Section 5 – the good?
First, the… hopefully good. Section 5 of the bill amends Section 321 (19 U.S.C. 1321) to include a list of goods that the Treasury “may not exempt from duties and taxes” per Section 321. This includes merchandise subject to trade remedies, including our “Section 301” China tariffs.
The Trump Administration’s CBP had actually put this policy forward as a regulation back in 2020, but the Biden Administration killed the regulation before it could take effect. Now, Congress is doing what the Biden Administration refused to. Legislation to exclude merchandise subject to Section 301 from de minimis has also been passed by Ways and Means Republicans.
But the headline feature of Section 5 is its adding to the “may not exempt” list all the goods that are ineligible for preferential tariff treatment under the General System of Preferences (GSP). Referencing GSP is odd, as that program is expired and will hopefully not be renewed. Nonetheless, the GSP exclusion list covers most textiles and apparel, and thus incorporating its exclusion from de minimis has been celebrated by the National Council of Textile Organizations (NCTO).
Excluding entire product categories is stronger than excluding merchandise subject to Section 301 actions, as the latter exclusion’s use of a scattering of 8-digit HTS codes invites fraud.
The problems with current ‘de minimis’ policy, however, go far beyond lost tariff revenue. A major issue is unaccountable overseas vendors having direct access to U.S. consumers without any presence here. We cannot hold them accountable.
It isn’t clear if, per Sec. 5, apparel will actually be forced to use traditional Informal Entry (Type 11), or if Shein and Temu will continue to use Type 86 (de minimis), but with duty owed.
If overseas vendors can continue to use Type 86 entry, but with duty owed, then this was a major oversight. Senate Finance should clarify this in markup.
Brazil is imposing a flat 20% tariff on de minimis shipments; South Africa a flat 45%. However any ad valorem (percentage of value) fee is likely to have limited effect at discouraging the likes of Shein and Temu. Similarly, if Shein and Temu can continue to enjoy having their small packages ‘waived through’ in a de minimis-like environment, paying applicable U.S. duties and tariffs are unlikely to deter them.
Again, the problem with de minimis goes far beyond lost tariff revenue. Simply assessing tariff revenue on Type 86 de minimis entries could likely motivate many more businesses to switch to de minimis, as they realize it will be a permanent feature of law.
FIGHTING Act Sec. 4 – all bad & ugly
Currently, the Tariff Act of 1930 prescribes two types of entry: Formal Entry (all above $2,500), per Section 484 of that act, and Informal Entry (all below $2,500), per Section 498.
Sec. 4 of the FIGHTING Act morphs Section 321 from its current wording as a plain “Administrative Exemption” into something clearly meant to make it really easy to import small packages alleged to be below $800.
Sect. 4 is a disaster, because it gives our current de minimis lawlessness a much firmer legislative footing. It says the Treasury, within 180 days, “shall prescribe regulations to require the provision to [CBP], separate from any entry filing, of such documentation or information … as the Secretary determines is reasonably necessary”.
We know what this will look like. It will look precisely like the Type 86 “test” & Section 321 pilot CBP has made available to foreign vendors worldwide since 2019. You can read more about the Type 86 failure in our article “Small Package Shipments Don’t Work: Evidence Pours In”.
73% of de minimis shipments already provide the information contemplated by Sec. 4 via CBP’s Type 86 test and 321 pilot. You can read about how “more data” has been an excuse for inaction on opioids entering via small packages since the failed 2018 Stop Act in our de minimis update last week.
The vast majority of data submitted to these systems is generated by package consolidators in China or Mexican trucking companies breaking up containers from China in Mexico. The data is garbage.
Amazon and FedEx will never be liable, however, for acting as a conduit for the garbage data. Sec. 4 only requires that they “ensure that the documentation or information is true and correct to the best of the person’s knowledge and belief”. You can read about how they will never be accountable under this standard in our discussion of the Mod Act of 2023. Sec. 4 brings over the same fake $1,000 first time, $5,000 subsequent time penalty that was first proposed in the Mod Act of 2023.
FIGHTING Act Sec. 6 – due process for overseas vendors
Recall that the “HTI” in “FIGHTING” stands for “Helping Trustworthy Importers”. Trustworthy Importers apparently include Chinese consolidators and cartel-controlled Mexican trucking companies.
