CBP Grants Importer's Protest GSP Claim After Court Strikes Down Rejection Policy

CBP appears to have backed away from a recently adopted policy of rejecting protests filed to claim benefits under the Generalized System of Preferences and several other trade programs, following a Court of International Trade decision issued in August that found GSP claims are protestable (see 1608050038). The importer behind the successful challenge, Zojirushi, had its protest granted and received its refund, said its lawyer, John Peterson of Neville Peterson. “There will be no appeal,” he said. “The Department of Justice appeared satisfied with the result, as well, and assisted us in getting the refunds.” CBP and DOJ did not immediately comment.

With CIT’s decision allowed to stand, importers should be able to file protests to claim preferences under all free trade agreements and preferential trade agreements not subject to the post-importation claim mechanism specified in 19 USC 1520(d), Peterson said. That includes 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. CBP had in 2014 instructed ports to reject such protests (see 14081320), leaving post-summary corrections the only way to claim benefits post-importation (see 14082209).

If CBP rejected an importer’s protest or returned it without action, the importer should file a request for accelerated disposition, Peterson said. The rejected or returned protests are still pending and undecided, he said. “The Zojirushi case indicated that a protest ‘rejected’ by Customs (or returned without action) is still pending at the Customhouse, so the importer can trigger action by seeking accelerated disposition. The refund request is alive.” Protests not acted on by CBP within 30 days of the request for accelerated disposition will be deemed denied, allowing the importer to challenge the denial in court. The 180-day protest deadline still applies, however, if an importer’s protest was “denied” as non-protestable, Peterson said.

Importers may want to discuss their protests with CBP before filing the request for accelerated disposition, Peterson said. “Very often, Customs did not dispute the product's eligibility for GSP, but rejected the protest because they thought they couldn't accept it. Often, if CBP import specialists know the accelerated disposition request is coming, they can gather the necessary papers and grant the protest,” he said. If a protest was numbered, “that makes filing for accelerated disposition easy,” Peterson said. “If Customs returned the protests, un-numbered, then the correspondence returning them would serve as evidence of the prior filing.”