Customs Law

When an imported product is potentially subject to antidumping or countervailing duties, there has long been a tension between the roles of U.S. Customs and Border Protection and the Commerce Department in making the final decision of whether CBP should collect duty deposits. On the one hand, CBP is right there at the port and is the agency responsible for revenue collection. On the other hand, Commerce has the technical expertise in the dumping laws and drafted the scope description for the investigation and the order (with input from interested parties). Sunpreme, an importer of solar modules, has been engaged in a long-running dispute over the whether its imports are within the scope of an order on U.S. imports of certain solar cells from the People’s Republic of China. I'm not going to focus on the scope question here. For customs lawyers, the more interesting question is which agency gets to make the scope decision and how that impacts the process of importation. In Sunp...

MacLean Power LLC v. United States sets right a very troubling scope decision from the Department of Commerce concerning helical spring lock washers ("HSLW") from China. The scope of that order is here . MacLean makes assembled pole line hardware used for building electrical transmission and distribution substations. Pole line hardware consists of various configurations of products. You can get a feel for the range of these products at the company's website . What is important to know is that MacLean imported complete assemblies. Some of these assembled items include HSLW from China. For some reason, MacLean felt it was wise to ask the Department of Commerce for a scope ruling to confirm that the HSLW integrated into these assemblies were outside the scope of the corresponding order. It is possible an inquiry from Customs and Border Protection prompted the ruling request. It is also possible that MacLean was just being cautious. Either way, the result was not good. ...

Antwerp is a lovely city in which to spend a few days talking about trade law, European privacy regulations, and eating everything in sight. There were also more than a few Belgian beers involved. I am now on a train from Antwerp to Amsterdam. On the way, I figured I would read OMG, Inc. v. United States . "Why?," you might reasonably ask. [Is that remotely the correct way to punctuate that sentence?] Well, it is what I do for you. Despite the caption, OMG is not about internet-age acronyms. Nor is it about products intended for teenage girls in poorly written CW dramas. [Note: I don't actually know that teenage girls on CW dramas ever say "OMG," but I feel like they might.] Rather, it is about the scope of the antidumping duty order on steel nails from Vietnam. The scope of that order states, in part: The merchandise covered by the Orders is certain steel nails having a nominal shaft length not exceeding 12 inches.  Certain steel nails include, but...

Understanding the scope of antidumping and countervailing duty orders is critically important for customs compliance professionals. It does a company no good whatsoever to find a low-cost producer of some product somewhere outside the U.S. only to later discover after importation that the merchandise is subject to an antidumping or countervailing duty. Given that antidumping and countervailing duties are often in excess of 30% and have been as high as 300%, this is a potentially serious concern. If Customs and Border Protection discovers the error and the error resulted from negligence, it can collect the unpaid duties plus penalties covering a five-year period. In some cases, that can be enough to bankrupt a small importer. Before we get into this case, let me dispel a common misunderstanding. CBP "flags" HTSUS classifications that are potentially subject to an ADD or CVD order. As a result, many brokers and importers manage AD and CVD compliance through tariff classificat...

Apparently there is some kind of festival of TV commercials starting in a few minutes. I understand it will be punctuated by grown men playing football for millions of dollars. Consequently, I will make this quick. Consistent with my New Years Resolution to cover scope and other trade-related issues that closely impact customs compliance, here is a note on  IKEA Supply AG v. United States . This is a request for a rehearing of a prior decision in which the Court of International Trade held that certain IKEA towel bars are within the scope of the antidumping and countervailing duty orders on aluminum extrusions from China. The bars are indisputably aluminum extrusions. In each box, there is mounting hardware that does not constitute aluminum extrusions, but which, according to Commerce, are fasteners. Finished goods are excluded from the scope of the orders. In a scope determination, Commerce held that because the finished towel bars are extrusions and that the only non-extr...

Here, we continue our dive into the intersection of customs and trade law. The Court of International Trade decision in United Steels and Fasteners, Inc. v. United States , raises interesting issues about how scope decisions from the Department of Commerce impact customs entries awaiting liquidation. If you are a traditional customs compliance professional who does not often delve into trade questions, buckle up. This will be bumpy. This case involves the antidumping duty order on Helical Spring Lock Washers from China . The scope of this particular order covers: circular washers of carbon steel, of carbon alloy steel, or of stainless steel, heat-treated or non-heat-treated, plated or non-plated, with ends that are off-line. HSLWs are designed to: 1) function as a spring to compensate for developed looseness between the component parts of a fastened assembly; 2) distribute the load over a larger area for screw or bolts; and 3) provide a hardened bearing surface. The scope does...