UNWARRANTED TARIFFS ARE DISRUPTING TRADE BETWEEN THE WORLD’S CLOSEST ALLIES & LARGEST TRADING PARTNERS AND NEGATIVELY IMPACTING REGIONAL SUPPLY CHAINS
 
WHITEHORSE, YUKON - “We believe that unilateral tariffs between the US and Canada go against the principles of free and fair trade and only harm industries in both countries. When markets are open, and goods are transported freely across borders, the results are economic growth, new businesses and more and better job opportunities for individuals.”, said Pacific NorthWest Economic Region (PNWER) President Larry Doke, MLA Saskatchewan at the PNWER Economic Leadership Forum in Whitehorse, Yukon, on Thursday.
 
Oregon Senator Arnie Roblan, Past President of PNWER said, “Here in the Pacific Northwest, we are stronger by working closely together, and our relationships are intact because of the ongoing partnerships in every major sector of our economy, and in state, provincial, territorial, local, and tribal governments. The US should exempt Canada from any steel and aluminum tariffs, which are causing significant disruption to the largest trading relationship in the world.”
 
The US and Canada’s trading relationship is incredibly important to the Pacific Northwest. The US and Canada have the largest trading relationship in the world, and here in the Pacific Northwest, we benefit from the two-way trade of over USD $541 billion (CAD $630 billion) annually, of which about USD $22.6 billion (CAD $29 billion) is in the Pacific Northwest. Protectionism is seriously damaging the vital economic regional partnership in both of our countries.
 
The steel and aluminum tariffs may cost the US and Canada over USD $11 billion combined, and we could see losses of over 6,000 jobs, according to CD Howe Institute, a Canadian independent not-for-profit research institute fostering economically sound public policies.
As a result of the steel and aluminum tariffs, retaliatory tariffs from Mexico and Canada could cause US Agriculture exports to decline by USD $1.9 billion to these two trading partners.
 
The US tariffs on Canadian steel and aluminum products based on Section 232 US national security investigations are of great concern. As a trusted ally and partner, Canadian steel and aluminum products are used as vital inputs in the Canada-US manufacturing supply chains. Tariffs on these critical inputs are not only making consumer goods expensive in both countries, but also making North American products uncompetitive in international markets.       
 
This cross-border region continues to work closely together every day with our interconnected and interdependent supply chains, and dozens of cross-border cooperative agreements on everything from our shared transboundary watersheds, cross-border airsheds, climate action, cross-border law enforcement, invasive species prevention, forest fire prevention, to defending our shared borders in the 60-year-old NORAD (North American Air Defense) System.
 
PNWER is an example of these interconnections and the ongoing relationships that make our bi-national region stand out in North America as a place where innovation happens, precisely because of the multi-faceted relationships of trust that have been built up for the past 30 years.
 
###

The last week of Summer 2018 will jumble a number of trade actions—starting with today’s announcement of 10% duties on $200 billion of China-sourced goods, the ongoing renovation of the North American Free Trade Agreement (NAFTA), and potential relief from the Section 232 steel and aluminum tariffs—into a goulash that will leave companies wondering what is stalled, in standby mode, or steaming ahead.  To summarize all of these expected developments, Dickinson Wright will hold two free, interactive webinars on Monday, September 24, 2018:
 

• Know the New NAFTA, will commence at 2:00 PM ET and feature Sergio Gomez Lora, CEO of IQOM, and Dickinson Wright discussing aspects of the US-Mexico Agreement (USM) and potentially the US-Canada Agreement (resulting in the USMC Agreement).  IQOM coordinates Mexico’s private sector “next door room” during the NAFTA negotiations. https://www.dickinson-wright.com/events/know-the-new-nafta-webinar-dan-ujczo

 

• Untying the Trying Time of Tariffs—The Product Exclusion Process--will commence at 3:30 PM ET and feature Dickinson Wright regarding the updated Section 232 (steel and aluminum) and China-Section 301 product exclusion processes.

https://www.dickinson-wright.com/events/untying-the-trying-times-of-tariffs-webinar-ujczo
   
Please register directly to the listed websites.  Once registered, the webinars will be available “on-demand” post-September 24. 
 
            Several potential developments nevertheless warrant attention throughout the week:
 

1. Section 301 China Tariffs   USTR issued two announcements on Monday, September 17 relating to the Section 301 tariffs. 

 
Steaming Ahead--USTR announced 10% tariffs on approximately $200 billion of China-sourced goods.  The full list of goods subject to tariffs is available at
https://ustr.gov/sites/default/files/enforcement/301Investigations/Tariff%20List_09.17.18.pdf
 
The 10% tariffs will commence on September 24, 2018.  The tariffs will increase in 2019 to 25%.  More than 5,000 products are on the final list.  USTR removed approximately 300 product lines from the proposed list including consumer electronics (smart watches/Bluetooth), chemicals used in manufacturing, textiles, agriculture products, health and safety products (bike helmets, car seats, sanitary gloves), and several other areas.  Unfortunately, most manufacturing equipment (e.g., tools and dies) as well as a number of goods already subject to significant anti-dumping/countervailing duties remain on the final list.
 

• Will China retaliate as planned against $60 billion in US goods?  President Trump has planned to respond with tariffs against an additional $267 billion in China-sourced goods if China retaliates.  And then the ball will keep on bouncing.  Companies must remain on alert.

 
On a more positive note, USTR announced on Monday a process for product exclusions relating to the second round of Section 301 tariffs (25%) that were finalized on August 16, 2018 (aka “List II”) that will be due on or before December 18, 2018.  Companies should standby to see if USTR announces a similar product exclusion process for today’s tariffs (aka “List III”) in the near term.
 

• While this may be premature, it is likely that the proposed US-China talks that were scheduled to happen in two phases by the end of September are stalled.  China warned that it would not negotiate with a “gun to its head.”  Today’s actions brandished the weapon.  In any event, our perspective on the ground is that we do not see any resolution to the China tariffs prior to the November 2018 midterm elections in the US.  Companies meanwhile must engage on the product exclusion processes.             

