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USTR to Consider Extending List 1 Exclusions Past October 2nd Expiration Date

list 1

USTR to Consider Extending List 1 Exclusions Past October 2nd Expiration Date

On August 3, 2020, the Office of the U.S. Trade Representative (USTR) issued a notice requesting comments on whether to extend specific exclusions on Chinese imports from the Section 301 List 1 that are set to expire on October 2, 2020. Companies whose List 1 Exclusions products were granted exclusions in notices published on October 2, 2019December 17, 2019, and February 11, 2020 are eligible to submit comments.

The due date for companies to submit their comments is August 30, 2020. USTR has stated that it will focus its evaluation on whether, despite the first imposition of these additional duties, the particular product remains available only from China. Additionally, USTR encourages companies to specifically address the following in their submission:

-Whether the particular product and/or a comparable product is available from sources in the United States and/or in third countries.

-Any changes in the global supply chain since July 2018 with respect to the particular product or any other relevant industry developments.

-The efforts, if any, the importers or U.S. purchasers have undertaken since July 2018 to source the product from the United States or third countries.

-Whether the imposition of additional duties on the products will result in severe economic harm to the commenter.

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Turner Kim is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

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USTR Grants Extensions to Products Subject to Section 301 List 2

The Office of the U.S. Trade Representative (“USTR”) announced that it will extend certain product exclusions that were scheduled to expire on July 31, 2020 for fourteen (14) specific products subject to Section 301 List 2 tariffs at a rate of 25%.  As a result of these extensions, the exclusions will now expire on December 31, 2020.

The products for which the Section 301 exclusions were extended include the following:

(1) Polytetrafluoroethylene ((C2F4)n), having a particle size of 5 to 500 microns and a melting point of 315 to 329 degrees Celsius (described in statistical reporting number 3904.61.0090);

(2) Polyethylene film, 20.32 to 198.12 cm in width, and 30.5 to 2000.5 m in length, coated on one side with solvent acrylic adhesive, clear or in transparent colors, whether or not printed, in rolls (described in statistical reporting number 3919.90.5060);

(3) Rectangular sheets of high-density or low-density polyethylene, 111.75 cm to 215.9 cm in width, and 152.4 cm to 304.8 cm in length, with a sticker attached to mark the center of each sheet, of a kind used in hospital or surgery center operating rooms (described in statistical reporting number 3920.10.0000);

(4) Gasoline or liquid propane (LP) engines each having a displacement of more than 2 liters but not more than 2.5 liters (described in statistical reporting number8407.90.9010);

(5) Dispensers of hand-cleaning or hand-sanitizing solutions, whether employing a manual pump or a proximity-detecting battery-operated pump, each article weighing not more than 3 kg (described in statistical reporting number 8424.89.9000);

(6) Walk behind rotary tillers, electric powered, individually weighing less than 14 kg (described in statistical reporting number 8432.29.0060);

(7) AC motors, of 18.65 W or more but not exceeding 37.5 W, each with attached actuators, crankshafts or gears (described in statistical reporting number 8501.10.6020);

(8) Position or speed sensors for motor vehicle transmission systems, each valued not over $12 (described in statistical reporting number 8543.70.4500);

(9) Wheel speed sensors for anti-lock motor vehicle braking systems, each valued not over $12 (described in statistical reporting number 8543.70.4500);

(10) Apparatus using passive infrared detection sensors designed for turning lights on and off (described in statistical reporting number 8543.70.9960);

(11) Liquid leak detectors (described in statistical reporting number 8543.70.9960);

(12) Robots, programmable, measuring not more than 40 cm high by 22 cm wide by 27 cm deep, incorporating an LCD display, camera and microphone but without “hands” (described in statistical reporting number 8543.70.9960);

(13) Motorcycles (including mopeds), with reciprocating internal combustion piston engine of a cylinder capacity not exceeding 50 cc, valued not over $500 each (described in statistical reporting number 8711.10.0000);

(14) Digital clinical thermometers (described in statistical reporting number 9025.19.8040 prior to July 1, 2020; described in statistical reporting number 9025.19.8010 or 9025.19.8020 effective July 1, 2020).

