On February 15, 2107, the Acting Executive Director, Trade Policy and Programs, in CBP’s Office of Trade wrote a memorandum (the “2017 Memo”) to Directors of Field Operations and Center Directors providing guidance concerning acceptable methods for submission of post-importation preference claims in light of the decision issued in Zojirushi America Corp v. U.S. , Slip Op. 16-78 (August 4, 2016) by the Court of International Trade. The 2017 Memo amends guidance issued by CBP on August 11, 2014 which stated that if a preference program did not have a statutory post-importation mechanism, referenced in 19 USC § 1520(d), importers were precluded from claiming post -importation duty preferences through protests under 19 U.S.C. § 1514. In the 2014 guidance, CBP instructed ports to reject as non-protestable any initial preference claims made under 19 USC §1514.
The 2017 Memo states that, pursuant to the Zojirushi decision, for those preference programs that do not specifically provide for claims under the statutory post-importation mechanism of 19 U.S.C. § 1520( d), CBP will permit use of the protest mechanism set forth in 19 U.S.C. § 1514 to submit initial post-importation preference claims. CBP 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.
For preference programs that by law have a post-importation provision, CBP states that a 1520(d) post-importation claim remains the only appropriate mechanism to seek preference when not claimed at the time of importation.
The 2017 Memo also stated that since ports may have rejected as non-protestable (rather than denied) initial post-importation preference claims made under 19 U.S.C. § 1514, importers are requested to resubmit their protests to the appropriate field offices within 180 days of the issuance of this guidance to assist CBP in processing protests previously rejected as non-protestable.
The 2017 Memo set forth a table of the existing preference programs and the method by which a claim may now be made after importation.
This is a significant development since it expands the period in which post-entry refund claims may be made under certain preference programs. It also breathes new life into protests filed for such claims that were previously rejected as “non-protestable”. We have been helping clients secure refunds from CBP on such protests and would be happy to discuss this with you further, if relevant.