 

1. NAFTA to USM/USMC?  As the US moves to “all-in” on China, the need to resolve issues in the North American “backyard” becomes paramount.        

 
Steaming Ahead—The US and Mexico have continued their work toward finalizing the first text of the US-Mexico agreement and the parties reaffirmed their commitment to publically provide the USM text by the October 1st deadline.  The parties intend to sign the USM 90 days later—i.e., prior to the December 1, 2018 transition to the new President of Mexico, Andrés Manuel López Obrador (AMLO).  The US thereafter will prepare the deal for ratification by the next (2019) Congress.
 

• The US and Canada will continue discussions regarding the “C” component of the USMC.  USTR purportedly cautioned Canada that a handshake agreement must be worked out by the close of this week in order to have 7-10 days for preparing the text (prior to the October 1 deadline).  Technical work between the US and Canada continues.  There are reports that Canada’s Minister Freeland will be in Washington, D.C. on Wednesday and Thursday of this week.  Additionally, the new Premier of Ontario, Doug Ford, and his team will be in Washington, D.C. on Wednesday to receive full briefings from their federal Government of Canada counterparts.

 
Key issues between Canada and the US include dairy (although there are reports that a “landing zone” has been reached), Chapter 19 dispute resolution, Canada’s cultural “exemption”, intellectual property rights, de minimis thresholds, and government procurement/Buy America.  USTR purportedly advised that it would not hold another Ministerial meeting with Canada until there was a closing phase/final deal on the table.  Companies should standby to see what happens midweek.  Should Minister Freeland arrive in Washington, D.C., there likely will be results.     
 

• There has been some speculation that Canada may attempt to extend the talks beyond the October 1 Quebec elections, which adds procedural and political uncertainty into the timing and tempo of the negotiations.  Notionally, the bet is that Congress will hold open the deal for Canada’s re-entry.  However, any timeline past October 1 runs the risk of missing the signing of the deal prior to AMLO taking office in Mexico.  Dickinson Wright previously has advised that Congress’ willingness to wait for Canada is not limitless; particularly given the need to finalize the deal with Mexico for US agricultural interests.  Indeed, when one considers that almost two-thirds of the Senate Finance committee has encouraged the US’ positions on Chapter 19 (softwood lumber) and dairy, testing the deadlines adds increased risk that Canada may be left behind.         

 

1. Section 232 Steel and Aluminum Tariffs

 

• Additionally, the immediate consequence of any USM/USMC delay is the inability of the original NAFTA parties to reach resolution of the Section 232 steel and aluminum tariffs.  It is anticipated that should the parties reach agreement by October 1, the US will lift the Section 232 tariffs on Mexico and Canada; consequently, Canada and Mexico will terminate their retaliation/countermeasures.  This is a critical ask of the North American manufacturing and agricultural communities as the US enters a more protracted conflict with China.  Any delay will threaten the North American economy in terms of capacity to continue existing and planned projects.

 

• As will be further explored during the webinar, the US has made changes to the Section 232 product exclusion process that, among other issues, allows for rebuttal/sur-rebuttal to objections made by companies regarding the proposed exclusions.  While the hope is that the Section 232 tariffs on North American goods will be resolved in short order, companies should standby to ensure that progress is made.

https://www.gpo.gov/fdsys/pkg/FR-2018-09-11/pdf/2018-19662.pdf
 
Steaming Ahead-- Companies importing steel and aluminum from other jurisdictions, as well as subject to retaliatory tariffs from those countries, should be aware of these new Section 232 processes.  We do not anticipate the Section 232 tariffs being lifted on any jurisdiction outside of North America, including EU and Japan, before the close of October.     

Following a flurry of activity this week, NAFTA talks between the US and Canada have concluded for the week. This follows off-the-record comments made by Trump, and made public by the Toronto Star on Friday that Trump does not want to compromise with Canada. 

Minister Chrystia Freeland spoke following the conclusion of talks today.

"The United States and Canada have now agreed to negotiate beyond the Friday deadline. While members of Congress could theoretically object, they are unlikely to do so, since most are eager for Canada to remain part of the pact." Talks between the US and Canada are expected to resume again next week. This latest news has created more uncertainty in an already uncertain future for an agreement. But there is still hope that a new free trade deal will include Canada. 
​
On late Friday, the Trump Administration sent Congress a letter formally notifying of their intention to sign a trade deal with Mexico. While the letter only signaled a deal with Mexico, there is still time for Canada to be included. This letter is required for the administration to sign a trade deal under "fast-track" authority, which requires a straight up or down vote by Congress for approval. This letter starts the 90-day clock before the earliest date that a deal can be signed. 

Earlier this week, the US reached a bi-lateral trade deal with Mexico, and Trump announced his intention to rename the agreement from NAFTA. Canada rejoined NAFTA talks after sitting out while the US and Mexico worked on negotiating a trade deal. Canada resumed talks to negotiate bi-lateral and tri-lateral issues and look at creating a tri-lateral deal between the three countries. However, following an eventful Friday, talks have concluded. They are expected to resume again next week. 

Other Links and Resources:
NAFTA 2.0 End Game Briefer - Canada Institute - Aug. 30

What to watch as Canada looks for a breakthrough in NAFTA talks - Financial Post - Aug. 31

Friday isn’t the real deadline for ‘NAFTA 2.0’ - The Washington Post - Aug. 30


COLIN ROBERTSON THE GLOBE AND MAIL AUGUST 28, 2018:  A little more than a year after negotiations began on a revised North American free-trade agreement, a deal looks possible, although big questions remain.
For much of the past two months, Mexican and American negotiators have wrestled with the U.S. demand around the content rules for our most-traded commodity, the automobile. North Americans produce 17.5 million cars or trucks annually. The original U.S. demand of 85 per cent North American content with 50 per cent of that “Made in the USA” has apparently morphed into 75 per cent North American content with 40 per cent to 45 per cent made by workers making US$16 or more a hour.