Under Sec. 6, CBP “shall provide the notice required by subparagraph (A) to each party that appears to have an interest in the merchandise”. Yes, that’s right: per Sec. 6, if CBP wants to detain a sketchy Temu package sent from “luckysh1p39569” in Guangzhou, China, that vendor is entitled to detailed notice from CBP.
And it’s not just a generic notice that the shipment is detained. CBP has to indicate what tests may be performed on the merchandise, and what further information ‘luckysh1p39569’ could provide that would enable CBP to release the shipment.
Think of how long it takes a police officer to write a speeding ticket. Now think of that officer trying to police 4 million cars per day. Now you can see the problem here.
The constitution does not require any due process for imports or importers, to say nothing of foreign vendors:
De Minimis Update: Major New Senate Finance Bill; Regulatory Capture DHS/CBP Strikes Again
The de minimis catastrophe is getting attention on Capitol Hill, thanks to legislative champions on both sides of the aisle in Congress, and the advocacy of the The Coalition to Close the De Minimis Loophole (of which CPA is a member).
The goal of this coalition is to “immediately close this dangerous loophole.”
Legally, closing the loophole is easy. And it can be done by a President or by Congress, anytime.
It’s easy because we already have a functioning regulatory infrastructure to deal with small packages: it’s called “Informal Entry”, and applies to shipments valued under $2,500. But with the de minimis loophole, if a foreign vendor declares it’s worth less than $800 in their country, then they can skip the rules and regulations of Informal Entry.
If we repeal de minimis, most merchandise exploiting the loophole will revert to more efficient bulk shipments in containers: a massive win for port security, not to mention American morality and our economy.
State of Play on Capitol Hill
As we covered last week, the Biden Administration is declining to do anything, instead kicking the can to Congress with the “more legislative tools needed” excuse.
The situation is better on Capitol Hill, where there are Democrats and Republicans in the powerful U.S. House Ways & Means and U.S. Senate Finance committees who recognize this dangerous loophole for what it is. They know that the torrent of over a billion small packages per year being waived through under our ‘de minimis’ customs loophole is an urgent, dire problem.
That’s important, because any legislative effort to repeal de minimis must pass through both of these committees.
U.S. Senator Sherrod Brown (D-OH), a Senate Finance member, recently held an entire press conference from a textile mill in Ohio to explicitly call for a complete close of the de minimis loophole.
On the flip side, however, there are committee members who are unsure. Their uneasiness stems from a misinformation campaign – led by express shippers and the National Foreign Trade Council – to create fear, uncertainty and doubt about repealing de minimis.
While de minimis hurts countless groups, it has been extremely profitable for express shippers, as the likes of FedEx and UPS displace traditional importer-wholesalers with duty-free, scrutiny-free small package imports. It’s also popular with Shein and Temu. These firms are thus mounting an intense lobbying campaign, truth be damned.
Two types of de minimis bill
The positive momentum de minimis bills: Congress is the art of the possible.
And because there is not yet the needed consensus on Capitol Hill for a full-scale repeal, legislators who get the problem have introduced various bills that would deny eligibility for de minimis treatment to merchandise from China. These bills would present serious enforcement challenges, as there is no way to police millions of small packages, but they would surely greatly lower the volume of de minimis packages, most of which come from China.
These ‘no de minimis for China’ bills move things in the right direction.
The ‘make de minimis permanent bills’: On the other side, we get complex customs bills that would effectively make de minimis a permanent feature of statutory customs law. If these laws pass, future Administrations would be hamstrung in trying to do anything about it.
The worst example is the Mod Act of 2023, which we detailed at length. That law wasn’t written by any Congressional staff; rather, it was the work product of a regulatory capture cabal we discussed in that article.
Regulatory capture is facilitated because customs law has grown needlessly complex, and the trade policy leaders at U.S. Customs and Border Protection (CBP) have put the interests of express shippers and e-commerce platforms over fundamental principles in customs law.
As is normally the case when agencies are subject to regulatory capture, good intentions are being subverted into terrible policy.
We’ll start with the bad regulatory capture policy parts before proceeding to the bill led by U.S. Senate Finance Chairman Ron Wyden (D-OR), which incorporates the bad Administration policy, but marries it with some good policy.
