SUBCHAPTER II—CUSTOMS PROVISIONS
§4531. Rules of origin
(a) Definitions
In this section:
(1) Aquaculture
The term "aquaculture" means the farming of aquatic organisms, including fish, molluscs, crustaceans, other aquatic invertebrates, and aquatic plants from seed stock such as eggs, fry, fingerlings, or larvae, by intervention in the rearing or growth processes to enhance production such as regular stocking, feeding, or protection from predators.
(2) Customs Valuation Agreement
The term "Customs Valuation Agreement" means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 referred to in
(3) Fungible good or fungible material
The term "fungible good" or "fungible material" means a good or material, as the case may be, that is interchangeable with another good or material for commercial purposes and the properties of which are essentially identical to such other good or material.
(4) Good wholly obtained or produced entirely in the territory of one or more USMCA countries
The term "good wholly obtained or produced entirely in the territory of one or more USMCA countries" means any of the following:
(A) A mineral good or other naturally occurring substance extracted or taken from the territory of one or more USMCA countries.
(B) A plant, plant good, vegetable, or fungus grown, cultivated, harvested, picked, or gathered in the territory of one or more USMCA countries.
(C) A live animal born and raised in the territory of one or more USMCA countries.
(D) A good obtained in the territory of one or more USMCA countries from a live animal.
(E) An animal obtained by hunting, trapping, fishing, gathering, or capturing in the territory of one or more USMCA countries.
(F) A good obtained in the territory of one or more USMCA countries from aquaculture.
(G) A fish, shellfish, or other marine life taken from the sea, seabed, or subsoil outside the territory of one or more USMCA countries and outside the territorial sea of any country that is not a USMCA country by—
(i) a vessel that is registered or recorded with a USMCA country and flying the flag of that country; or
(ii) a vessel that is documented under the laws of the United States.
(H) A good produced on board a factory ship from goods referred to in subparagraph (G), if such factory ship—
(i) is registered or recorded with a USMCA country and flies the flag of that country; or
(ii) is a vessel that is documented under the laws of the United States.
(I) A good, other than a good referred to in subparagraph (G), that is taken by a USMCA country, or a person of a USMCA country, from the seabed or subsoil outside the territory of a USMCA country, if that USMCA country has the right to exploit such seabed or subsoil.
(J) Waste and scrap derived from—
(i) production in the territory of one or more USMCA countries; or
(ii) used goods collected in the territory of one or more USMCA countries, if such goods are fit only for the recovery of raw materials.
(K) A good produced in the territory of one or more USMCA countries exclusively from goods referred to in any of subparagraphs (A) through (J), or from their derivatives, at any stage of production.
(5) Indirect material
The term "indirect material" means a material used or consumed in the production, testing, or inspection of a good but not physically incorporated into the good, or a material used or consumed in the maintenance of buildings or the operation of equipment associated with the production of a good, including—
(A) fuel and energy;
(B) tools, dies, and molds;
(C) spare parts and materials used or consumed in the maintenance of equipment or buildings;
(D) lubricants, greases, compounding materials, and other materials used or consumed in production or to operate equipment or buildings;
(E) gloves, glasses, footwear, clothing, safety equipment, and supplies;
(F) equipment, devices, and supplies used for testing or inspecting the good;
(G) catalysts and solvents; and
(H) any other material that is not incorporated into the good, if the use of the material in the production of the good can reasonably be demonstrated to be a part of that production.
(6) Intermediate material
The term "intermediate material" means a material that is self-produced, used or consumed in the production of a good, and designated as an intermediate material pursuant to subsection (d)(9).
(7) Material
The term "material" means a good that is used or consumed in the production of another good and includes a part or an ingredient.
(8) Net cost
The term "net cost" means total cost minus sales promotion, marketing, and after-sales service costs, royalties, shipping and packing costs, and nonallowable interest costs that are included in the total cost.
(9) Net cost of a good
The term "net cost of a good" means the net cost that can be reasonably allocated to a good using one of the methods set forth in subsection (d)(7).
(10) Nonallowable interest costs
The term "nonallowable interest costs" means interest costs incurred by a producer that exceed 700 basis points above the applicable official interest rate for comparable maturities of the country in which the producer is located.
(11) Nonoriginating good or nonoriginating material
The term "nonoriginating good" or "nonoriginating material" means a good or material, as the case may be, that does not qualify as originating under this section.
(12) Originating good; originating material
The term "originating good" or "originating material" means a good or material, as the case may be, that qualifies as originating under this section.
(13) Packaging materials and containers
The term "packaging materials and containers" means materials and containers in which a good is packaged for retail sale.
(14) Packing materials and containers
The term "packing materials and containers" means materials and containers that are used to protect a good during transportation.
(15) Producer
The term "producer" means a person who engages in the production of a good.
(16) Production
The term "production" means—
(A) growing, cultivating, raising, mining, harvesting, fishing, trapping, hunting, capturing, breeding, extracting, manufacturing, processing, or assembling a good; or
(B) the farming of aquatic organisms through aquaculture.
(17) Reasonably allocate
The term "reasonably allocate" means to apportion in a manner appropriate to the circumstances.
(18) Recovered material
The term "recovered material" means a material in the form of individual parts that are the result of—
(A) the disassembly of a used good into individual parts; and
(B) the cleaning, inspecting, testing, or other processing that is necessary for improvement to sound working condition of such individual parts.
(19) Remanufactured good
The term "remanufactured good" means a good classified in the HTS under any of chapters 84 through 90 or under heading 9402, other than a good classified under heading 8418, 8509, 8510, 8516, or 8703 or subheading 8414.51, 8450.11, 8450.12, 8508.11, or 8517.11, that—
(A) is entirely or partially composed of recovered materials;
(B) has a life expectancy similar to, and performs in a manner that is the same as or similar to, such a good when new; and
(C) has a factory warranty similar to that applicable to such a good when new.
(20) Royalties
The term "royalties" means payments of any kind, including payments under technical assistance or similar agreements, made as consideration for the use of, or right to use, a copyright, literary, artistic, or scientific work, patent, trademark, design, model, plan, or secret formula or secret process, excluding payments under technical assistance or similar agreements that can be related to a specific service such as—
(A) personnel training, without regard to where the training is performed; or
(B) if performed in the territory of one or more USMCA countries, engineering, tooling, die-setting, software design and similar computer services, or other services.
(21) Sales promotion, marketing, and after-sales service costs
The term "sales promotion, marketing, and after-sales service costs" means the costs related to sales promotion, marketing, and after-sales service for the following:
(A) Sales and marketing promotion, media advertising, advertising and market research, promotional and demonstration materials, exhibits, sales conferences, trade shows, conventions, banners, marketing displays, free samples, sales, marketing, and after-sales service literature (product brochures, catalogs, technical literature, price lists, service manuals, and sales aid information), establishment and protection of logos and trademarks, sponsorships, wholesale and retail charges, and entertainment.
(B) Sales and marketing incentives, consumer, retailer, or wholesaler rebates, and merchandise incentives.
(C) Salaries and wages, sales commissions, bonuses, benefits (such as medical, insurance, and pension benefits), traveling and living expenses, and membership and professional fees for sales promotion, marketing, and after-sales service personnel.
(D) Product liability insurance.
(E) Rent and depreciation of sales promotion, marketing, and after-sales service offices and distribution centers.
(F) Payments by the producer to other persons for warranty repairs.
