Introduction

Globalization and the need to efficiently deploy corporate resources have led many multinational companies to establish global supply networks. Although these efforts often lead to the efficient deployment of capital, diversify the revenue base among countries, and minimize currency exchange risk, these efforts also increase the exposure of the company to political risks that impact the long-term economic assumptions that undergird multinational investment.

Mr. Trump’s campaign introduced several forms of unanticipated risk for multinational companies. Whether the focus was on the supposed problems of the World Trade Organization (WTO), the North American Free Trade Agreement (NAFTA), or trade with countries where the United States maintains a significant adverse trade balance (especially China and Mexico), the common theme was that the rules are stacked against U.S. interests and costing jobs, especially in the manufacturing sector.

But changing the ground rules can have a great impact on investing assumptions. One of the greatest challenges to this international investing environment is the promise to reform and/or repeal NAFTA; this political risk is analyzed in a previous alert . An additional risk, however, arises due to the heightened likelihood that the Trump administration will be receptive to the filing of international trade remedy actions, such as antidumping, countervailing duty, and safeguard actions. These actions, if pursued broadly, will create both winners and losers (depending on the position of the company at issue and whether it identifies more as a domestic producer or as an importer/consumer of foreign products). To address the risks of such actions, and to help companies determine whether they should welcome or fear them, this client alert presents the “top ten questions” companies potentially impacted by international trade remedies should be considering. Future client alerts will deal comprehensively with all international trade and regulatory areas where significant change could occur under the new administration.

The Top Ten International Trade Questions Answered (Or, Will Trump Trade Free Trade for a Trade Blockade?)

1. What has President-elect Trump promised?

International trade, and the impact of trade on the loss of manufacturing jobs, received prominent attention from Mr. Trump during the election. In particular, he announced proposals that would protect U.S. manufacturers through the imposition of higher tariffs, such as proposed 45 percent tariffs on goods from China and 35 percent tariffs on certain goods imported from Mexico, such as cars and trucks. Other proposals include the expanded use of trade remedies, the designation of China as a "currency manipulator," and the exertion of pressure on the WTO to change rules that disfavor U.S. manufacturers, such as the treatment of value-added taxes (VAT) under the WTO agreements. Indeed, right before this client alert was published, a new proposal for a “border tax” on imports was being floated as a way of raising the cost of importing without touching tariff rates (i.e., the proposal would prevent U.S. companies from deducting the cost of imported goods on their taxes, giving them a strong incentive to use U.S.-made goods, while exempting exports from being taxed, giving companies a strong incentive to export).

The international trade team proposed by Mr. Trump includes Mr. Lighthizer, a former Deputy U.S. Trade Representative instrumental in taking steps to lower the U.S. trade deficit, including through the negotiation of voluntary restraint agreements designed to curb sales of steel to the United States. With Mr. Lighthizer spending the last three decades representing the U.S. steel industry (the most prolific industry in terms of filing new antidumping and countervailing duty petitions), the mindset of using the trade remedy proceedings to protect U.S. industries is likely to receive a boost. In addition, Mr. Trump has tapped Mr. Navarro, a professor at the University of California (Irvine), who is most famous for his book entitled “Death by China,” which argues that China has helped to gut U.S. manufacturing through the pursuit of mercantilist policies and subsidization of excessive, state-funded exports to the United States. It is difficult to imagine a more receptive environment for the filing of new trade remedy actions, particularly if they focus on growing Chinese imports.

Now that Mr. Trump is President-elect, he must have a legal basis for any actions taken. The reality is, WTO restrictions and the requirement to honor most-favored nation tariff limits restrict how high tariffs can go. Further, with an estimated half of all U.S. manufacturing jobs depending on exports, as president, Mr. Trump can expect extreme political pressure from U.S. exporters not to foreclose their trade opportunities by starting a massive trade war.

Yet the public disenchantment with global trade, and with countries viewed as abusing the trade rules (especially China), are very real. Discontentment with the largely bipartisan push since the end of World War II to encourage global trade is not going to disappear with the inauguration of a new president.

