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This Week's Trade & Tariff Perspective

April 7, 2021 | Kevin Koch Product Development Manager, Customs

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Free trade agreements, trade promotion authority, and customs facilitation and enforcement


Trade agreements
“Trade Agreements can create opportunities for Americans and help to grow the U.S. economy,” according to the Office of the United States Trade Representative (USTR). The USTR has principal responsibility for administering U.S. trade agreements, which includes monitoring trading partners' implementation of trade agreements with the United States, enforcing U.S. rights under those agreements, and negotiating and signing trade agreements that advance the president's trade policy.

The United States currently has free trade agreements (FTAs) in effect with 20 countries. Many are bilateral agreements between two governments, while others, like the United States-Mexico-Canada Agreement (USMCA) and the Dominican Republic-Central America-United States Free Trade Agreement, are multilateral agreements among several parties. Find more information about the trading partners involved on the USTR site, and learn about the requirements to qualify and declare your product under FTA benefits from the United States Customs and Border Protection (CBP).

Trade promotion authority
Trade promotion authority (TPA), sometimes called “fast track,” refers to the process Congress has made available to the president for limited periods to enable the president to approve and implement certain international trade agreements to be considered under expedited legislative procedures. Certain trade agreements negotiated by the president, such as those that reduce barriers to trade in ways that require changes in U.S. law, must be approved and implemented by Congress through legislation.

If the content of the implementing bill and the process of negotiating and concluding it meet certain requirements, TPA ensures time-limited congressional consideration and an up-or-down vote with no amendments. TPA may apply both when the president is seeking a new agreement as well as when the USTR is seeking changes to an existing agreement, such as the renegotiation of the North American Free Trade Agreement (NAFTA) to USMCA.

Key elements of TPA

  • Outlines congressional guidance to the president on trade policy priorities and negotiating objectives.
  • Establishes congressional requirements for the administration to notify and consult with Congress and communicate with the private sector, other stakeholders, and the public during the negotiations of trade agreements.
  • Defines the terms, conditions, and procedures under which Congress allows the administration to enter into trade agreements, and it sets the procedures for congressional consideration of bills to implement the agreements.

What is the current status of TPA?
TPA may be used for legislation to implement trade agreements reached before July 1, 2021. It could be extended if the president were to ask for an extension, but the window of opportunity to keep it in effect appears to be closing quickly.

What does this mean for trade agreement negotiations that the previous administration had been working on, such as those with the United Kingdom and Kenya? Don’t plan on any changes to trade agreements or implementation to new ones in the near term. TPA expedites the process, but with or without it, these things take a while. C.H. Robinson will be sure to issue updates and client advisories if and when U.S. trade policy strategy changes.

CBP enforcement
The CBP Office of Trade oversees implementation of FTAs and preferential trade legislations (PTLs), also known as “preference programs,” after negotiations by the USTR have concluded and the instruments are passed by the U.S. Congress. The CBP Office of Trade manages a portfolio of 15 FTAs with 21 countries and approximately nine other trade programs with over 179 countries, including preference programs such as the General System of Preferences (GSP) and the Africa Growth Opportunity Act (AGOA).

In Fiscal Year 2019, 26% of all imports into the United States claimed preferential treatment under a trade agreement or special trade legislation program, totaling $678 billion. With an average duty rate of 3.5% for non-textile goods, importers saved almost $24 billion by utilizing trade agreements that year.

Because trade agreements reduce or eliminate tariffs, quotas, and other trade and non-trade barriers, CBP ensures that imports meet rules of origin and other special conditions to qualify for preferential treatment. CBP has a direct responsibility to protect revenue, enforce trade compliance, and safeguard national and economic security.

CBP also reviews trade compliance activities, such as fraudulent trade practices, transshipments, false importer claims, undervaluation, and undercounting of goods. Additionally, CBP assesses areas of potential non-compliance and high-risk industries to ensure that only goods that comply with FTA’s and PTL’s rules of origin requirements claim preferential duty benefits, and that the appropriate duties are paid on imported goods that are not entitled to such preferential treatment.

Trade agreements feature complex rules of origin and other special conditions and processes for qualifying imports into the United States. CBP recommends importers develop compliance measurement plans and reliable recordkeeping procedures. The trade community should closely follow rulings and informed compliance publications.

CBP’s methods of enforcing trade agreements include conducting targeting analysis to investigate non-compliant imports and validating preference eligibility through audits and other comprehensive document reviews. If you’re going to take advantage of these programs, you must ensure that you have qualified your product and have the paper trail to defend your declaration.

Our Trusted Advisors® at C.H. Robinson can help you identify opportunities, as well as help you to understand the requirements involved in applying these special trade provisions.

Additional Resources

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Section 301 - Unfair trade practices

What is it?

