Trump Administration Tariffs: Considerations for U.S. and Global Companies

Donald Trump’s reelection as president of the United States raises considerations for both U.S. and non-U.S. companies importing goods into the country. Specifically, given Trump’s plan to impose “universal baseline tariffs on most foreign products” to “reward[] domestic production while taxing foreign companies,” what tariffs will be imposed, and what can importers do to protect themselves from the increased financial burden tariffs create? After Trump takes office on Jan. 20, 2025, supply chains most likely will be more expensive, with any additional tariffs likely impacting U.S. retailers, wholesalers, and manufacturers. During the campaign, Trump announced he would impose an additional 10-20% on global products and an additional 60% on products of China. Presidents have broad authority to impose tariffs and there are numerous legal authorities the Trump administration can rely on to impose them. In this GT Alert, we address those statutes and discuss strategies importers should consider to protect themselves from the increased financial burden. Statutory legal authority includes:

  • International Emergency Economic Powers Act of 1977 (IEEPA) provides the president with the authority to address unusual and extraordinary threats to national security through economic sanctions. According to the IEEPA, “Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat . . . if the President declares a national emergency with respect to such threat.” President Trump may use this act to address U.S. trade deficits.
  • Section 232 of the Trade Expansion Act of 1962 grants the president the power to impose restrictions on imports that pose a threat to national security, including through the imposition of tariffs. Previous legal challenges to the use of Section 232 have been unsuccessful.
  • Section 301 of the Trade Act of 1974 allows the president to respond to foreign trade practices that disadvantage the United States, authorizing the executive to (1) impose duties or other import restrictions, (2) withdraw or suspend trade agreement concessions, or (3) enter into binding agreements with foreign governments to eliminate the conduct in question or provide compensation. In his first term, President Trump used Section 301 beginning in July 2018 to impose additional tariffs of 25% or 7.5% on four lists of products from China. To date, the tariffs are still in place.
  • Section 338 of the Tariff Act of 1930 allows the president to impose additional tariffs of up to 50% on any country that discriminates against U.S. goods.
  • Section 122 of the Trade Act of 1974 provides the president with a “balance of payments” authority, allowing the imposition of an additional 15% tariff on imports for 150 days “[w]henever fundamental international payments problems require special import measures to restrict imports—(1) to deal with large and serious United States balance-of-payments deficits, (2) to prevent an imminent and significant depreciation of the dollar in foreign exchange markets.”

Prior to the implementation of additional tariffs, U.S. companies should consider increasing visibility into their supply chains. Importers may wish to review each imported product and confirm its country of origin. Specifically, if an additional 10% is added to products of the European Union and 60% is added to products of China, and a purchase agreement states the country of origin is the EU, U.S. companies should consider confirming the bill of materials and production steps to ensure that the product is in fact manufactured in the EU and not merely assembled there.

In addition, U.S. importers should consider reviewing incoterms (international commercial terms) on all purchase orders to determine which party is responsible for the tariffs. Note that tariffs are assessed based on the date of entry of goods into the United States and not the purchase order date. If a U.S. importer and non-U.S. supplier are currently negotiating a master purchase agreement that will take effect between now and the implementation of new tariffs under the Trump administration, importers may wish to add language so that the purchase price does not include the additional duties at whatever date the goods enter the United States.

Finally, there are numerous duty-mitigation strategies importers can consider to potentially blunt the impact of increased costs, including the use of “first sale” in a multi-tier transaction. Imported merchandise may have been the subject of more than one sale, with the middleman buyer adding an amount for profit and expenses to the price paid by the U.S. importer at entry. For example, merchandise may be manufactured in China, sold to a middleman in Hong Kong, and then sold to a buyer/importer in the United States. Under certain circumstances, importers can declare the value of the goods on the “first” or earlier sale, rather than on the last one, thereby reducing the declared value of the goods upon which duty payments are based. In addition, importers may consider taking legal deductions from the declared value, such as foreign inland and international freight.

The implementation of tariffs in the Trump administration seems likely, although the specifics have yet to be disclosed. In the meantime, companies should consider increasing transparency into their global supply chains and employing duty-mitigation strategies.

Certain Goods and Services Now Eligible for Importation into the United States from Cuba

The U.S. Department of State published its Section 515.582 List that outlines which goods and services produced by independent Cuban entrepreneurs are eligible for importation into the United States.

