LIQ-9-01-RR:IT:EC 226273 PH
Port Director of Customs
819 Water Street, Building # 6
Laredo, Texas 78040
ATTN: Protest Section
RE: Internal Advice 26/95; Protest No. 2304-95-100045; Claim for
Preferential Tariff Treatment under NAFTA; 19 U.S.C. 1514;
19 U.S.C. 1520(d)
Dear Sir or Madam:
The above-referenced internal advice request was forwarded to
this office for our consideration. We have considered the
evidence provided and the arguments made on behalf of the
importer, as well as Customs records relating to this matter.
Our decision follows.
[This ruling does not address the proposal by counsel for the
importer that excess quota certificate quantities be cumulated
for use on another entry (the decision in the ruling regarding
the applicability of the procedures for NAFTA Post-Importation
Duty Refund Claims when a claim for preferential tariff treatment
was made at the time of importation and granted makes a decision
on the quota-cumulation issue unnecessary for purposes of the
entries, claim, and protest involved in this case). We are
forwarding a copy of your request and this ruling to Mr. Jerry
Laderberg, Chief of the Entry & Carrier Rulings Branch of this
office (Telephone: 202-482-6940) for appropriate action on the
quota-cumulation issue raised in this matter.]
FACTS:
According to the file, the importer in this matter imported
certain shipments of orange juice from Mexico during calendar
year 1994. The merchandise under consideration in this matter
was entered on 16 entries, under subheadings MX9906.20.07 and
MX2009.11.0060, Harmonized Tariff Schedule of the United States
(HTSUS), with duty at the rate of 9.019 cents/liter. The dates
of importation of the merchandise under consideration were
between March 20, 1994 and May 20, 1994. The entries were
liquidated between July 22, 1994, and September 23, 1994.
By letter of December 22, 1994, the broker of the importer
requested reliquidation of 7 of the 16 entries under
consideration. According to this letter:
The above referenced entries were imported with NAFTA
treatment and high rate duty (9.019 [cents]/Lt) as no quota
coupons were available at the time of filing the Entry
Summary. Please find attached original quota coupons,
copies of CF 7501 and shipper invoices. We respectfully
request reliquidation of these entries with the low rate
[of] duty (4.625 [cents]/Lt) for the amount of [liters]
covered by their respective coupon[s].
By letter of December 27, 1994, Customs denied this request,
stating:
Supplement 1 to NAFTA Fact Sheet #25 stipulates that the
Export Quota Certificate must be presented with the entry
summary. Once liquidation has occurred, the only way you
can submit the certificate is [illegible] using the protest
procedures outlined in 19 CFR 174.12. This means that
protest[s] have to be presented within 90 days from date of
liquidation.
On March 22, 1995, the importer filed a protest (2304-95-100045),
under 19 U.S.C. 1514, against the refusal of Customs to
reliquidate the entries for which reliquidation was requested in
the December 22, 1994, letter, described above. Suspension of
the protest was requested, pending a decision on the importer's
Post-Importation NAFTA Duty Refund Claim dated March 21, 1995.
According to Customs records, action on the protest has been
suspended.
The March 21, 1995, Post-Importation NAFTA Duty Refund Claim,
referred to in the protest (see above), seeks refunds of "excess
Customs duties" for the 16 entries under consideration.
According to the claim, although the merchandise qualified for
the benefits of the NAFTA "low-tier" rate of duty, the "high-tier" rate of duty was required to be paid because no NAFTA Quota
Certificates were available at the time of entry (according to
the brief of counsel on behalf of the importer (see also Office
of Trade Operations FACT SHEET 25, February 3, 1994 (4034072),
copy enclosed), the requirement for the certificates was
effective on or after February 7, 1994, but no certificates were
available until March 25, 1994). Certificates of Origin and
NAFTA Export Quota Certificates were submitted with the claim.
The claim also seeks cumulation of the quantities of merchandise
covered by the NAFTA Quota Certificates. If cumulation is
allowed, the importer claims that the Quota Certificates involved
cover 98,889 liters not needed for the entries to which the Quota
Certificates were applied. The importer seeks to have this
excess quantity applied to another entry, on which the NAFTA
high-tier rate of duty was paid.
ISSUE:
May a NAFTA Post-Importation Duty Refund Claim be granted when a
claim for preferential tariff treatment was made at the time of
importation and was granted?
LAW AND ANALYSIS:
Under 19 U.S.C. 1520(d), notwithstanding that a valid protest was
not filed, Customs may reliquidate an entry to refund any excess
duties paid on a good qualifying under the NAFTA rules of origin
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 a claim meeting certain conditions
(emphasis supplied). The conditions required to be met for a
claim filed under section 1520(d) are that the claim must include
a written declaration that the good qualified under the NAFTA
rules of origin at the time of importation, copies of all
applicable NAFTA Certificates of Origin, and such other
documentation relating to the importation of the goods as is
required by Customs. The Customs Regulations promulgated under
this provision are found in 19 CFR 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). As in the statute (see underlined material
above), the Customs Regulations require as a condition precedent
to relief under this provision that "no claim for preferential
tariff treatment on that originating good was made at that time
[i.e., when the good was imported into the United States]" (19
CFR 181.31).
In this case the above condition precedent to relief under 19
U.S.C. 1520(d) is not met. A claim for preferential tariff
treatment was made at the time of importation and that claim was
granted. That is, the Most Favored Nation rate of duty for the
merchandise under consideration at the time under consideration
was 9.25 cents per liter (subheading 2009.11.00, 1994 HTSUS).
The high tier NAFTA rate of duty for such merchandise from Mexico
was 9.019 cents per liter (subheading 9906.20.07, 1994 HTSUS),
and the low-tier NAFTA rate of duty for such merchandise from
Mexico was 4.625 cents per liter (subheading 9906.20.06, 1994
HTSUS). The merchandise under consideration was entered under
subheading 9906.20.07, HTSUS (on the entry summaries for the
merchandise, classification is stated as "MX9906.20.07" and
"MX2009.11.0060"), with duty at the rate of 9.019 cents per
liter.
Therefore, the importer's March 21, 1995, Post-Importation NAFTA
Duty Refund Claim must be DENIED. On the same basis, the protest
(2304-95-100045) of the denial of the importer's December 22,
1994, request for reliquidation of 7 of the 16 entries under
consideration should also be denied (we note that one of these 7
entries (25...924-1) was liquidated 90 days before the date of
the December 22, 1994, broker's request for reliquidation; even
if this request was filed on the same date, if it was treated as
a sufficient protest under 19 U.S.C. 1514, it was denied by the
December 27, 1994, letter from Customs). We note that this
decision is consistent with Supplement 1 to Office of Trade
Operations FACT SHEET 25, February 4, 1994 (4035071), and Office
of Trade Operations FACT SHEET 38, May 23, 1995 (5143071), copies
enclosed.
HOLDING:
A NAFTA Post-Importation Duty Refund Claim may not be granted
when a claim for preferential tariff treatment was made at the
time of importation and was granted.
The Office of Regulations and Rulings will take steps to make
this 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 60 days from the date of this decision.
Sincerely,
Director, International
Trade Compliance Division
Enclosures