LIQ-9-01-LIQ-10
RR:CR:DR 227990 CK
Port Director of Customs
Otay Mesa Field Operations (Cargo)
Attn: Helene Wolf, IS
9777 Vie de La Amistad
Otay Mesa, California, 92173
RE: Internal Advice CLA-1-HCW; Protest No. 2501-96-300012; Claim for Preferential Tariff Treatment under NAFTA; 19 CFR 181.32-33; 19 U.S.C. 1520(d); 19 CFR 181.93
Dear Madam:
The above-referenced internal advice request was forwarded to this office for further review. We have considered the points raised by the importer and by your office, as well as the evidence provided, including information from the importer and from Customs records relating to this matter. Our decision follows:
FACTS:
According to the file and Customs records, on December 18, 1995, L.G. Electronics, Inc., (LG) submitted a letter to the US Customs Service, Office of Rulings and Regulations, in Washington D.C. This first letter is entitled, “NAFTA Advance Ruling Request.” In this December 18, 1995 letter, LG requested a North American Free Trade Agreement (“NAFTA”) Advance Ruling pursuant to 19 CFR 181.92(b)(6)(v) and 181.93, confirming that the 13" TV/VCR combinations (Combo) that LG imports from Mexico qualify as originating goods. LG sought a ruling to determine whether the 13" TV/VCR combinations were classifiable under subheading 8528.10.1100, HTSUS, and were entitled to duty-free treatment upon entry.
On December 24, 1997, the US Customs Service, Office of Regulations and Rulings, issued HQ Ruling 958954, determining, inter alia, that the TV/VCRs were eligible for preferential tariff treatment under NAFTA.
In addition, or as LG claims as a follow-up to its first letter requesting a classification ruling from Customs, LG submitted four additional letters: a second dated,
February 26, 1996; a third dated, March 1, 1996; a fourth dated, May 15, 1996; and a fifth dated July 11, 1996. Each of these additional four letters asserted that first letter constituted not only a request for a classification ruling, but also constituted a full and proper “Post-Importation NAFTA Claim,” pursuant to 19 U.S.C. §1520(d) and 19 C.F.R. §181.32-33. Each of these four additional letters asserted a linkage between the date of filing for the first letter and additional entries and blanket certificates of origin provided in the later letters.
The second letter, addressed to the Port Director at San Diego, dated February 26, 1996, stated that, “in accordance with provisions of Secs. 181.31,ff, of the Customs Regulations as set out in the North American Free Trade Agreement Interim Rule, . . . LG Electronics, Inc. now files this supplement to its Post-Importation Duty Refund Claim of December 18, 1995, seeking refunds of the Customs duties deposited on the TV/VCR combination models covered by the attached Certificate of Origin, which entered the United States at Calexico, CA as non-originating goods between January 1, 1995, and December 31, 1995.”
The second letter certified that LG had not provided any copies of the entry summaries or equivalent documentation to any other person. It also certified that LG was not aware of any other claim for a refund, waiver of reduction of duties relating to the goods now claimed to be originating within the meaning of Article 304 of the NAFTA Agreement. LG also certified that it had not filed any protests or requests for reliquidation of the entries . . . subject of this claim.
LG also makes the statement that it had initiated this claim by filing a petition to Customs Headquarters, requesting a ruling that the subject merchandise qualifies for NAFTA treatment. LG states that this letter supplements the first letter and that first letter should now be treated as [a] NAFTA Duty Refund Claim, but it should not be processed until there is a final ruling on the pending petition [the classification ruling request].
Attached to the second letter, is a list, four pages in length, of 91 entries, entered into the United States during a period dating from January 13, 1995 through June 23, 1995. Also attachment to the second letter are twelve blanket North American Free Trade Agreement Certificates of Origin, (CF 434). Six of the twelve blanket CF 434s are for a period dating from January 1, 1994 through June 30, 1994. The remaining six blanket CF 434s are for a period dating from January 1, 1995 through June 30, 1995. The 12 CF 434s are all for “Combos” under NAFTA preference “B,” pursuant to subheading 8528.12.01, HTSUS, signed by an authorized representative.