The devil is always in the details, but Canadian industry and its workers can live with this and, if this gives U.S. President Donald Trump his “win,” then we are on our way to a deal.So, too, with the “sunset” clause. Originally, the United States wanted the new agreement to lapse after five years – something investors said would freeze investment, especially into Canada and Mexico. U.S. Trade Representative Robert Lighthizer reportedly says it will now be 16 years with a review after six years. We can live with that.

On dispute settlement, or Chapter 19, the picture is murky and we will need clarification. The Trump team originally wanted to jettison the binational mechanism, and it appears there will be investor-state provisions, something U.S. industry lobbied hard to retain, and some form of recourse, beyond the U.S. system, for energy and infrastructure. Canada and Mexico need to stand firm. We need recourse from U.S. trade-remedy legislation – countervail, anti-dump and, as the Trump administration misapplies it, national security.
If reports are accurate, there appears to be near-agreement on agriculture (good for Canadian farmers) and on intellectual property (unchanged) but again, the devil will be in the details.

The negotiators were originally aiming for 30-plus chapters of NAFTA but until now only nine had been closed and, of course, nothing is truly closed until it is all done.

So what remains and how might they be resolved? From Canada’s perspective, assuming we can work out dispute settlement, we need to see action on three more items.

• Government procurement: Canada wants to retain open access, but the United States is offering a derisory dollar-for-dollar deal. If we cannot work this out, we should leave it to governors and premiers to work out the kind of reciprocal procurement deal that they achieved in 2010. This could be regional or national; the incentive for both sides is that an outside bidder curbs local price-fixing. This will be important especially if Mr. Trump proceeds with his trillion-dollar “Big Build” infrastructure initiative.
• Labour mobility: We want to update for the digital age the ease of passage for designated occupations. Businesses, especially those with North American supply chains, need this to maintain competitiveness. In the current U.S. environment, this is probably a stretch. We would do well if we can maintain the current list and punt this over to a separate negotiation.
• Dairy access: Mr. Trump continues to single this out. It is time to reform supply management just as we did with our wine industry through the original Canada-U.S. free-trade agreement in 1987 and then our managed trade in grain. Provide adjustment assistance but open up our dairy and poultry industries, which make good products and, like our beef and pork sectors, and now our grains and pulse production, they can be world-beaters.

While Mr. Trump thinks negotiations can wrap up this week, we will likely see fall leaves and probably snow before the deal is done. Legislative ratification, especially in the United States, is an even bigger question mark. It will likely be the next Congress, chosen in November and taking office in January, that will give “up or down” approval to the new accord. It won’t be easy.
​
The coming days – more likely weeks – will be a test of Canadian negotiators. They are a very experienced team and they are up to the task as long as the government has their backs.
This is the bigger question: Can the Trudeau government take the political flak that will inevitably come its way? It won’t be sunny ways. If it can stick it out, the Trudeau government will make as big a contribution to Canadian well being and competitiveness as Brian Mulroney and his Progressive Conservative government did with the original Canada-U.S. FTA and then the NAFTA. It would be no small legacy.
___________________________________________________________________________________________________________
PNWER will continue to monitor events next week as this process unfolds.  Thank you for your interest and support of the greatest trading relationship in the world.  We remain committed to seeing a renegotiated NAFTA that will be a win-win for all three countries, and that will reinforce the strength of the North American integrated economy, and enhance our competitiveness in global markets.

On Monday, June 4th, US and Canadian officials signed a memorandum of understanding promoting the Regulatory Cooperation Council (RCC). The RCC was established in 2011 to streamline regulation between the US and Canada in order to encourage economic competitiveness as well as high health, safety, and environmental standards. This MOU reaffirms the mission of the RCC and lays a foundation for its future growth. The RCC is an excellent example of US-Canadian economic cooperation, which is crucial for two nations who trade CAD $2.5 billion in goods and services over their border every day. 
​
In NAFTA news, all parties have agreed to continue negotiations, despite slow progress and little hope of a deal before 2019. No date has been set for the next round of talks, but they will likely resume after the Mexican presidential election on July 1st.   

Other Stories
Winning 2026 World Cup bid shows the virtues of NAFTA - USA Today
NAFTA talks to continue in tense atmosphere as US also prepares new tariffs for China - CNBC

​​​Contributions by Zack Tarhouni, PNWER Intern

Dickinson Wright (@dickinsonwright) advises that we are entering the “Summer of Disruption” to global trade based on five (5) categories of recent US actions and other countries’ responses:

1. China
2. Steel and Aluminum Tariffs
3. NAFTA
4. Trade Promotion Authority 2015 Extension
5. Section 232 Auto Tariffs

As a result, when companies return from their Canada Day and Fourth of July parades and picnics, the global trade environment will experience the US imposing nearly $200 billion in tariffs on ferrous metals and China-sourced goods, and US exports subject to nearly $75 billion in retaliatory tariffs ($34 billion from China/$40 billion for Canada, EU, and Mexico).  The overarching question is whether the US will be moving toward its objective of achieving “rebalanced” trade, or whether the global economy will be rapidly moving toward recession. Companies cannot wait for the answer. Contingency planning is a must.
You can find background on these developments, as well as a sampling of Dickinson Wright’s comments in global media, as follows:
https://apnews.com/1ca6036369df43fe868e8edd348eb3c9 (G7 NAFTA)
​https://www.theglobeandmail.com/business/article-nafta-negotiators-aim-to-make-deal-this-summer-foreign-minister/ (NAFTA and tariffs)
https://www.theglobeandmail.com/business/article-nafta-negotiators-aim-to-make-deal-this-summer-foreign-minister/ (NAFTA and steel/aluminum)
https://www.theglobeandmail.com/politics/article-freeland-headed-back-to-washington-in-bid-to-reignite-nafta-talks/ (steel and aluminum)
https://www.theglobeandmail.com/business/article-whats-at-stake-if-the-us-slaps-tariffs-on-canadian-auto-exports/ (auto tariffs)
https://insidetrade.com/daily-news/sources-administration-pushing-finish-auto-investigation-midterms (auto tariffs)

1.   Section 301 Tariffs on Imports from China The Office of the United States Trade Representative (USTR) released on June 15, 2018 a list of products imported from China that will be subject to additional tariffs as part of the US response to China’s purported unfair trade practices.  The action came following after a Section 301 investigation in which USTR found that China’s acts, policies and practices related to technology transfer, intellectual property, and innovation were unreasonable and discriminatory, and burdened U.S. commerce.