USTR requested comments in April on whether it should extend the exclusions, which were originally issued on July 31, 2019. Over 50 products which were previously granted exclusions and were not listed in this extension notice will now expire on July 31, 2020.

To view the full list of extended product exclusions, please click here.

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Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

Julia Banegas is an attorney in Husch Blackwell LLP’s Washington, D.C. office,

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USTR Grants Extensions to Products Subject to Section 301 List 1

The Office of the U.S. Trade Representative (“USTR”) announced today that it will extend certain product exclusions scheduled to expire on July 9, 2020, for twelve (12) specific products which were subject to Section 301 List 1 tariffs at a rate of 25%.  As a result of these extensions, the exclusion extensions will now expire on December 31, 2020.

The products for which the Section 301 exclusions were extended include the following:

(1) Direct-acting and spring return pneumatic actuators, each rated at a maximum pressure of 10 bar and valued over $68 but not over $72 per unit (described in statistical reporting number 8412.39.0080);

(2) Pump casings and bodies (described in statistical reporting number 8413.91.9080 prior to January 1, 2019; described in statistical reporting number 8413.91.9095 effective January 7 1, 2019 through December 31, 2019; described in statistical reporting number 8413.91.9085 or 8413.91.9096 effective January 1, 2020);

(3) Pump covers (described in statistical reporting number 8413.91.9080 prior to January 1, 2019; described in statistical reporting number 8413.91.9095 effective January 1, 2019, through December 31, 2019; described in statistical reporting number 8413.91.9085 or 8413.91.9096 effective January 1, 2020);

(4) Pump parts, of plastics, each valued not over $3 (described in statistical reporting number 8413.91.9080 prior to January 1, 2019; described in statistical reporting number 8413.91.9095 effective January 1, 2019, through December 31, 2019; described in statistical reporting number 8413.91.9085 or 8413.91.9096 effective January 1, 2020);

(5) Compressors, other than screw type, used in air conditioning equipment in motor vehicles, each valued over $88 but not over $92 per unit (described in statistical reporting number 8414.30.8030);

(6) Structural components for industrial furnaces (described in statistical reporting number 8514.90.8000);

(7) Aluminum electrolytic capacitors, each valued not over $3.20 (described in statistical reporting number 8532.22.0085);

(8) Rotary switches, rated at over 5 A, measuring not more than 5.5 cm by 5.0 cm by 3.4 cm, each with 2 to 8 spade terminals and an actuator shaft with D-shaped cross-section (described in statistical reporting number 8536.50.9025);

(9) Rotary switches, single pole, single-throw (SPST), rated at over 5 A, each measuring not more than 14.6 cm by 8.9 cm by 14.1 cm (described in statistical reporting number 8536.50.9025);

(10) Zinc anodes for use with machines and apparatus for electroplating, electrolysis or electrophoresis (described in statistical reporting number 8543.30.9080);

(11) Weather station sets, each consisting of a monitoring display and outdoor weather sensors, having a transmission range of not over 140 m and valued not over $50 per set (described in statistical reporting number 9015.80.8080); and

(12) Multi-leaf collimators of radiotherapy systems based on the use of X-ray (described in statistical reporting number 9022.90.6000).

USTR requested comments in April on whether or not it should extend the exclusions, which were originally issued on July 9, 2019. Over 100 products which were previously granted exclusions and which were not listed in this extension notice will now expire on July 9, 2020.

To view the full list of extended product exclusions, please click here.

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Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

Cortney O’Toole Morgan is a Washington D.C.-based partner with the law firm Husch Blackwell LLP. She leads the firm’s International Trade & Supply Chain group.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

 

trading partners

US Trade Representative Launches Investigations of DSTs of Numerous Trading Partners

On June 2, 2020, the Office of the United States Trade Representative (USTR) announced that it is beginning investigations under Section 301 of the Trade Act of 1974 (Trade Act) into digital services taxes (DSTs) that have been adopted or are under consideration by ten of the United States’ closest trading partners – Austria, Brazil, the Czech Republic, the European Union, India, Indonesia, Italy, Spain, Turkey, and the United Kingdom (DSTs Investigations).

