United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 562825 - HQ 563026 > HQ 563009

Previous Ruling Next Ruling
HQ 563009





August 17, 2004

CLA-2 RR:CR:SM 563009 AL

Category: CLASSIFICATION

Port Director
U.S. Customs and Border Protection
Attention: Ms. Jina Barber, Entry Supervisor 9901 Pacific Highway
Blaine, Washington 98230

RE: 19 USC 1514(a); 19 CFR 174.12(e); 19 USC 1514(a)(5); 19 USC 1520(d); Post-Importation duty refund claim; 19 CFR 181.21

Dear Director:

This is in response to the resubmission of protest number 3004-02-150003 for further review, concerning the preferential tariff treatment under the North American Free Trade Agreement (“NAFTA”) to breaded frozen chicken breast fillets. We have considered the points raised by the protestant, A.N. Deringer on behalf of Pinty’s Premium Foods Inc. (“Pinty’s Foods”), and by your office. Our decision is as follows.

FACTS:

According to subject entry 551-XXXX997-5, “Breaded Frozen Chicken Breast Fillets” entered the United States from Canada on January 23, 2001 and were liquidated on December 7, 2001.

On January 31, 2001, A.N. Deringer faxed a letter to the shipper, Pinty’s Foods, stating that it did not have a NAFTA Certificate of Origin on file for the subject entry. Pinty’s Foods faxed a copy of its NAFTA Certificate of Origin, signed and dated February 5, 2001, for the blanket period of January 1, 2001 to December 31, 2001. According to a confirmation report, Pinty’s Foods faxed the NAFTA Certificate of Origin to A.N. Deringer on February 6, 2001. A.N. Deringer received the faxed NAFTA Certificate of Origin from Pinty’s Foods but failed to identify it with the subject entry. Therefore, unaware that the faxed NAFTA Certificate of Origin from Pinty’s Foods was for the subject entry, A.N. Deringer notified Pinty’s Foods on February 19, 2002 that it still had not received its NAFTA Certificate of Origin as requested on January 31, 2001. Subsequent to A.N. Deringer’s February 19, 2002 letter, the faxed NAFTA Certificate of Origin from Pinty’s Foods was correlated to the subject entry.

On March 7, 2002, A.N. Deringer filed an electronic protest, asserting that the merchandise was mis-classifed under subheading 1602.32.00, Harmonized Tariff Schedule of the United States (“HTSUS”), and that the merchandise was eligible for preferential tariff treatment under NAFTA. The protestant concedes that its filing of a post-importation duty refund claim is untimely, but despite this untimely filing, the protestant assumes that the liquidation is incorrect because the classification should have included the “CA” prefix. Therefore, the protestant is requesting a reliquidation of the subject entry with the “CA” prefix to the classification in order to receive preferential tariff treatment.

The port asserts that the entry was automatically liquidated without U.S. Customs and Border Protection (“CBP”) review. The port further asserts that the filing of a post-importation duty refund claim under NAFTA is limited to a one-year period from the date of importation and therefore, there is no protestable CBP decision. However, the protestant argues that despite the untimely filing of the post-importation duty refund claim under NAFTA, the entry should have been liquidated with the “CA” prefix to the subheading of the HTSUS. Therefore, the protestant requests that CBP reliquidate the subject entry that would account for the “CA” prefix so that the subject entry can receive preferential tariff treatment and ultimately, a refund of the duty paid.

ISSUE:

Whether the subject entry qualifies for preferential tariff treatment under NAFTA.

LAW and ANALYSIS:

According to 19 U.S.C. 1514(a),

Except as provided in subsection (b) of this section, . . . and section 1520 of this title (relating to refunds and errors), decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to-

(1) the appraised value of merchandise;
(2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title; (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under section 1520(c) of this title;
shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section . . . .

Moreover, a protest must be filed within 90 days from the date of liquidation. See 19 CFR 174.12(e). In the instant case, the entry was liquidated on December 7, 2001 and the protest was filed on March 7, 2002. Therefore, the protest has been filed timely.

The protestant contends that the subject entry was incorrectly liquidated, but the port argues that there is no protestable issue here because the entry was “automatically liquidated.” However, the port is unable to substantiate its claim that an automatic liquidation occurred in this case. The ACS record for this entry only indicates that the entry was liquidated one time and it was noted that there was no change in liquidation. There is no indication that an automatic liquidation occurred in this case. Under 19 U.S.C. 1514(a)(5), “. . . decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . liquidation of an entry as to the issues contained therein, or any modification thereof. . .” is a protestable issue. Based on the evidence provided, we can only conclude that the liquidation at issue was made by the port, a CBP decision which is protestable under 19 USC 1514(a)(5).

In protesting the port’s liquidation of the subject entry, the protestant contends that the classification of the merchandise, subheading 1602.32.00, HTSUS, should have been liquidated with the “CA” prefix and not without this prefix, as the subject entry was entered at the time of liquidation. As a remedy to the instant protest, the protestant seeks reliquidation of the entry in order to claim preferential tariff treatment under NAFTA and to receive a refund of the duty paid.

According to 19 U.S.C. 1520(d),

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 rules of origin set out in section 3332 of this title 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-
a written declaration that the good qualified under those rules at the time of importation; copies of all applicable NAFTA certificates of Origin (as defined in section 1508(b)(1) of this title); and such other documentation relating to the importation of the goods as the Customs Service may require.

Under 19 CFR 181.21,

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, . . . , as a prefix to the subheading of the HTSUS under which each qualifying good is classified.

Here, the importer declared the subject merchandise under subheading 1602.32.00, HTSUS, and as a result, the port correctly liquidated the entry as entered. Whether or not the importer’s intent was to qualify the good under NAFTA, the protestant had a remedy to claim preferential tariff treatment. The protestant had the opportunity to file a post-importation duty refund claim pursuant to 19 U.S.C. 1520(d), by filing the claim within one year after the date of importation. The date of importation was January 23, 2001. Protestant’s letter, dated February 19, 2002 to Pinty’s Foods indicated that the claim was never filed. The protest was filed on March 7, 2002 and on March 11, 2002, the protestant sent a cover letter along with supporting documents to support a post-importation duty refund claim. The relevant documentation to file a post-importation duty refund claim was provided to the port after the one-year time frame. Therefore, the protestant is precluded from filing a post-importation duty refund claim under NAFTA, despite the fact that the subject entry failed to include the “CA” prefix to the HTSUS.

HOLDING:

Liquidation of the subject entry is a protestable issue under 19 USC 1514(a)(5). However, the port correctly liquidated the subject entry at the rate of duty asserted at the time of entry by the importer. Therefore, the protestant is not entitled to a reliquidation. Despite the fact that the subject entry did not include the “CA” prefix to the HTSUS, the protestant had an opportunity to file a post-importation duty refund claim but failed to do so timely.

Therefore, the protest should be denied.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 this decision must be accomplished prior to mailing 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 Rulings Division

Previous Ruling Next Ruling

See also: