HQ 227538 - Protest 0201-97-100084, Merchandise Processing Fee, Post-importation NAFTA tariff preference claims, refund of merchandise processing fee 19 U.S.C. 1514, 19 U.S.C. 1520(d) - United States International Trade Commision Rulings

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HQ 227538

February 23, 1998

LIQ-9-RR:CR:DR 227538

CATEGORY: LIQUIDATION

Port Director of Customs
U.S. Customs Service
P.O. Box 1490
St. Albans, VT 05478
ATTN: John Streker

RE: Protest 0201-97-100084, Merchandise Processing Fee, Post-importation NAFTA tariff preference claims, refund of merchandise processing fee 19 U.S.C. 1514, 19 U.S.C. 1520(d)

Dear Sir:

This is our decision on the application for further review of Protest 0201-97-100084.

FACTS:

The protest involves entry 112-xxx014-8. The entry was made on January 31, 1996. The importer did not make a claim for NAFTA tariff preference on the entry. Customs ACS records indicate that the entry was liquidated May 3, 1996. The file contains a letter from General Motors Corporation dated November 19, 1996, and which was received by Customs on November 26, 1996, that requests post-importation NAFTA tariff preference under 19 U.S.C. 1520(d).

The entry papers contain red notations made by Customs officers in processing the claim. Customs refused to refund the merchandise processing fee pursuant to HQ 227254 and HQ 227127, on January 3, 1997. The protestant, GMC General Motors Can, filed this protest on March 11, 1997.

ISSUES:

1. Whether this protestant may protest the denial of this claim?

2. Whether the merchandise processing fee can be refunded in a post-importation claim under 19 U.S.C. 1520(d).

LAW AND ANALYSIS:

Under 19 U.S.C. all decisions on an entry become final and conclusive on all parties with certain exceptions. One such exception is provided by 19 U.S.C. 1520(d). That statute permits an importer to make a post-importation claim for NAFTA tariff preference within one year of the date of importation.

The protest file does not contain evidence that a proper post-importation claim was made. Saturn Corporation was the importer of record on the entry. Under 19 U.S.C. 1520(d), the Customs Service is authorized to reliquidate an entry for which no claim was made if the importer in accordance with the Customs Regulations, files a claim that includes a written declaration that the imported good qualified under the NAFTA rules of origin and a copy of the applicable NAFTA certificate of origin.

The letter of November 19, 1996, is from General Motors Corporation. There is no showing that Saturn Corporation, the importer of record, is General Motors Corporation. Their identification as corporations indicates a separate legal identity for both entities. While the customhouse broker appears to be an agent for both corporations, both the entry papers and the letter show that the broker was not the importer of record and that it was not acting for Saturn Corporation on General Motor Corporation's letter of November 19, 1996. Consequently, the evidence does not show compliance with the express terms of 19 U.S.C. 1520(d).

The protestant is GMC General Motors Can. A comparison of the importer number used on the protest by GMC General Motors Can and that used on the entry by Saturn Corporation show that they are not the same. Under 19 U.S.C. 1514, the persons eligible to file a protest are listed in paragraph (c)(2). The only relevant listings include the importer or consignee shown on the entry papers, the exporter or producer who completed and signed a NAFTA certificate of origin on the merchandise, or an authorized agent of either. With respect to activities defined as Customs business, which includes filing entries, the payment of duties, taxes or other charges assessed on imported merchandise, or the refund thereof, the only authorized agent can be a licensed customhouse broker by virtue of 19 U.S.C. 1641. Saturn Corporation was both the importer of record and the consignee on the entry. The NAFTA certificate of origin and the commercial invoice in the entry papers show an entity other than GMC General Motors Can or General Motors Corporation to be the producer or exporter of the imported goods. The entry, General Motors Corporation's letter of November 19, 1996, and the protest do not show that latter two entities were acting as the agent of Saturn Corporation. Consequently, the evidence indicates that there was no compliance with 19 U.S.C. 1514.

Unless compliance with the relevant statutes cited can be shown, the protest is to be denied for the foregoing reasons.

The second issue is whether, on a timely, proper post-importation claim under 19 U.S.C. 1520(d), Customs is to refund the merchandise processing fee associated with the eligible merchandise. Customs has modified its prior position. Enclosed is a copy of HQ 227605, including a copy of the general notice, which should be applied in appropriate circumstances. To the extent that the importer can demonstrate compliance with the applicable statutes, as discussed above, the protest is to be granted.

HOLDINGS:

The evidence does not show compliance with 19 U.S.C. 1514 or 1520(d). The importer is to be given 30 days from the date of this decision to show that timely, proper claims for each entry were made and that a proper protest against the denial of the refund was made. If the importer fails to so demonstrate that compliance, the protest is to be denied.

The merchandise processing fee collected on merchandise for which a proper post-importation NAFTA claim is made is to be refunded.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office, with 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 the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

Enclosure

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