CUSTOMS-NOTES

The materials contained in this document have been prepared George R. Tuttle Law Offices for informational purposes only. The information contained is general in nature, and may not apply to particular factual or legal circumstances. In any event, the materials do not constitute legal advice or opinions and should not be relied upon as such.

March 29, 2001

Customs Final Rule Amends HMT Refund Procedures

Customs has published its final rule establishing a one-year time limit in which to request refunds of Harbor Maintenance Fees (HMF) on waterborne exports that were paid on a quarterly basis. Exporters must file for HMT refunds by December 31, 2001, or risk losing the right to HMF refunds.

Background

In 1998, the HMF on waterborne exports was held to be unconstitutional by the Supreme Court in US Shoe v. United States.

Later, in Swisher International v. United States, the Court of Appeals for the Federal Circuit held that Customs could chose to include time limitations in the regulations which provide for refunds, 19 CFR section 24.24.

Therefore, in December 2000 Customs published a notice of proposed rulemaking (NPRM) inviting comments on a rule that would establish a one-year time limit on HMF refunds pursuant to 19 CFR section 24.24.

Customs Final Rule

On July 2, 2001 Customs adopted as final the NPRM previously published. The final rule thus provides that exporters filing for refunds of payments made on or after July 1, 1990, need only file a letter of request containing certain information.

Those exporters requesting refunds of payments made prior to July 1, 1990, will be required to provide documentation of the payments. If a timely filed request is denied for lack of or insufficient documentation, such an exporter will have an additional 120-day period to file additional documentation to support its claim.

However a failure to timely file will preclude the exporter’s right to HMF refunds pursuant to the regulation.

As of yet, legal issues regarding Customs requirements to pay interest on the HMF refunds have not been resolved, and are currently being litigated.

Our firm is actively assisting clients properly file and obtain HMT refunds on a contingency basis. If you desire assistance in preparing HMF refunds please contact our offices immediately.