The pressure valve to reconcile legal restrictions on raising tariffs and the desire for protectionism will likely take the form of international trade remedies. International trade remedies can, depending on the remedy, be initiated at the request of an industry, U.S. trade association, or a labor union, or even in some cases be started by special action of the U.S. government. As discussed in detail below, other executive action could include directing the U.S. Department of Justice (DOJ), the U.S. Department of Commerce (DOC), and U.S. Customs and Border Protection (CBP) to increase the attention paid to enforcement actions to protect U.S. companies from illegal dumping practices, including circumvention of antidumping and countervailing duty orders, false identification of products to avoid tariffs, and other unfair trade practices.

2. What are trade remedies and how do they work?

Over the past four decades, the U.S. government has imposed trade remedies in various forms on many manufactured products, chemicals, and raw materials — basically, a wide variety of products imported in significant quantities. The most common actions result in antidumping and countervailing duty orders, which are imposed following an investigation on whether producers from selected countries have engaged in “unfair trade.” Other trade remedy actions, although less common, also have been used to protect U.S. industries from time to time. In most cases, the end result of these proceedings is to impose a special, additional tariff on each entry of the subject merchandise, thereby raising the cost to purchase the imported good. The main actions available are as follows:

• Antidumping/countervailing duty investigations. These forms of international trade remedies focus on relief for individual products or classes of related products. They do not provide the general relief that would occur with a wholesale increase in customs duties, but can offer powerful relief in a more targeted fashion. Both types of cases generally are implemented through the filing of a petition by a U.S. industry that has sufficient industry support to have “standing” to file the petition, although the U.S. government rarely will self-initiate a case (which last occurred in 1991 for Softwood Lumber from Canada).

  “Dumping” exists when the DOC finds that goods were sold in the United States at less than “fair value,” generally defined as the sales price for the identical or similar goods in the home market of the foreign company or a third market (or, in certain situations, the cost of production for the goods with the addition of a profit margin). Countervailing duties are imposed when it is determined that a specific producer or industry, or group of producers or industries, has received a “financial contribution” that “benefits” the subject merchandise. In both cases, a special antidumping or countervailing duty is imposed if the International Trade Commission (ITC) also determines that the producers of the domestic like product have either suffered material injury or are threatened with material injury by reason of the subject imports.

  The remedy in either case is a tariff designed to offset the margin of dumping or subsidization determined to exist. Duties in antidumping and countervailing duty proceedings often exceed 10 – 20 percent of the entered value of subject merchandise (depending upon the information submitted in lengthy and detailed questionnaire submissions), with the exact margin determined based upon the lengthy record submitted, including detailed sales and cost information. It is not uncommon for calculated margins to range into the 30 – 40 percent range, and if the non-U.S. companies that are the subject of these investigations do not fully respond to the detailed requests for information (or fail to have their information verified), the duties imposed are based upon “facts available,” which is intended to be punitive. Facts-available margins often are in the high double or low triple digits, thereby effectively barring the subject imports from the U.S. market altogether.

• Section 201 safeguard (escape clause) proceedings. Safeguard proceedings are intended to give temporary, but broad-based, relief to industries suffering severe injury from a surge in imports. Under section 201, domestic industries that believe they meet this standard can petition the ITC for relief. If the ITC makes an affirmative finding, the president can discretionarily grant relief, generally for a period of up to three years. The finding turns only on whether severe injury is occurring; there need not be any finding of an unfair trade practice. Although this remedy has not often been sought in the past, due to a concern that both Republican and Democratic presidents were hostile to granting relief, this could well change under President Trump. Although the relief is broad-based, generally against an entire industry’s product (such as steel), the limited time frame of relief could lead industries to favor the filing of antidumping actions, which generally last 10 – 20 years (until repealed as part of the sunset review process).

• Section 301 proceedings. Section 301 of the Trade Act of 1974 gives the U.S. trade representative, at the direction of the president, the ability to impose tariffs based on “an act, policy, or practice of a foreign country that is unreasonable or discriminatory and burdens or restricts U.S. commerce.” This remedy is a form of safeguard available for violations of an international trade agreement, such as NAFTA. One of the remedies that can be imposed is higher tariffs on imports from the partner country, which also is granted at the discretion of the president.

• Section 122 balance-of-payment proceedings. Section 122 of the Trade Act of 1974 authorizes the president to deal with “large and serious United States balance-of-payments deficits” by imposing temporary import surcharges or temporary quotas or a combination of both. This relief is limited and temporary, however, as it can only last 150 days, and the charge cannot exceed 15 percent of the ad valorem value of the imported goods.

