Tricks of the Trade

Is the Border Tax Crossing the Line?

By Susan Kohn Ross and Jeffrey D. Davine

It is far too early to discern the extent of any change to the relationship between the U.S. and Mexico in the face of the oft-repeated insistence of the Trump campaign to “renegotiate” NAFTA, a promise that was reiterated once Mr. Trump was sworn into office. Following a prickly meeting last month between President Trump and Mexican President Enrique Peña Nieto, accounts from Mexico report the government as having started consultations with its business community, a process described as taking 90 days. The results of those consultations and how they might impact any further discussions with the U.S. remain to be seen. Similarly, President Trump and Canadian Prime Minister Justin Trudeau also met last month, but under somewhat more cordial circumstances. Again, next steps with Canada remain an open question. However, the overarching theme is the oft-repeated promise from the Trump Administration that a border tax will be imposed.  While nothing concrete has been proposed to date, how such a border tax might work has understandably caused varying levels of concern among American companies. Given there is nothing concrete to examine, in this Alert, we seek to provide a brief explanation of the concepts being bandied about. (more…)

Appraising Produce

By Susan Kohn Ross

In July 2016, the Houston Regulatory Audit office sent a letter to a number of large importers cautioning them to be sure their value declarations were correct, underscoring CBP’s position by pointing recipients to a long list of CBP informed compliance publications, and touting the advantages of correcting any errors by way of a prior disclosure.

Now we see Round 2. In early October 2016, the Agriculture and Prepared Products Center for Excellence and Expertise (“Center”) sent a letter to many fruit and vegetable importers asking more value questions. Specifically, the Center wanted to know:

  1. Was the importer purchasing his goods or receiving them on consignment?
  2. Are the parties related?
  3. From which suppliers is the importer purchasing?
  4. From which suppliers are the goods received on consignment?
  5. If on consignment, how are the goods being valued at time of entry?
  6. Is reconciliation filed?  If not, what actions does the company take to determine if the actual cost of goods is more or less than the value declared at time of entry?

It is this last question that ties right into the revenue collection role of Customs and Border Protection (CBP). Is CBP collecting the right amount at time of entry? If the value is too low at time of entry, it must be corrected. Similarly, if it is too high, it should also be corrected. (more…)

It’s All About Compliance

Part 2 – Import Classification 

By Susan Kohn Ross

This Alert is one in an occasional series of articles providing tips about various topics which come up routinely with import and export transactions. These articles/tips are published with the intention to provide suggestions to aid international traders in their on-going efforts to get their declarations right the first time, and are based on situations we commonly see arising. Whether it is reasonable care on the import side or not self-blinding on the export side, compliance is a key for many different reasons, including protecting your bottom line.

Part 1 of this series addressed how to value goods correctly, and can be read here. This edition provides import classification tips.

Under U.S. law, imported goods are classified for duty assessment and statistical reporting using the Harmonized Commodity Description and Coding System. This compilation of 97 Chapters and approximately 5,000 product descriptions, known in the U.S. as the Harmonized Tariff Schedule of the United States (HTSUS), provides a single modern structure for product classification and is used by more than 200 countries as a basis for their customs tariff and collection of international trade statistics. The first six digits and their corresponding product descriptions are enacted by the countries World Trade Organization member countries. The remaining digits in any tariff number (which total 10 in the U.S.) and their corresponding duty rates are set individually by each country. The HTSUS in the U.S. has 99 chapters, with the two unique ones intended to cover product specific provisions, such as American goods returned, products assembled abroad, special rules imposed on given products (for example, temporary quotas), and so on.

Tariff classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs) which are analyzed in order until one applies. In so doing, don’t forget to also check the additional U.S. rules of interpretation. (more…)

Make Your Hanjin Bankruptcy Claims Now!

By Susan Kohn Ross

There is a lot of press coverage about the Hanjin bankruptcy, but very little of it provides tangible facts for traders to rely on.  One thing we know for sure is Hanjin filed a Chapter 15 bankruptcy in the U.S. What that means is the U.S. bankruptcy court will defer to the Korean bankruptcy court regarding how the case will proceed. The U.S. court will limit its orders to cargo in the U.S. or touching the U.S. Most importantly right now, if you think you have a claim against Hanjin, you need to file that claim in the Korean bankruptcy proceeding, and you must do that between October 11 and 25, 2016. If you miss that claim deadline, you will be out of luck.  There are a handful of Korean lawyers representing the interests of cargo owners and other potential claimants in Korea and they should be contacted immediately. Referrals are available.