(G) If the costs are identified separately for sales promotion, marketing, or after-sales service of goods on the financial statements or cost accounts of the producer, the following:
(i) Property insurance premiums, taxes, utilities, and repair and maintenance of sales promotion, marketing, and after-sales service offices and distribution centers.
(ii) Recruiting and training of sales promotion, marketing, and after-sales service personnel, and after-sales training of customers' employees.
(iii) Office supplies for sales promotion, marketing, and after-sales service of goods.
(iv) Telephone, mail, and other communications.
(22) Self-produced material
The term "self-produced material" means a material that is produced by the producer of a good and used in the production of that good.
(23) Shipping and packing costs
The term "shipping and packing costs" means the costs incurred in packing a good for shipment and shipping the good from the point of direct shipment to the buyer, excluding the costs of preparing and packaging the good for retail sale.
(24) Territory
The term "territory", with respect to a USMCA country, has the meaning given that term in section C of
(25) Total cost
(A) In general
The term "total cost"—
(i) means all product costs, period costs, and other costs for a good incurred in the territory of one or more USMCA countries; and
(ii) does not include—
(I) profits that are earned by the producer of the good, regardless of whether the costs are retained by the producer or paid out to other persons as dividends; or
(II) taxes paid on those profits, including capital gains taxes.
(B) Other definitions
In this paragraph:
(i) Other costs
The term "other costs" means all costs recorded on the books of the producer that are not product costs or period costs, such as interest.
(ii) Period costs
The term "period costs" means costs, other than product costs, that are expensed in the period in which they are incurred, such as selling expenses and general and administrative expenses.
(iii) Product costs
The term "product costs" means costs that are associated with the production of a good, including the value of materials, direct labor costs, and direct overhead.
(26) Transaction value
The term "transaction value" means the price—
(A) actually paid or payable for a good or material with respect to a transaction of a producer; and
(B) adjusted in accordance with the principles set forth in paragraphs 1, 3, and 4 of article 8 of the Customs Valuation Agreement.
(27) USMCA country
The term "USMCA country" means the United States, Canada, or Mexico for such time as the USMCA is in force with respect to Canada or Mexico, and the United States applies the USMCA to Canada or Mexico.
(28) Value
The term "value" means the value of a good or material for purposes of calculating customs duties or applying this section.
(b) Application and interpretation
In this section:
(1) Tariff classification
The basis for any tariff classification is the HTS.
(2) Reference to HTS
Whenever in this section there is a reference to a chapter, heading, or subheading, that reference shall be a reference to a chapter, heading, or subheading of the HTS.
(3) Cost or value
Any cost or value referred to in this section with respect to a good shall be recorded and maintained in accordance with the generally accepted accounting principles applicable in the territory of the USMCA country in which the good is produced.
(c) Originating goods
(1) In general
For purposes of this Act and for purposes of implementing the preferential tariff treatment provided for under the USMCA, except as otherwise provided in this section, a good is an originating good if—
(A) the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
(B) the good is produced entirely in the territory of one or more USMCA countries using nonoriginating materials, if the good satisfies all applicable requirements set forth in Annex 4–B of the USMCA; or
(C) the good is produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
(D) except for a good provided for under any of chapters 61 through 63—
(i) the good is produced entirely in the territory of one or more USMCA countries;
(ii) one or more of the nonoriginating materials provided for as parts under the HTS and used in the production of the good do not satisfy the requirements set forth in Annex 4–B of the USMCA because—
(I) both the good and its materials are classified under the same subheading or under the same heading that is not further subdivided into subheadings; or
(II) the good was imported into the territory of a USMCA country in an unassembled form or a disassembled form but was classified as an assembled good pursuant to rule 2(a) of the General Rules of Interpretation of the HTS; and
(iii) the regional value content of the good is not less than 60 percent if the transaction value method is used, or not less than 50 percent if the net cost method is used and the good satisfies all other applicable requirements of this section; or
(E) the good itself, as imported, is listed in table 2.10.1 of the USMCA and is imported into the territory of the United States from the territory of a USMCA country.
(2) Remanufactured goods
For purposes of determining whether a remanufactured good is an originating good, a recovered material derived in the territory of one or more USMCA countries shall be treated as originating if the recovered material is used or consumed in the production of, and incorporated into, the remanufactured good.
(3) Special rule for foreign-trade zones
Paragraph (1)(B) shall not apply to a good produced in a foreign-trade zone or subzone established pursuant to the Act of June 18, 1934 (commonly known as the "Foreign Trade Zones Act") (
(d) Regional value content
(1) In general
Except as provided in paragraph (5), for purposes of subparagraphs (B) and (D) of subsection (c)(1), the regional value content of a good shall be calculated, at the choice of the importer, exporter, or producer of the good, on the basis of—
(A) the transaction value method described in paragraph (2); or
(B) the net cost method described in paragraph (3).
(2) Transaction value method
(A) In general
An importer, exporter, or producer of a good may calculate the regional value content of the good on the basis of the following transaction value method:
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(B) Definitions
In this paragraph:
(i) RVC
The term "RVC" means the regional value content of the good, expressed as a percentage.
(ii) TV
The term "TV" means the transaction value of the good, adjusted to exclude any costs incurred in the international shipment of the good.
(iii) VNM
The term "VNM" means the value of nonoriginating materials used by the producer in the production of the good.
(3) Net cost method
(A) In general
An importer, exporter, or producer of a good may calculate the regional value content of the good on the basis of the following net cost method:
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(B) Definitions
In this paragraph:
(i) NC
The term "NC" means the net cost of the good.
(ii) RVC
The term "RVC" means the regional value content of the good, expressed as a percentage.
(iii) VNM
The term "VNM" means the value of nonoriginating materials used by the producer in the production of the good.
(4) Value of nonoriginating materials
(A) In general
The value of nonoriginating materials used by the producer in the production of a good shall not, for purposes of calculating the regional value content of the good under paragraph (2) or (3), include the value of nonoriginating materials used or consumed to produce originating materials that are subsequently used or consumed in the production of the good.
(B) Special rule for certain components
The following components of the value of nonoriginating materials used by the producer in the production of a good may be counted as originating content for purposes of determining whether the good meets the regional value content requirement set forth in Annex 4–B of the USMCA:
(i) The value of processing the nonoriginating materials undertaken in the territory of one or more USMCA countries.
(ii) The value of any originating materials used or consumed in the production of the nonoriginating materials undertaken in the territory of one or more USMCA countries.
(5) Net cost method required in certain cases
An importer, exporter, or producer of a good shall calculate the regional value content of the good solely on the basis of the net cost method described in paragraph (3) if the rule for the good set forth in Annex 4–B of the USMCA includes a regional value content requirement not based on the transaction value method described in paragraph (2).
(6) Net cost method allowed for adjustments
(A) In general
If an importer, exporter, or producer of a good calculates the regional value content of the good on the basis of the transaction value method described in paragraph (2) and a USMCA country subsequently notifies the importer, exporter, or producer, during the course of a verification conducted in accordance with
(B) Review of adjustment
Nothing in subparagraph (A) shall be construed to prevent any review or appeal available in accordance with article 5.15 of the USMCA with respect to an adjustment to or a rejection of—
(i) the transaction value of a good; or
(ii) the value of any material used in the production of a good.
