OT-RR:CTF:VS W563317 GOB
Port Director
U.S. Customs and Border Protection
Attn.: Supervisory Import Specialist Sharon M. Swiatek
111 W. Huron Street
Room 603
Buffalo, NY 14202
RE: Protest 0901-04-100132; NAFTA Certificate of Origin; 19 U.S.C. § 1520(d)
Dear Port Director:
This is in response to your memorandum of July 13, 2005, forwarding for our review the protest filed on behalf of General Mills, Inc. (the “protestant”). Our ruling follows.
FACTS:
The evidence of record indicates the following. The protestant filed 17 entries between March 31, 2003 and April 28, 2003. The imported merchandise, baked goods in the form of handheld pies, was entered duty-free (NAFTA) under subheading 1901.90.90, Harmonized Tariff Schedule of the United States (“HTSUS”). The entries were liquidated between February 13, 2004 and March 12, 2004.
On June 3, 2003, the protestant filed a prior disclosure in which it stated that it had discovered that it did not possess a NAFTA Certificate of Origin. In connection with the prior disclosure, the protestant made a simultaneous claim under 19 U.S.C. § 1520(d) and provided a NAFTA Certificate of Origin, dated May 13, 2003, which covered the period of March 6, 2003 through December 31, 2003.
Customs and Border Protection (“CBP”) denied the 19 U.S.C. § 1520(d) claim. The subject protest was subsequently filed.
ISSUE:
The issue presented is whether the subject goods are eligible for duty-free treatment under NAFTA.
LAW AND ANALYSIS:
Initially, we note that the information in the file indicates that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests. 19 U.S.C. § 1514(c)(3).
The refusal to liquidate an entry under 19 U.S.C. § 1520(d) is a protestable action, as provided in 19 U.S.C. § 1514(a)(7).
Title 19, United States Code, section 1520(d) provides that CBP may reliquidate an entry to refund any excess duties paid on a good qualifying under the rules of origin set out in 19 U.S.C. § 3332 for which no claim for preferential tariff treatment was made at the time of importation if the importer files a claim with certain specified documentation within one year of the date of importation. We note that a requirement under 19 U.S.C. § 1520(d) is that “no claim for preferential tariff treatment was made at the time of importation.”
Section 181.31, CBP Regulations provides as follows:
§ 181.31 Right to make post-importation claim and refund duties.
Notwithstanding any other available remedy, including the right to amend an entry so long as liquidation of the entry has not become final, where a good would have qualified as an originating good when it was imported into the United States but no claim for preferential tariff treatment on that originating good was made at that time under § 181.21(a) of this part, the importer of that good may file a claim for a refund of any excess duties at any time within one year after the date of importation of the good in accordance with the procedures set forth in § 181.32 of this part. Subject to the provisions of § 181.23 of this part, Customs may refund any excess duties by liquidation or reliquidation of the entry covering the good in accordance with § 181.33(c) of this part. [Emphasis added.]
The requirement that one must submit with a claim for NAFTA preferential tariff treatment a written declaration attesting that the good qualified as an originating good at the time of importation has its genesis in the agreement itself:
Article 502: Obligations Regarding Importations
1. Except as otherwise provided in this Chapter, each Party shall require an importer in its territory that claims preferential tariff treatment for a good imported into its territory from the territory of another Party to:
(a) make a written declaration, based on a valid Certificate of Origin, that the good qualifies as an originating good;
(b) have the Certificate in its possession at the time the declaration is made;
(c) provide, on the request of that Party's customs administration, a copy of the Certificate; and
(d) promptly make a corrected declaration and pay any duties owing where the importer has reason to believe that a Certificate on which a declaration was based contains information that is not correct.
2. Each Party shall provide that, where an importer in its territory claims preferential tariff treatment for a good imported into its territory from the territory of another Party:
(a) the Party may deny preferential tariff treatment to the good if the importer fails to comply with any requirement under this Chapter; and
(b) the importer shall not be subject to penalties for the making of an incorrect declaration, if it voluntarily makes a corrected declaration pursuant to paragraph 1(d).
3. Each Party shall provide that, where a good would have qualified as an originating good when it was imported into the territory of that Party but no claim for preferential tariff treatment was made at that time, the importer of the good may, no later than one year after the date on which the good was imported, apply for a refund of any excess duties paid as the result of the good not having been accorded preferential tariff treatment, on presentation of:
(a) a written declaration that the good qualified as an originating good at the time of importation (emphasis added);
(b) a copy of the Certificate of Origin; and
such other documentation relating to the importation of the good as that Party may require.
