Application for Further Review of Protest No. 2604-12-100016; Country of Origin Certificate; North American Free Trade Agreement; 1520(d) Claim Denial

July 21, 2014 HQ H240210 OT:RR:CTF:VS H240210 YAG CATEGORY: Valuation Port Director U.S. Customs and Border Protection 240 N. Freeport Drive Nogales, AZ 85621 RE: Application for Further Review of Protest No. 2604-12-100016; Country of Origin Certificate; North American Free Trade Agreement; 1520(d) Claim Denial Dear Port Director: This is in response to the Application for Further Review (“AFR”) of Protest No. 2604-12-100016 (the “Protest) filed by counsel on behalf of Continental Automotive Systems, Inc. (“Continental” or “Protestant”), regarding the denial of Protestant’s preferential tariff treatment claim under 19 U.S.C. §1520(d) of the North American Free Trade Agreement (“NAFTA”) on automotive materials entered at the Port of Nogales. We have reviewed the AFR filed by Protestant on December 13, 2012. We regret the delay in responding. FACTS: The goods at issue are similar to those entered by the Protestant and considered in Headquarters Ruling Letter (“HRL”) H244700, which our office issued on June 19, 2014, concerning the denial of preferential tariff treatment under NAFTA with respect to automotive materials entered by Continental at the Port of Nogales. The reason given for the denial by your office was an insufficient description of the assembly process in Mexico and the lack of NAFTA Certificates of Origin in the importer’s possession when NAFTA preferential duty treatment was claimed. In considering the information submitted with the protest, we found that Protestant’s description was sufficient but that it had not established that it had NAFTA Certificates of Origin in its possession when NAFTA duty treatment was claimed for some of the goods. In addition to making NAFTA claims which were considered in H244700, the importer did not claim NAFTA preference at the time of entry for some goods. Accordingly, on February 8, 2012, Protestant filed a post-importation NAFTA preference claim pursuant to 19 U.S.C. §1520(d), covering merchandise imported into the United States from February 9, 2011 to February 12, 2011. Protestant’s 1520(d) claim was denied by the Port of Nogales on June 18, 2012. This AFR followed. In filing this protest and subsequent request for an AFR, Protestant relied on NAFTA Certificates of Origin and the information presented for our consideration in HRL H244700, namely NAFTA Certificates of Origin, dated February 3, 2012 and May 15, 2011 for the blanket period January 1, 2011 to December 31, 2011, and NAFTA Certificate of Origin, dated February 6, 2012 for the blanket period January 1, 2012 to December 12, 2012. Thus, this case contains the same facts, claims, and information with respect to the same category of merchandise as specified in HRL H244700. ISSUE: Whether Continental’s NAFTA preferential tariff treatment claims under 19 U.S.C. §1520(d) should have been granted. LAW & 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 Customs Regulations implementing 19 U.S.C. §1520(d) are found in sections 181.31 through section 181.33 (19 CFR §181.31 through 181.33). Section 181.32(b) of the Customs Regulations (19 CFR §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 CFR §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 CFR §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. Protestant filed the declaration and statements required by 19 CFR §181.32(b) with respect to the entries under protest. Accordingly, since the claim under 19 CFR §181.31 is timely, the claim must be allowed provided a proper NAFTA Certificate of Origin pertaining to the good has been submitted for the entries covered by the protest, and there is no other basis in the record for denial (19 CFR §181.33(d)). In considering the information submitted on this assembly process in Mexico, we have issued our decision contained in HRL H244700 with respect to Protestant’s claim for preferential treatment under NAFTA made at entry. In this case, where no NAFTA claim was made for the imported merchandise at the time of entry, and NAFTA Certificates of Origin now cover the applicable blanket period at issue from January 1, 2011 to December 31, 2011, we find that Protestant’s post-importation NAFTA preference claim pursuant to 19 U.S.C. §1520(d) should be granted, provided the requisite information is provided by the Protestant to the Port in conformity with our decision in HRL H244700 and the parts not entered with a claim under NAFTA may be identified. HOLDING: The protest should be granted, in accordance with our decision in HRL H244700 and to the extent the requisite information is provided by the Protestant. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than sixty (60) days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision should be accomplished prior to mailing of this decision. Sixty (60) days from the date of this decision, the Office of International Trade; 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