CBP Continues to Use 'Subsidiary Factors' in TAA Rulings, Despite Energizer Court Decision
CBP continues to look at the “subsidiary factors” when reviewing country of origin under the Trade Agreements Act despite a 2016 Court of International Trade decision that discounted the use of such factors in substantial transformation analysis, Sheppard Mullin lawyers said in a Nov. 25 blog post. The CIT case, which found an Energizer military flashlight to be of Chinese origin under TAA, “reasoned all the imported components retained their individual names and material composition or shape as a result of the post-importation assembly process,” they said in the blog post. Even though “substantial transformation appears to be more of an uphill battle than ever before, CBP still is relying heavily upon those 'subsidiary factors' that were disfavored in Energizer,” the lawyers said.
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While the CIT noted that such analysis depends on the specific situation, and “did not outright prohibit the use of other 'subsidiary factors' historically used by CBP, the CIT’s Energizer opinion appeared to set a higher bar for substantial transformation, meaning companies would seem to be required to do more in the U.S. than was previously the case before 2016 for TAA compliance,” the lawyers said. Examples of subsidiary factors listed by the CIT include “extent and nature of operations performed, value added during post-importation processing, a change from producer to consumer goods, or a shift in tariff provisions.”
A review of 53 CBP opinions since the Energizer decision shows that the lack of CIT “guidance as to how to determine the country of origin when an end product was not substantially transformed in any one country frequently has left CBP to its own devices,” they said. CBP continues to focus “on analysis of the 'subsidiary factors,' sticking to a 'totality of circumstances' approach frequently utilized pre-Energizer.”