DHS and CBP staff co-opt political desire to tackle the problem; push legislative entrenchment of the de minimis problem
On Wednesday, July 31, 2024, the White House issued a National Security Memorandum to Cabinet Secretaries and agency heads on disrupting the supply chain for fentanyl shipments. Collectively, the proposals stemming from this Memorandum are called the President’s “Detect and Defeat” plan.
That same day, the Department of Homeland Security (DHS) published a fact sheet on its steps to implement Detect and Defeat.
Some context for the DHS fact sheet:
First, DHS Secretary Alejhandro Mayorkas has himself criticized de minimis sharply. Mayorkas recently stated “the de minimis exception is built on a false premise that low value means low risk.”
Despite this acknowledgment, his own CBP Office of Trade maintains an e-commerce FAQ that falsely states that “De minimis shipments pose the same risks as all other commercial cargo.” This is plainly false, and contradicted by every customs professional. Small package shipments arriving by air and truck (i.e., almost all de minimis packages) from overseas vendors with no advance manifest are the least secure form of conveyance. Containerized ocean shipments, which all have U.S.-based Importers of Record and a manifest that arrives weeks before cargo, are the most secure.
Second, below the Secretary level, the notorious ‘Beltway revolving door’ takes over. For example, in 2023, DHS hired Christa Brzozowski as Assistant Secretary for Trade and Economic Security. Previously, Ms. Brzozowski worked as a Senior Manager for Public Policy at Amazon. In her DHS role, Ms. Brzozowski “oversees a team focused on a wide range of national trade and economic security policy issues”. This is a major conflict when it comes to de minimis policy.
The DHS Fact Sheet contained a rough outline of a legislative proposal for Congress to amend customs laws said to help U.S. Customs and Border Protection (CBP) “effectively go after the abuse of “de minimis” shipments, some 4 million low-value shipments every day that are currently subject to less rigorous reporting requirements than higher value shipments.”
The fact sheet elaborated on the proposals as follows:
Sounds good, right? No, 73% of de minimis shipments are already providing this additional info. But from unaccountable overseas vendors, it’s garbage-in, garbage-out.
It’s also important to emphasize that the Administration calling for legislation is a complete ‘buck passing’. The Administration already has the authority necessary to do everything above.
Today’s de minimis policy was created by regulation, and it can be undone by regulation. The de minimis policy that currently exists is a highly questionable reading of Section 321 of the Tariff Act of 1930. (De minimis was challenged in court by customs brokers when it was first introduced, and only upheld due to Chevron deference, which the Supreme Court recently struck down) Much like CBP’s use of ‘parole’ in immigration law to waive in migrants, Section 321, titled “Administrative Exemption”, is being used to waive-in four million shipments per day.
The statutory authority CBP used to create ‘de minimis’ was Section 498 of the Tariff Act of 1930. Section 498 is titled “Entry Under Regulations”, and it gives the Secretary of the Treasury broad latitude in governing the import procedures for packages valued under $2,500.
Just as CBP used Section 498 authority to create de minimis, it can use Section 498 to repeal de minimis, or anything in between, including the policies in the DHS fact sheet.
CBP’s Office of Trade - not to be trusted, yet the apparent source of legislative text
On Friday, August 2nd, CBP held a telephone call to talk about the DHS legislative proposals. Speaking on the call were Felicia Pullam, executive director for CBP’s Office of Trade Relations, and Gail Kan, now Senior Legal Advisor to the CBP Commissioner.
CBP’s Office of Trade is not to be trusted. They have published false data on the value of de minimis shipments, and refused to retract it. The value of de minimis shipments is unknowable, as hundreds of millions do not digitally convey the value, and thus the value is not tabulated.
Despite this, CBP’s Office of Trade publishes “total value” figures. For example, the office states that in CBP’s FY2020, the value of de minimis shipments was $67,039,140,875 representing 636 million shipments, but that in FY2023, the value was “over $50 billion” (an apparent decline of $17 billion), despite the volume of shipments soaring to over one billion.
You can read more about CBP’s regulatory capture in our analysis of the Mod Act of 2023.