(7) Calculating net cost
The producer of a good may, consistent with regulations implementing this section, calculate the net cost of the good under paragraph (3) by—
(A) calculating the total cost incurred with respect to all goods produced by that producer, subtracting any sales promotion, marketing, and after-sales services costs, royalties, shipping and packing costs, and nonallowable interest costs that are included in the total cost of those goods, and then reasonably allocating the resulting net cost of those goods to the good;
(B) calculating the total cost incurred with respect to all goods produced by that producer, reasonably allocating the total cost to the good, and subtracting any sales promotion, marketing, and after-sales service costs, royalties, shipping and packing costs, and nonallowable interest costs, that are included in the portion of the total cost allocated to the good; or
(C) reasonably allocating each cost that is part of the total cost incurred with respect to the good so that the aggregate of those costs does not include any sales promotion, marketing, and after-sales service costs, royalties, shipping and packing costs, and nonallowable interest costs.
(8) Value of materials used in production
For purposes of calculating the regional value content of a good under this subsection, applying the de minimis rules under subsection (f), and calculating the value of nonoriginating components in a set under subsection (m), the value of a material used in the production of a good is—
(A) in the case of a material that is imported by the producer of the good, the transaction value of the material at the time of importation, including the costs incurred in the international shipment of the material;
(B) in the case of a material acquired in the territory in which the good is produced—
(i) the price paid or payable by the producer in the USMCA country where the producer is located;
(ii) the value as determined under subparagraph (A), as set forth in regulations prescribed by the Secretary of the Treasury providing for the application of transaction value in the absence of an importation by the producer; or
(iii) the earliest ascertainable price paid or payable in the territory of the country; or
(C) in the case of a self-produced material, the sum of—
(i) all expenses incurred in the production of the material, including general expenses; and
(ii) an amount for profit equivalent to the profit added in the normal course of trade or equal to the profit that is usually reflected in the sale of goods of the same class or kind as the material.
(9) Intermediate materials
(A) In general
Any self-produced material that is used in the production of a good may be designated by the producer of the good as an intermediate material for purposes of calculating the regional value content of the good under paragraph (2) or (3).
(B) Materials used in production of intermediate materials
If a self-produced material is designated as an intermediate material under subparagraph (A) for purposes of calculating a regional value content requirement, no other self-produced material subject to a regional value content requirement used or consumed in the production of that intermediate material may be designated by the producer as an intermediate material.
(10) Further adjustments to value of materials
The following expenses, if included in the value of a nonoriginating material calculated under paragraph (8), may be deducted from the value of the nonoriginating material:
(A) The costs of freight, insurance, packing, and all other costs incurred in transporting the material to the location of the producer.
(B) Duties, taxes, and customs brokerage fees on the material paid in the territory of one or more USMCA countries, other than duties or taxes that are waived, refunded, refundable, or otherwise recoverable, including credit against duty or tax paid or payable.
(C) The cost of waste and spoilage resulting from the use of the material in the production of the good, less the value of renewable scrap or byproducts.
(e) Accumulation
(1) Producers
A good that is produced in the territory of one or more USMCA countries, by one or more producers, is an originating good if the good satisfies the requirements of subsection (c) and all other applicable requirements of this section.
(2) Originating materials used in production of goods of a USMCA country
Originating materials from the territory of one or more USMCA countries that are used in the production of a good in the territory of another USMCA country shall be considered to originate in the territory of such other USMCA country.
(3) Production undertaken on nonoriginating materials used in the production of goods
In determining whether a good is an originating good under this section, production undertaken on nonoriginating material in the territory of one or more USMCA countries by one or more producers shall contribute to the originating status of the good, regardless of whether that production is sufficient to confer originating status to the nonoriginating material.
(f) De minimis amounts of nonoriginating materials
(1) In general
Except as provided in paragraphs (2) through (4), a good that does not undergo a change in tariff classification or satisfy a regional value content requirement set forth in Annex 4–B of the USMCA is an originating good if—
(A) the value of all nonoriginating materials that are used in the production of the good, and do not undergo the applicable change in tariff classification set forth in Annex 4–B of the USMCA—
(i) does not exceed 10 percent of the transaction value of the good, adjusted to exclude any costs incurred in the international shipment of the good; or
(ii) does not exceed 10 percent of the total cost of the good;
(B) the good meets all other applicable requirements of this section; and
(C) the value of such nonoriginating materials is included in the value of nonoriginating materials for any applicable regional value content requirement for the good.
(2) Exceptions for dairy and other products
Paragraph (1) does not apply to the following:
(A) A nonoriginating material of headings 0401 through 0406, or a nonoriginating dairy preparation containing over 10 percent by dry weight of milk solids of subheading 1901.90 or 2106.90, used or consumed in the production of a good of headings 0401 through 0406.
(B) A nonoriginating material of headings 0401 through 0406, or nonoriginating dairy preparation containing over 10 percent by dry weight of milk solids of subheading 1901.90 or 2106.90, used or consumed in the production of any of the following goods:
(i) Infant preparations containing over 10 percent by dry weight of milk solids, of subheading 1901.10.
(ii) Mixes and doughs containing over 25 percent by dry weight of butterfat, not put up for retail sale, of subheading 1901.20.
(iii) A dairy preparation containing over 10 percent by dry weight of milk solids, of subheading 1901.90 or 2106.90.
(iv) A good of heading 2105.
(v) Beverages containing milk of subheading 2202.90.
(vi) Animal feeds containing over 10 percent by dry weight of milk solids of subheading 2309.90.
(C) A nonoriginating material of heading 0805, or any of subheadings 2009.11 through 2009.39, used or consumed in the production of a good of subheadings 2009.11 through 2009.39, or a fruit or vegetable juice of any single fruit or vegetable, fortified with minerals or vitamins, concentrated or unconcentrated, of subheading 2106.90 or 2202.90.
(D) A nonoriginating material of
(E) A nonoriginating material of
(F) A nonoriginating material of heading 1701 used or consumed in the production of a good of any of headings 1701 through 1703.
(G) A nonoriginating material of
(H) Nonoriginating peaches, pears, or apricots of
(I) A nonoriginating single juice ingredient of heading 2009 used or consumed in the production of a good of—
(i) subheading 2009.90, or tariff item 2106.90.54 (concentrated mixtures of fruit or vegetable juice, fortified with minerals or vitamins); or
(ii) tariff item 2202.99.37 (mixtures of fruit or vegetable juices, fortified with minerals or vitamins).
(J) A nonoriginating material of any of headings 2203 through 2208 used or consumed in the production of a good provided for under heading 2207 or 2208.
(3) Goods provided for under chapters 1 through 27
Paragraph (1) does not apply to a nonoriginating material used or consumed in the production of a good provided for in chapters 1 through 27 unless the nonoriginating material is provided for in a different subheading than the subheading of the good for which origin is being determined.
(4) Textile or apparel goods
(A) Goods classified under chapters 50 through 60
Except as provided in subparagraph (C), a textile or apparel good provided for in any of chapters 50 through 60 or heading 9619 that is not an originating good because certain nonoriginating materials used in the production of the good do not undergo an applicable change in tariff classification set forth in Annex 4–B of the USMCA, shall be considered to be an originating good if the total weight of all such materials, including elastomeric yarns, is not more than 10 percent of the total weight of the good and the good meets all other applicable requirements of this section.
(B) Goods classified under chapters 61 through 63
Except as provided in subparagraph (C), a textile or apparel good provided for in
(C) Goods containing nonoriginating elastomeric yarns
(i) Goods classified under chapters 50 through 60 or heading 9619
A textile or apparel good described in subparagraph (A) containing nonoriginating elastomeric yarns shall be considered to be an originating good only if the nonoriginating elastomeric yarns contained in the good do not exceed 7 percent of the total weight of the good.
