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Advance Rulings: A Complete Review

16. Advance Rulings

References:
Article 509: Advance Rulings
19 CFR 181, Subpart I -- Advance Ruling Procedures
NAFTA ADVANCE RULINGS, Customs Publication No. 594
"NAFTA: A Guide to Customs Procedures", Customs Publication No. 571

16.1 Introduction to Advance RulingsThe U.S. Customs Service strongly urges all parties engaged in transactions relating to the importation of goods into the United States to obtain binding advice from the U.S. Customs Service prior to undertaking that transaction.

In the case of importations under the NAFTA, guidance can be obtained by requesting an advance ruling in accordance with Part 181, Subpart I of the Customs Regulations.

16.2 Upon what subject matter may U.S. Customs issue an advance ruling?In compliance with its obligation under Article 509, the U.S. Customs Service will issue advance NAFTA rulings on:

  • Whether materials imported from a non-NAFTA country and used in the production of a good undergo an applicable change in tariff classification under the rules of origin as a result of production occurring entirely in the NAFTA territory;
  • Whether a good satisfies a regional value-content requirement under the transaction value method or under the net cost method;
  • For purposes of determining whether a good satisfies a regional value-content requirement, the appropriate basis or method for value to be applied by an exporter or a producer in Canada or Mexico for calculating the transaction value of the good or of the materials used in the production of the good;
  • For purposes of determining whether a good satisfies a regional value-content requirement, the appropriate basis or method for reasonably allocating costs for calculating the net cost of the good or the value of an intermediate material;
  • Whether a good qualifies as an originating good under the rules of origin;
  • Whether a good that re-enters the United States after having been exported from the United States to Canada or Mexico for repair or alteration qualifies for duty-free treatment;
  • Whether the proposed or actual marking of a good satisfies country of origin marking requirements;
  • Whether an originating good qualifies as a good of Canada or Mexico under Annex 300-B, Annex 302.2 and Chapter Seven of the NAFTA; and,
  • Whether an agricultural good is a qualifying good under Chapter Seven of the NAFTA.

Advance rulings may be requested with respect to prospective, current and ongoing NAFTA transactions. Advance rulings may not be requested on questions arising in connection with an entry of goods that has been liquidated, or in connection with any other completed NAFTA transaction.

16.3 Difference from other kinds of binding rulings issued by U.S. CustomsBinding and pre-classification rulings under Title 19, Code of Federal Regulations, Part 177 (19 C.F.R. 177) will not be issued for the nine subject matter areas noted above. Rulings on these specific topics must be requested in accordance with 19 C.F.R. 181, Subpart I. Questions outside the scope of the nine subject matter areas relating to applicability of NAFTA may be the subject of a binding or pre-classification ruling request under 19 C.F.R. 177.

16.4 Who may request an advance ruling?Importers in the United States, as well as exporters and producers in Canada and Mexico who export their goods to the United States, may request advance NAFTA rulings from U.S. Customs.

Exporters and producers of goods in the United States who export to Canada or Mexico, and importers into Canada and Mexico, may not request advance rulings from the U.S. Customs Service. They should request advance rulings from the customs administrations of Canada and Mexico on how their goods will be treated upon entering the commerce of these countries.

16.5 How to submit a request for an advance rulingIn the United States, advance rulings must be requested in accordance with the procedures described in 19 C.F.R. 181.93. Requests must be written in English and must contain a complete statement of all relevant facts relating to the NAFTA transaction. Such facts include: the names, addresses and other identifying information of all interested parties (if known); the name of the port or place at which any good involved in the transaction will be imported or which will otherwise have jurisdiction with respect to the act or activity described in the transaction; and a description of the transaction itself, appropriate in detail to the subject matter of the requested advance ruling.

Requests for advance rulings shall be accompanied by photographs, drawings, or other pictorial representations of the good and, whenever possible, by a sample of the good unless a precise description is not essential to the advance ruling requested. Any good consisting of materials in chemical or physical combination for which a laboratory analysis has been prepared by or for the manufacturer should include a copy of that analysis, flow charts, CA number, and related information. Samples become part of the Customs file and will be retained until the advance ruling is issued or the advance ruling request is otherwise disposed of. All or part of a sample may be damaged or consumed in the course of examination, testing, analysis, or other actions undertaken in connection with the advance ruling request. If the question presented in the advance ruling request directly relates to matters set forth in any invoice, contract, agreement, or other document, a copy of the document must be submitted. (Original documents should not be submitted since they will not be returned.) The relevant facts reflected in any documents submitted, and an explanation of their bearing on the question presented, must be expressly set forth in the advance ruling request.