The list of products https://ustr.gov/sites/default/files/2018-0018%20notice%206-15-2018_.pdf covers 1,102 separate US tariff lines valued at approximately $50 billion in 2018 trade values.  This list of products consists of two sets of US tariff lines. The first set contains 818 lines of the original 1,333 lines that were included on the proposed list published on April 6.  These lines cover approximately $34 billion worth of imports from China. USTR has determined to impose an additional duty of 25 percent on these 818 product lines after having sought and received views from the public.  US Customs and Border Protection will begin to collect the additional duties on July 6, 2018.

The second set contains 284 new tariff lines.  These 284 lines, which cover approximately $16 billion worth of imports from China, will undergo further review in a public notice and comment process with written submissions due July 23, 2018 and a public hearing will be held on July 24, 2018.  Parties desiring to appear at the hearing must submit a request and proposed testimony on or before June 29, 2018. After completion of this process, USTR will issue a final determination on the products from this list that would be subject to the additional duties.

USTR also has advised that it will be establishing procedures for product exclusions.  Dickinson Wright will circulate notices regarding that process as they become available.

Unsurprisingly, China immediately announced that it would target $50 billion of US goods in two phases. http://gss.mof.gov.cn/zhengwuxinxi/gongzuodongtai/201806/t20180616_2930323.html  The first phase on $34 billion of goods is slated to take effect on July 6 and targets soy, cars, sorghum, fish, pork, and cotton.  Additional duties on $16 billion worth of US goods, including chemicals, medical equipment and energy products, will be finalized later.

President Trump has threatened additional tariffs against nearly $100 billion of China-sourced goods if Beijing retaliates.  No talks between the US and China are planned before the July 6 deadline. Also factoring into the US-China trade talks is that the US Treasury Department has until July 30 to decide new rules and restrictions on China-sourced investments into the US.  
 
·         What Should We Do?  Do not wait for July 6.  The procedural, policy, and political factors all indicate that the first phase of US tariffs and China’s retaliation will occur.  All companies should review (and review again) the list of products to determine potential exposure to the US Section 301 tariffs and China’s retaliation.  In the event companies are subject to tariffs as of July 6, 2018, please contact Dickinson Wright and we can assist in preparing a product exclusion request once that process if fully established.  In the event that your company may be impacted by one of the 284 product lines, it is imperative to participate in the written submissions and hearings. Notably, USTR removed 515 product lines from the original target list based on submissions received from companies.  Dickinson Wright will monitor all developments and assist upon request.

2.            Section 232 Steel and Aluminum Tariffs—The US has imposed 25% tariff ad valorem on steel and 10% ad valorem on aluminum imports into the United States from all countries previously subject to the tariffas well as the European Union, Canada, and Mexico.

(Steel) https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states-4/
(Aluminum) https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-aluminum-united-states-4/

Korea, Australia, Argentina, and Brazil received long-term exemptions from the tariffs in varying degrees based on commitments to quotas or other measures (if you are importing steel and, or, aluminum from these countries, please review US-CBP guidance on the issue or request assistance from Dickinson Wright).

As further predicted, the EU, Canada, and Mexico announced retaliatory measures.  These retaliation lists include items tied to the steel and aluminum industry as well as products from key congressional districts and other political pressure points.

Mexico imposed retaliatory measures on June 6 ranging from 10%-25% on nearly $3 billion worth of US goods. (See attached report from Dickinson Wright’s Mexico-based ally IQOM.) These included steel, aluminum, bourbon, pork bellies, blueberries, apple, grapes and some cheese.  However, Mexico did not impose retaliatory tariffs on US grains (nearly $4 billion) but is exploring whether or not to do so if the US imposes more tariffs.

The EU approved its 10 page list of retaliation targets zeroing in on $3.3 billion worth of goods on June 14, 2018 and implementation is expected in July (if not before).  http://trade.ec.europa.eu/doclib/docs/2018/march/tradoc_156648.pdf.

Canada released its list of countermeasures against US imports www.fin.gc.ca/activty/consult/cacsap-cmpcaa-eng.asp and the public comment period is now closed.  These measures will be implemented on July 1, 2018.

• What Should We Do?  As a threshold matter, US companies that rely on steel and aluminum products from these countries (particularly, the EU, Canada, and Mexico) should seek specific product exclusions with DOC from the tariffs.  Dickinson Wright has prepared and filed many product exclusion requests and has provided the following webinar to introduce companies on the process. http://www.dickinson-wright.com/events/a-time-for-tariffs-steel-and-alum-webinar-3-28  The first round of decisions from the DOC regarding product exclusions should be published in the coming days, which likely will provide guidance for the next set of filings.  The time is now.

We anticipate that the retaliatory measures will be fully implemented against the US.  It is imperative that companies monitor the retaliation lists to ensure that their goods will not be impacted by retaliatory tariffs.  Dickinson Wright has produced a webinar to explain the retaliation process and strategies.http://www.dickinsonwright.com/events/canada-to-impose-tariffs-webinar   In the event that retaliatory measures impact a company, Dickinson Wright can assist with working with the foreign government to potentially minimize the consequences.