According to USTR Robert Lighthizer, “President Trump is concerned that many of our trading partners are adopting tax schemes designed to unfairly target our companies,” and that “[the United States] are prepared to take all appropriate action to defend our businesses and workers against any such discrimination.”

The initial focus of USTR’s investigations is to determine whether the existing or proposed DSTs discriminate against U.S. companies, apply retroactively, and/or constitute unreasonable tax policy by diverging from norms reflected in the U.S. tax system and the international tax system. The USTR identified examples of such divergent approaches, including extraterritoriality; taxing revenue not income; and intentionally penalizing particular technology companies for their commercial success.

As a next step, the USTR is seeking public comments on any issue covered by the investigations, in particular, the following:

-Concerns with one or more of the DSTs adopted or under consideration by the jurisdictions covered in the investigation.

-Whether one or more of the covered DSTs is unreasonable or discriminatory.

-The extent to which one or more of the covered DSTs burdens or restricts U.S. commerce.

-Whether one or more of the covered DSTs is inconsistent with obligations under the WTO Agreement or any other international agreement.

-The determinations required under section 304 of the Trade Act, including what action, if any, should be taken.

Written comments should be submitted through the Federal eRulemaking Portal and are due by July 15, 2020. Because of the COVID-19 restrictions, the USTR has not scheduled a public hearing at this time but may indicate in a subsequent notice if a hearing is to be held in the DSTs investigations.

Eversheds Sutherland Observation: The timing of the investigations is noteworthy, as many jurisdictions, including the EU, have been highlighting the need for DSTs to address COVID-19 tax shortfalls. It also comes as the OECD continues efforts to find a consensus solution to taxation of the digital economy. The OECD remains committed to a proposal in 2020, although there is some recognition that this timing may slip due to issues around the pandemic. Nonetheless, the reaction of the U.S. is consistent with the response to the French DST, and is noteworthy in that the administration continues to respond to unilateral digital tax efforts through trade, rather than tax, channels. The U.S. has continued to participate in the OECD’s inclusive framework efforts.

The Previous Section 301 Investigations into the French DST

In July 2019, the USTR had already initiated an investigation under Section 301 of the Trade Act with respect to France’s DST Act (LOI n° 2019-759 du 24 Juliet 2019), which French President Emmanuel Macron had signed into law on July 24, 2019.  After requesting public comments and conducting a public hearing in August 2019 (for a hearing transcript, see here), the USTR in a report published in December 2019 determined that France’s DST is unreasonable or discriminatory and burdens or restricts U.S. commerce. Specifically, the USTR’s investigation concluded that the French DST discriminates against U.S. (digital) companies, is unusually burdensome for affected U.S. companies, and is inconsistent with prevailing principles of international tax policy on account of its retroactivity, its application to revenue rather than income, its extraterritorial application, and its purpose of penalizing particular U.S. technology companies.

At the time, USTR Lighthizer said that the “decision today sends a clear signal that the United States will take action against digital tax regimes that discriminate or otherwise impose undue burdens on U.S. companies” and that the USTR is “exploring whether to open Section 301 investigations into the digital services taxes of Austria, Italy, and Turkey.”

Consequently, the USTR proposed action in the form of additional duties of up to 100 percent on certain products of France and considered imposing fees or restrictions on French services as a further option. The list of French products subject to the potential duties included 63 tariff subheadings with an approximate trade value of $2.4 billion. Another public hearing was conducted on the proposed action in January 2020 (for hearing transcripts, see here and here).

However, as reported in late January 2020, U.S. President Donald Trump and French President Macron agreed to a truce on the dispute over the French DST, under which both countries are extending negotiations, while the U.S. is postponing retaliatory action and France is suspending DST collections until the end of 2020. Furthermore, it was reported that under the deal France will (i) withdraw the DST as soon as the OECD’s Inclusive Framework reaches a multilateral agreement on how to reform the international tax rules in light of the digitalization of the economy, and (ii) repay companies the difference between the DST and whatever tax comes from a planned mechanism being drawn up by the OECD.

