On May 23, 2018, Secretary of Commerce Wilbur Ross announced the initiation of an investigation to determine the effects on the national security of imports of automobiles – including cars, SUVs, vans and light trucks – and automotive parts. See Thompson Hine International Trade Update, dated June 1, 2018. At that time, the Department of Commerce established certain deadlines for submitting comments and for requesting to appear at a public hearing. In a June 21, 2018 Federal Register notice, the department extended the public comment period to June 29, 2018 and the rebuttal period to July 13, 2018. Requests to appear at the hearing are now due June 29, 2018. The hearing dates of July 19 and 20, 2018 remain unchanged.

As part of the Trump administration’s continuing efforts under Section 301 to pressure the People’s Republic of China (PRC) to change its intellectual property and forced technology transfer practices, the Office of the U.S. Trade Representative announced in the Federal Register today (1) which PRC products will be subject to a Section 301 25 percent tariff starting July 6 (Annex B), (2) which additional PRC products will undergo review to determine if they should be subject to the 25 percent tariff (Annex C) and (3) the review process for the additional PRC products.

The product lists in Annexes B and C were released last week. Today’s notice revealed for the first time the review process for the products listed in Annex C. Interested parties have until June 29 to file requests to appear at the July 24 public hearing; requests must include a summary of the expected testimony and may be accompanied by a pre-hearing submission. Parties filing written comments on the U.S. government’s proposed action must submit them by July 23, and post-hearing rebuttal comments are due by July 31. The hearing, which will start at 9:30 a.m. in the U.S. International Trade Commission’s main hearing room, will be limited to issues involving products listed in Annex C only. The notice did not address a product exclusion request process for the products listed in Annex B that will be subject to the 25 percent tariff on July 6, but indicated that a separate notice will be issued concerning that process.

Last Friday, the Trump administration released the list of imported products from the People’s Republic of China (PRC) that will be subject to an additional 25 percent tariff. The retaliatory tariffs are the result of (1) the U.S. government’s Section 301 investigation and report that assessed the PRC government’s intellectual property and technology transfer practices affecting U.S. companies and (2) the PRC government’s reluctance to address these U.S. government concerns so far. Tariffs on these products are scheduled to go into effect July 6.

The Section 301 investigation process, which included a public notice and comment period and hearing, reduced the first set of product lines under consideration from 1,333 U.S. Harmonized Tariff Schedule (HTS) line items to 818, worth approximately $34 billion in U.S. imports from China. In its Friday announcement, the Office of the U.S. Trade Representative also announced that an additional 284 HTS line items worth $16 billion in U.S. imports from China may be subject to the 25 percent tariff and would undergo further scrutiny as part of a public notice and comment process, including a public hearing. The second set of HTS line items includes, among others, products benefiting from PRC industrial policies, including the “Made in China 2025” program, which is an industrial strategy aimed to shift China’s economy into higher value-added manufacturing sectors, such as robotics, aerospace and energy-saving vehicles.

President Donald Trump and Chairman Kim Jong Un issued a joint statement at the conclusion of their summit in Singapore in which both countries committed to further negotiations and future cooperation for the development of new relations between the United States and the Democratic People’s Republic of Korea. In the statement, Trump committed “to provide security guarantees” to North Korea, and Kim reaffirmed “his firm and unwavering commitment to complete denuclearization of the Korean Peninsula.”

In a post-summit press conference, Trump stated that his meeting with Kim “was honest, direct, and productive … Today is the beginning of an arduous process. Our eyes are wide open, but peace is always worth the effort, especially in this case.” He added that all U.S. sanctions toward North Korea will remain in effect until “the nukes are no longer a factor.”

On June 7, 2018, the U.S. Department of Commerce announced that Zhongxing Telecommunications Equipment Corporation of Shenzhen, China (ZTE Corporation) and ZTE Kangxun Telecommunications Ltd. of Hi-New Shenzhen, China (ZTE Kangxun) (collectively, ZTE) had agreed to additional penalties and compliance measures to replace Commerce’s Bureau of Industry and Security (BIS) denial order imposed as a result of ZTE’s violations of its March 2017 settlement agreement. On April 15, 2018, BIS activated the suspended denial order against ZTE after learning that ZTE had not disciplined numerous employees responsible for the violations that led to the settlement agreement. Instead, ZTE rewarded those employees with bonuses. With the imposition of the denial order by BIS, ZTE announced in early May 2018 that all major operating activities of the company had ceased as a result of the denial order. On May 13, 2018, President Trump, against the advice of U.S. law enforcement and intelligence officials, announced that “President Xi of China, and I, are working together to give massive Chinese phone company, ZTE, a way to get back into business, fast. Too many jobs in China lost. Commerce Department has been instructed to get it done!” Continue Reading Department of Commerce Announces Sanctions Deal with China’s ZTE, but Will Congress Block It?

