EMA
On Friday, February 20, the U.S. Supreme Court issued its decision on tariffs imposed under the International Emergency Economic Powers Act (IEEPA). While many energy imports were originally exempted from the tariffs invalidated today by the Court, there are practical effects for crude oil and refined product imports. Please find below a brief summary of the pertinent points.
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By a 6-3 vote, the Supreme Court determined that IEEPA tariffs are unlawful.
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The majority opinion, however, did not discuss whether or how refunds will be issued nor the impact on the framework of U.S. trade deals negotiated with certain foreign countries within the past year (e.g., the European Union and Japan).
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Customs and Border Protection will no longer collect the invalidated tariffs.
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This decision does not affect the legality of the tariffs imposed under Section 232 (e.g., steel and aluminum and autos) and Section 301 (e.g., China).
What Does This Mean for Crude Oil and Refined Product Imports?
The practical effects of the Court’s decision today is to reduce cost pressure for companies that import crude oil and refined products, such as gasoline and heating oil. One would expect that removing tariffs should reduce one source of upward price pressure on refined products, even though global markets and supply constraints remain the primary cost drivers.
Additionally, with tariff costs embedded in many products beyond crude oil and refined products, energy marketers may see other costs for their businesses go down if the tariff savings are passed through supply chains.
What Does This Mean for Refunds on Past Import Entries?
The road to refunds on past entries remains unclear because the Supreme Court majority opinion was silent as to refunds. In a press conference today (February 20), President Trump indicated that the Government will litigate the IEEPA tariff refund issue. In prior filings with the Courts, however, the Government took the position that it will issue refunds if the Supreme Court finds the IEEPA tariffs unlawful.
The U.S. Court of International Trade (CIT) will likely decide how to implement the Supreme Court’s decision. The CIT will likely establish or direct U.S. Customs and Border Protection (CBP) to establish a refund procedure. At this time, it is unclear what that process would look like, when it would take effect, or how long it would take.
At this moment, importers should continue to closely track the liquidation status of all entries for which they paid IEEPA tariffs. Knowing whether each entry is still unliquidated or already liquidated is critical. Importers should take into account whether any protest deadlines are imminent and should seek further advice. In addition to monitoring liquidation status, importers should begin gathering the entry records including:
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Pulling all import data from ACE (Automated Commercial Environment), the online CBP system that stores entry information and duty payment records, for every entry that paid IEEPA duties.
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Gathering complete entry packets for all affected entries and proof of duty payments.
What Does This Mean for New Import Entries Today?
We expect CBP to issue implementing instructions to stop collecting IEEPA tariff actions. But, as of the time of this email, CBP has not yet issued instructions on how it will implement the decision. Once CBP does issue such instructions, importers will no longer be required to pay IEEPA tariffs. Other applicable tariffs, however, will still need to be paid. Importers with pending shipments may want to consider delaying shipment or entering imported goods into a bonded warehouse until CBP has issued instructions.
New 10% Section 122 Global Tariffs and Other Tariff Actions
In press conference today, President Trump announced a 10 percent global tariff under Section 122 of the Trade Act of 1974. This authority grants the President the power to impose a “temporary import surcharge” to “deal with large and serious United States balance-of-payment deficits.” Such tariffs can only be imposed for up to 150 days unless Congress affirmatively votes to continue the tariffs beyond 150 days. Section 122 does not allow tariffs to exceed 15%. No President has previously imposed tariffs under Section 122.
President Trump also announced new Section 301 (unfair trade practices) investigations but did not say which countries would be subject to the new investigations. Other tariff authorities like Section 301, Section 232 (national security), and Section 201 (safeguards) require agency investigations, public comment periods, and agency reports to the President. These processes are not immediate.
What Impact Does the Ruling Have on Recently Negotiated Trade Framework Deals?
In the past year, the Administration has negotiated various trade framework deals with certain countries (e.g., the European Union, the United Kingdom and Japan) that relied in part on the IEEPA authority. The Supreme Court’s decision generates uncertainty regarding those trade deals and the agreed-upon tariff rates.