Eversheds Sutherland Observation: The reported U.S.-French deal did not address many concerns raised by affected companies at the Section 301 hearing regarding compliance with and the administrability of the DST. Initially, it left many affected companies struggling with obtaining information retroactively and preparing DST returns. At the same time, it has created significant pressure to agree on a multilateral solution as part of the OECD Inclusive Framework. In fact, France may be incentivized not to support a multilateral solution resulting in tax revenues that are less than what France can collect under its DST. Moreover, as subsequently observed, the deal did not appear to discourage other jurisdictions to enact their own digital taxes, subject only to an agreement to adjust to reflect any future multilateral solution agreed by the OECD.

The New Section 301 Investigations

An advance Federal Register Notice (Notice) issued by the Office of the USTR on the same day as the announcement provides additional details on the DSTs Investigations, including summaries of the DSTs that have been adopted or are being considered by the ten trading partners and the schedule for submission of written public comments.

DSTs under Investigation

As stated in the Notice, over the past two years, various jurisdictions—not limited to the ones under investigation—have taken under consideration or adopted taxes on revenues that companies generate from providing certain digital services to, or aimed at, users in those jurisdictions. Moreover, the Notice asserts that available evidence suggests these DST are targeting U.S.-based tech companies.

The DSTs Investigations target the following DST regimes:

Austria: In October 2019, Austria enacted effective January 1, 2020, a DST that applies a 5 percent tax to revenues from online advertising services with two revenue thresholds (at least €750 million in annual global revenues for all services and €25 million in in-country revenues for covered services).

Brazil: In May 2020, a draft bill was submitted in Brazil’s parliament entitled “contribution for intervention in the economic domain on gross revenue of digital services provided by large technology companies (CIDE-Digital),” which, if adopted, would apply an up to 5 percent tax on revenue from advertising and services in connection with digital platforms located in Brazil.

Czech Republic: The Parliament of the Czech Republic has accepted for consideration a bill that would impose a 7 percent tax on selected digital services provided in the country by companies with global sales exceeding €750 million and a turnover in the Czech Republic in excess of CZK 100 million.

European Union (EU): In its proposal for a COVID-19 recovery plan, the European Commission (EC) said that to raise the necessary funds, it will propose a number of new resources, which “could also include a new digital tax, building on the work done by the Organization for Economic Co-operation and Development (OECD).” The EC proposed a DST (COM(2018) 148 final) that would impose a 3 percent tax on gross revenues from digital online advertisement, digital platform activities, and sales of user data generated via digital platforms from companies with global sales exceeding €750 million and EU taxable revenues exceeding €50 million.

India: In March 2020, India expanded its equalization levy that has been in place since 2016 and will now impose a 2 percent levy on consideration receivable by a non-resident “e-commerce operator” (with annual revenues in excess of approximately ₹20 million) for “e-commerce supply or services” provided or facilitated by it on or after April 1, 2020.

Indonesia: In March 2020, the Indonesian government enacted a government regulation that adopts (but not yet implements) a new tax on Trade Through Electronic Systems (Perdagangan Melalui Sistem Elektronik or “PMSE”), imposing an electronic transaction tax on PMSE activities carried out by foreign tax subjects that meet certain criteria.

Italy: Italy enacted a DST effective January 1, 2020, which imposes a 3 percent tax on revenues from targeted advertising and digital interface services by companies generating at least €750 million in overall worldwide revenues and at least €5.5 million in revenues from qualifying digital services provided to users located in Italy.

Spain: In February 2020, the Spanish government published a draft bill concerning the implementation of a unilateral DST, which would impose a 3 percent tax on revenues from online advertising services targeted at users, online intermediary services, and data transmission services of companies generating at least €750 million in global net turnover and at least €3 million in revenues from taxable provisions of digital services in Spain.

