OT:RR:CTF:VS H328370 AP
Center Director, Electronics Center of Excellence and Expertise
U.S. Customs and Border Protection
Los Angeles Service Port
301 E. Ocean Blvd.
Long Beach, CA 90802
Attn.: Christopher P. Cisneros, CBP Supervisory Import Specialist
RE: AFR of Protest No. 2304-21-102284; NAFTA Preference Claim under 19 U.S.C.
§ 1520(d)
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2304-21-102284, timely filed on August 26, 2021, on behalf of Nidec Motor Corporation (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 control panels and parts.
FACTS:
The merchandise subject to this protest was entered and imported on October 29, 2019, and liquidated on September 25, 2020. On October 29, 2020, the protestant filed a request for reliquidation under 19 U.S.C. § 1520(d) for this entry and three other entries, which also protested the tariff classification and country of origin of certain products imported against these entries. The protestant’s submission was identified as a “520(d) post importation preference claim” protest type in U.S. Customs and Border Protection’s (“CBP”) Automated Commercial Environment (“ACE”) portal. In support of its Section 1520(d) claim, the protestant submitted: (1) a spreadsheet detailing the entries and the requested refund; (2) NAFTA certificates of origin; and (3) the required declarations under 19 C.F.R. § 181.32.
On August 3, 2021, the Electronics Center of Excellence and Expertise (“Electronics CEE”) granted the protestant’s Section 1520(d) claim with respect to the other three entries but denied it for the October 29, 2019 entry stating that the claim was not timely filed within one year from the date of importation.
On August 26, 2021, the protestant filed a Protest/AFR asserting that its Section 1520(d) claim concerning the October 29, 2019 entry was timely and was improperly denied. This protest was identified as a protest type “514” in CBP’s ACE Portal. On November 7, 2022, the Electronics CEE denied the protestant’s August 26, 2021 protest viewing it as a request for set aside of denial of further review under 19 U.S.C. § 1515(c).
ISSUE:
Whether the protestant’s NAFTA preferential tariff treatment claim under 19 U.S.C.
§ 1520(d) with respect to the October 29, 2019 entry should have been granted.
LAW AND ANALYSIS:
We note that the matter protested is protestable under 19 U.S.C. § 1514(a)(1) as a refusal to reliquidate the October 29, 2019 entry pursuant to 19 U.S.C. § 1520(d). Further review of this protest is properly accorded to the protestant pursuant to 19 C.F.R. § 174.24(b) because the issues protested involve questions of law or fact, which have not been ruled upon.
Under 19 U.S.C. § 1520(d), an importer may make a post-entry NAFTA refund request, subject to one-year time limitation from importation:
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 (including any merchandise processing fees) 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 the applicable rules at the time of importation;
(2) copies of all applicable certificates or certifications of origin; and
(3) such other documentation relating to the importation of the goods as the Customs Service may require.
The CBP regulations implementing 19 U.S.C. § 1520(d) are found in 19 C.F.R.
§§ 181.31-181.33. Section 181.32 sets forth the filing procedures for filing a proper NAFTA preference claim under 19 U.S.C. § 1520(d). It states, in relevant part, “A post-importation claim for a refund under § 181.31 of this part shall be filed with CBP, either at the port of entry or electronically.”
Furthermore, 19 C.F.R. § 181.33 enumerates grounds for denial of a 1520(d) claim:
(d) Denial of claim –
(1) General. The Center director may deny a claim for a refund … if the claim was not filed timely, if the importer has not complied with the requirements of this subpart, if the Certificate of Origin submitted under § 181.32(b)(3) of this part cannot be accepted as valid (see § 181.22(c) of this part), or if, following initiation of an origin verification under § 181.72(a) of this part, the Center director determines either that the imported good did not qualify as an originating good at the time of importation or that a basis exists upon which preferential tariff treatment may be denied under § 181.72(d), § 181.74(c) or § 181.76(c) of this part.
Pursuant to Customs Directive, Number 3550-070A, June 28, 1999, covering filing and processing of post-importation NAFTA claims:
5.4 Post-Importation Claims. An importer may file a claim for NAFTA preferential tariff treatment for originating goods after the entry summary is filed but no later than 1 year from the date of importation (see 19 CFR 181.31). Note: The clock for the 1-year period starts on the day following the date of importation ….
5.5 Receipt of a Claim. Upon receipt of a post-importation claim, the Entry/Protest Unit shall date stamp the claim and enter it along with the associated entry summary into the protest module using PMAA. The claim shall be entered as a 520(d). The Automated Commercial System (ACS) [now ACE] will automatically generate a number which identifies the claim as a 520(d) claim when correctly entered as such in the protest type field of the PMAA screen. A numbered copy of the claim shall be filed in the master file.
CBP decisions involving “[t]he refusal to reliquidate an entry under section 520(d)” are subject to protest under 19 C.F.R. § 174.11(b)(8). Title 19 C.F.R. § 174.12(e)(2) provides, in relevant part, that:
(e) Time of filing. Protests must be filed, in accordance with section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514), … within 180 days of a decision relating to an entry made on or after December 18, 2004, after any of the following:
(2) … the date of written notice of a denial of a claim filed under section 520(d), Tariff Act of 1930, as amended (19 U.S.C. 1520(d)) ….
Here, the Section 1520(d) claim that the protestant submitted on October 29, 2020 was filed electronically within one year of the October 29, 2019 date of importation, as required by 19 U.S.C. § 1520(d) and 19 C.F.R. § 181.32, and consistent with Customs Directive, No. 3550-070A. The protestant presented the data elements for making a Section 1520(d) claim outlined in 19 C.F.R. § 181.32(b). Nonetheless, the Electronics CEE denied the protestant’s 1520(d) claim as untimely filed on August 3, 2021.
We further note that the October 29, 2020 “Section 1520(d) claim/protest” was identified as a “520(d)” claim in the ACE portal and not as a “514 protest.” CBP’s refusal to reliquidate the October 29, 2019 entry under 19 U.S.C. § 1520(d) was subject to protest pursuant to 19 C.F.R. § 174.11(b)(8). The protestant had 180 days of the denial of the 1520(d) claim to file a protest pursuant to 19 C.F.R. § 174.12(e)(2). The August 26, 2021 protest was timely as it was filed within 23 days of the denial of the protestant’s 1520(d) claim on August 3, 2021.
HOLDING:
The importer’s claim for NAFTA preference under 19 U.S.C. § 1520(d) was improperly denied as to the October 29, 2019 entry. This protest should be GRANTED.
You are instructed to notify the protestant of this decision, through the protestant’s current counsel, no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at https://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division