- To : Automated Broker Interface, ACE Portal Accounts
Subject: Post-importation Claims for Preferential Tariff Treatment
This CSMS is being issued to modify the layout of information in CSMS #14-000458. The
information itself remains unchanged.
The purpose of this message is to provide guidance to the trade community concerning acceptable methods for submission of post-importation preference claims, in light of certain judicial decisions. This message is consistent with a memorandum from the Office of International Trade to field offices sent on August 11, 2014.
BACKGROUND
Historically, importers have used various post-importation mechanisms to claim duty preferences under various free trade agreements, trade preference legislation, and certain tariff provisions in Chapter 98, Harmonized Tariff Schedule of the United States. These mechanisms include Post-Entry Amendments (PEAs), Post Summary Corrections (PSCs), protests in 19 USC 1514 and post-importation claims in 19 USC 1520(d).
Several court decisions(FN1) have held that the protest mechanism set forth in 19 USC 1514 may not be used to make a preference claim, inasmuch as the liquidation of an entry “as entered” (without a claim) is not a “protestable decision”. Headquarters Ruling Letter H193959, dated July 30, 2012, also discussed the court cases’ holding limiting use of protests for preference claims.
However, the implementing legislation for several preference programs specifically provides for post-importation claims, set forth in 19 USC 1520(d), and such claims are the only appropriate mechanism to seek preference when not claimed at the time of entry. This legislation allows post-importation claims for a one-year period after the date of importation.
Customs and Border Protection has completed a review concerning which methods are available to make claims after entry for those preference programs that do not specifically provide for post-importation claims under 19 USC 1520(d). If a preference program does not have a statutory post-importation mechanism, an importer may utilize the PEA or PSC method to make a claim after importation.
For clarity and ease of reference, below is a table of the existing preference programs and the method by which a claim may be made after importation.
19 USC 1520(d) PEA or PSC
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CAFTA-DR AGOA
NAFTA Civil Aircraft Agreement
Chile FTA Jordan FTA
Oman FTA Australia FTA
Colombia TPA GSP
Panama TPA Morocco FTA
Korea FTA Bahrain FTA
Peru TPA Insular Possessions
Pharmaceutical Products Agreement
CBERA
Israel FTA
CBTPA
Uruguay Round Concession on
Intermediate Chemicals for Dyes
Singapore FTA
GUIDANCE
The court cases referenced above state that failure to claim preference timely does not give rise to a right to protest. Therefore, importers cannot avail themselves of the protest mechanism in 19 USC 1514 to submit initial claims for preference. Protests filed which are initial preference claims will be rejected by indicating “rejected as non-protestable” in block 18 of CBP Form 19.
For preference programs that by law, have a post-importation provision, a 1520(d) post-importation claim remains the only appropriate mechanism to seek preference when not claimed at the time of importation.
For programs that do not contain a 1520(d) provision, Customs and Border Protection will continue to allow unliquidated entries to be amended by filing a PEA or PSC prior to liquidation in accordance with current PEA and PSC procedures. In conformance with the aforementioned judicial decisions, we note that amendments filed after liquidation will not be treated as protests under 19 USC 1514. Nor will they be regarded as evidence warranting reliquidation under 19 USC 1501.
The Office of International Trade will be revising all guidelines applicable to preference programs to reflect the judicial decisions described above. This message supersedes any conflicting guidance previously published.
Please direct any questions concerning this message to the Trade Agreements Branch at [email protected].