President Donald Trump signed yesterday two Presidential Proclamations adjusting imports of aluminum and steel into the United States. In doing so, he stated that measures are now in place to address the impairment to the national security threatened by imports of steel and aluminum from Argentina, Brazil and Australia. South Korea previously reached an agreement with the United States on April 30 to limit its imports of steel. President Trump added, however, that “similar measures are not in place with respect to steel or aluminum imports from Mexico, Canada or the European Union” and that insufficient progress had been made in ongoing negotiations with these countries. He declared that, as of June 1, 2018, the Section 232 tariffs for steel of 25 percent and for aluminum of 10 percent will no longer be suspended for such imports from these countries. The White House indicated that it will continue discussions with them and remains open to discussions with other countries that may lead to permanent country-based exemptions. Continue Reading Trump Administration Implements Section 232 Tariffs on Steel and Aluminum Imports from Canada, Mexico and the European Union

Key Notes:

  • On May 23, 2018, the Department of Commerce self initiated a Section 232 national security investigation concerning the imports of automobiles and automotive parts.
  • A formal docket has been opened for the submission of public comments and requests to appear at a public hearing July 19-20, 2018.
  • The Department of Commerce has 270 days to issue its findings and submit a report to the president.

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President Trump has released a statement setting forth the steps that his administration will undertake in an effort to protect domestic technology and intellectual property from China’s unfair and discriminatory trade practices. These actions are the result of the findings of the U.S. Trade Representative investigation pursuant to Section 301 of the Trade Act of 1974. On March 22, 2018, the president issued a Presidential Memorandum announcing the findings of that investigation, but in recent weeks there had been indications that any “trade war” and tariffs against China would be put on hold pending further discussions and negotiations. With today’s announcement, the United States will:

  • implement “specific investment restrictions and enhanced export controls for Chinese persons and entities related to the acquisition of industrially significant technology.” These restrictions and controls will be announced by June 30, 2018.
  • continue to pursue dispute settlement proceedings before the World Trade Organization for violations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) based on China’s discriminatory practices for licensing intellectual property. The United States filed the case regarding these violations on March 23, 2018.
  • continue with its Section 301 trade action and impose a 25 percent tariff on $50 billion of goods imported from China. The final list of covered imports will be announced by June 15, 2018.

The statement notes that the United States “will request that China remove all of its many trade barriers, including non-monetary trade barriers, which make it both difficult and unfair to do business there” and that “tariffs and taxes between the two countries be reciprocal in nature and value.”

Secretary of Commerce Wilbur Ross, at the direction of President Donald Trump, has initiated an investigation to determine whether imports of automobiles, including SUVs, vans and light trucks, and automotive parts into the United States threaten to impair the national security as defined in Section 232 of the Trade Expansion Act of 1962. “There is evidence suggesting that, for decades, imports from abroad have eroded our domestic auto industry,” said Secretary Ross. “The Department of Commerce will conduct a thorough, fair, and transparent investigation into whether such imports are weakening our internal economy and may impair the national security.” President Trump stated that, “Core industries such as automobiles and automotive parts are critical to our strength as a Nation.”

According to Commerce, during the past 20 years, imports of passenger vehicles have grown from 32 percent of cars sold in the United States to 48 percent. From 1990 to 2017, employment in motor vehicle production in the United States declined by 22 percent. The investigation will consider whether the decline of domestic automobile and automotive parts production threatens to weaken the internal economy of the United States by potentially reducing research, development and jobs for skilled workers in connected vehicle systems, autonomous vehicles, fuel cells, electric motors and storage, advanced manufacturing processes, and other cutting-edge technologies.

A formal notice of the investigation setting forth the scope and schedule will be published in the Federal Register in the near future.

In response to the United States’ withdrawal from the Joint Comprehensive Plan of Action (JCPOA, also informally known as the Iran nuclear deal) on May 8, 2018, the European Union (EU) has announced that it will take several actions in an effort to continue the full implementation of the JCPOA and to protect EU businesses. These actions are:

  • Initiate the formal process to activate the “blocking statute” by updating the list of U.S. sanctions on Iran falling within its scope. The blocking statute forbids EU persons from complying with U.S. extraterritorial sanctions, allows companies to recover damages arising from such sanctions from the person causing them, and nullifies the effect in the EU of any foreign court judgments based on them. The intent is to have these blocking regulations in force before August 6, 2018, when the first wind-down period ends and certain U.S. trade and economic sanctions are reinstated.
  • Begin the formal process to remove obstacles for the European Investment Bank (EIB) to decide under the EU budget guarantee to finance activities outside the EU in Iran. This will allow the EIB to support EU investment in Iran and could be useful for small and medium-sized companies.

Before full implementation of these actions, the European Parliament and the Council of the European Union will have up to a two-month period to object to these measures. The EU has also encouraged the following actions:

  • As confidence-building measures, the European Commission will continue and strengthen the ongoing sectoral cooperation with, and assistance to, Iran, including in the energy sector and as to small and medium-sized companies. Financial assistance through development cooperation or partnership instruments will also be mobilized.
  • The Commission is encouraging member states to explore the possibility of one-off bank transfers to the Central Bank of Iran. This could help the Iranian authorities to receive their oil-related revenues, particularly with U.S. sanctions that could target EU entities active in oil transactions with Iran.

Once implemented, these measures will likely leave foreign companies in the difficult position of determining any associated risks and potential penalties of continuing business transactions in Iran in support of the EU position to maintain the terms of the JCPOA, or risk running afoul of U.S. secondary sanctions pertaining to Iran that seek to limit and possibly penalize non-U.S. companies that conduct business in Iran as well as in the United States.