The Trump Trade Tariffs: A Roadmap for Private Equity Executives Navigating Uncertainty and Volatility for Your Portfolio Companies

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1 The Trump Trade Tariffs: A Roadmap for Private Equity Executives Navigating Uncertainty and Volatility for Your Portfolio Companies Private Equity Briefing August 2018

2 How do I make sense of, and how can I influence the impact of, tariffs on our portfolio companies imports and exports? The market s having a hard time digesting the whole change in globalization and trade The foundations of international trade are being raised and being questioned. Larry Fink, CEO of BlackRock Inc. 1 Evaluating the impact of proposed tariffs is a tedious process because you not only have to analyze the revenue products but you also have to analyze the purchases that you re making through other companies that are not related to revenue. Tim Cook, CEO of Apple 2 The financial condition of each of your portfolio companies is likely impacted. Despite daily changes and volatility, there are ways to prepare for and influence events. 1. Annie Massa & Erik Schatzker, BlackRock CEO Says Tariff War Could Spur Broad Market Rout, BLOOMBERG (Jul. 16, 2018). 2. Kif Leswing, Apple CEO Tim Cook Hits Out at Trump s Tariffs: They Show up as a Tax on the Consumer, BUSINESS INSIDER (Jul. 31, 2018). Gibson Dunn 2

3 Who Are the Key Washington Players on Tariffs? The Executive Branch Department of Commerce Gil Kaplan, Undersecretary for International Trade Nazak Nikakhtar, Assistant Secretary for Industry and Analysis Brad Botwin, Director of the Office of Technology Evaluation Office of the U.S. Trade Representative Robert Lighthizer, U.S. Trade Representative Arthur Tsao, Assistant General Counsel Justin Hoffman, Director of Industrial Goods U.S. Court of International Trade, to challenge tariff actions on constitutional grounds. So far, challenges have been unsuccessful. Your Portfolio Companies Trade Associations Gibson Dunn 3

4 What is the Legal Framework? Imposed Tariffs Tariffs under Consideration Section 232 Tariffs 25% on steel imports 10% on aluminum imports Automobiles (possibly 20%) Uranium (undetermined level) Section 301 Tariffs 25% on $34 billion in U.S. imports from China 25% on $16 billion in U.S. imports from China 10-25% on an additional $200 billion in U.S. imports from China Administering Agency* Legal Basis Dept. of Commerce Bureau of Industry & Security Response to identified national security concerns pursuant to Section 232 of Trade Expansion Act. Office of the U.S. Trade Representative Response to unfair Chinese trade practices pursuant to Section 301 of Trade Act. *Once imposed, tariffs are calculated and collected by U.S. Customs and Border Protection (CBP). Gibson Dunn 4

5 How Do My Portfolio Companies Approach the Situation? Four Steps: 1. Identify whether portfolio companies have significant exposure to targeted imports or exports. 2. Review key factors to determine if changes or corrections can reduce exposure. 3. Participate in public comment periods and exclusion proceedings to reduce tariff exposure. 4. Monitor application of new tariffs and available relief, if tariffs imposed. Gibson Dunn 5

6 What Exposure Do My Portfolio Companies Have to Targeted Imports and Exports? All industries are potentially affected by recent tariffs (e.g., steel, aluminum, auto and auto parts, clothing, agriculture, consumer products, IT equipment, industrial machines). Imports: Lists of targeted items are available on the administering agencies websites, and related documents can be found on Regulations.gov. Determining specifically which products are affected requires detailed knowledge and nuanced analysis of items, import classifications, and the terms of applicable tariffs. Customs brokers, freight forwarders, and in-house compliance or logistics personnel may be best positioned to efficiently identify exposure. Exports: Identify products exported to countries imposing retaliatory tariffs. Timely and accurate information can be more difficult to obtain. Ability to exert influence is limited, but companies can plan for and respond to tariffs. Gibson Dunn 6

