CBP Updates Policy to Allow Protests for Post-Importation Preference Claims
CBP on Feb. 15 issued updated internal guidance (here) to allow the filing of protests for first-time post-importation claims for duty benefits under certain free trade agreements and preference programs. The updated guidance, posted by customs lawyer Ted Murphy of Baker & McKenzie to his blog (here), applies to all FTAs and preference programs not covered by the claim process of 19 USC 1520(d). Importers that had their preference claims rejected as non-protestable under the agency’s previous policy “are requested to resubmit their protests to the appropriate field offices within 180 days of the issuance of this guidance,” i.e., by Aug. 14, CBP said.
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The CBP memorandum supersedes guidance issued by CBP in August 2014 that told ports to no longer accept protests filed as first-time post-importation preference claims (see 14081320). By leaving post entry amendments (PEAs) and post-summary corrections (PSCs) as the only options for post-importation claims, CBP effectively shortened the time frame for post-importation claims and increased the filing burden (see 14082209). The Court of International Trade in August 2016 ruled against the new policy (see 1608050038), and CBP subsequently granted the relevant importer’s protest claim for benefits under the Generalized System of Preferences (see 1610310041).
The updated guidance now allows protests to be filed to claim preferences under GSP, the African Growth and Opportunity Act, the Caribbean Basin Economic Recovery Act, the Caribbean Basin Trade and Partnership Act, the Civil Aircraft Agreement, Insular Possessions, Intermediate Chemicals for Dyes, the Pharmaceutical Products Agreement, and FTAs with Australia, Bahrain, Israel, Jordan, Morocco and Singapore. Agreements covered by 19 USC 1520(d), including NAFTA, the Central America-Dominican Republic Free Trade Agreement, and FTAs with Chile, Colombia, South Korea, Oman, Panama and Peru are unaffected by the updated policy and still require claims be filed according to that statute.
The change in policy “is a significant development since it expands the period in which post-entry refund claims may be made under certain preference programs,” Ted Murphy said on his blog (here). “It also breathes new life into protests filed for such claims that were previously rejected as ‘non-protestable,’” he said, adding that his firm had already been helping companies get refunds from CBP on protests filed as preference claims. CBP did not comment.