As a follow-up to a memorandum issued by U.S. Customs and Border Protection (CBP) to its field offices on August 11, 2014, CBP has published a guidance to the trade community concerning "acceptable methods" for submission of post-importation claims for preferential treatment under various free trade agreements (FTAs).
For quite some time, importers who did not make a claim under an FTA, trade legislation and certain tariff provisions in Chapter 98 of the Harmonized Tariff Schedules of the United States have resorted to using post-entry amendments (PEAs), post summary corrections (PSCs) and protests under 19 U.S.C. 1514, and post-importation claims under 19 U.S.C. 1520(d).
In light of certain court decisions that determined that the protest vehicle was not available to make a preference claim where the liquidation (final assessment of duties, fees, etc.) was "as entered," CBP has advised the importing community that it will limit such claims to the method (and time requirements) set forth in 19 U.S.C. 1520(d) for those FTAs that identify 19 U.S.C. 1520(d) as the appropriate claim mechanism, which include: Dominican Republic-Central America Free Trade Agreement, Chile FTA, North American Free Trade Agreement, Colombia Trade Promotion Agreement, Korea FTA, Oman FTA, Panama FTA and Peru Trade Promotion Agreement.
Where the FTA does not identify 1520(d) or some other statutory post-importation method, an importer may use PEAs or PSCs as the claim method. CBP has identified the following programs that may use a PEA or PSC: African Growth and Opportunity Act, Australia FTA, Bahrain FTA, Caribbean Basin Economic Recovery Act, Caribbean Basin Trade and Partnership Act, Civil Aircraft Agreement, Generalized System of Preferences, Insular Possessions, Israel FTA, Uruguay Round Concession on Intermediate Chemicals and Dyes, Jordan FTA, Morocco FTA, Pharmaceutical Products Agreement and Singapore FTA.
Importers affected by CBP's change in policy should note that it is reasonable to expect that the CBP determination will be subject to court challenge. The mere fact that entry is "as entered" does not necessarily mean that the transaction did not involve a "decision" of CBP that is subject to protest. [19 U.S.C. 1514; 19 C.F.R. 174.11; 19 C.F.R. 172.12(e)].