at issue. This proclamation-specific approach is 

consistent with our decision in the § 201 setting in Wheatland, where, as described above, our approval of Commerce’s determination relied in part on specifics of the 

particular proclamation at issue there and on Commerce’s 

own declaration that it is for the President, in the dutycreating action under the § 201 regime, to determine the 

duty’s relationship to antidumping duties. At oral 

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argument before this court, we note, government counsel 

seemingly agreed that Wheatland is “fair[ly] read[]” as “approving only the proclamation-specific determination by 

Commerce there, not a necessarily categorical treatment of 

all [§ 201] impositions.” Oral Arg. at 29:28–30:09. 

2 

Proclamation 9705 makes clear that the duty newly being imposed was to add to, and not partly or wholly offset, 

the antidumping duties that would be due without the new 

duty. Proclamation 9705 provides: 

Except as otherwise provided in this proclamation, 

or in notices published pursuant to clause 3 of this 

proclamation, all steel articles imports specified in 

the Annex shall be subject to an additional 25 percent ad valorem rate of duty with respect to goods

entered, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight 

time on March 23, 2018. This rate of duty, which

is in addition to any other duties, fees, exactions, 

and charges applicable to such imported steel articles, shall apply to imports of steel articles from all 

countries except Canada and Mexico.

Proclamation 9705, clause 2, 83 Fed. Reg. at 11,627 (emphasis added). The proclamation imposes a duty on imports to the United States, which comes within the literal 

language, “United States import duties,” of 

§ 1677a(c)(2)(A). More particularly, the proclamation declares that the rate of duty is to be imposed “in addition to 

any other duties.” Id.; see also id. at 11,629, Annex (“All 

anti-dumping, countervailing, or other duties and charges 

applicable to such goods shall continue to be imposed.”). 

The context confirms the evident meaning of this declaration—that the duty should be charged on top of otherwisedetermined antidumping duties. The President determined that national security was threatened by the unsustainably low utilization of domestic steel-producing 

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capacity, an underutilization tied to imports of steel, id.

¶¶ 5, 8, 11, 83 Fed. Reg. at 11,626–27, notwithstanding 

that antidumping duties had been in place for three decades on certain imports covered by the proclamation’s duty. 

We conclude that the only fair reading of Proclamation 

9705 is that, when applied to an article covered by antidumping duties, the Proclamation 9705 and antidumping 

duties must together result in a full imposition of both duties. Producing that result requires the antidumping duty

to be calculated as if the Proclamation 9705 duty did not 

exist—i.e., by subtraction of the Proclamation 9705 duty

from the U.S. price if the Proclamation 9705 duty is built 

into it. Otherwise, the Proclamation 9705 duty would be 

offset substantially or completely by a reduction in the antidumping duty itself (through an increase in the U.S. price 

and therefore a decrease in the dumping margin), defeating 

the evident “in addition to” prescription of Proclamation 

9705. See J.A. 2400.

3 

This treatment of the duty imposed in Proclamation 

9705 is not inconsistent with Commerce’s long-recognized 

categorical exclusion of antidumping duties themselves 

from classification as “United States import duties.” Antidumping duties cannot be subtracted in the calculation of 

dumping margins (and hence antidumping duties), because 

doing so would produce a spiraling circularity. See APEX 

Exports, 777 F.3d at 1379 & n.2. It is therefore a necessary 

implication of the antidumping duty statute itself that 

such duties cannot come within § 1677a(c)(2)(A). See 

United States v. Brown, 333 U.S. 18, 27 (1948) (“No rule of 

construction necessitates our acceptance of an interpretation resulting in patently absurd consequences.”). There is 

no such circularity problem with recognizing that the Proclamation 9705 duty on imports is a “United States import 

dut[y].”

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18 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

Commerce similarly treats countervailing duties as 

categorically excluded from “United States import duties.” 

AK Steel Corp. v. United States, 988 F. Supp. 594, 607–08 

(Ct. Int’l Trade 1997). But there is no immediately evident 

circularity problem, and we have not addressed whether 

such treatment is proper. Commerce’s practice in this regard thus does not undermine the conclusion here. 

Commerce’s determination in SWR Korea, involving a 

proclamation that imposed duties under § 201, and our decision in Wheatland upholding Commerce’s decision, also 

do not preclude our view or Commerce’s decision here. 

