U.S. Customs and Border Protection (“CBP”) published a memorandum last month amending its previously issued guidance on filing post-entry claims for preferential tariff treatment. In August 2014 CBP had advised the trade community that post-importation preference claims would be reviewed in accordance with 19 U.S.C. §1520(d) (“1520(d)”). This statute identifies some, but not all, preference programs available in the Harmonized Tariff Schedule of the United States, and requires all post-importation preference claims to be filed within one year of importation. Under CBP’s prior interpretation, preference claims made under programs not listed in 1520(d) could only be made at the time of entry or through post entry amendments (PEAs) or post summary corrections (PSCs). All post-importation claims under these non-listed preference programs made by 19 U.S.C. §1514 protests were rejected as non-protestable.
CBP’s updated guidance amends this policy based upon the Court of International Trade’s (“CIT”) decision last August in Zojirushi America Corp. v. U.S. Under the new directive, CBP will permit importers to make post-importation claims for preferential treatment under programs not specifically covered by 1520(d) by the filing of administrative protests. CBP will also allow importers to refile administrative protests containing post-importation claims that had been rejected under its prior policy. These protests must be filed by August 14, 2017. Denied protests, however, cannot be refiled with CBP, and relief on these claims can only be obtained through the filing of court actions in the CIT. Finally, post-importation preference claims made under the programs specifically mentioned in 1520(d) continue to be governed by the procedures set forth in that statute.
We have excerpted below a table included in CBP’s new guidance summarizing which preference programs are covered by 1520(d) and which are governed by the new policy:
Please feel free to contact Patrick J. Caulfield at (212)-973-7785 or Robert B. Silverman (212-973-7730) or the other attorneys at Council member – Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP. – if you have any questions about this change in Customs position.