Common mistakes / misunderstandings
The 180 day period is counted without regard to Saturdays, Sundays, or holidays. Day 1 is the day after liquidation.
If the last day for filing a protest or other administrative claim falls on Saturday, Sunday, holiday, snow day…etc, then the protest may be filed on the first succeeding day the CBP location is open. This practice is in line with Federal Rules of Civil Procedure under Treasury Decision 53961 (1), dated November 25, 1955.
Declaration must be filed with each protest: To the best of my knowledge, the entry (entries) is (are) not subject of drawback, nor the entry (entries) has (have) been referenced on a certificate of delivery or certificate of manufacture and delivery so as to enable a party to make such entry (entries) the subject of drawback.
Amendment to already filed protest should be marked at the top “AMENDMENT TO PROTEST (PROTEST #)
Application for Further Review (AFR)
The filing of AFR on a protest does not preclude a preliminary examination by the local port. If preliminary review results in a full allowance of the protest, then the protest will be decided locally, and the AFR becomes moot and will not be considered. If the preliminary review indicates that the protest would be denied in whole or in part by the port, then the port must give full consideration to the AFR, and it must be forwarded to designated port staff to determine if it meets the criteria under 19 CFR 174.25/26
- Application must be made within the same time period in which to file the protest
- The questions on the protest form (Block 15) are required to be answered only when one is making an AFR.
- An application for further review is not a mechanism whereby a protestant can seek a second level of review on a previously filed protest that has been denied. In order to seek further review, the AFR must be part of the one and only protest allowable for an entry under the law
Accelerated disposition (19 USC 1515 [b], 19 CFR 174.22)
· If CBP fails to decide at the end of 30 day period, protest is deemed denied by operation of law
· File request via certified or registered mail
· Designed to accelerate access to judicial review at CIT
Exception to the “one protest per entry” rule (19 USC 1514 [d])
The reliquidation of an entry shall not open such entry so that a protestmay be filed against the decision of the Customs Service upon any question not involved in such reliquidation.
Protest may be filed against a reliquidation (even though one also may have been filed against the original liquidation) as long as the protest against the reliquidation does not bring to bear any new issues that were not the subject of the original protest. Essentially, the liquidation of the entry became final as to any matter not covered on the original protest; hence, those matters cannot now be raised on a protest against the entry’s reliquidation.
Anytime CBP liquidates or reliquidates an entry, that event can be the cause of action for a new protest – even though it may be a second or third filing on the same entry. Fore example, CBP errs in the reliquidation pursuant to a protest approval / court order: that reliquidation would be grounds for a new protest challenging the errors made at the time of that reliquidation.
19 USC 1515 (c), (d)
Under subsection (c) Commissioner can void the denial if the Application for Further Review was erroneously or improperly denied. The request must be filed with the Commissioner of Customs, attention: Executive Director, Regulations and Rulings, Office of International Trade, Customs Headquarters, within 60 days after the date of the notice of denial. HQ must review the matter, based solely on the information before CBP at the time of AFR and protest were denied, and issue a determination within 60 days of the request. If appropriate, the denial of the AFR may be set aside and the denial of the protest voided.
Subsection (d) allows the local port, on its own initiative, or upon a written notice within 90 days after denial of the protest, to void the denial of a timely and properly filed protest if said denial is found to contrary to proper instruction. Request of this nature should be filed on company letterhead with the port where the protest was filed and decided.
Relief above is primarily available due to procedural errors or the failure to follow established rulings, policies, regulations, or statutory requirements.