The third letter, dated March 1, 1996, submitted by counsel for LG, enclosed the balance of the Post-Importation NAFTA Refund Claim . . . for [LG’s] entries made from January 1, 1995 through December 31, 1995. LG’s counsel stated that, “[t]his Submission supplements and completes the NAFTA Refund Claim which our client previously filed on December 18, 1995 . . .” Attached to the third letter are six blanket CF 434s, each covering a period dating from July 1, 1995 through December 31, 1995. All are signed by an authorized individual from the importer’s operations. All of the blanket certificates of origin are for entries of merchandise classified under subheading 8528.12.01, HTSUS.
Counsel for LG submitted a fourth letter, dated May 15, 1996. Counsel reiterated its client’s claim that it considered the first letter and second letter as a combined package of specific NAFTA Claims which contain a list of the affected entries made during the first half of 1995. Counsel stated that LG would be filing additional NAFTA claims for entries made the second half of 1995 within the next 30 days. Counsel requested that its March 1, 1996 claim package be logged in and the “claim package” be “retained until it is ready to be processed.”
LG counsel also submitted a fifth letter, dated, July 11, 1996. This letter was entitled, “Post-Importation NAFTA Refund Claim of LG Electronics Alabama, Inc.” Counsel stated that it was enclosing for processing the balance of the Post-Importation NAFTA Claim of its client, L.G. Electronics Alabama, Inc. covering the TV/VCR’s imported in its client’s entries made at Calexico from July 1, 1995 through December 31, 1995, as per the Schedule of Entries and supporting Certificates of Origin. Counsel claimed that this was its final Submission, which consists of this letter and the required additional NAFTA Certificates of Origin of the subject merchandise, supplements and completes the NAFTA Refund Claim which its client previously filed on December 18, 1995.
ISSUE:
Which of the five letters, if any, or a combination thereof, constitutes a properly filed Post-Importation NAFTA Refund Claim?
LAW AND ANALYSIS:
Pursuant to the General Notice on Post-Importation Duty Refund Claims Under the NAFTA, January 29, 1997, Customs Bulletin and Decisions, vol. 31, no. 5, page 1, “[l]ike 19 U.S.C. 1520(c)(1), section 1520(d) is another limited exception to the finality of section 1514.
Section 1520(d) states in pertinent part,
“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 202 of the North American Free Trade Agreement Implementation Act 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 those rules at the time of importation;
(2) copies of all applicable NAFTA Certificates of Origin (as defined in section 508(b)(1)); and
(3) such other documentation relating to the importation of the goods as the Customs Service may require.”
Here, LG claims that it has filed for a post-importation NAFTA duty refund claim. The question to be resolved, however, is when, if at all, did LG adequately fulfill the requirements for the submission of a post-importation NAFTA duty refund claim (“claim”). LG’s assertions of having properly submitted a claim have not yet been rejected, in their entirety. The Port has not accepted LG’s linkage the filing time of its first letter-request for a classification ruling to LG’s subsequent 4 letters asserting the expansion of an already filed claim. Thus, we have been asked to determine whether one, any linkage may be justified, or two, absent the establishment of a valid claim under the first letter, to determine whether any of the additional four letters constitute a valid claim.
The Customs Regulations promulgated under 19 U.S.C. §1520(d) are found in 19 C.F.R. §181.31 through 181.33 (see also General Notice on Post-Importation Duty Refund Claims Under the NAFTA, January 29, 1997, Customs Bulletin and Decisions, vol. 31, no. 5, page 1).
Most relevant to our determination are the criteria set forth in 19 C.F.R. §181.32(b). Accordingly, a post-importation claim for a refund shall be filed by presenting the following:
(1) A written declaration stating that the good qualified as an originating good at the time of importation and setting forth the number and date of the entry covering the good.
(2) . . . a copy of each Certificate of Origin . . . pertaining to the good;
(3) A written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person . . . ;
(4) A written statement indicating whether or not the importer of the good is aware of any claim for refund, waiver or reduction of duties relating to the good within the meaning of Article 303 of the NAFTA (see subpart E of this part). . .
