5 Reasons for Discrepancies Between Preliminary Tariff and WCO 2012

If you have taken time to look at the preliminary 2012 Tariff that was recently posted to the USITC website, you may be wondering why many of the WCO changes are missing.

While working to integrate the new information into our system, our employees have found that many of the 2011 codes are still present (example: chapter 1). There was also an ABI update that contradicts many of the codes in the preliminary tariff. There has been limited information regarding the timeframe for WCO changes to appear in the official Tariff. Hopefully we'll be able to answer some of your questions in this post.

A contact in the USITC has answered some of our questions and we thought we would share them with the trade community.

1. The preliminary version is what will be "law" on 1/1/2012

The version posted for 2012 contains the previously proclaimed staged duty reductions for our existing FTAs plus the changes that occurred since the last printed edition (Jan. 2011) plus 484(f) changes.  That material is what is "the law" as of January 1, 2012.

2. Many changes have not been proclaimed by the president

The changes included in the final report in investigation 1205-7 (you can see it on the USITC site) have NOT BEEN PROCLAIMED BY THE PRESIDENT.  Thus, they will NOT be law on 1/1/2012, regardless of what anyone may tell you.

3. USITC doesn't know when, or if, the President will sign the proclamation to reflect the 2012 HS changes recommended by the WCO.

...although he does have a copy at the White House which he COULD sign.  Once he signs it, it goes to the Archivist to be given a proclamation number, and then to the Federal Register for publication of the "body" of the proc and we will put up the ITC publication with the annexes on its site.

4. HS changes cannot become effective until 30 days after the proclamation is published in the FR.

There is a statute (enacted for the 2007 changes) that says these HS-based changes cannot become effective until at least the 30th day after the day the proc is published in the FR (and thus, later than 30 days from the date of signature).  There is no way they will be "law" before late January because of this statute.  USITC does NOT put up chapters with the new provisions before they are proclaimed, and will not put up actual HTS files until close to the effective date.  The HTS is not just a book.  The 1988 trade act made our publications "statute."  Thus, a user of the HTS should see what is "law" as of the date he/she/it uses the system--and not what is yet to be law.  (the USITC posted the "interim" or "prelim" version of 2012 because all of the changes for duty rates are already proclaimed and can actually be claimed now that we're past Dec. 16, as we understand CBP's practice.)

5. Some new FTA haven't had implementing proclamations

None of the newly approved FTAs (Korea, Colombia, Panama) has been the subject of Presidential implementing proclamations.

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