CSMS Message: 97-000992

TO : ALL ABI BROKERS.

FROM : JOHN ZZ-PIERCE

SUBJECT : POST-IMPORTATION NAFTA CLAIMS

DATE : 10/23/97

OCTOBER 23 1997
7296071

FO:TA JAP

TO : ALL PORT AND CMC DIRECTORS

FROM : ASSISTANT COMMISSIONER
OFFICE OF FIELD OPERATIONS

SUBJECT: 19 U.S.C. 1520(D): SOLE REMEDY FOR FILING POST-
IMPORTATION NAFTA CLAIMS

PASS TO: ALL SUPERVISORS, IMPORT AND ENTRY SPECIALISTS, BROKERS,
AND IMPORTERS

IT IS CUSTOMS POSITION THAT, WITH FEW EXCEPTIONS, THE EXCLUSIVE
AUTHORITY FOR A NAFTA CLAIM MADE AFTER THE ENTRY SUMMARY IS FILED
IS 19 U.S.C. 1520(D). FOR THAT REASON, A POST-IMPORTATION NAFTA
CLAIM MUST BE FILED WITHIN ONE YEAR FROM THE DATE OF IMPORTATION
OF THE MERCHANDISE. THE LIQUIDATION STATUS OF THE ENTRY IS
IRRELEVANT TO THE ABILITY TO MAKE A NAFTA CLAIM AFTER THE ENTRY
SUMMARY IS FILED.

______
ACTION

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PROTESTS

NAFTA CLAIMS MAY ONLY BE MADE EITHER AT THE TIME OF ENTRY OR,
PROVIDED NO PREVIOUS CLAIM WAS MADE, AS A POST-IMPORTATION CLAIM
PURSUANT TO 19 U.S.C. 1520(D) AND 19 CFR 181.32(B) SO LONG AS THE
1 YEAR PERIOD FROM THE DATE OF IMPORTATION HAS NOT EXPIRED.
IMPORTERS SEEKING POST-IMPORTATION NAFTA PREFERENTIAL DUTY
TREATMENT BECAUSE THEY DID NOT POSSESS A NAFTA CERTIFICATE OF
ORIGIN (CO) AT THE TIME OF ENTRY SUMMARY MAY CLAIM NAFTA
PREFERENCE ONLY PURSUANT TO A 19 U.S.C. 1520(D) CLAIM, IF THAT
CLAIM IS FILED "WITHIN 1 YEAR AFTER THE DATE OF IMPORTATION" AND
ACCOMPANIED BY THE REQUIRED INFORMATION AS SET FORTH IN 19 CFR
181.32(B). CUSTOMS FIELD PERSONNEL ARE TO REJECT ANY POST-
IMPORTATION NAFTA CLAIM FILED PURSUANT TO A PROTEST UNDER 19
U.S.C 1514 AS RAISING A NON-PROTESTABLE MATTER. FIELD PERSONNEL
ARE TO ISSUE THIS REJECTION BY PLACING A STATEMENT ON THE CF 19
STATING THAT THE PROTEST IS BEING REJECTED BECAUSE IT DOES NOT
RAISE A PROTESTABLE MATTER OR BY CHECKING THE "REJECTED AS NON-
PROTESTABLE" BOX UNDER ITEM 17 OF THE CF 19.

ADDITIONALLY, THE IMPORTER IS TO BE NOTIFIED THAT THE PROPER
METHOD FOR MAKING A CLAIM FOR NAFTA PREFERENTIAL DUTY TREATMENT
IS PROVIDED UNDER THE PROVISIONS OF 19 U.S.C. 1520(D). A NAFTA
CLAIM FILED AFTER EXPIRATION OF THE ONE YEAR PERIOD FROM THE DATE
OF IMPORTATION IS UNTIMELY AND SHOULD BE DENIED EVEN IF THE ENTRY
HAS NOT BEEN LIQUIDATED, OR IF LIQUIDATED, THE LIQUIDATION HAS
NOT BECOME FINAL. ALL 1520(D) CLAIMS WILL CONTINUE TO BE PLACED
IN THE PROTEST MODULE FOR TRACKING PURPOSES IN ACCORDANCE WITH
CURRENT INSTRUCTIONS.

NOTE: CUSTOMS IS ENTITLED TO RELY ON AN IMPORTER'S DECLARATION
PURSUANT TO 19 U.S.C. 1484 WHEN FIXING THE RATE OF DUTY
APPLICABLE TO SUCH MERCHANDISE AND LIQUIDATING AN ENTRY PURSUANT
TO 19 U.S.C. 1500. CUSTOMS DECISION IS CORRECT AS A MATTER OF
LAW AND AN IMPORTER CANNOT, UNDER THE GUISE OF CHALLENGING A
CUSTOMS DECISION, PROTEST ITS OWN FAILURE TO MEET THE NECESSARY
LEGAL REQUIREMENTS SET FORTH IN 19 CFR 181.21(A).