(ii) Goods classified under chapters 61 through 63
A textile or apparel good described in subparagraph (B) containing nonoriginating elastomeric yarns shall be considered to be an originating good only if the nonoriginating elastomeric yarns contained in the component of the good that determines the tariff classification of the good do not exceed 7 percent of the total weight of the good.
(g) Fungible goods and materials
(1) Fungible materials used in production
Subject to paragraph (3), if originating and nonoriginating fungible materials are used or consumed in the production of a good, the determination of whether the materials are originating may be made on the basis of any of the inventory management methods set forth in regulations implementing this section.
(2) Fungible goods commingled and exported
Subject to paragraph (3), if originating and nonoriginating fungible goods are commingled and exported in the same form, the determination of whether the goods are originating may be made on the basis of any of the inventory management methods set forth in regulations implementing this section.
(3) Use of inventory management method
A person that selects an inventory management method for purposes of paragraph (1) or (2) shall use that inventory management method throughout the fiscal year of the person.
(h) Accessories, spare parts, tools, and instructional or other information materials
(1) In general
Subject to paragraph (2), accessories, spare parts, tools, or instructional or other information materials delivered with a good shall—
(A) be treated as originating if the good is an originating good;
(B) be disregarded in determining whether a good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries or satisfies a process or change in tariff classification set forth in Annex 4–B of the USMCA; and
(C) be taken into account as originating or nonoriginating materials, as the case may be, in calculating any applicable regional value content of the good set forth in Annex 4–B of the USMCA.
(2) Conditions
Paragraph (1) shall apply only if—
(A) the accessories, spare parts, tools, or instructional or other information materials are classified with and delivered with, but not invoiced separately from, the good; and
(B) the types, quantities, and value of the accessories, spare parts, tools, or instructional or other information materials are customary for the good.
(i) Packaging materials and containers for retail sale
Packaging materials and containers in which a good is packaged for retail sale, if classified with the good, shall be disregarded in determining whether all of the nonoriginating materials used in the production of the good undergo the applicable process or change in tariff classification requirement set forth in Annex 4–B of the USMCA, or whether the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries. If the good is subject to a regional value content requirement set forth in that Annex, the value of such packaging materials and containers shall be taken into account as originating or nonoriginating materials, as the case may be, in calculating the regional value content of the good.
(j) Packing materials and containers for shipment
Packing materials and containers for shipment shall be disregarded in determining whether a good is an originating good.
(k) Indirect materials
An indirect material shall be treated as an originating material without regard to where it is produced.
(l) Transit and transshipment
A good that has undergone production necessary to qualify as an originating good under subsection (c) shall not be considered to be an originating good if, subsequent to that production, the good—
(1) undergoes further production or any other operation outside the territory of a USMCA country, other than—
(A) unloading, reloading, separation from a bulk shipment, storing, labeling, or marking, as required by a USMCA country; or
(B) any other operation necessary to preserve the good in good condition or to transport the good to the territory of the importing USMCA country; or
(2) does not remain under the control of customs authorities in a country other than a USMCA country.
(m) Goods classifiable as goods put up in sets
(1) Goods other than textile or apparel goods
Notwithstanding the rules set forth in Annex 4–B of the USMCA, goods classifiable as goods put up in sets for retail sale as provided for in rule 3 of the General Rule of Interpretation of the HTS shall not be considered to be originating goods unless—
(A) each of the goods in the set is an originating good; or
(B) the total value of the nonoriginating goods in the set does not exceed 10 percent of the value of the set.
(2) Textile or apparel goods
Notwithstanding the rules set forth in Annex 4–B of the USMCA, goods classifiable as goods put up in sets for retail sale as provided for in rule 3 of the General Rule of Interpretation of the HTS shall not be considered to be originating goods unless—
(A) each of the goods in the set is an originating good; or
(B) the total value of the nonoriginating goods in the set does not exceed 10 percent of the value of the set.
(n) Nonqualifying operations
A good shall not be considered to be an originating good merely by reason of—
(1) mere dilution with water or another substance that does not materially alter the characteristics of the good; or
(2) any production or pricing practice with respect to which it may be demonstrated, by a preponderance of the evidence, that the object of the practice was to circumvent this section.
(o) Effective date
(1) In general
This section shall—
(A) take effect on the date on which the USMCA enters into force; and
(B) apply with respect to a good entered for consumption, or withdrawn from warehouse for consumption, on or after that date.
(2) Transition from NAFTA treatment
Section 202 of the North American Free Trade Agreement Implementation Act (
(
Editorial Notes
References in Text
The Harmonized Tariff Schedule of the United States or HTS, referred to in subsecs. (a)(19), (b)(1), (2), (c)(1)(D)(ii), and (m), is not set out in the Code. See Publication of Harmonized Tariff Schedule note set out under
This Act, referred to in subsec. (c)(1), is
Act of June 18, 1934, referred to in subsec. (c)(3), is act June 18, 1934, ch. 590,
Section 202 of the North American Free Trade Agreement Implementation Act, referred to in subsec. (o)(2), is section 202 of
Amendments
2020—Subsec. (c)(3).
Subsec. (f)(2)(E).
Statutory Notes and Related Subsidiaries
Effective Date of 2020 Amendment
Amendment by
1 So in original. Probably should be followed by a comma.
2 See References in Text note below.
§4532. Special rules for automotive goods
(a) Definitions
In this section:
(1) Alternative staging regime
The term "alternative staging regime" means the application, pursuant to subsection (d), of the requirements of article 8 of the automotive appendix to the production of covered vehicles to allow producers of such vehicles to bring such production into compliance with the requirements of articles 2 through 7 of that appendix.
(2) Alternative staging regime period
The term "alternative staging regime period" means the period during which the alternative staging regime is in effect.
(3) Automotive appendix
The term "automotive appendix" means the Appendix to Annex 4–B of the USMCA (relating to the product-specific rules of origin for automotive goods).
(4) Automotive good
The term "automotive good" means—
(A) a covered vehicle; or
(B) a part, component, or material listed in table A.1, A.2, B, C, D, or E of the automotive appendix.
(5) Automotive rules of origin
The term "automotive rules of origin" means the rules of origin for automotive goods set forth in the automotive appendix.
(6) Commissioner
The term "Commissioner" means the Commissioner of U.S. Customs and Border Protection.
(7) Covered vehicle
The term "covered vehicle" means a passenger vehicle, light truck, or heavy truck.
(8) Interagency committee
The term "interagency committee" means the interagency committee established under subsection (b)(1).
(9) Passenger vehicle; light truck; heavy truck
The terms "passenger vehicle", "light truck", and "heavy truck" have the meanings given those terms in article 1 of the automotive appendix.
(10) USMCA country
The term "USMCA country" means the United States, Canada, or Mexico for such time as the USMCA is in force with respect to Canada or Mexico, and the United States applies the USMCA to Canada or Mexico.
(b) Establishment of interagency committee
(1) In general
Not later than 30 days after January 29, 2020, the President shall establish an interagency committee—
(A) to provide advice, as appropriate, on the implementation, enforcement, and modification of provisions of the USMCA that relate to automotive goods, including the alternative staging regime; and
(B) to review the operation of the USMCA with respect to trade in automotive goods, including—
(i) the economic effects of the automotive rules of origin on the United States economy, workers, and consumers; and
(ii) the impact of new technology on such rules of origin.