In accordance with the Cuban policy changes announced by U.S. President Barack Obama on December 17, 2014, the Office of Foreign Assets Control (OFAC) issued implementing regulations on January 16, 2015. A new Section 515.582 of the Cuban Assets Control Regulations (31 C.F.R. Part 515—the CACR) authorized the importation into the United States of certain goods and services produced by independent Cuban entrepreneurs as determined by the U.S. Department of State. However, Section 515.582 as issued on January 16 did not state what those goods and services actually are. Section 515.582 states the following:

Persons subject to U.S. jurisdiction are authorized to engage in all transactions, including payments, necessary to import certain goods and services produced by independent Cuban entrepreneurs as determined by the State Department as set forth on the State Department’s Section 515.582 List, located here.

Note 1 to §515.582: As of the date of publication in theFederal Register of the final rule including this provision, January 16, 2015, the State Department’s Section 515.582 List has not yet been published on its Web site. The State Department’s Section 515.582 list also will be published in the Federal Register, as will any changes to the list.

Note 2 to §515.582: Imports authorized by this section are not subject to the limitations set forth in §515.560(c).

On February 13, 2015, the Department of State issued its Section 515.582 List, as follows below.

Goods

The goods whose import is authorized by Section 515.582 “are goods produced by independent Cuban entrepreneurs, as demonstrated by documentary evidence” that are “imported into the United States directly from Cuba,” except for goods specified in the following sections/chapters of the Harmonized Tariff Schedule of the United States (HTS):

  • Section I: Live Animals; Animal Products (all chapters)

  • Section II: Vegetable Products (all chapters)

  • Section III: Animal or Vegetable Fats and Oils and Their Cleavage Products; Prepared Edible Fats; Animal or Vegetable Waxes (all chapters)

  • Section IV: Prepared Foodstuffs; Beverages, Spirits, and Vinegar; Tobacco and Manufactured Tobacco Substitutes (all chapters)

  • Section V: Mineral Products (all chapters)

  • Section VI: Products of the Chemical or Allied Industries (chapters 28–32; 35–36, and 38)

  • Section XI: Textile and Textile Articles (chapters 51–52)

  • Section XV: Base Metals and Articles of Base Metal (chapters 72–81)

  • Section XVI: Machinery and Mechanical Appliances; Electrical Equipment; Parts Thereof; Sound Recorders and Reproducers, Television Image and Sound Recorders and Reproducers, and Parts and Accessories of Such Articles (all chapters)

  • Section XVII: Vehicles, Aircraft, Vessels, and Associated Transportation Equipment (all chapters)

  • Section XIX: Arms and Ammunition; Parts and Accessories Thereof (all chapters)

Accordingly, any goods produced by independent Cuban entrepreneurs that do not fall under one of the above-enumerated HTS categories are now eligible for importation. Persons subject to U.S. jurisdiction who engage in import transactions involving goods produced by an independent Cuban entrepreneur pursuant to Section 515.582 must obtain documentary evidence that demonstrates the entrepreneur’s independent status, such as a copy of a license to be self-employed that was issued by the Cuban government or, in the case of an entity, evidence that demonstrates that the entrepreneur is a private entity not owned or controlled by the Cuban government.

“Persons subject to U.S. jurisdiction” means the following for purposes of the CACR:

  • (a) Any individual, wherever located, who is a citizen or resident of the United States;

  • (b) Any person within the United States;

  • (c) Any corporation, partnership, association, or other organization organized under U.S. laws or the laws of any state, territory, possession, or district of the United States; and

  • (d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in items (a) or (c).

This Section 515.582 List does not supersede or excuse compliance with any additional requirements in U.S. law or regulation, including the relevant import duties as set forth on the HTS.

The Department of State stated that the $400 monetary limit set forth in Section 515.560(c)(3) of the CACR for travelers who bring back goods from Cuba as accompanied baggage would not apply for any goods now authorized for import under Section 515.582.

Services

The authorized services pursuant to 31 C.F.R. §515.582 are services supplied by an independent Cuban entrepreneur in Cuba, as demonstrated by documentary evidence. Persons subject to U.S. jurisdiction who engage in import transactions involving services supplied by an independent Cuban entrepreneur pursuant to Section 515.582 are required to obtain documentary evidence that demonstrates the entrepreneur’s independent status, such as a copy of a license to be self-employed that was issued by the Cuban government or, in the case of an entity, evidence that demonstrates that the entrepreneur is a private entity not owned or controlled by the Cuban government.

Payments

All payment transactions necessary to import goods and services authorized by Section 515.582 are also authorized. We recommend that payment documentation reference Section 515.582 to avoid payment rejection.

The Department of State, in consultation with other federal agencies, reserves the right to update the list periodically. Any subsequent updates will take effect when published on the Web page of the Bureau of Economic and Business Affairs’ Office of Economic Sanctions Policy and Implementation. Updates will also be published in the Federal Register.

BY
Louis Rothberg
Margaret M. Gatti

OF

Morgan, Lewis & Bockius LLP