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Administrative Law

: Customs Law

First Sale Data

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Because I have previously discussed my views on the Customs and Border Protection proposal to interpret the valuation statute to do away with the so-called first sale rule, I probably should have mentioned that the International Trade Commission has published its congressionally mandated report on the topic. Note that the report is 255 pages, although the narrative is in the first 35 or so, the remainder is appendices and charts.

There is not a whole lot of data here. Here are some of the highlights based on data collected from September 1, 2008 to August 31, 2008:
  • 23,520 entities reported using first sale for valuation (8.5% of all importers)
  • Of those using first sale, 14% were in textiles, footwear, and apparel; 12% were in metals and metal products; 10% were in machinery, transportation, and computers
  • $38.5 billion of trade was affected (2.4% of all imports)
  • Of all first sale trade, by value 31% was machinery, transportation, and computers; 15% was electrical equipment; and 14% was textiles, apparel, and footwear
An interesting piece of data that is missing is the revenue lost by application of the first sale rule. The ITC did not have access to data showing the difference between the declared value and the fully-loaded cost to the importer. As a result, it is still not clear whether this is a big revenue issue for the U.S.

I must admit that I am a bit surprised by the number of entities using first sale and the diversity of the industries involved. Beyond that, I am not sure what conclusions Customs or Congress will be able to draw from this study. Customs original position has less to do with revenue than with international consistency and its reading of the value code. It seems unlikely that this report will change any minds at Customs. That means the question may well end up back in Congress.

Full post as published by Customs Law on January 11, 2010 (boomark / email).

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