HOWEVER, AN IMPORTER MAY LEGITIMATELY PROTEST PURSUANT TO 19
U.S.C. 1514, LIQUIDATION OF AN ENTRY AT A NON-NAFTA RATE OF DUTY
IF THE IMPORTER CAN IDENTIFY SOME CUSTOMS ACTION AND/OR
INTERVENTION THAT PREVENTED AN OTHERWISE LEGITIMATE NAFTA CLAIM
FROM BEING MADE AT ENTRY.

IF A POST-IMPORTATION NAFTA CLAIM IS FILED PRIOR TO THE
LIQUIDATION OF AN ENTRY, THE CLAIM CAN BE DENIED ONLY AFTER THE
COMPLETION OF AN ORIGIN VERIFICATION, 19 CFR 181.71. IN THIS
INSTANCE, THE PORT DIRECTOR SHALL DENY THE CLAIM WHEN THE ENTRY
IS SUBSEQUENTLY LIQUIDATED AT A NON-NAFTA RATE OF DUTY. A
PROTEST MAY BE FILED WITHIN 90 DAYS OF THAT LIQUIDATION.

IF A 1520(D) CLAIM IS FILED WITHIN ONE YEAR AFTER THE DATE OF
IMPORTATION BUT AFTER THE LIQUIDATION OF THE ENTRY, THE 1520(D)
CLAIM CAN BE DENIED ONLY AFTER COMPLETION OF A NEGATIVE ORIGIN
VERIFICATION, 19 CFR 181.71, AND ANY WRITTEN NOTICE OF DENIAL,
ISSUED UNDER 19 CFR 181.33(D)(3), SHALL INDICATE THAT A PROTEST
MUST BE FILED WITHIN 90 DAYS OF THE DATE OF THE NOTICE DENYING
THE CLAIM IN ACCORDANCE WITH 19 CFR 174.12(E)(2).

_________________
1520(C)(1) CLAIMS

AN IMPORTER MAY NOT PETITION FOR RELIQUIDATION UNDER 1520(C)(1)
IF THE ALLEGED CLERICAL ERROR, MISTAKE OF FACT, OR OTHER
INADVERTENCE ON A LIQUIDATED ENTRY TO OBTAIN NAFTA TARIFF
PREFERENCE ON IMPORTS IS THAT THE IMPORTER DID NOT POSSESS A
NAFTA CO AT THE TIME OF ENTRY. IN THIS SITUATION, THE IMPORTER
HAD FULL KNOWLEDGE OF THE FACTS, I.E., THE IMPORTER DID NOT
POSSESS THE REQUIRED NAFTA CO AT TIME OF ENTRY, AND, THEREFORE,
IN ACCORDANCE WITH THE LAW, COULD NOT MAKE A NAFTA CLAIM AT THE
TIME OF ENTRY. CUSTOMS FIELD PERSONNEL ARE TO DENY POST-
IMPORTATION NAFTA CLAIMS FILED UNDER 1520(C)(1) BY AN IMPORTER
SEEKING TO OBTAIN NAFTA TARIFF PREFERENCE ON IMPORTS FOR WHICH
THE IMPORTER DID NOT POSSESS A CO AT THE TIME OF ENTRY BUT
OBTAINED ONE AFTERWARDS. THE DENIAL SHALL INDICATE THAT THERE
WAS NO ERROR IN THE LIQUIDATION.

HOWEVER, THERE MAY BE LIMITED CIRCUMSTANCES IN WHICH
RELIQUIDATION UNDER 19 U.S.C. 1520(C)(1) MIGHT BE APPROPRIATE.
IF THE IMPORTER CAN SHOW BY EITHER THE ENTRY RECORD ITSELF OR BY
DOCUMENTARY EVIDENCE THAT THE FAILURE TO ASSERT A NAFTA CLAIM AT
ENTRY WAS THE RESULT OF A CLERICAL ERROR, MISTAKE OF FACT OR
OTHER INADVERTENCE NOT AMOUNTING TO AN ERROR IN THE
INTERPRETATION OF THE LAW THE CLAIM MAY BE GRANTED. DOCUMENTARY
EVIDENCE MAY INCLUDE AFFIDAVITS FROM AN INDIVIDUAL WHO HAS
KNOWLEDGE OF THE FACTS CERTIFIED IN THE AFFIDAVIT; IT DOES NOT
INCLUDE STATEMENTS BY THE PETITIONER'S COUNSEL ON EVENTS FOR
WHICH THAT COUNSEL DOES NOT ASSERT PERSONAL KNOWLEDGE.