(2) Members
The members of the interagency committee shall be the following:
(A) The Trade Representative.
(B) The Secretary of Commerce.
(C) The Commissioner.
(D) The Secretary of Labor.
(E) The Chair of the International Trade Commission.
(F) Any other members determined to be necessary by the Trade Representative.
(3) Chair
The chair of the interagency committee shall be the Trade Representative.
(4) Use of information
(A) Information sharing
Notwithstanding any other provision of law, the members of the interagency committee may exchange information for purposes of carrying out this section.
(B) Confidentiality of information
The interagency committee and any Federal agency represented on the interagency committee may not disclose to the public any confidential documents or information received in the course of carrying out this section, except information aggregated to preserve confidentiality and used in the reports described in subsection (g).
(c) Certification requirements
(1) Certification relating to labor value content requirements
(A) In general
A covered vehicle shall be eligible for preferential tariff treatment only if the producer of the covered vehicle—
(i) provides a certification to the Commissioner that the production of covered vehicles by the producer meets the labor value content requirements, including the high-wage material and manufacturing expenditures, high-wage technology expenditures, and high-wage assembly expenditures, as set forth in article 7 of the automotive appendix or, if the producer is subject to the alternative staging regime, articles 7 and 8 of that appendix, and includes the calculations of the producer related to the labor value content requirements; and
(ii) has information on record to support those calculations.
(B) Implementation
For purposes of meeting the requirements under subparagraph (A)—
(i) the Secretary of Labor, in consultation with the Commissioner, shall ensure that the certification of a producer under subparagraph (A)(i) does not contain omissions or errors before the certification is considered properly filed; and
(ii) a calculation described in subparagraph (A)(i) based on a producer's preceding fiscal or calendar year is valid for the producer's subsequent fiscal or calendar year, as the case may be, as set forth in articles 7 and 8 of the automotive appendix.
(C) Regulations required
The Secretary of the Treasury, in consultation with the Secretary of Labor, shall prescribe regulations to carry out this paragraph, including regulations setting forth the procedures and requirements for a producer of covered vehicles to establish that the producer meets the labor value content requirements for preferential tariff treatment.
(2) Certification relating to steel and aluminum purchase requirements
(A) In general
A covered vehicle shall be eligible for preferential tariff treatment only if the producer of the covered vehicle—
(i) provides a certification to the Commissioner that the production of covered vehicles by the producer meets the steel and aluminum purchase requirements set forth in article 6 of the automotive appendix or, if the producer is subject to the alternative staging regime, articles 6 and 8 of that appendix; and
(ii) has information on record to support the calculations relied on for the certification.
(B) Implementation
For purposes of meeting the requirements under subparagraph (A)—
(i) the Commissioner shall ensure that the certification of a producer under subparagraph (A)(i) does not contain omissions or errors before the certification is considered properly filed; and
(ii) a calculation described in subparagraph (A)(ii) based on a producer's preceding fiscal or calendar year is valid for the producer's subsequent fiscal or calendar year, as the case may be, as set forth in articles 6 and 8 of the automotive appendix.
(C) Regulations required
The Secretary of the Treasury shall prescribe regulations to carry out this paragraph, including regulations setting forth the procedures and requirements for a producer of covered vehicles to establish that the producer meets the steel and aluminum purchase requirements for preferential tariff treatment.
(d) Alternative staging regime
(1) Publication of requirements
Not later than 90 days after January 29, 2020, the Trade Representative, in consultation with the interagency committee, shall publish in the Federal Register requirements, procedures, and guidance required to implement the alternative staging regime, including with respect to the following:
(A) The procedures, calculation methodology, timeframe, specific regional value content thresholds, and other minimum requirements, consistent with article 8 of the automotive appendix, with which a producer of covered vehicles subject to the alternative staging regime is required to comply during the alternative staging regime period for such vehicles to be eligible for preferential tariff treatment pursuant to the alternative staging regime.
(B) The date by which requests for the alternative staging regime are required to be submitted.
(C) The information a producer of passenger vehicles or light trucks is required to provide, in the producer's request to use the alternative staging regime, to demonstrate the actions that the producer will take to be prepared to meet all the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period has expired, including the following:
(i) A statement identifying which of the requirements set forth in articles 2 through 7 of the automotive appendix that the producer expects it will be unable to meet upon entry into force of the USMCA based on current business plans.
(ii) A statement indicating whether the passenger vehicles or light trucks for which the producer seeks to use the alternative staging regime account for 10 percent or less, or more than 10 percent, of the total production of passenger vehicles or light trucks, as the case may be, in USMCA countries by the producer during the 12-month period preceding the date on which the USMCA enters into force, or the average of such production during the 36-month period preceding that date, whichever is greater.
(iii) In the case of a producer that seeks to use the alternative staging regime for more than 10 percent of the producer's total production of passenger vehicles or light trucks, as the case may be, in USMCA countries—
(I) a detailed and credible plan describing with specificity the actions the producer intends to take to bring production of the passenger vehicles or light trucks, as the case may be, into compliance with the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period expires; and
(II) a statement indicating the time period for which the producer is requesting to use the alternative staging regime, if that time period is greater than 5 years after the USMCA enters into force.
(D) The procedures for accepting and reviewing requests for the alternative staging regime, including that the Trade Representative will—
(i) notify a producer of any deficiencies in the request of the producer that would result in a denial of the request not later than 30 days after the request is submitted; and
(ii) provide producers the opportunity to submit supplemental information.
(E) The criteria the Trade Representative, in consultation with the interagency committee, will consider when determining whether to approve a request for the alternative staging regime. Such criteria shall only include elements necessary for the producer to demonstrate the producer's ability to meet the requirements specified in subparagraphs (A) and (B). The criteria shall also describe the information to meet those requirements in sufficient detail to allow the producer to identify the information necessary to complete a request for the alternative staging regime.
(F) The opportunity for a producer described in subparagraph (C)(iii) to modify the producer's request for the alternative staging regime.
(2) Review of requests for alternative staging regime
(A) In general
In reviewing the request of a producer of passenger vehicles or light trucks for the alternative staging regime, the Trade Representative, in consultation with the interagency committee, shall determine—
(i) whether the request covers 10 percent or less, or more than 10 percent, of the production of passenger vehicles or light trucks in USMCA countries by the producer; and
(ii) whether the producer has identified with specificity which of the requirements set forth in articles 2 through 7 of the automotive appendix the producer is unable to meet based on current business plans.
(B) Approval of alternative staging regime for passenger vehicle or light truck production not exceeding 10 percent of North American production
The Trade Representative shall authorize the use of the alternative staging regime if the Trade Representative, in consultation with the interagency committee, determines that—
(i) the request for the alternative staging regime covers passenger vehicles or light trucks that do not exceed 10 percent of the production of passenger vehicles or lights 1 trucks, as the case may be, in USMCA countries by the producer; and
(ii) the producer has identified with specificity which of the requirements set forth in articles 2 through 7 of the automotive appendix the producer is unable to meet based on current business plans.