Section 301 of the Trade Act of 1974 — Allows the United States Trade Representative (USTR) to suspend trade agreement concessions or impose import restrictions if it determines a U.S. trading partner is violating trade agreement commitments or engaging in discriminatory or unreasonable practices that burden or restrict U.S. commerce.

Background ReportCongressional Research Service – Section 301 of the Trade Act of 1974 – August 2020

Section 232 - National security concerns

What is it?

Section 232 of the Trade Expansion Act of 1962—Allows the president to adjust imports if the Department of Commerce finds certain products are imported in such quantities or under such circumstances as to threaten to impair U.S. national security.

Background ReportCongressional Research Service – Section 232 Investigations: Overview and Issues for Congress – August 2020

Section 201 – Cause/threat to domestic industry

What is it?

Section 201 of the Trade Act of 1974—Allows the president to impose temporary duties and other trade measures if the U.S. International Trade Commission (ITC) determines a surge in imports is a substantial cause or threat of serious injury to a U.S. industry.

Background ReportCongressional Research Service – Section 201 of the Trade Act of 1974 – August 2018

More trade topics & resources

Compliance checklists, on-demand webinars, and more from U.S. Customs and Border Protection.

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Trade & Tariff FAQs

Q: What is a tariff?

Tariffs or duties are taxes assessed on imports of foreign goods, paid by the importer to the U.S. government, and collected by U.S. Customs and Border Protection (CBP). Current U.S. tariff rates may be found in the Harmonized Tariff Schedule (HTS) maintained by the U.S. International Trade Commission (ITC). The U.S. Constitution grants Congress the sole authority to regulate foreign commerce and therefore impose tariffs, but, through various trade laws, Congress has delegated authority to the president to modify tariffs and other trade restrictions under certain circumstances.1

Q: What are various types of import restrictions that can be imposed by the government?

Tariffs – A tax on imports of foreign goods paid by the importer. Ad valorem tariffs are assessed as a percentage of the value of the import (e.g., a tax of 25% on the value of an imported truck). Specific tariffs are assessed at a fixed rate based on the quantity of the import (e.g. 7.7% per kilogram of imported almonds), and are most common on agricultural imports.

Quotas – A restriction on the total allowable amount of imports based either on the quantity or value of goods imported. Quotas are in place on a limited number of U.S. imports, mostly agricultural commodities, in part due to past trade agreements to remove and prohibit them.

Tariff-Rate Quota (TRQ) –TRQs involve a two-tiered tariff scheme in which the tariff rate changes depending on the level of imports. Below a specific value or quantity of imports, a lower tariff rate applies. Once this threshold is reached, all additional imports face a higher, sometimes prohibitive, tariff rate.

Q: Have U.S. trading partners taken or proposed retaliatory trade actions?

Yes. Some U.S. trading partners subject to the additional U.S. import restrictions have taken or announced proposed retaliations against each of the three U.S. actions. Since April 2018, a number of retaliatory tariffs have been imposed on U.S. goods accounting for $126 billion of U.S. annual exports, using 2017 export values.

Q: How much has the U.S. government collected from the various trade remedy measures?

U.S. Customs and Border Protection (CBP) assesses and collects duties on U.S. imports, including the additional duties imposed as a result of the president’s tariff actions. As of September 9, 2020, U.S. CBP has reported the following duty assessments.

Q: Are products of Hong Kong subject to the additional Section 301 duties against China?

No. Additional duties imposed by the Section 301 remedy only apply to articles that are products of the People’s Republic of China (ISO Country Code CN). Imported goods that are legitimately the product of Hong Kong (HK) or Macau (MO) are not subject to the additional Section 301 duties. Please note that Section 301 duties are based on country of origin, not country of export.2

Q: Are Section 301 duties eligible for drawback?

As noted in CSMS Message 18-000419, Section 301 duties are eligible for duty drawback. Drawback is the refund of certain duties, internal revenue taxes, and certain fees collected upon the importation of goods. Such refunds are only allowed upon the exportation or destruction of goods under U.S. Customs and Border Protection supervision.

Q: What is the timing of duty calculations on immediate transportation in bond entries subject to Section 301?

Duties are due on goods that are entered for consumption, or withdrawn from warehouse for consumption, on or after the effective date of the provisional tariffs. For entries covered by an entry for immediate transportation, and with a country of origin of China, and a Harmonized Tariff Schedule (HTS) classification covered by Annex A to the FRN, such entries shall be subject to the duty rates in effect when the immediate transportation entry was accepted at the port of original importation, pursuant to 19 CFR 141.69 (b), which states:
Merchandise which is not subject to a quantitative or tariff-rate quota and which is covered by an entry for immediate transportation made at the port of original importation, if entered for consumption at the port designated by the consignee or his agent in such transportation entry without having been taken into custody by the port director for general order under section 490, Tariff Act of 1930, as amended (19 U.S.C. 1490), shall be subject to the rates in effect when the immediate transportation entry was accepted at the port of original importation.

