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HQ 229249

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March 15, 2002

LIQ-9

RR:CR:DR 229249 IDL

CATEGORY: POST-ENTRY NAFTA CLAIMS

Eugenio Garza

Port Director
U.S. Customs Service
World Trade Bridge
715 Bob Bullock Loop
Laredo, TX 78045

RE: 19 U.S.C. 1520(d); 19 CFR 181, Subparts C, D; 19 CFR 177.11

Dear Mr. Garza:

This is in response to your request for Internal Advice, dated July 25, 2001, concerning Cummins Engine Company’s post-entry NAFTA refund request.

FACTS:

Counsel claims that Cummins Engine Company (“Cummins”) filed a post-entry NAFTA refund request for $229,874.00 with the port of Laredo, TX, on May 2, 1997, pursuant to 19 U.S.C. 1520(d). The alleged request (“petition”) covered numerous entries made by Cummins during the period of January 1, 1997 through April 28, 1997.

According to the port, in July 1997, a Cummins representative, concerned that no Customs number had been assigned to its 1520(d) petition, contacted a Laredo protest officer. However, a search of the Customs Automated Commercial System revealed no petition corresponding with the subject entry numbers. The protest officer informed Cummins that it was unlikely that a two-month old petition could exist and not be loaded into the system.

In September 1997 and December 1997, Cummins again inquired by telephone on the petition, and the port repeatedly advised that no petition had been received. On January 11, 2000, Cummins submitted a new post-entry NAFTA request for refund, explaining that it previously filed a timely petition on May 2, 1997.

On July 5, 2000, the port issued a letter to Cummins stating that upon its review of the facts surrounding the circumstances, it has determined that the petition was never received by the port; that Cummins now had the option of filing an Internal Advice request against the port’s refusal to process Cummins request for post-entry NAFTA duty refund, in accordance with 19 CFR 177.11(b)(3).

On or about February 1, 2001, the port submitted counsel’s request for Internal Advice concerning the petition. As evidence, the port submitted to ORR an affidavit from Javier Flores, Entry Specialist, dated August 27, 2001. Mr. Flores acknowledges that his signature on a Fed Ex delivery log, dated May 2, 1997, is authentic. However, Mr. Flores has no recollection of signing for the package, and no knowledge of the contents of the package delivered, since his task was merely to sign the delivery log and to distribute the package to the addressee. Mr. Flores assumes that he did deliver the package to the protest desk at that time.

The port also submitted a statement from Customs employee, Paul Simonicini. Mr. Simonicini states that Randall Dotson, a Cummins representative, contacted him by mail on July 30, 1999. The letter states that Cummins sent the missing petition to Customs on June 15, 1997. The following are Mr. Simonicini’s notes pertaining to a telephone conversation he had with Mr. Dotson:

Received status request dated 08/02/99 from CumminsonNAFTA claims. I called and left a message and Mr. Dotson returned my call today. I explained that I had gone over these same petitionsseveral times previously. I explained the following:

(2) NAFTA claim for dates January 1, 1997 through April 28, 1997 was never received by Customs. They show a date of June 15, 1997 as the mailing date to us. I explained that if they could prove that we did receive it that we would load the petition as of that date. He asked if a Fed Ex receipt would do for proof and I said that it should. I then said if they could produce proof I would show it to my supervisors for their decision.

Mr. Dotson later submitted to Mr. Simonicini “receipt paperwork for Fed Ex showing that a package was received by Customs on May 2, 1997.” Mr. Simonicini then noticed that the date on the delivery evidence, May 2, 1997, was inconsistent with the date of mailing alleged by Mr. Dotson, June 15, 1997 during their telephone conversation. Cummins explains in its petition of January 11, 2000, that June 15, 1997 was an “estimation” date, given by Mr. Dotson prior to Federal Express furnishing a hard copy of proof of delivery.

Attached to the petition of January 11, 2000, Cummins submitted as evidence information consisting of two documents, each containing a list of entries of remanufactured engines and stated to cover the period from January 1, 1997, through April 28,1997. One document consists of 13 pages; the other consists of 25 pages. Both documents are labeled: "Diesel Recon Company, Duty Valuation Project". Neither document contains a reference to 19 USC 1520(d). Neither document states that it is a claim for tariff preference. Neither document is signed by any person.

In addition, Cummins submitted an affidavit by William Fisher, Cummins’ Customs Compliance Manager in Memphis, Tennessee. Mr. Fisher was responsible for filing the 1520 petition on the subject entries, and states that he prepared and then personally signed said petition on or about May 1, 1997. On or about the same date, he personally delivered the envelope to a “location within Cummins to be picked up by Fed Ex for delivery” to Customs, Laredo.

The port contends that the Fed Ex receipt is not indicative of a 1520(d) petition having been received, since numerous packages are received daily at the commercial operations building; that Cummins was initially informed of the status of the petition with approximately six months remaining on the 1-year deadline to file; that Cummins willfully failed to timely submit/resubmit the petition, or provide a copy of the original petition, constituting negligence on the company’s behalf; that such negligence should serve to discount its claim for post-entry NAFTA refund.

Counsel argues that the evidence is clear that Cummins submitted the claim in a timely manner and that the claim was received by Customs; that the most likely explanation for the failure of Customs to process the claim is that it was misplaced within Customs; that it is far less likely that Cummins, which is seeking a refund of over $225,000.00, sent Customs “an empty envelope”; that numerous cases support the common law proposition that proof of mailing raises a presumption of delivery.

