PENDING ISSUES IN A CUSTOMS REGULATION

In a recent article, I commented on Resolution 3778/15 as a good start to solve the problem that represents the difficulty in obtaining shifts at terminals within the period of "forced" by importers, whose allocation methodology on the part of the companies it was discretionary, since it affected a large percentage of importers, with the obvious additional costs.

A long time ago, I narrated about the disobedience of the terminals, of customs regulations that forced them to grant shifts of container removal within the aforementioned period, under the pretext of the hierarchy of the general specification (PCG) of Tender No. 6 / 93- MEYOSP with respect to other norms, even those that authorize them as terminals, such as Resolution ANA 722/96.

That last article and the timely presentation of SIGEA 13289 41301 2014 before AFIP requesting that terminals be reminded of the validity of Resolutions ANA 2439/91, 2535/92 and 722/96, among other current regulations, contributed, among other factors, that the rule in question be sanctioned, especially after the initiative of the General Administration of Ports (AGP) to regulate shifts without consulting the AFIP, whose competence according to art 121 of the Customs Code and the aforementioned rules, should never have sidestep.
However, despite the hopeful outlook that the norm in treatment brings regarding greater transparency and fairness in the allocation of shifts in terminals, it is necessary to make observations.

Discordant voices
Contrary to expectations, in a recent article voices disagreeing with this rule were raised, curiously from sectors that before it were affected by a cost issue, such as importers or the sector to which I belong, in which continuity or loss From a certain client, they will depend on how successful we are in obtaining a shift within the "forced" in the terminals, which is paradoxical, especially in the last case, since they had institutionally complained about this issue in September 2014.

In it, other more qualified voices questioned that the future AFIP Manual could be removed by the Systems Subdirectorate and not by the Administrator and that what is not included in the Official Gazette does not create or remove rights.

In relation to the first point, it should be remembered that Article 4 of Decree 618/97 authorizes the Federal Administrator to delegate "to the Directors General and the Assistant Directors General- and these with respect to the Headquarters of the Units that depend on them -the assumption, jointly or separately, of certain functions and powers indicated by the nature of the subjects, by the territorial scope in which they must be exercised or by other circumstances, including those indicated in articles 6, 7, 8 and 9 in the measure and conditions that are established in each case ”, so the competence of that Sub-directorate in that sense would not be objectionable then.

Regarding the second point, I disagree with such statement, given that pursuant to the provisions of Provision AFIP 446/09 there are external resolution rules that expressly provide for their non-publication in the Official Gazette (the Resolutions) and do not therefore cease to be operative, subject to mandatory compliance.

Although the norm refers to the provisions of the World Customs Organization, and to article 7 of Decree 618/97, it would have been desirable for it to include in its recitals article 121 ap. 2 of the Customs Code and Resolutions ANA 2439/91, 2535/92 and 722/96, and Provision AFIP 186/10.

It would also have been desirable if the General Instruction AFIP 46/01 had been mentioned, which reminds that the period of 5 days for the purposes of resolutions ANA 2439/91 and 2535/92 is of working days according to art 1007 of the Customs Code.

Finally, and in order for these airs of equity to endure, it would be desirable for the resolution manual to be implemented as soon as possible.