每个跨国公司都应了解的......当前的特朗普关税提案

Although we are only two months into the new administration, we have seen an array of new tariffs that have been proposed, imposed, revoked, suspended, and sometimes reimposed. It can be difficult for importers to keep up with all the proposals. So, as an aid to the importing community, we have put together an “evergreen” tariff article, which contains three key items for importers:

• A table of the tariff proposals, including their current status[1] and the key importer issues for each;
• 为进口商提供资源清单，帮助他们应对关税和国际贸易的不确定性；以及
• 我们从客户那里收到的有关新关税及其实施的最常见问题清单。

We will be regularly updating these resources to reflect new tariff proposals and modifications, which are in some cases being updated or changed daily.

各种关税公告进展如何？

At this point, we count 12 tariff initiatives that are proposed or in play. They range from broad-based tariffs that cover all goods from a certain country (Canada, China, and Mexico), tariffs that cover certain types of goods (aluminum and steel), promises of future tariffs (automotives, semiconductor, pharmaceutical, copper, and lumber), and promised retaliatory tariffs (European wine and alcoholic beverages). Further, although we have seen more tariff announcements in the first two months of the second Trump administration than we saw in the entirety of the first one, the largest tariff shoe is yet to drop: It is likely that the announced “Fair and Reciprocal” tariff rollout will dwarf the tariffs imposed to date, with the countries at the greatest risk of increased tariffs consisting of:

• Countries that impose high tariffs. Notable examples include Argentina, Bangladesh, Brazil, Egypt, India, and Pakistan.
• Countries that are viewed as heavily subsidizing their manufacturers. Depending on the particular type of products, examples include China (especially) as well as Australia, Canada, and the European Union countries.
• Countries that are viewed as manipulating their exchange rate. The Department of Commerce already has issued a finding that Vietnam grants subsidies by manipulating its exchange rate, in a countervailing determination involving tires from Vietnam. As part of its semiannual report to Congress, the Treasury Department maintains a “monitoring list” of exchange rate policies that arguably confer subsidies. The November 2024 list included China, Germany, Japan, Singapore, South Korea, Taiwan, and Vietnam.
• Countries that have put in place import barriers aimed at high-profile, high-volume products such as automobiles. While the United States maintains tariff levels of 2.5 percent for automobile imports, most of the rest of the world starts at 10 percent or higher.

We will be updating this article as new policies are announced, including the reciprocal tariffs. The state of play for each tariff is as follows:

有哪些资源可帮助应对关税和国际贸易的不确定性？

To help importers cope with the unpredictability of the current trade environment, Foley’s International Trade, Supply Chain, and False Claims Act Teams offer focused, practical resources to help manage international trade. These include:

书面资源

• Six-Step Tariff Risk Management Plan: Our white paper and a six-step tariff risk-management program on “Managing Import and Tariff Risks During a Trade War.”
• 文章系列： 我们的双周刊文章 "每个跨国公司都应知道的事 "涉及国际贸易的紧迫话题，包括主要的关税提案。您可以点击此处查看该系列的所有文章，也可以点击此处注册，接收即将发布的双周电子邮件通知。
• 总统过渡枢纽：为了就如何处理新政府快速发布的各方面公告提供实用建议，我们设立了 "100 天及以后"：总统过渡枢纽，以便在新政府发布公告时及时更新法律信息。您也可以在此注册以接收更新信息。

网络研讨会

• 管理国际贸易和关税风险： 贸易战期间的进口和关税风险管理 "特别网络研讨会对最有可能实施的关税提案进行了最新评估，并就企业可采取的步骤提供了实用建议，以便在整个供应链中以及与客户之间识别、风险规划和管理与关税相关的风险。网络研讨会录音请点击此处。
• 2025 In-House Connect Supply Chain & Trade Law CLE Summit: This webinar contained four programs relating to the incoming administration, including tax, trade, supply chain contracting, and supply chain integrity risks as well as coverage of international trade topics relating to Mexico:
• 特朗普新政府下的税收、贸易和政策变化：期待什么和如何准备（促销代码：IHCFOLEYSUMMIT）
• Navigating Supply Chain Contracting in a Volatile Global Landscape (Promo code: IHCFOLEYSUMMIT2)
• International Trade and Manufacturing in Mexico under the New Trump Administration: What to Expect and How to Prepare (Promo code: IHCFOLEYSUMMIT3)
• 管理特朗普新政府下的进口风险：期待什么和如何准备（促销代码：IHCFOLEYSUMMIT4）

服务项目

• 海关审计和供应链完整性审查：固定收费的 "海关审计和供应链完整性 "审查，可全面评估贵公司的海关合规状况，以及是否存在尚未解决的风险，以避免海关对贵公司的进口产品进行不必要的审查。更多详情请点击此处。
• 针对关税问题的合同审查： 富理达的供应链团队可利用人工智能协助审查您的关键供应协议中与哪一方承担关税成本相关的关键条款，包括交货条款和定价条款。

常见问题

After presenting at numerous seminars and webinars, and in discussions with clients, we have noticed certain recurring questions. As an aid to the importing community, we have compiled a list of these, which include the following:

General

Do the tariffs stack?