Turkey: Having imposed a 15 percent withholding tax on online advertising since the beginning of 2019, Turkey has now enacted a DST effective March 1, 2020, which currently imposes a 7.5 percent tax (though the Turkish president is authorized to reduce the DST rate to 1 percent or double it) on gross revenues from certain services, including advertisement services provided through digital platforms, sales of auditory, visual or digital contents on digital platforms, and services related to the provision and operation of digital platforms enabling users to interact with each other, provided by companies with worldwide revenue exceeding €750 million and with Turkey-sourced revenue exceeding ₺20 million, in each case from covered digital services.

United Kingdom (UK): The UK government announced the introduction of a DST from April 1, 2020, which would impose a 2 percent tax on the revenues of search engines, social media services and online marketplaces that derive value from UK users of companies when the group’s worldwide revenues from these digital activities are more than £500 million and more than £25 million of these revenues are derived from UK users.

Section 301 Investigations in General

As described in the Notice, the Trade Act of 1974 authorizes the USTR to investigate whether an act, policy, or practice of a foreign country is actionable under Section 301 of the Trade Act. Actionable matters under Section 301 include acts, polices, and practices of a foreign country that are unreasonable or discriminatory and burden or restrict U.S. commerce. An act, policy, or practice is unreasonable if the act, policy, or practice, while not necessarily in violation of, or inconsistent with, the international legal rights of the United States, is otherwise unfair and inequitable.

As a first step in a Section 301 investigation, the USTR consults with appropriate advisory committees, including the Section 301 Committee, and requests consultations with the governments of the affected jurisdiction(s). The Notice confirms with respect to the DSTs Investigations that the USTR has already consulted with the relevant advisory committees in the U.S., as well as reached out to the governments of the ten affected jurisdictions.

After the USTR determines whether an act, policy, or practice under investigation is actionable under Section 301, the USTR must determine what action to take. Notably, Section 301 authorizes the President to take unilateral retaliatory action in order to force the offending country to end the practices that have been found to be unreasonable or discriminatory against the United States. In past Section 301 investigations, such retaliation has typically involved the imposition of significant additional U.S. tariffs on selected products from the targeted country.

Eversheds Sutherland Observation: Initial reactions to the USTR announcement from the targeted jurisdictions suggest that they are unfazed by the threat of a U.S. trade investigation, as they openly reaffirm their commitment to enact and/or enforce these DSTs as planned. This was true of the French response to the Section 301 investigation into its DST. Perhaps the U.S. is anticipating that, as in the case of France, the Section 301 investigations will lead to agreements to refrain from enforcement of unilateral taxes until the OECD Inclusive Framework is able to reach a consensus solution. However, if countries do in fact continue with unilateral DSTs, the situation may well trigger another potential trade war, at a time when the global economy is struggling to respond to the COVID-19 pandemic. It deserves emphasis that Section 301 is the legal basis for the significant tariffs that the U.S. has imposed on Chinese imports, which has in turn triggered tariff retaliation by China against U.S. imports.

Potentially complicating the U.S. position are digital advertising tax proposals appearing at the U.S. subnational level. The Maryland legislature recently passed a digital advertising tax bill that the state governor vetoed on May 7, and a “copycat bill” was introduced in New York. There are serious questions regarding the constitutionality of the proposals that have been introduced, but their existence may undermine the USTR position that foreign DSTs are unreasonable or discriminatory. Maryland’s proposed digital advertising tax has drawn scrutiny as violating federal law, including the Permanent Internet Tax Freedom Act and the dormant Commerce Clause. For Eversheds Sutherland’s critique of the tax, please see our recent article, If Md.’s Digital Ad Tax Is Passed, Court Challenges Will Follow.”

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USTR Initiates Section 301 Digital Services Tax Investigations Covering India, the European Union and Several Other Countries

The Office of the U.S. Trade Representative (“USTR”) announced on June 2, 2020 that it is initiating Section 301 investigations on Digital Services Taxes (“DSTs”) adopted or under consideration by Austria, Brazil, Czech Republic, the European Union (“EU”), India, Indonesia, Italy, Spain, Turkey, and the United Kingdom (“U.K.”). The Section 301 DST investigations could lead the U.S. to impose new punitive tariffs and could significantly raise global trade tensions.

