Chapter 8. Border Protection Decisions
Author | John B. Brew |
Pages | 155-177 |
CHAPTER 8
Administrative and Judicial
Review of U.S. Customs and
Border Protection Decisions
John B. Brew
OVERVIEW H
Importers and interested domestic parties have administrative and judicial rights
they can use to obtain certainty for import transactions, or challenge adverse CBP
decisions. The statutes and regulations governing CBP administration provide
a series of tools to help importers and domestic parties protect their interests,
including:
1. Advanced interpretive rulings, which allow importers to advocate for
their desired interpretations of CBP regulations and obtain certainty on
import transactions prior to importing goods into the United States;
2. Requests for internal advice, which provide for clarification as to the
proper interpretation or application of customs laws as they relate to
specific ongoing or past transactions;
3. Request to modify or revoke prior adverse CBP treatment or decisions,
and the opportunity for public comment if the CBP intends to modify
or revoke prior advanced interpretive rulings, internal advice rulings, or
other prior treatment or decisions on its own;
4. Protests, which allow importers to seek administrative review of certain
unfavorable decisions made by CBP; and
5. Domestic interested party petitions, which allow for American manufac-
turers, producers, wholesalers, or unions to contest the appraised value,
classification, or rate of duty assigned to imported merchandise by CBP.
The goal of this chapter is to provide key information about the process and
pitfalls involved in employing each of these tools, as well as the options for seek-
ing judicial relief from adverse CBP decisions. You will find references to appro-
priate portions of relevant statutes and regulations peppered throughout. This
chapter focuses on administrative and judicial review of CBP decisions related
to the most common types of import transactions—assessment of duties (e.g.,
155
Mr. Brew would like to thank Alex Schaefer, Counsel, Crowell & Moring, Nicole Jenkins, Associate, Crowell & Mor-
ing, and Annie Wartanian Reisinger, Associate, McGuireWoods, for their signi cant contributions to the drafting of
this chapter.
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classification, valuation, and origin) on commercial goods entered for consump-
tion. Other chapters deal with administrative and judicial review of other CBP
actions (e.g., liquidated damages, fines, penalties, and forfeitures; see Chapter 0,
“Ensuring Compliance with Basic Customs Requirements: Customs Bonds and
Liquidated Damages,” and Chapter , “Customs and Border Protection’s Author-
ity to Assess Monetary Penalties and to Seize an Importer’s Merchandise”), and
still other CBP actions and decisions are beyond the scope of this book (e.g.,
admissibility, broker, carrier, foreign trade zone, assessment of antidumping and
countervailing duties, intellectual property, and other agency issues).
The administrative and judicial appeal process for CBP matters involves
arcane and intricate legal rules with strict time limits, and limits on how and
when certain challenges may be made. Many court rulings on challenges to CBP
decisions involve lawyers’ creative attempts to resolve issues that were not prop-
erly or timely raised during the administrative process.
PRACTITIONER’S TIP: While dealing with CBP may be frustrating on many levels, CBP
must be given credit for its advanced ruling system. CBP is a global leader in this respect,
maintaining thousands of decisions on the application of its laws to specific fact patterns on
a searchable and publicly available database (http://rulings.cpb.gov). This database is part of
CBP’s informed compliance obligations under the Mod Act—informing importers what their legal
obligations are. Older Customs decisions may be obtained through FOIA, and customs Luddites
may have access to still more Customs decisions on microfiche.
ADVANCED INTERPRETIVE RULINGS H
When importers desire certainty concerning how customs laws apply to their
transactions, they may request an advanced interpretive ruling from CBP. Upon
such a request, CBP will issue a binding ruling that applies to that particular trans-
action, as well as to transactions involving substantially similar facts. Interpretive
rulings can be requested for almost every type of customs law issue concern-
ing an interested party. The request, however, must be prospective in nature.
In other words, the request must be made before shipment takes place. Ruling
requests cannot relate to specific matters or situations presently or previously
under consideration by CBP or the courts.
If all importers sought binding rulings on all transactions, the work required
by CBP to respond to all such requests would prevent CBP from doing anything
else. So there is no need or desire to obtain rulings on all transactions. There are
two common factors that should and do drive parties to seek advanced rulings
from CBP: () the transaction involves significant duty assessments and (2) the
proper application of the law is not clear (e.g., the close call). In addition, by
obtaining a ruling from CBP, importers (or other interested parties) demonstrate
reasonable care. If CBP tells the importer that the ruling was wrong five years
after the commencement of a particular type of import transaction on which a
ruling was issued, CBP cannot go back five years and collect past duties. Without
a binding ruling, if CBP disagrees with how an importer classified or valued past
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