7 If initial assessment indicates tariff exposure, careful assessment of certain key factors may reveal a path to reduce or avoid tariff application. Key factors include customs classification, valuation of imports, and country of origin. Ensure these factors have been correctly assessed. What Key Factors Can I Review with My Portfolio Executives To Reduce Our Tariff Exposure? Incorrect data on any of these could result in unnecessary tariffs. Correcting such errors could reduce tariff exposure. Be careful making changes. Legal counsel can help identify appropriate interpretations of these factors and prepare for potential challenges from U.S. and international regulators. Gibson Dunn 7

8 For proposed tariffs, your portfolio companies can participate in public comment period. Valuable opportunities to argue both broadly against imposition of tariffs and specifically against inclusion of certain items. Comments have shaped implementation of tariffs by, for example, advocating for exclusion procedures. Comments and responses are available to the public. How Can My Portfolio Companies Participate in Public Comment and Exclusion Processes? For imposed tariffs, your portfolio companies can request agencies exclude specific products. Must show domestic industry cannot provide sufficient quantity/quality of product (Section 232) or that product is only available from China (Section 301). Requests are public, and public (or competitors) may challenge exclusion requests. Results of first exclusion requests (for Section 232 steel tariffs): Twice as many granted as denied, but requests for large importers still outstanding. To date, traditional lobbying has been of little effect, but regulatory counsel can help companies monitor and anticipate important changes and trends. Gibson Dunn 8

9 How and Why Should I Monitor Application of Tariffs and Available Relief? Your portfolio companies should monitor exclusions granted to other businesses, as exclusions also may apply to all imports of a qualifying product (including theirs). For all imports, monitor the calculation and application of duties under the new tariffs (to confirm no errors), and protest all entries that are assessed under the new tariffs (to preserve right to seek refunds if/when applicable). If exclusions are granted, ensure your portfolio companies imports are correctly excluded from future application of tariff and that CBP grants the protest of prior entries and issues a refund for duties paid before exclusion was granted. Gibson Dunn 9

10 What are the Important Dates for Public Comments/Exclusion Requests? Investigation / Tariffs Section 232 Steel and Aluminum Tariffs Section 232 Automobile Tariffs Section 301 China Import Tariffs $50 Billion Section 301 China Import Tariffs $200 Billion Administering Agency Dept. of Commerce Dept. of Commerce U.S. Trade Representative U.S. Trade Representative Written Comments Due Public Hearing Date Due Date for Exclusion Requests Date passed Date passed No deadline (submitted to Dept. of Commerce) Date Tariffs Take Effect / Findings Made by Government March 23, 2018 Date passed Date passed TBD Dept. of Commerce report due by Feb May be released early in the coming weeks. Date passed Date passed Oct. 9, 2018 (for initial $34B) Sept. 6, 2018 Aug , 2018 July 6, 2018 (for initial $34B) Aug. 23, 2018 (for remaining $14B) TBD (for remaining $16B) TBD Mid to Late Oct Gibson Dunn 10

11 What About Retaliatory Tariffs on Exports? Canada, China, Mexico, and the EU have imposed or announced plans to impose retaliatory tariffs, including EU proposal for $7 billion of tariffs on U.S. exports to the EU. Ability of US companies to influence these decisions is quite limited. Canada, Mexico, and the EU have initiated proceedings to challenge the tariffs at the World Trade Organization ( WTO ). China imposed retaliatory tariffs targeting $50 billion-worth of U.S. exports to China, including soybeans, tobacco products, whiskey, beef, and vehicles. China has proposed imposing additional retaliatory tariffs, ranging from 5%-25%, on $60 billion-worth of U.S. exports to China, if additional U.S. tariffs are imposed. Your portfolio companies should be monitoring this volatile situation to gauge potential impact on future costs, profitability, and demand. Gibson Dunn 11

12 How Can We Help Your Portfolio Companies? Provide guidance regarding impending tariffs and timelines for implementation. Assist in determining scope and applicability of current and pending tariffs. Interpret and apply country of origin rules and import classifications. Development of responsive strategy. Prepare and submit public comments and exclusion requests. Prepare protests of entries with assessed duties. Anticipate tariff changes that may have a future impact. Gibson Dunn 12