“PROTECTIONISM BECOMES DESTRUCTIONISM; IT COSTS JOBS”
PRESIDENT RONALD REAGAN, JUNE 28, 1986
US CHINA TRADE WAR AUGUST 3, 2016
Set forth below are two more articles on importer of record liability for antidumping and countervailing duties and the False Claims Act hammer against illegal transshipment around US antidumping and countervailing duties.
IMPORTERS OF RECORD LIABILITY FOR ANTIDUMPING AND COUNTERVAILING DUTIES
The US Importer of Record is liable for antidumping and countervailing duties. The Importer of Record is the company listed in Block 26 of the U.S. Customs 7501 form. When I told a former US Senator this, he responded by saying he “thought the Chinese company was liable for the duties, not the US company.”
Under US Antidumping, Countervailing Duty and Customs laws, the Importer of Record must exercise reasonable care in importing products and in filling out Customs forms. The Importer of Record must correctly state the products’ country of origin and also whether Antidumping and Countervailing duties apply to the imported products. A knowingly false statement on a Customs form constitutes criminal fraud.
If AD or CVD rates go up in a subsequent review investigation, the Importer of Record is retroactively liable for the difference, plus interest. Retroactive liability for AD and CVD cases is a particular problem involving goods imported from China, because the Commerce Department treats China as a nonmarket economy (“NME”) country. Dumping is generally defined as selling products in the United States below their normal value, which generally means selling products in the United States below their prices in the home market or below the fully allocated cost of production.
Since China is a NME, Commerce refuses to use actual China prices and costs to determine whether a company is dumping. It instead uses complicated consumption factors for raw materials and other inputs and multiplies the factors by surrogate values from five to ten constantly changing countries to calculate a cost of production for the Chinese company. All this makes it impossible for the Chinese manufacturer/exporter to know whether it is dumping, never mind the US importer.
In the Mushrooms from China antidumping case, from the time the antidumping order was issued in 1999 through numerous subsequent yearly review investigations, many antidumping rates were in the single digits because Commerce used India as the surrogate country. But when in 2012 Commerce switched from India to Columbia as the surrogate country, the Antidumping rates went from less than 10% to more than 200% because of surrogate values for straw and cow manure in Columbian import statistics. The Importers of Record then became liable for the difference in the duty rates, plus interest.
How can you as an importer of products from China (or from anywhere else for that matter) avoid getting hit with a massive antidumping or countervailing duty fee? Do not become the Importer of Record. The dollars saved by this can be staggering.
In the Wooden Bedroom Furniture from China initial investigation, for example, I represented a company importing from a Chinese furniture company. Based on my advice, the importer pushed the Chinese furniture producer to become the importer of record for its own sales to the company.
In the initial investigation, the Chinese furniture company received an AD rate of 16%. In the first review investigation, however, Commerce determined that the questionnaire data did not verify and issued the Chinese furniture company an AD rate of 216%.
The US company estimated that the Chinese producer exported $100 million, which created $200 million in retroactive liability for US importers. The Chinese company then decided not to do the second review investigation creating another $200 million in retroactive liability for a total of $400 million in retroactive liability created by just one Chinese company.
My client, however, escaped liability because it was not the importer of record on the sales from that Chinese company, but many US import companies were not so lucky and went bankrupt.
If your company is the Importer of Record and its antidumping or countervailng duty rates go up, you need to realize that U.S. antidumping and countervailing duty laws are remedial, not penal statutes. This means requesting review investigations at the Commerce Department, appealing adverse rulings to the Courts and working with Customs can often substantially reduce your duties or even eliminate them entirely. Chinese exporters also can (and often do) use the Commerce review process to reduce their antidumping and countervailing duty rates so that they can export to the US again.
BEWARE THE FALSE CLAIMS ACT HAMMER WHEN IMPORTING PRODUCTS FROM CHINA
Chinese companies and the U.S. importers of their products often tell me that they are not concerned about U.S. Antidumping (“AD”) and Countervailing Duty (“CVD”) orders because they can “just get around those orders by transshipping the products to Malaysia, Vietnam, Philippines, Sri Lanka, India, or some country before sending them on to the United States.” Their plan is to relabel the products with a new country of origin and then export the products to the US free of AD and CVD duties, without US Customs and Border Protection (“CBP”) ever being the wiser.
