It’s How Much in Duty?

Many importers believe mistakenly that the price of their goods is simple to determine: cost of goods (manufacture plus materials), general expenses, profit, duty and fees. What happens when the duty bill turns out to be higher than anticipated and the goods are already sold? This can happen in three common ways:

(1) the importer did not know that there was anti-dumping duty on the products imported;
(2) the importer brought the goods in conditionally duty-free under a duty preference program, but then the duty-free treatment was denied by Customs and
(3) the importer misclassified the products.

How do we avoid these problems? Due diligence and internal controls.

First is the situation where an importer ships goods that are subject to an anti-dumping duty order (ADD) and the importer did not realize it at the time of entry. How can this happen? Here is an example. There is an ADD order on petroleum wax candles from China. An importer contracts with a Chinese manufacturer for soy wax candles, assuming that soy wax candles are outside the scope of the ADD order. Post entry of the soy wax candles, Customs sends a CBP Form 28 Request for Information, asking for a sample and description of the candle. Customs tests the sample and determines that the candles are 99% soy wax and 1% petroleum wax. Because the candles contain petroleum wax, and are Chinese-origin, they are subject to ADD.

You may ask how this happened. The importer relied on the manufacturer’s oral guarantee that the candles were 100% soy wax. However, the importer never tested the candles prior to importation—he simply accepted the manufacturer’s statement. The importer should have tested the candles prior to importation to ensure that they were 100% soy wax. If the importer knew that they were not 100% soy wax, he could have (1) priced the candles to account for the ADD, (2) sourced the candles from a different country or (3) prepared and submitted a scope ruling request to the Department of Commerce to try to obtain a ruling stating that candles that contain only 1% petroleum wax, which is considered de minimis, should not be within the scope of the order.

Next is the situation where an importer brings the goods in duty-free under a duty preference program, but then the duty-free treatment is denied by Customs. Let’s say the importer is a jewelry company that sources jewelry in India. Some jewelry imported from India is conditionally duty-free under the Generalized System of Preferences (GSP).

Customs issues a CPB Form 28 Request for Information, asking for an explanation of the manufacturing process in India, including information about where the gold is sourced and the processing steps taken in India. The jewelry company cannot obtain this information from the Indian manufacturer. Customs denies the GSP claim. Jewelry that was duty-free under GSP is no longer entitled to the duty preference and thus, the importer must pay duty on the imported jewelry. The importer could have avoided this situation had the company obtained the proper records from the manufacturer at the time it purchased the jewelry. Recordkeeping is an important part of good internal controls.

Last is probably the most common situation—the importer misclassified the goods. A supplier of rolls of polyurethane misclassified the goods, thinking the goods were duty-free only to find out after the goods were imported and sold that they were classified under a different provision that had 6.5% duty. The potential liability is large: (1) the importer owes duty plus interest on the previous entries; (2) the importer may be subject to penalties and (3) the goods have been sold and thus, the importer cannot recoup any of the increased duty costs.

This can occur when an importer does not conduct annual internal reviews of the company’s import operations and does not conduct regular post entry reviews. Both annual review and post entry reviews are considered best practices by Customs and are a necessary part of the exercise of reasonable care.

Don’t be surprised and find yourself asking, “It’s how much in duty?”

CBP Proposes Changes to Recordkeeping for Customs Brokers

In the Federal Register on March 23, 2010, CBP announced a potential change in some of the recordkeeping requirements for customs brokers.

Electronic data storage systems have become more reliable and sophisticated so that some of the traditional maintenance of paper files is no longer necessary. The Notice of Public Rulemaking “NPR” proposes the following changes to some of the duplicate recordkeeping situations brokers often use as a result of the technology and CBP requirements.

111.23 Location
Licensed customs brokers will be allowed to store records relating to its customs transactions at any location within the customs territory of the United States, so long as the designated recordkeeping contact identified in the broker's permit application makes all records available to CBP within a reasonable period of time from request at the broker district that covers the CBP port to which the records relate.

163.5 Method of Storage

Brokers who are not serving as the importer of record will be allowed to retain all records electronically for 5 years. However, this provision does not apply to brokers who do not maintain electronic records (that is, all brokers who only transmit paper documents to CBP). Also, this exemption does not apply to any document that is required by law to be maintained as a paper record, such as some softwood lumber documents. Previously, entry records were required to be maintained in their original formats for 120 calendar days from the end of the release or conditional release period.

Note: This exception only applies to brokers. Importers must still retain entry records in their original format for the 120-day period after the release or conditional release of imported goods.

Comments should be submitted by May 24, 2010 using one of the following options.

1. Federal eRulemaking Portal
http://www.regulations.gov
Docket Number:USCBP-2009-0019

2. MailTrade and Commercial Regulations Branch Regulations and Rulings

Office of International Trade

U.S. Customs and Border Protection

799 9th Street, NW. (Mint Annex)

Washington, DC 20229