Commerce did use some categorical language in SWR Korea. 69 Fed. Reg. at 19,161 (“In conclusion, Commerce will 

not deduct 201 duties from U.S. prices in calculating dumping margins because 201 duties are not ‘United States import duties’ within the meaning of the statute.”). But, 

importantly, its rationale for excluding the proclamation’s 

duties from “United States import duties” depended expressly on the language and nature of the particular proclamation at issue, Proclamation 7529. Id. at 19,160 (noting 

that “any adjustment for the potential overlap between 201 

and AD remedies is to be made by the President in setting 

the level of the 201 duties” and that Commerce cannot “upset that balance” “[o]nce the President has struck” it); id.

(highlighting that there was “absolutely no indication in 

[Proclamation 7529] placing 201 duties on certain imports 

of steel that the President believed that Commerce effectively would increase those duties by taking them into account in calculating subsequent dumping margins”). 

Before this court, moreover, the government took pains to 

argue that Commerce’s decision was perfectly consistent 

with Proclamation 7529. Wheatland, Nos. 2006-

1524, -1525, United States Opening Br. at 41–42 (arguing 

that the “trial court made the further implausible assumption that Commerce, a Department of the Executive 

Branch, flouted the President’s intent”). We likewise relied 

on Commerce’s proclamation-specific reasoning, 

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Wheatland, 495 F.3d at 1365, and other aspects of Proclamation 7529, id. at 1364 (discussing the President’s “intent 

regarding the calculation of antidumping margin at the 

time [he] imposed § 201 safeguard duties”); id. at 1364–65 

(discussing the particular “§ 201 safeguard duties” imposed 

in Proclamation 7529). 

In these circumstances, the present matter is properly 

distinguished from the relied-on § 201 decisions at least because of the difference in the presidential proclamations at 

issue. As discussed above, Proclamation 9705 requires 

that its duty be treated as a “United States import dut[y]” 

to be subtracted under § 1677a(c)(2)(A). In contrast, there 

was no comparable language in Proclamation 7529, and in 

light of a background recognition concerning potential 

overlap of § 201 duties and antidumping duties, Commerce 

found no implication that the Proclamation 7529 duties imposed should be subtracted so that they would add to, and 

not be substantially or completely offset by, reductions in 

the antidumping duties. In the present matter, as in the 

earlier one, the duty’s treatment under § 1677a(c)(2)(A) is

effectively determined by the President in exercising the

broad power to shape the particular duty imposition, as 

Commerce suggested it should be, in a passage in SWR Korea that we quoted in Wheatland. 

C 

The foregoing analysis is enough for us to uphold Commerce’s decision here. We do not decide whether the same 

result could soundly rest on distinctions between § 232 and 

the § 201 regime more generally, and the distinction between “normal” and “special” duties, articulated by Commerce and approved by the Trade Court here. That 

approach presents challenges that we may avoid. The 

Commerce decision sufficiently rests on the proclamationspecific basis set forth above. See J.A. 2399–400. 

We also do not decide whether our Wheatland conclusion about ambiguity at Chevron’s step one is subject to 

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20 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

question based on intervening developments about, at 

least, the fullness of the statutory analysis required at that 

step. See, e.g., SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348, 

1358 (2018) (stating that “whether Chevron should remain 

is a question we may leave for another day” and concluding 

that Chevron did not apply because “after applying traditional tools of interpretation here,” the Court was “left with 

no uncertainty that could warrant deference”); Kisor v. 

Wilkie, 139 S. Ct. 2400, 2414–15 (2019) (in case concerning 

Auer deference regarding interpretation of a regulation, 

citing Chevron to clarify the Auer standard as permitting 

deference to an agency interpretation only if “after exhausting all the ‘traditional tools’ of construction, the regulation is genuinely ambiguous” (citation omitted)). The 

best interpretation of the statute, as relevant in this case, 

supports Commerce’s decision, making it unnecessary to 

apply the Chevron framework. See Nicely v. United States, 

23 F.4th 1364, 1368 (Fed. Cir. 2022); Chudik v. Hirshfeld, 

987 F.3d 1033, 1039 (Fed. Cir. 2021). Further consideration of Chevron and other issues can await other cases, 

such as one, if it arises, in which Commerce applies its 

broader language in SWR Korea to deny subtraction under 

§ 1677a(c)(2)(A) to a § 201-based duty even if the proclamation imposing it insists that it is to be supplemental to antidumping duties.

III

For the foregoing reasons, we conclude that the specific 

duty imposed by the President in Proclamation 9705 was 

properly treated by the President’s subordinate, the Secretary of Commerce, as a “United States import dut[y]” under 

§ 1677a(c)(2)(A). We therefore affirm the judgment of the 

Trade Court.

The parties shall bear their own costs.

AFFIRMED

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