Not only has CBP become expert at discovering such evasions, but the penalties — both civil and criminal — when caught have become very harsh. Importers that knowingly falsely label the country of origin on their imports are subject to significant fines and penalties under 19 USC 1592 and to criminal prosecution under 18 USC 542 (import by using false statement) and 18 USC 545 (smuggling). Lying about a product’s country of origin can subject you, the importer, to 20 years in Federal prison.
Immigration and Customs Enforcement (“ICE”) has conducted criminal investigations against a number of products under AD and CVD orders, including honey, saccharin, citric acid, lined paper products, pasta, polyethylene bags, shrimp, catfish, crawfish, garlic, steel, magnesium, pencils, wooden bedroom furniture, wire clothing hangers, ball bearings and nails. Many of these investigations have led to criminal convictions and large fines and penalties.
US importers have also been prosecuted and sentenced to prison for bringing in Chinese products, such as honey, garlic, wooden bedroom furniture and wire clothing hangers, by means of false Country of Origin statements so as to evade US AD and CVD orders.
Many Chinese companies do not realize that U.S. Customs laws can be used to go after not only US importers that have filed the false documents at Customs, but through a conspiracy charge against Chinese (and other foreign exporters) involved in setting up the transshipment. In one case, a Chinese seafood executive was arrested at a seafood show in Belgium based on a US extradition warrant for evasion of a US AD order and ending up spending six months in a Belgian prison before he was released.
US Customs, ICE and the Justice Department can be very tough investigators and prosecutors.
The real hammer against evasion of US AD and CVD orders, however, is the False Claims Act (“FCA”). The FCA ( 31 U.S.C. § 3729) allows people or companies, designated a “Relator”, to file what are termed “qui tam” lawsuits against individuals or companies that directly or indirectly defrauded the Federal government. Through qui tam lawsuits, the informants or “whistleblowers” may recover triple damages on the government’s behalf. Anyone who knows of the fraud, including a competitor company, may file a qui tam lawsuit, and they do.
Relators can be competing companies in the United States, China or elsewhere or even individual employees working at those companies. Relators file these qui tam actions to attack competitors and to get 15 to 30 percent of whatever the triple damages the U.S. Government recovers as a result of the lawsuit.
The most likely to file these lawsuits are your foreign competitors, Chinese competitor, U.S. competitors, U.S. importers, your employee at your Chinese exporting company, your employee at your U.S. importing company. But sometimes they are brought by someone who simply learned of what you are doing. Because the person or company that brings such an action can be awarded millions and even tens of millions of dollars, the incentive to file is huge. If you want to get a better idea of just how lucrative these lawsuits can be, do a Google search for lawyers looking to take on qui tam lawsuits. There are hundreds, if not thousands of lawyers, willing and eager to take such suits. Reportedly the most lucrative Google keyword search is “qui tam”.
The qui tam relator’s lawsuit is filed confidentially and is not served on the defendants, but on the US Government. The US Government then determines whether to intervene and pursue the action or settle the matter with the defendant. If the U.S. Government intervenes, it takes on primary responsibility for the case. If the U.S. Government decides not to intervene, the relator may dismiss the lawsuit or pursue the lawsuit on its own.
Under the False Claims Act, relators and the government can look backward as much as ten years after the date on which the violation was committed. When looking at imports over 10 years subject to antidumping orders with very high rates of over 50 to over 300%, the amounts being evaded are usually enormous. In one False Claims Act we handled, the antidumping duties evaded were over $80 million. When those duties were tripled, and additional penalty sums were added for false statements and attorneys’ fees, the complaint against numerous importers exceeded $300 million. Our original complaint has resulted in an ongoing penalty action for $80 million against one U.S. importer, with the relator entitled potentially to $12 to $24 million of this sum.
Both the U.S. Government and private companies and individuals have huge incentives to bring more False Claims Act cases against those who transship and seek to evade U.S. antidumping and countervailing duties.
If you are exporting to the United States or importing into the United States, you need to be wary of the hammer against transshipment—the False Claims Act.