(5) A written statement indicating whether or not any person has filed a protest or a petition or request for reliquidation relating to the good under any provision of law, and if any such protest or petition for reliquidation has been filed, the statement shall identify the protest, petition or request by number and date.
LG seeks recognition of its December 18, 1995 letter (“first letter”), as a proper Post-Importation Duty Refund Claim, or in the alternative, its February 26, 1996 letter (“second letter”), or its third letter, submitted by counsel, dated March 1, 1996 (“third letter”), or its fourth, dated May 15, 1996, or its fifth, dated July 11, 1996.
The first letter is a straightforward request for a binding classification ruling. It is not a Post-Importation NAFTA duty refund claim. First, the letter is addressed to the Office of Regulations and Rulings, in Washington, D.C. rather than to the port in San Diego, CA, where the subsequent letters seeking a post-importation NAFTA claim were sent. Second, the letter requests a NAFTA advance ruling pursuant to 19 CFR 181.92(b)(6)(v) and 181.93. We note that those two sections set out the requirements for requesting an advance NAFTA ruling. Section 181.92(b)(6)(v) sets out that an advanced ruling may be requested under the provision of this subpart with respect to prospective NAFTA transactions. Subsection (v) allows for such an advanced ruling regarding whether a good qualifies as an originating good under General Note 12, HTSUS. Section 181.93 sets out the forms, and content to be included in the advanced ruling request including the description of the transaction. The December 18, 1995 letter complies with the requirements found in those sections, in that the subject matter of the request is set forth, the transaction is described, and the tariff classification sought and facts why it is entitled to such classification is set forth. Third, the letter does not list or make reference to any entry numbers for which a post-importation NAFTA claim is made. Therefore, this letter meets the requirements for sections 181.92(b)(6)(v) and 181.93, for an NAFTA advance ruling.
However, this letter does not even reference section 1520(d), nor state that a post-importation NAFTA claim is being made, and it does not meet the requirements for section 181.32, for post-importation NAFTA claim. The letter does not contain a statement that the goods qualify as originating goods at the time of importation, instead it requests a determination regarding the origination of the goods. See, 181.32(b)(1). The letter does not enclose or contain any Certificates of Origin. See, 181.32(b)(2). The letter does not contain a statement about whether LG has given a copy of the entry summary or equivalent documentation to any other parties. See, 181.32(b)(3). The letter does not contain a statement indicating whether or not LG is aware of any claim for refund, waiver or reduction of duties relating to the good. See, 181.32(b)(4). Finally, the letter does not contain a statement indicating whether or not any person has filed a protest or a petition for reliquidation relating to the good under any provision of law. See, 181.32(b)(5). Therefore, this letter, dated December 18, 1995 is not a valid post-importation NAFTA claim.
However, the second letter is different. The second letter dated February 26, 1996 appears to meet the conditions required under 19 U.S.C. §1520(d) and 19 C.F.R. §181.31-33, for a proper Post-Importation NAFTA duty refund claim. The second letter states that this is a post-importation NAFTA claim. The second letter references section 181.31 of the Customs Regulations, which concern a post-importation duty refund claim. The second letter states that the goods qualify as originating good at the time of importation and attaches a list of entries that contain the qualifying goods. See, 181.32(b)(1). Additionally, the second letter attaches certificates of origin. See, 181.32(b)(2). The second letter contains the certification that the claimant has not provided copies of the entry summaries or equivalent documentation to any other person. See, 181.32(b)(3). The second letter contains the certification that the claimant is not aware of any other claim for a refund, waiver of reduction of duties relating to the goods now claimed to be originating. See, 181.32(b)(4). Finally, the second letter contains the certification that the claimant has not filed any protests or requests for reliquidations of the entries the subject of the claim. See, 181.32(b)(5). Therefore, this second letter, dated February 26, 1996 meets the requirements for a post-importation NAFTA claim, under 19 USC 1520(d) and section 181.31 of the Customs Regulations.