• Section 232(b) national security actions. Where there is a deemed threat to national security, Section 232(b) of the Trade Expansion Act of 1962 authorizes the secretary of commerce to investigate imports and then take actions to limit or restrict them, or to “take such other actions as the president deems necessary to adjust the imports of such articles so that such imports will not threaten to impair the national security.”

• Section 337 unfair trade practices proceedings. These proceedings target unfair trade practices, including the abuse of patent and trademark rights. In some recent cases, U.S. companies have created novel theories that would allow the ITC to reach a wide variety of conduct, thereby expanding the use of the section 337 process to address perceived unfair trade practices.

• Currency manipulation. Mr. Trump frequently stated one of his first actions would be to label China a “currency manipulator,” which keys into the passage of a 2016 law permitting the president to impose remedial measures if bilateral talks with a country accused of manipulating its currency prove ineffective. Under the law, any such designation requires the U.S. Department of Treasury initiate negotiations with the country so designated to eliminate the unfair advantage, leading to the possibility of remedial measures if the talks fail. Although the evidence of China manipulating its currency downwards is weaker today, given that China actually is taking steps to prop up its currency through new provisions designed to make it harder to withdraw money from the country, the designation could be used to exert pressure on China to deal with issues related to the funding of capacity expansion in areas where there is little commercial reason for such construction or other actions by the Chinese government that encourage exports to the United States. In addition, the DOC could begin to include currency manipulation as a countervailable subsidy in countervailing duty cases, which would lead to higher duties in anti-subsidy cases.

3. Aren't trade cases already being filed? What will change?

International trade filings are cyclical, with filings varying depending on such factors as the general economy, the profitability of particular industries, and industry inclination to seek trade relief. Over the last few years, antidumping and countervailing duty filings have increased, both in total numbers and in terms of the size of the cases, culminating in the filing of major cases involving various steel products over the last two years and softwood lumber from Canada (filed right after the election).

Based on Mr. Trump’s campaign statements, this trend is likely to accelerate. In addition, two pieces of legislation passed in 2016 will make it easier for the U.S. industry to prevail in these actions. The Trade Remedies Bill and the Trade Facilitation and Trade Enforcement Act of 2015 make it easier to bring antidumping and countervailing duty cases and provide increased discretion to the DOC to manage cases. Indeed, as the law is structured, the Trump administration could even decide to self-initiate antidumping and countervailing duty investigations without waiting for domestic producers to do so. Industries also might seek broad-based relief under safeguard provisions, which has not occurred since the 2001 steel safeguard proceedings. Many industries will be giving this remedy a second look due to the perceived willingness of a Trump administration to provide broad-based safeguards relief.

4. How effective are trade remedies? Whom do they impact?

The effectiveness of trade remedies varies from not helpful to critical, depending on the product, industry, and the way the proceedings unfold. The success of the trade remedy generally depends on four factors: (1) the breadth of the filing (product scope); (2) whether the filing captures all likely sources of import competition (i.e., both current countries providing competition and those likely to move in if an order is imposed); (3) the margins achieved; and (4) the length of time the relief is in place. In some instances, instead of achieving import relief, the U.S. industry finds trade filings have just encouraged foreign manufacturers to open their doors in the United States, increasing domestic competition. Moreover, if the filing does not capture most or all sources of potential competition, the order may be “leaky,” i.e., even if high duties are achieved, it may be the case that competitors from other countries rush to fill the void. This is what happened, to take one high-profile example, when the U.S. government imposed tariffs on Chinese tires. Although Chinese tire imports sharply fell, much of the shortfall was filled by tires coming from other countries rather than from U.S. production. The result was only temporary relief and a later series of antidumping cases brought against various tire products individually.

