Expect a Multifaceted Approach to Tariffs, Lawyers Say

During a Jan. 22 webinar focused on the trade actions in the opening days of President Donald Trump's second administration, lawyers David Forgue and Lawrence Friedman, partners with the firm specializing in trade, predicted increased use of Section 301 and Section 232 tariffs, new tariffs through the International Emergency Economic Powers Act (IEEPA) and a reworking of de minimis and antidumping rules.

Recent actions by the Trump administration indicate that it has trade actions locked and loaded for once studies are completed by the various trade agencies. "If you have the suspicion, as some of us may, that not all of the investigative work will be done only after people are in place, that some of it may already have been done, and some of the conclusions may be already known," then it is likely the administration will be ready with a flurry of trade-related policy at the beginning of April, Forgue said.

The lawyers were analyzing the recent memorandum from the White House that directed the heads of agencies that deal with trade, tariff collection and trade remedies to review U.S. trade policy (see 2501200002).

The memo directed the Department of Homeland Security to resolve the “emergency” of fentanyl coming from China, Mexico and Canada, an indication that the administration is preparing to use IEEPA (see 2411260050), observers say. Forgue said that since IEEPA requires "declaring an emergency, it is telling that section four [of the White House memo] says recommendations to resolve these quote emergencies, right? The language is there. The writing is on the wall.”

Friedman said he expects significant changes to the rules surrounding country of origin for imports, saying, “in 2026 you may see a lot of activity around rules of origin changes, including potentially rules of origin that are divorced from the physical manufacturing and makeup of the product to things like beneficial ownership and profit flows.”

This will likely dramatically affect how the U.S. handles antidumping duties, according to Forgue, who predicted that “it is probably about to be more difficult to get away from an antidumping case than it has been before, particularly if you stay with the same manufacturer, or Chinese-owned manufacturers in particular, who have moved their operations.”

The lawyers expect the administration to continue or expand Biden-era use of Section 232 and Section 301 tariffs, but questioned whether they would be the most efficient method for trade remedy because “this does not seem like an administration that's going to go on a hiring binge for the [Office of the U.S. Trade Representative] USTR, so I question whether 301 is going to be a great tool for them, just because there's an obvious workflow issue there.”

Expansions of Section 232 tariffs look extremely likely, particularly considering Trump’s recent threats against the EU, they agreed (see 2501210024). Forgue said that the EU can expect more tariffs on steel products: “steel is a major, major sticking point between the EU and the U.S. and the EU companies have tariff rate quotas, and that would be an easy vulnerability, particularly when you think about the countries that have some of the biggest tariff rate quota amounts.”

The Biden administration’s proposed rule change to de minimis in its final days likely will remain in place, the lawyers said (see 2501170005). Forgue speculated that the change “is going to end up being approved, is what we would guess. So, if you use a lot of de minimis, or you use any de minimis, it is almost certainly changing, and it's almost certainly going to become more restrictive.”

On Trump’s mention of China’s status of permanent normal trade relations, Forgue said that U.S. importers have grown used to that, and “if that ceases to be true, it opens up a lot of doors for very, very high duties, prohibitively high duties. And it's something to be very aware of.”

The potential for a new External Revenue Service drew a laugh from Forgue: “Customs does this and U.S. law is very, very clear that importers pay duties, [but] I guess it's conceivable that everyone who does revenue collection at Customs could be rebranded as the external revenue service.”

For importers worried how all these potential changes might impact their business, Forgue advised that they ensure their compliance regime is in order: “one of the lowest-cost things you can do is get your country of origin and duty, your tariff classifications in order, get them in order.”