The second letter and the third letter provide certificates of origin for the subject goods. No certificates of origin accompany the first letter. The second letter, dated February 26, 1996 provides six blanket certificates of origin for the period dating from January 1, 1994 through June 30, 1994, and six blanket certificates of origin for the period dating from January 1, 1995 through June 30, 1995. Insofar as section 1520(d) allows Customs to reliquidate an entry to refund any excess duties paid on a good qualifying . . . , within 1 year after the date of importation,” only entries for subject merchandise entered on or after February 26, 1995 (and for which all of the requisite documentation was also filed) would qualify for a reliquidation and post-importation NAFTA duty refund.
Thus, the subject entries described on the first six certificates of origin covering a time period of January 1, 1994 through June 30, 1994, would not meet the 1 year cut-off date. Further, with respect to the second set of 6 blanket certificates of origin, covering a time period of January 1, 1995, through June 30, 1995, only those subject entries dating from February 26, 1995 onward would be covered. Thus, none of the 1994 entries would qualify and neither would the first 29 subject entries found on pages one and two of the “LG Electronics Mexicali, S.A. de C.V., Schedule of Entries” covering a period dating from January 13, 1995 through February 24, 1995.
LG’s second letter constitutes a bona fide Post-Importation NAFTA duty refund claim. However, LG’s third letter (March 1, 1996) references additional entries covered by the time period dating from July 1, 1995 through December 31, 1995. This letter encloses six blanket certificates of origin covering these additionally identified entries for the period dating from July 1, 1995 through December 31, 1995.
LG’s third letter, identifying new entries and supplying new certificates of origin that cover an additional time period, needs to be analyzed as an additional claim. The Court of International Trade in Lykes Pasco, Inc., v. United States, 14 F. Supp. 2d 748 (1998) held that when a protestant enumerates each and every entry it desires to protest, the Customs Service cannot be expected to know that the protest is broader in scope than those listed entries. In that case the Plaintiff brought suit regarding 21 entries the Customs Service did not reliquidate because it found that the Plaintiff had not included them in its protest. The protestant, Lykes Pasco, had attached to its CF 19 a list of 100 entries it was protesting, which did not include the 21 entries at issue in the suit. The attached “statement of facts” to the protest had seventeen exhibits appended to it, including an audit report containing a list of the 21 entries at issue in the suit. The court stated in regard to plaintiff’s claim that the Customs Service should have known that it also meant to include those 21 entries it left off its list,
“It is well established that they [protests] need not be made with technical precision. Davies et.al. v. Arthur, 96 U.S. 148, 24 L. Ed. 758(1878). It has been well stated that ‘ . . . the Court, taking a liberal posture, has held that, however, cryptic, inartistic, or poorly drawn a communication may be, it is sufficient as a protest . . . if it conveys enough information to apprise knowledgeable officials of the importer’s intent and the relief sought.’ Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262, 377 F. Supp. 955, Cust. Dec. 4547 (1974). However, a rule that tolerates a reasonable degree of generality in the making of protests will not benefit plaintiff in this case.
The high degree of precision in the main operative portion of this protest does not permit the same rationale as was applied in cases where the protest was lacking in specificity. In those cases it was possible for the court to reason that the outside parameters of the dispute had been sufficiently defined and brought to the attention of the Customs Service. It was therefore fair to require the Customs Service to respond to the specific items and issues falling within those defined parameters. Here however, the burden that would be placed on the Customs Service would require it to go beyond the most exactly defined details of the protest, to realize that an inadvertence or omission has occurred, to incorporate its historical knowledge of the entire series of transactions that may have been involved and to make corrections. That is an unreasonable burden to place on the Customs Service.” Id at 749, 750.
The Lykes Pasco case therefore held that if entries are enumerated in a claim with specificity then the failure to identify additional entries is fatal to their inclusion in that claim. Hence, LG’s third letter purports to be an additional claim, rather than an amendment to the second letter because new entries are identified for the first time, and a new time period of eligibility is established by the certificates of origin. Next, it is necessary to determine if this third letter makes an effective post-importation NAFTA claim. In our file we have a copy of three screen prints, that list 28 entry numbers with various notations next to them.
However, the next question in the analysis is whether this third letter makes the required certifications found in section 181.32 of the Customs Regulations. A review of the letter, dated March 1, 1996, shows that the certifications in section 181.32 are not made in the letter. The letter states that it is a supplement submission that completes the NAFTA refund claim filed on December 18, 1995.