ISSUE:

Whether the port was correct in refusing to process a post-entry NAFTA refund request for lack of petition?

LAW AND ANALYSIS:

Initially, we note that Cummins has met the requirements set forth in 177.11(b)(2) and (3) in requesting this Internal Advice.

Under 19 U.S.C. 1520(d), an importer may make a post-entry NAFTA refund request, subject to one-year time limitation from importation:

19 US.C. 1520
(d) Goods qualifying under NAFTA rules of origin 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 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. 19 U.S.C. 1520(d); see also 19 CFR 181.32

Also, pursuant to Customs Directive, Number 3550-070A, June 28, 1999, covering filing and processing of claims under the North American Free Trade Agreement (NAFTA):

Post-Importation Claims. An importer may file a claim for NAFTA preferential tariff treatment for originating goods after the entry summary is filed but no later than 1 year from the date of importation (see 19 CFR 181.31). Note: The clock for the 1-year period starts on the day following the date of importation. Such post-importation claims are to be made in writing to the Port Director of the port where the good was entered.

The subject entries were entered during the period of January 1, 1997 through April 28, 1997. Cummins claims to have filed its petition on or about May 2, 1997, within the statutory filing period addressed in 1520(d) and the Customs Directive, above.

Upon our review of the documentation, it remains unclear whether Cummins is claiming that the data contained in the Duty Valuation Project sheets was delivered to Customs on May 2, 1997. The data appears to be value information, and of little significance to filing a 1520(d) petition. Even if delivery of that information did occur on May 2, 1997, while lacking a valid 1520(d) petition, as set forth in 19 U.S.C. 1520(d) and 19 CFR 181.32, Cummins’ 1520(d) claim would fail.

A post-entry claim under 19 U.S.C. 1520 (d) is to contain a written declaration that the good qualified under the NAFTA rules of origin at the time of entry. While the documents contain the words " Origin Decl : Mex", those words do not meet the statutory requirement that an importer files a written declaration that the goods qualify for NAFTA tariff preference. There is no certificate of origin with either document as required by 19 U.S.C. 1520(d)(2). The statements required by 19 CFR 181.32 are also not present. Consequently, neither document would qualify as a valid claim under 19 USC 1520(d).

Nevertheless, we agree with the port that the Fed Ex receipt is not conclusive evidence that a 1520(d) petition was delivered. Actually, Mr. Dotson’s original claim that a petition was mailed on June 15, 1997, casts doubt on the veracity of the delivery of a petition on May 2, 1997.

Furthermore, the affidavit from William Fisher is merely hearsay evidence. In Andy Mohan, Inc. v. United States, 63 C.C.P.A. 104; 537 F.2d 516 (1976), the court held that affidavits presented as evidence were to be “scrutinized with care, because, being ex-parte, they were not subject to cross-examination.” Under 28 U.S.C. 2635, there is “discretion to refuse to admit the affidavits as an exception to the hearsay rule.” Evidence should be assessed in practical terms, considering such factors as completeness, adequacy of bases, and possible motives to deceive." In addition, the court cited as a factor the timeliness of the execution of affidavit following the occurrence of the transaction in question. See Mohan.

Further, where an affidavit is not a record kept by the supplier in the regular course of regularly conducted business, such affidavit is excludable hearsay evidence not falling within the purview of Federal Rules of Evidence, Rule 803(6). See Thom S. Zani v. United States, 86 F. Supp. 2d 1334 (Ct. Int’l Trade 2000).

In any event, the fact remains that no petition was ever recorded in the ACS system. Customs cannot grant refund requests based on unproven allegations of misplacement and circumstantial evidence. We reject Counsel’s argument that it is “far less likely that Cummins, which is seeking a refund of over $225,000.00, sent Customs an empty envelope.” The port has not made any suggestions as to the contents of the envelope, only that the contents have not been proven. In rebuttal, it can be argued that, given that Cummins was aware that the port had no record of the petition allegedly filed on May 2, 1997, and that a potential refund worth over $225,000.00 was at stake, Cummins, with minimal effort, would have been prudent to submit a new petition, or a copy of the old petition, within the statutory one-year time period. Instead, Cummins neglected to do so for over two years, before, finally, submitting a new petition in January 2001. Had Cummins acted judiciously and promptly following its conversations with the port in September and December of 1997, it might have been able to salvage its refund claim on post-entry NAFTA goods.

Without rebuttal evidence, we presume that Customs’ employees exercised their duties properly. We cannot accept the assertion advanced by Cummins that Customs failed to process the claim due to its misplacing of the petition. See Enron Oil Trading and Transportation Co. v. United States, 988 F.2d 130 (Fed. Cir. 1993); 1993 U.S. App. Lexis 38199); see also A.N. Deringer, Inc. v. United States, 20 C.I.T. 978 (1996); 1996 Ct. Intl. Trade Lexis 148; see also HQ 228780.

Finally, Counsel argues that it is well-settled that proof of mailing raises a presumption of delivery. The port does not dispute that something was mailed by Cummins, and that the port received a Fed Ex delivery on May 2, 1997. Rather, the contents of the package are in dispute. As such, Cummins has not presented any business record or other acceptable piece of evidence falling under an exception to the hearsay rule, which demonstrates that, specifically, the 1520(d) petition, was mailed on that day. See Thom S. Zani.

In sum, Cummins has presented no compelling evidence demonstrating that Cummins filed petition on May 2, 1997.

HOLDING:

Accordingly, the request for post-entry NAFTA refund under 19 U.S.C. 1520(d) should be DENIED.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant,
Director,

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