USTR is soliciting public comments from parties and these must be submitted no later than July 15, 2020. Written comments should be submitted through the Federal eRulemaking Portal at http://www.regulations.gov under docket number USTR-2020-0022. According to the Federal Register notice, the USTR invites comments with respect to:

-Concerns with one or more of the DSTs adopted or under consideration by the jurisdictions covered in these investigations.

-Whether one or more of the covered DSTs is unreasonable or discriminatory.

-The extent to which one or more of the covered DSTs burdens or restricts U.S. commerce.

-Whether one or more of the covered DSTs is inconsistent with obligations under the WTO Agreement or any other international agreement.

-The determination required under section 304 of the Trade Act, including what action, if any, should be taken.

Over the last couple of years, various governments have enacted or considered taxes on revenues generated by companies from providing digital services within those jurisdictions. While the proponents of DSTs argue that the tax corrects corporate taxation to cover previously untaxed or undertaxed revenues, the position of the Trump administration, including the USTR, is that DSTs unfairly discriminate against “large, U.S.-based tech companies” such as Amazon and Google. USTR’s announcement provides a brief but detailed overview of the current status of each of the named jurisdictions’ enacted or proposed DSTs.

USTR’s initiation of Section 301 investigations follow a period of intermittent tensions between the U.S. and some of its trading partners over proposed DSTs. In December 2019, the U.S. and France nearly began a trade war over the DST adopted by France, which USTR described as “unreasonable, discriminatory, and burdensome on U.S. commerce.” However, these tariffs were never implemented on imports of products from France. In January of this year, the Trump administration had also threatened the U.K. with tariffs on imports of British cars if the U.K. pressed forward with its DST.

A possible result of these new investigations will be the institution of additional tariffs on imports of products from each of the named countries but that remains to be seen and will depend in large part on the support or opposition to the institution of trade remedies in the comments filed on the record of these investigations.

Husch Blackwell continues to monitor the Section 301 investigations on Digital Services Taxes and will provide further updates as more information becomes available. We encourage clients and companies to review the USTR’s announcement and Federal Register notice.

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Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

Grant Leach is an Omaha-based partner with the law firm Husch Blackwell LLP focusing on international trade, export controls, trade sanctions and anti-corruption compliance.

Cortney O’Toole Morgan is a Washington D.C.-based partner with the law firm Husch Blackwell LLP. She leads the firm’s International Trade & Supply Chain group.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

expert logistics

U.S. BUSINESS PREPARES FOR NEXT WAVE OF TARIFFS ON 100% OF GOODS FROM CHINA

Over several days in late June, trade policymakers in Washington listened to the testimony of hundreds of businesses and industries from sports fishing to booksellers, bakers and bicycle makers, logistics companies, and inventors of healthcare and high tech products. Most wish to avoid the next wave of tariffs that would apply to nearly 100 percent of the goods we import from China.

Meanwhile, more microeconomic effects can be understood by examining the thousands of requests that companies and associations have made to the administration, each asking that specific products be excluded from tariffs already in effect. To achieve an exclusion, applicants must explain how the product needed might be too costly or not widely available for purchase outside China.

They must also analyze whether the product is strategically important or relevant to China’s Made in China 2025 industrial ambitions.

Economists Christine McDaniel and Danielle Parks break down the status of how the administration is responding to these product exclusion requests. TradeVistas offers this graphic to summarize their detailed investigation, and to help you keep track of “tranches” or waves of tariffs announced or implemented by the administration over the last year or so.

Feel free to use and share our graphics.

Wave of China Tariffs TradeVistas

Want to dive deep into the product exclusion process and outcomes to date? Read McDaniel’s full paperInvestigating Product Exclusion Requests for Section 301 Tariffs with links to full data sets.

 

 

 

 

 

 

 

Andrea Durkin is the Editor-in-Chief of TradeVistas and Founder of Sparkplug, LLC. Ms. Durkin previously served as a U.S. Government trade negotiator and has proudly taught international trade policy and negotiations for the last fourteen years as an Adjunct Professor at Georgetown University’s Master of Science in Foreign Service program.

 

This article originally appeared on TradeVistas.org. Republished with permission.