These official figures contradict recent testimony from Brandon Lord, Executive Director of Trade Policy and Programs at CBP’s Office of Trade. On May 7, 2024, Director Lord testified that:
If the value has stayed roughly the same, then the total value in FY2023 should be closer to $100B, and not represented as “over $50B”.
Aug. 2: CBP’s Gail Kan Causes Alarm When Discussing New Proposals
As reported by International Trade Today, CBP’s Gail Kan said that while the President’s legislative proposal contemplated the reporting of applicable Harmonized Tariff Schedule (HTS) codes for merchandise, it “does not preclude the possibility of an exemption or waiver to be implemented by regulation.” Ms. Kan made remarks suggesting that this waiver would only be available to big businesses, like express shippers.
Ms. Kan has previously championed lower liability (effectively, non-existent liability) for parties like express shippers (FedEx and UPS) and e-commerce sites (Amazon, Shein, and Temu) who facilitate the majority of de minimis shipments. As reported by International Trade Today:
Ms. Kan also said her office recommended a $2 customs fee, an effective subsidy for de minimis, discussed further below.
Aug. 8: Chairman Wyden introduces a de minimis bill; combines positive and negative elements.
On August 8, 2024, U.S. Senator Ron Wyden (D-Ore.), Sen. Cynthia Lummis (R-Wyo.), Sen. Sherrod Brown (D-Ohio), Sen. Susan Collins (R-Maine), and Sen. Bob Casey (D-Pa.), introduced the Fighting Illicit Goods, Helping Trustworthy Importers, and Netting Gains (FIGHTING) for America Act.
Senator Wyden is Chairman of the powerful U.S. Senate Finance Committee, making this bill especially significant.
Senator Wyden’s legislation contains the proposals Ms. Kan discussed on August 2nd.
The Good, The Bad, and The Ugly of the FIGHTING Act
Section 5 – the good?
First, the… hopefully good. Section 5 of the bill amends Section 321 (19 U.S.C. 1321) to include a list of goods that the Treasury “may not exempt from duties and taxes” per Section 321. This includes merchandise subject to trade remedies, including our “Section 301” China tariffs.
The Trump Administration’s CBP had actually put this policy forward as a regulation back in 2020, but the Biden Administration killed the regulation before it could take effect. Now, Congress is doing what the Biden Administration refused to. Legislation to exclude merchandise subject to Section 301 from de minimis has also been passed by Ways and Means Republicans.
But the headline feature of Section 5 is its adding to the “may not exempt” list all the goods that are ineligible for preferential tariff treatment under the General System of Preferences (GSP). Referencing GSP is odd, as that program is expired and will hopefully not be renewed. Nonetheless, the GSP exclusion list covers most textiles and apparel, and thus incorporating its exclusion from de minimis has been celebrated by the National Council of Textile Organizations (NCTO).
Excluding entire product categories is stronger than excluding merchandise subject to Section 301 actions, as the latter exclusion’s use of a scattering of 8-digit HTS codes invites fraud.
The problems with current ‘de minimis’ policy, however, go far beyond lost tariff revenue. A major issue is unaccountable overseas vendors having direct access to U.S. consumers without any presence here. We cannot hold them accountable.
It isn’t clear if, per Sec. 5, apparel will actually be forced to use traditional Informal Entry (Type 11), or if Shein and Temu will continue to use Type 86 (de minimis), but with duty owed.
If overseas vendors can continue to use Type 86 entry, but with duty owed, then this was a major oversight. Senate Finance should clarify this in markup.
Brazil is imposing a flat 20% tariff on de minimis shipments; South Africa a flat 45%. However any ad valorem (percentage of value) fee is likely to have limited effect at discouraging the likes of Shein and Temu. Similarly, if Shein and Temu can continue to enjoy having their small packages ‘waived through’ in a de minimis-like environment, paying applicable U.S. duties and tariffs are unlikely to deter them.
Again, the problem with de minimis goes far beyond lost tariff revenue. Simply assessing tariff revenue on Type 86 de minimis entries could likely motivate many more businesses to switch to de minimis, as they realize it will be a permanent feature of law.
FIGHTING Act Sec. 4 – all bad & ugly
Currently, the Tariff Act of 1930 prescribes two types of entry: Formal Entry (all above $2,500), per Section 484 of that act, and Informal Entry (all below $2,500), per Section 498.
