LexSage

Schrödinger's Cat: Can Goods Be Subject

to Customs Duties and Not Subject Customs

Duties at the Same Time?: Maybe

Written By: Cyndee Todgham Cherniak

Date: April 8, 2018

Anyone who watches "The Big Bang Theory" knows about Schrödinger's cat.  The cat was both thought to be dead and thought to be not dead at the same time.  There is a similar paradox for Canadian companies who sell to the United States and/or China.  Canadian goods may be thought to be not subject to the trade war tariffs and subject to the trade war tariffs at the same time.  You have to wait for the customs officers to open the box and take a look inside --- and ask for proof of Canadian origin.

March 8, 2018, President Trump signed two Presidential Proclamations, one dealing with additional (232) tariffs on steel and the other with additional tariffs on aluminum. As has been widely reported in the general press, those rates are 25% on steel and 10% on aluminum. Canada and Mexico (along with other countries) are exempted for the time being. China responded notified the World Trade Organization that it was withdrawing concessions against 128 U.S. origin goods.

On March 22, 2018, President Trump issued a “Presidential Memorandum on the Actions by the United States Related to the Section 301 Investigation" threatening to impose (301) tariffs against certain China-origin goods valued at $50 Billion.  The U.S. Trade Representative (“USTR”) has prepared for publication a Federal Register Notice that identifies a list of approximately 1,300 tariff lines on which it proposes to levy additional duties of up to 25% on goods made in China. China has indicated that it will respond with additional U.S.-origin goods being subjected to retaliatory tariffs. 

President Trump has asked the United States Trade Representative to draw up a list of China-origin goods worth $100 Billion against which the United States will impose tariffs.  China has indicated that it will respond and will impose additional tariffs against U.S.-origin goods.  These lists have not yet been released.

While only the steel and aluminum (and solar panels and washing machine) tariffs are in place and the retaliatory tariffs may be the subject of negotiations, we do know that tariffs are possible and may be on the horizon. We have some of the lists of covered goods and we have the benefit of time to prepare.  If the tariffs are imposed, there may not be a lead time - they may be imposed within a 24 hour window of time.

What does this mean for Canadian exporters?
Some say there are opportunities because Canadian-origin goods would not be subject to the duties. BUT, what is a Canadian-origin good?  Canada does not have a free trade agreement with China that sets out rules of origin.  Even though Canada has a free trade agreement with the United States, U.S. Customs and Border Protection officers routinely deny NAFTA treatment to Canadian-origin goods where they are not satisfied with the paperwork or evidence.  It is not unusual for there to be NAFTA paperwork problems (in fact, paperwork problems are common) because many Canadian exporters do not have full time compliance staff and MFN duties are low.  Many Canadian exporters do not understand the risk and the cost associated with the risks of denial of preferential tariff treatment.  The risk is now both a denial of preferential treatment and an imposition of punitive treatment.

With new potential duties of 25% being imposed (possibly), it will become more important to be attentive to customs compliance and maintaining satisfactory evidence of origin.  When I say "satisfactory" I do not mean satisfactory to the exporter, I mean satisfactory to the government on the importing country.  I mean satisfactory to government officials who are looking for a reason to reject the Canadian tariff treatment.  I mean satisfactory to suspicious customs officers who think that Canada is a transshipment point.

Make a List of Goods Subject to Retaliatory Tariffs
It is important to know what goods are subject to retaliatory tariffs.  Either someone in your organization should be tasked with monitoring the lists or hire someone to notify you when certain goods are subject to retaliatory tariffs.  If goods that you export are on a list, you will have an increased risk.  More questions should be asked such as:
• Which goods are subject to retaliatory tariffs?
• Which country imposes the retaliatory tariffs?
• Does the company export goods subject to the retaliatory tariffs to the country imposing the retaliatory tariffs?
• Does the company use rules of origin under a free trade agreement to benefit from duty free treatment or do specific rules of origin help with the determination of origin?
• Does the company act as the importer of record when it exports goods subject to the retaliatory tariffs to the country imposing the retaliatory tariffs?
• Is the relationship with the buyer important - if we make an error in the paperwork, will it be detrimental to our relationship with the buyer?
• Does the country that imposes the retaliatory tariffs have laws that puts liability of the exporter for errors in paperwork?

Internal Review
When was the last time that your company took a close look at its customs compliance and the paperwork that supports origin claims?  When was the last time that your company closely reviewed the paperwork to see if there are errors relating to statements of origin or determinations of origin? Do you keep a binder of internal origin determinations?  Do you have your certificates of origin up-to-date?  Do you trust that your certificates of origin are accurate?  When was the last time you asked how and where the origin paperwork is maintained and kept?  When was the last time that your company reviewed the rules of origin in NAFTA?  When was the last time you spot-checked an origin determination with respect to goods that you export? Have you ever asked what paperwork is required by China? When was the last time that your company reviewed its internal procedures for tracking inputs?  It is time to start to ask questions - a lot of questions.

If you do not ask the right questions or conduct an internal compliance review, you might find that goods that you think are not subject to retaliatory tariffs are subject to retaliatory tariffs.  It may be costly.  It will not be helpful to think that "our goods are Canadian, we do not have to worry about these tariffs" because you might find that your assumptions are incorrect. How much exactly is 25% of the value of your expected shipments of listed goods to countries who are retaliating against someone?  If the amount is more than $5000, it might be worth asking the necessary questions.

If you require customs compliance assistance or assistance in determining origin of goods, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com. Other articles about Canadian customs law and NAFTA are on the LexSage website.

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