On August 11, 2014, U.S. Customs and Border Protection (CBP) released a guidance memorandum to the field concerning “post-importation preference claims.” The guidance states that importers can no longer use protests to submit initial claims for preference under certain free trade agreements (FTAs) and preference programs, including the Generalized System of Preferences (GSP). CBP wrote this guidance to reflect recent judicial decisions. The guidance indicates that, “[t]he court cases…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 as non-protestable.” This guidance poses a significant new barrier to claims for GSP treatment by administrative protest, instead of prior to liquidation, and is likely to be legally challenged by importers or their associations.
The guidance states that the statute at 19 USC 1520(d) allows for post-entry preference claims for designated free trade agreements (FTAs) and that these specific FTAs have provisions for post-importation preferences for up to one year post-entry. For these FTAs, importers must submit a 1520(d) claim to claim a preference post-importation. These FTAs are listed below.
In the guidance, CBP also listed FTAs and preference programs under which importers may file post entry amendments (PEAs) or post summary corrections (PSCs) to claim post entry preferences, which are also listed below. CBP stated that importers may apply for the preference “prior to liquidation in accordance with current PEA and PSC procedures.”
Free Trade Agreements under Statute 19 USC 1520(d):
Central America-Dominican Republic (CAFTA), China (CLFTA), Columbia (CTPA), Korea (UKFTA), North American Free Trade Agreement, Oman (OMTA), Panama (PATPA), and Peru (PTPA).
FTAS that may use PEAs or PSCs:
Singapore (SGFTA), Africa Growth and Opportunity Act (AGOA), Australia (AUFTA), Israel (ILFTA), Jordan (JOFTA), Bahrain (BHFTA), Morocco (MAFTA), Central American-Dominican Republic (CAFTA-DR), Caribbean Basin Economic Recovery Act (CBERA), Caribbean Basin Trade Partnership Act (CBTPA), and Generalized System of Preferences (GSP).