Sec. 4 of the FIGHTING Act morphs Section 321 from its current wording as a plain “Administrative Exemption” into something clearly meant to make it really easy to import small packages alleged to be below $800.
Sect. 4 is a disaster, because it gives our current de minimis lawlessness a much firmer legislative footing. It says the Treasury, within 180 days, “shall prescribe regulations to require the provision to [CBP], separate from any entry filing, of such documentation or information … as the Secretary determines is reasonably necessary”.
We know what this will look like. It will look precisely like the Type 86 “test” & Section 321 pilot CBP has made available to foreign vendors worldwide since 2019. You can read more about the Type 86 failure in our article “Small Package Shipments Don’t Work: Evidence Pours In”.
73% of de minimis shipments already provide the information contemplated by Sec. 4 via CBP’s Type 86 test and 321 pilot. You can read about how “more data” has been an excuse for inaction on opioids entering via small packages since the failed 2018 Stop Act in our de minimis update last week.
The vast majority of data submitted to these systems is generated by package consolidators in China or Mexican trucking companies breaking up containers from China in Mexico. The data is garbage.
Amazon and FedEx will never be liable, however, for acting as a conduit for the garbage data. Sec. 4 only requires that they “ensure that the documentation or information is true and correct to the best of the person’s knowledge and belief”. You can read about how they will never be accountable under this standard in our discussion of the Mod Act of 2023. Sec. 4 brings over the same fake $1,000 first time, $5,000 subsequent time penalty that was first proposed in the Mod Act of 2023.
FIGHTING Act Sec. 6 – due process for overseas vendors
Recall that the “HTI” in “FIGHTING” stands for “Helping Trustworthy Importers”. Trustworthy Importers apparently include Chinese consolidators and cartel-controlled Mexican trucking companies.
Under Sec. 6, CBP “shall provide the notice required by subparagraph (A) to each party that appears to have an interest in the merchandise”. Yes, that’s right: per Sec. 6, if CBP wants to detain a sketchy Temu package sent from “luckysh1p39569” in Guangzhou, China, that vendor is entitled to detailed notice from CBP.
And it’s not just a generic notice that the shipment is detained. CBP has to indicate what tests may be performed on the merchandise, and what further information ‘luckysh1p39569’ could provide that would enable CBP to release the shipment.
Think of how long it takes a police officer to write a speeding ticket. Now think of that officer trying to police 4 million cars per day. Now you can see the problem here.
The constitution does not require any due process for imports or importers, to say nothing of foreign vendors:
Indeed, Sec. 8 of the FIGHTING Act does authorize summary forfeiture, but only for controlled substances and certain accoutrement. So they know they can do it. Sec. 8’s summary forfeiture should be the rule for all small packages, which are too costly to police.
The $2 fee is actually a subsidy
Sec. 11 of the Wyden bill legislates a $2 fee on each de minimis shipment. This will further incentive use of the service, acting as a subsidy.
To reiterate: many businesses can’t believe that de minimis is here to stay, and thus haven’t upended their supply chains to make use of it. But with the Wyden bill’s Section 4, and the legitimacy of a $2 fee apprehended to it, businesses will understandably conclude that de minimis is here to stay.
The $2 fee is wildly generous. For informal entry small packages, depending on how much work CBP has to do to process the shipment, CBP assesses a Merchandise Process Fee (MPF), which ranges from $2.22 to $9.99. The MPF is sometimes waived for Free Trade Agreement countries, but as U.S. Ways & Means Commitee Chairman Jason Smith says, “de minimis is our free trade agreement with China”. Senator Wyden’s bill preserves waiving the MPF for de minimis.
Then there is also the Consolidated Omnibus Budget Reconciliation Act (COBRA) customs fees, which varies based on conveyance type. For example, the COBRA fee on a Dutiable Mail package is $6.52. And COBRA fees are adjusted for inflation annually. The $2 fee in the FIGHTING Act is not adjusted for inflation.
Under Informal Entry, for a small dutiable package mailed from overseas, the combined customs fee would be $9.99 plus $6.52.
