Antidumping and Countervailing Duty Enforcement – a Customs Priority Te Department of Commerce and the U. S. International Trade Commission are the agencies which provide the administrative apparatus for the antidumping and countervailing duty laws – determining if goods are sold at less than fair value or less than the cost of production, or subsidized; the scope of product coverage; whether there is circumvention; and whether there is injury to a U. S. industry. Enforcement of antidumping and countervailing duty Orders, including collection of applicable duties, is the responsibility of U. S. Customs and Border Protection – a responsibility that is taken very seriously.
Customs has identified five Priority Trade Issues, and Antidumping and Countervailing Duties is first on the list. Customs has a Division for AD and CVD Policy and programs. (One of the Branch Chiefs, Alex Amdur, has been a regular participant in AIIS Customs Committee Annual Meetings, and plans to participate again this year.) The Division publishes a regular AD/CVD Update as well as providing additional information on the CBP website.
Steel products have long been the product area with the most Orders issued. Out of approximately 320 Orders in force (as of July 13, 2015), steel products account for 157. 71 are on mill products, 44 on pipe, and 42 on other iron and steel products and castings. 131 Orders are on products of China: India is in second place with just 23.
Most importers interaction with Customs on AD and CVD matters is at the time of entry, paying duty deposits and ensuring adequate bond coverage; and upon (eventual) liquidation of the entry and finalization of duties, all too often with additional duties and interest amounts due. There may be some discussion about scope coverage, although the final word on that is always with the Commerce Department.
Customs AD/CVD Division reminds importers that the enforcement function has a high priority. Te Division, working with the Base Metals CEE and the ports of entry, is engaged in identifying imports where the importer failed to declare and pay duties on covered goods. Inadvertent failures can still be very costly in duties and fees, and even mitigated penalties can be substantial for goods with high AD and CVD rates. Tere has also been a significant increase in the use of the False Claims Act for AD and CVD matters (see last month’s Customs Corner on Customs Trolls), both by private parties seeking to deal with competitors they believe are acting improperly, and by whistle-blowers seeking a portion of any recovery.
The Division is also concerned with cases involving outright smuggling or fraud. While the Customs civil penalties in those cases can be high – up to 8 times any loss of revenue plus payment of the revenue loss plus interest – the use of other criminal enforcement tools is increasing. Criminal Customs sanctions have been applied more often in AD and CVD cases, with jail time for smuggling. In addition to the Customs violation there may be violations for false statements to government officers, wire fraud, conspiracy, and money laundering.
Customs has undertaken significant efforts to meet its responsibilities in the anti-dumping and countervailing duty area. Importers are certainly encouraged to do so as well.
Steven W. Baker
AIIS Customs Committee Chair
Law Offices of Steven W. Baker