A case that is analogous, regarding a claimant’s ability to incorporate by reference a previous document, in order to make a claim is Atlantic Linen Importing Co. v. United States, 54 Cust. Ct. 290 (1964). The case involves the sufficiency of a protest. Plaintiff sent a letter to the Collector of Customs in New York dated August 12, 1960 asking why its letter of February 18, 1960 protesting the liquidation and classification of its entries had not been answered. This second letter only states that the plaintiff was seeking re-classification of the duty rate assessed for liquidating purposes. The first letter dated February 18, 1960 was addressed to the Bureau of Customs in Washington, D.C. The letter sets out the entry being protested, the desired duty rate and classification, and the reasoning for the reliquidation at the sought duty rate. The Government argued that the August 12th letter was timely filed, but the February 18th letter was prematurely filed, and filed with the Bureau of Customs and not with the collector as prescribed by statute. The Government also contends that the August 12th letter, while timely, failed to set forth distinctly and specifically the claims alleged. The Government relied on the case of National Carloading Corporation v. United States, 44 Cust. Ct. 493, Abstract 64258 (1960), in which a protest was found insufficient, although it referred to the fact that samples had been sent to the Bureau of Customs and the Bureau had issued a reply. The court in that case relied on Robert G. Winny v. United States, 7 Treas. Dec. 774, T.D. 25297 (1904), which states
“It [protest] may not incorporate, by reference to another document, the reasons embodied therein, unless the same is physically annexed to the writing which purports to be the protest. ‘And if the protest itself gives no indication of the reasons why the collector’s action is alleged to be erroneous, and, further, does not set forth the paragraphs which allegedly properly govern the disposition of the merchandise, the document is fatally defective. Bernard, Judae & Co. v. United States, 71 Treas. Dec. 558, T.D. 48899.’” Id at 292. The court also notes that the Government also relies upon J.R. Press Corporation v. United States, 45 Cust. Ct. 382, Abstract 64924, which held that any information collaterally obtained by the collector does not validate an otherwise invalid protest. In discussing whether collaterally obtained information in the form of an additional letter must be physically attached to the protest, the court refers to the Supreme Court’s decision in Schell’s Executors v. Fauche, 138 U.S. 562. The court states from the Schell case, “ ‘* * * Authorities are plentiful to the effect that papers attached together even by a pin are to be treated as a unit constituting one entire contract or memorandum. * * * If, however, the papers are not connected together in fact, they are not considered as connected in law, unless, at least, the paper refers in some way to the other, which may then be construed as forming a part of it. Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 B. & C. 945.’” Id at 293.
The court in concluding that the protest was sufficient in the Atlantic Linen case stated that that the second letter, August 12th, refers to the first letter, February 18th, sent by Plaintiff. The court states that the collector’s report shows he knew the intent of the importer, and hence, the letters are connected together in law. The court also notes that letter was physically attached to the official papers before the court. Finally, the court concludes that while there may be some cases where information collaterally obtained may be deemed insufficient to state a cause of action, that instant case was not one.
Following the court’s analysis in the Atlantic Linen case, supra, the third letter, March 1, 1996, sent by LG would not be sufficient as a post-importation NAFTA claim. It is not sufficient as a claim, since the letter does not comply with the requirements in section 181.32, and it only incorporates by reference the December 18, 1995 letter. The December 18, 1995 letter, discussed above, is not a post-importation NAFTA claim, instead, it is a NAFTA ruling request. Therefore, the third letter, although it could have been independent claim, is not sufficient as a post-importation NAFTA claim, since, it only referenced the December 18, 1995 letter which was not a claim and did not contain the certifications required by paragraphs (b)(4) and (5) of 19 CFR 181.32.