3.            NAFTA—The NAFTA has been on life support since the start of June.  Beginning with Twitter spats between President Trump and Prime Minister Trudeau; to brief optimism at the G7 that was abruptly darkened by post-summit news conferences, social media, and Sunday new shows; to speeches and meetings in Washington this week to cool the temperature; to strong and credible rumors that the White House was seriously considering withdrawing from NAFTA over the Fathers’ Day weekend—the past week to 10 days has been a roller coaster for North American trade.  The prevailing view at the moment is that the NAFTA will be on hold until after the July 1 Mexican elections. A Ministerial meeting between the three countries likely will be held in mid-July where there may be an opportunity to close the NAFTA auto rules of origin chapter and address the steel and aluminum tariffs. However, it is important to note that while the parties may reach a deal in the Summer of 2018, the procedural and political calendars are closed for ratification by the end of the year.  It will be up to the next US Congress to ratify any deal. And with Canada having a federal election in 2019 and the public rallying around Prime Minister Trudeau’s “get tough on Trump” stance, it will be interesting to see if Canada can make any concessions.

·         What Should We Do?  While there may be noise around the NAFTA over the coming weeks, we do not see any meaningful activity happening until after the July 1, 2018 election in Mexico.  There may be an attempt right after those elections to agree on framework for the automotive rules of origin that will include a steel and aluminum threshold in exchange for lifting the tariffs, and the parties then will agree to continue negotiating on other topics throughout the Fall.  At this time, we do not envision NAFTA being completed and ratified in 2018. We likewise do not view that a US withdrawal will occur. We do believe, however, that the process will be very bumpy over the coming months. The status quo will remain for 2018, but not without a great deal of noise and saber-rattling.     

4.            Trade Promotion Authority 2015 Extension—All of this activity is occurring against the backdrop of the President’s Trade Promotion Authority (TPA aka “fast track”) expiring on June 30, 2018.  While TPA has no role in Section 232 tariffs, it is the primary authority through which the President is negotiating the NAFTA and potentially will deal with UK, Japan and others.  Pursuant to the statute, the President requested an extension of TPA until 2021. While Congress is not required to affirmatively approve the extension, Congress may file a “disapproval resolution” of the request.  A report on the extension was filed by the International Trade Commission https://www.usitc.gov/publications/332/pub4792.pdf and the private sector USTR Advisory Committee on Trade Policy and Negotiations (see attached ACTPN Report) supporting extending TPA until 2021.  We anticipate that TPA will be extended. On the Section 232 front, US Senator Bob Corker (R-TN) and US Senator Pat Toomey (R-PA) each tried to pass legislation this week limiting the President’s ability to impose Section 232 tariffs—to no avail.  It appears that Congress will not take on POTUS in 2018 regarding trade; however, Dickinson Wright sources have advised that NAFTA withdrawal and Section 232 auto tariffs would be red-lines for Congress. Nevertheless, companies should not rely on Congress to stop the Trump trade agenda.

5.       Section 232 Investigation into Auto Imports—As previously indicated, the US Department of Commerce (DOC) published a notice in the May 30, 2018 Federal Register regarding its proposed national security investigation into the imports of automobiles including cars, vans, SUVs, light trucks and automotive parts.  https://www.gpo.gov/fdsys/pkg/FR-2018-05-30/pdf/2018-11708.pdf  The Notice seeks input from companies in the following areas:

• The quantity and nature of imports of automobiles, including cars, SUVs, vans and light trucks, and automotive parts and other circumstances related to the importation of automobiles and automotive parts;
• Domestic production needed for projected national defense requirements;
• Domestic production and productive capacity needed for automobiles and automotive parts to meet projected national defense requirements;
• The existing and anticipated availability of human resources, products, raw materials, production equipment, and facilities to produce automobiles and automotive parts;
• The growth requirements of the automobiles and automotive parts industry to meet national defense requirements and/or requirements to assure such growth, particularly with respect to investment and research and development;
• The impact of foreign competition on the economic welfare of the US automobiles and automotive parts industry;
• The displacement of any domestic automobiles and automotive parts causing substantial unemployment, decrease in the revenues of government, loss of investment or specialized skills and productive capacity, or other serious effects;
• Relevant factors that are causing or will cause a weakening of our national economy;
• The extent to which innovation in new automotive technologies is necessary to meet projected national defense requirements; and
• Whether and, if so, how the analysis of the above factors changes when US production by majority US-owned firms is considered separately from US production by majority foreign-owned firms.

Any interested party may file a written submission on or before June 22, 2018.  Rebuttals may be filed on or before July 6, 2018. Procedures are in place to ensure confidentiality of proprietary/sensitive information.  A public hearing will be held on July 19 and 20, 2018. Parties may request to appear at the hearing by June 22, 2018.

The Secretary of Commerce has a total of 270 days to conduct an investigation and present the DOC’s findings and recommendations to the President.  If the Secretary finds that an import threatens to impair US national security, the President shall determine whether he agrees with those findings within 90 days.  If so, he must determine what, if any, action to implement to “adjust” the imports of the article in question so that they will not threaten to impair national security.  Dickinson Wright previously indicated that we not believe that the President will elect to impose tariffs before the close of 2018 and certainly not before the November 2018 midterm elections.  Our new information suggests that the tariffs may be issued in Fall 2018, likely in October.  See full story below from Inside Trade with Dickinson Wright comments.   

• What Should We Do?  Companies with interest in the outcome of this investigation should consider their strategy as early as possible.  The written submissions and public hearing provide those companies that are facing unfair trade practices from foreign competition with a forum in which to present their views (i.e., “play offense”). Additionally, those companies that rely significantly on foreign operations and suppliers need to assert the importance of these factors to US decision-makers (i.e., “play defense”).  Again, Dickinson Wright emphasizes that the Trump Administration relies heavily on individual company “stories” as opposed to broad pronouncements and policies from trade associations. It is imperative that individual companies get engaged on this issue. Dickinson Wright is available to assist and frequently appears on behalf of clients in these types of proceedings. ​

Dickinson Wright is engaged in all of these activities.  We are happy to discuss and assist at any time.


Best,
Dan

​
Daniel D. Ujczo Practice Group Chair - Intl & Regional Practices
https://www.linkedin.com/in/daniel-ujczo-893b486b

June 13, 2018
President Donald J. Trump The White House
1600 Pennsylvania Avenue NW Washington, DC 20500

Dear President Trump,

From a regional perspective in the Pacific Northwest, disrupting trade between the world’s closest allies and largest trading partners is a bad idea. Oregon Senator Arnie Roblan, current President of PNWER: “Here in the Pacific Northwest, we are stronger by working closely together, and our relationships are intact because of the ongoing partnerships in every major sector of our economy, and in state, provincial, territorial, local, and tribal governments. The US should exempt Canada from any steel and aluminum tariffs before July 1 and avoid significant disruption to the largest trading relationship in the world.”