NOTE: A 1520(C)(1) CLAIM MUST BE ACCOMPANIED BY THE REQUIRED
INFORMATION AS SET FORTH IN 181.32(B). THE NAFTA CO PROVIDED BY
THE CLAIMANT MUST COVER THE GOODS IN QUESTION AND HAVE BEEN
EXECUTED ON OR BEFORE THE DATE OF ENTRY SUMMARY. FURTHERMORE,
GOODS COVERED BY A BLANKET CO MUST HAVE BEEN IMPORTED WITHIN THE
DATES SPECIFIED ON THE CO. THE CLAIMANT MUST PROVIDE EVIDENCE
THAT THE LIQUIDATION WAS IN ERROR AND THAT ERRONEOUS LIQUIDATION
WAS THE RESULT OF A CLERICAL ERROR, MISTAKE OF FACT OR OTHER
INADVERTENCE NOT AMOUNTING TO AN ERROR IN THE INTERPRETATION OF
THE LAW. CUSTOMS PERSONNEL ARE INSTRUCTED TO CAREFULLY REVIEW
ALL NAFTA CLAIMS MADE UNDER 1520(C)(1) TO ENSURE THESE
REQUIREMENTS ARE MET AND THE CLAIM IS VALID.

_____________________________
VERIFICATION OF A NAFTA CLAIM

CUSTOMS RESERVES THE RIGHT TO VERIFY ANY CLAIM FOR NAFTA
PREFERENTIAL TARIFF TREATMENT. IF THE VERIFICATION OF A
CERTIFICATE OF ORIGIN IS DETERMINED TO BE NECESSARY BY THE PORT
DIRECTOR, SUCH VERIFICATION WILL BE CONDUCTED IN ACCORDANCE WITH
CURRENT OPERATING PROCEDURES.

________
INTEREST

ON OCTOBER 11, 1996, THE PRESIDENT SIGNED THE MISCELLANEOUS
TRADE AND TECHNICAL CORRECTIONS ACT OF 1996 (THE ACT), PUB. L.
NO. 104-295, 110 STAT. 3514, WHICH AMENDED 19 U.S.C. 1505(C) TO
LIMIT THE AMOUNT OF INTEREST THAT MAY BE RECOVERED UNDER A POST-
IMPORTATION CLAIM FOR NAFTA PREFERENTIAL TREATMENT UNDER
19 U.S.C. 1520(D). CONSEQUENTLY, INTEREST RECOVERED BY AN
IMPORTER MAKING A POST-IMPORTATION NAFTA DUTY CLAIM ACCRUES FROM
THE DATE ON WHICH SUCH CLAIM IS MADE, NOT FROM THE DATE THE
IMPORTER OF RECORD DEPOSITED ESTIMATED DUTIES.

________________________________
MERCHANDISE PROCESSING FEE (MPF)

IF A VALID POST-IMPORTATION 1520(D) NAFTA CLAIM IS FILED WITHIN
ONE YEAR OF IMPORTATION AND PRIOR TO LIQUIDATION OF THE ENTRY,
THE ENTRY IS TO BE LIQUIDATED AT THE NAFTA RATE AND THE MPF IS TO
BE REFUNDED, UNLESS AN ORIGIN VERIFICATION IS COMPLETED AND A
DETERMINATION IS MADE THAT THE GOODS DO NOT QUALIFY FOR NAFTA
TREATMENT. A DECISION, UNDER THESE CIRCUMSTANCES, TO LIQUIDATE
THE ENTRY AT A NON-NAFTA RATE WOULD PRESENT A PROTESTABLE MATTER
UNDER 19 U.S.C. 1514.

NOTE: CUSTOMS HAS TAKEN THE POSITION THAT MPF IS NOT REFUNDABLE
FOR A 1520(D) CLAIM FILED AGAINST A LIQUIDATED ENTRY SUMMARY (SEE
GENERAL NOTICE, "POST-IMPORTATION DUTY REFUND CLAIMS UNDER THE
NAFTA", PUBLISHED ON JANUARY 29, 1997, IN THE CUSTOMS BULLETIN,
VOLUME 31, NUMBER 5, HQ 227127 AND 227254, BOTH DATED DECEMBER
10, 1996, AND HQ 227245 DATED MAY 6 1997). HOWEVER, CUSTOMS
PUBLISHED ON AUGUST 27, 1997, IN THE CUSTOMS BULLETIN, VOLUME 31,
NUMBER 35, GENERAL NOTICE, "PROPOSED MODIFICATION OF GENERAL
NOTICE AND CUSTOMS RULING LETTER RELATING TO THE MERCHANDISE
PROCESSING FEES ON POST-IMPORTATION DUTY REFUND CLAIMS UNDER THE
NAFTA", IN WHICH THE AGENCY PROPOSES MODIFYING THE PREVIOUSLY
NOTED GENERAL NOTICE AND HQ RULINGS TO ALLOW THE REFUND OF MPF ON
A 1520(D) CLAIM FILED AGAINST A LIQUIDATED ENTRY SUMMARY.

PORTS HAVE BEEN REQUESTED TO WITHHOLD ACTION ON ALL PENDING
1520(D) CLAIMS FILED AGAINST LIQUIDATED ENTRY SUMMARIES UNTIL
FURTHER NOTICE FROM HEADQUARTERS.

IF YOU OR YOUR STAFF SHOULD HAVE ANY QUESTIONS REGARDING THESE
INSTRUCTIONS, PLEASE CONTACT MR. JOHN PIERCE, TRADE AGREEMENTS,
AT (202) 927-1249.

ROBERT S. TROTTER
/S/