OT: RR: CTF: ER H027182 DCC
Ms. Susan Masser
U.S. Customs and Border Protection
Protest and Control Section
1100 Raymond Blvd., Suite 402
Newark, NJ 07102
RE: Protest No. 4601-07-300425; Refund of Merchandise Processing Fees for Originating Goods under CAFTA
Dear Ms. Masser:
This is in response to your request for internal advice dated April 25, 2008, pursuant to 19 C.F.R. § 177.11. Your request concerns Protest No. 4601-07-300425, which was filed on behalf of Martlet Importing Co. (“Martlet”) by FedEx Trade Networks. In your request you ask whether certain goods imported from the Dominican Republic are exempt from the Merchandise Processing Fee (“MPF”) when such goods are originating goods for purposes of the U.S.- Dominican Republic-Central America Free Trade Agreement (“CAFTA” or the “Agreement”).
Because you did not request advice regarding the originating status of the imported merchandise, nor provide information that would allow us to analyze whether that merchandise satisfies the CAFTA rules of origin, this letter does not address whether the preferential rules for the CAFTA have been met.
Martlet imported bottled beer classified under 2203.00.00, HTSUS, on September 5, 2007. At the time of entry, the importer did not declare that the merchandise was an originating good under CAFTA, or include the Special Program Indicator “P” on the CBP Form 7501 to claim CAFTA originating status.
On November 7, 2007, FedEx Trade Networks submitted a claim for a post-importation refund of MPF pursuant to 19 U.S.C. § 1520(d). In its claim, FedEx declares that the imported beer qualified as an originating good under CAFTA and that the relevant entry was not the subject of drawback, nor was the entry referenced on a certificate of delivery or certificate of manufacture and delivery so as to allow another party to make the entry the subject of drawback. FedEx also submitted a revised CBP Form 7501 that indicates the merchandise is originating under CAFTA.
After receiving the importer’s claim, your office referred the submission to this office for internal advice. In the cover memo, you question whether CAFTA originating merchandise classified under tariff number 2203.00.00, HTSUS, is exempt from MPF.
Whether CAFTA-originating goods classified under 2203.00.00 from the Dominican Republic are exempt from the Merchandise Processing Fee.
LAW AND ANALYSIS:
Initially, we note that the importer’s claim was timely filed pursuant to 19 U.S.C. § 1520(d). Claims for preferential treatment for CAFTA originating goods are generally made at the time of filing the entry summary. When an importer is unable to make a claim at that time, the importer may make a post-importation CAFTA claim pursuant to section 1520(d), as amended by section 207 of the Implementation Act. As amended, section 1520(d) allows reliquidation of CAFTA originating goods when a CAFTA claim was not made at the time of importation. Claims under section 1520(d) must be filed within one year of the importation and meet other requirements, such as applicable documentary requirements, including information demonstrating that the entered goods are CAFTA originating goods. In this case, the importer’s claim was filed within one year of the date of importation and was therefore timely filed in accordance with section 1520(d).
On August 5, 2004, the governments of Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, and the United States entered into the U.S.-Dominican Republic-Central America Free Trade Agreement.
On August 2, 2005, Congress approved the Agreement in Section 101(a) of the CAFTA Implementation Act (the “Implementation Act”), Public Law 109-53, 119 Stat. 462 (19 U.S.C. 4011). For goods classified under heading 2203, HTSUS, General Note 29(a) contains the general rules of origin, which provide in part, as follows:
Goods for which entry is claimed under the terms of the Dominican Republic-Central America-United States Free Trade Agreement are subject to duty as set forth herein. For purposes of this note—
originating goods or goods described in subdivision (a)(ii), subject to the provisions of subdivisions (b) through (n) of this note, that are imported into the customs territory of the United States and entered under a provision—
in chapters 1 through 97 of the tariff schedule for which a rate of duty appears in the “Special” subcolumn of column 1 followed by the symbol “P” or “P+” in parentheses, or
in chapter 98 or 99 of the tariff schedule where rate of duty or other treatment is specified,
are eligible for the tariff treatment and quantitative limitations set forth therein in accordance with sections 201 through 203, inclusive, of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (Pub. L. 109-53; 119 Stat. 462).
The product specific rule for merchandise classified under 2203.00.00, HTSUS, requires: “A change to headings 2203 through 2206 from any other chapter, except from compound alcoholic preparations of subheading 2106.90.” General Note 29(n).
Section 204 of the Implementation Act exempts CAFTA originating goods from the collection of MPF. Specifically, section 204 states:
Sec. 204 CUSTOMS USER FEES.
Section 13031(b) of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(b)) is amended by adding after paragraph (14), the following:
(15) No fee may be charged under subsection (a)(9) or (10) [concerning the collection of user fees for the processing of imported merchandise] with respect to goods that qualify as originating goods under section 203 of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act. . . .
Section 204, 109 Pub. L. 53, 119 Stat. 462.
Under the Implementation Act, the provisions of CAFTA become effective for individual CAFTA countries only when the Agreement enters into force for that country, which occurs upon issuance of a presidential proclamation to that effect. Imported goods that are CAFTA originating are entitled to the benefits of the Agreement as of the effective date set forth in the presidential proclamation and in accordance with the Implementation Act and General Note 29 of the HTSUS.
On February 28, 2007, President Bush issued Presidential Proclamation 8111, “To Implement the Dominican Republic-Central America-United States Free Trade Agreement With Respect to the Dominican Republic and for Other Purposes,” published in the Federal Register on March 6, 2007, 72 Fed. Reg. 10,025. According to that Proclamation, the Agreement entered into force for goods entered into the United States from the Dominican Republic on or after March 1, 2007.
In your request, you state that Paragraph 7(a) of Annex 3.3-DR of the Agreement apparently excludes products of heading 2203, HTSUS, from CAFTA eligibility. The relevant provision states: “Except as the Dominican Republic and Costa Rica may otherwise agree, the tariff commitments set out in this Schedule shall not apply to an originating good classified under . . . heading 2203 . . . that is imported directly from the territory of Costa Rica.”
Annex 3.3-DR operates to limit the preferential treatment for CAFTA originating goods traded between Costa Rica and the Dominican Republic. Specifically, Paragraph 7(a) of Annex 3.3-DR excludes bottled beer, whether originating or not, when such merchandise is exported from Costa Rica to the Dominican Republic.
Annex 3.3-U.S., which contains the list of exclusions from the U.S. tariff commitments under CAFTA, does not contain a similar limitation for bottled beer classified under heading 2203, HTSUS. Consequently, provided the imported beer otherwise satisfies the CAFTA rules of origin, the merchandise classified under heading 2203, HTSUS, is exempt from the MPF when imported directly into the United States from the Dominican Republic.
For the reasons discussed above, the imported merchandise qualifies for the CAFTA exemption for MPF.
You are to mail this decision to the protestant no later than 60 days from the date of this letter. On that date, this office will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division