On May 29, U.S. Trade Representative Jamieson Greer announced the initiation of a new investigation into whether lackluster intellectual property protection and enforcement by Vietnam constitutes an unreasonable or discriminatory practice that burdens or restricts U.S. commerce. Interested parties may submit comments and documentation to inform USTR’s analysis by July 2, 2026.
The Bigger Picture: Interplay with Trade Agreements, Other Section 301 Investigations
Last October, the United States and Vietnam announced a framework for an agreement on reciprocal trade and issued a joint statement summarizing certain key terms. The agreement has not yet been finalized. Among other provisions, it provided that IEEPA reciprocal tariffs on originating goods of Vietnam would remain at twenty percent. Since then, however, the U.S. Supreme Court struck down the IEEPA Tariff regime.
The Trump administration moved quickly to leverage other statutory authority that contemplates the imposition of tariffs under certain circumstances: Sections 122 and 301 of the Trade Act of 1974. The Section 122 action was likewise held to be unlawful by a panel of the U.S. Court of International Trade, a decision now on appeal before the U.S. Court of Appeals for the Federal Circuit.
As for Section 301, USTR previously initiated two investigations. The first concerns U.S. trading partners’ practices with respect to their own importation of products made using forced labor. USTR recently announced its findings and proposed 12.5% tariffs on Vietnamese products. The second, initiated on March 11, 2026, concerns structural excess capacity and production in the manufacturing sectors of certain U.S. trading partners. The new intellectual property investigation announced in May marks this year’s third new Section 301 investigation targeting Vietnam.
As each Section 301 investigation is capable of producing tariffs on products of Vietnam, USTR may propose an aggregate level of additional tariffs in excess of the 20% “reciprocal” tariffs contemplated by the bilateral framework. On the other hand, the bilateral framework specifically contemplates “fully implementing Viet Nam’s obligations under certain international intellectual property treaties to which it is a Party” and engagement “to address intellectual property.” Unlike this year’s first two Section 301 investigations into Vietnam, the new Section 301 intellectual property investigation was prompted by USTR’s Special 301 Report on IP practices abroad. As discussed below, USTR describes therein a variety of concerns with Vietnam’s intellectual property protection environment, and may link those concerns with the standards set forth in the bilateral framework agreement.
Redeploying Intellectual Property Concerns as a Basis for Section 301 Activity
USTR’s announcement states that “While Vietnam has recently taken some steps toward addressing IP concerns that the United States has chronicled over many years in USTR’s Annual Special 301 Report, IP infringement in Vietnam continues to impair the competitive position of U.S. innovators and creators.” Thus, the new Section 301 investigation is aimed at inducing Vietnam to resolve these concerns on a sustained basis.
Those concerned with U.S. tariff treatment of Vietnamese goods should be aware of the precedent for durable Section 301 tariffs in response to foreign IP policies: USTR investigated China’s technology transfer and IP practices beginning in 2017, ultimately announcing tariffs that remain in effect today.
An Investigation Arising out of the Special 301 Report Mechanism
This investigation follows Ambassador Greer’s designation of Vietnam as a “Priority Foreign Country” in the 2026 Special 301 Report, published on April 30. The Special 301 Report is an annual review of the global state of IP protection and enforcement. Vietnam’s designation, the first in over a decade, was based on findings that it has taken insufficient action against online piracy, counterfeiting and unlicensed software use. The 2026 Special 301 Report also finds that Vietnam’s weak IP protection and enforcement harm the industries reliant on IP protection both in the Vietnamese market and in other markets. The “Priority Foreign Country” designation triggers a 30-day window in which USTR was obliged to decide whether to initiate a Section 301 investigation on the grounds identified in the Special 301 report.
USTR states that prior to taking these steps it had attempted to work with Vietnam to resolve IP concerns beginning in 2020, with a proposed IP Work Plan targeting concerns identified in that year’s Special 301 Report. Reportedly, Vietnam’s engagement was minimal. USTR revised its IP Work Plan proposal in 2023; however, Vietnam again reportedly failed to make meaningful progress through subsequent bilateral engagement, including recent negotiations for an Agreement on Reciprocal, Fair, and Balanced Trade.
USTR’s Federal Register notice identified the following deficiencies supporting the designation of Vietnam as a “Priority Foreign Country:”
- Failure to provide persistent and effective enforcement to combat online piracy;
- Insufficient enforcement against widespread counterfeiting;
- Ineffective border enforcement, including failure to utilize ex officio authority for IP seizures and lack of ex officio authority over in-transit goods;
- Failure to address unlicensed software use; and
- Lack of criminal enforcement against cable and satellite signal theft.
The Special 301 Report includes a designation tier below the “Priority Foreign Country” list, known as the “Priority Watch List.” The “Priority Watch List” presently includes Chile, the People’s Republic of China, India, Indonesia, Russia, and Venezuela, signaling unresolved concerns about IP procedures but without triggering enforcement action.
The Special 301 Report’s lowest tier of designation is the “Watch List,” which saw several additions in this year’s edition. The European Union was added, with USTR citing concerns that proposed pharmaceutical legislation could weaken data protections used to obtain drug approvals. Argentina and Mexico were moved from the “Priority Watch List” to “Watch List,” citing steps taken by both countries to address IP concerns.
Next Steps: Opportunities for Engagement and Investigatory Process
In announcing this investigation, USTR requested written comments from interested parties. Commenters are requested to address any of the following topics:
- The acts, policies, and practices described in the Special 301 Report;
- Information on other acts, policies, and practices of Vietnam related to the denial of adequate and effective protection of IP rights and the denial of fair and equitable market access to persons that rely on IP protection;
- Whether the acts, policies, and practices of Vietnam are unreasonable or discriminatory;
- Whether the acts, policies, and practices of Vietnam burden or restrict U.S. commerce, and if so, the nature and level of burden or restriction on U.S. commerce; and
- Whether the acts, policies, and practices of Vietnam are actionable under section 301(b) of the Trade Act, and what action, if any, should be taken, including tariff and non-tariff actions.
Written comments may be submitted through Regulations.gov (Docket Number USTR-2026-0364) through July 2, 2026.
USTR has not announced any plans for an additional public hearing.
Upon completion of the Section 301 investigation, Ambassador Greer, in consultation with President Trump, will determine what, if any, responsive action should be taken to address Vietnam’s acts, policies, and practices related to IP protection and enforcement.
Conclusion
The attorneys, licensed customs brokers, compliance professionals, economists, and trade specialists of Cassidy Levy Kent regularly assist companies in evaluating their supply chains to ensure compliant market access and adjust for tariff-related developments, including Section 301 tariffs, both mitigating burdens and taking advantage of opportunities. Businesses should be aware of the possible outcomes when planning or reviewing their supply chains.