The margin calculated (which is the primary determinant of the deterrent effect of orders) is difficult to predict in advance, as it depends upon the data submitted, the degree of cooperation of the respondent, and whether the DOC verifies that the submitted data is accurate in all material respects. In nearly all cases, however, the Department finds a sufficiently large margin (i.e., greater than de minimis) and it issues an affirmative final determination. The battle then moves to the ITC, where it is necessary to show material injury. As a result, the most important consideration in filing a petition is whether a strong case can be mounted that the U.S. industry is: (1) suffering from material injury or the threat of future material injury; and (2) that the injury is “by reason of” subject imports. Determining this causal connection exists requires examining import trends (pricing and quantity) over the prior three years and other information related to the impact that subject imports are having on the domestic industry producing the like product.

Despite these caveats, in the overwhelming majority of cases, trade remedies provide effective and long-lasting relief to U.S. producers of the subject merchandise, through the form of increased selling prices and/or increased sales opportunities.

5. What industries and sectors are most at risk?

Nearly any product can be the subject of a trade remedy action. Cases have been brought on products with a great deal of trade (softwood lumber, steel, and semiconductors) and small (wire hangers and specialty chemical products). A case was once even brought on the sale of uranium enrichment services, where the delivery of the services occurred through the importation of low enriched uranium. A summary of the 375 existing antidumping and countervailing duty orders (taken from the ITC website) is as follows:

Although cases involving iron, steel, and immediately downstream steel products (e.g., pipe and tube) dominate, antidumping and countervailing duty actions are found for numerous product types. Basically, any industry where imports of a given product are sharply increasing, especially where prices are being driven down by these increasing imports, potentially is at risk of a trade filing.

6. Is this just about China? What countries will likely be targeted?

China currently has 102 antidumping and 38 countervailing duty orders in place, which far exceeds the totals for any other country. The duties imposed often range into the high double or low triple digits. With China being both the largest U.S. trade partner and the largest contributor to the U.S. trade deficit in goods (over $350 billion annually), and with Mr. Trump attacking both China’s supposed unfair trade practices and its admittance into the WTO (which was a “colossal” mistake in the words of Mr. Trump), it is widely expected China will continue to be a focus of trade remedies.

This does not mean exporters from other countries can breathe a sigh of relief. As shown by this summary of ITC data, a total of 41 countries have antidumping or countervailing duty orders in place against them:

An important point to note is once a decision is made to bring a case against one country, it is relatively simple to add on additional countries. This is because petitions are put together for a group of countries, with the proceedings moving forward on a unified basis at the ITC. Although proceedings at the DOC are conducted separately for each mandatory respondent from each country, there still are strong efficiencies in bringing multiple cases at once even on the DOC side. Bringing multiple cases also can make it easier to show material injury (by increasing the percentage of the U.S. market where there is competition with subject imports) and can avoid the problem of having a leaky order, whereby producers from countries not targeted in the antidumping or countervailing duty investigation rush in to fill the trade gap that can arise when subject producers withdraw from the U.S. market following the imposition of orders.

7. What about the WTO?

The WTO is an intriguing part of the international trade puzzle, because Mr. Trump at times claimed he would withdraw from the agreement, he would seek to have it amended (to eliminate rules that he said favor countries that use a value-added tax by allowing them to deduct the value of the VAT for exports, thereby conferring what he called an export subsidy), and he would seek to bring more cases against other countries under the WTO dispute settlement rules. So with Mr. Trump both assailing the WTO and pledging to rely on it, his views are difficult to predict. Nonetheless, there is every expectation the Trump administration will aggressively use the WTO dispute settlement procedures to build on the fourteen WTO cases the Obama administration brought against China alone.

WTO agreements primarily are intended to help expand U.S. export opportunities rather than to deal with import activity within the United States. Further, because of limitations on the efficacy of the WTO processes, which are often tediously long, can often be sidestepped, and which generally grant only prospective relief, it is most likely WTO cases will not be the main focus of protecting U.S. interests and instead will serve a supplementary role in securing U.S. export opportunities. The main protections will occur from domestic trade remedy litigation.

