CAFC Rules That NAFTA Claims After One Year Using Protest Procedure Not Allowed
In Xerox Corporation v. U.S., the Court of Appeals for the Federal Circuit (CAFC) ruled that the Court of International Trade (CIT) was correct in dismissing Xerox's protest of U.S. Customs and Border Protection's (CBP's) liquidation of 21 entries of electrostatic photocopiers and wire harnesses from Mexico, as Xerox did not timely file claims for NAFTA preferential treatment.
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The CAFC explains that for 22 entries of subject merchandise, Xerox did not claim at entry the preferential duty-free tariff treatment provided by NAFTA because it did not possess the requisite NAFTA Certificates of Origin. Xerox later submitted Certificates of Origin covering the 22 entries and for the first time asserted that the entries were entitled to a duty-free preference under NAFTA in a protest of the liquidation pursuant to 19 USC 1514(a).
CBP denied the protest regarding 21 of the 22 entries because the NAFTA post importation claims were untimely as they were not filed within one year of importation. CBP allowed the conversion of 1 entry to a post-importation NAFTA claim, as it was timely filed (within one year of the date of importation) and stated that it would be processed with a refund.
Regarding the 21 entries, the CAFC rules that in the absence of a proper claim for NAFTA treatment, either at entry or within a year of importation, CBP cannot make a protestable decision to deny an importer preferential NAFTA treatment, thus there is no decision to protest. Moreover, the CAFC ruled that 19 CFR 10.112 cannot be construed to increase the one-year time period for making a post importation NAFTA claim.
CAFC Court No. 05-1076, dated 09/19/05, available at http://www.fedcir.gov/opinions/05-1076.pdf
CIT Slip Op. 04-127, dated 10/07/04, available at http://www.cit.uscourts.gov/slip_op/Slip_op04/04-127.pdf