HQ 227538

February 23, 1998

LIQ-9-RR:CR:DR 227538

CATEGORY: LIQUIDATION

Port Director of Customs

U.S. Customs Service

P.O. Box 1490

St. Albans, VT 05478

ATTN: John Streker

RE: Protest 0201-97-100084, Merchandise Processing Fee,

Post-importation NAFTA tariff preference claims, refund

of merchandise processing fee 19 U.S.C. 1514, 19 U.S.C.

1520(d)

Dear Sir:

This is our decision on the application for further

review of Protest 0201-97-100084.

FACTS:

The protest involves entry 112-xxx014-8. The entry was

made on January 31, 1996. The importer did not make a claim

for NAFTA tariff preference on the entry. Customs ACS

records indicate that the entry was liquidated May 3, 1996.

The file contains a letter from General Motors Corporation

dated November 19, 1996, and which was received by Customs

on November 26, 1996, that requests post-importation NAFTA

tariff preference under 19 U.S.C. 1520(d).

The entry papers contain red notations made by Customs

officers in processing the claim. Customs refused to refund

the merchandise processing fee pursuant to HQ 227254 and

HQ 227127, on January 3, 1997. The protestant, GMC General

Motors Can, filed this protest on March 11, 1997.

ISSUES:

1\. Whether this protestant may protest the denial

of this claim?

2\. Whether the merchandise processing fee can be

refunded in a post-importation claim under

19 U.S.C. 1520(d).

LAW AND ANALYSIS:

Under 19 U.S.C. all decisions on an entry become final

and conclusive on all parties with certain exceptions. One

such exception is provided by 19 U.S.C. 1520(d). That

statute permits an importer to make a post-importation claim

for NAFTA tariff preference within one year of the date of

importation.

The protest file does not contain evidence that a

proper post-importation claim was made. Saturn Corporation

was the importer of record on the entry. Under 19 U.S.C.

1520(d), the Customs Service is authorized to reliquidate

an entry for which no claim was made if the importer in

accordance with the Customs Regulations, files a claim that

includes a written declaration that the imported good

qualified under the NAFTA rules of origin and a copy of the

applicable NAFTA certificate of origin.

The letter of November 19, 1996, is from General Motors

Corporation. There is no showing that Saturn Corporation,

the importer of record, is General Motors Corporation. Their

identification as corporations indicates a separate legal

identity for both entities. While the customhouse broker

appears to be an agent for both corporations, both the entry

papers and the letter show that the broker was not the

importer of record and that it was not acting for Saturn

Corporation on General Motor Corporation\'s letter of

November 19, 1996. Consequently, the evidence does not show

compliance with the express terms of 19 U.S.C. 1520(d).

The protestant is GMC General Motors Can. A comparison

of the importer number used on the protest by GMC General

Motors Can and that used on the entry by Saturn Corporation

show that they are not the same. Under 19 U.S.C. 1514, the

persons eligible to file a protest are listed in paragraph

(c)(2). The only relevant listings include the importer or

consignee shown on the entry papers, the exporter or

producer who completed and signed a NAFTA certificate of

origin on the merchandise, or an authorized agent of either.

With respect to activities defined as Customs business,

which includes filing entries, the payment of duties, taxes

or other charges assessed on imported merchandise, or the

refund thereof, the only authorized agent can be a licensed

customhouse broker by virtue of 19 U.S.C. 1641. Saturn

Corporation was both the importer of record and the

consignee on the entry. The NAFTA certificate of origin and

the commercial invoice in the entry papers show an entity

other than GMC General Motors Can or General Motors

Corporation to be the producer or exporter of the imported

goods. The entry, General Motors Corporation\'s letter of

November 19, 1996, and the protest do not show that latter

two entities were acting as the agent of Saturn Corporation.

Consequently, the evidence indicates that there was no

compliance with 19 U.S.C. 1514.

Unless compliance with the relevant statutes cited can

be shown, the protest is to be denied for the foregoing

reasons.

The second issue is whether, on a timely, proper post-importation claim
under 19 U.S.C. 1520(d), Customs is to

refund the merchandise processing fee associated with the

eligible merchandise. Customs has modified its prior

position. Enclosed is a copy of HQ 227605, including a copy

of the general notice, which should be applied in

appropriate circumstances. To the extent that the importer

can demonstrate compliance with the applicable statutes, as

discussed above, the protest is to be granted.

HOLDINGS:

The evidence does not show compliance with 19 U.S.C.

1514 or 1520(d). The importer is to be given 30 days from

the date of this decision to show that timely, proper claims

for each entry were made and that a proper protest against

the denial of the refund was made. If the importer fails to

so demonstrate that compliance, the protest is to be denied.

The merchandise processing fee collected on merchandise

for which a proper post-importation NAFTA claim is made is

to be refunded.

In accordance with Section 3A(11)(b) of Customs

Directive 099 3550-065, dated August 4, 1993, Subject:

Revised Protest Directive, this decision should be mailed by

your office, with Customs Form 19, to the protestant no

later than 60 days from the date of this letter. Any

reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing the decision. Sixty

days from the date of the decision the Office of Regulations

and Rulings will take steps to make the 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.

Sincerely,

John Durant, Director

Commercial Rulings Division

Enclosure