8. Everything discussed above sounds scary. What can I do to mitigate the risk of international trade litigation?

The decision as to whether to bring a case is within the discretion of the U.S. industry producing a given product. It is not uncommon for importers of a product who have not prepared a contingency plan to find themselves stuck when a case is filed, particularly if they are contractually obligated to continue to purchase the foreign product despite the prospect of sharply higher duties. Here are some precautionary steps companies worried about being ensnared in a potential trade action can take:

• Monitor import statistics and trade rumors. Sometimes, trade filings come out of nowhere, through the filing of a petition that was impossible to predict. In many cases, however, there are signs a case is coming — industry rumors, articles in industry publications, or trade patterns compatible with a finding of material injury “by reason of” imports of a given product. Cases are especially likely to be filed when imports from key foreign countries are increasing, when average unit values for such products are declining, and when the U.S. industry is suffering from declining profitability or increasing losses. Especially for industries where trade remedy filings are common, it can be useful to pay attention to trends that potentially indicate the filing of an action. Data regarding import trends, including the average unit value of imports and the quantity of imports, broken down by country and Harmonized Tariff System classification, is available on the ITC Dataweb website.

• Evaluate when acting as importer of record. Although trade remedy actions are aimed at foreign manufacturers and exporters, the duties imposed actually are collected from the importer of record as a percentage of the ad valorem (value) of each entry of the subject merchandise. Importers who are not paying attention to the release of new orders can find they have inadvertently imported goods now subject to extra duties — in some cases, at rates that exceed the value of the good itself (i.e., where duty rates exceed 100 percent). Companies need to be aware of contractual arrangements where they have agreed to be the importer of record, particularly for goods like iron and steel products where trade filings are common.

• Establish contingency measures in long-term supply agreements. Companies highly reliant on imported goods need to evaluate whether their long-term contracts cover the contingency of which party acts as the importer of record, the delivery terms (terms of delivery like CIF and FOB can impact who is responsible for paying for duties), whether reimbursement of duties occurs, whether the possibility of increasing tariffs is even addressed, and whether the parties have the right to terminate the contract based upon the imposition of unanticipated duties. Force majeure clauses may not meet legal requirements for contract termination on the basis of unanticipated duties.

• Check entries carefully against orders. As noted, every time a new trade remedy is imposed, there are always importers surprised by the unanticipated duties. Relying on customs brokers or freight forwarders to handle this situation often can be inadequate, as these third parties generally are not given the responsibility of knowing what products are planned for importation. Once the goods have reached the customs territory of the United States, it is too late to do anything because duty drawback is not available for antidumping and countervailing duties. It also is not uncommon to have customs brokers miss the imposition of new antidumping or countervailing duties, even though this task does fall within their contractual responsibilities. Because the liability of customs brokers is generally limited by contract to the modest value of the fee paid for the processing of the goods, companies should take steps to independently follow which goods become subject to new orders as part of their customs compliance.

• Know the correct classification of entries. Duties are imposed based upon the physical description of the merchandise, not the HTS classification, which is given for convenience only. If customs determines goods should have been declared to be subject to an antidumping duty order, it will impose the duties even if the HTS classification declared or believed to be true indicated otherwise. In any situation where entries are in a gray area, special attention should be paid to get the classification correct and determine whether the good falls within the scope of the order. Some orders have complicated scopes that can make classification, such as the aluminum extrusions order (which is the subject of approximately eighty scope determinations by the DOC). If certainty is not possible through self-classification, importers should consider filing a request for a scope ruling, which results in the DOC issuing a definitive ruling as to whether the goods are within the scope of an order.

• Be aware of potential circumvention red flags. Because duty rates can be high, some less scrupulous exporters will misclassify their goods, such as by claiming different product attributes or classifications than in fact exist, by claiming an erroneous country of origin, or otherwise. Duties are paid, however, by the importer of record not the manufacturer. Any importer noticing red flags that indicate potential circumvention should check into it before CBP does.

• Establish a monitoring system and vigorously participate in administrative reviews. Foreign companies that export subject merchandise need to be especially careful. Under the DOC rules, the two largest foreign exporters generally are chosen to be “mandatory respondents” in administrative reviews. Administrative reviews are conducted annually and basically involve the submission of new data by the foreign producer to reset the antidumping or countervailing duty margins. Sophisticated foreign companies operating under an order can construct detailed system that allow them to sell at close to non-dumped prices in the United States, thereby allowing them to maintain or even lower the operative antidumping margin assessed against their entries.

