State Department Determines All Agency Actions on International Trade are “Foreign Affairs Functions” of the U.S. Government

On March 13, 2025, the State Department published a notice in the Federal Register designating all agency action with respect to international trade a “foreign affairs function” of the United States under the Administrative Procedures Act (APA). Specifically, the agency asserts that “all efforts by any agency of the Federal Government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function” of the United States. There is a provision in the APA that exempts agency decisions involving “foreign affairs functions’ from review and this declaration by the State Department would remove international trade actions by the agency from judicial review.

Read also: Week Eight in Trade – First 100 Days of the New Administration

This change is especially important for laws that do not have a provision explicitly allowing judicial review. Exceptions already exist for export controls given that the State Department’s Directorate of Defense Trade Controls (DDTC) has considered its rules exempt from APA review as a foreign affairs function for several years, with § 128.1 of the ITAR confirming this exemption and the Commerce Department’s Export Control Reform Act already has an APA carve out, removing its decisions on export controls from judicial review.

The United States Tells Vietnam to “Improve” Trade Balance

The U.S. expects Vietnam to improve its trade balance with the U.S. On Wednesday, March 12, U. S. Trade Representative Jamieson Greer met with his Vietnamese counterpart to discuss the tariff policies of the new administration. The U.S.-Vietnam trade relationship is among one of the United States’ most unbalanced, with the U.S. having a running goods deficit of $123.5 billion in 2024. Vietnam is reportedly prepared to offer several concessions to the Trump administration ahead of the reciprocal tariffs that go into effect on April 2. Greer stated that Vietnam needs to do more to create stronger, market-opening solutions that will improve the trade balance in the future. Nugyen Hong Dien, the Vietnamese minister, proposed that the countries can continue technical talks so the U.S. will recognize Vietnam’s “market economy status” which will make it harder for domestic industries to seek remedies for unfair trade practices than those competing with entities from non-market economies. Dien stated that Vietnam views the two economies as “complementary” and that the nation hopes to create a harmonious, stable trade relationship with the United States.

The U.S. and India Begin Talks on Bilateral Trade

The United States engaged in talks with India aimed at boosting trade, addressing non-monetary barriers, and, eventually, a free trade agreement between the two nations. Sunil Barthwal, India’s Commerce Secretary, stated on March 17, 2025, that New Delhi is being proactive about working with the U.S. on bilateral issues with the goal of a broader bilateral deal that would reduce trade disparities between the two countries. These conversations come as a part of President Trump and Indian Prime Minister Narendra Modi’s pledge to boost bilateral trade by $300 billion dollars to approximately $500 billion by 2030. Trump administration officials have called for an agreement addressing New Delhi’s tariffs, which are “some of the highest in the world” according to Commerce Secretary Howard Lutnick.

Greer Fills Top Spots at USTR

Jamieson Greer, the U.S. Trade Representative (USTR) has named several picks for top positions. The rundown is as follows:

• Jennifer Thornton is now General Counsel for the USTR. Before being tapped for the position, she was Vice President for Trade and International Issues at Business Roundtable, served as trade counsel for the House Ways & Means Committee, and held several previous positions at USTR, mostly during the Obama administration. During her former stint at USTR, she served as Director of Investment, a senior advisor, and as counsel for the agency.
• Sam Mulopulos was tapped to serve as Greer’s Chief of Staff. He also served the House Ways & Means Committee as a senior policy advisor and as then-Senator Rob Portman’s trade policy advisor before this appointment.
• Zoe Sophos is now Deputy Chief of Staff. She previously served as USTR’s Director for Industrial Trade Policy.
• Sam Scales has been named a senior advisor after serving as Assistant U.S. Trade Representative during the first Trump administration.
• Finally, Brett Doyle was named USTR for Congressional Affairs. Prior to joining the agency, he was Director of Outreach of the Mercatus Center at George Mason University, served as a senior advisor to the COVID-19 Congressional Oversight Commission, and, during Trump’s first term, worked at the Environmental Protection Agency.

BIS Seeks Public Comment on Copper and Lumber Investigations

On February 25, 2025, Commerce initiated Section 232 investigations into imports of copper, timber, and lumber at the direction of the president. In a Notice published on March 13th, the agency asked for public comment to inform its investigation. Those comments are due April 1, 2025.