(C) Approval of alternative staging regime for passenger vehicle or light truck production exceeding 10 percent of North American production
The Trade Representative shall authorize the use of the alternative staging regime if the Trade Representative, in consultation with the interagency committee, determines that—
(i) the request for the alternative staging regime covers more than 10 percent of the production of passenger vehicles or lights 1 trucks, as the case may be, in USMCA countries by the producer;
(ii) the producer has identified with specificity which of the requirements set forth in articles 2 through 7 of the automotive appendix the producer is unable to meet based on current business plans; and
(iii) the detailed and credible plan of the producer submitted under paragraph (1)(C)(iii) is based on substantial evidence and reasonably calculated to bring the production of the passenger vehicles or light trucks, as the case may be, into compliance with the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period has expired.
(3) Procedures related to reviewing and approving requests
(A) Deadline for review
Not later than 120 days after receiving a request of a producer for the alternative staging regime, the Trade Representative, in consultation with the interagency committee, shall—
(i) review the request;
(ii) make a determination with respect to whether to authorize the use of the alternative staging regime; and
(iii) provide to each producer a response in writing stating whether the producer may use the alternative staging regime.
(B) Establishment of a public list
The Trade Representative shall maintain, and update as necessary, a public list of the producers of covered vehicles that have been authorized to use the alternative staging regime.
(C) Reporting
Before a determination is made with respect to whether to authorize the use of the alternative staging regime, the Trade Representative shall provide to the appropriate congressional committees a summary of requests for the alternative staging regime.
(4) Alternative staging regime review and modification
(A) Material changes to circumstances
(i) Notification
If the request of a producer to use the alternative staging regime for more than 10 percent of the total production of passenger vehicles or light trucks, as the case may be, in USMCA countries by the producer has been granted, the producer shall notify the Trade Representative and the interagency committee of any material changes to the information contained in the request, including any supplemental information relating to that request, and of any material changes to circumstances, that will affect the producer's ability to meet any of the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period has expired.
(ii) Requests for modification of plans
(I) In general
A producer that submits a notification under clause (i) with respect to a change described in that clause may submit to the Trade Representative and the interagency committee a request for modification of its plan.
(II) Determination regarding modification
Not later than 90 days after receiving a request submitted under subclause (I), the Trade Representative, in consultation with the interagency committee, shall—
(aa) review the request;
(bb) make a determination with respect to whether the modified plan is based on substantial evidence and reasonably calculated to ensure that the producer will still be able to meet the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period has expired;
(cc) if the Trade Representative makes an affirmative determination under item (bb), approve the modified plan; and
(dd) notify the producer in writing of the determination.
(iii) Inability to meet requirements
If the Trade Representative, in consultation with the interagency committee, determines that the information provided by a producer under clause (i) demonstrates that the producer will no longer be able to meet the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period has expired, the Trade Representative shall notify the producer in writing, and no claim for preferential tariff treatment may be made, on or after the date of the determination, with respect to a covered vehicle of the producer pursuant to the alternative staging regime.
(5) Failure to meet requirements for alternative staging regime
(A) In general
If, at any time, the Trade Representative, in consultation with the interagency committee, makes a determination described in subparagraph (B) with respect to a producer of covered vehicles subject to the alternative staging regime—
(i) any claim for preferential tariff treatment under the alternative staging regime for any covered vehicle of that producer shall be considered invalid; and
(ii) notwithstanding the finality of a liquidation of an entry, the importer of any covered vehicle of that producer shall be liable for the duties, taxes, and fees that would have been applicable to that vehicle if preferential tariff treatment pursuant to the alternative staging regime had not applied when the vehicle was entered for consumption, or withdrawn from warehouse for consumption, plus interest assessed on or after the date of entry and before the date of the determination.
(B) Determination described
A determination described in this subparagraph is a determination that a producer of covered vehicles subject to the alternative staging regime—
(i) has failed to take the steps set forth in the producer's request for the alternative staging regime and, as a result of that failure, the producer will no longer be able to meet the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period has expired;
(ii) has provided false or misleading information in the producer's request; or
(iii) in the case of a producer authorized to use the alternative staging regime for more than 10 percent of the total production of passenger vehicles or light trucks in USMCA countries by the producer, has failed to notify the Trade Representative under paragraph (4)(A) of material changes to circumstances that will prevent the producer from meeting any of the requirements set forth in articles 2 through 7 of the automotive appendix after the alternative staging regime period has expired.
(e) Verification of labor value content requirements
(1) In general
As part of a verification conducted under
(2) Role of Secretary of Labor
In cooperation with the Secretary of the Treasury, the Secretary of Labor shall participate in any verification conducted under paragraph (1) by verifying whether the production of covered vehicles by a producer meets the high-wage components of the labor value content requirements, including the wage component of the high-wage material and manufacturing expenditures, the high-wage technology expenditures, and the high-wage assembly expenditures, within the meaning given those terms in article 7 of that appendix.
(3) Role of Secretary of the Treasury
The Secretary of the Treasury shall participate in any verification conducted under paragraph (1) by verifying—
(A) the components of the labor value content requirements not covered by paragraph (2), including the annual purchase value and cost components of the high-wage material and manufacturing expenditures, within the meaning given those terms in article 7 of that appendix; and
(B) whether the producer has met the labor value content requirements.
(4) Actions by Secretary of Labor
(A) In general
In participating in a verification conducted under paragraph (1), the Secretary of Labor shall assist the Secretary of the Treasury to do the following:
(i) Examine, or cause to be examined, upon reasonable notice, any record (including any statement, declaration, document, or electronically generated or machine readable data) described in the notice with reasonable specificity.
(ii) Request information from any officer, employee, or agent of a producer of automotive goods, as necessary, that may be relevant with respect to whether the production of covered vehicles meets the high-wage components of the labor value content requirements set forth in article 7 of the automotive appendix or, if the producer is subject to the alternative staging regime under subsection (d), articles 7 and 8 of that appendix.
(B) Nature of information requested
Records and information that may be examined or requested under subparagraph (A) may relate to wages, hours, job responsibilities, and other information in any plant or facility relied on by a producer of covered vehicles to demonstrate that the production of such vehicles by the producer meets the labor value content requirements set forth in article 7 of the automotive appendix or, if the producer is subject to the alternative staging regime under subsection (d), articles 7 and 8 of that appendix.
(5) Whistleblower protections
(A) Unlawful acts
It is unlawful to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against any person for—
(i) disclosing information to a Federal agency or to any person relating to a verification under this subsection; or
(ii) cooperating or seeking to cooperate in a verification under this subsection.
(B) Enforcement
The Secretary of the Treasury and the Secretary of Labor are authorized to take such actions under existing law, including imposing appropriate penalties and seeking appropriate injunctive relief, as may be necessary to ensure compliance with this subsection and as provided for in existing regulations.
(6) Protests of decisions of U.S. Customs and Border Protection
(A) In general
If a protest under
(i) conduct an administrative review of the portion of the decision relating to such requirements; and
(ii) provide the results of that review to the Commissioner.
(B) No accelerated disposition
An importer may not request the accelerated disposition under
(f) Administration by Department of Labor
The Secretary of Labor is authorized to establish or designate an office within the Department of Labor to carry out the provisions of this section for which the Department is responsible.
(g) Review and reports
(1) Periodic review on automotive rules of origin
(A) In general
The Trade Representative, in consultation with the interagency committee, shall conduct a biennial review of the operation of the USMCA with respect to trade in automotive goods, including—
(i) to the extent practicable, a summary of actions taken by producers to demonstrate compliance with the automotive rules of origin, use of the alternative staging regime, enforcement of such rules of origin, and other relevant matters; and
(ii) whether the automotive rules of origin are effective and relevant in light of new technology and changes in the content, production processes, and character of automotive goods.