These fees are meant to ostensibly cover the cost of CBP to do its job vis-a-vis the small dutiable mail package. But instead of charging $16.51, the FIGHTING Act assesses a fee of just $2, if the foreign vendor alleges the package is worth less than $800 in their country.
There is no adjustment for inflation, or for the actual cost of CBP to do its job. Taxpayers will subsidize overseas shipments in perpetuity. And at over 1 billion packages per year, that subsidy will cost CBP over $10 billion per year in lost COBRA and MPF fees, to say nothing of lost tariff revenue, discussed at the end.
Sec. 4 & 6 combined will start a rush of all imports to de minimis
In our most recent update, we covered the Seko Logistics lawsuit against CBP, where Seko asserted 5th Amendment due process violations over their few-day suspension in the Type 86 program. Seko did not prevail, but a key reason they did not prevail was because Type 86 was a voluntary ‘test’ and not a permanent feature of law.
From the U.S. Department of Justice brief in that lawsuit:
Plaintiff does not have a property interest in participation in the ET86 Test because neither the regulatory authority for CBP to establish the test nor the test’s announcement in the Federal Register “meaningfully channel official discretion by mandating a defined administrative outcome.” Barrows, 777 F.3d at (2d Cir. 2015). As explained above, the ET86 Test is a voluntary test program established by CBP pursuant to 19 C.F.R. § 101.9(a) as a mechanism to beta-test the “effectiveness of new technology or operational procedures.” 19 C.F.R. § 101.9(a). Where, as here, “[t]he purpose of a test is to experiment to see if something works,” 19 C.F.R. § 101.9(a) envisions broad discretion in CBP’s testing authority and grants CBP “the ability to obtain information necessary to predict the effects of various policy options.” See Test Programs, 60 Fed. Reg. at 14,211-12. And, while the ET86 Test’s announcement in the Federal Register encourages the eligible trade community to participate in the test, it maintains CBP’s discretion to “remove a filer from further participation . . . based on a determination that that filer’s participation in the test poses an unacceptable compliance risk.” 89 Fed. Reg. at 2634. In other words, far from containing “explicitly mandatory language” that constitutes “specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow,” see Ky. Dep’t of Correction v. Thompson, 490 U.S. 454, 462- 63 (1989), the regulatory authorization and announcement of the ET86 Test “vests in [CBP] significant discretion over the continued conferral” of participation in the test, making participation “not a protected property interest.” Assoc. of Proprietary Coll.’s, 107 F. Supp.3d at 348.
Herein lies the danger of making the Type 86 program a permanent feature of law.
De Minimis Policy Is Costing Us in excess of $20B per year.
If you’re a legislator, start by asking yourself: does it make sense to have a global free-trade program, but only for the least secure form of package conveyance?
Do we want to incentivize the offshoring of retailers? Because that is what de minimis does.
We already estimated $10B in annual lost MPF and COBRA fees to pay for CBP’s work.
Now consider that In 2022, three apparel retailers alone paid close to $1B in tariffs: (Gap, H&M, and David’s Bridal paid close to respectively paid $700 million, $205 million, and $19.5 million in import duties.)
In contrast, look to Amazon, Shein, and Temu: all major U.S. apparel retailers. Shein alone does more in revenue than the GAP. And then consider that they are much more likely to source from China than traditional apparel retailers, as they can avoid the extra duties. These retailers alone are likely costing the Treasury several billion per year in lost duties.
Note that in CBP’s FY2023, the agency recorded a 55.6% rise in de minimis packages but also a $12.3B decline in tariff revenue for the U.S. Treasury ($104.6B in FY22, down to $92.3B in FY23). And that’s just in the last year. Consider cumulative since imposition of China tariffs in 2018.
Finally, consider the lost income tax of firms like The Gap. Thanks to de minimis, firms like Shein and Temu, to say nothing of tens of thousands of overseas Shopify-merchant sites, can sell in our market entirely from overseas, and never pay income tax.
What is to be done?
Simply repeal de minimis. We already have an Informal Entry legal framework to accommodate small packages. Haphazard changes to Section 321 will only exacerbate the problem by making it permanent. If compromise is essential, delay the de minimis repeal by 90 days. But do not engage in the folly of thinking millions of small packages per day can effectively be policed with “more information”.
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