OT:RR:CTF:VS H273950 EE
Port Director
U.S. Customs and Border Protection
9 North Grand Ave.
Nogales, AZ 85621
RE: Application for Further Review of Protest No. 2604-15-100002; Certificate of Origin; North American Free Trade Agreement; 1520(d) Claim Denial
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2604-15-100002, timely filed on November 23, 2015, on behalf of Watts Regulator Co. (hereinafter, the “protestant”), concerning the denial of the protestant’s preferential tariff treatment claim under 19 U.S.C. § 1520(d) of the North American Free Trade Agreement (“NAFTA”) of certain fittings, tubing and other valve components.
FACTS:
The merchandise subject to the protest at issue consists of various fittings, tubing, and other valve components, produced in Mexico by Javid de Mexico SDRL de C.V. The merchandise was entered between July 14, 2014 and November 4, 2014 and liquidated between May 24, 2015 and September 14, 2015. Your office denied, in part, the protestant’s request for reliquidation under 19 U.S.C. § 1520(d) on October 6, 2015, stating that NAFTA Certificates of Origin were not provided for the products classified under subheadings 3917.29.00, 3917.40.00, and 8481.80.50 of the Harmonized Tariff Schedule of the United States (“HTSUS”). These are plastic tube polysulfone, plastic fittings, and plastic needle valve components, respectively. These components were listed on the NAFTA Certificates of Origin initially provided by the protestant; however, they were misclassified. The failure to provide NAFTA Certificates of Origin for these products was the reason for the denial of the 19 U.S.C. § 1520(d) claim. Subsequently, the protestant filed the protest and submitted a corrected NAFTA Certificate of Origin, claiming that the products qualify for duty-free treatment under NAFTA and the denial of the § 1520(d) petition was unlawful.
We received an email attachment, submitted by the protestant, containing an extract which was presented to the port with the 19 U.S.C. § 1520(d) claim listing certain information including the tariff classification of the merchandise and material numbers for each entry part of the protest at issue.
ISSUE:
Whether the protestant’s NAFTA preferential tariff treatment claim under 19 U.S.C. § 1520(d) should be granted.
LAW AND ANALYSIS:
Section 520(d), Tariff Act of 1930, as amended (19 U.S.C. § 1520(d)), provides as follows:
Notwithstanding the fact that a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to refund any excess duties paid on a good qualifying under the [NAFTA] rules of origin ... for which no claim for preferential tariff treatment was made at the time of importation if the importer, within 1 year after the date of importation, files, in accordance with those regulations, a claim that includes:
(1) a written declaration that the good qualified under those rules at the time of importation;
(2) copies of all applicable NAFTA Certificates of Origin ...; and,
(3) such other documentation relating to the importation of the goods as the Customs Service may require.
The U.S. Customs and Border Protection (“CBP”) Regulations implementing 19 U.S.C. § 1520(d) are found in sections 181.31 through section 181.33 (19 C.F.R. § 181.31 through § 181.33). Section 181.32(b) of the CBP Regulations (19 C.F.R. § 181.32(b)) provides that a post-importation duty refund claim must include:
(1) A written declaration stating that the good qualified as an originating good at the time of importation and setting forth the number and date of the entry covering the good;
(2) Subject to 19 C.F.R. § 181.22(d), a copy of each Certificate of Origin pertaining to the good;
(3) A written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person. An identification of the person if the information was so provided.
(4) A written statement indicating whether or not the importer of the good is aware of any claim for refund, waiver or reduction of duties under the NAFTA relating to the good and identification of same.
(5) A written statement indicating whether or not any person has filed a protest or a petition or request for reliquidation relating to the good under any provision of law, and if so, identification of same.
Furthermore, 19 C.F.R. § 181.33(d), enumerates the grounds for denial of a post-importation NAFTA claim as follows: failure to timely file; noncompliance with regulatory requirements; invalidity of the Certificate of Origin; or determination following initiation of a verification that the imported good does not qualify as originating.
In the instant case, the declaration and statements required by 19 C.F.R. § 181.32(b) with respect to the entries under the protest are not at issue. Since the claim under 19 C.F.R. § 181.31 is timely, the claim must be allowed provided a proper NAFTA Certificate of Origin pertaining to the goods has been submitted for the entries covered by the protest, and there is no other basis in the record for denial (19 C.F.R. § 181.33(d)). As previously noted, the port denied the protestant’s § 1520(d) petition stating that NAFTA Certificates of Origin were not provided for the products classified under subheadings 3917.40.00 and 8481.80.50, HTSUS. These are described as plastic fittings and plastic needle valves, respectively. The original NAFTA Certificate of Origin, which was submitted to the port, is dated October 9, 2014 and covers the blanket period January 1, 2014 to December 31, 2014. The corrected NAFTA Certificate of Origin, which was submitted with the protest, is dated October 15, 2015, and also covers the blanket period January 1, 2014 to December 31, 2014. The plastic fittings and plastic needle valves are listed on the original NAFTA Certificate of Origin; however, they are listed under a different subheading than on the corrected NAFTA Certificate of Origin. The plastic fittings listed on the original NAFTA Certificate of Origin are classified under subheading 3917.39, HTSUS, whereas they are classified under subheading 3917.40, HTSUS, on the corrected NAFTA Certificate of Origin. The plastic needle valve components are classified under 8481.90, HTSUS, on the original NAFTA Certificate of Origin, whereas they are classified under subheading 8481.80, HTSUS, on the corrected NAFTA Certificate of Origin. The protestant claims that the omission of the subheadings from the original Certificate of Origin was the result of a clerical error.
In the instant case, the protestant’s post-importation NAFTA claim was timely filed within one year from the date of importation of the merchandise. The corrected Certificate of Origin was submitted to adjust a clerical error involving the subheadings listed on the original Certificate of Origin. The corrected NAFTA Certificate of Origin now covers the merchandise at issue. Accordingly, we find that the protestant's post-importation NAFTA preference claim pursuant to 19 U.S.C. § 1520(d) should be granted.
HOLDING:
The protest should be GRANTED.
In accordance with the Protest/Petition Processing Handbook (CIS HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than sixty days from the date of this letter. Sixty days from the date of the decision Regulations and Rulings of the Office of Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division