Month: January 2025

Trump Administration Telegraphs Sweeping Trade Policy Changes Affecting Shippers NVOs

By John H. Kester

The President signed 26 Executive Orders (“E.O.s”) on Monday relating, inter alia, to immigration, gang violence, and foreign aid. In addition, however, the Administration issued an America First Trade Policy memorandum, referencing numerous potential trade policy changes. Those potential changes would dramatically affect shippers and NVOs.

The stated goal is to “promote[] investment and productivity, enhance[] our National’s industrial and technological advantages, defend[] our economic and national security, and – above all – benefits American workers, manufacturers, farmers, ranchers, entrepreneurs, and businesses.” Pointing to, among other things, the U.S. trade deficit in goods, the memorandum posits a “global supplemental tariff or other policies,” and specifically forecasts the following actions and potential changes:

• Implementing an “External Revenue Service” to collect tariffs, duties, and other foreign trade-related revenue;
• Taking “appropriate actions” to remedy foreign countries “unfair trade practices” under various potential authorities;
• Reviewing the United States-Mexico-Canada Agreement (“USMCA”) to assess its impact on American workers, farmers, ranchers, services providers, and other businesses and “make recommendations regarding…[U.S.] participation in the Agreement”;
• Reviewing existing trade agreements and determining “any revisions that may be necessary or appropriate” with an eye to reciprocity among the U.S. and its partners;
• Exploring agreements with foreign countries to promote U.S. export market access;
• Reviewing anti-dumping and countervailing duty policies and regulations, including whether existing procedures “sufficiently induce compliance by foreign respondents and governments”;
• Assessing risks and loss of tariff revenue from counterfeit goods and drugs, which result, according to the memorandum, from allowing imports valued at $800 or less to enter the country without duty;
• Investigating extraterritorial taxes implemented by foreign countries against U.S. citizens or corporations;
• “Review[ing] the impact of all trade agreements” including the World Trade Organization Agreement on Government Procurement.

Actions directed at China specifically include:

• Reviewing the U.S.’s Economic and Trade Agreement with China, “to determine whether the PRC is acting in accordance” therewith, and “recommend appropriate actions to be taken…up to and including the imposition of tariffs and other measures as needed”;
• Investigating “acts, policies, and practices by the PRC [People’s Republic of China] that may be unreasonable or discriminatory and that may burden or restrict United States commerce.”

Actions directed specifically at national security include:

• Reviewing and assessing the effectiveness of exclusions, exemptions, and other import adjustment measures on steel and aluminum;
• Assessing “how to maintain, obtain, and enhance our National’s technological edge” including by “eliminat[ing] existing export controls – especially those that enable the transfer of strategic goods, software, services, and technology to countries to strategic rivals and their proxies”;
• Considering whether an existing rulemaking regarding controls on connected vehicles “should be expanded to account for additional connected products”;
• Reviewing whether “sufficient controls to address national security threats” are included in Provisions Pertaining to U.S. Investments in Certain National Security Technologies and Products in Countries of Concern, a rule requiring U.S. persons to notify the Department of Treasury regarding certain transactions involving sensitive technologies and countries of concern.

Based upon the above, sweeping changes could come fast, and GKG will actively monitor changes relevant to its clients, following up with additional client alerts. For now, shippers and NVOs would be prudent to:

1. Review the memorandum for potential changes affecting their businesses;
2. To the extent possible, prepare and implement systems designed to mitigate any damage the foregoing potential changes could cause to their businesses;
3. Actively monitor for new developments in this fast-developing environment.

We hope this is helpful, and please let us know if you have any questions.

 

FTC Appeals Nationwide Stay of Rule
Banning Non-Compete Clauses

Richard Bar, Rachel Amster

In October of 2024, the Federal Trade Commission (FTC) appealed a federal Texas District Court’s (Texas Court) order setting aside the FTC’s Non-Compete Clause Rule (Rule) which banned almost all new noncompete clauses. The Texas Court’s set aside applied nationwide and prevents the Rule from taking effect. On January 2, 2025, the FTC filed its appellate brief. It argued that: (1) contrary to the Texas Court’s determination, the FTC has authority to issue the Rule; (2) the Rule was based on the FTC’s thorough and reasonable determination that non-compete clauses are unfair methods of competition, which the Texas Court disregarded; and (3) the nationwide set aside was unwarranted and unnecessary.

The FTC also filed its brief in an appeal of a federal Florida District Court’s (Florida Court) order which preliminarily enjoined the Rule on different grounds. The Florida Court’s order was more limited than the Texas Court’s order. The Florida Court’s order only applied to the plaintiff in that case. Of note, the Florida Court’s order rejected some of the bases of the Texas Court’s set aside. The Florida Court agreed with the FTC that the FTC has authority to issue rules regarding unfair methods of competition, such as the Rule.

The opposing briefs to the Texas Court and Florida Court’s orders are due this month and February, respectively.

GKG continues to monitor these matters. Further updates will follow. Feel free to contact Rich Bar (rbar@gkglaw.com) or Rachel Amster (ramster@gkglaw.com) if you have any questions.