, , , , , , , , , , , , ,

In recent days, the Trump administration has reached a trade deal with Mexico that either may or may not fundamentally rework the North American Free Trade Agreement (NAFTA). I say “may or may not” because above and beyond the question of whether the third NAFTA signatory, Canada, will actually go along, and whether Congress will agree to consider a bilateral as opposed to a trilateral deal, some of the most important provisions of the bilateral U.S.-Mexico pact remain unknown to the public.

In particular, it’s completely unclear what the United States and Mexico have agreed to regarding the rules of origin for automotive products traded within the NAFTA zone. In fact, it’s completely unclear whether what they reportedly have agreed to is an agreement at all.

To remind: The rules of origin specify how much of a product (in this case, most motor vehicles as well as all automotive parts) needs to be made inside North America in order to qualify for tariff-free treatment when its sold in any of the signatory countries. The idea – totally reasonable, in my opinion – is to make sure that as many of the benefits of a trade deal as possible flow to the signatories (which of course, legally need to incur all of the obligations) and don’t leak out to non-signatories (which of course legally need to incur none of the obligations).

Automotive trade is crucial in this respect because vehicles and parts combined last year made up nearly a third of all U.S. merchandise imports from Mexico, and (revealingly) 9.65 percent of the considerably smaller amount of U.S. goods exports to Mexico.

As I’ve repeatedly observed, the original NAFTA failed to achieve this objective. And the main problem was not the level of North American content required for duty-free treatment (62.5 percent). The main problem was that the penalty for ignoring the rules was so negligible (a 2.5 percent tariff). And it appears that even though the content requirement has been increased (to 75 percent), the meager penalty remains. Reportedly, it’s also the only obstacle to automakers ignoring the new requirement that 40 to 45 percent of a vehicle be made by workers earning at least $16 per hour.

So it’s entirely reasonable to finish most news accounts and conclude that the new U.S.-Mexico treaty will do little to achieve its stated goal of inducing automakers based outside North America to move production and jobs inside North America.

Complicating matters, though, are some wrinkles in the U.S.-Mexico deal that have been reported in the days since the agreement was first announced. Principally, according to some news accounts, much higher 25 percent tariffs will be imposed on vehicles assembled in Mexico and sent to the U.S. market once the number of those vehicles exceeds 2.4 million. Therefore, the actual automotive rules of origin may well have been genuinely toughened.

Nevertheless, for several reasons, this conclusion, too, needs to be qualified. For Mexico exported only 1.8 million passenger cars and sport-utility vehicles to the United States last year. So its sales would need to rise considerably before that genuine toughening kicks in. Second – and again, reportedly – this provision of the agreement is contained in a side letter. The apparent failure to include it in the core text of the agreement raises questions about its enforceability – especially since the same reports indicate that under it, Mexico retains the right to challenge those higher tariffs at the World Trade Organization (WTO). Moreover, I’ve seen absolutely nothing about any quotas for imports of auto parts as such from Mexico – which are currently running at an annual rate topping $16 billion.

That could actually be good news for the United States – because the auto tariffs (again, reportedly) would be based on the U.S. trade law that authorizes Washington to impose levies based on national security considerations. Such trade curbs are legal under WTO rules because the creators of even this sovereignty-impinging arrangement recognized that no major powers would ever surrender their right to assess and act on their national security interests. It’s plausible, therefore, to believe that today’s WTO majority would shy away from challenging this kind of decision by Washington, however damaging it might be to their exports, for fear of provoking a U.S. walkout and thus the organization’s demise.

But there’s no guarantee of this outcome – especially if or when a more WTO-friendly administration replaces Mr. Trump’s in Washington.

It’s true that an eventual Trump decision to impose lofty national security-justified auto tariffs on non-North American auto-makers would render many of these questions moot – because even if Mexico was exempted, and those companies therefore could keep supplying the American market through that channel, they’d quickly run up against the quota (assuming of course that one exists).

Yet this auto tariff decision seems to lie pretty far down the road. In the meantime, the NAFTA decision continues to look pretty confusing. I’m just hoping that this post will make your confusion a little more informed.