9. What if I am on the other side of the issue, and believe I am the victim of unfair trade? Is there anything I can do?

The options for companies that believe they are being hurt by unfair trade varies depending on whether the good already is covered by an order or whether the producer is contemplating bringing a new action. For products covered under existing orders, constant vigilance regarding whether foreign competitors are taking steps to circumvent orders is necessary. Some common ways in which circumvention occurs is by mismarking the country of origin, transshipping goods through third countries, conducting minor processing of goods in a third country and claiming the good was substantially transformed and became a product of the third country, and shipping components into the United States for only minor assembly in so-called “screwdriver” factories. In some cases, companies have added trace amounts of nonessential components to try to take a product just slightly outside of the scope of the relevant order.

Monitoring this kind of activity is important for companies looking to capitalize fully on increased tariffs intended to diminish foreign competition. Information regarding imports can be gotten for a fee from commercial services, such as PIERS. If it appears duties are not being appropriately paid, this can be brought to the attention of the DOC through a request for an anti-circumvention inquiry.

An additional option recently opened up is a new law that gives U.S. producers a strong tool to prevent circumvention of orders through the grant to CBP of heightened authority to investigate allegations that foreign exporters are evading antidumping and countervailing orders. Under the new law, U.S. producers, wholesalers, and unions (among others) of the same or similar products covered by antidumping and countervailing duty orders can file an allegation that an importer has entered the merchandise subject to the order through evasion. CBP even provides a website to report such concerns. The law allows the DOC and the ITC to submit evidence of evasion as well. CBP is then required to investigate the allegation to determine its accuracy.

A final tool to consider is the False Claims Act, which is a way by which private persons can file a claim, on behalf of the U.S. government, alleging the U.S. government is being deprived of revenue due to the circumvention of orders. If such circumvention is determined to exist, the result can be penalties two or four times the duties, taxes, and fees of which the United States was deprived, or equal to the domestic value of the imported merchandise. Liability for treble damages and penalties ranging from $10,781 to a maximum of $21,563 per violation are also available. With duties potentially running into the triple-digit range, the amount of potential duties can quickly rise. In addition, whistleblower provisions may allow the recovery of up to 30 percent of any recovery made by the government, depending on whether the government intervenes to take over the case. If it does, the ongoing work from the whistleblower is low, as the case will be prosecuted to its end by the government, with the whistleblower potentially receiving a large bounty at the conclusion of the investigation.

Where products are not covered by an existing order, for all the reasons listed above the environment probably has never been more receptive for companies seeking import relief. This topic is covered below.

10. How can I tell if there is potentially a good case I should be bringing/should be worried will be brought?

Of all the trade remedy actions listed above, the most common by far are antidumping and countervailing duty actions. These cases generally are initiated after a detailed petition is filed by manufacturers, producers, or wholesalers in the United States of the same or similar products; by a certified union or recognized union or group of workers in the United States of the same or similar products; by a trade or business association whose members manufacture, produce, or wholesale the same or similar products in the United States; or by an association of these groups.

Preparing a petition is a lot of work. The petition must contain detailed responses to a large number of questions relating to the existence and amount of dumping and/or subsidization, the identities of known manufacturers and importers, and detailed information regarding how subject imports allegedly have harmed U.S. producers of the domestic like product. One advantage of the process, however, is a draft petition can be submitted in advance of filing to both the DOC and the ITC, which will follow up with detailed comments and requests for information to fill in any perceived gaps in the petition. This is a huge advantage, akin to a company being able to provide an advance copy of its brief to a judge for comments regarding the strengths of the arguments.

The determination as to whether a case should be brought is a complicated one, and depends on close evaluation of the level of imports, their pricing, trends in import quantities and their pricing, and other factors bearing on whether there is a case for material injury or the threat thereof. Detailed information also needs to be provided regarding the potential antidumping duty margin, which is evaluated at the DOC.

Conclusion

The last two years have seen a resurgence of trade filings, including a resumption of the steel “trade wars” that last dominated international trade filings in the 1990s. These trade filings have become a common worldwide phenomenon, with many countries other than the United States now commonly proceeding with such filings. But with Mr. Trump promising his administration will pay special attention to the impact of international trade on U.S. manufacturing jobs, and the pivotal role that key manufacturing states such as Wisconsin, Pennsylvania, and Ohio played in his election, the prospect of an expansion of the steel “trade wars” to other products is very real. Companies on each side of the issue would be well served to begin their preparations now.