Yes, all tariffs stack. This means an entry of steel from China would incur:

• the normal Chapter 1–97 tariff;
• the 25-percent Section 232 steel tariff;
• the original Section 301 China steel tariff (up to 25 percent); and
• the new 20-percent additional China tariff.

In addition, if the product is covered by an antidumping or countervailing duty order, then those duties also would stack.

Is the stacking compounded?

No. The tariffs add up without compounding. If both a 20-percent and a 25-percent tariff apply, then this results in a 45-percent increased tariff.

Are you seeing clients pursue a China +1 strategy to cope with the new tariffs?

Yes. Many clients have been pursuing a strategy of adding additional capacity outside of China since the imposition of the original Section 301 duties. These efforts appear to be accelerating, as there is a growing realization that high tariffs on China are the new normal. In this regard, it is important to note the original Section 301 tariffs remained in place even under the Biden administration. Further, China is likely to see the greatest amount of increased tariffs under the reciprocal tariff proposal because it hits so many categories — it heavily subsidizes its industries, it has been tagged as a currency manipulator by the Department of Treasury for years, and there are numerous countervailing duty findings by the Department of Commerce that provide a clear roadmap to identify subsidy programs.

需要注意的是，当企业将生产迁出中国时，往往会继续使用原产于中国的零部件。采用这种策略的公司需要进行仔细分析，确保他们在第三国进行了足够多的工作并增加了足够多的价值，从而 "实质性地改变 "了产品，创造出一种具有新名称、新特征或新用途的新的不同的商业产品，从而使其具有新的非中国原产地。

Will there be exceptions for goods like medical devices in the proposed tariffs?

Unclear. But the tariffs have veered toward being universal. Further, one of the purposes of the aluminum and steel tariff announcement was to wipe out the list of accumulated product-specific exceptions that had grown over the years. These factors work against an announcement of tariff-specific exceptions.

Are there any discussions relating to potential tariff relief for certain sectors (Defense, Navy, etc.)?

So far, the only somewhat industry specific reprieve has been the lifting of tariffs on USMCA compliant goods until April 2, 2025, as a result of the U.S. auto manufacturer concerns. While this is intended to apply to a lot of automotive imports, the lifting of the tariffs on USMCA compliant items is not exclusively tied to automotive imports. If discussions regarding tariff relief for other sectors have been occurring, they have not been announced.

Will the Executive Orders on tariffs be challenged in litigation?

Almost certainly, yes. But in general, the Court of International Trade and the Court of Appeals for the Federal Circuit tend to defer to the Executive in matters of international trade policy. Also, the imposition of special tariffs in the first Trump administration were generally upheld by the trade courts.

Have you heard of any plans to change Foreign Trade Zones (FTZ) laws?

In general, no. Specific tariff announcements, however, have contained provisions relating to the FTZs, such as stating any goods that go into Foreign Trade Zones need to enter in “privileged foreign status.” This means the duty rate is fixed at the time the goods enter the zone, meaning even if the goods are further manufactured within the FTZ, the duty will be based on the original classification when they entered the FTZ.

Steel and Aluminum Tariffs

与 2018 年原版相比，232 条款的铝和钢关税有什么变化？

• The aluminum tariffs increased from 10 to 25 percent.
• All negotiated tariff-rate quotas for the EU, Japan and the United Kingdom, as well as the quotas negotiated with Argentina, Brazil, and South Korea, are no longer applicable. The previous exemptions for Australia, Canada, Mexico, and Ukraine no longer apply.
• 所有根据原铝和钢计划授予的特定产品豁免均被撤销。
• 派生文章清单 "大幅扩充。

Are Chapter 72 articles still subject to 25-percent tariffs?

Yes. Certain headings in Chapter 72 that were previously subject to the original Section 232 tariffs are still covered. All exclusions that previously applied to certain Chapter 72 products are now revoked.

Are iron products covered?

Based on the description of the covered products in the Executive Orders, carbon alloy steel products, not iron, are covered by the exclusions.

How should we treat imports that fall under the “derivative articles” HTS codes but do not actually contain any aluminum or steel?

In some cases, certain HTS classifications that are on the derivative aluminum and steel HTS classifications can cover types of products that may not contain any aluminum or steel. For example, certain types of metal furniture are covered, but if these are made out of a metal other than steel then they would not be covered even though they fall within an HTS that is listed in Annex 1 of the steel proclamation. In these cases, it would be appropriate to have the foreign producer include a statement on the commercial invoice to state that the product does not contain aluminum or steel, to support why the tariffs are not due on the entry.

