Vietnamese Section 301 Tariffs Possible Pending Forex Probe

Most of you by now know Area 301 of the Trade Act of 1974 because of the Trump Administration’s significant China tariffs beneath Segment 301.[1] Now it’s time to get acquainted with a independent system that could outcome in tariffs on Vietnamese merchandise way too. Part 301 authorizes the Office of the United States Trade Representative (“USTR”) to look into selected international trade procedures.[2] USTR has initiated a probe into Vietnam’s currency methods, which could direct to tariffs on Vietnamese merchandise, comparable to the China tariffs. The Biden changeover team has not indicated whether it will observe via with the investigation.

History: Investigation of Vietnam’s Currency Valuation Procedures

The USTR declared in October 2020 that it was initiating a Area 301 investigation on Vietnam’s “acts, procedures, and techniques related to the valuation of its forex.”[3] The investigation concentrated on no matter whether Vietnam’s intervention in trade marketplaces and other connected steps are unreasonable and discriminatory and load or restrict U.S. commerce. The investigation followed a February 2020 rule promulgated by the Commerce Section in which it amended its restrictions to permit for the imposition of duties for nations that undervalue their currencies.

Despite the fact that the statute does not restrict the scope of investigations, the probe into Vietnam’s forex techniques is novel, due to the fact currency valuation has in no way in advance of been the foundation of a Part 301 investigation. The USTR took community enter on particular difficulties with respect to the investigation, which includes:

  • Whether or not Vietnam’s forex is undervalued, and the level of the undervaluation

  • Vietnam’s functions, policies or tactics that add to undervaluation of its currency

  • The extent to which Vietnam’s acts, guidelines or techniques lead to the undervaluation

  • No matter if Vietnam’s functions, insurance policies and procedures are unreasonable or discriminatory

  • The character and level of stress or restriction on U.S. commerce caused by the undervaluation of Vietnam’s currency and

  • The determinations necessary under portion 304 of the Trade Act, like what motion, if any, ought to be taken.

The interval for submission of feedback shut in November 2020. On December 29, 2020, the USTR held a public digital listening to on Vietnam’s forex methods.[4] Publish-hearing rebuttal feedback have been owing by January 7, 2021. Responses have been also permitted to deal with a independent but perhaps connected report on currency manipulation, as talked about under.[5]

The U.S. Treasury Report on Currency Manipulation

Pursuing the initiation of the Area 301 investigation, in December 2020, the Treasury Section issued its semiannual report on foreign exchange guidelines. That report concluded that Vietnam is a “currency manipulator.”[6] Although Treasury’s Report is carried out beneath a different statutory authority than Portion 301, it could deliver essential assist for the USTR to uncover that Vietnam’s currency practices are unreasonable or discriminatory and therefore actionable beneath Section 301.

Potential for Area 301 Tariffs on Vietnamese-Origin Products

Now that the Segment 301 proceedings have largely concluded (i.e., reviews, hearings, and publish-listening to opinions), the USTR is future expected to make a determination relating to no matter whether Vietnam’s currency methods are actionable beneath Portion 301. If that perseverance is affirmative, then the USTR need to make a decision what motion to get, which could contain the imposition of tariffs, related to all those of Chinese-origin products and solutions (see our posts concerning Section 301 tariffs on Chinese products here and here). A large quantity of businesses and trade associations have participated in the proceedings and have urged USTR not to impose Portion 301 tariffs.

There is some doubt whether or not USTR will conclude its investigation just before January 20, when President-elect Biden assumes office environment. Below typical situation, we may possibly expect the investigation to get fairly for a longer time, especially offered the novel international trade angle. But the Trump Administration USTR has been intense in its use of authority underneath Area 301, so it stays a possibility that it may come to a decision to conclude its investigation in advance of January 20. The Treasury Report could present added momentum for USTR to act quickly. Part 301 authorizes a array of remedies, together with tariffs, quotas, and other trade constraints.

Any Area 301 action—whether taken underneath the Trump or Biden Administration—has the possible to affect a massive swath of merchandise from Vietnam. We normally count on yet another remark period of time in advance of any these remedies are actually imposed. For that reason, we suggest that importers keep on being abreast of the investigation, shell out specific consideration to any proposed therapies, and be geared up to deliver community remark on this sort of proposals as proper.

FOOTNOTES

[1] For a listing of Segment 301 investigations, see right here.

[2] 19 U.S.C. § 2411.

[3] In addition to the Part 301 Investigation on Vietnam’s currency valuation, the USTR initiated a probe into Vietnam’s trade techniques similar to the import and use of timber that is illegally harvested or traded.  See Initiation of Segment 301 Investigation: Vietnam’s Acts, Policies, and Techniques Linked to the Import and Use of Illegal Timber, 85 Fed. Reg. 63639 (Oct. 8, 2020), available at https://ustr.gov/web-sites/default/files/enforcement/301Investigations/Vietnam_Timber_Initiation_Notice_October_2020.pdf.

[4] The transcript of the listening to is available in this article.

[5] Because the Treasury Report was issued soon after the USTR remark interval closed on the Segment 301 investigation, the USTR permitted fascinated parties to remark on the Treasury Report in their publish-listening to rebuttal remarks.

[6] Report on Macroeconomic and Overseas Trade Insurance policies of Major Trading Companions of the United States (Dep’t Treasury Dec. 16, 2020) (Treasury Report), accessible at https://household.treasury.gov/system/information/206/December-2020-Forex-Report-Final.pdf


Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.
National Law Evaluation, Volume XI, Number 11