Trade Preference Programs Get New Life

By Susan Kohn Ross

Originally published by the Journal of Commerce in July 2015.

In the last few months, there has been extensive press coverage about the President’s trade agenda and the ultimate Congressional grant of Trade Promotion Authority. As noted in that coverage, the Trans-Pacific Partnership (TPP) (the Trans-Pacific trade deal being negotiated with Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam) and the Transatlantic Trade and Investment Partnership (TTIP) (the equally important trade deal proposed with the EU countries – Austria, Belgium, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece (yes – still, at least as of date of initial publication), Hungary, Ireland, Italy, Latvia, Lithuanian, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom), are now likely realities, but not in the next few months. While those negotiations continue, and later this month there is a TPP meeting in Hawaii, of more immediate interest to international traders is the Trade Preferences Extension Act of 2015. On June 29, 2015, it became Public Law No. 114-27.

Pursuant to its terms, the Generalized System of Preferences (GSP) was extended to December 31, 2017 with retroactive effect to July 31, 2013 (when it last expired). The African Growth and Opportunity Act (AGOA) was extended to September 30, 2025, and continues to include third country yarns and fabrics. Plus, Haiti continues to receive duty deferral benefits for its apparel articles under the Caribbean Basin Economic Recovery Act (CBERA) until September 30, 2025.

Regarding AGOA, third country yarn eligibility includes yarns originating in the United States or one or more beneficiary sub-Saharan African countries or former beneficiary sub-Saharan African countries. The third country fabric program grants duty-free treatment of apparel articles wholly assembled, or knit-to-shape and wholly assembled, or both, in one or more lesser developed beneficiary sub-Saharan African countries, regardless of the country of origin of the fabric or the yarn used to make those articles.

With much of the benefit of these various trade preference programs focuses on apparel and textile products, by this new law, the President, through the Department of Agriculture, is directed to identify AGOA eligible sub-Saharan African countries having the greatest potential to increase marketable exports of agricultural products to the United States and the greatest need for agricultural technical assistance, particularly with respect to developing food safety standards, and provide assistance.

Regarding GSP, Section 201 of the new law provides:

(B) REQUESTS.—A liquidation or reliquidation may be made under [the provision which extends the effective date] with respect to an entry only if a request therefor is filed with U.S. Customs and Border Protection not later than 180 days after the date of the enactment of this Act that contains sufficient information to enable U.S. Customs and Border Protection—

(i) to locate the entry; or

(ii) to reconstruct the entry if it cannot be located.

(C) PAYMENT OF AMOUNTS OWED.—Any amounts owed by the United States pursuant to the liquidation or reliquidation of an entry of [an eligible] article under subparagraph (A) shall be paid, without interest, not later than 90 days after the date of the liquidation or reliquidation (as the case may be).

After GSP expired, importers were still able to file their entries with the “A”, “A*” or “A+” indicator, but had to pay full duty and wait for the program to be reinstated, see CSMS 13-000348 dated July 12, 2013. This “A” flag allows CBP to now quickly identify the eligible entries and issue refunds. In CSMS 14-000286 dated May 16, 2014 and CSMS 14-000326 dated June 9, 2014, importers were reminded that liquidation extensions and protests could not be entertained for goods otherwise GSP eligible, as the law had expired.

If you continued to file your entries with the “A” indicator, you will benefit in the refund process. The “A” flag allows CBP to readily identify GSP entries and issue refunds. If your entries were filed without the “A” flag, your only option is to file refund requests. Regardless of the timing, importers are advised to carefully review their records, identify each entry on which GSP could have been claimed, and make sure those refunds are timely received. If not, do not wait until the last minute to file your refund request.

Refund claims must be filed no later than 180 days after enactment, or by December 28, 2015, and must be filed for a given entry at the port where the entry was originally filed, just like any other refund claim. If you have only a handful of entries on which refunds are due, it may make sense to wait until close to the deadline to file but that is a matter of business judgment. However, if you are an importer with many such claims, it is prudent to file your claims in smaller batches, and to do so as soon as you are able to adequately identify them. At the same time, importers are cautioned CBP could seek supporting documentation which establishes the eligibility of the goods for GSP benefits, especially if GSP was not claimed at time of entry filing. So, in order to streamline the refund process as much as possible, when filing refund requests, importers should consider doing more than simply saying here is a list of my entries (or entry lines) and give me my money! Do you have documentation from your supplier which supports GSP eligibility? Have you performed a recent analysis to establish the 35% value added requirement (labor and materials) is met? Does double substantial transformation occur? Are you able to fully document and support your GSP claims? If not, it is late to start, but be prepared to support those claims when you file your refund requests.

The sooner you file, the sooner you are likely to get your GSP refund, so why wait? So far, at least, CBP has not issued the expected notice about how it intends to process these refunds. As such, waiting to see what CBP says is a good move, but don’t sit around. Right now, figure out which entries are eligible for refunds, and get your paperwork in order. Then, once CBP issues its guidance document, you will be ready to file your refund claims. In this context, it is important to recall the August 11, 2014 letter from Headquarters to the CBP filed offices, and subsequent CSMS (see 14-000458 and 14-000460 dated August 14 and August 15, 2014) . This combination of messages took issue with using post-entry amendments, including protests, as the vehicle by which for the first time to raise a duty refund claim for GSP claims (and others). CBP concluded the law does not allow it. There is much speculation in the legal community about whether that conclusion would be upheld by the courts, but for now, it remains the standard. For that reason alone, seeing what CBP has to say about how it intends to process GSP refunds is worth the wait.

Further, while the law mandates those refunds should be issued within 90 days of filing, it is likely some refunds will take longer to process – either due to staffing considerations, or less than ideal refund requests. Whenever you receive your refund check, keep in mind, it will be without interest. Also, if you think CBP did not refund enough money, consult with your Customs or trade counsel to figure out your appeal options.

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