Customs Law Advisory - Importers Responsible for Antidumping Certificates of Nonreimbursement

Importers Responsible for Antidumping Certificates of Nonreimbursement
The U.S. Bureau of Customs and Border Protection (“CBP”) has changed its policy regarding certificates of nonreimbursement for merchandise subject to an antidumping (“AD”) duty order.   CBP now places the responsibility entirely on the importer to file these certificates.  If the certificate is not already on file at the time of liquidation, CBP will neither advise the importer nor request the certificate, as has been done in the past.  Instead, at liquidation, CBP will double the AD duties owing on any uncertified entries and issue bills accordingly.  CBP also now states that it will deny any protest in which the importer attempts to submit the certificate after liquidation.  Therefore, importers should review their records to confirm that certificates of nonreimbursement are already on file with CBP for any unliquidated AD entries.

For most AD merchandise, a certificate of nonreimbursement is filed at some point to cover each entry.  Importers may file a certificate to cover one or several specific entries or use a blanket certificate to cover entries made in an AD period of review or other twelve-month period.  These certificates confirm to CBP that the AD duties are paid only by the importer of record and are not being reimbursed by a foreign manufacturer or other company in the supply chain prior to importation.  Payments to an importer from a U.S. customer in an amount that includes AD duties generally will not constitute reimbursement. 

In light of CBP’s recent shift in policy, each importer should confirm that certificates of nonreimbursement are in place prior to liquidation at each port of entry used for merchandise subject to an AD order.  Fortunately, most AD entries are suspended for months or years prior to liquidation, which usually allows sufficient time to file these certificates where necessary.  For future shipments, importers likely will find it convenient to file a blanket certificate at the relevant port(s) for each AD period of review or calendar year.  Most importers that regularly import AD merchandise use these blanket certificates.  For entries already made, certificates can and should be filed to cover any entries not yet liquidated.  

CBP’s new policy does not discuss entries for which the non-U.S. producer of the merchandise also acts as the importer of record.  CBP does not make any exception from the certificate requirement for these importers.  CBP takes the position that a certification is required even from these importers because the agency cannot determine whether an importer is the same corporate entity as the foreign producer or merely carries a similar name.

It is unknown at this time whether a court challenge would support CBP’s stated plan to enforce doubled AD duties where the certification is submitted in a protest after liquidation.  In order to minimize the risk from this issue, importers should review their records to confirm that certificates of nonreimbursement are already on file at the relevant U.S. Customs ports for any AD entries not yet liquidated.  In light of CBP’s new attention to this issue, importers should consider further minimizing potential difficulty by arranging for clarifying language on the commercial invoice or other entry document such as, “blanket certificate of AD nonreimbursement on file at Port of _______.”

CBP’s states that the agency will not require a certificate of nonreimbursement for merchandise subject to a countervailing duty order, unless it receives specific instructions from the U.S. Department of Commerce.

If you have any questions regarding U.S. Customs import procedures for merchandise subject to AD orders, please contact Greg McCue at (202) 429-6421.