OT:RR:CTF:VS H339484 AM
Center Director
Machinery, Center of Excellence and Expertise (CEE)
U.S. Customs & Border Protection 109 Shiloh Dr.
Suite 300
Laredo, TX 78045
Attn: Paola Aguilera, Supervisory Import Specialist
RE: Application for Further Review of Protest 2304-23-102696; USMCA; Denial of §1520(d)
Claim
Dear Center Director:
This is in response to the Application for Further Review (“AFR”) of Protest No. 230423-
102696 timely filed on February 17, 2023, by counsel on behalf of Nortek Global HVAC,
LLC (hereinafter “protestant”), concerning the denial of the protestant’s post-importation United
States-Mexico-Canada Agreement (“USMCA”) claim under 19 U.S.C. § 1520(d). This protest is
designated the lead protest and addresses similar facts, issues, and arguments presented in protest
numbers 2304-23-102693, 2304-23-102694, and 2304-23-102695. The AFR was forwarded to
this office for consideration.
FACTS:
According to protest 2304-23-102696, protestant imported merchandise between June 28,
2021, and September 30, 2021, without claiming USMCA preferential tariff treatment. The
merchandise consisted of two groups of products produced in Mexico: (1) split air conditioner
and indoor coil units (and certain parts) imported separately, and (2) electric furnace units (and
certain parts). On June 30, 2022, the protestant filed a post-importation USMCA claim pursuant
to 19 U.S.C. § 1520(d) indicating that it had now received the USMCA Certifications of Origin
from the Mexican supplier. The protestant’s submission was identified as a “520(d) post
importation preference claim” in U.S. Customs and Border Protection’s (“CBP”) Automated
Commercial Environment (“ACE”) portal and was given claim number 2304-22-316361 in ACE.
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The post-importation claim filed and dated on June 30, 2022, refers to the dates of importation
from July 1, 2021, through September 30, 2021 (the prior importation dates are not mentioned).
Regarding the post-importation claim # 230422316361, received on June 30, 2022, on
August 26, 2022, the Machinery Center of Excellence and Expertise (“Machinery CEE”)
requested invoices for the entries filed on and before 365 days past importation. The protestant
uploaded supplementary documents to ACE on November 18, 2022. On May 24, 2023, your
office denied the protestant’s § 1520(d) claim, in part, due to the failure to provide invoices as
requested and because some of the claims were untimely. For example, the importation of June
28 and 29, 2021 were denied as they were untimely.
The 520(d) post-importation claim # 230422315956 pertains to protest numbers 2304-
23102693, 2304-23-102694, and 2304-23-102695. This post-importation claim was received on
May 18, 2022. As with the other post-importation claim, on August 26, 2022, the Machinery
CEE requested invoices for the entries filed on and before 365 days past importation. The
protestant uploaded supplementary documents to ACE on November 21, 2022. On July 19,
2023, your office denied the protestant’s § 1520(d) claim, in part, due to the failure to provide
invoices as requested and because some of the claims were untimely. Additionally, the
Machinery CEE noted there were previously refunded entries found in this petition.
The protestant subsequently filed these protests on February 17, 2023, to support the §
1520(d) claim for all entries imported during the relevant time. These protests are identified as a
protest type “514” in CBP’s ACE Portal. Your office denied these protests due to lack of
supporting documentation, previously refunded entries, and because some of the postimportation
claims were untimely. The protestant has submitted: (1) a list of all part numbers of the affected
merchandise on the subject entries; (2) a spreadsheet identifying the affected merchandise by part
number; (3) USMCA Certificates of Origin; (4) Pro Forma invoices; (5) packing lists; and (6)
entry paperwork.
ISSUE:
Whether the protestant’s USMCA preferential tariff treatment claim under 19 U.S.C. §
1520(d) was properly denied.
LAW AND ANALYSIS:
As the protestant did not claim USMCA preferential treatment at time of entry, their claim
is governed by 19 U.S.C. § 1520(d), concerning post-importation claims of USMCA preference.
Section 520(d), Tariff Act of 1930, as amended (19 U.S.C. § 1520(d)), provides, in relevant part,
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 (including any merchandise
processing fees) paid on a good qualifying under the rules of origin set out
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in section 202 of the United States-Chile Free Trade Agreement
Implementation Act, section 4033 of this title, section 202 of the United
States-Oman Free Trade Agreement Implementation Act, section 203 of the
United States-Peru Trade Promotion Agreement Implementation Act , section
202 of the United States–Korea Free Trade Agreement Implementation Act,
section 203 of the United States–Colombia Trade
Promotion Agreement Implementation Act, section 203 of the United
States–Panama Trade Promotion Agreement Implementation Act, or section
4531 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—
(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 and information relating to the importation of the
goods as the Customs Service may require.
(Emphasis added).
The CBP regulations implementing 19 U.S.C. § 1520(d) are found in 19 C.F.R. § 182.31 –
182.33. CBP’s regulations on post-importation USMCA claims further provide that:
A post-importation claim for a refund must be filed by presentation of the following:
(1) A written or electronic declaration or statement stating that the good was
an originating good at the time of importation and setting forth the number
and date of the entry or entries covering the good;
(2) A copy of a written or electronic certification of origin prepared in
accordance with § 182.12 demonstrating that the good qualifies for
preferential tariff treatment;
(3) A written statement indicating whether the importer of the good provided
a copy of the entry summary or equivalent documentation to any other
person. If such documentation was so provided, the statement must
identify each recipient by name, CBP identification number, and address
and must specify the date on which the documentation was provided; and
(4) A written statement indicating whether or not any person has filed a
protest, petition, or request for reliquidation; and if any such protest,
petition, or request for reliquidation has been filed, the statement must
identify the filing by number and date.
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See 19 C.F.R. § 182.32(b).
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.
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)) ….
The two § 1520(d) post-importation claims were received by CBP on March 18, 2022,
and June 30, 2022. The language of 19 U.S.C. § 1520(d) states that an importer must file a claim
for a refund of any excess duties at any time within one year after the date of importation of the
merchandise. The Machinery CEE correctly denied those claims with respect to merchandise
imported into the United States prior to May 18, 2021, and June 30, 2022, as they failed to meet
the one-year from the date of importation filing requirement. The § 1520(d) claim was timely
only with regard to the merchandise which were imported on and after May 18, 2021, and June
30, 2021. The claim cannot be rectified by a subsequent filing of a protest. Failing to make a
timely post-importation USMCA claim is a valid reason to deny a claim under 19 C.F.R. §
181.33(d)(1). Additionally, as noted by your office, some of the entries included in the protest
were already refunded.
HOLDING:
This protest should be DENIED.
You are instructed to notify the protestant of this decision 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
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https://rulings.cbp.gov/, which can be found on the CBP website at https://www.cbp.gov and
other methods of public distribution.
Sincerely,
for Yuliya A. Gulis, Director
Commercial Trade and Facilitation Division
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