Commerce is specifically looking for comments pertaining to the criteria listed in 15 CFR § 705.4 because they affect national security. The notice lists the following categories as areas of high interest for its investigation into copper imports: (i) the current and projected demand for copper in United States defense, energy, and critical infrastructure sectors; (ii) the extent to which domestic production, smelting, refining, and recycling can meet demand; (iii) the role of foreign supply chains, particularly from major exporters, in meeting United States demand; (iv) the concentration of United States copper imports from a small number of suppliers and the associated risks; (v) the impact of foreign government subsidies, overcapacity, and predatory trade practices on United States industry competitiveness; (vi) the economic impact of artificially suppressed copper prices due to dumping and state- sponsored overproduction; (vii) the potential for export restrictions by foreign nations, including the ability of foreign nations to weaponize their control over refined copper supplies; (viii) the feasibility of increasing domestic copper mining, smelting, and refining capacity to reduce import reliance; and (ix) the impact of current trade policies on domestic copper production and whether additional measures, including tariffs or quotas, are necessary to protect national security.

In a separate Notice for the lumber and timber investigation, Commerce lists the same categories as it is seeking information on how imports from that industry impacts U.S. national security as well.

CBP Provides Guidance for Additional Duties on Canadian Energy and Energy Resources

On March 19, 2025, U.S. Customs and Border Protection (CBP) distributed a memo containing guidance on the additional duties imposed on energy or energy resources from Canada. The duties were first issued pursuant to a pair of executive orders issued on March 2 and March 4 respectively.

The guidance states that Canadian goods that do not qualify for USMCA treatment that are entered or withdrawn from warehouse for consumption on or after 12:01 a.m. eastern time on March 4, 2025, are subject to additional duties. Subject goods will use “9903.01.13” as their HTS Classification and will be subject to an additional ad valorem duty rate of 10%.

HTS 9903.01.13 defines “energy or energy resources of Canada” to include resources like Graphite, Steel, Barite, Zinc, Chromium, Nickel, and more but provides that the list is not exhaustive.

Bureau of Industry and Security 2025 Update Conference

This past week, the Bureau of Industry and Security (“BIS”) held its yearly update conference for 2025. Several policy updates were provided over the three-day conference. Most notably, in the opening plenary session, Secretary of Commerce Howard Lutnick stated that the Trump Administration intends to substantially increase fines for export violations. Secretary Lutnick also stated that the administration is focused on preventing shipments of advanced semiconductors to China. Specifics on when or how those fines will be increased were not provided.

During the export enforcement plenary on Wednesday, BIS stated that it is working through the licensing freeze and hopes that it will be resolved in the near future. In line with licensing, BIS also discussed a new automated tool that allows BIS to screen license applications, including the foreign parties involved in the transactions, against US government intelligence. Previously, BIS had to manually review foreign parties which slowed down the process. This automated process, called the Commerce Screening System, allows BIS to automatically screen the foreign parties to a license making the process more efficient. BIS expects this tool will result in more licenses being denied or returned without action.

Also, during the export enforcement plenary, the Office of Antiboycott Compliance (“OAC”) provided an update on the Requestor List, including the process for being removed from that list. Last year, OAC announced the Requestor List, which is a list of foreign parties who have made unlawful boycott requests in violation of US antiboycott laws. This year, OAC outlined the process for removal, which includes submitting an attestation to OAC stating that the boycott language has been removed from transaction documents and will not be re-incorporated into the documents in the future. This process has allowed OAC to remove numerous companies from the Requestor List.

CBP Addresses Issues with Section 232 Tariffs on Derivatives with Updated FAQs

On Friday, March 21, 2025 CBP added a new set of FAQs to their website addressing issues with the section 232 tariffs on steel and aluminum derivatives.

The new FAQ instructs importers on how to report melt-and-pour for steel derivatives if there is no melt-and-pour country, and how to report the smelt-and-cast for aluminum derivatives. This is particularly important for countries with no steel or aluminum within the product, yet the product is classified within the HTS code that is subject to the Section 232 tariffs. The FAQ also answers importer questions on how to report the derivative if the aluminum or steel is of unknown origin.

In instances where a derivative product contains no steel or aluminum, but ACE still requires the reporting of the melt-and-pour or the smelt-and-cast countries, CBP officials stated that reporting the country of origin of the non-steel finished good would suffice as the country of melt-and-pour going forward with respect to steel derivatives. For aluminum derivative products, CBP recommends reporting “YES” for the secondary country of smelt and then the country of origin for the finished non-aluminum article should be reported as both the secondary country of smelt as well as the country of cast.