After the elimination of the product-specific exemptions, are there any remaining exemptions?

The only exemption remaining is for derivative articles that are manufactured from steel melted/poured in the United States or aluminum smelted/cast in the United States. For such products, the importer should request a statement on the commercial invoice stating that the product contains aluminum smelted/cast in the United States or steel that was melted/poured in the United States. In case of Customs inquiry, it would be appropriate to include copies of steel mill certificates or aluminum certificates of analysis in the 7501 Entry Summary packet.

For derivative articles, is the 25-percent tariff paid on the full value of the article?

The Executive Orders state that the 25-percent tariff is paid on the “value” of the aluminum or steel “content” of the “derivative article.” There are, however, no instructions as to how this value should be calculated. In accordance with normal Customs requirements, the value should be calculated using a reasonable method that is supportable. This could potentially be based on a calculation from the foreign supplier. Frequent importers of derivative products should monitor CSMS announcements to see if CBP issues instructions on this issue.

Is duty drawback available for the aluminum and steel tariffs?

No, the Executive Orders state that duty drawback cannot be used.

Does Chapter 98 provide relief from the 25-percent aluminum and steel tariffs?

The Executive Orders do not list any Chapter 98 exceptions for the new tariffs. This is consistent with the original Section 232 tariffs, which also did not contain any Chapter 98 exceptions.

Will there be an exclusion process?

None has been announced or established. It is unlikely that the Trump administration would wipe out all product-specific exemptions only to build them back up again.

Could the list of “derivative articles” expand?

The Executive Orders directed the Department of Commerce to establish a process by May 11, 2025, to consider requests to add additional “derivative articles.” We anticipate that U.S. aluminum and steel manufacturers will aggressively use this process to push for additional excluded derivative products.

USMCA/Canada and Mexico Tariffs

Will the reciprocal tariffs replace the Canadian and Mexican tariffs? Or will they stack?

The reciprocal tariffs have not been announced yet. But because all of the other tariffs stack, there is a high likelihood that the reciprocal tariffs also will stack on top of the existing 25-percent tariffs rather than replace them where they overlap. Also, the 25-percent tariffs were announced as being imposed due to concerns about fentanyl and unauthorized immigration, which is an entirely separate issue from the tariff equalization that is the goal of the reciprocal tariffs.

How will tariffs effect the IMMEX/Maquiladora imports from Mexico?

Because the Maquiladora, Manufacturing, and Export Services Industry (IMMEX) Program is a figure of Mexican law, we anticipate Mexico will do all that it can to protect companies that operate using the Program. Although uncertain, as per previous experiences in imposing retaliatory measures, Mexico will most likely establish tariffs on US sumptuous goods and/or finished products, and hardly to raw materials used by IMMEX/Maquiladora companies.

Will the Canada and Mexico tariffs be lifted when the USMCA review occurs?

Unclear. We do note, however, that the United States lifted the prior aluminum and steel tariffs as part of the negotiation of the USMCA under the first Trump administration. The second Trump administration, however, is taking a much harder line on tariff and international trade issues.

Reciprocal Tariffs

What are reciprocal tariffs?

“Reciprocal tariffs” are intended to equalize tariff rates, such as when a foreign country imposes a higher tariff on the United States than the United States does for the same product category. Because the United States generally has low tariffs, this means that there are a great many HTS classifications that likely will increase, with the impact varying by country. Moreover, because the announcement of the coming reciprocal tariffs states that it will take into account any form of discrimination against U.S. companies or programs that favor foreign companies, then calculated reciprocal tariffs will likely be very high. For example, most countries have Value Added Taxes that rebate any VAT payments when goods are exported; the Trump administration has indicated that this would be considered a form of subsidy that should be counteracted with reciprocal tariffs. So would subsidized electricity, currency manipulation, and so forth. Adding these concepts on top of equalizing tariffs across HTS categories leads to likely major increases in tariffs.

When will they be announced?

The reciprocal tariff announcement is expected for April 2, 2025. The Trump Administration also announced that it would proceed to consider countries with major trade deficits with the United States first, so it is possible that April 2^nd will be the start of a rolling set of reciprocal tariff announcements.

不可抗力和附加费常见问题

富理达供应链团队还发布了一系列有关合同问题的常见问题，为方便起见，我们在此重复这些问题。

What are the key doctrines to excuse performance under a contract?

There are three primary defenses to performance under a contract. Importantly, these defenses do not provide a direct mechanism  for obtaining price increases. Rather, these defenses (if successful) excuse the invoking party from the obligation to perform under a contract. Nevertheless, these defenses can be used as leverage during negotiations.