Q: Are products entered under the Section 321 de minimis exemption (under $800) subject to Section 301 duties?

No, not right now. Goods properly entered under Section 321 are not subject to Section 301 duties. Please note that a formal entry is required if a shipment contains merchandise subject to AD/CVD. Goods subject to AD/CVD do not qualify for Section 321. Something to keep an eye on: U.S. Customs and Border Protection (CBP) submitted a proposal in early September 2020 to the Office of Management and Budget that would eliminate the $800 de minimis exemption for goods subject to Section 301 tariffs. Remember, Section 321, 19 USC 1321 is the statute that describes de minimis. De minimis provides admission of articles free of duty and of any tax imposed on or by reason of importation, but the aggregate fair retail value in the country of shipment of articles imported by one person on one day and exempted from the payment of duty shall not exceed $800. The de minimis threshold was previously $200, but increased with the passage of the Trade Facilitation and Trade Enforcement Act (TFTEA).

Q: Can I still apply for exclusions to the Section 301 (China) tariffs?

The time window to submit new exclusion requests is now closed, but the USTR is considering extensions of exclusions granted from Lists 1, 2, 3, and 4. While the USTR approved, on average, 35% of requests under the first two actions, the approval rates under the third and fourth actions were 5% and 7%, respectively.3 Be sure to check in with your trusted trade advisors to see if new comment periods open.

Q: Are products used to support the fight against COVID-19 subject to the additional Section 301 (China) tariffs?

The USTR announced on March 20, 2020, that, prior to theCOVID-19 outbreak, the agency had been working with the U.S. Department of Health and Human Services “to ensure that critical medicines and other essential medical products were not subject to additional Section 301 tariffs.” Consequently, the United States had not imposed tariffs on certain critical products, such as ventilators, oxygen masks, and nebulizers. Moreover, the USTR indicated that, in recent months, it has prioritized the review of requests for exclusions on medical care products, resulting in exclusions granted on basic medical supplies, including gloves, soaps, face masks, surgical drapes, and hospital gowns. Since March 2020, the USTR has exempted certain medical products from Section 301 tariffs in several rounds of exclusions.3

Q: How do I find out if my product is subject to Section 301 tariff duties?

Enter the product’s harmonized tariff schedule (HTS) classification on the USTR website. In addition, you can refer to our exclusive guide to quickly search both the Section 301 tariff lists but also identify if there are any exclusion opportunities. Talk to your Trusted Advisor® expert at C.H. Robinson to learn more.

Q: Will the Section 301 (China) tariffs go away after the 2020 election?

While we cannot be sure what either administration would do on a go-forward basis, it is unlikely that 301 duties will simply go away or go away immediately regardless of which administration is in place in January 2021.

Q: Do Section 301 (China) duties still apply if I ship goods to another country, such as Canada or Mexico, and have them packaged there before entering the commerce of the United States?

Yes. Basic changes/processes such as packaging, cleaning, and sorting would not change the country of origin to be declared in most cases. The origin would still be China and therefore the Section 301 duties would still apply.

Q: If I previously paid Section 301 (China) duties, but an exclusion was later issued by the United States Trade Representative (USTR), can I get my money back?

Yes. You have the opportunity to potentially recover duties paid on previous entry activity. Your customs broker, trade attorney, or trade consultant can submit a refund request via Post Summary Correction (PSC) or Protest as long as the entry has not exceeded the liquidation date plus 180-day time period (roughly 480 days from the original entry date). Remember, your company doesn’t have to be the one that requested the exclusion in the first place. You qualify as long as your product meets the specific description of the exclusion granted by the USTR.

Q: Does U.S. Customs and Border Protection (CBP) pay interest when refunding duties previously paid?

Yes! CBP does pay interest from the date the original money was deposited. The current interest rates are published in the Federal Register on a quarterly basis. Review the most recent Federal Register Notice for the latest rates.

References

1. Congressional Research Service – Trump Administration Tariff Actions (Sections 201, 232, and 301): FAQs

2. Section 301 Trade Remedies Frequently Asked Questions

3. Congressional Research Service - Section 301: Tariff Exclusions on U.S. Imports from China

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All content and materials discussed herein are for informational purposes only and do not constitute legal advice. You should always independently check the related Code of Federal Regulations (CFR) and, if needed, consult with the applicable Federal Agency (e.g. CBP, USTR) and/or external counsel where any question or doubt exists. Information on this site is the property of C.H. Robinson. Any transmission or use without C.H. Robinson’s permission and approval is not allowed or authorized.