We have had many questions and seen many hot takes on a document that is making the rounds purporting to be from the Base Metal Center of Excellence and stating CBP's position with respect to the value of steel, aluminum, and copper to be reported for products subject to 232 on the value of the metal content. The gist of the "guidance" is that the way to determine the 232-dutiable content is to start with the entered value of the imported article and subtract the value of components that are not steel, aluminum, or copper. This is contrary to advice we and others have given to determine the metal value based on the price paid by the manufacturer of the imported good for the steel, aluminum, or copper.

It is not clear that this document represents a final or even official policy decision of CBP Headquarters. It is not on CBP letterhead and was not issued as a CSMS message or in any other official or semi-official channel. To be clear, this may turn out to be the policy CBP adopts, but we do not know that to be true. In our view, this document appears contrary to the unofficial guidance CBP posted to its 232 FAQ, which is the most "official" communication to date.

That FAQ, which is still posted, states:

 

The use of "for the steel/aluminum content" in this FAQ appears to differentiate the purchase of the steel/aluminum content from the purchase of the finished imported good. The invoice paid by the buyer of the steel/aluminum content appears to refer to the purchase of the metal content by the manufacturer of the imported good. This makes sense because the proof for the 232-value would be the invoices for the metals, not potentially multiple documents covering an unknown number of non-aluminum and non-steel components. Read as we have suggested, the importer needs the supplier to provide one additional invoice or other support for the purchase price of the metal content. That is consistent with focusing on the metal "content," which is distinct from the fully fabricated finished article less the non-metal parts.

 

We hope that CBP will officially clarify whether this document is a correct statement of policy and publish it accordingly. In the meantime, if an importer choses to report metal values for 232 purposes based on the supplier's purchase price and CBP decides to advance the value, the importer can protest that decision. The importer can also accept the rate advance and pay the duty on the higher value, which may be the full value of the imported item if documentation to segregate value is not available. It is also reasonable for a company to amend entries via a PSC consistent with this possible guidance. If CBP officially (or even semi-officially) publishes more favorable guidance, a protest can be used to seek a refund. Remember that protests are due within 180 days following liquidation (and not before). If an importer is participating in Reconciliation, it may be possible to correct the metal values at the time of recon. By that time, there may be guidance.

 

We realize the lack of definitive guidance is frustrating, but it is a result of the government operating with insufficient public notice and attention to the needs of the importing public.