CBP Revises AD "Reimbursement Certificate" Guide for Protests, ACE, Etc.

(International Trade Administration regulations require that, prior to liquidation and the assessment of AD duties, the importer is required to file a certificate advising whether it has entered into an agreement with the manufacturer, producer, seller, exporter, etc., or otherwise has received reimbursement of AD duties. If an importer fails to provide a statement of reimbursement prior to liquidation, CBP presumes reimbursement and may double the assessed AD duties.)

Highlights of changes in the March 9, 2012 revised guidance include the following:

Option for Paperless Filing in ACE or “ACS via ACE”

The revised guidance states that the Automated Commercial Environment (ACE) gives importers the ability to provide non-reimbursement statements, which fulfill (in electronic format) the same requirements as reimbursement certificates.

ACE at line level. Importers may provide a non-reimbursement statement at the line level for entry summaries filed in ACE.

ACE/ACS blankets at account level. Importers may also provide a blanket non-reimbursement statement at the importer account level for summaries filed in ACE or the Automated Commercial System (ACS).

Once the trade submits a blanket non-reimbursement statement record in ACE, it is considered to be submitted according to CBP regulations and filed at every port of entry, and applies to both ACE and ACS entries.

Visibility in ACE. CBP users and authorized trade participants will be able to search for and display declaration records in ACE. The ACE entry summary line non-reimbursement statement will be visible in the AD/CVD tab on the ACE entry summary line.

CBP may still want paper copy. When non-reimbursement statements are filed in ACE, the trade is not required to scan and attach a signed copy of the reimbursement certificate; however, CBP reserves the right to request a copy. Attachments may be made to declaration records and will be date and time stamped as a part of the created declaration electronic file.

Blanket Certificates of Reimbursement for “All Manufacturers” Allowed

The guidance contains additional information on blanket certificates. CBP states that its policy on blanket certificates is that an importer may file, on an AD case-specific basis, a blanket reimbursement certificate for each individual manufacturer or it may file one certificate for all manufacturers. When filing a blanket certificate for all manufacturers, an importer must specifically state that the blanket certificate encompasses all manufacturers. In either case, the blanket certificate, like the individual certificate, is AD case-specific, meaning it covers a specific commodity and country, e.g., “shrimp from Thailand (A-549-822)”.

The revised guidance maintains the same sample blanket reimbursement as the 2005 version of the guide, and continues to note that importers can utilize other formats provided they contain the information required by the ITA.

Importer of Record Must Submit Certification

An authorized officer of the company shown as the importer of record should sign the certificate -- the ITA does not interpret its regulations to allow a customhouse broker to sign. The guidance newly states that, when the exporter and importer of record are the same company (related parties), the importer of record is required to submit the reimbursement certificate.

“Deemed Liqs” not Subject to Double Duties

CBP states that, when an entry has deemed liquidated, Import Specialists should not double the AD duties, since the entries have deemed liquidated at the rate asserted at the time of entry.

Certificate Needed for Companion CV Duties

According to the revised guidance, the ITA has determined that only in the case where merchandise is subject to both AD and CV duties is a reimbursement certificate required for CVD lines. The ITA will indicate in final liquidation instructions when this rule applies.

(This represents a clarification of the 2005 guidance, which simply stated that CBP should not require a reimbursement certificate for CV cases unless the ITA provides specific instructions.)

CBP to Issue Proposed Form 29s upon ITA Request

According to the guidance, CBP does not issue a CBP Form 28 (Request for Information) or a proposed CBP Form 29 (Notice of Action) to request reimbursement certificates (unless the ITA message instructs CBP to do so).

Protests Granted if Reimbursement Certificates Are Valid

CBP states that, when importers file a timely protest challenging CBP’s doubling of duties for the failure to provide a reimbursement certificate, and provide a valid reimbursement certificate with the protest, CBP shall grant the protest with respect to this issue.

(This protest guidance is pursuant to a November 23, 2011 clarification by the ITA, which began to include information on this policy in its liquidation instructions to CBP at that time. The ITA also stated that, even if liquidation instructions did not include this information, i.e., they were issued before November 23, 2011, CBP may accept reimbursement certificates during a protest proceeding to rebut the presumption of reimbursement. See March 9, 2012 guidance for more information.)

(The updated guide, dated March 9, 2012, retains much of the earlier November 18, 2005 guidance’s information on: (1) how CBP will address reimbursement for entries that took place under the pre-1980 and 1989 prior regulations; (2) requirements for individual certificates; (3) acceptable signatures on certificates; (4) assessment of AD duties when an importer acknowledges reimbursement; and (5) procedures when the importer is no longer in business.)

(See ITT’s Online Archives 05120605 for summary of previous November 18, 2005 guidance document on reimbursement certificates.

See ITT’s Online Archives 10020505 for summary of announcement of deployment of ACE ESAR III capabilities on February 7, 2010, which allowed the filing of non-reimbursement statements in ACE.

See ITT’s Online Archives 10102110 for summary of CBP Field Operations, Port of Los Angeles’ Public Bulletin regarding reimbursement and non-reimbursement certificates.)