The US and Canada’s Trading Relationship is incredibly important to the Pacific Northwest. The US and Canada have the largest trading relationship in the world, and here in the Pacific Northwest, we benefit from the two way trade of over $630 Billion annually, of which $22 Billion is in the Pacific Northwest. Protectionism will seriously damage the vital economic regional partnership in both of our countries. The steel and aluminum tariffs may cost the US and Canada over $11 Billion combined, and we could see losses of over 6,000 jobs, according to CD Howe Institute, and this is likely to reduce North American competitiveness and drive competitive gains for China, Japan, and the EU.

This cross border region continues to work closely together every day with our interconnected and interdependent supply chains, and dozens of cross border cooperative agreements on everything from our shared transboundary watersheds, cross border airsheds, climate action, cross border law enforcement, invasive species prevention, forest fires prevention, to defending our shared borders in the 60 year old NORAD (North American Air Defense) System.

The Pacific NorthWest Economic Region (PNWER) is an example of these interconnections, and the ongoing relationships that make our bi-national region stand out in North America as a place where innovation happens, precisely because of the multi-faceted relationships of trust that have been built up for the past 30 years. 

PNWER Vice President of Canada, MLA Larry Doke (SK): “We are each other’s largest trading partners, and this benefits people on both sides of the border. We owe it to our constituencies to do everything we can to avoid creating an escalating trade dispute, which no one will win, and to work toward a modernized NAFTA agreement.”

Sincerely,
Sen. Arnie Roblan
President 2017-2018
Oregon State Legislature 

​Matt Morrison PNWER
Chief Executive Officer


PNWER CC: Senate President Senator Mitch McConnell Senate Minority Leader Senator Charles Schumer Senator Orrin Hatch, Chair of Senate Finance Committee Senator John Cornyn, Chair of Senate Finance, International Trade, Customs, and Global Competitiveness Subcommittee Speaker of the House Representative Paul Ryan Minority Leader Representative Nancy Pelosi Representative Kevin Brady, Chair of House Ways and Means Committee Representative David Reichert, Chair of House Ways and Means Trade Subcommittee Congressional Delegations from Alaska, Washington, Oregon, Montana, and Idaho Mr. Wilbur Ross, United States Secretary of Commerce Mr. Robert Lighthizer, United States Trade Representative Mr. Douglas Hoelscher, Special Assistant to the President, Deputy Director of Intergovernmental Affairs

Full Text of Letter 

Dates: June 3-6
Delegation:
Sen. Arnie Roblan- OR, PNWER President
Larry Doke, MLA- SK, PNWER Vice President
Rep. Mike Cuffe- MT, PNWER Vice President
Graham Sucha, MLA - AB, PNWER Vice President
Bryce Campbell, Consulate General of Canada, Seattle
Lisa Harder, International Relations, SK
David Kettles, Alberta Economic Development and Trade
Matt Morrison, CEO PNWER
Brandon Hardenbrook, COO, PNWER

PNWER had an engaging visit in Ottawa last week. As always, the opportunity to discuss PNWER initiatives on both sides of the border was only made possible by our generous hosts and dedicated leadership in Canada. We look forward to continuing our partnerships and conversations at this year's PNWER Annual Summit in Spokane, and far beyond. 

In response to the May 31st US steel and aluminum decision, PNWER reiterates the importance of a "stable, reliable, and open trade relationships with Canada". Canada should be permanently exempted from steel and aluminum tariffs. 

The PNWER Executive Committee sent the following letter to the US President stressing the importance of the integrated North American market, negative impact of tariffs on US workers, and the proud history of US-Canadian national security cooperation. 

Full Text Here

PNWER  CEO Matt Morrison spoke to a local Seattle news station on the trade dispute. 
​
"Morrison pointed out that Washington is the most trade-dependent state in the country. It doesn't matter if they're coming from Canada or Mexico -- the price of steel will go up and the price of aluminum will go up, and everything else. This is going to have an impact on our economy,” Morrison said.
​
Video of the interview is here

The Pacific Northwest Economic Region (PNWER) works with various stakeholders in the Northwest States and Western Canadian Provinces on securing federal funding to combat invasive mussels including support for watercraft inspection stations. For the past several years the US Congress has appropriated matching funds for the operation of watercraft inspection stations to protect the Columbia River Basin against quagga and zebra mussel infestation.  The Senate Environment and Public Works Committee just approved an authorization bill for increased funding for Columbia River Basin protection efforts. This increase will be a great opportunity to leverage the Federal matching funds to double the Northwest States' budgets.  Additionally, Congress is in the process of appropriation legislation to continue match funding of inspection stations. Both of these bills are tremendous examples of federal and state cooperation on a critical challenge that could cost the region hundreds of millions of dollars.

PNWER has worked with Northwest state and Western Canadian provincial legislators, agencies; U.S. Federal legislators and officials; as well as regional nonprofit associations to support and organize the region’s defense against invasive mussels for the past several years. Recently, PNWER with regional partners and the assistance of our congressional delegation have been able to secure $15 Million U.S. Federal matching funds for watercraft inspection stations programs in the Northwest.