(B) Report
(i) In general
The Trade Representative shall submit to the appropriate congressional committees a report on each review conducted under subparagraph (A).
(ii) Initial report
The first report required under clause (i) shall be submitted not later than 2 years after the date on which the USMCA enters into force.
(iii) Termination of reporting requirement
The requirement to submit reports under clause (i) shall terminate on the date that is 10 years after the date on which the USMCA enters into force.
(2) Report by International Trade Commission
Not later than 1 year after the submission of the first report required by paragraph (1)(B), and every 2 years thereafter until the date that is 12 years after the date on which the USMCA enters into force, the International Trade Commission shall submit to the appropriate congressional committees and the President a report on—
(A) the economic impact of the automotive rules of origin on—
(i) the gross domestic product of the United States;
(ii) exports from and imports into the United States;
(iii) aggregate employment and employment opportunities in the United States;
(iv) production, investment, use of productive facilities, and profit levels in the automotive industries and other pertinent industries in the United States affected by the automotive rules of origin;
(v) wages and employment of workers in the automotive sector in the United States; and
(vi) the interests of consumers in the United States;
(B) the operation of the automotive rules of origin and their effects on the competitiveness of the United States with respect to production and trade in automotive goods, taking into account developments in technology, production processes, or other related matters;
(C) whether the automotive rules of origin are relevant in light of technological changes in the United States; and
(D) such other matters as the International Trade Commission considers relevant to the economic impact of the automotive rules of origin, including prices, sales, inventories, patterns of demand, capital investment, obsolescence of equipment, and diversification of production in the United States.
(3) Report by Comptroller General
Not later than 4 years after the date on which the USMCA enters into force, the Comptroller General of the United States shall submit to the Committee on Appropriations and the Committee on Ways and Means of the House of Representatives and the Committee on Appropriations and the Committee on Finance of the Senate a report assessing the effectiveness of United States Government interagency coordination on implementation, enforcement, and verification of the automotive rules of origin and the customs procedures of the USMCA with respect to automotive goods.
(4) Public participation
Before submitting a report under paragraph (1)(B) or (2), the agency responsible for the report shall—
(A) solicit information relating to matters that will be addressed in the report from producers of automotive goods, labor organizations, and other interested parties;
(B) provide for an opportunity for the submission of comments, orally or in writing, from members of the public relating to such matters; and
(C) after submitting the report, post a version of the report appropriate for public viewing on a publicly available internet website for the agency.
(h) Effective date
This section shall—
(1) take effect on January 29, 2020; and
(2) apply with respect to goods entered, or withdrawn from warehouse for consumption, on or after the date on which the USMCA enters into force.
(
Executive Documents
Ex. Ord. No. 13908. Establishment of the Interagency Committee on Trade in Automotive Goods Under Section 202A of the United States Mexico Canada Agreement Implementation Act
Ex. Ord. No. 13908, Feb. 28, 2020, 85 F.R. 12983, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
1 So in original. Probably should be "light".
§4533. Actions regarding verification of claims under the USMCA
(a) Verification
(1) Origin verification
(A) In general
The Secretary of the Treasury may, pursuant to article 5.9 of the USMCA, conduct a verification of whether a good is an originating good under
(B) Additional requirements
If the Secretary conducts a verification under subparagraph (A), the President may direct the Secretary—
(i) during the verification process, to release the good only upon payment of duties or provision of security; and
(ii) if the Secretary makes a negative determination under subsection (b), to take action under subsection (c).
(2) Textile and apparel goods
(A) In general
The Secretary of the Treasury may, pursuant to article 6.6 of the USMCA, conduct a verification described in subparagraph (C) with respect to a textile or apparel good.
(B) Additional requirements
If the Secretary conducts a verification under subparagraph (A) with respect to a textile or apparel good, the President may direct the Secretary—
(i) during the verification process, to take appropriate action described in subparagraph (D); and
(ii) if the Secretary makes a negative determination described in subsection (b), to take action under subsection (c).
(C) Verification described
A verification described in this subparagraph with respect to a textile or apparel good is—
(i) a verification of whether the good qualifies for preferential tariff treatment under the USMCA; or
(ii) a verification of whether customs offenses are occurring or have occurred with respect to the good.
(D) Action during verification
Appropriate action described in this subparagraph may consist of—
(i) release of the textile or apparel good that is the subject of a verification described in subparagraph (C) upon payment of duties or provision of security;
(ii) suspension of preferential tariff treatment under the USMCA with respect to—
(I) the textile or apparel good that is the subject of a verification described in subparagraph (C)(i), if the Secretary determines that there is insufficient information to support the claim for preferential tariff treatment; or
(II) any textile or apparel good exported or produced by a person that is the subject of a verification described in subparagraph (C)(ii) if the Secretary of the Treasury determines that there is insufficient information to support the claim for preferential tariff treatment made with respect to that good;
(iii) denial of preferential tariff treatment under the USMCA with respect to—
(I) the textile or apparel good that is the subject of a verification described in subparagraph (C)(i) if the Secretary determines that incorrect information has been provided to support the claim for preferential tariff treatment; or
(II) any textile or apparel good exported or produced by a person that is the subject of a verification described in subparagraph (C)(ii) if the Secretary determines that the person has provided incorrect information to support the claim for preferential tariff treatment that has been made with respect to that good;
(iv) detention of any textile or apparel good exported or produced by a person that is the subject of a verification described in subparagraph (C) if the Secretary determines that there is insufficient information to determine the country of origin of that good; and
(v) denial of entry into the United States of any textile or apparel good exported or produced by a person that is the subject of a verification described in subparagraph (C) if the Secretary determines that the person has provided incorrect information regarding the country of origin of that good.
(b) Negative determination
(1) In general
A negative determination described in this subsection with respect to a good imported, exported, or produced by an importer, exporter, or producer is a determination by the Secretary, based on a verification conducted under subsection (a), that—
(A) a claim by the importer, exporter, or producer that the good qualifies as an originating good under
(B) the good does not qualify for preferential tariff treatment under the USMCA because—
(i) the importer, exporter, or producer failed to respond to a written request for information or failed to provide sufficient information to determine that the good qualifies as an originating good;
(ii) after receipt of a written notification for a visit to conduct verification under subsection (a), the exporter or producer did not provide written consent for that visit;
(iii) the importer, exporter, or producer does not maintain, or denies access to, records or documentation required under
(iv) in the case of verification conducted under subsection (a)(2)—
(I) access or permission for a site visit is denied;
(II) officials of the United States are prevented from completing a site visit on the proposed date and the exporter or producer does not provide an acceptable alternative date for the site visit; or
(III) the exporter or producer does not provide access to relevant documents or facilities during a site visit; or
(v) the importer, exporter, or producer—
(I) otherwise fails to comply with the requirements of this section; or
(II) based on the preponderance of the evidence, circumvents the requirements of this section.
(2) Requests for information
The Secretary shall not make a negative determination described in paragraph (1)(B) unless—
(A) in a case in which the Secretary conducts a verification with respect to a good by written request or questionnaire submitted to the importer under article 5.9.1(a) of the USMCA and the claim for preferential tariff treatment under the USMCA is based on a certification of origin completed by the exporter or producer of the good, the Secretary requests information from the exporter or producer that completed the certification; or
(B) in a case in which the Secretary conducts a verification with respect to a textile or apparel good by requesting a site visit under article 6.6.2 of the USMCA, the Secretary requests information from the importer and from any exporter or producer that provided information to the Secretary to support the claim for preferential tariff treatment.
