MAR-05 RR:CR:SM 562463 NL
Assistant Port Director, Trade Operations
U.S. Customs Service
526 Water Street
Port Huron, MI 48060
RE: Request for Internal Advice - Post-importation NAFTA Excess Duty Refund Claim; 19 USC §1520(d); 19 CFR §181.31-33
Dear Assistant Port Director:
This is in reply to your memorandum dated June 20, 2002, in which you requested Internal Advice concerning the processing of post entry NAFTA claims under 19 USC §1520(d) and 19 CFR §181.31-33.
FACTS:
By a letter dated August 30, 2001, an importer’s Customs broker requested a refund of excess duties pursuant to 19 USC §1520(d). This request was in connection with goods imported from Canada on May 6, 2001 which, according to the request, qualified as originating goods under NAFTA but for which no claim of NAFTA eligibility was made at importation. The letter of request made reference to import documentation transmitted to Customs as attachments, including a CF 434 Certificate of Origin. However, there was no CF 434 received by Customs as an attachment to the request letter. Customs on October 25, 2001 denied the claim, noting, “CF 434 not submitted with claim.”
It appears that other than the failure to include the CF 434, the letter claiming post-importation refund satisfied in form and content the filing procedures set out in 19 CFR §181.32 for NAFTA post importation duty refund claims. Also, the information supplied indicates that the importer met the eligibility requirements set out in 19 CFR §181.31 for filing post-importation NAFTA claims.
By a letter dated October 30, 2001, the importer’s broker submitted substantially the same claim for duty refund, but this time including an attachment of the CF 434 Certificate of Origin for the goods. Customs returned the letter with the following notation: “Denied : may not resubmit claim.”
Your office’s memorandum seeks advice on the questions of: 1) whether an importer may file subsequent claims of this kind on the same transaction; and 2) what constitute fatal errors on such claims. The memorandum indicates that the advice is necessary to assure uniformity of treatment.
ISSUE:
Should the importer have been given the opportunity to resubmit his post-importation NAFTA claim for refund of excess duties?
LAW & ANALYSIS:
Under Section 520(d) of the Tariff Act of 1930, as amended (19 U.S.C. §1520(d)), Customs may reliquidate an entry to refund any excess duties paid on a good qualifying under the NAFTA rules of origin. This opportunity is available to importers only with respect to goods for which no claim for NAFTA preferential tariff treatment was made at the time of importation. The importer’s claim must be filed within 1 year after the date of importation, and must meet certain conditions. 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 and setting forth these requirements are found in 19 CFR §181.31-33.
As provided in 19 CFR §181.33(d)(1), the port director may deny a claim if the importer does not comply with the claims requirements of 19 CFR §181.31-33. One such requirement is presentation of the CF 434 Certificate of Origin with the claim. The CF 434 having been omitted from the importer’s September 5, 2001 claim filing, Customs properly denied the importer’s first effort to claim refund of excess duties.
With regard to the importer’s second claim for refund on the same transaction, filed on November 1, 2001, we find no failure to comply with the claim formalities of 19 CFR §181.31-33. Upon consideration of the language of Section 520(d), we find no basis upon which Customs may deny a claim that is:
Filed within one year of importation;
Filed in accordance with applicable regulations;
Accompanied by a written declaration, copies of the CF 434, and such other documents relating to the importation as Customs may require.
The importer’s second claim of November 1, 2001, is in conformity with all of these statutory requirements.
Apart from the requirements set forth above, §520(d) does not provide other grounds upon which Customs may deny a post-importation NAFTA claim. It does not prohibit resubmission of a claim relating to goods that were the subject of a previous incomplete or defective claim, provided this is done within one year after the date of importation.
The applicable regulation, at 19 CFR §181.33(d), enumerates the grounds for denial of a post-importation NAFTA claim as follows: failure to timely file; noncompliance with regulatory requirements; invalidity of the Certificate of Origin; or determination following initiation of a verification that the imported good does not qualify as originating. Like the statutory language, this regulation contains no provision for rejection of an otherwise valid claim because a previous claim was rejected for noncompliance with procedural requirements. Obviously, where Customs has determined previously that a good is non-originating, or that the Certificate of Origin cannot be accepted, rejection of a subsequent claim is appropriate. The instant case, however, concerns use of the §520(d) procedure to correct omissions or clerical errors. We find nothing in the applicable statute or regulations to preclude granting a renewed claim made within the one year time period and in conformity with the filing requirements of 19 CFR §181.31-33.
HOLDING:
The importer’s re-filed post-importation NAFTA claim for refund of excess duties is not barred because the same claim was earlier rejected for failure to include the CF 434 as required under 19 CFR §181.32(b)(2). The re-filed claim is in conformity with statutory and regulatory requirements and should be allowed.
No later than sixty days from the date of this letter the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.
Sincerely,
Myles B. Harmon
Acting Director
Commercial Rulings Division