Our De Minimis article published on February 23rd was met with a certain number of reactions. There is one that we consider particularly valuable, as it appears to completely clarify and assess the legal progress of the rule. Here is Cameron W. Roberts’ contribution provided under the aegis of his law firm: Roberts & Kehagiaras, Attorneys & Counselors At Law.

•  On the first day of the current administration, January 20, 2025, President Trump (the “President” or the “Administration”) issued a memorandum, America First Trade Policy, requesting an assessment of the loss of tariff revenues and other risks resulting from the de minimis provision along with recommendations to protect the revenue of the U.S. and public health by preventing unlawful importations.

•  On February 1, 2025, the President issued three memos imposing duties on products of China (including Hong Kong), Canada, and Mexico. Each memo included a provision eliminating the availability of duty-free de minimis treatment to products subject to the new duties.

•  On February 3, 2025, CBP issued CSMS # 63988468, providing guidance on the additional 10% tariffs on products from China (and Hong Kong) and eliminating the de minimis provision as of February 4, 2025.

•  Between February 5 and 11, 2025, the Administration and CBP issued notices implementing the new tariffs and eliminating the de minimis provision for products from China (including Hong Kong), Canada, and Mexico.

•  Between February 5 and 11, 2025, the Administration paused the additional duties on products of Canada and Mexico, which postponed the elimination of the de minimis provision until March 4, 2025. At this time, it is unknown if the de minimis provision will be eliminated for products from Canada and Mexico, if Canada and Mexico continue to make concessions to the US. Chances are likely that the tariffs will be paused, and the de minimis provision will remain for products of Canada and Mexico beyond March 4, 2025.

•  On February 5, 2025, the President issued an Executive Order (note that while this EO was dated 2/5/2025, it was not published until 2/7/2025) re-establishing the de minimis provision for products from China until adequate systems are in place to process and collect duty on these shipments. Note that no date has been announced when the de minimis provision will be eliminated for products of China.

•  On February 7, 2025, CBP issued CSMS # 64082249 clarifying that imports that qualified for de minimis but were forced to be imported as an informal or formal entry with duty paid would not be eligible for retroactive refunds.

•  Several of our CHB clients have asked about filing formal entry, and our response has been: “If a licensed Customs Broker (“CHB”) elects to be the importer of record (“IOR”), which is not recommended, but deemed commercially necessary by the CHB despite the risk, a CHB can file a formal entry and act as the IOR. There is nothing to prevent an IOR from filing formal entry, and CBP’s Cargo Systems Messaging Service (CSMS) No. 63992482, effective February 4, 2025, stated that “The filer/importer has the option of filing an appropriate formal or other informal entry and paying all applicable duties, taxes and fees.” The CHB should have a written 19 CFR § 111.28 supervision and control plan and be prepared to provide evidence that it exercised reasonable care when acting as the IOR under 19 U.S. Code § 1484.

     It would be difficult to imagine a more complete and punctual assessment of the legal situation, kudos to Cameron Roberts, with our readers’ thanks.
     We have seen that the de minimis rule is not very popular among freight forwarders and Customs brokers; the administration did not take much time to decide on its deferment for a large part of U.S. imports, as its abolition was problematic to say the least. In this particular case, the administration itself seems to be struggling with finding the resources required to proceed to fulfil its own objectives. I am an old cat and I have seen so many changes in the patterns of trade that all this sounds a bit precarious to me. Who will end up with the short end of the stick? In similar predicaments in the past what we have seen is this sequence: action required -> find necessary resources -> no resources at hand -> the user must pay!
     So my expectation is that in a while the buyer will foot the bill through a chain of actions-reactions that will flow downstream until it reaches the end consumer. Sometimes rivers flow so slowly you have the impression that the water is still, or even that the current goes back with the tide, but in the end the stream reaches the ocean and is absorbed by its vastness.
Marco Sorgetti