The Senate Environment and Public Works Committee on Thursday, May 22 unanimously passed Senate Bill S. 2800 - America's Water Infrastructure Act of 2018.  Section 1024 of this bill reauthorizes Federal one-to-one matching funds from the Army Corps of Engineers to states with watercraft inspection stations programs.  These inspection stations work to protect the Columbia River Basin from invasive species such as quagga and zebra mussels.   The latest bill increases overall Federal funding level in addition to the Columbia River Basin and authorizes new matching funds for the Upper Missouri River protection operations. In the Senate bill, the overall authorization will increase from $40 Million to $80 Million in funds for all aquatic control activities each year.
The Pacific Northwest is the only region in the United States that does not have established populations of invasive quagga or zebra mussels, which multiply quickly and are easily transported across jurisdictions on boat hulls and in ballast tanks. Quagga and zebra mussels disrupt native fish habitats and destroy aquatic ecosystems in infested waterways. An invasion will rapidly foul and damage the operations of hydropower, irrigation, fish hatcheries, and municipal water facilities vital to our region’s economy at a cost of $500 million annually, according to an economic impact assessment for the region.

Related to Federal invasive species funding, on May 24 the Senate Appropriations Committee advanced the FY2019 Energy and Water Development Senate Bill S. 2975 and Related Agencies Appropriations Act.  The appropriation funds programs and critical infrastructure projects administered by the Army Corps of Engineers and Bureau of Reclamation authorized in Section 1039 of the WRRDA related to invasive species watercraft inspection stations in the Columbia River Basin.  This appropriation will continue to match up to $ 6 million in Federal funds.

The Pacific NorthWest Economic Region (PNWER) is a public/private non-profit created by statute in 1991. Member jurisdictions include Alaska, Idaho, Oregon, Montana and Washington, and the Canadian provinces and territories of British Columbia, Alberta, Saskatchewan, the Northwest Territories and Yukon. PNWER's mission is to increase the economic well-being and quality of life for all citizens of the region; identify and promote "models of success;" and serve as a conduit to exchange information.

Background:

• Link to Bill S. 2800
• Link to Bill S. 2975
• S.2975 report Language

Aquatic Plant Control Program. Of the funding recommended for the Aquatic Plant Control Program, $1 million shall be for activities for the control of flowering rush. Of the funding recommended for the Aquatic Plant Control Program, $5 million shall be for nationwide research and development to address invasive aquatic plants; within this funding, the Corps is encouraged to support cost-shared aquatic plant management programs. Of the funding recommended for the Aquatic Plant Control Program, $6 million shall be for watercraft inspection stations, as authorized by section 1039 of the WRRDA, and related monitoring.
​
PNWER report:
Advancing a Regional Defense Against Dreissenids in the Pacific Northwest 

The past week—officially (and ironically) dubbed “World Trade Week” by the US White House (link) — witnessed significant trade policy developments for automotive manufacturers and suppliers.  However, the deadlines presented in the coming week (May 28-June 2) may lead to even greater disruption in the auto and advanced manufacturing sectors and require close attention. 
 
You can find background on these developments, as well as a sampling of Dickinson Wright’s comments in global media, as follows:

• Trump officials weigh 25 percent tax on imported cars in a bid to force concessions in NAFTA trade talks, Washington Post (link)
• Trump Administration explores auto related tariffs, CBS news (link)
• Trump's auto tariff surprise, Politico (link)
• Canadian Auto industry blindsided by Trump's absurd tariff threat, The Globe and Mail (link)
• Canadian auto sector observers doubt US will carry through on tariff threat, Financial Post (link)
• Trump administration explores tariffs on autos, auto parts, China Post (link)
  

Looking ahead to next week, Dickinson Wright encourages companies to be aware of the following five (5) trade issues:
 
1.Section 232 Investigation into Auto Imports— The “headline-grabbing” news of the past week was that US President Donald Trump ordered the US Department of Commerce (DOC) to launch a Section 232 national security investigation into automobile imports.  It was reported that President Trump asked for additional tariffs between 20-25%. 
 
According to a statement issued by DOC, the investigation will “determine whether imports of automobiles, including SUVs, vans, light trucks, and automotive parts into the United States threaten to impair the national security.” (Emphasis added.)  The Secretary of Commerce has 270 days to conduct an investigation and present the DOC’s findings and recommendations to the President.  If the Secretary finds that an import threatens to impair US national security, the President shall determine whether he agrees with those findings within 90 days.  If so, he must determine what, if any, action to implement to “adjust” the imports of the article in question so that they will not threaten to impair national security. 

• What Should We Do?  The DOC is expected to hold a public hearing and invite comments from the automotive industry and other stakeholders, the date of which will be announced “shortly” in the Federal Register (Dickinson Wright will forward once released).  As a result, companies with interest in the outcome of this investigation should consider their strategy as early as possible, including working with allies, congressional and otherwise.  Potentially affected parties ensure that the Trump Administration, especially the DOC and the White House, are aware of their views and concerns. This may include preparing comments for submission to the DOC or participating in the anticipated public hearing.  Dickinson Wright emphasizes that the Trump Administration relies heavily on individual company “stories” as opposed to broad pronouncements and policies from trade associations.  It is imperative that individual companies get engaged on this issue.  Dickinson Wright is available to assist and frequently appears on behalf of clients in these types of proceedings.   

 
2.Section 232 Steel and Aluminum Tariffs—Of greatest immediate impact, the  deadline for the Trump Administration to extend or grant country exemptions from the Section 232 steel and aluminum tariffs is fast approaching, without any resolution in sight.  The Trump Administration has already imposed 25% tariff ad valorem on steel and 10% ad valorem on aluminum imports into the United States from all countries (as of March 23, 2018), with the exception of a few countries as to which the Trump Administration is negotiating country-wide exemptions from tariffs, including Canada, Mexico, and the European Union.  Only South Korea has received a permanent exemption from the tariffs, in exchange for concessions in trade negotiations and establishing quotas (which are largely filled). 
 
It is highly unlikely that any new major country exemptions—such as for Japan—will be granted.  Dickinson Wright also anticipates, barring any developments over the next week, that it is unlikely that the EU and Mexico will continue to have country exemptions beyond .  Similarly, it is unlikely that Canada will maintain its country exemptions.  Again, Dickinson Wright does not expect Canada, Mexico, and the EU to have country exemptions past June 1 unless there is significant developments over the next week.    

