It is CBP's 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 after 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
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 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.