Beside this one fact, there are a lot of pending questions. The Federal Maritime Commission is accepting consumer claims, but can only facilitate a discussion, as it has little jurisdiction in this context. It does have the bully pulpit, but seems reluctant to use it. (more…)

It’s All About Compliance

By Susan Kohn Ross

Part 1 – Value

This Alert is one in an occasional series of articles providing tips about various topics which arise routinely with import and export transactions. These tips are published with the intention to aid international traders in their ongoing efforts to get their declarations right the first time, and are based on situations we commonly see occurring. Whether it is reasonable care on the import side or not self-blinding on the export side, compliance is a key for many different reasons, including protecting your bottom line.

Given the ever increasing attention being paid by the U.S. government to compliance by companies of all sizes, and especially in light of the recent informed compliance letter sent out by CBP’s Regulatory Audit in Houston, TX, now is the time to review how to value goods correctly.

The same basic value code is used throughout the world, at least among all the World Customs Organization member countries, although most assess duty on the C.I.F. value of the imported goods, whereas the U.S. assesses duty on the F.O.B. cost of goods. While admittedly each country has its own interpretation and they vary a tad, the basics are: (more…)

Hanjin Shipping Sinks in Korea

By Susan Kohn Ross

With the bankruptcy filing of Hanjin Shipping having just occurred on the 31st, many of their shipping customers are only now beginning to feel the disruption to their supply chains and are trying to sort out how to get their goods moving. It would be reasonable to expect similar bankruptcy filings in some major countries such as the U.S. and at least one in Europe, but until that happens, here are some tips for getting your goods moving. (more…)

ACE Allows for Stricter Customs Enforcement

By Susan Kohn Ross

First published by Journal of Commerce, August 2016

In the face of its recent reorganization and enhanced computer system, it was really only a matter of time before the trade community started to see Customs and Border Protection (“CBP”) better organize its enforcement efforts, and now the first tangible step has been publicly disclosed.

When the concept for the Centers for Excellence and Expertise was rolled out, it was logical to expect that CBP would combine the enhanced computer capabilities of the Automated Commercial Environment with information developed from the industry focused CEEs. That meant, we would eventually see CBP relying on computer analytics and internal expertise to help the agency pinpoint where to focus its enforcement efforts. Over the years, we had seen those with the most experience retire. CBP and Immigration and Customs Enforcement seemed to lose their ability to make serious fraud cases. Yes, criminal cases for trade fraud, involving for example for antidumping and export license violations, continued to be brought, but it has been a long time since we have heard about a really significant civil penalty. Sure, some smaller fish got caught, and many of them did some really dumb things. Others who got caught just plain cheated. Now, however, CBP has launched a round of “informed compliance” letters, which are really warning letters to the trade community. (more…)

TFTEA – Export Fee Refunds, Show Me The Money?

By Susan Kohn Ross

In an earlier alert, we discussed the various export incentives put into place with the passage of the Trade Facilitation and Trade Enforcement Act (“TFTEA”). One long-standing benefit available to exporters is duty drawback, which enhances a company’s ability to compete in the global market.  Drawback lowers the cost of U.S. exports by allowing for refunds of duties, taxes and fees paid on imported merchandise which is subsequently exported in its same form, as part of a U.S. manufactured product or similar domestic merchandise which is substituted for the imported merchandise.  More details will become evident as the regulations are developed within two (2) years following enactment.  Here we discuss the key provisions in the TFTEA which impact drawback. (more…)

Privacy Shield Takes More Hits

By Susan Kohn Ross

Just in the last week, both the European Parliament and the European Data Protection Supervisor (“EDPS”) published findings holding the currently proposed EU-US Privacy Shield to be seriously deficient, and calling for further negotiations to deal with those “holes”.

On May 26, 2016, the European Parliament passed a resolution, see EU Parliament Resolution, basically saying nice try, no cigar!  While acknowledging that great strides were made, the Parliament felt that too many gaps remained. Not surprising were the on-going concerns about the broad gathering of private data (i.e., bulk collection) by the U.S. government and what is viewed as the less than clearly defined circumstances in which that data may be used for recognized national security and law enforcement reasons, and what else? (more…)

SOLAS: Saves Lives? Causes Ulcers?

By Susan Kohn Ross

On July 1, 2016, the Safety of Life at Sea (“SOLAS”) requirement for shippers to provide steamship lines with the verified gross mass (“VGM”) of each shipment takes effect internationally.

While under development at the International Maritime Organization for years, these requirements caught many in the U.S. by surprise last summer when the deadline was emphasized. Perhaps equally surprising was the response of the U.S. Coast Guard, the agency with enforcement jurisdiction. Coast Guard management has been publicly quoted as saying the SOLAS VGM requirements are not mandatory under U.S. law! Rather, they are simply one business means to achieve compliance.  U.S. terminals have been weighing export containers for OSHA compliance reasons for years, but the same is not true in other countries.  (more…)