Wednesday, August 2, 2017

The Meaning and Mechanics of the Steel Imports Investigation

Last week, President Trump told The Wall Street Journal that he would make a decision “fairly soon” about whether to impose tariffs on steel imports based on national security concerns. In an interview, Trump said the decision would take time because “[y]ou can’t just walk in and say I’m going to do this. You have to do statutory studies. … It doesn’t go that quickly.”

By “statutory studies,” Trump presumably meant the investigation required by Section 232 of the Trade Expansion Act of 1962. It’s a very expansive statute, which has trade experts very worried.

Here’s why it matters and how it works.

Why Do Steel Tariffs Matter So Much?

It’s good news that Trump has begun to recognize that the rule of law precludes him from acting as CEO of USA, Inc. In the case of Section 232, however, the steps set out by Congress are largely procedural, not substantive. If Trump decides to play hardball on steel, the statute allows him to do so based merely on findings that steel imports weaken the economy, and that a weak economy threatens national security.

Section 232 also allows Trump to implement any number of trade remedies to inhibit steel imports if the Secretary’s report finds a threat or impairment of national security. Although such trade restrictions by the U.S. could be subject to challenge in the WTO, there is no precedent for interpreting Article XXI of the GATT, which allows countries to implement trade restrictions on national security grounds. WTO members have always just held their breath and hoped that countries won’t start undermining the basic principles of free trade based on some bare recitation of “national security.”

If Trump starts down that road, it’s highly likely that other countries will retaliate. They could restrict imports of U.S. products that compete with their domestic industries, also citing “national security.” If such a trade war starts, who will decide what’s a “legitimate” threat to national security and what’s mere economic protectionism?

The use of laws like Section 232 that appear to equate economic competition with a national security threat could, if taken to extremes, spell the beginning of the end of the multilateral trading system.

What Are the Standards for Determining Effects on National Security under Section 232?

Section 232 (b)(1) provides that the Secretary of Commerce must investigate “to determine the effects on the national security of imports” that are the subject of a motion either by the Secretary, another department or agency head, or an “interested party.”  

 The statute doesn’t provide any substantive standards as to what constitutes a threat to national security, but the Commerce regulations give some criteria for the Secretary’s evaluation. The regulations direct the Secretary, in his investigation, to consider the quantity of the article imported; the domestic production needed for national defense; domestic production capacity; domestic availability of raw materials and human resources; and growth requirements for domestic industry.

What’s the Relationship Between Economic Competition and National Security under Section 232?

More worrisome for those who fear an opening of Pandora’s Box of trade restrictions justified on “national security” grounds, Section 232(d) requires the President and the Secretary to “recognize the close relation of the economic welfare of the nation to our national security, and … take into consideration the impact of foreign competition on the economic welfare of individual domestic industries ….”

The regulations also require the Secretary to consider the link between national economic strength and national security. This includes weighing the economic impact of foreign competition; the loss of jobs, government revenues, or production capacity due to trade; or “[a]ny other relevant factors that are causing or will cause a weakening of our national economy.”

Neither the statute nor the regulations provide any standard guiding the Secretary’s application of these factors to his analysis of trade impacts and their effects on national security. This leaves the door wide open for justifying trade restrictions on products with localized labor or production impacts of the type that Trump promised on the campaign trail to reverse.

What Are the Steps in the Investigation of Steel Tariffs?

The White House announced the launch of the Secretary’s investigation of steel imports in a Presidential Memorandum dated April 20, 2017. The statute requires the Secretary to consult with the Secretary of Defense and other “appropriate officers of the United States.”

Under the statute, the Secretary is entitled but not required to hold public hearings to solicit additional information and advice. Commerce held a public hearing on this investigation on June 23, 2017, and received public comments through June 26, 2017.

The Secretary must make a report to the President within 270 days of initiating the investigation. The report must advise the President if the Secretary finds that the quantity or circumstances of steel trade “threaten to impair the national security.” All non-classified sections of the report have to be published in the Federal Register.

What Are the President’s Options?

Pretty much anything. The statute allows the President to “determine the nature and duration of the action that, in the judgment of the President, must be taken to adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security.”

The statute contemplates that the President’s action might include an agreement with trading partners for the U.S. to limit imports (a quota of some kind) or for the trading partner to limit exports (a voluntary restraint agreement).  But nothing in the statute limits the President to that remedy, or any other. The barn door is wide open.

How Long Will This Take?

Secretary Ross has nine months (270 days) from April 20 to make his report, which gives him until January 15, 2018. President Trump will have 90 days from the date he receives the report, or no later than April 15, 2018, to determine whether to take action.

If the President concurs with the report and decides to take any action, he must implement that action within 15 days from his determination (no later than April 30, 2018). He must inform Congress of his reasons for taking action (or not taking action, if he so chooses) within 30 days from his determination (no later than May 15, 2018).

Of course, either the Secretary or the President may act more quickly as long as they have followed the procedures set out in the statute. Stay tuned.

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