Interested parties should consult 19 C.F.R.181.93(b)(2) for guidelines on what details are needed for each of the subject matter described in items 1 through 9 above.

Information which is claimed to constitute trade secrets or privileged or confidential commercial or financial information regarding the business transactions of private parties the disclosure of which would cause substantial harm to the competitive position of the person making the request (or of another interested party) must be identified clearly, and the reasons such information should not be disclosed, including, where applicable, the reasons the disclosure of the information would prejudice the competitive position of the person making the request (or of another interested party), must be set forth. An advance ruling will not be issued until all trade secret, privilege or confidentiality issues are resolved.

16.6 Oral discussion of issuesGenerally an oral discussion of issues will be scheduled only when, in the opinion of the Customs personnel by whom the advance ruling request is under consideration, a conference will be helpful in deciding the issue or issues involved or when a determination or conclusion contrary to that advocated in the advance ruling request is contemplated. Conferences are scheduled for the purpose of affording the parties an opportunity to freely and openly discuss the matters set forth in the advance ruling request. Accordingly, the parties will not be bound by any argument or position advocated or agreed to, expressly or by implication, during the conference unless either party subsequently agrees to be bound in writing. The conference will not conclude with the issuance of an advance ruling letter.

A person submitting a request for an advance ruling and wishing an opportunity to orally discuss the issue or issues involved should indicate that wish in writing at the time the advance ruling request is filed.

If a request for a conference is granted, the person making the request will be notified of the time and place of the conference. No more than one conference with respect to the matters set forth in the advance ruling request will be scheduled, unless, in the opinion of the Customs personnel by whom the advance ruling request is under consideration, additional conferences are necessary.

The person submitting the request for an advance ruling must provide for inclusion in the Customs file a written record setting forth any and all additional information, documents, and exhibits introduced during the conference to the extent that person considers such material relevant to the consideration of the advance ruling request. Such information, documents and exhibits shall be given consideration only if received by Customs within 30 calendar days following the conference.

16.7 May a request be made for immediate consideration?Customs will normally process requests for advance rulings in the order that they are received and as expeditiously as possible. However, a request that a particular matter be given consideration ahead of its regular order, if made in writing at the time the request is submitted or thereafter, and showing a clear need for such treatment, will be given consideration as the particular circumstances warrant and permit.

Requests for special consideration made by telegram or electronic transmission will be treated in the same manner as requests made by letter, but advance rulings will not be issued by telegram or electronic transmission. A telegram or electronic transmission must be followed up with a signed original within 14 calendar days of the submission or the telegram or electronic transmission. In no event can Customs give an assurance that a particular request for an advance ruling will be fully acted upon by the time which is requested.

16.8 Issuance of advance rulingsGenerally Customs will, within 120 calendar days of receipt of a request in proper form, including any required supplemental information, issue an advance ruling letter in English setting forth the position of Customs and its reasoning with respect to a specific transaction.

Requests for an advance ruling that do not contain adequate information will be answered by an information letter or, in those situations in which general information is likely to be of little or no value, by a letter stating that no advance ruling can be issued.

In the course of evaluating the advance ruling request Customs may solicit supplemental information from the person requesting the advance ruling. The submission of supplemental information will extend the time for response. The time for response will also be extended if it is necessary to obtain information from other government agencies or to perform a laboratory analysis.

16.9 Importer obligationsAny importer with respect to which an advance ruling letter has been issued either must ensure that a copy of the advance ruing letter is attached to the documents filed with the appropriate Customs office in connection with that transaction or must otherwise indicate that an advance ruling has been received. Any person receiving an advance ruling stating Customs' determination must set forth such determination in the documents or information filed in connection with any subsequent entry of that merchandise. Failure to do so may result in a rejection of the entry and the imposition of such penalties as may be appropriate. An advance ruling received after the filing of such documents or information must immediately be brought to the attention of the appropriate Customs field office.

16.10 Disclosure of NAFTA advance ruling lettersNo part of an advance ruling letter, including names, addresses, or information relating to the business transactions of private parties, shall be deemed to constitute privileged or confidential commercial or financial information or trade secrets exempt from disclosure unless the information claimed to be exempt from disclosure is clearly identified and a valid basis for nondisclosure is set forth. Before the issuance of the advance ruling letter, the person submitting the advance ruling request will be notified of any decision adverse to a request for nondisclosure and will, upon written request to Customs within 10 working days of the date of notification, be permitted to withdraw the advance ruling request. If in the opinion of Customs an impasse exists on the issue of confidentiality and the person who submitted the advance ruling request does not withdraw the request, Customs will decline to issue the advance ruling. All advance ruling letters issued by Customs will be available, upon written request, for inspection and copying by any person (with any portions determined to exempt from disclosure deleted).