(c) Action based on determination
(1) Denial of preferential tariff treatment
Upon making a negative determination described in subsection (b)(1) with respect to a good, the Secretary may deny preferential tariff treatment under the USMCA with respect to the good.
(2) Withholding of preferential tariff treatment based on pattern of conduct
If verifications of origin relating to identical goods indicate a pattern of conduct by an importer, exporter, or producer of false or unsupported representations relevant to a claim that a good imported into the United States qualifies for preferential tariff treatment under the USMCA, U.S. Customs and Border Protection, in accordance with regulations prescribed by the Secretary, may withhold preferential tariff treatment under the USMCA for entries of those goods imported, exported, or produced by that person until U.S. Customs and Border Protection determines that person has established compliance with requirements for claims for preferential tariff treatment under the USMCA.
(d) Prevention of circumvention
In making a determination under this section, including whether to accept or reject a claim for preferential tariff treatment under the USMCA, the Secretary shall interpret the requirements of this section in a manner to avoid and prevent circumvention of those requirements.
(
Executive Documents
Delegation of Functions
Proc. No. 10053, pars. (10)–(12), June 29, 2020, 85 F.R. 39826, authorized the Committee for Implementation of Textile Agreements to exercise the authority of the President under subsec. (a)(1)(B) and (a)(2)(B) to direct action under subsec. (c) or (a)(2)(D), respectively, of this section with respect to textile and apparel goods, and authorized the Secretary of the Treasury to exercise the authority of the President under subsec. (a)(1)(B) to direct action under subsec. (a)(1)(B)(i) or (c) of this section with respect to goods other than textile or apparel goods.
§4534. Drawback
(a) "Good subject to USMCA drawback" defined
For purposes of this Act, the term "good subject to USMCA drawback" means any imported good other than the following:
(1) A good entered under bond for transportation and exportation to a USMCA country.
(2) A good exported to a USMCA country in the same condition as when imported into the United States. For purposes of this paragraph—
(A) processes such as testing, cleaning, repacking, sorting, marking, or inspecting a good, or preserving it in its same condition, shall not be considered to change the condition of the good, and
(B) except for a good referred to in paragraph 11 of Annex 3–B of the USMCA that is exported to Mexico, if a good described in the first sentence of this paragraph is commingled with fungible goods and exported in the same condition, the origin of the good may be determined on the basis of the inventory methods provided for in the regulations implementing this title.1
(3) A good—
(A) that is—
(i) deemed to be exported from the United States,
(ii) used as a material in the production of another good that is deemed to be exported to a USMCA country, or
(iii) substituted for by a good of the same kind and quality that is used as a material in the production of another good that is deemed to be exported to a USMCA country, and
(B) that is delivered—
(i) to a duty-free shop,
(ii) for ship's stores or supplies for ships or aircraft, or
(iii) for use in a project undertaken jointly by the United States and a USMCA country and destined to become the property of the United States.
(4) A good exported to a USMCA country for which a refund of customs duties is granted by reason of—
(A) the failure of the good to conform to sample or specification, or
(B) the shipment of the good without the consent of the consignee.
(5) A good that qualifies under the rules of origin set out in section 202 1 that is—
(A) exported to a USMCA country,
(B) used as a material in the production of another good that is exported to a USMCA country, or
(C) substituted for by a good of the same kind and quality that is used as a material in the production of another good that is exported to a USMCA country.
(6) A good provided for in subheading 1701.13.20 or 1701.14.20 of the HTS that is imported under any re-export program or any like program and that is—
(A) used as a material, or
(B) substituted for by a good of the same kind and quality that is used as a material,
in the production of a good provided for in existing Canadian tariff item 1701.99.00 or existing Mexican tariff item 1701.99.01, 1701.99.02, or 1701.99.99 (relating to refined sugar).
(7) A citrus product that is exported to Canada.
(8) A good used as a material, or substituted for by a good of the same kind and quality that is used as a material, in the production of—
(A) apparel, or
(B) a good provided for in subheading 6307.90.99 (insofar as it relates to furniture moving pads), 5811.00.20, or 5811.00.30 of the HTS,
that is exported to Canada and that is subject to Canada's most-favored-nation rate of duty upon importation into Canada.
Where in paragraph (6) a good referred to by an item is described in parentheses following the item, the description is provided for purposes of reference only.
(b) Same kind and quality
For purposes of paragraphs (3)(A)(iii), (5)(C), (6)(B), and (8) of subsection (a), and for purposes of obtaining refunds, waivers, or reductions of customs duties with respect to a good subject to USMCA drawback under
(1) for a good described in such paragraph (6)(B), if the good would have been considered of the same kind and quality as the other good on the day before the date on which the USMCA enters into force; or
(2) for other goods if—
(A) the good is classified under the same 8-digit HTS subheading number as the other good; or
(B) drawback would be allowed with respect to the goods under subsection (b)(4), (j)(1), or (p) of
(c) Elimination of drawback for fees under section 624 of title 7
Notwithstanding any other provision of law, the Secretary of the Treasury may not, on condition of export, refund or reduce a fee applied pursuant to
(d) Inapplicability to countervailing and antidumping duties
Nothing in this section or the amendments made by it shall be considered to authorize the refund, waiver, or reduction of countervailing duties or antidumping duties imposed on an imported good.
(e) Action on claim
(1) In general
If the Commissioner of U.S. Customs and Border Protection determines that a claim of preferential tariff treatment has been made with respect to an article for which a claim described in paragraph (2) has been made, the Commissioner may make such adjustments regarding the previous customs treatment of the article as may be warranted.
(2) Claims described
A claim described in this paragraph is a claim for—
(A) a refund, waiver, or reduction of duty, under any applicable provision of law; or
(B) a credit against a bond under
(
Editorial Notes
References in Text
This Act, referred to in subsec. (a), is
This title, referred to in subsec. (a)(2)(B), is title II of
Section 202, referred to in subsec. (a)(5), is section 202 of
The amendments made by this section, referred to in subsec. (d), mean the amendments made by section 203(b) and (c) of
Codification
Subsecs. (a), (d), and (e) of former
Amendments
2020—
Subsec. (a).
Subsec. (a)(2)(A).
Subsec. (a)(2)(B).
Subsec. (a)(6).
"(A) used as a material, or
"(B) substituted for by a good of the same kind and quality that is used as a material,
in the production of a good provided for in existing Canadian tariff item 1701.99.00 or existing Mexican tariff item 1701.99.01 or 1701.99.99 (relating to refined sugar)."
Subsec. (b).
Subsec. (c).
"(1) Canada after December 31, 1995, for so long as it is a NAFTA country; or
"(2) Mexico after December 31, 2000, for so long as it is a NAFTA country."
Subsec. (d).
Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2020 Amendment
Amendment by
Amendment by section 501(b) to (d) of
1 See References in Text note below.
§4535. Regulations
(a) Secretary of the Treasury
The Secretary of the Treasury shall prescribe such regulations as may be necessary to carry out this title 1 and the amendments made by this title 1 (except as provided by subsection (b)).
(b) Secretary of Labor
The Secretary of Labor shall prescribe such regulations as may be necessary to carry out the labor value content determination under
(
Editorial Notes
References in Text
This title, referred to in subsec. (a), is title II of