• What Should We Do?  Companies that rely on products from these countries should seek specific product exclusions from the tariffs.  Dickinson Wright has prepared and filed many product exclusion requests and has provided the following webinar to introduce companies on the process.  http://www.dickinson-wright.com/events/a-time-for-tariffs-steel-and-alum-webinar-3-28 

 
Additionally, Canada, Mexico, and the EU (as well as other affected countries) thereafter will publish lists of items upon which that country will impose retaliatory tariffs.  These products include steel and aluminum products as well as any product that may be of practical and political importance to the US (there is no requirement that it be linked to steel and aluminum production).  It is imperative that companies monitor those retaliation lists to ensure that its goods will not be impacted by retaliatory tariffs.  In the event that retaliatory measures impact a company, Dickinson Wright can assist with working with the foreign government to potentially minimize the consequences. 
 
3.NAFTA—The past week witnessed a flurry of activity targeting the NAFTA modernization process.  While there were several reports of potential concessions that were made by Mexico and the US over the past week, Dickinson Wright’s current intelligence is that the negotiations are at an impasse. 
 
Automotive Rules of Origin (ROO) are at the top of several key sticking points.  Specifically, the US presented it most recent auto ROO “proposal” (without formal text) in late April/early May, which the Mexican negotiating team considered and countered during the week May 7.  While Mexico’s counterproposal included all of the key “elements” contained in the US proposal—including wage requirements and a steel and aluminum threshold—the parties differed on the number/percentages.  Mexico also required that, in exchange for its concessions on auto ROO, the US would make concessions on other controversial areas such as a “sunset clause” (reauthorizing the NAFTA every five years), seasonal produce, and dispute resolution.  The US immediately rejected the proposal and Mexico withdrew its request.  No new offer has been tabled by any party.
 
The US proposal was a 75% top line regional value content for auto ROO, of which 40% (45% for light duty trucks) of the final assembly must be produced at the North American Average Wage (approx. $15-$17).  Up to 15% (20% for light duty trucks) of that  North American Average Wage requirement could include R&D, marketing, sales, etc. salaries.  The US proposal also required that 70% of all steel and aluminum originate in North America.  The US further proposed 2, 4, and 9 year phase-in requirements, depending on the components, with autonomous and electric vehicles having the longest phase-in period.
 
For its part, Mexico advanced a top-line RVC of 70% (as opposed to the US’ 75%) of which 20% (30% for light duty pickup) must be assembled at the North American Average Wage.  Mexico counter-proposed steel (30%) and aluminum (20%) thresholds. Mexico’s counterproposal included a 10 year phase-in period.  Mexico’s overarching concern was that only a limited percentage of its auto production could comply with all of the elements.  Consequently, Mexico’s proposal included certain options/credits for companies that complied with some, but not all, of the elements.  The full contours of that component of the proposal remain unclear and may be in flux.
 
The inability to reach an agreement in principle on auto ROO has prevented the parties from reaching any resolution.  Over the course of the past ten days, the US, Canada, and various stakeholders have floated the idea of a “skinny NAFTA”, relying on only the US Executive Branch (and not Congress) to “tweak” the NAFTA.  The purest form of the “skinny NAFTA” would be to have updated auto ROO provisions and a few other “fresh coat of paint” upgrades in areas such as anti-corruption.  More legally tenuous is to move the “skinny NAFTA” to a “fast NAFTA” which would have provisions on digital, customs and trade facilitation, as well as “quick-hits on dairy and other issues.   There has been significant push-back from Congress, including from the chairman of the influential House Ways and Means Committee, as well as labor, on the “skinny NAFTA” option.  While “skinny NAFTA” has some surface appeal as it would minimize any potential harm from the negotiations, the fall-out could bring the NAFTA closer to withdrawal. In short, faced with pushback that he is soft on NAFTA, the President will overreact.   Dickinson Wright’s view is that the parties will proceed for a full NAFTA, which will take time to resolve major outstanding issues such as auto ROO, government procurement, supply management, dispute resolution, textiles, and intellectual property rights.  Unfortunately, the parties are out of time under various domestic processes to reach a deal and submit for ratification by the close of 2018.  There will not be a fully ratified NAFTANEXT in 2018.

• What Should We Do?  While the NAFTA appears in stall mode until after the July 1 elections in Mexico and potentially the US November midterms, the potential for a deal to rapidly come together is ever-present, even one that may not be ratified in 2018.  Any solution the parties reach on auto ROO will have place significant compliance burdens on the suppliers.  Companies should be ensuring that all documentation, origin certifications, and records are up to date as OEMs likely will be reviewing all supplier contracts and compliance protocols in the lead-up to a new NAFTA.

 
4.China—Negotiations between the US and China will continue, with Secretary Ross visiting China in the coming weeks.  China is starting to announce reductions in tariffs such as a new 15% auto tariff (down from 25%) and promotion of purchasing US goods.  Pushback to the President’s efforts has been severe, with the US Senate passing a bill preventing the implementation of one deal element (easing trade remedies on China’s ZTE) and labor vocally challenging the President’s commitment to “get tough” on China.  The politics of 2018 and 2020 will be determined by how the President handles China.  Success could bring victory.  Pushback, or allegations of the President easing up on China, could encourage wild extremes of actions and policies.    
 
5.Trade Promotion Authority 2015 Extension—All of this activity is occurring against the backdrop of the President’s Trade Promotion Authority (TPA aka “fast track”) expiring on .  While TPA has no role in Section 232 tariffs, it is the primary authority through which the President is negotiating the NAFTA and potentially will deal with UK, Japan and others.  Pursuant to the statute, the President requested an extension of TPA until 2021.  While Congress is not required to affirmatively approve the extension, Congress may file a “disapproval resolution” of the request.  Up until this week, conventional wisdom was that the extension would smoothly sail through Congress; however, Congress may use June to “flex its muscles on trade.”  A report on the extension is due from the International Trade Commission by .  It may be worth a read and TPA extension may become the talk of June
 
Dickinson Wright is engaged in all of these activities.  We are happy to discuss and assist at any time.
 
Best,
Dan
 

 
Daniel D. Ujczo Practice Group Chair - Intl & Regional Practices