16.11 Penalties for misrepresentation, omission or noncomplianceIf Customs determines that an issued advance ruling was based on incorrect information, the person to whom the advance ruling was issued may be subject to appropriate penalties unless that person demonstrates that he used reasonable care and acted in good faith in presenting the facts and circumstances on which the advance ruling was based. In addition, Customs may apply such measures as the circumstances may warrant in a case where a person to whom an advance ruling was issued has failed to act in accordance with the terms and conditions of the advance ruling.

16.12 Where should Advance Ruling requests be sent?NAFTA advance rulings concerning the three (3) issues:

  • Whether a good satisfies a regional value-content requirement under the transaction value method or under the net cost method;
  • For purposes of determining whether a good satisfies a regional value-content requirement, the appropriate basis or method for value to be applied by an exporter or a producer in Canada or Mexico for calculating the transaction value of the good or of the materials used in the production of the good; or,
  • For purposes of determining whether a good satisfies a regional value-content requirement, the appropriate basis or method for reasonably allocating costs for calculating the net cost of the good or the value of an intermediate material,

must be requested from:

U.S. Customs and Border Protection
Office of Trade, Regulations and Rulings
90 K Street, NW
Washington, D.C. 20229

Rulings concerning any other issue permitted to be ruled upon within the scope of 19 C.F.R. 181.92(b)(6), including country of origin marking requirements, may be directed to either:

U.S. Customs and Border Protection
Office of Trade, Regulations and Rulings
90 K Street, NW
Washington, D.C. 20229

OR

National Commodity Specialist Division
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, New Jersey 07102

An advance ruling number may be cited as authority in the disposition of transactions involving the same circumstances as that which was ruled upon. It is important to keep in mind, however, that no person other than to whom the ruling letter was addressed may rely on that ruling letter or assume that the principles of the advance ruling will be applied in connection with any transaction other than the one described in the letter. In general, an advance ruling is binding on all Customs personnel until such time it is modified or revoked. Exporters and producers of goods in the United States who export to Canada or Mexico, and importers into Canada or Mexico, may not request advance rulings from the U.S. Customs Service. They should request advance rulings from the customs administrations of Canada and Mexico on how their goods will be treated upon entering the commerce of these countries.

For advance ruling requests from Canada:

Inquirers seeking advance rulings from Canada Customs should refer to D-Memoranda number D11-4-16 available on the CCRA website.

The advance ruling request should be delivered or sent by registered mail to Trade Administration Services, Client Services Division, in the customs region in which the bulk of the importations is expected to occur. The letter should be marked "Attention: Advance Rulings Request."

Atlantic Region P.O. Box 3080
Halifax South Postal Station
1557 Hollis Street
Halifax NS B3J 3G6
Canada

Quebec Region(Montreal)
400 d'Youville
Montreal QC H2Y 2C2
Canada

(Quebec)
P.O. Box 2267
130 Dalhousie Street
Quebec QC G1K 7P6
Canada

Northern Ontario Region

(Ottawa)
11th Floor
333 Laurier Avenue West
Ottawa ON K1A 0L9
Canada

Southern Ontario Region(Toronto)
P.O. Box 10, Station "A"
1 Front Street W.
Toronto ON M5W 1A3
Canada

(Hamilton)
P.O. Box 2989
26 Arrowsmith Road
Hamilton ON L8N 3V8
Canada

(London)
P.O. Box 5940
451 Talbot Street
London ON N6A 4T9
Canada

(Windsor)
P.O. Box 1655
Windsor ON N9A 7G7
Canada

Prairie Region

(Winnipeg)
Federal Building
269 Main Street
Winnipeg MB R3C 1B3
Canada

(Calgary)
Room 320 Harry Hays Building
220 - 4th Avenue S.E.
Calgary AB T2G 4X3
Canada

Pacific Region

503 - 333 Dunsmuir Street
Vancouver BC V6B 5R4
Canada

For advance ruling requests from Mexico:

Requests should be addressed to:

Direccion General
Juricida
Avenida Hidalgo #77
Modulo 1, tercer Piso
Colonia Guerrero
Mexico, D.F. C.P. 06300

Last modified: 
March 8, 2017
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