不可抗力

不可抗力是合同规定的履行抗辩。因此，必须根据适用的不可抗力条款的措辞，逐案分析每种情况。不过，基本结构一般保持不变：(a) 发生所列事件；(b) 该事件不在援引不可抗力一方的合理控制范围内；(c) 该事件阻碍了履约。

商业上不可行（货物）

就货物而言，《统一商法典》第 2-615 条（该条管辖货物销售，几乎每个州都以某种形式采用了该条）规定了商业上的不可行性。在以下情况下，《统一商法典》第2-615条可免除履约责任(a) 延迟交货或不交货是意外事件发生的结果，而不发生意外事件是合同的基本假设；以及 (b) 援引商业不现实的一方提供了适时通知。普通法（适用于非货物，如服务）也有一个类似的概念，称为不可能或不切实际原则，它有更高的标准。根据《统一商法典》和普通法，责任是相当高的。如果没有其他因素，无利可图或甚至严重的经济损失通常不足以证明不切实际。

目标的挫折感

根据普通法，如果情况发生了重大变化，而这种变化对合同至关重要，以至于双方当事人如果知道会发生这种变化，就绝不会订立交易，那么合同的履行就可以免责。要证明目的落空，一方当事人必须证明：(a) 事件或事件组合在订立合同时是不可预见的；(b) 情况已造成根本性的重大变化；以及 (c) 如果双方当事人知道会发生这种情况，就不会按照当前条款订立协议。

Can we rely on force majeure (including if the provision includes change in laws), commercial impracticability, or frustration of purpose to get out of performing under a contract?

在法庭上，很可能不会。这些理论适用于妨碍 履约的情况。此外，法院通常将成本增加视为可预见的风险。 UCC 第 2 条中关于商业不可行性的第 2-615 节的官方评注指出："商业不可行性在大多数州都适用于货物销售：

"成本增加本身并不能成为履约的理由，除非成本增加是由于某些不可预见的意外情况，从而改变了履约的基本性质。市场上涨或崩溃本身也不能成为履约的理由，因为这正是按固定价格订立的商业合同所要涵盖的商业风险类型。但是，由于战争、禁运、当地农作物歉收、主要供应来源意外关闭等突发事件造成的原材料或供应品严重短缺，导致成本显著增加或卖方完全无法获得履约所需的供应品，则属于本条规定的范围。(见 Ford & Sons 有限公司诉 Henry Leetham & Sons 有限公司，21 Com.Cas.55 (1915, K.B.D.)。"（着重部分由作者标明）。

尽管如此，在 COVID 和特朗普关税 1.0 期间，我们确实看到有公司利用不可抗力/商业不可行性理论作为将对方拉到谈判桌前分担成本的一种方式。

May we increase price as a result of force majeure?

不，不可抗力通常不允许提价。不可抗力只适用于因特定事件而无法履约的情况。不可抗力是履约的借口，而不是转嫁成本增加负担的理由。不过，不可抗力的主张可以作为谈判的筹码。

Is a tariff a tax?

是的，关税就是税收。

Is a surcharge a price increase?

是的，附加费就是涨价。如果签订的是固定价格合同，收取附加费就是违反协议。

尽管如此，在 COVID 和特朗普关税 1.0 期间，我们看到许多公司还是这么做了。客户通常在提出抗议的情况下支付附加费。我们本以为事后会有一大波客户提起诉讼，但却从未见过，这说明要么争议是通过商业途径解决的，要么客户只是接受了附加费并继续前行。

Can I pass along the cost of the tariffs to the customer?

要确定是否可以转嫁成本，需要逐份合同进行分析。Foley 的供应链团队可以利用人工智能从您的合同中提取关键条款（包括交货条款、定价和税收），并对其进行分析，以了解每份合同对关税责任的规定。

如果在没有合同依据的情况下提价，客户有什么选择？

客户有五种主要选择：

接受涨价：

明确接受提价的情况很少见，但从卖方的角度来看，这是最好的结果。

在提出抗议的情况下接受提价（保留权利）：

客户将同意在提出抗议和保留权利的情况下付款。这样，客户就可以在以后追回多付的金额。理想的情况是，双方继续开展业务，而客户在诉讼时效到期前（通常为六年，取决于管辖法律）从未要求追偿。

拒绝涨价：

客户将拒绝提价。注意，客户最初可能会拒绝提价，但在进一步讨论后会同意支付。如果客户坚决拒绝提价，供应商可以在仔细权衡潜在损失和收益后，决定是否采取更激进的行动（如威胁停止发货）。

寻求宣告性判决和/或禁令：

客户可以寻求宣告性判决和/或禁令，要求卖方按当前价格发货/履约。

终止合同：

The customer may terminate part or all of the contract, depending on contractual terms.

[1]请注意，各种关税计划的实施情况仍在不断变化，因此应密切关注这些计划的状况。所列表格为本文发布之日的最新数据。