CBP CROSS Rulings

The Commerce Department’s increased restrictions on shipments to military end-users is causing widespread confusion and could cripple exporters struggling to survive during the global COVID-19 pandemic (see 2005010037), industry groups said. The Bureau of Industry and Security's April 28 final rule (see 2004270027), set to take effect June 29, is too complex and was released with “poor” timing and without industry input, the National Customs Brokers & Forwarders Association of America said.

While most of the focus on the U.S.-Mexico-Canada Agreement has been on the changes to the auto rules of origin and enforcement measures aimed at Mexico, Crowell & Moring lawyers explained that importers and exporters of textiles and chemicals also can take advantage of rules that changed from NAFTA for inclusion in the updated agreement.

The Commerce Department plans to issue an advance notice of proposed rulemaking to remove certain filing requirements for exporters shipping goods to Puerto Rico, said Kiesha Downs, chief of the Foreign Trade Division’s regulations branch at the Census Bureau. The rule is under review by the Office of Information and Regulatory Affairs and is expected to be published this year, Downs said during a June 2 Regulations and Procedures Technical Advisory Committee meeting.

The government is considering how quickly it can get through a legislative fix to U.S.-Mexico-Canada Agreement implementation provisions that allow for duty refunds on post-importation preference claims, but not a refund of merchandise processing fees, said Maya Kumar, director of textiles and trade agreements at CBP. She said on May 22 that CBP officials “do not think that was the intent of the law.” Kumar, who was speaking at the National Association of Foreign-Trade Zones virtual conference, said that if it's at all possible, CBP would like to see that fixed by Congress before USMCA's entry into force July 1. “We’re trying to work with [the office of the U.S. Trade Representative] as well as Congress and see how quickly they can do that,” she said.

Many details needed for the uniform regulations and the final implementing instructions for the U.S.-Mexico-Canada Agreement remain under discussion, agency officials said on May 14. Many specifics have not been agreed to, either between Mexico, Canada and the U.S., between the Office of the U.S. Trade Representative and the auto industry, or between CBP and USTR. “There's still even discussions with USTR and the [auto] industry on what constitutes a core part,” Maya Kumar, director for textiles and trade agreements, told members of the trade community on a conference call.

The Office of the U.S. Trade Representative is disinclined to offer an informed compliance period for most importers, “because most of the rules of origin have remained essentially the same” as what was in NAFTA, so CBP can honor the U.S.-Mexico-Canada Agreement claims with the same information that backed NAFTA claims, according to Brenda Smith, executive assistant commissioner of CBP’s Office of Trade.

At the southern border, not every document can be processed electronically yet, but they're working on it, the CBP Laredo Field Office told traders on a conference call May 1. Documents including meat certificates, phytosanitary certificates, bovine paperwork, and CITES certificates are still needed in paper form. Assistant Director of Field Operations Armando Taboada asked those listening to make sure the drivers and runners coming to the Texas port wear masks. “I know Gov. [Greg] Abbott relaxed a little bit of the requirements,” he said, but added, “It’s for our own health and safety, for all of us.” He said most drivers are wearing masks, but there are a few stragglers.

CBP issued frequently asked questions about exports of personal protective equipment, detailing how exporters submit letters of attestation; how exporters will be notified of held shipments; the resolution process on disagreements surrounding restricted shipments; and more, according to an April 27 CMS message. The guidance comes about one week after the Federal Emergency Management Agency issued 10 exemptions for exports of PPE (see 2004200019). FEMA expects to issue most determinations on PPE shipments within two days (see 2004210022).

Braumiller Law Group attorneys told webinar listeners April 20 that outside of the automotive sector, the U.S.-Mexico-Canada Agreement has more liberal rules of origin than NAFTA. Jim Holbein said that the decision on whether a product qualifies based on tariff shift is a “much simpler rule to apply. I believe that’ll be useful, particularly if your process for obtaining origin is based all on NAFTA.” He gave the example of a flat-screen TV assembled in Mexico, which currently has content percentage rules. Under USMCA, if the manufacturing process qualifies as substantial transformation, that's enough to count as Mexican.

CBP posted interim implementation instructions for the U.S.-Mexico-Canada Agreement to provide "guidance with respect to preferential tariff claims under the USMCA," it said. The document covers many of the USMCA provisions, including making preference claims, rules of origin for automotive goods and country of origin marking rules. "The procedures outlined in this memorandum are in place pending the issuance of the applicable regulations," CBP said.