As to the fourth letter, dated May 15, 1996, that letter refers again to the letter dated December 18, 1995. This fourth letter does not make any additional claims, but states a narrative regarding the processing of the submission of March 1, 1996. However, this fourth letter also references the February 26, 1996 submission, which we found to be a valid post-importation NAFTA claim. Again however, the February 26, 1996 submission is called a supplement to its December 18, 1995 request. The December 18, 1995 request is not a post-importation NAFTA claim, instead it is NAFTA ruling request. Following the court’s reasoning in Atlantic Linen, supra, it cannot be concluded with certainty which claim this fourth letter seeks to incorporate by reference. Two different issues are involved in the two letters referenced, seeking two different actions by Customs, and neither letter is attached to this, the fourth letter. This fourth letter is not a valid post-importation NAFTA claim, as no entries are identified, the requirements of section 181.32 are not met, and it is not clear which of one of its previously raised issues, the NAFTA ruling request or post-importation NAFTA claim, LG seeks to incorporate.
However, the fifth letter, dated July 11, 1996 is different again. This letter, making a claim for entries, not previously identified, is an independent claim, in view of the courts holding in Lykes Pasco, supra. This letter entitled a post-importation NAFTA refund claim, references and encloses both entries between July 1, 1995 through December 31, 1995, and the supporting certificates of origin. The letter references and encloses copies of both the December 18, 1995 and the February 26, 1996. Finally, this letter states that it is seeking NAFTA refunds for the enclosed entries. This letter, as an independent post-importation NAFTA claim, in view of the court’s decision in Atlantic Linen, supra, is sufficiently clear as to the relief sought. This letter references and encloses the letter of February 26, 1996, in which a valid post-importation NAFTA claim was made. That letter included the required certifications of section 181.32, and this fifth letter incorporates by reference and attaches that letter, which is sufficient for meeting the requirements of section 181.32. Therefore, if the entries that are identified, are timely for a post-importation NAFTA claim, that is, the claim is made within one year of each entry, then the claim should be allowed.
In this case, the conditions precedent to relief under 19 U.S.C. §1520(d) have not been met by LG’s first letter of December 18, 1995. Only in its second letter of February 26, 1996 and its fifth letter of July 11, 1996, does LG properly submit sufficiently appropriate Post-Importation Duty Refund Claims for the subject entries (though not all of the entries qualify).
Therefore, the importer’s assertion that it filed a valid post-importation NAFTA duty refund claim under its NAFTA advance ruling request of December 18, 1995, must be DENIED. Failure to state a claim, failure to provide certificates of origin, and failure to provide a written declaration that the good qualified under the regulations at the time of importation are all barriers to LG’s assertions that its first letter constitutes a valid claim. See, 181.32.
Insofar as any entries LG seeks to include in its 1520(d) claim fall prior to February 25, 1995 (which comprises one year prior to the date of the second letter (February 26, 1996)), their inclusion should be DENIED.
It is also important to note that, as in the statute, the Customs Regulations require that “no claim for preferential tariff treatment on that originating good was made at the time [i.e., when the good was imported into the United States]” (19 C.F.R. §181.31). In this case it is unclear whether any claims for preferential NAFTA treatment were made at the time of entry. Although LG has certified that it “has not provided any copies of the entry summaries or equivalent documentation to any other person,” and that LG “has not filed any protests or requests for reliquidation of the entries the subject of this Claim,” (Second Letter, February 26, 1996), no Entry Summaries (CF 7501s) have been filed with the claim. Moreover, while several of the entries have been successfully tracked on Customs’ computerized entry tracking system, “ACS,” at least one entry number 635-0115770-7, listed on page three of the list of entries attached to LG’s second letter (February 26, 1996), appeared to be not for “TV/VCR combo” but rather for honey-dew melons. All entry numbers listed in LG’s claim must be verified in order to ascertain whether the information appearing on the lists are accurate. Additionally, we were unable to perform a comparison of the entry numbers attached to the third letter dated March 1, 1996, and the certificates of origin attached.
HOLDING:
A NAFTA Post-Importation Duty Refund Claim may not be granted for entries of subject merchandise that were entered into the United States prior to February 26, 1996. February 26, 1996, is the date LG provided sufficient compliance with 19 U.S.C. § 1520(d) requirements and submitted what has been determined to be a valid Post-Importation NAFTA Duty Refund Claim.
You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, 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
Commercial Rulings Division