Matthew Pereira

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On March 10, 2021, the United States Trade Representative (USTR) published an extension of the COVID-19 related medical-care and response product exclusions from Section 301 duties covering imports from China. The agency determined it would be inappropriate to allow the exclusions to lapse in consideration of the ongoing efforts to combat the COVID-19 pandemic. The…

On March 1, 2021, the U.S. Court of International Trade (CIT) issued a decision with important ramifications for any company that uses “first sale” to reduce customs duty liability for goods imported into the United States.  The CIT’s ruling in Meyer Corp., U.S. v. United States calls into question the continued viability of first sale for suppliers located in non-market economies. This development has meaningfully altered the risk profile associated with using first sale for transactions in China and Vietnam.  All companies relying on first sale should review their first sale programs to evaluate the impact of this ruling and take adequate precautions.

The First Sale Rule

The first sale rule permits importers to declare a lower customs value—and by extension, to lower the customs duty liability—for certain types of qualifying importations. To be eligible, an importation must involve a multi-tiered transaction (i.e., there must be three or more parties involved in the sequence of sales leading to the importer). Under U.S. law, the earliest sale in such a sequence of transactions may be declared as the customs value provided that the goods are clearly destined for the United States at the time of such sale and the first sale value otherwise satisfies the requirements applicable to any transaction value (i.e., it must be a bona fide sale that has been conducted at arm’s length).

First sale is thus commonly described as having “three elements”: the first sale in a multi-tiered transaction may be used as a customs value provided (1) it is a bona fide sale, (2) the goods are clearly destined for the United States at the time of the transaction, and (3) the value is an arm’s length price.

Meyer v. United States

The CIT’s decision in Meyer hinges on additional language from the seminal 30-year-old case that established first sale as a viable basis for customs valuation—language that has frequently been quoted, but seldom, if ever, scrutinized for meaning.  The CIT interpreted that language to impose an overlooked requirement, namely that any legitimate first sale must be (4) absent any distortive non-market influences. While the first three requirements for the use of first sale are frequently assessed and litigated, the fourth requirement, the CIT notes, “has generally been neglected.”…
Continue Reading U.S. Importers Should Reevaluate “First Sale” Customs Programs

Comments Due by July 10, 2020

Today, the Department of Commerce’s Bureau of Industry and Security (“BIS”) published a Federal Register Notice seeking comments from interested parties to assist in its decisions on exclusions from the Section 232 tariffs and quotas imposed on imports of steel and aluminum articles.

Since issuing its interim final rule establishing the Section 232 exclusion request process, BIS has received over 179,000 exclusion requests (157,900 for steel and 21,100 for aluminum), with over 78,500 being granted and 25,400 being denied.

BIS is seeking public comment regarding “the appropriateness of the factors considered, and the efficiency and transparency of the process employed, in rendering decisions on requests for exclusions from the tariffs and quotas imposed on imports of steel and aluminum articles.”  The notice lists various topics for comments including but not limited to expanding or restricting eligibility requirements for requestors and objectors; the Section 232 Exclusions Portal; the factors considered in rendering decisions on exclusion requests; and the incorporation of steel and aluminum derivative products into the product exclusion process.
Continue Reading Commerce Department Seeks Comments on Section 232 Exclusion Process for Steel and Aluminum

Last week, the Department of Commerce (the “Department”) initiated two new Section 232 proceedings on mobile cranes and electrical transformer components. Section 232, a previously seldom used section of the Trade Expansion Act of 1962, is used to investigate the impact of certain imports on national security and provide relief if those imports threaten to impair U.S. national security. During the Trump Administration, Section 232 has been used to investigate imports of steel, aluminum, automobiles (and parts), titanium sponge, and uranium. Under Section 232, President Trump has imposed tariffs on steel and aluminum.

The investigation on electrical transformer components will cover laminations for stacked cores for incorporation into transformers, stacked and wound cores for incorporation into transformers, electrical transformers, and transformer regulators. Transformers are an essential part of the U.S. energy infrastructure. The Department’s press release notes that “[a]n assured domestic supply of these products enables the United States to respond to large power disruptions affecting civilian populations, critical infrastructure, and U.S. defense industrial production capabilities.” Several members of Congress had previously urged the Administration to initiate proceedings.

The investigation on mobile cranes follows a petition filed by domestic producer The Manitowoc Company, Inc. (“Manitowoc”), according to the Department’s press release. That petition, filed in December, alleges that “increased …
Continue Reading Commerce Launches 232 Investigations on Transformer Components and Mobile Cranes

On January 15, 2019, President Trump and Chinese Vice Premier Liu He signed the long-awaited “phase one” trade deal at the White House. The deal represents the first step towards a comprehensive agreement between the two nations and progress in the U.S.-China relationship. The deal will help ease trade tensions signaling a truce in the…

Last week, the United States and China reached an agreement on the long-awaited “phase one” trade deal.  The deal, originally announced in October, will include tariff reductions by the United States and a $200 billion increase of U.S. good purchases by China. According to U.S. Trade Representative Robert Lighthizer, the 86-page agreement is currently…

Last week, Congress sent to the President’s desk a bill supporting pro-democracy activists in Hong Kong.  The Hong Kong Human Rights and Democracy Act of 2019, sponsored by Sen. Marco Rubio (R-FL), passed the Senate by unanimous consent and the House by a vote of 417-1 (last month, the House passed a similar measure authored…

The holiday season is nearly upon us, yet things in the trade world are not so jolly.  The United Kingdom (UK) eked out a slight gain in the third quarter to avoid a recession.  In the fourth quarter, the usual High Street hustle and bustle is expected to be dampened somewhat as Brexit uncertainty continues…