CAFC Determines that CBP Not Required to Act on 1515(a) Protests, Points Out Accelerated Disposition Option

November 15, 2011

The United States Court of Appeals for the Federal Circuit (CAFC) recently ruled that the two year time limit in 19 USC 1515(a) for Customs and Border Protection (CBP) to decide protests is directory, as opposed to mandatory.  Hitachi Home Electronics (America), Inc. argued that a protest is deemed allowed by the operation of law when CBP fails to allow or deny the protest within the two year period provided by 19 USC 1515(a). The CAFC determined that CBP’s failure to act in the two year period did not qualify the case for USC 1581(i) jurisdiction, and affirmed the Court of International Trade’s (CIT) determination that it lacked jurisdiction in the case.

According to the decisions issued by the CAFC and CIT, 19 USC 1515(b) allows for requests for accelerated disposition of a protest filed under 19 USC 1581 (a). If CBP does not decide the protest within 30 days of the request for accelerated disposition, the protest is then “deemed denied,” and court jurisdiction would be provided for under 28 USC 1581(a).