[Emphasis added.]
Article 502, North American Free Trade Agreement, December 17, 1992, Can-Mex-U.S., 32 I.L.M. 289 (1993).
In previous rulings, CBP has held that an importer must substantiate or provide some proof that it had a valid certificate of origin in its possession when a NAFTA claim for preferential tariff treatment was made if the certificate has not been provided in the required time period when so requested. See HQ 228506 (June 7, 2000), HQ 561901 (January 24, 2001), HQ 561862 (February 22, 2001) and HQ 561991 (March 29, 2001).
The Statement of Administrative Action to the NAFTA references the requirement in Article 502 of the NAFTA that an importer possess, at the time a claim for preferential treatment is made, a valid certificate of origin completed by the exporter of the goods:
Article 501 calls for the three governments to create a uniform “certificate of origin” for claims that particular goods “originate” in the NAFTA region and thus qualify for the special tariff treatment provided under the Agreement. In order to obtain preferential NAFTA tariff treatment, an importer must possess, at the time a claim for preferential treatment is made, a valid certificate of origin completed by the exporter of the goods. The importer may then declare to the customs administration of the importing country, on the basis of that certificate, that the goods are “originating” goods and thus qualify for special NAFTA tariff rates. [Emphasis added.]
The North American Free Trade Agreement Act Statement of Administrative Action, H.R. Doc. No. 103-159, vol. 1, at 450, 499 (103d Cong., 1st Sess. 1993).
CBP’s regulations require that an importer who makes a claim and declaration for NAFTA preferential tariff treatment must have a Certificate of Origin in its possession when the declaration is made upon importation--and the port director may deny preferential treatment to the imported good involved if the certificate was not in the possession of the importer when the declaration was made:
Sec.181.21 Filing of claim for preferential tariff treatment upon importation.
(a) Declaration. In connection with a claim for preferential tariff treatment for a good under the NAFTA, the U.S. importer shall make a written declaration that the good qualifies for such treatment. The written declaration may be made by including on the entry summary, or equivalent documentation, the symbol “CA'' for a good of Canada, or the symbol “MX'' for a good of Mexico, as a prefix to the subheading of the HTSUS under which each qualifying good is classified. Except as otherwise provided in Sec. 181.22 of this part and except in the case of a good to which appendix 6.B. to Annex 300-B of the NAFTA applies (see, however, Sec. 12.132 of this chapter), the declaration shall be based on a complete and properly executed original Certificate of Origin, or copy thereof, which is in the possession of the importer and which covers the good being imported. [Emphasis added.]
In light of the above, an importer who makes a claim and declaration for NAFTA preferential tariff treatment upon importation must have a properly executed and valid Certificate of Origin in its possession at the time the claim and declaration are made.
In the instant case, the Certificate of Origin was not in the possession of the protestant at the time of entry, when it made its NAFTA claim and declaration. The language of 19 U.S.C. § 1520(d) is clear to the effect that a claim under that provision may be made for a NAFTA claim “. . . for which no claim for preferential tariff treatment was made at the time of importation . . .”
Because the protestant made a NAFTA claim at the time of importation, its claim under 19 U.S.C. § 1520(d) was correctly denied by CBP. See the language, above, in 19 U.S.C. § 1520(d), 19 CFR § 181.31, and section 502 to NAFTA to the effect that a requirement for a post-importation claim for NAFTA is that no claim for preferential treatment was made at the time of importation.
Therefore, we find that the protestant’s protest of CBP’s denial of its claim under 19 U.S.C. § 1520(d) is without merit and should be denied.
HOLDING:
Because the protestant made a NAFTA claim at the time of importation, its claim under 19 U.S.C. § 1520(d) was correctly denied by CBP. See the language, above, in 19 U.S.C. § 1520(d), 19 CFR § 181.31, and Article 502 of NAFTA to the effect that a requirement for a post-importation claim for NAFTA is that no claim for preferential treatment was made at the time of importation.
Therefore, the protestant’s protest of CBP’s denial of its claim under 19 U.S.C. § 1520(d) is without merit.
You are instructed to deny the protest.
In accordance with the Protest/Petition Processing Handbook (CIS HB, December 2007), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the office of Regulations and Rulings 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