CBP Expands Guidance on Extending Liquidation for Importers With Pending Section 301 Exclusion Requests
CBP reminded importers that they may request extensions of liquidation to preserve their right to refunds of sections 232 and 301 tariffs when liquidation is approaching but their requests for tariff exclusions are still pending, in a CSMS message sent May 1. “Given the potential retroactive application of Section 232 and Section 301 product exclusions, in situations where the importer has requested a product exclusion and the request is pending with the [Commerce Department] or [the Office of the U.S. Trade Representative], the importer or their licensed representative may submit a request to extend the liquidation of impacted unliquidated entry summaries to CBP,” CBP said.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Exclusions from Section 232 and Section 301 tariffs are retroactive to when the tariffs initially took effect. The continuing flow of Section 301 exclusions from USTR, granted well after the tariffs first took effect in mid-2018, means some importers may have exclusions granted that cover entries that have already liquidated based on CBP’s 314-day time frame and are past the 180-day protest deadline (see 2004020029).
“Importers/filers may choose to submit an extension request via paper or electronic format to the appropriate Center of Excellence and Expertise,” CBP said. “Report ES-702, Official Notice of Extension, Suspension and Liquidation, is available in ACE for the Trade to monitor extension and suspension records.”
Once approved, extensions will be for one year, subsequently extendable three times for a total of four, CBP said. Importers that have extended liquidation and are granted exclusions should submit a post-summary correction to request a refund. Importers that have their exclusion request denied need not take any further action, with their entries liquidating as scheduled at the end of the standard liquidation time frame, as extended by one year.
Despite the new guidance from CBP, importers still have no solution beyond a lawsuit if their entries do liquidate, according to Christopher Kane of Simon Gluck. “If a favorable exclusion decision is granted after the entry liquidates, and the protest period has expired, the importer is still out of luck DESPITE the merchandise being found to be OUTSIDE of the collection of 232 by Commerce or 301 duties by USTR,” he said. The only other option is if “the importer sues in the Court of International Trade for a refund using the 28 USC 1581(i) jurisdiction of the CIT on the basis that CBP was not making a protestable decision, and was merely acting administratively at the behest of the other agencies a la Export [Harbor Maintenance Tax (HMT)].”