Last Chance To Protest

Until now,  CBP has denied all protests filed with regard to Preference Programs (e.g. Free Trade Agreements (FTA)) and Special Trade Legislation programs (STL) that did not have an explicit statutory post-importation mechanism set forth under 19 U.S.C. § 1520(d). They were rejected as “nonprotestable” and no decisions – meaning no relief – were rendered.

An importer of vacuum bottles objected to Customs’ policy and pursuant to a favorable decision it received from the Court of International Trade (CIT) in Zojirushi American Corp v. U.S., slip Op. 16-78 (August 4, 2016), CBP must now permit the use of the protest mechanism set forth in section 19 U.S.C. § 1514 for those Preference Programs.  Examples of these programs are:

  • African Growth and Opportunity Act (AGOA),
  • Australia FTA (AUFTA),
  • Bahrain FTA (BHFTA),
  • Caribbean Basin Economic Recovery Act (CEBRA),
  • Caribbean Basin Trade Partnership Act (CBTPA),
  • Civil Aircraft Agreement (CAA),
  • Generalized System of Preferences (GSP),
  • Insular Possessions, Israel FTA (ILFTA),
  • Intermediate Chemicals on Trade in Pharmaceutical Products (Pharma), and
  • Singapore FTA (SGFTA).

In order to assist CBP in processing protests previously rejected as non-protestable, Protestants who wish this matter to be reconsidered are required to re-submit their protests within one hundred eighty days (180) of the issuance of the February 15, 2017 memorandum, i.e. on or about August 14, 2017.   This means you only have two months remaining to submit claims.

If the original protest submission claiming preferential tariff treatment after importation was rejected as non-protestable, Protestants may request re-liquidation of the entry through a new protest or through a letter which should include the following:

  • Statement that this is a resubmission of a previous preference claim that was rejected as non-protestable.
  • Copy of the original protest showing that it was rejected as non-protestable.
  • Certification of origin (or data elements) for the tariff-shift model FTAs that are subject to section 514. They are: Australia FTA (AUFA) and Singapore FTA (SGFTA)
  • Affidavit in lieu of a certification of origin for the following Free Trade Agreements: Bahrain FTA (BHFTA), Israel FTA (ILFTA), Jordan FTA (JOFTA), and Morocco FTA (MAFTA)
  • Affidavit in lieu of a certification of origin for the following Special Trade Legislation programs: African Growth Opportunity Act (AGOA), Caribbean Basin Economic Recovery Act (CBERA), Caribbean Basin Trade Partnership Act (CBTPA), Civil Aircraft Agreement (CAA), Generalized System of Preferences (GSP), Insular Possessions, Intermediate Chemicals for Dyes (Intermediate Chemicals), Agreement on Trade in Pharmaceutical Products (Pharma), etc.

Re-submission may be done electronically through the ACE Protest Module via the ACE Portal or paper to the CBP Port of Entry.

Unliquidated entries under the aforementioned programs may be processed in accordance with current Post Entry Amendment (PEA) and Post Summary Correction (PSC) procedures.

For preference programs that by law have a post-importation provision, a 520(d) post-importation claim remains the only appropriate mechanism to seek preference when not claimed at the time of importation. To help you, we summarized Programs in the left column which can now be protested under 19 U.S.C. § 1514; and Programs in the right column which can only be claimed through 19 U.S.C. § 1520(d) claims.

Protest under 1514 1520(d) post-importation claim
  • Australia FTA (AUFTA)
  • Singapore FTA (SGFTA)
  • Bahrain FTA (BHFTA)
  • Israel FTA (ILFTA)
  • Jordan FTA (JOFTA)
  • Morocco FTA (MAFTA)
  • African Growth and Opportunity Act (AGOA)
  • Caribbean Basin Economic Recovery Act (CEBRA)
  • Caribbean Basin Trade Partnership Act (CBTPA)
  • Civil Aircraft Agreement (CAA)
  • Generalized System of Preferences (GSP)
  • Insular Possessions
  • Intermediate Chemicals for Dyes (Intermediate Chemicals)
  • Agreement on Trade in Pharmaceutical Products (Pharma)
  • Dominican Republic-Central America FTA (CAFTA-DR),
  • Chile FTA (CLFTA),
  • Columbia TPA (COTPA),
  • Korea TPA (UKFTA),
  • North American Free Trade Agreement (NAFTA),
  • Oman FTA (OMFTA),
  • Panama TPA (PATPA),
  • Peru TPA (PETPA))
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